As filed with the Securities and Exchange Commission on November
20, 1997
Registration Statement No. 33-____________
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 MERGER PLAN
FOR TRANSFERRED EMPLOYEES
(Full title of the Plan)
____________________
Linda F. Rigsby, Esq.
Senior Vice President and Corporate Secretary
Crestar Financial Corporation
919 East Main Street
Richmond, Virginia 23219
804-782-7738
(Name, address and telephone number including, area code, of
agent for service)
With copies to:
Lathan M. Ewers, Jr.
Hunton & Williams
951 East Byrd Street
Richmond, Virginia 23219
804-788-8269
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Amount to maximum maximum Amount of
securities be offering aggregate registratio
to be registered registered price offering n fee
per price(1)
share(1)
Common Stock, $5 300,000 $48.5315 $14,559,450 $4,412
par value shares N/A N/A N/A
Preferred Share 300,000
Purchase rights
Rights(2)
(1) Estimated solely for the purpose of computing the
registration fee. This amount was calculated pursuant to
Rule 457(c) on the basis of $48.5315 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 November 14, 1997. In
addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit
plan described herein.
(2) 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.
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.
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, 1996; (ii) the Company's Quarterly Reports on
Form 10-Q for the quarters ended March 31, June 30, and September
30, 1997; and (iii) 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"), including any amendment or
report filed for the purpose of updating such description.
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 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.
Directors and officers of the Company may be indemnified
against liabilities, fines, penalties, and claims imposed upon or
asserted against them as provided in the Virginia Stock
Corporation Act and the Company's Restated Articles of
Incorporation. Such indemnification covers all costs and
expenses reasonably incurred by a director or officer. The Board
of Directors, by a majority vote of a quorum of disinterested
directors or, under certain circumstances, independent counsel
appointed by the Board of Directors, must determine that the
director or officer seeking indemnification was not guilty of
willful misconduct or a knowing violation of the criminal law.
In addition, the Virginia Stock Corporation Act and the Company's
Restated Articles of Incorporation may under certain
circumstances eliminate the liability of directors and officers
in a shareholder or derivative proceeding.
If the person involved is not a director or officer of the
Company, the Board of Directors may cause the Company to
indemnify to the same extent allowed for directors and officers
of the Company such person who was or is a party to a proceeding,
by reason of the fact that he is or was an employee or agent of
the Company, or is or was serving at the request of the Company
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise.
The Company has in force and effect a policy insuring the
directors and officers of the Company against losses which they
or any of them shall become legally obligated to pay for reason
of any actual or alleged error or misstatement or misleading
statement or act or omission or neglect or breach of duty by the
directors and officers in the discharge of their duties,
individually or collectively, or any matter claimed against them
solely by reason of their being directors or officers, such
coverage being limited by the specific terms and provisions of
the insurance policy.
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, 1996 (Commission File No. 1-7083)).
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, 1996).
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 Merger Plan for Transferred Employees.
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 Deloitte & Touche LLP.
24 Power of Attorney for Officers and Directors (included on
signature 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;
(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 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.
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 12th day of
November, 1997.
CRESTAR FINANCIAL CORPORATION
(Registrant)
By /s/ Richard G. Tilghman
Richard G. Tilghman,
Chairman,
Chief Executive Officer
and Director
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 November 12, 1997. 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, Chief Executive
Richard G. Tilghman Officer and Director
(Principal Executive Officer)
By /s/ James M. Wells, III President, Chief Operating
James M. Wells, III Officer and Director
By /s/ Richard F. Katchuk Corporate Executive Vice
Richard F. Katchuk President and Chief Financial
Officer
(Principal Financial Officer)
By /s/ James D. Barr Group Executive Vice
James D. Barr President, Controller and
Treasurer
(Principal Accounting Officer)
By /s/ J. Carter Fox Director
J. Carter Fox
By /s/ Bonnie Guiton Hill Director
Bonnie Guiton Hill
By /s/ Charles R. Director
Longsworth
Charles R. Longsworth
By /s/ Patrick J. Maher Director
Patrick J. Maher
By /s/ Frank E. McCarthy Director
Frank E. McCarthy
By /s/ Paul D. Miller Director
Paul D. Miller
By /s/ G. Gilmer Minor, Director
III
G. Gilmer Minor, III
By /s/ Gordon F. Rainey, Director
Jr.
Gordon F. Rainey, Jr.
By /s/ Frank S. Royal, Director
M.D.
Frank S. Royal, M.D.
By /s/ Alfred H. Smith Director
Alfred H. Smith
By /s/ Jeffrey R. Springer Director
Jeffrey R. Springer
By /s/ Eugene P. Trani Director
Eugene P. Trani
By Director
______________________________
_________
L. Dudley Walker
By /s/ Robert c. Wilburn Director
Robert C. Wilburn
By /s/ Karen Hastie Director
Williams
Karen Hastie Williams
The Plan. Pursuant to the requirements of the Securities Act,
the Plan has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized, in
Richmond, Virginia on this 12th day of November, 1997.
CRESTAR MERGER PLAN
FOR TRANSFERRED EMPLOYEES
By /s/ James J. Kelley
James J. Kelley
Group Executive Vice President
Compensation & Benefits
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
____________________
EXHIBITS
filed with
REGISTRATION STATEMENT
on
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
____________________
CRESTAR MERGER
PLAN FOR TRANSFERRED EMPLOYEES
(full title of the plan)
EXHIBIT INDEX
Sequentially
Exhibit No. Description Number Page
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, 1996
(Commission File No. 1-
7083)).
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, 1996).
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 Merger Plan for
Transferred Employees.
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 Deloitte &
Touche LLP.
24 Power of Attorney for
Officers and Directors
(included on signature
page).
Path: DOCSOPEN\RICHMOND\08070\33411\001164\1%%q01!.DOC
Doc #: 86865; V. 1
Exhibit 23.2
INDEPENDENT ACCOUNTANTS' CONSENT
The Board of Directors
Crestar Financial Corporation:
We consent to the use of our report included in Crestar Financial
Corporation's Annual Report on Form 10-K for the year ended
December 31, 1996 incorporated herein by reference. Our report
refers to our reliance on another auditors' report with respect
to amounts related to Citizens Bancorp included in the
aforementioned consolidated financial statements.
/s/ KPMG Peat Marwick LLP
Richmond, Virginia
November 14, 1997
Crestar Merger Plan for Transferred Employees
As Amended and Restated Through December 31, 1994
CRESTAR MERGER PLAN
FOR TRANSFERRED EMPLOYEES
(formerly the Continental Federal Savings Bank
Investment Savings Plan)
As Amended and Restated Through December 31, 1994
TABLE OF CONTENTS
INTRODUCTION -vi-
ARTICLE 1 DEFINITIONS 1-1
1.1 Account 1-1
1.2 Active Participant 1-1
1.3 Actual Deferral Percentage, or ADP 1-1
1.4 Administrator 1-1
1.5 After-Tax Account 1-1
1.6 Alternate Payee 1-1
1.7 Annual Addition 1-1
1.8 Annuity Starting Date 1-1
1.9 Average Contribution Percentage, or ACP 1-1
1.10 Beneficiary 1-1
1.11 Board 1-1
1.12 Break in Service 1-1
1.13 Code 1-2
1.14 Committee 1-2
1.15 Computation Period 1-2
1.16 Compensation 1-2
1.17 Covered Employee 1-2
1.18 Defined Benefit Plan 1-3
1.19 Defined Contribution Plan 1-3
1.20 Disability 1-3
1.21 Early Retirement Date 1-3
1.22 Earnings 1-3
1.23 Effective Date 1-4
1.24 Employee 1-4
1.25 Employer 1-5
1.26 Entry Date 1-5
1.27 ERISA 1-5
1.28 Excess Aggregate Contribution 1-5
1.29 Excess Deferral 1-5
1.30 Excess 401(k) Contribution 1-5
1.31 Family Member 1-5
1.32 Former Plan 1-6
1.33 401(k) Account 1-6
1.34 Highly Compensated Employee or HCE 1-6
1.35 Hour of Service 1-7
1.36 Investment Manager 1-8
1.37 Leave of Absence 1-8
1.38 Limitation Year 1-8
1.39 Matching Account 1-8
1.40 Nonhighly Compensated Employee 1-8
1.41 Normal Retirement Age 1-9
1.42 Normal Retirement Date 1-9
1.43 Participant 1-9
1.44 Pension Account 1-9
1.45 Plan 1-9
1.46 Plan Year 1-9
1.47 Predecessor Plan 1-9
1.48 Profit Sharing Account 1-9
1.49 Qualified Domestic Relations Order 1-9
1.50 Qualified Joint and Survivor Annuity 1-10
1.51 Qualified Preretirement Survivor Annuity 1-10
1.52 Qualified Nonelective Account 1-10
1.53 Related Company 1-10
1.54 Rollover Account 1-11
1.55 Salary Reduction Election 1-11
1.56 Special Contribution 1-11
1.57 Sponsor 1-11
1.58 Spouse 1-11
1.59 Surviving Spouse 1-11
1.60 Stock 1-11
1.61 Suspense Account 1-11
1.62 Termination Date 1-11
1.63 Trust Agreement 1-11
1.64 Trust Fund 1-11
1.65 Trustee 1-12
1.66 Valuation Date 1-12
1.67 Year of Service 1-12
ARTICLE 2 PLAN MEMBERSHIP 2-13
2.1 Conditions of Participation 2-13
2.2 Employment Status Changes 2-13
2.3 Termination of Participation 2-14
2.4 Application to Participate 2-14
2.5 Administrator Determination 2-14
2.6 Eligibility Service 2-14
ARTICLE 3 CONTRIBUTIONS 3-15
3.1 Contributions Limited 3-15
3.2 Special Contributions 3-15
ARTICLE 4 OTHER PROVISIONS CONCERNING
CONTRIBUTIONS 4-16
4.1 Separate Accounts 4-16
4.2 Compliance with Code 415 4-16
4.3 Annual Addition Limitations 4-16
4.4 Excess Annual Additions 4-18
4.5 Defined Benefit Plan Participation 4-19
4.6 Limitations on Employer Contributions 4-21
4.7 Return of Contributions 4-21
4.8 Contribution for Non-Profitable Employer 4-21
ARTICLE 5 INVESTMENT OPTIONS 5-22
5.1 Effective Date 5-22
5.2 Initial Investment Election 5-23
5.3 Changes in Investment Elections 5-23
5.4 Crestar Stock Fund 5-23
ARTICLE 6 VESTING 6-26
6.1 Fully Vested Accounts 6-26
6.2 Former Plan 6-26
6.3 Other Predecessor Plan 6-26
6.4 Amendment of Vesting Schedule 6-26
ARTICLE 7 ELIGIBILITY FOR BENEFITS; LOANS 7-27
7.1 In General 7-27
7.2 Retirement 7-27
7.3 Distribution on Death 7-28
7.4 Pre-Retirement Termination 7-28
7.5 Payments During Employment 7-28
7.6Distribution Restrictions for 401(k) and Qualified
Nonelective
Accounts 7-30
7.7Qualified Domestic Relations Order Distributions 7-31
7.8 Loans 7-33
ARTICLE 8 BENEFIT PAYMENTS TO PARTICIPANTS 8-36
8.1 Benefit Payments, Generally 8-36
8.2 Forms of Payment 8-36
8.3 Election Procedure 8-38
8.4 Survivor Annuity Requirements 8-38
8.5 Restrictions on Immediate Distributions 8-39
8.6Distribution Requirements under Code 401(a)(9) 8-40
8.7 Receipt for Payment 8-44
8.8 Payments to Minors and Incompetents 8-44
8.9 Unclaimed Benefits 8-45
ARTICLE 9 DEATH BENEFIT PAYMENTS 9-46
9.1 General Provisions on Death Benefits 9-46
9.2 Designation of Beneficiary 9-46
9.3 Payment Form for Death Benefits 9-47
9.4 Qualified Preretirement Survivor Annuity 9-48
ARTICLE 10 CLAIMS PROCEDURES 10-50
10.1 Claims Procedure 10-50
10.2 Review of Denied Claims 10-50
ARTICLE 11 TOP-HEAVY PROVISIONS 11-52
11.1 Top-Heavy Years 11-52
11.2 Top-Heavy Determination 11-52
11.3 Interests Measured 11-53
11.4 Minimum Benefits for Top-Heavy Plans 11-54
11.5 Top-Heavy Vesting 11-55
11.6 Contribution and Benefit Limitations 11-56
11.7 Top Heavy Definitions 11-56
ARTICLE 12 TRUSTEE; TRUST FUND 12-58
12.1 Trustee 12-58
12.2 Trust Agreement 12-58
12.3 Trust Fund 12-58
12.4 Valuation of Accounts 12-59
12.5 Annual Accounting 12-60
12.6 Statement of Participants' Accounts 12-60
ARTICLE 13 FIDUCIARIES; PLAN ADMINISTRATION 13-61
13.1Named Fiduciaries; Allocation of Fiduciary
Responsibility
13-61
13.2 Administrator 13-61
13.3 Duties of the Benefits Department 13-63
13.4 Benefits Administrative Committee 13-63
13.5 Funding Policy 13-64
13.6 Expenses - Compensation 13-64
13.7 Directions to Trustee 13-65
13.8 Indemnification; Limitation on Liability 13-65
13.9 Exercise of Discretion by Fiduciaries 13-65
13.10Bonding of Fiduciaries 13-65
ARTICLE 14 PROVISIONS CONCERNING SPONSOR AND
EMPLOYERS 14-66
14.1 Duties of Employers 14-66
14.2 Separate Amendments by an Employer 14-66
14.3 Termination of Employer's Participation 14-66
ARTICLE 15 AMENDMENT, TERMINATION, AND MERGER 15-67
15.1 Amendment 15-67
15.2 Termination of Plan 15-67
15.3 Plan Termination Distributions 15-68
15.4 Merger, Consolidation, or Succession 15-69
ARTICLE 16 MISCELLANEOUS 16-70
16.1 Exclusive Benefit 16-70
16.2 No Contract or Inducement 16-70
16.3 No Guarantees 16-70
16.4 Non-Alienation of Benefits 16-70
16.5 Changes in Capital Structure 16-71
16.6 Errors and Omissions 16-71
16.7 Construction 16-71
EXHIBIT A PRIOR CONTRIBUTIONS Appendix A-74
A-3.1 Profit Sharing Contributions
Appendix A-74
A-3.2 Qualified Nonelective Contributions Appendix A-75
A-3.3 401(k) Contributions Appendix A-76
A-3.4 Other Limitations on 401(k) Contributions Appendix A-78
A-3.5 Matching Contributions Appendix A-80
A-3.6 Limitations on Matching Contributions Appendix A-81
A-3.7 Special Allocation Rules Appendix A-84
A-3.8 Rollover Contributions Appendix A-85
EXHIBIT B PRIOR CONTRIBUTIONS Appendix B-86
B-6.1401(k), Qualified Nonelective, Matching and
Rollover Accounts
Appendix B-86
B-6.2 Vesting of Profit Sharing Accounts Appendix B-86
B-6.3Calculation of Vesting after Distributions Appendix B-86
B-6.4 Forfeitures and Their Disposition Appendix B-87
B-6.5 Vesting Service Appendix B-87
SIGNATURES
INTRODUCTION
This Plan was formerly called the Continental Federal
Savings Bank Investment Savings Plan (the "CFSB Savings Plan"),
and was maintained by Continental Federal Savings Bank. On May
14, 1993, Crestar Financial Corporation and Crestar Bank became
successors to CFS Financial Corporation and Continental Federal
Savings Bank, respectively, and Crestar Financial Corporation
assumed sponsorship of the CFSB Savings Plan. Effective as of
June 30, 1993, the CFSB Savings Plan was frozen as to
participation, and effective as of the close of business on July
2, 1993, all 401(k), Matching, and Rollover Contributions were
suspended.
The restated Plan set forth in this document and the
attached Exhibits that are a part of this Plan reflect all
amendments adopted to the CFSB Savings Plan since the last
restatement and further amend the Plan to comply with changes in
the law up through the Omnibus Reconciliation Act of 1993. These
other amendments include changes that allow investments in
employer stock and make other administrative changes. The Plan
has also been renamed the Crestar Merger Plan for Transferred
Employees to reflect the Sponsor's intent that this Plan be
maintained as a discretionary contribution plan into which other
qualified defined contribution plans of other entities that are
acquired by, or merged into, Crestar Financial Corporation or any
of its affiliated corporations may be merged. In addition, the
Sponsor intends that this Plan will be maintained as a frozen
plan to which no additional contributions will be made, except
that account balances may be transferred to this Plan as a result
of the merger of another qualified plan into this Plan and any
contributions required under such other qualified plan may be
made to this Plan subsequent to such plan merger for the benefit
of participants under such other qualified plan. The Sponsor
further intends to comply fully with statutes and regulations
governing wages, compensation, and fringe employment benefits,
especially Code 401(a), 401(k), and 401(m). All questions
arising in the construction and administration of the Plan must
be resolved accordingly.
ARTICLE 1
DEFINITIONS
1.1 Account means the assets or value of the Trust Fund allocated
to a Participant. A Participant may have several Accounts in
this Plan. When Account is used without modification, it means
the sum of all of the Participant's Accounts.
SEE ALSO After-Tax Account, 401(k) Account, Matching Account,
Qualified Nonelective Account, Pension Account, Profit
Sharing Account, and Rollover Account.
1.2 Active Participant means a Participant who is a Covered
Employee.
1.3 Actual Deferral Percentage, or ADP, is defined in Plan
Exhibit A.
1.4 Administrator means the person or entity responsible for the
Plan's general administration and operation as described in Plan
article 13.
1.5 After-Tax Account means that portion of a Participant's
Account attributable to his contributions made on an after-tax
basis under a Predecessor Plan other than the Former Plan.
1.6 Alternate Payee means a Participant's Spouse, former Spouse,
child, or other dependent who is recognized by a Qualified
Domestic Relations Order as having a right to receive all or a
portion of the benefits payable under the Plan with respect to
such Participant.
1.7 Annual Addition is defined in Plan article 4.
1.8 Annuity Starting Date means (i) the first day of the period
for which an amount is payable as an annuity or (ii) in the case
of a benefit not payable in the form of an annuity, the first day
on which all events have occurred that entitle the Participant to
such benefit. A Participant's Annuity Starting Date cannot be
earlier than thirty days or later than ninety days after he
receives the information required by Plan section 8.4, 8.5, or
8.6, as applicable, unless Plan section 8.4 applies and the
Participant has waived the 30-day notice requirement pursuant
that section.
1.9 Average Contribution Percentage, or ACP, is defined in Plan
Exhibit A.
1.10 Beneficiary means one or more persons or entities entitled
to receive a Participant's undistributed vested Account balance
remaining at his death as determined in accordance with Plan
article 9.
1.11 Board means the Board of Directors of the Sponsor unless
the context clearly indicates a reference to the board of
directors of another entity. Whenever the Board is not meeting,
any action of the Board authorized or permitted under this Plan
or the Trust Agreement may be taken by the Sponsor's Executive
Committee or by any officer of the Sponsor or a Related Company
to whom the Board or the Executive Committee has delegated
authority to take such action on its behalf.
1.12 Break in Service means, effective July 3, 1993, for any
Employee who is an Active Participant on or after that date, any
Plan Year beginning on or after July 1, 1993, in which an
Employee does not complete at least one Hour of Service. For
periods prior to July 1, 1993, Break in Service means any
Computation Period in which an Employee does not complete more
than 500 Hours of Service. Despite the preceding, for any
Predecessor Plan other than the Former Plan, Break in Service
shall be determined in accordance with the terms of such
Predecessor Plan prior to the time such Predecessor Plan is
merged into this Plan and shall continue to apply with respect to
periods prior to such date of merger.
1.13 Code means the Internal Revenue Code of 1986, as amended
at the relevant time.
1.14 Committee means, effective May 14, 1993, the Benefits
Administrative Committee described in Plan article 13. For
periods prior to May 14, 1993, Committee is determined in
accordance with the terms of the Former Plan.
1.15 Computation Period means for purposes of vesting, the Plan
Year, and for purposes of eligibility to participate, the 12-
month period beginning on the date an individual performs an Hour
of Service as an Employee and each Plan Year beginning after such
date.
1.16 Compensation means an Employee's total compensation
received from an Employer for personal services actually rendered
and which is includable as gross income for federal income tax
purposes. Compensation includes salary, hourly pay, overtime,
and bonuses but does not include reimbursements for expenses and
designated travel allowances. Compensation is determined without
regard to any rules under Code 3401(a) that limit the
remuneration included in wages based on the nature or location of
the employment or the services performed. Compensation shall
include any amount that is contributed by an Employer pursuant to
a salary reduction agreement and which is not includible in the
gross income of the Employee under Code 125, 403(e)(3), 402(h)
or 403(b).
(a) For all Plan Years beginning before January 1, 1989,
Compensation exceeding $200,000 for any Plan Year for any
Employee shall be ignored if the Plan is a Top-Heavy Plan for
that Plan Year.
(b) For Plan Years beginning after December 31, 1988, the
Compensation for an Employee taken into account under the Plan
for any year must not exceed the maximum amount permitted under
Code 401(a)(17) for such year. For Plan Years beginning after
December 31, 1988 and before January 1, 1994, that limit is
$200,000 as adjusted. For Plan Years beginning on or after
January 1, 1994, that limit is $150,000 as adjusted.
(c) If the Plan determines Compensation for a period of
time that contains fewer than 12 months, the annual Compensation
limit is an amount equal to the otherwise applicable limit
described in subsection (a) or (b), as applicable, for the
calendar year in which the compensation period begins multiplied
by a fraction, the numerator of which is the number of months in
the short determination period, and the denominator of which is
12.
(d) In determining a Participant's Compensation under these
limits, the Family Member aggregation rules under Code 414(q)(6)
shall apply except that Family Members shall include only the
Participant's Spouse and any lineal descendants who have not
reached age 19 before the close of the year. If, as a result of
the application of such rules, the limit under Code 401(a)(17)
is exceeded, then the limitation shall be prorated among the
affected individuals in proportion to each such individual's
Compensation as determined under this section prior to the
application of this limitation.
(e) If Compensation for any prior determination period is
taken into account in determining a Participant's allocations for
the current Plan Year, the Compensation for such prior
determination period is subject to the applicable annual limit on
Compensation as in effect for that prior period. For this
purpose, in determining allocations in Plan Years beginning on or
after January 1, 1989, the annual Compensation limit for
determination periods beginning before that date is $200,000. In
addition, in determining allocations in Plan Years beginning on
or after January 1, 1994, the annual Compensation limit in effect
for determination periods beginning before that date is $150,000.
1.17 Covered Employee means any Employee except an Employee
listed below:
(a) an Employee who is employed by a Related Company and is
not employed by an Employer;
(b) a leased employee as defined in Code 414(n)(2); or
(c) an individual who is a member of a collective
bargaining unit that negotiated separately to obtain other
benefits unless, for purposes of compliance with the Labor
Management Relations Act, inclusion under this Plan is permitted,
subject to a collective bargaining agreement in existence or
entered into in the future as a result of good-faith bargaining
between the employee representatives and an Employer wherein the
employee representatives elect coverage under the Plan and the
Employer consents; or
(d) an Employee who is a non-resident alien who has no
earned income (within the meaning of Code 911(b) from an
Employer which constitutes income from sources within the United
States within the meaning of Code 861(a)(3).
1.18 Defined Benefit Plan means any plan maintained by an
Employer or Related Company, established and qualified under Code
401, other than a Defined Contribution Plan. A Defined Benefit
Plan that provides a benefit derived from employer contributions
and that is based partly on the balance of a separate account of
a participant is treated as a Defined Contribution Plan to the
extent that benefits are based on that separate account.
1.19 Defined Contribution Plan means a plan established and
qualified under Code 401 which provides for an individual
account for each participant in the plan and for benefits based
solely on the amount contributed to the participants' accounts
and any income, expenses, gains, losses, realized and unrealized
appreciation, and forfeitures which may be allocated to such
accounts.
1.20 Disability is defined in Plan section 7.2.
1.21 Early Retirement Date is defined in Plan section 7.2 If,
however, an earlier early retirement date is specified in any
Predecessor Plan that is merged into this Plan, the Early
Retirement Date shall be such earlier date for Participants with
respect to their Accounts which are transferred from such
Predecessor Plan to this Plan.
1.22 Earnings means an Employee's earned income, wages,
salaries, fees for professional services and other amounts
received (without regard to whether an amount is paid in cash)
for personal services actually rendered in the course of
employment with an Employer maintaining the Plan to the extent
that such amounts are includable in gross income (including, but
not limited to, commissions paid salesmen, compensation for
services on the basis of a percentage of profits, commissions on
insurance premiums, tips, bonuses, fringe benefits, and
reimbursements or other expense allowances under a nonaccountable
plan as described in Treasury regulation 1.162-2(c)). Earnings
do not include:
(1) Employer contributions to a plan of deferred
compensation to the extent the contributions are not included
in the gross income of the Employee for the taxable year in
which contributed, or Employer contributions under a
simplified employee pension plan, and any distributions from
a plan of deferred compensation;
(2) amounts realized from the exercise of a non-
qualified stock option, or when restricted stock (or
property) held by an Employee either becomes freely
transferable or is no longer subject to a substantial risk of
forfeiture;
(3) amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option;
and
(4) other amounts which receive special tax benefits,
such as premiums for group term life insurance (but only to
the extent that the premiums are not includible in the gross
income of the Employee), or contributions made by an
Employer (whether or not under a salary reduction agreement)
towards the purchase of an annuity contract described in Code
403(b) (whether or not the contributions are actually
excludible from the gross income of the Employee).
(a) For Limitation Years beginning after December 31, 1991,
for purposes of applying the limitations of Plan article 4 with
respect to Code 415 limitations on contributions and benefits,
Earnings for a Limitation Year means the Earnings actually paid
or made available during such Limitation Year.
(b) For purposes of the definitions of Family Member and
Highly Compensated Employee and for purposes of the top-heavy
rules in Plan article 11, for Plan Years beginning before January
1, 1989, Earnings exceeding $200,000 for any Plan Year for any
Employee shall be disregarded if this Plan is a Top-Heavy Plan
for that Plan Year as described in Plan article 11; and for Plan
Years beginning after December 31, 1988, annual Earnings for an
Employee taken into account under the Plan for any year must not
exceed the statutory limits of Code 401(a)(17) for such year.
For Plan years beginning after December 31, 1988, and before
January 1, 1994, the limit is $200,000 as adjusted, and for Plan
Years beginning on or after January 1, 1994, the limit is
$150,000, as adjusted.
(c) If the Plan determines Earnings for a period of time
that contains fewer than 12 months, the annual Earnings limit is
an amount equal to the otherwise applicable limit described in
subsection (b), (c), or (d) as applicable for the calendar year
in which such determination period begins multiplied by a
fraction, the numerator of which is the number of months in the
short determination period, and the denominator of which is 12.
(d) For purposes of the definitions of Family Member and
Highly Compensated Employee, in determining a Participant's
Earnings under these limits, the Family Member aggregation rules
under Code 414(q)(6) shall apply except that Family Members
shall include only the Participant's Spouse and any lineal
descendants who have not reached age 19 before the close of the
year. If as a result of the application of such rules, the
adjusted annual Earnings limitation is exceeded, then the
limitation shall be prorated among the affected individuals in
proportion to each such individual's Earnings as determined under
this section prior to the application of this limitation.
(e) If Earnings for any prior determination period are
taken into account in determining a Participant's allocations for
the current Plan Year, the Earnings for such prior determination
period is subject to the applicable annual limit on Earnings as
in effect for that prior period. For this purpose, in
determining allocations in Plan Years beginning on or after
January 1, 1989, the annual Earnings limit for determination
periods beginning before that date is $200,000. In addition, in
determining allocations in Plan Years beginning on or after
January 1, 1994, the annual Earnings limit in effect for
determination periods beginning before that date is $150,000.
1.23 Effective Date means for this amendment and restatement of
the Plan, December 31, 1994, except to the extent that this Plan
expressly designates that a provision in this Plan is to be
effective at an earlier or later date. The original Effective
Plan for the Former Plan is July 1, 1984.
1.24 Employee means an individual who is rendering personal
services to an Employer or a Related Company in the capacity of
an employee under general common law principles or as a sole
proprietor or partner of the Employer or a Related Company.
(a) Employee also includes any leased employee during
periods he renders services to the Employer or a Related Company
after December 31, 1986, and is required by Code 414(n)(2) to be
considered an Employee of that Employer or Related Company.
Despite the preceding, if such leased employees constitute less
than 20% of the Employer's and any Related Company's nonhighly
compensated work force within the meaning of Code
414(n)(5)(C)(ii), the term Employee shall not include those
leased employees covered by a plan described in Code 414(n)(5)
unless otherwise provided by the terms of this Plan.
(b) Employee status continues during Leave of Absence and
periods during which an Employee is entitled to back pay.
(c) Any person serving only as a director or independent
contractor to an Employer or a Related Company is not an
Employee.
1.25 Employer means, effective May 14, 1993, with respect to
its employees, the Sponsor and its successors and assigns and all
of its subsidiaries unless such subsidiary takes specific action
not to be covered by the Plan. Subsidiaries include for purposes
of the preceding sentence, those subsidiaries of the Sponsor, at
least 50% of whose stock is owned by the Sponsor or by another
subsidiary whose stock, in turn, is at least 50% owned by the
Sponsor or a subsidiary. The term Employer refers to all
Employers collectively, as if they were one entity, unless the
context clearly indicates that each Employer is referred to
separately. Prior to May 14, 1993, Employer under the Former
Plan means Continental Federal Savings Bank, Commonwealth
Investment Mortgage Corporation, Commonwealth Investment Service
Corporation, and Maryland Marine, Inc. With respect to any other
Predecessor Plan, Employer is determined in accordance with the
terms of such Plan prior to its merger into this Plan.
1.26 Entry Date, for the Former Plan, means July 1 and January
1, for periods prior to June 24, 1994. For any Predecessor Plan
Entry Date is as defined in such Predecessor Plan prior to its
merger into this Plan. Thereafter, Entry Date shall mean the
date on which a Predecessor Plan is merged into this Plan.
1.27 ERISA means the Employee Retirement Income Security Act of
1974, as amended at the relevant time.
1.28 Excess Aggregate Contribution, for any Plan Year beginning
after December 31, 1986, means the excess of the amount of
Matching Contributions (and any 401(k) Contributions taken into
account in computing the Average Contribution Percentage)
actually made on behalf of Highly Compensated Employees for that
Plan Year over the maximum amount of such contributions permitted
under the limitations described in Exhibit A (determined by
reducing contributions made on behalf of Highly Compensated
Employees in order of their Average Contribution Percentages
beginning with the highest of such percentages). Such
determination shall be made after first determining Excess
Deferrals and then determining Excess 401(k) Contributions as
described in Plan Exhibit A.
1.29 Excess Deferral means 401(k) Contributions for a taxable
year of the Participant beginning after December 31, 1986, in
excess of the dollar amount allowable for such Contributions as
described in Plan Exhibit A.
1.30 Excess 401(k) Contribution means, with respect to a Plan
Year, the excess of the aggregate amount of 401(k) Contributions,
Qualified Nonelective Contributions and supplemental Matching
Contributions actually paid to the Trust on behalf of the Highly
Compensated Employees for such Plan Year, over the maximum amount
of such contributions permitted under the 401(k) Contribution
limitations described in Plan Exhibit A (determined by reducing
contributions made on behalf of Highly Compensated Employees in
order of their Actual Deferral Percentages beginning with the
highest of such percentages) as described in Plan Exhibit A.
1.31 Family Member, for Plan Years beginning after December 31,
1986, means a member of the family of a 5% owner (as defined in
Code 416(i)(1)) or one of the 10 Highly Compensated Employees
paid the greatest Earnings during the Plan Year or the preceding
Plan Year. For purposes of this section, the term "family"
means, with respect to any Employee or former Employee, such
Employee's Spouse and lineal ascendants or descendants and the
spouses of such lineal ascendants or descendants. Except as
otherwise specified in regulations, a Family Member is not
considered to be an Employee separate from the Employee whose
status under this Plan causes the individual to be a Family
Member.
1.32 Former Plan means the Continental Federal Savings Bank
Investment Savings Plan.
1.33 401(k) Account means that portion of a Participant's
Account attributable to 401(k) Contributions. 401(k)
Contribution means an Employer contribution on behalf of a
Participant equal to the amount by which the Participant has
elected to reduce his Compensation for the Plan Year pursuant to
his Salary Reduction Election. For purposes of any Predecessor
Plan or any other plan containing a cash-or-deferred arrangement
qualified under Code 401(k), 401(k) Contribution includes a
Participant's elective deferral under such arrangement.
1.34 Highly Compensated Employee or HCE, for Plan Years
beginning after December 31, 1986, refers to those employees who
are determined to be Highly Compensated under the method set
forth in subsection (a) or (b) below. The Administrator has the
discretion to elect the method for making such determination in
any Plan Year and may change the method for any Plan Year.
(a) Highly Compensated Employee means an Employee who,
during the current or immediately preceding Plan Year,
(1) was at any time a 5% owner (as defined in Code
416(i)(1));
(2) received Earnings from the Employers and Related
Companies in excess of $75,000 (or such higher dollar limit
as the Secretary of the Treasury announces at the same time
and in the same manner as the cost-of-living adjustments
applicable to the limitations under Code 415(b)or (c))
during that Plan Year;
(3) received Earnings from the Employers and Related
Companies in excess of $50,000 (or such higher dollar limit
as the Secretary of the Treasury announces at the same time
and in the same manner as the cost-of-living adjustments
applicable to the limitations under Code 415(b) or (c))
during that Plan Year and was in the top 20% of the Employees
in Earnings during that Plan Year; or
(4) was at any time an officer of an Employer or a
Related Company and received during that Plan Year Earnings
that exceeded 50% of the dollar amount in effect under Code
415(b)(1)(A).
For purposes of this section, at least one officer of the
Employers or Related Companies must be treated as a Highly
Compensated Employee, regardless of Earnings. If at least three
officers meet the Earnings figure, no more than 10% of the
Employees may be treated as such an officer. In no event may the
Plan treat more than 50 Employees as such officers. For purposes
of this section, Earnings will be determined without regard to
Code 125, 403(e)(3), 402(h)(1)(B), and in the case of employer
contributions made pursuant to a salary reduction agreement,
without regard to Code 403(b). The determinations made under
this section must be made in conformity with the rules in Code
414(q) and the related Treasury regulations. According to Code
414(q)(6)(A)(ii) and for purposes of applying the limitations
under this Plan, any Earnings paid to a Family Member (and any
applicable contribution or benefits on behalf of such individual)
must be treated as if it were paid to (or on behalf of) the
relevant Highly Compensated Employee for that Plan Year. If an
employee is not described in (2), (3) or (4) for the preceding
year, he shall not be treated as described in (2), (3) or (4) for
the current year unless he is a member of the group consisting of
the 100 employees of the Employers and Related Companies paid the
greatest Earnings during the current year.
(b) Alternatively, Highly Compensated Employee means an
Employee who, during the current Plan Year only, met any of the
criteria of paragraphs (1) through (4) of subsection (a).
Determination of Highly Compensated Employees under this
subsection may be made, at the Administrator's discretion, on the
basis of
(1) all "Workers" of the Employers and Related Companies
for the Plan Year being tested; or
(2) all Workers of the Employers and Related Companies
as of a "Snapshot Day." For purposes of identifying Highly
Compensated Employees for the ADP or ACP Tests, the
Administrator must, in addition to those Workers who are
Highly Compensated Employees on the Snapshot Day, treat as a
Highly Compensated Employee any Worker for the Plan Year who
(A) terminated employment prior to the Snapshot
Day and was a Highly Compensated Employee in the prior
year;
(B) terminated employment prior to the Snapshot
Day and (i) was a 5% owner; (ii) had Earnings for the Plan
Year greater than or equal to the projected Earnings of
any Worker who is treated as a Highly Compensated Employee
on the Snapshot Day (except for Workers who are Highly
Compensated Employees solely because they are officers or
5% owners) or (iii) was an officer and had Earnings
greater than or equal to the projected Earnings of any
other officer who is treated as a Highly Compensated
Employee solely because he is an officer; or
(C) becomes employed subsequent to the Snapshot
Day and (i) is a 5% owner, (ii) has Earnings for the Plan
Year greater than or equal to the projected Earnings of a
Worker who is treated as a Highly Compensated Employee on
the Snapshot Day (except for Workers who are Highly
Compensated Employees solely because they are officers or
5% owners) or (iii) is an officer and has Earnings greater
than or equal to the projected Earnings of any other
officer who is treated as a Highly Compensated Employee
solely because he is an officer.
(3) The following definitions apply solely for purposes
of this subsection (b):
(A) "Snapshot Day" refers to a single day during
the Plan Year that is reasonably representative of the
work force of the Employers and Related Companies. The
Snapshot Day must be consistent from Plan Year to Plan
Year.
(B) "Worker" refers to an individual who renders
personal services to or through an Employer or Related
Company and who is subject to the control of an Employer
or Related Company.
1.35 Hour of Service has the following meanings:
(a) An Hour of Service is each hour for which an Employee
is paid or is entitled to payment by the Employer for the
performance of duties. Hours of Service shall be credited to the
Employee pursuant to this subsection (a) for the Computation
Period in which the duties are performed.
(b) An Hour of Service is each hour for which an Employee
is directly or indirectly paid or entitled to payment by an
Employer for reasons such as vacation, holiday, sickness,
incapacity, layoff, jury duty, military duty, or leave of absence
other than for the performance of duties (regardless of whether
the employment relationship has terminated). No more than 501
Hours of Service may be credited to an Employee under this
subsection (b) for any single continuous period during which he
performs no duties (whether or not the period occurs in a single
Computation Period). No Hours of Service are credited under this
subsection (b) to an Employee with respect to any payment that is
made or is due under a plan maintained solely for the purpose of
complying with applicable worker's compensation or unemployment
compensation or disability insurance laws, or for a payment that
solely reimburses an individual for his medical or medically
related expenses incurred.
(c) An Hour of Service is each hour for which back pay,
irrespective of mitigation of damages, is either awarded or
agreed to by an Employer. The same Hours of Service shall not be
credited both under subsection (a) or (b) and also under this
subsection (c). If any award or agreement of back pay requires
credit for hours with respect to periods described in subsection
(b), credit shall only be given subject to the limitations of
that subsection. Hours of Service under this subsection must be
credited to the Computation Period to which the award or
agreement pertains rather than the Computation Period in which
the award, agreement, or payment was made.
(d) Despite the preceding, solely for purposes of
determining whether a Break in Service for participation or
vesting purposes, as applicable, has occurred in a Computation
Period, an employee who is on a "maternity or paternity leave of
absence" will receive credit for the Hours of Service that
normally would have been credited to such individual but for such
maternity of paternity leave of absence or, in any case in which
such Hours of Service cannot be determined, eight Hours of
Service per day of maternity of paternity leave of absence. The
total number of Hours of Service that can be credited under the
preceding sentence cannot exceed 501, and such Hours of Service
shall be credited (1) in the Computation Period in which the
absence began if necessary to prevent a Break in Service in that
period, or (2) in all other cases, in the following Computation
Period. "Maternity or paternity leave of absence" means an
absence by reason of the pregnancy of the individual, by reason
of the birth of a child of the individual, by reason of the
placement of a child with the individual in connection with the
adoption of such child by such individual, or for purposes of
caring for such child for a period beginning immediately
following such birth or placement.
(e) Hours of Service will be calculated and credited
pursuant to the provisions of Department of Labor regulations
section 2530.200b-2, which are incorporated herein by reference.
(f) The determination of Hours of Service must be made from
records of hours worked and hours for which payment is made or
due.
(g) Hours of Service with a Related Company are treated as
Hours of Service with an Employer.
1.36 Investment Manager means a person or entity that has the
power to acquire and dispose of Plan assets, that acknowledges in
writing that it is a fiduciary with respect to the Plan, and that
is either:
(a) an investment advisor registered under the Investment
Advisors Act of 1940;
(b) a bank as defined in the Investment Advisors Act of
1940; or
(c) an insurance company qualified to manage assets of
retirement plans or perform similar functions under the laws of
more than one state.
1.37 Leave of Absence means absence without pay authorized by
an Employee's Employer without loss of employment status by
reason of injury, illness, business of the Employer, vacation,
any other reason approved by the Employer in a uniform and
nondiscriminatory manner for all Employees under similar
circumstances, or service in the armed forces of the United
States; provided that in the case of service in the armed forces
of the United States, the Employee returns to the employment of
the Employer within the period during which his reemployment
rights as a veteran are protected by law.
1.38 Limitation Year means the Plan Year.
1.39 Matching Account means that portion of a Participant's
Account attributable to Matching Contributions. Matching
Contribution means the Employer contribution based on 401(k)
Contributions as described in Plan Exhibit A, or as provided
under a Predecessor Plan, on account of a Participant's after-tax
or 401(k) contributions under such Plan.
1.40 Nonhighly Compensated Employee means an Employee who is
not a Highly Compensated Employee.
1.41 Normal Retirement Age means age 65, except that if any
Predecessor Plan has an earlier Normal Retirement Age, such
earlier age shall be a Participant's Normal Retirement Age with
respect to the Participant's Accounts that are transferred to
this Plan from the Predecessor Plan.
1.42 Normal Retirement Date is defined in Plan section 7.2,
except that if any Predecessor Plan has an earlier Normal
Retirement Date, such earlier date shall be a Participant's
Normal Retirement Date with respect to the Participant's Accounts
that are transferred to this Plan from the Predecessor Plan.
1.43 Participant means an eligible Employee who has satisfied
the conditions for membership set forth in Plan article 2 and
whose Account under the Plan has not been fully distributed.
1.44 Pension Account means that portion of a Participant's
Account attributable to his accrued benefit under a Predecessor
Plan which was attributable to an employer's money purchase
pension plan or a Defined Benefit Plan and which is subsequently
merged into this Plan.
1.45 Plan means, effective June 24, 1994, the Crestar Merger
Plan for Transferred Employees, as reflected in this document and
any subsequent amendments. Prior to June 24, 1994, Plan means
the Continental Federal Savings Bank Savings Investment Plan, a
profit sharing plan with a cash-or-deferred arrangement under
Code 401(k).
1.46 Plan Year means, effective July 1, 1993, the 12-month
period commencing on January 1 and ending on December 31,
annually, except that the period July 1, 1993 through December
31, 1993, shall be a short plan year of six months. Prior to
July 1, 1993, Plan Year means the 12-month period beginning on
July 1 and ending on the following June 30, annually.
1.47 Predecessor Plan means any other Defined Contribution
Plan, other than a stock bonus plan, which provides for employer
contributions and which is amended by an Employer to adopt the
terms of this Plan or which is merged into this Plan. Unless the
context indicates otherwise, Predecessor Plan also includes the
Former Plan prior to June 24, 1994.
1.48 Profit Sharing Account (formerly called the Basic Account)
means that portion of a Participant's Account attributable to
Profit Sharing Contributions and forfeitures, if any. Profit
Sharing Contribution (formerly called Basic Contribution) means
the Employer contribution described in Exhibit A or a designated
profit sharing contribution under a Predecessor Plan.
1.49 Qualified Domestic Relations Order means a judgment,
decree, order, or approval of a property settlement agreement
entered on or after the first day of the Plan Year beginning in
1985, that:
(1) relates to the provision of child support, alimony
payments, or marital property rights to an Alternate Payee;
(2) is made pursuant to a state domestic relations or
community property law;
(3) creates or recognizes the right of, or assigns the
right to, an Alternate Payee to receive all or a portion of
the benefit payable with respect to the Participant under
this Plan;
(4) clearly specifies (i) the name and last known mailing
address (if available) of the Participant and the name and
mailing address of each Alternate Payee, unless the
Administrator has reason to know the address independently of
the Order; (ii) the amount or percentage of the Participant's
benefits to be paid by the Plan to each Alternate Payee or
the manner in which such amount or percentage is to be
determined; (iii) the number of payments or period to which
the Order applies; and (iv) each plan to which the Order
applies;
(5) does not require the Plan to provide any type or
form of benefit, or any option, not otherwise provided under
the Plan;
(6) does not require the Plan to provide increased
benefits; that is, does not provide for the payment of
benefits in excess of the actuarial equivalent of the
benefits to which the Participant would be entitled in the
absence of the Order; and
(7) does not require the payment of benefits to an
Alternate Payee that are required to be paid to another
Alternate Payee under another order determined previously to
be a Qualified Domestic Relations Order.
(a) A Qualified Domestic Relations Order may provide for
payments to begin to an Alternate Payee on or after the date on
which the Participant attains or would have attained the earliest
retirement age (as defined in Code 414(p)(4)(B)), regardless of
whether the Participant has separated from service as of that
date. If the Participant dies before that date, the Alternate
Payee is entitled to benefits only if the Order requires survivor
benefits to be paid.
(b) A domestic relations order entered before the first day
of the Plan Year beginning in 1985 is a Qualified Domestic
Relations Order if payment of benefits pursuant to that order
have begun as of such date, regardless of whether the order
satisfies the requirements of Code 414(p), and even if payments
pursuant to the order have not begun as of such date, it may
still be treated as a Qualified Domestic Relations Order even
though it does not satisfy the requirements of Code 414(p).
1.50 Qualified Joint and Survivor Annuity means an immediate
annuity for the life of a Participant with a survivor annuity for
the life of the Participant's Spouse that is not less than 50%
and not more than 100% of the amount of the annuity payable
during the joint lives of the Participant and the Participant's
Spouse and that is the amount of benefit which can be purchased
with the Participant's vested Account balance. The percentage of
the survivor annuity under this Plan shall be 100% for any
Participant who is required to receive a Qualified Joint and
Survivor Annuity under the Plan and fails to designate a
percentage.
1.51 Qualified Preretirement Survivor Annuity means an annuity
for the life of the Participant's Surviving Spouse which provides
an amount of benefit which can be purchased with the
Participant's vested Account balance as of the applicable
Valuation Date following the Participant's death, provided that
any security interest held by the Plan by reason of a loan
outstanding to the Participant for which a valid spousal consent
has been obtained, if necessary, shall reduce the Participant's
Account at his death.
1.52 Qualified Nonelective Account means that portion of a
Participant's Account attributable to Qualified Nonelective
Contributions. Qualified Nonelective Employer Contribution means
the Employer contribution described in Plan Exhibit A.
1.53 Related Company means any entity (other than an Employer)
that belongs to one or more of the following groups to which an
Employer also concurrently belongs:
(a) a member of a controlled group of corporations as
defined in Code 1563(a), determined without regard to Code
1563(a)(4) and 1563(e)(3)(C), of which an Employer is a member
according to Code 414(b);
(b) an unincorporated trade or business that is under
common control with an Employer as determined according to Code
414(c);
(c) a member of an affiliated service group of which an
Employer is a member according to Code 414(m); or
(d) any other entity required to be aggregated with an
Employer pursuant to Code 414(o) and applicable regulations.
For purposes of the provisions of Plan article 4, relating to
Code 415 limitations on contributions and benefits, Related
Company also includes a corporation that would be a Related
Company if the phrase "at least eighty percent" in Code 1563(a)
read "more than fifty percent" or an unincorporated trade or
business that would be a Related Company if Code 414(c) were
construed using the standard of "more than fifty percent" instead
of "at least eighty percent."
1.54 Rollover Account means the portion of a Participant's
Account attributable to Rollover Contributions accepted and
allocated under a Predecessor Plan. Rollover Contribution means
a contribution transferred to a Predecessor Plan, directly or
through a rollover from an individual retirement account
established pursuant to Code 408, attributable to a
participant's nonforfeitable interest in assets attributable to
contributions made by an employer under a qualified plan.
1.55 Salary Reduction Election means a Participant's election,
prior to the time he receives the Compensation to which such
election applies, to defer a portion of such Compensation and to
cause the Employer to make a 401(k) Contribution to the Plan
equal to the amount deferred.
1.56 Special Contribution means an Employer contribution
described in Plan article 3.
1.57 Sponsor means, effective May 14, 1993, Crestar Financial
Corporation and any successor to Crestar Financial Corporation,
and (i) prior to such date means Continental Federal Savings Bank
with respect to the Former Plan, and (ii) the named sponsor with
respect to any other Predecessor Plan prior to the time it is
merged into this Plan.
1.58 Spouse means the person to whom a Participant is married
by legal contract at the relevant time.
1.59 Surviving Spouse means the Participant's Spouse who
survives him. Except as provided in a Qualified Domestic
Relations Order, if a Participant dies after his Annuity Starting
Date, the individual to whom the Participant was married on his
Annuity Starting Date is the Spouse even if the Participant and
the individual are not married at the Participant's death. A
Qualified Domestic Relations Order may provide that a former
Spouse will be treated as the Participant's Spouse or Surviving
Spouse for any purpose under the Plan.
1.60 Stock means the common stock of Crestar Financial
Corporation.
1.61 Suspense Account means a separate bookkeeping account
maintained to reflect the following items until they are
allocated to Participants' Accounts: (1) Employer contributions
for any Prior Plan Year that could not be allocated to any
Participant's Account at an earlier allocation date because of
the Maximum Permissible Amount for Annual Additions as described
in Plan article 4; (2) advance Employer contributions made during
the Plan Year but before they are allocated to Participants'
Accounts; and (3) any other amounts that are credited to the
Suspense Account under other Plan provisions. As of the last
Valuation Date of the Plan Year, the Suspense Account's balance
is to be added to, and allocated as part of, the Employer
contributions for that Plan Year as described in Exhibit A.
1.62 Termination Date means the date on which an Employee
terminates his employment with all the Employers and Related
Companies.
1.63 Trust Agreement means the agreement between the Sponsor
and the Trustee providing for the establishment and management of
the Trust Fund.
1.64 Trust Fund means the fund described in Plan article 12
which holds Plan assets and is administered by the Trustee
pursuant to the terms of the Plan and the Trust Agreement.
1.65 Trustee means the person or entity accepting in writing
the appointment by the Board to serve as trustee and any
successor to such person or entity.
1.66 Valuation Date means the last business day of each month.
1.67 Year of Service means each Computation Period in which an
Employee completes 1,000 Hours of Service, subject to the
following subsections and to the applicable service rules for
eligibility as described in Plan article 2 and service rules for
vesting as described in Exhibit B.
(a) Unless otherwise specifically excluded, an Employee's
Years of Service includes Years of Service before the Effective
Date of this Plan and Years of Service earned during period when
he is not a Covered Employee.
(b) Years of Service earned during separate employment
period are to be aggregated unless Years of Service are lost
under the Break in Service rules.
(c) An Employee will be granted credit for Hours of Service
currently during any Leave of Absence with pay based on the Hours
of Service attributable to that period, up to a maximum of 501
Hours of Service in a Plan Year for any single, continuous paid
Leave of Absence.
(d) Despite the preceding, Years of Service prior to the
date on which a Predecessor Plan merges into this Plan are to be
determined exclusively under the terms of such Predecessor Plan.
ARTICLE 2
PLAN MEMBERSHIP
2.1 Conditions of Participation
(a) Participation frozen. Effective May 14, 1993,
participation in the Plan is frozen, and the only individuals
who are or may become Participants in this Plan are the
following:
(1) Participants in the Former Plan who have
undistributed Account balances in the Plan as of May
14, 1993.
(2) Participants in a Predecessor Plan (other
than the Former Plan), which is merged into this Plan
on or after June 24, 1994, who have undistributed
account balances at the time of such merger which are
transferred to this Plan. Such participants in a
Predecessor Plan will become Participants in this Plan
on the effective date of the merger of the Predecessor
Plan into this Plan.
(b) Continuing participation. Each Employee who is
a Participant in the Plan as of the effective date of this
amendment and restatement shall continue to be a Participant in
the Plan thereafter as long as his Account balance has not been
fully distributed.
(c) Former Plan rules. Prior to May 14, 1993, each
Covered Employee shall automatically become an Active
Participant in the Former Plan on the Entry Date immediately
following his attainment of age 21 and his completion of one
Year of Service for eligibility, provided he is a Covered
Employee on such Entry Date. If an Employee who meets the age
and service requirements is not a Covered Employee on the Entry
Date, he shall become a Participant immediately on the date he
becomes a Covered Employee.
2.2 Employment Status Changes
(a) Effective date. The provisions of this Plan
section 2.2 apply only to the Former Plan for periods prior to
May 14, 1993.
(b) Changing to Non-Covered Employee. If a
Participant does not terminate his employment but has a job
status change that causes him to cease to be a Covered Employee,
he ceases to be an Active Participant, but he continues to be a
Participant as long as he has an Account balance in the Plan.
(c) Changing to Covered Employee. If an Employee
becomes a Covered Employee due to a change in his employment
status, he begins participation in the Plan according to Plan
section 2.1(c), except that if such an Employee has already
satisfied the age and service conditions of Plan section 2.1(c),
he becomes an Active Participant on the date he becomes a
Covered Employee.
(d) Reemployment
(1) Participants. If a Participant terminates
his employment and is subsequently rehired at a time
when he has lost his prior Years of Service for
eligibility, he shall be treated as a new Employee and
he shall be eligible to become an Active Participant
again when he has satisfied the provisions of Plan
section 2.1(c) after his reemployment. If a
Participant terminates his employment and is
subsequently rehired at a time when he has not lost his
prior Years of Service for eligibility, he shall become
a Participant again on the day he first completes an
Hour of Service as a Covered Employee.
(2) Non-Participants. If an Employee who has
not become a Plan Participant terminates his employment
with the Employers and is subsequently rehired, he
shall be eligible to participate in the Plan in
accordance with the provisions of Plan section 2.1(c).
2.3 Termination of Participation. Prior to May 14, 1993,
an individual ceases to be an Active Participant in this Plan
when he is no longer a Covered Employee. For all periods, an
individual ceases to participate in this Plan when his entire
Account balance is distributed to him or in the event of his
death, to his Beneficiary.
2.4 Application to Participate. Participation in the Plan
is automatic; an application to participate is not required, but
a Participant shall not be entitled to receive 401(k)
Contributions or Matching Contributions based on 401(k)
Contributions unless he has made a Salary Reduction Election.
2.5 Administrator Determination
In the event any question should arise as to the
eligibility of any person to become a Participant or the
commencement of participation, the Administrator shall determine
such question. The Administrator's decision shall be conclusive
and binding, and there is no right of appeal except under the
Plan's procedures for appeal of denied claims.
2.6 Eligibility Service
(a) In general. Credit for completing a Year of
Service for eligibility in any Computation Period is to be
credited only on the last day of that Period, regardless of when
the necessary Hours of Service were completed during that
Period. An Employee who is credited with 1,000 Hours of Service
in both his initial eligibility Computation Period and in the
first Plan Year beginning after the commencement of his initial
eligibility Computation Period will be credited with two Years
of Service for eligibility.
(b) Loss of Years of Service for eligibility. An
Employee who does not have a vested right to Employer
contributions under this Plan loses credit for his prior Years
of Service for eligibility when the number of his consecutive
one-year Breaks in Service exceeds five and is also equal to or
greater than the number of his credited Years of Service for
eligibility.
ARTICLE 3
CONTRIBUTIONS
3.1 Contributions Limited
(a) Suspension. Effective as of the close of
business on July 2, 1993, all 401(k) Contributions, Rollover
Contributions, and Matching Contributions are suspended and all
Salary Reduction Elections are canceled.
(b) Contributions allowed. Effective as of the date
determined by the Board or its designee after June 24, 1994, all
other contributions to the Plan are discontinued and the only
contributions that may be accepted are Special Contributions and
the transfers of accounts to this Plan from a Predecessor Plan
that is merged into this Plan and any Employer contributions that
are required to the extent necessary to ensure that any
Predecessor Plan that has merged into this Plan complies with the
provisions of Code 401(a), 401(k), 401(m), and 416, as
applicable.
(c) Prior contribution provisions. Contribution
provisions for the period July 1, 1989 through July 2, 1993,
under the Former Plan are contained in Exhibit A, the contents of
which are incorporated into this Plan. Contribution provisions
for any other Predecessor Plan that is merged into this Plan are
as set forth in such Predecessor Plan prior to the merger date.
Despite the preceding sentence, if the merger date occurs prior
to January 1, 1995, and if such Predecessor Plan has not received
a favorable determination letter with respect to its contribution
and allocation provisions that are inconsistent with the
provisions of Exhibit A which are intended to comply with the
Code requirements under Code 401(a), 401(k) and 401(m), then
such Predecessor Plan is amended with respect to such Code
requirements as set forth in Exhibit A.
3.2 Special Contributions
The Employers may be required to make Special
Contributions to the Plan under the following circumstances:
(a) to the extent provided in Plan article 6, when a
valid claim is made for benefits which were previously suspended
because the person entitled to those benefits could not be
located;
(b) to the extent described in Plan article 6, when a
rehired participant is entitled to reinstatement of a conditional
forfeiture; or
(c) to the extent described in Plan article 11, when
this Plan is a Top-Heavy Plan and a minimum top-heavy
contribution is required; or
(d) to the extent a contribution is required under a
Predecessor Plan but not made as of the date of merger into this
Plan, in order for that Plan to retain its status as a qualified
plan.
When received by the Trustee, any Special Contribution is to be
credited directly to the applicable Account of the specific
Participant(s) involved.
ARTICLE 4
OTHER PROVISIONS CONCERNING CONTRIBUTIONS
4.1 Separate Accounts
A separate Account will be established for each
Participant. Each such Account shall be divided into subaccounts
as applicable to reflect the Participant's interest in the Plan.
For example, a Participant's Account may have one or more of the
following subaccounts: 401(k) Account, Matching Account,
Qualified Nonelective Account, Profit Sharing Account, Rollover
Account, Pension Account, or any other Account name deemed
appropriate by the Administrator. These separate Accounts are
for bookkeeping purposes only and no Participant or Beneficiary
has any right or interest in any specific Trust Fund asset as a
result of such separate accounting. Each Account is to be
adjusted from time to time for activity in the Account,
including, but not limited to, investment earnings or losses and
allocable administrative expenses and payments from the Account.
4.2 Compliance with Code 415
(a) Administrator adjustments. The amount of
contributions or benefits for each Participant under this Plan
and any other qualified plan maintained by an Employer or a
Related Company must be adjusted by the Administrator, according
to applicable Treasury regulations, to comply with the
limitations of Code 415 as described in the following sections
of this Plan article 4. In making such adjustments, the
Administrator must not discriminate in favor of Highly
Compensated Employees or such other individuals in whose favor
discrimination is prohibited under Code 401(a)(4).
(b) Aggregation of Plans. For purposes of applying
the Code 415 limitations on contributions and benefits, all
Defined Benefit Plans (whether or not terminated) of the
Employers and their Related Companies are treated as one Defined
Benefit Plan, and all Defined Contribution Plans (whether or not
terminated) of the Employers and their Related Companies are
treated as one Defined Contribution Plan. Effective for
Limitation Years beginning after March 31, 1984, an individual
medical account, as defined in Code 401(h)(6) and referred to in
Code 415(l)(1), will be treated as a Defined Contribution Plan.
Effective for Limitation Years that begin after December 31,
1985, with respect to Key Employees (as defined in Code
419A(d)(3)), a welfare fund, as defined in Code 419(e), that is
maintained by an Employer or a Related Company will be treated as
a Defined Contribution Plan.
4.3 Annual Addition Limitations
(a) Annual Addition means the sum of the following
amounts credited to a Participant's Account for the Limitation
Year:
(1) Employer contributions;
(2) for Limitation Years beginning after
December 31, 19886, a Participant's
nondeductible contributions, and for Limitation
Years beginning before January 1, 1987, the
lesser of one-half of a Participant's
nondeductible contributions, or the
Participant's nondeductible contributions in
excess of 6% of the Participant's Earnings for
the Limitation Year;
(3) forfeitures;
(4) amounts allocated, after March 31, 1984, to an
individual medical account, as defined in Code
415(l)(2), which is part of a pension or annuity plan
maintained by an Employer or Related Company are
treated as Annual Additions to a Defined Contribution
Plan;
(5) amounts derived from contributions paid or
accrued after December 31, 1985, in taxable years
ending after such date, which are attributable to post-
retirement medical benefits, allocated to the separate
account of a key employee (as defined in Code
419A(d)(3)) under a welfare benefit fund (as defined
in Code 419(e)), maintained by an Employer or Related
Company are treated as Annual Additions to a Defined
Contribution Plan;
(6) allocations by an Employer or Related Company
under a simplified employee pension plan;
(7) except to the extent provided in Treasury
regulations, Excess 401(k) Contributions, Excess
Aggregate Contributions, and Excess Deferrals,
regardless of whether such excess amounts are
distributed or forfeited.
(b) Maximum Permissible Amount. Effective for
Limitation Years that begin after December 31, 1986, a
Participant's Annual Additions for a Limitation Year under this
Plan and under all other Defined Contribution Plans maintained by
an Employer or a Related Company may not exceed the Maximum
Permissible Amount. The Maximum Permissible Amount is the lesser
of (1) or (2) following:
(1) the greater of $30,000 or one-fourth of the
defined benefit dollar limitation on under Code
415(b)(1)(A) for that Limitation Year; or
(2) 25% of the Participant's Earnings for the
Limitation Year.
The limitation on Earnings referred to in paragraph (2) shall not
apply to any contribution for medical benefits (within the
meaning of Code 401(h) or 419(f)(2)) which is otherwise treated
as an Annual Addition under Code 415(l)(1) or 419A(d)(2).
(c) Annual Additions under other plans. If any
Participant in this Plan also participates in another plan
maintained by an Employer or Related Company in which he receives
Annual Additions for a Limitation Year, the Annual Additions that
may be credited to the Participant's Account under this Plan for
any such Limitation Year will not exceed the Maximum Permissible
Amount reduced by the Annual Additions credited to the
Participant's account under the other plan for the same
Limitation Year. If the Annual Additions with respect to the
Participant under such other Defined Contribution Plans are less
than the Maximum Permissible Amount and the Employer
contributions and forfeitures that would otherwise be contributed
or allocated to the Participant's Account under this Plan would
result in excess Annual Additions for the Limitation Year, the
amount contributed or allocated will be reduced so that the
Annual Additions under all such plans for the Limitation Year
will equal the Maximum Permissible Amount. If the Annual
Additions with respect to the Participant under such other
Defined Contribution Plans in the aggregate are equal to or
greater than the Maximum Permissible Amount, no amount will be
contributed or allocated to the Participant's Account under this
Plan for the Limitation Year.
(d) Short Limitation Year. If a short Limitation
Year is created because of an amendment changing the Limitation
Year to a different 12-consecutive month period, the Maximum
Permissible Amount for the short Limitation Year will not exceed
the applicable dollar amount under subsection (b)(1) above, as
applicable, multiplied by a fraction, the numerator of which is
the number of months in the short Limitation Year and the
denominator of which is 12.
4.4 Excess Annual Additions
(a) Amounts that would be excess. For any Limitation
Year, the Annual Additions that may be credited to the
Participant's Account under this Plan and under any other plan
maintained by an Employer or a Related Company in which he
receives Annual Additions for any such Limitation Year will not
exceed the Maximum Permissible Amount. To the extent that an
allocation or addition pursuant to this Plan or such other plans
intended for one Participant's accounts under this and all such
plans cannot be allocated or added to those accounts, it is
treated as a mistake-of-fact contribution if that is allowed by
law, and to the extent that the allocation or addition cannot be
so treated without adverse consequences to the Plan, it is
reduced to the extent necessary to bring it within the
limitations of Plan section 4.3 according to the remaining
provisions of this section.
(1) If a Participant's Annual Additions under this
Plan and such other plans would result in excess Annual
Additions for a Limitation Year, the excess amount will
be deemed to consist of the Annual Additions last
allocated, except that Annual Additions attributable to
a welfare benefit fund as defined in Code 419(e) or an
individual medical account as defined in Code
415(l)(2) will be deemed to have been allocated first
regardless of the actual allocation date.
(2) If an excess amount was allocated to a
Participant on an allocation date of this Plan which
coincides with an allocation date of another plan, the
excess Annual Additions attributed to this Plan will be
the product of (a) the total excess Annual Additions
allocated as of such date, times (b) the ratio of (i)
the Annual Additions allocated to the Participant for
the Limitation Year as of such date under this Plan to
(ii) the total Annual Additions allocated to the
Participant for the Limitation Year as of such date
under this and all other Defined Contribution Plans.
(b) Disposition of excess Annual Additions. Excess
Annual Additions will be disposed of as follows:
(1) To the extent that a Participant's excess Annual
Additions are attributable to his 401(k) Contributions
or nondeductible voluntary employee contributions,
those 401(k) Contributions or nondeductible voluntary
employee contributions may be returned to the
Participant in the Limitation Year in which they are
determined to be excess Annual Additions and will
reduce that Participant's excess Annual Addition. If
401(k) Contributions or nondeductible voluntary
employee contributions are returned to a Participant
pursuant to this paragraph, such contributions will be
disregarded for purposes of the limitations on such
contributions under Code 402(g) and 401(k)(3) and
401(m)(2).
(2) If excess Annual Additions still exist and the
Participant is covered by the Plan at the end of the
Limitation Year, the excess amount in the Participant's
Account will be used to reduce Employer contributions
(including any allocation of forfeitures) for such
Participant in the next Limitation Year, and in each
succeeding Limitation Year if necessary. If the
Participant is not covered by the Plan at the end of a
Limitation Year, the excess amount will be held
unallocated in a Suspense Account. The Suspense
Account will be applied to reduce future Employer
contributions for all remaining Participants in the
next Limitation Year, and each succeeding Limitation
Year if necessary.
(3) If a Suspense Account is in existence at any time
during a Limitation Year, it does not participate in
the allocation of the Trust's investment gains and
losses. If a Suspense Account is in existence at any
time during a particular Limitation Year, all amounts
in the Suspense Account must be allocated and
reallocated to Participants' Accounts before any
Employer contributions or employee contributions may be
made to the Plan for that Limitation Year. Excess
amounts held in a Suspense Account may not be
distributed to Participants or former Participants. If
a Suspense Account exists according to the provisions
of this section when the Plan terminates, the Suspense
Account must be treated as not part of the Plan assets
(as allowed by applicable law) and is returned to the
contributor or contributors, pro rata according to
their contributions for that Limitation Year.
4.5 Defined Benefit Plan Participation
(a) Post-1982 Limitation Years. Effective for
Limitation Years that begin after December 31, 1982, if an
individual is participating or has participated in both this Plan
and a Defined Benefit Plan maintained by an Employer or a Related
Company, the sum of the Participant's Defined Benefit Plan
Fraction and his Defined Contribution Plan Fraction for any
Limitation Year may not exceed 1.0.
(1) For purposes of this subsection, a Participant's
Defined Benefit Plan Fraction for any year is a
fraction the numerator of which is his Projected Annual
Benefit under all such Defined Benefit Plans
(determined as of the close of the year) and the
denominator of which is the lesser of
(A) the product of 1.25 multiplied by the
dollar limitation in effect under Code 415(b)(1)(A)
and 415(d) for the Participant for that year, or
(B) the product of 1.4 multiplied by the
largest amount that may be taken into account under
Code 415(b)(1)(B) (including any adjustments under
Code 415(b)) for that Participant for that year.
Despite the preceding, if the Participant was
participating as of the first day of the first
Limitation Year beginning after December 31, 1986, in
one or more such Defined Benefit Plans which were in
existence on May 6, 1986, the denominator of the
Defined Benefit Plan Fraction will not be less than the
product of 1.25 multiplied by the sum of the Annual
Benefits under such plans which the Participant had
accrued as of the close of the last Limitation Year
beginning before January 1, 1987, disregarding any
changes in the terms and conditions of the plan after
May 5, 1986. The preceding sentence applies only if
such Defined Benefit Plans, both individually and in
the aggregate, satisfied the requirements of Code 415
for all Limitation Years beginning before January 1,
1987.
(2) For purposes of this subsection, a Participant's
Defined Contribution Plan Fraction for any Limitation
Year is a fraction the numerator of which is the sum of
his Annual Additions as of the close of the year for
that and all prior Limitation Years and the denominator
of which is the sum of the lesser of the following
amounts determined for that year and for each prior
year of service with an Employer or a Related Company
(regardless of whether a Defined Contribution Plan was
then maintained):
(A) the product of 1.25 multiplied by the
dollar limitation in effect under Code 415(c)(1)(A)
(determined without regard to (c)(6)) for the
Participant for that year, or
(B) the product of 1.4 multiplied by the
amount that may be taken into account under Code
415(c)(1)(B) for the Participant for that year.
Despite the preceding, if a Participant was
participating as of the end of the first day of the
first Limitation Year beginning after December 31,
1986, in one or more Defined Contribution Plans which
were in existence on May 6, 1986, the numerator of the
Defined Contribution Plan Fraction will be adjusted if
the sum of this fraction and the Defined Benefit Plan
Fraction would otherwise exceed 1.0 under the terms of
this Plan. Under the adjustment, an amount equal to
the product of (1) the excess of the sum of the
fractions over 1.0 times (2) the denominator of this
fraction, will be permanently subtracted from the
numerator of this fraction. The adjustment is
calculated using the fractions as they would be
computed as of the end of the last Limitation Year
beginning before January 1, 1987, and disregarding any
changes in the terms and conditions of the plan made
after May 5, 1986, but using the Code 415 limitation
to the first Limitation Year beginning on or after
January 1, 1987.
In applying these rules, the Annual Addition Limitation
for any Limitation Year beginning before January 1,
1987, shall not be recomputed to treat all employee
contributions as Annual Additions.
(3) If a plan satisfied the requirements of Code 415
for the last Limitation Year beginning before January
1, 1983, according to regulations promulgated pursuant
to 235(g)(3) of the Tax Equity and Fiscal
Responsibility Act of 1982, an amount is subtracted
from the numerator of the Defined Contribution Plan
Fraction (not exceeding that numerator) so that the sum
of the Defined Benefit Plan Fraction and the Defined
Contribution Plan Fraction computed under this
subsection does not exceed 1.0 for the first Limitation
Year that begins after 1982.
(4) For purposes of this subsection, Projected Annual
Benefit, as to a Participant, means the total of each
Annual Benefit to which that Participant would be
entitled under the terms of Defined Benefit Plans
maintained by an Employer or a Related Company in which
the Participant is a participant (assuming that the
Participant continued employment until each such plan's
normal retirement age or his current age, if later;
that his Earnings continued at the same rate as in
effect in the Limitation Year under consideration until
those normal retirement ages or dates; and that all
other relevant factors used to determine benefits under
each plan remained constant as of the current
Limitation Year for all future Limitation Years).
(5) For purposes of this subsection, Annual Benefit
means a benefit payable in the form of a straight-life
annuity (with no ancillary benefits) under a qualified
plan to which employees do not contribute and under
which no rollover contributions are made. If a benefit
under a qualified plan is payable in any form other
than a straight-life annuity, or if the employees
contribute to the plan or make rollover contributions,
the determination as to whether the Code 415
limitations described in this Plan article 4 have been
satisfied must be made by adjusting that benefit so
that it is equivalent in value, according to applicable
Treasury regulations, to the Annual Benefit. For
purposes of this definition, any ancillary benefit
that is not directly related to retirement income
benefits must not be taken into account. Any benefits
that are ancillary within the definitions in Treasury
regulation 1.411(a)(1) are ancillary benefits for
purposes of this definition. Annual Benefit does not
include that portion of any joint and survivor annuity
(as defined in Code 417(b)) in excess of the value of
a straight-life annuity beginning on the same date and
the value of any includable post-retirement death
benefits that would be payable even if the annuity were
not in the form of a joint and survivor annuity. For
purposes of adjusting any benefit for Plan Years
beginning after December 31, 1982, the interest rate
assumption must not be less than the greater of five
percent or the rate specified in the plan and no
adjustments under Code 415(d)(1) may be taken into
account before the year for which such adjustment first
takes effect.
(b) Transition rule. The Administrator may elect to
calculate the Defined Contribution Plan Fraction for Limitation
Years ending after December 31, 1982, for all qualified plans
that were in existence on July 1, 1982, in accordance with the
transition rule of Code 415(e)(6).
(c) Adjustments for Top Heavy Plans. For any year in
which this Plan or any plan in this Plan's Aggregation Group is a
Top-Heavy Plan, the Defined Benefit Fraction and the Defined
Contribution Plan Fraction will be adjusted as provided in Plan
article 11 and the rules in Code 416(h).
4.6 Limitations on Employer Contributions
(a) Maximum deductible amount. The Employer
contributions for any Plan Year shall not exceed the maximum
deductible amount from the Employers' income for federal income
tax purposes determined under the applicable provisions of the
Code.
(b) Time of contribution. All Employer contributions
shall be delivered to the Trustee not later than the date fixed
by law for the filing of the Employers' federal income tax return
for the year for which such contributions are made (including any
extensions for filing).
(c) Trustee duties. The Trustee shall have no duty
to determine whether any contributions delivered to the Trustee
comply with the provisions of the Plan. The Trustee shall be
accountable only for funds actually received by the Trustee.
4.7 Return of Contributions
Contributions by the Employer, including Profit Sharing,
Qualified Nonelective, and Matching Contributions, shall be
returned to the Employer in the following instances:
(a) If a contribution by the Employer is made because
of a mistake of fact, then the contribution shall be returned
within one year after its payment upon the Employer's written
request.
(b) Each contribution by the Employer is conditioned
upon the deductibility of the contribution under the applicable
provisions of the Code and to the extent of a disallowance of the
deduction for part or all of the contribution, the contribution
shall be returned within one year after such disallowance upon
the Employer's written request.
4.8 Contribution for Non-Profitable Employer
If one or more of a group of Employers is a member of an
affiliated group within the meaning of Code 1504 and is
prevented from making a contribution for any tax year that it
would otherwise have made under this Plan because it has no
current or accumulated earnings or net profits or because those
earnings or net profits are less than the contributions that it
would otherwise have made, then so much of the contribution that
it was so prevented from making may be made for the benefit of
that Employer's Employees who are Participants by all other
members of the group of Employers that are also members of that
affiliated group in accordance with and subject to the provisions
of Code 404(a)(3)(B), except as otherwise determined by the
Board.
ARTICLE 5
INVESTMENT OPTIONS
5.1 Effective Date. Effective July 1, 1994, or on such
other date as may be announced by the Administrator subsequent to
June 24, 1994, all Accounts of Participants, including amounts
transferred from a Predecessor Plan, shall be invested in
accordance with the rules in this Plan article 5 and such
procedures as may be adopted by the Administrator from time to
time.
(a) CrestFunds investment funds. A Participant may
elect to have all or part of his Account invested in any of the
following investment funds offered by CrestFunds, Inc., a
registered open-end management investment company.
(1) CrestFunds Cash Reserve Fund. This Fund seeks to
provide high current income consistent with the
preservation of capital and the maintenance of
liquidity by investing in high-quality, short-term
money market instruments, including floating and
variable rate instruments that are denominated in U.S.
dollars and have a remaining maturity of 397 days or
less. The Cash Reserve Fund seeks to maintain a
constant $1.00 share price.
(2) CrestFunds Short/Intermediate Bond Fund. This
Fund seeks to provide high current income consistent
with preservation of capital by investing in a broad
range of investment-grade fixed-income debt
obligations. The Short/Intermediate Bond Fund is
managed to maintain a dollar-weighted average portfolio
maturity of between three and five years.
(3) CrestFunds Value Fund. This Fund seeks to
provide long-term capital appreciation and current
income by investing primarily in the income-producing
equity securities of companies with large market
capitalizations.
(4) CrestFunds Special Equity Fund. This Fund seeks
to provide long-term capital appreciation by investing
primarily in equity securities of companies with small
to medium market capitalizations.
(b) Crestar Stock Fund. A Participant may elect to
have all or part of his Account invested in the Crestar Stock
Fund, a pooled fund managed by the Plan's Trustee, which shall be
invested in Stock and cash in accordance with the terms of the
Plan and the Trust Agreement.
(c) Special investments. In the event a Predecessor
Plan is merged into this Plan and has assets that are not readily
marketable or the sale of which would cause a substantial loss to
Participants, the Trustee may, in its discretion, maintain such
assets in a segregated account until the earlier of 12 months
after the merger date or the time such assets become marketable.
(d) Separate accounting. The interest of each
Participant in any of the investment options listed in the
preceding subsections shall be maintained by the Trustee so as to
reflect the portion of a Participant's Account attributable to
his contributions, including After-Tax and Rollover
Contributions, as applicable, as well as that portion of his
Account attributable to Employer contributions, including
Qualified Nonelective, Profit Sharing, 401(k), and Matching
Contributions and any other Employer contributions, as
applicable. As of each Valuation Date, the Trustee shall
determine the current market value of Participants' Accounts
invested in each such fund.
5.2 Initial Investment Election
(a) Election allowed. When the investment funds
specified in Plan section 5.1 (a) and (b) are first available to
Participants, or when an individual first becomes a Participant
in the Plan, the Participant shall submit a written election on a
form provided by the Administrator, indicating the Participant's
investment choices for his Account, in multiples of 10% from
among the investment funds indicated in Plan section 5.1. Each
Participant's investment election shall continue in effect until
amended or revoked in accordance with Plan section 5.3.
(b) Default election. Absent an election, a
Participant shall be deemed to have elected to have his entire
Account invested in the CrestFunds Cash Reserve Fund.
(c) Submission of elections. Participants shall
submit their election forms to the Human Resources Director or
his designee at such time and in such manner as the Human
Resources Director may announce.
5.3 Changes in Investment Elections
(a) Elections allowed. After a Participant has made
the initial investment election provided under Plan section 5.2,
he may elect to transfer 25%, 50%, 75%, or 100% of his balance in
any one investment fund to any other investment fund under the
Plan. If, however, the balance remaining in the investment fund
with respect to which a Participant elects to make a transfer is
less than $100, then as of the effective date of such transfer,
the Participant's entire balance in that investment fund will be
transferred to such other fund or funds as the Participant has
elected in accordance with the percentages designated in his
investment change election.
(b) Frequency of elections. A Participant may make
only one such change in his investment election during each
month, effective as of the first day of the subsequent month.
(c) Administrator directions. The Administrator
shall adopt and announce procedures regarding changes in
investment elections. The Administrator may, in its discretion,
direct the Trustee to grant permission for special elections for
investment changes to all Participants at such times as it may
designate so that Participants may restructure investments in
their Accounts.
5.4 Crestar Stock Fund
(a) Allocation by Trustee. The Trustee shall
allocate to the Account of each Participant invested in the
Crestar Stock Fund as of each Valuation Date from the shares of
Stock acquired by the Trustee for such purpose, the number of
whole shares and such fractional interest in a share of such
Stock, calculated to the fourth decimal place, as may be
purchased by funds in such Participant's Account available and
designated for such use. Such allocation of shares shall be at
the average cost to the Trustee of the shares purchased for all
Participants' Accounts since the last preceding Valuation Date.
(b) Cash investments allowed. To the extent the
Trustee deems necessary or appropriate, the Trustee may maintain
in cash a part of the funds available for investment in the
Crestar Stock Fund. The Trustee shall not be liable for interest
on the portions maintained in cash, but the Trustee may invest
such cash in money-market collective investment funds maintained
by the Trustee, which is readily convertible into cash and
similar investments or obligations pending investment in Stock.
Although the Trustee shall maintain a record of such short-term
investments, it shall treat such amounts as cash and allocate any
income derived from such investments based on each Participant's
cash in the Fund as of the applicable Valuation Date as it bears
to the total cash in the Fund on such Valuation Date.
(c) Acquisition of Stock. Stock shall be purchased
by the Trustee from time to time out of funds held by the Trustee
under the Plan or advanced by the Employers, either on the open
market, from the Sponsor's authorized but unissued Stock, or by
exercising any rights to purchase shares granted with respect to
shares of Stock held by the Trustee.
(d) Holding Stock. The Trustee shall hold, for the
purpose of allocation to the Accounts of Participants, shares of
such Stock which the Trustee has acquired due to withdrawals by
Participants. Shares of Stock held by the Trustee as a result of
a withdrawal, distribution, or transfer of investment shall be
deemed to have been purchased by the Trustee as of the Valuation
Date applicable to such withdrawal, distribution or transfer and
reallocated at their current Market Value as of such Valuation
Date. To the extent the Trustee deems it necessary or
appropriate, the Trustee may sell any shares of Stock acquired
due to such a withdrawal, distribution or transfer of investments
in order to maintain the cash liquidity of the Fund, and such
cash shall be allocated to Participants with Accounts in the
Crestar Stock Fund in accordance with subsection (b).
(e) Compliance with laws. All purchases, sales and
other transactions involving Stock or the Crestar Stock Fund
shall be effected in accordance with all applicable federal and
state laws and regulations and the rules of all domestic stock
exchanges on which shares of Stock are listed and the Trustee is
authorized to take such actions as the Trustee deems necessary or
desirable to assure such compliance. By way of example and not
limitation, the Trustee is authorized to act in accordance with
the terms of an exemption under the Securities and Exchange
Commission's Rule 10b-6 (in which case the exemption shall be
obtained by the Sponsor and renewed from time to time as the
Securities and Exchange Commission may require and communicated
to the Trustee). In addition, to the extent that the Trustee
deems it necessary or desirable, the Trustee may suspend
purchases, sales and other transactions involving Stock or the
Crestar Stock Fund in order to assure compliance with all
applicable federal and state laws and regulations and the rules
of all domestic stock exchanges on which shares of Stock are
listed. The Trustee shall have the right to rely on an opinion
of counsel, which may be counsel to the Sponsor, as to compliance
with this section 5.4(3).
(f) Warrants, rights and options. A Participant
shall have no right to request, direct or demand the Trustee to
exercise on his behalf any rights, warrants or options issued
with respect to Stock credited to his account, and the Trustee,
in its discretion, may exercise or sell any such rights, warrants
or options. In the event such warrants, rights or options are
sold, the Account of each Participant of the Plan shall be
credited with its proportionate share of the proceeds. In the
event such warrants, rights or options are exercised by the
Trustee, each Participant's Account will be credited with the
value of such warrants, rights or options on the date of
exercise, but not the shares thereby acquired, based on the
shares credited to his Account as of the date such warrants,
rights and options were issued.
(g) Stock dividends and Stock splits. The Trustee
shall credit Participants' Accounts with a proportionate number
of shares of Stock received by it as a result of a Stock dividend
or Stock split on the basis of the number of shares held in each
Participant's Account as of the record date of such Stock
dividend or Stock split, as applicable. Cash dividends on Stock
collected by the Trustee shall be credited to Participants'
Accounts invested in the Fund, on the basis of the number of
shares held in each Participant's Account as of the record date,
and the amounts so credited shall be invested in Stock or
temporary cash investments pursuant to this Plan section.
(h) Voting of Crestar Stock. Before each annual or
special meeting of the stockholders of the Sponsor, the Sponsor
will furnish each Participant with a copy of the proxy
solicitation material for such meeting, together with a form
addressed to the Trustee requesting the Participant's
confidential instructions on how the whole shares of Stock
credited to the Participant's Account as of the most recent
Valuation Date preceding the record date for which the
allocations have been completed by the Trustee should be voted on
each matter to come before the meeting. Upon receipt of such
instructions, the Trustee shall vote such Stock as instructed by
Participants. The Trustee shall not vote any shares of Stock
credited to a Participant's Account as of the applicable
Valuation Date as to which it receives no voting instructions
pursuant to the preceding sentence. Any shares of Stock held by
the Trustee which are not credited to a Participant's Account as
of the applicable Valuation Date shall be voted by the Trustee in
a manner that it believes to be consistent with its fiduciary
duties under ERISA 404.
ARTICLE 6
VESTING
6.1 Fully Vested Accounts
An individual who is a Participant in the Plan on or
after May 14, 1993, shall be fully vested in his entire Account
balance under the Plan. Nothing will divest any portion of a
Participant's Account that is vested under this Plan section.
However, reductions in value of the vested portion of a
Participant's Account resulting from losses attributable to the
decrease in the value of his Account because of investments or
allocations of administrative expenses do not constitute
divestiture.
6.2 Former Plan. Vesting provisions under the Former Plan
prior to May 14, 1993 or such other date indicated in this Plan,
are contained in Exhibit B, the contents of which are
incorporated into this Plan.
6.3 Other Predecessor Plan. Vesting provisions under a
Predecessor Plan other than the Former Plan shall be as stated in
such Plan prior to its merger into this Plan.
6.4 Amendment of Vesting Schedule. The provisions of this
section apply to the Plan and to all Predecessor Plans that are
merged into this Plan.
(a) Election by Participant. If the Plan's vesting
schedule is amended or if the Plan is amended in any way that
directly or indirectly affects the computation of a Participant's
vested interest in his Account, or if the Plan is deemed amended
by an automatic change to or from a top-heavy vesting schedule as
provided in Plan article 11, each Participant with at least three
Years of Service for eligibility purposes before the end of the
election period may elect to have his vested percentage computed
under the Plan without regard to such amendment or change. For
Participants who do not have one Hour of Service in any Plan Year
beginning after December 31, 1988, the preceding sentence shall
be applied by substituting "five years" for "three years." The
period during which the election may be made begins with the date
the amendment is adopted (or deemed to be adopted) and ends on
the latest of:
(a) 60 days after the amendment is adopted;
(b) 60 days after the amendment becomes effective; or
(c) 60 days after the Participant is given written
notice of the Plan amendment by the Administrator.
(b) Cutback prohibited. If the Plan's vesting schedule
is amended (or deemed to be amended), in the case of an
individual who is a Participant as of the later of the date the
amendment is adopted or the date the amendment is effective, his
vested percentage as of such date shall not be less than the
percentage computed under the Plan without regard to such
amendment.
ARTICLE 7
ELIGIBILITY FOR BENEFITS; LOANS
7.1 In General
Payments from a Participant's Account are to be made
only if authorized under this Plan Article 7 and may only be made
from the vested portion of the Participant's Account (or any
subaccount), less the value of any security interest held by the
Plan by reason of a Plan loan outstanding to such Participant.
The undistributed balance of a Participant's Account is subject
to investment adjustments as described in Plan article 12 until
it is completely paid from the Plan or used to purchase an
annuity contract for the Participant or his Beneficiary.
Payments authorized under this Plan article 7 will be paid in
accordance with the provisions of Plan article 8 or 9.
7.2 Retirement
A Participant is deemed to be in "retirement" under the
following circumstances and entitled to receive his entire
Account (less the value of any security interest held by the Plan
by reason of a Plan loan outstanding to such Participant) payable
in accordance with Plan article 8 as soon as practicable
following the Valuation Date that coincides with or follows his
retirement date and his submission of any required distribution
election forms.
(a) Normal Retirement. A Participant's Normal
Retirement Date is the first day of the month that coincides with
or immediately follows the Participant's attainment of his Normal
Retirement Age if the Participant's Termination Date has then
occurred.
(b) Early Retirement. A Participant will be deemed
to have entered Early Retirement when his Termination Date occurs
before his Normal Retirement Date, but on or after the date he
reaches age 55 (and for periods prior to June 24, 1994, under the
Former Plan, also completes 5 Years of Service). A Participant
has no Early Retirement Date if the date described in this
subsection occurs after his Normal Retirement Date. If a
Participant's Termination Date occurs after he has satisfied any
service requirement for Early Retirement, if applicable, but
before he satisfies the age requirement for Early Retirement, the
Participant will be entitled to elect to receive his Account
balance (less the value of any security interest held by the Plan
by reason of a Plan loan outstanding to such Participant) upon
reaching age 55 if distribution of his Account has previously
been deferred under Plan article 8.
(c) Disability Retirement. A Participant will be
deemed to have entered Disability Retirement when his Termination
Date occurs because of his Disability and before he is eligible
for any other retirement date under this Plan section. A
Participant's Disability Retirement Date is the date he
terminates employment due to his Disability if this occurs before
any other retirement date in this Plan section. Disability
means:
(1) effective June 24, 1994 (or the date a
Predecessor Plan other than the Former Plan is merged
into this Plan), a condition entitling a Participant to
benefits under the Long-Term Disability Plan maintained
for the benefit of Employees of the Sponsor and its
Related Companies; and
(2) for periods prior to June 24, 1994 under the
Former Plan, or if later, the date prior to the date a
Predecessor Plan is merged into this Plan, Disability
as defined under such Plan.
(3) Despite the preceding provisions, a Participant
who has an undistributed Account balance in this Plan
and who qualifies for Social Security disability
benefits shall be deemed to have a Disability for
purposes of this Plan.
(d) Late Retirement. A Participant whose Termination
Date occurs after his Normal Retirement Date is deemed to have
elected Late Retirement.
(1) If a Participant's Required Beginning Date occurs
before his actual Termination Date, he must receive or
begin to receive payments from his Account by his
Required Beginning Date as provided in Plan article 8
and in accordance with Code 401(a)(9).
(2) Until such Participant's actual Termination Date,
he shall continue to have the same rights and
privileges and share in any Employer contributions and
forfeitures on the same basis as other Participants in
the Plan.
7.3 Distribution on Death
When a Participant dies, his Beneficiary is entitled to
receive the undistributed balance of the Participant's vested
Account in the Plan less the value of any security interest held
by the Plan by reason of a Plan loan outstanding to such
Participant as provided under Plan section 7.8. Distributions,
if any, to Beneficiaries on account of a Participant's death
shall be made as provided in Plan article 9.
7.4 Pre-Retirement Termination
If a Participant's Termination Date occurs before any
retirement date in Plan section 7.2 and for reasons other than
his death, he may elect to receive the vested balance of his
Account (less the value of any security interest held by the Plan
by reason of a Plan loan outstanding to such Participant) payable
pursuant to Plan article 8 as soon as practicable after the
Valuation Date following his Termination Date. Such election
must comply with the provisions of Plan section 8.4 or 8.5, as
applicable. The Participant may also elect to defer distribution
as provided in Plan article 8.
7.5 Payments During Employment
No payments may be made from a Participant's Account
while he is an Employee (that is, before his Termination Date),
except in the circumstances described in this Plan section 7.5
and subject to the spousal consent requirements in subsection
(e), if applicable.
(a) Late Retirement. A Participant who continues
working after his Normal Retirement Date must receive or begin to
payments from his Account by his Required Beginning Date as
described in Plan section 7.2(d), even if he is still an
Employee.
(b) Plan Termination. If the Plan is terminated as
provided in Plan article 15 and all Accounts are distributed,
Participants who are Employees may receive their vested Account
balances, except as otherwise provided in Plan section 7.6(f),
8.6(e), or 15.3(b).
(c) In-service withdrawals. Payments may be made
from the Plan to any Participant who is an Employee under the
following circumstances except that no withdrawal may be made
from the portion of a Participant's Account that is security for
a Plan loan:
(1) After age 59 1/2. A Participant who is an
Employee may withdraw all or any part of his vested
Account balance at any time after he reaches age 59 1/2
by filing a written request for the withdrawal with the
Administrator. Despite the preceding, a Participant's
in-service withdrawal pursuant to this subsection may
not include any Pension Account or any other portion of
his Account, the distribution of which would endanger
this Plan's status as a qualified plan under Code
401(a). The Administrator may adopt and announce
rules with respect to the ordering of withdrawal
payments from a Participant's Account.
(2) Rollover Account. A Participant may withdraw all
or any part of his Rollover Account at any time by
filing a written request for withdrawal with the
Administrator on such forms as the Administrator may
provide.
(3) Before Age 59 1/2. Effective June 24, 1994, a
Participant who is an Employee who has not reached age
59 1/2 may elect one time during each Plan Year, by
filing a written request with the Administrator, to
withdraw all or part of his Account, excluding his
401(k) Account, his Qualified Nonelective Account, his
Pension Account or any portion of his Account, the
distribution of which would cause the Plan to cease to
be a qualified plan under Code 401(a).
(4) Transferred accounts. If all or part of a
Participant's Account is attributable to contributions
made under a Predecessor Plan, the Participant may make
withdrawals from that Account (or applicable portion)
at any earlier time specified in the Predecessor Plan
to the extent that such right is a protected benefit
right or feature under Code 411(d)(6) and 401(a)(4)
and such withdrawal would not endanger this Plan's
status as a qualified plan under Code 401(a) and
401(k). Such a withdrawal request must be submitted
in writing to the Administrator on such forms as the
Administrator may provide.
(d) Hardship withdrawals. A Participant who is an
Employee may at any time file a written request with the
Administrator for a withdrawal from his Account (excluding his
Pension Account and any other Account for which in-service
withdrawals are prohibited) if the Participant has a hardship, as
described below. The Administrator shall direct that a hardship
distribution be made only if it finds that a hardship exists and
then only to the extent it deems necessary to alleviate such
hardship.
(1) Deemed hardships. A Participant shall be
considered to have a financial hardship if he has an
immediate and heavy financial need which cannot be
satisfied from other resources reasonably available to
the Participant. Immediate and heavy financial needs
shall be limited to those listed below (or those
subsequently adopted by the Administrator in accordance
with such other standards as may be promulgated from
time to time by the Internal Revenue Service):
(A) payment of medical expenses described
in Code 213(d) previously incurred by the
Participant, the Participant's Spouse, or any
dependents of the Participant (as defined in Code
152) or payment necessary for those persons to
obtain medical care described in Code 213(d); or
(B) payment of costs directly related to
the purchase of the Participant's principal residence
(excluding mortgage payments); or
(C) payment of tuition and related
educational fees for the next 12 months of post-
secondary education for the Participant or the
Participant's Spouse, children, or dependents (as
defined in Code 152); or
(D) payments necessary to prevent the
eviction of the Participant from his principal
residence or foreclosure on the mortgage of that
residence.
(2) Other requirements. A Participant who has a
heavy or immediate financial need under this subsection
must also satisfy the following requirements to be
eligible for a hardship withdrawal:
(A) the Participant must have obtained all
distributions, other than hardship distributions, and
all non-taxable loans (determined at the time of the
loan) currently available under all plans maintained
by the Employers and Related Companies;
(B) the Participant's Salary Reduction
Election under this Plan will be suspended for 12
months after receipt of the hardship distribution and
the Participant may not make before-tax or after-tax
contributions to any other plan of an Employer (as
determined in accordance with Treasury regulations
under Code 401(k)) during that 12-month period; and
(C) for the Participant's taxable year
immediately following the taxable year of the
hardship distribution, the Participant may not have
401(k) Contributions allocated to his Account under
this Plan or elective contributions to any other plan
of an Employer or Related Company in excess of the
applicable limit under Code 402(g) for the next
taxable year minus the amount of such Participant's
401(k) Contributions to this Plan or elective
contributions to any other plan of an Employer or
Related Company for the taxable year in which the
hardship withdrawal is made.
Any period of suspension required by this paragraph (2)
and any other period of suspension required by the Plan
will run concurrently.
(3) Amount distributable. A distribution will be
deemed necessary to satisfy the financial hardship if
the distribution does not exceed the amount required to
meet the immediate financial need created by the
hardship and all requirements relating to other
withdrawals, loans and contribution suspensions and
reduction set forth in this subsection (d) are
satisfied. The amount of an immediate and heavy
financial need may include any amounts necessary to pay
federal, state or local income taxes or penalties
reasonably anticipated to result from the hardship
withdrawal.
(4) Accounts affected. Unless the Administrator
announces otherwise, hardship withdrawals pursuant to
this subsection first reduce the Participant's After-
Tax Contribution Account and then reduce his Rollover
Account, his Profit Sharing Account, his Matching
Account, his Qualified Nonelective Account, and finally
his 401(k) Account. The Administrator shall adopt
procedures that specify the ordering of investment
funds within an Account from which hardship withdrawals
shall be taken. Despite the preceding provisions of
this paragraph to the contrary, a Participant may not
withdraw any Profit Sharing Contributions or Matching
Contributions allocated to his Account during the 24-
month period immediately preceding the effective date
of the withdrawal and he may not receive any hardship
withdrawal from his Pension Account. In addition,
earnings accrued by or credited to a Participant's
401(k) Account and Qualified Nonelective Account after
the last day of the Plan Year beginning in 1988 may not
be withdrawn for a hardship distribution.
(e) Spousal consent requirements. If a Participant
is married, no withdrawal may be made pursuant to this Plan
section 7.5 from any portion of the Participant's Account which
is subject to the survivor annuity rules described in Plan
sections 8.5 and 9.4 unless the Participant's Spouse gives
written consent as described in Plan section 8.5 within the 90-
day period preceding the date of withdrawal.
7.6 Distribution Restrictions for 401(k) and Qualified
Nonelective Accounts. Despite any other provisions of this Plan
to the contrary, except for payments to an Alternate Payee under
a Qualified Domestic Relations Order, no distribution or
withdrawal is permitted from a Participant's 401(k) Account or
from his Qualified Nonelective Account until after one of the
events listed below has occurred:
(a) The Participant has died.
(b) The Participant has become disabled (either
Disabled, or disabled within the meaning of Code 72(m)(7) or
under any other definition of disability consistent with Code
401(k)(2)(B)).
(c) The Participant has retired under the Plan or
otherwise terminated employment with the Employers.
(d) The Participant has incurred a hardship according
to Plan section 7.5.
(e) The Participant has attained age 59 1/2.
(f) The Plan terminates without the
establishment or maintenance of a successor qualified plan, other
than an employee stock ownership plan (as defined in Code
4975(e) or 409) or a simplified employee pension plan as
defined in Code 408(k));
(g) A Participant's Employer disposes of
substantially all of its assets (within the meaning of Code
409(d)(2)) used in its trade or business and that Participant
continues employment with the business that acquires the assets.
(h) A corporation disposes of its interest in the
Participant's Employer, which is a subsidiary of the selling
corporation (within the meaning of Code 409(d)(3)), and the
Participant continues his employment with the Employer.
A distribution cannot be made pursuant to an event described in
paragraph (f), (g) or (h) unless the distribution would be a lump
sum distribution under Code 402(d)(4) (without regard to clauses
(i), (ii), (iii), and (iv) of subparagraph (A), subparagraph (B),
or subparagraph (F)) and, with respect to paragraphs (g) and (h)
above, the transferor corporation must continue to maintain the
Plan after the disposition.
7.7 Qualified Domestic Relations Order Distributions
(a) Application. This section applies to a
Participant's Account that is subject to a Qualified Domestic
Relations Order.
(b) Administrator procedures. The Administrator must
establish reasonable written procedures for determining the
qualified status of a domestic relations order and for
administering distributions under a Qualified Domestic Relations
Order. The Administrator must promptly notify the Participant
and each Alternate Payee of the receipt of a domestic relations
order and of the procedures for determining its qualified status.
(c) Separate accounting. During the 18-month period
beginning on the date on which the Administrator receives a
domestic relations order (or a modification of a domestic
relations order) for determination as a Qualified Domestic
Relations Order, the Administrator must separately account for
the amounts that would have been payable to the Alternate Payee
during such period if the order had been determined to be a
Qualified Domestic Relations Order.
(d) Suspension of benefits. No benefits will be
distributed to the Participant to whom a domestic relations order
relates after the date on which the Administrator receives the
order (or modification of an order) for determination as a
Qualified Domestic Relations Order and before the earliest of
(i) the expiration of the 18-month period beginning on that date;
(ii) the date on which the Administrator determines that the
order (or modification of an order) is a Qualified Domestic
Relations Order; or (iii) the date the parties notify the
Administrator that they no longer intend to pursue a Qualified
Domestic Relations Order with respect to the Participant's
Account.
(e) QDRO Account. Upon determination that an order
is a Qualified Domestic Relations Order, amounts subject to the
Qualified Domestic Relations Order that are not immediately
distributable, will be segregated, as of the Valuation Date
specified by the Qualified Domestic Relations Order or, if no
such date is specified, as of the Valuation Date on or as soon as
practicable after the order is determined to be a Qualified
Domestic Relations Order, into a separate account for the benefit
of the Alternate Payee (the "QDRO Account") and invested pursuant
to Plan article 5 as specified by the Qualified Domestic
Relations Order or the written election of the Alternate Payee.
Absent any such investment instructions, the QDRO Account will
remain invested in the same investment funds from which the QDRO
Account was transferred. In no event may the amount segregated
into the QDRO Account exceed the vested value of the
Participant's Account balance under the Plan as of the Valuation
Date on or immediately preceding the date of funds are actually
segregated into the QDRO Account. QDRO Accounts will participate
in the earnings, gains or losses of the investment funds in the
same manner as any Participant's Account. An Alternate Payee may
make withdrawals from his QDRO Account to the extent provided
under the terms of the Plan.
(f) Payment. The Trustee shall make payments
pursuant to a Qualified Domestic Relations Order as soon as
practicable after the payment commencement date specified in the
Order. If specified in the Qualified Domestic Relations Order,
distributions may be made to the Alternate Payee prior to the
date that a Participant attains his "earliest retirement age"
under the Plan as defined under Code 414(p)(4). If the
Participant dies before that date, the Alternate Payee is
entitled to benefits only if the Order requires the establishment
of a separate account for the Alternate Payee or otherwise
requires survivor benefits to be paid. The Order may not specify
a payment option for the Alternate Payee other than those
provided for in Plan article 8, except that a Qualified Joint and
Survivor Annuity is not available to an Alternate Payee and his
or her spouse. To the extent that a contrary result is not
specified in the Qualified Domestic Relations Order, payments to
the Alternate Payee shall be made in a lump sum cash payment.
(g) Distributions. A distribution or segregation
into a QDRO Account made pursuant to a Qualified Domestic
Relations Order will be charged pro rata against a Participant's
Account and its investments, unless the Order provides otherwise,
and if the Alternate Payee is the Participant's Spouse or former
Spouse, the Participant's investment in the contract, i.e., his
basis in the Plan, will be allocated to that distribution or the
segregated QDRO Account on a pro rata basis in accordance with
Treasury regulations. If the entire payment to an Alternate
Payee does not exceed $3,500, then the payment may be paid to the
in a lump sum as provided for Participants in Plan article 9. If
a distribution is made to an Alternate Payee under a Qualified
Domestic Relations Order before any amounts are segregated
pursuant to subsection (e), in no event may the distribution
exceed the vested value of the Participant's Account balance
under the Plan as of the Valuation Date on or immediately
preceding the day of distribution, adjusted to reflect any
subsequent gains or losses.
(h) Alternate Payee's Death. If the Alternate Payee
dies before the entire balance in his QDRO Account is distributed
to him, any remaining balance in his QDRO Account will be
distributed in accordance with the Qualified Domestic Relations
Order or in the event that the Qualified Domestic Relations Order
does not specify the manner in which the Alternate Payee's
interest in his QDRO Account will be distributed upon his death,
in accordance with a beneficiary designation form completed by
the Alternate Payee, or if the Alternate Payee makes no valid
beneficiary designation, to his estate.
7.8 Loans
(a) Effective Date. The provisions of this Plan
section 7.8 regarding loans are not effective until the
Administrator announces they are effective. Until then,
Participants are not allowed to borrow from their Accounts.
Despite the preceding, if a Participant has an outstanding loan
from his Account under a Predecessor Plan that is merged into
this Plan, such loan may be continued under this Plan until its
maturity date or the earlier distribution of the Participant's
entire Account.
(b) General availability. A Participant may apply to
the Director of Human Resources in writing (on forms provided by
the Director for that purpose) for a loan from the Trust Fund in
accordance with the rules and procedures set forth in this
section. For purposes of this Plan section only, Participant
also refers to a former Participant or Beneficiary who is a party
in interest as defined in ERISA section 3(14).
(1) Loans shall be made available to all Participants
on a reasonably equivalent basis.
(2) Loans shall not be made available to Highly
Compensated Employees in an amount greater than the
amount made available to other Participants.
(3) Loans shall bear a reasonable rate of interest.
The interest rate shall be determined by the
Administrator based on a rate of return commensurate
with the prevailing interest rate charged on similar
fully secured personal loans by persons in the business
of lending money.
(4) Loans shall be adequately secured with assets of
the Participant's Account.
(c) Amount. Any loan to a Participant, when added to
the outstanding balance of all loans from the Plan, including for
purposes of this subsection all other Defined Benefit Plans and
Defined Contribution Plans maintained by an Employer or a Related
Company, to such Participant, shall not exceed the lesser of:
(1) $50,000, reduced by the excess (if any) of the
highest outstanding balance of loans from the Plan
during the one year period ending on the day before the
loan is made, over the outstanding balance of loans
from the Plan on the date the loan is made, or
(2) 50% of the then nonforfeitable portion of the
Participant's Account, valued as of the Valuation Date
coincident with or immediately preceding approval of
the loan request.
An assignment or pledge of any portion of the Participant's
interest in the Plan will be treated as a loan under this Plan
section.
(d) Additional terms. Any Plan loan to a Participant
shall by its terms require that repayment (principal and
interest) be amortized in level payments, made not less
frequently than quarterly, over a period not to exceed five
years. If, however, such loan is to be used to acquire a
dwelling unit which within a reasonable time (determined at the
time the loan is made) will be used as the principal residence of
the Participant, the loan may provide for periodic repayment over
a reasonable period of time that may exceed five years. Any loan
to a Participant who is an Employee shall be required to be
repaid through payroll deduction, and any loan to any other
Participant shall be repaid in a manner determined by the
Director to assure repayment of the loan.
(e) Spousal consent rules. To the extent that a
Participant's Account (or subaccount) is subject to the survivor
annuity rules described in Plan sections 8.5 and 9.4, such
Participant may not receive a loan from his Account (or
subaccount) without obtaining the consent of his Spouse to the
use of his Account as security for the loan.
(1) The Spouse's consent must be obtained within the
90-day period ending on the date on which the loan is
to be so secured, must be in writing, must acknowledge
the effect of the loan, and must be witnessed by a Plan
representative or notary public. Such consent is
thereafter binding on the consenting Spouse and on any
subsequent Spouse with respect to that loan. A new
consent by the Participant's Spouse shall be required
if the balance of such Account (or subaccount) is used
for renegotiation, extension, renewal, or other
revision of the loan.
(2) If a valid spousal consent has been obtained in
accordance with this subsection, then, notwithstanding
any other provision of the Plan, the portion of the
Participant's vested Account used as a security
interest held by the Plan by reason of a loan
outstanding to the Participant shall be taken into
account for purposes of determining the amount of the
Participant's Account payable at the time of death or
distribution, but only if the reduction is used as
repayment of the loan. If less than 100% of the
Participant's vested Account (determined without regard
to the preceding sentence) is payable to the Surviving
Spouse, then the Participant's Account shall be
adjusted by first reducing the vested Account by the
amount of the security used as repayment of the loan,
and then determining the benefit payable to the
Surviving Spouse.
(f) Note, agreement. If a Participant's loan
application is approved by the Director, such Participant shall
be required to sign a promissory note, loan agreement, and any
other documents required to establish the loan and assign the
applicable portion of his Account in the Plan as security for the
loan.
(g) Effect on Account. The Director may adopt rules
for determining from which of a Participant's Accounts and
investment funds a loan is to be taken.
(h) Directed investment. To the extent it is
consistent with other provisions of this Plan and the Trust
Agreement, all loans made under this section are considered
directed investments of the borrowing Participant's Account and
the earnings attributable to the loan are separately accounted
for and credited to the Participant's Account from which it is
made.
(i) Default. In the event of a Participant's
default on a Plan loan, the Administrator shall reduce the
Participant's vested Account balance by the remaining principal
and interest on his or her loan as long as such reduction is
permissible under Code 401(a) and 401(k) and such amount is
immediately distributable. However, the Administrator shall not
be required to commence such action immediately upon default.
The Administrator may delay the enforcement of the security
interest until a distributable event occurs.
(j) Additional rules. The Director may adopt
and announce additional loan rules not inconsistent with the
provisions of the Plan and this section. For example, the
Administrator may provide that loans are available only once (or
at certain times) each Plan Year, that loans attributable to a
Participant may not be renewed or increased until all of the
outstanding loans attributable to that Participant are satisfied,
that loans may be limited to certain minimum amounts, that a
Participant's outstanding loan balance be limited to a certain
maximum amount, or that loans are conditioned upon a
Participant's agreement to pay the Plan's administrative expenses
attributable to the loan. Such loan rules may not discriminate
in favor of Highly Compensated Employees and shall comply with
the prohibited transaction exemption under ERISA 408(b)(1).
(k) Distributions before full repayment. Despite any
other provision of the Plan, the portion of a Participant's
vested Account used as security for a Plan loan to a Participant
shall be taken into account for purposes of determining the
amount of the Account balance payable at the Participant's death
or for other reasons pursuant to this Plan article 7, but only if
the reduction is used as a repayment of the loan (and the
canceled note is distributed as part of the payment). The
preceding sentence shall apply in the case of benefits payable to
a Surviving Spouse only if the Participant has obtained the
Spouse's consent as provided in subsection (e) above, or if no
spousal consent to the loan was required.
(l) Bona fide loans only. This section
authorizes only the making of bona fide loans and not
distributions. Before resort is made against a Participant's
Account for the failure to repay a Plan loan, the Administrator
and Trustee must make all other efforts to collect the loan as
they may deem reasonable and practicable under the circumstances.
ARTICLE 8
BENEFIT PAYMENTS TO PARTICIPANTS
8.1 Benefit Payments, Generally
(a) Cash-outs. If a Participant becomes entitled to
a payment from his Account under Plan Article 7 because he has
terminated employment or retired, and if the vested balance in
his Account does not exceed $3,500 (and did not exceed $3,500 at
the time of any prior distribution), the Administrator shall
direct payment to the Participant in a single lump sum. The
consent of the Participant shall not be required.
(b) Prior to Normal Retirement Age. If a Participant
becomes entitled to a payment from his Plan Account in accordance
with Plan article 7 and the Participant has not reached the later
of age 62 or Normal Retirement Age, then as provided in Plan
section 7.7, no distribution can be without the Participant's
consent while the Participant's benefit is considered to be
immediately distributable. The failure of a Participant (or, if
applicable, the Participant's Surviving Spouse as Beneficiary) to
consent to a distribution while his account is immediately
distributable shall be deemed an election to postpone payment of
his Account until any time sufficient to satisfy subsection (c).
(c) General distribution rule. Subject to the cash-
out rules in subsection (a), unless a Participant otherwise
elects, payment of his benefits under the Plan shall commence no
later than 60 days after the close of the Plan Year in which
occurs the latest of (1) the earlier of his attainment of age 65
or Normal Retirement Age; (2) his Termination Date; or (3) the
tenth anniversary of the year in which the Participant commenced
participation in the Plan. If the benefit amount cannot be
determined before distribution is required, or if it is not
possible to distribute when required because the Administrator
has been unable to locate the Participant after reasonable
efforts, a distribution retroactive to the required date under
this subsection may be made no later than 60 days after the
earliest date on which the amount of such distribution is finally
ascertained or on which the Participant is located, whichever is
applicable, but subject to this Plan article's provisions on
unclaimed benefits.
(d) Required Beginning Date. Despite any other
provision of the Plan to the contrary, payment of each
Participant's entire interest under the Plan must be made or must
begin no later than his Required Beginning Date in accordance
with Plan section 8.7 and Code 401(a)(9).
8.2 Forms of Payment
(a) Lump sum payments. A Participant or other person
entitled to a distribution from the Plan (other than the
Beneficiary of a deceased Participant) shall receive the number
of whole shares of Stock credited to his Account invested in the
Crestar Stock Fund and cash representing his remaining interest
in the Fund; provided, however, that such Participant or other
person may, at the time of a request for withdrawal or within
fourteen days of the request in writing to the Human Resources
Director that the Administrator instruct the Trustee to sell such
whole shares of Stock and to distribute the proceeds to him.
Notwithstanding the preceding sentence, except in the event of
death, Disability or retirement at Normal Retirement Date, an
officer of an Employer who is required to file reports under
section 16(a) of the Securities Exchange Act of 1934 may not
elect to have the whole shares of Stock credited to his Account
distributed in cash. The Trustee may, at its option, purchase
any such shares of Stock at the fair market value as of the date
of distribution for the benefit of other Participants of the Plan
or sell such shares on the open market. In the event the Trustee
sells such shares on the open market, the applicable charges, if
any, including brokerage commissions incident to such sale shall
reduce the proceeds of such sale which would otherwise be
distributed to the Participant.
(b) Installment payments. A Participant who retires
on his Early, Normal or Postponed Retirement Date in accordance
with Plan article 7, may elect, in lieu of receiving a lump sum
payment as described in subsection (a), may elect to have his
Account distributed in cash installment payments, or a
combination of a partial lump sum and installments. Any such
installments shall be in cash and in approximately equal amounts
over any period elected by the Participant (or his guardian or
committee) up to 15 years, but in no event may the payment period
exceed the Participant's life expectancy as set forth in the
rules and regulations under Code 401(a)(9) with respect to
minimum distributions.
(c) Medium of payment
(1) Cash and Stock. A Participant or other
distributee entitled to a non-annuity payment from the
Plan under Plan Article 7 or 9 shall receive the number
of whole shares of Stock credited to the Participant's
Account invested in the Crestar Stock Fund at the
applicable Valuation Date and cash representing his
remaining investments. Such Participant or other
distributee may, however, at the time of his withdrawal
or within 14 days of the event requiring a payment,
request in writing to the Human Resources Director that
such whole shares of Stock be sold by the Trustee and
the cash proceeds distributed to him.
(A) Stock purchase. If a Participant (or
his Beneficiary) with all or part of his Account
invested in the Crestar Stock Fund requests an all-
cash distribution, the Trustee may, at its option,
purchase any such shares of Stock at the market value
as of the date of distribution for the benefit of
other Participants of the Plan or sell such shares on
the open market. In the event the Trustee sells such
shares on the open market, applicable charges, if
any, including brokerage commissions incident to such
sale shall reduce the proceeds of such sale which
would otherwise be distributed to the Participant.
(B) Certain officers. Despite the
preceding, except in the event of death, Disability
or retirement at Normal Retirement Age, a distributee
who is an officer of an Employer required to file
reports under 16(a) of the Securities Exchange Act
of 1934 may not elect to have the whole shares of
Stock credited to his Account distributed in cash.
(d) Direct rollovers permitted. Notwithstanding any
provision of the Plan to the contrary that would otherwise limit
a distributee's election with respect to a distribution of Plan
benefits, a distributee may elect, at the time and in the manner
prescribed by the Administrator, to have any portion of an
eligible rollover distribution, payable on or after January 1,
1993, and in an amount of at least $500, paid directly to an
eligible retirement plan specified by the distributee in a direct
rollover. The Administrator may adopt additional rules with
respect to direct rollovers which are consistent with applicable
Treasury regulations and rules. For purposes of this subsection
(c), the following definitions apply:
(1) Eligible rollover distribution means any
distribution of all or any portion of the balance to
the credit of the distributee, except that an eligible
rollover distribution does not include: (i) any
distribution that is one of a series of substantially
equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the
distributee or the joint lives (or joint life
expectancies) of the distributee and the distributee's
designated beneficiary, or for a specified period of
ten years or more; (ii) any distribution to the extent
such distribution is required under Code 401(a)(9);
and (iii) the portion of any such distribution that is
not includible in gross income (determined without
regard to the exclusion for net unrealized appreciation
with respect to employer securities); and (iv) any
other distribution(s) reasonably expected to total less
than $200 during a calendar year.
(2) Eligible retirement plan means an
individual retirement account described in
Code 408(a), an individual retirement annuity
described in Code 408(b), an annuity plan
described in Code 403(a), or a qualified plan
described in Code 401(a) of the Code, that
accepts the distributee's eligible rollover
distribution. However, in the case of an
eligible rollover distribution to a
Participant's Surviving Spouse, an eligible
retirement plan is an individual retirement
account or individual retirement annuity.
(3) Distributee includes a Participant or former
Participant. In addition, the Surviving Spouse of a
Participant or a former Participant and the Spouse or
former Spouse of a Participant or former Participant
who is an Alternate Payee under a Qualified Domestic
Relations Order are distributees with regard to the
interest of the Spouse or former Spouse.
(4) Direct rollover means a payment by the Plan to
the eligible retirement plan specified by the
distributee.
8.3 Election Procedure
(a) Application. The provisions of this section
apply to any Participant whose Account (or subaccount) is not
subject to the survivor annuity requirements in Plan section 8.5
(b) Explanation of payment options. No less than 30
days and no more than 90 days before a Participant is to receive
a distribution from his Account, the Participant shall be given a
written notice about the payment options available. The notice
shall be given by first class mail or personal delivery and shall
contain a general explanation, written in a manner intended to be
understood by the Participant, of (1) the terms, conditions, and
material features of the payment options provided under the Plan;
(2) an explanation of the relative values of those optional
forms; (3) the Participant's right, if applicable, to postpone
distribution of his benefits until what would have been his
Normal Retirement Age; (4) the method in which his benefit will
be paid if he does not elect a form of benefit payment; (5) the
Participant's right to make, and the effect of, an election to
receive benefits under the available options; and (6) the
Participant's right to make and the effect of a revocation of any
election.
(c) Elections. A Participant's election to postpone
any distribution until what would have been his Normal Retirement
Age or his election of any payment form shall be made in writing
to the Administrator, on such forms as the Administrator may
require, during the election period. The election period is the
90-day period ending on the date on which payment of a
Participant's benefits are to be paid or are to begin. Despite
the preceding, however, a Participant cannot make an election
until he has received the explanation required by subsection (b).
Unless otherwise announced by the Administrator, any election may
be altered, amended, or revoked by the Participant during the
election period, subject to the rules of any insurance company
that may have issued or is in the process of issuing an annuity
contract and subject to the survivor annuity requirements in Plan
section 8.5, if applicable. After a Participant's election
period ends, no further elections or changes in his elections
will be permitted.
8.4 Survivor Annuity Requirements
(a) Application. The requirements of this Plan
section apply to all distributions made from the Plan for any
Participant who elects at any time to receive his benefit
payments in the form of an annuity. The requirements of this
Plan section also apply to all distributions made from a
Participant's Account to the extent such Account (or subaccount)
is transferred to this Plan from a Predecessor Plan on or after
January 1, 1985, under which the Participant's benefit was
required to be paid as an annuity under Code 401(a)(11) and
417. For example, the survivor annuity requirements apply to all
Pension Accounts.
(b) Form of distribution. Unless a Participant
described in subsection (a) has made an effective election of an
optional payment form within the 90-day period ending on his
Annuity Starting Date, his vested Account under the Plan must be
distributed in the form of a Qualified Joint and Survivor Annuity
if he is married and in the form of a single life annuity if he
is not married. The Participant may elect to have such annuity
distributed upon the attainment of the earliest retirement age
under the Plan.
(c) Explanation required. No less than 30 days and
no more than 90 days before the Annuity Start Date of a
Participant described in subsection (a), the Administrator must
provide the Participant with a general written explanation which
contains the information required by subsection (b) and also
includes an explanation of (1) the terms and conditions of the
Qualified Joint and Survivor Annuity or single life annuity; (2)
the Participant's right to make, and the general financial effect
of, an election to waive the Qualified Joint and Survivor Annuity
or single life annuity; and (3) the rights of the Participant's
spouse. This notice shall be given by first class mail or
personal delivery.
(d) Election of optional form. After he has received
the explanation required by subsection (c), a Participant may
elect to waive the annuity payment at any time during the period
beginning 90 days before his Annuity Starting Date and have his
Account distribution paid under one of the options set forth in
the Plan section entitled "Optional Forms of Payment." A
Participant may revoke any such election at any time during his
90-day election period. A Participant may elect, revoke, and
elect again as many times as he wishes as long as such actions
are taken within the 90-day election period. An election of an
optional form of benefit shall be made in writing to the
Administrator and, except as provided below, the Participant's
election shall become effective as of his Annuity Starting Date.
After the Participant's Annuity Starting Date, no further
elections or changes in elections will be permitted.
(e) Spousal consent. A Participant's election
pursuant to this Plan section will not become effective as of his
Annuity Starting Date unless, within the 90-day period ending on
the Annuity Starting Date, his Spouse has consented in writing to
his election and the election designates a specific optional form
of benefit payment and, if applicable, a specific non-spouse
Beneficiary (including any class of Beneficiaries or any
contingent Beneficiaries) which may not be changed without
spousal consent (or the Spouse has expressly permitted the
designations to be changed without further consent by the
Spouse). The consent of the Participant's Spouse must
acknowledge the effect of the Participant's election and must be
witnessed by a Plan representative or notary public. Despite the
preceding, the consent of the Participant's Spouse is not
required if the Participant establishes to the satisfaction of a
Plan representative that such written consent cannot be obtained
because there is no Spouse, because the Spouse cannot be located,
or because of such other circumstances as applicable Treasury
regulations may prescribe. Any consent under this subsection is
valid only with respect to the Spouse who signed the consent.
Any establishment that the consent of a Spouse cannot be obtained
is valid only with respect to that designated Spouse. A consent
that permits designations by the Participant without any
requirement of further consent by such Spouse must acknowledge
that the Spouse has the right to limit consent to a specific form
of benefit, or if applicable, to a specific Beneficiary and that
the Spouse voluntarily relinquishes this right.
8.5 Restrictions on Immediate Distributions
(a) Application. The consent requirements in this
Plan section apply to any distribution of a Participant's Account
if the Account is immediately distributable; that is if, at the
time the Account is distributable under Plan Article 7, (1) the
vested Account balance exceeds (or at the time of any prior
distribution exceeded) $3,500, and (2) the Participant has not
attained (or if alive would not have attained) the later of
Normal Retirement Age or age 62.
(b) Participant's consent to distribution. A
Participant must give consent in writing to any distribution of
his Account if the Account is immediately distributable. The
consent must be given within 90-day period ending on the Annuity
Starting Date. If the Participant's Account (or subaccount) is
not subject to the survivor annuity rules in Plan section 8.5,
the Spouse's consent to the distribution is not required and the
distribution may commence less than 30 days after the notice
described in subsection (d) is given, provided that:
(1) the Administrator clearly informs the Participant
that the Participant has a right to a period of at
least 30 days after receiving the notice described in
subsection (d) to consider the decision of whether or
not to elect a distribution (and, if applicable, a
particular distribution option), and
(2) the Participant, after receiving the notice,
affirmatively elects a distribution.
(c) Consent of Participant's Spouse. If the
Participant's Account (or subaccount) is subject to the survivor
annuity rules in Plan section 8.5, the Participant's Spouse must
also give written consent to a distribution of the Participant's
Account while it is immediately distributable. Despite the
preceding, only the Participant need consent if the distribution
is in the form of a Qualified Joint and Survivor Annuity. If the
Participant is deceased, only the Surviving Spouse needs to
provide written consent to the distribution.
(d) Notice. The Administrator must notify the
Participant and the Participant's Spouse (or their survivor) of
the right to defer any distribution that is immediately
distributable. The notice must include a general description of
the material features and an explanation of the relative values
of the optional forms of payment available under the Plan in a
manner that would satisfy the notice requirements of Code
417(a)(3), and shall be provided no less than 30 days and no
more than 90 days prior to the Annuity Starting Date.
(e) Exceptions. Neither the consent of the
Participant nor the Participant's Spouse shall be required to
the extent that a distribution is required to satisfy Code
401(a)(9), 401(k), 401(m), or 415. In addition, upon
termination of this Plan if the Plan does not offer an annuity
option (purchased from a commercial provider) and if neither an
Employer nor a Related Company maintains another Defined
Contribution Plan (other than an employee stock ownership plan as
defined in Code 4975(e)(7)), the Participant's Account balance
will, without the Participant's consent, be distributed to the
Participant. However, if an Employer or Related Company
maintains another Defined Contribution Plan (other than an
employee stock ownership plan as defined in Code 4975(e)(7)),
then the Participant's Account balance will be transferred,
without the Participant's consent to the other plan if the
Participant does not consent to an immediate distribution.
8.6 Distribution Requirements under Code 401(a)(9)
(a) Application. Subject to the survivor annuity
requirements of Plan section 8.5, the requirements of this Plan
section shall apply to any distribution of a Participant's
Account and will take precedence over any inconsistent provisions
of this Plan. Unless otherwise specified, the provisions of this
Plan section apply to calendar years beginning after December 31,
1984. All distributions required under this Plan section shall
be made in accordance with the proposed Treasury regulations
under Code 401(a)(9), including the minimum distribution
incidental benefit requirement of Proposed Treasury regulation
1.401(a)(9)-2.
(b) Required Beginning Date. As required by Code
401(a)(9), each Participant's entire interest under this Plan
must be or must begin to be distributed not later than his
Required Beginning Date. Except as provided below, effective
January 1, 1989, a Participant's Required Beginning Date is April
1 of the calendar year following the calendar year in which the
Participant attains age 70 1/2.
(1) For a Participant who is not a 5%-owner (as
defined in Code 416(i)), who attains age 70 1/2 during
the 1988 calendar year, and who has not retired as of
January 1, 1989, the Required Beginning Date is April
1, 1990.
(2) For a Participant who is not a 5%-owner (as
defined in Code 416(i)), and who attains age 70 1/2
before January 1, 1988, his Required Beginning Date is
April 1 of the calendar year following the later of (i)
the calendar year in which he retires or (ii) the
calendar year in which he attains age 70 1/2.
(3) For a Participant who attains age 70 1/2 before
January 1, 1988, and who is a 5%-owner (as defined in
Code 416(i)) of the Employer during any Plan Year that
ends with or within the calendar year in which he
attains 66 1/2 or during any later Plan Year, the
Required Beginning Date is April 1 following the later
of (i) the calendar year in which the Participant
attained age 70 1/2 or (ii) the earlier of the calendar
year which ends with or within the Plan Year during
which the Participant becomes a 5% owner or the
calendar year in which the Participant retires.
(4) In accordance with an appropriate election made
by a Participant by December 31, 1983, to defer
distribution in accordance with the pre-TEFRA 242(b)
transition rule, which has not been revoked or modified
as provided in subsection (k) below.
(c) Limits on distribution period. As of the first
distribution calendar year, distributions, if not made in a
single sum, may only be made over one or a combination of the
following periods:
(1) the life of the Participant;
(2) the lives of the Participant and a designated
Beneficiary;
(3) a period certain not extending beyond the
Participant's life expectancy; or
(4) a period certain not extending beyond the joint
and last survivor life expectancy of the Participant
and a designated Beneficiary.
If a Participant fails to elect a distribution method that
complies with these requirements, the Administrator, in its sole
discretion, may direct distribution in any of the Plan's required
distribution methods that meets these distribution requirements
(and, if applicable, satisfies Code 401(a)(11) and 417).
(d) Distribution amount. If a Participant's Account
is to be distributed other than in a lump sum, the following
rules apply:
(1) If a Participant's Account is to be distributed
over a period described in subsection (c)(3) or (c)(4)
or a period not extending beyond the life expectancy of
the designated Beneficiary, the amount required to be
distributed in each calendar year, beginning with the
first distribution calendar year, must at least equal
the quotient obtained by dividing the Participant's
Account by the applicable life expectancy.
(2) For calendar years beginning before January 1,
1989, if the Participant's Spouse is not the designated
Beneficiary, the method of distribution selected must
assure that at least 50% of the present value of the
amount available for distribution is paid within the
Participant's life expectancy.
(3) For calendar years beginning after December 31,
1988, the amount to be distributed each year, beginning
with distributions for the first distribution calendar
year must not be less than the quotient obtained by
dividing the Participant's Account by the lesser of (i)
the applicable life expectancy or (ii) if the
Participant's Spouse is not the designated Beneficiary,
the applicable divisor determined from the table set
forth in Proposed Treasury regulation 1.401(a)(9)-2,
Q&A-4. Distributions after the death of the
Participant shall be made using the applicable life
expectancy in subsection (d)(1) above as the relevant
divisor without regard to Proposed Treasury regulation
1.401(a)(9)-2.
(4) The minimum distribution required for the
Participant's first distribution calendar year must be
made on or before the Participant's Required Beginning
Date. The minimum distribution for other calendar
years, including the minimum distribution for the
distribution calendar year in which the Participant's
Required Beginning Date occurs, must be made on or
before December 31 of that distribution calendar year.
(e) Life expectancy. The life expectancy of the
Participant, and if the designated Beneficiary is the
Participant's Spouse, the life expectancy of the Spouse (other
than in the case of a life annuity) may be redetermined but not
more frequently than annually. If the Participant fails to make
an election with respect to the annual redetermination of his
life expectancy or the life expectancy of his Spouse, the
Administrator must recalculate life expectancies on an annual
basis. A Participant's election is irrevocable as of his
Required Beginning Date. Life expectancy of a non-Spouse
Beneficiary may not be recalculated.
(1) Life expectancy and joint and last survivor
expectancy are computed by use of the expected return
multiples in Table V or VI, as applicable, of Treasury
regulation 1.72-9.
(2) For purposes of this section, life expectancies
are calculated using the attained age of the
Participant (or designated Beneficiary) as of the
Participant's (or designated Beneficiary's) birthday in
the applicable calendar year reduced by one for each
calendar year which has elapsed since the date life
expectancy was first calculated. If life expectancy is
being recalculated, the applicable life expectancy
shall be the life expectancy as so recalculated. The
applicable calendar year shall be the first
distribution calendar year, and if life expectancy is
being recalculated, such succeeding calendar year.
(f) Annuity purchase. If a Participant's
benefit is distributed in the form of an annuity purchased from
an insurance company, distributions under the annuity contract
must comply with the requirements of Code 401(a)(9) and
applicable Treasury regulations.
(g) Death during payment period. If a Participant
dies after distribution of his interest has begun according to a
method that satisfies the requirements of subsection (c) but
before his entire interest has been distributed, then the
remaining portion of his interest must be distributed at least as
rapidly as under the method of distribution being used as of the
date of the Participant's death.
(h) Death before any payments. If a Participant dies
before distribution of his interest has been made or has begun
according to a method that satisfies the requirements of
subsection (c), then the entire interest of the Participant must
be distributed by December 31 of the calendar year containing the
fifth anniversary of the Participant's death except to the extent
that an election is made to receive the distributions in
accordance with (1) or (2) below:
(1) If any portion of the Participant's interest is
payable to or for the benefit of a designated
Beneficiary, that portion will be distributed according
to Treasury regulations over the life of the designated
Beneficiary (or over a period not extending beyond the
life expectancy of the designated Beneficiary), and
distributions must begin not later than December 31 of
the calendar year immediately following the calendar
year in which the Participant died; or
(2) If the designated Beneficiary is the
Participant's Surviving Spouse, the date distributions
are required to begin in accordance with paragraph (1)
above shall not be earlier than the later of (i)
December 31 of the calendar year immediately following
the calendar year in which the Participant died and
(ii) December 31 of the calendar year in which the
Participant would have attained age 70 1/2. If the
Surviving Spouse dies before the distributions to the
Spouse begin, then paragraph (1) will apply as if the
Surviving Spouse were the Participant.
If the Participant does not made an election pursuant
to this subsection (h) before his death, the designated
Beneficiary must elect the method of distribution no
later than the earlier of (1) December 31 of the
calendar year in which distributions would be required
to begin under this subsection, or (2) December 31 of
the calendar year which contains the fifth anniversary
of the date of the Participant's death. If the
Participant has no designated Beneficiary, of if the
designated Beneficiary does not elect a method of
distribution, distribution of the Participant's entire
interest must be completed by December 31 of the
calendar year containing the fifth anniversary of the
Participant's death. For purposes of this subsection,
distribution of a Participant's Account is considered
to begin on the Participant's Required Beginning Date
(or, if the provisions of the last sentence of
subsection (h)(2) apply, the date distribution is
required to begin to the Surviving Spouse pursuant to
paragraph (2) above).
(i) Distribution calendar year. A distribution
calendar year is a calendar year for which a minimum distribution
is required. For distributions beginning before the
Participant's death, the first distribution calendar year is the
calendar year immediately preceding the calendar year which
contains the Participant's Required Beginning Date. For
distributions beginning after the Participant's death, the first
distribution calendar year is the calendar year in which
distributions are required to begin pursuant to this Plan
section.
(j) Participant's benefit. The Participant's
benefit is his Account balance as of the last Valuation Date in
the calendar year immediately preceding the distribution calendar
year (valuation calendar year) increased by the amount of any
contributions or forfeitures allocated to the Account balance as
of dates in the valuation calendar year after the Valuation Date
and decreased by distributions made in the valuation calendar
year after the Valuation Date. If, however, any portion of the
minimum distribution for the first distribution calendar year is
made in the second distribution calendar year on or before the
Required Beginning Date, the amount of the minimum distribution
made in the second distribution calendar year shall be treated as
if it had been made in the immediately preceding distribution
calendar year.
(k) Pre-TEFRA election transition rule. Despite the
preceding provisions of this Plan section and subject to the
election procedures described in this Plan article, distribution
on behalf of a Participant, including a 5% owner, may be made in
accordance with his pre-TEFRA 242(b) election if such election
was allowed under a Predecessor Plan and complies with the
requirements of this subsection.
(1) The Participant had an accrued benefit under the
Plan as of December 31, 1983, and made a written
distribution designation under the transition rule
provided in 242(b)(2) of the Tax Equity and Fiscal
Responsibility Act of 1982, which satisfies the
following requirements:
(A) The distribution designation was in
writing, was signed by the Participant, and was made
before January 1, 1984.
(B) The method of distribution selected in
the designation is one which would not have
disqualified the Plan under Code 401(a)(9) as in
effect on December 31, 1982, and the actual
distribution conforms with the method selected in the
designation.
(C) The designation specifies the time at
which distribution will commence, the period over
which distributions will be made, and for any
distribution upon the Participant's death, the
Beneficiaries of the Participant listed in the order
of priority.
(D) The designation has not been revoked at
the time distribution is to begin in accordance with
the designation. Any change in the designation will
be considered a revocation of the designation, but
the mere substitution or addition of another
Beneficiary (one not named in the designation) under
the designation is not a revocation as long as the
substitution or addition does not alter the period
over which distributions are to be made under the
designation, directly or indirectly (for example, by
altering the measuring life).
(E) The designation qualified for the
special transition rule under applicable Treasury
regulations relating to Code 401(a)(9).
If a distribution designation or the method of
distribution specified in the designation fails to meet
all of these requirements or if a distribution
designation is revoked or deemed to be revoked, then
distribution of the Participant's benefit must be made
as otherwise provided under the Plan.
(2) A distribution upon death will not be covered by
this transition rule unless the information in the pre-
TEFRA 242(b) election contains any other information
required by the Secretary of the Treasury.
(3) If a Participant revokes a pre-TEFRA 242(b)
election, any subsequent distribution must satisfy the
requirements of this Plan section, Code 401(a)(9), and
applicable Treasury regulations. If the revocation
occurs after the date distributions would otherwise
have been required to begin under this Plan section,
then the total amount not yet distributed, which, but
for the pre-TEFRA 242(b) election, would have been
required to have been distributed to satisfy Code
401(a)(9) and applicable Treasury regulations, must be
distributed by the end of the calendar year following
the calendar year in which such election is revoked.
For calendar years beginning after December 31, 1989,
such distributions must satisfy the minimum
distribution incidental requirements of applicable
Treasury regulations.
(4) If a Participant has a pre-TEFRA 242(b) election
with respect to any amount that is transferred or
rolled over to this Plan, distribution of such amounts
shall be subject to the requirements of applicable
Treasury regulations.
8.7 Receipt for Payment.
The Trustee may refuse to make a distribution or payment
to any person who is, in its judgment, incapable for any reason
of giving a valid receipt for such distribution or payment and,
unless a claim has been made by a duly appointed guardian or
other personal representative for such person, may make such
payment or a partial payment to any person, institution or agency
which, in the judgment of the Trustee, is then contributing
toward or furnishing the support of such person, and the receipt
of such payee shall be a complete discharge to the Trustee.
8.8 Payments to Minors and Incompetents
If any Plan benefits become payable to a Participant or
Beneficiary who is a minor or who, in the opinion of the
Administrator, is not legally capable of giving valid receipt and
discharge for such benefits, that payment may be made for the
benefit of the Participant or Beneficiary to such person as the
Administrator in its discretion designates, including the
guardian or legal representative of the Participant or
Beneficiary. Such payments shall, to the extent made, be deemed
a complete discharge of any liability for such payment under the
Plan, and the Trustee may make the payment without obligation to
require bond or to see to the further application of payments.
8.9 Unclaimed Benefits
If the Plan cannot make payments of any amount to a
Participant or Beneficiary within five years after the amount
becomes payable because the person's identity or whereabouts
cannot be determined by the end of the five-year period, all
amounts that would have been payable to that Participant or
Beneficiary must be segregated by the Administrator and then
dealt with according to the laws of the state by which this Plan
is governed that pertain to abandoned intangible personal
property held in a fiduciary capacity. No payment shall
thereafter be due from this Plan to the extent that the person's
benefit has been paid to someone else pursuant to the escheat
laws of any jurisdiction.
ARTICLE 9
DEATH BENEFIT PAYMENTS
9.1 General Provisions on Death Benefits
(a) Application. The provisions of this Plan article
9 relating to death benefits apply to the distribution of the
Account of any Participant who dies before his entire vested
Account has been distributed. To the extent that a Participant's
Account has been applied before his death to purchase an annuity
contact, his Beneficiary is entitled to receive only the benefits
payable under that contract, if any. To the extent that the
Participant's entire vested Account balance has been paid by the
Plan before his death, then no death benefits are payable to
anyone under the Plan on his behalf. Following a Participant's
death, his undistributed Account balance in the Plan shall
continue to be adjusted for gains or losses and administrative
expenses in accordance with the provisions of the Plan governing
the adjustment of Account balances for other distributions.
(b) Death before Annuity Starting Date. Upon the
death of a Participant before his Annuity Starting Date, the
entire undistributed vested balance of his Account (less the
value of any security interest held by the Plan by reason of a
Plan loan outstanding to such Participant) shall be distributed
to the Participant's Beneficiary in accordance with the
provisions of this Plan article 9. Such distribution shall be
made as soon as practicable after the Administrator receives
satisfactory evidence of the Participant's death, based on the
value of the Participant's undistributed vested Account balance
as soon as practicable following the Valuation Date after the
Administrator determines that all requirements have been
satisfied with respect to the payment of death benefits to the
Beneficiary.
(c) Death after Annuity Starting Date. If a
Participant dies after his Annuity Starting Date, any
undistributed vested balance in the Participant's Account will be
distributed to his Beneficiary as provided in this Plan article 9
except if a Participant has elected an annuity form of payment
under Plan article 8. In that case, the death benefits, if any,
will be provided in accordance with the terms of the
Participant's annuity contract.
(d) Restrictions on payments. Despite any other
provision of this Plan article 9, payment of any death benefits
under the Plan must comply with the Code 401(a)(9) restrictions
as described in Plan article 8 and applicable Treasury
regulations. The Administrator is not obligated to direct the
payment of death benefits until the Administrator receives
satisfactory evidence of the Participant's death.
9.2 Designation of Beneficiary
(a) Designation. Except as provided in subsection
(b), a Participant may designate a Beneficiary or Beneficiaries,
indicating single, multiple, primary, or secondary Beneficiaries.
Each designation must be in writing, signed by the Participant,
delivered to the Administrator, and if applicable under
subsection (b), be consented to by the Participant's Spouse.
Each designation is revocable. A Participant's Beneficiary
designation or change in a Beneficiary designation is not
effective until received by the Administrator. The
Administrator, the Trustee, and an Employer are not liable for a
failure to make a Beneficiary change between the time requested
and the Participant's death unless the failure is willful or from
substantial negligence; and one party is not liable for the
failure of another party.
(b) Married Participant
(1) Survivor annuity requirements. If a Participant
is married and if the distribution of all or part of his Account
is subject to the annuity rules in the section of Plan article 8
entitled "Survivor Annuity Requirements," the Participant's
Beneficiary (for that portion of his Account) is his Surviving
Spouse unless the Spouse consents as provided in that section or
in Plan section 9.4 to the Participant's designation of another
Beneficiary.
(2) Non-annuity requirements. If a Participant is
married and all or part of his Account is not subject to the
section in Plan article 8 entitled "Survivor Annuity
Requirements," the Participant's Beneficiary for such portion of
his Account is his Surviving Spouse unless the Spouse consents to
the Participant's designation of a different Beneficiary. The
Spouse's consent must be in writing, must acknowledge the effect
of the Participant's election, and must be witnessed by a Plan
representative or a notary public. With the Surviving Spouse's
consent, the provisions of subsection (a) are effective for that
Participant. If the Administrator is satisfied that the consent
described in this subsection may not be obtained because the
Participant has no Spouse, because the Spouse cannot be located,
or because of such other circumstances as applicable regulations
may prescribe, the provisions of subsection (a) are effective;
(c) Qualified Domestic Relations Order. To the
extent provided in a Qualified Domestic Relations Order, the
Alternate Payee recognized by such Order as the Participant's
Beneficiary shall be the Participant's Beneficiary at his death.
(d) No designation. To the extent the provisions of
subsection (c) do not apply, and if there is no valid Beneficiary
designation by the Participant (together with a valid spousal
consent described in subsection (b), if applicable) or if the
designated Beneficiary or Beneficiaries fail to survive the
Participant or are no longer in existence at his death,
Beneficiary means the Participant's Surviving Spouse, and if
there is no Surviving Spouse, the Participant's estate.
9.3 Payment Form for Death Benefits
(a) Cash Outs. If the vested balance in a deceased
Participant's Account does not exceed $3,500 (and at the time of
any prior distribution did not exceed $3,500), the Administrator
shall direct payment to the Beneficiary in a single lump sum. No
consent of the Beneficiary (including a Surviving Spouse) is
required before such distribution is made.
(b) Spouse's consent. If the value of a deceased
Participant's Account exceeds $3,500 (or at the time of any prior
distribution exceeded $3,500), the Surviving Spouse must consent
to any distribution made before the date on which the Participant
would have attained the later of Normal Retirement Age or age 62,
and the restrictions on immediate distributions are described in
Plan section 8.6 shall apply.
(c) Code 401(a)(9) restrictions. Death benefits
must begin or be paid within the time specified by, and in
accordance with, Code 401(a)(9), as described in Plan article 8
and applicable Treasury regulations.
(d) Beneficiary election. Subject to the preceding
subsections, any death benefits payable to a Beneficiary because
the Participant dies before his Annuity Starting Date may be paid
in any payment option allowed under Plan article 8 and elected by
the Beneficiary other than a Qualified Joint and survivor Annuity
with such Beneficiary's spouse. If the Participant did not
specify a payment option and the Beneficiary does not make a
payment election, any death benefits will be distributed to the
Beneficiary in a lump sum. If the Participant dies after his
Annuity Starting Date, benefits will be paid in the payment
method elected by the Participant and in effect at his death.
Despite the preceding, if the payment form in effect is an
installment option (not an annuity), the Beneficiary may elect to
receive a lump sum payment of the remaining installments, if any.
9.4 Qualified Preretirement Survivor Annuity
(a) Application. The provisions of this Plan section
apply only to a Participant whose Account (or subaccount) is
subject to the survivor annuity rules described in Plan section
8.5, and who has a Surviving Spouse at his death before his
Annuity Starting Date. The provisions of this Plan section apply
only to the portion of the Participant's Account that is subject
to the annuity rules.
(b) Form of payment. If such a Participant has a
vested interest in his Account and if he is married on the date
of his death, his Surviving Spouse shall be entitled to receive a
Qualified Preretirement Survivor Annuity unless an effective
waiver has been made pursuant to this Plan section. Subject to
the cash-out rules in Plan section 9.3, the Surviving Spouse
shall receive such benefit in the form of an annuity contract
providing payments for his or her lifetime unless such Surviving
Spouse elects otherwise. The Surviving Spouse may elect to have
the annuity contract distributed within a reasonable time after
the Participant's death.
(c) Explanation required. The Administrator must
provide each such Participant with a general written explanation
by first class mail or personal delivery of (1) the terms and
conditions of the Qualified Preretirement Survivor Annuity
coverage described in this section; circumstances under which the
qualified Preretirement Survivor Annuity be effective; (3) a
general description of the financial effect of selecting an
optional form of death benefit payment; (4) sufficient additional
information explaining the relative values of the optional forms
of benefit under the Plan; (5) (5) the Participant's right to
make, and the effect of, an election not to receive such
Qualified Preretirement Survivor Annuity coverage; (6) the rights
of the Participant's Spouse; and (7) the right to make, and the
effect of, a revocation of the waiver. The explanation must be
provided during whichever of the following periods ends last:
(1) the period beginning on the first day of the Plan
Year in which the Participant attains age 32 and ending
with the close of the Plan Year preceding the Plan Year
in which the Participant attains age 35.
(2) a reasonable period ending after the individual
becomes a Participant.
(3) a reasonable period after the Participant first
becomes subject to the survivor annuity requirements
under the Plan.
(4) a reasonable period ending after separation from
service in the case of a Participant who separates from
service before attaining age 35.
For purposes of paragraphs (2), and (3), a reasonable period is
the end of the two-year period beginning one year prior to the
date of the applicable event and ending one year after that date.
For purposes of paragraph (4), notice must be provided within the
two-year period beginning one year prior to separation and ending
one year after separation; and if the Participant later returns
to employment with the Employer, the applicable period for that
Participant shall be redetermined under the rules stated above.
(d) Waiver of annuity. After the Participant has
received the explanation required by subsection (c), the
Participant may elect in writing at any time during his election
period to waive the Qualified Preretirement Survivor Annuity
coverage and to have the other provisions of this Plan article 9
apply with respect to the payment of any death benefits to the
Surviving Spouse or to name a non-Spouse Beneficiary. A
Participant may revoke any such election at any time during his
election period. A Participant may elect, revoke, and elect
again as long as such actions are taken within the election
period and the Spouse's consent is obtained as required by
subsection (e), if applicable. For purposes of this Plan
section, a Participant's election period begins on the first day
of the Plan Year in which he attains age 35 and ends on the date
of his death. If a Participant's Termination Date occurs before
the beginning of such election period, his election period shall
begin on his Termination Date with respect to his Account balance
as of his Termination Date. If the Administrator announces and
provides the written explanation required by subsection (c), a
Participant may waive the Qualified Preretirement Survivor
Annuity coverage before the first day of the Plan Year in which
he attains age 35, but on the first day of the Plan Year in which
he attains age 35, his waiver becomes invalid and the Qualified
Preretirement Survivor Annuity coverage is automatically
reinstated; any new waiver on or after that date is subject to
the full requirements of this Plan section.
(e) Spousal consent. A Participant's election to
waive the Qualified Preretirement Survivor Annuity coverage shall
not take effect at his death unless, during his election period
(as described in subsection (c) above), his Spouse consented in
writing to such election and the election designates a specific
non-Spouse Beneficiary (including any class of Beneficiaries or
any contingent Beneficiaries) which may not be changed without
spousal consent (or the Spouse has expressly permitted the
designations to be changed without further consent). The
Spouse's consent must acknowledge the effect of the Participant's
election and must be witnessed by a Plan representative or notary
public. Despite the preceding sentence, the consent of a Spouse
is not required if it is established to the satisfaction of a
Plan representative that such written consent cannot be obtained
because there is no Spouse, because the Spouse cannot be located,
or because of such other circumstances as applicable Treasury
regulations prescribe. Any consent under this provision is valid
only with respect to the Spouse who signed the consent. Any
establishment that the consent of a Spouse cannot be obtained is
valid only with respect to that designated Spouse. A consent
that permits designations by the Participant without any
requirement of further consent by such Spouse must acknowledge
that the Spouse has the right to limit consent to a specific
Beneficiary and that the Spouse voluntarily elects to relinquish
such right. If a Participant's waiver of the Qualified
Preretirement Survivor Annuity is effective upon his death, any
amounts payable under the Plan on behalf of such Participant
after his death will be distributed as provided in Plan section
9.3.
ARTICLE 10
CLAIMS PROCEDURES
10.1 Claims Procedure
(a) Submission of claims. Claims for benefits under
the Plan must be submitted to the Human Resources Department
(prior to May 14, 1994, to the Administrator) or such persons as
it may designate in writing who shall have the initial
responsibility for determining the eligibility of any Participant
or Beneficiary for benefits. All claims for benefits shall be
made in writing and shall set forth the facts which such
Participant or Beneficiary believes to be sufficient to entitle
him to the benefit claimed. The claims reviewer may adopt forms
for the submission of claims for Plana benefits, in which case
all claims for benefits shall be filed on such forms.
(b) Response to claim. On receipt of a claim, the
claims reviewer must respond in writing within 90 days. If
necessary, the first notice to the claimant must indicate any
special circumstances requiring an extension of time for the
decision on the claim. The extension notice must indicate the
date by which the reviewer expects to give a decision. An
extension of time for processing may not exceed 90 days after the
end of the initial 90-day period.
(c) Denied claims. If a claim is wholly or partially
denied, written notice must be given to the claimant within that
time provided in subsection (b). If notice that a claim has been
denied is not furnished within that time, the claim is deemed
denied. An adverse notice must be written in a manner calculated
to be understood by the claimant and must include (1) each reason
for denial; (2) specific references to the pertinent provisions
of the Plan or related documents on which the denial is based;
(3) a description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why that material or information is needed; and
(4) appropriate information about the steps to be taken if the
claimant wishes to submit the claim for review.
10.2 Review of Denied Claims
(a) Review request. Within 60 days after receiving a
notice of a denied claim for benefits (or within 60 days of the
date a claim is deemed denied under Plan section 10.1(c)), a
claimant or his duly authorized representative may request in
writing to the Human Resources Director (or to the Administrator
prior to May 14, 1993) that the denied claim be reviewed. The
claimant may request that the Committee review the denied claim.
(b) Possible hearing. The Human Resources Director
(or prior to May 14, 1994, the Administrator) or the designated
reviewer must determine whether there will be a hearing. The
claimant and an authorized representative are entitled to be
present and heard at any hearing that is used as part of the
review. Before any hearing, the claimant or a duly authorized
representative may review all Plan documents and other papers
that affect the claim and may submit issues and comments in
writing. Any hearing must be scheduled to give sufficient time
for this review and submission, and the claimant must be advised
of the schedule and deadlines for submission.
(c) Time limitations on review. The decision on
review must be furnished to the claimant in writing within 60
days after the request for review is received, unless special
circumstances require an extension of time for processing. If an
extension is required, written notice of the extension must be
furnished to the claimant before the end of the 60-day period and
the decision then must be given as soon as possible, but not
later than 120 days after the request for review was received.
The decision on review must be written in a manner calculated to
be understood by the claimant and must include specific reasons
for the decision and specific references to the pertinent
provisions of the Plan or related documents on which the decision
is based. If the decision on review is not received by the
claimant within the time required in this subsection, the claim
is deemed denied on review.
(d) Allowances for committee review. If a denied
claim is reviewed by a committee that has regularly scheduled
meetings at least quarterly, the rules in this subsection govern
the time for the decision on review and supersede the rules in
subsection (c). If the claimant's written request for review is
received more than 30 days before a meeting of the committee, a
decision on review must be made at the next meeting after the
request for review has been received. If the claimant's written
request for review is received 30 days or less before a meeting
of the committee, the decision on review must be made at the
second meeting after the request for review has been received.
If an extension of time is required, written notice of the
extension must be furnished to the claimant before the extension
begins. If notice that a claim has been denied on review is not
received by the claimant within the time required in this
subsection, the claim is deemed denied on review.
(e) Determination final. Except for a written
request for review of a denied claim, all good-faith
determinations by the claim reviewer designated under this Plan
section 10.2 are conclusive and binding on all persons, and there
is no right of appeal.
ARTICLE 11
TOP-HEAVY PROVISIONS
11.1 Top-Heavy Years
The provisions of this Plan article 11 apply only for
Plan Years in which this Plan is a Top-Heavy Plan according to
the determination described in Plan section 11.2.
11.2 Top-Heavy Determination
(a) Procedures. The determination of whether this
Plan is a Top-Heavy Plan for a Plan Year beginning after December
31, 1983, is made according to Interests (as described in Plan
section 11.3) as of that Plan Year's Top-Heavy Determination
Date, based on the related Top-Heavy Valuation Date, according to
the procedures required in this Plan section.
(b) Top-Heavy Plan. If this Plan is not part of an
Aggregation Group, it is a Top-Heavy Plan if, as of the Top-Heavy
Determination Date, the Interests of all Key Employees in the
Plan exceed 60% of the combined Interests of all Participants in
the Plan.
(c) Top-Heavy group. If this Plan is part of an
Aggregation Group, the determination of whether this Plan and
each plan in the Aggregation Group is a Top-Heavy Plan is
determined according to the procedures required in this
subsection, applying each subparagraph in numerical sequence.
(1) As of each plan's Top-Heavy Determination Date,
separately determine the Interests of all Key Employees
in each plan in the Aggregation Group and the Interests
of all participants in each plan in the Aggregation
Group.
(2) The Interests of all Key Employees in each plan
that is part of the Aggregation Group are added to the
Interests of all Key Employees in each other plan in
the Aggregation Group. The Interests of all
participants in the plans are totaled in the same
manner. The Interests are determined as of the plans'
Top-Heavy Determination Dates that fall within the same
calendar year.
(3) The Aggregation Group is a Top-Heavy Group if,
after application of paragraph (2), the Interests of
all Key Employees in the Aggregation Group exceed 60%
of the combined Interests of all participants under all
plans in the Aggregation Group.
(4) A plan that is part of an Aggregation Group is a
Top-Heavy Plan for a plan year if it belongs to a
Required Aggregation Group that is part of a Top-heavy
Group for that plan year.
(d) Permissive aggregation. The Administrator may
create a Permissive Aggregation Group, but a qualified plan may
not be part of a Permissive Aggregation Group unless all
qualified plans within the Permissive Aggregation Group continue
to meet the requirements of Code 401(a)(4) and 410 with each
added qualified plan taken into account.
(e) Individuals disregarded. If, at any time during
the five-year period ending on the applicable Top-Heavy
Determination Date, an individual has not performed services for
an Employer or Related Company maintaining this Plan or a plan
that is a part of this Plan's Aggregation Group, the Interest of
such individual is not taken into account for purposes of this
section. Former Key Employees are excluded entirely under this
section.
11.3 Interests Measured
(a) Defined Contribution Plan. An individual's
Interest in a Defined Contribution Plan is equal to his account
balance for that plan (according to paragraphs (1) and (2)) for
the Top-Heavy Determination Date and (to the extent not already
included in determining his account balance) all distributions
(excluding amounts attributable to deductible employee
contributions) with respect to that individual from the account
during the five-year period ending on the Top-Heavy Determination
Date.
(1) For purposes of subsection (a), an individual's
account balance in a qualified plan not subject to Code
section 412 (that is, a non-pension plan) is his
actual account balance (excluding amounts attributable
to deductible employee contributions) on the Top-Heavy
Valuation Date and all contributions actually made
after the Top-Heavy Valuation Date but on or before the
Top-Heavy Determination Date. However, for such a
qualified plan's first plan year, the amount determined
in the preceding sentence must be added to the amount
of any contributions made after the Top-Heavy
Determination Date that are allocated as of a date in
that first plan year.
(2) For purposes of subsection (a), an individual's
account balance in a Defined Contribution Plan that is
subject to Code 412 (that is, a pension plan) is his
actual account balance (excluding amounts attributable
to deductible employee contributions) on the Top-Heavy
Valuation Date, all contributions due as of the Top-
Heavy Determination Date (that is, contributions that
would be allocated as of a date not later than the Top-
Heavy Determination Date, even though those amounts are
not yet required to be contributed), and__for the plan
year that contains the Top-Heavy Determination
Date__all amounts actually contributed (or due to be
contributed) after the Top-Heavy Valuation Date but
before the expiration of the extended payment period in
Code 412(c)(10).
(b) Defined Benefit Plan. An individual's Interest
in a Defined Benefit Plan is equal to the present value
(determined according to paragraph (1)) of his cumulative
accrued benefit for that Plan as of the Top-Heavy Determination
Date and (to the extent not already included in determining his
cumulative accrued benefit) all distributions from that plan with
respect to that individual during the five-year period ending on
the Top-Heavy Determination Date.
(1) There are no specific prescribed actuarial
assumptions that must be used for determining the
present value of a cumulative accrued benefit. The
assumptions used must be reasonable and need not relate
to the qualified plan's actual investment and other
experience. The assumptions need not be the same as
those used for minimum funding purposes or for purposes
of determining the actuarial equivalence of optional
benefits under the plan. For purposes of this Plan, if
a qualified plan does not specify the actuarial
assumptions it uses for determining the present value
of a cumulative accrued benefit, the assumptions used
must be those used in the qualified plan for purposes
of determining the actuarial equivalence of optional
benefits under the plan (or, if no optional benefits
are available, those used for minimum funding
purposes), except that the interest assumption must be
(as described in 29 C.F.R. section 2619.26(c)(2)(iv))
the PBGC interest rate for immediate annuities in
effect on the Top-Heavy Valuation Date as set forth in
Appendix B (as amended) to Part 2619 of 29 C.F.R. If a
qualified plan specifies the actuarial assumptions it
uses for determining the present value of its
cumulative accrued benefit, those assumptions govern
for purposes of this Plan as to that qualified plan's
cumulative accrued benefits.
(2) The present value must be computed using an
interest and a post-retirement mortality assumption but
consistent with paragraph (1). Pre-retirement
mortality and future increases in costs of living (but
not in the maximum dollar amount permitted by Code
415(d)) may also be assumed. However, assumptions as
to future withdrawal or future salary increases may not
be used.
(3) In the case of a Defined Benefit Plan that
provides a joint and survivor annuity within the
meaning of Code 401(a)(11) and 417 as a normal form
of benefit, for purposes of determining the present
value of the cumulative accrued benefit, the
participant's spouse may be assumed to be the same age
as the participant.
(4) Unless a Defined Benefit Plan provides for a
nonproportional subsidy according to paragraph (7), the
present value must reflect a benefit payable beginning
at the qualified plan's normal retirement age (or
attained age, if later). Benefits not relating to
retirement benefits, such as pre-retirement death and
disability benefits and post-retirement medical
benefits, must not be taken into account. Subsidized
early retirement benefits and subsidized benefit
options must not be taken into account unless they are
nonproportional subsidies according to paragraph (7).
(5) If a Defined Benefit Plan provides for a
nonproportional subsidy, the benefit should be assumed
to begin at the age at which the benefit is most
valuable.
(6) If two or more Defined Benefit Plans are being
tested, the actuarial assumptions used for all
qualified plans within an Aggregation Group must be the
same. If paragraph (1) of this subsection would
otherwise cause the preceding sentence to be violated,
the Administrator must select one qualified plan's
assumptions and use them as adjusted according to the
other paragraphs in this subsection.
(7) For purposes of this subsection, a subsidy is
nonproportional unless the subsidy applies to a group
of employees that would independently satisfy the
requirements of Code 410(b).
(c) Excluded individuals. Effective January 1, 1985,
if at any time during the 5-year period ending on the applicable
Top-Heavy Determinate Date, an individual has not performed any
services for an Employer or a Related Company maintaining this
Plan or a plan that is part of this Plan's Aggregation Group, the
Interest of such individual shall not be taken into account for
purposes of this Plan section.
11.4 Minimum Benefits for Top-Heavy Plans
(a) Superseding effect. For any Plan Year in which
this Plan is a Top-Heavy Plan, the provisions of this section
supersede conflicting Plan provisions regarding contributions and
allocations under the Plan.
(b) Aggregation of plans. For purposes of this
section, all Defined Contribution Plans that are part of an
Aggregation Group with this Plan are treated as one Defined
Contribution Plan, and all Defined Benefit Plans that are part of
an Aggregation Group with this Plan are treated as one Defined
Benefit Plan. According to the other provisions of this article,
the Administrator may elect to cause the Employers to satisfy the
minimum benefit requirements of this section in this Plan, within
any one or more of the other qualified plans in this Plan's
Aggregation Group, or by aggregating amounts from this Plan and
one or more of those other qualified plans.
(c) Eligible Non-Key Employees. Each Non-Key
Employee who is a Participant with regard to this Plan, who is
eligible for an allocation of contributions that the Employer or
a Related Company might make (or who would be eligible except
that after becoming a Participant, he subsequently fails to
complete 1,000 Hours of Service (or the equivalent) during the
Plan Year), and who has not separated from service at the end of
the Plan Year must receive the minimum benefit required by Code
416(c)(2), as described in this section. A Non-Key Employee may
not fail to receive such minimum benefit because he is excluded
from Plan participation (or is ineligible for an allocation under
the Plan) merely because his compensation is less than a stated
amount or merely because of a failure to make mandatory or
elective contributions under the Plan.
(d) Minimum benefit. This Plan will satisfy the
minimum benefit required by Code 416(c)(2) if the sum of
Employer contributions and forfeitures allocated to the Account
of each eligible Non-Key Employee Participant under the Plan for
each Plan Year in which the Plan is a Top-Heavy Plan equals the
amount in paragraphs (1) or (2), as applicable.
(1) The minimum benefit applicable to an eligible Non-
Key Employee Participant who does not participate in a
Defined Benefit Plan that is part of this Plan's
Required Aggregation Group is the lesser of
(A) 3% of such Non-Key Employee
Participant's Earnings for that Plan Year; or
(B) the highest percentage at which
Employer contributions and forfeitures are allocated
to any Key Employee for the Plan Year under this Plan
or any plan within this Plan's Required Aggregation
Group. The highest percentage will be determined as
the ratio of the sum of employer contributions made
(or required to be made without regard to waivers
granted pursuant to Code 412(d)) and forfeitures
allocated to such Key Employee's account divided by
his Earnings for the Plan Year. This subparagraph
does not apply if this Plan is part of a Required
Aggregation Group and if this Plan enables a Defined
Benefit Plan included in such Required Aggregation
Group to meet the requirements of Code 401(a) or
410.
(2) The minimum benefit applicable to an eligible Non-
Key Employee Participant who participates in a Defined
Benefit Plan that is part of this Plan's Required
Aggregation Group is 5% of his Earnings for that Plan
Year but only to the extent he does not receive the
Defined Benefit Plan minimum benefit required by Code
416(c)(1) in that Defined Benefit Plan.
(e) Offset for other allocations. An individual's
minimum benefit that is required from this Plan for a Plan Year
is equal to the full benefit described in paragraph (d) reduced
by the total of all allocations received for the Plan Year from
any Employer contributions or from forfeitures from any other
Defined Contribution Plan included in this Plan's Required
Aggregation Group.
(f) Excluded amounts. In determining a Non-Key
Employee's minimum-benefit entitlement and in determining whether
that entitlement has been satisfied, any Employer contribution
attributable to a matching contribution, salary reduction
agreement, or similar arrangement may not be taken into account
except to the extent expressly required by Code 416(c)(2)(C).
11.5 Top-Heavy Vesting
(a) Vested percentage. Except as provided in
subsection (d), the following table applies to all Accounts not
otherwise fully vested in any Plan Year for which this Plan is a
Top-Heavy Plan:
Years of Service Vested Percentage
Less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 or more 100%
(b) Years of service. For purposes of subsection
(a), years of service are computed in the same manner as service
for vesting purposes is otherwise computed under the Plan.
(c) No decrease in vested percentage. No decrease in
a Participant's vested percentage may occur in the event the
Plan's status as a Top-Heavy Plan changes for any Plan Year. If
the Plan's vesting schedule shifts into or out of the schedule
under subsection (a) for any Plan Year because of a change in the
Plan's top-heavy status, such a shift is an amendment to the
vesting schedule and the election of vesting schedules as
described in Plan article 3.
(d) Participants excepted. The provisions of this
Plan section do not apply to the Accounts of any Participant who
does not have an Hour of Service after the Plan has initially
become a Top-Heavy Plan, and such Participant's Account balance
attributable to Employer contributions and forfeitures, if any,
will be determined without regard to this section.
11.6 Contribution and Benefit Limitations
(a) Superseding effect. For any Plan Year in which
this Plan is a Top-Heavy Plan, the provisions of this section
supersede conflicting Plan provisions regarding limitations on
contribution and benefits under this Plan.
(b) Required adjustments. Paragraphs 2(B) and 3(B)
of Code 415(e) will be applied by substituting "1.0" for "1.25,"
and paragraph 6(B)(i) of Code 415(e) will be applied by
substituting "$41,500" for "$51,875" unless the requirements of
paragraphs (1) and (2) below are met with respect to the Plan.
(1) The minimum benefit requirement of Plan section
11.4(d)(1) is applied by substituting "4%" for "3%" and
the minimum benefit requirement of Plan section
11.4(d)(2) is applied by substituting "7.5%" for "5%."
(2) This Plan would not be a Top-Heavy Plan as
determined under Plan section 11.2 if "90%" were
substituted for "60%" each place it appears.
11.7 Top Heavy Definitions
For purposes of applying the provisions of this Plan
article 11, the following definitions apply:
(a) Key Employee means, as of any Determination Date,
any Employee, former Employee, or other individual (or
Beneficiaries of such person) who, for any Plan Year in the
Determination Period:
(1) has annual Earnings in excess of 50% of the
dollar amount under Code 415(b)(1)(A) (relating to
defined benefit plans) and is an officer of the
Employer;
(2) has Earnings in excess of the dollar limitation
under Code 415(c)(1)(A) (relating to defined
contribution plans) and is one of the Employees owning
one of the ten largest interests in the Employer;
(3) is a more than 5% owner of the Employer; or
(4) is a more than 1% owner of the Employer and has
Earnings of more than $150,000.
The constructive ownership rules of Code 318 (or the principles
of that section, in the case of an unincorporated Employer) will
apply to determine ownership in the Employer. The number of
officers taken into account under clause (1) will not exceed the
greater of 3 or 10% of the total number (after application of the
Code 414(q) exclusions) of Employees, but no more than 50
officers. The Administrator will make the determination of who
is a Key Employee in accordance with Code 416(i)(1) and the
regulations under that Code section.
(b) Non-Key Employee means an Employee who does not
meet the definition of Key Employee.
(c) Permissive Aggregation Group means the Required
Aggregation Group plus any other qualified plans maintained by
the Employer, which, when considered as a group, would continue
to satisfy the requirements of Code 401(a)(4) and 410. The
Administrator will determine the Permissive Aggregation Group.
(d) Required Aggregation Group means (1) each
qualified plan of the Employer in which at least one Key Employee
participates or participated at any time during the Determination
Period (regardless of whether the plan has terminated); and (2)
any other qualified plan of the Employer which enables a plan
described in clause (1) to meet the requirements of Code
401(a)(4) or 410. Any qualified plan maintained by an Employer
or Related Company which terminated within the 5-year period
ending on the Top-Heavy Determination Date must be taken into
account.
(e) Top-Heavy Valuation Date means
(f) Top-Heavy Determination Date means for any Plan
Year the last day of the preceding Plan Year or, in the case of
the first Plan Year of the Plan, the last day of that Plan Year.
ARTICLE 12
TRUSTEE; TRUST FUND
12.1 Trustee
(a) Appointment, removal. The Board shall have the
power to appoint the Trustee, to remove the Trustee at its
discretion upon 30 days' advance written notice, unless the
Trustee agrees to a shorter period, to appoint a successor to any
Trustee who has resigned or been removed, and to appoint a
co-Trustee or co-Trustees with the consent of the Trustee or
Trustees then serving. The appointment of any Trustee or
co-Trustee shall become effective upon such Trustee's written
acceptance of the appointment.
(b) Resignation. Any Trustee or co-Trustee may
resign by giving at least 30 days' advance written notice to the
Board, unless the Board agrees to a shorter time.
(c) General duties. The Trustee shall hold and
invest the assets of the Plan in the Trust Fund established
pursuant to the Trust Agreement. The Trustee shall further carry
out all duties assigned to it by the Plan or the Trust Agreement.
12.2 Trust Agreement
The Sponsor and the Trustee have established a Trust
Agreement providing for the administration of the Trust Fund.
The Sponsor may, from time to time, enter into such further
agreements with the Trustee or other parties and make such
amendments to the Trust Agreement as deemed necessary or
desirable to carry out the Plan, and may take any other steps and
execute any other instruments as the Sponsor deems necessary or
desirable to put into effect or carry out the Plan.
12.3 Trust Fund
(a) Trustee duties, generally. The Trustee shall
accept and receive all sums of money paid to it from time to time
by the Employers and shall hold, invest, reinvest, manage and
administer such monies and the increments, increases, earnings
and income thereon as a Trust Fund for the exclusive benefit of
those entitled to receive benefits under the terms of the Plan.
(b) General Trust Fund. The General Trust Fund is
the portion of the Trust Fund consisting of all Plan assets and
liabilities which have not been separated for investment purposes
into a Segregated Fund. All assets held in the General Trust
Fund are invested together as one fund, except for any assets
which may be segregated for investment purposes and invested in a
Segregated Fund.
(c) Segregated Funds. A Segregated Fund is a group
of assets which have been segregated from the General Trust Fund
for separate investment as a common fund for a specific purpose
under this Plan. Segregated Funds may be established under other
Plan provisions. The Administrator may also establish any other
Segregated Funds from time to time for any purpose it deems
desirable or appropriate under this Plan, provided that
participation in each fund is made available on a
nondiscriminatory basis to all Participants (and Beneficiaries)
who are similarly situated. The Administrator may establish and
enforce any rules it deems necessary or appropriate for the
convenient administration of the Segregated Funds and of the Plan
generally. Each Segregated Fund is to be charged with all fees
and expenses directly attributable to that Fund, as well as any
portion of the general administrative fees and expenses of the
Plan that the Administrator determines to be equitable.
(d) Separate Investment Funds
(1) Establishment. The Administrator may direct the
Trustee from time to time to establish one or more Segregated
Funds to be known as Separate Investment Funds, with defined
investment objectives. The Participants' Accounts are to be
invested among the General Fund and any Separate Investment Funds
made available from time to time in the proportions which each
Participant may direct by written election filed with the
Administrator.
(2) Participant elections. All Participants are
eligible to make investment elections on the first day of each
calendar quarter (January 1, April 1, July 1, and October 1), or
more frequently if permitted by the Sponsor using forms provided
by the Administrator. New investment elections and changes to
prior elections are to be given effect as soon as
administratively feasible following the Participant's election
based on the Participant's Account at that time. Effective June
24, 1994, the provisions of Plan article 5 identify the Separate
Investment Funds available for election by Participants and the
rules relating to Participants' investment directions.
(e) Investment Manager. The Committee may, as a
named fiduciary for this purpose, appoint an Investment Manager
for all or part of the Trust Fund. In that event, the Investment
Manager shall have complete control and responsibility over all
matters pertaining to the investment of the assets under its
control, including brokerage, if any, and timing of Stock
purchases pursuant to the terms of the Plan.
12.4 Valuation of Accounts
(a) At each Valuation Date. As of each Valuation
Date, the Trust Fund shall be valued on the basis of the current
fair market value of its assets and liabilities. Each
Participant's Account (and each respective subaccount) is to be
adjusted by the Administrator as of each Valuation Date to
reflect its proportionate share of investment adjustments for any
funds in which it participates, and payments, transfers,
withdrawals and contributions occurring since the last Valuation
Date, as follows:
(1) Any distribution made to or on behalf of a
Participant since the last Valuation Date is to be
deducted from the Participant's Account from which such
distribution was made.
(2) The value of all monies, securities and other
property in each Participant's Account shall be valued
by the Trustee at the then fair market value. In
determining such value, all income or loss calculated
under the method of accounting of the Trust shall be
included and all administrative expenses allocated to
such Account shall be deducted.
(3) Each Participant's Account shall be increased by
that portion of the contributions and forfeitures, if
any, allocated to his Account.
(4) To the extent that funds attributable to a
Participant's Account were transferred since the last
Valuation Date or are to be transferred between
investment funds, the Account from which the funds were
transferred shall be decreased and the Account to which
the funds were transferred shall be increased.
Despite the preceding, the Administrator may alter the
valuation procedures, in its discretion, in any manner
it deems necessary or desirable to achieve an equitable
allocation among the Accounts, but no such procedure
shall discriminate in favor of Highly Compensated
Employees.
(b) Crestar Stock Fund. Any Stock acquired by the
Trustee during the period between Valuation Dates shall be
credited to each Participant's Account on the Valuation Date
coinciding with or next following such acquisition. For purposes
of determining the number of shares of Stock and cash credited to
a Participant's Account on any date other than a Valuation Date,
the number of shares of Stock and cash credited to the
Participant's Account on the last preceding Valuation Date shall
be used. Such value so determined shall be reduced based on net
withdrawals and distributions subsequent to such Valuation Date
and increased by any subsequent contributions on behalf of the
Participant and any transfers to the Crestar Stock Fund.
12.5 Annual Accounting. The Trustee shall, as soon as
practicable after the end of each Plan Year, render to the
Sponsor and the Administrator an accounting for the Plan and the
Trust Fund.
12.6 Statement of Participants' Accounts. The Administrator
shall, as soon as practicable after the last Valuation Date of
each Plan Year, deliver to the Human Resources Director for
distribution to each Participant a statement setting forth the
Account of each Participant in the Plan as of that Valuation
Date. In the discretion of the Administrator, statements may be
provided to Participants more frequently, such as semi-annually
or quarterly.
ARTICLE 13
FIDUCIARIES; PLAN ADMINISTRATION
13.1 Named Fiduciaries; Allocation of Fiduciary
Responsibility
(a) Named Fiduciaries. The Sponsor and the
Administrator are the Named Fiduciaries of the Plan within the
meaning of ERISA 402. Only the Sponsor may designate other
Named Fiduciaries not named in this Plan.
(b) Delegation of responsibility. All
responsibilities not specifically delegated to another fiduciary
remain with the Sponsor including designating all additional
fiduciaries not named in this Plan or the Trust Agreement. The
Sponsor has the power to delegate fiduciary responsibilities not
specifically delegated by the terms of this Plan or the Trust
Agreement and to designate fiduciaries and nonfiduciaries to
carry out fiduciary responsibilities in order to provide for the
orderly operation and administration of the Plan. Any
allocation, delegation, or other assignment of duties previously
made is hereby confirmed and shall continue until such time as it
is revoked, modified, or altered by the Sponsor. The Sponsor may
permit any person to whom any authority or control has been
granted to further allocate, delegate, or assign any or all such
duties to such other person or entity as the Sponsor may specify.
A person or entity serving as a fiduciary with regard to the Plan
may serve in more than one fiduciary capacity and may employ one
or more persons to render advice with regard to his fiduciary
responsibilities hereunder. To the extent allowed by law, each
fiduciary's responsibility is limited to the duties allocated or
designated to it.
(c) Shared responsibility. This Plan and the Trust
Agreement allocate to each fiduciary the individual
responsibilities assigned. Responsibilities are not shared by
fiduciaries unless the sharing is provided specifically in the
Plan or the Trust Agreement. Whenever one fiduciary is required
by the Plan or the Trust Agreement to follow the directions of
another fiduciary, the two have not been assigned to share the
responsibility. The fiduciary giving directions bears the sole
responsibility for those directions and the responsibility of the
fiduciary receiving those directions is to follow those
directions as long as on their face the directions are not
improper under applicable law.
13.2 Administrator
(a) Appointment. The Sponsor may appoint one or more
persons to serve as Administrator at the Sponsor's pleasure.
Persons appointed as Administrator may include, but are not
limited to, Employees, Participants, or the Trustee. During any
period when no person is currently serving as Administrator, the
Sponsor is charged with the Administrator's duties. When two or
more persons are serving concurrently as Administrator, they are
jointly responsible for all of the Administrator's duties, except
to the extent specific duties may have been allocated between.
(b) Resignation, removal. A person serving as
Administrator may resign at any time by giving advance written
notice to the Sponsor. The Sponsor may, in its discretion,
remove any person serving as Administrator, with or without
cause, by giving that person advance written notice of his
removal. Any individual who is an employee of an Employer when
appointed as Administrator is automatically removed at his
Termination Date without the necessity of any notice, unless his
continued appointment is expressly requested by the Sponsor. The
Sponsor shall notify the Trustee of all appointments,
resignations or removals of Administrators.
(c) Powers and duties. The Administrator shall be
responsible for the operation and administration of the Plan,
except to the extent its duties are allocated to or assumed by
other persons or entities under the Plan. The Administrator must
administer the Plan by its terms and has all powers necessary to
do so. The Administrator's powers and responsibilities are to be
exercised in the Administrator's sole discretion and include, but
are not limited to the following:
(1) to adopt rules and procedures it deems desirable
for the efficient administration of the Plan as long as
those rules, regulations and procedures apply uniformly
to all persons under similar circumstances;
(2) to determine all questions arising in the Plan's
administration, interpretation and application,
including questions about the status and rights of
Employees, Participants, Beneficiaries, and any other
persons;
(3) to decide any dispute arising under the Plan, but
no Administrator may participate in any matter
involving any questions relating solely to his own
participation or benefits under the Plan;
(4) to advise the Sponsor about the known future need
for funds to be available for distribution in order
that the Trust Fund investments may be established
accordingly;
(5) to correct defects, supply omissions, and
reconcile inconsistencies to the extent necessary to
effectuate the Plan;
(6) to advise the Sponsor of the maximum deductible
contribution to the Plan for each fiscal year;
(7) to direct the Trustee concerning all payments
which are to be made out of the Trust Fund pursuant to
the Plan's provisions;
(8) to maintain all bookkeeping accounts necessary
under the Plan for keeping track of each Participant's
interest in the Plan, including the source of all
contributions, the vested interest, and applicable
Account adjustments, except to the extent that the
Trustee has, by written agreement with the Sponsor,
assumed responsibility for maintaining any part or all
of the Participants' Accounts;
(9) to confer with the Trustee and the Sponsor on the
settling of any claims against the Trust Fund;
(10) to file all reports with government agencies,
Participants and other parties as may be required by
law, whether such reports are initially the obligations
of the Sponsor, an Employer, or the Plan;
(11) to maintain all records necessary to determine
the rights and interests of any Employee under this
Plan, including his eligibility, Participant status,
service and Beneficiaries; and
(12) to have all other powers necessary or desirable
to discharge its duties as Administrator.
(d) Administrator action conclusive. Any action on
matters within the Administrator's discretion shall be final and
conclusive except as provided in Plan article 10 regarding review
of denied claims.
13.3 Duties of the Benefits Department
Effective May 14, 1993, the Benefits Department of
Crestar Bank is responsible for handling the day-to-day
operations of the Plan including, but not limited to: the
enrollment of Participants; the distribution of booklets, notices
and other information regarding the Plan; maintaining Beneficiary
designation forms; explaining the optional forms of payments that
may be elected by a Participant under the Plan; processing
election forms executed by Participants and Beneficiaries and any
other administrative forms required under the Plan; and
communicating all other matters relating to participation and
entitlement to benefits to such individuals or entities or the
Committee as may be necessary to enable them to discharge their
duties under the Plan in a uniform, equitable and
nondiscriminatory manner with respect to Participants or
Beneficiaries under similar circumstances. The Benefits
Department shall also review and monitor the performance of
persons and entities appointed by the Administrator or the
Committee to serve in various capacities with regard to the Plan
and report its findings annually to the Committee.
13.4 Benefits Administrative Committee
(a) Effective date. The provisions of this Plan
section are effective May 14, 1993.
(b) Membership. The chief executive officer of the
Sponsor shall appoint a Benefits Administrative Committee that
shall serve pursuant to this Plan section. The chief executive
officer shall have the power to remove a member of the Committee
at his discretion. Any member of the Committee may resign by
giving notice in writing to the chair of the Committee or the
chief executive officer at any time or may be removed at any time
and for any reason by the chief executive officer. In the event
of a removal or resignation, or if for any other reason there are
less than three Committee members serving at any time, the chief
executive officer shall, as soon as practicable, appoint a new
member or members so that there shall be a minimum of three
members. If at any time there are less than three members of the
Committee, the remaining member or members shall have authority
to act as the Committee.
(c) Officers. The chief executive officer of the
Sponsor shall appoint a chair of the Committee from among its
members. The Committee may appoint a secretary to keep a record
of the acts of the Committee. The secretary may, but need not,
be a member of the Committee. The secretary may perform any and
all purely ministerial acts which may be delegated to the
secretary by the Committee.
(d) Meetings, actions. The Committee may, but need
not, call or hold formal meetings. The Committee acts by a
majority of its members in office at the time and may take action
either by a vote at a meeting or in writing without such a
meeting. The action of the majority shall constitute the action
of the Committee and shall have the same effect for all purposes
as if assented to by all members in office at the time. In the
event of a deadlock or other situation preventing majority
agreement, the chief executive officer of the Sponsor or his
delegate shall decide the matter. All decisions of the Committee
shall be evidenced in writing. All acts and determination of the
Committee shall be duly recorded by the secretary and all such
records, together with such other documents as may be necessary,
shall be preserved by the secretary. Such records and documents
hall at all times be open for inspection and for the purpose of
making copies by any person designated by the Sponsor. The
Committee shall provide such information, resulting from the
application of its responsibilities under the Plan, as may be
needed by the individuals, entities or committees providing
services to the Plan to enable them to effectively discharge
their duties.
(e) Authorized representative. The Committee may
authorize any one or more of its members or its secretary to sign
any documents on its behalf or to perform solely ministerial
acts, but such person shall not exercise any discretion over
matters delegated to him without obtaining the concurrence of a
majority of the members. The Committee must evidence this
authority by an instrument signed by all its members or by a
resolution passed by the Committee. The Trustee and each
Employer must accept and rely upon any document executed by such
authorized individual as representing action of the Committee
until the Committee files a written revocation of that
authorization with the Trustee.
(f) Powers of the Committee. The Committee
shall have control of all duties specifically allocated to it
under the Plan or which are delegated to it by the Administrator
and shall have all necessary powers to carry out its duties.
including the following, which shall be exercised in the
Committee's discretion:
(1) to construe the Plan and to determine all
questions about the Plan; and
(2) to review and recommend all proposed action
regarding substantial changes in the Plan which must be
passed on by the Board or the Executive Committee and
make its recommendations regarding such proposals to
the appropriate entity.
In exercising its duties, the Committee shall at all times act in
a uniform, equitable and nondiscriminatory manner in construing
provisions of the Plan as they relate to Participants and
Beneficiaries under similar circumstances. Notwithstanding its
powers granted hereunder, the Committee shall have no power to
modify in any way any provision of the Plan.
(g) Agents and counsel. The Committee may engage
agents to assist it in its duties, and may consult with counsel,
who may be counsel for the Sponsor, with respect to the meaning
or construction of this document and its obligations hereunder or
with respect to any action, proceeding, or question of law
related to the Plan.
(h) Compensation. The Employers shall pay the
reasonable expenses incurred by the Committee in carrying out its
duties and responsibilities under the Plan, including reasonable
legal and accounting expenses. Should the Employers fail to pay
these expenses, they shall be paid by the Trustee out of the
Trust Fund. The Sponsor agrees to supply such stenographic or
administrative assistance as may be necessary to assist Committee
members in the performance of their duties and responsibilities.
(i) Rules and regulations. The Committee may
formulate rules and regulations not inconsistent with the purpose
of the Plan as it may deem necessary to enable it to carry out
its duties.
(j) Indemnification. The Committee members
shall be indemnified by the Employers for any liability and
expenses incurred in respect of any suit or proceeding the
Committee or its members may incur in connection with the
performance of their duties under the Plan.
(k) Plan participation. A member of the Committee
who is also a Participant in the Plan shall abstain from any
action which directly affects him specifically as a Participant.
In the event of an abstention, matters shall be decided by the
remaining members of the Committee. Nothing herein, however,
shall prevent any member of the Committee who is also a Plan
Participant or Beneficiary from receiving any benefit to which he
may be entitled, so long as the benefit is computed and paid on a
basis that is consistently applied to all other Participants or
Beneficiaries under similar circumstances.
13.5 Funding Policy. The Administrator shall establish a
funding policy and method to carry out the objectives of the
Plan. In formulating and maintaining such policy, the
Administrator shall consult with such advisors when and as it
deems necessary to review the Plan's liquidity needs, the
anticipated level of annual contributions and any material
changes occurring during the year.
13.6 Expenses - Compensation. Each Employer shall pay its
share of the reasonable expenses incurred in the administration
of the Plan, including reasonable legal and accounting expenses,
compensation for services rendered to the Plan, and reimbursement
of expenses actually and properly incurred by persons who are not
otherwise compensated for providing services to the Plan, and the
Employers may be reimbursed by the Trustee from the Trust Fund
for any reasonable administrative expenses that may be paid from
Plan assets. If any Employer should, for any reason, fail to pay
administrative expenses, they shall be paid by the Trustee out of
the Trust Fund. No employee of any Employer shall be entitled to
compensation for his services with respect to the Plan other than
his normal compensation received as an employee of an Employer.
13.7 Directions to Trustee. All directions from the
Administrator to the Trustee shall be in writing from either the
chief executive officer of the Sponsor, the Director of Human
Resources, or the Chair of the Committee or such other persons as
may be appointed in writing by such persons. The Trustee may
rely on directions from such persons and shall act in accordance
therewith, unless it knows or should know that the directions
constitute a breach of such person's or its own obligations under
the Plan.
13.8 Indemnification; Limitation on Liability
As permitted by law and as limited by any written
agreement between the Employer and a non-Trustee fiduciary, the
Employer must indemnify each Employee who serves as a non-Trustee
fiduciary (but not a corporate fiduciary) against expenses,
claims, and liability arising out of being a fiduciary, except
expenses, claims, and liability arising out of the fiduciary's
own gross negligence, wilful misconduct, or bad faith. The
Employer may obtain insurance against acts or omissions of a non-
Trustee fiduciary. If the Employer fails to obtain insurance to
indemnify, an individual non-Trustee fiduciary may obtain
insurance and be reimbursed according to the Plan, as permitted
by law. At its own expense, the Employer is entitled to defend
or maintain, either in its own name or in the name of the
fiduciary, any suit or litigation arising under this Plan with
respect to any individual non-Trustee fiduciary.
13.9 Exercise of Discretion by Fiduciaries
(a) Exclusive discretion. In discharging the duties
assigned to it under the Plan, the Administrator, the Committee,
the Director of Human Resources, and the Benefits Department and
any other fiduciary have the discretion to interpret the Plan;
adopt, amend, and rescind rules and regulations pertaining to
their duties under the Plan; and to make all other determinations
necessary or advisable for the discharge of their duties under
the Plan. The express grant in the Plan of any specific power to
a fiduciary with respect to any duty assigned to it under the
Plan must not be construed as limiting any power or authority of
the fiduciary to discharge its duties. Each fiduciary's
discretionary authority is absolute and exclusive if exercised in
a uniform and nondiscriminatory manner with respect to similarly
situated individuals. Subject to the Plan's appeals procedures
for denied claims, a fiduciary's decisions made in good faith are
binding upon all parties and persons concerned, including but not
limited to all persons having or claiming any interest or
benefits under this Plan.
(b) Nondiscrimination. The fiduciaries must exercise
their discretion and make their determinations in a uniform and
consistent manner for all Participants and Beneficiaries under
similar circumstances and may not permit discrimination in favor
of Highly Compensated Employees. The fiduciaries must discharge
their duties with respect to the Trust in the manner prescribed
by Title I, Part 4, of ERISA. To the extent appropriate, any
discretionary action taken under this Plan must be consistent
with any prior discretionary action taken under similar
circumstances.
13.10 Bonding of Fiduciaries
Every Trustee or other fiduciary must be bonded to the
extent, if any, required by ERISA. If the law requires bond, the
Trustee or Administrator must secure the minimum (or any greater
amount set by the Employer) and obtain reimbursement pursuant to
the terms of the Plan.
ARTICLE 14
PROVISIONS CONCERNING SPONSOR AND EMPLOYERS
14.1 Duties of Employers
Each Employer agrees: (1) to make all Employer
contributions and pay all expenses incurred under the Plan with
respect to its Employees (unless paid or reimbursed to the
Employer from the Trust Fund); (2) to maintain all personnel
records necessary for the Plan's proper administration; (3) to
provide on a timely basis all notices, records and information
required for Plan administration purposes; (4) to abide by the
terms of the Plan and the Trust Agreement; and (5) that the
Sponsor and the Administrator and other fiduciaries under this
Plan shall act on the Employer's behalf as set forth in this
Plan.
14.2 Separate Amendments by an Employer
By action of its board and with the approval of the
Sponsor's Board of directors, any Employer may amend this Plan in
any manner which affects the Plan's application only as to that
Employer and its Employees, provided that the amendment would
comply with the restrictions in Plan article 15 if made by the
Sponsor and such amendment would not cause the Plan to lose its
qualified status under the applicable provisions of the Code.
Any such amendment must be made in the form of an amendment to
the Plan document and executed by the appropriate officers of
both the Sponsor and that Employer.
14.3 Termination of Employer's Participation
Any Employer who has Employees covered by this Plan ma
withdraw as an Employer only with the express approval of the
Sponsor's Board of Directors as evidenced by a Board resolution.
An Employer will also cease to be an Employer (and its Employees
will cease to be Covered Employees) when any of the following
events occur:
(a) When the Sponsor, in its discretion, terminates
that Employer's right to participate a an Employer under the
Plan, provided that the Sponsor gives written notice of that
termination to the affected Employer at least 60 days prior to
the effective date of such termination (unless the parties agree
to a shorter notice period);
(b) Upon the Employer's consolidation, merger,
reorganization or the sale of substantially all of its property,
unless the successor entity resulting from that transaction
either qualifies as a Related Company of the Sponsor or any other
Employer (ignoring that entity's relationship with the Employer
affected by that transaction) or contractually assumes (with the
approval of the Sponsor's Board of Directors) that Employer's
obligations under this Plan at the time the transaction occurs;
(c) Upon the Employer's legal dissolution or
liquidation (other than as part of its consolidation, merger or
reorganization) or a judicial determination that it is bankrupt
or insolvent; or
(d) When that Employer's Board of Directors, by
written resolution, terminates its continued participation in,
and its further responsibilities as an Employer under this Plan,
provided that the Employer gives the Sponsor written notice of
that termination at least 90 days prior to that termination's
effective date (unless the parties agree to a shorter notice
period) and such termination is approved by the Sponsor's Board
of Directors.
Upon termination of an Employer' participation under this
section, the Trustee is to dispose of that portion of the Trust
Fund assets attributable to the Accounts of the affected
Participants in the manner directed by the Sponsor, subject to
Plan article 15.
ARTICLE 15
AMENDMENT, TERMINATION, AND MERGER
15.1 Amendment
(a) Authority to amend. The Board of Directors of
the Sponsor or any executive committee of the Board shall have
the right to modify, alter, or amend the Plan or the Trust
Agreement in whole or in part by a majority vote of its members
at a meeting, by unanimous consent in lieu of a meeting or in any
other manner permissible under applicable state law. In
addition, the Sponsor's Board or any executive committee of the
Board may delegate to an appropriate officer, or officers of the
Sponsor or an Employer, or committee, all or part of the
authority to amend the Plan or Trust Agreement.
(b) Restrictions on amendments. An amendment
may be made retroactively if it is necessary to bring the Plan or
the Trust Agreement into conformity with the Code and Code
regulations or with any other statute or regulation applicable in
order to permit an Employer to deduct for income tax purposes all
(or as much as the law might allow) money and property
contributed to the Trust Fund. No amendment to the Plan or the
Trust Agreement may increase the duties, powers, and liabilities
of the Trustee, the Administrator, or any other fiduciary under
the Plan without its written consent nor may any amendment affect
adversely the benefits of persons who have retired or the
benefits that have accrued prior to the effective date of such
action. Except as otherwise allowed by Treasury regulations, no
amendment may eliminate or reduce an early retirement benefit or
a retirement-type subsidy (as defined in applicable Treasury
regulations) or eliminate an optional form of benefit with
respect to benefits attributable to service before the amendment.
No amendment may provide for the use of funds or assets held
under this Plan and Trust other than for the exclusive benefit of
Participants and Beneficiaries or for defraying the reasonable
expenses of administering the Plan, except as provided in Plan
section 4.7 or this Plan article.
15.2 Termination of Plan
(a) Authority to terminate. While the Sponsor and
each other Employer expects to continue the Plan indefinitely,
continuance of the Plan is not assumed as a contractual
obligation. The Board of Directors of the Sponsor or any
executive committee of the Sponsor's Board shall have the right
to terminate the Plan and Trust with respect to all Employers at
any time and for any reason, in whole or in part, by a majority
vote of its members at a meeting, by unanimous consent in lieu of
a meeting, or in any other manner permissible under applicable
state law. In addition, the Board or any executive committee of
the Board may delegate to an appropriate officer, or officers of
the Sponsor or an Employer, or committee, all or part of the
authority to terminate the Plan. Each Employer other than the
Sponsor shall have the right to withdraw from the Plan as
provided in Plan article 14. A withdrawal by one Employer (other
than the Sponsor) does not terminate the Plan with respect to any
other Employer.
(b) Automatic termination. The Plan shall terminate
automatically on the bankruptcy, insolvency, or legal dissolution
of the Sponsor or on the termination of business by the Sponsor
without a successor.
(c) Notice. Notice of a termination by one Employer
or by the Sponsor must be given to the affected Participants, the
Administrator, the Trustee, the Employers, and all necessary
authorities. If any authority's approval is necessary,
termination is effective according to that approval; otherwise,
the date of the notice or a later date contained in the notice is
the termination date for purposes of this Plan article.
(d) Discontinuance of contributions. The Employers
have the right at any time to reduce or discontinue their
contributions to this Plan. If there is a complete
discontinuance of contributions, all Accounts that are then
forfeitable become fully vested. A discontinuance of Employer
contributions is not a termination of the Plan unless the Sponsor
gives the notice described in subsection (c).
(e) Rights of Participants. If this Plan and Trust
should be terminated (in whole or in part) pursuant to the
provisions of this Plan article and determined in a manner
consistent with legal authorities, each Participant (in the case
of a complete termination) or each affected Participant (in the
case of a partial termination) shall be fully vested in his
accrued benefit under the Plan as of the date of such
termination, to the extent then funded. In the event of a Plan
termination by the Sponsor, no further contributions shall be
made to the Plan.
15.3 Plan Termination Distributions
(a) Withdrawing Employer. When the Administrator
receives notice from an Employer that it intends to withdraw from
or terminate its participation in the Plan, the Administrator
shall determine the liabilities of the Plan with respect to such
Employer's Employees participating in the Plan and shall
establish the amount of the Trust Fund to be allocated to such
Employees. As of the actual date of such Employer's withdrawal
or termination, the Trustee shall revalue the portion of the
Trust Fund allocated pursuant to the preceding sentence and
allocate any previously unallocated contributions, forfeitures,
realized and unrealized appreciation or depreciation, income or
loss of the Trust Fund to the Accounts of the Participants
affected by the termination. After such allocation, the Trustee
shall transfer assets of the Trust Fund representing the portion
of the Trust Fund allocated to the withdrawing Employer's
participation in the Plan to the trustee designated by the
withdrawing Employer and such assets shall thereafter be held and
invested as a separate trust fund pursuant to the terms of the
plan adopted by the withdrawing Employer. If the withdrawing
Employer is not adopting another plan with respect to its
Employees, the Administrator must determine in accordance with
subsection (c) whether the Accounts of affected Participants may
be immediately distributed in a lump sum or must continue to be
held in the Trust and distributed in accordance with Plan
sections 7, 8, and 9.
(b) Complete Plan termination. If the Plan
terminates as to all Employers, the Administrator must direct the
Trustee to allocate the assets of the Trust Fund (exclusive of
any Suspense Account established pursuant to Plan article 4)
among the Participants and Beneficiaries as required by ERISA.
After providing for payment of any expenses properly chargeable
against the Trust Fund, and confirming compliance with all other
precedent requirements of law, the Administrator must determine
in accordance with subsection (c) whether the Accounts of
Participants may be immediately distributed or must continue to
be held in Trust.
(c) Liquidation of Trust. Unless the Sponsor
specifies otherwise, when the Plan terminates as to one Employer
or as to all Employers, the Administrator must determine whether
immediate or deferred liquidation of the Trust Fund is in the
best interests of affected Participants and is in compliance with
applicable Code provisions for qualified plans. The
Administrator must communicate that decision to the affected
Participants and the Trustee, indicating the expected liquidation
date or the terms under which the Trust Fund will continue. If
all of the Employers have withdrawn from participation in the
Plan or the Sponsor has terminated the Plan with respect to all
Employers, until actual liquidation of the Trust Fund, the
Administrator must assume all powers and duties of the Sponsor
and other Employers (except duties relating to contributions in
each Plan Year). After such termination date, administrative
expenses must be paid from the Trust Fund unless at least one of
the Employers affirmatively agrees to pay the expenses. Despite
the preceding, if the Sponsor or another Employer or a Related
Company establishes or maintains another Defined Contribution
Plan (other than an employee stock ownership plan as defined in
Code 4975(e)(7)), Trust Fund assets may not be liquidated and
distributed to Participants and their Beneficiaries if prohibited
under Code 401(k) and any other Code provisions restricting such
distributions on Plan termination.
(d) No further rights. In accordance with the
Administrator's directions, the Trustee must continue the Trust
Fund, transfer or deliver property to the Participants or
Beneficiaries, or transfer property to another qualified plan,
either without endorsement or endorsed as the Administrator
directs. The Trust Fund is the only source from which a claimant
may satisfy any claim based on a Participant's Account or on his
entitlement to assets; he has no other recourse. A Trustee will
have no further right, title, or interest in property distributed
in accordance with the Administrator's directions. After all
distributions are completed and the Trust Fund is liquidated,
each Trustee is discharged from all obligations under the Trust
Agreement. Except by statute, no Participant or Beneficiary has
any further right or claim.
15.4 Merger, Consolidation, or Succession
(a) Continuation by successor. If an Employer is
merged or consolidated with any other business or is succeeded by
a corporation or other legal entity that acquires substantially
all the Employer's assets, the surviving or purchasing
corporation or legal entity may elect, with the consent of the
Sponsor's Board, to continue this Plan as to that Employer's
Participants.
(b) No continuation. If the Sponsor is liquidated or
merged or consolidated with another company or other legal entity
and the Plan is not continued, the Administrator or a person
designated by the Sponsor succeeds to the functions of the
Sponsor and its Board under the Plan and the Trust Agreement,
including the function of naming a new Administrator. If the
Plan has no Administrator and none has been designated as
provided in this subsection, the Trustee may appoint an
Administrator.
(c) Restrictions. No merger or consolidation with,
or transfer of assets or liabilities to this Plan or from this
Plan to any other qualified plan shall be made, unless each
Participant would receive immediately after such event a benefit
(determined as if the Plan had terminated at that time) that is
equal to or greater than the benefit he would have been entitled
to receive under the Plan immediately before such event had the
Plan terminated at that time.
ARTICLE 16
MISCELLANEOUS
16.1 Exclusive Benefit
This Plan has been created for the exclusive purpose of
providing benefits to Participants and their Beneficiaries and
defraying reasonable expenses of administering the Plan and
except as permitted by law, under no circumstances shall any
corpus or income of the Trust Fund or any Plan assets be used for
or diverted to any other purpose. Despite the preceding, the
restrictions of this section shall not prevent the return to an
Employer of any Employer contributions in accordance with the
terms of this Plan.
16.2 No Contract or Inducement
The Plan shall not be deemed to constitute a contract
between any Employer and an Employee, or to be consideration or
inducement for, the employment of any Employee by any Employer.
Nothing contained in the Plan shall be deemed to give any
Employee the right to be retained in the service of any Employer
or to interfere with the rights of such Employer to discharge or
to terminate the service of any Employee at any time without
regard to the effect such discharge or termination may have on
any rights under the Plan.
16.3 No Guarantees
Neither the Trustee, the Sponsor, nor any other Employer
in any way guarantees the payment of any benefit or amount that
may become due under the Plan to any Participant or retired
Participant, or to the legal representative or Beneficiary of any
such Participant or retired Participant. Neither the Trustee,
the Sponsor, nor any other Employer or fiduciary guarantees the
payment by any insurance company of any benefit or amount that
may be due under any policy or contract. Each Participant,
retired Participant, or legal representative or Beneficiary of
any deceased or retired Participant, shall look solely to the
assets of the Trust Fund for the payment of benefits under the
Plan and, in the case of an annuity contract or policy, solely to
the insurer issuing the contract or policy.
16.4 Non-Alienation of Benefits
(a) Prohibitions. Except as specifically provided in
Code 401(a) and subsection (b), no benefit payable under the
Plan will be subject in any manner to anticipation, assignment,
garnishment, or pledge, and any attempt to anticipate, assign,
garnish or pledge the same will be void. No benefits will be in
any manner liable for or subject to the debts, liabilities,
engagements or torts of any Participant. If any Participant is
adjudicated bankrupt or attempts to anticipate, assign, or pledge
any benefits, then, in the discretion of the Committee, such
benefits will cease, and the Committee will have the authority to
cause the same or any amount thereof to be held or applied to or
for the benefit of such Participant, his Spouse, his children or
other dependents, or any of them, in such manner and in such
proportion as the Committee may deem proper.
(b) QDRO exception. Despite any other Plan
provisions to the contrary, the Administrator must comply with
the terms of a Qualified Domestic Relations Order as described in
Plan article 7. The Plan is not liable for any payments pursuant
to a domestic relations order until the Administrator has
received the order and determined that it is a Qualified Domestic
Relations Order.
16.5 Changes in Capital Structure
The existence of the Plan shall not limit or in any way
affect the right of the Sponsor and its Related Companies to
change their capital structure or their accounting practices in
any form or manner the Sponsor or a Related Company may deem
advisable.
16.6 Errors and Omissions
(a) In general. Individuals and entities charged
with the administration of the Plan must see that it is
administered in accordance with its terms as long as it is not in
conflict with the Code or ERISA. If an innocent error or
omission is discovered in the Plan's operation or administration,
and the Plan Administrator determines that it would cost more to
correct the error than is warranted, and if the Plan
Administrator determines that the error did not result in
discrimination in operation or cause a qualification or excise-
tax problem, then, to the extent that an adjustment will not in
the Plan Administrator's judgment result in discrimination in
operation, the Plan Administrator may authorize any equitable
adjustment it deems necessary or desirable to correct the error
or omission, including but not limited to the authorization of
additional Company contributions designed, in a manner consistent
with the goodwill intended to be engendered by the Plan, to put
Participants in the same relative position they would have
enjoyed if there had been no error or omission. Any contribution
made pursuant to this Plan section is an additional discretionary
contribution. Any contribution made pursuant to this section
shall be considered a Special Contribution.
(b) Mistaken 401(k) Contributions. If a mistake is
made and the Trustee receives funds that are nominally a 401(k)
Contribution but that should have been paid directly to a
Participant, those funds must not be allocated to that
Participant and must be returned to that Participant according to
the provisions in this Plan governing Excess Deferrals and Excess
401(k) Contributions. If those funds cannot be returned entirely
to that Participant, then to the extent possible, those funds
must be returned to the contributor according to subsection (a).
To the extent that the funds cannot be returned to the
contributor, they must be considered as soon as possible to be a
401(k) Contribution or some other Employer contribution, as
elected by the contributor, for the first Plan Year for which the
funds may be allocated. The appropriate Employer must pay an
additional identical amount (excluding appropriate withholding
according to law) directly to the Participant who should have
received those Funds.
16.7 Construction
(a) Interpretation consistent with law. This Plan
has been created for the exclusive purpose of providing benefits
to Participants and their Beneficiaries and defraying reasonable
expenses of administering the Plan. The Plan shall be
interpreted in a manner consistent with applicable provisions of
the Code and of ERISA.
(b) Definitions. Any term with an initial capital
not expected by normal capitalization rules is a defined term
according to the definitions of the Plan and the Trust Agreement
and the Code and ERISA.
(c) Governing law. Except as otherwise may be
required by the controlling law of the United States, the Plan
shall be construed, administered and enforced in accordance with
the laws of the Commonwealth of Virginia (except to the extent
that its choice-of-law rules would require the application of a
state law other than Virginia).
(d) Headings and subheadings. The headings and
subheadings in this Plan have been inserted for convenience of
reference only and are to be ignored in any construction of the
provisions of the Plan.
(e) Construction rules. In the construction of the
Plan the masculine shall include the feminine and the singular,
the plural in all cases where such meanings are indicated by the
context.
(f) Invalid provisions. If any provision of
this Plan is determined to be invalid or not enforceable, that
fact does not affect the validity or the enforceability of any
other provision.
SIGNATURE PAGE
As evidence of its adoption of the Crestar Merger Plan
for Transferred Employees, as amended through December 31, 1994,
the Sponsor, through action of its Board of Directors, has caused
this document to be executed by a duly authorized officer as of
the ______ day of December, 1994. The provisions of the Plan, as
amended and restated, that are intended to comply with the Tax
Reform Act of 1986 and subsequent legislation applicable to the
Plan are adopted subject to the Plan's approval by the Internal
Revenue Service (the IRS). The Plan, as amended and restated,
shall be fully effective on approval by the IRS, except as to any
amendments required by the IRS as a condition of issuing a
determination letter. Such additional amendments shall be
adopted within the applicable Code 401(b) deadline period.
CRESTAR FINANCIAL CORPORATION
By
_________________________________
James M. Wilson, III
Director of Human
Resources
EXHIBIT A
PRIOR CONTRIBUTIONS
A-3.1 Profit Sharing Contributions
(a) Prior to May 14, 1993. The provisions of this
subsection (a) apply to the Former Plan and are effective on and
after July 1, 1992, and until May 14, 1993.
(1) Discretionary amount. In each Plan Year the
Employers may make discretionary Profit Sharing
Contributions to the Trust Fund in such amounts as they
may determine from time to time. The Employers have no
obligation to make Profit Sharing Contributions for any
Plan Year and may completely terminate Profit Sharing
Contributions at any time.
(2) Undesignated amount. The Profit Sharing
Contributions for a Plan Year include all Employer
payments designated as Profit Sharing Contributions for
that Plan Year. All other Employer payments received
between the first day of the Plan Year and the last
date by which Employer contributions must be made to
the Plan to be deductible for that Plan Year
(inclusive), except (i) payments specifically
designated for other purposes, such as 401(k)
Contributions, Matching Contributions and Special
Contributions; (ii) payments made after the last day of
the Plan Year which the Employer expressly advises the
Trustee are to be credited to the next Plan Year (that
is, the Plan Year in which they are paid); and (iii)
contributions paid before the date for making
deductible contributions for the prior Plan Year and
credited to that prior Plan Year, plus all other
amounts credited to the Suspense Account as of the last
day of that Plan Year are deemed to consist of an equal
amount of Profit Sharing Contributions and Matching
Contributions for the Plan Year; provided, however,
that the amount in excess of the maximum amount of
Matching Contributions as in effect prior to May 14,
1993, for that Plan Year shall be deemed to be Profit
Sharing Contributions for that Plan Year.
(3) Allocation. As of the last day of the Plan
Year, all Profit Sharing Contributions allocable for
that Plan Year are to be credited to the Profit Sharing
Accounts of all Active Participants for the Plan Year
in proportion to each such Participant's Compensation
for the Plan Year, but not in excess of the Maximum
Permissible Amount for Annual Additions as described in
Plan article 4.
(b) May 14, 1993 and later. The provisions of this
subsection (b) are effective under the Former Plan only for
periods on and after May 14, 1993, during which 401(k)
Contributions are allowed to be made under this Plan (that is,
until July 2, 1993).
(1) Amount. Effective May 14, 1993, the
Employers shall contribute to the Plan from the
aggregate of their current and accumulated earnings and
profits an amount on behalf of eligible Active
Participants equal to a percentage of their
Compensation determined under the table set forth below
based on the Return on Equity ("ROE") for 1993:
ROE % of Pay
Less than 7.0% 0.0%
7.0% but less than 7.5% 1.0%
7.5% but less than 8.0% 1.5%
8.0% but less than 8.5% 2.0%
8.5% but less than 9.0% 2.5%
9.0% but less than 9.5% 3.0%
9.5% but less than 10.0% 3.5%
10.0% but less than 10.5% 4.0%
10.5% but less than 11.0% 4.5%
11.0% but less than 11.5% 5.0%
11.5% but less than 12.0% 5.5%
12.0% and greater 6.0%
(2) Special definitions. For purposes of this
subsection (b), Compensation for an Active Participant
shall include only his base pay (including amounts
deferred pursuant to a Salary Reduction Election under
this Plan or a cafeteria plan maintained by the
Employers pursuant to Code section 125) received
during the time he had a Salary Reduction Election in
effect under this Plan on and after May 14, 1993.
Return on Equity ("ROE") means the ratio of Net Income
(as reported in the Sponsor's annual report) to Average
Total Stockholders' Equity (as reported in the
Sponsor's annual report).
A-3.2 Qualified Nonelective Contributions. The provisions of
this section apply to the Former Plan and amend any Predecessor
Plan except to the extent that such Predecessor Plan provided for
Qualified Nonelective Contributions to be allocated to all
Participants.
(a) Definition. Qualified Nonelective Contributions
are Employer discretionary contributions to the Plan which (i)
are neither 401(k) Contributions nor Matching Contributions, (ii)
are 100% vested immediately when made, (iii) are not subject to a
Participant's election to have paid in cash instead of being
contributed to the Plan, and (iv) are subject to the same
distribution restrictions as 401(k) Contributions as provided in
Plan article 7.
(b) Method. The Employers may make Qualified
Nonelective Contributions to the Plan for any Plan Year for
allocation to Qualified Nonelective Accounts. Qualified
Nonelective Contributions are to be determined by the Employers
in their discretion, and the Employers have no obligation to make
such Contributions for any Plan Year. Qualified Nonelective
Contributions may be made by an Employer:
(1) by a direct contribution to the Plan
which is designated as a Qualified Nonelective
Contribution and made on or before the date by which
deductible contributions may be made by the Employer
to the Plan for that Plan Year;
(2) by the Employer directing that any portion
or all of the forfeitures available for allocation for
that Plan Year, if any, be recharacterized as Qualified
Nonelective Contributions for that Plan Year; or
(3) by any combination of the foregoing.
(c) Allocation. As of the last day of each Plan
Year, all Qualified Nonelective Contributions allocable for that
Plan Year (including those designated as such after the last day
of the Plan Year) are to be credited to the Qualified Nonelective
Accounts of all Participants who are not Highly Compensated
Employees for that Plan Year in the proportion which each such
Participant's Compensation for that Plan Year bears to the total
Compensation of all such Participants for that Plan Year.
(d) Treatment. Once allocated, Qualified Nonelective
Contributions may either be treated as 401(k) Contributions, as
Matching Contributions, or both, as determined by the
Administrator, for purposes of determining each Participant's
deferral percentage under the ADP Test or Contribution Percentage
under the ACP Test; provided, however, that the same Qualified
Nonelective Contribution may not be treated as both a 401(k)
Contribution and a Matching Contribution.
A-3.3 401(k) Contributions
(a) In general. The Employers' 401(k) Contribution
for a Plan Year is the total of all amounts deferred pursuant to
Participants' Salary Reduction Elections for that Plan Year.
Each Employer must transfer 401(k) Contributions to the Trustee
as soon as practicable after the payroll period to which they
relate but in no event more than 90 days after that date.
(b) Amount. An Active Participant may enter into a
Salary Reduction Election for the purposes of this Plan in which
he agrees with his Employer to reduce his Compensation by at
least 1% and not more than 15%, on the condition that the
Employer is to contribute an equal amount to this Plan on behalf
of the Participant for the Plan Year in which the corresponding
Compensation is reduced. 401(k) Contributions must be stated in
even increments of 1%. The Administrator may adopt policies
limiting the amount of 401(k) Contributions to be made on behalf
of any Participant and the manner in which those contributions
are to be made. Any designated 401(k) Contribution may be
effective only after the Salary Reduction Agreement is executed
and while the Participant is an Active Participant. A Salary
Reduction Agreement will become effective on the next Entry Date
after the Administrator receives it. 401(k) Contributions on
behalf of any Participant for any calendar year may not exceed
$7,000 (adjusted at the same time and in the same manner as under
Code 415(d)) in any calendar year.
(c) Changes in Salary Reduction Elections. A
Participant may change the rate of his salary deferral under his
Salary Reduction Election at the next Entry Date during each Plan
Year by filing a form as required by the Administrator. A
Participant may voluntarily suspend his 401(k) Contributions at
any time by giving written notice to that effect to the
Administrator, and the suspension shall be effective as soon as
administratively feasible after that notice is received by the
Administrator. 401(k) Contributions on behalf of a Participant
shall be automatically suspended for any Participant who makes a
hardship withdrawal pursuant to Plan article 7 (or pursuant to
any other qualified plan under a cash-or-deferred arrangement
under Code 401(k) which is maintained by an Employer or Related
Company) until the first Entry Date which is at least 12 months
after the Participant receives such a withdrawal. In addition,
for the calendar year following receipt of a hardship withdrawal,
the maximum permissible amount of 401(k) Contributions under this
Plan, as determined under Code 401(g), shall be reduced by the
amount of 401(k) Contributions allocated to the Participant in
the year in which the hardship withdrawal was received. The
Administrator shall determine any other procedures by which a
Participant may designate from time to time the rate of 401(k)
Contributions on his behalf, provided that any such designation
must apply prospectively -- that is, the designation is not to
apply to Compensation earned prior to the date that designation
is filed with the Administrator.
(d) Allocation. 401(k) Contributions under the Plan
shall be allocated to the 401(k) Accounts of Participants with
effective Salary Reduction Elections, as of the Valuation Date on
or immediately following the date such contributions are made.
(e) Excess Deferrals. An Excess Deferral means a
Participant's elective deferral for a taxable year beginning
after December 31, 1986, to the extent that such elective
deferral exceeds $7,000 (adjusted at the same time and in the
same manner as under Code 415(d)). This dollar limitation does
not apply to elective deferrals of amounts attributable to
service performed during 1986 and described in 1105(c)(5) of the
Tax Reform Act of 1986. For purposes of this subsection,
"elective deferrals," with respect to any taxable year of a
Participant means the sum of the following:
(1) any employer contribution under a qualified cash-
or-deferred arrangement (as defined in Code 401(k)) to
the extent not includible in gross income for the
taxable year under Code 402(e)(3) (determined without
regard to Code 402(g));
(2) any employer contribution under a simplified
employee pension (as defined in Code 408(k)) to the
extent not includible in gross income for the taxable
year under Code 402(h)(1)(B) (determined without
regard to Code 402(g));
(3) any employer contribution to an annuity contract
under Code 403(b) under a salary reduction agreement
(within the meaning of Code 3121(a)(5)(D)) to the
extent not includible in gross income for the taxable
year on account of Code 401(b) (determined without
regard to Code 402(g)); and
(4) any employee contribution designated as
deductible under a trust described in Code 501(c)(18)
to the extent deductible from the individual's income
for the taxable year on account of Code 501(c)(18)
(determined without regard to Code 402(g)).
Any deferrals that, but for Code 402(e)(3),
402(h)(1)(B), and 403(b) would have been received or
treated as received by an individual for the taxable
year are to be treated as elective deferrals for such
year.
(f) Distribution of Excess Deferrals.
Notwithstanding any other provision of the Plan, Excess Deferrals
and any income or loss allocable thereto shall be distributed no
later than April 15 following the year which the Excess Deferrals
were made, to the Participants to whose Account such Excess
Deferrals were allocated for the preceding calendar year.
(1) A Participant who makes elective deferrals (as
defined in Code 402(g)) to a plan of an employer that
is not a Related Company may assign to this Plan any
Excess Deferrals made during the Participant's taxable
year by notifying the Administrator on or before the
date announced by the Administrator of the amount of
the Excess Deferrals to be assigned to the Plan. A
Participant is deemed to notify the Administrator of
any Excess Elective Deferrals that arise by taking into
account only those Elective Deferrals made to this Plan
and any other plans of this Employer and its Related
Companies.
(2) Excess Deferrals and any income or loss allocable
thereto may be distributed during the calendar year in
which the Excess Deferrals were made to the
Participants to whose Account such Excess Deferrals
were allocated for that calendar year. A Participant
is deemed to notify the Administrator of any Excess
Elective Deferrals that arise by taking into account
only those Elective Deferrals made to this Plan and any
other plans of this Employer and its Related Companies.
The correcting distribution cannot occur until after
the Plan has received the 401(k) Contributions that
caused the Excess Deferral.
(c) Excess Deferrals shall be adjusted for any income
or loss for the Plan Year. The income or loss
allocable to Excess Deferrals is the income or loss
attributable to the Participant's Elective Deferral
Account for the Plan Year multiplied by a fraction, the
numerator of which is such Participant's Excess
Deferrals and the denominator of which is the
Participant's account balance attributable to 401(k)
Contributions without regard to any income or loss
occurring during such Plan Year.
(d) The amount of Excess Deferrals that may be
distributed with respect to a Participant shall be
reduced by any Excess Contributions previously
distributed with respect to such Participant for the
Plan Year beginning with or within such taxable year.
In no event may the amount distributed pursuant to this
Plan section exceed the Participant's total 401(k)
Contributions for such taxable year.
A-3.4 Other Limitations on 401(k) Contributions
(a) Prohibitions. To meet the limitations of this
Plan section and to avoid discrimination prohibited by Code
401(a)(4), to prevent the creation of Excess 401(k)
Contributions for purposes of Code 401(k), or, if it is
necessary to do so, to preserve the Plan's status as a qualified
plan or the Plan's cash-or-deferred arrangement according to Code
401(k), the Director of Human Resources may adjust or reject, in
whole or in part, any Salary Reduction Elections from Highly
Compensated Employees. The Administrator may reduce any
Participant's Salary Reduction Election to prevent that
Participant from causing Excess Deferrals to his 401(k) Account.
(b) ADP testing. Despite any other provision of the
Plan to the contrary, for Plan Years beginning after December 31,
1986, the Actual Deferral Percentage (ADP) for all Highly
Compensated Employees must satisfy one of the two following
tests:
Test 1: The ADP for Participants who
are Highly Compensated Employees for the
Plan Year shall not exceed the ADP for
Participants who are Non-Highly Compensated
Employees for the Plan Year multiplied by
1.25.
Test 2: The ADP for Participants who
are Highly Compensated Employees for the
Plan Year shall not exceed the ADP for
Participants who are Non-Highly Compensated
Employees for the Plan Year multiplied by
2.0; provided, however, that the ADP for
Highly Compensated Employees does not
exceed the ADP for Non-Highly Compensated
Employees by more than two percentage
points.
(1) Actual Deferral Percentage, or ADP, for purposes
of measuring compliance with Code 401(k), for a
specified group of Employees for a Plan Year, means the
average of the ratios (calculated separately for each
Employee in the group) of
(A) the amount of Employer contributions
made on behalf of the Employee for the Plan Year, to
(B) the Employee's compensation (as defined
in Code section 414(s)) for the Plan Year.
For purposes of this definition, Employer
contributions shall include (i) 401(k) Contributions,
including Excess Deferrals of Highly Compensated
Employees, but excluding Excess Deferrals of Non-
Highly Compensated Employees and 401(k) Contributions
taken into account under the Contribution Percentage
test described in Plan section 3.5 provided that the
ADP Test described in this subsection is satisfied
both with and without the exclusion of these 401(k)
Contributions, and (ii) at the election of the
Employers, Qualified Non-Elective Contributions. The
Actual Deferral Percentage of an Employee who is
eligible to but does not make a Salary Reduction
Election and who does not receive an allocation of a
Qualified Non-Elective Contribution is zero.
(2) Employees tested. Any Employee who is eligible
to participate in the Plan and make a Salary Reduction
Election at any time during the Plan Year and who would
be a Participant but for the failure to have 401(k)
Contributions made on his behalf for all or any part of
the Plan Year (without regard to any suspension due to
a distribution or election not to participate or by
reason of Code 415) shall be treated as a Participant
on whose behalf no 401(k) Contributions are made.
(3) Other testing rules. For purposes of determining
the ADP of a Highly Compensated Employee who is a 5%
owner (as defined in Code 416(i)(1) or one of the 10
most highly paid Highly Compensated Employees for the
Plan Year, his 401(k) Contributions (and Qualified
Nonelective Contributions if treated as 401(k)
Contributions under the ADP Test in this subsection),
and compensation shall include the 401(k) Contributions
(and Qualified Nonelective Contributions if treated as
401(k) Contributions under the ADP Test in this
subsection) and compensation of Family Members. Family
Members with respect to such Highly Compensated
Employees shall be disregarded as separate Employees in
determining the ADP both for Non-Highly Compensated
Employees and Highly Compensated Employees.
(4) Timing of contributions. For purposes of the ADP
Test, 401(k) Contributions and Qualified Nonelective
Contributions must be contributed to the Trust Fund
before the last day of the 12-month period immediately
following the Plan Year to which the contributions
relate.
(5) Maintenance of records. The Administrator shall
maintain records sufficient to demonstrate satisfaction
of the ADP Test and the amount of Qualified Nonelective
Contributions used in such test.
(6) Other requirements. The determination and
treatment of 401(k) Contributions and the ADP amounts
of any Participant shall satisfy such other
requirements as may be prescribed by the Secretary of
the Treasury from time to time.
(c) Multiple plan limitations
(1) Disaggregated plans. The ADP for any Participant
who is a Highly Compensated Employee for the Plan Year
and who is eligible to have 401(k) Contributions (and
Qualified Nonelective Contributions if treated as
401(k) Contributions for purposes of the ADP Test under
subsection (b)) allocated to his Account under this
Plan and under any other qualified plan under Code
401(k) which is maintained by an Employer or a Related
Company shall be determined as if all his 401(k)
Contributions (and, if applicable, Qualified Non-
elective Contributions) under such plans were made
under a single cash or deferred arrangement under Code
401(k). If a Highly Compensated Employee participates
in two or more such cash or deferred arrangements that
have different plan years, all cash or deferral
arrangements ending with or within the same taxable
year shall be treated as a single arrangement. Despite
the preceding, certain of such plans shall be treated
as separate plans if mandatorily disaggregated under
Treasury regulations under Code 401(k).
(2) Aggregated plans. In the event that this Plan
satisfies the requirements of Code 401(k), 401(a)(4),
or 410(b) only if aggregated with one or more other
plans, or if one or more other plans satisfy the
requirements of such Code sections only if aggregated
with this Plan, then the ADP Test in subsection (b)
shall be applied by determining the ADPs of Employees
as if all such plans were a single plan. For Plan
Years beginning after December 31, 1989, plans may be
aggregated to satisfy Code 401(k) only if they have
the same plan year.
(d) Adjustments to 401(k) Contributions. If and to
the extent necessary to comply with the ADP Test in subsection
(b), the Administrator may reduce or suspend any Highly
Compensated Employee's rate or amount of 401(k) Contributions
(for 401(k) Contributions that have not yet been earned). The
Employer may also make Qualified Nonelective Contributions as
described in section A-3.2 of this Exhibit A.
(e) Determination of Excess 401(k) Contributions.
If, after any adjustments under subsection (d), Excess 401(k)
Contributions remain, the Administrator shall determine each
Highly Compensated Employee's share of the excess. The
Administrator first lists the Highly Compensated Employees in the
order of descending ADPs, as if on an individual basis. The
Administrator then reduces the 401(k) Contributions attributable
to all Highly Compensated Employees who deferred the highest
percentage level by percentage increments, but not below the next
highest percentage level. If the needed reduction will cause a
reduction below that second highest percentage level, all Highly
Compensated Employees who deferred that second percentage level
and those whose deferral percentages have been reduced are
reduced by percentage increments as needed. If the needed
reduction will cause a reduction below the next lower percentage
level, the same procedure is followed as to all Highly
Compensated Employees who deferred that percentage level and
those whose deferral percentages have already been reduced. The
Administrator must repeat this procedure until all Excess 401(k)
Contributions have been determined.
(f) Distribution of Excess 401(k) Contributions.
Despite any other provisions of the Plan, Excess 401(k)
Contributions for a Plan Year and any income or loss allocable to
such Excess 401(k) Contributions shall be distributed to the
Participants on whose behalf such Excess 401(k) Contributions
were made. Such distributions shall be made no later than the
last day of the Plan Year following the Plan Year for which the
Excess 401(k) Contributions were made. Such distributions shall
be made to Highly Compensated Employees on the basis of the
respective portions of the Excess 401(k) Contributions
attributable to each of such Employees as determined under
subsection (e). Excess 401(k) Contributions of Participants who
are subject to the Family Member aggregation rules shall be
allocated among the Family Members in proportion to the 401(k)
Contributions (and any amounts treated as 401(k) Contributions)
of each Family Member who is combined to determine the combined
ADP.
(1) Excess 401(k) Contributions distributed under
this subsection shall be adjusted for any income or
loss based on a reasonable method of computing the
allocable income or loss. The method selected must be
applied consistently to all Participants and used for
all corrective distributions under the Plan for the
Plan Year, and must be the same method that is used by
the Plan for allocating income or loss to Participants'
Accounts. Income or loss allocable to the period
between the end of the taxable year and the date of
distribution may be disregarded in determining income
or loss.
(2) Excess 401(k) Contributions shall be distributed
from the Participant's 401(k) Account in proportion to
the Participant's 401(k) Contributions for the Plan
Year. Excess 401(k) Contributions attributable to
Qualified Nonelective Contributions shall be
distributed from the Participant's Qualified
Nonelective Account only to the extent that such Excess
401(k) Contributions exceed the balance in the
Participant's 401(k) Account.
(g) Use of alternative test. Despite the preceding
provisions, if and to the extent necessary to comply with the
nondiscrimination requirements of Code 401(m) as described in
applicable Treasury regulations and section A-3.6 of this Exhibit
A, the Administrator in its sole discretion elects to comply with
Test 1 of the ADP Test described in subsection (b), and the sum
of the ADP and the Contribution Percentage for Highly Compensated
Employees exceeds the aggregate limit described in Treasury
regulation 1.401(m)-2(b)(3)(i), then the Administrator shall not
use Test 1, but instead shall comply with Test 2 for purposes of
meeting the nondiscrimination requirements of Code 401(k).
A-3.5 Matching Contributions
(a) Amount. For Plan Years that begin prior to July
1, 1991, the Employer shall make Matching Contributions for each
Plan Year in an amount which, when added to all other amounts
credited to the Suspense Account as of the allocation date is
equal to the 401(k) Contributions for that Plan Year made by each
Participant up to a maximum of 3% of the Participant's
Compensation for that Plan Year (but not exceeding the Maximum
Permissible Amount for Annual Additions for that Plan Year in
which those Matching Contributions are to be credited to the
Participant's Account). For Plan Years that begin after June 30,
1992, the Employer may, in its absolute discretion, make Matching
Contributions for each Plan Year in an amount which does not
exceed the 401(k) Contributions made on behalf of each
Participant up to a maximum of 3% of such Participant's
Compensation for that Plan Year (but not exceeding the Maximum
Permissible Amount for Annual Additions for the Plan Year in
which those Matching Contributions are to be credited to the
Participant's Account). Despite the preceding, Matching
Contributions shall not be made with respect to any 401(k)
Contributions contributed for any pay period after December 31,
1990, but before July 1, 1992. Effective as of the close of
business on July 2, 1993, all Matching Contributions are
suspended.
(b) Supplemental Matching Contributions. The
Employer may also make supplemental Matching Contributions to the
Trust Fund for any Plan Year for allocation among certain
eligible Participants, as described in this subsection. The
supplemental Matching Contribution amount for any Plan Year is to
be determined by the Employer, in its discretion, and contributed
by the time for making deductible contributions for that Plan
Year. The Employer has no obligation to make supplemental
Matching Contributions for any year and may completely terminate
such contributions at any time. As of the last date of each Plan
Year, all supplemental Matching Contributions allocable for that
Plan Year, whether contributed before or after the last day of
the Plan Year, are to be credited to the Matching Accounts of all
Participants who are Active Participants during the Plan Year and
are not Highly Compensated Employees for the Plan Year in
proportion to such Participant's Compensation for the Plan Year.
(c) Undesignated amounts. Matching Contributions for
any Plan Year include all Employer payments designated as
Matching Contributions. All Employer payments received between
the first day of the Plan Year and the last date by which
Employer contributions must be made to the Plan to be deductible
for that Plan Year (inclusive), except (i) payments specifically
designated for other purposes, such as Profit Sharing
Contributions, 401(k) Contributions and Special Contributions;
(ii) payments after the last day of the Plan Year which the
Employer expressly advises the Trustee are to be credited to the
next Plan Year (that is, the Plan Year in which they are paid);
and (iii) contributions paid before the date for making
deductible contributions for the prior Plan Year and credited to
that prior Plan Year, plus all other amounts credited to the
Suspense Account as of the last day of the Plan Year are deemed
to consist of an equal amount of Profit Sharing Contributions and
Matching Contributions for the Plan Year; provided, however, that
the amounts in excess of the maximum amount of Matching
Contributions under Plan section 3.8 for that Plan Year shall be
deemed to be Profit Sharing Contributions for that Plan Year.
A-3.6 Limitations on Matching Contributions
(a) In general. The Administrator is to determine
from time to time whether the Matching Contributions (including
supplemental Matching Contributions) made or anticipated under
this Plan in Plan Years beginning after December 31, 1986, comply
with the nondiscrimination provisions of Code 414(m).
(b) ACP testing. Despite any other provision of
the Plan to the contrary, for Plan Years beginning after December
31, 1986, the Actual Contribution Percentage, or ACP, for all
Highly Compensated Employees must satisfy one of the two
following tests:
Test 1: The Contribution Percentage for
Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the
Contribution Percentage for Participants who are
Non-Highly Compensated Employees for the Plan
Year multiplied by 1.25.
Test 2: The Contribution Percentage for
Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the
Contribution Percentage for Participants who are
Non-Highly Compensated Employees for the Plan
Year multiplied by 2.0; provided, however, that
the Contribution Percentage for Highly
Compensated Employees does not exceed the
Contribution Percentage for Non-Highly
Compensated Employees by more than two
percentage points.
(1) Contribution Percentage means, for purposes of
the preceding ACP Tests, the average of the ratios
(calculated separately for each Employee in the
respective group) of
(i) the Matching Contributions (and
401(k) Contributions and Qualified Nonelective
Contributions to the extent not taken into account in
the ADP Test for 401(k) Contributions) allocated to
the Account of each such Employee for the Plan Year,
to
(ii) the Employee's compensation (as
defined n Code 414(s)) for the Plan Year (whether or
not the Employee was a Participant for the entire
Plan Year),
(2) Forfeitures. For purposes of the ACP Test, the
Contribution Percentages shall include forfeitures of
Excess Aggregate Contributions or Matching
Contributions allocated to the Participant's Account
which shall be taken into account in the Plan Year in
which such forfeiture is allocated. Forfeitures shall
be included as Contribution Percentage amounts only to
the extent such forfeitures are used to reduce or
supplement Matching Contributions. The Employer may
include Qualified Nonelective Contributions in the
Contribution Percentages and may elect to use 401(k)
Contributions in the Contribution Percentages as long
as the ADP Test is met before the 401(k) Contributions
are used in the ACP Test and continues to be met
following the exclusion of those 401(k) Contributions
that are used to meet the ACP Test.
(3) Other contributions. The Employers may treat
Qualified Nonelective Contributions to the extent not
used to satisfy the ADP Test) and all or part of the
401(k) Contributions for a Plan Year as Matching
Contributions for purposes of calculating the ACP,
provided the ADP Test for 401(k) Contributions is
satisfied both including and excluding 401(k)
Contributions that are treated as Matching
Contributions for purposes of the ACP Test.
(4) Employees tested. If a 401(k) Contribution or
any other contribution by an Employee is required as a
condition of participation in the Plan, any Employee
who would be a Participant if such an Employee made
such contribution shall be treated as an eligible
Participant on behalf of whom no such contributions are
made.
(5) Other testing rules. For purposes of determining
the Contribution Percentage of a Highly Compensated
Employee who is a 5% owner (as defined in Code
416(i)(1) or one of the 10 most highly paid Highly
Compensated Employees for the Plan Year, the Matching
Contributions (and 401(k) Contributions, Qualified
Nonelective Contributions, and supplemental Matching
Contributions, if treated as Matching Contributions
under the ADP Test in this subsection), and
compensation shall include the Matching Contributions
(and such other contributions which are treated as
Matching Contributions under the ACP Test in this
subsection) and compensation of Family Members. Family
Members with respect to such Highly Compensated
Employees shall be disregarded as separate Employees in
determining the Contribution Percentage both for Non-
Highly Compensated Employees and Highly Compensated
Employees.
(6) Timing of contributions. For purposes of the ACP
Test, Matching Contributions, Qualified Nonelective
Contributions, and supplemental Matching Contributions
used in the ACP Test must be contributed to the Trust
Fund before the last day of the 12-month period
immediately following the Plan Year for which such
contributions are deemed to be made.
(7) Maintenance of records. The Administrator shall
maintain records sufficient to demonstrate satisfaction
of the ACP Test and the amount of Matching
Contributions and other contributions used in such
test.
(8) Other requirements.s The determination and
treatment of the Contribution Percentage of any
Participant shall satisfy such other requirements as
may be prescribed by the Secretary of the Treasury from
time to time.
(c) Multiple plan limitations.
(1) Disaggregated plans. For purposes of subsection
(b), the Contribution Percentage for any Participant
who is a Highly Compensated Employee and who is
eligible to have Matching Contributions or other
Contribution Percentage amounts allocated to his
Accounts under two or more plans described in Code
401(a) or arrangements described in Code 401(k) that
are maintained by an Employer or a Related Company,
shall be determined as if the total of such
contribution percentage amounts were made under each
plan. If a Highly Compensated Employee participates in
two or more such cash or deferred arrangements that
have different plan years, all cash or deferred
arrangements ending with or within the same taxable
year shall be treated as a single arrangement. Despite
the preceding, certain plans shall be treated as
separate plans if mandatorily disaggregated under Code
410(b) regulations.
(2) Aggregated plans. In the event that this Plan
satisfies the requirements of Code 401(m), 401(a)(4),
or 410(b) only if aggregated with one or more other
plans, or if one or more other plans satisfy the
requirements of such Code sections only if aggregated
with this Plan, then the ACP Test shall be applied by
determining the contribution percentages of Employees
as if all such plans were a single plan. For Plan
Years beginning after December 31, 1989, plans may be
aggregated in order to satisfy Code 401(m) only if
they have the same plan year.
(d) Excess Aggregate Contributions. If there
are Excess Aggregate Contributions for a Plan Year, the
Administrator may implement the provisions of this subsection and
take any other action permissible according to Code 401(m)(6)
and Treasury regulations to reduce or avoid other adverse
consequences associated with Excess Aggregate Contributions. The
Administrator must determine the amount of Excess Aggregate
Contributions after first determining the amount of Excess
Deferrals and, second, after determining the amount of Excess
401(k) Contributions and causing those Excess Deferrals and
Excess 401(k) Contributions to be adjusted, as authorized in Code
401(k)(8) and 402(g).
(1) Excess Aggregate Contributions, and any income or
loss allocable to such contributions, shall be
forfeited, if forfeitable, or if not forfeitable,
distributed no later than the last day of the Plan Year
beginning after December 31, 1986, to Participants to
whose Accounts such Excess Aggregate Contributions were
allocated for the preceding Plan Year.
(2) As provided in Code 401(m)(6)(C), distributions
or forfeitures of Excess Aggregate Contributions must
be made to the Highly Compensated Employees on the
basis of the respective portions of the Excess
Aggregate Contributions attributable to each of those
Employees. Excess Aggregate Contributions of
Participants who are subject to the Family Member
aggregation rules shall be allocated among the Family
Members in proportion to any employee contributions and
Matching Contributions (or amounts treated as Matching
Contributions) of each Family Member that is combined
to determine the combined Contribution Percentage.
(3) Excess Aggregate Contributions shall be adjusted
for any income or loss for the Plan Year. The income
or loss allocable to Excess Aggregate Contributions is
the income or loss attributable to the Participant's
Matching Account for the Plan Year multiplied by a
fraction, the numerator of which is such Participant's
Excess Aggregate Contributions and the denominator of
which is the Participant's Account balance attributable
to Matching Contributions without regard to any income
or loss occurring during such Plan Year.
(4) Forfeitures of Excess Aggregate Contributions
shall be applied to reduce Employer contributions (or,
if required under the terms of a Predecessor Plan,
other than the Former Plan, reallocated to the Accounts
of Employees who are not Highly Compensated Employees).
Forfeitures according to this paragraph occur in the
Plan Year after the allocation that caused those
amounts to be Excess Aggregate Contributions. Such
forfeitures are allocated as if they were contributions
for the Plan Year in which the forfeiture occurs.
Amounts forfeited under this paragraph shall be treated
as Annual Additions under the Plan. The Administrator
must not allocate forfeitures of Excess Aggregate
Contributions so the individuals who receive
distributions or whose Accounts are reduced under this
subsection.
(5) Pro rata distribution or forfeiture. Excess
Aggregate Contributions shall be forfeited, if
forfeitable, or distributed on a pro-rata basis from
the Participant's Matching Account (and if applicable,
the Participant's After-Tax Account, the Participant's
Qualified Nonelective Account or 401(k) Account). To
the extent that a Participant's share of the Excess
Aggregate Contributions is attributable to his
allocations from 401(k) Contributions, the
Administrator may cause the distributions authorized in
this Plan section from his 401(k) Account. To the
extent that a Participant's share of the Excess
Aggregate Contributions is attributable to allocations
from his Matching Contributions, the Administrator must
cause forfeitures authorized in this Plan section from
the Participant's Excess Aggregate Contributions, if
forfeitures are then allowed under the terms of the
Plan at that time, and the Administrator must cause
distributions authorized in this subsection from the
Participant's Matching Account. After adjustment, as
described, for Excess Deferrals or Excess 401(k)
Contributions that are distributed, to the extent that
the Administrator causes forfeitures and distributions
to a Participant according to this Plan section, those
distributions must come from the Matching Contribution
allocations to that Participant's Matching Account, and
next from that Participant's 401(k) Contribution
allocations to his 401(k) Account.
A-3.7 Special Allocation Rules
Notwithstanding the foregoing, for Plan Years beginning
on or after January 1, 1989, if the number of Employees receiving
an allocation of Profit Sharing Contributions under the Plan,
including the Former Plan and any Predecessor Plan, is less than
the number of Employees required to receive a benefit for
purposes of satisfying the minimum participation requirements
under Code 401(a)(26) or the minimum coverage requirements using
the ratio percentage tests set forth in Code 410(b)(1)(A) or
(B), then, for purposes of determining such Employer
contributions as of any Plan Year, the term "Participants" who
are entitled to allocations shall include all other individuals:
(a) who are Participants in the Plan and who are
employed on the last day of the Plan Year and who have
completed at least 501 Hours of Service but less than
1,000 Hours of Service;
(b) who are Participants in the Plan and who are
employed on the last day of the Plan Year and who have
completed fewer than 501 Hours of Service during the
Plan Year, provided, however, that the Plan fails to
satisfy the minimum participation requirements under
Code 401(a)(26) or the minimum coverage requirements
using the ratio percentage tests set forth in Code
410(b)(1)(A) or (B) after the inclusion of those
Participants described in subsection (a);
(c) who are Participants whose employment ceased
after they completed at least 1,000 Hours of Service
during the Plan Year, provided, however, that the Plan
fails to satisfy the minimum participation requirements
under Code 401(a)(26) or the minimum coverage
requirements using the ratio percentage tests set forth
in Code 410(b)(1)(A) or (B) after the inclusion of
those Participants described in subsections (a) and
(b); and
(d) who are Participants whose employment ceased
after they completed more than 500 Hours of Service but
less than 1,000 Hours of Service during the Plan Year,
provided, however, that the Plan fails to satisfy the
minimum participation requirements under Code
401(a)(26) or the minimum coverage requirements using
the ratio percentage tests set forth in Code
410(b)(1)(A) or (B) after the inclusion of those
Participants described in subsections (a), (b) and (c).
Despite the preceding, if the Plan uses elapsed time
methods for counting eligibility, then the following
individuals shall be substituted for those individual
identified in (a) through (d) above: (1) individuals
who are Participants whose severance from service date
occurred after the last day of the sixth month of the
Plan Year; and (2) individuals who are Participants
whose severance from service date occurred during the
second quarter of the Plan Year, provided, however,
that the Plan fails to satisfy the minimum
participation requirements under Code 401(a)(26) or
the minimum coverage requirements using the ratio
percentage tests set forth in Code 410(b)(1)(A) or (B)
after the inclusion of those Participants described in
(1) of this sentence.
A-3.8 Rollover Contributions
(a) General. With the Administrator's approval, a
Participant may make one or more Rollover Contributions by
delivering those contributions in cash to the Trustee and by
filing any forms as required by the Administrator. Rollover
Contributions must be attributable solely to an eligible rollover
distribution as described in Code 402(c)(4) (or prior to January
1, 1993, to a qualifying rollover distribution as described in
Code 401(a)(5)) from another qualified plan, but may not include
nondeductible amounts contributed by the Participant or amounts
attributable to contributions by the Participant under that other
plan that were deductible under Code 219.
(b) Acceptability; allocation. The Participant must
establish the acceptability of any Rollover Contribution to the
satisfaction of the Administrator. Rollover Contributions must
consist of cash, unless the Administrator and Trustee agree, in
their discretion, to accept any property other than cash which
was included in the relevant eligible rollover distribution. All
Rollover Contributions are to be credited to the Participant's
Rollover Account.
(c) Administrator rules. Nothing in this Plan
section restricts the Administrator's power to adopt rules for
administrative convenience, including additional restrictions on
a Participant's right to make or withdraw Rollover Contributions.
Those rules are to have the same force and effect as if
incorporated in this Plan.
(d) Suspension. Effective as of the close of
business on July 2, 1993, no additional Rollover Contributions
will be accepted by this Plan.
EXHIBIT B
PRIOR CONTRIBUTIONS
B-6.1 401(k), Qualified Nonelective, Matching and Rollover
Accounts
A Participant shall be fully vested at all times in his
401(k) Account, his Qualified Nonelective Account, his Matching
Account, and his Rollover Account.
B-6.2 Vesting of Profit Sharing Accounts
(a) May 14, 1993 and after. Despite the remaining
provisions of the Plan, including this Exhibit B, an individual
who is a Participant in the Plan on or after May 14, 1993, shall
be fully vested in his entire Profit Sharing Account under the
Plan. The remaining provisions of this Plan section are
effective for periods prior to May 14, 1993.
(b) Certain events during employment. To the extent
not otherwise fully vested, a Participant's entire Account that
is not otherwise fully vested will immediately become 100% vested
if, while he is an Employee, he dies, reaches his Normal
Retirement Age, or becomes Disabled.
(c) Special vesting rule. Despite any other
provision of the Plan as in effect on July 1, 1992, a Participant
is 100% vested in his Profit Sharing Account if he has three or
more Years of Service for vesting as of July 1, 1992.
(d) Vesting based on service. Effective July 1,
1992, at any time, the portion of a Participant's Profit Sharing
Account that is not then fully vested under other provisions of
the Plan shall become 100% vested when he completes five Years of
Service for vesting. This change in the vesting schedule is
subject to the requirements stated in Plan article 6 with respect
to amendments to the vesting schedule.
(e) Vesting on Plan termination. In the event of
this Plan's complete termination (including termination resulting
from complete discontinuance of Employer contributions), each
Participant shall be 100% vested in the non-vested portion of his
Profit Sharing Account which has not been conditionally or
permanently forfeited by that date. In the event of a partial
termination of the Plan, each Participant with respect to whom
such partial termination has occurred shall be 100% vested in the
non-vested portion of his Profit Sharing Account which has not
been conditionally or permanently forfeited at that date.
(f) Prior Plan versions. A Participant who
terminated his employment with an Employer prior to July 1, 1992,
shall have the vested portion of his Profit Sharing Account
computed in accordance with the provisions of the Plan as in
effect at the date of his termination of employment.
B-6.3 Calculation of Vesting after Distributions. If a
payment (other than a cash-out payment as described in Plan
article 8) is made to a Participant from any Account that is not
100% vested at that time, then the vested portion of that Account
at any time after that payment is made is to be determined
exclusively under the following formula:
Vested Portion = (P (A + D)) - D, where:
"P" is the appropriate vesting percentage specified
under the preceding section or Plan article 11 (top-
heavy vesting schedule), at the relevant time;
"A" is the Account balance at the relevant time;
"D" is the sum of all payments made from the Account as
of the relevant time; and
the "relevant time" is the date as of which the vested
portion of that Account is being determined.
The provisions of this Plan section will no longer apply, once
the Account becomes 100% vested or the nonvested portion of the
Account is conditionally or permanently forfeited.
B-6.4 Forfeitures and Their Disposition
(a) Permanent forfeitures. Except as otherwise
provided in this Plan section, with respect to conditional
forfeitures, the nonvested portion of a Participant's Account
will be permanently forfeited at the later of the date he ceases
to actively work as an Employee or the date he incurs five
consecutive one-year Breaks in Service, unless he returns to
actively work as an Employee before the permanent forfeiture
occurs.
(b) Conditional forfeitures. If a former Participant
receives a cash-out payment under Plan article 8, or if he
terminates employment with no vested interest in his Account
(other than his 401(k) Account and Matching Account), before he
incurred a permanent forfeiture under subsection (a), the
nonvested portion of his Account will be conditionally forfeited
when he receives his cash-out distribution, or in the case of a
nonvested Participant, when he separates from service. Unless
reinstated as provided in subsection (d) below, that conditional
forfeiture will become permanent when the former Participant
incurs five consecutive one-year Breaks in Service.
(c) Disposition. When the nonvested portion of a
Participant's Account is either conditionally or permanently
forfeited, the forfeiture will be subtracted from the
Participant's Account and reallocated to the Accounts of
remaining Participants in the Plan who are eligible to receive an
allocation of such forfeitures in the Plan Year in which the
forfeiture occurs.
(d) Reinstatement of conditional forfeitures. If a
former Participant who has conditionally forfeited the nonvested
portion of his Account returns to employment with an Employer or
Related Company before the date he incurs five consecutive one-
year Breaks is Service (that is, before the date the conditional
forfeiture becomes a permanent forfeiture), the amount of that
conditional forfeiture (without adjustment for gains or losses in
the interim) is to be restored to the Participant's Account;
provided, however, that the conditional forfeiture of a
Participant who received a cash-out payment will not be
reinstated unless the Participant repays to the Plan an amount
equal to the portion of the cash-out payment. That repayment
must be made no later than the earlier of (i) the date which is
five years after the first date on which the Participant returns
to employment for an Employer or Related Company, or (ii) the
close of the first period of five consecutive one-year Breaks in
Service commencing after the cash-out-payment. The source for
any reinstated amount under this subsection may be made, as
directed by the Administrator, from forfeitures under the Plan or
income or gain to the Plan. If the restored amount is not
otherwise available, the Employer shall make a corresponding
Special Contribution for the Plan Year in which the reinstatement
is to be made.
B-6.5 Vesting Service
When an Employee incurs five or more consecutive one-
year Breaks in Service for vesting and the number of those
consecutive one-year Breaks equals his Years of Service for
vesting, all of his Years of Service completed prior to such
Breaks shall be disregarded in determining the vested portion of
the Participant in benefits accruing after the Break, unless the
Participant then has a vested interest in his Account.
CRESTAR MERGER PLAN
FOR TRANSFERRED EMPLOYEES
TRUST AGREEMENT
As Amended and Restated Through December 31, 1994
INTRODUCTION Introduction
ARTICLE 1 CREATION OF TRUST; INTERPRETATION OF
AGREEMENT
1.1 Establishment of Trust 1-1
1.2 Other Employer-maintained Qualified Plans 1-1
1.3 Impossibility of Diversion 1-1
1.4 Interpretation of Trust Agreement 1-2
1.5 Additional Definitions 1-2
ARTICLE 2 TRUSTEE APPOINTMENT AND REMOVAL; FIDUCIARY
LIABILITY
2.1 Trustee Appointment; Removal; Successors 2-1
2.2 Operation of Trustee 2-1
2.3 Bonding 2-2
2.4 Limitation of Liability 2-2
2.5 Insurance; Annuities
2-3
2.6 Trust Fund Losses
2-3
2.7 Reliance on Communications 2-3
2.8 Reliance on Experts 2-4
2.9 Protection of Trustee 2-4
ARTICLE 3 INVESTMENT DUTIES, POWERS
3.1 Investment Policy 3-1
3.2 Additional Investment Powers of Trustee 3-2
3.3 Insurance Contracts; Annuities 3-5
3.4 Investment Manager 3-5
3.5 Participant-Directed Investments
3-6
3.6 Prohibited Transactions 3-6
ARTICLE 4 OTHER DUTIES OF TRUSTEE
4.1 Payments from the Trust Fund 4-1
4.2 Trustee Compensation and Expenses 4-1
4.3 Payment of Taxes 4-2
4.4 Transfers and Direct Rollovers 4-2
4.5 Accounting 4-2
4.6 Valuation 4-3
4.7 Other Duties 4-3
4.8 Trustee Appointment of Agents 4-3
4.9 Administration of Plan 4-4
ARTICLE 5 AMENDMENT, TERMINATION, AND MERGER
5.1 Amendments 5-1
5.2 Termination of Trust 5-1
5.3 Withdrawal from Trust Fund. . . . . . 5-2
5.4 Merger, Consolidation or Succession 5-2
5.5 Approval of Appropriate Agencies 5-3
ARTICLE 6 MISCELLANEOUS
6.1 Rights of Participants, Beneficiaries, and Others
6-1
6.2 No Assignment 6-1
6.3 No Guarantee of Plan Benefits 6-1
6.4 Legal Action 6-1
6.5 Frustrated Actions 6-2
6.3 Binding Nature 6-2
SIGNATURE PAGE
INTRODUCTION
On May 14, 1993, Crestar Financial Corporation and
Crestar Bank became successors to CFS Financial Corporation
and Continental Federal Savings Bank, respectively, and
Crestar Financial Corporation assumed sponsorship of the
Continental Federal Savings Bank Investment Savings Plan
(the "CFSB Savings Plan"). Effective as of the close of
business on July 2, 1993, the CFSB Savings Plan was frozen
as to participation and all contribution under the CFSB
Savings Plan were suspended. Effective June 24, 1994, the
CFSB Savings Plan was renamed the Crestar Merger Plan for
Transferred Employees (the "Merger Plan"). This Trust
Agreement constitutes a complete amendment and restatement
of the prior Trust Agreement and it continues the trust
fund established under the original trust agreement to hold
assets of the Plan. Effective December 31, 1994, all trust
fund assets are to be held and distributed by the Trustee
in accordance with the terms of the Plan and this Trust
Agreement. Also, this Trust Agreement is renamed the
Crestar Merger Plan for Transferred Employees Trust
Agreement to reflect the change in Sponsor and the name of
the Plan.
The Corporation's intent in executing this Trust
Agreement is to continue the trust as a qualified trust
under Code 401(a) and 501(a), to which money and property
contributed to the Plan by an Employer will be immediately
deductible for income tax purposes. All questions arising
in the construction of this Trust Agreement and in the
administration of the Trust must be resolved accordingly.
ARTICLE 1
CREATION OF TRUST; INTERPRETATION OF AGREEMENT
1.1 Establishment of Trust
(a) Creation of Trust. The Sponsor has previously
established with the Trustee a trust consisting of such funds and
other property as the Employers have delivered and may deliver to
the Trustee as Plan contributions, earnings and profits on such
funds and other property, and other property acquired by the
Trustee with such funds. Such funds and other property constitute
the Trust Fund, which shall continue to be held in trust by the
Trustee pursuant to the terms of the Plan and this Trust Agreement.
(b) Acceptance of Trust. The Trustee named in this
Trust Agreement has consented to act as a Named Fiduciary with
trustee responsibilities under ERISA 405(c)(3). By executing this
Trust Agreement, the Trustee accepts trusteeship, as provided in
ERISA 403(a), of the Trust Fund or confirms that acceptance and
its consent to act as Trustee.
(c) Contributions to Trust Fund. The Trustee must
advise the Employers of the forms of property unacceptable to the
Trustee as contributions; otherwise, the Trustee must receive all
contributions in cash or other property permissible under the Plan.
All Plan contributions received by the Trustee and income received
from those contributions must be held, managed, invested,
reinvested, and administered in trust according to the terms of
this Agreement.
1.2 Other Employer-maintained Qualified Plans
(a) Multiple plans permitted. With the Sponsor's
consent, the Trust governed by this Trust Agreement may be used for
accumulating or holding assets under any other (one or more)
qualified plans maintained by an Employer, but only if the Sponsor
approves and only if this Trust's tax-exempt status under Code
501(a) is not adversely affected. No provision of this Trust
Agreement supersedes or otherwise invalidates the provisions of any
qualified plan funded in whole or in part through the Trust.
(b) Commingling assets; separate accounting. If the
Trust holds assets for more than one qualified plan, the Trustee
may pool or commingle the assets of all such plans for investment
purposes, but the assets of one qualified plan may not be used to
provide benefits under any other qualified plan. The provisions of
this Trust Agreement apply separately to each qualified plan, and
separate funding, separate accounting, and separate benefits apply
as though each qualified plan had a separate Trust Fund. The
Administrator of the Plan and the plan administrator of each other
qualified plan must provide the Trustee with current information so
that the Trustee may maintain adequate records to reflect the
separate accounts, sub-accounts, or sub-trusts of each qualified
plan, as necessary. The separation may be dissolved as appropriate
after the termination of a qualified plan, but only if the merger
is consistent with statutes and regulations governing such plan
mergers and transfers of plan assets and liabilities.
1.3 Impossibility of Diversion
(a) Exclusive benefit. Except to defray reasonable
administrative expenses and to return Employer contributions as
provided in this section and in the Plan, assets of the Trust Fund
may not be used for or diverted to purposes other for than the
exclusive benefit of Participants and their Beneficiaries.
(b) Termination of Plan. In the event the Plan
terminates and the Trust Fund is liquidated, the Trustee, at the
Administrator's direction and as allowed by the Code and ERISA, may
return to the contributor any assets attributable to Employer
contributions that are held in a suspense account established to
prevent benefits or contributions from exceeding statutory
limitations.
(c) Mistake of fact. The Trustee, at the
Administrator's direction, may return the portion of any Employer
contribution made by a mistake of fact (as allowed in ERISA
403(c)(2)(A)(i)), but repayment must be made within one year after
the contribution.
(d) Nondeductible contributions. All Employer
contributions to the Trust Fund are conditioned on their
deductibility under Code 404(a), exclusive of Code 404(a)(5). If
any Employer contribution is not deductible in whole or in part,
the Trustee, at the Administrator's direction, may return the
nondeductible portion of the contribution (as allowed in ERISA
403(c)(2)(C)) to the Employer who made the contribution, but
repayment must be made no later than one year after the
disallowance.
1.4 Interpretation of Trust Agreement
(a) Purpose of Trust Agreement. The Sponsor's intent
and purpose in executing this Trust Agreement is to create and
maintain a qualified trust to hold Plan assets, including those
assets transferred into the Plan from a Predecessor Plan. All
questions arising in the administration of the Trust Fund and in
the construction of this Trust Agreement must be resolved
accordingly.
(b) Incorporation of the Plan. The provisions of the
Crestar Merger Plan for Transferred Employees are incorporated by
reference into this Trust Agreement.
(c) Definitions. Any term with an initial capital not
expected by normal capitalization rules is a defined term according
to the definitions in the Plan and this Trust Agreement and the
Code and ERISA. Any term defined in Plan article 1 or elsewhere in
the Plan must be used in construing this Trust Agreement.
(d) Governing law. Except as otherwise may be required
by the controlling law of the United States, this Trust Agreement
must be construed, administered and enforced in accordance with the
laws of the Commonwealth of Virginia (except to the extent those
laws would require the application of a state law other than
Virginia law).
(e) Construction rules. For construction, one gender
includes all, and the singular and plural include each other. The
headings and subheadings in this Trust Agreement have been inserted
for convenience of reference only and are to be ignored in any
construction of the provisions.
(f) Invalid provisions. If any provision of this Trust
Agreement is determined to be invalid or not enforceable, that fact
does not affect the validity or the enforceability of any other
provision. All provisions of this Trust Agreement shall be
enforced to the fullest extent of all applicable laws.
1.5 Additional Definitions
(a) Agreement or Trust Agreement means the Crestar
Merger Plan for Transferred Employees Trust Agreement as set forth
in this document and as amended as of any relevant time.
(b) Fiscal Year means the accounting year on which the
Trust Fund is operated. The Fiscal Year is the same as the Plan's
Plan Year.
(c) Trust Fund, as used in this Agreement, means the
entire undistributed amount of all contributions to the Plan that
are placed in custody of the Trustee, and any investments acquired
by the Trustee with such contributions, as adjusted for expenses,
gains, and losses. The Trust Fund may include one or more trusts,
as determined by the terms of this Trust Agreement and the Trustee.
Whenever the Trustee deems it necessary or appropriate, the Trustee
may establish and maintain as part of the Trust Fund a separate,
segregated account for any identifiable type of asset or investment
fund. Segregated accounts may be named by any descriptive
identification determined by the Trustee and the unsegregated
assets will be known by some other descriptive identification
determined by the Trustee. For purposes of this Agreement, the
unsegregated assets shall be referred to as the General Trust Fund.
A segregated account experiences its own earnings and losses,
without regard to the investment performance of any other
segregated account or the unsegregated assets of the Trust Fund.
(d) Trustee, as used in this Agreement, means any
current Trustee or co-Trustee or any duly appointed successor
Trustee or co-Trustee. Co-Trustees are referred to collectively as
the Trustee. The current Trustee is named on the most recently
signed signature page of this Trust Agreement. Any Trustee or Co-
Trustee who resigns, accepts or is removed as Trustee or Co-Trustee
following the execution of this Trust Agreement shall be required
to evidence such resignation, acceptance or removal in writing
which shall become a part of this Trust Agreement.
ARTICLE 2
TRUSTEE APPOINTMENT AND REMOVAL; FIDUCIARY LIABILITY
2.1 Trustee Appointment; Removal; Successors
(a) General. The Sponsor or its delegate has
exclusive authority for the appointment and removal of Trustees.
(b) Original appointment. As the Sponsor's Board
determines, there must be one or more individuals or entities
acting as Trustee under this Agreement. The Board may appoint an
additional co-Trustee or additional co-Trustees with the consent
of the Trustee or the co-Trustees then serving.
(c) Resignation and removal. Any Trustee may resign
by delivering at least 30 days' advance written notice to the
Board, unless the Board agrees to a shorter notice period. The
Board may remove any Trustee for cause or without cause by
delivering at least 30 days advance written notice to the
Trustee, effective as of the date specified in the notice.
(d) Trustee vacancy. If a vacancy arises for any
reason in the trusteeship under this Agreement, the Board may,
appoint a successor Trustee, provided that at all times, at least
one Trustee must be acting. Until a successor is appointed, the
remaining Trustee or Trustees have full authority to act under
the terms of the Plan and this Agreement. If the Board fails to
appoint a successor Trustee by the effective date of the
departure of the last remaining Trustee, the Trustee may apply to
a court of competent jurisdiction to have a successor Trustee
appointed.
(e) Qualification of Trustee. Each Trustee must
accept his appointment by executing and delivering written
acceptance to the Board in a form satisfactory to the Board.
Except as otherwise agreed in writing by the Board and the
Trustee, each additional co-Trustee and each successor Trustee
without further act, deed, or conveyance is then vested with all
the estate, rights, powers, discretion, duties, privileges, and
immunities as if it were originally named as a Trustee in this
Agreement. Written notice of the appointment of a successor
Trustee must be delivered promptly to the remaining Trustees, if
any, and to the departing Trustee, and to any insurance company
from which policies or contracts have been purchased.
(f) Duties on departure. A departing Trustee (or his
personal representative if the departing Trustee is deceased or
incompetent) must, within 30 days of the effective date of his
departure, execute, acknowledge, and deliver all documents and
written instruments necessary to transfer and convey to the
successor Trustee (or to the remaining Trustee or Trustees if no
successor is appointed) all the right, title, and interest in
funds and properties (or the Trustee's legal interest in them)
then constituting the Trust Fund. The departing Trustee (or his
personal representative) is authorized, however, to reserve a sum
of money that the departing Trustee deems advisable and the
Sponsor agrees is necessary to pay fees and expenses in
connection with the settlement and transfer of the Trust Fund or
otherwise; any balance of that reserve remaining after the
payment of such fees and expenses must be promptly paid over to
the successor Trustee (or to the remaining Trustee or Trustees)
upon settlement of the departing Trustee's accounts.
2.2 Operation of Trustee
(a) Rules and guidelines. The Trustee may adopt or
amend rules and guidelines that the Trustee deems desirable for
the conduct of Trustee affairs.
(b) Records. The Trustee must keep a record of all
Trustee proceedings and acts and all other data necessary for the
proper administration of the Trust Fund. The Trustee must notify
the Sponsor of any Trustee action other than routine investment
actions and, when required by law, must notify any other person.
(c) Co-Trustee acts and decisions. A meeting of co-
Trustees need not be called or held to make decisions or take any
action. Decisions may be made or action taken by written
documents signed by the required number of co-Trustees. Acts and
decisions of the Trustee must be made by a majority vote if the
number of the co-Trustees is three or more; otherwise, such acts
and decisions must be by unanimous vote. If the co-Trustees are
deadlocked, the Sponsor must make the determination and that
determination is binding on all persons.
(d) Delegation of authority among co-Trustees. When
two or more co-Trustees serve under this Agreement, they may, by
written agreement, allocate specific responsibilities,
obligations, or duties among themselves. An original copy of any
such agreement must be delivered to the Administrator and the
Sponsor. The co-Trustees may delegate to one or more of their
number authority to sign documents on behalf of the Trustee or to
perform ministerial acts, but no co-Trustee to whom that
authority is delegated may perform an act involving the exercise
of discretion without first obtaining the concurrence of the
required number of other co-Trustees, even though the one alone
may sign a document required by third parties. Without
designation, one co-Trustee may execute instruments or documents
on behalf of all co-Trustees until the other co-Trustees object
in writing and file that objection with the Sponsor. Except as
provided in this subsection, an application for a contract,
agreement, or policy, or changes of any kind in them requiring
Trustee execution may be executed by one Trustee.
2.3 Bonding
To the extent permissible by law, the Trustee serves
without bond. If the law requires bond, the Trustee must secure
and pay for required bonds not provided by the
Sponsor.
2.4 Limitation of Liability
(a) General rule. A Trustee is liable for his own
acts or omissions. Except as otherwise provided by statute or by
provisions of the Plan or this Agreement, a Trustee is not liable
for any act or omission of any other Trustee or for any act or
omission of any other Fiduciary. Except to the extent, if any,
otherwise provided by ERISA, no successor Trustee shall be
personally liable for any act or omission which occurred prior to
the time he became a Trustee.
(b) Participation in breach. A Trustee is not liable
for the actions or omissions of another Fiduciary unless he has
knowingly acted or participated in acts to conceal the breach of
the other Fiduciary; or by failure to perform properly the
specific fiduciary responsibilities that give rise to his status
as a Fiduciary, the Trustee has enabled the other Fiduciary to
commit a breach; or has knowledge of the breach and fails to make
reasonable efforts to remedy the breach.
(c) Allocations, delegations. A Trustee is not
liable for the actions of another to whom responsibility has been
allocated or delegated according to the provisions of the Plan or
this Agreement unless, as the allocating or delegating
Fiduciary, the Trustee was imprudent in making the allocation or
delegation, or in continuing the allocation or delegation, or
unless the Trustee would be liable according to subsections (a)
or (b).
(d) Co-Trustees. Each co-Trustee must use reasonable
care to prevent another co-Trustee from committing a breach. All
co-Trustees must jointly manage and control the assets of the
Trust Fund unless specific duties have been allocated between
them in writing signed by each and filed with the Company.
Subject to subsections (a) and (b), if specific responsibilities,
obligations, or duties have been allocated among all co-Trustees,
a co-Trustee to whom certain responsibilities, obligations, and
duties have not been allocated is not liable either individually
or as a co-Trustee for any loss resulting to the Trust Fund from
the acts or omissions on the part of another co-Trustee to whom
such responsibilities, obligations, or duties have been
allocated.
(e) Directed actions. Subject to subsections (a) and
(b), a Trustee is not liable for his directed actions or
omissions when he relies on or follows the specific directions of
the Sponsor, the Administrator, the Committee, an Investment
Manager, or their duly authorized representatives, unless such
directions are improper on their face.
2.5 Insurance; annuities
The Trustee has no responsibility for the validity or
effect of any insurance policy or annuity contract, including any
policy or contract providing benefits under the Plan on behalf of
a Participant or Beneficiary; for any failure on the part of any
insurer to make any payments or provide any benefits under such
policy or contract; for any act or omission of the Sponsor, the
Administrator, an Investment Manager, a Participant, a
Beneficiary, or any other person or entity which may render such
policy or contract void; for the failure of any insurer to pay
the proceeds of any such policy or contract as and when they
become payable; for any delay occasioned by any provision in such
policy or contract of any insurer to take any action requested by
the Trustee; or if, through no fault of the Trustee, any policy
or contract shall not be issued, shall lapse, or shall become
uncollectible. Notwithstanding the foregoing, the Trustee will,
when purchasing annuities or insurance policies for the Plan or
its Participants, invest the Plan funds or Participants' funds in
a manner that it believes to be consistent with its fiduciary
duties under ERISA 404.
2.6 Trust Fund Losses
Subject to any contrary provision of ERISA, the Trustee
shall not be liable for any losses that may be incurred with
respect to the investments of the Trust Fund, except to the
extent that such losses have been caused by the Trustee's bad
faith, gross negligence, or willful misconduct.
2.7 Reliance on Communications
(a) Written communications. Despite any contrary
agreement between the Sponsor and any person (including an
Investment Manager) or any other provision of this Agreement, all
notices, directions, and other communications to the Trustee
shall be in writing or in such other form, including transmission
by electronic means through the facilities of third parties or
otherwise, specifically agreed to in writing by the Trustee.
Except as specifically provided by statute, the Plan, or this
Trust Agreement, the Trustee does not incur liability to any
person or party and is fully protected when acting on a notice,
request, consent, certificate, letter, telegram, or other paper,
document, or electronic, mechanical, computer or telephone
operated system, believed by him or any of them to be genuine and
to have been signed, sent or initiated by the proper person.
(b) Reliance on written statements. The Trustee is
under no duty to make any investigation or inquiry as to any
statement contained in a written communication or document signed
or sent by the proper person, but may accept it as conclusive
evidence of the truth and the accuracy of the statements
contained as to any question of fact.
(c) Reliance on electronic computer or other
mechanical systems. The Trustee is under no duty to make any
investigation or inquiry with regard to instructions received
him via computer or initiated by telephone to a Third Party
Administrator for the Plan or by any other electronic or
mechanical means. The Trustee may accept such instruction as
conclusive evidence of the truth and the accuracy of the
statements contained as to any question of fact. However, the
Trustee must be able to produce written documentation supporting
any instructions carried out by him under this subsection.
(d) Communication from agents. The Trustee is fully
protected when relying on a written communication from a properly
designated agent of the Sponsor, the Administrator, an insurer,
or the Investment Manager concerning an instruction or direction
of the Sponsor, the Administrator, the insurer, or the Investment
Manager and in continuing to rely upon such a communication until
a later communication is filed with the Trustee.
(e) Confirmation of event. Whenever the Sponsor, the
Employers, the Administrator, the insurer, or the Trustee is
directed to take an action caused by the occurrence of an event,
none is under an obligation to take that action until it has
received proper and satisfactory written notice of the
occurrence. A written authorization or communication from an
officer of the Sponsor, the Administrator, the insurer or their
authorized agent, or the Trustee that an event has occurred is
conclusive evidence of the occurrence, and the Administrator, the
Employers, the insurer, or the Trustee is fully protected and
discharged from all liability in accepting and relying upon that
authorization or communication.
2.8 Reliance on Experts
The Trustee may consult with experts (who may be experts
employed by the Sponsor), including legal counsel, appraisers,
pricing services, accountants or actuaries, selected by it with
due care with respect to the meaning and construction of this
Agreement or any provision of this Agreement, or concerning its
powers and duties under this Agreement, and shall be protected
for any action taken or omitted by it in good faith pursuant to
or on the basis of the opinion of any such expert.
2.9 Protection of Trustee
(a) Employee or board member. Subject to subsections
(d) and (e), as to any Trustee or co-Trustee who is an employee
of the Sponsor or an Employer, or a member of the Sponsor's
Board, the Sponsor agrees to indemnify and save him harmless
against any liabilities, loss, cost, or damage arising out of the
exercise of his duties under this Agreement and not arising out
of his own gross negligence, willful misconduct, or bad faith.
The Sponsor may obtain insurance against the acts or omissions of
such a Trustee and if it fails to do so, the Trustee may obtain
such insurance and must be reimbursed for the cost by the Sponsor
and as permitted by law.
(b) Defense of Trustee. Subject to subsections (c)
and (d), the Sponsor agrees to assume the defense of, or, at its
discretion, indemnify and hold the Trustee harmless from, any and
all actions, suits, or proceedings that the Trustee brings at the
request of the Sponsor or is a party to solely to protect the
qualification of the Plan or Trust or to protect the Trust Fund
or any action that is a direct or indirect result of any act or
omission of any predecessor Trustee. This provision also applies
to any actions, suits, or proceedings brought or advanced
directly or indirectly by any Employee, Participant, Beneficiary,
or the personal representative of any such person, or any
combination of them, in which the Trustee is named a party only
because of its relationship to the Plan or Trust, to protect the
Trust Fund as a result of actions taken or not taken because of
following the directions of the Sponsor, the Administrator, an
insurer, any Investment Manager, or their duly authorized
representative or relying on information provided by the Sponsor,
the Administrator, an insurer, or such persons as contemplated by
the provisions of this Trust Agreement Article 2 and related
sections.
(c) Indemnification first. Despite any provision of
this Agreement to the contrary, a Trustee shall not be obligated
to take any action which would subject him to any expense or
liability without first being indemnified by the Company in an
amount and manner satisfactory to him or being furnished with
funds sufficient in his sole judgment to cover such expense or
liability.
(d) Limitations on defense, indemnification.
Despite the preceding subsections, the Sponsor shall have no
responsibility to indemnify or defend a Trustee with respect to
any action, suit, or proceeding arising out of
(1) the Trustee's knowing participation in or
knowing concealment of any act or omission of any
Fiduciary of the Plan or Trust knowing that such act or
omission constituted a breach of such person's fiduciary
responsibilities;
(2) the Trustee's failure to perform any of the
duties specifically undertaken by it under the provisions
of this Agreement;
(3) the Trustee's failure to act in conformity
with duly given and authorized directions under this
Agreement; or
(4) the Trustee's own gross negligence, willful
misconduct, or bad faith or breach of its own fiduciary
duty under this Agreement, the Plan or ERISA.
The responsibility of the Sponsor to directly or indirectly
indemnify, protect, or defend a Trustee may not exceed the
greatest responsibility permissible under the laws of the
jurisdiction from which the Sponsor's, articles of incorporation,
or similar governing documents has or have been granted. If a
Trustee rejects a proffered undertaking to defend or prosecute
any matter for which the Sponsor is otherwise obligated to
undertake the defense or prosecution according to this Agreement,
then as to that matter, the Sponsor is discharged from any
further responsibility (and related liabilities) to indemnify,
protect, or defend.
(e) Actions or directions of the Committee. The
Committee shall have the authority, on behalf of all persons
having or claiming any interest in the Trust fund or under the
Plan to adjust and settle all claims against the Trust Fund and
to determine all questions with respect to the administration of
the Trust Fund and the Plan. The Trustee shall be fully
discharged from liability to all persons having or claiming any
interest in the Trust Fund by receiving a release which may be
given it by the Committee. In addition, the Trustee shall be
fully discharged from any liability arising from, or for carrying
out, any actions or directions of the Committee pursuant to the
powers and duties assigned to it under the Plan.
ARTICLE 3
INVESTMENT DUTIES, POWERS
3.1 Investment Policy
(a) Stated investment policy. The purpose of the
Plan and this Trust is to give the Sponsor and Employers an
opportunity to provide a savings and retirement plan for their
eligible Employees to which Employer contributions will be
immediately deductible. The investment policy for the Trust Fund
is consistent with the purposes and terms of the Plan and this
Trust Agreement. The investment policy for assets within the
Trustee's investment control is to realize the greatest
appreciation of the Trust Fund as may be possible within the
limits of prudent investments, whether the appreciation is by way
of current income accumulated or by appreciation in the market
value of assets obtained.
(b) Discretion of Trustee. The Trustee shall have
the power and authority in its sole discretion to manage and
administer the Trust Fund in accordance with the terms of the
Plan and this Trust Agreement. the Trustee shall establish or
provide investment funds in accordance with the terms of the
Plan. In making investments of the Trust Fund, the Trustee must
consider, among other factors, the short-term and long-term
financial needs of the Plan on the basis of information provided
by the Sponsor or the Administrator.
(c) Investments, generally. Subject to the
provisions of the Plan and this Agreement regarding investments
directed by a named fiduciary or an Investment Manager or a
Participant or Beneficiary and subject to the provisions of this
Agreement regarding prohibited transactions, the Trustee must
invest and reinvest the principal and income of the Trust Fund
and keep Trust assets invested, without distinction between
principal and income, in securities or in property, real or
personal, wherever situated, as the Trustee deems advisable
including, but not limited to, stocks (common or preferred),
participation in any pooled or collective trust fund established
and maintained for the collective investment of employee benefit
funds, shares of open-end management type investment companies as
defined in the Investment Company Act of 1940, notes, bonds,
mortgages, and other evidences of indebtedness or ownership.
Except as allowed by an exemption existing according to ERISA or
an individual or blanket exemption obtained according in ERISA
408(a), the Trust Fund may not acquire or hold any real property
of an Employer or Affiliate that is not qualifying employer real
property according to ERISA 407(d)(4). In making such
investments, the Trustee shall not be restricted to securities or
other property of the character expressly authorized by the
applicable law for trust investments; but the Trustee must give
due regard to any limitations imposed by the Code or ERISA so
that at all times the Plan and the Trust remain qualified under
Code 401(a) and 501(a).
(d) Crestar Stock Fund. In managing and
administering the Trust Fund, the Trustee is authorized and
empowered to maintain the Crestar Stock Fund in accordance with
the terms of the Plan and this Trust Agreement and to invest and
reinvest contributions under the Plan and amounts which a
Participant elects to have invested in Crestar Stock pursuant to
the applicable provisions of the Plan in such Fund.
(1) Shares of Stock for the Crestar Stock Fund
shall be acquired by the Trustee as set forth in the
Plan. The Trustee may, to the extent it deems necessary
or appropriate to maintain the liquidity of the Fund to
provide for distributions, withdrawals, loans, and
investment transfers from the Crestar Stock Fund,
maintain in cash a part of the funds available for
investment in Stock and may invest such cash in suitable
cash equivalents pending investment in Stock. U.S.
Treasury Bills, commercial paper, or short term
investments of similar character shall be considered as
cash equivalents hereunder.
(2) In amplification of the preceding paragraph,
it is intended that the Trustee invest the amounts
described above in shares of Stock pursuant to the terms
of the Plan; but, if, in the discretion of the Trustee,
short term investments are deemed prudent and desirable
pending investment in Stock, the Trustee is specifically
authorized and empowered to make such investments and to
alter, change and vary such investments and reinvestment
and to determine the rate of interest or income yield
pursuant thereto to be realized for the Trust Fund and
the times within which all such investments and
reinvestment are to be made.
3.2 Additional Investment Powers of Trustee
Except as limited by the preceding section, the Trustee
has the following powers and authority in the administration and
investment of the Trust Fund within the Trustee's control, in
addition to all powers and authorities under common law,
statutory authority, including ERISA, and other provisions of the
Plan and this Agreement, to be exercised in its sole discretion,
but subject to Trust Agreement section 3.1:
(a) Acceptance, retention, disposal of property. To
accept, retain, and safeguard for as long as the Trustee deems
advisable any securities or other property received or acquired
as Trustee, whether or not the securities or other property would
normally be purchased as investments under this Trust Agreement
and regardless of any lack of diversification, risks, or
nonproductivity.
(b) Purchase of property. To purchase, or subscribe
for, and hold in its own name as nominee, securities or other
property (including put, call, and straddle options) as a proper
investment for the Trust Fund, and to retain such property in
trust, and with respect to the purchase of securities, and to
open and maintain margin accounts.
(c) Sale, transfer of property. To sell, assign,
exchange, convey, transfer, or otherwise dispose of any
securities or other property (including put, call, and straddle
options) held by the Trustee, by private contract or at public
auction, and for cash, credit, or other consideration, and in
connection with such sale or other disposition, to make, execute,
acknowledge, and deliver any and all instruments of conveyance or
assignment in such form and with such warranties and covenants as
the Trustee may deem proper. No person dealing with the Trustee
is bound to see to the application of the purchase money or other
consideration or to inquire into the validity, expediency, or
propriety of any sale or other disposition.
(d) Voting, ownership powers. To vote upon any
stocks, (including the stock of the Sponsor owned by the Plan)
bonds, or other securities; to give general or special proxies or
powers of attorney with or without power of substitution; to
exercise any conversion privileges, subscription rights, or other
options, and to make any incidental payments; to oppose, or to
consent to, or otherwise participate in, the reorganization,
consolidation, sale, merger, or other change of a corporation or
property in which the Trustee holds stocks, bonds, or other
securities, or in which the Trustee may be interested, and
(unless prohibited by statute) to delegate discretionary powers,
and to pay any related assessments or charges; and generally to
exercise any ownership powers over stocks, bonds, securities, or
other property held as part of the Trust Fund. Notwithstanding
any provision in this subsection, shares of Stock that are
allocated to Participants' Accounts shall be voted in accordance
with the provisions of Plan articles 5 and 12 and Code 409.
(e) Options, stand-by agreements. As to any Trust
asset susceptible to sale or exchange, to write and repurchase
options such as call options against securities or other property
or other forms of options directly related to any such call
options outstanding, and to enter into stand-by agreements for
future investments, either with or without a stand-by fee, and to
utilize similar investment techniques to the extent the Trustee
deems prudent under the circumstances.
(f) Cash. To keep such part of the Trust Fund in
cash or cash balances as the Trustee deems in the best interests
of the Participants or their Beneficiaries.
(g) Pooled funds. To limit investments to
participation in one or more pooled or collective trust funds
established and maintained for the collective investment of
qualified plans or to shares of open-end management type
investment companies as defined in the Investment Company Act of
1940.
(h) Loans. Subject to restrictions in statutes and
regulations and according to rules in the Plan and this Trust
Agreement, to obtain loans for the Trust Fund or to engage in
any similar transaction that is not prohibited under the Plan, in
the amount and on terms and conditions determined in a
nondiscriminatory manner any pursuant to applicable statutes and
regulations by the Trustee or by the Administrator under whose
direction the Trustee has so acted; and for any sum so borrowed,
to issue a promissory note as Trustee and to secure the note's
repayment by pledging Trust Fund assets, and to pay interest for
any monies so borrowed. No person lending money to the Trustee
is bound to see to the application of the money lent or to
inquire into the validity, expediency, or propriety of the
borrowing. The Trustee may lend money or property to any
borrower on any terms (as to security, repayment, and interest)
as the Trustee deems desirable, but the Trustee may make loans to
Participants or Beneficiaries only if such loans are permissible
under the terms of the Plan and then only in the amount and under
the conditions as directed by the Administrator.
(i) Transactions involving real estate. To execute
leases and subleases for as long as 99 years, even though the
term extends beyond the Trust's termination, and upon such
conditions (including, but not by way of limitation, agreements
for the purchase or disposal of buildings on such real estate and
options to the tenant to renew such lease from time to time, or
to purchase such property) as the Trustee deems proper; to
subdivide, develop, or improve real estate and to tear down,
repair, or alter improvements; to grant easements, give consents,
and make contracts relating to real estate or its use; to release
or dedicate any interest in real estate; and to purchase such
insurance on behalf of the Trust Fund at its expense, including,
without limitation, public liability, fire and extended coverage,
rent insurance, and such other insurance covering such other
risks as the Trustee may deem appropriate.
(j) Mortgages, guarantees. To renew or extend or
participate in the renewal or extension of a mortgage on terms
the Trustee deems advisable and to agree to a reduction in the
rate of interest on a mortgage or of a related guarantee in a
manner and to the extent the Trustee deems advisable for the
protection of the Trust Fund or the preservation of the value of
the investment; to waive a default--even in the performance of a
guarantee--or to enforce the default, whether in the performance
of a covenant or condition of a mortgage or in the performance of
a guarantee or to enforce a default in the manner and to the
extent the Trustee deems advisable; to exercise and enforce
rights of foreclosure; to bid in property on foreclosure; to take
a deed in lieu of foreclosure with or without paying a
consideration for it, and in connection with the taking, to
release the obligation on the bond secured by the mortgage; and
to exercise and enforce rights or remedies regarding a mortgage
or guarantee.
(k) Life insurance; annuities. When directed by the
Administrator or the Sponsor, to make or cause proper application
for life insurance policies or annuity contracts (including a
Group Annuity Contract) to be purchased as provided in the Plan
and this Agreement; to purchase and hold such policies or
contracts in trust according to the terms of this Trust Agreement
until the time of transfer and delivery as directed by the
Administrator or Sponsor to the persons then entitled to such
policies or contracts or to their proceeds.
(l) Deposits with banks or trust companies. To enter
into arrangements for the deposit of funds with banks or trust
companies (including a corporate Trustee or a related party as
permitted under ERISA 408(b)(4) and Code 4975(d)(4) or any
individual or blanket exemption issued pursuant to ERISA 408(a))
and in connection with the arrangements--
(1) to authorize the depositary to act as
custodian of the cash, securities, or other property
comprising the funds;
(2) to authorize the depositary to convert
the funds in whole or in part into, or to invest and
reinvest the funds in, securities of any kind and nature
permitted in this Agreement; and
(3) to provide for the payment to the
depositary of reasonable compensation for its services.
(m) Registration of property. To cause any
securities or other property held as part of the Trust Fund to be
registered in its own name or in the name of one or more of its
nominees, to retain such investments unregistered or to hold any
investments in bearer form, and to deposit any securities or
other property in a depositing or a clearing corporation; but the
books and records of the Trustee must at all times show that such
investments are part of the Trust Fund.
(n) Investment advisers. To enter into contracts, in
a form determined by the Trustee, with one or more persons,
firms, associations, or corporations to obtain advice and counsel
about the investment or administration of the Trust.
(o) Other advisers and agents. To appoint, employ,
and rely on counsel (who may be the Sponsor's counsel) and on
appraisers, investment analysts, and other agents (who may be any
person including the Sponsor or an Employer), and to pay their
reasonable expenses and compensation and to terminate their
employment or appointment; to vest any agent with discretionary
authority as to any part of the Trust Fund and functions related
to the Trust Fund when, in the Trustee's sole discretion, such
delegation is necessary to facilitate the Trust's operation and
is not inconsistent with the Trust's purposes or in contravention
of any law; and to require any reports, bonds, or written
agreement from any of its agents as the Trustee deems necessary
to properly monitor such agents.
(p) Claims, debts, damages. To settle, compromise,
adjust, abandon, or submit to arbitration any claims, debts, or
damages due or owing to or from the Trust Fund; to commence or
defend suits or legal or administrative proceedings relating to
the Trust Fund or any of its assets; and to represent the Trust
Fund in all suits or legal and administrative proceedings.
(q) Documents of transfer, other instruments. To
make, execute, acknowledge, and deliver documents of transfer and
conveyance or assignment and other instruments that may be
necessary or appropriate to carry out the Trustee's powers.
(r) Bonds. To act at any time and in any
jurisdiction without bond or other security for insuring the
faithful performance of the Trustee's duties.
(s) Formation of entities. To form corporations and
to create trusts to hold title to any securities or other
property, all upon such terms and conditions as the Trustee deems
advisable.
(t) Other powers. To do all acts, take part in all
proceedings, and exercise all rights and privileges, although not
specifically mentioned in this Agreement, as the Trustee deems
necessary to administer the Trust Fund and to carry out the
purposes of this Agreement.
3.3 Insurance Contracts; Annuities
In the event a Fiduciary having authority to direct the
Trustee under the Plan or this Agreement with respect to
investments directs the Trustee to invest Trust Fund assets in
insurance policies or annuity contracts (including a Group
Annuity Contract), the provisions of this section shall apply.
The Fiduciary directing the Trustee shall select the insurer or
insurers with respect to which such investments shall be made and
shall further direct such insurer or insurers to notify the
Administrator of all premiums or contributions due or to become
due, the respective amounts of any such premiums or
contributions, and the dates when the premiums or contributions
are due. Each such policy or contract held in the Trust Fund
shall designate the Trustee as the owner with the power to
exercise all rights, privileges, options, and elections granted
by or permitted under such policy or contract or under the rules
of the insurer. Despite the preceding, the Trustee's exercise of
any such incidents of ownership shall be subject to the direction
of the Fiduciary directing the investment and none of the assets
held by an insurer under any such policy or contract shall be
considered assets of the Trust except as otherwise provided by
law. The Trustee will, when purchasing investment products or
life insurance contracts from an insurer or insurers on behalf of
the Plan, invest the Plan funds or Participants' funds in a
manner that is consistent with the fiduciary duties under ERISA
404.
3.4 Investment Manager
(a) Appointment. At its own expense, the Sponsor
action of its Board, or if so authorized by the Board, the
Administrator, or any officer of the Sponsor or an Employer to
whom such authority is delegated, acting as a Named Fiduciary for
this purpose, may in its discretion appoint one or more
Investment Managers to direct the Trustee to manage, acquire, or
dispose of any or all the assets of the Trust Fund.
(b) Notice to Trustee. The Sponsor or the
Administrator, as appropriate, must notify the Trustee in writing
of the appointment of an Investment Manager and must furnish the
Trustee a copy of the Investment Manager's written acceptance of
its fiduciary responsibility to the Plan. The written notice
must specify that part of the Trust Fund that is subject to the
Investment Manager's control or the particular assets within the
Trust Fund that are subject to the Investment Manager's control.
(c) Changes related to Investment Manager. The
Sponsor or the Administrator or the designated officer, as
appropriate, must notify the Trustee in writing whenever an
Investment Manager is changed or terminated or resigns, or
whenever there is a change in the portion of the Trust Fund to be
managed by any Investment Manager or a change in the assets
within the Trust Fund that are within the control of the
Investment Manager. Notice to the Trustee must be given at least
30 days prior to the date any such event is to occur.
(d) Custody. An Investment Manager does not assume
custody of or custodial responsibility for Trust Fund assets
subject to the Investment Manager's control. Except as may
otherwise be provided in a custodial agreement not prohibited by
the Plan or this Agreement or ERISA, the Trustee retains custody
for all Trust Fund assets.
(e) Release of Trustee. The Trustee is released as
of the date of the appointment of an Investment Manager from any
obligation or liability for the management, investment, or
control of the Trust Fund assets for which the appointment is
made. The Trustee must follow the instructions of the appointed
Investment Manager with respect to the assets under the
Investment Manager's control, unless doing so would cause the
Trustee to incur liability for its acts as Trustee or would
result in knowing concealment of or participation in another
Fiduciary's breach of a duty owed to the Plan. The Trustee is
not required to ascertain whether any person or entity designated
as Investment Manager does, in fact, so qualify as such, and the
Trustee must be indemnified and held harmless by the Sponsor for
any liability or expense it may incur by reason of the person or
entity designated as Investment Manager not so qualifying.
3.5 Participant-Directed Investments
(a) Administrator's notice. The Plan allows
Participants to direct the investment of their individual
accounts under the Plan among certain investment funds. The
Administrator or its delegates shall receive the directions of
Participants with respect to their investment options and provide
notice of such directions to the Trustee within sufficient time
for the Trustee to act. Neither the Trustee nor the
Administrator will be held liable for the Participant's
investment choice, so long as the investment is made in
accordance with the provisions of the Plan.
(b) Trustee's compliance. The Trustee shall comply
as promptly as practicable with notice it receives from the
Administrator or its delegates regarding a Participant's
direction as to the investment of his Account. The Trustee shall
have no responsibility for complying with any such directions
that have not been received or for timely compliance with any
such directions that are not forwarded in sufficient time for the
Trustee to act on such directions. The Trustee may refuse to
comply with any such direction that the Trustee deems improper
under applicable law or contrary to the provisions of the Plan or
this Agreement, and in that event, the Trustee shall not be
liable for any loss or expense which may result from the
Trustee's refusal or failure to comply with such direction.
(c) Segregation of directed accounts. Any Account or
portion of an Account that is individually directed by a
Participant and invested in investment options not offered by the
Plan to all Participants, must be segregated from the General
Trust Fund for the purposes of allocating Trust Fund earnings and
administrative expenses. Any costs and expenses related to
compliance with the Participant's directions, including brokerage
fees, state and federal income taxes arising from unrelated
business taxable income, and any other incidental expenses, shall
be paid solely with funds from the Participant's directed
investment Account.
3.6 Prohibited Transactions
Except as otherwise permitted by applicable law,
regulations, or administrative exemptions, neither the Trustee
nor any other fiduciary shall cause this Trust to engage in any
of the prohibited transactions set forth in ERISA 406(a) or Code
4975 nor shall any Fiduciary engage in any of the prohibited
transactions set forth in ERISA 406(b) or Code 4975.
ARTICLE 4
OTHER DUTIES OF TRUSTEE
4.1 Payments from the Trust Fund
(a) At Administrator's direction. On the written
direction of the Administrator or its agent, the Trustee must
direct payments and transfers from the Trust Fund to the persons
or entities, in the manner, in the amounts, and for the purposes
specified in the written directions of the Administrator or its
agent. After payment, the amount paid is no longer a part of the
Trust Fund. Each such direction constitutes a representation by
the Administrator or its agent that the payment is one that the
Administrator or its agent is authorized to direct and is in
accordance with the Plan. The Trustee shall be fully protected
in relying on the direction of the Administrator or its agent in
making such payments and shall have no responsibility for the
application of the payments or for the adequacy of the Trust Fund
after payment to meet and discharge Plan liabilities.
(b) Other payments. Any and all payments provided
under this Trust Agreement article 4 and not made by the Sponsor
or Employers may be made by the Trustee without written direction
or approval of any kind from the Administrator.
(c) No prohibited transactions. No provision of this
section is effective to the extent that it would violate Code
4975 or ERISA 406 regarding compensation from the Trust to pay
an Employer's employee and regarding taxes imposed on prohibited
transactions by disqualified persons.
4.2 Trustee Compensation and Expenses
(a) Compensation. Any Trustee who receives full-time
pay as an Employee of the Sponsor or a Related Company is not
entitled to compensation for the performance of his duties as
Trustee, but he may be reimbursed for expenses properly and
actually incurred in the performance of his duties as Trustee, as
provided in the following subsection. Any other Trustee is
entitled to such reasonable compensation for services rendered by
it in such amount and on such basis as the Sponsor and the
Trustee may agree in writing from time to time.
(b) Expenses. The Trustee is entitled to be
reimbursed for its specific ordinary expenses, disbursements, and
advances incurred in performing its duties under this Agreement,
as agreed upon in writing by the Sponsor and the Trustee, except
that the Trustee is not entitled to be paid or reimbursed for any
such expense, disbursement, or advance that is attributable to
the Trustee's negligence, wilful misconduct, or bad faith.
(c) Source of payments. The Trustee's compensation
and authorized expenses will be paid by the Employers if the
Sponsor so agrees or, subject to section 3.6 of this Agreement,
from the Trust Fund if the Sponsor so directs. The Trustee must
render statements for such fees, compensation, and expenses no
less frequently than annually. If the Sponsor fails to pay (or
cause to be paid) the Trustee's compensation and authorized
expenses according to the agreement between the Sponsor and the
Trustee and if the failure continues for 30 days after the
Sponsor receives the Trustee's written request for payment,
subject to section 3.6 of this Agreement, the Trustee may
reimburse itself from the Trust Fund without the necessity of
instituting proceedings to foreclose upon the Trustee's lien
against the Trust Fund.
(d) Allocation of payments. Identifiable direct
expenses (including Trustee expenses and compensation) paid from
the Trust Fund and incurred because of an identifiable asset or
transaction must be charged against the appropriate account or
interest giving rise to the expense.
4.3 Payment of Taxes
(a) Taxes on Trust Fund. The Trustee shall pay from
the Trust Fund or withhold for satisfaction all taxes levied or
assessed on or in respect of Trust Fund assets or income other
than taxes properly attributable to Participants or their
Beneficiaries or taxes that the Company or an Employer are
required to pay directly. To the extent that any taxes are
incurred because of the investment in or receipt of an
identifiable asset or transaction, the taxes must be charged
against the appropriate accounts or interests, giving appropriate
effect to computations of income and deductions according to the
asset or transaction, and allocating any exemption available
among the taxable interests in proportion to tax liability
incurred.
(b) Validity of taxes. The Trustee may assume that
any taxes assessed on or with respect to Trust Fund assets or
income are lawfully assessed unless the Sponsor advises the
Trustee in writing that in the opinion of counsel for the
Sponsor, the taxes are or may be unlawfully assessed. When so
advised and requested in writing by the Sponsor, the Trustee must
contest the validity or the taxes in any manner deemed
appropriate by the Sponsor or its counsel, in which event the
Trustee must execute all documents, instruments, claims, and
petitions necessary or advisable in the opinion of the Sponsor or
its counsel for the refund, abatement, reduction, or elimination
of taxes. The Sponsor must reimburse the Trustee for any of the
Trustee's reasonable expenses in any such contest.
4.4 Transfers and Direct Rollovers
At the direction of the Administrator, the Trustee may
transfer the vested Account of a terminated Participant to
another qualified trust established to implement a qualified plan
or to an individual retirement account as provided in the Plan
provisions with respect to Direct Rollovers. At the direction of
the Administrator, the Trustee may accept funds from another
qualified trust for the Rollover Account of a Participant under
the Plan, either directly or through a rollover from an
individual retirement account established pursuant to Code 408
or another employer's plan and trust qualified under sections
401(a) and 501(a) of the Code. Any such amounts transferred to
the Trust Fund must be separately accounted for and must be
nonforfeitable.
4.5 Accounting
(a) Records and inspection. The Trustee must keep
accurate and detailed accounts of all investments, receipts,
disbursements, and other transactions. All accounts, books, and
records relating to Trust Fund transactions are open to
inspection and audit at any reasonable time by any person
designated by the Sponsor or the Administrator.
(b) Periodic reports. The Trustee shall file with
the Sponsor such reports concerning the Plan with such
information and at such times as the Trustee and the
Sponsor may agree. Within a reasonable time after the end of the
Fiscal Year and within 30 business days after a Trustee ceases to
serve as provided in Trust Agreement article 2, the Trustee or
the departing Trustee must file a written report of the
investments, receipts, disbursements, and other transactions
during the year or during the period from the close of the last
Fiscal Year or from its last statement to the date of the
Trustee's departure, including the current value of the Trust
Fund. A Trustee may apply to a court of competent jurisdiction
for the judicial settlement of its accounts.
(c) Actions for accounting. Except as specifically
provided by statute, no person other than the Sponsor or the
Administrator may require an accounting or bring an action
against the Trustee about the Trust or the actions of the
Trustee. The Trustee is not required to make reports to any
courts, except as specifically required by statute.
4.6 Valuation
(d) Reports required. As of the last Valuation Date
of the Plan Year and at such other times as may be agreed to by
the Sponsor and the Trustee, the Trustee must determine the fair-
market value of each asset in the Trust Fund and the net income
or loss (including expenses and other charges against the Trust
Fund) earned by the Trust Fund since the last preceding Valuation
Date and must make the adjustments relating to such
determinations as required by the Plan. The Trustee must report
those determinations to the Sponsor and the Administrator in
writing. Non-cash contributions are valued at fair-market value,
determined by the Trustee, on the actual date that the Trustee
accepts the property. The valuation determined is binding on the
Sponsor, the Employers, the Participants and their Beneficiaries,
and all other persons interested in the Plan and the Trust.
(e) Segregated assets. Any assets held by the
Trustee as segregated amounts or in separate accounts experience
gains or losses, contributions, and increases or decreases
separately from the General Trust Fund. In allocating expenses
to such segregated amounts or accounts, the Trustee must first
allocate expenses identifiable to such amount or account alone.
Next, the Trustee must allocate expenses attributable to all
segregated amounts or accounts and the General Trust Fund. The
Trustee has sole power to determine expense allocations, and the
Trustee's determination is conclusive.
(f) Allocations. After receiving the Trustee's
report, the Administrator or its agent will allocate as of each
Valuation Date the sums contributed by the Employers and by
Participants, if any, plus the net income or minus the net loss
of the Trust Fund plus the net appreciation or minus the net
depreciation and withdrawals and loans in the Trust assets to
separate bookkeeping accounts in the names of the respective
Participants under the Plan in accordance with the provision of
Plan article 4. The Trustee may act as the Administrator's agent
for purposes of this section if both parties so agree.
4.7 Other Duties
(g) Record keeping. If the Trustee accepts the
duties, the Administrator may appoint the Trustee to keep any
records required to be maintained for the Plan. At any time, the
Administrator may require assistance from the Trustee about the
results or specific transactions made by the Trustee, whether or
not at the direction of the Administrator or its agent.
(h) Other functions. The Trustee shall perform all
other functions that may be assigned to it by the Plan and this
Trust Agreement from time to time and such other functions as may
be agreed upon in writing by the Trustee and the Sponsor or the
Administrator from time to time.
4.8 Trustee Appointment of Agents
The Trustee is authorized to appoint agents with
discretionary authority as to any part of the Trust Fund and its
functions when, in the sole discretion of the Trustee, such
delegation is necessary to facilitate the operation of the Trust
and such delegation is not inconsistent with the purposes of the
Trust or in contravention of any law. In the delegation of such
discretionary authority, the Trustee may appoint as agent any
person or entity including the Sponsor. Upon such delegation,
the Trustee may require such reports, bonds, or written
agreements as it deems necessary to properly monitor the actions
of its delegate. The Trustee shall have the sole responsibility
for continuing or terminating any such delegation of
discretionary authority to any agent appointed by the Trustee
pursuant to this section.
4.9 Administration of Plan
(i) Duties of Administrator. The Trustee in its
capacity as Trustee is not responsible for the administration of
the Plan. The Trustee may assume the Administrator and other
authorized persons are discharging their duties under the Plan
and under this Trust Agreement until and unless it is notified to
the contrary in writing by the Sponsor or by any person known to
the Trustee to be covered under the Plan. If the Trustee
receives such written notice, the Trustee may exercise its own
discretion and may, if the Trustee so desires, apply to a court
of competent jurisdiction for guidance with respect to its
responsibilities.
(j) Reporting and disclosure; Participant records.
Except for returns and reports required on the Trust Fund
exclusively, the Administrator is responsible for complying with
all reporting and disclosure requirements under ERISA and under
the Code, and for maintaining records with respect to Participant
eligibility and coverage and with respect to claims presented and
paid. Except as otherwise required under the terms of this
Agreement or the Plan as the Trustee may otherwise agree in
writing, the Trustee shall not be required to maintain any
separate records or accounts with respect to any Plan
Participant; and any records or accounts required to be
maintained pursuant to the Plan or to comply with ERISA or the
Code shall be the responsibility of the Sponsor or the
Administrator. The Trustee shall furnish to the Sponsor such
information as it may require and the Trustee may agree in
writing to provide for purposes of fulfilling any duties
concerning reporting to state and federal agencies and to Plan
Participants or their Beneficiaries.
(k) Determination of contributions and benefits. The
Trustee has no right or duty to inquire into the amount of or the
method used in determining Employer contributions and has no duty
to compute or collect the amount of Plan contributions to be paid
to the Trust Fund. The Trustee is accountable only for funds or
property actually received as Trustee. The Trustee shall have no
authority concerning the entitlement of any person to Plan
benefits or the amount of any person's Plan benefit.
(l) Terminated Participants. When directed in
writing by the Administrator, the Trustee must segregate the
Accounts of terminated Participants in accordance with the
provisions of the Plan and make payments out of the Trust Fund
from time to time to the Participants or their Beneficiaries, in
the manner and in the amounts as may be specified in the written
instructions of the Administrator.
(m) Administrator's advice. The Trustee may consult
with the Administrator or the Committee to learn the meaning or
construction of any provision in the Plan or to determine its
fiduciary obligations or duties according to the Plan. After the
consultation, the Trustee may rely on the Administrator's written
interpretation or construction and is fully protected for any
action or failure to act based on good-faith reliance on the
Administrator's written advice.
ARTICLE 5
AMENDMENT, TERMINATION, AND MERGER
5.1 Amendments
(a) Authority of Sponsor. The Sponsor, by action of
its Board or its executive committee, reserves the right to amend
this Trust Agreement at any time and from time to time, in whole
or in part, or to terminate the Trust Agreement by a majority
vote of its members at a meeting, by unanimous consent, or in any
other manner permissible under applicable law. In addition, the
Sponsor's Board or executive committee may delegate to an
appropriate officer or officers of the Sponsor or an Employer or
to the Committee or another committee, all or part of the
authority to amend the Trust Agreement. No such amendment may be
made, however, that would violate the restrictions in the
following subsections or would violate the Plan's restrictions on
Plan and Trust Agreement amendments, including but not limited
to, the Plan's prohibitions on amendments that cut back benefits
of Participants or Beneficiaries or discriminate in favor of
Highly Compensated Employees.
(b) Retroactive changes. An amendment may be made
retroactively if it is necessary to bring the Trust Agreement
into conformity with the Code and Treasury regulations or with
any other statute or regulation applicable in order to permit an
Employer to deduct for income tax purposes all (or as much as the
law might allow) money and property contributed to the Trust
Fund.
(c) Trustee consent. No amendment may be made that
increases the duties or liabilities of the Trustee without the
Trustee's written consent.
(d) No diversion. Except to return amounts to the
Employers in accordance with Trust Agreement section 1.3, no
amendment may authorize or permit any assets of the Trust Fund
(other than those required to pay taxes and other reasonable
administration expenses) to be used for or diverted to purposes
other than for the exclusive benefit of Employees, Participants,
and their Beneficiaries.
(e) Third party rights. Any third party will be
protected in assuming that this Trust Agreement has not been
amended until it has received notice of the amendment.
5.2 Termination of Trust
(a) Termination, liquidation. The Trust Agreement
may be terminated or amended as provided in Trust Agreement
section 5.1 and the Plan, and the Trust Fund may be liquidated
according to the Plan and this Trust Agreement. This Trust
Agreement automatically terminates when there are no remaining
assets of the Trust Fund.
(b) Termination of Plan. The Sponsor has reserved
the right to discontinue Employer contributions and to terminate
the Plan at any time. Upon termination of the Plan, each
Participant (in the case of a complete Plan termination) or each
affected Participant (in the case of a partial Plan termination)
shall be fully vested in his accrued benefits under the Plan, to
the extent then funded. The Trustee must execute any documents
that will help accomplish the termination and must take no action
which the Trustee knows or should know would adversely affect the
qualified status of the Plan or the tax-exempt status of the
Trust under Code 401(a) and 501(a) or would not comply with the
applicable provisions of ERISA. This subsection shall not
prevent the Trustee from liquidating the Trust Fund as provided
in this section.
(c) Trustee's duties. If the Plan is terminated, the
Trustee on receipt of written instructions from the
Administrator must administer the Trust Fund as specified in
this Trust Agreement but subject to any specific provisions in
the Plan governing termination or partial termination. The
Administrator may either direct the Trustee according to the
terms of the Plan to maintain the assets of the Plan in trust and
distribute them pursuant to the terms of the Plan as if a
termination had not occurred, or it may direct the Trustee to
distribute all assets of the Trust Fund, less any amounts
withheld for charges and expenses payable from the Trust Fund to
such persons or to such other qualified plan and in such manner
as the Administrator directs. The Trustee may assume that any
such distributions directed by the Administrator are in full
compliance with the Plan and the law, and the Sponsor shall
indemnify and hold the Trustee harmless for any liability arising
from any such distribution made by the Trustee at the direction
of the Administrator.
(d) Judicial determination. The Trustee may seek a
judicial or administrative determination as to the proper method
of distribution of the Trust Fund upon termination of the Plan or
this Trust Agreement.
(e) Discharge after distributions. After the Trust
Fund is exhausted by Administrator-directed distributions,
modified according to any liquidation provisions, the Trustee is
discharged from all obligations under this Agreement, and no
Participant or Beneficiary has any further right or claim not
otherwise provided by statute.
5.3 Withdrawal from Trust Fund
(a) Notice. An Employer maintaining any qualified
plan that is funded, in whole or in part, through the Trust Fund
may terminate the Trust Agreement as to that qualified plan and
withdraw assets by giving at least 30 days advance written notice
of the intention to withdraw (unless the Sponsor's Board and the
Trustee agree to a shorter notice). If the qualified plan of the
withdrawing Employer is not to be terminated, then, as of the
date of withdrawal, the Trustee shall distribute securities,
property, and money of the Trust Fund representing the portion of
the Trust Fund allocated to the qualified plan being withdrawn to
the trustee or trustees designated by the withdrawing Employer
and such securities, property, or money shall thereafter be held
and invested as a separate trust pursuant to the terms of the
trust agreement adopted by the withdrawing Employer.
(b) Termination of a qualified plan. If a qualified
plan for which this Trust holds assets is terminated, the Trust
is not to be terminated except according to the provisions of the
Employer-maintained qualified plan that terminates last.
Distribution of the assets of a terminated qualified plan shall
be governed by the provisions of such Plan and this Trust
Agreement article 5.
5.4 Merger, Consolidation, or Succession
(a) Continuation of Plan by successor employer. If a
corporation with which the Sponsor is merged, or a corporation or
other legal entity that acquires substantially all the assets of
the Sponsor, elects pursuant to the Plan to continue the Plan,
the surviving or purchasing corporation or other legal entity
must so notify the Trustee in writing. After that, every
reference in this Trust Agreement to the Sponsor will be treated
as a reference to the surviving or purchasing corporation or
other legal entity.
(b) Plan not continued by successor employer. If the
Sponsor is liquidated or merged or consolidated with another
company or other legal entity and the Plan is not continued, this
Trust Agreement survives, and the Trust Fund continues in trust.
The Administrator or a person designated by the Sponsor succeeds
to the functions of the Sponsor and its Board under the Plan and
this Trust Agreement, including the function of naming a new
Administrator. If the Plan has no Administrator and none has
been designated as provided in this subsection, the Trustee may
appoint an Administrator.
(c) Restrictions. The merger or consolidation of the
Plan with, or a transfer of assets or liabilities of the Plan
from this Trust Fund to, another employee benefit plan is not
permitted unless each Participant is entitled to receive
immediately after that event a benefit that is equal to or
greater than the benefit to which he would have been entitled to
receive under the Plan if the Plan had terminated immediately
before the merger, consolidation, or transfer.
5.5 Approval of Appropriate Agencies
The Trustee, in its discretion, may condition delivery,
transfer, or distribution of any assets withdrawn or distributed
from the Trust Fund pursuant to this Trust Agreement article 5
upon receipt of assurances satisfactory to the Trustee that any
notice required to be given under ERISA or the Code has been
given and that any filing required to be made under ERISA or the
Code have been made, and that a termination has not adversely
affected the qualified status of the Plan. The Trustee is not
responsible under the Plan to give or apply for any such notice
or to make any such filings or to maintain any termination-
related records required under ERISA or the Code, all of which,
for purposes of this Trust Agreement, are the responsibility of
the Sponsor or the Sponsor's designee.
ARTICLE 6
MISCELLANEOUS
6.1 Rights of Participants, Beneficiaries, and Others
(a) Rights derive only from Plan. No Employee,
Participant, or Beneficiary or their representative has any
vested rights under this Trust Agreement except to the extent
that he has rights that have accrued under the Plan or under a
former Employer-maintained qualified plan for which the Trust
holds assets. The Sponsor and the Administrator have complete
control and authority to determine the existence or non-existence
and the nature and amount of the rights and interests of all
persons under the Plan and in or to the Trust Fund. The Trustee
has no power, authority, or duty with respect to such matters,
and has no responsibility to question or examine any
determination made by the Sponsor and Administrator or any
direction given by the Sponsor and Administrator to the Trustee
with respect to such matters.
(b) Trust Fund creates no separate rights. The
creation, continuation, or change of the Trust Fund (or any fund,
account, or trust) or any payment does not give an employee or
any person whose interest derives from an employee a non-
statutory legal or equitable right against the Sponsor or any
Employer; any officer, agent, or other person employed by the
Sponsor or any Employer; the Trustee or any co-Trustee; an
Investment Manager; or the Administrator. Participation in the
Plan does not give any employee of an Employer any right or
interest in the Trust Fund other than as provided in this
Agreement or in the Plan. This Trust Agreement creates no
employment rights and does not modify the terms of an
individual's employment with an Employer.
6.2 No Assignment
Except as permitted by law and specific Plan provisions,
no assignment of any rights or benefits arising under the Plan is
permitted or recognized, nor may any such rights or benefits be
subject to attachment or other legal or equitable process or
subject to the jurisdiction of any bankruptcy court.
6.3 No Guarantee of Plan Benefits
Neither the Trustee nor any Employer in any way
guarantees the adequacy of the Trust Fund for the payment of any
benefit or amount that may become due under the Plan to any
Participant or Beneficiary. Except as otherwise provided by
statute, each person having a claim under the Plan must look
solely to the assets constituting the Trust Fund for
satisfaction. Neither the Trustee nor any Employer guarantees
the payment of any benefit or amount that may be due under any
policy, contract or other investment vehicle of this Trust Fund.
6.4 Legal Action
(a) Agent for service of legal process. In all
matters regarding the Plan and this Agreement, the Sponsor's
General Counsel is agent for service of legal process.
(b) Necessary parties. Unless otherwise provided by
statute, and even then only to the extent explicitly permitted by
statute, in any action or proceeding involving the Plan or this
Trust Agreement or Trust Fund, or any Plan or Trust property, the
Trustee and the Sponsor are the only necessary parties. No
current or former Participant or his Beneficiary or any person
having or claiming to have an interest in the Trust Fund or under
the Plan or Trust Agreement, or to any Plan or Trust property is
entitled to any notice of process.
(c) Final judgments. A final judgment entered in an
action or proceeding against the Plan or Trust Fund that is not
appealed or appealable is binding and conclusive on the parties
to this Agreement and all person having or claiming to have any
interest in the Trust Fund or under the Plan.
6.5 Frustrated Actions
(a) Impossibility of performance. If it becomes
impossible for the Sponsor, the Administrator, an Investment
Manager, or the Trustee to perform an act, then that act must be
performed which, in the discretion of the Sponsor or the
Administrator most nearly carries out the intent and purpose of
the Plan and this Trust Agreement.
(b) Trustee's inability or unwillingness to comply.
If a Trustee is unable or unwilling to comply with instructions
or directions it receives from the Sponsor or the Administrator,
the Trustee may resign upon written notice to the Sponsor within
a reasonable time after the receipt of those instructions or
directions; and despite any other provisions in this Trust
Agreement, in that event, the Trustee so resigning has no
liability to any person for failure to comply with those
instructions or directions.
6.6 Binding Nature
This Agreement is binding upon the heirs, executors,
administrators, successors, and assigns of all parties, present
and future.
SIGNATURE PAGE
IN WITNESS WHEREOF, Crestar Financial Corporation,
through action of its Board, has caused this Trust Agreement for
the Crestar Merger Plan for Transferred Employees to be executed
on its behalf by a duly authorized officer, and the Trustee has
set his hand hereunto this _____ day of December, 1994.
CRESTAR FINANCIAL CORPORATION
By
______________________________
James M. Wilson, III
CRESTAR BANK, TRUSTEE
By
______________________________
EXHIBIT I
AMENDMENTS TO THE
CRESTAR MERGER PLAN FOR TRANSFERRED EMPLOYEES
AS AMENDED AND RESTATED THROUGH DECEMBER 31, 1994
The Crestar Merger Plan for Transferred Employees, as amended and
restated through December 31, 1994, is further amended as follows
to correct scriveners' errors:
1. Plan section 11.7(e) is revised to read as follows:
(e) Top-Heavy Valuation Date means, for a
Qualified Plan's plan year, the plan's most recent
valuation date occurring within a 12-month period
ending with the Top-Heavy Determination Date for that
plan year. A Defined Benefit Plan's Top-Heavy
Valuation Date must be the same valuation date used for
computing that plan's costs for determining minimum
funding according to Code section 412 for the plan year
that contains the Top-Heavy Determination Date,
regardless of whether a valuation is performed that
year.
2. The heading in Exhibit B is amended by changing "PRIOR
CONTRIBUTIONS" to "PRIOR VESTING".
PROPOSED AMENDMENTS TO THE
CRESTAR MERGER PLAN FOR TRANSFERRED EMPLOYEES
AS AMENDED AND RESTATED THROUGH DECEMBER 31, 1994
The Crestar Merger Plan for Transferred Employees, as amended and
restated through December 31, 1994, is further amended as follows
to correct scriveners' errors:
1. Plan section 11.7(e) is revised to read as follows:
(e) Top-Heavy Valuation Date means, for a
Qualified Plan's plan year, the plan's most recent
valuation date occurring within a 12-month period
ending with the Top-Heavy Determination Date for that
plan year. A Defined Benefit Plan's Top-Heavy
Valuation Date must be the same valuation date used for
computing that plan's costs for determining minimum
funding according to Code section 412 for the plan year
that contains the Top-Heavy Determination Date,
regardless of whether a valuation is performed that
year.
2. The heading in Exhibit B is amended by changing "PRIOR
CONTRIBUTIONS" to "PRIOR VESTING".
CERTIFICATE
CRESTAR MERGER PLAN FOR TRANSFERRED EMPLOYEES
AS AMENDED AND RESTATED THROUGH DECEMBER 31, 1994
I, James J. Kelley, hereby certify that I am the duly
appointed and qualified Director of Human Resources of Crestar
Financial Corporation, and that the amendments to the Crestar
Merger Plan for Transferred Employees, as amended and restated
through December 31, 1994, and subsequently amended, as set forth
in Exhibit I attached hereto were implemented by me this date
pursuant to action of the Board of Directors on January 27, 1995,
which action remains in full force and effect as of the date of
this certificate.
Dated:______________ ___________________________
James J. Kelley
Director of Human Resources
EXHIBIT I
AMENDMENTS TO THE
CRESTAR MERGER PLAN FOR TRANSFERRED EMPLOYEES
AS AMENDED AND RESTATED THROUGH DECEMBER 31, 1994
The Crestar Merger Plan for Transferred Employees, as amended and
restated through December 31, 1994, and subsequently amended, is
further amended as follows, effective as of January 1, 1996, and
to be implemented as soon as practicable thereafter:
1. Plan section 5.1 is amended by adding the following
paragraphs (5), (6) and (7) to the end of Plan section
5.1(a):
(5) Government Bond Fund seeks to provide a high
level of current income in a manner consistent with
preserving principal by investing primarily in
obligations issued or guaranteed by the U.S. Government
or its agencies or instrumentalities (U. S. Government
Securities). In seeking current income, this fund may
also consider potential for capital gains.
(6) Capital Appreciation Fund seeks to provide
long-term capital appreciation by investing primarily
in equity securities of companies with medium to large
market capitalizations.
(7) Other Mutual Funds, whether or not they are
CrestFunds, Inc. mutual funds, may be offered from time
to time on the recommendation of the Committee. In
addition, on the recommendation of the Committee, any
mutual funds available for investment may be dropped
from the funds available for investment by
Participants. The Administrator shall communicate any
such changes in investment fund availability to
Participants and shall provide them such information
about such changes as the Administrator deems necessary
or appropriate.
2. The first sentence of Plan section 5.2(a) is revised to read
as follows:
After a Participant has made the initial investment
election provided under Plan section 5.2, he may elect
to transfer a portion of his balance in any investment
fund to any other investment fund available under the
Plan, provided that any such transfer must be in
multiples of 10% of the balance of his Account in the
fund from which such transfer is to be made.
3. Article 7 of the Plan is amended by adding the following
Plan section 7.9:
7.9 Partial Distributions to Terminated Employees
(a) Eligibility. A Participant who has separated
from service with the Employers, is not required to
receive a cash-out payment pursuant to Plan section
8.1(a), and does not elect to receive a total
distribution of his Account may request a partial
distribution of his vested Account balance one time in
each calendar year.
(b) Procedure. A Participant who is eligible in
accordance with subsection (a) and wishes to receive a
partial distribution from his Account must file a
written request with the Administrator. For purposes
of the withdrawal, the Participant's Account will be
valued in a manner consistent with the valuation of
Accounts for which in-service withdrawals are requested
pursuant to Plan section 7.5(c). A Participant's
partial distribution pursuant to this Plan section may
not be less than $100 or the total of his vested
Account balance. The distribution request must comply
with any other rules and procedures adopted by the
Administrator or the Committee as applicable to all
partial distributions under this Plan section. For
example, such rules and procedures may state that the
Participant may choose which of his eligible Accounts
are to be liquidated for his distribution request or
which of the investment funds in which his Account is
invested are to be liquidated to provide for his
distribution request, or they may state a specific
ordering of eligible Accounts and investment funds to
be liquidated to provided for the Participant's
distribution request.
(c) Other rules. Partial distributions from a
terminated Participant's Account shall be paid in
accordance with the provisions of Plan section 8.2(a),
(c) and (d) and must comply with the spousal consent
requirements of Plan sections 8.4 and 8.5 and with Plan
section 8.4 with respect to distribution requirements
under Code 401(a)(9).
CRESTAR FINANCIAL CORPORATION
CERTIFICATE
CRESTAR MERGER PLAN FOR TRANSFERRED EMPLOYEES
I, James J. Kelley, hereby certify that I am the duly
appointed and qualified Human Resources Director of Crestar
Financial Corporation, and that the amendments to the Crestar
Merger Plan for Transferred Employees as forth in Exhibit I
attached hereto were implemented by me this date pursuant to
recommendations of the Benefits Administrative Committee and
action of the Board of Directors taken on December 16, 1994,
which action remains in full force and effect as of the date of
this certificate.
Dated: ___________________
_________________________________
James J. Kelley
Human Resources Director
EXHIBIT I
AMENDMENTS TO THE
CRESTAR MERGER PLAN FOR TRANSFERRED EMPLOYEES
AS AMENDED AND RESTATED THROUGH DECEMBER 31, 1994
The Crestar Merger Plan for Transferred Employees, as amended and
restated through December 31, 1994, and subsequently amended, is
further amended as follows, effective as of November 1, 1996,
unless otherwise stated:
1. Plan section 5.4(e) is amended by adding the following
language to the end of that subsection:
The Plan Administrator may also take any action
authorized under this subsection to be taken by the
Trustee.
2. The second sentence of Plan section 8.2(a) beginning with
the words "Notwithstanding the preceding sentence," is
deleted and the following sentence is added to the end of
that subsection:
Despite the preceding provisions of this subsection
(a), the Plan Administrator may adopt and announce
rules that restrict or prohibit the election of a
distributee who is an officer of an Employer required
to file reports under 16(a) of the Securities Exchange
Act of 1934 to have the whole shares of Stock credited
to his Account distributed in cash.
3. Plan section 8.2(c) is deleted.
CRESTAR FINANCIAL CORPORATION
CERTIFICATE
CRESTAR MERGER PLAN FOR TRANSFERRED EMPLOYEES
I, James J. Kelley, hereby certify that I am the duly
appointed and qualified Human Resources Director of Crestar
Financial Corporation, and that the amendments to the Crestar
Merger Plan for Transferred Employees as forth in Exhibit I
attached hereto were implemented by me this date pursuant to
action of the Board of Directors taken on December 16, 1994,
which action remains in full force and effect as of the date of
this certificate.
Dated: ___________________
_________________________________
James J. Kelley
Human Resources Director
CRESTAR FINANCIAL CORPORATION
CERTIFICATE
CRESTAR MERGER PLAN FOR TRANSFERRED EMPLOYEES
I, James J. Kelley, hereby certify that I am the duly
appointed and qualified Human Resources Director of Crestar
Financial Corporation, and that the amendments to the Crestar
Merger Plan for Transferred Employees as forth in Exhibit I
attached hereto were implemented by me this date pursuant to
action of the Board of Directors taken on December 16, 1994,
which action remains in full force and effect as of the date of
this certificate.
Dated: ___________________
_________________________________
James J. Kelley
Human Resources Director
CRESTAR FINANCIAL CORPORATION
CERTIFICATE
MERGER OF THE
CITIZENS BANK OF MARYLAND DEFERRED PROFIT SHARING PLAN
INTO THE
CRESTAR MERGER PLAN FOR TRANSFERRED EMPLOYEES
I, James J. Kelley, hereby certify that I am the duly
appointed and qualified Human Resources Director of Crestar
Financial Corporation, and that the resolutions and amendments
relating to the Citizens Bank of Maryland Deferred Profit Sharing
Plan and the Crestar Merger Plan for Transferred Employees as set
forth in Exhibit I, attached to this certificate, were
implemented by me this date pursuant to action of the Executive
Committee of the Board of Directors of Crestar Financial
Corporation taken on June 4, 1996, and action of the Board of
Directors of Citizens Bank of Maryland taken on December 18,
1996, which actions remain in full force and effect as of the
date of this certificate.
Dated: ___________________
_________________________________
James J. Kelley
Human Resources Director
Seen and Agreed To:
CRESTAR BANK, Trustee of the
Crestar Merger Plan for Transferred Employees
By: _______________________________________
Date: _______________________
CRESTAR BANK, Trustee of the
Citizens Bank of Maryland Deferred Profit Sharing Plan
By: _______________________________________
Date: _______________________
EXHIBIT I
RESOLUTIONS RELATING TO THE AMENDMENT AND MERGER OF
THE CITIZENS BANK OF MARYLAND DEFERRED PROFIT SHARING PLAN
INTO
THE CRESTAR MERGER PLAN FOR TRANSFERRED EMPLOYEES
RESOLVED, that effective September 2, 1997 (the "Merger
Date"), the Citizens Bank of Maryland Deferred Profit Sharing
Plan, as amended and restated effective January 1, 1989, and
subsequently amended (the "Citizens 401(k) Plan"), and the
Crestar Merger Plan for Transferred Employees, as amended and
restated through December 31, 1994, and subsequently amended (the
"Merger Plan"), are further amended to provide that the Citizens
401(k) Plan is amended to be, and is merged into, the Merger
Plan; and
FURTHER RESOLVED, that as of the Merger Date or as soon as
practicable thereafter, the assets of the Citizens 401(k) Plan
shall be transferred to the trustee of the Merger Plan and
combined with the assets of the Merger Plan's Trust; and
FURTHER RESOLVED, that as of the date of such transfer of
assets to the Merger Plan, the Merger Plan shall assume the
liabilities of the Citizens 401(k) Plan for payment of benefits
to individuals who are participants and beneficiaries under the
Citizens 401(k) Plan immediately prior to such transfer, and any
benefit features, rights and options with respect to the accounts
transferred from the Citizens 401(k) Plan shall be preserved to
the extent required by Section 411(d)(6) of the Internal Revenue
Code of 1986, as amended (the "Code"); and
FURTHER RESOLVED, that the administrators and trustees of
the Plans are authorized and directed to execute such documents
and to take such actions as may be necessary or appropriate to
effect such transfer of assets and liabilities to the Merger Plan
and such actions they have taken in contemplation of such
transfer of assets are hereby approved, ratified and confirmed;
and
FURTHER RESOLVED, that, in accordance with the regulations
under Section 414(l) of the Code, the sum of the account balances
in each Plan equals the fair market value (determined as of the
Merger Date) of the entire Plan assets, and immediately after the
merger, each participant in the Merger Plan shall have an account
balance equal to the sum of the account balances the participant
had in both Plans immediately prior to the merger; and
FURTHER RESOLVED, that the trustee and administrator of the
Merger Plan are authorized and directed to take such action as
may be necessary or appropriate to establish accounts under the
Merger Plan for such transferred assets or to combine such
transferred assets with existing accounts of participants in the
Merger Plan who are participants in the Citizens 401(k) Plan
immediately prior to the merger.
CRESTAR FINANCIAL CORPORATION
CERTIFICATE
MERGER OF THE
INDEPENDENT BANK PROFIT SHARING PLAN
INTO THE
CRESTAR MERGER PLAN FOR TRANSFERRED EMPLOYEES
I, James J. Kelley, hereby certify that I am the duly
appointed and qualified Human Resources Director of Crestar
Financial Corporation, and that the resolutions relating to the
merger of the Independent Bank Profit Sharing Plan into the
Crestar Merger Plan for Transferred Employees as set forth in
Exhibit I attached to this certificate were implemented by me
this date pursuant to action of the Board of Directors taken on
December 16, 1994, which action remains in full force and effect
as of the date of this certificate.
Date:__________________
____________________________________________
James J. Kelley
Human Resources Director
Seen and Agreed To:
CRESTAR BANK,
Trustee of the Merger Plan for Transferred Employees
By: ________________________
CRESTAR BANK,
Trustee of the Independent Bank Profit Sharing Plan
By: ________________________
EXHIBIT I
RESOLUTIONS RELATING TO THE MERGER OF THE
INDEPENDENT BANK PROFIT SHARING PLAN
INTO THE
CRESTAR MERGER PLAN FOR TRANSFERRED EMPLOYEES
RESOLVED, that effective June 28, 1996, (the "Merger Date"),
the Independent Bank Profit Sharing Plan, as amended and restated
effective January 1, 1989, and subsequently amended (the
"Independent PS Plan") and the Crestar Merger Plan for
Transferred Employees, as amended and stated December 31, 1994,
and subsequently amended (the "Merger Plan"), are further amended
to provide that the Independent PS Plan is merged into the Merger
Plan; and
FURTHER RESOLVED, that as of the Merger Date or as soon as
practicable thereafter, the assets of the Independent PS Plan's
Trust shall be transferred to the trustee of the Merger Plan and
combined with the assets of the Merger Plan's Trust; and
FURTHER RESOLVED, that the administrators and trustees of
the Plans are authorized and directed to execute such documents
and to take such actions as may be necessary or appropriate to
effect such transfer of assets to the Merger Plan; and
FURTHER RESOLVED, that, in accordance with the regulations
under Section 414(l) of the Internal Revenue Code of 1986, as
amended (the "Code"), the sum of the account balances in each
Plan equals the fair market value (determined as of the Merger
Date) of the entire Plan assets, and immediately after the
merger, each participant in the Merger Plan shall have an account
balance equal to the sum of the account balances the participant
had in both Plans immediately prior to the merger; and
FURTHER RESOLVED, that the administrator of the Merger Plan
is authorized and directed to take such action as may be
necessary or appropriate to establish accounts under the Merger
Plan for such transferred assets or to combine such transferred
assets with existing accounts of participants in the Merger Plan
who are participants in the Independent PS Plan immediately prior
to the merger; and
FURTHER RESOLVED, that as of the date of such transfer of
assets to the Merger Plan, the Merger Plan shall assume the
liabilities of the Independent PS Plan for payment of benefits,
and any benefit features, rights and options with respect to the
accounts transferred from the Independent PS Plan shall be
preserved to the extent required by Section 411(d)(6) of the
Code.
CRESTAR FINANCIAL CORPORATION
CERTIFICATE
MERGER OF THE
JEFFERSON SAVINGS AND LOAN ASSOCIATION
401(k) PROFIT SHARING PLAN
INTO THE
CRESTAR MERGER PLAN FOR TRANSFERRED EMPLOYEES
I, James J. Kelley, hereby certify that I am the duly
appointed and qualified Human Resources Director of Crestar
Financial Corporation, and that the resolutions relating to the
merger of the Jefferson Savings and Loan Association 401(k)
Profit Sharing Plan into the Crestar Merger Plan for Transferred
Employees as set forth in Exhibit I attached to this certificate
were implemented by me this date pursuant to action of the Board
of Directors taken on December 16, 1994, which action remains in
full force and effect as of the date of this certificate.
Date:__________________
____________________________________________
James J. Kelley
Human Resources Director
Seen and Agreed To:
CRESTAR BANK,
Trustee of the Merger Plan for Transferred Employees
By: ________________________
CRESTAR BANK,
Trustee of the Jefferson Savings and Loan Association 401(k)
Profit Sharing Plan
By: ________________________
EXHIBIT I
RESOLUTIONS RELATING TO THE MERGER OF THE
JEFFERSON SAVINGS AND LOAN ASSOCIATION
401(k) PROFIT SHARING PLAN
INTO THE
CRESTAR MERGER PLAN FOR TRANSFERRED EMPLOYEES
RESOLVED, that effective June 28, 1996, (the "Merger Date"),
the Jefferson Savings and Loan Association 401(k) Profit Sharing
Plan, as amended and restated October 1, 1990, and subsequently
amended (the "Jefferson 401(k) Plan") and the Crestar Merger Plan
for Transferred Employees, as amended and stated December 31,
1994, and subsequently amended (the "Merger Plan"), are further
amended to provide that the Jefferson 401(k) Plan is merged into
the Merger Plan; and
FURTHER RESOLVED, that as of the Merger Date or as soon as
practicable thereafter, the assets of the Jefferson 401(k) Plan's
Trust shall be transferred to the trustee of the Merger Plan and
combined with the assets of the Merger Plan's Trust; and
FURTHER RESOLVED, that the administrators and trustees of
the Plans are authorized and directed to execute such documents
and to take such actions as may be necessary or appropriate to
effect such transfer of assets to the Merger Plan; and
FURTHER RESOLVED, that, in accordance with the regulations
under Section 414(l) of the Internal Revenue Code of 1986, as
amended (the "Code"), the sum of the account balances in each
Plan equals the fair market value (determined as of the Merger
Date) of the entire Plan assets, and immediately after the
merger, each participant in the Merger Plan shall have an account
balance equal to the sum of the account balances the participant
had in both Plans immediately prior to the merger; and
FURTHER RESOLVED, that the administrator of the Merger Plan
is authorized and directed to take such action as may be
necessary or appropriate to establish accounts under the Merger
Plan for such transferred assets or to combine such transferred
assets with existing accounts of participants in the Merger Plan
who are participants in the Jefferson 401(k) Plan immediately
prior to the merger; and
FURTHER RESOLVED, that as of the date of such transfer of
assets to the Merger Plan, the Merger Plan shall assume the
liabilities of the Jefferson 401(k) Plan for payment of benefits,
and any benefit features, rights and options with respect to the
accounts transferred from the Jefferson 401(k) Plan shall be
preserved to the extent required by Section 411(d)(6) of the
Code.
CRESTAR FINANCIAL CORPORATION
CERTIFICATE
MERGER OF THE
TIDEMARK BANK EMPLOYEES' RETIREMENT
AND PROFIT SHARING PLAN
INTO THE
CRESTAR MERGER PLAN FOR TRANSFERRED EMPLOYEES
I, James J. Kelley, hereby certify that I am the duly
appointed and qualified Human Resources Director of Crestar
Financial Corporation, and that the resolutions relating to the
merger of the TideMark Bank Employees' Retirement and Profit
Sharing Plan into the Crestar Merger Plan for Transferred
Employees as set forth in Exhibit I attached to this certificate
were implemented by me this date pursuant to action of the Board
of Directors taken on December 16, 1994, which action remains in
full force and effect as of the date of this certificate.
Date: __________________
_________________________________________
James J. Kelley
Human Resources Director
Seen and Agreed To:
CRESTAR BANK, Trustee of the
Crestar Merger Plan for Transferred Employees
By: ________________________
Date: ______________________
CAPITAL GUARDIAN TRUST COMPANY, Trustee of the
TideMark Bank Employees' Retirement and Profit Sharing Plan
By: ________________________
Date: ______________________
RESOLUTIONS RELATING TO THE MERGER OF THE
TIDEMARK BANK EMPLOYEES' RETIREMENT
AND PROFIT SHARING PLAN
INTO THE
CRESTAR MERGER PLAN FOR TRANSFERRED EMPLOYEES
RESOLVED, that effective June 28, 1996, (the "Merger Date"),
the TideMark Bank Employees' Retirement and Profit Sharing Plan,
as amended and restated July 1, 1994 and as subsequently amended
(the "TideMark 401(k) Plan") and the Crestar Merger Plan for
Transferred Employees, as amended and stated December 31, 1994,
and subsequently amended (the "Merger Plan"), are further amended
to provide that the TideMark 401(k) Plan is merged into the
Merger Plan; and
FURTHER RESOLVED, that as of the Merger Date or as soon as
practicable thereafter, the assets of the TideMark 401(k) Plan's
Trust shall be transferred to the trustee of the Merger Plan and
combined with the assets of the Merger Plan's Trust; and
FURTHER RESOLVED, that the administrators and trustees of
the Plans are authorized and directed to execute such documents
and to take such actions as may be necessary or appropriate to
effect such transfer of assets to the Merger Plan; and
FURTHER RESOLVED, that, in accordance with the regulations
under Section 414(l) of the Internal Revenue Code of 1986, as
amended (the "Code"), the sum of the account balances in each
Plan equals the fair market value (determined as of the Merger
Date) of the entire Plan assets, and immediately after the
merger, each participant in the Merger Plan shall have an account
balance equal to the sum of the account balances the participant
had in both Plans immediately prior to the merger; and
FURTHER RESOLVED, that the administrator of the Merger Plan
is authorized and directed to take such action as may be
necessary or appropriate to establish accounts under the Merger
Plan for such transferred assets or to combine such transferred
assets with existing accounts of participants in the Merger Plan
who are participants in the TideMark 401(k) Plan immediately
prior to the merger; and
FURTHER RESOLVED, that as of the date of such transfer of
assets to the Merger Plan, the Merger Plan shall assume the
liabilities of the TideMark 401(k) Plan for payment of benefits,
and any benefit features, rights and options with respect to the
accounts transferred from the TideMark 401(k) Plan shall be
preserved to the extent required by Section 411(d)(6) of the
Code.
CRESTAR MERGER PLAN FOR TRANSFERRED EMPLOYEES
NON-HARDSHIP WITHDRAWAL INSTRUCTIONS
Failure to follow these instructions and complete your form in
full
may delay the valuation of your account.
A. Participant Data
If you have any updates to the information pre-printed here,
please mark through incorrect information and write in
corrections. Please notify the Benefits Department of any mail
code changes.
Note that only one non-hardship withdrawal may be taken per
calendar year.
B. Type of Withdrawal
Indicate either Check or Crestar Stock Plus Check. If you
choose Stock Plus Check, it will take approximately three
additional weeks for your Stock portion to be transferred due to
the length of time required to have the shares re-registered.
C. Withholding/Direct Rollover Election
Indicate if you would like all or a portion of your
distribution paid to you or directly rolled over to the custodian
of an IRA or the trustee of another qualified plan.
If you elect to have the funds paid directly to you, the
Plan is required to withhold 20% for Federal income taxes and 4%
for Virginia State income taxes when required.
If you elect to have your funds directly rolled into an IRA
or qualified plan, you must complete the following information:
a. Name, address, city, state and zip of rollover
trustee/custodian
b. Tax ID number (only needed if requesting shares of
Crestar stock)
c. Account number (if available)
d. Contact person/phone number for trustee/custodian
D. Participant Certification
Sign this section.
Mail this form, when complete, to Thrift Plan, TOC 8100. If
mailing outside of Crestar's internal mail system, mail to:
Benefits Department - TOC 8100 - Crestar Thrift Plan, 1030 Wilmer
Avenue, Richmond, VA 23227.
If your completed form is received by the Benefits
Department
during any pay period, the proceeds will be distributed at
the end
the following pay period.
EXHIBIT I
CRESTAR MERGER PLAN FOR TRANSFERRED EMPLOYEES
NON-HARDSHIP WITHDRAWAL PROCEDURES
The following procedures are effective for Non-Hardship
Withdrawal Requests made pursuant to Plan sections 7.5 and
processed on and after January 1, 1996.
Amounts needed for a participant's non-hardship withdrawal will
be taken from each of the participant's accounts in the order
listed below. If there are insufficient funds in an account for
the withdrawal, funds will be taken from the next account listed.
1. After-Tax Account
2. Rollover Account
3. Pre-1987 Employer Account
4. Employer Matching Account
5. Profit-Sharing Account
For each account, the trustee will liquidate assets from the
investments in that account in the order listed below (or, if
applicable, distribute Stock from the Crestar Stock Fund at the
participant's request) until the withdrawal amount is reached:
1. Income Fund
2. Cash Reserve Fund
3. Limited Term Bond Fund
4. Government Bond Fund
5. Value Fund
6. Capital Appreciation Fund
7. Special Equity Fund
8. Crestar Stock Fund
For example, for a non-hardship withdrawal request, the trustee
will first take all available amounts from the participant's
After-Tax Account. Within the After-Tax Account, the trustee
will first liquidate investments in the Income Fund and if there
are insufficient assets, then the trustee will liquidate
investments in the Cash Reserve Fund, and then investments in the
Limited Term Bond Fund, and so on, until the amount of the
withdrawal request is satisfied or the After-Tax Account balance
is zero. If there are insufficient funds in the After-Tax
Account to satisfy the withdrawal request, the trustee will then
take amounts from the participant's Rollover Account, beginning
first with investments in the Income Fund, then the Cash Reserve
Fund, etc. This ordering will continue until the withdrawal
equals the total amount requested.
If a participant requests a stock distribution from the Crestar
Stock Fund, then the trustee will have the appropriate number of
Crestar stock certificates re-registered instead of liquidating
investments in the Crestar Stock Fund.
Path: DOCSOPEN\RICHMOND\02720\33411\002244\1y9c01!.DOC
Doc #: 91056; V. 1
Doc Name: Merger Plan, Trust and Amendments for Merger S8 Filing
Author: Ritter, Jennings, 02720
Last Edit: 11/19/97
Exhibit 5
File No.33411.2244
(804) 788-8402
November 20, 1997
The Board of Directors
Crestar Financial Corporation
919 E. 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 300,000 shares of the Company's Common Stock (the
"Shares"), to be offered pursuant to the Crestar Merger
Plan For Transferred Employees (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 and
the applicable Agreements (as defined in 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 23.3
INDEPENDENT ACCOUNTANTS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Crestar Financial Corporation on Form S-8 of our
report dated January 16, 1997 on Citizens Bancorp as of and for
the year ended December 31, 1996, which is incorporated by
reference in the Annual Report on Form 10-K of Crestar Financial
Corporation for the year ended December 31, 1996.
/s/ Deloitte & Touche LLP
Richmond, Virginia
November __, 1997
