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Exhibit 10.13
EMPLOYMENT AGREEMENT
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This Employment Agreement (this "Agreement") is made as of the
4th day of October, 2000, by and among McDonald Investments Inc., an Ohio
corporation (the "Company"), KeyCorp, an Ohio corporation ("KeyCorp"), and
Xxxxxx X. Xxxxxxxxxxx (the "Executive").
WHEREAS, the Executive, the Company and KeyCorp are parties to
that certain Employment Agreement, dated as of June 14, 1998 (the "Prior
Agreement");
WHEREAS, the Executive and KeyCorp are parties to that certain
Agreement, dated as of October 23, 1998, providing for certain payments and
benefits to the Executive if his employment is terminated under certain
circumstances in connection with a change of control of KeyCorp (the "Change of
Control Agreement");
WHEREAS, the Executive, the Company and KeyCorp desire to
terminate and supersede the Prior Agreement and to reaffirm the Change of
Control Agreement; and
WHEREAS, the Executive desires to continue to be employed by
the Company, and the Company desires to continue to employ the Executive, on the
terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the
respective covenants and agreements of the parties herein contained, the parties
hereto agree as follows:
1. EMPLOYMENT PERIOD. The Company hereby agrees to continue to
employ the Executive, and the Executive hereby agrees to be employed by the
Company, subject to the terms and conditions of this Agreement, for the period
commencing on the date of this Agreement (the "Commencement Date") and ending on
December 31, 2003 (the "Employment Period"). If the Executive remains employed
by the Company on January 1, 2002, then the Employment Period shall
automatically be renewed for a period of three years commencing on January 1,
2002 and ending on December 31, 2004. There shall be no other automatic renewals
of the Employment Period and, in any case, the Employment Period may be
terminated earlier under the terms and conditions set forth herein.
2. TERMS OF EMPLOYMENT.
(a) POSITION AND DUTIES.
(i) During the Employment Period, the Executive shall
serve as the Chairman and Chief Executive Officer of, and will be responsible
for heading, the major business group of KeyCorp known as Key Capital Partners
(including as from time to time renamed) ("Key Capital Partners") and the
Executive shall serve as the Chief Executive Officer of the Company. During the
Employment Period, the Executive shall report directly to Xxxxx Xxxxx or the
Chief Executive Officer of KeyCorp.
(ii) During the Employment Period, the Executive
shall serve on the most senior officer committee of KeyCorp on which all other
major business group heads also serve (currently the KeyCorp Senior Staff and
KeyCorp Management Committee), or their
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successors, the Key Capital Partners Management Committee, or its successor (if
any), and the Board of Directors of the Company, or its successor (if any). In
addition, during the Employment Period, the Executive shall serve on the
Compensation Committee of the Board of Directors of the Company (the "Company
Compensation Committee"), which the Executive acknowledges and agrees will
terminate on October 23, 2001.
(iii) During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is entitled, the
Executive agrees to devote his full attention and time during normal business
hours to the business and affairs of Key Capital Partners and the Company and to
use the Executive's reasonable best efforts to perform such responsibilities in
a professional manner. It shall not be a violation of this Agreement for the
Executive to (A) serve on corporate, civic or charitable boards or committees,
(B) deliver lectures, fulfill speaking engagements or teach at educational
institutions and (C) manage personal investments, so long as such activities do
not significantly interfere with the performance of the Executive's
responsibilities as an employee of the Company in accordance with this
Agreement. For purposes hereof, service on corporate boards pursuant to
appointments after the date hereof shall be subject to the prior approval of
KeyCorp, which shall not be unreasonably denied, and to KeyCorp's Code of
Ethics. It is expressly understood and agreed that to the extent that any such
activities have been conducted by the Executive prior to the Commencement Date
in accordance with the terms of the Prior Agreement, the continued conduct of
such activities shall not be deemed to interfere with the performance of the
Executive's responsibilities to the Company.
(b) MANAGEMENT AND OPERATIONS OF THE COMPANY. During the
Employment Period, but only until October 23, 2001, the Executive, together with
the other members of the Company Compensation Committee, will be responsible for
establishing the aggregate and individual compensation levels for certain
employees of the Company, in accordance with the compensation policies and
practices established by the Company Compensation Committee, which shall be
consistent with the historical compensation practices and policies of the
Company and KeyCorp and in conformity with industry practice. The Executive
acknowledges and agrees that the Company Compensation Committee shall terminate
on October 23, 2001 and thereafter shall no longer continue as a committee of
the Board of Directors of the Company or otherwise.
(c) COMPENSATION.
(i) CASH COMPENSATION THROUGH DECEMBER 31, 2000.
A. 2000 BASE SALARY. During the period from
the Commencement Date through and ending on December 31, 2000, the
Executive shall continue to receive base salary payments ("2000 Base
Salary") at an annualized rate of $200,000 in accordance with the
compensation policies and practices established by the Compensation and
Organization Committee of KeyCorp's Board of Directors, or its
successor (the "Committee").
B. 2000 BONUS. In addition to 2000 Base
Salary, the Executive shall be awarded a cash bonus for the year 2000
(the "2000 Bonus") in an amount determined by the Committee, provided
that in no event shall the amount of the
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2000 Bonus be less than $1.3 million. The 2000 Bonus shall be payable
no later than March 1, 2001.
(ii) RETENTION AWARDS. The parties acknowledge and
agree that, in connection with the transactions contemplated by the Prior
Agreement, the Executive was granted a cash retention award, effective October
23, 1998, in the amount of $2.2 million (the "Cash Retention Award") and was
granted non-qualified stock options, effective October 23, 1998 and January 13,
1999, to acquire a total of 241,055 KeyCorp Common Shares (the "Retention
Options"). The parties agree that the terms of the Cash Retention Award and the
Retention Options shall not be affected or modified hereby, except as follows or
as otherwise expressly set forth herein:
A. Section 2 of each Non-Qualified Grant
Agreement evidencing the Retention Options shall be, and it hereby is,
deleted and replaced in its entirety by the following:
"2. Upon (i) the termination of your employment by
KeyCorp and its subsidiaries other than for Cause, as defined
in the Employment Agreement, dated as of October 4, 2000,
among KeyCorp, McDonald Investments Inc. and you (the
"Employment Agreement"), including by reason of your
Disability, as defined in the Employment Agreement, (ii) your
termination of your employment with KeyCorp and its
subsidiaries for Good Reason, as defined in the Employment
Agreement, or (iii) your death, all outstanding Options
granted hereunder shall become immediately vested and
exercisable in full."
B. Section 2 of the Agreement evidencing the
Cash Retention Award shall be, and it hereby is, deleted and replaced
in its entirety by the following:
"2. Upon (i) the termination of your employment by
KeyCorp and its subsidiaries other than for Cause, as defined
in the Employment Agreement, dated as of October 4, 2000,
among KeyCorp, McDonald Investments Inc. and you (the
"Employment Agreement"), including by reason of your
Disability, as defined in the Employment Agreement, (ii) your
termination of your employment with KeyCorp and its
subsidiaries for Good Reason, as defined in the Employment
Agreement, or (iii) your death, all unpaid portions of the
Award shall become immediately payable in full."
(iii) BASE SALARY COMMENCING IN 2001. During the
Employment Period, commencing January 1, 2001, the Executive shall receive an
annual base salary ("Annual Base Salary"), in an amount determined by the
Committee, in its sole discretion, under the terms of Section 2(c)(v), provided
that in no event shall the Annual Base Salary be less than $200,000. Annual Base
Salary shall be payable to the Executive in substantially equal periodic
installments throughout the year (no less frequently than monthly) and shall be
prorated during any calendar year in which the Executive is employed by the
Company for less than the entire calendar year.
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(iv) INCENTIVE COMPENSATION COMMENCING IN 2001. In
addition to the Annual Base Salary, the Executive shall be awarded annual
incentive compensation (the "Annual Incentive Compensation"), as determined by
the Committee, in its sole discretion, under the terms of Section 2(c)(v), for
calendar years during the Employment Period after the year 2000, provided that
in no event shall the aggregate amount of the Annual Base Salary and Annual
Incentive Compensation be less than $1,533,333 (the "Minimum Annual
Compensation") for any such calendar year. The Annual Incentive Compensation
shall be payable and/or awarded no later than March 1 of the year following the
calendar year for which it was earned.
(v) TOTAL COMPENSATION OPPORTUNITY. The objective of
the compensation process will be to assure the Executive compensation
competitive with his counterparts at appropriate peer firms, subject to relative
performance. Accordingly, subject to the Minimum Annual Compensation, for
calendar years after the year 2000 during the Employment Period, the Committee
shall determine the Executive's total annual compensation, in its sole
discretion, based on the following principles:
A. The Executive's total compensation
opportunity will be consistent with appropriate peer firms, taking into
consideration primarily bank-based competitors. In establishing total
compensation opportunity, KeyCorp shall select and engage a consulting
firm reasonably satisfactory to the Executive, and the consulting firm
shall assist the Committee in identifying and defining the peer group
and provide factual information to the Committee to determine the
peers' median total compensation on a normal operating basis (excluding
extraordinary compensation related to business combinations or other
non-recurring events) ("Peer Median Compensation").
B. The Executive's position will be marked
against external peers rather than being based on internal job
relationships within KeyCorp.
C. Total compensation will be positioned at
Peer Median Compensation, including appropriate upside opportunity and
downside risk. Individual pay elements (such as base salary, short-term
incentive compensation and stock options) will be consistent with those
at firms within the peer group, although the mix of such elements may
vary (for example, the use and amount of stock options as part of the
total compensation package).
D. Actual total compensation will be
directly linked to the Executive's individual performance and Key
Capital Partners and KeyCorp performance. The weighting of the KeyCorp
component will be consistent with the weighting of such component for
the most senior executives of the other major business groups of
KeyCorp (i.e., currently Key Retail Banking and Key Corporate Capital
and Specialty Finance).
E. The performance measures used to assess
performance will be:
(1) Individual performance of the
Executive;
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(2) Key Capital Partners
performance versus peer group performance with respect to
specific, mutually agreed upon metrics;
(3) Key Capital Partners
performance versus its business plan; and
(4) KeyCorp's performance versus
performance measures established by the Committee from time to
time for KeyCorp as a whole (such as core earnings per share
growth and return on equity).
F. Any change in the Executive's base
salary, short- or long-term incentive award and stock option grants
must be approved by the Committee in the exercise of its sole
discretion.
G. In the event that the Minimum Annual
Compensation for any year during the Employment Period exceeds the
total compensation that would have been paid under these principles
absent the Minimum Annual Compensation guarantee, such overpayment will
be taken into account to reduce the amount by which total compensation
otherwise payable in a succeeding year exceeds the Minimum Annual
Compensation.
H. The parties acknowledge that these
principles are consistent with the compensation philosophy utilized by
the Committee for KeyCorp in general. The Committee shall retain the
right, in its sole discretion, to change these principles consistent
with any alteration of the Committee's overall compensation philosophy
for KeyCorp or any significant portion thereof.
(vi) RELATED OPTION GRANT. The parties acknowledge that, in
connection with the execution of this Agreement, the Executive has been granted
an option to acquire 141,000 KeyCorp Common Shares, which shall become
exercisable 50% on December 31, 2003 and 50% on December 31, 2004, or in full
upon the earlier termination of the Executive's employment hereunder (x) by the
Company other than for Cause (as defined below), including by reason of the
Executive's Disability (as defined below), (y) by the Executive for Good Reason
(as defined below) or (z) by the Executive's death. KeyCorp agrees to recommend
to the Committee that, at the next regularly scheduled meeting of the Committee
at which options would regularly be granted (currently anticipated to be in
January 2001), the Executive be granted an additional option to acquire 9,000
KeyCorp Common Shares, which shall become exercisable in three equal
installments on the first, second and third anniversaries of the date of grant.
The parties agree that the grant of such options alone shall not preclude the
Executive from being considered for participation in other option grants to
similarly situated senior executives of KeyCorp. In the event of discrepancy
between the terms of this Agreement and the terms of any option agreement or
other instrument evidencing the grant of an option described in this Section
2(c)(vi), the terms of such instrument shall govern.
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(vii) EMPLOYEE BENEFIT PLANS. During the Employment Period,
the Executive shall continue to be eligible to participate in welfare and
retirement benefit plans, programs, policies and arrangements to the same extent
as immediately prior to the Commencement Date; provided, however, that KeyCorp
or the Company may amend, modify or terminate any such plan, program, policy or
arrangement at any time so long as the amendment, modification or termination
applies to a significant portion or number of participants in such plan,
program, policy or arrangement.
(viii) EXPENSES. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all reasonable business
expenses incurred by the Executive, in accordance with the policies of Key
Capital Partners and KeyCorp.
(ix) INDEMNIFICATION/D&O INSURANCE. The Executive shall be
indemnified by KeyCorp against claims arising in connection with the Executive's
status as an employee, officer or agent of KeyCorp in accordance with KeyCorp's
indemnity policies for its senior executives, subject to applicable law.
(x) SECTION 162(m). In the event that KeyCorp would be denied
a deduction for federal income tax purposes for any amounts payable to the
Executive by reason of the limitations imposed by Section 162(m) of the Internal
Revenue Code of 1986, as amended (the "Code"), the Executive agrees that, in
accordance with the policy of the Committee (and only so long as that policy
continues and is applicable to all executives of KeyCorp who are subject to
Section 162(m)), he shall defer the amount that would not be deductible pursuant
to the terms of KeyCorp's Deferred Compensation Plan as in effect from time to
time.
(xi) VOLUNTARY DEFERRAL OF COMPENSATION. During the Employment
Period, the Executive shall have the right to defer voluntarily up to 50% of his
Annual Base Salary pursuant to the terms of KeyCorp's Deferred Compensation Plan
as in effect from time to time, provided that the Executive elects such deferral
and gives notice of such election to KeyCorp in advance of the year in which the
Annual Base Salary to be deferred is to be earned and otherwise complies with
the terms of KeyCorp's Deferred Compensation Plan as in effect from time to
time.
(d) EMPLOYMENT LOCATION. During the Employment Period, the
Executive's principal place of employment shall be located no more than 20 miles
from the Executive's principal place of employment at the date hereof.
3. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY. The Executive's employment shall
terminate automatically upon the Executive's death during the Employment Period.
If the Company determines in good faith that the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Executive written notice in accordance with
Section 10(b) of this Agreement of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), provided that, within the 30 days
after such receipt, the
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Executive shall not have returned to full-time performance of the Executive's
duties. For purposes of this Agreement, "Disability" shall mean the absence of
the Executive from the Executive's duties with Key Capital Partners on a
full-time basis for 180 consecutive days as a result of incapacity due to mental
or physical illness or injury.
(b) CAUSE. The Company may terminate the Executive's
employment during the Employment Period for Cause. For purposes of this
Agreement, "Cause" shall mean:
(i) the continued and willful failure of the
Executive to perform substantially the Executive's duties with Key Capital
Partners (other than any such failure resulting from incapacity due to mental or
physical illness or injury), after a written demand for substantial performance
is delivered to the Executive by the Chief Executive Officer of KeyCorp (the
"CEO"), which specifically identifies the manner in which the CEO believes that
the Executive has not substantially performed the Executive's duties, or
(ii) the engaging by the Executive in illegal conduct
constituting a felony, or
(iii) gross misconduct which is materially and
demonstrably injurious to Key Capital Partners or KeyCorp, or
(iv) any material breach of Section 7 hereof,
provided that to the extent any such breach is curable, Key Capital Partners has
given the Executive notice thereof and the Executive has failed to cure such
breach within 30 days after such notice is effective, or
(v) conduct that results in the permanent loss of the
Executive's professional license to conduct business or in the Executive's being
disqualified or barred by banking or security law regulators from serving in the
capacity contemplated by this Agreement for six months or more.
For purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of Key Capital
Partners. Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board of Directors of KeyCorp or upon the
instructions of the CEO or another senior officer of KeyCorp or based upon the
advice of counsel for Key Capital Partners or KeyCorp shall be conclusively
presumed to be done, or omitted to be done, by the Executive in good faith and
in the best interests of Key Capital Partners. The employment of the Executive
shall not be deemed to be terminated for Cause unless and until there shall have
been delivered to the Executive a copy of a written determination executed by
the CEO on behalf of KeyCorp (after reasonable notice is provided to the
Executive and the Executive is given an opportunity, together with counsel, to
be heard before the CEO), finding that, in the good faith opinion of the CEO,
the Executive is guilty of the conduct described in any of subparagraphs (i)
through (v) above, and specifying the particulars thereof in detail.
(c) GOOD REASON. The Executive's employment may be terminated
during the Employment Period by the Executive for Good Reason. For purposes of
this Agreement, "Good Reason" shall mean a material breach by the Company of an
obligation of the Company under
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this Agreement, without the consent or concurrence of the Executive, that the
Company has failed to cure within 45 days after the effective time at which the
Executive has given the Company and KeyCorp written notice of such breach. A
breach described in this clause includes any of the following events (subject to
such opportunity of the Company to cure):
(i) a detrimental alteration or failure to comply
with the terms of the Executive's employment as they relate to the Executive's
position, reporting, responsibilities and duties under Sections 2(a)(i) and
2(a)(ii) hereof;
(ii) a material failure to comply with the provisions
of Section 2(c) hereof relating to compensation and benefit arrangements and
opportunities applicable to the Executive;
(iii) as a result of KeyCorp's reassigning business
activities or products from Key Capital Partners to other business groups or
lines at KeyCorp outside of Key Capital Partners, the annual revenues of Key
Capital Partners decline to less than $1.05 billion, without taking into account
any decline resulting from economic conditions or the financial performance of
Key Capital Partners;
(iv) as a result of KeyCorp's reassigning business
activities or products from Key Capital Partners to other business groups or
lines at KeyCorp outside of Key Capital Partners, Key Capital Partners ceases to
be the principal provider among KeyCorp affiliates of any of the following
products and services:
A. investment banking;
B. capital markets;
C. securities brokerage and
investment-related services to
individuals; and
D. asset management;
the Executive acknowledges that the Affordable Housing Unit and the current
business of Key Global Finance (regardless of any increase in size of such
business within the specialized areas it serves but without any significant
expansion of such business otherwise into core investment banking or the other
products and services listed above) shall not be considered part of the products
and services to be provided by Key Capital Partners for purposes hereof;
(v) the relocation of the Executive's principal place
of employment to any location more than 20 miles from the Executive's principal
place of employment on the Commencement Date;
(vi) the failure of the Company to obtain an
agreement reasonably satisfactory to the Executive from any successor to assume
and agree to perform this Agreement, as contemplated in Section 9 hereof; or
(vii) any termination of the Executive's employment
which is not effected pursuant to the terms of this Agreement.
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Notwithstanding the foregoing, the Executive's failure to give notice to the
Company and KeyCorp of his objection to an event alleged to constitute "Good
Reason" within 45 days after the date of occurrence of such event shall be
deemed a waiver of such event by the Executive and the Executive thereafter may
not terminate his employment hereunder for Good Reason based on such event.
(d) NOTICE OF TERMINATION. Any termination by the Company for
Cause, or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 10(b)) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated and (iii) specifies the Date of
Termination. The failure by the Executive or the Company to set forth in the
Notice of Termination any fact or circumstance which contributes to a showing of
Good Reason or Cause shall not waive any right of the Executive or the Company,
respectively, hereunder or preclude the Executive or the Company, respectively,
from asserting such fact or circumstance in enforcing the Executive's or the
Company's rights hereunder, except as otherwise set forth in Section 3(c).
(e) DATE OF TERMINATION. "Date of Termination" means (i) if
the Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of termination of employment that is set
forth in the Notice of Termination (which shall not be earlier than the date on
which such notice is given and which shall be subject to any applicable cure
period), (ii) if the Executive's employment is terminated by the Company other
than for Cause or Disability, or the Executive resigns without Good Reason, the
date on which the Company or the Executive notifies the Executive or the
Company, respectively, of such termination and (iii) if the Executive's
employment is terminated by reason of death or Disability, the date of death of
the Executive or the Disability Effective Date, as the case may be.
4. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) GOOD REASON; OTHER THAN FOR CAUSE, DEATH OR DISABILITY.
If, during the Employment Period, the Company shall terminate the Executive's
employment other than for Cause or Disability or the Executive shall terminate
employment for Good Reason:
(i) the Company shall pay to the Executive in a lump
sum in cash within 30 days after the Date of Termination the aggregate of the
amounts determined under clauses A and B below:
A. the "Accrued Obligations", which shall
mean the sum of the amounts described and payable under clause (1) or
clause (2) below (but not both), as applicable based on the Date of
Termination:
(1) if the Date of Termination
occurs on or before December 31, 2000, the Accrued Obligations
shall be the sum of (I) the Executive's 2000 Base Salary
through the Date of Termination to the extent not theretofore
paid and (II) the product of (x) $1,333,333 and (y) a
fraction, the
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numerator of which is the number of days in calendar year 2000
through the Date of Termination, and the denominator of which
is 365; or
(2) if the Date of Termination
occurs after December 31, 2000, the Accrued Obligations shall
be the sum of (I) the Executive's 2000 Base Salary and Annual
Base Salary through the Date of Termination to the extent not
theretofore paid, (II) the product of (x) the average of the
cash amounts of Annual Incentive Compensation (which, for
purposes of this paragraph, shall include any cash incentive
or bonus compensation) paid or payable to the Executive for
the three most recent annual fiscal periods of the Company
prior to the Date of Termination, including any cash incentive
or bonus compensation or portion thereof which has been earned
but deferred (and annualized for any annual fiscal period of
the Company consisting of less than twelve full months) (such
amount being referred to as the "Average Annual Bonus") and
(y) a fraction, the numerator of which is the number of days
in the current calendar year through the Date of Termination,
and the denominator of which is 365, and (III) any unpaid cash
Annual Incentive Compensation for a prior year; and
B. the amount equal to the product of (1)
the number of years (including fractions thereof) remaining from the
Date of Termination until the end of the Employment Period (i.e., until
December 31, 2003 or December 31, 2004, as applicable, depending on
whether the Employment Period has been renewed under Section 1 before
the Date of Termination) (the "Continuation Period") and (2) the sum of
(x) the Executive's Annual Base Salary and (y) the Average Annual
Bonus.
For purposes of this Section 4(a)(i), any amounts of compensation deferred by
the Executive into a deferral plan of KeyCorp or any affiliate, whether
voluntarily, automatically or otherwise, shall be deemed to have been paid on
the date of deferral, and all such deferred amounts shall be payable as governed
by the terms of the applicable deferral plan, subject to Section 4(a)(vi);
(ii) any unpaid portion of the Cash Retention Award
shall become fully vested and immediately payable;
(iii) the Retention Options shall become fully vested
and immediately exercisable;
(iv) to the extent not theretofore paid or provided,
the Company shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which the Executive is entitled to
receive under any plan, program, policy or practice or contract or agreement
(but excluding the KeyCorp Separation Pay Plan) of the Company and its
affiliated companies (such other amounts and benefits shall be hereinafter
referred to as the "Other Benefits");
(v) for the duration of the Continuation Period, the
Executive and the Executive's dependents shall continue to be eligible to
participate in the medical, dental, health and group-term life benefit plans and
arrangements applicable to the Executive immediately
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prior to the Date of Termination on the same terms and conditions as in effect
for the Executive and the Executive's dependents immediately prior to the Date
of Termination;
(vi) if the Date of Termination occurs on or before
October 23, 2003, any compensation previously deferred by the Executive
(together with any accrued interest or earnings thereon), including the
Executive's employer match and employee share under all automatic and voluntary
deferral programs in which the Executive participated while employed by the
Company, shall become fully vested and nonforfeitable and all such deferred
compensation shall be payable as governed by, and subject to, the terms of the
applicable deferral plan; and
(vii) if the Executive has attained age 50 on or
before the Date of Termination, the Executive shall be entitled to participate,
at his cost, in KeyCorp's Retiree Medical Plan (the "Retiree Medical Plan")
through age 65, or through such later age through which participants in the
Retiree Medical Plan may continue to participate therein under the terms thereof
as amended with general application to all participants therein from time to
time. Consistent with the requirements of the Retiree Medical Plan, in the event
this Agreement terminates and is not renewed, this clause providing for retiree
medical benefits shall be deemed to be part of a termination agreement. The
Executive acknowledges and agrees that, consistent with the requirements of the
Retiree Medical Plan, he must inform KeyCorp at the time of termination of his
employment whether he wishes to participate in the Retiree Medical Plan and if
he does not then elect participation in the Retiree Medical Plan or ever ceases
participation, he shall not later be eligible to elect or resume participation.
Such requirement to elect participation in the Retiree Medical Plan (if
eligible) at the time of termination of employment (or forego participation
therein) shall apply to the Executive notwithstanding any potentially duplicate
benefits (if any) that may be available to the Executive under Section 4(a)(v)
pursuant to the terms of this Agreement.
(b) DEATH. If the Executive's employment is terminated by
reason of the Executive's death during the Employment Period, this Agreement
shall terminate without further obligations to the Executive's legal
representatives under this Agreement, other than for payment of Accrued
Obligations, the timely payment or provision of Other Benefits and the payments
referred to in Section 4(a)(ii). Accrued Obligations and the payments referred
to in Section 4(a)(ii) shall be paid to the Executive's estate or beneficiary,
as applicable, in a lump sum in cash within 30 days of the Date of Termination.
In addition, the Retention Options shall become fully vested and immediately
exercisable and the provisions of Section 4(a)(vi) shall be applicable (subject
to the condition set forth at the beginning of such Section). With respect to
the provision of Other Benefits, the term Other Benefits as utilized in this
Section 4(b) shall include death benefits as in effect on the date of the
Executive's death.
(c) DISABILITY. If the Executive's employment is terminated by
reason of the Executive's Disability during the Employment Period, this
Agreement shall terminate without further obligations to the Executive, other
than for payment of Accrued Obligations, the timely payment or provision of
Other Benefits and the payments referred to in Section 4(a)(ii). Accrued
Obligations and the payments referred to in Section 4(a)(ii) shall be paid to
the Executive in a lump sum in cash within 30 days of the Date of Termination.
In addition, the Retention Options shall become fully vested and immediately
exercisable and the provisions of Sections 4(a)(vi)
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and 4(a)(vii)shall be applicable (subject in each case to the condition set
forth at the beginning of the respective Section). With respect to the provision
of Other Benefits, the term Other Benefits as utilized in this Section 4(c)
shall include, and the Executive shall be entitled after the Disability
Effective Date to receive, disability and other benefits as in effect on the
Disability Effective Date.
(d) CAUSE; OTHER THAN FOR GOOD REASON. If the Executive's
employment shall be terminated for Cause or the Executive terminates employment
without Good Reason during the Employment Period, this Agreement shall terminate
without further obligations to the Executive other than the obligation to pay to
the Executive (x) Accrued Obligations less the amount determined under Section
4(a)(i)A(1)(II) or Section 4(a)(i)A(2)(II) hereof, as applicable, and (y) Other
Benefits, in each case to the extent not theretofore paid.
5. NON-EXCLUSIVITY OF RIGHTS. Amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any plan,
policy, practice or program of or any contract or agreement with the Company or
any of its affiliated companies (other than the KeyCorp Separation Pay Plan) at
or subsequent to the Date of Termination shall be payable in accordance with
such plan, policy, practice or program or contract or agreement except as
explicitly modified by this Agreement. The Executive shall not be entitled to
any benefits under the KeyCorp Separation Pay Plan.
6. FULL SETTLEMENT. The Company'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, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and such amounts
shall not be reduced whether or not the Executive obtains other employment. The
Company agrees to pay as incurred, to the full extent permitted by law, all
legal fees and expenses which the Executive may reasonably incur as a result of
any contest brought in good faith (regardless of the outcome thereof) by the
Company, the Executive or others of the validity or enforceability of, or
liability under, any provision of this Agreement (including as a result of any
contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
Federal rate provided for in Section 7872(f)(2)(A) of the Code.
7. CONFIDENTIAL INFORMATION/NONCOMPETITION/NONSOLICITATION.
(a) The Executive shall hold in a fiduciary capacity for the
benefit of the Company all secret or confidential information, knowledge or data
relating to the Company or any of KeyCorp's affiliated companies, and their
respective businesses, which shall have been obtained by the Executive during
the Executive's employment by the Company or any of KeyCorp's affiliated
companies and which shall not be or become public knowledge (other than by acts
by the Executive or representatives of the Executive in violation of this
Agreement). After termination of the Executive's employment with the Company,
the Executive shall not, without the prior written consent of KeyCorp or as may
otherwise be required by law or legal
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13
process, communicate or divulge any such information, knowledge or data to
anyone other than KeyCorp and those designated by it or to an attorney retained
by the Executive.
(b) While employed by the Company or any of KeyCorp's
affiliates and for two years after the Executive's termination of employment by
the Company for Cause or by the Executive without Good Reason (but in no event
for more than two years following the expiration of the Employment Period), the
Executive shall not, without the written consent of KeyCorp, directly or
indirectly, be connected as an officer, employee, partner, director or otherwise
with any business which engages within a 50-mile radius of any area in which Key
Capital Partners conducted business during the 12-month period immediately
preceding the Executive's Date of Termination, in any business that competes, at
the time such engagement is commenced, with any business actively conducted by
Key Capital Partners. Ownership, for personal investment purposes only, of less
than 5% of the voting stock of any publicly held corporation shall not
constitute a violation hereof.
(c) While employed by the Company or any of KeyCorp's
affiliates and for two years after the earlier of the Date of Termination and
the expiration of the Employment Period, the Executive shall not, directly or
indirectly, on behalf of the Executive or any other person, solicit for
employment by other than KeyCorp or the Company any person employed by KeyCorp
or its affiliates.
(d) While employed by the Company or any of its affiliates and
for two years after the earlier of (i) the Executive's termination of employment
by the Company for Cause or by the Executive without Good Reason and (ii) the
expiration of the Employment Period, the Executive shall not, directly or
indirectly, on behalf of the Executive or any other person, solicit any customer
or client who was a customer or client of Key Capital Partners during the
12-month period immediately preceding the Date of Termination, for the purpose
of providing such customer or client with services that are directly competitive
with the services provided by Key Capital Partners, provided that under no
circumstances may the Executive solicit any customer or client for the purpose
of providing services relating to business that was under discussion prior to
the Date of Termination.
(e) In the event of a breach or threatened breach of this
Section 7, the Executive agrees that the Company and KeyCorp shall be entitled
to injunctive relief in a court of competent jurisdiction to remedy any such
breach or threatened breach, and the Executive acknowledges that damages would
be inadequate and insufficient.
(f) The provisions of this Section 7 shall remain in full
force and effect until the expiration of the period specified herein
notwithstanding the earlier termination of the Executive's employment hereunder.
8. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Anything in this Agreement to the contrary notwithstanding
and except as set forth below, in the event it shall be determined that any
payment or distribution by the Company to or for the benefit of the Executive
(whether paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise, but determined without regard
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14
to any additional payments required under this Section 8) (a "Payment") would be
subject to the excise tax imposed by Section 4999 of the Code or any interest or
penalties are incurred by the Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including, without limitation,
any income taxes (and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments. Notwithstanding the foregoing provisions of this Section 8(a), if it
shall be determined that the Executive is entitled to a Gross-Up Payment, but
that the Payments do not exceed 110% of the greatest amount (the "Reduced
Amount") that could be paid to the Executive such that the receipt of Payments
would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to
the Executive and the Payments, in the aggregate, shall be reduced to the
Reduced Amount.
(b) Subject to the provisions of Section 8(c), all
determinations required to be made under this Section 8, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by Ernst & Young LLP or such other certified public accounting firm reasonably
acceptable to the Company as may be designated by the Executive (the "Accounting
Firm") which shall provide detailed supporting calculations both to the Company
and the Executive within 15 business days of the receipt of notice from the
Executive that there has been a Payment, or such earlier time as is requested by
the Company. All fees and expenses of the Accounting Firm shall be borne solely
by the Company. Any Gross-Up Payment, as determined pursuant to this Section 8,
shall be paid by the Company to the Executive within five days of (i) the later
of the due date for the payment of any Excise Tax, and (ii) the receipt of the
Accounting Firm's determination. Any determination by the Accounting Firm shall
be binding upon the Company and the Executive. As a result of the uncertainty in
the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company should have been made
("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 8(c) and the Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than ten business days after the Executive
is informed in writing of such claim and shall apprise the Company of the nature
of such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which it gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
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15
(i) give the Company any information reasonably
requested by the Company relating to such claim,
(ii) take such action in connection with contesting
such claim as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in
order effectively to contest such claim, and
(iv) permit the Company to participate in any
proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 8(c), the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and xxx for a refund or contest the claim
in any permissible manner, and the Executive agrees to prosecute such contest to
a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance;
and further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
the Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 8(c), the Executive becomes entitled
to receive any refund with respect to such claim, the Executive shall (subject
to the Company's complying with the requirements of Section 8(c)) promptly pay
to the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Section 8(c), a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then such advance shall be forgiven
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and shall not be required to be repaid and the amount of such advance shall
offset, to the extent thereof, the amount of Gross-Up Payment required to be
paid.
9. SUCCESSORS.
(a) This Agreement is personal to the Executive and without
the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and KeyCorp and their respective successors and
assigns. The Company and KeyCorp may assign this Agreement without the consent
of the Executive, including to any affiliated company, subject to Section 9(c).
(c) The Company and KeyCorp will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company or
KeyCorp, or any business of the Company or KeyCorp for which the Executive's
services are principally performed, to assume expressly and agree to perform
this Agreement in the same manner and to the same extent that the Company or
KeyCorp would be required to perform it if no such succession had taken place.
As used in this Agreement, "Company" and "KeyCorp" shall mean the Company and
KeyCorp as hereinbefore defined and any successors to their business and/or
assets as aforesaid which assume and agree to perform this Agreement by
operation of law, or otherwise.
10. GENERAL PROVISIONS.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without reference to principles
of conflict of laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect. This Agreement may not be
amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
IF TO THE EXECUTIVE: Xxxxxx X. Xxxxxxxxxxx
------------------- 00 Xxxxxxxxxx Xxxx
Xxxxx Xxxxx, Xxxx 00000
'
'
-16-
17
'
IF TO THE COMPANY: McDonald Investments Inc.
----------------- 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Att: President and Chief Operating
Officer
COPY TO: KeyCorp
------- 000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Att: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The parties agree to treat all amounts paid to the
Executive hereunder as compensation for services. Accordingly, the Company may
withhold from any amounts payable under this Agreement such Federal, state,
local or foreign taxes as shall be required to be withheld pursuant to any
applicable law or regulation.
(e) This Agreement supersedes any other agreement, written or
oral (including the Prior Agreement but not including the Change of Control
Agreement), entered into before the date hereof pertaining to the Executive's
employment by the Company, KeyCorp or any affiliate. The parties hereto agree
that the Prior Agreement is hereby terminated and shall be of no further force
or effect and the parties hereby reaffirm the Change of Control Agreement. The
Executive hereby irrevocably waives and consents to any event or action by the
Company, KeyCorp or any affiliate that may have been a breach of the Prior
Agreement, so long as such event or action is not a breach of this Agreement,
and the Executive agrees that any such event or action shall have no effect on
the Cash Retention Award or the Retention Options.
(f) As used in this Agreement, the terms "affiliates" and
"affiliated companies" shall include any company controlled by, controlling or
under common control with the Company or KeyCorp, as the case may be.
(g) This Agreement may be executed in counterparts, which
together shall constitute one and the same original.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization from their respective Boards
of Directors, the Company and KeyCorp have caused these presents to be executed
in their names on their behalf, all as of the day and year first above written.
-------------------------------
Xxxxxx X. Xxxxxxxxxxx
MCDONALD INVESTMENTS INC.
-------------------------------
By: Xxxxxxx X. Xxxxxxx, Xx.
Title: Chairman
KEYCORP
-------------------------------
By: Xxxxxx X. Xxxxxxx
Title: Senior Executive Vice President,
General Counsel and Secretary
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