EXHIBIT 10.34
KEYCORP
SECOND DEFERRED COMPENSATION PLAN
ARTICLE I
The KeyCorp Second Deferred Compensation Plan (the "Plan"), is hereby
established December 28, 2004, to be effective January 1, 2005. The Plan, as
structured, is designed to provide a certain select group of employees of
KeyCorp with the opportunity to defer their compensation to the Plan. It is
the intention of KeyCorp and it is the understanding of the employees covered
under the Plan, that the Plan constitutes a nonqualified deferred compensation
plan for a select group of KeyCorp 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 II
DEFINITIONS
2.1 MEANING OF DEFINITIONS. For the purposes of this Plan, the
following words and phrases shall have the meanings hereinafter set forth,
unless a different meaning is clearly required by the context:
(a) "BENEFICIARY" shall mean the person, persons or entity entitled
under Article VII to receive any Plan benefits payable after a
Participant's death.
(b) "BOARD" shall mean the Board of Directors of KeyCorp, the Board's
Compensation Committee, or any other committee designated by the
Board or subcommittee designated by the Board's Compensation
Committee.
(c) "CHANGE OF CONTROL" shall be deemed to have occurred if under a
rabbi trust arrangement established by KeyCorp ("Trust"), as such
Trust may from time to time be amended or substituted, the
Corporation is required to fund the Trust because a "Change of
Control", as defined in the Trust, has occurred.
(d) "CODE" shall mean the Internal Revenue Code of 1986, as amended
from time to time, together with all regulations promulgated
thereunder. Reference to a section of the Code shall include such
section and any comparable section or sections of any future
legislation that amends, supplements, or supersedes such section.
(e) "COMMON STOCK ACCOUNT" shall mean the investment account
established under the Plan for bookkeeping purposes in which a
Participant may elect to have his or her Participant Deferrals
credited. Participant Deferrals to the Common Stock Account shall
be credited based on a bookkeeping allocation of KeyCorp Common
Shares (both whole and fractional rounded to the nearest one-
hundredth of a share), which shall be equal to the amount of
Participant Deferrals invested by the Participant in the Common
Stock Account. The Common Stock Account shall also reflect on a
bookkeeping basis all dividends, gains, and losses attributable to
such Common Shares. All Corporate Contributions and all
Participant Deferrals credited to the Common Stock Account shall be
based on the New York Stock Exchange's closing price for such
Common Shares as of the day such Participant Deferrals are credited
to the Participants' Plan Accounts.
(f) "COMPENSATION" of a Participant for any Plan Year or any partial
Plan Year shall mean the entire amount of base salary paid to such
Participant during such period by reason of his or her employment
with an Employer, including any base salary which would have been
paid except for (1) the Participant's written deferral of such
Compensation to this Plan during the Plan Year, (2) the
Participant's deferral of such Compensation to the KeyCorp 401(k)
Savings Plan and the KeyCorp Excess 401(k) Savings Plan, and/or (3)
the Participant's participation in the KeyCorp Flexible Benefits
Plan and/or transportation reimbursement plan.
(g) "CORPORATE CONTRIBUTIONS" shall mean the amount that an Employer
has agreed to contribute on a bookkeeping basis to the
Participant's Plan Account in accordance with the provisions of
Article V of the Plan.
(h) "CORPORATION" shall mean KeyCorp, an Ohio corporation, its
corporate successors, and any corporation or corporations into or
with which it may be merged or consolidated.
(i) "DEFERRAL PERIOD" shall mean each Plan Year, provided however, that
a Participant's initial Deferral Period shall be from his or her
first day of participation in the Plan through the last day of the
applicable Plan Year.
(j) "DETERMINATION DATE" shall mean the last day of each calendar
month.
(k) "DISABILITY" shall mean (1) the physical or mental disability of a
permanent nature which prevents a Participant from performing the
duties such Participant was employed to perform for his or her
Employer when such disability commenced, (2) qualifies for
disability benefits under the federal Social Security Act within 30
months following the Participant's disability, and (3) qualifies
the Participant for disability coverage under the KeyCorp Long Term
Disability Plan. In addition to the foregoing, the disability
requirements addressed in Section 409A of the Code are incorporated
into the provisions of this definition.
(l) "EARLY RETIREMENT" shall mean the Participant's retirement from
employment with an Employer on or after the Participant's
attainment of age 55 and completion of a minimum of five years of
Vesting Service, but prior to the Participant's Normal Retirement
Date.
(m) "EMPLOYEE" shall mean a common law employee who is employed by an
Employer.
(n) "EMPLOYER" shall mean the Corporation and any of its subsidiaries,
unless specifically excluded as an Employer for Plan purposes by
written action of an officer of the Corporation. An Employer's
participation shall be subject to all conditions and requirements
made by the Corporation, and each Employer shall be deemed to have
appointed the Plan Administrator as its exclusive agent under the
Plan as long as it continues as an Employer.
(o) "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
the Corporation to accelerate the Participant's distribution of
Participant Deferrals shall be determined in accordance with the
requirements of Section 409A of the Code and applicable regulations
issued thereunder.
(p) "INCENTIVE COMPENSATION" shall mean the incentive compensation
awarded to a Participant under an Incentive Compensation Plan.
(q) "INCENTIVE COMPENSATION DEFERRALS" shall mean a percentage or whole
dollar amount of any Incentive Compensation payable to a
Participant during the applicable Plan Year, which the Participant
has elected in accordance with his or her Participation Agreement
to defer under this Plan.
(r) "INCENTIVE COMPENSATION PLAN" shall mean a line of business or
management incentive compensation plan that is sponsored by KeyCorp
or an affiliate of KeyCorp that the Corporation has determined
constitutes an Incentive Compensation Plan for purposes of the
Plan.
(s) "INTEREST BEARING ACCOUNT" shall mean the investment account
established under the Plan for bookkeeping purposes in which a
Participant may elect to have his or her Participant Deferrals
credited. Participant Deferrals invested for bookkeeping purposes
in the Interest Bearing Account shall be credited with earnings as
of each Determination Date based on the effective annual yield of
the average of Moody's Average Corporate Bond Yield Index for the
previous calendar month increased by 50 basis points. In the event
that Moody's Investor Services Inc. ceases to publish
such Index (or any successor publisher thereto) the Board shall
select a substantially similar index to be used in crediting
earnings under the Interest Bearing Account.
(t) "INVESTMENT ACCOUNTS" shall collectively mean those investment
accounts established under the Plan for bookkeeping purposes in
which a Participant may elect to have his or her Participant
Deferrals credited. Investment Accounts shall include the Plan's
(1) Interest Bearing Account, (2) Common Stock Account, and (3)
Investment Funds.
(u) "INVESTMENT FUNDS" shall mean those investment accounts established
under the Plan for bookkeeping purposes in which a Participant may
elect to have his or her Participant Deferrals credited and which
mirror the investment funds established in accordance with the
KeyCorp 401(k) Savings Plan ("Savings Plan") as may be amended from
time to time, provided, however, that the Savings Plan's
Corporation Stock Fund, for Plan purposes, shall be excluded from
the definition of Investment Funds. Participant Deferrals invested
for bookkeeping purposes in the Investment Funds shall be credited
on a bookkeeping basis with those earnings, gains, and losses
experienced by the investment funds.
(v) "NORMAL RETIREMENT" shall mean the Participant's retirement under
the KeyCorp Cash Balance Pension Plan on or after the Participant's
Normal Retirement Date.
(w) "PARTICIPANT" shall mean an Employee who meets the eligibility
requirements set forth in Section 3.1(a) and who becomes a Plan
Participant pursuant to Section 3.1(b) or Section 3.1(c) of the
Plan.
(x) "PARTICIPATION AGREEMENT" shall mean the written agreement
submitted by the Participant to the Corporation, which contains, in
pertinent part, the Participant's deferral commitment for the
applicable Deferral Period, the Participant's investment
instructions, and the distribution option for such Participant
Deferrals. Participants' Participation Agreements for Salary
Deferrals shall be provided to the Corporation by no later than the
close of the year prior to the year in which the deferred salary is
earned by the Participant. Participants' Participation Agreements
for Incentive Compensation Deferrals shall be provided to the
Corporation by no later than the close of the year prior to the
year in which such Incentive Compensation is earned by the
Participant or as otherwise permitted under Section 409A of the
Code and applicable regulations.
(y) "PARTICIPANT DEFERRALS" shall mean those Incentive Compensation
Deferrals and Salary Deferrals the Participant has elected to defer
under this Plan for each applicable Deferral Period.
(z) "PLAN" shall mean the KeyCorp Second Deferred Compensation Plan
with all amendments hereafter made.
(aa) "PLAN ACCOUNT" shall mean those bookkeeping accounts established by
the Corporation for each Plan Participant, which shall reflect
Corporate Contributions and Participant Deferrals invested for
bookkeeping purposes in the Plan's Investment Accounts with all
earnings, dividends, gains, and losses thereon. Plan Accounts
shall not constitute separate Plan funds or separate Plan assets.
Neither the maintenance of, nor the crediting of amounts to such
Plan Accounts shall be treated (i) as the allocation of any
Corporation assets to, or a segregation of any Corporation assets
in any such Plan Accounts, or (ii) as otherwise creating a right in
any person or Participant to receive specific assets of the
Corporation. Benefits under the Plan shall be paid from the
general assets of the Corporation.
(bb) "PLAN YEAR" shall mean the calendar year.
(cc) "RETIREMENT" shall mean the termination of a Participant's
employment under circumstances in which the Participant begins to
receive an Early Retirement or Normal Retirement Date benefit under
the KeyCorp Cash Balance Pension Plan.
(dd) "SALARY DEFERRALS" shall mean the percentage or whole dollar amount
of a Participant's annual Compensation, which the Participant has
elected pursuant to his or her Participation Agreement to defer to
the Plan.
(ee) "TERMINATION" shall mean the voluntary or involuntary and permanent
termination of a Participant's employment from his or her Employer
and any other Employer, whether by resignation or otherwise, but
shall not include the Participant's Retirement or termination as a
result of Disability.
(ff) "TERMINATION UNDER LIMITED CIRCUMSTANCES" shall mean a
Participant's termination of employment from the Employer (i)
within two years after a Change of Control under circumstances in
which the Participant is entitled to severance benefits or salary
continuation or similar benefits under a Change of Control
agreement, employment agreement, or severance or separation pay
plan, (ii) Normal Retirement, (iii) Early Retirement with the
approval of the Compensation Committee in its sole discretion, or
(iv) due to Disability or death.
2.2 ADDITIONAL REFERENCE. All other words and phrases used herein
shall have the meaning given them in the KeyCorp Cash Balance Pension Plan,
unless a different meaning is clearly required by the context.
2.3 PRONOUNS. The masculine pronoun wherever used herein includes the
feminine in any case so requiring, and the singular may include the plural.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 ELIGIBILITY AND PARTICIPATION.
(a) ELIGIBILITY. An Employee shall be eligible to participate in the
Plan if (1) the Employee is a Participant in an Incentive
Compensation Plan, (2) the Employee is employed in a job grade (or
job grade equivalent) 86 and above, and (3) the Corporation selects
such Employee to participate in the Plan. Notwithstanding the
foregoing provisions of this Section 3.1(a), all Participants in
the KeyCorp Deferred Compensation Plan as of December 31, 2004 may
elect to participate in this Plan regardless of the Participant's
job grade (or job grade equivalent).
(b) PARTICIPATION. An Employee meeting the eligibility criteria of
Section 3.1(a) may elect to participate in the Plan by submitting a
Participation Agreement to the Corporation prior to the beginning
of the applicable Deferral Period.
(c) MID-YEAR PARTICIPATION. When an Employee first becomes eligible to
participate in the Plan during a Deferral Period, the Employee
shall submit a Participation Agreement to the Corporation within
thirty days (30) of the date that the Corporation first notifies
the Employee of his or her Plan eligibility. Such Participation
Agreement will become effective only if it is provided to the
Corporation within 30 days of the Participant's notice of Plan
eligibility.
3.2 DEFERRAL LIMITATIONS. The following Participant Deferral
limitations shall apply for each Deferral Period:
(a) SALARY DEFERRALS. A Participant whose Compensation equals or
exceeds $160,000 as of January 1 of the applicable Plan Year may
defer no less than one hundred twenty-five dollars ($125) on a per-
pay basis and no more than 50% of the Participant's Compensation on
a per-pay basis during the applicable Deferral Period.
(b) INCENTIVE COMPENSATION DEFERRALS. A Participant may defer no less
than three thousand dollars ($3,000) and no more than 100% of any
Incentive Compensation which becomes payable to the Participant
during the applicable Deferral Period.
3.3 COMMITMENT LIMITED BY TERMINATION, RETIREMENT, DISABILITY OR DEATH.
As of the Participant's Termination date, Retirement date, date of Disability
or date of death, all Participant Deferrals under the Plan shall cease.
3.4 MODIFICATION OF DEFERRAL COMMITMENT. Except as provided in Section
6.1(b) below, a Participant's deferral commitment as evidenced by his or her
Participation Agreement for the applicable Deferral Period shall be
irrevocable.
3.5 CHANGE IN EMPLOYMENT STATUS. If the Corporation determines that a
Participant's performance is no longer at a level that deserves to be rewarded
through participation in the Plan, but does not terminate the Participant's
employment with the Employer, the Participant's existing Participation
Agreement shall terminate at the end of the Deferral Period, and no new
Participation Agreement may be made by such Participant.
3.6 OPENING ACCOUNT BALANCE. Effective January 1, 2005, Participants
in the frozen KeyCorp Deferred Compensation Plan who as of December 31, 2004
were not vested in all or any portion of those KeyCorp Deferred Compensation
Plan corporate contributions allocated to their plan account shall have such
allocated but not vested corporate contributions on a bookkeeping basis,
transferred to the Plan and reflected in a bookkeeping opening account balance
("Opening Account Balance") established for the Participant. Such Opening
Account Balance shall be invested on a bookkeeping basis in the Plan's
Corporation Stock Fund, and shall be credited with all earnings, gains, and
losses attributable to the investment performance of such Fund. The value of
the Participant's Opening Account Balance shall be added to and shall become a
part of such Participant's Plan benefit which shall be payable in accordance
with the terms of this Plan, provided, however, that the Participant shall
receive distribution of his or her Opening Account Balance in accordance with
the distribution instructions contained within the Participant's participation
agreement under the KeyCorp Deferral Compensation Plan for the applicable
deferral period. The establishment of the Participant's Plan Opening Account
Balance shall terminate the Participant's entitlement to such transferred
benefit under the frozen KeyCorp Deferred Compensation Plan.
3.7 ROLLOVERS. The Plan may accept on behalf of a Participant, a
rollover of the Participant's bookkeeping account balance from such other
deferred compensation plan of the Employer in which the Participant also
participates. The bookkeeping account balance so rolled shall be known as plan
transfer contributions ("Plan Transfer Contributions"). The Participant's Plan
Transfer Contributions shall be credited to the Participant's Plan Account on a
bookkeeping basis in such a manner as the Corporation shall be able to
separately identify such Plan Transfer Contributions and determine the net
gains or losses attributable thereto. Such Plan Transfer Contributions shall,
at all times, be invested in the Plan's Common Stock Account and shall not be
subject to the Participant's investment direction or diversification. Plan
Transfer Contributions shall be fully vested under the Plan and shall be
subject to the distribution requirements contained within the Participant's
Rollover Election Form provided, however, that such Plan Transfer Contributions
must be deferred under the Plan for a minimum of five (5) years from the date
of the rollover regardless of the Participant's termination, retirement, or
distribution instructions contained in the Participant's Rollover Election
Form, and further, must conform with subsequent deferral election requirements
mandated under Section 409A of the Code.
3.8. PLAN TRANSFERS. Participants may elect to transfer vested
performance awards (other than stock option awards) granted under a KeyCorp
Equity Compensation Plan to the Plan, provided, the Participant's election to
transfer such vested award is made in accordance with the requirements of the
grant agreement under which the award was issued and in accordance with the
requirements of Section 409A of the Code. Transferred awards shall be subject
to full investment diversification if cash based, and transferred awards shall
be invested in the in the Plan's Common Stock Account if equity based. Awards
invested in the Plan's Common Stock Account will not be subject to investment
direction or diversification. Transferred awards shall be separately
maintained under the Plan.
ARTICLE IV
PARTICIPANT DEFERRALS
4.1 PLAN ACCOUNT. All Participant Deferrals and Corporate
Contributions shall be credited on a bookkeeping basis to a Plan Account
established in the Participant's name. Separate sub-accounts may be
established to reflect the Participant's investment elections, with all
earnings, gains or losses attributable to such elections.
4.2 INVESTMENT OF PARTICIPANT DEFERRALS. Subject to the provisions of
Section 4.3 hereof, each Participant shall direct the manner in which his or
her Participant Deferrals are to be invested for bookkeeping purposes under the
Plan. All Participant Deferrals may be invested for bookkeeping purposes in
any one or more of the Plan's Investment Accounts, in such amounts, as the
Participant shall select. Subject to the provisions of Section 4.4 hereof,
Participants may modify their investment elections at such times and in such
manner as permitted by the Corporation.
4.3 COMPLIANCE WITH CORPORATION'S STOCK OWNERSHIP GUIDELINES.
Notwithstanding the foregoing provisions of Section 4.2 hereof, Participants
who have not met the ownership requirements of the Corporation's
stock ownership guidelines shall be required to defer all Participant Deferrals
into the Common Stock Account until such time as the Corporation stock ownership
guidelines have been met.
4.4 INVESTMENT OF PARTICIPANT DEFERRALS INVESTED IN THE COMMON STOCK
ACCOUNT. The Participant's election to have his or her Participant Deferrals
invested on a bookkeeping basis in the Common Stock Account shall be
irrevocable; Participant Deferrals invested in the Common Stock Account shall
not be subject to investment direction by the Participant.
4.5 CREDITING OF PARTICIPANT DEFERRALS; WITHHOLDING. Participant
Salary Deferrals shall be credited to the Participant's Plan Account as of each
pay period during the applicable Deferral Period. Participant Incentive
Compensation Deferrals shall be credited to the Participant's Plan Account as
of the date the Incentive Compensation would have been payable to the
Participant but for the Participant's election to defer such Incentive
Compensation to this Plan. The withholding of taxes with respect to Participant
Deferrals as required by state, federal or local law will be withheld from the
Participant's Compensation to the maximum extent possible; any taxes remaining
due shall reduce the amount of Participant Deferrals credited to the
Participant's Plan Account.
ARTICLE V
CORPORATE CONTRIBUTIONS
5.1 CREDITING OF CORPORATION CONTRIBUTIONS. Corporate Contributions
shall be credited on a bookkeeping basis to the Participant's Plan Account in
proportion to the respective amount of the Participant's Participant Deferrals
made to the Plan during the applicable Deferral Period. Corporate
Contributions shall be credited to the Participant's Plan Account as of the
date that the Participant's Participant Deferrals are credited to the Plan.
Notwithstanding the forgoing provisions of this Section 5.1, however, if
the Participant is an "Officer" of the Corporation, as that term is defined in
accordance with Section 16 of the Securities Act of 1934, such Corporate
Contributions shall be credited to the Participant's Plan Account as follows:
(a) INCENTIVE COMPENSATION DEFERRALS. Corporate Contributions shall be
credited on a bookkeeping basis to the Participant's Plan Account
as of the date the Incentive Compensation Deferrals would have been
payable to the Participant but for the Participant's election to
defer such Incentive Compensation to the Plan.
(b) SALARY DEFERRALS. Corporate Contributions shall be credited to the
Participant's Plan Account as of June 30 and December 31 of each
Plan year, provided, however, that if a Participant has elected on
a bookkeeping basis to invest his or her Salary Deferrals in the
Plan's Common Stock Account then such Salary Deferrals shall be
credited with Corporate Contributions as of the date such Salary
Deferrals would have been paid to the Participant but for the
Participant's election to defer such Salary Deferrals to the Plan.
Participant Deferrals invested on a bookkeeping basis in the Plan's
Interest Bearing Fund and/or Investment Funds shall be credited with Corporate
Contributions equal to 6% of such Participant's Participant Deferrals;
Participant Deferrals invested on a bookkeeping basis in the Plan's Common
Stock Account shall be credited with Corporate Contributions equal to 10% of
such Participant's Participant Deferrals. Corporate Contributions (equal to 6%
or 10%, as the case may be) shall also be credited on behalf of those
Participants whose Participant Deferrals become mandated under the requirements
of Section 162(m) of the Code.
5.2 INVESTMENT OF CORPORATE CONTRIBUTIONS. All Corporate Contributions
credited to the Participant's Plan Account shall be invested for bookkeeping
purposes in the Plan's Common Stock Account. Corporate Contributions are not
subject to Participant investment directions.
5.3 VESTING IN CORPORATE CONTRIBUTIONS. A Participant shall become
vested in those Corporate Contributions credited on a bookkeeping basis to the
Participant's Plan Account upon the Participant's (1) completion of three years
of vested service, (2) Disability, or (3) death. For purposes of this Section
5.3 hereof, the term "vested service" shall be calculated from the
Participant's employment commencement date through the Participant's
Termination, Retirement, or Disability date (whichever shall first occur), and
shall be based on consecutive twelve-month periods during which time an
Employer employs the Participant.
5.4 FORFEITURE OF CORPORATE CONTRIBUTIONS. Notwithstanding the
provisions of Sections 5.1 or 5.3 hereof, if the Participant terminates his or
her employment with the Corporation for any reason other than Normal Retirement
or Termination Under Limited Circumstances, the Participant shall forfeit 4%
out of the 10% of Corporate Contributions (so that the remaining Corporate
Contribution is 6%) allocated on Participant Deferrals which the Participant
has elected to irrevocably defer into the Common Stock Account. All earnings
on the 4% of Corporate Contributions forfeited shall also be forfeited.
5.5 DETERMINATION OF AMOUNT. The Plan Administrator shall verify the
amount of Participant Deferrals, Corporate Contributions, dividends, and
earnings, if any, to be credited to each Participant's Plan Account in
accordance with the provisions of the Plan. The reasonable and equitable
decision of the Plan Administrator as to the value of each Investment Account
shall be conclusive and binding upon all Participants and the Beneficiary of
each deceased Participant having any interest, direct or indirect in the
Participant's Plan Account. The value of an Investment Account on any day not
a Determination Date, shall be the value on the last preceding Determination
Date. As soon as reasonably practicable after the close of the Plan Year, the
Corporation shall send to each Participant an itemized accounting statement
which shall reflect the Participant's Plan Account balance.
5.6 CORPORATE ASSETS. All Participant Deferrals, Corporate
Contributions, dividends, earnings and any other gains and losses credited to a
Participant's Plan Account remain the assets and property of the Corporation,
which shall be subject to distribution to the Participant only in accordance
with Articles VI, IX and X of the Plan. Payments made under the Plan shall be
in the form of cash and shares and shall be made from the general assets of the
Corporation, and Participants and Beneficiaries shall have the status of
general unsecured creditors of the Corporation. Nothing contained in the Plan
shall create, or be construed as creating a trust of any kind or any other
fiduciary relationship between the Participant, the Corporation, or any other
person. It is the intention of the Corporation and the Participant that the
Plan be unfunded for tax purposes and for purposes of Title I of the Employee
Retirement Income Security Act of 1974, as amended, and Section 409A of the
Code.
5.7 NO PRESENT INTEREST. Subject to any federal statute to the
contrary, no right or benefit under the Plan and no right or interest in each
Participant's Plan Account shall be subject to anticipation, alienation, sale,
assignment, pledge, encumbrance, or charge, and any attempt to anticipate,
alienate, sell, assign, pledge, encumber, or charge any right or benefit under
the Plan, or Participant's Plan Account shall be void. No right, interest, or
benefit under the Plan or Participant's Plan Account shall be liable for or
subject to the debts, contracts, liabilities, or torts of the Participant or
Beneficiary. If the Participant or Beneficiary becomes bankrupt or attempts to
alienate, sell, assign, pledge, encumber, or charge any right under the Plan or
Participant's Plan Account, such attempt shall be void and unenforceable.
5.8 EFFECT OF PLAN TERMINATION. Notwithstanding anything to the
contrary contained in the Plan, the termination of the Plan shall terminate the
liability of the Corporation and all Employers to make further Corporate
Contributions to the Plan.
ARTICLE VI
DISTRIBUTION OF PLAN BENEFITS
6.1 DISTRIBUTIONS AT TERMINATION OR RETIREMENT. A Participant's vested
Plan benefit shall be distributed to the Participant at the Participant's
Termination or Retirement (whichever shall first occur) subject to the
following limited early distribution circumstances:
(a) SECTION 162(m) DEFERRALS. If a Participant is required to defer in
conjunction with the provisions of Section 162(m) of the Code, such
Participant Deferrals shall be distributed upon the Participant's
termination of employment, unless such Participant constitutes a
key employee (as defined in Section 416(i) of the Code without
regard to paragraph (5) thereof) of the Corporation, in which the
Participant shall not commence any distribution of his or her Plan
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).
(b) UNFORESEEABLE EMERGENCY. Upon a finding that a Participant has
suffered an Unforseeable Emergency, the Corporation shall permit
the Participant to obtain an Emergency Withdrawal from his or her
vested Plan Account. The amount of such Emergency Withdrawal shall
be limited to the amount reasonably necessary to meet the
Participant's immediate needs resulting from the
Unforeseeable Emergency, as provided for in accordance with the
provisions of Section 409A of the Code and applicable regulations
issued thereunder.
(c) FORM OF PAYMENT AND TIME. Distributions made to a Participant
pursuant to Section 6.1(b) hereof shall be paid in a lump sum
amount. Distributions made under this Section 6.1 shall be made as
soon as administratively practicable following (i) the distribution
date permitted under the provisions of Section 6.1(a), or (ii) as
soon as administratively practicable following the Participant's
Emergency Withdrawal request under the provisions of Section
6.1(b).
6.2 DISTRIBUTION OPTIONS FOR INTEREST BEARING ACCOUNT AND/OR INVESTMENT
FUNDS. Subject to the provisions of Section 6.4 and Section 6.5 hereof, a
Participant shall elect, as reflected in the Participant's Participation
Agreement, to receive a distribution of his or her vested Plan Account balance
from the Plan's Interest Bearing Account and /or Investment Funds under the
following payment options:
(a) a single lump sum distribution, or
(b) a series of monthly installment distributions over a period of 60,
120, or 180 months.
Distributions of Participant Deferrals from the Plan's Interest Bearing Account
and/or Investment Funds shall be made in cash.
6.3 DISTRIBUTION OPTIONS FOR COMMON STOCK ACCOUNT. Subject to the
provisions of Section 6.4 and Section 6.5 of the Plan, a Participant shall
elect, as reflected in the Participant's Participation Agreement, to receive
the distribution of his or her vested Plan Account balance from the Plan's
Common Stock Account under the following payment options:
(a) a single lump sum distribution, or
(b) a series of annual installment distributions over a period of 5,
10, or 15 years.
Distributions of Participant Deferrals and vested Corporate Contributions
from the Plan's shall be made in KeyCorp Common Shares.
6.4 SUSPENSION OF DISTRIBUTIONS. Notwithstanding the foregoing
provisions of this Section 6.4, however, in the event of the Participant's
Termination or Retirement and within twelve months of such Termination or
Retirement date the Participant engages in any Harmful Activity, and upon
notice by the Corporation of such Harmful Activity the Participant fails to
terminate such Activity, then by operation of this Section 6.4 hereof, and
without any further notice to the Participant all further distributions under
the Plan benefit shall be immediately suspended for a period of five (5) years
following the Corporation's notice to the Participant of his or her Harmful
Activity.
For purposes of this Section 6.4, a "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 6.4 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.
6.5 DISTRIBUTION OF ACCOUNT BALANCE. The Participant's vested Plan
Account shall be valued as of the Determination Date immediately preceding his
or her Termination, Retirement or Disability (the "valuation date").
(a) LUMP SUM DISTRIBUTIONS. If a Participant has elected to receive a
lump sum distribution of all or any portion of his or her vested
Plan Account, such lump sum distribution shall be made as soon as
administratively practicable but in no event later than 60 days
following the Participant's Termination, Retirement or Disability
date.
(b) INSTALLMENT DISTRIBUTIONS. If a Participant has elected to receive
an installment distribution of all or any portion of his or her
Plan Account, such installment distribution shall commence as soon
as administratively practicable but in no event later than 60 days
following the Participant's Termination, Retirement or Disability
date.
(i) The Participant's vested unpaid Plan Account balance invested
for bookkeeping purposes in the Plan's Interest Bearing
Account and Investment Funds shall be reflected in a
distribution sub-account, which shall be credited with
interest based on a 36 month average (as of the valuation
date) of the monthly earnings credited under the Interest
Bearing Account for the Participant's installment
distribution period.
(ii) The Participant's vested unpaid Plan Account balance invested
for bookkeeping purposes in the Plan's Common Stock Account
shall be reflected as a number of whole and fractional Common
Shares in a distribution sub-account and shall be credited
with dividends on a bookkeeping basis which shall be
reinvested in the Plan's Common Stock Account throughout the
installment distribution period; all such reinvested
dividends shall
be paid to the Participant in Common Shares
in conjunction with the Participant's final installment
payment under the Plan.
6.6 DISTRIBUTION OF SMALL ACCOUNTS. Notwithstanding the provisions of
Sections 6.2, 6.3, 6.4, and 6.5, hereof, if the value of a Participant's vested
Account balance as of the Determination Date immediately preceding the
Participant's Termination, Retirement or Disability date is under $50,000, such
account balance shall be distributed to the Participant as a single
distribution as soon as administratively practicable following such date.
6.7 PAYMENT LIMITATION FOR KEY EMPLOYEES. Notwithstanding any other
provision of the Plan to the contrary, including the provisions contained
within this Article VI hereof, in the event that the Participant constitutes a
"key" employee of the Corporation (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 Plan benefit at the Participant's
Termination, Disability, or Retirement may not commence 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.
6.8 FACILITY OF PAYMENT. If it is found that any individual to whom an
amount is payable hereunder is incapable of attending to his or her financial
affairs because of any mental or physical condition, including the infirmities
of advanced age, such amount (unless prior claim therefore shall have been made
by a duly qualified guardian or other legal representative) may, in the
discretion of the Corporation, be paid to another person for the use or benefit
of the individual found incapable of attending to his or her financial affairs
or in satisfaction of legal obligations incurred by or on behalf of such
individual. Any such payment shall be charged to the Participant's Plan
Account from which any such payment would otherwise have been paid to the
individual found incapable of attending to his or her financial affairs, and
shall be a complete discharge of any liability therefore under the Plan.
ARTICLE VII
BENEFICIARY DESIGNATION
7.1 BENEFICIARY DESIGNATION. Subject to Section 7.3 hereof, each
Participant shall have the right, at any time, to designate one or more persons
or an entity as Beneficiary (both primary as well as secondary) to whom
benefits under this Plan shall be paid in the event of Participant's death
prior to complete distribution of the Participant's Plan Account. Each
Beneficiary designation shall be in a written form prescribed by the
Corporation and shall be effective only when filed with the Corporation during
the Participant's lifetime.
7.2 CHANGING BENEFICIARY. Subject to Section 7.3, any Beneficiary
designation may be changed by a Participant without the consent of the
previously named Beneficiary by the filing of a new designation with the
Corporation. The filing of a new designation shall cancel all designations
previously filed.
7.3 NO BENEFICIARY DESIGNATION. If any Participant fails to designate
a Beneficiary in the manner provided above, if the designation is void, or if
the Beneficiary (including all contingent Beneficiaries) designated by a
deceased Participant dies before the Participant or before complete
distribution of the Participant's benefits, the Participant's Beneficiary shall
be the person in the first of the following classes in which there is a
survivor:
(a) The Participant's spouse;
(b) The Participant's children in equal shares, except that if any of
the children predeceases the Participant but leaves issue
surviving, then such issue shall take, by right of representation
the share the parent would have taken if living; and
(c) The Participant's estate.
7.4 DISTRIBUTION UPON DEATH. If a Participant dies after the
distribution of his or her interest under the Plan has commenced, the remaining
portion of the Participant's entire interest under the Plan, if any, shall be
distributed to the Participant's Beneficiary in a single lump sum benefit. If
the Participant dies before the distribution of the Participant's Plan Account
has commenced, the Participant's entire interest under the Plan shall be valued
as of the Determination Date immediately preceding the Participant's date of
death, and shall be distributed to his or her Beneficiary in a lump sum payment
as soon as reasonably practicable following the Participant's date of death.
ARTICLE VIII
ADMINISTRATION
8.1 ADMINISTRATION. The Corporation, which shall be the
"Administrator" of the Plan for purposes of ERISA and the "Plan Administrator"
for purposes of the Code, shall be responsible for the general administration
of the Plan, for carrying out the provisions hereof, and for making payments
hereunder. The Corporation shall have the sole and absolute discretionary
authority and power to carry out the provisions of the Plan, including, but not
limited to, the authority and power (a) to determine all questions relating to
the eligibility for and the amount of any benefit to be paid under the Plan,
(b) to determine all questions pertaining to claims for benefits and procedures
for claim review, (c) to resolve all other questions arising under the Plan,
including any questions of construction and/or interpretation, and (d) to take
such further action as the Corporation shall deem necessary or advisable in the
administration of the Plan. All findings, decisions, and determinations of any
kind made by the Plan Administrator shall not be disturbed unless the Plan
Administrator has acted in an arbitrary and capricious manner. Subject to the
requirements of law, the Plan Administrator shall be the sole judge of the
standard of proof required in any claim for benefits and in any determination
of eligibility for a benefit. All decisions of the Plan Administrator shall be
final and binding on all parties. The Corporation may employ such attorneys,
investment counsel, agents, and accountants, as it may deem necessary or
advisable to assist it in carrying out its duties hereunder. The actions taken
and the decisions made by the Corporation hereunder shall be final and binding
upon all interested parties subject, however, to the provisions of Section 8.2.
The Plan Year, for purposes of Plan administration, shall be the calendar year.
8.2 CLAIMS REVIEW PROCEDURE. Whenever the Plan Administrator decides
for whatever reason to deny, whether in whole or in part, a claim for benefits
under this Plan filed by any person (herein referred to as the "Claimant"), the
Plan Administrator shall transmit a written notice of its decision to the
Claimant, which notice shall be written in a manner calculated to be understood
by the Claimant and shall contain a statement of the specific reasons for the
denial of the claim and a statement advising the Claimant that, within 60 days
of the date on which he or she receives such notice, he or she may obtain
review of the decision of the Plan Administrator in accordance with the
procedures hereinafter set forth. Within such 60-day period, the Claimant or
his or her authorized representative may request that the claim denial be
reviewed by filing with the Plan Administrator a written request therefore,
which request shall contain the following information:
(a) the date on which the request was filed with the Plan
Administrator; provided, however, that the date on which the
request for review was in fact filed with the Plan Administrator
shall control in the event that the date of the actual filing is
later than the date stated by the Claimant pursuant to this
paragraph (a);
(b) the specific portions of the denial of his or her claim, which the
Claimant requests the Plan Administrator to review;
(c) a statement by the Claimant setting forth the basis upon which he
or she believes the Plan Administrator should reverse its previous
denial of the claim and accept the claim as made; and
(d) any written material, which the Claimant desires the Plan
Administrator to examine in its consideration of his or her
position as stated pursuant to paragraph (b) above.
In accordance with this Section, if the Claimant requests a review of the
Plan Administrator's decision, such review shall be made by the Plan
Administrator, who shall, within sixty (60) days after receipt of the request
form, review and render a written decision on the claim containing the specific
reasons for the decision including reference to Plan provisions upon which the
decision is based. All findings, decisions, and determinations of any kind
made by the Plan Administrator shall not be modified unless the Plan
Administrator has acted in an arbitrary and capricious manner. Subject to the
requirements of law, the Plan Administrator shall be the sole judge of the
standard of proof required in any claim for benefits, and any determination of
eligibility for a benefit. All decisions of the Plan Administrator shall be
binding on the claimant and upon all other Persons. If the Participant or
Beneficiary shall not file written notice with the Plan Administrator at the
times set forth above, such individual shall have waived all benefits under the
Plan other than as already provided, if any, under the Plan.
ARTICLE IX
AMENDMENT AND TERMINATION OF PLAN
9.1 RESERVATION OF RIGHTS. The Corporation reserves the right to amend
or terminate the Plan at any time by action of the Board of Directors of the
Corporation, or any duly authorized committee thereof, and to modify or amend
the Plan, in whole or in part, at any time and for any reason. No amendment or
termination will result in an acceleration of Plan Benefits in violation of
Section 409A of the Code.
(a) PRESERVATION OF ACCOUNT BALANCE. No termination, amendment, or
modification of the Plan shall reduce (i) the amount of Plan
Transfer Contributions, Participant Deferrals and Corporate
Contributions, and (ii) all earnings and gains on such Plan
Transfer Contributions, Participant Deferrals, and Corporate
Contributions that have accrued up to the effective date of the
termination, amendment, or modification.
(b) CHANGES IN EARNINGS RATE. No amendment or modification of the Plan
shall reduce the rate of earnings to be credited on all Plan
Transfer Contributions, Participant Deferrals, and Corporate
Contributions and all earnings accrued thereon until the close of
the applicable Deferral Period in which such amendment or
modification is made.
9.2 EFFECT OF PLAN TERMINATION. The Corporation may terminate the Plan
by instructing the Plan Administrator to not accept any additional
Participation Agreements. If such a termination occurs, the Plan shall
continue to operate and be effective with regard to Participation Agreements
entered into prior to the effective date of such termination.
ARTICLE X
CHANGE OF CONTROL
10.1 CHANGE OF CONTROL. Notwithstanding any other provision of the Plan
to the contrary, in the event of a Change of Control as defined in accordance
with Section 2.2 of the Plan, no amendment or modification of the Plan may be
made at any time on or after such Change of Control (1) to reduce or modify a
Participant's Pre-Change of Control Account Balance, (2) to reduce or modify
the Interest Bearing Account's rate of earnings on or method of crediting such
earnings to a Participant's Pre-Change of Control Account Balances, (3) to
reduce or modify the Common Stock Accounts' method of calculating all earnings,
gains, and/or losses on a Participant's Pre-Change of Control Account Balance,
(4) to reduce or modify any Investment Funds' method of calculating all
earnings, gains, and/or losses on a Participant's Pre-Change of Control Account
Balance, or (5) to reduce or modify the Participant's Participant Deferrals
and/or Corporate Contributions to be credited to a Participant's Plan Account
for the applicable Deferral Period. For purposes of this Section 10.1, the
term "Pre-Change of Control Account Balance" shall mean, with regard to any
Plan Participant, the aggregate amount of such Participant's Plan Transfer
Contributions, Participant Deferrals, and Corporate Contributions with all
earnings, gains, and losses thereon which are credited to the Participant's
Plan Account through the close of the calendar year in which such Change of
Control occurs.
10.2 INTEREST BEARING ACCOUNT. In accordance with the provisions of
clause (b) of Section 10.1 hereof, in the event that Moody's Average Corporate
Bond Yield Index ceases to be published on or after a Change of Control, the
Corporation shall reasonably select a substantially similar index to be used in
crediting earnings on Participants' Pre-Change of Control Account Balances held
in the Plan's Interest Bearing Account.
10.3 COMMON STOCK CONVERSION. In the event of a Change of Control in
which the common shares of the Corporation are converted into or exchanged for
securities, cash and/or other property as a result of any capital
reorganization or reclassification of the capital stock of the Corporation, or
consolidation or merger of the Corporation with or into another corporation or
entity, or the sale of all or substantially all of its assets to another
corporation or entity, the Corporation shall cause the Common Stock Account to
reflect on a bookkeeping basis the securities, cash and other property that
would have been received in such reorganization, reclassification,
consolidation, merger or sale on an equivalent amount of common shares equal to
the balance in the Common Stock Account and, from and after such
reorganization, reclassification, consolidation, merger or sale, the Common
Stock Account shall reflect on a bookkeeping basis all dividends, interest,
earnings and losses attributable to such securities, cash, and other property
(with any cash earning interest at the rate applicable to the Interest Bearing
Account).
10.4 CHANGE OF CONTROL PROVISIONS. Notwithstanding any other provision
of the Plan to the contrary, in the event of a Change of Control, (i) the
Participant's employment is terminated by his or her Employer and any other
Employer without cause, or (ii) the Participant resigns within two years
following a Change of Control as a result of the Participant's mandatory
relocation, reduction in the Participant's base salary, reduction in the
Participant's average annual incentive compensation (unless such reduction is
attributable to the overall corporate or business unit performance), or the
Participant's exclusion from stock option programs as compared to comparably
situated Employees, the provisions of Section 6.4 of the Plan which limit a
Participant's ability to provide services to a financial services organization,
business, or company upon the Participant's Termination or Retirement, shall
become null and void.
10.5 AMENDMENT IN THE EVENT OF A CHANGE OF CONTROL. On or after a
Change of Control, the provisions of Article II, Article IV, Article V, Article
VI, Article VII, Article VIII, Article IX and Article X may not be amended or
modified as such Sections and Articles apply with regard to the Participants'
Pre-Change of Control Account Balances.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 UNFUNDED PLAN. This Plan is an unfunded plan maintained primarily
to provide deferred compensation benefits for a select group of "management or
highly-compensated employees" within the meaning of Sections 201, 301, and 401
of ERISA, and therefore is exempt from the provisions of Parts 2, 3, and 4 of
Title I of ERISA.
11.2 NO COMMITMENT AS TO EMPLOYMENT. Nothing herein contained shall be
construed as a commitment or agreement upon the part of any Employee hereunder
to continue his or her employment with an Employer, and nothing herein
contained shall be construed as a commitment on the part of any Employer to
continue the employment, rate of compensation or terms and conditions of
employment of any Employee hereunder for any period. All Participants shall
remain subject to discharge to the same extent as if the Plan had never been
put into effect.
11.3 BENEFITS. Nothing in the Plan shall be construed to confer any
right or claim upon any person, firm, or corporation other than the
Participants, former Participants, and Beneficiaries.
11.4 ABSENCE OF LIABILITY. No member of the Board of Directors of the
Corporation or a subsidiary or committee authorized by the Board of Directors,
or any officer of the Corporation or a subsidiary or officer of a subsidiary
shall be liable for any act or action hereunder, whether of commission or
omission, taken by any other member, or by any officer, agent, or Employee,
except in circumstances involving bad faith or willful misconduct, for anything
done or omitted to be done.
11.5 EXPENSES. The expenses of administration of the Plan shall be paid
by the Corporation.
11.6 PRECEDENT. Except as otherwise specifically agreed to by the
Corporation in writing, no action taken in accordance with the Plan by the
Corporation shall be construed or relied upon as a precedent for similar action
under similar circumstances.
11.7 WITHHOLDING. The Corporation shall withhold any tax, which the
Corporation in its discretion deems necessary to be withheld from any payment
to any Participant, former Participant, or Beneficiary hereunder, by reason of
any present or future law.
11.8 VALIDITY OF PLAN. The validity of the Plan shall be determined and
the Plan shall be construed and interpreted in accordance with the provisions
of ERISA, the Code, and, to the extent applicable, the laws of the State of
Ohio. The invalidity or illegality of any provision of the Plan shall not
affect the validity or legality of any other part thereof.
11.9 PARTIES BOUND. The Plan shall be binding upon the Employers,
Participants, former Participants, and Beneficiaries hereunder, and, as the
case may be, the heirs, executors, administrators, successors, and assigns of
each of them.
11.10 HEADINGS. All headings used in the Plan are for convenience of
reference only and are not part of the substance of the Plan.
11.11 DUTY TO FURNISH INFORMATION. The Corporation shall furnish to each
Participant, former Participant, or Beneficiary any documents, reports,
returns, statements, or other information that it reasonably deems necessary to
perform its duties imposed hereunder or otherwise imposed by law.
11.12 TRUST FUND. At its discretion, the Corporation may establish one
or more trusts, with such trustees as the Corporation may approve, for the
purpose of providing for the payment of benefits owed under the Plan. Although
such a trust may be irrevocable, in the event of insolvency or bankruptcy of
the Corporation, such assets will be subject to the claims of the Corporation's
general creditors. To the extent any benefits provided under the Plan are paid
from any such trust, the Employer shall have no further obligation to pay them.
If not paid from the trust, such benefits shall remain the obligation of the
Employer.
11.13 VALIDITY. In case any provision of this Plan shall be held illegal
or invalid for any reason, said illegality or invalidity shall not affect the
remaining parts hereof, but this Plan shall be construed and enforced as if
such illegal and invalid provision had never been inserted herein.
11.14 NOTICE. Any notice required or permitted under the Plan shall be
deemed sufficiently provided if such notice is in writing and hand delivered or
sent by registered or certified mail. Such notice shall be deemed given as of
the date of delivery or, if delivery is made by mail, as of the date shown on
the postmark or on the receipt for registration or certification. Mailed
notice to the Corporation shall be directed to the Corporation's address,
attention: KeyCorp Compensation and Benefits Department. Mailed notice to a
Participant or Beneficiary shall be directed to the individual's last known
address in the Employer's records
11.15 SUCCESSORS. The provisions of this Plan shall bind and inure to
the benefit of each Employer and its successors and assigns. The term
successors as used herein shall include any corporate or other business entity,
which shall, whether by merger, consolidation, purchase or otherwise, acquire
all or substantially all of the business and assets of an Employer.
ARTICLE XII
COMPLIANCE WITH
SECTION 409A CODE
12.1 COMPLIANCE WITH SECTION 409A. 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 the Corporation 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. Moreover, to the extent permitted in
guidance issued by the Secretary of the Treasury and in accordance with
procedures established by the Corporation, a Participant may be permitted to
terminate participation in the Plan or cancel an outstanding deferral election
with regard to amounts deferred after December 31, 2004. Notwithstanding any
provision of the Plan to the contrary, no otherwise permissible election,
deferral, accrual, 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, Plan 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 the Corporation);
(b) a specified time (or pursuant to a fixed schedule) specified under
the Plan and Participant's Participation Agreement prior to the
date of the Participant's deferral of Compensation;
(c) the date of the Participant's Disability (within the meaning of
Section 409A(a)(2)(C) of the Code as well as Disability
requirements of the Plan); or
(d) death of the Participant.
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 the Corporation, the Participant shall not commence any distribution of his
or her Plan 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 Deferred
Compensation Plan 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
------------------------------
Title: Executive Vice President