As filed with the Securities and Exchange Commission on January 4, 1996
Registration Statement No. 33-____________
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
--------------------
CRESTAR FINANCIAL CORPORATION
(Exact name of Registrant as specified in its Charter)
Virginia 54-0722175
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
919 East Main Street
Richmond, Virginia 23219
804-782-5000
(Address of principal executive office, including zip code)
CRESTAR FINANCIAL CORPORATION
LOYOLA PROFIT PLUS PLAN
(Full title of the Plan)
--------------------
John C. Clark, III, Esq.
Secretary and General Counsel
Crestar Financial Corporation
919 East Main Street
Richmond, Virginia 23219
804-782-5000
(Name, address and telephone number including, area code, of agent for service)
With copies to:
Lathan M. Ewers, Jr., Esq.
Hunton & Williams
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, Virginia 23219-4074
804-788-8200
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered(1) per share(2) offering price(2) registration fee
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $5.00
par value 25,000 shares $58.69 $1,467,250 $506
Preferred Share Purchase 25,000 rights N/A N/A N/A
Rights(3)
===============================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(2) Estimated solely for the purpose of computing the registration fee.
This amount was calculated pursuant to Rule 457(c) on the basis of $58.69 per
share, which was the average of the high and low prices of the Common Stock as
reported on the New York Stock Exchange on January 3, 1996.
(3) The Rights to purchase Participating Cumulative Preferred Stock, Series
C will be attached to and will trade with shares of the Common Stock of the
Company.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with the Commission.
II-2
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Crestar Financial Corporation (the
"Company") with the Commission (file No. 1-7083) are incorporated herein by
reference and made a part hereof: (i) the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1994 including the Company's Form 10-K/A
Amendment No. 1 to Form 10-K for the year ended December 31, 1994, and the
Company's Form 10-K/A Amendment No. 1 to Form 10-K for the year ended December
31, 1994, containing 1994 annual reports for the Crestar Employees' Thrift and
Profit Sharing Plan and the Crestar Merger Plan for Transferred Employees,
respectively; (ii) the Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1995, June 30, 1995 and September 30, 1995; (iii) the Company's
Current Report on Form 8-K dated November 17, 1995 including consolidated
financial statements for Loyola Capital Corporation ("Loyola"); (iv) the
description of the Company's Common Stock (the "Common Stock") contained in the
Company's registration statement on Form 8-A filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") with respect to the Common Stock on
July 1, 1993, including any amendment or report filed for the purpose of
updating such description; (v) the description of the rights to purchase
Participating Cumulative Preferred Stock, Series C (the "Rights") in the
Company's registration statement on Form 8-A filed under the Exchange Act with
respect to the Rights, on June 26, 1989, including any amendment or report filed
for the purpose of updating such description and (vi) the Form 11-K for the
Loyola Profit Plus Plan (the "Plan") for the year ended December 31, 1994.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of the Prospectus and prior to the
filing of a post-effective amendment that indicates that all securities offered
have been sold or that deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in the Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated by reference or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of the
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document that is incorporated by reference herein modifies or
supersedes such earlier statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of the Prospectus.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Articles of Incorporation (the "Crestar Articles")
implement the provisions of the Virginia Stock Corporation Act (the "VSCA"),
which provide for the indemnification of Crestar's directors and officers in a
variety of circumstances, which may include indemnification for liabilities
under the Securities Act of 1933. Under sections 13.1-697 and 13.1-704 of the
VSCA, a Virginia corporation generally is authorized to indemnify its directors
and officers in civil or criminal actions if they acted in good faith and
believed their conduct to be in the best interests of the corporation and, in
the case of criminal actions, had no reasonable cause to believe that the
conduct was unlawful. The Crestar Articles require indemnification of directors
and
II-3
<PAGE>
officers with respect to certain liabilities, expenses and other amounts imposed
upon them by reason of having been a director or officer, except in the case of
willful misconduct or a knowing violation of criminal law. Crestar also carries
insurance on behalf of directors, officers, employees or agents that may cover
liabilities under the Securities Act of 1933. In addition, the VSCA and the
Crestar Articles eliminate the liability of a director or officer of Crestar in
a stockholder or derivative proceeding. This elimination of liability will not
apply in the event of willful misconduct or a knowing violation of the criminal
law or any federal or state securities law. Sections 13.1-692.1 and 13.1-696 to
- -704 of the VSCA are hereby incorporated herein by reference.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No.
4.1 Restated Articles of Incorporation of the Company (Incorporated herein by
reference from Exhibit 3(a) of the Company's Annual Report on Form 10-K
for the year ended December 31, 1993).
4.2 Bylaws of the Company, as amended through February 26, 1993 (Incorporated
herein by reference from Exhibit 3(b) of the Company's Annual Report on
Form 10-K for the year ended December 31, 1993).
4.3 Rights Agreement dated June 23, 1989, between the Company and Mellon
Bank, N.A., as Rights Agent (Incorporated herein by reference from
Exhibit 4.1 of the Company's Current Report on Form 8-K dated June 23,
1989).
4.4 Crestar Financial Corporation Loyola Profit Plus Plan.
5 Opinion of Hunton & Williams as to the legality of the securities
being registered.
23.1 Consent of Hunton & Williams (included in the opinion filed as Exhibit 5
to the Registration Statement).
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of KPMG Peat Marwick LLP.
24 Power of Attorney for Officers and Directors (included on signature page).
The Company has submitted the Plan and undertakes to submit any
amendment thereto to the Internal Revenue Service (the "IRS") in a timely manner
and will make all changes required by the IRS in order to qualify the Plan.
II-4
<PAGE>
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change in such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
2. That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
3. To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 6 above, or
otherwise, the registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities
Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred
II-5
<PAGE>
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Richmond, Commonwealth of Virginia, on this 4th day
of January, 1996.
CRESTAR FINANCIAL CORPORATION
(Registrant)
By /s/ Richard G. Tilghman
Richard G. Tilghman
Chairman of the Board and
Chief Executive Officer
II-7
<PAGE>
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on January 4, 1996. Each of the directors and/or officers
of Crestar Financial Corporation whose signature appears below hereby appoints
John C. Clark, III, Lathan M. Ewers, Jr. and David M. Carter, and each of them
severally, as his attorney-in-fact to sign in his name and behalf, in any and
all capacities stated below, and to file with the Commission any and all
amendments, including post-effective amendments, to this registration statement,
making such changes in the registration statement as appropriate, and generally
to do all such things in their behalf in their capacities as officers and
directors to enable Crestar Financial Corporation to comply with the provisions
of the Securities Act of 1933, and all requirements of the Securities and
Exchange Commission.
Signature Title
By /s/ Richard G. Tilghman Chairman of the Board, Chief Executive Officer
Richard G. Tilghman and Director (Principal Executive Officer)
By /s/ James M. Wells, III President and Director
James M. Wells, III
By /s/ Richard F. Katchuk Corporate Executive Vice President and Chief
Richard F. Katchuk Financial Officer (Principal Financial Officer)
By /s/ James D. Barr Group Executive Vice President, Controller and
James D. Barr Treasurer (Principal Accounting Officer)
By /s/ Richard M. Bagley Director
Richard M. Bagley
By /s/ J. Carter Fox Director
J. Carter Fox
By /s/ Bonnie Guiton Hill Director
Bonnie Guiton Hill
By /s/ Gene A. James Director
Gene A. James
By /s/ H. Gordon Leggett, Jr. Director
H. Gordon Leggett, Jr.
By /s/ Charles R. Longsworth Director
Charles R. Longsworth
By /s/ Patrick J. Maher Director
Patrick J. Maher
By /s/ Frank E. McCarthy Director
Frank E. McCarthy
II-8
<PAGE>
By /s/ Paul D. Miller Director
Paul D. Miller
By /s/ G. Gilmer Minor, III Director
G. Gilmer Minor, III
By /s/ Gordon F. Rainey, Jr. Director
Gordon F. Rainey, Jr.
By /s/ Frank S. Royal, M.D. Director
Frank S. Royal, M.D.
By /s/ Eugene P. Trani Director
Eugene P. Trani
By /s/ L. Dudley Walker Director
L. Dudley Walker
By /s/ Karen Hastie Williams Director
Karen Hastie Williams
II-9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the trustees
has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Baltimore, State of
Maryland, on this 4th day of January, 1996.
LOYOLA PROFIT PLUS PLAN
(Plan)
By /s/ James J. Kelley, Chairman
II-10
<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------------
EXHIBITS
filed with
REGISTRATION STATEMENT
on
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
--------------------
CRESTAR FINANCIAL CORPORATION
LOYOLA PROFIT PLUS PLAN
(full title of the plan)
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- -----------------------------------------------------------------------------
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit No. Description Number Page
<S> <C> <C>
4.1 Restated Articles of Incorporation of the Company (Incorporated herein
by reference from Exhibit 3(a) of the Company's Annual Report on Form
10-K for the year ended December 31, 1993).
4.2 Bylaws of the Company (Incorporated herein by reference from Exhibit
3(b) of the Company's Annual Report on Form 10-K for the year ended
December 31, 1993).
4.3 Rights Agreement dated June 23, 1989, between the Company and Mellon
Bank, N.A., as Rights Agent (Incorporated herein by reference from
Exhibit 4.1 of the Company's Current Report on Form 8-K dated June 23,
1989).
4.4 Crestar Financial Corporation Loyola Profit Plus Plan.
5 Opinion of Hunton & Williams as to the legality of the securities
being registered.
23.1 Consent of Hunton & Williams (included in the opinion filed as Exhibit
5 to the Registration Statement).
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of KPMG Peat Marwick LLP.
24 Power of Attorney for Officers and Directors (included on
signature page).
</TABLE>
<PAGE>
LOYOLA PROFIT PLUS PLAN Exhibit 4.4
Effective August 1, 1992
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I.
PURPOSE
ARTICLE II.
DEFINITIONS AND CONSTRUCTION
2.01. "Account" or "Plan Account" 1
2.02. "Authorized Leave of Absence" 1
2.03. "Beneficiary" 1
2.04. "Board of Directors" 1
2.05. "Break in Service" 1
2.06. "Code" 1
2.07. "Committee" 1
2.08. "Compensation" 2
2.09. "Disability" 2
2.10. "Effective Date" 2
2.11. "Elective Deferrals" 2
2.12. "Eligibility Computation Period" 2
2.13. "Employee" 2
2.14. "Employee Contribution Account" 2
2.15. "Employer" 2
2.16. "Employer Contributions" 2
2.17. "Employer Contribution Account" 2
2.18. "Employer Securities" 3
2.19. "Entry Date" 3
2.20. "ERISA" 3
2.21. "Forfeiture" 3
2.22. "Highly Compensated Employee" 3
2.23. "Hour of Service" 3
2.24. "Insider" 4
2.25. "Loyola Capital" 4
2.26. "Matching Contribution" 4
2.27. "Matching Contribution Account" 4
2.28. "Participant" 4
2.29. "Plan" 4
2.30. "Plan Year" 5
2.31. "Trust" 5
2.32. "Trust Agreement" 5
2.33. "Trustee" 5
2.34. "Valuation Date" 5
2.35. "Year of Service" 5
ARTICLE III.
PARTICIPATION AND SERVICE
3.01. Eligibility and Participation 5
<PAGE>
Page
3.02. Participation and Service Upon Re-employment 5
(a) Participation 5
(b) Service 6
(c) Waiver by Insiders 6
3.03. Participation and Service in Connection with
Mergers and Other Acquisitions 6
ARTICLE IV.
CONTRIBUTIONS AND FORFEITURES
4.01. Employee Contributions (Elective Deferrals) 6
(a) Election 6
(b) Elective Deferral Dollar Limit 7
(c) 401(k) Actual Deferral Percentage
Test 7
(d) Participant's Right to Change
Elections 7
(e) Employer's Right to Change Elections 7
(f) Qualified Non-Elective Contributions 7
(g) Distribution of Elective Deferrals in
Excess of Dollar Limits 8
(1) In General 8
(2) Definitions 8
(i) "Pre-Tax Deferrals" 8
(ii)"Excess Deferrals" 8
(3) Claims 8
(4) Determination of Income 9
(h) Distribution of Contributions Which
Exceed 401(k) Actual Deferral
Percentage Test Limits 9
(1) In General 9
(2) Excess Contributions 9
(3) Determination of Income 9
4.02. Employer Matching Contributions 9
(a) Contributions 9
(b) 401(m) Test 10
(c) Distribution of Contributions in
Excess of 401(m) Percentage Test Limits 10
(1) In General 10
(2) Excess Aggregate Contributions 10
(3) Determination of Income 10
4.03. Employer Discretionary Contributions 11
(a) Amount 11
(b) Time of Payment 11
(c) Allocation to Participant Accounts 11
(1) Excess Allocation 11
(2) Basic Allocation 11
(ii)
<PAGE>
Page
ARTICLE V.
LIMITS ON ANNUAL ADDITIONS
5.01. Limits On Annual Additions 12
(a) Basic Limitations 12
(b) Combined Limitations 13
(c) Transition Rule 13
(d) Aggregation of Employers 14
5.02. Disposition of Excess Annual Additions 14
ARTICLE VI.
IN-SERVICE WITHDRAWALS
6.01. Withdrawals After Age 59-1/2 14
6.02. Other Withdrawals 15
(a) Hardship Withdrawals 15
(1) Application: Hardship Standards 15
(2) Hardship Categories 15
(3) Availability of Other Resources 15
(4) Evidence of Hardship 16
(b) Withdrawals From Matching Contribution
Account 16
6.03. Rules Governing Withdrawals 16
6.04. In-Service Withdrawals by Insiders 17
ARTICLE VII.
BENEFITS
7.01. Termination of Employment 17
7.02. Vesting 17
(a) Vested Percentage 17
(b) Disposition of Forfeitures 17
7.03. Commencement of Benefits 18
(a) In General 18
(b) Accelerated Distribution 18
(a) Effect of Section 18
(b) Joint and 50% Survivor Spouse Annuity 18
(c) Qualified Preretirement Survivor
Annuity 19
(d) Definitions 19
(i) Annuity Starting Date 19
(ii) Earliest Retirement Age 19
(iii) Joint and 50% Survivor Spouse
Annuity 20
(iii)
<PAGE>
Page
(iv) Qualified Election 20
(v) Qualified Election Period 21
(vi) Spouse (surviving spouse) 21
(e) Notice Requirements 21
7.05. Optional Methods of Payment 22
(a) Available Options 22
(1) Lump Sum Option 22
(2) Periodic Installment Payments 22
(3) Periodic Installment Payments
Based on Current Annuity
Contract Purchase Rates 23
(4) Annuity Options 23
(5) Other Optional Methods 23
(b) Payments During Participant's Life 23
(c) Changes In Method of Payment 24
7.06. Required Beginning Date 24
7.07. In-Kind Distributions Permitted 24
7.08. Designation of Beneficiary 24
ARTICLE VIII.
PARTICIPANT DIRECTED INVESTMENTS
8.01. Participant Directed Investments 25
(a) Election of Investment Funds 25
(b) Participant Accounts 26
(c) Absence Of Participant Election 26
(d) Investment Election by Former
Participants 26
(e) Election by Insiders 26
(f) Common Trust Funds 26
ARTICLE IX.
LOANS
9.01. Loan Administration 27
9.02. Number of Loans 27
9.03. Amount, Availability 27
9.04. Non-Discrimination 27
9.05. Loan Approval 28
9.06. Interest Rate 28
9.07. Collateral 28
9.08. Repayment 28
(a) Amortization over Term 28
(b) Default 29
9.09. Participant and Spousal Consent 29
9.10. Distributions Prohibited 29
9.11. No Alienation 29
(iv)
<PAGE>
Page
9.12. Disclosure 30
ARTICLE X.
FIDUCIARIES
10.01. Allocation of Responsibility Among
Fiduciaries 30
10.02. Discharge of Duties 30
10.03. Indemnification of Committee Members and
Other Officers and Employees 30
10.04. Appointment of Committee 31
10.05. Committee Powers and Duties 31
10.06. Rules and Decisions 32
10.07. Committee Procedures 32
10.08. Applications and Forms for Benefits 33
10.09. Facility of Payment 33
10.10. Claims Procedure 33
ARTICLE XI.
PROVISIONS RELATING TO THE TRUSTEE
11.01. Trust Fund 34
ARTICLE XII.
AMENDMENT
12.01. Right to Amend 34
ARTICLE XIII.
PLAN TERMINATION
13.01. Right to Terminate 35
13.02. Accelerated Vesting 35
13.03. Manner of Distribution 35
ARTICLE XIV.
PARTICIPATING EMPLOYERS
14.01. Adoption of Plan by Participating Employers 36
14.02. Effect of Participating Employer's Adoption 36
14.03. Withdrawal by Participating Employers 37
14.04. Rules and Regulations 37
(v)
<PAGE>
Page
14.05. Provisions Concerning Merger of Loyola
Federal Savings and Loan Association Profit
Plus Plan 37
ARTICLE XV.
MISCELLANEOUS
15.01. Nonguarantee of Employment 38
15.02. Rights to Trust Assets 38
15.03. Discontinuance of Employer Contributions 38
15.04. Erroneous Contribution 38
15.05. Plan Merger; Transfer of Plan Assets 38
ARTICLE XVI.
TOP HEAVY PROVISIONS
16.01. Top Heavy Requirements 39
(a) Minimum Vesting Requirements 39
(b) Minimum Contribution Requirement 39
(c) Additional Super Top Heavy
Requirement 40
16.02. Top Heavy Plan Definitions 40
(vi)
<PAGE>
LOYOLA PROFIT PLUS PLAN
ARTICLE I.
PURPOSE
This document establishes the LOYOLA PROFIT PLUS PLAN (the "Plan"). The
Plan is effective as of August 1, 1992 (the "Effective Date"). It will apply
only to employees who terminate employment on or after the Effective Date.
ARTICLE II.
DEFINITIONS AND CONSTRUCTION
The following definitions apply to this document.
2.01. "Account" or "Plan Account" means a Participant's account under the
Plan, consisting of his Employee Contribution Account and his Employer
Contribution Account.
2.02. "Authorized Leave of Absence" means an absence authorized by the
Employer under the Employer's standard personnel practices, provided that the
absent employee returns to active employment at the end of the period of
authorized absence. In granting Authorized Leaves of Absence, the Employer will
treat all persons under similar circumstances alike. An absence due to service
in the Armed Forces of the United States will be considered an Authorized Leave
of Absence if the Employee returns to employment with the Employer within the
time provided by law, and if the Employee receives a certificate relating to the
successful completion of military service described in Section 9(a) of the
Military Selective Service Act.
2.03. "Beneficiary" means a person (natural or otherwise) who is entitled
to receive a benefit upon a Participant's death.
2.04. "Board of Directors" means the Board of Directors of Loyola Capital
Corporation.
2.05. "Break in Service" means a Plan Year during which an Employee fails
to receive credit for at least 501 Hours of Service.
2.06. "Code" means the Internal Revenue Code of 1986, as amended.
2.07. "Committee" means the committee which administers the Plan pursuant
to Article X.
<PAGE>
2.08. "Compensation" means compensation for a Plan Year which is required
to be reported as wages on a Participant's Form W-2, excluding bonuses.
Compensation also includes Elective Deferrals and other amounts which are not
currently includable in the Participant's gross income under section 125 or
402(a)(8) of the Code. Only the first $200,000 of a Participant's Compensation
will be taken into account in any Plan Year. This $200,000 limit will be
adjusted automatically for changes in the cost of living in the same manner and
at the same time as adjustments under section 415(d) of the Code.
2.09. "Disability" means a physical or mental condition which, in the
opinion of a physician designated by the Committee, permanently prevents an
Employee from satisfactorily performing his usual duties for the Employer.
2.10. "Effective Date" means August 1, 1992.
2.11. "Elective Deferrals" means a Participant's contributions under
Section 4.01.
2.12. "Eligibility Computation Period" means the twelve (12) consecutive
months beginning with the date an Employee first completes an Hour of Service
and each Plan Year beginning after that date.
2.13. "Employee" means an employee of the Employer, excluding, however, an
individual who has agreed in writing to waive participation in the Plan, and
excluding leased employees within the meaning of section 414(n)(2) of the Code.
2.14. "Employee Contribution Account" means the portion of a Participant's
Account which is attributable to his Elective Deferrals or to Employee
contributions described in Section 4.04.
2.15. "Employer" means Loyola Capital, Loyola Federal Savings Bank and any
other employer which participates in this Plan pursuant to Article XIV; and any
successor which maintains this Plan.
2.16. "Employer Contributions" means the Employer's contributions under
Sections 4.02 and 4.03.
2.17. "Employer Contribution Account" means the portion of a Participant's
Account which is attributable to Employer Contributions.
2
<PAGE>
2.18. "Employer Securities" means stock or other securities of Loyola
Capital or a corporation controlling, controlled by or under common control with
Loyola Capital.
2.19. "Entry Date" means each January 1, April 1, July 1 and October 1.
2.20. "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
2.21. "Forfeiture" means the non-vested portion of a Participant's Employer
Contribution Account which is forfeited because of termination of employment
before full vesting.
2.22. "Highly Compensated Employee" means an individual described in
section 414(q) of the Code. In determining whether an individual is a Highly
Compensated Employee, the term "compensation" means Compensation as defined in
Section 5.01, including, however, elective or salary reduction contributions to
a cafeteria plan under Code section 125, a cash or deferred arrangement under
Code section 401(k), a simplified employee pension under Code section 402(h), or
a tax-sheltered annuity under Code section 403(b). In addition, in determining
whether an individual is a Highly Compensated Employee, the Employer may make
the following elections:
(a) In a determination of the top paid twenty percent (20%) group for
purposes of determining whether an individual is a Highly Compensated Employee,
the Employer may elect, on a consistent and uniform basis, to modify the
permissible exclusions for months of service, hours per week, months per year
and age by substituting a shorter period of service or lower age than that
specified in Code section 414(q). If the Employer makes any of these elections,
the Employer must apply the test uniformly for purposes of determining its top
paid twenty percent (20%) group with respect to all its qualified plans and
employee benefit plans and for purposes of the line of business rules set forth
in Code section 414(r).
(b) The Employer may elect to use the current Plan year to determine
whether an Employee is a Highly Compensated Employee in the "look-back" year (as
defined in Treasury Regulations under Code section 414(q)) calculation. If the
Employer elects to use the current Plan Year in making the "look-back year"
calculation, the election must apply to all of the Employer's plans, entities
and arrangements.
2.23. "Hour of Service" means each hour for which an Employee is directly
or indirectly paid by the Employer for the
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performance of duties, or for reasons other than the performance of duties, and
each hour for which the Employer grants back pay to the Employee, regardless of
mitigation of damages. In computing and crediting Hours of Service for periods
during which an Employee does not perform duties, the rules set forth in
sections 2530.200b- 2(b) and (c) of Department of Labor Regulations shall apply
and are incorporated herein by reference. Solely for purposes of determining
whether a Break in Service has occurred, an Employee who is absent for maternity
or paternity reasons or on other authorized leave will receive credit for the
Hours of Service which would have been credited if the Employee had not been
absent. If those Hours of Service cannot be determined, the Employee will be
credited with eight (8) Hours of Service for each day of absence. An absence for
maternity or paternity reasons means an absence (1) because of the individual's
pregnancy, (2) because of the birth of the individual's child, (3) because of
the individual's adoption of a child or (4) for purposes of caring for the
individual's child immediately following the child's birth or placement with the
individual.
2.24. "Insider" means (i) any person who, within the meaning of Section
16(b) of the Securities Exchange Act of 1934, is directly or indirectly the
beneficial owner of more than ten percent (10%) of any class of equity security
of Loyola Capital, (ii) any person who is a director of Loyola Capital, (iii)
any person who is an officer of Loyola Capital, or any subsidiary of Loyola
Capital, and who performs significant policy-making functions for Loyola
Capital, or (iv) any person who is subject to Section 16(a) of the Securities
Exchange Act of 1934 with respect to Loyola Capital by virtue of having
previously been a person described in (i), (ii), or (iii), above.
2.25. "Loyola Capital" means Loyola Capital Corporation, a Maryland
corporation.
2.26. "Matching Contribution" means an Employer contribution under Section
4.02.
2.27. "Matching Contribution Account" means the portion of a Participant's
Account which is attributable to Matching Contributions.
2.28. "Participant" means an Employee who is participating in the Plan.
2.29. "Plan" means the Loyola Profit Plus Plan, as set forth herein and as
amended from time to time.
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2.30. "Plan Year" means mean the 12-month period beginning each January 1
and ending each December 31.
2.31. "Trust" means the fund maintained in accordance with the terms of
this Profit Sharing Plan and the Trust Agreement.
2.32. "Trust Agreement" means the agreement between the Trustee and Loyola
Capital pursuant to which the Trust is held.
2.33. "Trustee" means the persons or corporation appointed as such by the
Committee.
2.34. "Valuation Date" means the last day of each calendar quarter, and any
intervening date chosen by the Committee.
2.35. "Year of Service" means a Plan Year (or in the case of eligibility
service, an Eligibility Computation Period) during which an Employee has
completed at least 1,000 Hours of Service, except that for purposes of
determining vesting in Employer Matching Contributions, years or fractional
years during which an Employee is eligible to, but fails to defer compensation
under this Plan will not be counted. An Employee must be employed on the last
day of an Eligibility Computation Period in order for that period to count as a
Year of Service for eligibility purposes.
ARTICLE III.
PARTICIPATION AND SERVICE
3.01. Eligibility and Participation. An Employee will be eligible to enroll
as a Participant as of any Entry Date which occurs after the Employee completes
a Year of Service for eligibility purposes. To enroll, he must execute and
deliver to the Committee such forms as the Committee requires.
3.02. Participation and Service Upon Re-employment. Participation in the
Plan will cease when employment with the Employer terminates. If a former
Participant is re-hired, the following rules will apply in determining his
participation in the Plan and his Years of Service:
(a) Participation. If the re-hired Employee was a Participant when his
employment terminated, he may resume participation on the date he is re-hired.
If he was not a Participant when his employment terminated, he will be eligible
to participate upon meeting the requirements of Section 3.01, for which purpose
his Years of Service before his return to employment will be reinstated to the
extent required by (b) below.
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(b) Service. If the Employee had a vested interest in an Account when he
terminated employment, his prior Years of Service will be reinstated when he is
re-hired. If the Employee did not have a vested interest in an Account when he
terminated employment, his prior Years of Service will be restored only if his
consecutive Breaks-in-Service before returning to employment were less than the
greater of (i) five (5) or (ii) his Years of Service before he terminated
employment.
(c) Waiver by Insiders. A Participant who is an Insider, whose Plan Account
includes Employer Stock, who terminates employment during the first half of any
Plan Year, and who later resumes employment with the Employer within six months
of his termination of employment, may waive participation in the Plan's
discretionary Employer contribution feature described in Section 4.03 until the
date which is six (6) months following his or her earlier termination of
employment. To do so, he must file a written waiver with the Committee before
the end of the Plan Year in which returns to service.
3.03. Participation and Service in Connection with Mergers and Other
Acquisitions. In the event of a merger, stock acquisition, purchase of assets or
other corporate acquisition by Loyola Capital or another Employer, Years of
Service credit shall be granted under this Plan for service with the predecessor
employer if and to the extent required by the applicable merger or purchase
agreement. In addition, the Committee shall have the authority, acting by
resolution, to grant Years of Service credit under this Plan for service with
the predecessor employer even if such credit is not required by the applicable
merger or purchase agreement.
ARTICLE IV.
CONTRIBUTIONS AND FORFEITURES
4.01. Employee Contributions (Elective Deferrals).
(a) Election. Each Participant may elect to reduce his Compensation per
payroll period and to have the amount of the reduction contributed to the Plan
as an Elective Deferral. Elective Deferrals must be elected in one-half (1/2)
percentages, and may not be less than one percent (1%) nor more than ten percent
(10%) of a Participant's Compensation. Elective Deferral elections must be in
writing on such forms, and will be subject to such uniform administrative rules,
as the Committee establishes. Elective Deferrals will be contributed to the
Trust as soon as
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practicable after they are withheld from a Participant's pay and will be
allocated to Employee Contribution Accounts quarterly.
(b) Elective Deferral Dollar Limit. A Participant's Elective Deferrals to
the Plan, and to all other plans, contracts or arrangements subject to Code
section 402(g), during any calendar year may not exceed the applicable dollar
limit under section 402(g) of the Code. This dollar limit will be adjusted
automatically at the same time and in the same manner as the Secretary of the
Treasury's cost-of-living adjustments under Code section 415(d).
(c) 401(k) Actual Deferral Percentage Test. The Plan will be administered
so as to comply with the actual deferral percentage test and other requirements
of Code section 401(k)(3) and of Treasury Regulation section 1.401(k)-1(b). In
testing compliance with Code section 401(k)(3), the Committee will designate the
definition of "compensation" from year to year, as permitted under applicable
law.
(d) Participant's Right to Change Elections. A Participant may amend or
revoke his Elective Deferral election at such times and with such frequency as
the Committee may from time to time permit.
(e) Employer's Right to Change Elections. The Employer may amend or revoke
a Participant's Elective Deferral election (i) if the election causes the
Participant's contributions to exceed the limits on contributions imposed by
this Section or Section 5.01, or (ii) to insure that this Plan meets the actual
deferral percentage test of Code section 401(k)(3). The Employer also may
uniformly amend or revoke all Participants' Elective Deferral elections if the
aggregate Elective Deferrals to the Plan will exceed the amount which the
Employer may deduct under Code section 404 (including carryovers) for the
Employer's applicable fiscal year. If the Employer amends or revokes a
Participant's Elective Deferrals for a Plan Year, any excess of Elective
Deferrals already contributed for such Plan Year over the amount which the
Participant is allowed for the Year will be returned to the Participant as
provided in subsection (g) or (h) below.
(f) Qualified Non-Elective Contributions. Instead of amending or revoking
Elective Deferral elections as permitted by subsection (e), the Employer may
assure compliance with the actual deferral percentage test of Code section
401(k)(3) by making an additional contribution for the benefit of Participants
who are not Highly Compensated Employees in an amount which will cause that test
to be met. The additional contribution will be added to the Employee
Contribution Accounts of Participants on whose behalf it
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is made and will be treated under the Plan as if it were an Elective Deferral,
except that it will not count against the 10% limit on Elective Deferrals
imposed by Section 4.01(a). The Employer may decide to make additional
contributions for some or all of the Participants who are not Highly Compensated
Employees. The additional contribution may, but need not, be structured to match
the Elective Deferrals of Participants who will receive the contribution. The
additional contribution will be deposited to the applicable Employee
Contribution Accounts no later than twelve (12) months after the end of the Plan
Year for which the contribution is made, or within such other time period as may
be permitted by applicable Internal Revenue Service regulations. A Participant
may not elect to receive any portion of the additional contribution as current
Compensation.
(g) Distribution of Elective Deferrals in Excess of Dollar Limits.
(1) In General. Notwithstanding any other provision of the Plan, Excess
Deferrals, plus income and minus any loss allocable thereto, shall be
distributed no later than April 15 to any Participant to whose account Excess
Deferrals were allocated for the Participant's preceding taxable year and who
claims a refund of Excess Deferrals for that year. A Participant whose Elective
Deferrals to this Plan, in and of themselves, exceed the dollar limit described
in (b) above will be deemed to have claimed a refund of that excess, without the
necessity of actually submitting a claim.
(2) Definitions.
(i) "Pre-Tax Deferrals" for any taxable year of a Participant means the sum
of all Employer contributions made for the Participant for that year pursuant to
the Participant's election to defer under any plan or arrangement described in
section 401(k), section 408(k) or Code section 403(b).
(ii) "Excess Deferrals" means the amount of Pre-Tax Deferrals for the
Participant's taxable year that is includible in the Participant's gross income
under Code section 402(g) by virtue of exceeding the dollar limit under Code
section 402(g).
(3) Claims. A Participant must submit his claim for Excess Deferrals to the
Committee in writing no later than March 1 of the year following the taxable
year to which the Excess Deferrals relate. The claim must specify the
Participant's Excess Deferrals and must be accompanied by the Participant's
written statement that the amounts claimed, when added to amounts deferred
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under other plans or arrangements described in Code sections 401(k), 408(k) or
403(b), exceed the dollar limitation under Code section 402(g) for the year in
which the deferrals occurred.
(4) Determination of Income. Excess Deferrals distributed to a Participant
shall be adjusted for income or loss through the end of the Plan Year to which
they relate and, if the Committee elects, shall be further adjusted for income
or loss for the "gap period" from the close of the Plan Year to the date of
distribution. The Committee will determine income or loss allocable to Excess
Deferrals using a method which complies with regulations under Code section
402(g).
(h) Distribution of Contributions Which Exceed 401(k) Actual Deferral
Percentage Test Limits.
(1) In General. Notwithstanding any other provision of the Plan, Excess
Contributions, plus any income and minus any loss allocable thereto, shall be
distributed to the appropriate Highly Compensated Employees no later than the
end of the Plan Year following the Plan Year in which the Excess Contributions
arose.
(2) Excess Contributions. "Excess Contributions" means, with respect to any
Plan Year, the excess of (i) the aggregate amount of Elective Deferrals or other
contributions taken into account in computing the actual deferral percentage of
Highly Compensated Employees for Plan Year, over (ii) the maximum amount of such
contributions permitted by the actual deferral percentage test (determined by
reducing contributions made on behalf of Highly Compensated Employees in order,
beginning with the highest actual deferral percentages). For purposes of this
subsection, "actual deferral percentage" has the same meaning as in Code section
401(k).
(3) Determination of Income. Excess Contributions shall be adjusted for
income or loss for the Plan Year in which they arose and, if the Committee
elects, shall be further adjusted for income or loss for the "gap period"
between the end of the Plan Year and the date of distribution. The Committee
will determine income or loss allocable to Excess Contributions using a method
which complies with regulations under Code section 401(k).
4.02. Employer Matching Contributions.
(a) Contributions. The Employer will make Matching Contributions
semi-annually, as of each June 30 and December 31, for each Participant who is
employed on the last day of the semi-annual matching period or who died,
terminated due to Disability or
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retired during that period. The Matching Contribution for a semi-annual matching
period, when added to any Forfeitures available for credit against the Matching
Contribution, will equal fifty percent (50%) of the Participant's Elective
Deferrals for the period, except that Elective Deferrals in excess of six
percent (6%) of a Participant's Compensation for a matching period will not be
matched and except that the Board of Directors, in its discretion, may increase
the Matching Contribution for any semi-annual matching period. Matching
contributions will be allocated to eligible Participants and former Participants
as of the end of each semi-annual matching period.
(b) 401(m) Test. The average contribution percentage test set forth in
section 401(m)(2) of the Code must be satisfied each Plan Year. The Plan will at
all times be administered so as to comply with that test (including the multiple
use limitations of section 401(m)(9)).
(c) Distribution of Contributions in Excess of 401(m) Percentage Test
Limits.
(1) In General. Notwithstanding any other provision of the Plan, Excess
Aggregate Contributions, plus income and minus any loss allocable thereto, shall
be distributed to the appropriate Highly Compensated Employees no later than the
last day of the Plan Year following the Plan Year in which the Excess Aggregate
Contributions arose.
(2) Excess Aggregate Contributions. "Excess Aggregate Contributions" means,
with respect to any Plan Year, Matching Contributions which exceed the maximum
Matching Contribution permitted under the average contribution percentage test
of section 401(m) of the Code (determined by reducing contributions made on
behalf of Highly Compensated Employees in order of their contribution
percentages (as defined in section 401(m)(3) of the Code) beginning with the
highest of such percentages). A determination of Excess Aggregate Contributions
shall be made after first determining Excess Deferrals and then determining
Excess Contributions.
(3) Determination of Income. Excess Aggregate Contributions shall be
adjusted for any income or loss for the Plan Year in which they arose and, if
the Committee so elects, shall be further adjusted for income and loss for the
"gap period" between the close of the Plan Year and the date of distribution.
The Committee will determine income or loss allocable to Excess Aggregate
Contributions using a method which complies with regulations under Code section
401(m).
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4.03. Employer Discretionary Contributions.
(a) Amount. The Employer may contribute to the Trust on account of any Plan
Year a discretionary amount of its annual net income (as defined below). The
Board of Directors will determine the amount of any Employer discretionary
contribution. A copy of the Board's resolution shall be delivered to the
Trustee, and the Employees shall be notified of the contribution, no later than
thirty (30) days after the end of the Plan Year. At a minimum, the Employer's
discretionary contribution must at least equal the amount needed, if any, to
restore Forfeitures to the Accounts of rehired Participants as provided in
Section 7.02(b), even if the Forfeitures to be restored exceed the Employer's
net income. Net income means the Employer's consolidated net income for the Plan
Year as determined for federal income tax purposes by its certified public
accountants, before deduction of contributions under the Plan or federal or
state income and excess profits taxes.
(b) Time of Payment. The Employer must pay its discretionary contributions
to the Trustee not later than the due date for filing its Federal income tax
return, including extensions.
(c) Allocation to Participant Accounts. As of the end of each Plan Year,
the Employer's discretionary contribution for the Year will be allocated among
the Employer Contribution Accounts of those Participants who (i) were in the
employ of the Employer on the last day of the Plan Year and completed 1,000
Hours of Service during the Year or (ii) terminated employment during the Year
due to retirement, Disability or death. Allocations shall be made in accordance
with the following:
(1) Excess Allocation. The Employer's discretionary contribution shall
first be allocated on the basis of the ratio that each eligible Participant's
Excess Compensation for the Plan Year bears to the total Excess Compensation for
the Plan Year of all Participants who are eligible to share in the allocation.
In no event shall an amount in excess of five and forty one-hundredths percent
(5.40%) of each Participant's Excess Compensation in any Plan Year be allocated
as an Excess Allocation for that year. "Excess Compensation" means the portion
of a Participant's Compensation in any Plan Year which exceeds the maximum
annual compensation base for Social Security purposes in effect for that Year.
(2) Basic Allocation. Any discretionary Employer contribution which remains
to be allocated after the Excess Allocation shall then be allocated as a Basic
Allocation in the ratio that each eligible Participant's Compensation for the
Plan
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Year bears to the total Compensation for the Plan Year of all Participants who
are eligible to share in the allocation.
ARTICLE V.
LIMITS ON ANNUAL ADDITIONS
5.01. Limits On Annual Additions.
(a) Basic Limitations. Notwithstanding any other provision of this Plan, a
Participant's total annual additions under this Plan for any Plan Year shall not
exceed the lesser of (a) thirty thousand dollars ($30,000) or, if greater,
one-fourth (1/4) of the defined benefit dollar limitation set forth in Code
section 415(b)(1) as in effect for the Plan Year, as adjusted in Treasury
Regulation section 1.415-2(b)(4)(iii), or (b) twenty-five percent (25%) of the
Participant's Compensation for such Plan Year. "Annual additions" for this
purpose means the sum of (i) contributions under Article IV of this Plan
allocable to a Participant's Plan Account (including contributions subsequently
returned in order to comply with the applicable limits of sections 402(g),
401(k) or 401(m) of the Code), and (ii) any Forfeitures allocable to the
Participant's Plan Account.
For purposes of this Section, "Compensation" refers to the Participant's
earned income, wages, salaries, and fees for professional services actually
rendered in the course of employment with the Employer (including, but not
limited to, commissions paid to salespersons, compensation for services on the
basis of a percentage of profits, commissions on insurance premiums, tips and
bonuses) and excluding the following:
(i) Employer contributions to a plan of deferred compensation which are not
includable in the Participant's gross income for the taxable year in which
contributed, or Employer contributions under a simplified employee pension plan
to the extent such contributions are deductible by the Participant, or any
distributions from a plan of deferred compensation;
(ii) Amounts realized from the exercise of a nonqualified stock option, or
when restricted stock (or property) held by the Participant either becomes
freely transferable or is no longer subject to a substantial risk of forfeiture;
(iii) Amounts realized from the sale, exchange or other disposition of
stock acquired under a qualified stock option; and
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(iv) Other amounts which received special tax benefits, or contributions
made by a Participant (whether or not under a salary reduction agreement)
towards the purchase of an annuity described in Code section 403(b) (whether or
not the amounts are actually excludable from the gross income of the
Participant).
For purposes of applying the limitations of this Section, Compensation for
a limitation year is the Compensation actually paid or includible in gross
income during such year.
Notwithstanding the preceding sentence, Compensation for a Participant who
is permanently and totally disabled (as defined in Code section 37(e)(3)) is the
compensation the Participant would have received for the limitation year if the
Participant had been paid at the rate of compensation paid immediately before
becoming permanently and totally disabled. Imputed Compensation for the disabled
Participant may be taken into account only if the Participant is not a Highly
Compensated Employee and contributions made on behalf of such Participant are
nonforfeitable when made.
(b) Combined Limitations. If a Participant participates in any other
defined contribution plan sponsored by the Employer which is qualified under
Code section 401(a), his or her annual additions under such plan shall be
aggregated with his annual additions under this Plan, and his annual additions
under this Plan shall be reduced, if necessary, so that the aggregate of such
annual additions does not exceed the limitations set forth in (a) and (b),
above.
If a Participant participates or has participated in any defined benefit
pension plan sponsored by the Employer which is qualified under Code section
401(a), his benefit under the defined benefit pension plan shall be reduced, if
necessary, so that the sum of his "defined benefit fraction" (as defined in
section 415(e)(2) of the Code) and his "defined contribution fraction" (as
defined in section 415(e)(3) of the Code) does not exceed 1.0 for any Plan Year.
If the sum of those fractions would exceed 1.0, even after the reduction in the
Participant's benefits under the defined benefit plan(s), which shall be done
first, then the contributions for the Participant under this Plan shall be
reduced to the extent necessary in accordance with Section 5.02.
(c) Transition Rule. The Committee may elect to calculate the defined
contribution fraction with respect to any year ending after December 31, 1982,
by using the transition rule set forth in Code section 415(e)(6).
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(d) Aggregation of Employers. The maximum contributions allowed under this
Section 5.01 shall be further limited by reason of the existence of other
qualified retirement plans maintained by any other members of a controlled group
of corporations or a group of trades or businesses under common control (as
described in Code sections 414(b) or (c), as modified by Code section 415(h)) to
the extent such limitation is required by Code section 415. The Committee shall
advise affected Participants of any additional limitation required by the
preceding sentence.
5.02. Disposition of Excess Annual Additions. If a Participant's annual
additions for any Plan Year exceed the limitations described in Section 5.01,
the Participant's annual additions shall be reduced to the minimum extent
required. Any required reduction in a Participant's annual additions shall be
achieved first, by removing any after-tax contributions from the Participant's
Account next, by removing the Participant's Elective Contributions and any
corresponding Matching Contributions, and finally, by removing the Employer's
discretionary contribution. The Committee shall have the sole discretion to
determine if any reduction in the annual additions to a Participant's Account is
required. No Participant shall be entitled to any annual additions (or earnings
thereon) made or allocated to the Participant in excess of the limitations of
Section 5.01 or Code section 415. If it is determined at any time that the
Committee has erred in accepting and crediting salary reduction or after-tax
contributions by a Participant or in allocating Employer contributions to any
Participant's Plan Account for any Plan Year in violation of such limitations,
then (i) the amount of any required reduction in the Participant's contributions
(including earnings thereon) shall be returned to the Participant and (ii) the
amount of any required reduction in the Employer's contributions (including
earnings) allocable or allocated to the Participant under this Plan shall be
returned to the Employer if such reduction in the Employer's contributions is
attributable to a mistake of fact by the Employer or the Committee at the time
the contribution was made. If the reduction in the Employer's contributions is
not attributable to a mistake of fact, the amount of the reduction (including
earnings) shall be held in suspense and applied against the Employer's
contributions which are next due and owing to the Plan.
ARTICLE VI.
IN-SERVICE WITHDRAWALS
6.01. Withdrawals After Age 59-1/2. A Participant who has attained age
59-1/2 regardless of his Years of Service, may make withdrawals of all or a
portion of the vested balance of his
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Account. Withdrawals will be subject to the requirements of
Section 6.03.
6.02. Other Withdrawals.
(a) Hardship Withdrawals
(1) Application: Hardship Standards. The Committee, in its discretion, but
in accordance with a uniform nondiscriminatory policy and applicable law, may
permit a Participant who is not entitled to make withdrawals under Section 6.01
to withdraw all or a portion of the vested balance of his Account (exclusive of
earnings after December 31, 1988 attributable to Elective Deferrals), if the
withdrawal is necessary to alleviate the Participant's immediate and heavy
financial hardship, the amount of the withdrawal does not exceed the
Participant's financial need, and the amount of the withdrawal is not reasonably
available from the Participant's other resources.
(2) Hardship Categories. A distribution will be deemed to be made on
account of immediate and heavy financial hardship only if the distribution is on
account of (1) medical expenses described in Code section 213(d) previously
incurred by the Participant, the Participant's spouse, or any dependents of the
Participant (as defined in Code section 152) or necessary for these persons to
obtain medical care described in Code section 213(d); (2) costs directly related
to the purchase of the Participant's principal residence (excluding mortgage
payments); (3) the payment of tuition and related educational fees for the next
twelve (12) months of post-secondary education for the Participant, or for the
Participant's spouse, children, or dependents (as defined in Code section 152);
(4) payments necessary to prevent eviction from the Participant's principal
residence or foreclosure on the mortgage of the Participant's principal
residence; (5) any other event which is deemed an immediate and heavy financial
hardship by the Secretary of Treasury; or (6) any federal, state or local income
taxes or penalties reasonably anticipated to result from the hardship
distribution.
(3) Availability of Other Resources. A distribution generally will be
treated as necessary to satisfy the Participant's immediate financial need if
the Employer relies upon the Participant's written representation, unless the
Employer has actual knowledge to the contrary, that the need cannot reasonably
be relieved, (1) through reimbursement or compensation by insurance or
otherwise, (2) by liquidation of the Participant's assets, (3) by cessation of
Elective Deferrals, (4) by other distributions or non-taxable (at the time of
the loan) loans from plans maintained by the Employer or by any other employer,
or (5) by borrowing from
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commercial sources on reasonable commercial terms in an amount sufficient to
satisfy the need. In determining the amount necessary to satisfy a Participant's
immediate financial need, any amounts needed to pay any federal, state or local
income taxes or penalties reasonably anticipated to result from the distribution
may be taken into account. A need cannot reasonably be relieved by one of the
actions listed above if the effect would be to increase the amount of the need.
The Participant's resources shall be deemed to include those assets of the
spouse and minor children that are reasonably available to the Participant, but
property held under the Uniform Gifts to Minors Act will not be treated as a
resource of the Participant.
(4) Evidence of Hardship. A Participant making an application under this
subsection (a) shall have the burden of presenting to the Committee evidence of
his hardship, such as medical bills, evidence of enrollment in an educational
institution, or appropriate documentation of a transaction, and the Committee
shall not permit withdrawal under this Section without first receiving such
evidence.
(b) Withdrawals From Matching Contribution Account. A Participant with at
least five (5) Years of Service may withdraw all or a portion of his vested
interest in his Employer Contribution Account. A Participant with fewer than
five (5) Years of Service may withdraw any portion of his vested interest in his
Employer Contribution Account, provided such amounts have been credited to his
Employer Contribution Account for a period of at least two (2) years.
6.03. Rules Governing Withdrawals. Withdrawals under this Sections 6.01 and
6.02 will be subject to the following requirements:
(1) Requests for withdrawal must be made on forms provided by the
Committee. The Committee will process requests for withdrawals as soon as
practicable after receipt and may defer distribution until a Valuation Date if,
in its discretion, the Committee considers it appropriate to do so.
(2) Withdrawals must be for a minimum of Five Hundred Dollars ($500.00) or,
if less, the maximum withdrawable amount in the Participant's Account.
(3) In determining the amount which a Participant may withdraw, outstanding
loans will not be counted as part of the Participant's Account.
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(4) Withdrawals shall be subject to federal income tax withholding as
prescribed by section 3405 of the Internal Revenue Code and regulations
thereunder.
6.04. In-Service Withdrawals by Insiders. Notwithstanding any other Plan
provision to the contrary, an Insider may not elect to withdraw that portion of
his vested Plan Account that is invested in Employer Securities prior to his or
her termination of employment with the Employer unless the election is made in
the period during which the Insider is permitted to make an investment election
involving Employer Securities under Section 8.01(e).
ARTICLE VII.
BENEFITS
7.01. Termination of Employment. A Participant's vested Account will become
payable when the Participant terminates employment. Vesting will be determined
under Section 7.02. The timing and form of payment will be determined under
Sections 7.03, 7.04 and 7.05.
7.02. Vesting.
(a) Vested Percentage. A Participant's Employee Contribution Account will
always be 100% vested. A Participant's Employer Contribution Account will also
be 100% vested if the Participant terminates employment due to Disability, death
or after attaining age 65. If a Participant's employment terminates for any
other reason, his Employer Contribution Account will be vested in accordance
with the following schedule:
Years of Service Vested Percentage
Less than 2 years 0%
2 years 50%
3 or more 100%
(b) Disposition of Forfeitures. If a Participant terminates
employment when his Account is not 100% vested, the Participant will forfeit the
unvested portion as of the earlier of (i) the date the Participant incurs a
fifth (5th) consecutive Break in Service, or (ii) the date the Participant
receives a distribution of the entire vested portion of his Account. Any
Forfeiture occurring when a Participant receives a distribution of his vested
Account will be restored if the Participant is reemployed and repays the amount
distributed before the fifth anniversary of the Participant's reemployment, or,
if earlier, the
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date when the Participant incurs a fifth (5th) consecutive Break in Service.
When a Forfeiture occurs, the amount of the Forfeiture will be applied against
Employer Matching Contributions and restored Forfeitures in the order in which
they arise. Forfeitures will be restored from unapplied Forfeitures and, if
necessary, through the Employer contribution under Section 4.03.
7.03. Commencement of Benefits.
(a) In General. Distribution of a Participant's vested Account will be made
or begin within 60 days after the March 31, June 30, September 30 or December 31
following termination of employment or other entitlement to payment. A
Participant whose vested Account exceeds $3,500 may elect to defer distribution
until a later date, but distribution must begin, at the latest, by the date
specified in Section 7.06.
(b) Accelerated Distribution. If a Participant dies or terminates
employment after attaining age 65 or incurring a Disability, the Participant (or
Beneficiary in the case of death), may elect to receive an immediate
distribution of up to 80% of the Participant's Account (valued as of the
Valuation Date preceding termination of employment or as of such other date as
the Committee, in its discretion, may select). The remaining balance of the
Participant's Account will be payable as provided in subparagraph (a). A married
Participant may not make the election described in this subparagraph (b) unless
his spouse consents as provided in Section 7.04.
7.04. Standard Form of Benefit Payment (Qualified Joint and Survivor
Annuity).
(a) Effect of Section. This Section has priority over any conflicting Plan
provision.
(b) Joint and 50% Survivor Spouse Annuity.
(i) The benefit of a vested Participant will be paid in the form of a Joint
and 50% Survivor Spouse Annuity unless the Participant makes a qualified
election (as defined below) of a different form of benefit within the ninety
(90) day period ending on the Annuity Starting Date.
(ii) Notwithstanding the foregoing, if the value of a Participant's vested
Account is three thousand five hundred dollars ($3,500) or less at termination
of employment, the Employer shall, at any time before the Annuity Starting Date
(or, at any time thereafter if the Employer obtains the written consent, given
within ninety (90) days prior to the proposed lump sum payment, of
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the Participant and the Participant's spouse, or the survivor of them), direct
the Trustee to pay to the Participant or to the Participant's spouse, as
applicable, in lieu of the Joint and 50% Survivor Spouse Annuity, a lump sum
equal to the present value of such benefit as of the date of payment. Any such
lump sum payment will fully discharge the Plan's obligations to the Participant
and the Participant's spouse with respect to the Joint and 50% Survivor Spouse
Annuity. For purposes of the foregoing, present value shall be determined
pursuant to section 417(e) of the Code and the regulations thereunder.
(c) Qualified Preretirement Survivor Annuity.
(i) The following rules will apply if a vested, married Participant dies
before payment of his or her benefits begins. If the Participant had not made a
qualified election (as defined below) waiving the Qualified Preretirement
Survivor Annuity, the Participant's vested Account will be paid in the form of a
life annuity to the Participant's surviving spouse. If the Participant had made
a qualified election, the Participant's vested Account will be payable to his or
her designated beneficiary.
(ii) For purposes of subsection (c)(i), a surviving spouse will begin to
receive payments as soon as practicable after the Participant's death unless the
surviving spouse elects to have payments begin at a later date.
(iii) Notwithstanding the foregoing, if the value of the Participant
Account is three thousand five hundred dollars ($3,500) or less, the Employer
shall, at any time before the Annuity Starting Date (or at any time thereafter,
if the Employer obtains the surviving spouse's written consent, given within
ninety (90) days prior to the proposed lump sum payment), direct the Trustee to
pay to the spouse the Participant's Account as a lump sum, in lieu of the
Qualified Preretirement Survivor Annuity. Any such lump sum payment will fully
discharge the Plan's obligations to the spouse with respect to the benefit
described above.
(d) Definitions.
(i) Annuity Starting Date. The first day of the first period for which an
amount is paid as an annuity or, in the case of a benefit not paid in the form
of an annuity, the first day on which all events have occurred which entitle the
Participant to such benefit.
(ii) Earliest Retirement Age. The earliest date on which the Participant
could elect to receive a distribution under the Plan.
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(iii) Joint and 50% Survivor Spouse Annuity. A reduced retirement allowance
commencing at age 65, or, with the consent of the Participant, commencing at the
earliest retirement age, of actuarially equivalent value payable during the
retired Participant's life, with the provision that, after the Participant's
death, a monthly benefit equal to one-half (1/2) of the monthly benefit payable
during the Participant's life will be continued during the life of and paid to
the Participant's surviving spouse, with payments ceasing with the retired
Participant's death if the Participant's spouse does not survive the
Participant. A Joint and 50% Survivor Spouse Annuity for a single Participant is
a monthly benefit payable to the Participant during his or her life with
payments ceasing upon the Participant's death.
(iv) Qualified Election. A Participant's written waiver of the Joint and
50% Survivor Spouse Annuity and election to receive benefits in one of the
optional forms permitted under Section 7.05, or the written waiver of a
Qualified Preretirement Survivor Annuity and the election of a non-spouse
beneficiary or the election of an optional death benefit form available
hereunder. A Participant's spouse must consent in writing to the waiver
(including consent to the beneficiary or beneficiaries who will receive benefits
payable on the death of the Participant), and the spouse's consent must be
notarized. The spouse's consent must acknowledge the effect of the waiver,
election and consent. It may be limited to consent to the specific form of
benefit elected and to the payment of the benefit to the specific Beneficiary
designated in the election. It may also be a general consent which is not
limited to any specific form of benefit or specific beneficiary, but only if the
consent (i) expressly permits the Participant to make subsequent elections with
respect to forms of benefits and/or subsequent designations of Beneficiaries
without further consent of the spouse and (ii) acknowledges and expressly
relinquishes the right to limit the consent to an election of a specific benefit
and a designation of a specific Beneficiary. If a Participant establishes to the
satisfaction of the Committee that the Participant is not married, that the
Participant's spouse's written consent cannot be obtained because the spouse
cannot be located, that the Participant is legally separated or the Participant
has been abandoned (within the meaning of local law) and the Participant has a
court order to such effect, or that such other circumstances exist as are
specified under applicable Internal Revenue Service regulations, a waiver by the
Participant alone will be a qualified election (unless a qualified domestic
relations order as described in section 414(p) of the Code provides otherwise).
Any consent necessary under this provision will be valid only with respect to
the spouse who signs the consent. If the spouse is legally incompetent to give
consent, the spouse's
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legal guardian, even if the guardian is the Participant, may give consent. A
Participant may revoke a previous waiver without the consent of his or her
spouse at any time before benefits begin. A spouse may not revoke his or her
written consent. A qualified election must be made during the qualified election
period as defined below.
(v) Qualified Election Period. For a Joint and 50% Survivor Spouse Annuity,
the period which begins on the date the Participant receives the notice required
below and ends on the Annuity Starting Date (such election period shall be no
more than ninety (90) days and no less than thirty (30) days). For a Qualified
Preretirement Survivor Annuity, the period which begins on the first day of the
Plan Year in which the Participant attains age thirty-five (35) and ends on the
date of the Participant's death. If a Participant separates from service before
the first day of the Plan Year in which the Participant attains age thirty-five
(35), the qualified election period with respect to the Participant's interest
in the Plan as of the date of separation shall begin on the date of separation.
Notwithstanding the preceding, a Participant may waive the Qualified
Preretirement Survivor Annuity before the earlier of attainment of age
thirty-five (35) or separation from service, but only if the notice requirement
is met before such waiver and the waiver becomes invalid on the first day of the
Plan Year in which the Participant attains age thirty-five (35).
(vi) Spouse (surviving spouse): The spouse or surviving spouse of a
Participant, provided that the Participant and the Participant's spouse are
married to each other on the earlier of the Annuity Starting Date or the date of
the Participant's death, and further provided that a former spouse will be
treated as a spouse or surviving spouse to the extent provided under a qualified
domestic relations order as described in section 414(p) of the Code.
(e) Notice Requirements.
(i) In the case of a Joint and 50% Survivor Spouse Annuity, within ninety
(90) days but not less than thirty (30) days prior to the Annuity Starting Date,
the Committee will provide to each Participant who will receive a Joint and 50%
Survivor Spouse Annuity a written explanation of: (i) the terms and conditions
of a Joint and 50% Survivor Spouse Annuity; (ii) the Participant's right to
waive the Joint and 50% Survivor Spouse Annuity form of benefit and the effect
of such a waiver; (iii) the rights of a Participant's spouse under this Section;
and (iv) the Participant's right to revoke a previous waiver of the Joint and
50% Survivor Spouse Annuity and the effect of revoking such a waiver. A
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Participant also must be furnished a general description of the eligibility
conditions and sufficient additional information to explain the relative values
of the optional forms of benefit available under the Plan (e.g., the extent to
which optional forms are subsidized relative to the normal form of benefit or
the interest rates used to calculate the optional forms).
(ii) In the case of a Qualified Preretirement Survivor Annuity, the
Committee will provide to each Participant, within the period beginning on the
first day of the Plan Year in which the Participant attains age thirty-two (32)
and ending with the close of the Plan Year in which the Participant attains age
thirty-four (34), a written explanation of the Qualified Preretirement Survivor
Annuity which is comparable to the explanation required by (i) above regarding
Joint and 50% Survivor Spouse Annuities. If an individual becomes a Participant
after attaining age thirty-four (34), the Committee will provide the notice no
later than the end of the one (1) year period beginning with the first day of
the first Plan Year for which the individual is a Participant. If a Participant
separates from service before attaining age thirty-five (35), the Committee will
provide the notice within one (1) year after the separation from service.
(iii) In the case of any distribution (other than an automatic cash-out of
three thousand five hundred dollars ($3,500) or less) which is to begin before
age 65, the Committee shall notify the Participant of the Participant's right to
defer the commencement of the distribution until age 65.
7.05. Optional Methods of Payment.
(a) Available Options. Subject to the requirements of Section 7.04 above,
benefits may be paid in one or more of the following optional methods as elected
by the Participant [(or, in the case of a deceased Participant, as designated by
the Participant (with his spouse's consent, if applicable) or as elected by his
personal representative or Beneficiary)]:
(1) Lump Sum Option. The Participant's Account will be paid in a single
lump sum.
(2) Periodic Installment Payments. The Participant's Account will be paid
in periodic payments of substantially equal amounts for a specified number of
years not in excess of the life expectancy of the Participant, or the life
expectancy of the Participant and his spouse, if any, at the date the first
installment payment is made, in which event the unpaid balance at the end of
each year shall continue to receive allocations of income and loss. In the event
of any termination of
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service of a Participant who has not yet reached age 65, the Participant may
elect payment of larger amounts prior to the attainment of age 65 and smaller
amounts thereafter. Periodic payments shall be made not more frequently than
monthly.
(3) Periodic Installment Payments Based on Current Annuity Contract
Purchase Rates. The Participant's Account will be distributed to him in equal
monthly, quarterly, semi-annual, or annual installments commencing at the later
of age 65 or his actual retirement and continuing for his life. The amount of
such installment payments shall be determined by the Participant, but in all
cases the annual amount of such payments to the Participant shall be more than
one-half (1/2) of the annual pension or annuity payments which could be obtained
for the Participant if, as of the later of the Participant's attainment of age
65 or the date of his actual retirement, his entire vested Account was used by
the Trustee to purchase at that date a single premium nontransferable annuity
contract from an insurer, at the insurer's current premium rates, and if such
contract provided for equal periodic payments on a monthly basis to the
Participant, such payments commencing on that date and continuing until his
death. The Committee shall determine, with the consent of the Participant, which
insurer's premium rates shall be applied in computing the minimum installment
payments permitted under this paragraph. Upon the Participant's death, the
entire undistributed portion of the Participant's interest shall be paid to the
Participant's Beneficiary in a lump sum or over a period of time.
(4) Annuity Options. The Participant's Account will be paid to him by the
purchase of a single premium, nontransferable annuity contract from an insurer
which he or she shall obtain. The Participant or Beneficiary may authorize the
Employer to act as his agent in obtaining such a contract, but such contract
shall be for such term and in such form as the Participant or Beneficiary shall
determine. If, under the annuity contract, payments continue after the
Participant's death, the provisions of this Section and of Section 7.09 shall
apply. The Committee, at the discretion of the Participant or Beneficiary, shall
direct the Trustee to surrender any such annuity contracts which it holds to the
person or persons entitled to receive payments therefrom.
(5) Other Optional Methods. In addition to the foregoing, the Participant
or Beneficiary may request any other method of payment which is permitted under
ERISA and the Internal Revenue Code.
(b) Payments During Participant's Life. If an installment method is
elected, more than 50% of the entire projected distribution of benefits must be
payable to the
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Participant during his life. In no event can a Participant or Beneficiary elect
an interest-only option.
(c) Changes In Method of Payment. The Committee shall have the right, with
the consent of the Participant or his Beneficiary, to direct the Trustee at any
time and from time to time to change or modify the method or methods of
distribution previously determined.
7.06. Required Beginning Date. Payment of benefits must begin by April 1 of
the calendar year following the calendar year in which a Participant attains age
70-1/2, except that a Participant who attains age 70-1/2 before January 1, 1988
and is not a 5% owner within the meaning of section 416(i) of the Code, may
postpone distribution of benefits until his termination of employment. Payment
of benefits must be made over the life of the Participant or lives of the
Participant and the Participant's spouse or over a period not exceeding the life
expectancy of the Participant or the life expectancy of the Participant or the
Participant's spouse. If a Participant dies before his entire interest has been
distributed, the remaining portion of his interest shall be distributed at least
as rapidly as under the method of distribution being used as of the date of the
Participant's death.
7.07. In-Kind Distributions Permitted. Any payments or distributions under
this Plan will be paid in cash, except that a Participant or Beneficiary may
elect to have any Employer Securities held in his Account distributed in kind.
7.08. Designation of Beneficiary.
(a) Subject to the requirements of Section 7.05 for married Participants,
each Participant may from time to time designate a Beneficiary or Beneficiaries
(who may be designated contingently or successively) to receive any Plan
benefits remaining at his death. Each Beneficiary designation must be in form
prescribed by the Committee and will be effective only when filed with the
Committee during the Participant's lifetime. Each Beneficiary designation filed
with the Committee will cancel all Beneficiary designations previously filed
with the Committee. If a Participant fails to designate a Beneficiary in the
manner provided above, [or if the Beneficiary designated by a deceased
Participant dies before him or before complete distribution of the Participant's
benefits,] the Participant's benefits shall be paid in accordance with the
following order of priority:
(i) to the Participant's surviving spouse, or if there be none surviving,
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(ii) to the Participant's children in equal parts, or if there be none
surviving,
(iii) to the Participant's father and mother, in equal parts, or if there
be none surviving,
(iv) to the Participant's estate.
(b) Amounts payable to a Beneficiary, must be paid over the Beneficiary's
life or over a period not extending beyond the Beneficiary's life expectancy. If
the Beneficiary is not the Participant's spouse, distribution must begin on or
before December 31 of the year after the year in which the Participant died. If
the Beneficiary is the Participant's spouse, the first distribution can be
deferred to December 31 of the year in which the Participant would have reached
age 70-1/2.
ARTICLE VIII.
PARTICIPANT DIRECTED INVESTMENTS
8.01. Participant Directed Investments.
(a) Election of Investment Funds - Each Participant shall be permitted to
select the investments in which his Account shall be invested in increments of
twenty-five percent (25%) in one or more of the following investment options
designated by the Committee:
(1) a fund providing a stated periodic rate of return;
(2) an equity fund;
(3) a bond fund;
(4) such other investment fund or funds as the Committee shall, in its sole
discretion, designate; and
(5) Employer Securities. A Participant shall have voting rights in Employer
Securities held by his Account and shall have the right to tender such stock or
securities in such corporate situations that may require such action. If the
Participant, however, does not give specific instructions to tender his stock or
securities, the Trustee has no power to compel such shares to be tendered in a
corporate situation involving a tender offer.
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Amounts credited to a Participant's Account will be invested as soon as
reasonably practicable after they are received by the Trustee. In the interim,
such amounts may be invested in a money market or other interest bearing
vehicle.
(b) Participant Accounts. Each Participant's Account will reflect the
investment fund or funds selected by him so that net gain or net loss from each
such fund shall inure directly to the Account.
(c) Absence Of Participant Election. If a Participant fails to make an
investment election, the Committee will direct the Trustee to invest the
Participant's Account in such investment fund or funds as the Committee
determines in its sole discretion.
(d) Investment Election by Former Participants. Former Participants and
Beneficiaries will have the same rights as Participants to direct the investment
of their Accounts.
(e) Election by Insiders. Notwithstanding the aforegoing, a Participant who
is an Insider may direct the Trustee to invest the assets of his or her Plan
Account in Employer Securities or to liquidate the assets of his or her Plan
Accounts which are invested in Employer Securities only once every six months
and only during the period beginning on the third business day following the
date of release or publication of quarterly or annual summary statements of
sales and earnings of Loyola Capital Corporation (in a manner prescribed under
rules promulgated by the Securities Exchange Commission under Section 16(b) of
the Securities Exchange Act of 1934) and ending on the twelfth business day
following such date.
(f) Common Trust Funds. The Trust may be invested in common trust funds
(i.e. collective or commingled trust funds) maintained by a bank or trust
company; including any bank or trust company which may act as Trustee, and the
commingling of the assets of the Trust with assets of other eligible,
participating trusts through such a medium is hereby specifically authorized.
Any assets of the Trust which may be so invested in common trust funds shall be
subject to all the provisions of the applicable declaration of trust, as amended
from time to time, which declaration, if required by its terms or by applicable
regulations under the Internal Revenue Code or ERISA, is hereby adopted as part
of the Plan, to the extent of the participation in such common trust funds by
the Trust.
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ARTICLE IX.
LOANS
9.01. Loan Administration. A party in interest (as defined in ERISA section
3(14)) who is a Participant or former Participant, or who is a Beneficiary who
has become entitled to receive a benefit under the Plan, may apply to the
Committee for a loan from his Account. The Committee will review the loan
application and will approve or deny the application in writing, in accordance
with this Article. Any loan will be made from the assets of, and will be charged
against, the borrower's Account, and shall be charged against the investments in
that Account under such uniform rules as the Committee shall establish.
9.02. Number of Loans. A borrower may not have more than one loan
outstanding at any one time, except that a borrower may have two loans
outstanding if one of the loans is for the purpose of purchasing the borrower's
primary residence.
9.03. Amount, Availability. The minimum amount which a borrower may borrow
at any one time, exclusive of interest, is one thousand dollars ($1,000). The
maximum amount which a borrower may borrow from the Plan, when added to the
outstanding balance of all other loans from the Plan and from any other
qualified plans maintained by the Employer and any entity required to be
aggregated with the Employer pursuant to Code section 72(p), exclusive of
interest, may not exceed the lesser of: (i) fifty thousand dollars ($50,000),
reduced by the excess (if any) of the highest outstanding balance of loans from
the Plan to the borrower during the one (1) year period ending on the day before
the date on which such loan was made, over the outstanding balance of loans from
the Plan to the borrower on the date on which such loan was made; or (ii) fifty
percent (50%) of the borrower's vested Account, determined as of the origination
date of the loan. In applying the limits of the preceding sentence, a borrower's
vested interest in the Plan will be determined in accordance with Code section
72(p)(2)(A). In no event will a loan be made which, at the time of the loan,
would be taxed under Code section 72(p) as a distribution from the Plan.
9.04. Non-Discrimination. The Committee will not discriminate in favor of
Highly Compensated Employees as to the general availability of loans, as to the
terms of repayment, or as to the amount of such loans in proportion to the
vested portion of the borrower's Account. Notwithstanding anything in this Plan
to the contrary, all loans must comply with the requirements of section
408(b)(1) of ERISA.
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9.05. Loan Approval. The Committee shall approve or deny loan applications
based on the same factors which commercial lenders in the business of making
similar types of loans legally recognize for purposes of loan availability. The
Committee may examine such factors as creditworthiness, financial need, adequacy
of security and risk of loss to the Plan in the event of default. Based on these
factors, Participants, former Participants and Beneficiaries may be offered
loans on different terms and conditions due to valid economic differences. The
Committee may from time to time set appropriate processing and loan
administration fees.
9.06. Interest Rate. Each loan shall bear a reasonable rate of interest, to
be established by the Committee. A reasonable rate of interest means an interest
rate which is at least the rate of interest currently being charged by
commercial lenders in the area for the use of money which they lend under
similar circumstances (including creditworthiness of the borrower and the
security given for the loan). The Committee shall not discriminate among
borrowers in the matter of interest, but loans may bear different interest rates
if, in the Committee's opinion, the difference is justified by different terms
for repayment, the security of the collateral, or changes in economic
conditions. No loans will be granted during any period in which the reasonable
commercial interest rate for money loaned under similar circumstances exceeds
the maximum legal rate that may be charged to individuals for loans of this
nature under applicable usury laws.
9.07. Collateral. Each loan, to the extent of the amount of the
indebtedness, including interest, shall be secured by the assignment of up to
fifty percent (50%) of the borrower's vested Account, determined as of the
origination date of the loan, and shall be supported by the borrower's
collateral promissory note for the payment of the indebtedness, including
interest, payable to the order of the Trustee. Subject to applicable provisions
of law, each loan shall be further supported by the Participant's execution of
an agreement, in a form specified by the Committee, to repay the loan by payroll
deduction over a term and in a manner specified by the Committee. The assignment
of any part of the borrower's Account provided for above shall be void for any
period of time during which the loan fails to comply with Code section
4975(d)(1) and section 408(b)(1) of ERISA.
9.08. Repayment.
(a) Amortization over Term. Except as provided in regulations or other
formal guidance issued by the Secretary of the Treasury or by the Department of
Labor, and subject to any limitations which may apply in the case of a borrower
who is not an
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active Employee, loans shall be repaid by payroll deductions. Each loan shall be
repaid in such manner and over such period as will constitute level amortization
over the term of the loan (with payments not less frequently than quarterly),
and the term of the loan shall not exceed such period (not to exceed five years,
or such longer period as may be allowed without causing the loan to be taxed
under Code section 72(p) as a distribution from the Plan) as the Committee shall
determine. A borrower's payments of principal and interest on a loan shall be
credited to the borrower's Account.
(b) Default. The events of default shall be listed specifically in the
borrower's loan agreement. The provisions of a borrower's loan agreement are
deemed part of the Plan with respect to that borrower for purposes of complying
with Department of Labor Regulation section 2550.408b-1(d)(2). If a borrower
defaults in the repayment of the loan, the borrower's Account under this Plan
shall be charged with the full unpaid balance of the loan, including any accrued
but unpaid interest, as of the earliest date on which the borrower may elect to
receive a distribution of a portion or all of his or her Account. If the entire
balance of the borrower's Account is insufficient to repay the remaining balance
of the loan, including interest, the borrower shall be liable for and continue
to make payments on any balance still due. Any costs incurred by the Trustee or
Committee in collecting amounts due, including attorney's fees, shall be added
to the principal balance of the loan and treated accordingly.
9.09. Participant and Spousal Consent. A Participant must consent, in
writing, to the fact that, if a loan default occurs, the Participant's Account
may be reduced as provided in Section 9.08. In addition, the Participant's
spouse must consent, in the same manner and to the same extent as required in
Section 7.04, to the assignment of the Participant's Account as security and to
the reduction of the Participant's Account if the Participant defaults under the
loan. The consent of the Participant and his or her spouse, if any, must be made
within the ninety (90) day period before the making of the loan. For purposes of
this Section, any renegotiation, extension, renewal or other revision of a loan
shall be treated as a new loan requiring a new consent.
9.10. Distributions Prohibited. No distribution (other than a hardship
distribution of that portion of the Participant's vested Account which is not
used as collateral for a loan) under the Plan shall be from an Account unless
all unpaid loans from that Account, including accrued interest, have been repaid
or otherwise discharged.
9.11. No Alienation. A loan shall not be treated as an assignment or
alienation of the borrower's Account even though the
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loan will be secured by a portion of the Account. All loans made to Participants
and beneficiaries shall be exempt from the tax imposed on prohibited
transactions under Code section 4975(d)(1).
9.12. Disclosure. Every borrower must receive from the Committee a
statement which describes the loan application procedure, the events
constituting default and the steps which will be taken by the Plan in the event
of default, and a clear statement of the charges involved in each loan
transaction. The statement of charges shall include the dollar amount of the
loan and the annual interest rate.
ARTICLE X.
FIDUCIARIES
10.01. Allocation of Responsibility Among Fiduciaries. Loyola Capital, the
Committee and the Trustee shall be Named Fiduciaries of the Plan. Each Fiduciary
shall have only those powers, duties, and responsibilities, as are specifically
given to it under this Plan. In general, Loyola Capital shall have the sole
authority to appoint and remove the members of the Committee, and terminate the
Plan. The Committee shall have the sole responsibility for the administration of
the Plan. Loyola Capital and the Committee each may adopt amendments to the Plan
as described in Section 12.01. The Trustee shall have the sole responsibility
for the administration of the Trust and the management of the assets held under
the Trust (subject, however to Participant direction under Article VIII), all as
specifically provided herein and in the Trust Agreement. Each Fiduciary may rely
upon any direction, information, or action of another Fiduciary as being proper
under this Plan and is not required to inquire into the propriety of any such
direction, information or action. Each Fiduciary shall be responsible for the
proper exercise of its own powers, duties, responsibilities, and obligations and
shall not be responsible for any act or failure to act of another Fiduciary. No
Fiduciary guarantees the Trust Fund in any manner against investment loss or
depreciation in asset value.
10.02. Discharge of Duties. Fiduciaries shall discharge their duties solely
in the interest of the Participants and their Beneficiaries, and in accordance
with the applicable provisions of ERISA.
10.03. Indemnification of Committee Members and Other Officers and
Employees. The Employer shall indemnify and save harmless each member of the
Committee and each officer or employee
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of the Employer who is a fiduciary under the Plan from, against, for, and in
respect of any and all damages, losses, obligations, liabilities, liens,
deficiencies, costs, and expenses, including, without limitation, reasonable
attorneys' fees and other costs and expenses incident to any suit, action,
investigation, claim, or proceedings suffered, sustained, incurred, or required
to be paid by such fiduciary, except that indemnification shall not extend to
matters resulting from the fiduciary's gross negligence, willful misconduct, or
lack of good faith. Nothing herein shall prevent the Employer or any fiduciary
from purchasing insurance protection against claims arising from alleged breach
of fiduciary responsibility.
10.04. Appointment of Committee. The Plan shall be administered by a Profit
Plus Committee consisting of at least three (3) persons who shall be appointed
by and serve at the pleasure of the Board of Directors. All usual and reasonable
expenses of the Committee may be paid in whole or in part by the Employer, and
any expenses not paid by the Employer shall be paid by the Trustee out of the
principal or income of the Trust Fund. Any members of the Committee who are
Employees shall not receive compensation with respect to their services for the
Committee.
10.05. Committee Powers and Duties. The Committee shall have such duties
and powers as may be necessary properly to administer the Plan, including, but
not limited to, the following duties and responsibilities:
(a) To construe and interpret the Plan, decide all questions of eligibility
and determine the amount, manner, and time of payment of any benefits hereunder;
(b) To prescribe procedures to be followed by Participants or Beneficiaries
filing applications for benefits;
(c) To prepare and distribute information explaining the Plan;
(d) To obtain from the Employer and from Participants such information as
shall be necessary for the proper administration of the Plan;
(e) To furnish the Employer, upon request, such reports with respect to the
administration of the Plan as are reasonable and appropriate;
(f) To receive, review, and keep on file (as it deems convenient or proper)
reports of the financial condition, and of
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the receipts and disbursements of the Trust Fund from the Trustee;
and
(g) To appoint or employ individuals to assist in the administration of the
Plan and any other agents it deems advisable, including legal and actuarial
counsel.
(h) To designate investment options available to Participants under Section
8.01.
(i) To appoint and remove the Trustee.
(j) To issue directions to the Trustee concerning all benefits which are
payable from the Trust Fund.
(k) To determine and communicate to the Trustee in writing the Plan's
funding policy.
Except as provided in Section 12.01, the Committee shall have no power
to add to, subtract from, or modify any of the terms of the Plan, or to change
or add to any benefits provided by the Plan, or to waive or fail to
apply any requirements of eligibility for a benefit under the Plan. In
carrying out its duties and responsibilities, the Committee shall have
discretionary authority to exercise all powers and to make all determinations,
consistent with the terms of the Plan, in all matters entrusted to it, and the
Committee's determinations shall be given deference and shall be final and
binding on all interested parties.
10.06. Rules and Decisions. The Committee may adopt such rules as it deems
necessary, desirable, or appropriate. All rules and decisions of the Committee
shall be uniformly and consistently applied to all Participants in similar
circumstances. When making a determination or calculation, the Committee shall
be entitled to rely upon information furnished by a Participant or Beneficiary,
the Employer, the legal counsel of the Employer, or the Trustee.
10.07. Committee Procedures. The Committee may act at a meeting or in
writing without a meeting. The Committee shall elect one of its members as
chairman, appoint a secretary who may or may not be a Committee member, and
advise the Trustee of such actions in writing. The secretary shall keep a record
of all meetings and forward all necessary communications to the Employer or the
Trustee. All decisions of the Committee shall be made by the vote of the
majority, including actions in writing taken without a meeting. A dissenting
Committee member who, within a reasonable time after he has knowledge of any
action or failure to act by the majority, registers his dissent in writing
delivered to the other
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Committee members, shall not be responsible for any such action or failure to
act.
10.08. Applications and Forms for Benefits. The Committee may require a
Participant to complete and file with the Committee an application for a benefit
and all other forms which may be approved by the Committee, and to furnish all
pertinent information requested by the Committee. The Committee may rely upon
all such information so furnished it, including the Participant's current
mailing address.
10.09. Facility of Payment. Whenever, in the Committee's opinion, a person
entitled to receive any payment of a benefit or installment thereof hereunder is
under a legal disability or is incapacitated in any way so as to be unable to
manage his financial affairs, the Committee may direct the Trustee to make
payments to such person or to his legal representative or to a relative or
friend of such person for his benefit, or the Committee may direct the Trustee
to apply the payment for the benefit of such person in such manner as the
Committee considers advisable. Any payment of a benefit or installment thereof
in accordance with the provisions of this section shall be a complete discharge
of any liability for the making of such payment under the provisions of the
Plan.
10.10. Claims Procedure.
(a) If a Participant or his Beneficiary is denied any benefits under this
Plan, the Committee shall advise the Participant or his Beneficiary in writing
of the amount of his benefit, if any, and the specific reasons for the denial.
The Committee shall also furnish the claimant at that time with a written notice
containing:
(1) A specific reference to pertinent Plan provisions.
(2) A description of any additional material or information necessary for
the Participant to perfect his claim, if possible, and an explanation of why
such material or information is needed.
(3) An explanation of the Plan's claim review procedure.
(b) Within sixty (60) days of receipt of the information stated in (a)
above, the claimant shall, if he desires further review, file a written request
for reconsideration with the Committee.
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(c) So long as the claimant's request for review is pending (including the
sixty (60) day period in (b) above), the claimant or his duly authorized
representative may review pertinent Plan or Trust documents and may submit
issues and comments in writing to the Committee.
(d) Within thirty (30) days after receipt of a claimant's request for
reconsideration, if the Committee has not theretofore resolved any dispute to
the satisfaction of the claimant, the Committee shall review all pertinent
documents.
(e) A final and binding decision shall be made by the Committee within
sixty (60) days of the filing by the claimant of his request for
reconsideration, provided, however, that if the Committee, in its discretion,
feels that a hearing with the claimant or his representative present is
necessary or desirable, this period shall be extended an additional sixty (60)
days.
(f) The Committee's decision shall be conveyed to the claimant in writing
and shall include specific reasons for the decision, written in a manner
calculated to be understood by the claimant, with specific references to the
pertinent Plan provisions on which the decision is based.
ARTICLE XI.
PROVISIONS RELATING TO THE TRUSTEE
11.01. Trust Fund. All contributions under the Plan shall be paid to the
Trustee and deposited in the Trust Fund. All assets of the Trust Fund, including
investment income, shall be retained for the exclusive benefit of Participants,
former Participants, and Beneficiaries, and shall be used to pay benefits to
such persons or to pay administrative expenses of the Plan and Trust Fund to the
extent not paid by the Employer, and, except as specifically permitted by the
Plan or the Trust Agreement, shall not revert to nor inure to the benefit of the
Employer. The Trustee shall hold the Trust Fund subject to, and in accordance
with, this Plan and the Trust Agreement.
ARTICLE XII.
AMENDMENT
12.01. Right to Amend. Loyola Capital reserves the right to amend this
Plan. Amendments may be adopted retroactively if deemed necessary or
appropriate, to the extent permissible under
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law, to conform with governmental regulations or other policies. No amendment
shall make it possible for any part of the Fund to be used for, or diverted to,
purposes other than for the exclusive benefit of Participants. No amendment may
change the vesting schedule, directly or indirectly, with respect to the future
accrual of benefits for any Participant unless the new vesting schedule is at
least as favorable as the old in every respect or, if it is not, each
Participant with three (3) or more Years of Service is permitted to elect to
have the vesting schedule which was in effect before the amendment used to
determine his vested benefit. Plan amendments must be adopted by the Board of
Directors or by any person or persons duly authorized by resolution of the
Board. Plan amendments which do not increase the Employer's costs or materially
affect Plan benefits may also be adopted by the Committee.
ARTICLE XIII.
PLAN TERMINATION
13.01. Right to Terminate. Loyola Capital, by action of the Board of
Directors, may terminate the Plan at any time,
13.02. Accelerated Vesting. Upon termination of the Plan, or upon a partial
termination of the Plan as determined by the Committee in accordance with
applicable regulations of the Internal Revenue Service, the Accounts of all
Participants affected thereby shall become fully vested.
13.03. Manner of Distribution. Upon a termination of the Plan, the
Committee shall direct the Trustee to distribute the assets remaining in the
Trust, after payment of any expenses properly chargeable thereto, to
Participants, former Participants, and Beneficiaries in proportion to their
respective Accounts. To the extent no discrimination in value results, any
distribution after termination of the Plan may be made, in whole or in part, in
cash, in securities, or other assets in kind, or in nontransferable annuity
contracts, as the Committee, in its discretion, may determine. All noncash
distributions shall be valued at fair market value at date of distribution. In
lieu of distributing the Trust Fund, the Committee may direct the Trustee to
continue to hold the assets of the Trust subject to, and pending distribution in
accordance with, the terms of the Plan.
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ARTICLE XIV.
PARTICIPATING EMPLOYERS
14.01. Adoption of Plan by Participating Employers. Each affiliate of
Loyola Capital shall automatically participate in this Plan, and shall be known
as a Participating Employer, unless the Committee adopts a resolution
specifically excluding the affiliate from participation. An entity will be
considered an "affiliate" of Loyola Capital if the entity is a corporation and
if it is sixty percent (60%) or more owned, directly or indirectly, by Loyola
Capital. A corporation which is not an affiliate of Loyola Capital may not
participate in this Plan.
14.02. Effect of Participating Employer's Adoption. The following rules
apply to Participating Employers:
(a) Each Participating Employer shall be required to use the same Trustee
as provided in this Plan.
(b) Contributions by a Participating Employer, shall be paid to and held by
the Trustee for the exclusive benefit of the Employees of that Participating
Employer and their Beneficiaries, subject to all the terms and conditions of
this Plan. The Committee shall keep separate books and records concerning the
affairs of each Participating Employer and as to the accounts and credits of the
Employees of each Participating Employer. The Trustee need not earmark the
assets attributable to each Participating Employer and may commingle them with
assets attributable to other Employers.
(c) As of the effective date of a Participating Employer's participation in
the Plan, the term "service" or "employment" will refer equally to service with
any Participating Employer.
(d) The transfer of any Participant from one Participating Employer to
another shall not be considered a termination of employment or otherwise affect
the Participant's rights under the Plan.
(e) Forfeitures shall be applied against Employer Contributions in the
aggregate, without distinction among Participating Employers.
(f) Any expenses of the Trust which are to be paid by the Employer or borne
by the Trust Fund shall be paid by each Participating Employer in the same
proportion that the total amount standing to the credit of all Participants
employed by such
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Employer bears to the total standing to the credit of all Participants.
(g) Loyola Capital and the Committee shall have exclusive administrative
authority over the Plan and Trust, although responsibility for those internal
matters peculiar to a Participating Employer may be delegated to that Employer.
Loyola Capital and the Committee shall have sole and exclusive power to amend or
terminate the Plan.
14.03. Withdrawal by Participating Employers. A Participating Employer may
withdraw from the Plan by action of its own board of directors. A withdrawing
Employer must give at least 90 days' prior written notice of its intention to
terminate or withdraw to the Committee and the Trustee unless the Committee and
the Trustee agree to shorter notice. When a Participating Employer withdraws,
the Trustee shall transfer the share of the Trust allocable to the Participating
Employer's Participants to a successor trust upon receipt of evidence
satisfactory to the Committee that the successor trust qualifies under Code
section 401(a). If no successor is designated, the share will be disposed of as
provided in the termination provisions of Article XIII. Notwithstanding the
above provisions, a Participating Employer shall be deemed to have withdrawn
from the Plan at such time as the Participating Employer ceases to be an
affiliate within the meaning of Section 14.01.
14.04. Rules and Regulations. The Committee shall have authority to make
any and all necessary rules or regulations, binding upon all Participating
Employers and all Participants, to implement this Article.
14.05. Provisions Concerning Merger of Loyola Federal Savings and Loan
Association Profit Plus Plan. On the Effective Date, the Loyola Federal Savings
and Loan Association Profit Plus Plan was merged with and into this Plan, and
Loyola Federal Savings Bank adopted this Plan and became a Participating
Employer. The terms and conditions of that merger were confirmed and set forth
in a Plan Merger and Adoption Agreement between Loyola Capital Corporation and
Loyola Federal Savings Bank. A copy of the Plan Merger and Adoption Agreement is
attached to this Plan as Exhibit 14.05, and the terms of that Agreement are
incorporated into and shall form a part of this Plan.
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<PAGE>
ARTICLE XV.
MISCELLANEOUS
15.01. Nonguarantee of Employment. This Plan shall not be construed as a
contract of employment between the Employer and any Employee. It does not confer
upon any Employee any right to be continued in the employment of the Employer,
nor does it limit the right of the Employer to discharge any of its Employees,
with or without cause.
15.02. Rights to Trust Assets. No Employee or Beneficiary shall have any
right to, or interest in, any assets of the Trust, except as provided from time
to time under this Plan, and then only to the extent of the benefits payable
under the Plan to such Employee out of the assets of the Trust. All payments of
benefits as provided for in this Plan shall be made solely out of the assets of
the Trust and none of the Plan's fiduciaries or Employers shall be liable
therefor in any manner.
15.03. Discontinuance of Employer Contributions. If the Employer
permanently discontinues contributions to the Plan, the accounts of all
Participants shall become nonforfeitable as of the date of discontinuance.
15.04. Erroneous Contribution. Notwithstanding anything herein to the
contrary, the Trustee shall return to the Employer, upon the Employer's request,
a contribution which was made under a mistake of fact, or conditioned upon
qualification of the Plan or any amendment thereof or upon the deductibility of
the contribution under section 404 of the Internal Revenue Code. The
contribution may only be returned if it is within one year after the payment of
the contribution, the denial of the qualification or the disallowance of the
deduction (to the extent disallowed), whichever is applicable. Any portion of a
contribution returned pursuant to this Section 15.04 shall be adjusted to
reflect its proportionate share of the losses of the Fund, but shall not be
adjusted to reflect any earnings or gains. The right or claim of any Participant
or Beneficiary to any asset of the Fund or to any benefit under this Plan shall
be subject to and limited by the provisions of this Section 15.04.
15.05. Plan Merger; Transfer of Plan Assets. The Plan may merge or
consolidate with or transfer its assets and liabilities to, another plan, only
if:
(a) Each Participant would (if either this Plan or the other plan then
terminated) receive a benefit immediately after the merger, consolidation, or
transfer which is equal to or greater
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<PAGE>
than the benefit to which he would have been entitled immediately before the
merger, consolidation, or transfer (if this Plan had then terminated);
(b) Resolutions or other appropriate action of any new or successor
employer of the affected Participants shall authorize the merger, consolidation
or transfer, and the new or successor employer shall assume all liabilities of
the Plan with respect to the Participants whose Plan assets are being merged,
consolidated or transferred; and
(c) Such other plan and trust are qualified under sections 401(a) and
501(a) of the Internal Revenue Code.
ARTICLE XVI.
TOP HEAVY PROVISIONS
16.01. Top Heavy Requirements. Notwithstanding any other Plan provisions,
if the Plan is a Top Heavy Plan for any Plan Year, the Plan shall meet the
following requirements for that Year:
(a) Minimum Vesting Requirements. A Participant will have a fully vested
interest in his or her Plan Account upon completion of three (3) Years of
Service for vesting purposes. If the Plan is found to be a Top Heavy Plan and
subsequently ceases to be a Top Heavy Plan, then the vested interest of a
Participant with fewer than three (3) Years of Service for vesting purposes on
the date on which the Plan ceases to be a Top Heavy Plan in amounts allocated to
his or her Plan Account after the Plan ceases to be a Top Heavy Plan shall be
determined without regard to the preceding sentence.
(b) Minimum Contribution Requirement. The Plan will provide a minimum
contribution allocation for each Participant who is a Non-Key Employee in an
amount equal to at least three percent (3%) of the Participant's Compensation
(as defined in Section 5.01) for the Plan Year. The three percent (3%) minimum
contribution allocation requirement shall be increased to four percent (4%) for
any year in which the Employer also maintains a defined benefit pension plan if
the increase is necessary to avoid the application of Code section 416(h)(1),
relating to special adjustments to Code section 415 limits for Top Heavy Plans,
and if the adjusted limitations of Code Section 416(h)(1) would otherwise be
exceeded if such minimum contribution allocation were not so increased.
The minimum contribution requirements shall be reduced in the following
circumstances:
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(1) The percentage minimum contribution allocation will not exceed the
percentage contribution allocation made for the Key Employee for whom such
percentage is the highest for the Plan Year, after taking into account
contribution allocations and benefits under other qualified plans in this Plan's
aggregation group as provided in Code section 416(c)(2)(B)(ii); and
(2) A Participant's minimum contribution for a Plan Year will be reduced to
the extent that the Participant receives a minimum benefit or contribution for
such year under another plan maintained by the Employer.
(c) Additional Super Top Heavy Requirement. If the Plan is a Super Top
Heavy Plan for any Plan Year, the limitations on annual additions contained in
Article V shall be adjusted pursuant to Code section 416(h).
16.02. Top Heavy Plan Definitions. The following definitions apply to this
Article:
(a) A plan is a "Top Heavy Plan" if, as of the Determination Date, the
aggregate of the accounts of Key Employees under a defined contribution plan
exceeds sixty percent (60%) of the aggregate of the accounts of all employees
under such plan or, in the case of a defined benefit plan, the present value of
the cumulative accrued benefits under the plan for Key Employees exceeds sixty
percent (60%) of the present value of the cumulative accrued benefits under the
plan for all employees, all as adjusted by and determined in accordance with the
provisions of Code section 416(g). The determination of whether a plan is Top
Heavy shall be made after aggregating each Plan of the sponsoring Employer in
which at least one Key Employee participates and each other plan of the
sponsoring Employer which enables any plan in which at least one Key Employee
participates to meet the requirements of Code sections 401(a)(4) or 410, and
after aggregating any plan not required to be aggregated by the foregoing if
such aggregated group of plans, taking such plan into account, continues to meet
the requirements of Code sections 401(a)(4) and 410. A plan is a "Super Top
Heavy Plan" if, as of the Determination Date, the plan would meet the test
specified above for being a Top Heavy Plan if ninety percent (90%) were
substituted for sixty percent (60%) in each place it appears in this subsection
(a).
(b) The "Determination Date" for purposes of determining whether a plan is
Top Heavy for a particular plan year is the last day of the preceding plan year
(or, in the case of the first plan year of a plan, the last day of the first
plan year).
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(c) A "Key Employee" is any employee or former employee (including a
beneficiary of such employee or former employee) who at any time during the plan
year or any of the four (4) preceding plan years is:
(1) An officer of the plan sponsor or any corporation required to be
aggregated with the plan sponsor under Code sections 414(b), (c) or (m) who has
annual compensation (as defined below) from the plan sponsor or any corporation
required to be aggregated with the plan sponsor under Code sections 414(b), (c)
or (m) of more than fifty percent (50%) of the amount in effect under Code
section 415(b)(1)(A) for the plan year (but in no event shall the number of
officers taken into account as Key Employees exceed the lesser of (i) fifty (50)
or, (ii) the greater of three (3) or ten percent (10%) of all employees).
(2) One of the ten (10) Employees who (i) owns (or is considered as owning
within the meaning of Code section 318) both more than a one-half percent (1/2%)
ownership interest and the largest percentage ownership interests in the
Employer, and (ii) has annual compensation (as defined below) of more than the
amount in effect under Code section 415(c)(1)(A). For purposes of this Section,
if two (2) Employees have the same interests in the Employer, the Employee
having greater annual compensation (as defined below) from the Employer shall be
treated as having a larger interest;
(3) A person owning (or considered as owning within the meaning of Code
section 318) more than five percent (5%) of the outstanding stock of the plan
sponsor or stock possessing more than five percent (5%) of the total combined
voting power of all stock of the plan sponsor; or
(4) A person who has an annual compensation (as defined below) from the
plan sponsor (or any corporation required to be aggregated with the plan sponsor
under Code sections 414(b), (c) and (m)) of more than one hundred fifty thousand
dollars ($150,000) and who would be described in subparagraph (3) hereof if one
percent (1%) were substituted for five percent (5%).
For purposes of applying Code section 318 to the provisions of this
subsection (c), subparagraph (C) of Code section 318(a)(2) shall be applied by
substituting five percent (5%) for fifty percent (50%). In addition, the rules
of subsections (b), (c) and (m) of Code section 414 shall not apply for purposes
of determining ownership of the plan sponsor under this subsection (c).
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For purposes of determining whether an Employee is a Key Employee, annual
compensation means compensation as defined in Code section 415(c)(3), but
including amounts contributed by the Employer pursuant to a salary reduction
agreement which are excludable from the Employee's gross income under Code
sections 125, 402(a)(8), 402(h) or 403(b).
(d) A "Non-Key EmPloyee" is any participant in a plan (including a
beneficiary of such participant) who is not a Key Employee.
IN WITNESS WHEREOF, LOYOLA CAPITAL CORPORATION by its President as duly
authorized by vote of the Board of Directors and with the Employer's seal
affixed, have caused these presents to be signed this 21st day of July, 1992.
ATTEST: LOYOLA CAPITAL CORPORATION
/S/ LINDA A. STADTLER
By /s/ JOSEPH W. MOSMILLER
42
Exhibit 5
January 4, 1996
The Board of Directors
Crestar Financial Corporation
919 East Main Street
Richmond, Virginia 23219
Crestar Financial Corporation
Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to Crestar Financial Corporation, a Virginia
corporation (the "Company"), in connection with the filing of a registration
statement under the Securities Act of 1933, as amended, with respect to 25,000
shares of the Company's Common Stock, par value $5.00 per share (the "Shares"),
to be offered pursuant to the Company's Loyola Profit Plus Plan (the "Plan").
In rendering this opinion, we have relied upon, among other things, our
examination of the Plan and of such records of the Company and certificates of
its officers and of public officials as we have deemed necessary. In connection
with the filing of such registration statement, we are of the opinion that:
1. The Company is duly incorporated, validly existing and
in good standing under the laws of the Commonwealth of Virginia;
and
2. The Shares have been duly authorized and, when issued in accordance
with the terms of the Plan, will be legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to such registration statement.
Very truly yours,
/s/ HUNTON & WILLIAMS
Hunton & Williams
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Crestar Financial Corporation:
We consent to the use of our reports incorporated herein by reference. Our
report on the consolidated financial statements of Crestar Financial
Corporation refers to a change in accounting for certain investments in
debt and equity securities.
/s/ KPMG PEAT MARWICK LLP
Richmond, Virginia
December 28, 1995
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Loyola Capital Corporation:
We consent to the use of our reports incorporated herein by reference. Our
report on the consolidated financial statements of Loyola Capital Corporation
refers to a change in accounting for income taxes.
/s/ KPMG PEAT MARWICK LLP
Baltimore, Maryland
December 28, 1995
