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EXHIBIT 10
AMENDMENT TO CHANGE OF CONTROL AGREEMENT
THIS AMENDMENT, effective as of March 17, 1997, amends the agreement
that was entered into as of October 15, 1996, between KEYCORP, an Ohio
corporation ("Key"), and [NAME OF EXECUTIVE] (the "Executive") to provide the
Executive with certain rights in the event of a Change of Control of Key, as
defined in that agreement (the "Agreement"). This Amendment (a) eliminates the
provision captioned "Excess Parachute Payment Reduction," which was originally
incorporated in the Agreement at Section 4.3, (b) substitutes for that
provision, at new section 2.4, a new provision captioned "Gross-Up of Payments
Deemed to be Excess Parachute Payments," and (c) makes various conforming
changes.
Key and the Executive agree, effective as of the date first set forth
above, as follows:
1. The first sentence of Section 1 of the Agreement is hereby amended
by deleting therefrom the text "4.3 (regarding excess parachute payments), and
4.4" and inserting in its place the text "and 4.3" so that, as amended, that
sentence reads, in its entirety, as follows:
"The benefits described in Sections 1.1, 1.2, and 1.3 below are subject
to the limitations set forth in Sections 4.1 (which requires an
election among applicable agreements providing severance benefits if
more than one such agreement would apply in the particular
circumstances of the termination of the Executive's employment and
stipulates that any payments received under this Agreement are in lieu
of other claims or rights), 4.2 (regarding withholding), and 4.3
(requiring the execution of a waiver and release by the Executive)."
2. Section 4.3 of the Agreement, captioned "Excess Parachute Payment
Reduction," is hereby deleted from the Agreement.
3. Section 4.4 of the Agreement, captioned "Waiver and Release," is
hereby renumbered as Section 4.3.
4. Section 3 of the Agreement is hereby amended by deleting the cross
reference to "Section 4.4" and substituting in its place a cross reference to
"Section 4.3".
5. Section 4.1 of the Agreement is hereby amended by deleting the text
"(y) if the Executive elects to receive payments under the Prior
Agreement, the provisions of Sections 2.1 and 2.2 of this Agreement
shall nevertheless continue to be applicable, but without duplication
of payments."
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and substituting in its place the text:
"(y) if the Executive elects to receive payments under the Prior
Agreement, the provisions of Sections 2.1, 2.2, and 2.4 of this
Agreement shall nevertheless continue to be applicable, but without
duplication of payments."
6. Section 4.2 of the Agreement is hereby amended by deleting therefrom
the text:
"Without limiting the right of Key or its Subsidiary to withhold taxes
pursuant to this Section 4.2,"
and substituting in its place the text:
"Without limiting either the right of Key or its Subsidiary to withhold
taxes pursuant to this Section 4.2 or the obligation of Key to make
gross-up payments pursuant to Section 2.4,"
7. A new Section 2.4 is hereby added to the Agreement immediately after
existing Section 2.3, reading in its entirety as follows:
"2.4 Gross-Up of Payments Deemed to be Excess Parachute Payments.
"(a) Key and the Executive acknowledge that, following a
Change of Control, one or more payments or distributions to be made by
Key to or for the benefit of the Executive (whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement,
under some other plan, agreement, or arrangement, or otherwise) (a
"Payment") may be determined to be an "excess parachute payment" that
is not deductible by Key for federal income tax purposes and with
respect to which the Executive will be subject to an excise tax because
of Sections 280G and 4999, respectively, of the Internal Revenue Code
(hereinafter referred to respectively as "Section 280G" and "Section
4999"). If the Executive's employment is terminated after a Change of
Control occurs, the Accounting Firm, which, subject to any inconsistent
position asserted by the Internal Revenue Service, shall make all
determinations required to be made under this Section 2.4, shall
determine whether any Payment would be an excess parachute payment and
shall communicate its determination, together with detailed supporting
calculations, to Key and to the Executive within 30 days after the
Termination Date or such earlier time as is requested by Key. Key and
the Executive shall cooperate with each other and the Accounting Firm
and shall provide necessary information so that the Accounting Firm may
make all such determinations. Key shall pay all of the fees of the
Accounting Firm for services performed by the Accounting Firm as
contemplated in this Section 2.4.
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"(b) If the Accounting Firm determines that any Payment gives
rise, directly or indirectly, to liability on the part of the Executive
for excise tax under Section 4999 (and/or any penalties and/or interest
with respect to any such excise tax), Key shall make additional cash
payments to the Executive, from time to time and at the same time as
any Payment constituting an excess parachute payment is paid or
provided to the Executive, in such amounts as are necessary to put the
Executive in the same position, after payment of all federal, state,
and local taxes (whether income taxes, excise taxes under Section 4999
or otherwise, or other taxes) and any and all penalties and interest
with respect to any such excise tax, as the Executive would have been
in after payment of all federal, state, and local income taxes if the
Payments had not given rise to an excise tax under Section 4999 and no
such penalties or interest had been imposed.
"(c) If the Internal Revenue Service determines that any
Payment gives rise, directly or indirectly, to liability on the part of
the Executive for excise tax under Section 4999 (and/or any penalties
and/or interest with respect to any such excise tax) in excess of the
amount, if any, previously determined by the Accounting Firm, Key shall
make further additional cash payments to the Executive not later than
the due date of any payment indicated by the Internal Revenue Service
with respect to these matters, in such amounts as are necessary to put
the Executive in the same position, after payment of all federal,
state, and local taxes (whether income taxes, excise taxes under
Section 4999 or otherwise, or other taxes) and any and all penalties
and interest with respect to any such excise tax, as the Executive
would have been in after payment of all federal, state, and local
income taxes if the Payments had not given rise to an excise tax under
Section 4999 and no such penalties or interest had been imposed.
"(d) If Key desires to contest any determination by the
Internal Revenue Service with respect to the amount of excise tax under
Section 4999, the Executive shall, upon receipt from Key of an
unconditional written undertaking to indemnify and hold the Executive
harmless (on an after tax basis) from any and all adverse consequences
that might arise from the contesting of that determination, cooperate
with Key in that contest at Key's sole expense. Nothing in this
Paragraph (d) shall require the Executive to incur any expense other
than expenses with respect to which Key has paid to the Executive
sufficient sums so that after the payment of the expense by the
Executive and taking into account the payment by Key with respect to
that expense and any and all taxes that may be imposed upon the
Executive as a result of the Executive's receipt of that payment, the
net effect is no cost to the Executive. Nothing in this Paragraph (d)
shall require the Executive to extend the statute of limitations with
respect to any item or issue in the Executive's tax returns other than,
exclusively, the excise tax under Section 4999. If, as the result of
the contest of any assertion by the Internal Revenue Service with
respect to excise tax under Section 4999, the Executive
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receives a refund of a Section 4999 excise tax previously paid and/or
any interest with respect thereto, the Executive shall promptly pay to
Key such amount as will leave the Executive, net of the repayment and
all tax effects, in the same position, after all taxes and interest,
that he would have been in if the refunded excise tax had never been
paid."
8. Except as expressly amended by this Amendment, the Agreement remains
in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment effective
as of the date first written above.
KEYCORP
By
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Robert W. Gillespie
Chairman of the Board, President, and
Chief Executive Officer
THE "EXECUTIVE"
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[NAME OF EXECUTIVE]
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