EXHIBIT 10.71
KEYCORP
SECOND SUPPLEMENTAL RETIREMENT BENEFIT PLAN
FOR KEY EXECUTIVES
PREAMBLE
The KeyCorp Second Supplemental Retirement Benefit Plan For Key Executives
(the "Plan"), is hereby established December 28, 2004 to be effective January 1,
2005. The Plan, as structured, is designed to provide an additional retirement
benefit for a certain select employee of KeyCorp that is in addition to the
December 31, 2004 frozen benefit to be provided under the KeyCorp Supplemental
Retirement Benefit Plan for Key Executives. It is the intention of KeyCorp and
it is the understanding of the employee covered under the Plan, that the Plan
constitutes a nonqualified retirement plan for a select group of employees, and
as such, the Plan is unfunded for tax purposes and for purposes of Title I of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA").
ARTICLE I
DEFINITIONS
For the purposes herein, the following terms shall have the meaning
indicated:
1.0(a) "AVERAGE INTEREST CREDIT" shall mean the average of the Interest
Credits (as defined in the Pension Plan) for the three (3) consecutive calendar
years ending with the year of termination.
1.0(b) "AVERAGE TREASURY RATE" shall mean the average of the Treasury
Rates (as defined in the Pension Plan) for the three (3) consecutive calendar
years ending with the year of termination.
1.1 "BOARD" shall mean the Board of Directors of KeyCorp as from time to
time constituted.
1.2 "CREDITED SERVICE" shall mean the same period of time as constitutes
Credited Service for that Participant under the KeyCorp Pension Plan (1989
Restatement) except that:
(a) It shall not be subject to a thirty-five (35) year maximum,
and
(b) It shall continue to accrue during periods of total and
permanent disability to the extent provided by Article VI
hereof.
1.3 "EFFECTIVE DATE" shall mean January 1, 2005.
1.4 "EMPLOYEE" shall mean any person actively employed by the Employer,
including officers, but not including directors unless a director is also an
officer or employee of the Employer, nor attorneys or other persons doing
independent professional work who are retained by the Employer.
1.5 "EMPLOYER" shall mean KeyCorp and all of its wholly owned
subsidiaries, each with respect to its own Employees.
1.6 "FINAL AVERAGE SALARY" shall mean the average of the annual Salary of
a Participant for the highest three (3) calendar years out of the last five (5)
calendar years preceding the Participant's termination of employment; if the
Participant has less than three (3) years of employment, the average shall be
for all of the Participant's years of employment. If the Participant is not
compensated for all or a part of a year in such period because of an absence,
the number of complete months in which the Participant received no compensation
during such year shall be disregarded in determining Final Average Salary.
1.7 "INCENTIVE COMPENSATION AWARD" shall mean an incentive compensation
award granted to a Plan Participant under the KeyCorp Annual Incentive Plan
and/or such other Employer-sponsored line of business incentive compensation
plans that KeyCorp in its sole discretion determines to be included herein for
purposes of determining a Participant's Incentive Compensation Award under the
Plan. For purposes of this Section 1.7 hereof, an Incentive Compensation Award
shall be deemed to be for the year in which the Incentive Compensation Award is
earned (without regard to the actual time of payment), provided, however, that
in no event shall more than one Incentive Compensation Award be included in
determining a Participant's Salary for any applicable year.
1.8 "PARTICIPANT" shall mean an Employee entitled to participate in this
Plan in accordance with Article II hereof.
1.9 "PENSION PLAN" shall mean the KeyCorp Cash Balance Pension Plan as
amended from time to time.
1.10 "PLAN" shall mean the KeyCorp Second Supplemental Retirement Benefit
Plan for Key Executives as contained herein or as amended from time to time.
1.11 "PLAN YEAR" shall mean the calendar year.
1.12 "SALARY" shall mean the base salary and Incentive Compensation Award
of an Employee exclusive of bonuses, overtime pay and other extra compensation.
For this purpose, the basic salary of an Employee shall include:
(a) Amounts that are the subject of a deferred compensation
agreement between the Employee and the Employer;
(b) Amounts that are the subject of a Salary Reduction Agreement
within the meaning of the KeyCorp Profit Sharing Plus Plan as
amended; and
(c) Amounts that are the subject of a salary reduction arrangement
between the Employee and the Employer in accordance with
Internal Revenue Code Section 125.
1.13 "SERVICE" shall mean the same period of time as constitutes Service
for that Participant under the Pension Plan.
ARTICLE II
PARTICIPATION
2.1 GENERAL RULE. Only those individuals designated by the Employer as a
Participant shall participate in the Plan.
2.2 REEMPLOYMENT OF PARTICIPANT. A Participant who has terminated his
employment and subsequently is reemployed shall become a Participant immediately
upon his reemployment provided that the Board again designates him for
participation in the Plan.
2.3 PROSPECTIVE CHANGES IN PARTICIPATION REQUIREMENTS. The Employer, in
its sole discretion, reserves the right to alter the requirements for
participation in Section 2.1 at any time and from time to time; provided,
however, that any such change shall not cause any Employee who became a Plan
Participant hereunder prior to the effective date of such change to become
ineligible hereunder by virtue of such change.
2.4 VESTING. A Participant shall be one-hundred percent (100%) vested in
benefits under this Plan upon completion of five (5) years of Credited Service.
ARTICLE III
RETIREMENT CONDITIONS
3.1 NORMAL RETIREMENT. The Normal Retirement Date of a Participant shall
be the earliest of:
(a) The first day of the month coinciding with or next following
the date he attains the age of sixty-five (65); or
(b) The first day of the month coinciding with or next following
the date that the Participant both attains the age of
sixty-two (62) and completes fifteen (15) years of Credited
Service.
3.2 DELAYED RETIREMENT DATE. A Participant may continue in the employment
of the Employer beyond his Normal Retirement Date, but, to the extend permitted
by applicable law, he may continue in the employment of the Employer beyond his
seventieth (70th) birthday only if agreed to by the Employer. To the extent
permitted by applicable law, a Participant continuing in employment beyond his
seventieth (70th) birthday shall retire from the employment of the Employer on
the first day of the month coinciding with or next following the end of the last
approved period of employment.
3.3 EARLY RETIREMENT DATE. A Participant may retire from employment of the
Employer prior to his Normal Retirement Date, on the first day of any month
coinciding with or following the date on which he has either attained the age of
sixty (60), or attained the age of fifty (50) and completed at least fifteen
(15) years of Credited Service.
ARTICLE IV
RETIREMENT ALLOWANCES
4.1 NORMAL RETIREMENT ALLOWANCE. Upon termination after his Normal
Retirement Date, a Participant shall receive a monthly allowance which shall
commence on the first day of the month coincident with or next following the
Participant's termination date in the form of a single life annuity, unless the
Participant elects in writing a minimum of thirty days prior to his or her
termination date, to receive payment of his or her benefit under a different
form of payment. The forms of payment from which a Participant may elect shall
be identical to those forms of payment specified in the Pension Plan, provided,
however, that the lump sum payment option available under the Pension Plan shall
not be available under this Plan. Such method of payment, once elected by the
Participant shall be irrevocable.
The amount of each such monthly retirement payable in the form of a single
life annuity allowance shall be equal to (a) plus (b) minus (c) as
follows:
(a) One-twelfth (1/12th) of seventy-five percent (75%) of his
Final Average Salary reduced by two (2) percentage points for
the number of years by which the Participant's total years of
Credited Service at his Normal Retirement Date is less than
twenty-five (25) years (rounded down to the nearest whole
year), multiplied by a fraction, the numerator of which is the
Participant's years of Credited Service earned prior to
January 1, 1988, and the denominator of which is the
Participant's total years of Credited Service at his Normal
Retirement Date.
(b) One-twelfth (1/12th) of sixty-five percent (65%) of his Final
Average Salary reduced by 2.6 percentage points for the number
of years by which the Participant's total years of Credited
Service at his Normal Retirement Date is less than twenty-five
(25) years (rounded down to nearest whole year), multiplied by
a fraction, the numerator of which is the Participant's years
of Credited Service earned after December 31, 1987, and the
denominator of which is the Participant's total Years of
Credited Service at his Normal Retirement Date.
(c) The sum of:
(i) His monthly accrued and vested retirement benefit under
the Pension Plan determined at his Normal Retirement
Date;
(ii) His monthly Primary Social Security Benefit as defined
in the Pension Plan; and
(iii) His monthly accrued and vested supplemental retirement
benefit under the KeyCorp Supplemental Retirement
Benefit Plan for Key Executives determined as of his
Normal Retirement Date.
4.2 DELAYED RETIREMENT ALLOWANCE. Upon termination after his Normal
Retirement Date, a Participant shall receive a monthly retirement allowance
which shall commence on the first day of the month coincident with or next
following the Participant's termination date, payable in the form of a single
life annuity, unless the Participant elects in writing a minimum of thirty days
prior to his or her retirement or termination date, to receive payment of his or
her benefit under a different form of payment. The forms of payment from which a
Participant may elect shall be identical to those forms of payment specified in
the Pension Plan, provided, however, that the lump sum payment option available
under the Pension Plan shall not be available under this Plan. Such method of
payment, once elected by the Participant shall be irrevocable.
The amount of each such monthly retirement allowance shall be computed in
the same manner as the Normal Retirement Allowance except that Final Average
Salary will be determined as of the Delayed Retirement Date. A Participant shall
not accrue additional Credited Service beyond his Normal Retirement Date, unless
the Participant has less than twenty-five (25) years of Credited Service; in
which case such Participant shall continue to accrue Credited Service (up to a
total of twenty-five (25) years), for purposes or reducing or eliminating the
short service reductions of Section 4.1(a) and (b). Credited Service accrued
after a Participant's Normal Retirement Date shall not be used in the multiplier
fractions of Section 4.1(a) and (b).
4.3 EARLY RETIREMENT ALLOWANCE. Upon retirement at his Early Retirement
Date, a Participant shall receive a monthly retirement allowance, which shall
commence on the first day of any month coinciding with his Early Retirement Date
payable in the form of a single life annuity, unless the Participant elects in
writing a minimum of thirty days prior to his or her retirement date to receive
payment of his or her benefit under a different form of payment. The forms of
payment from which a Participant may elect shall be identical to those forms of
payment specified in the Pension Plan, provided, however, that the lump sum
payment option available under the Pension Plan shall not be available under
this Plan. Such method of payment, once elected by the Participant shall be
irrevocable. The amount of each such monthly retirement allowance shall be equal
to the product of items (a), (b) and (c) below:
(a) A monthly retirement allowance determined in the same manner
as for retirement at his Normal Retirement Date except that:
(i) Credited Service shall be determined as if the
Participant had in fact continued in active employment
until his Normal Retirement Date; and
(ii) Final Average Salary shall be determined as of the date
of his actual retirement.
(b) The ratio that the Participant's Credited Service to the date
of his actual retirement bears to the Credited Service that he
would have had if he had continued in employment until his
Normal Retirement Date. For this purpose, the Normal
Retirement Date of a Participant shall be the earliest date on
which the Participant could have retired under Section 3.1.
(c) Actuarial reduction factors which take into account the
commencement of benefits prior to a Participant's Normal
Retirement Date. Such actuarial reduction factors shall be the
same factors as are then applicable under the Pension Plan
with respect to the commencement of benefits before a
Participant's Normal Retirement Date under the Pension Plan.
Notwithstanding the foregoing, in calculating a Participant's Early
Retirement Allowance under the terms of this Section 4.3, the Participant's
monthly retirement allowance at his or her Normal Retirement Date for purposes
of this Section 4.3 hereof shall be the Participant's monthly retirement
allowance under the Pension Plan as of the Participant's Normal Retirement Date.
In calculating this Normal Retirement Date benefit, if the Participant is not
eligible for, or chooses not to elect his or her monthly retirement allowance
under the provisions of Section 6.5(b) of the Pension Plan, such Participant's
Pension Plan benefit as of his or her termination date shall be increased for
purposes of this Plan with an imputed Average Interest Credit to reflect the
Participant's benefit at his or her Normal Retirement Date and shall be
converted to the form of a Single Life Annuity option using the Average Treasury
Rate and the GATT Mortality Table.
4.4 ACTUARIAL FACTORS. The same actuarial reduction factors and method of
calculating actuarial equivalence under the former KeyCorp Pension Plan (1989
Restatement) shall be applicable under this Plan. Any such optional method of
retirement payment shall be the actuarial equivalent of the actual dollar amount
of lifetime
retirement allowance otherwise payable from this Plan after adjustment for the
benefit payable from the Pension Plan and the Primary Social Security Benefit.
4.5 IMMEDIATE PAYMENT UPON NORMAL RETIREMENT DATE OF PARTICIPANT.
(a) A Participant meeting the age and service eligibility
requirements entitling a Participant to a Normal Retirement
Allowance or Delayed Retirement Allowance, shall receive an
immediate distribution of his or her Normal Retirement
Allowance or Delayed Retirement Allowance upon the
Participant's termination of employment.
(b) DEFERRED BENEFIT PAYMENT. A Participant who terminates his or
her employment with an Employer after meeting the age and
service requirements for an Early Retirement Allowance shall
receive an immediate distribution of his or her Early
Retirement Allowance, unless: (i) the Participant notifies
KeyCorp in writing his or her deferral election a minimum of
one year prior to the Participant's termination of employment,
(ii) the Participant specifies the future date on which such
benefit shall be distributed, (iii) the Participant's
requested deferral period is for a period of not less than
five years following the Participant's termination of
employment, (iv) the Participant's benefit commencement date
mirrors the benefit commencement date of the Participant's
benefit under the KeyCorp Supplemental Retirement Plan for Key
Executives, and (v) the Participant commences distribution of
his or her Plan benefit no later than the first day of the
month immediately following the Participant's sixty-fifth
(65th) birthday. The election to defer, once made by the
Participant, shall be irrevocable.
Notwithstanding the foregoing, in the case of an "unforeseeable
emergency", upon written application by the Participant to KeyCorp, KeyCorp may
accelerate the distribution of the Participant's deferred benefit. For purposes
of this Section 4.6, the term "unforeseeable emergency" shall mean a severe
financial hardship to the Participant resulting from a sudden and unexpected
illness or accident of the Participant, the Participant's spouse, or the
Participant's dependent (as defined in Section 152(a) of the Code), the loss of
the Participant's property due to casualty, or such other similar extraordinary
and unforeseeable circumstances arising as a result of events beyond the control
of the Participant. The determination of an "unforeseeable emergency" and the
ability of KeyCorp to accelerate the Participant's benefit shall be determined
in accordance with the requirements of Section 409A of the Code and applicable
regulations issued thereunder.
4.6 PAYMENT LIMITATION FOR KEY EMPLOYEES. Notwithstanding any other
provision of the Plan to the contrary, in the event that the Participant
constitutes a "key" employee of KeyCorp (as that term is defined in accordance
with Section 416(i) of the Code without regard to paragraph (5) thereof),
distributions of the Participant's Benefit may not be made before the date which
is six months after the Participant's date of separation from service (or, if
earlier, the date of death of the Participant). The term "separation from
service" shall be defined for Plan purposes in accordance with the requirements
of Section 409A of the Code and applicable regulations issued thereunder.
ARTICLE V
DEATH BENEFITS
5.1 DEATH PRIOR TO RETIREMENT.
(a) If a Participant dies in active employment after completion of
five or more years of Credited Service and is survived by a
surviving spouse, a monthly retirement allowance shall be paid
to the Participant's surviving spouse commencing on the first
day of the month coincident with or next following the
Participant's date of death. Each such monthly retirement
allowance shall equal 50 percent of the monthly retirement
allowance to which the Participant would have been entitled
under the provisions of Section 4.1 hereof, had the
Participant retired as of the Participant's Normal Retirement
Date. Such death benefit shall be paid in the form of a single
life annuity and shall be subject to distribution on and after
the Participant's earliest retirement date.
For purposes of calculating the death benefit contained within
this Section 5.1(a) only, the following shall apply:
(i) The Participant's Primary Social Security Benefit shall
be calculated as if the Participant had retired as of
his Normal Retirement Date;
(ii) The Participant's Pension Plan benefit shall be
calculated under the provisions of Article IV of the
Pension Plan, as if the Participant had died on his
Normal Retirement Date, with such Pension Plan benefit
being increased for purposes of this Section 5.1(a) with
an imputed Average Interest Credit to reflect the
Participant's Normal Retirement Date monthly retirement
benefit converted to a single life annuity option using
the Average Treasury Rate and Gatt Mortality Tables; and
(iii) The monthly retirement allowance paid to the
Participant's spouse upon the Participant's death shall
be reduced if paid prior to the Participant's Normal
Retirement Date using those actuarial factors as are
applicable under the KeyCorp Pension Plan (1989
Restatement).
(b) If a Participant dies in active employment but after becoming
eligible for either an Early Retirement Allowance or a Normal
Retirement Allowance, and is survived by his spouse, a monthly
retirement allowance shall be paid to his surviving spouse
commencing on the first day of the month coincident with or
next following his date of death and continuing on the first
day of each month thereafter during his spouse's lifetime.
Each such monthly retirement allowance shall equal
seventy-five percent (75%) of the monthly retirement allowance
to which the Participant would have been entitled had he
retired on his date of death.
For the purpose of calculating this death benefit only, the
following special rules apply with respect to the calculation
of the Primary Social Security Benefit which the Participant
would have been entitled to receive:
(i) If both the Participant had attained his sixty-second
(62nd) birthday and his spouse had attained her sixtieth
(60th) birthday on the Participant's date of death, then
the Primary Social Security Benefit to which the
Participant would have been entitled had he retired on
his date of death instead of dying and then commenced
receiving Social Security benefits will be applied.
(ii) In all other cases, the Primary Social Security Benefit
shall be deemed to be zero.
5.2 DEATH AFTER COMMENCEMENT OF RETIREMENT ALLOWANCE. All rights to any
benefits under the Plan will cease upon the death of any Participant for whom
retirement allowance under the Plan has already begun, other than as otherwise
provided by the retirement form of payment elected by the Participant.
ARTICLE VI
DISABILITY BENEFITS
6.1 TOTAL AND PERMANENT DISABILITY DEFINED. Total and permanent disability
shall mean a "disability" as defined in accordance with Section 409A(a)(2)(C) of
the Code, as well as the requirements of the Pension Plan, which after the
expiration of the waiting period provided by law, entitles the Participant to
receive disability benefit payments in accordance with Title II of the United
States Social Security Act.
6.2 TERMINATION PRIOR TO FIVE (5) YEARS OF CREDIT SERVICe. A Participant
who terminates his employment with the Employer because of total and permanent
disability and who has completed less than five (5) years of Credited Service at
such time shall not thereby be entitled to any benefits from the Plan.
6.3 TERMINATION AFTER FIVE (5) YEARS OF CREDITED SERVICE. A Participant
who terminates his employment with the Employer because of total and permanent
disability and who has completed five (5) or more years of Credited Service
shall be subject to whichever of the following subsections shall be applicable:
(a) If he shall (after the applicable statutory waiting period) be
continuously disabled and entitled to Social Security
disability benefits until his attainment of age sixty-five
(65), then he shall receive a monthly retirement allowance
from this Plan commencing upon the first day of the month
coincident with or next following the attainment of his
sixty-fifth (65th) birthday and payable on the first day of
each month thereafter for his remaining lifetime. Such monthly
retirement allowance shall be determined in the same manner as
for retirement at his Normal Retirement Date, except that:
(i) Credited Service shall be determined as if the
Participant had in fact continued in active employment
until his sixty-fifth (65th) birthday; and
(ii) Final Average Salary shall be determined as of the date
of his actual termination of employment due to
disability.
(b) If he shall (after the applicable statutory waiting period)
not be continually disabled and entitled to Social Security
disability benefits until his attainment of age sixty-five
(65), he shall not be entitled to a disability benefit from
this Plan, but shall be subject to the provisions of Section
6.4 hereof.
6.4 RECOVERY FROM DISABILITY PRIOR TO NORMAL RETIREMENT DATE. If a
Participant who became totally and permanently disabled thereafter recovers from
such disability prior to attaining age sixty-five (65) (as evidenced solely by
the fact that he is no longer eligible for Social Security disability benefits),
then his benefits from this Plan shall be determined as follows:
(a) If he returns to employment with the Employer upon such
recovery, then he shall not be entitled to any disability
benefits in accordance with this Article VI. For the purpose
of determining his entitlement to, and amount of, benefits
under any other provision of this Plan, however, his period of
Credited Service and Service shall include the period during
which he was totally and permanently disabled.
(b) If he fails to return to employment with the Employer upon
such recovery, then he shall not be entitled to any disability
benefits in accordance with this Article VI. This shall not,
however, deprive him of the benefits, if any, to which he is
otherwise entitled under this Plan based upon his age,
Credited Service, Service and Final Average Salary, as of his
termination of employment due to disability.
ARTICLE VII
ADMINISTRATION
7.1 CONTRIBUTIONS BY PARTICIPANTS. No contributions by Participants shall
be required or permitted under this Plan.
7.2 CONTRIBUTIONS BY EMPLOYER.
(a) This Plan is intended to be an unfunded plan maintained
primarily to provide deferred compensation benefits for a
select group of management or highly compensated employees.
(b) The Employer shall be responsible for the payment of all
benefits provided under the Plan. At its discretion, the
Employer may establish one or more trusts, with such trustees
as the Employer may approve for the purpose of providing for
the payment of such benefits. Such trust or trusts may be
irrevocable, but the assets thereof shall be subject to the
claims of the Employer's creditors. To the extent any benefits
provided under the Plan are actually paid from any such trust,
the Employer shall have no further obligation with respect
thereto, but to the extent not so paid, such benefits shall
remain the obligations of, and shall be paid by, the Employer.
Employer's obligation under the Plan shall be that of an
unfunded and unsecured promise of Employer to pay money in the
future.
7.3 DESIGNATION AND DUTIES OF ADMINISTRATOR. The Board shall designate the
administrator of this Plan who shall administer this Plan and who shall serve
until the Board designates another administrator. All decisions of such
administrator with respect to the administration of this Plan shall be final and
binding upon the Employer, the Participants and all other parties hereto.
7.4 AMENDMENT. The Board shall have the right at any time, and from time
to time, to amend, in whole or in part, any or all of the provisions of this
Plan. However, no such amendment shall reduce or eliminate any benefit to which
the Participant would then be entitled to receive (based upon his age, Credited
Service, Service and Final Average Salary as of the date of such amendment) as
of the date of such amendment.
7.5 PLAN TERMINATION. The Board shall have the right at any time to
terminate this Plan. However, no such termination shall reduce or eliminate any
benefit to which the Participant would then be entitled to receive (based upon
his age, Credited Service, Service and Final Average Salary as of the date of
such termination) as of the date of such termination.
7.6 SECTION 409A COMPLIANCE. The Plan shall not be amended or terminated
if such amendment or termination would result in a violation of Section 409A of
the Code.
ARTICLE VIII
CLAIMS PROCEDURES
8.1 CLAIM. The Committee shall establish rules and procedures to be
followed by Participants and Beneficiaries in (a) filing claims for benefits,
and (b) for furnishing and verifying proofs necessary to establish the right to
benefits in accordance with the Plan, consistent with the remainder of this
Article. Such rules and procedures shall require that claims and proofs be made
in writing and directed to the Committee.
8.2 REVIEW OF CLAIM. The Committee shall review all claims for benefits.
Upon receipt by the Committee of such a claim, it shall determine all facts
which are necessary to establish the right of the claimant to benefits under the
provisions of the Plan and the amount thereof as herein provided within sixty
(60) days of receipt of such claim. If prior to the expiration of the initial
sixty (60) day period, the Committee determines additional time is needed to
come to a determination on the claim, the Committee shall provide written notice
to the Participant, Beneficiary or other claimant of the need for the extension,
not to exceed a total of one hundred eighty (180) days from the date the
application was received.
8.3 NOTICE OF DENIAL OF CLAIM. In the event that any Participant,
Beneficiary or other claimant claims to be entitled to a benefit under the Plan,
and the Committee determines that such claim should be denied in whole or in
part, the Committee shall, in writing, notify such claimant that the claim has
been denied, in whole or in part, setting forth the specific reasons for such
denial. Such notification shall be written in a manner reasonably expected to be
understood by such claimant and shall refer to the specific sections of the Plan
relied on, shall describe any additional material or information necessary for
the claimant to perfect the claim and an explanation of why such material or
information is necessary, and where appropriate, shall include an explanation of
how the claimant can obtain reconsideration of such denial.
8.4 RECONSIDERATION OF DENIED CLAIM.
(a) Within a sixty (60) days after receipt of the notice of the
denial of a claim, such claimant or duly authorized
representative may request, by mailing or delivery of such
written notice to the Committee, a reconsideration by the
Committee of the decision denying the claim. If the claimant
or duly authorized representative fails to request such a
reconsideration within such sixty (60) day period, it shall be
conclusively determined for all purposes of this Plan that the
denial of such claim by the Committee is correct. If such
claimant or duly authorized representative request a
reconsideration within such sixty (60) day period, the
claimant or duly authorized representative shall have thirty
(30) days after filing a request for reconsideration to submit
additional written material in support of the claim, review
pertinent documents, and submit issues and comments in
writing.
(b) After such reconsideration request, the Committee shall
determine within sixty (60) days of receipt of the claimant's
request for reconsideration whether such denial of the claim
was correct and shall notify such claimant in writing of its
determination. The written
notice of decision shall be in writing and shall include
specific reasons for the decision, written in a manner
calculated to be understood by the claimant, as well as
specific references to the pertinent Plan provisions of which
the decision is based. In the event of special circumstances
determined by the Committee, the time for the Committee to
make a decision may be extended by an additional sixty (60)
days upon written notice to the claimant prior to the
commencement of the extension. All findings, decisions, and
determinations of any kind made by the Committee shall not be
modified unless the Committee has acted in an arbitrary and
capricious manner. Subject to the requirements of the law, the
Committee shall be the sole judge of the standard of proof
required for any claim for benefits, and any determination of
eligibility or amount or form of a Plan benefit. All decisions
made by the Committee shall be binding on the claimant and
upon all other persons. If the Participant or Beneficiary
shall not file written notice with the Committee at the times
set forth above, such individual shall have waived all
benefits under the Plan other than as already provided, it
any.
8.5 EMPLOYER TO SUPPLY INFORMATION. To enable the Committee to perform its
functions, the Employer shall supply full and timely information to the
Committee of all matters relating to the retirement, death or other cause for
termination of service of all Participants, and such other pertinent facts as
the Committee may require.
ARTICLE IX
MISCELLANEOUS
9.1 HEADINGS AND SUBHEADINGS. The headings and subheadings in the Plan
have been inserted for convenience of reference only and are to be ignored in
any construction of the provisions hereof.
9.2 GENDER AND NUMBER. Whenever any words are used herein in the masculine
gender they shall be construed as though they were also used in the feminine
gender in all cases where they would so apply, and whenever any words are used
herein in the singular form they shall be construed as though they were also
used in plural form in all cases where they would so apply.
9.3 CONSTRUCTION OF PLAN. This Plan shall be construed according to the
laws of the State of New York and all provisions hereof shall be administered
according to he laws of such State.
9.4 EMPLOYEE'S RIGHTS. Neither the establishment of this Plan, nor any
modification thereof, nor any modification thereof, nor the payment of any
benefits, shall be construed as giving to an Employee or other person, any legal
or equitable right against the Employer, or any officer or Employee thereof,
except as herein provided. Under no circumstances shall the terms of employment
of an Employee be modified or in any way affected hereby.
9.5 VESTED INTEREST. No Plan Participant or other Employee shall have a
vested interest with respect to this Plan except as specifically provided
herein.
9.6 RECEIPT OR RELEASE. Any payment to an Employee, contingent annuitant,
beneficiary, or to their legal representatives, in accordance with the
provisions of the Plan, shall to the extent thereof be in full satisfaction of
all claims hereunder against the Employer, who may require such Employee,
contingent annuitant, beneficiary or legal representative, as a condition
precedent to such payment, to execute a receipt and release therefore in such
form as shall be determined by the Employer.
9.7 SPENDTHRIFT CLAUSE. Except insofar as may be contrary to any
applicable law, no payment of any benefit under the Plan shall be assignable and
no such payment or contribution shall be subject to the claims of any creditor.
9.8 FACILITY OF PAYMENTS. If any Employee, contingent annuitant or
beneficiary is a minor or is, in the judgment of the administrator, otherwise
legally incapable of personally receiving and giving a valid receipt for any
payment due him under the Plan, the administrator may, unless and until claim
shall have been made by a duly appointed guardian or legal representative of
such person, make such payment or any part thereof to such person's spouse,
child, parent, brother or sister, or other person deemed by the administrator to
have incurred expense for or assumed responsibility for the expenses of such
person. Any payment so made shall be in complete discharge of any liability
under the Plan for such payment.
9.9 DELEGATION OF AUTHORITY BY THE EMPLOYER. Whenever the Employer, under
the terms of this Agreement, is permitted or required to do or perform any act
or matter or thing, it shall be done and performed by any officer thereunto duly
authorized by its Board of Directors.
ARTICLE X
COMPLIANCE WITH
SECTION 409A CODE
The Plan is intended to provide for the deferral of compensation in
accordance with the provisions of Section 409A of the Code and regulations and
published guidance issued pursuant thereto. Accordingly, the Plan shall be
construed in a manner consistent with those provisions and may at any time be
amended in the manner and to the extent determined necessary or desirable by
KeyCorp to reflect or otherwise facilitate compliance with such provisions with
respect to amounts deferred on and after January 1, 2005, including as
contemplated by Section 855(f) of the American Jobs Creation Act of 2004.
Notwithstanding any provision of the Plan to the contrary, no otherwise
permissible election or distribution shall be made or given effect under the
Plan that would result in early taxation or assessment of penalties or interest
of any amount under Section 409A of the Code.
Notwithstanding any provision of the Plan to the contrary, Benefits shall
not be distributed to a Participant earlier than:
(a) the Participant's separation from service as determined by the
Secretary of the Treasury (except as provided below with
respect to a key employee of KeyCorp);
(b) upon the occurrence to the Participant, the Participant's
spouse, or the Participant's dependent an unforeseeable
emergency as defined in Section 409A(a)(2)(B)(ii) of the Code.
If it is determined that a Participant constitutes a key employee (as
defined in Section 416(i) of the Code without regard to paragraph (5) thereof)
of KeyCorp, the Participant shall not commence the distribution of his or her
benefits before the date which is six months after the date of the Participant's
separation from service (or, if earlier, the date of death of the Participant).
IN WITNESS WHEREOF, KeyCorp has caused this KeyCorp Second Supplemental
Retirement Benefit Plan for Key Executives to be executed by its duly authorized
officer this 28th day of December, to be effective as of January 1, 2005.
KEYCORP
By: /s/ Thomas E. Helfrich
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Title: Executive Vice President