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EXHIBIT 10.10
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
BETWEEN KEYCORP AND XXXXXX X. XXXXXXXXX
THIS FIRST AMENDMENT is made this 7th day of December, 1998, and amends the
Amended and Restated Employment Agreement dated as of November 21, 1996 (the
"Agreement"), between KEYCORP ("Key"), and XXXXXX X. XXXXXXXXX ("Xxxxxxxxx").
W I T N E S S E T H:
WHEREAS, Key and Xxxxxxxxx desire to amend the Agreement in the following
respects: (a) payments to be made in the event of Xxxxxxxxx'x death during the
Supplemental Term, (b) Xxxxxxxxx'x agreement not to compete with Key, (c) a
formal mechanism for instituting negotiation of an extension of the term of the
Agreement, (d) treatment, for purposes of the KeyCorp Deferred Compensation
Plan, of termination of employment at or after the end of the Scheduled Term as
retirement by Xxxxxxxxx at greater than age 65, and (e) miscellaneous and
conforming changes;
NOW, THEREFORE, Key and Xxxxxxxxx, in consideration of the promises and
mutual covenants contained in the Agreement and in this Amendment, hereby agree
as follows (certain terms used in and not otherwise defined in this Amendment
have the meanings assigned to them in the Agreement):
1. Effect of Death During Supplemental Term. If Xxxxxxxxx dies during the
Supplemental Term and at a time when he is entitled to receive semimonthly
compensation continuation payments under any of Sections 6.1, 8.1, 9.1, or 11.3
of the Agreement, (a) Key shall not make any further semimonthly compensation
continuation payments to or on account of Xxxxxxxxx for any period after the
date of his death, and (b) if Xxxxxxxxx'x wife survives him, Key shall pay to
her, during her lifetime, such amounts so that she receives the same retirement
benefit, under Section 17.1 of the Agreement and any plans referred to therein,
as she would have been entitled to receive, under Section 17.1 of the Agreement
and any plans referred to therein, had Xxxxxxxxx (i) been actively employed by
Key through the day immediately before the date of his death, (ii) retired on
that day (such retirement for these purposes not constituting a Voluntary
Resignation or termination for Cause under clauses (a) or (b) of Section 17.1),
and (iii) elected a 100% joint and survivor retirement benefit.
2. Noncompetition. From the date of this Amendment through March 26, 2009
(Xxxxxxxxx'x 65th birthday) and thereafter for so long as he is entitled to
receive either (a) semimonthly compensation continuation payments under any of
Sections 6.1, 8.1, 9.1, or 11.3 of the Agreement or (b) retirement benefits
under Section 17 of the Agreement, Xxxxxxxxx shall not engage, without the
consent of Key, in any business or business activity in which Key or any of its
Subsidiaries engages, including, without limitation, any business activity in
the banking or financial services industry (other than as a director, officer,
or employee of Key or any of its Subsidiaries or of another entity while serving
at the request of Key or any of its Subsidiaries). If Xxxxxxxxx continues to
violate the restriction set forth in this Section 2 for 30 days after the
Compensation and
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Organization Committee of the Board of Directors or its successor (the "C&O
Committee") has advised him in writing to cease those activities and the
continuing violation is not inconsequential, (x) Key shall thereupon be relieved
of all further obligations to make payments and provide benefits to or with
respect to Xxxxxxxxx under any of the provisions of the Agreement (but no
termination of the Agreement shall affect Xxxxxxxxx'x rights under any plan or
benefit of Key, all of which shall be governed by their respective terms) and
(y) in addition to all other remedies to which it may be entitled, Key shall be
entitled to an injunction and other equitable relief to restrain Xxxxxxxxx from
further violation of that restriction.
3. Formal Mechanism for Instituting Negotiation of an Extension. Either
Xxxxxxxxx or Key may notify the other in writing, at any time on or before
December 31, 1999, that he or it desires to enter into negotiations with the
other to determine whether they can reach a mutually satisfactory agreement for
the extension of Xxxxxxxxx'x active employment with Key beyond the date of Key's
2000 Annual Meeting (which is the end of the Scheduled Term). If either party
delivers such a notice to the other, the parties will endeavor in good faith to
reach a determination as to whether or not the term of Xxxxxxxxx'x active
employment with Key will be extended and, if so, for what period and on what
terms, by not later than the 90th day after the date on which the notice is
delivered. Any such notice by Xxxxxxxxx to Key shall be made to the Chair of the
C&O Committee. Any such notice by Key to Xxxxxxxxx shall be made by the Chair of
the C&O Committee.
4. Treat Termination of Employment at or after End of Scheduled Term as
Retirement at Greater than Age 65 for Purposes of Deferred Compensation Plan. If
Xxxxxxxxx'x employment with Key terminates for any reason other than (a)
Voluntary Resignation that is effective before the end of the Scheduled Term,
(b) Cause, or (c) death or disability, for purposes of the KeyCorp Deferred
Compensation Plan or any successor or similar plan, Xxxxxxxxx shall be treated
as though, on the Termination Date, he (a) had retired and (b) was more than 65
years of age.
5. Conforming Edits. This Amendment is intended to alter the provisions
of the Agreement to the extent necessary to give effect to Sections 1, 2, 3, and
4 hereof. In order to conform the Agreement to this Amendment and to effect
certain other miscellaneous changes, the specific amendments set forth on the
Appendix to this Amendment are hereby made to the Agreement, effective as of the
time of execution of this Amendment.
KEYCORP
By /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Senior Executive Vice
President, General Counsel, and Secretary
/s/ Xxxxxx X. Xxxxxxxxx
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XXXXXX X. XXXXXXXXX
FINAL
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APPENDIX
TO
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
BETWEEN KEYCORP AND XXXXXX X. XXXXXXXXX
To conform the Agreement to the Amendment, and to make certain miscellaneous
changes, the following specific amendments to the Agreement are hereby made:
1. Section 1.7 is hereby restated to read, in its entirety, as follows:
"1.7 Competitive Activity. Xxxxxxxxx shall be deemed to have engaged
in "Competitive Activity" if he engages, without the consent of Key, in any
business or business activity in which Key or any of its Subsidiaries
engages, including, without limitation, engaging in any business activity
in the banking or financial services industry (other than as a director,
officer, or employee of Key or any of its Subsidiaries or of another entity
while serving at the request of Key or any of its Subsidiaries)."
2. Section 1.8, previously containing a definition of the term "Competitive
Activity (Before Termination Date)," is hereby deleted.
3. Section 1.12, previously containing a definition of the term "Financial
Services Company," is hereby deleted.
4. Section 1.18 is hereby amended by adding the following sentence at the end
thereof:
"Without limiting the foregoing definition, it is acknowledged that Key's
Long Term Incentive Plan, effective as of January 1, 1998, is a successor
to the KeyCorp Long Term Cash Incentive Compensation Plan."
5. Section 1.19, previously containing a definition of the term "Restricted
State," is hereby deleted.
6. Section 1.23 is hereby amended by adding the following sentence at the end
thereof:
"Without limiting the foregoing definition, it is acknowledged that Key's
Annual Incentive Plan, effective as of January 1, 1998, is a successor to
the KeyCorp Short Term Incentive Compensation Plan."
7. Section 1.25 is hereby restated to read, in its entirety, as follows:
"1.25 Supplemental Term. The term "Supplemental Term" shall mean the
period commencing on the day after the last day of the Scheduled Term and
ending on the first to occur of (a) the second anniversary of the last day
of the Scheduled Term or (b) the date of Xxxxxxxxx'x death."
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8. Section 6 is hereby amended by deleting the phrase (which appears immediately
before Section 6.1) "Key shall pay and provide the following amounts and
benefits to Xxxxxxxxx:" and substituting in its place the following language:
"Key shall, subject to Section 14.3 of this Agreement, pay and provide the
following amounts and benefits to Xxxxxxxxx:"
9. Section 6.1 is hereby amended by deleting therefrom the last three sentences
and inserting in their place the following sentences:
"If Xxxxxxxxx dies after becoming entitled to payments under this Section
6.1 but before the second anniversary of the end of the Scheduled Term, (x)
Key shall not make any further semimonthly compensation continuation
payments to or on account of Xxxxxxxxx for any period after the date of his
death, and (y) if Xxxxxxxxx'x wife survives him, Key shall pay to her,
during her lifetime, such amounts so that she receives the same retirement
benefit, under Section 17.1 of this Agreement and any plans referred to
therein, as she would have been entitled to receive, under Section 17.1 of
this Agreement and any plans referred to therein, had Xxxxxxxxx (i) been
actively employed by Key through the day immediately before the date of his
death, (ii) retired on that day (such retirement for these purposes will
not be considered a Voluntary Resignation or termination for Cause under
clauses (a) or (b) of Section 17.1), and (iii) elected a 100% joint and
survivor retirement benefit. The amounts payable to Xxxxxxxxx for any month
under this Section 6.1 shall be reduced, but not below zero, by the full
amount of the payments, if any, received by Xxxxxxxxx for that month from
all Retirement Plans."
10. Section 6.2 is hereby amended by adding at the end thereof the following
sentence:
"If Xxxxxxxxx dies before the second anniversary of the end of the
Scheduled Term, Key shall continue to provide to his wife, through that
second anniversary, medical benefits (including, if applicable, dental) at
substantially the same level of coverage, and subject to the same (by
dollar amount) employee contribution requirement (if any), as those which
she was receiving as Xxxxxxxxx'x wife immediately before Xxxxxxxxx'x
death."
11. Section 6.3 is hereby amended as follows:
(a) by deleting at the beginning thereof "For the period beginning on the
first day of the Supplemental Term and ending on the earlier of (a)
the last day of the Supplemental Term, or (b) the date of Xxxxxxxxx'x
death" and substituting in its place, "For the period beginning on
the first day of the Supplemental Term and ending the last day of the
Supplemental Term",
(b) by deleting in the third sentence thereof the phrase "but in lieu
thereof" and substituting in its place the following language: " but
in lieu thereof, except as otherwise provided in the last sentence of
this Section 6.3 (which is intended to prevent a double benefit),"
and
(c) by adding at the end thereof the following sentence:
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"If and to the extent that (m) participation in one or more Retirement
Plans during the Section 6.3 Benefit Period is Impermissible, (n)
participation in one or more other Retirement Plans is not Impermissible,
and (o) as a result of the interplay of one or more Retirement Plans
described in clause (m) with one or more Retirement Plans described in
clause (n) (taking into account the application, if any, of Section 17.1 of
this Agreement), Xxxxxxxxx does not suffer a loss of economic benefit by
reason of participation in one or more of the Retirement Plans described in
clause (m) being Impermissible, then, and to that extent, no lump sum
payment shall be made to Xxxxxxxxx under this Section 6.3."
12. Section 8 is hereby amended by deleting the phrase (which appears
immediately before Section 8.1) "Key shall pay and provide the following amounts
and benefits to Xxxxxxxxx:" and substituting in its place the following
language:
"Key shall, subject to Section 14.3 of this Agreement, pay and provide the
following amounts and benefits to Xxxxxxxxx:"
13. Section 8.1 is hereby amended by deleting therefrom the last three sentences
and inserting in their place the following sentences:
"If Xxxxxxxxx dies after becoming entitled to payments under this Section
8.1 but before the second anniversary of the end of the Scheduled Term, (x)
Key shall not make any further semimonthly compensation continuation
payments to or on account of Xxxxxxxxx for any period after the date of his
death, and (y) if Xxxxxxxxx'x wife survives him, Key shall pay to her,
during her lifetime, such amounts so that she receives the same retirement
benefit, under Section 17.1 of this Agreement and any plans referred to
therein, as she would have been entitled to receive, under Section 17.1 of
this Agreement and any plans referred to therein, had Xxxxxxxxx (i) been
actively employed by Key through the day immediately before the date of his
death, (ii) retired on that day (such retirement for these purposes will
not be considered a Voluntary Resignation or termination for Cause under
clauses (a) or (b) of Section 17.1), and (iii) elected a 100% joint and
survivor retirement benefit. The amounts payable to Xxxxxxxxx for any month
under this Section 8.1 shall be reduced, but not below zero, by the full
amount of the payments, if any, received by Xxxxxxxxx for that month from
all Retirement Plans."
14. Section 8.2 is hereby amended by adding at the end thereof the following
sentence:
"If Xxxxxxxxx dies before the second anniversary of the end of the
Scheduled Term, Key shall continue to provide to his wife, through that
second anniversary, medical benefits (including, if applicable, dental) at
substantially the same level of coverage, and subject to the same (by
dollar amount) employee contribution requirement (if any), as those which
she was receiving as Xxxxxxxxx'x wife immediately before Xxxxxxxxx'x
death."
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15. Section 8.3 is hereby amended by deleting in the third sentence thereof the
phrase "but in lieu thereof" and substituting in its place the following
language: " but in lieu thereof, except as otherwise provided in the last
sentence of this Section 8.3 (which is intended to prevent a double benefit),"
and by adding at the end of Section 8.3 the following sentence:
"If and to the extent that (m) participation in one or more Retirement
Plans during the Section 8.3 Benefit Period is Impermissible, (n)
participation in one or more other Retirement Plans is not Impermissible,
and (o) as a result of the interplay of one or more Retirement Plans
described in clause (m) with one or more Retirement Plans described in
clause (n) (taking into account the application, if any, of Section 17.1 of
this Agreement), Xxxxxxxxx does not suffer a loss of economic benefit by
reason of participation in one or more of the Retirement Plans described in
clause (m) being Impermissible, then, and to that extent, no lump sum
payment shall be made to Xxxxxxxxx under this Section 8.3."
16. Section 9 is hereby amended by deleting the phrase (which appears
immediately before Section 9.1) "Key shall pay and provide the following amounts
and benefits to Xxxxxxxxx:" and substituting in its place the following
language:
"Key shall, subject to Section 14.3 of this Agreement, pay and provide the
following amounts and benefits to Xxxxxxxxx:"
17. Section 9.1 is hereby amended by deleting therefrom the last three sentences
and inserting in their place the following sentences:
"If Xxxxxxxxx dies after becoming entitled to payments under this Section
9.1 but before the second anniversary of the end of the Scheduled Term, (x)
Key shall not make any further semimonthly compensation continuation
payments to or on account of Xxxxxxxxx for any period after the date of his
death, and (y) if Xxxxxxxxx'x wife survives him, Key shall pay to her,
during her lifetime, such amounts so that she receives the same retirement
benefit, under Section 17.1 of this Agreement and any plans referred to
therein, as she would have been entitled to receive, under Section 17.1 of
this Agreement and any plans referred to therein, had Xxxxxxxxx (i) been
actively employed by Key through the day immediately before the date of his
death, (ii) retired on that day (such retirement for these purposes will
not be considered a Voluntary Resignation or termination for Cause under
clauses (a) or (b) of Section 17.1), and (iii) elected a 100% joint and
survivor retirement benefit. The amounts payable to Xxxxxxxxx for any month
under this Section 9.1 shall be reduced, but not below zero, by the full
amount of the payments, if any, received by Xxxxxxxxx for that month from
all Retirement Plans."
18. Section 9.2 is hereby amended by adding at the end thereof the following
sentence:
"If Xxxxxxxxx dies before the second anniversary of the end of the
Scheduled Term, Key shall continue to provide to his wife, through that
second anniversary, medical benefits (including, if applicable, dental) at
substantially the same level of coverage, and subject to the same (by
dollar amount) employee contribution requirement (if any), as those which
she was receiving as Xxxxxxxxx'x wife immediately before Xxxxxxxxx'x
death."
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19. Section 9.3 is hereby amended by deleting in the third sentence thereof the
phrase "but in lieu thereof" and substituting in its place the following
language: " but in lieu thereof, except as otherwise provided in the last
sentence of this Section 9.3 (which is intended to prevent a double benefit),"
and by adding at the end of Section 9.3 the following sentence:
"If and to the extent that (m) participation in one or more Retirement
Plans during the Section 9.3 Benefit Period is Impermissible, (n)
participation in one or more other Retirement Plans is not Impermissible,
and (o) as a result of the interplay of one or more Retirement Plans
described in clause (m) with one or more Retirement Plans described in
clause (n) (taking into account the application, if any, of Section 17.1 of
this Agreement), Xxxxxxxxx does not suffer a loss of economic benefit by
reason of participation in one or more of the Retirement Plans described in
clause (m) being Impermissible, then, and to that extent, no lump sum
payment shall be made to Xxxxxxxxx under this Section 9.3."
20. Section 11.3 is hereby amended by deleting in the first sentence thereof the
phrase "Key shall pay to Xxxxxxxxx semimonthly compensation continuation
payments:" and substituting in its place the following language:
"Key shall, subject to Section 14.3 of this Agreement, pay to Xxxxxxxxx
semimonthly compensation continuation payments:"
21. Section 14 is hereby restated to read, in its entirety, as follows:
"14. Limitations on Competition.
"14.1 Xxxxxxxxx shall not engage in any Competitive Activity at any
time before March 26, 2009 (his 65th birthday).
"14.2 Xxxxxxxxx shall not engage in any Competitive Activity during
any period after March 26, 2009 (his 65th birthday) during which he is
receiving semimonthly compensation continuation payments under any of
Sections 6.1, 8.1, 9.1, or 11.3 of this Agreement or retirement benefits
under Section 17 of this Agreement.
"14.3 If Xxxxxxxxx continues to violate the restriction set forth in
Section 14.1 or 14.2 for 30 days after the Board of Directors has advised
him in writing to cease those activities and the continuing violation is
not inconsequential,
"(a) Key shall thereupon be relieved of all further obligations
to make payments and provide benefits to Xxxxxxxxx under any of the
provisions contained in any of Sections 6, 7, 8, 9, 11, and/or 17 of
this Agreement (Xxxxxxxxx shall not be required to repay to Key any
payment received by him before he began to engage in any such
Competitive Activity), and
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"(b) in addition to all other remedies to which it may be
entitled, Key shall be entitled to an injunction and other equitable
relief to restrain Xxxxxxxxx from further violation of that
restriction."
22. Section 15 is hereby amended by deleting in the first sentence thereof the
phrase "one-third of the monthly amount Xxxxxxxxx or his wife or his estate
would receive under Section 8.1" and substituting in its place the following
language: "one-third of the monthly amount Xxxxxxxxx would receive under Section
8.1".
23. Section 17.1 is hereby amended by deleting the phrase "Key shall pay to
Xxxxxxxxx:" and substituting in its place the following language:
"Key shall, subject to Section 14.3 of this Agreement, pay to Xxxxxxxxx"
24. Section 17.2 is hereby amended by deleting the phrase "Key shall pay to
Xxxxxxxxx:" and substituting in its place the following language:
"Key shall, subject to Section 14.3 of this Agreement, pay to Xxxxxxxxx"
25. Section 18 is hereby restated to read, in its entirety, as follows:
18. Long Term and Short Term Incentive Compensation Plan; Deferred
Compensation Plan. If Xxxxxxxxx'x employment with Key terminates for any
reason other than (a) Voluntary Resignation that is effective before the
end of the Scheduled Term, (b) Cause, or (c) death or disability, for
purposes of the KeyCorp Deferred Compensation Plan (and any successor or
similar plan) and for purposes of determining Xxxxxxxxx'x rights to awards
under the Long Term Incentive Compensation Plan and the Short Term
Incentive Compensation Plan, Xxxxxxxxx shall be treated as though, on the
Termination Date, he (a) had retired and (b) was more than 65 years of age.
26. Section 22 is amended by adding at the end thereof, immediately before the
final period, the following language:
"and the provisions of Sections 14.1 and 14.3 shall continue to be
applicable"
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