EXHIBIT 99.9
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into this 19th day of December, 1996, by
and between KEYSTONE FINANCIAL, INC. ("Keystone"), and XXX X. XXXXX, of
Carlisle, Pennsylvania ("Xx. Xxxxx").
W I T N E S S E T H:
WHEREAS, Keystone and Financial Trust Corp have entered into an Agreement and
Plan of Reorganization and an Agreement and Plan of Merger (collectively, the
"Agreements") whereby, at the "Effective Time" (as described in the Agreements),
Financial Trust Corp will merge with and into Keystone, and
WHEREAS, Xx. Xxxxx is currently employed by Financial Trust Corp as it's
Chairman and Chief Executive Officer and possesses valuable knowledge and skills
that have contributed to the successful operation of Financial Trust Corp, and
WHEREAS, subsequent to the closing of the transaction contemplated by the
Agreements, Keystone desires to employ Xx. Xxxxx and Xx. Xxxxx is willing to
become employed by Keystone.
NOW, THEREFORE, in consideration of the following rights and benefits and
intending to be legally bound, Keystone agrees to employ Xx. Xxxxx, and Xx.
Xxxxx hereby agrees to serve Keystone, upon the following terms and conditions:
1. Term. Xx. Xxxxx'x employment by Keystone shall commence as of the
Effective Time and shall continue thereafter for a period of three (3) years,
subject to the extension described in Paragraph 6 hereof.
2. Office. Effective as of the Effective Time and continuing until the
Annual Meeting of Keystone in 1998, Keystone agrees to employ Xx. Xxxxx as its
Chairman. Thereafter, Xx. Xxxxx agrees to serve Keystone in such senior
executive capacities as may be mutually agreed upon from time to time by the
Chief Executive Officer of Keystone and Xx. Xxxxx. Xx. Xxxxx shall use his best
energies and abilities in the performance of his duties hereunder.
3. Compensation. During the term of employment described in Paragraph 1,
Keystone shall pay Xx. Xxxxx an all inclusive, aggregate annual amount of Three
Hundred and Fifty Thousand Dollars ($350,000). Such amount shall be inclusive of
any amounts which would have currently been paid to Xx. Xxxxx but for his
election to have such amounts deferred to a later date under the terms of a non-
qualified deferral arrangement offered by Keystone, as well as any contributions
Keystone shall be required to contribute as "matching" contributions to any plan
or arrangement, qualified or nonqualified, in which Xx. Xxxxx may participate
from time to time.
4. Benefits. During the term of his employment hereunder, Xx. Xxxxx shall
be covered by such life, health, major medical, disability and other welfare
benefit plans and any pension, profit sharing or similar qualified retirement
plans as are available generally to employees of Keystone. Keystone shall
reimburse Xx. Xxxxx for all reasonable and customary out-of-pocket expenses
incurred by him in the
ordinary course of Keystone's business as are provided to senior executive
employees of Keystone, including the use of an automobile and the payment of
dues for membership in one local country club.
5. Termination of Employment. This Agreement, and the compensation and
benefits described herein may not be terminated by Keystone except for a breach
of the provisions of Paragraph 7 hereof. However, in the event of Xx. Xxxxx'x
death, total and permanent disability or other substantial incapacity which is
reasonably expected to be of more than six months duration, Xx. Xxxxx'x
employment shall be terminated at the end of the month in which such death
occurred or a permanent disability or substantial incapacity was determined to
exist by Keystone. Permanent disability or substantial incapacity shall be
conclusively established by Xx. Xxxxx'x qualification for benefits under
Keystone's long term disability plan or qualification for Social Security
disability benefits and may be determined by an express finding of permanent
disability or substantial incapacity by the Board of Directors. Upon the
occurrence of Xx. Xxxxx'x death or the determination of Xx. Xxxx'x' permanent
disability or substantial incapacity, this Agreement shall immediately terminate
and Keystone shall be released from all further responsibilities hereunder.
6. Extension of Term; Stand-by Consulting Agreement. Acknowledging Xx.
Xxxxx'x extensive knowledge and highly valuable skills, Keystone desires to have
the opportunity to call on such knowledge and skills from time to time during
the period beginning at the end of the initial term of employment described in
Paragraph 1 and ending upon Xx. Xxxxx'x sixty-fifth (65th) birthday.
Accordingly, Xx. Xxxxx agrees to make himself available to advise and consult
with Keystone from time to time during this extended term, upon reasonable
advance notice from Keystone. In consideration of Xx. Xxxxx'x agreement to make
himself available as described herein, Keystone shall compensate Xx. Xxxx at a
rate of One Hundred and Seventy Seven Thousand Dollars ($177,000) per annum, and
provide Xx. Xxxx with Keystone's regular medical care benefits during such
period. The payment by Keystone of such compensation and benefits are subject to
the provisions of Paragraph 7. Xx. Xxxxx shall be considered an employee of
Keystone during this period and all federal, state and local income and
employment tax withholding and payments shall be made.
7. Acceleration of Payments Upon a "Change of Control". Upon the
occurrence of a "Change of Control" (as defined below) during the initial or
extended term of this agreement, Xx. Xxxxx shall have the unilateral right, upon
written notice provided pursuant to Paragraph 10, to accelerate the payment of
the aggregate amount of future cash compensation which would be payable to Xx.
Xxxxx pursuant to Paragraphs 3 and/or 6 hereof. Within sixty days following
receipt of written notice from Xx. Xxxxx, Keystone shall pay the balance of the
future cash compensation due Xx. Xxxxx under this Agreement in a single lump
sum. Payment of such sum shall release and relieve Keystone from all further
obligations hereunder, including the obligation to pay or make available to Xx.
Xxxxx any employee benefits other than as may be required by law.
Notwithstanding such accelerated payment, Xx. Xxxxx expressly agrees to honor
and abide by the provisions of Paragraph 8 hereof, the violation of which may be
enforced by Keystone in a suit at law or in equity without regard to Paragraph
13.
For purposes of thisParagraph, "Change of Control" means the occurrence of
any one of the following events:
(a) Keystone acquires actual knowledge that any Person (other than
Keystone, any subsidiary of Keystone, any employee benefit plan of Keystone or
any its subsidiaries or any entity holding securities for or pursuant to the
terms of any such plan) has acquired the Beneficial Ownership, directly or
indirectly, of securities of Keystone entitling such Person to a majority of the
voting power of Keystone's Voting Stock;
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(b) A majority of the Board of Directors of Keystone ("Board") shall
consist of persons other than (i) persons who were members of the Board
immediately following the Effective Time, or (ii) persons (A) whose nomination
or election as directors of Keystone was approved by at least two-thirds of the
then members of the Board (excluding any director referred to in clause (B) of
this paragraph) who either were directors of Keystone on such date or whose
nomination or election as a director was so approved and (B) who are not
nominees or representatives of (1) any Person having Beneficial Ownership,
directly or indirectly, of securities of Keystone entitling such Person to 10%
or more of the voting power of Keystone's Voting Stock or (2) any
"participant," as defined in Rule 14a-11 under the Securities Exchange Act of
1934 (the "Exchange Act") or any successor rule, in any actual or threatened
solicitation (other than a solicitation by Keystone) subject to Rule 14a-11 or
any successor rule and relating to the election or removal of any directors of
Keystone; or
(c) Keystone and/or any of its subsidiaries shall be a party to any
merger, consolidation, division, share exchange, transfer of assets or any
other transaction or series of related transactions outside the ordinary course
of business (a "Business Combination") as a result of which the shareholders of
Keystone immediately prior to such Business Combination (excluding any party,
other than Keystone or a subsidiary, to the Business Combination or any
Affiliate or Associate of any such party) shall not hold immediately following
such transaction a majority of the voting power of the Voting Stock of a Person
or Persons immediately thereafter holding, directly or indirectly through
subsidiaries, assets of Keystone and its consolidated subsidiaries immediately
prior to the Business Combination constituting at least 65% of Total Assets.
As used in this definition of "Change of Control," (1) the terms "Person,"
"Affiliate," "Associate," "Voting Stock" and "Total Assets" shall have the
definitions contained in, and "Beneficial Ownership" shall be determined as
provided in, Article 10 of Keystone's Restated Articles of Incorporation, as in
effect on the date hereof, and (2) the uncapitalized term "subsidiary," when
used with respect to a specified Person, shall mean any corporation of which
such Person owns, directly or indirectly through subsidiaries, a majority of
each class of equity security having ordinary voting power in an election of
directors.
Following a Change of Control defined in paragraph (3), the term "Keystone" as
used herein, shall mean the Person which following such Change of Control holds
the largest percentage of Keystone's Total Assets, including for this purpose
Total Assets which are held by such Person directly or indirectly through one or
more subsidiaries. Keystone shall not enter into any transaction involving such
a Change of Control, unless at or prior to the consummation thereof, such Person
assumes the obligations of Keystone hereunder.
8. Non-Disclosure and Non-Competition. Xx. Xxxxx recognizes and acknowledges
that during the course of his employment with Financial Trust Corp, and during
the course of his future employment with Keystone, he has acquired and/or may
subsequently acquire privileged and confidential information concerning
Financial Trust Corp's and/or Keystone's current and prospective customers,
their methods and ways of doing business, their plans and goals for future
activities and other confidential or proprietary information belonging to
Financial Trust Corp or Keystone or relating to Financial Trust Corp's or
Keystone's affairs (collectively referred to herein as the "Confidential
Information"). Xx. Xxxxx further acknowledges and agrees that the Confidential
Information is the property of Keystone and that any misappropriation or
unauthorized use or disclosure of the Confidential Information would constitute
a breach of trust and could cause irreparable injury to Keystone, and that it is
essential to the protection of
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Keystone and its good will, and to the maintenance of Keystone's competitive
position that the Confidential Information be kept secret and not be disclosed
to others or used to Xx. Xxxxx'x own advantage or the advantage of others.
Accordingly, Xx. Xxxxx agrees that:
(a) Non-Disclosure of Confidential Information. During his employment
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hereunder and thereafter Xx. Xxxxx shall hold and safeguard the Confidential
Information in trust for Keystone, its successors and assigns; that he shall
not, without the prior written consent of Keystone, misappropriate or disclose
or make available to anyone for use outside Keystone at any time, either during
his employment or subsequent to the termination of his employment, any of the
Confidential Information, whether or not developed by Xx. Xxxxx; and
(b) Restrictions on Competition. Further, Xx. Xxxxx agrees that he
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shall not, either during his employment with Keystone or during the period
beginning on the date of his termination of employment and ending on the last
day of the 24th month thereafter, without first obtaining the written consent of
the Board of Directors of Keystone, directly or indirectly, as an officer,
director, employee, consultant, agent, partner, joint venturer, proprietor or
other, engage in, become interested in or assist any business which is in
competition with Keystone or any of its subsidiaries in the areas of commercial
banking, mortgage banking, leasing or the taking of deposits, and is located or
operating in any of the counties in which Keystone or any of its present or
future subsidiaries may now or at any time prior to the termination of Xx.
Xxxxx'x employment have offices, or any of the counties contiguous thereto,
other than as a shareholder holding not more than 1% of the outstanding shares
of any class of securities registered under the Securities Exchange Act of 1934.
9. Notices. All notices, demands or other communications which may, or are
required to, be provided in connection with this Agreement shall be in writing
and mailed by certified mail, return receipt requested, addressed to the
respective parties as follows:
If to Keystone, at -
Keystone Financial, Inc.
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
If to Xx. Xxxxx, at -
Xx. Xxx X. Xxxxx
00 Xxxxxx Xxxx
Xxxxxxxx, XX 00000;
or to such other address as the addressee party may, from time to time, specify
by written notice to the other.
10. Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
11. Binding Effect. This Agreement shall be binding upon and shall inure to
the benefit of Keystone, any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all
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or substantially all of the business and/or assets of Keystone, or to any
assignee thereof. This Agreement and all rights of the Xx. Xxxxx hereunder shall
inure to the benefit of and be enforceable by Xx. Xxxxx or Xx. Xxxxx'x personal
or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
12. Counterparts, Section Headings. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument. The section
headings of this Agreement are for convenience of reference only and shall not
affect the construction or interpretation of any of the provisions hereof.
13. Arbitration. In the event that any disagreement or dispute shall arise
between the parties concerning this Agreement, the same shall be submitted to
binding arbitration in the City of Harrisburg, Pennsylvania pursuant to the
rules of the American Arbitration Association, and any award entered shall be
final and binding upon the parties hereto and judgment upon the award may be
entered in any court having jurisdiction thereof.
14. Entire Agreement. This Agreement embodies the entire understanding
between the parties relating the amounts payable to the Xx. Xxxxx hereunder in
the event of his termination of employment with Keystone and no change,
alteration or modification hereof may be made except in writing signed by all
parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
ATTEST: KEYSTONE FINANCIAL, INC.
/s/ Xxx X. Xxxxx /s/ Xxxx X. Xxxxxxxx
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Xxx X. Xxxxx, Secretary Xxxx X. Xxxxxxxx, President
and Chief Executive Officer
WITNESS: XXX X. XXXXX
/s/ Xxxxxx X. Xxxxx /s/ Xxx X. Xxxxx
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