Contract

EXHIBIT 10.28 KEYCORP SECOND EXCESS CASH BALANCE PENSION PLAN ARTICLE I THE PLAN The KeyCorp Second Excess Cash Balance Pension Plan (“Plan”), is herebyestablished December 28, 2004 to be effective January 1, 2005. The Plan, asstructured, is designed to provide certain select employees of KeyCorp with aPlan benefit that is generally equal to the benefit that the employee wouldhave been eligible to receive under the KeyCorp Cash Balance Pension Plan butfor the compensation and accrual limitations imposed by Section 401(a)(17) andSection 415 of the Internal Revenue Code of 1986, as amended, as well as anyvested benefit provided to the employee under the KeyCorp Excess Cash BalancePension Plan. It is the intention of the Plan and it is the understanding ofthose employees covered under the Plan that the Plan is unfunded for taxpurposes and for purposes of Title I of the Employee Retirement Income SecurityAct of 1974, as amended. ARTICLE II DEFINITIONS2.1 MEANINGS OF DEFINITIONS. As used herein, the following words and phrasesshall have the meanings hereinafter set forth, unless a different meaning isplainly required by the context: (a) “BENEFICIARY” shall mean the person, persons or entity entitled toreceive the Participant’s Plan benefits, if any, that are payable after aParticipant’s death. (b) “CREDITED SERVICE” shall be calculated by measuring the period ofservice commencing on the Participant’s Employment Commencement Date and Re-Employment Commencement Date, if applicable, and ending on the Participant’sSeverance from Service Date. Credited Service shall be computed based on eachfull month that the Employee is employed by an Employer. (c) “COMPENSATION” of a Participant for any Plan Year or any partialPlan Year in which the Participant incurs a Severance From Service Date shallmean the entire amount of compensation paid to such Participant during suchperiod by reason of his employment as an Employee, as reported for federalincome tax purposes, or which would have been paid except for (1) the timing ofan Employer’s payroll processing operations, (2) the Participant’s writtenelection to defer the receipt of compensation during the Plan Year, (3) theprovisions of the KeyCorp 401(k) Savings Plan, or (4) the provisions of theKeyCorp Flexible Benefits Plan and/or any transportation reimbursement plan forthe applicable Plan year provided, however, the term shall not include: (i) any amount attributable to the Participant’s exercise of stock appreciation rights and the amount of any gain to the Participant upon the exercise of stock options; (ii) any amount attributable to the Participant’s receipt of non- cash remuneration whether or not it is included in the Participant’s income for federal income tax purposes; (iii) any amount attributable to the Participant’s receipt of moving expenses and any relocation bonus paid to the Participant during the Plan Year; (iv) any amount attributable to any severance paid by an Employer or the Corporation to the Participant; (v) any amount attributable to fringe benefits (cash and non- cash); (vi) any amount attributable to any bonus or payment made as an inducement for the Participant to accept employment with an Employer; (vii) any amount attributable to salary deferrals paid to the Participant during the Plan Year, which have been previously included as Compensation under the Plan during the Plan Year or any prior Plan Year; (viii)any amount paid to the Participant during the Plan Year which is attributable to interest earned on Compensation deferred under a plan of an Employer or the Corporation; and (ix) any amount paid for any period after the Participant’s Termination or Retirement date. In determining a Participant’s Compensation under the provisions of thisSection 2.1(c), for those Plan Participants who participate in a line ofbusiness incentive plan (other than the KeyCorp Annual Incentive Plan, theKeyCorp Long Term Incentive Plan and/or the KeyCorp Staff Incentive Plan),compensation up to a Plan maximum of $500,000 minus the amount of theParticipant’s compensation utilized in computing his or her Pension Planbenefit in accordance with Section 401(a)(17) of the Code shall be utilized incalculating the Participant’s benefit under the Plan. In the case of a Disabled Participant, such Participant’s Compensationfor each year while Disabled shall equal an amount which shall reflect theParticipant’s Compensation for the calendar year preceding the date of theParticipant’s Disability. (d) “CORPORATION” shall mean KeyCorp, an Ohio corporation, itscorporate successors, and any corporation or corporations into or with which itmay be merged or consolidated. (e) “DISABILITY” shall mean (1) the physical or mental disability of apermanent nature which prevents a Participant from performing the duties suchParticipant was employed to perform for his or her Employer when suchdisability commenced, (2) qualifies for disability benefits under the federalSocial Security Act within 30 months following the Participant’s disability,and (3) qualifies the Participant for disability coverage under the KeyCorpLong Term Disability Plan. In addition to the foregoing, the disabilityrequirements addressed in Section 409A of the Code are incorporated into theprovisions of this definition. (f) “EMPLOYEE” shall mean a common law employee who is employed by anEmployer; provided, however, the term “Employee” shall not include any personwho at the time services are performed is not classified as a common lawemployee by the Employer even though such person may for federal income taxpurposes, federal employment tax purposes, or any other purpose be reclassifiedby the Employer as a common law employee retroactive to when such services wereperformed by reason of administrative, judicial, regulatory or othergovernmental action. (g) “EMPLOYER” shall mean KeyCorp and all of its subsidiaries oraffiliates unless specifically excluded as an Employer for Plan purposes bywritten action by an officer of the Corporation. An Employer’s participationshall be subject to any and all conditions and requirements made by theCorporation as the Plan Administrator, and each Employer shall be deemed tohave appointed the Plan Administrator as its exclusive agent under the Plan. (h) “EXCESS PENSION BENEFIT” shall mean the vested pension benefitpayable pursuant to the terms of this Plan to a Participant meeting theeligibility requirements of Section 3.1 of the Plan. (i) “EXCESS PENSION PROGRAM BENEFIT” shall mean the Participant’scollective nonqualified pension benefit accrued under the KeyCorp Excess CashBalance Pension Plan and KeyCorp Second Excess Cash Balance Pension Plan,subject to the terms and conditions of each respective Plan. (j) “EXECUTIVE SUPPLEMENTAL PENSION PROGRAM BENEFIT” shall mean theParticipants’ collective nonqualified pension benefit accrued under the KeyCorpExecutive Supplemental Pension Plan and KeyCorp Second Executive SupplementalPension Plan, subject to the terms and conditions of each respective Plan. (k) “INTEREST CREDIT” shall mean the rate at which a Participant’sOpening Account Balance as provided for under Section 3.3 of the Plan isperiodically increased on a bookkeeping basis. The Interest Credit allocatedto a Participant’s Opening Account Balance shall be determined based on one-quarter of the effective annual calendar-year interest rate equal to theaverage (rounded to the nearest one-hundredth of one percent) 5-year UnitedStates Treasury Bill rate in effect each month during the twelve (12) monthperiod ending on October 31 or the last business day in October of thepreceding calendar year. The procedures to determine such Interest Creditshall be determined by the Pension Trust Oversight Committee, and the PensionTrust Oversight Committee in its sole and exclusive discretion may modify theInterest Credit to be allocated under the Plan. (l) “PARTICIPANT” shall mean an Employee who is a participant in thePension Plan and who is selected by the Corporation to become a Participant inthe Plan, and whose participation in the Plan has not been terminated by theCorporation. (m) “PENSION PLAN” shall mean the KeyCorp Cash Balance Pension Plan, asthe same shall be in effect on the date of a Participant’s Retirement, death,Disability or other termination of employment. (n) “RETIREMENT” shall mean the termination of employment of aParticipant under circumstances in which entitle the Participant to receive anEarly Retirement or Normal Retirement Date benefit under the KeyCorp CashBalance Pension Plan. (o) “SUPPLEMENTAL RETIREMENT PLAN” shall mean the KeyCorp SupplementalRetirement Plan (formerly known as the Society Corporation SupplementalRetirement Plan), the KeyCorp Excess Pension Benefit Plan, and the KeyCorpExcess Pension Benefit Plan for Key Executives, with all amendments madethereto. (p) “TERMINATION” shall mean the voluntary or involuntary and permanenttermination of a Participant’s employment from his or her Employer and anyother Employer, whether by resignation or otherwise. All other capitalized and undefined terms used herein shall have themeanings given them in the Pension Plan, unless a different meaning is plainlyrequired by the context. The masculine gender includes the feminine, and singular referencesinclude the plural, unless the context clearly requires otherwise. ARTICLE III EXCESS PENSION BENEFIT3.1 ELIGIBILITY. A Participant selected by the Corporation to participate inthe Plan shall be eligible for an Excess Pension Benefit hereunder if theParticipant (i) terminates employment with an Employer on or after age 55 withfive or more years of Credited Service, (ii) terminates his or her activeemployment with an Employer in conjunction with his or her Disability aftercompleting five or more years of Credited Service and disability benefits haveceased under the KeyCorp Long-Term Disability Plan due to the Participant’selection of an Early or Normal Retirement under the Pension Plan, or (iii) diesafter completing five years of Credited Service and has a Beneficiary who iseligible for a benefit under the Pension Plan. A Participant shall also be eligible for an Excess Pension Benefit if theParticipant becomes involuntarily terminated from his or her employment with anEmployer for reasons other than the Participant’s Discharge for Cause, and (i)as of the Participant’s termination date the Participant has a minimum oftwenty-five (25) or more years of Credited Service, and (ii) the Participantenters into a written non-solicitation and non-compete agreement with theEmployer under terms that are satisfactory to the Employer. For purposes of this Section 3.1, hereof, the term “Discharge for Cause”shall mean a Participant’s employment termination that is the result of theParticipant’s violation of the Employer’s policies, practices or procedures,violation of city, state, or federal law, or failure to perform his or herassigned job duties in a satisfactory manner. The Employer shall determinewhether a Participant has been Discharged for Cause. Notwithstanding any of the forgoing provisions of this Section 3.1,however, a Participant’s eligibility for an Excess Pension Benefit shall besubject to the requirements of Article V of the Plan.3.2 AMOUNT OF EXCESS PENSION BENEFIT. The Excess Pension Benefit payable toa Participant shall be in such amount as is required, when added to the excesspension benefit payable in lump sum form to the Participant under the KeyCorpExcess Cash Balance Pension Plan (if any) and the Accrued Benefit payable inlump sum form to the Participant under the Pension Plan as of the Participant’sRetirement or Termination date to produce a lump sum cash aggregate benefitequal to the benefit which would have been payable under the Pension Planformula in lump sum form to the Participant if the limitations of Section401(a)(17) of the Code and the limitations of Section 415 of the Code had notbeen in effect. For purposes of this Section 3.2 hereof, the term “PensionPlan formula” means themethod of calculating a Participant’s pension benefit as reflected in Article IVof the Pension Plan and shall not include any Predecessor Plan GrandfatheredBenefits formula.3.3 OPENING ACCOUNT BALANCE. Effective January 1, 2005, Participants in thefrozen KeyCorp Excess Cash Balance Pension Plan who as of December 31, 2004were not vested in their Excess Cash Balance Pension Plan benefit shall havetheir accrued but not vested benefit transferred to this Plan and reflected ina bookkeeping opening account balance (“Opening Account Balance”) establishedfor the Participant. Such Opening Account Balance shall be credited withInterest Credit as of the last day of each calendar quarter, based on the valueof the Participant’s Opening Account Balance as of the first day of theapplicable quarter. A Participant’s entitlement to this Opening AccountBalance shall be governed by the eligibility provisions of Section 3.1 of thisPlan, and the value of the Opening Account Balance shall be added to and becomea part of such Participant’s Excess Pension Benefit, if any, which shall bepayable in accordance with the terms of this Plan. The establishment of theParticipant’s Plan Opening Account Balance shall terminate the Participant’sentitlement to any benefit under the frozen KeyCorp Excess Cash Balance PensionPlan. ARTICLE IV PAYMENT OF EXCESS PENSION BENEFIT4.1 IMMEDIATE PAYMENT UPON TERMINATION OR RETIREMENT OF PARTICIPANT. Subjectto the provisions of Section 4.2, Section 4.4, and Section 4.5 hereof, aParticipant meeting the age and service eligibility requirements of Section 3.1shall receive an immediate distribution of his or her Excess Pension Benefitupon the Participant’s Termination date. Such Excess Pension Benefit shall bepaid in the form of a single life annuity, unless the Participant elects inwriting, a minimum of thirty days prior to the Participant’s Termination dateto receive his or her distribution under a different form of payment that isactuarially equivalent to the Participant’s Excess Pension Benefit when paid asa single life annuity payment. The forms of payment from which a Participantmay elect shall be identical to those forms of payment provided under thePension Plan, provided however, that the lump sum payment option availableunder the Pension Plan shall not be a form of distribution available under thisPlan. Such payment method, once elected by the Participant, shall beirrevocable. In calculating the Participant’s actuarially equivalent form ofdistribution the Corporation shall rely upon calculations made by independentactuaries for the Pension Plan, who shall apply the actuarial assumptions andinterest rate then in use under the Pension Plan for converting to the form ofpayment elected by the Participant.4.2 SUSPENSION OF DISTRIBUTION. Notwithstanding the foregoing provisions ofthis Section 4.2, however, in the event of the Participant’s Termination andwithin twelve months of such Termination date the Participant engages in anyHarmful Activity, and upon notice by the Corporation of such Harmful Activitythe Participant fails to terminate such Activity, then by operation of thisSection 4.2 hereof and without any further notice to the Participant allfurther distributions of the Participant’s Excess Pension Benefit shall beimmediately suspended for a period of five (5) years following theCorporation’s notice to the Participant of his or her Harmful Activity. For purposes of this Section 4.2, a “Harmful Activity” shall haveoccurred if the Participant shall do any one or more of the following: (i) Use, publish, sell, trade or otherwise disclose Non-Public Information of KeyCorp unless such prohibited activity was inadvertent, done in good faith and did not cause significant harm to KeyCorp. (ii) After notice from KeyCorp, fail to return to KeyCorp any document, data, or thing in his or her possession or to which the Participant has access that may involve Non-Public Information of KeyCorp. (iii) After notice from KeyCorp, fail to assign to KeyCorp all right, title, and interest in and to any confidential or non-confidential Intellectual Property which the Participant created, in whole or in part, during employment with KeyCorp, including, without limitation, copyrights, trademarks, service marks, and patents in or to (or associated with) such Intellectual Property. (iv) After notice from KeyCorp, fail to agree to do any acts and sign any document reasonably requested by KeyCorp to assign and convey all right, title, and interest in and to any confidential or non- confidential Intellectual Property which the Participant created, in whole or in part, during employment with KeyCorp, including, without limitation, the signing of patent applications and assignments thereof. (v) Upon the Participant’s own behalf or upon behalf of any other person or entity that competes or plans to compete with KeyCorp, solicit or entice for employment or hire any KeyCorp employee. (vi) Upon the Participant’s own behalf or upon behalf of any other person or entity that competes or plans to compete with KeyCorp, call upon, solicit, or do business with (other than business which does not compete with any business conducted by KeyCorp) any KeyCorp customer the Participant called upon, solicited, interacted with, or became acquainted with, or learned of through access to information (whether or not such information is or was non-public) while the Participant was employed at KeyCorp unless such prohibited activity was inadvertent, done in good faith, and did not involve a customer whom the Participant should have reasonably known was a customer of KeyCorp. (vii) Upon the Participant’s own behalf or upon behalf of any other person or entity that competes or plans to compete with KeyCorp, after notice from KeyCorp, continue to engage in any business activity in competition with KeyCorp in the same or a closely related activity that the Participant was engaged in for KeyCorp during the one year period prior to the termination of the Participant’s employment. For purposes of this Section 4.2 the term: “INTELLECTUAL PROPERTY” shall mean any invention, idea, product, method of doing business, market or business plan, process, program, software, formula, method, work of authorship, or other information, or thing relating to KeyCorp or any of its businesses. “NON-PUBLIC INFORMATION” shall mean, but is not limited to, trade secrets, confidential processes, programs, software, formulas, methods, business information or plans, financial information, and listings of names (e.g., employees, customers, and suppliers) that are developed, owned, utilized, or maintained by an employer such as KeyCorp, and that of its customers or suppliers, and that are not generally known by the public. “KEYCORP” shall include KeyCorp, its subsidiaries, and its affiliates.4.3 PAYMENT UPON DEATH OF PARTICIPANT. (a) Upon the death of a Participant who has met the service requirementof Section 3.1, but who has not yet commenced distribution of his or her ExcessPension Benefit, there shall be paid to the Participant’s Beneficiary theExcess Pension Benefit that the Participant would have been entitled to receivehad the Participant retired on his or her date of death and commenceddistribution of his or her Excess Pension Benefit. Such Excess Pension Benefitshall be paid in the form of a single life annuity. (b) In the event of a Participant’s death after the Participant hascommenced distribution of his or her Excess Pension Benefit, there shall bepaid to the Participant’s Beneficiary only those survivor benefits providedunder the form of benefit payment elected by the Participant.4.4 DISTRIBUTION OF SMALL ACCOUNTS. Notwithstanding any Plan provision otherthan Section 4.5 hereof, if the value of a Participant’s vested Excess PensionBenefit as of the Participant’s Termination date is under $50,000, such balanceshall be distributed to the Participant as a single lump sum distribution assoon as reasonably practicable following the Participant’s Termination date.4.5 PAYMENT LIMITATION FOR KEY EMPLOYEES. Notwithstanding any otherprovision of the Plan to the contrary, in the event that the Participantconstitutes a “key” employee of the Corporation (as that term is defined inaccordance with Section 416(i) of the Code without regard to paragraph (5)thereof), distributions of the Participant’s Excess Pension Benefit may not bemade before the date which is six months after the Participant’s date ofseparation from service (or, if earlier, the date of death of the Participant).The term “separation from service” shall be defined for Plan purposes inaccordance with the requirements of Section 409A of the Code and applicableregulations issued thereunder. ARTICLE V DISTRIBUTION OF LARGEST PLAN BENEFIT5.1 DISTRIBUTION OF LARGEST PLAN BENEFIT. A Participant who meets theeligibility requirements for an Excess Pension Program Benefit and who alsomeets the eligibility requirements for an Executive Supplemental PensionProgram Benefit, shall automatically be provided at the Participant’sTermination the larger of the two Program benefits (i.e. the greater of theParticipant’s Excess Pension Program Benefit or the Participant’s ExecutiveSupplemental Pension Program Benefit). In making the determination required under this Section 5.1 hereof, theCorporation shall rely upon calculations made by independent actuaries for thePension Plan, who shall apply the actuarial assumptions and interest rate thenin use under the Pension Plan for converting the Participant’s Excess PensionProgram Benefit to a single life annuity form of payment. The Participantautomatically shall receive the Program Benefit that provides the Participantwith the largest monthly single life annuity benefit.5.2 BENEFICIARY DISTRIBUTION OF LARGEST PLAN BENEFIT. (a) Upon the death of a Participant meeting eligibility requirements for an Excess Pension Program Benefit and the eligibility requirements for an Executive Supplemental Pension Program Benefit there shall be paid to the Participant’s Beneficiary the larger of the two Programs’ death benefit. Such death benefit shall be paid to the Beneficiary in the form of a single life annuity. (b) In the event of a Participant’s death after the Participant has commenced distribution of his or her Plan benefit, there shall be paid to the Participant’s Beneficiary only those survivor benefits provided under the form of benefit payment elected by the Participant. ARTICLE VI ADMINISTRATION6.1 ADMINISTRATION. The Corporation, which shall be the “Administrator” ofthe Plan for purposes of ERISA and the “Plan Administrator” for purposes of theCode, shall be responsible for the general administration of the Plan, forcarrying out the provisions hereof, and for making payments hereunder. TheCorporation shall have the sole and absolute discretionary authority and powerto carry out the provisions of the Plan, including, but not limited to, theauthority and power (a) to determine all questions relating to the eligibilityfor and the amount of any benefit to be paid under the Plan, (b) to determineall questions pertaining to claims for benefits and procedures for claimreview, (c) to resolve all other questions arising under the Plan, includingany questions of construction and/or interpretation, and (d) to take suchfurther action as the Corporation deems necessary or advisable in theadministration of the Plan. All findings, decisions and determinations of anykind made by the Plan Administrator shall not be disturbed unless the PlanAdministrator has acted in an arbitrary and capricious manner. Subject to therequirements of law, the Plan Administrator shall be the sole judge of thestandard of proof required in any claim for benefits and in any determinationof eligibility for a benefit. All decisions of the Plan Administrator shall befinal and binding on all parties. The Plan Administrator may employ suchattorneys, investment counsel, agents, and accountants as it may deem necessaryor advisable to assist it in carrying out its duties hereunder. The actionstaken and the decisions made by the Plan Administrator hereunder shall be finaland binding upon all interested parties subject, however, to the provisions ofSection 6.2. The Plan Year, for purposes of Plan administration, shall be thecalendar year.6.2 CLAIMS REVIEW PROCEDURE. Whenever the Plan Administrator decides forwhatever reason to deny, whether in whole or in part, a claim for benefitsunder the Plan filed by any person (herein referred to as the “Claimant”), thePlan Administrator shall transmit a written notice of its decision to theClaimant, which notice shall be written in a manner calculated to be understoodby the Claimant and shall contain a statement of the specific reasons for thedenial of the claim and a statement advising the Claimant that, within 60 daysof the date on which the Claimant receives such notice, Claimant may obtainreview of the decision of the Plan Administrator in accordance with theprocedures hereinafter set forth. Within such 60-day period, the Claimant orClaimant’s authorized representative may request that the claim denial bereviewed by filing with the Plan Administrator a written request therefore,which request shall contain the following information: (i) the date on which the request was filed with the Plan Administrator; provided, however, that the date on which the request for review was in fact filed with the Plan Administrator shall control in the event that the date of the actual filing is later than the date stated by the Claimant pursuant to this paragraph (i); (ii) the specific portions of the denial of the Claimant’s claim which the Claimant requests the Plan Administrator to review; (iii) a statement by the Claimant setting forth the basis upon which Claimant believes the Plan Administrator should reverse its previous denial of the Claimant’s claim and accept the Claimant’s claim as made; and (iv) any written material which the Claimant desires the Plan Administrator to examine in its consideration of the Claimant’s position as stated pursuant to paragraph (iii) above. In accordance with this Section, if the Claimant requests a review of thePlan Administrator’s decision, such review shall be made by the PlanAdministrator, which shall, within sixty (60) days after receipt of the requestform, review and render a written decision on the claim containing the specificreasons for the decision including reference to Plan provisions upon which thedecision is based. All findings, decisions, and determinations of any kindmade by the Plan Administrator shall not be modified unless the PlanAdministrator has acted in an arbitrary and capricious manner. Subject to therequirements of law, the Plan Administrator shall be the sole judge of thestandard of proof required in any claim for benefits, and any determination ofeligibility for a benefit. All decisions of the Plan Administrator shall bebinding on the Claimant and upon all other Persons. If the Participant orBeneficiary shall not file written notice with the Plan Administrator at thetimes set forth above, such individual shall have waived all benefits under thePlan other than as already provided, if any, under the Plan. ARTICLE VII CORPORATE ASSETS All benefits paid under the Plan shall be payable solely out of thegeneral assets of the Corporation. The Corporation shall have no obligation toestablish a trust to fund its obligation to pay benefits under the Plan or toinsure any benefits under the Plan and nothing contained in the Plan shallcreate or be construed as creating a trust of any kind or any other fiduciaryrelationship between the Participant, the Corporation, or any other person. Itis the intention of the Corporation and the Participant that the Plan beunfunded for tax purposes and for purposes of Title I of the EmployeeRetirement Income Security Act of 1974, as amended. The Corporation may, inits sole discretion, combine the payment due and owing under the Plan with oneor more other payments owing to the Participant or the Participant’sBeneficiary under any other plan, contract, or otherwise (other than anypayment due under the Pension Plan) in one check, direct deposit, wiretransfer, or other means of payment. ARTICLE VIII AMENDMENT AND TERMINATION8.1 TERMINATION OR AMENDMENT. The Corporation reserves the right to amend orterminate the Plan at any time by action of its Board of Directors, or any dulyauthorized Committee thereof; provided, however, that no such action shalladversely affect any Participant who has met the age and service requirementsof Section 3.1 or any Participant or Participant’s Beneficiary who is receivingor who is eligible to receive an Excess Pension Benefit hereunder, unless anequivalent benefit is provided under another plan maintained by an Employer.No amendment or termination will result in an acceleration of Excess PensionBenefits in violation of Section 409A of the Code.8.2 EFFECT OF PLAN TERMINATION. Notwithstanding anything to the contrarycontained in the Plan, the termination of the Plan shall terminate theliability of the Corporation and all Employers to provide for future benefitsunder the Plan. ARTICLE IX MISCELLANEOUS9.1 INTEREST OF PARTICIPANT. The obligation of the Employer and of theCorporation to provide a Participant or the Participant’s Beneficiary with anExcess Pension Benefit under the Plan merely constitutes the unsecured promiseof the Employer and the Corporation to make payments as provided herein and noperson shall have any interest in, or a lien or prior claim on any property ofthe Employer or Corporation.9.2 BENEFITS. Nothing in the Plan shall be construed to confer any right orclaim upon any person, firm, or corporation other than the Participant and theParticipant’s Beneficiary who may become entitled to an Excess Pension Benefitunder the Plan.9.3 NO PRESENT INTEREST. Subject to any federal statute to the contrary, noright or benefit under the Plan and no right or interest in each Participant’sPlan benefit shall be subject to anticipation, alienation, sale, assignment,pledge, encumbrance, or charge, and any attempt to anticipate, alienate, sell,assign, pledge, encumber, or charge any right or benefit under the Plan, orParticipant’s Plan Account shall be void. No right, interest, or benefit underthe Plan or the Participant’s Plan benefit shall be liable for or subject tothe debts, contracts, liabilities, or torts of the Participant or his or herBeneficiary. If the Participant or the Participant’s Beneficiary becomesbankrupt or attempts to alienate, sell, assign, pledge, encumber, or charge anyright under the Plan or the Participant’s Plan benefit, such attempt shall bevoid and unenforceable.9.4 UNFUNDED PLAN. This Plan is an unfunded plan maintained primarily toprovide deferred compensation benefits for a select group of “management orhighly-compensated employees” within the meaning of Sections 201, 301, and 401of ERISA, and therefore is exempt from the provisions of Parts 2, 3, and 4 ofTitle I of ERISA.9.5 NO COMMITMENT AS TO EMPLOYMENT. Nothing herein contained shall beconstrued as a commitment or agreement upon the part of any Employee hereunderto continue his or her employment with an Employer, and nothing hereincontained shall be construed as a commitment on the part of any Employer tocontinue the employment, rate of compensation or terms and conditions ofemployment of any Employee hereunder for any period. All Participants shallremain subject to discharge to the same extent as if the Plan had never beenput into effect.9.6 ABSENCE OF LIABILITY. No member of the Board of Directors of theCorporation or a subsidiary or committee authorized by the Board of Directors,or any officer of the Corporation or a subsidiary shall be liable for any actor action hereunder, whether of commission or omission, taken by any othermember, or by any officer, agent, or Employee, except in circumstancesinvolving bad faith or willful misconduct for anything done or omitted to bedone.9.7 EXPENSES. The Corporation will pay all Plan expenses.9.8 PRECEDENT. Except as otherwise specifically agreed to by the Corporationin writing, no action taken in accordance with the Plan by the Corporationshall be construed or relied upon as a precedent for similar action undersimilar circumstances.9.9 WITHHOLDING. The Corporation shall withhold any tax which theCorporation in its discretion deems necessary to be withheld from any paymentto any Participant, former Participant, or Beneficiary hereunder, by reason ofany present or future law.9.10 VALIDITY OF PLAN. The validity of the Plan shall be determined and thePlan shall be construed and interpreted in accordance with the provisions ofERISA, the Code, and, to the extent applicable, the laws of the State of Ohio.The invalidity or illegality of any provision of the Plan shall not affect thevalidity or legality of any other part thereof.9.11 PARTIES BOUND. The Plan shall be binding upon the Employers,Participants, former Participants, and Beneficiaries hereunder, and, as thecase may be, the heirs, executors, administrators, successors, and assigns ofeach of them.9.12 HEADINGS. All headings used in the Plan are for convenience of referenceonly and are not part of the substance of the Plan.9.13 DUTY TO FURNISH INFORMATION. The Corporation shall furnish to eachParticipant, former Participant, or Beneficiary any documents, reports,returns, statements, or other information that it reasonably deems necessary toperform its duties imposed hereunder or otherwise imposed by law.9.14 TRUST FUND. At its discretion, the Corporation may establish one or moretrusts, with such trustees as the Corporation may approve, for the purpose ofproviding for the payment of benefits owed under the Plan. Although such atrust may be irrevocable in the event of insolvency or bankruptcy of theCorporation, such assets will be subject to the claims of the Corporation’sgeneral creditors. To the extent any benefits provided under the Plan are paidfrom any such trust, the Employer shall have no further obligation to pay them.If not paid from the trust, such benefits shall remain the obligation of theEmployer.9.15 NOTICE. Any notice required or permitted under the Plan shall be deemedsufficiently provided if such notice is in writing and hand delivered or sentby registered or certified mail. Such notice shall be deemed given as of thedate of delivery or, if delivery is made by mail, as of the date shown on thepostmark or on the receipt for registration or certification. Mailed notice tothe Corporation shall be directed to the Corporation’s address, attention:KeyCorp Compensation and Benefits Department. Mailed notice to a Participantor Beneficiary shall be directed to the individual’s last known address in theEmployer’s records9.16 SUCCESSORS. The provisions of this Plan shall bind and inure to thebenefit of each Employer and its successors and assigns. The term successorsas used herein shall include any corporate or other business entity whichshall, whether by merger, consolidation, purchase or otherwise, acquire all orsubstantially all of the business and assets of an Employer. ARTICLE X CHANGE OF CONTROL Notwithstanding any other provision of the Plan to the contrary, in theevent of a Change of Control, a Participant’s interest in his or her ExcessPension Benefit shall vest, and the Participant shall be entitled to receive animmediate distribution of his or her Excess Pension Benefit, if on and after aChange of Control the Participant has at least five (5) years of CreditedService, and (i) the Participant’s employment is terminated by his or herEmployer and any other Employer without cause, or (ii) the Participant resignswithin two years following a Change of Control as a result of the Participant’smandatory relocation, reduction in the Participant’s base salary, reduction inthe Participant’s average annual incentive compensation (unless such reductionis attributable to the overall corporate or business unit performance) or theParticipant’s exclusion from stock option programs as compared to comparablysituated Employees. For purposes of this Article X hereof, “Change of Control” shall bedeemed to have occurred if under a rabbi trust arrangement established byKeyCorp (“Trust”), as such Trust may from time to time be amended orsubstituted, the Corporation is required to fund the Trust because a “Change ofControl”, as defined in the Trust, has occurred. ARTICLE XI COMPLIANCE WITH SECTION 409A CODE The Plan is intended to provide for the deferral of compensation inaccordance with the provisions of Section 409A of the Code and regulations andpublished guidance issued pursuant thereto. Accordingly, the Plan shall beconstrued in a manner consistent with those provisions and may at any time beamended in the manner and to the extent determined necessary or desirable bythe Corporation to reflect or otherwise facilitate compliance with suchprovisions with respect to amounts deferred on and after January 1, 2005,including as contemplated by Section 855(f) of the American Jobs Creation Actof 2004. Notwithstanding any provision of the Plan to the contrary, nootherwise permissible election, deferral, accrual, or distribution shall bemade or given effect under the Plan that would result in early taxation orassessment of penalties or interest of any amount under Section 409A of theCode. Notwithstanding any provision of the Plan to the contrary, theParticipant’s Excess Pension Benefits shall not be distributed to theParticipant earlier than: (a) the Participant’s separation from service, as determined by the Secretary of the Treasury (except as provided below with respect to a key employee of the Corporation); or (b) the death of the Participant. If it is determined that a Participant constitutes a key employee (asdefined in Section 416(i) of the Code without regard to paragraph (5) thereof)of the Corporation, the Participant shall not commence the distribution of hisor her Excess Pension Benefits before the date which is six months after thedate of the Participant’s separation from service (or, if earlier, the date ofdeath of the Participant). IN WITNESS WHEREOF, KeyCorp has caused this KeyCorp Second Excess CashBalance Pension Plan to be executed by its duly authorized officer this 28thday of December, to be effective as of January 1, 2005. KEYCORP By: /s/Thomas E. Helfrich —————————– Title: Executive Vice President