KEYCORP
COMMISSIONED DEFERRED COMPENSATION PLAN
(Amended and Restated as of December 31, 2008)
The KeyCorp
Commissioned Deferred Compensation Plan (“Plan”) as
originally established effective January 1, 2003, and amended
January 1, 2005, is hereby amended and restated effective as
of December 31, 2008. The Plan, as structured, is intended to
provide certain selected employees of KeyCorp with the opportunity
to defer up to 50% of their commissions earned in excess of
$100,000 during the applicable Plan year. In providing those
selected employees of KeyCorp with an opportunity to defer their
immediate receipt of taxable income to a later date, the Plan also
provides KeyCorp with the opportunity to retain those employees
continued employment with Key. It is the intention of KeyCorp and
it is the understanding of those employees who are covered under
the Plan that the Plan is unfunded for tax purposes. It is also the
understanding of those employees covered under the Plan that the
Plan will be administered in accordance with the requirements of
Section 409A of the Code.
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:
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(a)
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“ Beneficiary
” shall
mean the person, persons or entity entitled under Article VII
to receive any Plan benefits payable after a Participant’s
death.
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(b)
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“ Change of Control
” shall
be deemed to have occurred if under any rabbi trust arrangement
maintained by the Corporation, the Corporation is required under
the terms of such arrangement to fund such rabbi trust to secure
the payment of any Participants’ Plan benefits which become
payable hereunder because a “Change of Control” as
defined in such rabbi trust has occurred.
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(c)
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“ 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.
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(d)
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“ Commission
” shall
mean those commissions or incentive payout(s) awarded to the
Employee that are tied to the Employee’s direct performance
in conjunction with a KeyCorp sales event(s) and are generally
defined as a percent, share, or dollar amount of the direct sale or
profit generated to KeyCorp as a result of such event.
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(e)
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“ 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 and Corporate
Contributions invested by the
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Participant and by the Corporation
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 ten-day average of the New York Stock
Exchange’s closing price for such Common Shares immediately
preceding, up to, and including the day such Participant Deferrals
and Corporate Contributions are credited to the Participants’
Plan Account.
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(f)
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“ Corporate
Contributions ” shall mean the contribution
amount which 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.
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(g)
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“ 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.
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(h)
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“ Deferral Period
” shall
mean each applicable 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.
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(i)
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“ Determination Date
” shall
mean the last business day of each calendar quarter.
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(j)
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“ Disability
” shall
mean (1) the physical or mental disability of a permanent
nature which prevents a Participant from performing the duties that
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.
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(k)
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“ Discharge for Cause
” shall
mean the termination (whether by the Participant or the Employer)
of a Participant’s employment from his or her Employer and
any other Employer that is the result of (1) serious
misconduct as an Employee, including, but not limited to, a
continued failure after notice to perform a substantial portion of
his or her duties and responsibilities unrelated to illness or
incapacity, unethical behavior such as acts of self-dealing or
self-interest, harassment, violence in the workplace, or theft;
(2) the commission of a crime involving a controlled
substance, moral turpitude, dishonesty, or breach of trust; or
(3) the Employer being directed by a regulatory agency or
self-regulatory agency to terminate or suspend the Participant or
to prohibit the Participant from performing services for the
Employer. The Corporation in its sole and absolute discretion shall
determine whether a Participant has been Discharged for Cause, as
provided for in this Section 2.1(k), provided, however, that
for a period of two years following a Change of Control, any
determination by the Corporation that an Employee has been
Discharged for Cause shall be set forth in writing with the factual
basis for such Discharge for Cause clearly specified and documented
by the Corporation.
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(l)
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“ Dividends
” shall
mean those quarterly earnings approved by the KeyCorp Board of
Directors and awarded by the Corporation to all shareholders of
record as of each applicable ex-dividend date which shall be
payable in such form and at such time as the Corporation shall
determine.
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(m)
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“ Early Retirement
” shall
mean the Participant’s retirement from his or her employment
with an Employer on or after the Participant’s attainment of
age 55 and completion of a
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minimum of five years of Vesting
Service, but prior to the Participant’s Normal Retirement
Date.
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(n)
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“ Employee
” shall
mean a common law employee who is employed by an
Employer.
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(o)
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“ Employer
” shall
mean the Corporation and any of its subsidiaries, unless
specifically excluded as an Employer for Plan purposes by written
action by an Officer of the Corporation. An Employer’s
participation in the Plan 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.
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(p)
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“ Harmful Activity
” shall
have occurred if the Participant shall do any one or more of the
following. The provisions of this Section 2.1 (p) shall
survive the Participant’s termination of employment with
KeyCorp.
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(i)
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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.
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(ii)
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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.
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(iii)
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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.
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(iv)
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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.
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(v)
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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.
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(vi)
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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.
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(vii)
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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.
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For
purposes of this Section 2.1(p) the term:
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“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.
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“KeyCorp”
shall include KeyCorp,
its subsidiaries, and its affiliates.
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(q)
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“ Involuntary
Termination ” shall mean the termination (by the
Employer) of a Participant’s employment from his or her
Employer and from any other Employer, other than a Discharge for
Cause or a Termination Under Limited Circumstances.
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(r)
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“ Normal Retirement
” shall
mean the Participant’s retirement under the KeyCorp Cash
Balance Pension Plan on or after the Participant’s Normal
Retirement Date.
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(s)
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“ Participant
” shall
mean an Employee who meets the eligibility requirements set forth
in Section 3.1(a) and becomes a Plan Participant pursuant to
Section 3.1(b) or Section 3.1(c) of the Plan.
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(t)
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“ Participant Deferrals
” shall
mean the percentage or whole dollar amount of the
Participant’s Commissions that are earned by the Participant
during the applicable Plan Year which the Participant has elected
in accordance with his or her Participation Agreement to defer to
the Plan.
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(u)
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“ Participation
Agreement ” shall mean the executed agreement
submitted by the Participant to the Corporation prior to the start
of each applicable Deferral Period, which contains, in pertinent
part, the Participant’s deferral commitment for such Deferral
Period, and the distribution option selected by the Participant for
the payment of such Participant Deferrals, Dividends, and Corporate
Contributions upon the Participants full vesting in such Dividends
and Corporate Contributions.
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(v)
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“ Plan
” shall
mean the KeyCorp Commissioned Deferred Compensation Plan with all
amendments hereafter made.
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(w)
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“ Plan Account
” shall
mean the bookkeeping account established by the Corporation for
each Plan Participant, which shall reflect all Corporate
Contributions, Participant Deferrals, and Dividends invested for
bookkeeping purposes in the Plan’s Common Stock
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Account with all 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. All benefits under the Plan
shall be paid from the general assets of the
Corporation.
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(x)
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“ Plan Year
” shall
mean the calendar year.
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(y)
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“ Retirement
” shall mean the termination of a Participant’s
employment any time after the Participant’s attainment of age
55 and completion of 5 years of Vesting Service under the
KeyCorp Cash Balance Pension Plan, but shall not include the
Participant’s (i) Discharge for Cause,
(ii) Involuntary Termination, (iii) Termination under
Limited Circumstances, (iv) Disability or Death.
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(z)
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“ 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.
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(aa)
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“ Termination Under Limited
Circumstances ” shall mean the termination (whether
by the Participant or the Employer) of a Participant’s
employment from his or her Employer, and from any other Employer
(i) under circumstances in which the Participant is entitled
to receive severance benefits or salary continuation benefits under
the KeyCorp Separation Pay Plan, (ii) under circumstances in
which the Participant is entitled to severance benefits or salary
continuation or similar benefits under a change of control
agreement or employment agreement within two years after a change
of control (as defined by such agreement) has occurred, or
(iii) as otherwise expressly approved by an officer of the
Corporation.
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(bb)
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“ Voluntary Termination
” shall
mean a voluntary termination of the Participant’s employment
from his or her Employer and from any other Employer, whether by
resignation or otherwise, but shall not include the
Participant’s Discharge for Cause, Involuntary Termination,
Retirement, Termination Under Limited Circumstances, or termination
as a result of Disability or death.
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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.
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ELIGIBILITY AND
PARTICIPATION
3.1
Eligibility and Participation .
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(a)
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Eligibility
. An Employee shall be
eligible to participate in the Plan if (1) the Employee earns
Commissions during any Plan Year in excess of $100,000, and
(2) the Corporation selects such Employee to participate in
the Plan.
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(b)
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Participation
. An Employee meeting
the eligibility criteria of Section 3.1(a) may elect to
participate in the Plan with respect to any Deferral Period by
submitting a Participation Agreement to the Corporation no later
than the year prior to the year in which such Commissions are
earned by the Participant, in conjunction with procedures and times
established by the Corporation.
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(c)
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Mid-Year
Participation . When an Employee first becomes
eligible to participate in the Plan during a Deferral Period, the
Participant shall be required to submit a Participation Agreement
to the Corporation within thirty (30) days after the
Corporation notifies the Employee of his or her Plan eligibility.
Such Participation Agreement will be effective only if it is
provided to the Corporation within 30 days of the
Participant’s notice of Plan eligibility.
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3.2
Deferral Limitations . A Participant may defer to the
Plan no more than 50% of the Participant’s earned Commissions
in excess of $100,000 (in 5% increments) that are 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 . 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 the level that
deserves to be rewarded through participation in the Plan, but does
not terminate the Participant’s employment, the
Participant’s Participant Deferrals under the Plan shall
continue until the end of the applicable Deferral Period.
Thereafter, the Corporation shall not permit the Participant to
make any further deferrals to the Plan.
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
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shall be
established to reflect all Dividends attributable to such
Participant Deferrals and Corporate Contributions.
4.2
Investment of Participant Deferrals . All Participant
Deferrals shall be invested for bookkeeping purposes in the
Plan’s Common Stock Account.
4.3
Crediting of Participant Deferrals; Withholding .
Participant Deferrals shall be credited to the Participant’s
Plan Account as of the date the Participant’s Commission
would have been paid to the Participant “but for” the
Participant’s election to defer such Commission to the Plan.
The withholding of taxes with respect to all Participant Deferrals
as required by state, federal or local law s
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