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EX 10.4
FIRST
AMENDMENT
TO THE KEYCORP
EXCESS CASH BALANCE PENSION PLAN
WHEREAS, KeyCorp has established the KeyCorp Excess Cash Balance
Pension Plan (the "Plan"), and
WHEREAS, the Board of Directors of KeyCorp has authorized its
Compensation and Organization Committee to permit amendments to the Plan, and
WHEREAS, the Compensation and Organization Committee of the Board of
Directors of KeyCorp has determined it desirable to amend the Plan and has
accordingly authorized the execution of this First Amendment,
NOW, THEREFORE, pursuant to such action of the Compensation Committee,
the Plan is hereby amended as follows:
1. ARTICLE III, Section 3.1 shall be amended to delete it in its
entirety and to substitute therefore the following:
"3.1 ELIGIBILITY. Subject to the provisions of Article V
hereof, a Participant shall be eligible for an Excess Pension
Benefit hereunder if the Participant (i) terminates employment
with an Employer on or after age 55 with five or more years of
Credited Service, (ii) terminates his or her active employment
with an Employer upon becoming Disabled after completing five
or more years of Credited Service and disability benefits have
ceased under the KeyCorp Long-Term Disability Plan due to the
Participant's election of an Early or Normal Retirement under
the Pension Plan, or (iii) dies after completing five years of
Credited Service, and has a Beneficiary who is eligible for a
benefit under the Pension Plan."
2. ARTICLE IV, Section 4.1 shall be amended to add the following new
paragraph at the end of such Section:
"Notwithstanding the foregoing provisions of this Section 4.1,
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, such Participant's
distribution election (if other than a lump sum distribution)
shall become null and void, and the Participant shall receive
an immediate lump sum distribution of his or her vested Excess
Pension Benefit.
For purposes of this Section 4.1, a "Harmful Activity" shall
have occurred if the Participant shall do any one or more of
the following:
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(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 4.1 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.
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"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."
3. The Plan is hereby amended to add a new Article X to the Plan to
read in its entirety as follows:
ARTICLE X
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CHANGE OF CONTROL
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Notwithstanding any other provision of the Plan to the contrary, in the
event of a Change of Control, a Participant's interest in his or her
Excess Pension Benefit shall vest, and the Participant shall be
entitled to receive an immediate distribution of his or her Excess
Pension Benefit, if on and after a Change of Control the Participant
has at least five (5) years of Credited Service, 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
Employees.
For purposes of this Article X hereof, a "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 to secure
the payment of any Participants' Plan benefits payable hereunder
because a "Change of Control" as defined in the Trust has occurred on
and after January 1, 1999.
4. The amendments set forth in Paragraphs 1 through 3 shall be
effective as of January 1, 1999.
5. Except as otherwise amended herein, the Plan shall remain in full
force and effect.
IN WITNESS WHEREOF, KeyCorp has caused this First Amendment to the Plan
to be executed by its duly authorized officer to be effective as of the ___ day
of July, 1999.
KEYCORP
By:
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Title:
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