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Exhibit 10.12
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of the
4th day of October, 2000, by and among McDonald Investments Inc., an Ohio
corporation (the "Company"), KeyCorp, an Ohio corporation ("KeyCorp"), and
Xxxxxxx X. Xxxxxxx, Xx. (the "Executive").
WHEREAS, the Executive, the Company and KeyCorp are parties to
that certain Employment Agreement, dated as of June 14, 1998 (the "Prior
Agreement");
WHEREAS, the Executive and KeyCorp are parties to that certain
Agreement, dated as of October 23, 1998, providing for certain payments and
benefits to the Executive if his employment is terminated under certain
circumstances in connection with a change of control of KeyCorp (the "Change of
Control Agreement");
WHEREAS, the Executive, the Company and KeyCorp desire to
terminate and supersede the Prior Agreement and the Change of Control Agreement;
and
WHEREAS, the Executive desires to continue to be employed by
the Company, and the Company desires to continue to employ the Executive, on the
terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the
respective covenants and agreements of the parties herein contained, the parties
hereto agree as follows:
1. EMPLOYMENT PERIOD. The Company hereby agrees to continue to
employ the Executive, and the Executive hereby agrees to be employed by the
Company, subject to the terms and conditions of this Agreement, for the period
commencing on the date of this Agreement (the "Commencement Date") and ending on
October 23, 2003 (the "Employment Period"), unless the Employment Period is
renewed or terminated earlier in accordance with the terms hereof.
2. TERMS OF EMPLOYMENT.
(a) POSITION AND DUTIES.
(i) During the Employment Period, the Executive shall
serve as Chairman of the Company and shall serve on the Board of Directors of
the Company, or its successor (if any). During the Employment Period, the
Executive shall report directly to Xxxxx Xxxxx or the Chief Executive Officer of
KeyCorp.
(ii) During the Employment Period, the Executive
shall continue to make available to the Company his experience, knowledge,
understanding and relationships relating to the brokerage and investment banking
business by assisting, at a senior executive level and at his and KeyCorp's
mutual discretion, in the following activities:
A. Maintaining relationships with, and the
development of, key customers for the Company and other KeyCorp
affiliates;
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B. Participating, on behalf of the Company,
in professional industry association activities related to the
Company's business, such as Securities Industry Association and New
York Stock Exchange activities;
C. Participating in community activities to
promote the goodwill of KeyCorp and the Company, including continued
involvement in The McDonald Foundation (for so long as it exists as a
separate foundation);
D. Offering input into, and perspective on,
strategic issues facing the Company's business; and
E. Recruiting and retaining key executives
for the Company's business.
As used in this Agreement, the terms "affiliates" and "affiliated companies"
shall include any company controlled by, controlling or under common control
with the Company or KeyCorp, as the case may be.
(iii) In addition to the foregoing, the Executive
agrees that the principal investing activities of KeyCorp, presently known as
Key Principal Partners, shall report to the Executive for up to six months after
the Commencement Date. After the expiration of such period, such principal
investing activities shall continue to report to the Executive only if he
consents thereto upon the request of KeyCorp.
(iv) During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is entitled, the
Executive agrees to fulfill the foregoing duties and responsibilities in
accordance with a flexible schedule dictated by his own judgment of how best to
fulfill his duties and responsibilities hereunder. The Executive shall be
present at the Company's offices only in accordance with a schedule he
determines.
(v) It shall not be a violation of this Agreement for
the Executive to (A) serve on corporate, civic or charitable boards or
committees, (B) deliver lectures, fulfill speaking engagements or teach at
educational institutions and (C) manage personal investments; provided, however,
that the Executive's service on boards or committees shall be subject to the
following conditions: (x) any such service shall not be provided to a for-profit
entity in the financial services industry (except for a KeyCorp affiliate); (y)
KeyCorp and its affiliates shall not be responsible for indemnification or
directors and officers liability insurance relating to such service; and (z) the
Chief Executive Officer of KeyCorp (or its successor) or Xxxxx Xxxxx (or, if
Xxxxx Xxxxx then is not an executive officer of KeyCorp or its successor, the
Chief Operating Officer of KeyCorp or its successor) shall have been advised in
advance of such service and not objected to such service on the basis that it
would cause a conflict of interest or public embarrassment or discomfort to
KeyCorp.
(b) MANAGEMENT AND OPERATIONS OF THE COMPANY. The Executive
acknowledges and agrees that the Compensation Committee of the Board of
Directors of the Company shall terminate on October 23, 2001 and thereafter
shall no longer continue as a committee of the Board of Directors of the Company
or otherwise. The Executive shall not serve on such Compensation Committee after
the Commencement Date.
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(C) COMPENSATION.
(i) CASH COMPENSATION THROUGH DECEMBER 31, 2000.
A. 2000 BASE SALARY. During the period from
the Commencement Date through and ending on December 31, 2000, the
Executive shall continue to receive base salary payments ("2000 Base
Salary") at an annualized rate of $200,000 in accordance with the
compensation policies and practices established by the Compensation and
Organization Committee of KeyCorp's Board of Directors, or its
successor (the "Committee").
B. 2000 BONUS. In addition to 2000 Base
Salary, the Executive shall be awarded a cash bonus for the year 2000
(the "2000 Bonus") in an amount determined by the Committee, provided
that in no event shall the amount of the 2000 Bonus be less than $1.3
million. The 2000 Bonus shall be payable no later than March 1, 2001.
(ii) CASH COMPENSATION AFTER DECEMBER 31, 2000.
During the remainder of the Employment Period after December 31, 2000, the
Executive shall receive annual compensation at the rate of $1.6 million per year
("Annual Compensation"). Annual Compensation shall be payable to the Executive
in substantially equal periodic installments throughout the year (no less
frequently than monthly) and shall be prorated during any calendar year in which
the Executive is employed by the Company for less than the entire calendar year.
The parties acknowledge and agree that Annual Compensation represents a combined
base and bonus compensation amount and, accordingly, that the Executive shall
not be eligible to receive additional bonus compensation for periods after
December 31, 2000, unless otherwise determined by the Committee, in its sole
discretion.
(iii) RETENTION AWARDS. The parties acknowledge and
agree that, in connection with the transactions contemplated by the Prior
Agreement, the Executive was granted a cash retention award, effective October
23, 1998, in the amount of $2.2 million (the "Cash Retention Award") and was
granted non-qualified stock options, effective October 23, 1998 and January 13,
1999, to acquire a total of 241,055 KeyCorp Common Shares (the "Retention
Options"). The parties agree that the terms of the Cash Retention Award and the
Retention Options shall not be affected or modified hereby, except as follows or
as otherwise expressly set forth herein:
A. Section 2 of each Non-Qualified Grant
Agreement evidencing the Retention Options shall be, and it hereby is,
deleted and replaced in its entirety by the following:
"2. Upon (i) the termination of your employment by
KeyCorp and its subsidiaries other than for Cause, as defined
in the Employment Agreement, dated as of October 4, 2000,
among KeyCorp, McDonald Investments Inc. and you (the
"Employment Agreement"), including by reason of your
Disability, as defined in the Employment Agreement, (ii) your
termination of your employment with KeyCorp and its
subsidiaries
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for Good Reason or on the Early Termination Date, each as
defined in the Employment Agreement, or (iii) your death, all
outstanding Options granted hereunder shall become immediately
vested and exercisable in full."
B. Section 2 of the Agreement evidencing the
Cash Retention Award shall be, and it hereby is, deleted and replaced
in its entirety by the following:
"2. Upon (i) the termination of your employment by
KeyCorp and its subsidiaries other than for Cause, as defined
in the Employment Agreement, dated as of October 4, 2000,
among KeyCorp, McDonald Investments Inc. and you (the
"Employment Agreement"), including by reason of your
Disability, as defined in the Employment Agreement, (ii) your
termination of your employment with KeyCorp and its
subsidiaries for Good Reason or on the Early Termination Date,
each as defined in the Employment Agreement, or (iii) your
death, all unpaid portions of the Award shall become
immediately payable in full."
(iv) EMPLOYEE BENEFIT PLANS. During the Employment
Period, the Executive shall continue to be eligible to participate in welfare
and retirement benefit plans, programs, policies and arrangements to the same
extent as immediately prior to the Commencement Date; provided, however, that
KeyCorp or the Company may amend, modify or terminate any such plan, program,
policy or arrangement at any time so long as the amendment, modification or
termination applies to a significant portion or number of participants in such
plan, program, policy or arrangement.
(v) EXPENSES. During the Employment Period, the
Executive shall be entitled to receive prompt reimbursement for all reasonable
business expenses incurred by the Executive, consistent with the past practice
of the Executive and in accordance with the policies of the Company and KeyCorp.
(vi) INDEMNIFICATION/D&O INSURANCE. The Executive
shall be indemnified by KeyCorp against claims arising in connection with the
Executive's status as an employee, officer or agent of KeyCorp in accordance
with KeyCorp's indemnity policies for its senior executives, subject to
applicable law.
(vii) DEFERRAL OF COMPENSATION. Subject to Section
2(c)(viii), during the Employment Period, the Executive shall not be subject to
any policy or plan of KeyCorp or any affiliated company requiring the automatic
deferral of incentive compensation, including, without limitation, the KeyCorp
Automatic Deferral Plan as in effect from time to time. During the Employment
Period, the Executive shall have the right to defer voluntarily up to 75% of his
Annual Compensation pursuant to the terms of KeyCorp's Deferred Compensation
Plan as in effect from time to time (and such plan is hereby amended to the
extent necessary to permit the deferral of such amounts under such plan),
provided that the Executive elects such deferral and gives notice of such
election to KeyCorp in advance of the year in which the Annual Compensation to
be deferred is to be earned and otherwise complies with the terms of KeyCorp's
Deferred Compensation Plan as in effect from time to time.
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(viii) SECTION 162(m). In the event that KeyCorp
would be denied a deduction for federal income tax purposes for any amounts
payable to the Executive by reason of the limitations imposed by Section 162(m)
of the Internal Revenue Code of 1986, as amended (the "Code"), the Executive
agrees that, in accordance with the policy of the Committee (and only so long as
that policy continues and is applicable to all executives of KeyCorp who are
subject to Section 162(m)), the amount that would not be deductible shall be
deferred pursuant to the terms of KeyCorp's Deferred Compensation Plan as in
effect from time to time.
(d) EMPLOYMENT LOCATION. During the Employment Period, the
Executive's principal place of employment (i) shall be located at the XxXxxxxx
Investment Center, provided that such building continues to be the principal
office of the Company, and (ii) shall, in any case, be located no more than 20
miles from the Executive's principal place of employment at the date hereof.
3. TERMINATION OF EMPLOYMENT.
(a) EXPIRATION OF EMPLOYMENT PERIOD, DEATH OR DISABILITY. The
Executive's employment shall terminate automatically upon the expiration of the
Employment Period or the Executive's death during the Employment Period. If the
Company determines in good faith that the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Executive written notice in accordance with
Section 10(b) of this Agreement of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), provided that, within the 30 days
after such receipt, the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Executive from the Executive's duties
with the Company on a full-time basis for 180 consecutive days as a result of
incapacity due to mental or physical illness or injury.
(b) CAUSE. The Company may terminate the Executive's
employment during the Employment Period for Cause. For purposes of this
Agreement, "Cause" shall mean:
(i) the engaging by the Executive in illegal conduct
constituting a felony, or
(ii) gross intentional misconduct which is materially
and demonstrably injurious to the Company or KeyCorp, or
(iii) any material breach by the Executive of Section
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has given the Executive notice thereof and the Executive has failed to cure such
breach within 10 days after such notice is effective, or
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(iv) conduct that results in the permanent loss of
the Executive's professional license to conduct business or in the Executive's
being disqualified or barred by banking or security law regulators from serving
in the capacity contemplated by this Agreement for six months or more.
The employment of the Executive shall not be deemed to be terminated for Cause
unless and until there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less than two-thirds of
the entire membership of the Board of Directors of KeyCorp, or its successor
(the "Board"), at a meeting of the Board called and held for such purpose (after
reasonable notice is provided to the Executive and the Executive is given an
opportunity, together with counsel, to be heard before the Board), finding that,
in the good faith opinion of the Board, the Executive is guilty of the conduct
described in any of subparagraphs (i) through (iv) above, and specifying the
particulars thereof in detail.
(c) GOOD REASON. The Executive's employment may be terminated
during the Employment Period by the Executive for Good Reason. For purposes of
this Agreement, "Good Reason" shall mean a material breach by the Company of an
obligation of the Company under this Agreement, without the consent or
concurrence of the Executive, that the Company has failed to cure within 10 days
after the effective time at which the Executive has given the Company and
KeyCorp written notice of such breach. A breach described in this clause
includes (i) the relocation of the Executive's principal place of employment to
any location more than 20 miles from the Executive's principal place of
employment on the Commencement Date, (ii) the failure of the Company to obtain
an agreement reasonably satisfactory to the Executive from any successor to
assume and agree to perform this Agreement, as contemplated in Section 9 hereof,
or (iii) any termination of the Executive's employment which is not effected
pursuant to the terms of this Agreement. Notwithstanding the foregoing, the
Executive's failure to give notice to the Company and KeyCorp of his objection
to an event alleged to constitute "Good Reason" within 45 days after the date of
occurrence of such event shall be deemed a waiver of such event by the Executive
and the Executive thereafter may not terminate his employment hereunder for Good
Reason based on such event.
(d) EARLY TERMINATION DATE. The Executive's employment may be
terminated by the Executive, in his sole discretion, effective any date on or
after January 19, 2003 (but not later than October 22, 2003), upon 30 days'
advance Notice of Termination (as defined below) to the Company and KeyCorp. The
effective date of such termination is referred to herein as the "Early
Termination Date."
(e) FOLLOWING A CHANGE OF CONTROL OF KEYCORP. The Executive's
employment may be terminated during the Employment Period by the Executive, in
his sole discretion, at any time within two years after a Change of Control,
upon 30 days' advance Notice of Termination to the Company and KeyCorp. For
purposes of this Agreement, "Change of Control" shall be defined as set forth in
Schedule A, attached hereto.
(f) NOTICE OF TERMINATION. Any termination by the Company for
Cause, or by the Executive for Good Reason, on the Early Termination Date or
within two years after a Change of Control, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 10(b) of
this Agreement. For purposes of this Agreement, a
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"Notice of Termination" means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated and
(iii) specifies the Date of Termination. The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder, except as otherwise
set forth in Section 3(c).
(g) DATE OF TERMINATION. "Date of Termination" means (i) if
the Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of termination of employment that is set
forth in the Notice of Termination (which shall not be earlier than the date on
which such notice is given and which shall be subject to any applicable cure
period), (ii) if the Executive's employment is terminated by the Company other
than for Cause or Disability, or the Executive resigns without Good Reason
(other than on the Early Termination Date or within two years after a Change of
Control), the date on which the Company or the Executive notifies the Executive
or the Company, respectively, of such termination, (iii) if the Executive's
employment is terminated by reason of expiration of the Employment Period, death
or Disability, the date of expiration of the Employment Period, death of the
Executive or the Disability Effective Date, as the case may be, and (iv) if the
Executive's employment is terminated by the Executive on the Early Termination
Date or within two years after a Change of Control, the Early Termination Date
or the date of termination of employment, respectively, set forth in the Notice
of Termination (which, in either case, shall not be earlier than the 30th day
after the date on which such notice is given).
4. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) GOOD REASON; EARLY TERMINATION DATE; OTHER THAN FOR CAUSE,
DEATH OR DISABILITY. If, during the Employment Period, the Company shall
terminate the Executive's employment other than for Cause or Disability or the
Executive shall terminate employment for Good Reason or on the Early Termination
Date:
(i) the Company shall pay to the Executive in a lump
sum in cash within 30 days after the Date of Termination the aggregate of the
amounts determined under clauses A and B below:
A. the "Accrued Obligations", which shall
mean the sum of the amounts described and payable under clause (1) or
clause (2) below (but not both), as applicable based on the Date of
Termination:
(1) if the Date of Termination
occurs on or before December 31, 2000, the Accrued Obligations
shall be the sum of (I) the Executive's 2000 Base Salary
through the Date of Termination to the extent not theretofore
paid and (II) the product of (x) $1.4 million and (y) a
fraction, the numerator of which is the number of days in
calendar year 2000 through the Date of Termination, and the
denominator of which is 365; or
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(2) if the Date of Termination
occurs after December 31, 2000, the Accrued Obligations shall
be the sum of (I) the Executive's 2000 Base Salary and Annual
Compensation through the Date of Termination to the extent not
theretofore paid and (II) any unpaid portion of the 2000
Bonus; and
B. the amount (the "Continuation
Obligation") equal to the product of (1) the number of years (including
fractions thereof) remaining from the Date of Termination until October
23, 2003 (the "Continuation Period") and (2) $1.6 million.
For purposes of this Section 4(a)(i), any amounts of compensation deferred by
the Executive into a deferral plan of KeyCorp or any affiliate, whether
voluntarily, automatically or otherwise, shall be deemed to have been paid on
the date of deferral, and all such deferred amounts shall be payable as governed
by the terms of the applicable deferral plan, subject to Section 4(a)(vi);
(ii) any unpaid portion of the Cash Retention Award
shall become fully vested and immediately payable;
(iii) the Retention Options shall become fully vested
and immediately exercisable;
(iv) to the extent not theretofore paid or provided,
the Company shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which the Executive is entitled to
receive under any plan, program, policy or practice or contract or agreement
(but excluding the KeyCorp Separation Pay Plan) of the Company and its
affiliated companies (such other amounts and benefits shall be hereinafter
referred to as the "Other Benefits");
(v) for the duration of the Continuation Period, the
Executive and the Executive's dependents shall continue to be eligible to
participate in the medical, dental, health and group-term life benefit plans and
arrangements applicable to the Executive immediately prior to the Date of
Termination on the same terms and conditions as in effect for the Executive and
the Executive's dependents immediately prior to the Date of Termination;
(vi) any compensation previously deferred by the
Executive (together with any accrued interest or earnings thereon), including
the Executive's employer match and employee share under all automatic and
voluntary deferral programs in which the Executive participated while employed
by the Company, shall become fully vested and nonforfeitable and all such
deferred compensation shall be payable as governed by, and subject to, the terms
of the applicable deferral plan; and
(vii) the Executive shall be entitled to participate,
at his cost, in KeyCorp's Retiree Medical Plan (the "Retiree Medical Plan")
through age 65, or through such later age through which participants in the
Retiree Medical Plan may continue to participate therein under the terms thereof
as amended with general application to all participants therein from time to
time. Consistent with the requirements of the Retiree Medical Plan, in the event
this Agreement terminates and is not renewed, this clause providing for retiree
medical benefits shall be deemed to be part of a termination agreement. The
Executive acknowledges and agrees
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that, consistent with the requirements of the Retiree Medical Plan, he must
inform KeyCorp at the time of termination of his employment whether he wishes to
participate in the Retiree Medical Plan and if he does not then elect
participation in the Retiree Medical Plan or ever ceases participation, he shall
not later be eligible to elect or resume participation. Such requirement to
elect participation in the Retiree Medical Plan at the time of termination of
employment (or forego participation therein) shall apply to the Executive
notwithstanding any potentially duplicate benefits (if any) that may be
available to the Executive under Section 4(a)(v) pursuant to the terms of this
Agreement.
(b) DEATH. If the Executive's employment is terminated by
reason of the Executive's death during the Employment Period, this Agreement
shall terminate without further obligations to the Executive's legal
representatives under this Agreement, other than for payment of Accrued
Obligations and the Continuation Obligation, the timely payment or provision of
Other Benefits and the payments referred to in Section 4(a)(ii). Accrued
Obligations, the Continuation Obligation and the payments referred to in Section
4(a)(ii) shall be paid to the Executive's estate or beneficiary, as applicable,
in a lump sum in cash within 30 days of the Date of Termination. In addition,
the Retention Options shall become fully vested and immediately exercisable and
Section 4(a)(vi) shall be applicable. With respect to the provision of Other
Benefits, the term Other Benefits as utilized in this Section 4(b) shall include
death benefits as in effect on the date of the Executive's death.
(c) DISABILITY. If the Executive's employment is terminated by
reason of the Executive's Disability during the Employment Period, this
Agreement shall terminate without further obligations to the Executive, other
than for payment of Accrued Obligations and the Continuation Obligation, the
timely payment or provision of Other Benefits and the payments referred to in
Section 4(a)(ii). Accrued Obligations, the Continuation Obligation and the
payments referred to in Section 4(a)(ii) shall be paid to the Executive in a
lump sum in cash within 30 days of the Date of Termination. In addition, the
Retention Options shall become fully vested and immediately exercisable and
Sections 4(a)(v), 4(a)(vi) and 4(a)(vii) shall be applicable. With respect to
the provision of Other Benefits, the term Other Benefits as utilized in this
Section 4(c) shall include, and the Executive shall be entitled after the
Disability Effective Date to receive, disability and other benefits as in effect
on the Disability Effective Date; provided, however, that the Executive hereby
assigns to KeyCorp any amounts that are paid or payable to the Executive under
the KeyCorp Long Term Disability Plan (or any successor plan) for any period
coinciding with the Continuation Period and the Executive further agrees, should
the Executive receive any such amount, to pay such amount promptly to KeyCorp.
(d) CAUSE; OTHER THAN FOR GOOD REASON. If the Executive's
employment shall be terminated for Cause or the Executive terminates employment
without Good Reason (other than on the Early Termination Date or within two
years after a Change of Control) during the Employment Period, this Agreement
shall terminate without further obligations to the Executive other than the
obligation to pay to the Executive (x) Accrued Obligations less the amount
determined under Section 4(a)(i)A(1)(II) hereof (if applicable), and (y) Other
Benefits, in each case to the extent not theretofore paid.
(e) BY THE EXECUTIVE FOLLOWING A CHANGE OF CONTROL. If the
Executive terminates employment under Section 3(e) during the Employment Period
within two years after
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a Change of Control, the Executive shall be entitled to receive the same
payments and benefits upon such termination of employment to which the Executive
would have been entitled under the terms of Section 4(a) had he terminated his
employment for Good Reason at that time, except that, in lieu of the
Continuation Obligation, the Company shall pay to the Executive in a lump sum in
cash within 30 days after the Date of Termination the greater of the amount set
forth in clause (i) or the amount set forth in clause (ii) below:
(i) the amount of the Continuation Obligation that
would have been payable to the Executive had he terminated his employment for
Good Reason on such Date of Termination; or
(ii) $1.6 million.
In addition, for purposes of the Cash Retention Award and the Retention Options,
the Executive's employment shall be deemed to have been terminated under the
terms of this Agreement by the Executive for Good Reason on such Date of
Termination.
(f) EXPIRATION OF THE EMPLOYMENT PERIOD. If the Executive's
employment terminates automatically upon the expiration of the Employment
Period, this Agreement shall terminate without further obligations to the
Executive, other than the right of the Executive to receive the benefits
provided for under Sections 4(a)(vi) and 4(a)(vii).
5. NON-EXCLUSIVITY OF RIGHTS. Amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any plan,
policy, practice or program of or any contract or agreement with the Company or
any of its affiliated companies (other than the KeyCorp Separation Pay Plan) at
or subsequent to the Date of Termination shall be payable in accordance with
such plan, policy, practice or program or contract or agreement except as
explicitly modified by this Agreement. The Executive shall not be entitled to
any benefits under the KeyCorp Separation Pay Plan.
6. FULL SETTLEMENT. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and such amounts
shall not be reduced whether or not the Executive obtains other employment. The
Company agrees to pay as incurred, to the full extent permitted by law, all
legal fees and expenses which the Executive may reasonably incur as a result of
any contest brought in good faith (regardless of the outcome thereof) by the
Company, the Executive or others of the validity or enforceability of, or
liability under, any provision of this Agreement (including as a result of any
contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
Federal rate provided for in Section 7872(f)(2)(A) of the Code.
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7. CONFIDENTIAL INFORMATION/NONCOMPETITION/NONSOLICITATION.
(a) The Executive shall hold in a fiduciary capacity for the
benefit of the Company all secret or confidential information, knowledge or data
relating to the Company or any of KeyCorp's affiliated companies, and their
respective businesses, which shall have been obtained by the Executive during
the Executive's employment by the Company or any of KeyCorp's affiliated
companies and which shall not be or become public knowledge (other than by acts
by the Executive or representatives of the Executive in violation of this
Agreement). After termination of the Executive's employment with the Company,
the Executive shall not, without the prior written consent of KeyCorp or as may
otherwise be required by law or legal process, communicate or divulge any such
information, knowledge or data to anyone other than KeyCorp and those designated
by it or to an attorney retained by the Executive.
(b) While employed by the Company or any of KeyCorp's
affiliates and during the Post-Employment Non-Competition Period (as defined
below), the Executive shall not, without the written consent of KeyCorp,
directly or indirectly, be connected as an officer, employee, partner, director
or otherwise with any business which engages within a 50-mile radius of any area
in which the Company or KeyCorp's Capital Partners Group conducted business
during the 12-month period immediately preceding the Executive's Date of
Termination, in any business that competes, at the time such engagement is
commenced, with any business actively conducted by the Company or KeyCorp's
Capital Partners Group. Ownership, for personal investment purposes only, of
less than 5% of the voting stock of any publicly held corporation shall not
constitute a violation hereof.
(i) For purposes of Section 7(b), the Post-Employment
Non-Competition Period shall mean a period commencing on the termination of the
Executive's employment hereunder and ending on the earliest to occur of the
following: (A) January 19, 2005; (B) two years after the Date of Termination; or
(C) if a Change of Control has occurred, that date which is six months after the
later to occur of the Change of Control or the Date of Termination.
(ii) If the Executive requests KeyCorp to waive the
noncompetition obligations of the Executive under Section 7(b) with respect to a
specific activity or event, KeyCorp agrees not to withhold its consent to the
Executive's engaging in such activity or event if the activity or event were not
likely to be adverse to the economic or other business interests of KeyCorp, the
Company or other affiliated companies, as determined by KeyCorp in its sole
discretion at the time such request is made.
(c) While employed by the Company or any of KeyCorp's
affiliates and for two years after the Date of Termination, the Executive shall
not, directly or indirectly, on behalf of the Executive or any other person,
solicit for employment by other than KeyCorp or its affiliates any person
employed by KeyCorp or its affiliates.
(d) While employed by the Company or any of its affiliates and
for two years after the Date of Termination, the Executive will not, directly or
indirectly, on behalf of the Executive or any other person, solicit any customer
or client who was a customer or client of the Company or KeyCorp's Capital
Partners Group during the 12-month period immediately
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preceding the Date of Termination, for the purpose of providing such customer or
client with services that are directly competitive with the services provided by
the Company or KeyCorp's Capital Partners Group, provided that under no
circumstances may the Executive solicit any customer or client for the purpose
of providing services relating to business that was under discussion prior to
the Date of Termination.
(e) In the event of a breach or threatened breach of this
Section 7, the Executive agrees that the Company and KeyCorp shall be entitled
to injunctive relief in a court of competent jurisdiction to remedy any such
breach or threatened breach, and the Executive acknowledges that damages would
be inadequate and insufficient.
(f) The provisions of this Section 7 shall remain in full
force and effect until the expiration of the period specified herein
notwithstanding the earlier termination of the Executive's employment hereunder.
8. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Anything in this Agreement to the contrary notwithstanding
and except as set forth below, in the event it shall be determined that any
payment or distribution by the Company to or for the benefit of the Executive
(whether paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise, but determined without regard to any additional
payments required under this Section 8) (a "Payment") would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or penalties are
incurred by the Executive with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then the Executive shall be entitled to
receive an additional payment (a "Gross-Up Payment") in an amount such that
after payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, any income
taxes (and any interest and penalties imposed with respect thereto) and Excise
Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
Notwithstanding the foregoing provisions of this Section 8(a), if it shall be
determined that the Executive is entitled to a Gross-Up Payment, but that the
Payments do not exceed 110% of the greatest amount (the "Reduced Amount") that
could be paid to the Executive such that the receipt of Payments would not give
rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive
and the Payments, in the aggregate, shall be reduced to the Reduced Amount.
(b) Subject to the provisions of Section 8(c), all
determinations required to be made under this Section 8, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by Ernst & Young LLP or such other certified public accounting firm reasonably
acceptable to the Company as may be designated by the Executive (the "Accounting
Firm") which shall provide detailed supporting calculations both to the Company
and the Executive within 15 business days of the receipt of notice from the
Executive that there has been a Payment, or such earlier time as is requested by
the Company. All fees and expenses of the Accounting Firm shall be borne solely
by the Company. Any Gross-Up Payment, as determined pursuant to this Section 8,
shall be paid by the Company to the Executive within five
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days of the later of (i) the due date for the payment of any Excise Tax, and
(ii) the receipt of the Accounting Firm's determination. Any determination by
the Accounting Firm shall be binding upon the Company and the Executive. As a
result of the uncertainty in the application of Section 4999 of the Code at the
time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by the Company
should have been made ("Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts its
remedies pursuant to Section 8(c) and the Executive thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than ten business days after the Executive
is informed in writing of such claim and shall apprise the Company of the nature
of such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which it gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(i) give the Company any information reasonably
requested by the Company relating to such claim,
(ii) take such action in connection with contesting
such claim as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in
order effectively to contest such claim, and
(iv) permit the Company to participate in any
proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 8(c), the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and xxx for a refund or contest the claim
in any permissible manner, and the Executive agrees to prosecute such contest to
a determination before any administrative tribunal, in a court of initial
jurisdiction and in one
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or more appellate courts, as the Company shall determine; provided, however,
that if the Company directs the Executive to pay such claim and xxx for a
refund, the Company shall advance the amount of such payment to the Executive,
on an interest-free basis and shall indemnify and hold the Executive harmless,
on an after-tax basis, from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and further provided
that any extension of the statute of limitations relating to payment of taxes
for the taxable year of the Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and the
Executive shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 8(c), the Executive becomes entitled
to receive any refund with respect to such claim, the Executive shall (subject
to the Company's complying with the requirements of Section 8(c)) promptly pay
to the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Section 8(c), a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid.
9. SUCCESSORS.
(a) This Agreement is personal to the Executive and without
the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and KeyCorp and their respective successors and
assigns. The Company and KeyCorp may assign this Agreement without the consent
of the Executive, including to any affiliated company, subject to Section 9(c).
(c) The Company and KeyCorp will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company or
KeyCorp, or any business of the Company or KeyCorp for which the Executive's
services are principally performed, to assume expressly and agree to perform
this Agreement in the same manner and to the same extent that the Company or
KeyCorp would be required to perform it if no such succession had taken place.
As used in this Agreement, "Company" and "KeyCorp" shall mean the Company and
KeyCorp as hereinbefore defined and any successors to their business and/or
assets as aforesaid which assume and agree to perform this Agreement by
operation of law, or otherwise.
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10. GENERAL PROVISIONS.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without reference to principles
of conflict of laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect. This Agreement may not be
amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
IF TO THE EXECUTIVE: Xxxxxxx X. Xxxxxxx, Xx.
------------------- 20749 Beachcliff
Xxxxx Xxxxx, Xxxx 00000
IF TO THE COMPANY: McDonald Investments Inc.
----------------- 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Att: Chief Executive Officer
COPY TO: KeyCorp
------- 000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Att: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The parties agree to treat all amounts paid to the
Executive hereunder as compensation for services. Accordingly, the Company may
withhold from any amounts payable under this Agreement such Federal, state,
local or foreign taxes as shall be required to be withheld pursuant to any
applicable law or regulation.
(e) This Agreement supersedes any other agreement, written or
oral (including the Prior Agreement and the Change of Control Agreement),
pertaining to the Executive's employment by the Company, KeyCorp or any
affiliate. The parties hereto agree that the Prior Agreement and the Change of
Control Agreement are each hereby terminated and that neither such agreement
shall be of any further force or effect. The Executive hereby irrevocably waives
and consents to any event or action by the Company, KeyCorp or any affiliate
that may have been a breach of the Prior Agreement, so long as such event or
action is not a breach of this Agreement, and the Executive agrees that any such
event or action shall have no effect on the Cash Retention Award or the
Retention Options.
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(f) This Agreement may be executed in counterparts, which
together shall constitute one and the same original.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization from their respective Boards
of Directors, the Company and KeyCorp have caused these presents to be executed
in their names on their behalf, all as of the day and year first above written.
-----------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
MCDONALD INVESTMENTS INC.
-----------------------------------
By: Xxxxxx X. Xxxxxxxxxxx
Title: Chief Executive Officer
KEYCORP
-----------------------------------
By: Xxxxxx X. Xxxxxxx
Title: Senior Executive Vice President,
General Counsel and Secretary
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SCHEDULE A
----------
DEFINITION OF CHANGE OF CONTROL
-------------------------------
For purposes of this Agreement, a "Change of Control" shall be deemed to have
occurred if, at any time during the Employment Period, there is a Change of
Control under any of clauses (a), (b), (c), or (d) below. For these purposes,
KeyCorp shall be deemed to have become a subsidiary of another corporation if
any other corporation (which term shall, for all purposes of this Schedule A,
include, in addition to a corporation, a limited liability company, partnership,
trust, or other organization) owns, directly or indirectly, 50 percent or more
of the total combined outstanding voting power of all classes of stock of
KeyCorp or any successor to KeyCorp.
(a) A Change of Control will have occurred under this clause (a)
if KeyCorp is a party to a transaction pursuant to which
KeyCorp is merged with or into, or is consolidated with, or
becomes the subsidiary of another corporation and either
(i) immediately after giving effect to that transaction,
less than 65% of the then outstanding voting
securities of the surviving or resulting corporation
or (if KeyCorp becomes a subsidiary in the
transaction) of the ultimate parent of KeyCorp
represent or were issued in exchange for voting
securities of KeyCorp outstanding immediately prior
to the transaction, or
(ii) immediately after giving effect to that transaction,
individuals who were directors of KeyCorp on the day
before the first public announcement of (x) the
pendency of the transaction or (y) the intention of
any person or entity to cause the transaction to
occur, cease for any reason to constitute at least
51% of the directors of the surviving or resulting
corporation or (if KeyCorp becomes a subsidiary in
the transaction) of the ultimate parent of KeyCorp.
(b) A Change of Control will have occurred under this clause (b)
if a tender or exchange offer shall be made and consummated
for 35% or more of the outstanding voting stock of KeyCorp or
any person (as the term "person" is used in Section 13(d) and
Section 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "1934 Act")) is or becomes the beneficial owner
of 35% or more of the outstanding voting stock of KeyCorp or
there is a report filed on Schedule 13D or Schedule 14D-1 (or
any successor schedule, form or report), each as adopted under
the 1934 Act, disclosing the acquisition of 35% or more of the
outstanding voting stock of KeyCorp in a transaction or series
of transactions by any person (as defined earlier in this
clause (b));
(c) A Change of Control will have occurred under this clause (c)
if either
(i) without the prior approval, solicitation, invitation,
or recommendation of the KeyCorp Board of Directors
any person or entity makes a public announcement of a
bona fide intention (A) to engage in a transaction
with
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KeyCorp that, if consummated, would result in a
Change Event (as defined below in this clause (c)),
or (B) to "solicit" (as defined in Rule 14a-1 under
the 0000 Xxx) proxies in connection with a proposal
that is not approved or recommended by the KeyCorp
Board of Directors, or
(ii) any person or entity publicly announces a bona fide
intention to engage in an election contest relating
to the election of directors of KeyCorp (pursuant to
Regulation 14A under the 1934 Act),
and, at any time within the 24 month period immediately
following the date of the announcement of that intention,
individuals who, on the day before that announcement,
constituted the directors of KeyCorp (the "Incumbent
Directors") cease for any reason to constitute at least a
majority thereof unless both (A) the election, or the
nomination for election by KeyCorp's shareholders, of each new
director was approved by a vote of at least two-thirds of the
Incumbent Directors in office at the time of the election or
nomination for election of such new director, and (B) prior to
the time that the Incumbent Directors no longer constitute a
majority of the Board of Directors, the Incumbent Directors
then in office, by a vote of at least 75% of their number,
reasonably determine in good faith that the change in Board
membership that has occurred before the date of that
determination and that is anticipated to thereafter occur
within the balance of the 24 month period to cause the
Incumbent Directors to no longer be a majority of the Board of
Directors was not caused by or attributable to, in whole or in
any significant part, directly or indirectly, proximately or
remotely, any event under subclause (i) or (ii) of this clause
(c).
For purposes of this clause (c), the term "Change Event" shall
mean any of the events described in the following subclauses
(x), (y), or (z) of this clause (c):
(x) A tender or exchange offer shall be made for 25% or
more of the outstanding voting stock of KeyCorp or
any person (as the term "person" is used in Section
13(d) and Section 14(d)(2) of the 0000 Xxx) is or
becomes the beneficial owner of 25% or more of the
outstanding voting stock of KeyCorp or there is a
report filed on Schedule 13D or Schedule 14D-1 (or
any successor schedule, form, or report), each as
adopted under the 1934 Act, disclosing the
acquisition of 25% or more of the outstanding voting
stock of KeyCorp in a transaction or series of
transactions by any person (as defined earlier in
this subclause (x)).
(y) KeyCorp is a party to a transaction pursuant to which
KeyCorp is merged with or into, or is consolidated
with, or becomes the subsidiary of another
corporation and, after giving effect to such
transaction, less than 50% of the then outstanding
voting securities of the surviving or resulting
corporation or (if KeyCorp becomes a subsidiary in
the transaction) of the ultimate parent of KeyCorp
represent or were issued in exchange for voting
securities of KeyCorp outstanding immediately prior
to such transaction or less than 51% of the directors
of the surviving or resulting
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20
corporation or (if KeyCorp becomes a subsidiary in
the transaction) of the ultimate parent of KeyCorp
were directors of KeyCorp immediately prior to such
transaction.
(z) There is a sale, lease, exchange, or other transfer
(in one transaction or a series of related
transactions) of all or substantially all the assets
of KeyCorp.
(d) A Change of Control will have occurred under this clause (d)
if there is a sale, lease, exchange, or other transfer (in one
transaction or a series of related transactions) of all or
substantially all of the assets of KeyCorp.
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