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Exhibit 10.5
EXECUTIVES WITH CHANGE OF CONTROL AGREEMENTS
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AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the 20th day of November,
1997, between KEYCORP, an Ohio corporation ("Key"), and ___________________ (the
"Executive").
Key is entering into this Agreement in recognition of the importance of
the Executive's 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 the Executive's continued attention and dedication to
the Executive's duties in the potentially disruptive circumstances of a possible
Change of Control of Key. (As used in this Agreement, the terms "Subsidiaries"
and "Change of Control" and certain other capitalized terms have the meanings
ascribed to them in Section 7, at the end of this Agreement.)
Key and the Executive agree, effective as of the date first set forth
above, as follows:
1. BASIC SEVERANCE BENEFITS. The benefits described in Sections 1.1,
1.2, and 1.3 below are subject to the limitations set forth in Sections 4.1
(which requires an election among applicable agreements providing severance
benefits if more than one such agreement would apply in the particular
circumstances of the termination of the Executive's employment and stipulates
that any payments received under this Agreement are in lieu of other claims or
rights), 4.2 (regarding withholding), and 4.3 (requiring the execution of a
waiver and release by the Executive).
1.1 IF EMPLOYMENT IS TERMINATED WITHOUT CAUSE, ETC., WITHIN TWO YEARS
OF A CHANGE OF CONTROL. If, within two years following the occurrence of a
Change of Control, the Executive's employment with Key and its Subsidiaries is
terminated by Key or its Subsidiary for any reason other than Cause, Disability,
or death or by the Executive after a Reduction of Base Salary or a Mandatory
Relocation has occurred:
(a) LUMP SUM PAYMENT. Key shall pay to the Executive, within 30
business days after the Termination Date, a lump sum severance
benefit equal to 2 1/2 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) Average Annual Incentive Compensation; and
(b) RETIREMENT AND SAVINGS PLANS. Effective as of the
Termination Date, the Executive's interest in all Relevant
Plans shall become fully vested and nonforfeitable and the
Executive's right to and interest in all subsequent accruals
provided for in the remainder of this Section 1.1(b) under any
of the Relevant Plans shall also be fully vested and
nonforfeitable. For the period beginning on the day after the
Termination Date and ending thirty months, to the day, after
the Termination Date (the "Section 1.1 Benefit Period"), Key
shall cause the Executive to continue to be covered by and to
participate in all of the Relevant Plans in the same manner and
to the same extent as if the Executive continued in the
full-time
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employ of Key throughout the Section 1.1 Benefit Period, except
that, if Key determines that such coverage or participation in
any one or more of the Relevant Plans is Impermissible, the
Executive shall continue to be covered by and participate as
aforesaid in all of the Relevant Plans as to which such
coverage or participation is not Impermissible and, with
respect to each Relevant Plan as to which such continued
coverage or participation is Impermissible, Section 1.4(b)
shall apply. With respect to each Discontinued Plan, Section
1.4(c) shall apply.
1.2 IF EMPLOYMENT IS TERMINATED BY EXECUTIVE FOR GOOD REASON DURING A
WINDOW PERIOD. Except as provided in the last sentence of this Section 1.2, if
the Executive's employment with Key and its Subsidiaries is terminated by the
Executive for Good Reason during a Window Period:
(a) LUMP SUM PAYMENT. Key shall pay to the Executive, within 30
business days after the Termination Date, a lump sum severance
benefit equal to one and one half 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) Average Annual Incentive Compensation, and
(b) RETIREMENT AND SAVINGS PLANS. Effective as of the
Termination Date, the Executive's interest in all Relevant
Plans shall become fully vested and nonforfeitable and the
Executive's right to and interest in all subsequent accruals
provided for in the remainder of this Section 1.2(b) under any
of the Relevant Plans shall also be fully vested and
nonforfeitable. For the period beginning on the day after the
Termination Date and ending eighteen months, to the day, after
the Termination Date (the "Section 1.2 Benefit Period"), Key
shall cause the Executive to continue to be covered by and to
participate in all of the Relevant Plans in the same manner and
to the same extent as if the Executive continued in the
full-time employ of Key throughout the Section 1.2 Benefit
Period, except that, if Key determines that such coverage or
participation in any one or more of the Relevant Plans is
Impermissible, the Executive shall continue to be covered by
and participate as aforesaid in all of the Relevant Plans as to
which such coverage or participation is not Impermissible and,
with respect to each Relevant Plan as to which such continued
coverage or participation is Impermissible, Section 1.4(b)
shall apply. With respect to each Discontinued Plan, Section
1.4(c) shall apply.
This Section 1.2 shall not apply if, at the Termination Date, (x) there has been
either any Reduction of Base Salary or any Mandatory Relocation (in which event
Section 1.1 would apply to the termination) or (y) Key or any Subsidiary has
Cause to terminate the Executive's employment (in which case no lump sum
severance benefit would be payable under either of Sections 1.1 or 1.2).
1.3 PAYMENT OF COST OF COBRA HEALTH BENEFITS. If the Executive becomes
entitled to payment of a lump sum severance benefit under either of Sections 1.1
or 1.2 of this Agreement and the Executive elects to continue to receive health
benefits pursuant to an election that Key or any Subsidiary is required to
provide to the Executive in order to comply with Section 4980B(f)
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of the Internal Revenue Code (commonly referred to as "COBRA continuation
coverage") during the period specified in Section 4980B(f) (the "COBRA
continuation period"), Key will pay the cost of continuing those benefits from
the Termination Date through the first to occur of (a) the end of the COBRA
continuation period or (b) the date on which the Executive becomes employed
(other than on a part-time or temporary basis) by any other person or entity.
1.4 PROVISIONS APPLICABLE TO CONTINUED RETIREMENT AND SAVINGS PLAN
PARTICIPATION.
(a) If the Executive becomes entitled to payment of a lump sum
severance benefit under either of Section 1.1 or Section 1.2,
the rules set forth in the remainder of this Section 1.4(a)
shall be applicable for purposes of all Relevant Plans:
(i) the entire Section 1.1 Benefit Period or Section 1.2
Benefit Period (each, a "Benefit Period"), as the
case may be, shall be included in determining the
Executive's years of service,
(ii) amounts received by the Executive under clause (a)(i)
of either of Section 1.1 or Section 1.2, as the case
may be, shall be deemed to be base salary received by
the Executive ratably during the applicable Benefit
Period, and
(iii) amounts received by the Executive under clause
(a)(ii) of either of Section 1.1 or Section 1.2, as
the case may be, shall be deemed to be incentive
compensation received by the Executive ratably during
the applicable 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.
(b) If either Section 1.1(b) or Section 1.2(b) becomes
applicable and at any time during the applicable Benefit
Period, Key determines in good faith that continuing the
Executive's coverage by and participation in any of the
Relevant Plans during the applicable Benefit Period is
Impermissible, the Executive shall not be covered by and
participate in such affected plan or plans during the
applicable Benefit Period, but Key shall provide to the
Executive under this Agreement, as a supplemental retirement
benefit, payments and benefits that put the Executive in the
same position that the Executive would have been in had the
Executive continued to be covered by and to participate in all
such affected plans throughout the applicable Benefit Period
(taking into account the rules set forth in Section 1.4(a)
above) to the same extent as the Executive was a participant
immediately before the Termination Date, with the supplemental
payments and benefits under this sentence being payable to the
Executive (or, if applicable, to the Executive's spouse,
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.
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(c) If either Section 1.1(b) or Section 1.2(b) becomes
applicable and any of the Relevant Plans are Discontinued
Plans, as to each such Discontinued Plan, Key shall provide to
the Executive under this Agreement, as a supplemental
retirement benefit, payments and benefits that put the
Executive in the same position that the Executive would have
been in had the Discontinued Plan continued through the end of
the applicable Benefit Period without having become a
Discontinued Plan and had the Executive continued to be
covered by and to participate in that Discontinued Plan
throughout the applicable Benefit Period (taking into account
the rules set forth in Section 1.4(a) above) to the same
extent as the Executive was a participant immediately before
the date of the Change of Control, with the supplemental
payments and benefits under this sentence being payable to the
Executive (or, if applicable, to the Executive's spouse,
estate, or designated beneficiary) at the same time and with
the same payment options as would be applicable under the
Discontinued Plan, provided however, that to the extent the
Discontinued Plan has been substituted for by another Relevant
Plan, the amount payable by Key under this Section 1.4(c)
shall be offset by the amounts actually paid under that
substitute plan.
2. OTHER BENEFITS.
2.1 REIMBURSEMENT OF CERTAIN EXPENSES AFTER A CHANGE OF CONTROL.
(a) From and after a Change of Control, Key shall pay, as
incurred, all expenses of the Executive, including the
reasonable fees of counsel engaged by the Executive, of
defending any action brought to have this Agreement declared
invalid or unenforceable.
(b) From and after a Change of Control, Key shall pay, as
incurred, all expenses of the Executive, including the
reasonable fees of counsel engaged by the Executive, of
prosecuting any action to compel Key to comply with the terms
of this Agreement upon receipt from Executive of an
undertaking to repay Key for such expenses if, and only if, it
is ultimately determined by a court of competent jurisdiction
that the Executive had no reasonable grounds for bringing that
action (which determination need not be made simply because
the Executive fails to succeed in the action).
(c) From and after a Change of Control, expenses (including
attorney's fees) incurred by the Executive in defending any
action, suit, or proceeding commenced or threatened (whether
before or after the Change of Control) against the Executive
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 the Executive in which the Executive agrees to
reasonably cooperate with Key or the Subsidiary, as the case
may be, concerning the action, suit, or proceeding, and (i) if
the action, suit, or proceeding is commenced or threatened
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against the Executive 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
the Executive's action or failure to act involved an act or
omission undertaken with deliberate intent to cause injury to
Key or a Subsidiary or undertaken with reckless disregard for
the best interests of Key or a Subsidiary, or (ii) if the
action, suit, or proceeding is commenced or threatened against
the Executive for any action or failure to act as an officer or
employee, to repay the amount if it is ultimately determined
that the Executive is not entitled to be indemnified. The
obligation of Key to advance expenses provided for in this
Section 2.1(c) shall not be deemed exclusive of any other
rights to which the Executive may be entitled under the
articles of incorporation or regulations of Key or of any
Subsidiary, any agreement, vote of shareholders or
disinterested directors, or otherwise.
2.2 INDEMNIFICATION. From and after a Change of Control, Key shall
indemnify the Executive, to the full extent permitted or authorized by the Ohio
General Corporation Law as it may from time to time be amended, if the Executive
is (whether before or after the Change of Control) 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 the Executive 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 2.2 shall not be deemed exclusive of any other rights to which the
Executive 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 the Executive's
official capacity and as to action in another capacity while holding such
office, and shall continue as to the Executive after the Executive has ceased to
be a director, trustee, officer, or employee and shall inure to the benefit of
the heirs, executors, and administrators of the Executive.
2.3 DISABILITY. If, after a Change of Control and prior to the
Termination Date, the Executive is unable to perform services for Key or any
Subsidiary for any period by reason of disability of the Executive, Key will pay
and provide to the Executive all compensation and benefits to which the
Executive would have been entitled had the Executive continued to be actively
employed by Key or any Subsidiary through the earliest of the following dates:
(a) the first date on which the Executive is no longer so disabled to such an
extent that the Executive is unable to perform services for Key or any
Subsidiary (whereupon the Executive shall be restored to his duties and this
Agreement shall apply in accordance with its terms), (b) the date on which the
Executive becomes eligible for payment of long term disability benefits under a
long term disability plan generally applicable to executives of Key or a
Subsidiary, (c) the date on which Key has paid and provided 24 months of
compensation and benefits to the Executive during the Executive's disability, or
(d) the date of the Executive's death.
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2.4 GROSS-UP OF PAYMENTS DEEMED TO BE EXCESS PARACHUTE PAYMENTS.
(a) Key and the Executive acknowledge that, following a
Change of Control, one or more payments or distributions to be
made by Key to or for the benefit of the Executive (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 the
Executive 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 the Executive's 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 2.4, 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 the Executive within 30
days after the Termination Date or such earlier time as is
requested by Key. Key and the Executive 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 2.4.
(b) If the Accounting Firm determines that any Payment gives
rise, directly or indirectly, to liability on the part of the
Executive 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 the Executive, from
time to time and at the same time as any Payment constituting
an excess parachute payment is paid or provided to the
Executive, in such amounts as are necessary to put the
Executive 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 the Executive 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.
(c) If the Internal Revenue Service determines that any
Payment gives rise, directly or indirectly, to liability on the
part of the Executive 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 the Executive 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 the
Executive 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 the Executive would
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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.
(d) If Key desires to contest any determination by the Internal
Revenue Service with respect to the amount of excise tax under
Section 4999, the Executive shall, upon receipt from Key of an
unconditional written undertaking to indemnify and hold the
Executive 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 Paragraph (d) shall require the
Executive to incur any expense other than expenses with respect
to which Key has paid to the Executive sufficient sums so that
after the payment of the expense by the Executive and taking
into account the payment by Key with respect to that expense
and any and all taxes that may be imposed upon the Executive as
a result of the Executive's receipt of that payment, the net
effect is no cost to the Executive. Nothing in this Paragraph
(d) shall require the Executive to extend the statute of
limitations with respect to any item or issue in the
Executive's 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, the Executive receives a refund
of a Section 4999 excise tax previously paid and/or any
interest with respect thereto, the Executive shall promptly pay
to Key such amount as will leave the Executive, net of the
repayment and all tax effects, in the same position, after all
taxes and interest, that the Executive would have been in if
the refunded excise tax had never been paid.
3. 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 setoff, counterclaim, recoupment,
defense, or other claim whatsoever that Key or any of its Subsidiaries may have
against the Executive. The Executive 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 the
Executive as the result of employment by another employer or otherwise after the
termination of the Executive's employment. Neither the provisions of this
Agreement, nor the execution of the waiver and release referred to in Section
4.3 below, nor the making of any payment provided for hereunder shall reduce any
amounts otherwise payable, or in any way diminish the Executive's rights, under
any incentive compensation plan, stock option or stock appreciation rights plan,
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.
4. CERTAIN LIMITATIONS ON BENEFITS.
4.1 ELECTION OF BENEFITS REQUIRED; PAYMENTS IN LIEU OF OTHER CLAIMS OR
RIGHTS. If (a) the Executive is a party to either or both of an employment
agreement (which includes any
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letter agreement regarding Executive's employment with Key) or severance
agreement with Key (singularly or collectively, the "Prior Agreement"), and (b)
the Executive's employment with Key is terminated under circumstances giving
rise to a right on the part of the Executive to receive continuing compensation,
separation pay, or other severance benefits under the Prior Agreement and under
this Agreement, the Executive shall have the right to elect to have either the
Prior Agreement (if and only to the extent the Prior Agreement is applicable) or
this Agreement (if and only to the extent this Agreement is applicable) , but
not both, apply to the termination. If this Section 4.1 applies: (x) Key shall
not make any payments arising out of the termination of the Executive's
employment, either under the Prior Agreement or under this Agreement, until
after the Executive has delivered to Key a signed notice of election to receive
payments under the Prior Agreement or under this Agreement, and (y) if the
Executive elects to receive payments under the Prior Agreement, the provisions
of Sections 2.1, 2.2, and 2.4 of this Agreement shall nevertheless continue to
be applicable, but without duplication of payments. If the Executive receives
any payments under this Agreement as a result of the termination of the
Executive's employment following a Change of Control, those payments shall be in
lieu of any and all other claims or rights that the Executive may have for
severance, separation, and/or salary continuation pay upon that termination of
the Executive's employment.
4.2 TAXES; WITHHOLDING OF TAXES. Without limiting either the right of
Key or its Subsidiary to withhold taxes pursuant to this Section 4.2 or the
obligation of Key to make gross-up payments pursuant to Section 2.4, the
Executive shall be responsible for all income, excise, and other taxes (federal,
state, city, or other) imposed on or incurred by the Executive as a result of
receiving the payments provided in this Agreement, including, without
limitation, the payments provided under Section 1 of this Agreement. Key or its
Subsidiary may withhold from any amounts payable under this Agreement all
federal, state, city, or other taxes as Key shall determine to be required
pursuant to any law or government regulation or ruling. Without limiting the
generality of the foregoing, Key or its Subsidiary may withhold from any amount
payable under either of Sections 1.1 or 1.2 of this Agreement amounts sufficient
to satisfy any withholding requirements that may arise out of any payment made
to the Executive by Key or any Subsidiary under Section 1.3 of this Agreement.
4.3 WAIVER AND RELEASE. Key may condition the payment of any amounts
otherwise due under Section 1 of this Agreement upon (a) the execution by the
Executive of a waiver and release in the form attached to this Agreement as
Exhibit A, with blanks appropriately filled and, in the case of clause (e)
contained therein, completed with the number of days that Key determines is
required under applicable law, but in no event more than 45 days, and (b) the
observation of such waiting periods, if any, before and after execution of the
waiver and release by the Executive as are required by law, such as, for
example, the waiting periods required for a waiver and release to be effective
with respect to claims under the Age Discrimination in Employment Act, provided
that Key delivers to the Executive such a waiver and release, appropriately
completed, within seven days of the date on which the Executive's employment is
terminated.
5. TERM OF THIS AGREEMENT. This Agreement shall be effective upon the
date first above written and shall thereafter apply to any Change of Control
occurring on or before December 31, 1998. Unless this Agreement is terminated
earlier pursuant to Section 5.1, on
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December 31, 1998 and on December 31 of each succeeding year thereafter (a
"Renewal Date"), the term of this Agreement shall be automatically extended for
an additional year unless either party has given notice to the other, at least
one year in advance of that Renewal Date, that the Agreement shall not apply to
any Change of Control occurring after that Renewal Date.
5.1 TERMINATION OF AGREEMENT UPON TERMINATION OF EMPLOYMENT BEFORE A
CHANGE OF CONTROL. This Agreement shall automatically terminate and cease to be
of any further effect on the first date occurring before a Change of Control on
which the Executive is no longer employed by Key or any Subsidiary, except that,
for purposes of this Agreement, any termination of employment of the Executive
that is effected before and in contemplation of a Change of Control that occurs
after the date of the termination shall be deemed to be a termination of the
Executive's employment as of immediately after that Change of Control and this
Agreement shall be deemed to be in effect immediately after that Change of
Control.
5.2 NO TERMINATION OF AGREEMENT DURING TWO YEAR PERIOD BEGINNING ON
DATE OF A CHANGE OF CONTROL. After a Change of Control, this Agreement may not
be terminated. However, if the Executive's employment with Key and its
Subsidiaries continues for more than two years following the occurrence of a
Change of Control, then, for all purposes of this Agreement other than Sections
2.1 and 2.2, that particular Change of Control shall thereafter be treated as if
it never occurred.
6. MISCELLANEOUS.
6.1 SUCCESSOR TO KEY. Key shall not consolidate with or merge into any
other corporation, or transfer all or substantially all of its assets to another
corporation or bank, unless such other corporation or bank shall assume this
Agreement in a signed writing and deliver a copy thereof to the Executive. Upon
such assumption the successor corporation or bank 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 or
bank.
6.2 NOTICES. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, and addressed, in
the case of notices to Key or a Subsidiary, as follows:
KeyCorp
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Secretary
and, in the case of notices to the Executive, properly addressed to the
Executive at the Executive's most recent home address as shown on the records of
Key or its Subsidiary, 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.
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6.3 EMPLOYMENT RIGHTS. Nothing expressed or implied in this Agreement
shall create any right or duty on the part of Key or the Executive to have the
Executive continue as an officer of Key or a Subsidiary or to remain in the
employment of Key or a Subsidiary.
6.4 ADMINISTRATION. Key shall be responsible for the general
administration of this Agreement and for making payments under this Agreement.
All fees and expenses billed by the Accounting Firm for services contemplated
under this Agreement shall be the responsibility of Key.
6.5 SOURCE OF PAYMENTS. Any payment specified in this Agreement to be
made by Key may be made, at the election of Key, directly by Key or through any
Subsidiary of Key. All payments under this Agreement shall be made solely from
the general assets of Key or one of its Subsidiaries (or from a grantor trust,
if any, established by Key for purposes of making payments under this Agreement
and other similar agreements), and the Executive shall have the rights of an
unsecured general creditor of Key with respect thereto.
6.6 CLAIMS REVIEW PROCEDURE. Whenever Key decides for whatever reason
to deny, whether in whole or in part, a claim for benefits under this Agreement
by the Executive, Key shall transmit a written notice of its decision to the
Executive, which notice shall be written in a manner calculated to be understood
by the Executive and shall contain a statement of the specific reasons for the
denial of the claim and a statement advising the Executive that, within 60 days
of the date on which the Executive receives such notice, the Executive may
obtain review of the decision of Key in accordance with the procedures
hereinafter set forth. Within such 60-day period, the Executive or the
Executive's authorized representative may request that the claim denial be
reviewed by filing with Key a written request therefor, which request shall
contain the following information:
(a) the date on which the request was filed with Key,
(b) the specific portions of the denial of the Executive's claim
that the Executive requests Key to review, and
(c) any written material that the Executive desires Key to
examine.
Within 30 days of the date specified in clause (a) of this Section 6.6, Key
shall conduct a full and fair review of its decision to deny the Executive's
claim for benefits and deliver to the Executive its written decision on review,
written in a manner calculated to be understood by the Executive, specifying the
reasons and the Agreement provisions upon which its decision is based. Nothing
in this Section 6.6 shall be construed as limiting or restricting the
Executive's right to institute legal proceedings in a court of competent
jurisdiction to enforce this Agreement after complying with the procedures set
forth in this Section 6.6 or as limiting or restricting the scope of the court's
review (which review shall be de novo); provided, further, that the failure of
the Executive to comply with the procedures set forth in this Section 6.6 shall
not bar or prohibit the subsequent compliance by the Executive with those
procedures and thereafter the Executive shall have the right to institute legal
proceedings to enforce this Agreement.
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6.7 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.
6.8 MODIFICATION, WAIVER, ETC. 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 the Executive 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 that is not set forth
expressly in this Agreement. This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal representatives, executors,
administrators, successors, heirs, and designees. This Agreement shall be
governed by and construed in accordance with the laws of the State of Ohio.
6.9 SAVINGS CLAUSE. If any payments otherwise payable to the Executive
under this Agreement are prohibited or limited by any 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 executive change of control payments that can be made
by an FDIC insured institution or its holding company if the institution is
financially troubled (any such limiting statute or regulation 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 the Executive of the maximum
amount that is permitted (up to the amounts that would be due
to the Executive absent the Limiting Rule); and
(b) the Executive 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 severance, separation pay, and/or
salary continuation plan that may be in effect at the time of
the Executive's termination.
Following any such election, the Executive will be entitled to receive benefits
under the agreement or plan elected only if and to the extent the agreement or
plan is applicable and subject to its specific terms.
6.10 AGREEMENT SUPERSEDES SIMILAR AGREEMENT PREVIOUSLY ENTERED INTO.
This Agreement supersedes a similar agreement originally entered into between
Key and the Executive as of October 15, 1996, and that agreement (as amended, if
it has been heretofore amended) is no longer of any force or effect.
7. DEFINITIONS.
7.1 ACCOUNTING FIRM. The term "Accounting Firm" means the independent
auditors of Key for the fiscal year preceding the year in which the Change of
Control occurred and such
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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")).
7.2 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 the Executive for each of the last two
years immediately preceding the year in which the
Change of Control occurred (the "Change Year") or,
if, for any reason, short term incentive compensation
was payable to the Executive for only one of those
two years, the amount of short term incentive
compensation payable to the Executive for that year,
and
(ii) the Executive's targeted short term incentive
compensation for the Change Year or for the year
immediately preceding the Change Year, whichever is
higher,
except that if the Executive first became a participant in
Key's short term incentive compensation program during the
Change Year, Average Short Term Incentive Compensation means
the Executive's targeted short term incentive compensation for
the Change Year.
(b) The term "Average Long Term Incentive Compensation" means the
higher of:
(i) the average of the "Applicable Amounts" (as defined
in clauses (x) and (y) below) of the long term
incentive compensation awards payable to the
Executive for each of the last two multi-year cycles
that ended before the Change Year or, if, for any
reason, long term incentive compensation was payable
to the Executive for only one of those two multi-year
cycles, the Applicable Amount of the long term
incentive compensation award payable to the Executive
for that multi-year cycle, and
(ii) the Applicable Amount of the Executive's targeted
long term incentive compensation award for the
multi-year cycle that began with the Change Year or,
if higher or if no multi-year cycle began with the
Change Year, the Applicable Amount of the Executive's
targeted long term incentive compensation award for
the most recently commenced multi-year cycle that
began before the Change Year,
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except that if the Executive first became a participant in
Key's long term incentive compensation program during the
Change Year, Average Long Term Incentive Compensation means
the Applicable Amount of the Executive's targeted long term
incentive compensation award for the most recently commenced
multi-year cycle. For these purposes:
(x) if the plan in question provides for a series of
successive multi-year periods, the last year of each
of which follows the last year of the immediately
preceding multi-year period under the plan by a
single year (i.e., a plan that provides for possible
payment of long term incentive compensation each and
every year for as long as the plan continues), the
Applicable Amount of the award for each multi-year
cycle under that plan shall be the full amount (i.e.:
100%) of the award for that multi-year period; and
(y) if the plan in question provides for a series of
successive multi-year periods, the last year of each
of which follows the last year of the immediately
preceding period under the plan by two years (i.e., a
plan that provides for possible payment of long term
incentive compensation every other year for as long
as the plan continues), the Applicable Amount of the
award for each multi-year cycle under that plan shall
be one half of the full amount (i.e.: 50%) of the
award for that multi-year period.
The effect of clauses (x) and (y) is shown in the following
table which assumes that the multi-year long term incentive
compensation plan in question was one described in clause (x)
(contemplating payments every year for successive three-year
cycles) through the three-year cycle ending with the year 1999
and one described in clause (y) (contemplating payments every
other year for successive four-year cycles) starting with a
four-year cycle ending with the year 2001:
------------------ ------------------------------------------------
"Applicable Amount" of Full Award
Multi-Year Cycle Last Year for the Multi-Year Cycle
------------------ ------------------------------------------------
1995-1997 1997 100%
------------------ ------------------------------------------------
1996-1998 1998 100%
------------------ ------------------------------------------------
1997-1999 1999 100%
------------------ ------------------------------------------------
1998-2001 2001 50%
------------------ ------------------------------------------------
2000-2003 2003 50%
------------------ ------------------------------------------------
2002-2005 2005 50%
------------------ ------------------------------------------------
As used in this Section 7.2, incentive compensation means any cash based
incentive compensation, including bonuses (but excluding signing bonuses paid to
a newly hired executive) and is calculated before any reduction on account of
deferrals; short term incentive compensation means incentive compensation for
periods of time of one year or less and long term incentive compensation means
incentive compensation for periods of time of more than one year; targeted long
term or short term incentive compensation, as the case may be, means: (i) if
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the incentive compensation plan, program, or arrangement in question designates
a targeted amount or a targeted level of achievement for the Executive, it means
that targeted amount or level, (ii) if the incentive compensation plan, program,
or arrangement in question has only one level of payout for the Executive (other
than zero), it means that level (i.e. the level other than zero), (iii) if the
incentive compensation plan, program, or arrangement in question does not
designate a targeted amount or level of achievement for the Executive but does
have multiple anticipated levels of possible payout or achievement for the
Executive, it means (in each case excluding from consideration any level that
results in zero payout) the middle level of payout or achievement for the
Executive (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 (iv) 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. For purposes
of calculating Average Annual Incentive Compensation under this Section 7.2, in
determining the amount of incentive compensation (short or long term) payable to
or targeted for the Executive for any past or current incentive compensation
period or cycle, if the incentive compensation was for a partial period or cycle
(such as where an executive becomes a participant in an incentive plan after the
incentive compensation period or cycle has commenced so that the award payable
to or targeted for the executive is prorated), such incentive compensation
payable to or targeted for the Executive shall be determined as if the Executive
had participated throughout the complete incentive compensation period or cycle
in question. For example, if, with respect to a 12-month plan that would have
paid the Executive incentive compensation of $12X if the Executive had been a
participant for the full plan year, the Executive became a participant when only
seven months were left in the plan year and the Executive was therefore paid
incentive compensation of only $7X, the Executive would be treated for purposes
of this Section 7.2 as if the Executive had been a participant for the full plan
year and had been paid incentive compensation of $12X under the plan.
7.3 BASE SALARY. The term "Base Salary" means the salary payable to the
Executive from time to time before any reduction for voluntary contributions to
the KeyCorp 401(k) Plan or any other deferral. Base Salary does not include
imputed income from payment by Key of country club membership fees or other
noncash benefits.
7.4 CAUSE. The employment of the Executive by Key or any of its
Subsidiaries shall have been terminated for "Cause" if, after a Change of
Control and prior to the termination of employment, any of the following has
occurred:
(a) the Executive shall have been convicted of a felony,
(b) the Executive commits an act or series of acts of dishonesty
in the course of the Executive's employment which are
materially inimical to the best interests of Key or a
Subsidiary and which constitutes the commission of a felony,
all as determined by the vote of three fourths of all of the
members of the Board of Directors of Key (other than the
Executive, if the Executive is a Director of Key) 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,
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(c) Key or any Subsidiary has been ordered or directed by any
federal or state regulatory agency with jurisdiction to
terminate or suspend the Executive's employment and such order
or directive has not been vacated or reversed upon appeal, or
(d) after being notified in writing by the Board of Directors of
Key to cease any particular Competitive Activity, the
Executive shall intentionally continue to engage in such
Competitive Activity while the Executive remains in the employ
of Key or a Subsidiary.
If (x) Key or any Subsidiary terminates the employment of the Executive 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 the Executive to employment 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 the Executive without Cause during the two year period beginning on
the date of the Change of Control.
7.5 CHANGE OF CONTROL. A "Change of Control" shall be deemed to have
occurred if, at any time while this Agreement is in effect pursuant to Section 5
hereof, 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 7.5, 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
(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.
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(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 0000 Xxx) 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 Key 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 0000 Xxx) proxies in connection with a proposal
that is not approved or recommended by the Key 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 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
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used in Section 13(d) and Section 14(d)(2) of the
0000 Xxx) 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.
7.6 COMPETITIVE ACTIVITY. The Executive shall be deemed to have
engaged in "Competitive Activity" if the Executive:
(a) engages 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), or
(b) serves as a director, officer, or employee of any bank, bank
holding company, savings and loan association, building and
loan association, savings and loan holding company, insurance
company, investment banking or securities company, mutual fund
company, or other financial services company other than Key or
any of its Subsidiaries (each of the foregoing being
hereinafter referred to as a "Financial Services Company"), or
renders services of a consultative or advisory nature or
otherwise to any such Financial Services Company; provided,
however, this clause (b) shall not prohibit or restrict the
Executive from serving in any such capacity with the consent
of Key.
7.7 DISABILITY. For purposes of this Agreement, the Executive's
employment will have been terminated by Key or its Subsidiary by reason of
"Disability" of the Executive only if
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(a) as a result of bodily injury or sickness, the Executive has been unable to
perform the Executive's normal duties for Key or its Subsidiary for a period of
180 consecutive days, and (b) the Executive begins to receive payments under the
KeyCorp Long Term Disability Benefit Plan not later than 30 days after the
Termination Date.
7.8 DISCONTINUED PLAN. The term "Discontinued Plan" means any
Retirement Plan and/or Savings Plan that:
(a) the Executive was covered by and participating in
immediately before the occurrence of a Change of
Control, and
(b) was, between the date of the Change of Control and the
Termination Date, either terminated or altered in such a way
as to substantially reduce the benefits provided to the
Executive thereunder without having been substituted for by a
similar plan providing substantially similar benefits to the
Executive.
7.9 GOOD REASON. The Executive shall be deemed to have "Good Reason" to
terminate the Executive's employment under this Agreement during a Window Period
if, at any time after the occurrence of a Change of Control and before the end
of the Window Period, one or more of the events listed in clauses (a) through
(c) of this Section 7.9 occurs without the written consent of the Executive:
(a) following notice by the Executive to Key and an opportunity by
Key to cure, the Executive determines in good faith that the
Executive's position, responsibilities, duties, or status with
Key are at any time materially less than or reduced from those
in effect before the Change of Control or that the Executive's
reporting relationships with superior executive officers have
been materially changed from those in effect before the Change
of Control;
(b) following notice by the Executive to Key and an opportunity by
Key to cure, the Executive is excluded from full participation
in any incentive compensation plan or stock option, stock
appreciation, or similar equity based plan in which similarly
situated executives of Key and its Subsidiaries generally
participate; or
(c) the headquarters that was the Executive's principal place of
employment before the Change of Control (whether Key's
headquarters or a regional headquarters) is relocated to a
site outside of the greater metropolitan area in which that
headquarters was located before the Change of Control. (If the
Executive's principal place of employment before the Change of
Control was neither at Key's headquarters nor at any regional
headquarters, then this clause (c) shall not be applicable.)
For purposes of clauses (a) and (b), Key will be deemed to have had an
opportunity to cure and to have failed to effect a cure if the circumstance
otherwise constituting Good Reason persists (as determined in good faith by the
Executive) for more than seven calendar days after the Executive has given
notice to Key of the existence of that circumstance.
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7.10 IMPERMISSIBLE. The term "Impermissible," when used in the context
of the Executive's 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.
7.11 MANDATORY RELOCATION. A "Mandatory Relocation" shall have occurred
if, at any time after a Change of Control, the Executive is required to relocate
the Executive's principal place of employment for Key or its Subsidiary without
the Executive's written consent more than 35 miles from where the Executive was
located prior to the Change of Control.
7.12 REDUCTION OF BASE SALARY. A "Reduction of Base Salary" shall have
occurred if the Base Salary of the Executive is reduced at any time after a
Change of Control.
7.13 RELEVANT PLANS. The term "Relevant Plans" means:
(a) all Retirement Plans and Savings Plans that the Executive was
covered by and participating in immediately before the
Termination Date, and
(b) all Discontinued Plans.
Reference to a "Relevant Plan," in the singular, means any of the Relevant
Plans.
7.14 RETIREMENT PLANS. The term "Retirement Plans" means the KeyCorp
Cash Balance Pension Plan and the Supplemental Retirement Plan, each as from
time to time amended, restated, or otherwise modified, and any plan that, after
the date of this Agreement, 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 the Executive was participating prior to the Termination
Date. Reference to a "Retirement Plan," in the singular, means any of the
Retirement Plans.
7.15 SAVINGS PLANS. 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 date of this Agreement, 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 the
Executive was participating prior to the Termination Date. Reference to a
"Savings Plan," in the singular, shall mean any of the Savings Plans.
7.16 SUPPLEMENTAL RETIREMENT PLAN. The term "Supplemental Retirement
Plan" means the KeyCorp Supplemental Retirement Plan, the KeyCorp Excess Cash
Balance Pension Plan, the KeyCorp Supplemental Retirement Plan for Key
Executives, the KeyCorp
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Supplemental Retirement Benefit Plan, and the KeyCorp Executive Supplemental
Pension Plan, each as from time to time amended, restated, or otherwise
modified, and any plan that, after the date of this Agreement, succeeds,
replaces, or is substituted for any of such plans.
7.17 SUBSIDIARY. A "Subsidiary" means any corporation, bank,
partnership, or other entity a majority of the voting control of which is
directly or indirectly owned or controlled at the time in question by Key.
7.18 TERMINATION DATE. The term "Termination Date" means the date on
which the Executive's employment with Key and its Subsidiaries terminates.
7.19 WINDOW PERIOD. The term "Window Period," with respect to any
particular Change of Control, means the three-month period beginning on the date
that falls on the same day of the month as the date of the Change of Control in
the fifteenth month after the month in which the Change of Control occurs. 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, the parties have executed this Agreement as of the
date first written above.
KEYCORP
By ______________________________
Xxxxxx X. Xxxxxxxxx
Chairman and Chief Executive Officer
THE "EXECUTIVE"
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22
EXHIBIT A
WAIVER AND RELEASE
DO NOT SIGN WITHOUT READING AND UNDERSTANDING
In consideration of the payments to be made to me following termination of my
employment with KeyCorp pursuant to the agreement between KeyCorp and me dated
as of November 20, 1997 (the "Change of Control Agreement"), which payments I
acknowledge I am not entitled to receive without execution of this Waiver and
Release, and which payments will not commence earlier than eight days after the
execution of this Waiver and Release, I, for myself, my heirs, administrators,
executors, and assigns, release and discharge KeyCorp, its affiliates,
subsidiaries, divisions, successors, and assigns and the employees, officers,
directors, and agents thereof (collectively referred to throughout this Waiver
and Release as "Key") from any and all causes of action, charges of
discrimination, proceedings, or claims of every kind, nature, and character,
arising out of or relating to my employment with Key and the termination of my
employment with Key based upon or related to any contention (i) that my
employment terminated because of any tortious, wrongful, unlawful, or improper
conduct or act or in violation or breach of any express or implied contract or
agreement, or (ii) that Key engaged in any discriminatory act, event, pattern,
or practice involving age, religion, creed, sex, national origin, ancestry,
handicap, disability, veteran status, marital status, race, or color, or the
continuing or future effects thereof (including, without limitation, the federal
Age Discrimination in Employment Act, 29 U.S.C. Section 621 ET SEQ., or any
similar state law).
I warrant that no promise or inducement has been offered to me other than as set
forth in the Change of Control Agreement, that I am relying on no other
statement or representation by Key, and that I have not assigned any of my
rights. I have read this Waiver and Release; I have had a full opportunity to
consider it (including the opportunity to consult with an attorney of my
choice); and I understand that by signing it I am giving up important rights,
including any right to xxx under federal, state, or local law. I also verify
that my entering into this Waiver and Release is wholly voluntary.
I further warrant that:
(a) I understand that I am specifically waiving rights or claims under
the federal Age Discrimination in Employment Act, 29 U.S.C. Section 621
ET SEQ.;
(b) I understand that I am not hereby waiving any rights or claims that
may arise after this Waiver and Release is executed by me;
(c) I understand that this Waiver and Release is being given by me in
exchange for consideration that is more valuable to me than what I am
entitled to without the Change of Control Agreement and the execution
of this Waiver and Release;
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EXHIBIT A
(CONT'D)
(d) I have been advised in writing by Key that I should have, at my
expense, an attorney of my choice review this Waiver and Release;
(e) I have been advised by Key that I may take up to _____ days from
receipt of this Waiver and Release to determine whether to execute the
same; and
(f) I have been advised by Key that this Waiver and Release may be
revoked by me within seven (7) days following execution of this Waiver
and Release whereupon this Waiver and Release shall be null and void.
IN WITNESS WHEREOF, I have hereby set my hand this _________ day of
_______________, ____.
Witness:
------------------------- -------------------------
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EXHIBIT A
(CONT'D)
ACKNOWLEDGMENT OF RECEIPT OF WAIVER AND RELEASE
I do hereby acknowledge that on _____________________, ____, I received
a copy of the Waiver and Release which is attached hereto, and I understand that
I have _____* days from the date of receipt of the Waiver and Release to
determine whether to execute it.
Witness:______________________ ______________________
*to be completed the same as clause (e) of the Waiver and Release.
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EXHIBIT A
(CONT'D)
Director of Human Resources
KeyCorp
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Re: Waiver and Release
Dear Sir or Madam:
On ________ __, ____, I executed a Waiver and Release in favor
of KeyCorp. More than seven (7) days have elapsed since I executed the Waiver
and Release. I have at no time revoked my acceptance or execution of the Waiver
and Release and, accordingly, I hereby request that KeyCorp commence making the
payments due to me under my Change of Control Agreement.
Very truly yours,
Witness:
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