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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made at Cleveland,
Ohio, as of May 15, 1997, between KEYCORP, an Ohio corporation ("Key"), and
▇▇▇▇▇ ▇. ▇▇▇▇▇ III ("▇▇▇▇▇").
▇▇▇▇▇ has been elected as President of Key and, in connection with that
election, Key is entering into this Agreement in recognition of the importance
of ▇▇▇▇▇'▇ services to the continuity of management of Key and based upon its
determination that it will be in the best interests of Key and its Subsidiaries
to encourage ▇▇▇▇▇'▇ continued attention and dedication to his duties on behalf
of Key on into the future. (As used in this Agreement, the term "Subsidiaries"
and certain other capitalized terms have the meanings ascribed to them in
Section 21, at the end of this Agreement.)
Key and ▇▇▇▇▇ agree, effective as of the date first set forth above
(the "Effective Date"), as follows:
1. Employment, Term. Key engages and employs ▇▇▇▇▇ to render such
services in the administration and operation of its affairs as, from time to
time, may be specified by its Chief Executive Officer or Board of Directors in a
manner consistent with his status as President, all in accordance with the terms
and conditions of this Agreement, for a constantly renewing two year term,
commencing on the Effective Date, so that the remaining term of employment under
this Agreement shall always be two years, unless: (a) either party gives written
notice to the other that the term shall no longer constantly renew (in which
case, the term of employment under this Agreement will expire on the second
anniversary of the giving of such notice) or (b) ▇▇▇▇▇'▇ employment under this
Agreement is earlier terminated in accordance with the provisions of one of
Sections 5.2 though 5.8 of this Agreement. Thus, for example, on May 16, 1997,
the term of employment under this Agreement will be for two years until May 16,
1999; automatically, without any action by either party, the term will renew and
extend itself on May 17, 1997 so as to be a two year term of employment until
May 17, 1999; and so on with the term automatically extending on a daily basis
so as always to be a two year term until either notice is given under clause (a)
above or ▇▇▇▇▇'▇ employment is earlier terminated in accordance with the
provisions of one of Sections 5.2 through 5.8 of this Agreement.
2. Full-Time Services. ▇▇▇▇▇ will devote all his time and efforts to
the service of Key, except for (a) usual vacation periods and reasonable periods
of illness, (b) services as an officer and director of any Subsidiary of Key,
and (c) services as a director or trustee of other corporations or organizations
that are not in competition with Key or any Subsidiary, except that, ▇▇▇▇▇ shall
obtain the prior approval of Key's Chief Executive Officer before accepting a
position as director or trustee of any for profit entity (whether the entity is
in corporate or other form).
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3. Executive Officer. Throughout the period of his employment under
this Agreement, ▇▇▇▇▇ shall hold the office of President of Key or such higher
executive office as he and Key may mutually agree upon.
4. Compensation. For all services to be rendered by ▇▇▇▇▇ to Key under
this Agreement, including services as an officer, director, or member of any
committee of Key or of any Subsidiary, or any other services specified by Key's
Chief Executive Officer or the Board of Directors, Key shall pay to ▇▇▇▇▇, in
equal monthly or more frequent installments, Base Salary, initially at the rate
of $550,000 per annum. The rate of ▇▇▇▇▇'▇ Base Salary shall be subject to
increase from time to time at the discretion of the Compensation and
Organization Committee of the Board of Directors and shall not be subject to
decrease except and then only to the extent that there is an across-the-board
salary reduction applicable to all senior officers of Key. In addition to being
paid such Base Salary, ▇▇▇▇▇ shall participate fully in any incentive
compensation, retirement, savings, stock option, disability, and other employee
benefit and welfare plan or arrangement allowed or provided by Key in which he
would otherwise be eligible for participation as an executive officer and
employee of Key, and, to the extent not provided, Key shall pay or provide for
the payment of benefits commensurate with ▇▇▇▇▇'▇ annual compensation.
5. Termination.
5.1 Two Years following Notice of Non-Renewal. If either party gives
written notice to the other of his or its intention to discontinue the otherwise
automatic renewal of the term of ▇▇▇▇▇'▇ employment hereunder (a "Non-Renewal
Notice"), that term will terminate on the second anniversary of the giving of
the Non-Renewal Notice, except that if a Change of Control occurs before that
second anniversary date, the Non-Renewal Notice shall be automatically abrogated
and thereafter treated as though it had never been given unless ▇▇▇▇▇ gives
written notice, not later than 30 days after the occurrence of the Change of
Control, that he desires to have the Non-Renewal Notice (whether it was given by
Key or by ▇▇▇▇▇) continue in effect. If either party gives the other a
Non-Renewal Notice as provided in the immediately preceding sentence, that
Non-Renewal Notice remains in effect through the second anniversary of the
giving of that notice, and ▇▇▇▇▇'▇ employment continues through that second
anniversary, ▇▇▇▇▇'▇ employment under this Agreement shall terminate at 12:00
Midnight on that second anniversary.
5.2 Death or Disability. ▇▇▇▇▇'▇ employment hereunder will terminate
immediately upon ▇▇▇▇▇'▇ death. Key may terminate ▇▇▇▇▇'▇ employment hereunder
immediately upon giving notice of termination if ▇▇▇▇▇ is disabled, by reason of
physical or mental impairment, to such an extent that he is unable to
substantially perform his duties under this Agreement for 180 consecutive days.
5.3 For "Cause" Absent a Change of Control. At any time that is either
before the occurrence of any Change of Control or after the second anniversary
of the then most recent Change of Control, Key may terminate ▇▇▇▇▇'▇ employment
hereunder for "Cause" if :
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(a) ▇▇▇▇▇ commits a felony (other than felonious operation of a motor
vehicle);
(b) ▇▇▇▇▇ commits an act or series of acts of dishonesty in the course
of his employment that are materially inimical to the best interests of
Key or a Subsidiary as determined by the vote of a majority of the
entire authorized number of members of the Board of Directors and, if
the act or acts are capable of being cured, ▇▇▇▇▇ fails to cure or take
all reasonable steps to cure within 30 days of notice from the Board of
Directors to ▇▇▇▇▇;
(c) Key or any Subsidiary has been ordered or directed by any federal
or state regulatory agency with jurisdiction to terminate or suspend
▇▇▇▇▇'▇ employment and such order or directive has not been vacated or
reversed upon appeal;
(d) ▇▇▇▇▇ continues to violate his obligation under Section 9.1 not to
engage in Competitive Activities after Key's Chief Executive Officer or
Board of Directors has advised him in writing to cease those
activities; or
(e) Other than for disability, ▇▇▇▇▇ abandons and consistently fails to
attempt to perform his duties and responsibilities as specified from
time to time by Key's Chief Executive Officer or Board of Directors for
90 consecutive days after written notice from the Board of Directors.
5.4 For "Cause" Within Two Years After a Change of Control. From the
date on which occurs any Change of Control and thereafter through the second
anniversary of that Change of Control, Key may terminate ▇▇▇▇▇'▇ employment
under this Agreement for "Cause" only if :
(a) ▇▇▇▇▇ is convicted of a felony (other than felonious operation of a
motor vehicle);
(b) ▇▇▇▇▇ commits an act or series of acts of dishonesty in the course
of his employment that are materially inimical to the best interests of
Key or a Subsidiary and that constitutes the commission of a felony
(other than felonious operation of a motor vehicle), all as determined
in good faith by the vote of three quarters of the entire authorized
number of members of the Board of Directors, which determination is
confirmed by a panel of three arbitrators appointed and acting in
accordance with the rules of the American Arbitration Association for
the purpose of reviewing that determination;
(c) Key or any Subsidiary has been ordered or directed by any federal
or state regulatory agency with jurisdiction to terminate or suspend
▇▇▇▇▇'▇ employment and such order or directive has not been vacated or
reversed upon appeal; or
(d) ▇▇▇▇▇ continues to violate his obligation under Section 9.1 not to
engage in Competitive Activities after the Board of Directors has
advised him in writing to cease those activities and that violation is
material.
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If (x) Key or any Subsidiary terminates the employment of ▇▇▇▇▇ during the two
year period beginning on the date of a Change of Control and at a time when it
has "Cause" therefor under clause (c), above, (y) the order or directive is
subsequently vacated or reversed on appeal and the vacation or reversal becomes
final and no longer subject to further appeal, and (z) Key or the Subsidiary
fails to offer to reinstate ▇▇▇▇▇ to employment under this Agreement within ten
days of the date on which the vacation or reversal becomes final and no longer
subject to further appeal, Key or the Subsidiary will be deemed to have
terminated ▇▇▇▇▇ without Cause during the two year period beginning on the date
of the Change of Control.
5.5 By Key Without Cause. Key may terminate ▇▇▇▇▇'▇ employment
hereunder without Cause at any time by action of a majority vote of the entire
Board of Directors.
5.6 By ▇▇▇▇▇ Following Constructive Termination at Any Time. ▇▇▇▇▇ may
terminate his employment hereunder "on grounds of Constructive Termination"
(and, if ▇▇▇▇▇ elects to terminate his employment in such circumstances, he will
be deemed to have been "Constructively Terminated") if, at any time:
(a) ▇▇▇▇▇'▇ Base Salary is reduced other than in connection with, and
then only to the extent of, a general across-the-board salary reduction
applicable to all senior officers of Key;
(b) ▇▇▇▇▇ is excluded from full participation in any incentive, option,
or other compensatory plan generally applicable to senior officers of
Key;
(c) ▇▇▇▇▇ is subject to Demotion or Removal;
(d) Key requests ▇▇▇▇▇'▇ resignation at a time when Key does not have
grounds to terminate ▇▇▇▇▇'▇ employment for Cause; or
(e) ▇▇▇▇▇'▇ principal place of employment for Key is relocated outside
of the Cleveland metropolitan area or ▇▇▇▇▇ is otherwise required by
Key to relocate outside the Cleveland metropolitan area.
5.7 By ▇▇▇▇▇ Following Constructive Termination Within Two Years After
a Change of Control. At any time during the period beginning on the date on
which occurs any Change of Control and thereafter through the second anniversary
of that Change of Control, ▇▇▇▇▇ may terminate his employment hereunder "on
grounds of Constructive Termination" (and, if ▇▇▇▇▇ elects to terminate his
employment in such circumstances, he will be deemed to have been "Constructively
Terminated") if he could then terminate his employment on any of the grounds of
Constructive Termination listed under Section 5.6 or if:
(a) ▇▇▇▇▇'▇ Base Salary is reduced from the highest level in effect at
any time during the one year period ending on the date of the Change of
Control;
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(b) ▇▇▇▇▇ is excluded from full participation in any incentive, option,
or other compensatory plan that was generally applicable to senior
officers of Key in effect at any time during the one year period ending
on the date of the Change of Control (the "Pre- Change of Control
Compensatory Plans") unless ▇▇▇▇▇ is provided with substitute
incentive, option, and other compensatory plans that provide to ▇▇▇▇▇,
in the aggregate, at least substantially equivalent compensatory
opportunities as would have been provided had the Pre-Change of Control
Compensatory Plans remained in effect with ▇▇▇▇▇ as a full participant
therein;
(c) ▇▇▇▇▇ is excluded from full participation in any incentive, option,
or other compensatory plan that is generally applicable to senior
officers of the Surviving Entity after the Change of Control; or
(d) The headquarters of the Surviving Entity is located outside of the
Cleveland metropolitan area.
5.8 By ▇▇▇▇▇ for "Good Reason" during a Window Period. During a Window
Period after a Change of Control, ▇▇▇▇▇ may terminate his employment hereunder
for "Good Reason" if:
(a) Following notice by ▇▇▇▇▇ to the Surviving Entity and an
opportunity for the Surviving Entity to cure, ▇▇▇▇▇ determines in good
faith that his positions, responsibilities, duties, or status with the
Surviving Entity are at any time materially less than or reduced from
those in effect at Key before the Change of Control;
(b) Following notice by ▇▇▇▇▇ to the Surviving Entity and an
opportunity for the Surviving Entity to cure, ▇▇▇▇▇ determines in good
faith that his reporting relationships with superior executive officers
of the Surviving Entity have materially changed or are materially
different from those in effect at Key before the Change of Control; or
(c) Following notice by ▇▇▇▇▇ to the Surviving Entity and an
opportunity for the Surviving Entity to cure, ▇▇▇▇▇ determines in good
faith that he is unable to carry out the authorities, powers,
functions, responsibilities, or duties as President (or such higher
executive position that he then holds) as those authorities, powers,
functions, responsibilities, or duties attached to the positions held
by him before the Change of Control.
For purposes of clauses (a), (b), and (c), the Surviving Entity will be deemed
to have had an opportunity to cure and to have failed to effect a cure if the
circumstances otherwise constituting Good Reason persist (as determined in good
faith by ▇▇▇▇▇) for more than 7 days after ▇▇▇▇▇ has given notice to the
Surviving Entity of the existence of those circumstances. If ▇▇▇▇▇ terminates
his employment during a Window Period and, at the time of the termination, he is
entitled to terminate his employment on grounds of Constructive Termination,
▇▇▇▇▇ will be
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deemed to have been Constructively Terminated whether or not he also had Good
Reason to terminate his employment.
6. Severance Payments and Benefits upon Termination.
6.1 Termination Without Cause, etc. or Constructive Termination Absent
a Change of Control. If, at any time that is either before the occurrence of any
Change of Control or after the second anniversary of the then most recent Change
of Control, ▇▇▇▇▇'▇ employment is terminated by Key for any reason other than
Cause, disability, or death or ▇▇▇▇▇ is Constructively Terminated:
(a) Key shall pay to ▇▇▇▇▇ an amount equal to two times the sum of (i)
his Base Salary (at the highest rate in effect at any time during the
one year period ending on the Termination Date) plus (ii) his Average
Annual Incentive Compensation, in 24 equal monthly installments during
the period commencing on the day after the Termination Date and
continuing through the second anniversary of the Termination Date; and
(b) Key shall continue to maintain in effect for the benefit of ▇▇▇▇▇
and his dependents, through the second anniversary of the Termination
Date, medical (including dental) coverage, disability coverage, and
life insurance at the same levels and subject to the same (by dollar
amount) employee contribution requirement, if any, as had been in
effect for the benefit of ▇▇▇▇▇ and his dependents before the
Termination Date.
6.2 Termination Without Cause, etc. or Constructive Termination after a
Change of Control. If, at any time during the period beginning on the date on
which occurs any Change of Control and thereafter through the second anniversary
of that Change of Control, ▇▇▇▇▇'▇ employment is terminated by Key for any
reason other than Cause, disability, or death or ▇▇▇▇▇ is Constructively
Terminated:
(a) Lump Sum Payment. Key shall pay to ▇▇▇▇▇, within 30 days after the
Termination Date, a lump sum severance benefit equal to three times the
sum of (i) one year's Base Salary (at the highest rate in effect at any
time during the one year period ending on the date of the Change of
Control) plus (ii) his Average Annual Incentive Compensation;
(b) Retirement and Savings Plan Participation. For the period beginning
on the day after the Termination Date and ending on the third
anniversary of the Termination Date (the "Section 6.2 Benefit Period"),
Key shall cause ▇▇▇▇▇ to continue to be covered by and to participate
in all Retirement Plans and Savings Plans that he was entitled to be
covered by and participating in as an officer of Key immediately before
the Termination Date in the same manner and to the same extent as if
▇▇▇▇▇ continued in the full-time employ of Key throughout the Section
6.2 Benefit Period, except where such coverage or participation is
Impermissible. For these purposes: (i) the entire Section 6.2 Benefit
Period shall be included in determining ▇▇▇▇▇'▇ years of service, (ii)
amounts received by ▇▇▇▇▇ under
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clause (a)(i) of Section 6.2 shall be deemed to be base salary received
by ▇▇▇▇▇ ratably during the Section 6.2 Benefit Period, and (iii)
amounts received by ▇▇▇▇▇ under clause (a)(ii) of Section 6.2 shall be
deemed to be incentive compensation received by ▇▇▇▇▇ ratably during
the Section 6.2 Benefit Period and shall, if relevant, be allocated
between short term incentive compensation and long term incentive
compensation based on the degree to which awards of each type of
incentive compensation were taken into account in determining Average
Annual Incentive Compensation. If, at any time during the Section 6.2
Benefit Period, Key determines in good faith that continuing ▇▇▇▇▇'▇
coverage by and participation in any of the Retirement Plans or any of
the Savings Plans during the Section 6.2 Benefit Period is
Impermissible, ▇▇▇▇▇ shall not be covered by and participate in such
affected plan or plans during the Section 6.2 Benefit Period, but Key
shall provide to ▇▇▇▇▇ under this Agreement, as a supplemental
retirement benefit, payments and benefits, that put ▇▇▇▇▇ in the same
position that he would have been in had he continued to be covered by
and participated in all such affected plan or plans throughout the
Section 6.2 Benefit Period to the same extent as he was a participant
immediately before the Termination Date, with the supplemental payments
and benefits under this sentence being payable to ▇▇▇▇▇ (or, if
applicable, to his wife, estate or designated beneficiary) at the same
time and with the same payment options as would be applicable under the
affected plan or plans in question.
(c) Medical, Disability, and Group Term Life Coverage. Key shall
continue to maintain in effect for the benefit of ▇▇▇▇▇ and his
dependents, through the second anniversary of the Termination Date,
medical (including dental) coverage, disability coverage, and group
term life insurance at the same levels and subject to the same (by
dollar amount) employee contribution requirement, if any, as had been
in effect for the benefit of ▇▇▇▇▇ and his dependents before the
Termination Date; and
(d) Potential Vesting of Rights Under Supplemental Retirement Plan. If
the Termination Date occurs before ▇▇▇▇▇'▇ attainment of age 55,
▇▇▇▇▇'▇ rights to benefits under the Supplemental Retirement Plan shall
nevertheless be vested to the same extent as if ▇▇▇▇▇ had attained age
55 before the Termination Date.
6.3 Termination by ▇▇▇▇▇ for Good Reason During a Window Period. If
▇▇▇▇▇ terminates his employment for Good Reason during a Window Period:
(a) Lump Sum Payment. Key shall pay to ▇▇▇▇▇, within 30 days after the
Termination Date, a lump sum severance benefit equal to two times the
sum of (i) one year's Base Salary (at the highest rate in effect at any
time during the one year period ending on the date of the Change of
Control) plus (ii) his Average Annual Incentive Compensation;
(b) Retirement and Savings Plan Participation. For the period beginning
on the day after the Termination Date and ending on the second
anniversary of the Termination Date (the "Section 6.3 Benefit Period"),
Key shall cause ▇▇▇▇▇ to continue to be covered by and to participate
in all Retirement Plans and Savings Plans that he was entitled to be
covered by
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and participating in as an officer of Key immediately before the
Termination Date in the same manner and to the same extent as if ▇▇▇▇▇
continued in the full-time employ of Key throughout the Section 6.3
Benefit Period, except where such coverage or participation is
Impermissible. For these purposes: (i) the entire Section 6.3 Benefit
Period shall be included in determining ▇▇▇▇▇'▇ years of service, (ii)
amounts received by ▇▇▇▇▇ under clause (a)(i) of Section 6.3 shall be
deemed to be base salary received by ▇▇▇▇▇ ratably during the Section
6.3 Benefit Period, and (iii) amounts received by ▇▇▇▇▇ under clause
(a)(ii) of Section 6.3 shall be deemed to be incentive compensation
received by ▇▇▇▇▇ ratably during the Section 6.3 Benefit Period and
shall, if relevant, be allocated between short term incentive
compensation and long term incentive compensation based on the degree
to which awards of each type of incentive compensation were taken into
account in determining Average Annual Incentive Compensation. If, at
any time during the Section 6.3 Benefit Period, Key determines in good
faith that continuing ▇▇▇▇▇'▇ coverage by and participation in any of
the Retirement Plans or any of the Savings Plans during the Section 6.3
Benefit Period is Impermissible, ▇▇▇▇▇ shall not be covered by and
participate in such affected plan or plans during the Section 6.3
Benefit Period, but Key shall, provide to ▇▇▇▇▇ under this Agreement,
as a supplemental retirement benefit, payments and benefits, that put
▇▇▇▇▇ in the same position that he would have been in had he continued
to be covered by and participated in all such affected plan or plans
throughout the Section 6.3 Benefit Period to the same extent as he was
a participant immediately before the Termination Date, with the
supplemental payments and benefits under this sentence being payable to
▇▇▇▇▇ (or, if applicable, to his wife, estate or designated
beneficiary) at the same time and with the same payment options as
would be applicable under the affected plan or plans in question.
(c) Medical, Disability, and Group Term Life Coverage. Key shall
continue to maintain in effect for the benefit of ▇▇▇▇▇ and his
dependents, through the second anniversary of the Termination Date,
medical (including dental) coverage, disability coverage, and group
term life insurance at the same levels and subject to the same (by
dollar amount) employee contribution requirement, if any, as had been
in effect for the benefit of ▇▇▇▇▇ and his dependents before the
Termination Date.
(d) Potential Vesting of Rights Under Supplemental Retirement Plan. If
the Termination Date occurs before ▇▇▇▇▇'▇ attainment of age 55,
▇▇▇▇▇'▇ rights to benefits under the Supplemental Retirement Plan shall
nevertheless be vested to the same extent as if ▇▇▇▇▇ had attained age
55 before the Termination Date.
6.4 Effect of Death While in Employ of Key. If ▇▇▇▇▇ dies while
employed by Key, (a) Key shall pay to ▇▇▇▇▇'▇ estate any unpaid Base Salary due
or to become due to ▇▇▇▇▇ with respect to any period ending before his death and
(b) Key shall have no further obligations to ▇▇▇▇▇ for Base Salary for any
period after ▇▇▇▇▇'▇ death. Upon his death, ▇▇▇▇▇'▇ rights under any plan or
benefit of Key shall be governed by the respective terms thereof.
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6.5 Effect of Disability While in Employ of Key. If, while ▇▇▇▇▇ is
employed by Key, he becomes disabled, by reason of physical or mental
impairment, to such an extent that he is unable to perform his duties under this
Agreement:
(a) Key may relieve ▇▇▇▇▇ of his duties under this Agreement for as
long as ▇▇▇▇▇ is so disabled.
(b) Key shall pay to ▇▇▇▇▇ all Base Salary and incentive compensation
to which he would have been entitled under this Agreement and under
applicable incentive compensation plans had he continued to be actively
employed by Key to the earliest of (i) the date on which he becomes
eligible for payment of long term disability benefits under the Long
Term Disability Benefit Plan, (ii) the date of his death, or (iii) the
second anniversary of the first date on which his employment hereunder
could have been terminated by Key pursuant to the second sentence of
Section 5.2, except that if after ▇▇▇▇▇ has become so disabled and
before he is terminated by Key pursuant to the second sentence of
Section 5.2, ▇▇▇▇▇ recovers so that he is no longer so disabled to such
an extent that he is unable to perform his duties under this Agreement,
▇▇▇▇▇ shall be restored to his duties under this Agreement and entitled
to the benefits of and subject to this Agreement as if no period of
disability had occurred and, accordingly, his entitlement to payments
under this Section 6.5(b) with respect to that prior disability shall
thereupon cease.
(c) The amounts payable to ▇▇▇▇▇ for any month under this Section 6.5
shall be reduced, but not below zero, by the full amount of the
payments, if any, received by ▇▇▇▇▇ for that month (i) from all
Retirement Plans, (ii) from the Long Term Disability Plan, and (iii)
from any other disability plan the entire cost of which is borne by
Key.
(d) For purposes of all retirement, savings, stock option, disability,
and other employee benefit and welfare plans or arrangements allowed or
provided by Key to officers, ▇▇▇▇▇ shall be treated in the same manner
that Key treats other officers who become disabled.
(e) Except as provided in this Section 6.5, Key shall have no further
obligations to ▇▇▇▇▇ for Base Salary or incentive compensation for any
period during which ▇▇▇▇▇ is so disabled to such an extent that he is
unable to perform his duties under this Agreement.
(f) The payments provided for under this Section 6.5 shall be made as
provided for in this Section notwithstanding any termination of ▇▇▇▇▇'▇
employment under the second sentence of Section 5.2.
6.6 Effect of Termination for Cause. If ▇▇▇▇▇'▇ employment is
terminated for Cause, Key may, by giving written notice to ▇▇▇▇▇, terminate this
Agreement and all its obligations remaining to be performed or observed by it
under this Agreement (other than the obligation to pay base salary to ▇▇▇▇▇
through the Termination Date and the obligations under Section 13),
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except no termination of this Agreement shall affect ▇▇▇▇▇'▇ rights under any
plan or benefit of Key, all of which shall be governed by their respective
terms.
7. No Set-Off; No Obligation to Seek Other Employment or to Otherwise
Mitigate Damages; No Effect Upon Other Plans. Key's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense, or other claim whatsoever that Key or any of its Subsidiaries may have
against ▇▇▇▇▇, except that the prohibition on set-off, counterclaim, recoupment,
defense, or other claim contained in this sentence shall not apply if ▇▇▇▇▇'▇
employment is terminated by Key for Cause at any time that is either before the
occurrence of any Change of Control or after the second anniversary of the then
most recent Change of Control. ▇▇▇▇▇ shall not be required to mitigate damages
or the amount of any payment provided for under this Agreement by seeking other
employment or otherwise. The amount of any payment provided for under this
Agreement shall not be reduced by any compensation or benefits earned by ▇▇▇▇▇
as the result of employment by another employer or otherwise after the
termination of ▇▇▇▇▇'▇ employment. Neither the provisions of this Agreement nor
the making of any payment provided for hereunder shall reduce any amounts
otherwise payable, or in any way diminish ▇▇▇▇▇'▇ rights, under any incentive
compensation plan, stock option or stock appreciation rights plan, deferred
compensation, retirement, or supplemental retirement plan, stock purchase and
savings plan, disability or insurance plan, or other similar contract, plan, or
arrangement of Key or any Subsidiary, all of which shall be governed by their
respective terms.
8. Payments Are in Lieu of Severance Payments. If ▇▇▇▇▇ becomes
entitled to receive payments under this Agreement as a result of termination of
his employment, those payments shall be in lieu of any and all other claims or
rights that ▇▇▇▇▇ may have for severance, separation, and/or salary continuation
pay upon that termination of his employment.
9. Limitations on Competition.
9.1 During Employment. ▇▇▇▇▇ shall not engage in any Competitive
Activity during the period of his employment with Key.
9.2 Two Years Following Termination by Key for Cause or by ▇▇▇▇▇ Under
Certain Circumstances. The provisions of this Section 9.2 shall apply only in
the event ▇▇▇▇▇'▇ employment is terminated by Key for Cause or by ▇▇▇▇▇ when
both of the following are true: (i) ▇▇▇▇▇ has not been Constructively
Terminated, and (ii) ▇▇▇▇▇'▇ employment terminated under circumstances such that
he is not entitled to receive payments or benefits under either of Section 6.2
or 6.3 (which provide for payments and benefits in certain circumstances within
two years after a Change of Control). ▇▇▇▇▇ shall not at any time: (a) during
the one year period ending on the first anniversary of the Termination Date,
engage in any Competitive Activity in a Restricted State, and (b) during the two
year period ending on the second anniversary of the Termination Date, engage in
any Competitive Activity in Ohio.
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9.3 Noncompetition Following Termination in All Other Circumstances.
The provisions of this Section 9.3 shall apply in all cases following the
termination of ▇▇▇▇▇'▇ employment except those expressly covered by Section 9.2
above. ▇▇▇▇▇ shall not at any time during the one year period ending on the
first anniversary of the Termination Date engage in any Competitive Activity in
Ohio.
9.4 No Further Obligation to Make Payments or Provide Benefits
Following Continuing Breach. If ▇▇▇▇▇ continues to violate the restriction set
forth in Section 9.2 or 9.3 after the Board of Directors has advised him in
writing to cease those activities and that violation is material, Key shall
thereupon be relieved of all further obligations to make payments and provide
benefits to ▇▇▇▇▇ under any of the provisions contained in any of Sections 6.1,
6.2, or 6.3, as the case may be. ▇▇▇▇▇ shall not be required to repay to Key any
payment received by him before he began to engage in any such Competitive
Activity. If a Financial Services Company has business operations or activities
in multiple states some of which are Restricted States and some of which are not
Restricted States, Key will not unreasonably withhold its consent after the
Termination Date to ▇▇▇▇▇ serving as an officer, employee, or consultant of such
Financial Services Company if (a) ▇▇▇▇▇'▇ duties and responsibilities for such
Financial Services Company are restricted to a specific geographic region which
does not include a Restricted State, and (b) none of ▇▇▇▇▇'▇ services or
activities is performed in or related to a Restricted State.
9.5 Other Remedies. In addition to other remedies provided by law or
equity, upon a breach by ▇▇▇▇▇ of any prohibition on Competitive Activity
contained in this Section 9, Key shall be entitled to have a court of competent
jurisdiction enter an injunction against ▇▇▇▇▇ restraining him from any further
breach of any such prohibition.
10. Indemnification. Key shall indemnify ▇▇▇▇▇, to the full extent
permitted or authorized by the Ohio General Corporation Law as it may from time
to time be amended, if ▇▇▇▇▇ is made or threatened to be made a party to any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, by reason of the fact that ▇▇▇▇▇ is
or was a director, officer, or employee of Key or any Subsidiary, or is or was
serving at the request of Key or any Subsidiary as a director, trustee, officer,
or employee of a bank, corporation, partnership, joint venture, trust, or other
enterprise. The indemnification provided by this Section 10 shall not be deemed
exclusive of any other rights to which ▇▇▇▇▇ may be entitled under the articles
of incorporation or the regulations of Key or of any Subsidiary, or any
agreement, vote of shareholders or disinterested directors, or otherwise, both
as to action in ▇▇▇▇▇'▇ official capacity and as to action in another capacity
while holding such office, and shall continue as to ▇▇▇▇▇ after ▇▇▇▇▇ has ceased
to be a director, trustee, officer, or employee and shall inure to the benefit
of the heirs, executors, and administrators of ▇▇▇▇▇.
11. Reimbursement of Certain Expenses.
11.1 Key shall pay, as incurred, all expenses, including the reasonable
fees of counsel engaged by ▇▇▇▇▇, of defending any action brought to have this
Agreement declared invalid or unenforceable.
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11.2 Key shall pay, as incurred, all expenses, including the reasonable
fees of counsel engaged by ▇▇▇▇▇, of prosecuting any action to compel Key to
comply with the terms of this Agreement upon receipt from ▇▇▇▇▇ of an
undertaking to repay Key for such expenses if, and only if, it is ultimately
determined by a court of competent jurisdiction that ▇▇▇▇▇ had no reasonable
grounds for bringing that action (which determination need not be made simply
because ▇▇▇▇▇ fails to succeed in the action).
11.3 Expenses (including attorney's fees) incurred by ▇▇▇▇▇ in
defending any action, suit, or proceeding commenced or threatened against ▇▇▇▇▇
for any action or failure to act as an employee, officer, or director of Key or
any Subsidiary shall be paid by Key, as they are incurred, in advance of final
disposition of the action, suit, or proceeding upon receipt of an undertaking by
or on behalf of ▇▇▇▇▇ in which he agrees to reasonably cooperate with Key or the
Subsidiary, as the case may be, concerning the action, suit, or proceeding, and
(a) if the action, suit, or proceeding is commenced or threatened against ▇▇▇▇▇
for any action or failure to act as a director, to repay the amount if it is
proved by clear and convincing evidence in a court of competent jurisdiction
that his action or failure to act involved an act or omission undertaken with
deliberate intent to cause injury to Key or a Subsidiary or with reckless
disregard for the best interests of Key or a Subsidiary or (b) if the action,
suit, or proceeding is commenced or threatened against ▇▇▇▇▇ for any action or
failure to act as an officer or employee, to repay the amount if it is
ultimately determined that he is not entitled to be indemnified. The obligation
of Key to advance expenses provided for in this Section 11.3 shall not be deemed
exclusive of any other rights to which ▇▇▇▇▇ may be entitled under the articles
of incorporation or the regulations of Key or of any Subsidiary, or any
agreement, vote of shareholders or disinterested directors, or otherwise.
12. Gross-Up of Payments Deemed to be Excess Parachute Payments.
12.1 Key and ▇▇▇▇▇ acknowledge that, following a Change of Control, one
or more payments or distributions to be made by Key to or for the benefit of
▇▇▇▇▇ (whether paid or payable or distributed or distributable pursuant to the
terms of this Agreement, under some other plan, agreement, or arrangement, or
otherwise) (a "Payment") may be determined to be an "excess parachute payment"
that is not deductible by Key for Federal income tax purposes and with respect
to which ▇▇▇▇▇ will be subject to an excise tax because of Sections 280G and
4999, respectively, of the Internal Revenue Code (hereinafter referred to
respectively as "Section 280G" and "Section 4999"). If ▇▇▇▇▇'▇ employment is
terminated after a Change of Control occurs, the Accounting Firm, which, subject
to any inconsistent position asserted by the Internal Revenue Service, shall
make all determinations required to be made under this Section 12, shall
determine whether any Payment would be an excess parachute payment and shall
communicate its determination, together with detailed supporting calculations,
to Key and to ▇▇▇▇▇ within 30 days after the Termination Date or such earlier
time as is requested by Key. Key and ▇▇▇▇▇ shall cooperate with each other and
the Accounting Firm and shall provide necessary information so that the
Accounting Firm may make all such determinations. Key shall pay all of the fees
of the Accounting Firm for services performed by the Accounting Firm as
contemplated in this Section 12.
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12.2 If the Accounting Firm determines that any Payment gives rise,
directly or indirectly, to liability on the part of ▇▇▇▇▇ for excise tax under
Section 4999 (and/or any penalties and/or interest with respect to any such
excise tax), Key shall make additional cash payments to ▇▇▇▇▇, from time to time
and at the same time as any Payment constituting an excess parachute payment is
paid or provided to ▇▇▇▇▇, in such amounts as are necessary to put ▇▇▇▇▇ in the
same position, after payment of all federal, state, and local taxes (whether
income taxes, excise taxes under Section 4999 or otherwise, or other taxes) and
any and all penalties and interest with respect to any such excise tax, as ▇▇▇▇▇
would have been in after payment of all federal, state, and local income taxes
if the Payments had not given rise to an excise tax under Section 4999 and no
such penalties or interest had been imposed.
12.3 If the Internal Revenue Service determines that any Payment gives
rise, directly or indirectly, to liability on the part of ▇▇▇▇▇ for excise tax
under Section 4999 (and/or any penalties and/or interest with respect to any
such excise tax) in excess of the amount, if any, previously determined by the
Accounting Firm, Key shall make further additional cash payments to ▇▇▇▇▇ not
later than the due date of any payment indicated by the Internal Revenue Service
with respect to these matters, in such amounts as are necessary to put ▇▇▇▇▇ in
the same position, after payment of all federal, state, and local taxes (whether
income taxes, excise taxes under Section 4999 or otherwise, or other taxes) and
any and all penalties and interest with respect to any such excise tax, as ▇▇▇▇▇
would have been in after payment of all federal, state, and local income taxes
if the Payments had not given rise to an excise tax under Section 4999 and no
such penalties or interest had been imposed.
12.4 If Key desires to contest any determination by the Internal
Revenue Service with respect to the amount of excise tax under Section 4999,
▇▇▇▇▇ shall, upon receipt from Key of an unconditional written undertaking to
indemnify and hold ▇▇▇▇▇ harmless (on an after tax basis) from any and all
adverse consequences that might arise from the contesting of that determination,
cooperate with Key in that contest at Key's sole expense. Nothing in this
Section 12.4 shall require ▇▇▇▇▇ to incur any expense other than expenses with
respect to which Key has paid to ▇▇▇▇▇ sufficient sums so that after the payment
of the expense by ▇▇▇▇▇ and taking into account the payment by Key with respect
to that expense and any and all taxes that may be imposed upon ▇▇▇▇▇ as a result
of his receipt of that payment, the net effect is no cost to ▇▇▇▇▇. Nothing in
this Section 12.4 shall require ▇▇▇▇▇ to extend the statute of limitations with
respect to any item or issue in his tax returns other than, exclusively, the
excise tax under Section 4999. If, as the result of the contest of any assertion
by the Internal Revenue Service with respect to excise tax under Section 4999,
▇▇▇▇▇ receives a refund of a Section 4999 excise tax previously paid and/or any
interest with respect thereto, ▇▇▇▇▇ shall promptly pay to Key such amount as
will leave ▇▇▇▇▇, net of the repayment and all tax effects, in the same
position, after all taxes and interest, that he would have been in if the
refunded excise tax had never been paid.
13. Deferral of Payment of Compensation under Certain Circumstances.
13.1 Section 162(m). For purposes of this Section 13, the term "Section
162(m)" shall mean Section 162(m) of the Internal Revenue Code (which, as
amended by the Revenue
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Reconciliation Act of 1993, prescribes rules disallowing deductions for certain
"applicable employee remuneration" to any of five specified "covered employees"
of a publicly held corporation in excess of $1,000,000 per year), as from time
to time amended, and the corresponding provisions of any similar law
subsequently enacted, and to all regulations issued under that section and any
such provisions.
13.2 Deferral. Except as otherwise provided in either of Section 13.3
or Section 13.4, below, if Key determines that, after giving effect to all
applicable elective deferrals of compensation, any amount of compensation
(including any Base Salary and any incentive compensation payable under any
incentive compensation plan in which ▇▇▇▇▇ is a participant) otherwise payable
to ▇▇▇▇▇ under this Agreement at any particular time (the "Scheduled Time"),
(a) would not be deductible by Key if paid at the Scheduled Time by
reason of the disallowance rules of Section 162(m), and
(b) would be deductible by Key if deferred until and paid during a
later year,
that amount of compensation shall be deferred until, and paid during, the year
that is determined by Key to be the first year following the year of deferral
during which the compensation can be paid without disallowance of the deduction
for payment of the compensation by reason of Section 162(m). If Key determines
that in any year following the year of deferral a portion of, but not all of,
the amounts deferred (together with interest thereon as provided in Section
13.5, below) can be paid without disallowance of the deduction, that portion
that can be so paid shall be paid by Key during that year and the remainder,
except as otherwise provided in Section 13.3 or Section 13.4, below, shall
continue to be deferred until a later year.
13.3 Early Payout of Deferred Amount if Deferral is Determined to be
Ineffective. If any amount of compensation is deferred under Section 13.2 with
the expectation that it will be deductible by Key if paid in a later year and
Key later determines that the compensation will not be deductible by Key even if
payment thereof is deferred until a later year, then, within 30 days of the date
on which that determination is made, the deferral with respect to that
compensation shall terminate and Key shall pay that compensation to ▇▇▇▇▇.
13.4 Payout Following Termination of Employment in All Events. On April
15 of the year immediately following the year in which ▇▇▇▇▇ ceases to be
employed by Key, Key shall pay to ▇▇▇▇▇, in a single lump sum, all amounts of
compensation that have been deferred pursuant to this Section 13 and have not
previously been paid so that, as of the close of business on that date, no
amount of compensation will remain deferred under this Section 13 whether or not
Key is entitled to a deduction with respect to the payment of that compensation.
13.5 Interest on Deferred Amounts. Upon payment of any amounts of
compensation deferred for any period of time pursuant to this Section 13, Key
shall pay to ▇▇▇▇▇ an additional amount equivalent to the interest that would
have accrued on such deferred compensation if interest accrued thereon on a
daily basis from the date on which that compensation would have
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been paid but for this Section 13 through the date on which that compensation is
paid at a rate varying from month to month and equal to 50 basis points higher
than the effective annual yield of the average of the Moody's Average Corporate
Bond Yield Index for the previous month, as published by ▇▇▇▇▇'▇ Investor
Services, Inc. (or any successor published thereto), or, if such index is no
longer published, a substantially similar index selected by the Accounting Firm,
with interest compounded as of the end of each month.
13.6 Miscellaneous. ▇▇▇▇▇'▇ rights with respect to payment during his
lifetime of any compensation deferred under this Section 13 shall not be subject
to assignment. If ▇▇▇▇▇ dies before all compensation deferred under this Section
13 has been paid to him, any such unpaid compensation shall be paid, at the same
time it would have been paid if ▇▇▇▇▇ had not died but had merely ceased to be
an employee of Key on the date of his death (or, if earlier, on the last date he
actually was an employee of Key), to his estate or, if ▇▇▇▇▇ shall so direct to
Key in writing, to his wife or to a trust created by ▇▇▇▇▇. The obligation of
Key to make payments of compensation deferred pursuant to this Section 13
constitutes the unsecured promise of Key to make payments from its general
assets as and when due and neither ▇▇▇▇▇ nor any person claiming through him
shall have, as a result of this Section 13, any lien or claim on any assets of
Key that is superior to the claims of the general creditors of Key.
14. Savings Clause. If any payments otherwise payable to ▇▇▇▇▇ under
this Agreement are prohibited by any applicable statute or regulation in effect
at the time the payments would otherwise be payable, including, without
limitation, any regulation issued by the Federal Deposit Insurance Corporation
(the "FDIC") that limits so called "golden parachute payments" that can be made
by an FDIC insured institution or its holding company if the institution is
financially troubled and certain so-called "indemnification payments" (any such
statute or regulation being a "Limiting Rule"):
(a) Key will use its best efforts to obtain the consent of the
appropriate governmental agency (whether the FDIC or any other agency)
to the payment by Key to ▇▇▇▇▇ of the maximum amount that is permitted
(up to the amounts that would be due to ▇▇▇▇▇ under this Agreement or
otherwise absent the Limiting Rule); and
(b) ▇▇▇▇▇ will be entitled to elect to have apply, and therefore to
receive benefits directly under, either (i) this Agreement (as limited
by the Limiting Rule) or (ii) any generally applicable Key plan or
policy (including any severance, separation pay, and/or salary
continuation plan that may be in effect at the time of ▇▇▇▇▇'▇
termination), up to the amounts that would be due to ▇▇▇▇▇ under this
Agreement or otherwise absent the Limiting Rule.
15. Survival of Obligations. Except as is otherwise expressly provided
in this Agreement, the respective obligations of Key and ▇▇▇▇▇ hereunder shall
survive any termination of ▇▇▇▇▇'▇ employment under this Agreement.
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16. Merger or Transfer of Assets of Key. Key will not consolidate with
or merge into any other corporation, or transfer all or substantially all of its
assets to another corporation, unless such other corporation shall assume this
Agreement in a signed writing and deliver a copy thereof to ▇▇▇▇▇. Upon such
assumption the successor corporation shall become obligated to perform the
obligations of Key under this Agreement, and the term "Key" as used in this
Agreement shall be deemed to refer to such successor corporation.
17. Notices. 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 in person (to the Secretary of Key in the case of notices to Key and
to ▇▇▇▇▇ in the case of notices to ▇▇▇▇▇) or mailed by United States registered
mail, return receipt requested, postage prepaid, as follows:
If to Key:
KeyCorp
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Secretary
If to ▇▇▇▇▇:
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇ III
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
18. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement which shall remain in full force and effect.
19. Miscellaneous. No provision of this Agreement may be modified,
waived, or discharged unless such waiver, modification, or discharge is agreed
to in a writing signed by ▇▇▇▇▇ and Key. No waiver by either party hereto at any
time of any breach by the other party 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 time or
at any prior or subsequent time. No agreement or representation, oral or
otherwise, express or implied, with respect to the subject matter hereof has
been made by either party which is not set forth expressly in this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Ohio.
20. Prior Agreement. This Agreement supersedes the agreement entered
into between ▇▇▇▇▇ and Key as of October 15, 1996 that provided ▇▇▇▇▇ certain
protection in the event of a Change of Control of Key.
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21. Definitions.
21.1 Accounting Firm. The term "Accounting Firm" means the independent
auditors of Key for the fiscal year preceding the year in which the earlier of
(i) the Termination Date, or (ii) the year, if any, in which occurred the first
Change of Control occurring after the Effective Date, and such firm's successor
or successors; provided, however, if such firm is unable or unwilling to serve
and perform in the capacity contemplated by this Agreement, Key shall select
another national accounting firm of recognized standing to serve and perform in
that capacity under this Agreement, except that such other accounting firm shall
not be the then independent auditors for Key or any of its affiliates (as
defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as
amended (the "1934 Act")).
21.2 Average Annual Incentive Compensation. The term "Average Annual
Incentive Compensation" means the sum of Average Short Term Incentive
Compensation, as defined in clause (a) below, and Average Long Term Incentive
Compensation, as defined in clause (b) below.
(a) The term "Average Short Term Incentive Compensation" means the
higher of:
(i) the average of the short term incentive compensation
payable to ▇▇▇▇▇ for each of the last two years immediately
preceding the Relevant Year (as defined below in this clause
(a)) or, if for any reason short term incentive compensation
was payable to ▇▇▇▇▇ for only one of those two years, the
amount of short term incentive compensation payable to ▇▇▇▇▇
for that year, and
(ii) ▇▇▇▇▇'▇ targeted short term incentive compensation for
the year immediately preceding the Relevant Year.
For purposes of this Section 21.2, the term "Relevant Year" means the year in
which the Termination Date occurs unless, during the two year period ending on
the Termination Date, there has occurred one or more Changes of Control, in
which case the term "Relevant Year" means the year in which occurred the first
Change of Control that occurred during that two year period.
(b) The term "Average Long Term Incentive Compensation" means the
higher of:
(i) the average of the long term incentive compensation
payable to ▇▇▇▇▇ for each of the last two years immediately
preceding the Relevant Year or, if, for any reason, long term
incentive compensation was payable to ▇▇▇▇▇ for only one of
those two years, the amount of long term incentive
compensation payable to ▇▇▇▇▇ for that year, and
(ii) ▇▇▇▇▇'▇ targeted long term incentive compensation for
the multi-year cycle beginning with the year immediately
preceding the Relevant Year.
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For these purposes, an incentive compensation award payable to ▇▇▇▇▇
under any incentive compensation plan with respect to a period of more
than one year will be deemed to be "for" the last year of that
multi-year period.
As used in this Section 21.2, incentive compensation means any cash based
incentive compensation, including bonuses, and is calculated before any
reduction on account of deferrals; short term incentive compensation means
incentive compensation under all plans for periods of time of one year or less
and long term incentive compensation means incentive compensation under all
plans for periods of time of more than one year; targeted long term or short
term incentive compensation, as the case may be, means: (w) if the incentive
compensation plan, program, or arrangement in question designates a targeted
amount or a targeted level of achievement applicable to ▇▇▇▇▇, it means that
targeted amount or level, (x) if the incentive compensation plan, program, or
arrangement in question has only one level of payout applicable to ▇▇▇▇▇ (other
than zero), it means that level (i.e. the level other than zero), (y) if the
incentive compensation plan, program, or arrangement in question does not
designate a targeted amount or level of achievement applicable to ▇▇▇▇▇ but does
have multiple anticipated levels of possible payout or achievement applicable to
▇▇▇▇▇, it means (in each case excluding from consideration any level that
results in zero payout) the middle level of payout or achievement applicable to
▇▇▇▇▇ (or if there are an even number of levels, the average of the two levels
if there are only two levels or the average of the middle two levels if there
are four or more levels), and (z) in all other cases, the amount anticipated or
projected to be paid under the plan, program, or arrangement in question at the
time the performance period in question commenced.
21.3 Base Salary. The term "Base Salary" means the salary payable to
▇▇▇▇▇ from time to time before any reduction for voluntary contributions to the
KeyCorp 401(k) Plan or any other deferral under any other plan. Base Salary does
not include imputed income from payment by Key of country club membership fees
or other noncash benefits.
21.4 Board of Directors. The term "Board of Directors," when used other
than with specific reference to another entity, shall mean the Board of
Directors of Key.
21.5 Change of Control. A "Change of Control" shall be deemed to have
occurred if, at any time after the date of this Agreement and while ▇▇▇▇▇
remains in the employ of Key, there is a Change of Control under any of clauses
(a), (b), (c), or (d) below. For these purposes, Key will be deemed to have
become a subsidiary of another corporation if any other corporation (which term
shall, for all purposes of this Section 21.5, include, in addition to a
corporation, a limited liability company, partnership, trust, or other
organization) owns, directly or indirectly, 50 percent or more of the total
combined outstanding voting power of all classes of stock of Key or any
successor to Key.
(a) A Change of Control will have occurred under this clause (a) if Key
is a party to a transaction pursuant to which Key is merged with or
into, or is consolidated with, or becomes the subsidiary of another
corporation and either
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(i) immediately after giving effect to that transaction, less
than 65% of the then outstanding voting securities of the
surviving or resulting corporation or (if Key becomes a
subsidiary in the transaction) of the ultimate parent of Key
represent or were issued in exchange for voting securities of
Key outstanding immediately prior to the transaction, or
(ii) immediately after giving effect to that transaction,
individuals who were directors of Key on the day before the
first public announcement of (x) the pendency of the
transaction or (y) the intention of any person or entity to
cause the transaction to occur, cease for any reason to
constitute at least 51% of the directors of the surviving or
resulting corporation or (if Key becomes a subsidiary in the
transaction) of the ultimate parent of Key.
(b) A Change of Control will have occurred under this clause (b) if a
tender or exchange offer shall be made and consummated for 35% or more
of the outstanding voting stock of Key or any person (as the term
"person" is used in Section 13(d) and Section 14(d)(2) of the ▇▇▇▇ ▇▇▇)
is or becomes the beneficial owner of 35% or more of the outstanding
voting stock of Key or there is a report filed on Schedule 13D or
Schedule 14D-1 (or any successor schedule, form or report), each as
adopted under the 1934 Act, disclosing the acquisition of 35% or more
of the outstanding voting stock of Key in a transaction or series of
transactions by any person (as defined earlier in this clause (b));
(c) A Change of Control will have occurred under this clause (c) if
either
(i) without the prior approval, solicitation, invitation, or
recommendation of the Board of Directors any person or entity
makes a public announcement of a bona fide intention (A) to
engage in a transaction with Key that, if consummated, would
result in a Change Event (as defined below in this clause
(c)), or (B) to "solicit" (as defined in Rule 14a-1 under the
▇▇▇▇ ▇▇▇) proxies in connection with a proposal that is not
approved or recommended by the Board of Directors, or
(ii) any person or entity publicly announces a bona fide
intention to engage in an election contest relating to the
election of directors of Key (pursuant to Regulation 14A,
including Rule 14a-11, under the 1934 Act),
and, at any time within the 24 month period immediately following the
date of the announcement of that intention, individuals who, on the day
before that announcement, constituted the directors of Key (the
"Incumbent Directors") cease for any reason to constitute at least a
majority thereof unless both (A) the election, or the nomination for
election by Key's shareholders, of each new director was approved by a
vote of at least two-thirds of the Incumbent Directors in office at the
time of the election or nomination for election of such new director,
and (B) prior to the time that the Incumbent Directors no longer
constitute a majority of the Board of Directors, the Incumbent
Directors then in office, by a vote of at least 75% of their number,
reasonably determine in good faith that
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the change in Board membership that has occurred before the date of
that determination and that is anticipated to thereafter occur within
the balance of the 24 month period to cause the Incumbent Directors to
no longer be a majority of the Board of Directors was not caused by or
attributable to, in whole or in any significant part, directly or
indirectly, proximately or remotely, any event under subclause (i) or
(ii) of this clause (c).
For purposes of this clause (c), the term "Change Event" shall mean any
of the events described in the following subclauses (x), (y), or (z) of
this clause (c):
(x) A tender or exchange offer shall be made for 25% or more
of the outstanding voting stock of Key or any person (as the
term "person" is used in Section 13(d) and Section 14(d)(2)
of the ▇▇▇▇ ▇▇▇) is or becomes the beneficial owner of 25% or
more of the outstanding voting stock of Key or there is a
report filed on Schedule 13D or Schedule 14D-1 (or any
successor schedule, form, or report), each as adopted under
the 1934 Act, disclosing the acquisition of 25% or more of
the outstanding voting stock of Key in a transaction or
series of transactions by any person (as defined earlier in
this subclause (x)).
(y) Key is a party to a transaction pursuant to which Key is
merged with or into, or is consolidated with, or becomes the
subsidiary of another corporation and, after giving effect to
such transaction, less than 50% of the then outstanding
voting securities of the surviving or resulting corporation
or (if Key becomes a subsidiary in the transaction) of the
ultimate parent of Key represent or were issued in exchange
for voting securities of Key outstanding immediately prior to
such transaction or less than 51% of the directors of the
surviving or resulting corporation or (if Key becomes a
subsidiary in the transaction) of the ultimate parent of Key
were directors of Key immediately prior to such transaction.
(z) There is a sale, lease, exchange, or other transfer (in
one transaction or a series of related transactions) of all
or substantially all the assets of Key.
(d) A Change of Control will have occurred under this clause (d) if
there is a sale, lease, exchange, or other transfer (in one transaction
or a series of related transactions) of all or substantially all of the
assets of Key.
21.6 Competitive Activity in a Restricted State (After Termination
Date). ▇▇▇▇▇ shall be deemed to have engaged in "Competitive Activity in a
Restricted State" (or, where Ohio is the Restricted State at issue, to have
engaged in "Competitive Activity in Ohio") after the Termination Date if, after
the Termination Date and without the consent of Key, ▇▇▇▇▇ serves as a director,
officer, agent, or employee of, or in any other capacity with, any Financial
Services Company or renders services of a consultative, advisory, or other
nature to any Financial Services Company, and, any one or more of the following
are true: (a) such Financial Services Company or its ultimate parent corporation
is headquartered in a Restricted State and the consolidated assets of such
Financial Services Company and all its affiliated companies on a
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combined basis exceeds $25 billion, (b) ▇▇▇▇▇ has his office, business location,
or base of business operations for such Financial Services Company in a
Restricted State, or (c) ▇▇▇▇▇, other than on an isolated basis, makes calls on
behalf of, or conducts business for, such Financial Services Company with (i)
individuals who have a residence in a Restricted State, (ii) businesses,
charitable organizations, or other entities that are headquartered in a
Restricted State, or (iii) offices or locations in a Restricted State of
businesses, charitable organizations, or other entities, whether or not such
businesses, charitable organizations, or other entities are headquartered within
that Restricted State.
21.7 Competitive Activity (Before Termination Date). ▇▇▇▇▇ shall be
deemed to have engaged in "Competitive Activity" before the Termination Date if,
before the Termination Date, he engages, without the consent of Key, in any
business or business activity in which Key or any of its Subsidiaries engages,
including, without limitation, engaging in any business activity in the banking
or financial services industry (other than as a director, officer, or employee
of Key or any of its Subsidiaries).
21.8 Day. A "day" as used in this Agreement means a calendar day unless
business day is specifically referred to.
21.9 Demotion or Removal. ▇▇▇▇▇ shall be deemed to have been subjected
to "Demotion or Removal" if Key removes ▇▇▇▇▇ from the office of President of
Key other than in connection with a promotion of ▇▇▇▇▇, with his agreement, to a
higher executive position or ▇▇▇▇▇ fails to be at any time after a Change of
Control the President of the Surviving Entity other than in connection with a
promotion of ▇▇▇▇▇, with his agreement, to a higher executive position.
21.10 Financial Services Company. The term "Financial Services Company"
means a bank, bank holding company, savings and loan association, building and
loan association, savings and loan holding company, insurance company,
investment banking, or securities company, or other financial services company,
other than Key or any of its Subsidiaries.
21.11 Impermissible. The term "Impermissible," when used in the context
of ▇▇▇▇▇'▇ continued coverage by and participation in any of the Retirement
Plans or Savings Plans shall mean that such a continuation would violate the
provisions of any such plan, would cause any such plan that is or is intended to
be qualified under Section 401(a) of the Internal Revenue Code to fail to be so
qualified, would require shareholder approval, or would be unlawful.
21.12 Long Term Disability Plan. The term "Long Term Disability Plan"
means and includes the KeyCorp Long Term Disability Plan and the KeyCorp
Supplemental Long Term Disability Program, in both cases as from time to time
amended, restated, or otherwise modified, including any long term disability
plan or program that, after the Effective Date, succeeds, replaces, or is
substituted for either such plan or program and includes long term disability
benefits or rights provided pursuant to or under insurance contracts maintained
by Key applicable to senior executives of Key.
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21.13 Restricted State. The term "Restricted State" means any of (i)
Ohio, (ii) New York, (iii) Washington, and (iv) any other state (including the
District of Columbia) in which Key and its Subsidiaries (taken as a whole) have
at the time business operations or activities that account for or constitute
more than 5% of the total assets or total deposits of Key and its Subsidiaries
on a consolidated basis or more than 5% of the total income of Key and its
Subsidiaries on a consolidated basis for the then preceding three months
provided, however, during any period that the prohibition on competitive
activity is limited to "Competitive Activity in Ohio," the term "Restricted
State" means only Ohio.
21.14 Retirement Plans. The term "Retirement Plans" means and includes
the KeyCorp Cash Balance Pension Plan, which succeeded by merger the Retirement
Plan for Employees of Society Corporation and Subsidiaries, and the Supplemental
Retirement Plan, in all cases, as from time to time amended, restated, or
otherwise modified, including any plan that, after the Effective Date, succeeds,
replaces, or is substituted for any such plan, and all retirement plans of any
nature maintained by Key or any of its Subsidiaries in which ▇▇▇▇▇ was
participating prior to the Termination Date. Reference to a "Retirement Plan,"
in the singular, means any of the Retirement Plans.
21.15 Savings Plan. The term "Savings Plans" means and includes the
KeyCorp 401(k) Savings Plan and the KeyCorp Excess 401(k) Savings Plan, in both
cases, as from time to time amended, restated, or otherwise modified, including
any plan that, after the Effective Date, succeeds, replaces, or is substituted
for either such plan, and all salary reduction, savings, profit-sharing, or
stock bonus plans (including, without limitation, all plans involving employer
matching contributions, whether or not constituting a qualified cash or deferred
arrangement under Section 401(k) of the Internal Revenue Code), maintained by
Key or any of its Subsidiaries in which ▇▇▇▇▇ was participating prior to the
Termination Date. Reference to a "Savings Plan," in the singular, shall mean any
of the Savings Plans.
21.16 Subsidiary. The term "Subsidiary," as of any time, means any
corporation, bank, partnership, or other entity a majority of the voting control
of which is directly or indirectly owned or controlled at that time by Key.
21.17 Surviving Entity. The term "Surviving Entity" means the entity
surviving or resulting from any Change of Control involving Key or (if Key
becomes a subsidiary in the transaction) the ultimate parent of Key.
21.18 Supplemental Retirement Plan. The term "Supplemental Retirement
Plan" means the KeyCorp Supplemental Retirement Plan, which succeeded by merger
the Amended and Restated Society Corporation Supplemental Retirement Plan, in
all cases, as from time to time amended, restated, or otherwise modified,
including any plan that, after the Effective Date, succeeds, replaces, or is
substituted for the KeyCorp Supplemental Retirement Plan.
21.19 Termination Date. The term "Termination Date" means the date on
which ▇▇▇▇▇'▇ employment with Key and its Subsidiaries terminates.
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21.20 Window Period. The term "Window Period," with respect to any
particular Change of Control, means the six-month period beginning on the first
anniversary of the Change of Control. If at any time there has been more than
one Change of Control, there shall be a separate Window Period with respect to
each such Change of Control.
IN WITNESS WHEREOF, Key and ▇▇▇▇▇ have executed this Agreement, Key by
its duly authorized Chairman of the Board and Chief Executive Officer, as of the
date first written above.
KEYCORP
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chairman of the Board
and Chief Executive Officer
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ III
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▇▇▇▇▇ ▇. ▇▇▇▇▇ III
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