EXHIBIT 10.45
KEYCORP
SECOND EXCESS 401(K) SAVINGS PLAN
The KeyCorp Second Excess 401(k) Savings Plan (the "Plan"), is hereby
established December 28, 2004 to be effective January 1, 2005. The Plan, as
structured, is intended to provide certain select employees of KeyCorp with a
Plan benefit that is generally equal to the benefit that the Participant would
have been eligible to receive under the KeyCorp 401(k) Savings Plan on and
after January 1, 2005 but for the deferral limits imposed by Section 402(g) of
the Internal Revenue Code of 1986, as amended (Code) and the compensation
limits imposed by Section 401(a)(17) of the Code. It is the intention of
KeyCorp and it is the understanding of the employees 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
1.1 MEANING OF DEFINITIONS. For the purposes hereof, the following
words and phrases shall have the meanings hereinafter set forth, unless a
different meaning is plainly required by the context:
(a) "401(k) SAVINGS PLAN" shall mean the KeyCorp 401(k) Savings Plan,
as shall be amended from time to time.
(b) "BENEFICIARY" shall mean the same person, persons or entity as
designated by the Participant under the 401(k) Savings Plan to
receive any Plan benefits payable after a Participant's death.
(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 includes such
section and any comparable section or sections of any future
legislation that amends, supplements, or supersedes such section.
(e) "COMPENSATION" of a Participant for any Plan Year or any partial
Plan Year in which the Participant incurs a Severance From Service
Date shall mean the entire amount of compensation paid to such
Participant during such period by reason of his or her employment
with an Employer, as reported for federal income tax purposes, plus
that compensation which would have been paid except for (1) the
timing of an Employer's payroll processing operations, (2) the
provisions of the 401(k) Savings Plan, or (3) the provisions of the
KeyCorp Flexible Benefits Plan, or transportation reimbursement
plan, provided, however, that the term shall not include:
(i) any amount attributable to the Employee's receipt of stock
appreciation rights and the amount of any gain to the
Employee upon the exercise of a stock option;
(ii) any amount attributable to the Employee's receipt of non-cash
remuneration which is included in the Employee's income for
federal income tax purposes;
(iii) any amount attributable to the Employee's receipt of moving
expenses and any relocation bonus paid to the Employee during
the Plan Year;
(iv) any amount attributable to any severance paid by an Employer
or the Corporation to the Employee;
(v) any amount attributable to fringe benefits (cash and non-
cash), regardless of whether any or all such items are
includible in such Participant's gross income for federal tax
purposes;
(vi) any amount attributable to any bonus or payment made as an
inducement for the Employee to accept employment with an
Employer;
(vii) any amount attributable to compensation of any type including
bonus or incentive compensation payments paid on or after the
Employee's Severance From Service Date; or
(viii)any amount attributable to compensation deferred by the
Participant.
In determining a Participant's Compensation under the provisions of this
Section 1.1(e), for those Plan Participants who participate in a line of
business incentive plan, only that Compensation up to a maximum amount of
$500,000 minus the amount of the Participant's Compensation utilized in
computing his or her 401(k) Savings Plan benefit in accordance with Section
401(a)(17) of the Code shall be utilized in calculating the Participant's
Participant Deferrals under this Plan.
(f) "CORPORATE CONTRIBUTIONS" shall mean the amount an Employer has
agreed to credit on a bookkeeping basis to the Participant's Plan
Account in accordance with the provisions of Article IV of the
Plan.
(g) "CORPORATION STOCK FUND" shall mean the investment account
established under the Plan for bookkeeping purposes under which a
Participant may elect to have his or her Participant Deferrals
credited and which mirrors the Corporation Stock Fund established
in accordance with the 401(k) Savings Plan, as shall be amended
from time to time. Participant Deferrals to the Corporation Stock
Fund 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
Corporation Stock Fund. The Corporation Stock Fund 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 Corporation Stock
Fund, 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 Account.
(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 COMMENCEMENT DATE" shall mean the first pay period
coinciding with or immediately following the date on which the
Participant reaches his or her maximum contribution limit under
Section 402(g) of the Code and/or the Participant's maximum
compensation limit under Section 401(a)(17) of the Code which
effectively terminates the Participant's deferral of Compensation
under the 401(k) Savings Plan.
(j) "DEFERRAL ELECTION" shall mean the written commitment made by the
Participant to defer up to 6% of his or her Compensation on a per-
pay basis under the Plan, commencing as of the Participant's
Deferral Commencement Date. Except as otherwise provided in
Section 2.2 of the Plan, a Participant's Deferral Election shall be
made no later than the last day of the year preceding the year for
which the Participant's Compensation is earned by the Participant.
(k) "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.
(l) "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.
(m) "EMPLOYEE" shall mean a common law employee who is employed by an
Employer; provided, however, the term "Employee" shall not include
any person who at the time services are performed is not classified
as a common law employee by the Employer even though such person
may for federal income tax purposes, federal employment tax
purposes, or any other purpose be reclassified by the Employer as a
common law employee retroactive to when such services were
performed by reason of administrative, judicial, regulatory or
other governmental action.
(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 a subsidiary.
(o) "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 and
pursuant to Article VIII of the 401(k) Savings Plan as shall be
amended from time to time. Participant Deferrals invested for
bookkeeping purposes in the Investment Funds shall be credited on a
bookkeeping basis with the same earnings, gains, and losses as
experienced by the 401(k) Savings Plan's investment funds.
(p) "MATCHING EMPLOYER CONTRIBUTIONS" shall mean the contribution
amount that an Employer has agreed to contribute to the Plan in
accordance with the provisions of Article IV of the Plan.
(q) "PARTICIPANT" shall mean an Employee who meets the eligibility
requirements set forth in Section 2.1 and becomes a Plan
Participant pursuant to Section 2.2 of the Plan.
(r) "PARTICIPANT DEFERRALS" shall mean the Participant's elective
deferral of Compensation under this Plan.
(s) "PLAN" shall mean the KeyCorp Second Excess 401(k) Savings Plan,
with all amendments hereafter made.
(t) "PLAN ACCOUNT" shall mean those bookkeeping accounts established by
the Corporation for each Plan Participant, which shall reflect all
Participant Deferrals and Corporate Contributions with all
earnings, gains, and losses attributable thereto, as if such
Participant Deferrals and Corporate Contributions had been invested
pursuant to Article V of the Plan in the various Plan Investment
Funds. Plan Accounts shall not constitute separate Plan funds or
Plan assets. Neither the maintenance of, nor the crediting of
amounts on a bookkeeping basis to such Plan Accounts shall be
treated as (i) 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.
(u) "PROFIT SHARING CONTRIBUTIONS" shall mean those discretionary
contributions that an Employer may contribute to the Plan pursuant
to Article IV of the Plan.
(v) "VALUATION DATE" shall mean each "business day" or "business days"
designated by the Plan Administrator on which Investment Funds will
be valued for bookkeeping purposes.
(w) "RETIREMENT" shall mean the termination of employment of a
Participant under circumstances in which the Participant is
eligible to receive an Early Retirement or Normal Retirement Date
benefit under the KeyCorp Cash Balance Pension Plan.
(x) "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.
1.2 PRONOUNS: The masculine pronoun wherever used herein includes the
feminine in any case so requiring, and the singular may include the plural.
1.3 ADDITIONAL REFERENCE: All other words and phrases used herein
shall have the meaning given them in the 401(k) Savings Plan, unless a
different meaning is clearly required by the context.
ARTICLE II
EMPLOYEE PARTICIPATION
2.1 EMPLOYEE ELIGIBILITY. An Employee shall be eligible to participate
in the Plan, provided (1) the Employee is a participant in the 401(k) Savings
Plan, (2) the Corporation selects such Employee to participate in the Plan, (3)
the Employee's elective deferrals of compensation under the 401(k) Savings Plan
reach the deferral limitations prescribed by Section 402(g) of the Code, or the
compensation limitations prescribed by Section 401(a)(17) of the Code, and (4)
the Employee has made a timely Deferral Election to defer Compensation for the
applicable Plan year in accordance with the Deferral Election requirements of
the Plan and Section 409A of the Code.
2.2 NOTIFICATION OF NEW PARTICIPANTS. When an Employee first becomes
eligible to participate in the Plan, the Corporation shall notify the Employee
of his or her Plan eligibility. An Employee electing to participate in the
Plan shall submit a Deferral Election to the Corporation within 30 days of the
Corporation's notification of the Employee's Plan eligibility. The Employee's
Deferral Election shall be effective only if timely provided to the
Corporation.
2.3 EFFECT AND DURATION. Upon becoming a Participant, an Employee
shall be entitled to the benefits and shall be bound by all terms and
conditions of the Plan. 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 an Employer, the Participant's Plan participation shall terminate at the
end of the Deferral Period and no new Participant Deferrals thereafter may be
made by the Participant.
2.4 AUTHORIZED LEAVE OF ABSENCE. A Participant on an authorized leave
of absence who is not receiving Compensation during such leave period shall
continue as a Plan Participant during such leave, provided, however, that no
Corporate Contributions shall be credited to the Participant's Plan Account on
behalf of the Participant during such leave period. Upon the Participant's
return to active employment with an Employer, the Participant's Participant
Deferrals shall resume in accordance with the Participant's Deferral Election
for the applicable Deferral Period.
ARTICLE III
PARTICIPANT DEFERRALS
3.1 PARTICIPANT DEFERRALS. In accordance with a Participant's Deferral
Election, upon meeting the eligibility criteria of Section 2.1 and Section 2.2
of the Plan, a Participant may defer on a bookkeeping basis not less than one
percent not more than six percent of his or her Compensation to the Plan. Such
Participant Deferrals shall commence with the first payment of Compensation to
the Participant coinciding with (1) the date on which the Participant's
elective deferral of Compensation under the 401(k) Savings Plan reaches the
maximum deferral limitations prescribed under Section 402(g) of the Code, or
(2) the date on which the Participant's elective deferral of Compensation under
the 401(k) Savings Plan reaches the maximum compensation limits prescribed
under Section 401(a)(17) of the Code. Participant Deferrals shall be credited
on a bookkeeping basis to the Participant's Plan Account as of each applicable
pay period in which the Participant makes Participant Deferrals under the Plan.
ARTICLE IV
CORPORATE CONTRIBUTIONS
4.1 MATCHING EMPLOYER CONTRIBUTIONS. Matching Employer Contributions
shall be credited on a bookkeeping basis to the Participant's Plan Account as
of each pay period in proportion to the respective amount of
the Participant's Participant Deferrals deferred under the Plan for such pay
period. Credited Matching Employer Contributions shall equal 100% of those
Participant Deferrals deferred under the Plan for such pay period.
4.2 PROFIT SHARING CONTRIBUTIONS. Profit Sharing Contributions, if
any, shall be credited to Participant's Plan Account at such time and in such
manner as the Corporation directs.
4.3 OPENING ACCOUNT BALANCE. Effective January 1, 2005 those
Participants in the frozen KeyCorp 401(k) Excess Savings Plan who as of
December 31, 2004 were not vested in the KeyCorp 401(k) Excess Savings Plan
corporate contributions allocated to their plan account as of December 31, 2004
shall have such 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. The establishment of the Participant's Plan
Opening Account Balance shall terminate the Participant's entitlement to that
transferred benefit under the frozen KeyCorp Excess 401(k) Savings Plan.
ARTICLE V
INVESTMENTS
5.1 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 Participant's Opening Account Balance (if any) and
investment elections on a bookkeeping basis, with all earnings, gains, or
losses attributable to such elections.
5.2 INVESTMENT OF PARTICIPANT DEFERRALS. Each Participant shall direct
the manner in which his or her Participant Deferrals are to be invested for
bookkeeping purposes under the Plan, provided, however, that the initial
Participant Deferral of income for the 2005 Plan year shall be based on the
Participant's investment instructions provided under the frozen KeyCorp Excess
401(k) Savings Plan. All Participant Deferrals may be invested for bookkeeping
purposes in the Plan's Corporation Stock Fund or any one or more of the Plan
Investment Funds in such amount as the Participant shall select. Participants
may modify their investment elections at such times and in such manner as
permitted by the Corporation.
5.3 INVESTMENT OF CORPORATE CONTRIBUTIONS. All Corporate Contributions
credited to the Participant's Plan Account shall be invested for bookkeeping
purposes in the Corporation Stock Fund. Corporate Contributions are not
subject to Participant investment directives.
5.4 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
5.4 hereof, the term "vested service" shall be calculated based on the
Participant's employment commencement date through the Participant's
Termination or Retirement date (which ever first occurs), and shall be based
on consecutive twelve-month periods during which time the Participant is
employed by an Employer.
5.5 VALUATION OF PLAN ACCOUNTS. As of each Valuation Date, the Plan
Administrator shall verify the amount of Participant Deferrals, Corporate
Contributions, dividends, earnings, and losses, if any, to be credited to the
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
the Participant's Plan 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
the Participant's Plan Account on any day not a Valuation Date, shall be the
value on the last preceding Valuation Date.
5.6 CORPORATE ASSETS. All Participant Deferrals, Corporate
Contributions, dividends, and all earnings 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 and VII of the Plan. All payments hereunder shall be in the
form of cash and KeyCorp Common 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.
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 or the termination
of the 401(k) Savings Plan shall terminate the liability of the Corporation to
make further Corporate Contributions to the Plan.
ARTICLE VI
DISTRIBUTION OF PLAN BENEFITS
6.1 DISTRIBUTION OF PLAN BENEFITS. Subject to the provisions of
Section 6.3 and Section 6.4 hereof, a Participant shall receive a distribution
of his or her vested Plan Account balance from the Plan's Investment Funds
(other than from the Corporation Stock Account) in a series of monthly
installment distributions over a period of ten (10) years.
Distributions of Participant Deferrals from the Plan's Investment Funds other
than the Corporation Stock Fund shall be made in cash.
6.2 DISTRIBUTION OPTIONS FROM THE CORPORATION STOCK ACCOUNT. Subject
to the provisions of Section 6.3 and Section 6.4 of the Plan, the Participant
shall receive a distribution of his or her vested Plan Account balance from the
Plan's Corporation Stock Account as series of annual installment distributions
over a period of ten (10) years.
Distributions of Participant Deferrals and vested Corporate Contributions from
the Plan's Corporation Stock Account shall be made in KeyCorp Common Shares.
6.3 DISTRIBUTION. The Participant's vested Plan Account shall be
valued as of the Valuation Date immediately preceding his or her Termination,
Retirement or Disability (the "valuation date"). Distribution of a
Participant's Plan Account shall commence as soon as administratively
practicable following the Participant's Termination, Retirement or Disability
(whichever shall first occur) as follows:
(i) The Participant's vested unpaid Plan Account balance invested for
bookkeeping purposes in the Plan's Investment Funds (other than
Corporation Stock Fund) shall be reflected in a distribution sub-
account, which on a bookkeeping basis shall be credited with all
earnings, gains and losses on such Investment Funds during the
Participant's installment distribution period.
(ii) The Participant's vested unpaid Plan Account balance invested for
bookkeeping purposes in the Plan's Corporation Stock Fund 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
Corporation Stock Fund 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.
6.4 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 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 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.
6.5 DISTRIBUTION OF SMALL ACCOUNTS. Notwithstanding the provisions of
Sections 6.1, 6.2, and 6.3 hereof, but subject to the requirements of Section
6.4 hereof, if the value of a Participant's vested Account balance as of the
Valuation Date immediately preceding the Participant's Termination, Retirement
or Disability date is under $50,000, such balance shall be distributed to the
Participant as a single lump sum distribution as soon as reasonably practicable
following such Termination, Retirement or Disability date.
6.6 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.
6.7 SUSPENSION OF DISTRIBUTIONS. Notwithstanding the foregoing
provisions of this Section 6.7, however, in the event of the Participant's
Termination, Retirement or Disability and within twelve months of such
Termination, Retirement or Disability 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 6.7 hereof, and without any further notice to the Participant all
further distributions of the Participant's 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 6.7, 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 6.7 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.
ARTICLE VII
BENEFICIARY DESIGNATION
7.1 BENEFICIARY DESIGNATION. Subject to Section 7.3 hereof, the
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 the 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; or
(c) The Participant's estate.
7.4 DISTRIBUTION UPON DEATH. If a Participant dies after the
distribution of his or her vested 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 under the method of
distribution being used as of the Participant's date of death. 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 Valuation 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 Plan
Administrator 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 Plan
Administrator 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 therefor,
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
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 Participant
Deferrals and Corporate Contributions, and (ii) all earnings and
gains on such 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 or modify the method of accruing earnings, gains, and
losses under the Plan's Investment Funds that differ from the
method of accruing earnings, gains, and losses under the 401(k)
Savings Plan's investment funds until the close of the applicable
Deferral Period in which such amendment or modification is made.
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 1.1 of the Plan, no amendment or modification of this 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 Corporation Stock Fund's method of calculating all earnings, gains, and/or
losses on a Participant's Pre-Change of Control Account Balance, (3) to reduce
or modify any other Investment Funds' method of calculating all earnings,
gains, and/or losses on a Participant's Pre-Change of Control Account Balance,
or (4) 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 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 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 Corporation Stock Fund
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 Corporation Stock Fund and, from and after such
reorganization, reclassification, consolidation, merger or sale, the
Corporation Stock Fund shall reflect on a bookkeeping basis all dividends,
interest, earnings and losses attributable to such securities, cash, and other
property.
10.3 CHANGE OF CONTROL PROVISIONS. Notwithstanding any other provision
of the Plan to the contrary, in the event of a Change of Control and, (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, the provisions of Section 6.7 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.
10.4 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
SECURITIES LAWS COMPLIANCE
11.1 Restrictions Imposed on Transactions Involving the Corporation
Stock Fund. Notwithstanding any contrary provision in this Plan, the
Corporation may, in its discretion, but in a uniform, non-discriminatory
manner,
delay, suspend or otherwise limit any investment in or withdrawal from the
Corporation Stock Fund for such time and to the extent the Corporation, on
advice of legal counsel, determines is necessary or desirable to avoid violating
any applicable state or federal securities laws, rules or regulations.
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1 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.
12.2 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.
12.3 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.
12.4 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.
12.5 EXPENSES. The expenses of administration of the Plan shall be paid
by the Corporation.
12.6 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.
12.7 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.
12.8 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.
12.9 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.
12.10 HEADINGS. All headings used in the Plan are for convenience of
reference only and are not part of the substance of the Plan.
12.11 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.
12.12 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.
12.13 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.
12.14 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
12.15 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 XIII
COMPLIANCE WITH
SECTION 409A CODE
13.1 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. 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, 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) the date the Participant becomes Disabled (within the meaning of
Section 409A(a)(2)(C) of the Code) as well as Disability
requirements of the 401(k) Savings Plan); or
(c) 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 the 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 the KeyCorp Second Excess 401(k)
Savings 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
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Title: Executive Vice President