EXHIBIT 10.62
FIFTH
AMENDMENT
TO THE KEYCORP
EXECUTIVE SUPPLEMENTAL PENSION PLAN
WHEREAS, KeyCorp has established the KeyCorp Executive Supplemental
Pension Plan (the "Plan"), and
WHEREAS, the Board of Directors of KeyCorp has authorized its Compensation
Committee to permit amendments to the Plan, and
WHEREAS, on March 18, 2004 the Compensation Committee of the Board of
Directors of KeyCorp determined it desirable to amend the Plan and accordingly
authorized the execution of this Fifth Amendment,
NOW, THEREFORE, pursuant to such action of the Compensation Committee, the
Plan is hereby amended as follows:
1. Article II, Section 2.1(n) is amended to delete it in its entirety
and to substitute therefore the following:
"(n) "INCENTIVE COMPENSATION AWARD" for any Plan year shall
collectively mean the short term incentive compensation award
(whether in cash or common shares of the Corporation, and whether
paid or deferred, or a combination of both) and the long term
incentive compensation award (whether in cash or common shares of
the Corporation, and whether paid or deferred, or a combination of
both) (if any) granted to a Employee under an Incentive Compensation
Plan, as follows:
- An incentive compensation award granted under the KeyCorp
Annual Incentive Plan, the KeyCorp Short Term Incentive
Compensation Plan, the KeyCorp Management Incentive
Compensation Plan, and/or such other Employer-sponsored line
of business Incentive Compensation Plan which shall constitute
an incentive compensation award for the year in which the
award is earned (without regard to the actual time of
payment).
- An incentive compensation award granted under the KeyCorp Long
Term Incentive Compensation Plan ("LTIC Plan") with respect to
any multi-year performance period, which shall be deemed to be
for the last year of the multi-year period without regard to
the actual time of payment of the award. Accordingly, an
incentive compensation award granted under the LTIC Plan with
respect to the three-year performance period of 1993, 1994,
and 1995 will be deemed to be for 1995 (without regard to the
actual time of payment), and the entire Incentive Compensation
award under the LTIC Plan for that performance period will be
a LTIC Plan award for the year 1995.
- An incentive compensation award granted under the KeyCorp Long
Term Incentive Plan ("Long Term Plan") with respect to any
multi-year period which shall be deemed to be for the last
year of the multi-year performance period and for the year
immediately following such year (without regard to the actual
time of payment). Accordingly, an award granted under the Long
Term Plan with respect to the four-year performance period of
1998, 1999, 2000, and 2001 shall be deemed to be for the years
2001 and 2002, with one-half the award allocated to the year
2001, and one-half the award allocated to the year 2002.
- An incentive compensation award granted in the form of
restricted stock under the KeyCorp Amended and Restated 1991
Equity Compensation Plan with respect to any multi-year period
(but specifically excluding those awards applicable to the
2002-2003 multi-year period), which shall be deemed to be for
the year in which the award (grant) is made to the
Participant; provided, however, that only those shares of
restricted stock that have vested as of the Participant's
termination date shall be utilized for purposes of determining
the Participant's incentive compensation award. The fair
market value of such shares as of the date of the restricted
stock grant multiplied by the number of vested
shares as of the Participant's termination date shall
determine the value of such incentive compensation award for
purposes of calculating the Participant's Supplemental Pension
Benefit under the provisions of Article III of the Plan.
- Notwithstanding the foregoing, however, if at the time of the
Participant's termination date, the Participant maintains
shares of not forfeited restricted stock and such restricted
stock later vests in conjunction with the passage of time or
with the Corporation's attainment of certain performance
criteria, or otherwise, then as of such vesting date(s), the
Participant's Monthly Supplemental Pension Benefit shall be
recalculated to include such newly vested shares for purposes
of determining the value of the Participant's incentive
compensation award(s) in accordance with Article III of the
Plan."
2. ARTICLE II, SECTION 2.1(o) is amended to delete it in its entirety
and to substitute therefore the following:
"(o) "INCENTIVE COMPENSATION PLAN" shall mean the KeyCorp Management
Incentive Compensation Plan, the KeyCorp Annual Incentive Plan, the
KeyCorp Short Term Incentive Compensation Plan, the KeyCorp Long
Term Incentive Compensation Plan, the KeyCorp Long Term Incentive
Plan, the KeyCorp Amended and Restated 1991 Equity Compensation
Plan, and/or such other Employer or KeyCorp sponsored incentive
compensation plan that KeyCorp in its sole discretion determines
constitutes an "Incentive Compensation Plan" for purposes of this
Section 2.1(o), as may be amended from time to time."
3. ARTICLE II, SECTION 2.1(w) shall be added to the provisions of
Article II to include the term "Harmful Activity" as a new definition to the
Plan as follows:
"(w) "HARMFUL ACTIVITY" shall have occurred if the Participant shall
do any one or more of the following:
(i) Use, publish, sell, trade or otherwise disclose Non-Public
Information of KeyCorp unless such prohibited activity was
inadvertent, done in good faith and did not cause significant
harm to KeyCorp.
(ii) After notice from KeyCorp, fail to return to KeyCorp any
document, data, or thing in his or her possession or to which
the Participant has access that may involve Non-Public
Information of KeyCorp.
(iii) After notice from KeyCorp, fail to assign to KeyCorp all
right, title, and interest in and to any confidential or
non-confidential Intellectual Property which the Participant
created, in whole or in part, during employment with KeyCorp,
including, without limitation, copyrights, trademarks, service
marks, and patents in or to (or associated with) such
Intellectual Property.
(iv) After notice from KeyCorp, fail to agree to do any acts and
sign any document reasonably requested by KeyCorp to assign
and convey all right, title, and interest in and to any
confidential or non-confidential Intellectual Property which
the Participant created, in whole or in part, during
employment with KeyCorp, including, without limitation, the
signing of patent applications and assignments thereof.
(v) Upon the Participant's own behalf or upon behalf of any other
person or entity that competes or plans to compete with
KeyCorp, solicit or entice for employment or hire any KeyCorp
employee.
(vi) Upon the Participant's own behalf or upon behalf of any other
person or entity that competes or plans to compete with
KeyCorp, call upon, solicit, or do business with (other than
business which does not compete with any business conducted by
KeyCorp) any KeyCorp customer the Participant called upon,
solicited, interacted with, or became acquainted with, or
learned of through access to information (whether or not such
information is or was non-public) while the Participant was
employed at KeyCorp unless such prohibited activity was
inadvertent, done in good faith, and did not involve a
customer whom the Participant should have reasonably known was
a customer of KeyCorp.
(vii) Upon the Participant's own behalf or upon behalf of any other
person or entity that competes or plans to compete with
KeyCorp, after notice from KeyCorp, continue to engage in any
business activity in competition with KeyCorp in the same or a
closely related activity that the Participant was engaged in
for KeyCorp during the one year period prior to the
termination of the Participant's employment.
For purposes of this Section 2.1(w) the term:
"INTELLECTUAL PROPERTY" shall mean any invention, idea, product,
method of doing business, market or business plan, process, program,
software, formula, method, work of authorship, or other information,
or thing relating to KeyCorp or any of its businesses.
"NON-PUBLIC INFORMATION" shall mean, but is not limited to, trade
secrets, confidential processes, programs, software, formulas,
methods, business information or plans, financial information, and
listings of names (e.g., employees, customers, and suppliers) that
are developed, owned, utilized, or maintained by an employer such as
KeyCorp, and that of its customers or suppliers, and that are not
generally known by the public.
"KEYCORP" shall include KeyCorp, its subsidiaries, and its
affiliates."
4. Article III of the Plan shall be amended to include a new Section
3.5 Supplemental Pension Benefit Recalculation as a Result of Harmful Activity
as follows:
"3.5 SUPPLEMENTAL PENSION BENEFIT RECALCULATION AS A RESULT OF
HARMFUL ACTIVITY. Notwithstanding the foregoing provisions of
Section 2.1(n) of the Plan and this Article III, the Corporation
reserves the right at all times to recalculate a Participant's
Supplemental Pension Benefit, if it is determined that within six
months of the Participant's termination date the Participant has
engaged in any Harmful Activity, as that term is defined in
accordance with Section 2.1(w) of the Plan, which results in the
forfeiture of all or any portion of the Participant's restricted
share award(s) under the KeyCorp Amended and Restated 1991 Equity
Compensation Plan. Such recalculation shall relate back to the
Participant's original date of termination, and any Supplemental
Pension Benefit payment paid to the Participant in excess of such
recalculated Supplemental Pension Benefit amount shall be offset
against any future Supplemental Pension Benefit payments to be paid
to the Participant."
5. Except as otherwise amended herein, the Plan shall remain in full
force and effect.
IN WITNESS WHEREOF, KeyCorp has caused this Fifth Amendment to the Plan to
be executed by its duly authorized officer to be effective as of the 18th day of
March, 2004.
KEYCORP
By: /s/ Thomas E. Helfrich
---------------------------
Title: Executive Vice President