Keycorp Second Excess Cash Balance Pension Plan

EXHIBIT 10.28


KEYCORP
SECOND EXCESS CASH BALANCE PENSION PLAN


ARTICLE I


THE PLAN


The KeyCorp Second Excess Cash Balance Pension Plan ("Plan"), is hereby established December 28, 2004 to be effective January 1, 2005. The Plan, as structured, is designed to provide certain select employees of KeyCorp with a Plan benefit that is generally equal to the benefit that the employee would have been eligible to receive under the KeyCorp Cash Balance Pension Plan but for the compensation and accrual limitations imposed by Section 401(a)(17) and Section 415 of the Internal Revenue Code of 1986, as amended, as well as any vested benefit provided to the employee under the KeyCorp Excess Cash Balance Pension Plan. It is the intention of the Plan and it is the understanding of those employees covered under the Plan that the Plan is unfunded for tax purposes and for purposes of Title I of the Employee Retirement Income Security Act of 1974, as amended.


ARTICLE II


DEFINITIONS


2.1 MEANINGS OF DEFINITIONS. As used herein, the following words and phrases shall have the meanings hereinafter set forth, unless a different meaning is plainly required by the context:


(a) "BENEFICIARY" shall mean the person, persons or entity entitled to receive the Participant's Plan benefits, if any, that are payable after a Participant's death.


(b) "CREDITED SERVICE" shall be calculated by measuring the period of service commencing on the Participant's Employment Commencement Date and Re- Employment Commencement Date, if applicable, and ending on the Participant's Severance from Service Date. Credited Service shall be computed based on each full month that the Employee is employed by an Employer.


(c) "COMPENSATION" of a Participant for any Plan Year or any partial Plan Year in which the Participant incurs a Severance From Service Date shall mean the entire amount of compensation paid to such Participant during such period by reason of his employment as an Employee, as reported for federal income tax purposes, or which would have been paid except for (1) the timing of an Employer's payroll processing operations, (2) the Participant's written election to defer the receipt of compensation during the Plan Year, (3) the provisions of the KeyCorp 401(k) Savings Plan, or (4) the provisions of the KeyCorp Flexible Benefits Plan and/or any transportation reimbursement plan for the 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 this Section 2.1(c), for those Plan Participants who participate in a line of business incentive plan (other than the KeyCorp Annual Incentive Plan, the KeyCorp Long Term Incentive Plan and/or the KeyCorp Staff Incentive Plan), compensation up to a Plan maximum of $500,000 minus the amount of the Participant's compensation utilized in computing his or her Pension Plan benefit in accordance with Section 401(a)(17) of the Code shall be utilized in calculating the Participant's benefit under the Plan.


In the case of a Disabled Participant, such Participant's Compensation for each year while Disabled shall equal an amount which shall reflect the Participant's Compensation for the calendar year preceding the date of the Participant's Disability.


(d) "CORPORATION" shall mean KeyCorp, an Ohio corporation, its corporate successors, and any corporation or corporations into or with which it may be merged or consolidated.


(e) "DISABILITY" shall mean (1) the physical or mental disability of a permanent nature which prevents a Participant from performing the duties such Participant was employed to perform for his or her Employer when such disability commenced, (2) qualifies for disability benefits under the federal Social Security Act within 30 months following the Participant's disability, and (3) qualifies the Participant for disability coverage under the KeyCorp Long Term Disability Plan. In addition to the foregoing, the disability requirements addressed in Section 409A of the Code are incorporated into the provisions of this definition.


(f) "EMPLOYEE" shall mean a common law employee who is employed by an Employer; provided, however, the term "Employee" shall not include any person who at the time services are performed is not classified as a common law employee by the Employer even though such person may for federal income tax purposes, federal employment tax purposes, or any other purpose be reclassified by the Employer as a common law employee retroactive to when such services were performed by reason of administrative, judicial, regulatory or other governmental action.


(g) "EMPLOYER" shall mean KeyCorp and all of its subsidiaries or affiliates unless specifically excluded as an Employer for Plan purposes by written action by an officer of the Corporation. An Employer's participation shall be subject to any and all conditions and requirements made by the Corporation as the Plan Administrator, and each Employer shall be deemed to have appointed the Plan Administrator as its exclusive agent under the Plan.


(h) "EXCESS PENSION BENEFIT" shall mean the vested pension benefit payable pursuant to the terms of this Plan to a Participant meeting the eligibility requirements of Section 3.1 of the Plan.


(i) "EXCESS PENSION PROGRAM BENEFIT" shall mean the Participant's collective nonqualified pension benefit accrued under the KeyCorp Excess Cash Balance 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 the Participants' collective nonqualified pension benefit accrued under the KeyCorp Executive Supplemental Pension Plan and KeyCorp Second Executive Supplemental Pension Plan, subject to the terms and conditions of each respective Plan.


(k) "INTEREST CREDIT" shall mean the rate at which a Participant's Opening Account Balance as provided for under Section 3.3 of the Plan is periodically increased on a bookkeeping basis. The Interest Credit allocated to a Participant's Opening Account Balance shall be determined based on one- quarter of the effective annual calendar-year interest rate equal to the average (rounded to the nearest one-hundredth of one percent) 5-year United States Treasury Bill rate in effect each month during the twelve (12) month period ending on October 31 or the last business day in October of the preceding calendar year. The procedures to determine such Interest Credit


shall be determined by the Pension Trust Oversight Committee, and the Pension Trust Oversight Committee in its sole and exclusive discretion may modify the Interest Credit to be allocated under the Plan.


(l) "PARTICIPANT" shall mean an Employee who is a participant in the Pension Plan and who is selected by the Corporation to become a Participant in the Plan, and whose participation in the Plan has not been terminated by the Corporation.


(m) "PENSION PLAN" shall mean the KeyCorp Cash Balance Pension Plan, as the 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 a Participant under circumstances in which entitle the Participant to receive an Early Retirement or Normal Retirement Date benefit under the KeyCorp Cash Balance Pension Plan.


(o) "SUPPLEMENTAL RETIREMENT PLAN" shall mean the KeyCorp Supplemental Retirement Plan (formerly known as the Society Corporation Supplemental Retirement Plan), the KeyCorp Excess Pension Benefit Plan, and the KeyCorp Excess Pension Benefit Plan for Key Executives, with all amendments made thereto.


(p) "TERMINATION" shall mean the voluntary or involuntary and permanent termination of a Participant's employment from his or her Employer and any other Employer, whether by resignation or otherwise.


All other capitalized and undefined terms used herein shall have the meanings given them in the Pension Plan, unless a different meaning is plainly required by the context.


The masculine gender includes the feminine, and singular references include the plural, unless the context clearly requires otherwise.


ARTICLE III


EXCESS PENSION BENEFIT


3.1 ELIGIBILITY. A Participant selected by the Corporation to participate in the Plan shall be eligible for an Excess Pension Benefit hereunder if the Participant (i) terminates employment with an Employer on or after age 55 with five or more years of Credited Service, (ii) terminates his or her active employment with an Employer in conjunction with his or her Disability after completing five or more years of Credited Service and disability benefits have ceased under the KeyCorp Long-Term Disability Plan due to the Participant's election of an Early or Normal Retirement under the Pension Plan, or (iii) dies after completing five years of Credited Service and has a Beneficiary who is eligible for a benefit under the Pension Plan.


A Participant shall also be eligible for an Excess Pension Benefit if the Participant becomes involuntarily terminated from his or her employment with an Employer for reasons other than the Participant's Discharge for Cause, and (i) as of the Participant's termination date the Participant has a minimum of twenty-five (25) or more years of Credited Service, and (ii) the Participant enters into a written non-solicitation and non-compete agreement with the Employer 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 the Participant's violation of the Employer's policies, practices or procedures, violation of city, state, or federal law, or failure to perform his or her assigned job duties in a satisfactory manner. The Employer shall determine whether 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 be subject to the requirements of Article V of the Plan.


3.2 AMOUNT OF EXCESS PENSION BENEFIT. The Excess Pension Benefit payable to a Participant shall be in such amount as is required, when added to the excess pension benefit payable in lump sum form to the Participant under the KeyCorp Excess Cash Balance Pension Plan (if any) and the Accrued Benefit payable in lump sum form to the Participant under the Pension Plan as of the Participant's Retirement or Termination date to produce a lump sum cash aggregate benefit equal to the benefit which would have been payable under the Pension Plan formula in lump sum form to the Participant if the limitations of Section 401(a)(17) of the Code and the limitations of Section 415 of the Code had not been in effect. For purposes of this Section 3.2 hereof, the term "Pension Plan formula" means the


method of calculating a Participant's pension benefit as reflected in Article IV of the Pension Plan and shall not include any Predecessor Plan Grandfathered Benefits formula.


3.3 OPENING ACCOUNT BALANCE. Effective January 1, 2005, Participants in the frozen KeyCorp Excess Cash Balance Pension Plan who as of December 31, 2004 were not vested in their Excess Cash Balance Pension Plan benefit shall have their accrued but not vested benefit transferred to this Plan and reflected in a bookkeeping opening account balance ("Opening Account Balance") established for the Participant. Such Opening Account Balance shall be credited with Interest Credit as of the last day of each calendar quarter, based on the value of the Participant's Opening Account Balance as of the first day of the applicable quarter. A Participant's entitlement to ...