II - 7
As filed with the Securities and Exchange Commission on November
19, 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 EMPLOYEES'
THRIFT AND PROFIT-SHARING PLAN
(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 5,000,000 $48.5315 $242,657,50 $73,533
par value shares N/A 0 N/A
Preferred Share 5,000,000 N/A
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 annual reports of the Crestar Employees' Thrift and
Profit-Sharing Plan (the "Plan") pursuant to Section 13(a) or
15(d) of the Exchange Act, and 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 Employees' Thrift and Profit-Sharing Plan.
5 Opinion of Hunton & Williams as to the legality of the
securities being registered.
23.1 Consent of Hunton & Williams (included in the opinion
filed as Exhibit 5 to the Registration Statement).
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of 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, III Director
G. Gilmer Minor, III
By /s/ Gordon F. Rainey, Director
Jr.
Gordon F. Rainey, Jr.
By /s/ Frank S. Royal, M.D. Director
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 EMPLOYEES' THRIFT AND
PROFIT-SHARING PLAN
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 EMPLOYEES'
THRIFT AND PROFIT-SHARING PLAN
(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 Employees' Thrift
and Profit-Sharing Plan.
5 Opinion of Hunton &
Williams as to the
legality of the
securities being
registered.
23.1 Consent of Hunton &
Williams (included in the
opinion filed as Exhibit
5 to the Registration
Statement).
23.2 Consent of KPMG Peat
Marwick LLP.
23.3 Consent of Deloitte &
Touche LLP.
24 Power of Attorney for
Officers and Directors
(included on signature
page).
Path: DOCSOPEN\RICHMOND\08070\33411\001164\1%%r01!.DOC
Doc #: 86869; 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 Employees' Thrift and Profit Sharing Plan
As Amended and Restated Through December 31, 1994
CRESTAR EMPLOYEES' THRIFT AND PROFIT SHARING PLAN
As Amended and Restated Through December 31, 1994
TABLE OF CONTENTS
INTRODUCTION i
ARTICLE 1DEFINITIONS I-1
ARTICLE 2PLAN MEMBERSHIP II-1
2.1 Conditions of Eligibility II-1
2.2 Employment Status Changes II-1
2.3 Termination of Participation II-2
2.4 Application for Participation II-2
2.5 Administrator Determination II-2
ARTICLE 3CONTRIBUTIONS III-1
3.1 Certain Contributions Suspended III-1
3.2 401(k) Contributions III-1
3.3 Other Limitations on 401(k) Contributions III-2
3.4 Matching Contributions III-4
3.5 Limitations on Matching Contributions III-5
3.6 Profit Sharing Contributions III-6
3.7Qualified Nonelective Contributions and Qualified Matching
Contributions III-8
3.8 Rollover Contributions III-9
3.9 Limitations on Employer Contributions. III-9
3.10 Contribution Records III-9
3.11Allocation of Employer Contribution among
Employers III-9
ARTICLE 4ALLOCATIONS IV-1
4.1 Separate Accounts IV-1
4.2Allocation of Contributions Between Subaccounts IV-1
4.3 Excess Deferrals IV-2
4.4 Excess 401(k) Contributions IV-3
4.5 Excess Additional Contributions IV-3
4.6 Excess Aggregate Contributions IV-4
4.7 Compliance with Code 415 IV-4
4.8 Annual Addition Limitations IV-5
4.9 Excess Annual Additions IV-6
4.10 Defined Benefit Plan Participation IV-7
ARTICLE 5INVESTMENT OPTIONS V-1
5.1 Investment Options. V-1
5.2 Initial Investment Election V-1
5.3 Cross-Over Elections for Account Balances V-1
5.4 Crestar Stock Fund V-2
5.5 Income Fund V-3
5.6 Equity Fund V-4
5.7 Other Investment Funds V-4
ARTICLE 6VESTING AND FORFEITURES VI-1
6.1 Fully Vested Accounts VI-1
6.2 Forfeitures and Reinstatements VI-1
ARTICLE 7 ELIGIBILITY FOR BENEFITS; LOANS VII-1
7.1 In General VII-1
7.2 Normal or Early Retirement. VII-1
7.3 Postponed Retirement VII-1
7.4 Distribution On Disability VII-2
7.5 Distribution Upon Death VII-2
7.6Distribution on Other Pre-Retirement Termination VII-3
7.7 Restrictions on Immediate Distributions VII-3
7.8 Distributions During Employment VII-4
7.9Distribution Restrictions for 401(k) and Qualified
Nonelective
Accounts. VII-6
7.10Qualified Domestic Relations Order Distributions VII-7
7.11 Loans VII-8
ARTICLE 8BENEFIT PAYMENTS TO PARTICIPANTS VIII-1
8.1 Benefit Payments, Generally VIII-1
8.2 Forms of Payment VIII-1
8.3 Election Procedure VIII-3
8.4Distribution Requirements under Code 401(a)(9) VIII-3
8.5 Receipt for Payment VIII-7
8.6 Payments to Minors and Incompetents VIII-7
8.7 Unclaimed Benefits VIII-7
ARTICLE 9 DEATH BENEFIT PAYMENTS IX-1
9.1 General Provisions on Death Benefits IX-1
9.2 Designation of Beneficiary IX-1
9.3 Payment of Death Benefits IX-2
ARTICLE 10 CLAIMS PROCEDURES X-1
10.1 Claims Procedure X-1
10.2 Review of Denied Claims X-1
ARTICLE 11 TOP-HEAVY PROVISIONS XI-1
11.1 Top-Heavy Years XI-1
11.2 Top-Heavy Determination XI-1
11.3 Interests Measured XI-2
11.4 Minimum Benefits for Top-Heavy Plans XI-3
11.5 Top-Heavy Vesting XI-4
11.6 Contribution and Benefit Limitations XI-5
11.7 Top Heavy Definitions XI-5
ARTICLE 12 TRUSTEE; TRUST FUND XII-1
12.1 Trustee XII-1
12.2 Trust Agreement XII-1
12.3 Trust Fund XII-1
12.4 Valuation of Accounts XII-2
12.5 Annual Accounting. XII-3
12.6 Statement of Participants' Accounts. XII-3
ARTICLE 13 FIDUCIARIES; PLAN ADMINISTRATION XIII-1
13.1Named Fiduciaries; Allocation of Fiduciary Responsibility
XIII-1
13.2 Administrator XIII-1
13.3 Duties of the Benefits Department XIII-3
13.4 Benefits Administrative Committee XIII-3
13.5 Funding Policy. XIII-4
13.6 Expenses - Compensation. XIII-4
13.7 Directions to Trustee. XIII-5
13.8 Indemnification; Limitation on Liability XIII-5
XIII-5
13.9 Exercise of Discretion by Fiduciaries XIII-5
13.10 Bonding of Fiduciaries XIII-6
ARTICLE 14 PROVISIONS CONCERNING SPONSOR AND
EMPLOYERS XIV-1
14.1 Duties of Employers XIV-1
14.2 Separate Amendments by an Employer XIV-1
14.3 Termination of Employer's Participation XIV-1
ARTICLE 15 AMENDMENT, TERMINATION, AND MERGER XV-1
15.1 Amendment XV-1
15.2 Termination of Plan XV-1
15.3 Plan Termination Distributions XV-2
15.4 Merger, Consolidation, or Succession XV-3
ARTICLE 16 MISCELLANEOUS XVI-1
16.1 Exclusive Benefit XVI-1
16.2 No Contract or Inducement XVI-1
16.3 No Guarantees XVI-1
16.4 Non-Alienation of Benefits XVI-1
16.5 Changes in Capital Structure XVI-2
16.6 Errors and Omissions XVI-2
16.7 Construction XVI-2
SIGNATURES
INTRODUCTION
The Crestar Employees' Thrift and Profit Sharing Plan
(the "Plan") was formerly called the UVB Employees' Thrift and
Profit-Sharing Plan. The Plan has been amended and also
restated from time to time since its original effective date in
1967. For example, the Plan was amended and restated effective
January 1, 1984, to comply with contribution limitations of the
Tax Equity and Fiscal Responsibility Act of 1982 ("TEFRA"), and
further amended and restated, effective January 1, 1985, to
comply with the top-heavy provisions of TEFRA, the Deficit
Reduction Act of 1984, and the Retirement Equity Act of 1984.
With the 1985 amendment and restatement, the Plan was also
renamed the Crestar Employees' Thrift and Profit Sharing Plan
to reflect the change in the name of the Sponsor from United
Virginia Bankshares Corporation to Crestar Financial
Corporation. The Plan was again amended and restated by action
of the Board of Directors on October 7, 1986 to incorporate
amendments that were effective as of January 1, 1989 unless
stated specifically otherwise in the document, and again
amended and restated effective as of January 1, 1989, to
reflect amendments required to comply with the Tax Reform Act
of 1986.
The amended and restated Plan contained in this
document is intended to incorporate amendments adopted since
the last restatement and to comply with technical corrections
and regulations relating to the Tax Reform Act of 1986 and with
subsequent statutory and regulatory changes, including the
rollover rules of Code 401(a)(31) effective as of January 1,
1993, and the revised compensation limit of Code 401(a)(17),
effective as of January 1, 1994.
The main purposes of the Plan are to allow
Participants to share in the Employers' profits and to provide
them with a tax-qualified plan providing retirement benefits,
under which Employer contributions are currently deductible by
the Employers for federal tax purposes. The Plan is also
intended to encourage Participants to contribute to their
retirement savings by allowing Participants to have
compensation deferred to the Plan on an elective basis. To
effect the purposes of the Plan, the Employers may make profit
sharing contributions to the Plan and will make 401(k) and
Matching Contributions as set forth in the Plan based on
Participants' elective deferrals. The Sponsor intends such
deferral provisions under the Plan to be a cash-or-deferred-
arrangement under Code 401(k).
The Sponsor further intends that Employer
contributions to the Plan's Trust be deductible, and 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 this 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, Matched 401(k) Account, Unmatched 401(k) Account,
PAYSOP Account, Pre-1987 Account, Qualified Nonelective
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
article 3.
1.4 Administrator means the person or entity responsible for
the Plan's general administration and operation as described in
Plan article 14.
1.5 Additional Contribution means, for Plan Years beginning
before January 1, 1989, any nondeductible, voluntary
Participant contribution which is not made by salary-reduction
and for which the Employer makes no Matching Contribution.
1.6 After-Tax Account means that portion of a Participant's
Account attributable to his Basic Contributions and Additional
Contributions.
1.7 Alternate Payee means a Participant's spouse, former
spouse, child, or other dependent who is recognized by a
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.
1.8 Annual Addition is defined in Plan article 4.
1.9 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 30 days or later than 90
days after he receives the information required by Plan article
8 with respect to his payment options and eligible rollover
distribution rights unless the Participant has waived the 30-
day notice period pursuant that section.
1.10 Basic Contribution means that contribution made by a
Participant prior to 1984 for which the Employer made a
Matching Contribution.
1.11 Beneficiary means one or more persons or entitled to
receive a Participant's undistributed vested Account balance
remaining at his death as determined in accordance with Plan
article 9.
1.12 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 an
Employer to whom the Board or the Executive Committee has
delegated authority to take such action on its behalf.
1.13 Break in Service means any Plan Year in which an
Employee does not complete at least one Hour of Service.
1.14 Code means the Internal Revenue Code of 1986, as amended
at the relevant time.
1.15 Committee means the Benefits Administrative Committee
provided for in Article 13 and Article 15.
1.16 Compensation means the total direct remuneration,
including 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
or 402(e)(3), paid to an Employee by an Employer for services,
excluding commissions paid pursuant to agreements excluding
such commissions from consideration for purposes of the Plan,
awards under the Incentive Compensation Plan, directors' fees,
and compensation paid at an hourly rate. If a Participant is
employed by two or more Employers during a Plan Year, his
Compensation shall be the total Compensation received from all
Employers.
(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 this 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), 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 Continuous Service means an individual's period of
service as an Employee of an Employer or Related Company
commencing with the date the individual first performs an Hour
of Service as an Employee and continuing until such individual
separates from service. An individual who has separated from
service shall be entitled to credit for his period of
separation if he returns to the employ of an Employer or
Related Company and performs an Hour of Service before he
incurs a Break in Service. Notwithstanding the above, a
Participant's Continuous Service shall be computed subject to
the following limitations:
(a) In the case of a Participant who does not have a
nonforfeitable right to any portion of his account balance
attributable to Employer contributions and who has incurred at
least a one-year Break in Service, Continuous Service prior to
the commencement of the most recent one-year Break in Service
shall not be required to be taken into account in computing
Continuous Service if the number of consecutive one-year Breaks
in Service equals or exceeds the greater of five or the
aggregate number of such Participant's years of Continuous
Service before the initial Break in Service in question. For
purposes of this subsection, a Participant's aggregate years of
Continuous Service shall be deemed not to include any years of
Continuous Service not required to be taken into account by
reason of a prior Break in Service or any years of Continuous
Service disregarded under any "break in service" rules (whether
or not so designated) under this Plan's terms as in effect
before January 1, 1985.
(b) Continuous Service with a Related Company shall not
include his service with such Related Company prior to the date
specified in the applicable adoption agreement or the
resolution of the Board authorizing such Related Company's
participation in the Plan, as applicable. An Employee's
Continuous Service shall not include his service with an entity
that is merged with the an Employer prior to the date specified
in the applicable resolution of the Board or the acquisition or
merger agreement approved by the Board.
(c) All periods of Continuous Service required to be
recognized hereunder (whether or not consecutive) will be
aggregated on the basis of days, and a Participant will be
entitled to a whole year of Continuous Service for each 365
days of service.
(d) An individual who is a leased employee (as defined
in Code 414(n)) of an Employer and who subsequently becomes an
Employee of an Employer shall, subject to the Plan's Break in
Service rules, receive credit for all Continuous Service he is
deemed to have completed for the Employer for all purposes
other than the accrual of benefits.
1.18 Contribution Percentage, or ACP, is defined in Plan
article 3.
1.19 Covered Employee means any Employee who is employed by
an Employer on a full-time basis who completes or can be
expected to complete 1,000 Hours of Service in any period of 12
consecutive months and who is compensated on a salaried basis.
Despite the preceding, Covered Employee does not include:
(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).
(e) an Employee who is considered an independent
contractor.
1.20 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.
1.21 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.
1.22 Disability means 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,
or a condition entitling a Participant to disability benefits
from the Social Security Administration.
1.23 Early Retirement Date means the first day of any month
after a Participant has attained age 55 and completed five
years of Continuous Service. For purposes of this section,
Continuous Service includes all Continuous Service of a
Participant with a Related Company whether it precedes the date
specified in the applicable adoption agreement or the
resolution of the Board authorizing such Related Companies
participation in the Plan, as applicable) on which such
Participant elects to retire from the service of his Employer.
1.24 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:
(a) 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;
(b) 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;
(c) amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option;
and
(d) 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).
(e) 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.
(f) 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.
(g) 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.
(h) 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
proportions to each such individual's Earnings as determined
under this section prior to the application of this limitation.
(i) 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.
1.25 Effective Date means with regard to an Employer the
later of (i) January 1, 1971, or (ii) the effective date of the
adoption of the Plan by such Employer.
1.26 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 in
independent contractor to an Employer or Related Company is not
an Employee.
(d) Any individual who is on the payroll of an Employer
but does not perform services for an Employer or any individual
who, pursuant to any contract or agreement between an Employer
and the Resolution Trust Company, is hired on a temporary basis
or works as dedicated personnel for the Resolution Trust
Company is not an Employee.
1.27 Employer means 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.
1.28 Entry Date means the first day of each pay period.
1.29 Equity Fund means the equity investment fund that is
provided for under Plan article 5. Effective January 1, 1993,
the Equity Fund became the CrestFunds Value Fund.
1.30 ERISA means the Employee Retirement Income Security Act
of 1974, as amended at the relevant time.
1.31 Excess Aggregate Contribution, for any Plan Year
beginning after December 31, 1986, means the excess of the
amount of Matching Contributions, Profit Sharing Contributions,
and Additional Contributions (and any 401(k) Contributions,
Qualified Nonelective Contributions, and Qualified Matching
Contributions taken into account in computing the 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 Plan
article 3 (determined by reducing contributions made on behalf
of Highly Compensated Employees in order of their 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 articles 3 and 4.
1.32 Excess Deferral means an elective deferral for a taxable
year beginning after December 31, 1986, to the extent such
elective deferral exceeds $7,000 (or such dollar amount as the
Secretary of the Treasury announces at the same time and in the
same manner as the cost-of-living adjustments applicable under
Code 415(d)) in any taxable year. With respect to any taxable
year, a Participant's "elective deferrals" are the sum of all
contributions made by an employer on behalf of such Participant
pursuant to:
(a) any election to defer under any qualified cash or
deferred arrangement as described in Code 401(k);
(b) any simplified employee pension cash or deferred
arrangement as described in Code 402(h)(1)(B);
(c) any eligible deferred compensation arrangement
under Code 457;
(d) any plan described under Code 501(c)(18); and
(e) any contribution made by an employer on behalf of a
Participant for the purchase of an annuity contract under Code
403(b) pursuant to a salary reduction election.
1.33 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
Qualified 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 article 3
(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 article 3.
1.34 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 Treasury
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.
1.35 Former Plan means a 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.
1.36 401(k) Account means that portion of a Participant's
Account attributable to 401(k) Contributions.
1.37 401(k) Contribution means an Employer contribution to
the Plan at the election of a Participant in lieu of cash
Compensation and pursuant to a Salary Reduction Election.
401(k) Contributions do not include any deferrals properly
distributed as Excess Annual Additions.
1.38 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.
1.39 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
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.
(h) Solely for purposes of determining whether a Break
in Service for participation purposes has occurred during a
computation period, an Employee who takes unpaid leave under
the Family and Medical Leave Act on or after August 5, 1993,
will receive credit for the Hours of Service that normally
would have been credited to such individual but for such leave.
The total number of Hours of Service that can be credited under
this subsection cannot exceed 501, and such Hours of Service
shall be credited (i) in the computation period in which the
absence began if necessary to prevent a Break in Service in
that period, or (ii) in all other cases, in the following
computation period. Any individual who receives credit for
Hours of Service under a maternity or paternity leave of
absence above will not receive credit for those same Hours of
Service under this provision.
1.40 Income Fund means the income investment fund that is
provided for in Article 5.
1.41 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.
1.42 Leave of Absence means an Employee's absence without pay
authorized by his 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.
1.43 Limitation Year means the Plan Year.
1.44 Matching Account means that portion of a Participant's
Account attributable to Matching Contributions allocated to
Plan Years beginning after December 31, 1986.
1.45 Matching Contribution means the Employer contribution
described in Plan article 3.
1.46 Matched 401(k) Contribution Account means that account
attributable to the Participant's share of CODA Contribution
allocations on which the Employer's Matching Contribution is
based.
1.47 Nonhighly Compensated Employee means an Employee who is
not a Highly Compensated Employee.
1.48 Non Payroll Friday means any Friday during the calendar
year that is not a regular biweekly payday of the Employer
1.49 Normal Retirement Age means age 65.
1.50 Normal Retirement Date means the first day of the month
coincident with or next following the date a Participant
attains age 65.
1.51 Participant means a Covered Employee who has satisfied
the conditions for membership and has elected to participate in
the Plan as set forth in Plan article 2 by entering into a
Salary Reduction Election and whose Account under the Plan has
not been fully distributed. Effective January 1, 1993,
Participant also means a Covered Employee who elects to have
Rollover Contributions made to the Plan on his behalf, but such
Employee is not an Active Participant for purposes of any other
contributions under the Plan until he enters into a Salary
Reduction Election.
1.52 Payroll Friday means any Friday during the calendar year
that is a regular, bi-weekly pay day of the Employers.
1.53 PAYSOP Account means that portion of a Participant's
Account attributable to PAYSOP Contributions.
1.54 PAYSOP Contribution means the contribution made by the
Employers for Plan Years beginning before January 1, 1987,
which the Employers claimed as the PAYSOP credit on their
federal income tax return pursuant to Code 41.
1.55 Pension Plan means the Retirement Plan for Employees of
Crestar Financial Corporation and Affiliated Corporations.
1.56 Plan means the Crestar Employees' Thrift and Profit-
Sharing Plan, as amended from time to time.
1.57 Plan Year means the 12-month period commencing on
January 1 and ending on December 31 annually.
1.58 Pre-1987 Employer Account means that portion of a
Participant's Account attributable to Employer Profit Sharing
Contributions, Matching Contributions, and forfeitures
allocated for Plan Years beginning before January 1, 1987. A
Participant is always fully vested in his Pre-1987 Employer
Account.
1.59 Profit Sharing Contribution means the Employer
contribution described in Article 3.
1.60 Profit Sharing Account means that portion of a
Participant's Account attributable to Profit Sharing
Contributions and forfeitures allocated in Plan Years beginning
after December 31, 1986.
1.61 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).
1.62 Qualified Matching Contribution means the Matching
Contribution made to the Plan by the Employers pursuant to Plan
article 3 and allocated to a Participant's 401(k) Account by
reason of 401(k) Contributions.
1.63 Qualified Nonelective Contributions means any
contribution made by the Employers (other than Matching
Contributions or Qualified Matching Contributions) pursuant to
Plan article 3 and allocated to a Participant's 401(k) Account.
1.64 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 Code1563(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 c);
(c) a member of an affiliated service group of which an
Employer is a member according to Code 414(c);
(d) any other entity required to be aggregated with an
Employer pursuant to Code fo) and applicable regulations.
1.65 Rollover Account means that portion of a Participant's
Account attributable to Rollover Contributions accepted and
allocated in Plan Years beginning after December 31, 1992.
1.66 Rollover Contribution means a contribution made in Plan
Years beginning after December 31, 1992, by or on behalf of a
Covered Employee or Participant attributable to his
nonforfeitable interest in contributions made by an employer
under a plan that is qualified under Code 401(a). Unless
otherwise announced by the Administrator, Rollover
Contributions attributable to a Participant's in-service
withdrawals from this Plan shall not be allowed.
1.67 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.
1.68 Sponsor means Crestar Financial Corporation.
1.69 Spouse means the person to whom a Participant is married
by legal contract at the relevant time. 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.
1.70 Stock means the common stock of Crestar Financial
Corporation.
1.71 Trust Agreement means the agreement between the Sponsor
and the Trustee providing for the establishment and management
of the Trust Fund.
1.72 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.
1.73 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.
1.74 Unmatched 401(k) Contribution Account means that account
attributable to the Participant's share of 401(k) Contribution
allocations that is not the Matched 401(k) Contribution
Account.
1.75 Valuation Date means prior to January 18, 1994, the last
business day of each month. Effective January 18, 1994, the
applicable Valuation Date for purposes of valuing Accounts for
Plan distributions, withdrawals, and loans, means, except as
otherwise specifically provided in the Plan, the Non-Payroll
Friday after the Benefits Department has received and processed
the required paperwork necessary for the transaction.
(a) In the event of a distribution because of a
Participant's separation from service, whether because of
retirement, death, or other termination of employment, the
applicable Valuation Date cannot occur prior to the
Participant's actual separation from service or prior to the
date the Participant receives his final compensation payment
(other than severance pay, if applicable) from the Employers.
(b) In the case of a Participant who fails to return to
employment with the Employers or a Related Company following an
unpaid Leave of Absence, the applicable Valuation Date shall be
the non-Payroll Friday on or immediately after the later of (1)
the end of the month in which such Participant failed to return
to work or (2) the end of the month in which the Human
Resources Director is notified of such Participant's failure to
return to work.
(c) For certain transactions involving transfers among
investment funds, valuation is done on a daily basis.
(d) The last day of the Plan Year is always a Valuation
Date for purposes of the Trust Fund.
1.76 Voice Response System means the confidential telephone
system connected to the Plan recordkeeping system that permits
Participants to obtain information about the Plan and conduct
transactions in their individual Plan accounts.
ARTICLE 2
PLAN MEMBERSHIP
2.1 Conditions of Eligibility
(a) Special rule. Each Employee who is a Participant
in the Plan on the Effective Date of this Plan amendment and
restatement shall continue to be a Participant in the Plan
thereafter, subject to the provisions of the Plan.
(b) Initial eligibility. Each other Employee shall be
eligible to become a Participant on the January 1 following his
date of employment provided he is a Covered Employee on that
date. If he is not a Covered Employee on that date, he shall
be eligible to become a Participant as of the beginning of the
payroll period immediately following the date he becomes a
Covered Employee.
(c) Participation after initial eligibility. A Covered
Employee who has met the eligibility requirements of subsection
(b) but who has not elected to participate in the Plan, shall
become a Participant on the first Entry Date following the pay
period in which he submits a Salary Reduction Election pursuant
to Plan article 3.
2.2 Employment Status Changes
(a) 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 and his Salary Reduction, if any, is
canceled, but he continues to be a Participant as long as he
has an Account balance in the Plan.
(b) Changing to Covered Employee. If an Employee
becomes a Covered Employee due to a change in his employment
status, he is eligible to become a Participant on the later of
the Entry Date or January 1st following his date of hire.
(c) Reemployment
(1) A Participant who separates from service and
who is reemployed as a Covered Employee shall be
eligible to participate in the Plan as of the date of
his reemployment and shall become a Participant on the
first Entry Date which follows the pay period in which
he submits a Salary Reduction Election pursuant to Plan
article 3.
(2) An Employee who separates from service before
he satisfies the eligibility requirements of section
2.1(b) is eligible to become a Participant on the
earlier of (i) the January 1 following his reemployment
if, as of such date, he is then an Covered Employee, or
(ii) the Entry Date following his date of reemployment
and his completion of one year of Continuous Service,
if he is then a Covered Employee.
(3) An Employee who is not a Participant when he
separates from service but who has satisfied the
requirements of section 2.1(b) at the time of his
separation, and who is reemployed as a Covered
Employee, is eligible to become a Participant in the
Plan as of his date of reemployment and shall become a
Participant on the first Entry Date following the pay
period for which he submits a Salary Reduction Election
pursuant to Plan article 3.
2.3 Termination of Participation
An individual ceases to be an Active Participant in this
Plan when he is no longer a Covered Employee. A Participant
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 for Participation
Participation in the Plan is voluntary. In order to
become a Participant, a Covered Employee must submit an initial
Salary Reduction Election in accordance with Plan article 3 and
such other forms as may be required by the Director of Human
Resources or his delegate. An Employee may not submit an
election form for any Plan Year that ends before his Entry
Date.
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.
ARTICLE 3
CONTRIBUTIONS
3.1 Certain Contributions Suspended
After December 31, 1983, Basic Contributions by
Participants are no longer permitted under the Plan. PAYSOP
Contributions will not be made for any Plan Year beginning
after December 31, 1986. Additional Contributions may not be
made for any Plan Year beginning after December 31, 1988.
3.2 401(k) Contributions
(a) Limitations on Salary Reduction Elections and
401(k) Contributions. All Salary Reduction Elections are
subject to the limitations of Code 401(k) as described in this
Plan and applicable Treasury regulations, to the Annual
Addition limitations described in this Plan and in Code 415,
and to the modifications permitted by the Plan and applicable
Treasury regulations.
(b) Amount. The Employers' 401(k) Contributions for a
Plan Year are equal to the total of the elective deferrals
according to Salary Reduction Elections made by Participants
during that Plan Year and allowed under the terms of the Plan.
The Employers must contribute 401(k) Contributions to the Trust
Fund as soon as practicable after the corresponding pay period
in which Participants' elective deferrals are made but in no
event later than 30 days after the end of the month to which
the 401(k) Contributions relate.
(c) Initial election. Subject to the remaining
provisions of this section, a Covered Employee who is eligible
to participate in this Plan may submit an initial Salary
Reduction Election to the Director of Human Resources (on such
forms as the Director may provide), indicating an amount of
unpaid Compensation between 2% and 12% (9% for pay periods
prior to August 1, 1994) that he desires to cause to be made as
a 401(k) Contribution by way of an elective deferral for each
pay period during which his Salary Reduction Election remains
in effect. A Covered Employee may elect to begin such
deferrals at the beginning of any payroll period after he has
satisfied the eligibility requirements in Plan section 2.1. An
initial Salary Reduction Election must be submitted in the
payroll period preceding the Entry Date as of which it is to be
effective. A Covered Employee cannot submit a Salary Reduction
Election for any pay period before he is eligible to become a
Participant as provided in Plan article 2. A Salary Reduction
Election can be made only with respect to Compensation not
currently available to the Covered Employee or Participant at
the time of the Election. Salary Reduction Elections continue
in effect until changed or revoked by the Participant pursuant
to this Plan section or modified or suspended by the
Administrator in accordance with the terms of the Plan.
(d) Changes in Elections. Subject to other limitations
in the Plan, an Active Participant may revoke or suspend his
Salary Reduction Election or adjust the amount of elective
deferrals specified on his Salary Reduction Election or
reinstate a Salary Reduction Election. Effective January 18,
1994, such changes may be made by telephoning the Voice
Response System. Changes telephoned into the Voice Response
System during one pay period will generally be effective as of
the beginning of the next pay period. Unless the Director of
Human Resources announces otherwise, such changes in Salary
Reduction Elections may also be made by completing such forms
as the Director may require, and such changes shall take effect
as soon as administratively feasible following receipt of a
Participant's completed change form by the Director of Human
Resources. A Participant's Salary Reduction Election is
automatically suspended during any period when a Participant is
on an authorized Leave of Absence without pay, when he ceases
to be a Covered Employee, when he terminates employment, and
for the 12-month period following the date when a Participant
receives a hardship distribution under this Plan or any other
qualified plan with a cash-or-deferred arrangement under Code
401(k) which is maintained by an Employer or a Related
Company. All revised Salary Reduction Elections continue in
effect until they are changed. Except as otherwise prohibited
under the Plan or unless otherwise announced by the Director of
Human Resources, there is no limit on the number of times an
Active Participant may change his Salary Reduction Election
during a Plan Year. All revised Salary Reduction Elections and
revocations are subject to the adjustments authorized in this
Plan article 3 and in Plan article 4.
(e) Dollar limitations. 401(k) Contributions on behalf
of any Participant may not exceed more than $7,000 (or such
dollar amount as the Secretary of the Treasury announces at the
same time and in the same manner as the cost-of-living
adjustments applicable under Code 415(d)) in any calendar
year. A Participant's Salary Reduction Election will not be
given effect to the extent it would result in Excess Deferrals
in any calendar year under this Plan. Any Excess Deferrals
shall be distributed as provided in Plan article 4.
(f) Administrative rules. The Administrator or the
Director of Human Resources may establish or change rules and
procedures regarding Salary Reduction Elections, including, for
example, but not limited to, rules as to the form and timing of
elections and revocations and changes to existing elections;
and any limitation on the number of elections or changes in
elections that may be made by a Participant during a Plan Year.
Such rules shall be established and administered on a uniform
and nondiscriminatory basis and comply with the requirements of
Code 401(k) and applicable Treasury regulations.
3.3 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
and Qualified Matching 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 or a Qualified
Matching 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 and Qualified
Matching 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 and Qualified
Matching 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, Qualified Nonelective
Contributions, and Qualified Matching 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
and Qualified Matching 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
5401(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 and Qualified Matching
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) 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 Plan article 3, 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).
(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) 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 Employers
may also make Qualified Nonelective Contributions and Qualified
Matching Contributions as described in this Plan article 3 in
an amount sufficient to satisfy the ADP Test. Excess 401(k)
Contributions shall be allocated and distributed as provided in
Plan article 4. To the extent that Excess 401(k) Contributions
exist and are not otherwise corrected under this subsection,
they shall be allocated to the applicable 401(k) Accounts of
Highly Compensated Employees in accordance with the provisions
of Plan article 4.
3.4 Matching Contributions
(a) Amount. The Employers shall contribute to the Plan
out of their current or accumulated earnings for the Accounts
of Participants with Salary Reduction Elections in effect, an
aggregate amount equal to one-half of the 401(k) Contribution
made on behalf of each such Participant, but not exceeding
three percent (3%) of Participant's Compensation as to which
any such election applied. Notwithstanding the foregoing,
under no circumstances may a Participant's Matching
Contribution exceed 3% of his Compensation for the Plan Year.
(b) Timing. Matching Contributions for each pay period
shall be transferred by the Employers to the Trustee as soon as
practicable but in no event later than 60 days after the end of
the pay period to which they relate.
3.5 Limitations on Matching Contributions
(a) In general. The Administrator is to determine from
time to time whether the Matching Contributions (including
Qualified 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, for purposes of
measuring compliance with Code 401(m), for a specified
group of Employees for a Plan Year beginning after
December 31, 1986, means the average of the ratios
(calculated separately for each Employee in the group)
of
(a) the Additional Contributions and
Matching Contributions allocated to the Account of
each such Employee for the Plan Year to
(b) the Employee's compensation (as
defined in Code section 414(s)) for the Plan Year.
(2) Other contributions. The Employers may treat
Qualified Nonelective Contributions and Qualified
Matching 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.
(3) 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.
(4) 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 Qualified
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.
(5) Timing of contributions. For purposes of the
ACP Test, Matching Contributions, Additional
Contributions are considered to have been made in the
Plan Year in which contributed to the Trust Fund.
Matching Contributions, Qualified Nonelective
Contributions, and Qualified 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.
(6) 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.
(7) Other requirements. 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 ACT 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) Disposition of Excess Aggregate Contributions.
Excess Aggregate Contributions shall be distributed as provided
in Plan article 4.
3.6 Profit Sharing Contributions
(a) Amount. In each Plan Year the Employers shall
contribute to the Plan from the aggregate of their current and
accumulated earnings and profits, in addition to the Matching
Contributions, an amount equal to the percentage of
Participants' Compensation for the Plan Year as determined
under the Profit Sharing allocation formula in Plan article 4
and the table set forth below based on the Sponsor's Return on
Equity as of the end of such Plan Year. Effective January 1,
1994, the Profit Sharing formula is as set forth in the
following table:
ROE % of Compensation
Less than 12.0% .0%
At 12.0% but less than 12.5%
3.0%
At 12.5% but less than 13.0%
3.5%
At 13.0% but less than 13.5%
4.0%
At 13.5% but less than 14.0%
4.5%
At 14.0% but less than 14.5%
5.0%
At 14.5% but less than 15.0%
5.5%
At 15.0% but less than 15.5%
6.0%
At 15.5% but less than 16.0%
6.5%
At 16.0% but less than 16.5%
7.0%
At 16.5% but less than 17.0%
7.5%
At 17.0% but less than 17.5%
8.0%
At 17.5% but less than 18.0%
8.5%
For Plan Years beginning January 1, 1991, and ending prior to
January 1, 1994, the Profit Sharing Contribution formula was as
set forth in the following table:
ROE % of
Compensation
Less than 7.0% 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%
For Plan Years beginning January 1, 1989, and January 1, 1990,
the Profit Sharing formula was as set forth in the following
table:
ROE % of Compensation
Less than 12.0% .0%
12.0% but less than 12.5% 4.0%
12.5% but less than 13.0% 4.5%
13.0% but less than 13.5% 5.0%
13.5% but less than 14.0% 5.5%
14.0% but less than 14.5% 6.0%
14.5% but less than 15.0% 6.5%
15.0% but less than 15.5% 7.0%
15.5% but less than 16.0% 7.5%
16.0% but less than 16.5% 8.0%
16.5% but less than 17.0% 8.5%
17.0% but less than 17.5% 9.0%
17.5% but less than 18.0% 9.5%
18.0% and greater 10.0%
(b) Special rules. For purposes of the preceding
tables, Return on Equity, or 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). For purposes of determining the Profit Sharing
Contribution, if any, under the preceding tables, the Plan will
take into account for each Participant only the Compensation
for the portion of the Plan Year during which the Participant
had a Salary Reduction Election in effect.
(c) Timing. Profit Sharing Contributions will be made
to the Plan within the time prescribed by law to allow the
Employers a tax deduction for the Plan Year to which such
Contributions relate.
(d) Committee review. In each Plan Year, the
Compensation Committee of the Board of Directors will review
the Profit Sharing Contribution formula and recommend to the
Board of Directors whether it should remain the same or be
changed.
3.7 Qualified Nonelective Contributions and Qualified
Matching Contributions
(a) Definition. Qualified Nonelective Contributions
and Qualified Matching Contributions are Employer discretionary
contributions to the Plan for Plan Years beginning after
December 31, 1986, 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
Matching Contributions may be made to the Plan for allocation
to 401(k) Accounts of Participants who are Non-Highly
Compensated Employees. Qualified Nonelective Contributions and
Qualified Matching 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 and Qualified Matching
Contributions may be made by an Employer by a direct
contribution to the Plan which is designated, as applicable, as
a Qualified Nonelective Contribution or a Qualified Matching
Contribution, and is made on or before the date by which
deductible contributions may be made by the Employer to the
Plan for that Plan Year.
(c) Allocation. As of the last day of each Plan Year,
all Qualified Nonelective Contributions and Qualified Matching
Contributions allocable for that Plan Year (including those
designated as such after the last day of the Plan Year) are to
be credited, respectively, to the Qualified Nonelective
Accounts and 401(k) Accounts of all Active 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. In lieu of distributing Excess 401(k)
Contributions, the Employers may make Qualified Nonelective
Contributions and Qualified Matching Contributions on behalf of
Participants who are Nonhighly Compensated Employees in an
amount sufficient to satisfy the Actual Deferral Percentage
test or the Contribution Percentage test. Qualified
Nonelective Contributions and Qualified Matching Contributions
shall be fully vested and nonforfeitable when made and shall be
subject to the distributions restrictions governing 401(k)
Contributions as provided in Plan article 7. Once allocated,
Qualified Nonelective Contributions and Qualified Matching
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 or Qualified Matching
Contribution may not be treated as both a 401(k) Contribution
and a Matching Contribution.
3.8 Rollover Contributions
(a) Requirements. Subject to the requirements of this
Plan section, effective January 1, 1993, each Active
Participant and any Covered Employee who is eligible to become
a Participant as described in Plan section 2.01 may request in
writing to have Rollover Contributions made to the Plan to be
held in a Rollover Account on his behalf. Rollover
Contributions must be made no later than 60 days after such
Participant or Covered Employee has received an eligible
rollover distribution as defined in Code 401(f)(2)(A) from
another employer's qualified plan or from a conduit individual
retirement account (IRA) established pursuant to Code
408(d)(3)(A)(ii). Rollover Contributions may also be made
directly by the trustee or custodian of such other qualified
plan or conduit IRA to this Plan's trustee.
(b) Administrator procedures. The Administrator may
announce procedures regarding the acceptance of Rollover
Contributions by the Plan. To the extent necessary to preserve
the exempt status of the Plan and Trust Fund under Code 401(a)
and 501(a), the Administrator, in its sole discretion, may
disallow any transfer of Rollover Contributions to this Plan.
The Administrator may not permit any Rollover Contribution to
be made to this Plan if the transfer would cause the Plan to be
a transferee plan for purposes of Code 401(a)(11).
(c) Form of contribution and valuation. Unless
otherwise allowed by the Trustee and by the Administrator,
Rollover Contributions made pursuant to this Plan section must
be in cash. If the Trustee and the Administrator allow
Rollover Contributions to be made in non-cash property, such
non-cash property must be a permissible investment under the
Plan, and the Trustee must value all such non-cash property
transferred as a Rollover Contribution at its fair market value
on the actual date the Trustee receives the property.
3.9 Limitations on Employer Contributions.
(a) Deductions intended. The Sponsor that all Employer
contributions to the Trust Fund be deductible under Code
404(a), but not including Code 404(a)(5), and the Employers
condition all Employer contributions on such deductibility. If
any deduction for any contribution is not allowed in whole or
in part under Code 404(a), exclusive of Code 404(a)(5), then
that disallowed portion must be returned to the Employer who
made the contribution, but repayment must be made no later than
one year after the disallowance. For purposes of this
subsection, the disallowance may be by the opinion of any court
whose decision has become final or by any disallowance asserted
by the Internal Revenue Service to which the Employer agrees.
(b) Mistake of fact. If any contribution is made by an
Employer because of a mistake of fact, then the portion of the
contribution due to the mistake of fact must be returned to the
contributor. The repayment must be made no later than one year
after the contribution.
(c) Contributions irrevocable. Except as provided in
this Plan article 3 and in Plan article 4 with respect to a
suspense account remaining at Plan termination, and as provided
in this Plan section, Employer contributions to the Trust Fund
are irrevocable.
3.10 Contribution Records
The Administrator must maintain records showing as to
each Participant the amount of each type of Contributions
allocated to his Account and subaccounts.
3.11 Allocation of Employer Contribution among Employers
(a) General rule. In addition to its Matching
Contribution, each Employer shall contribute a portion of any
Profit Sharing Contribution to the Plan based on the
Compensation (as used for purposes of allocating the Profit
Sharing Contribution) of its Covered Employees who were
Participants during the Plan Year. In the event a Participant
works for more than one Employer during a Plan Year, his last
Employer shall make the Profit Sharing Contribution on his
behalf based on his total eligible Compensation for the Plan
Year as used for purposes of the Profit Sharing allocation.
(b) 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 4
ALLOCATIONS
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: (1) an After-Tax
Account; (2) a 401(k) Account, which may consist of a Matched
401(k) Account and an Unmatched 401(k) Account; (3) a Matching
Account; (4) a Pre-1987 Employer Account; (5) a Profit Sharing
Account; (6) a PAYSOP Account; (7) a Rollover Account; and (8)
a Qualified Nonelective Account. The Administrator may
designate other named Accounts as the Administrator deems
appropriate.
4.2 Allocation of Contributions Between Subaccounts
(a) 401(k) Contributions. 401(k) Contributions
shall be allocated to the 401(k) Accounts of Participants who
have Salary Reductions Elections in effect for a payroll
period, as soon as practicable after the end of the applicable
payroll period.
(b) Matching Contributions. Matching Contributions
shall be allocated to the Participants' Matching Accounts as
soon as practicable following the applicable payroll period for
which the Matching Contributions are made.
(c) Profit Sharing Contributions. Except as
provided below, Profit Sharing Contributions for a Plan Year,
if any, shall be allocated to the Profit Sharing Accounts of
each Active Participant employed on the last business day of
the Plan Year based on a percentage of his Compensation
determined under the Profit Sharing Contribution formula in
effect for the relevant Plan Year under Plan article 3. For
this purpose, a Participant's Compensation is his Compensation
for each pay period during the Plan Year in which he had a
Salary Reduction Election in effect. Participants making
Salary Reduction Elections who die, become Disabled, or retire
during the Plan Year shall share in Profit Sharing
Contributions for that Plan Year based on their Compensation
through the date of such event.
(d) Qualified Nonelective Contributions. Qualified
Nonelective Contributions, if any, shall be allocated as of the
last Valuation Date of the Plan Year to the Qualified
Nonelective Accounts of Participants who are Non-highly
Compensated Employees eligible to receive such Contributions in
accordance with Plan article 3, on a pro rata basis according
to their Compensation for the Plan Year.
(e) Rollover Contributions. Rollover Contributions
are credited to a Participant's Rollover Account, as soon as
administratively feasible following receipt of such
contribution by the Trustee.
(f) Forfeitures. As of the last Valuation
Date of the Plan Year, any forfeitures arising during a Plan
Year shall be allocated to Participants' Profit Sharing
Accounts for that Plan Year pursuant to subsection (c).
(g) 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 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:
(1) 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;
(2) 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);
(3) 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
(4) 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.
4.3 Excess Deferrals
(a) Distribution. 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. 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.
(b) 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.
4.4 Excess 401(k) Contributions
(a) Administrator determination. If there are
Excess 401(k) Contributions for a Plan Year, the Administrator
must elect between the alternative courses of action described
in this section and any additional choices available under the
Treasury regulations to Code 401(k)(8).
(b) Distribution. Notwithstanding any other
provision of this Plan, Excess 401(k) Contributions, plus any
income and minus any loss applicable thereto, shall be
distributed no later than the last day of each Plan Year to
Participants to whose Account such Excess 401(k) Contributions
were allocated for the preceding Plan Year. Such distribution
shall be made to Highly Compensation Employees on the basis of
the respective portions of the Excess 401(k) Contributions
attributable to each of such Employees. 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 Elective Deferrals (and amounts
treated as Elective Deferrals) of each Family Member that is
combined to determine the combined ADP.
(c) Income or loss. Excess 401(k) Contributions
shall be adjusted for any income or loss for the Plan Year.
The income or loss allocable to Excess 401(k) Contributions 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 401(k)
Contributions 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) Accounts affected. Excess 401(k) Contributions
shall be distributed from the Participant's 401(k) Account in
proportion to the Participant's 401(k) Contributions and
Qualified Matching Contributions to the extent used in the ADP
Test for the Plan Year. Excess Contributions attributable to
Qualified Nonelective Contributions shall be distributed from
the Participant's Qualified Nonelective Contribution Account
only to the extent that such Excess Contributions exceed the
balance in the Participant's 401(k) Account.
4.5 Excess Additional Contributions
Amounts attributable to a Participant's Additional
Contributions that may not be allocated to his After-Tax
Contribution Account must be returned to the contributing
Participant in the same form as his contributions. For Plan
Years beginning after December 31, 1986 and ending before
January 1, 1989, and to the extent Additional Contributions are
Excess Aggregate Contributions attributable to a Highly
Compensated Employee, the distribution of that amount is
governed by section 4.6.
4.6 Excess Aggregate Contributions
(a) Administrator determination. 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).
(b) Distribution. 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.
(c) Allocation of excess. As provided in Code
401(m)(6)(C), distributions 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.
(d) Income or loss. 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.
(e) Pro rata distribution. Excess Aggregate
Contributions shall be distributed on a pro-rata basis from the
Participant's applicable Accounts. 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 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 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.
4.7 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.
4.8 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 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 Defined
Contribution 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 not exceed 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, 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.
4.9 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 comply with
the Maximum Permissible Amount, 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 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.
4.10 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).
ARTICLE 5
INVESTMENT OPTIONS
5.1 Investment Options.
(a) In general. All existing Accounts of
Participants, and all contributions allocated to Participants'
Accounts 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.
(b) Exceptions. All Matching Contributions will be
invested in the Crestar Stock Fund. All PAYSOP Accounts are
invested in Stock, are not subject to Participants' investment
elections, and may not be invested in any other investment fund
provided under the Plan.
5.2 Initial Investment Election
(a) Election allowed. When a Participant enrolls
in the Plan and makes a Salary Reduction Election, he must also
make an election from the investment funds available for
investment of any future contributions to be allocated to his
Account (other than Matching Contributions). Investment
elections must provide for contributions to be invested in
specific investment funds in multiples of 10%.
(b) Procedure. A Participant may elect, change or
revoke his investment election once in each pay period by
telephoning the Voice Response System. Investment elections
received by the Voice Response System before noon on any
Payroll Friday will generally be effective for that day.
Investment elections received by the Voice Response System
after noon on any Payroll Friday will generally be effective as
of the next Payroll Friday. In addition, except as otherwise
announced by the Director of Human Resources, a Participant may
file a written investment election with the Director or his
delegate, on such forms as the Director may prescribe. Written
investment elections will be effective on the Payroll Friday as
soon as administratively feasible following their receipt by
the Director or his delegate.
(c) Continuing effect. All investment elections
shall continue in effect until amended or revoked by the
Participant.
(d) Default election. Absent an investment
election by a Participant, a Participant shall be deemed to
have elected to have his entire Account invested in the
CrestFunds Cash Reserve Fund or any similar investment fund
then available under the Plan.
5.3 Cross-Over Elections for Account Balances
(a) Elections allowed. In addition to a
Participant's investment election with respect to future
contributions, a Participant may also elect to transfer 25%,
50%, 75%, or 100% of his existing Account balance (excluding
his PAYSOP Account) from one investment fund to any other
investment funds available 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 cross-over
election.
(b) Frequency of cross-over elections. A
Participant may make one cross-over election at any time during
each calendar month.
(c) Procedure. A Participant may make a cross-over
election by telephoning the Voice Response System. Cross-over
elections received by the Voice Response System before noon on
any business day will generally be effective that day. Cross-
over elections received by the Voice Response System on a non-
business day or after noon on a business day will generally be
effective on the next business day. In addition, unless
otherwise announced by the Director of Human Resources, a
Participant may file a written cross-over election with the
Director or his delegate, on such forms as the Director may
prescribe. Written cross-over elections will be effective as
soon as administratively feasible following their receipt by
the Director or his delegate.
(d) Other procedures. The Administrator and the
Director of Human Resources are authorized to adopt and
announce procedures regarding changes in investment elections.
For example, they may, in their discretion, direct the Trustee
to grant permission for special elections for investment
changes to all Participants at such times as they may designate
so that Participants may restructure investments in their
Accounts (excluding PAYSOP Accounts). In addition, the
Administrator or the Committee may adopt special procedures
regarding cross-over elections as may be necessary to ensure
compliance with federal and state securities laws.
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 actual 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 are 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 balance in the
Crestar Stock Fund as of the applicable Valuation Date as it
bears to the total cash in the Crestar Stock 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 Crestar Stock Fund, and such cash shall be allocated to
Participants with Accounts invested 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 subsection.
(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 in
the Crestar Stock Fund 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 in the Crestar Stock Fund 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 Crestar Stock 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.
5.5 Income Fund
(a) Restricted fund. Effective January 1, 1993, no
contributions or transferred Account balances may be invested
in the Income Fund. Participants may, however, elect to
transfer Account balances out of the Income Fund in accordance
with the cross-over election rules described in this Plan
article 5.
(b) Type of fund investments. Accounts invested in
the Income Fund shall be used by the Trustee to purchase debt
securities, interests in a mutual fund invested in bonds or
money market investments, investment contracts, money market
instruments as permanent investments, or interests in a fixed
income common trust fund maintained by the Trustee and similar
investments not prohibited by law as deemed appropriate by the
Trustee. The funds in the Accounts of all Participants to be
used for investment in such fixed income securities shall be
combined to make the most effective use of such funds. The
Trustee may, in its sole discretion, maintain in cash such part
of the assets of the Income Fund as it shall deem necessary.
The Trustee shall not be liable for interest on the portion
maintained in cash.
(c) Accounting and valuation. The interest of each
Participant in the Income Fund shall be maintained by the
Trustee in a manner so as to reflect the portion of a
Participant's Account attributable to his contributions, as
well as that portion of his Account attributable to 401(k)
Contributions and other types of Employer contributions. As of
each Valuation Date, the Trustee shall determine the current
fair market value of the assets invested in the Income Fund.
5.6 Equity Fund
(a) Restricted fund. Effective January 1, 1993,
all Accounts invested in the Equity Fund shall be transferred
by the Trustee to the CrestFunds Value Fund which is described
in the following section, unless a Participant makes a cross-
over election with respect to such Accounts.
(b) Type of investments. Accounts invested in the
Equity Fund shall be used by the Trustee to purchase such
common stocks or interest in an Equity Common Trust Fund
maintained by the Trustee and temporary investments such as,
but not limited to, money-market collective investment funds
maintained by the Trustee. Accounts of all Participants
invested in the Equity Fund shall be combined for investment in
such common stocks to enable the most effective use of such
funds. The Trustee may maintain in cash such part of the
assets of the Equity Fund as it shall deem necessary. The
Trustee shall not be liable for interest on the portion
maintained in cash.
(c) Accounting and valuation. The interest of each
Participant in the Equity Fund shall be maintained by the
Trustee in a manner so as to reflect the portion of a
Participant's Account attributable to his contributions, as
well as that portion of his Account attributable to 401(k)
Contributions and other Employer contributions. As of the last
business day of each month, the Trustee shall determine the
current fair market value of the invested assets in the Fund.
5.7 Other Investment Funds
(a) Mutual funds available. Effective January 1,
1993, the following investment funds offered by CrestFunds,
Inc., a registered open-end management investment company, are
available for investment by Participants pursuant to this Plan
article 5:
(1) Cash Reserve 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 remaining
maturity of 397 days or less. The Cash Reserve Fund
seeks to maintain a constant $1.00 share price.
(2) Short/Intermediate Bond 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) Value 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) Special Equity Fund seeks to provide long-term
capital appreciation by investing primarily in equity
securities of companies with small to medium market
capitalizations.
(b) Accounting and valuation. The interest of each
Participant in any of the investment funds listed in subsection
(a) shall be maintained by the Trustee so as to reflect the
portion of a Participant's Account attributable to his
contributions, including Rollover Contributions, as well as
that portion of his Account attributable to 401(k)
Contributions and other Employer contributions. As of each
Valuation Date, the Trustee shall determine the current fair
market value of Participants' Accounts invested in each such
fund.
ARTICLE 6
VESTING AND FORFEITURES
6.1 Fully Vested Accounts
An individual who is an Active Participant in the Plan
on or after January 1, 1989, shall be fully vested in all of
his Accounts under the Plan except as provided in Plan section
6.2. Nothing will divest any portion of a Participant's
Account that is vested under this Plan section. However,
reductions in value 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 Forfeitures and Reinstatements
(a) Forfeitures due to pre-1989 termination
distributions. For Plan Years beginning before January 1,
1989, when a Participant terminated employment and received a
distribution of the vested portion of his Account, the
nonvested portion was forfeited when the Participant incurred a
Break in Service and reallocated as of the last Valuation Date
of that Plan Year to the Profit Sharing Accounts of
Participants entitled to share in Profit Sharing Contributions
for such Plan Year. Any Participant who incurred a forfeiture
pursuant to the preceding sentence may have the amount of such
forfeiture reinstated to his Account if he is reemployed as a
Covered Employee before he has incurred five consecutive
one-year Breaks in Service and he repays the entire amount of
his earlier termination distribution in cash in a lump sum
within five years after the date of his reemployment.
(b) Forfeitures due to withdrawal of Basic
Contributions. Any Participant who incurred a forfeiture of
his Account attributable to Employer contributions due to a
withdrawal of Basic Contributions before January 1, 1987, may
have the forfeited amount attributable to such withdrawal
reinstated on a fully vested basis if he repays in cash in a
lump sum the entire amount of his withdrawn Basic Contributions
attributable to such forfeited amount within five years of the
date of withdrawal. Reinstated forfeitures shall be fully
vested and held in the Participant's Pre-1987 Employer Account.
(c) Forfeitures due to pre-1987 termination
distributions. A Participant who terminated employment before
January 1, 1987, and thereby incurred a forfeiture of his
Account attributable to Employer contributions pursuant to the
terms of the Plan as in effect at his date of termination may
have the forfeited amount reinstated on a fully vested basis to
his Pre-1987 Employer Account if he is reemployed as a Covered
Employee before he has incurred five consecutive one-year
Breaks in Service and if he repays the entire amount of such
earlier termination distribution in cash in a lump sum within
five years after the date of his reemployment.
(d) Reinstatements. Reinstatements of forfeited
amounts pursuant to this section shall be made by the Employers
out of forfeitures or Employer contributions. The reinstated
amount shall be equal to the amount previously forfeited,
without adjustment for subsequent gains or losses of the Trust
Fund.
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.
Payments authorized under this Plan article 7 will be paid to
the Participant in accordance with the provisions of Plan
article 8 or to his Beneficiary in accordance with the
provisions of Plan article 9, based on the value of the
Participant's vested Account as of the applicable Valuation
Date.
7.2 Normal or Early Retirement.
(a) Distribution available. A Participant who
retires on his Early or Normal Retirement Date shall have the
value of his vested Account, determined as of the last
Valuation Date of the Plan Year in which he retires,
distributed to him (or commence being distributed), as soon as
administratively practicable, pursuant to the payment option he
has elected under Plan article 8. If a Participant who retires
on his Early or Normal Retirement Date does not wish to have
his distribution deferred until after the end of the Plan Year
in which he retires, he may elect to accelerate his
distribution and his Account balance will be distributed based
on its value as of the applicable Valuation Date after his
retirement and prior to the last Valuation Date of the Plan
Year.
(b) Amount of distribution. For purposes of this
section, the value of a Participant's vested Account is the
value determined as of the applicable Valuation Date, plus any
additional amounts allocated as of that date pursuant to Plan
article 4 and less the value of any security interest held by
the Plan by reason of a loan outstanding to such Participant.
Any additional amounts allocated to a Participant's Account
pursuant to Plan article 4 after he has received his
distribution under this section shall be distributed to such
Participant in the same payment option he has previously
elected as soon as practicable after the date of allocation.
(c) Early Retirement provisions. If a Participant
terminates employment after he has satisfied any service
requirement for Early Retirement but before he satisfies the
age requirement for Early Retirement, the Participant will be
entitled to elect to receive his vested 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. Participants listed in Exhibit I to the Plan will be
treated for all purposes under the Plan as if they retired on
an Early Retirement Date pursuant to this section. Despite the
preceding, any distributions to a Participant who elects Early
Retirement, must comply with the consent requirements of Plan
section 7.7 if the distribution is immediately distributable.
7.3 Postponed Retirement
(a) Continuing eligibility. A Participant who
continues in the employ of Employers beyond his Normal
Retirement Date shall continue to be eligible to participate in
the Plan on the same basis as any other Employee.
(b) Distribution and amount. Upon a Participant's
actual retirement after his Normal Retirement Date, the value
of his vested Account shall be distributed to him pursuant to
the payment option he elects under Plan article 8. For
purposes of this section, the value of a Participant's vested
Account is the value determined as of the applicable Valuation
Date, plus any additional amounts allocated as of that date
pursuant to Plan article 4 and less the value of any security
interest held by the Plan by reason of a loan outstanding to
such Participant. Any additional amounts allocated to a
Participant's Account pursuant to Plan article 4 after he has
received his distribution under this section shall be
distributed to such Participant in the same payment option he
has previously elected as soon as practicable after the date of
allocation.
(c) 401(a)(9) requirements. If a Participant's
Required Beginning Date determined under Plan article 8 occurs
before his actual retirement date, he must receive or begin to
receive required minimum distributions from his Account by his
Required Beginning Date as provided in Plan article 8 and in
accordance with Code 401(a)(9).
(d) Rehired retirees. If a retired Participant is
reemployed by an Employer and receives additional allocations
under Plan article 4 in any Plan Year after he has received or
has begun to receive distributions of his vested Account under
this Plan article 7, he will receive the value of the
additional allocations in cash as soon as practicable after the
Plan Year of allocation.
7.4 Distribution On Disability
(a) Distribution available. A Participant who is
determined to be Disabled is entitled to receive distribution
of his vested Account after he has received his final
compensation payment from the Employers (other than severance
pay, if applicable). As of his final compensation date, he
shall be considered a terminated Participant and entitled to
make the distribution elections available to any other
Participant under Plan section 7.6 who terminates employment
prior to his Early Retirement Date. Any distribution to a
Disabled Participant pursuant to this Plan section must be made
prior to his reemployment as an Employee and are subject to the
restrictions on immediate distributions as described in Plan
section 7.7.
(b) Amount of distribution. For purposes of this
section, the value of a Disabled Participant's vested Account
is the value determined as of the applicable Valuation Date,
plus any additional amounts allocated as of that date pursuant
to Plan article 4 and less the value of any security interest
held by the Plan by reason of a loan outstanding to such
Participant. Any additional amounts allocated to a
Participant's Account pursuant to Plan article 4 after he has
received a distribution under this section shall be distributed
to such Participant in a lump sum as soon as practicable after
the date of allocation.
7.5 Distribution Upon 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. Distributions, if any, to Beneficiaries
on account of a Participant's death shall be made as provided
in Plan article 9. Distributions under this Plan section will
normally be made within 90 days after the end of the Plan Year
in which the Participant dies. A Beneficiary may request
distribution prior to that time by filing a claim form with the
Director of Human Resources or his delegate. Any additional
amounts allocated to a deceased Participant's Account pursuant
to Plan article 4 after distribution has been made under this
section shall be distributed to the Beneficiary of such
Participant as soon as practicable after the date of
allocation.
7.6 Distribution on Other Pre-Retirement Termination
(a) In the event of a Participant's termination of
employment of a Participant for any reason other than
retirement, Disability, or death, such Participant's Account,
shall be valued as of the Valuation Date coincident with or
immediately following the date he receives his final
compensation payment (other than severance pay, if applicable)
and distributed to him as of the applicable Valuation Date in a
lump sum payment pursuant to Plan article 9 unless he elects to
defer distribution pursuant to Plan section 7.7.
(b) Timing of distribution. If a terminated
Participant elects to defer distribution of his vested Account
under Plan section 7.7, he may elect to receive a distribution
of the value of his deferred vested Accounts in a cash lump sum
as of the Valuation Date following the receipt and processing
of the appropriate election forms by the Benefits Department
and preceding the earlier of his reemployment as an Employee or
what would have been his Normal Retirement Date.
(c) Amount of distribution. For purposes of this
section, the value of a Participant's vested Account is the
value determined as of the applicable Valuation Date plus any
additional amounts allocated as of that date pursuant to Plan
article 4 and less the value of any security interest held by
the Plan by reason of a loan outstanding to such Participant.
Any additional amounts allocated to a Participant's Account
pursuant to Plan article 4 after he has received his
distribution under this section shall be distributed to such
Participant in a lump sum as soon as practicable after the date
of allocation.
7.7 Restrictions on Immediate Distributions
(a) Application. Despite any other provisions of
the Plan, the consent requirements in this 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 this Plan article 7, (1) the vested
Account balance exceeds $3,500 (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. 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 the 90-day period ending on his Annuity Starting
Date. 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 is deceased, only the Surviving Spouse needs to
provide written consent to the distribution if the Surviving
Spouse is a Beneficiary.
(d) Notice. The Administrator must notify the
Participant (or the Participant's Surviving Spouse as
Beneficiary) 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 Surviving 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
then 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.
7.8 Distributions 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:
(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 7.3, 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,
7.7, 7.9, and Plan article 15.
(c) Corrective distributions. A Participant who is
an Employee may receive distributions in accordance with Plan
article 4 in order to correct Excess Deferrals, Excess 401(k)
Contributions, Excess Aggregate Contributions, and Excess
Annual Additions to the extent allocable to the Participants
after-tax contributions.
(d) In-service withdrawals. A Participant who is
an Employee may request a withdrawal from his Account in
accordance with the provisions of this subsection (c).
(1) Accounts available. In-service
withdrawals under this subsection may be made from
a Participant's After-Tax Contribution Account,
Matching Account, Pre-1987 Account, Profit Sharing
Account, and Rollover Account, except that no
Employer contributions allocated to his Account
within the 24-month period immediately preceding
the effective date of the withdrawal may be
withdrawn. No in-service withdrawals under this
subsection may be made from the portion of a
Participant's Account that is security for a Plan
loan or from a Participant's PAYSOP Account, 401(k)
Account, or Qualified Nonelective Account.
(2) Frequency. A Participant may request an in-
service withdrawal under this subsection once in each
calendar year and at such other times as the
Committee from time to time may determine.
(3) Procedure. A Participant wishing to make an in-
service withdrawal under this subsection must file a
written request with the Director of Human Resources
or his delegate. The Participant's Account will be
valued as of the Non-Payroll Friday coincident with
or immediately after the date the Benefits Department
processes the Participant's withdrawal request. A
Participant's withdrawal may not be less than $100 or
the sum of his vested Accounts subject to withdrawal
pursuant to this subsection. The withdrawal must
comply with any other rules and procedures adopted by
the Director of Human Resources or the Committee as
applicable to all withdrawals under this subsection.
For example, such rules and procedures may state that
a Participant may choose which of his eligible
Accounts are to be liquidated for his withdrawal
request or which of the investment funds in which his
Account is invested are to be liquidated to provide
for his withdrawal request, or they may state a
specific ordering of eligible Accounts and investment
funds to be liquidated to provide for the
Participant's withdrawal request.
(4) No rollover of withdrawals. Any amount
withdrawn pursuant to this subsection may not be
rolled over to the Plan as a Rollover Contribution.
(e) Hardship withdrawals. A Participant who is an
Employee may at any time file a written request with the
Director of Human Resources or his delegate for a hardship
withdrawal from his Account, excluding his PAYSOP Account and
any portion of his Profit Sharing and Matching Accounts
attributable to Employer contributions allocated within the 24-
month period immediately preceding the date of withdrawal. 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. The Director shall direct that a
hardship distribution be made only if it finds that a hardship
exists as provided in this subsection and then only to the
extent he deems necessary to alleviate such hardship.
(1) Deemed hardships. A Participant shall be
considered to have a 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 this Plan all other 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
reductions 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) Other rules, procedures. A hardship withdrawal
under this subsection must comply with any other
rules and procedures adopted by the Director of Human
Resources or the Committee as applicable to all
withdrawals under this subsection. For example, such
rules and procedures may state that the Participant
may choose which of his eligible Accounts are to be
liquidated for his withdrawal request or which of the
investment funds are to be liquidated to provide for
his withdrawal request, or may state the ordering of
eligible Accounts and investment funds to be
liquidated to provide for the Participant's
withdrawal request.
7.9 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 or in order to
correct Excess Deferrals, Excess 401(k) Contributions, or
Excess Aggregate contributions as provided in Plan article 4,
no distribution or withdrawal is permitted from a Participant's
401(k) Account or 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 7.8(e).
(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.
7.10 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 the funds are actually segregated into the QDRO Account.
QDRO Accounts will participate in the earnings, gains or losses
of the investment funds in which they are invested in the same
manner as any Participant's Account invested in the same
investment funds. 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. 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 amount payable to an Alternate
Payee does not exceed $3,500, then the amount may be paid to
the Alternate Payee in a lump sum as provided in Plan article
8. 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 applicable Valuation
Date immediately preceding the date of distribution.
(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.
7.11 Loans
(a) 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.
(b) Amount. Any loan to a Participant, when added
to the outstanding balance of all loans to such Participant
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, 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.
(c) 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.
(d) 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.
(e) Effect on Account. The Director may adopt
rules for determining which portion of a Participant's Account
and which investment funds are to be liquidated to provide for
the Participant's loan.
(f) 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.
(g) 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, but may delay the enforcement of the security interest
until a distributable event occurs.
(h) 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).
(i) 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).
(j) 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 as of the
applicable Valuation Date, 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 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 8.4 and Code 401(a)(9).
8.2 Forms of Payment
(a) Lump sum payments. Except as provided in
subsection (b), a Participant or other distributee entitled to
a 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 he requests a distribution also request in
writing to the Director of Human Resources 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) who has 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 whose Accounts are
invested in the Crestar Stock Fund or may 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.
(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), to have his
Account distributed in 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) 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) 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.
(b) 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 (a). Unless otherwise announced by the
Administrator, any election may be altered, amended, or revoked
by the Participant during the election period. After a
Participant's election period ends, no further elections or
changes in his elections will be permitted.
8.4 Distribution Requirements under Code 401(a)(9)
(a) Application. 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)) 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.
(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.
8.5 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.
8.6 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.
8.7 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. 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. 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) Administrator determination. Distribution to a
Participant's Beneficiary or Beneficiaries shall be made as
soon as practicable after the Administrator receives
satisfactory evidence of the Participant's death and the
Administrator determines that all requirements have been
satisfied with respect to the payment of death benefits.
(c) 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.
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 the
Employers 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 Participants. If a Participant is married,
the Participant's Beneficiary 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. To the extent provided in a
Qualified Domestic Relations Order, an Alternate Payee who is
the Spouse or former Spouse shall be the Participant's
Beneficiary at his death.
(c) No designation. To the extent the provisions of
subsection (b) 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 of 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), and if the Beneficiary is
the Participants' Surviving Spouse, 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 7.7 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. 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 cash 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,
except that if the Participant was receiving installment
payments, the Beneficiary may elect to receive a lump sum
payment of the remaining installments, if any.
ARTICLE 10
CLAIMS PROCEDURES
10.1 Claims Procedure
(a) Submission of claims. Claims for benefits under the
Plan must be submitted to the Benefits Department 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 Plan 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 Director of Human Resources that the denied
claim be reviewed. The claimant may request that the Committee
review the denied claim.
(b) Possible hearing. The Director of Human Resources 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 Sponsor's 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 and for the purpose of defraying reasonable
administrative expenses.
(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. 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 or, at the
Administrator's direction, through the Voice Response System.
All Participants are eligible to make investment elections in
accordance with the provisions of Plan article 5. 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.
(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, loans, 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 shall be credited to each Participant's Account on the
Valuation Date coinciding with or next following such
acquisition. Prior to January 1, 1994 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 Director of
Human Resources 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 under the Plan. 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 serves as
Administrator unless the Sponsor, by action of its Board,
appoints one or more persons to serve as Administrator.
Persons appointed as Administrator may include, but are not
limited to, Employees, Participants, or the Trustee. 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 when appointed as
Administrator is automatically removed at his termination of
employment, 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 Employers 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
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) 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.
(b) 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.
(c) 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 document shall 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.
(d) 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.
(e) 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 Board's 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.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
(j) 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
Participant or Beneficiary from receiving any Plan 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. The Employers shall pay 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.
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 with such
directions, 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
Employers 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 Employers may obtain insurance against acts or
omissions of a non-Trustee fiduciary. If the Employers fail 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 their own expense, the
Employers are 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 Sponsor, 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 respective 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
may 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 as an Employer under the
Plan, provided that the Sponsor gives written notice of that
termination to the affected Employer at least 30 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 at least 30
days' advance written notice of the effective date of such
termination (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 in the Plan
pursuant to 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
Administrator as provided in 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 to a 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 the Employers 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 and for defraying the reasonable expenses of
administering the Plan, except as provided in Plan section 3.9
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 to a 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
articles 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 (or the portion attributable to affected
Participants) 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 or Plan fiduciary 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 Plan 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.
16.4 Non-Alienation of Benefits
(a) Prohibitions. Except as specifically provided
in Code 401(a) and in the following 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 of such benefit 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 any Employer and any
Related Company to change their capital structure or their
accounting practices in any form or manner the Sponsor,
Employer or 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 Administrator determines that it would
cost more to correct the error than is warranted, and if the
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 Administrator's judgment result in discrimination in
operation, the 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 Employer 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.
(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. It is intended
to provide a cash-or-deferred arrangement in accordance with
Code 401(k). 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 and applicable regulations.
(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 law)
(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 Employees'
Thrift and Profit Sharing Plan, 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
CRESTAR EMPLOYEES'
THRIFT AND PROFIT SHARING PLAN
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
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 Employees' Thrift and Profit Sharing Plan 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
Employees' Thrift and Profit Sharing Plan 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 Employees' Thrift and Profit Sharing Plan 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 ______________________________
CRESTAR FINANCIAL CORPORATION
CERTIFICATE
CRESTAR EMPLOYEES' THRIFT AND PROFIT SHARING PLAN
I, James J. Kelley, hereby certify that I am the duly
appointed and qualified Human Resources Director of Crestar
Financial Corporation, and that the amendment to the Crestar
Employees' Thrift and Profit Sharing Plan as forth in
Exhibit I attached hereto was implemented by me this date
pursuant to action of the Board of Directors taken on June 4,
1996, which action remains 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 Employees' Thrift and Profit Sharing Plan
By_____________________________________
Exhibit I
AMENDMENT TO THE
CRESTAR EMPLOYEES' THRIFT AND PROFIT SHARING PLAN
AS AMENDED AND RESTATED THROUGH DECEMBER 31, 1994
The Crestar Employees' Thrift and Profit Sharing Plan, as
amended and restated through December 31, 1994, and
subsequently amended, is further amended as set forth below:
1. The following subsection (d) is added to Plan section
5.5:
(d) Termination of option. Effective August 1, 1997, all
Accounts invested in the Income Fund shall be transferred to
other investment funds available under the Plan as elected by
the affected Participants, and the Income Fund shall no longer
be available as an investment fund under this Plan.
EXHIBIT I
AMENDMENT TO THE
CRESTAR EMPLOYEES' THRIFT AND PROFIT SHARING
PLAN AS AMENDED AND RESTATED THROUGH DECEMBER
31, 1994
The Crestar Employees Thrift and Profit Sharing
Plan, 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.
PROPOSED AMENDMENTS TO THE
CRESTAR EMPLOYEES' THRIFT AND PROFIT SHARING
PLAN AS AMENDED AND RESTATED THROUGH DECEMBER
31, 1994
The Crestar Employees Thrift and Profit Sharing
Plan, 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.
CERTIFICATE
CRESTAR EMPLOYOEES' THRIFT AND PROFIT
SHARING PLAN 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 amendment to the
Crestar Employees' Thrift and Profit
Sharing Plan, as amended and restated
through December 31, 1994, and
subsequently amended, as set forth in Exhibit
I attached hereto was 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
CRESTAR FINANCIAL CORPORATION
CERTIFICATE
TRANSFER FROM
THE THRIFT-INCENTIVE PLAN OF THE CHASE
MANHATTAN BANK, N.A.
TO THE
CRESTAR EMPLOYEES' THRIFT AND PROFIT SHARING
PLAN
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 resolutions relating to the transfer of
certain accounts from The Thrift Incentive Plan
of the Chase Manhattan Bank, N.A. (the "Chase
Plan") to the Crestar Employees' Thrift and
Profit Sharing Plan (the "Thrift Plan") 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
January 26, 1996, which action remains in
full force and effect as of
the date of this certificate.
Date:__________________
______________________________
___________ James J. Kelley
Director of Human
Resources
Seen and Agreed to:
CRESTAR BANK, TRUSTEE
By______________________
EXHIBIT I
RESOLUTIONS RELATING TO THE TRANSFER
OF
CERTAIN ACCOUNTS IN
THE THRIFT-INCENTIVE PLAN OF THE CHASE
MANHATTAN BANK, N.A.
TO THE
CRESTAR EMPLOYEES' THRIFT AND PROFIT SHARING PLAN
RESOLVED, that effective January 25, 1995 or as
soon as practicable thereafter (the "Transfer Date"),
the Crestar Employees' Thrift and Profit Sharing Plan,
as amended and restated through December 31, 1994, and
subsequently amended (the "Thrift Plan"), is
amended to provide that the Trustee of the
Thrift Plan shall accept a trustee-to-trustee
transfer from the trustee of The Thrift
Incentive Plan of the Chase Manhattan
Bank, N.A.(the "Chase Plan") of the
account balance in the Chase Plan of each
participant
who became an employee of Crestar Bank MD
or a subsidiary or affiliate of Crestar
Financial Corporation Bank MD on
November 10, 1995, as a result of
the Purchase and
Assumption Agreement dated June 22, 1995,
between The Chase
Manhattan Bank of Maryland and Crestar Bank
MD but excluding from such transfer the
account of any such participant who has
an outstanding loan from the Chase
Plan if loan repayments due on or before
December 31, 1995, have not been paid as
of such date, and further excluding the
account of any such participant if any
part of such account is invested in the
Chase Common Stock Fund (such accounts
that
are transferred herein referred to as the
"Chase Accounts"); and
FURTHER RESOLVED, that, such
transfer shall be completed
in accordance with the
requirements of Section 414(l) of the
Internal Revenue Code of 1986, as amended
(the "Code"),
and applicable Treasury regulations,
and the balance of each Transferred
Account immediately
after the transfer to the Thrift
Plan will be
equal to or greater than the balance
in the Transferred Account
immediately prior to the transfer;
and
FURTHER RESOLVED, that the
Administrator of the Thrift Plan is
authorized and directed to take such
actions as may be necessary or
appropriate to establish accounts
under the Thrift Plan for the
Chase Accounts or to combine a
participant's Chase Accounts with
other comparable accounts such
participant he may have in the
Thrift Plan; and
FURTHER RESOLVED, that as of
the Transfer Date, the
Thrift Plan shall assume the
liabilities of the Chase Plan for
payment of benefits from such Chase
Accounts, and any benefit
features, rights and options with
respect to such Chase Accounts
shall be preserved to the extent
required by Section 411(d)(6) of
the Code, including, but not
limited to, the right to withdraw
all or any part of a participant's
401(k) Account at any time on or
after the participant reaches age
59 1/2; and
FURTHER RESOLVED, that the Thrift Plan is
amended by adding the attached Appendix.
APPENDIX SPECIAL
PROVISIONS WITH RESPECT TO
CERTAIN FORMER EMPLOYEES OF
THE CHASE MANHATTAN BANK OF
MARYLAND
EFFECTIVE AS OF NOVEMBER 10, 1995
The following provisions shall
apply with respect to any employee
of The Chase Manhattan Bank of
Maryland who became an Employee of
Crestar Bank MD or an Employer on
November 10, 1995, in connection
with the Purchase and Assumption
Agreement dated June 11, 1995,
between The Chase Manhattan Bank of
Maryland and Crestar Bank MD (such
individuals to be hereafter
referred to as "Chase Employees").
A. Each Chase Employee shall
be eligible
to participate in the Plan as of
November 10, 1995, upon fulfilling
the Plan's eligibility
requirements. Each Chase Employee
shall be credited with additional
Eligibility Service equal to the
service credited to such Employee
for eligibility purposes under The
ThriftIncentive Plan of The Chase
Manhattan Bank, NA (the "Chase
Plan") prior to November ___, 1995,
to the extent that such Eligibility
Service would not otherwise be
credited to such Employee under the
provisions of the Plan.
B. The account of each Chase Employee
which is
transferred from the Chase Plan to this Plan
(the "Chase Account") shall be invested in the
investment funds of the Plan in accordance with
the directions of such Chase Employee.
C. For purposes of the provisions of the
Plan
relating to the distribution, withdrawal, loans
against or other disposition of a Participant's
Accounts, a Participant's Chase Account shall be
treated in the same manner as any comparable
account under the Plan provided, however, that:
1. With respect to total account balances
in excess
of $3,500, a Chase Employee or his
Beneficiary shall be entitled to
receive distribution of his Chase
Account under the Plan, in addition to
or in lieu of the forms of
distribution set forth in Plan section
8.2, in any of the following forms of
payment that he may elect:
(a) a lump sum or
(b) quarterly installments over
five years, ten years, or until age
80.
2. A Chase Employee who has an
outstanding loan
balance on the date of the transfer of
his Chase Account to this Plan shall
have his loan governed by the terms of
his loan documents applicable to his
loan on the date of such transfer.
3. Despite the restrictions of Plan
section 7.8(d), a
Chase Employee may make in-service
withdrawals from his Chase Account at
any time after he has attained age
59 1/2.
4. Prior to attaining age 59 1/2, a Chase
Employee may
make in-service withdrawals from the portion
of his Chase
Account attributable to matching contributions
and earnings
(as long as the contributions have not been
made during the preceding 24 months) but
excluding, except in the case of
hardship withdrawal, any such contributions
which were
available under the cash option provisions of
the Chase Plan and not taken during the
period 1980 through 1986.
CRESTAR FINANCIAL CORPORATION
CERTIFICATE
CRESTAR EMPLOYEES' THRIFT AND PROFIT SHARING
PLAN
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 Employees' Thrift and Profit Sharing
Plan as forth in Exhibit I attached hereto
were implemented by me this date pursuant to
action of the Board of Directors taken on
June 4, 1996, which action remains 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 Employees' Thrift and Profit Sharing
Plan
By: ________________________
Exhibit I
AMENDMENT TO THE
CRESTAR EMPLOYEES' THRIFT AND PROFIT SHARING
PLAN AS AMENDED AND RESTATED THROUGH DECEMBER
31, 1994
The Crestar Employees' Thrift and Profit Sharing
Plan, as amended and restated through December
31, 1994, and
subsequently amended, is further amended as set
forth below:
1. The definition of "Covered Employee" in
Plan section
1.19 is
amended by adding the following sentence to
the end of that section:
For the period beginning with the merger of
Citizens Bank of Maryland into and with
Crestar Bank on March 13, 1997 (the "Bank
Merger"), and ending with the close of
business on March 22, 1997, when the
Citizens Bank of Maryland Deferred Profit
Sharing
Plan is frozen as to participation
and eligibility, Covered Employee does not
include an individual who, immediately
prior to the effective time of the Bank
Merger, is a Citizens Employee (as defined
in the amendments to this Plan adopted
effective as of December 31, 1996).
Exhibit I
AMENDMENTS TO THE
CRESTAR EMPLOYEES' THRIFT AND PROFIT SHARING
PLAN
AS AMENDED AND RESTATED THROUGH DECEMBER 31,
1994
The Crestar Employees' Thrift and Profit Sharing
Plan, as amended and restated through December
31, 1994, and subsequently amended, is further
amended as set forth below, effective as of the
dates specified:
1. To correct a scrivener's error, the first
paragraph of
Plan
section 1.16 is amended, effective as of
July 1, 1995, by deleting the phrase
"directors' fees, and compensation paid at
an hourly rate." and substituting in its
place the phrase "and directors' fees."
2. Plan section 1.27 is amended and restated
in its
entirety,
effective December 29, 1995, as set forth below:
1.27 Employer means with respect to its
employees, the Sponsor and its successors
and assigns and its subsidiaries described
in the next sentence unless the subsidiary
takes action not to be covered by the Plan
or the Sponsor does not give its approval
for the subsidiary to be a participating
Employer under the Plan. For purposes of
the preceding sentence, subsidiary means a
corporation that has employees who are
Covered Employees and whose stock is at
least 80% owned by the Sponsor or by
another subsidiary whose stock, in turn, is
at least 80% owned by the Sponsor. The
Sponsor shall maintain a list of
subsidiaries that
are designated as Employers under the Plan.
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.
3.. Article 2 of the Plan is amended by adding
the following section 2.6 to the end
thereof:
2.6 Special Participation Rules for Mergers and
Acquisitions
(a) Employees of Loyola Capital
Corporation and subsidiaries of Loyola
Capital Corporation that are corporations
whose stock is 80% or more owned by Loyola
Capital Corporation or by a subsidiary
whose stock is 80% or more owned by
Loyola Capital Corporation on the day
immediately preceding the date on which
Loyola Capital Corporation merges into
and with Crestar Financial Corporation
(all of such subsidiaries and Loyola
Capital Corporation are designated as
Employers under the Plan) and who become
Employees of an Employer on such merger
date are eligible to participate in the
Plan as of the later of January 1,
1996, or the effective date of such
merger, provided such Employee is a
Covered Employee on that date and was
employed by Loyola Capital Corporation or
such a subsidiary prior to January 1,
1996 or, if applicable in the case of a
Covered Employee who does not have a
normal work schedule under which he is
expected to complete 1,000 hours in a
twelve-month period, had completed a Year
of Service with Loyola or such subsidiary
as of January 1, 1996. Any other former
Employee of Loyola Capital Corporation
or such subsidiaries who becomes an
Employee of an Employer shall be
eligible to
participate in the Plan in accordance with the
other provisions of this Plan article 2.
CRESTAR FINANCIAL CORPORATION
CERTIFICATE
CRESTAR EMPLOYEES' THRIFT AND PROFIT SHARING
PLAN
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 Employees' Thrift
and Profit Sharing Plan as forth in Exhibit I
attached hereto were implemented by me this
date pursuant to action of the Board of
Directors taken on April 28, 1995, 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 EMPLOYEES' THRIFT AND PROFIT SHARING
PLAN
AS AMENDED AND RESTATED THROUGH DECEMBER 31,
1994
The Crestar Employees' Thrift and Profit Sharing
Plan, as amended and restated through December
31, 1994, and subsequently amended, is further
amended as set forth below, effective as January
1, 1996, and to be implemented as soon as
practicable thereafter:
1. The first sentence of Plan section 5.3(a)
is revised to
read
as follows:
In addition to a Participant's
investment election with respect to
future contributions, a Participant
may also elect to transfer his
existing Account balance (excluding
his PAYSOP Account) from one
investment fund to any other
investment funds available under the
Plan, provided that any such transfer
must be multiples of 10% of the
balance of his Account in the fund
from which the such transfer is to be
made.
2. Plan section 5.7 is amended by adding the
following
paragraphs (5), (6) and (7) to the end of
Plan section 5.7(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.
CRESTAR FINANCIAL CORPORATION
CERTIFICATE
CRESTAR EMPLOYEES' THRIFT AND PROFIT SHARING
PLAN
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 Employees' Thrift and Profit Sharing
Plan 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
Seen and agreed to:
______________________
Crestar Bank, Trustee
CRESTAR FINANCIAL CORPORATION
CERT
IFIC
ATE
MERG
ER
OF
THE
LOYOLA PROF
IT
PLUS
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
Loyola Profit Plus 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, which action remains 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: _______________________
MERCANTILE-SAFE DEPOSIT & TRUST COMPANY,
Trustee of the Loyola Profit Plus Plan
By: _______________________________________
Date: _______________________
EXHIBIT I RESOLUTIONS RELATING TO THE
AMENDMENT AND MERGER
OF THE LOYOLA PROFIT PLUS PLAN
INTO
THE CRESTAR MERGER PLAN FOR TRANSFERRED
EMPLOYEES
RESOLVED, that effective September 30,
1996 (the "Merger Date"), the Loyola Profit
Plus Plan, as amended and restated effective
August 1, 1992, and subsequently amended (the
"Profit Plus 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 Profit Plus
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 Profit Plus 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 Profit Plus Plan for payment of benefits,
and any benefit features, rights and options
with respect to the accounts transferred from
the Profit Plus 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
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 Profit
Plus Plan immediately prior to the merger.
4
Exhibit I
AMENDMENTS TO THE
CRESTAR EMPLOYEES' THRIFT AND PROFIT SHARING
PLAN
AS AMENDED AND RESTATED THROUGH DECEMBER 31,
1994
The Crestar Employees' Thrift and Profit Sharing
Plan, as amended and restated through December
31, 1994, and subsequently amended, is further
amended as set forth below:
1. Plan section 7.8(d)(1) is revised to read
as follows:
(1) Accounts available. In-service
withdrawals requested under this
subsection on and after June 1, 1997,
may be made from a Participant's After-
Tax Contribution Account, Matching
Account, Pre-1987 Account, Profit
Sharing Account, PAYSOP Account, and
Rollover Account, except that no
Employer contributions allocated
to his Matching Account or Profit
Sharing Account within the 24month
period immediately preceding the
effective date of the withdrawal may be
withdrawn. No in-service withdrawals
under this subsection may be made from
the portion of a Participant's Account
that is security for a Plan loan or from
a Participant's 401(k) Account or
Qualified Nonelective Account.
2. Subsection (e) of Plan section 7.8 is
amended by
deleting
the words "his PAYSOP Account and" in the
first sentence of that subsection,
effective for Hardship withdrawals
requested on and after June 1, 1997.
3. Plan subsection 5.2(a) is amended,
effective May 28,
1997,
by deleting the words "10%" and substituting
"5%" in its place.
4. Plan subsection 5.2(b) is amended,
effective May 28
1997, to
read as follows:
(a) Procedure. A Participant may elect,
change or revoke his investment election
for contributions
once in
each pay period by telephoning the Voice
Response System.
The Administrator shall announce the
deadline by which investment elections
for contributions must
be received by the Voice Response System
to be
effective for contributions received
during a pay period. If a
Participant makes more than one
investment election change during a
pay period, the most recent change
received by the Voice Response System
prior to the deadline announced
by the Administrator will control as
to the investment of contributions
for and after that pay period, until
subsequently amended or revoked. In
addition, except as otherwise
announced by the Director of Human
Resources, a Participant may file a
written investment election with the
Director or his delegate, on such
forms as the Director may prescribe.
Written investment elections will be
effective as soon as administratively
feasible following their receipt by the
Director of his delegate.
5. Subsections (a), (b) and (c) of Plan
section 5.3
are
amended, effective May 28, 1997, to read
as follows:
(a) Election allowed. In
addition to a Participant's
investment election with respect to
future contributions, a Participant
may also elect to transfer his
existing Account balance from one or
more investment funds to any other
investment funds available under the
Plan. A Participant may transfer, in
multiples of 5%, from one investment
fund
to one or more investment funds. A
Participant may realign the
investments for his total Account
balance by designating transfers, in
multiples of 5%, among the investment
funds he chooses from those available
under the Plan.
(b) Frequency of investment
fund changes.
A Participant may make one investment
fund change pursuant to subsection
(a) of this Plan section 5.3 at any
time during each calendar month.
(c) Procedure. A Participant
may make an investment fund change by
telephoning the Voice Response
system. The Administrator shall
announce the deadline by which
investment changes must be received
by the Voice Response System to be
effective for that day or for a
subsequent business day. If a
Participant makes more than one
investment fund after a deadline has
occurred, the most recent change made
by the Participant prior to the
subsequent deadline will revoke and
supersede the earlier investment fund
change. In addition, unless
otherwise announced by the Director
of Human Resources, a Participant may
file a written request for investment
fund changes with the Director or his
delegate, on such forms as the
Director may prescribe.
Written investment fund changes will
be effective as soon as
administratively feasible following
their receipt by the Director or his
delegate.
6. Subsection (a) of Plan section 7.2 is
amended by
adding the
following sentence to the end of that
subsection,
effective May 28, 1997:
If the Participant elects to receive
an immediate distribution following
his retirement, , his distribution
request normally will be processed
and his Account will be valued within
45 days after his last day of his
employment with the Employers, unless
additional information or forms
require a longer processing time, and
will be distributed as soon as
administratively practicable after
the applicable Valuation Date.
7. Subsection (a) of Plan section 7.6 is
amended to
read as
follows, effective May 28, 1997:
(a) Distribution available. In
the event a Participant terminates
employment for any reason other than
retirement under the Plan,
Disability, or death, such
Participant may elect to receive a
lump sum distribution of all or part
of his Account balance pursuant to
Plan article 9 or he may elect to
defer distribution until a later time
pursuant to Plan section 7.7. If the
Participant elects to receive a
distribution following termination of
employment, his distribution request
normally will be processed and his
Account will be valued within 45 days
after his date of termination, unless
additional information or forms
require a longer processing time, and
will be distributed as soon as
administratively practicable after
the applicable Valuation Date.
8. Paragraph (3) of Plan subsection
7.8(d) is
amended by
revising the second sentence in that
subsection to
read as
follows, effective for withdrawal requests
made on and after May 28, 1997:
The Participant's Account will be
valued and the withdrawal will be
distributed as soon as
administratively feasible,
but not more than 30 days, after the
completed
paperwork has
been received and processed.
9. The following subsection (f) is added to
Plan section
7.8,
effective May 28, 1997:
(f) Age 59 1/2 Withdrawals. A
Participant who is an Employee and who has
attained age 59 1/2 may request a withdrawal,
once per calendar year and at such other
times as the Committee may determine, of
all or a portion of his total Account
balance excluding any portion of his
Account that is security for a Plan loan.
(1) Procedures. A Participant
wishing to make an in-service
withdrawal under this subsection must
file a written request with the
Director of Human Resources or his
delegate. The Participant's Account
will be valued and the withdrawal will
be distributed as soon as
administratively feasible, but not
more than 30 days, after the completed
paperwork has been received and
processed. A Participant's withdrawal
under this subsection may not be less
than $100 or the balance of his vested
Accounts if smaller than $100. The
withdrawal must comply with any other
rules and procedures adopted by the
Director of Human Resources or the
Committee as applicable to all
withdrawals under this subsection.
For example, such rules and procedures
may state that a Participant may
choose which of his Accounts are to be
liquidated for his withdrawal request
or which of the investment funds in
which his Account is invested are to
be liquidated to provide for his
withdrawal request, or they may state
a
specific ordering of eligible
Accounts and investment funds to be
liquidated to provide for the
Participant's withdrawal request.
(2) No rollover of withdrawals.
Any amount withdrawn pursuant to this
subsection may not be rolled over to
the Plan as a Rollover Contribution.
Exhibit I
AMENDMENTS TO THE
CRESTAR EMPLOYEES' THRIFT AND PROFIT SHARING
PLAN
AS AMENDED AND RESTATED THROUGH DECEMBER 31,
1994
The Crestar Employees' Thrift and Profit Sharing
Plan, as amended and restated through December
31, 1994, and subsequently amended, is further
amended as set forth below, effective as
November 1, 1996, unless stated otherwise:
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. Plan section 8.2(a)(B) is revised to read
as follows:
(B) Certain Officers. 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.
CRESTAR FINANCIAL CORPORATION
CERTIFICATE
CRESTAR EMPLOYEES' THRIFT AND PROFIT SHARING
PLAN
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 Employees'
Thrift and Profit Sharing Plan 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
AMENDMENTS TO THE
CRESTAR EMPLOYEES' THRIFT AND PROFIT SHARING
PLAN AS AMENDED AND RESTATED THROUGH DECEMBER
31, 1994
The Crestar Employees Thrift and Profit Sharing
Plan,
as amended and restated through December
31, 1994, and subsequently amended, is
further amended as follows, effective
July 1, 1995 unless otherwise specified:
1. Plan section 1.13 is amended to read
as follows:
1.13 Break in Service means for
purposes of determining Continuous
Service, any Plan Year in which an
Employee does not complete at least
one Hour of Service, and for
purposes of eligibility to
participate, any Eligibility
Computation Period in which an
Employee completes fewer than 501
Hours of Service.
2. Plan section 1.19 is revised to read
as follows:
1.19 Covered Employee means any
Employee who has a job
classification as full-time or part-
time (as determined
in accordance with established personnel
policies
of
the Employers as in effect from time
to time) and any other Employee who
completes a Year of Service, but
excluding:
(a) an Employee who is
employed by a Related Company and is
not employed by an Employer; or
(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
nonresident 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); or
(e) an individual who is an
independent contractor or
an Employee who is working as a temporary
employee.
3. Plan article I is further amended by
adding the
following
definition:
Eligibility Computation Period
means the 12consecutivemonth period
beginning on the date an Employee
first completes an Hour of Service
and each Plan Year beginning after
that date.
4. Plan section 1.28 is revised to read
as follows,
effective
July 1, 1995:
1.28 Entry Date means, for a Covered
Employee who has a normal work
schedule under which he is expected
to complete
a Year of Service in his initial
Eligibility
Computation
Period, the January 1 after his
initial Eligibility Computation
Period begins, and for any other
Covered Employee, means the January 1
or July 1 immediately after the
Covered Employee has completed a Year
of Service.
4. Plan article I is further amended by
adding the
following
definition:
Year of Service means for purposes of
eligibility to participate, an
Eligibility Computation Period in
which an Employee
completes 1,000 Hours of Service. Years
of
Service are determined according to
the following rules:
(a) If an Employee completes
1,000 Hours of Service in both his
initial Eligibility Computation
Period and in his second Eligibility
Computation Period, he shall be
credited with two Years of Service.
(b) Years of Service for an
individual who has no vested
interest in a Plan Account are
disregarded under the following
circumstances:
(1) Years of Service
earned before
January 1, 1985, are
disregarded if an individual
had a number of one-year Breaks
in Service prior to January 1,
1985, that were equal to or
exceeded the aggregate number
of his Years of Service,
whether or not consecutive,
which he earned before such
Breaks in Service.
(2) Years of Service are
disregarded if an individual
has at least five consecutive
one-year Breaks in Service on
and after January 1, 1985, and
the number of such Breaks
equals or exceeds the
aggregated number of his Years
of Service, whether or not
consecutive, which he earned
before such Breaks in Service.
(c) In the event of a merger,
stock acquisition, purchase of
assets or other corporate
acquisition by an Employer, Years of
Service credit shall be granted
under this Plan
for service with the predecessor
employer if and to the extent
required by the applicable merger or
purchase agreement. In addition,
the Sponsor (or its delegate) shall
have the authority to grant Years of
Service credit under this Plan for
service with the predecessor
employer even if such credit is not
required by the applicable merger or
purchase agreement.
5. Plan section 2.1 is amended to read
as follows:
(a) Special participation
rules. Each Employee who is a
Participant in the Plan on the
Effective Date of this Plan
amendment and restatement shall
continue to be a Participant in the
Plan thereafter, subject to the
provisions of the Plan. Each
Employee who becomes a Covered
Employee as of July 1, 1995, because
of the amendment to the definition
of Covered Employee is eligible to
become a Participant in the Plan as
of July 1, 1995, if he is then a
part-time Employee whose initial
Eligibility Computation Period began
before January 1, 1995, or if he is
credited with a Year of Service
prior to July 1, 1995, which has not
been disregarded.
(b) Initial eligibility. Each
other Employee shall be eligible to
become a Participant on his
applicable Entry Date, provided he
is a Covered Employee on that date.
If he is not a Covered Employee on
that date, he shall be eligible
to become a Participant in
accordance with the provisions of
Plan section 2.2.
(c) Participation after
initial eligibility. A Covered
Employee who has satisfied the
eligibility requirements for
participation in the Plan but who
has not elected to participate in
the Plan is eligible to become a
Participant as of the beginning of
any later payroll period after he
submits a Salary Reduction Election
pursuant to Plan article 3, provided
he is a Covered Employee on that
date and he has not lost credit for
his prior Years of Service.
6. Plan section 2.2(b) is amended to
read as
follows:
(b) Changing to Covered
Employee. If an Employee becomes a
Covered Employee due to a change in
his employment status, he is
eligible to become a Participant as
of the earlier of (1) the date of
such status change if he has already
satisfied the provisions of Plan
section 2.1 and has not lost credit
for his prior Years of Service, or
(2) the next Entry Date after he has
satisfied the eligibility
requirements of Plan section 2.1.
7. Plan section 2.2(c) is amended to
read as
follows:
(c) Reemployment
(1) A Participant who
separates from service when he
has a vested interest in his
Plan Account shall be eligible
to participate in the Plan as
of his reemployment date if he
is then a Covered Employee. A
Participant who separates from
service when he has no vested
interest in his Plan Account
and whose prior Years of
Service are disregarded shall
be treated as a new Covered
Employee and eligible to
participate in the Plan in
accordance with the provisions
of Plan section 2.1.
(2) An Employee who
separates from service before
he is eligible to participate
in the Plan and is subsequently
reemployed by an Employer is
eligible to become a
Participant in accordance with
the provisions of Plan section
2.1.
(3) An Employee who
separates from service with the
Employers after he has
satisfied the eligibility
requirements of Plan section
2.1 but before he becomes a
Participant, is eligible to
become a Participant in the
Plan as of his date of
reemployment as a Covered
Employee, provided that he has
not lost credit for his prior
Years of Service.
8. Plan section 2.4 is amended to read
as follows:
2.4 Application for Participation
Participation in the Plan is
voluntary. In order to become a
Participant, a Covered Employee must
submit an initial Salary Reduction
Election in accordance with Plan
article 3 and such other forms as
may be required by the Director of
Human Resources or his delegate. A
Covered Employee may not submit an
election form for any Plan Year that
ends before his Entry Date or for
any portion of a Plan Year prior to
the time he is eligible to
participate in the Plan.
9. In accordance with the resolution
passed by the
Board of
Directors of the Sponsor on April 28,
1995, the following Plan section 7.12 is
added to Plan article 7:
7.12 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 Director of Human Resources
or his delegate.
The Participant's Account will be
valued as of the Non-Payroll Friday
coincident with or immediately after
the date the Benefits Department
processes the Participant's
withdrawal request. 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
Director of Human Resources 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) and (c) and must
comply with the requirements of Plan
section 8.4 with respect to
distribution requirements under Code
401(a)(9).
10. Plan section 3.6 is amended by
revising the Profit Sharing formula to
read as follows,. effective for the Plan
Year beginning January 1, 1995:
ROE %
of
Compensation
Less than 12.0%
.0%
At 12.0% 2.5%
At 12.5% 3.0%
At 13.0% 3.5%
At 13.5% 4.0%
At 14.0% 4.5%
At 14.5% 5.0%
At 15.0% 5.5%
At 15.5% 6.0%
At 16.0% 6.5%
At 16.5% 7.0%
At 17.0% 7.5%
At 17.5% 8.0%
If ROE falls between the percentages specified
in the table, the percentage of Compensation
will be prorated. For example if ROE
is 14.9%, the Profit Sharing Contribution
percentage will be
5.4%. For purposes of this table, ROE is
rounded to the nearest tenth of a percent for
calculation purposes.
CRESTAR FINANCIAL CORPORATION
CERTIFICATE
CRESTAR EMPLOYEES' THRIFT AND PROFIT SHARING
PLAN
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 Employees' Thrift and Profit Sharing
Plan as forth in Exhibit I attached hereto were
implemented by me this date pursuant to action
of the Board of Directors taken on April 28,
1995, 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
SPINOFF AND MERGER OF THE PROVIDENCE
SAVINGS & LOAN ASSOCIATION, F.A. PROFIT
SHARING AND 401(k) PLAN
I, James M. Wilson, III, hereby certify
that I am the duly appointed and qualified
Human Resources Director of Crestar Financial
Corporation, and that the resolutions relating
to the spinoff of certain accounts in the
Providence Savings & Loan Association, F.A.
Profit Sharing and 401(k) Plan (the "Providence
401(k) Plan") to the Crestar Employees' Thrift
and Profit Sharing Plan and the subsequent
merger of the Providence 401(k) Plan into the
Crestar Merger Plan for Transferred Employees,
as set forth respectively in Exhibits I and II
attached to this certificate, were implemented
by me this date pursuant to action of the Board
of Directors taken on January 28, 1994, which
action remains in full force and effect as of
the date of this certificate.
Date:__________________
____________________________________________
James M. Wilson, III
Human Resources
Director
EXHIBIT I
RESOLUTIONS RELATING TO THE SPINOFF
OF
CERTAIN ACCOUNTS IN
THE PROVIDENCE SAVINGS AND LOAN
ASSOCIATION, F.A. PROFIT
SHARING AND 401(K) PLAN TO THE
CRESTAR EMPLOYEES' THRIFT AND PROFIT
SHARING PLAN
RESOLVED, that effective December 1, 1994
(the "Spinoff Date"), the Providence Savings and
Loan Association, F.A. Profit Sharing and 401(k)
Plan, effective as of January 1, 1992 and as
subsequently amended (the "Providence 401(k)
Plan"), and the Crestar Employees' Thrift and
Profit Sharing Plan (the "Thrift Plan") are
amended to provide that each participant's
accounts in the Providence 401(k) Plan,
specifically excluding his Prior Pension/Profit
Accounts and any other accounts which are
subject to the survivor annuity requirements
under Section 417 of the Internal Revenue Code
of 1986, as amended (the "Code"), shall be spun
off to the Thrift Plan (such spun-off accounts
herein referred to as the "Spinoff Accounts");
and
FURTHER RESOLVED, that as of the Spinoff Date or
as
soon as practicable thereafter, the assets of
the Spinoff Accounts shall be transferred to the
trustee of the Thrift Plan and combined with the
assets of the Thrift Plan's Trust; and
FURTHER RESOLVED, that the actions taken by
the Administrators and trustees of the Plans in
contemplation of such spinoff are hereby
ratified, and the Administrators and trustees of
the Plans are authorized and directed to execute
such documents and to take such further actions
as may be necessary or appropriate to effect
such spinoff; and
FURTHER RESOLVED, that, in accordance with
the regulations under Section 414(l) of the
Code, after the spinoff from the Providence
401(k) Plan, the sum of the account balances for
each of the participants in the resulting Plans
equals the account balances of the participant
in both Plans immediately prior to the spinoff,
and the assets in each of the Plans immediately
after the spinoff equals the sum of the accounts
balances for all participants in that Plan; and
FURTHER RESOLVED, that the Administrator of
the Thrift Plan is authorized and directed to
take such actions as may be necessary or
appropriate to establish accounts under the
Thrift Plan for the Spinoff Accounts or to
combine the Spinoff Accounts with existing
accounts of participants in the Thrift Plan who
have Spinoff Accounts in the Providence 401(k)
Plan immediately prior to the spinoff; and
FURTHER RESOLVED, that as of the Spinoff
Date, the Thrift Plan shall assume the
liabilities of the Providence 401(k) Plan for
payment of benefits from such Spinoff Accounts,
and any benefit features, rights and options
with respect to such Spinoff Accounts shall be
preserved to the extent required by Section
411(d)(6) of the Code.
EXHIBIT II
RESOLUTIONS RELATING TO THE MERGER
OF
THE PROVIDENCE SAVINGS AND LOAN
ASSOCIATION, F.A. PROFIT SHARING AND
401(K) PLAN INTO THE
CRESTAR MERGER PLAN FOR TRANSFERRED
EMPLOYEES
RESOLVED, that effective December 1, 1994
and subsequent to the spinoff of certain
accounts from the
Providence Savings and Loan Association, F.A.
Profit Sharing and 401(k) Plan, effective as of
January 1, 1992 and as subsequently amended (the
"Providence 401(k) Plan") to the Crestar
Employees' Thrift and Profit Sharing Plan (the
"Thrift Plan") (such date herein referred to as
the "Merger Date"), the Providence 401(k) Plan
and the Crestar Merger Plan for Transferred
Employees (the "Merger Plan") are amended to
provide that the Providence 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 Providence 401(k) Plan, excluding
any accounts that are spun off to the Thrift
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 the actions taken by
the Administrators and trustees of the Plans in
contemplation of
such merger are hereby ratified, and the
Administrators and trustees of the Plans are
authorized and directed to execute such
documents and to take such further 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 the account balances in each
Plan (excluding the spinoff accounts), 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
in the Merger Plan equal to the sum of the
account balances the participant had in the
Merger Plan and in the Providence 401(k) Plan
(excluding any spinoff accounts) immediately
prior to the merger; and
FURTHER RESOLVED, that the Administrator of
the Merger Plan is authorized and directed to
take such actions 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 whose accounts from the
Providence 401(k) Plan are transferred to the
Merger Plan; 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
Providence 401(k) Plan for payment of benefits
with respect to such transferred accounts, and
any benefit features, rights and options with
respect to such transferred accounts from the
Providence 401(k) Plan shall be preserved to the
extent required by Section 411(d)(6) of the
Code.
EXHIBIT I
AMENDMENTS TO THE
CRESTAR EMPLOYEES' THRIFT & PROFIT SHARING
PLAN
The Crestar Employees' Thrift and Profit-
Sharing Plan, as amended and restated as of
December 31, 1994, is further amended as
follows:
1. Plan section 3.6(a) is amended by
adding the following
provisions immediately after the first
sentence in that subsection (a),
effective for the Profit Sharing
Contribution for the 1995 Plan Year:
Effective for the 1995 Plan
Year, the Profit Sharing formula
is as set forth in the following
table:
ROE %
of Compensation
Less than 12.0%
.0%
At 12.0% but less than 12.5% 2.5%
At 12.5% but less than 13.0% 3.0%
At 13.0% but less than 13.5% 3.5%
At 13.5% but less than 14.0% 4.0%
At 14.0% but less than 14.5% 4.5%
At 14.5% but less than 15.0% 5.0%
At 15.0% but less than 15.5% 5.5%
At 15.5% but less than 16.0% 6.0%
At 16.0% but less than 16.5% 6.5%
At 16.5% but less than 17.0% 7.0%
At 17.0% but less than 17.5% 7.5%
At 17.5% 8.0%
ROE performance that falls between
levels on this schedule will be pro-
rated to the appropriate percent
(e.g., if ROE is 13.9%, the percentage
of Compensation will be 4.9%.
ROE performance will
be rounded to the nearest tenth of a
percent for purposes of this
calculation.
2. Plan section 3.6(b) is amended by
adding the
following sentence to the end of
that section, effective January 1,
1995:
Despite the
preceding provisions of this Plan
section 3.6(b), for purposes of
determining the Profit Sharing
Contribution for the 1995 Plan Year,
Return on Equity, or ROE, shall
be determined without regard to
the impact of the Employers'
acquisition of Loyola Capital
Corporation and its subsidiaries
and without regard to any SAIF
assessment. that affects ROE.
CRESTAR FINANCIAL
CORPORATION
CERTIFICATE
CRESTAR EMPLOYEES' THRIFT AND PROFIT SHARING
PLAN
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 Employees' Thrift and Profit Sharing Plan
as forth in Exhibit I attached hereto were
implemented by me this date pursuant to actions
of the Board of Directors taken on April 28, 1995 and
September 22, 1995, which actions remain
in full force and effect as of the date of this
certificate.
Dated:
___________________
_________________________________
James J. Kelley
Human Resources
Director Board Resolution - April 26, 1996
Thrift and Profit Sharing Plan Amendment
RESOLVED, That the Profit Sharing
formula table
contained in Section 3.07 of the
Crestar Employees' Thrift and Profit Sharing Plan, as
amended and restated effective January 1, 1989 is
hereby amended to read as provided below, effective
January 1, 1996. 1996 Profit Sharing Formula
% of PAY
EPS NET INCOME ROE (See
COST
Note)
Less than 0.0%
$0
12.5%
$4.36 $187,687 At 12.5% 2.5% $4,800,000 192000000
$4.53 $195,057 At 13.0% 3.0% $5,760,000 192000000
$4.70 $202,642 At 13.5% 3.5% $6,416,667 192000000
$4.88 $210,141 At 14.0% 4.0% $7,680,000 192000000
$5.05 $217,640 At 14.5% 4.5% $8,640,000 192000000
$5.23 $225,225 At 15.0% 5.0% $9,600,000 192000000
$5.40 $232,724 At 15.5% 5.5% $10,560,000 192000000
$5.57 $240,223 At 16.0% 6.0% $11,520,000 192000000
$5.75 $247,722 AT 16.5% 6.5% $12,480,000 192000000
$5.92 $255,220 At 17.0% 7.0% $13,440,000 192000000
$6.10 $262,719 At 17.5% 7.5% $14,400,000 192000000
$6.27 $270,218 At 18.0% 8.0% $15,360,000 192000000
Note: ROE performance which falls between levels on this
schedule will be
pro-rated to the appropriate percent, (e.g., if ROE is
14.9%, Profit Sharing
payout will be 4.9%. ROE performance will be rounded to
the nearest tenth
of a percent, for the purpose of this calculation.
132398471
Board Resolution - April 25, 1997
Thrift and Profit Sharing Plan Amendment
RESOLVED, that the Profit Sharing formula table contained in
Section 3.07 of The Crestar Employees' Thrift and
Profit Sharing Plan, as amended and restated
effective January 1, 1989
is hereby amended to read as provided below,
effective January 1, 1997.
1997 Profit Sharing Formula
% of PAY EPS NET INCOME ROE (See COST Note)
Less than 0.0% $0 13.0% $2.25 $250,380 At 13.0% 2.5%
$5,335,000 213400000
$2.33 $260,010 At 13.5% 3.0% $6,402,000
213400000
$2.42 $269,640 At 14.0% 3.5% $6,416,667
213400000
$2.51 $279,270 At 14.5% 4.0% $8,536,000
213400000
$2.59 $288,900 At 15.0% 4.5% $9,603,000 213400000
$2.68 $298,530 At 15.5% 5.0% $10,670,000 213400000
$2.77 $308,160 At 16.0% 5.5% $11,737,000 213400000
$2.85 $317,790 At 16.5% 6.0% $12,804,000 213400000
$2.94 $327,420 At 17.0% 7.0% $14,938,000 213400000
$3.03 $337,050 At 17.5% 8.0% $17,072,000 213400000
$3.11 $346,680 At 18.0% 9.0% $19,206,000 213400000
$3.20 $356,310 At 18.5% 10.0%$21,340,000 213400000
Note: ROE performance which falls between levels on this
schedule will be pro-rated to the
appropriate percent, (e.g., if ROE is 15.9%, Profit
Sharing payout will be 5.4%). ROE
performance will be rounded to the
nearest tenth of a percent for the
purpose of this
calculation.
132398471
Exhibit 5
File No.33411.2204
(804) 788-8402
November 19, 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 5,000,000 shares of the Company's Common Stock (the
"Shares"), to be offered pursuant to the Crestar Employees'
Thrift and Profit-Sharing Plan (the "Plan").
In rendering this opinion, we have relied upon,
among other things, our examination of the Plan and of such
records of the Company and certificates of its officers and
of public officials as we have deemed necessary. In
connection with the filing of such registration statement,
we are of the opinion that:
1. The Company is duly incorporated, validly
existing and in good standing under the laws of the
Commonwealth of Virginia; and
2. The Shares have been duly authorized and,
when issued in accordance with the terms of the Plan 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
