<PAGE>
As filed with the Commission on February 28, 2000
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
___________________________
HELLER FINANCIAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-1208070
------------------------ -------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
500 West Monroe Street 60661
-----
Chicago, Illinois (zip code)
-----------------
(Address of principal executive offices)
Heller Financial, Inc. Executive Deferred Compensation Plan
(Full title of the Plan)
- --------------------------------------------------------------------------------
Debra H. Snider, Esq.
Executive Vice President, Chief Administrative Officer
General Counsel and Secretary
Heller Financial, Inc.
500 West Monroe Street
Chicago, Illinois, 60661
------------------------
(Name and address of agent for service)
(312) 441-7000
-----------------------------------------------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Title of securities Amount to be Proposed maximum offering Proposed maximum aggregate Amount of
to be registered registered price per share offering price registration fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Heller Financial, Inc. Executive Deferred $50,000,000 100% $50,000,000 $13,200(1)
Compensation Plan Obligations (2)........
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, $.25 par value 500,000 shares(3) $18 11/16 $9,343,750(4) $2,466.75(4)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
____________________________________________________________________________
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(h).
(2) The Obligations are unsecured obligations of Heller Financial, Inc. to
pay deferred compensation in the future in accordance with the Heller
Financial, Inc. Executive Deferred Compensation Plan (the "Plan").
(3) Pursuant to Rule 416(a), this Registration Statement shall be deemed
to cover any additional shares of Class A Common Stock, par value $.25
per share, which may be offered pursuant to the Plan.
(4) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(h) on the basis of the average high and low
prices reported for shares of Common Stock on the New York Stock
Exchange Composite Tape on February 22, 2000, which was $18 11/16.
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<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participating employees as specified by Rule 428(b)(1)
of the Securities Act of 1933, as amended (the "Securities Act"). These
documents and the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
PART II
INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Heller Financial, Inc. (the "Company") hereby incorporates the following
documents herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1999;
(b) The Company's Current Reports on Form 8-K filed with the Commission on
January 20 and January 21, 2000; and
(c) The description of the Company's Class A Common Stock, $.25 par value
per share, contained in the "Description of the Securities We May
Offer" section of the Company's registration statement on Form S-3,
file no 333-84725, filed with the Commission on August 6, 1999,
including any subsequent amendments thereto or any report or other
filing with the Commission updating such description.
In addition, all documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered hereby
have been sold or
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<PAGE>
which deregisters all such securities then remaining unsold shall be deemed to
be incorporated herein by reference and to be a part hereof from the date of
filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities
Under the Heller Financial, Inc. Executive Deferred Compensation Plan (the
"Plan"), the Company provides eligible employees the opportunity to defer a
portion of their current cash compensation. Certain highly compensated employees
of the Company and other Executives identified by the Compensation Committee of
the Board of Directors of the Company (the "Committee") are eligible to
participate in the Plan. The compensation deferred by eligible employees who
elect to participate in the Plan ("Participant") is referred to herein as
"Obligations." The Company herein registers $50,000,000 of Obligations and
500,000 shares of Class A Common Stock, $.25 par value (the "Common Stock").
Compensation is deferred by each Participant, in accordance with the Plan,
pursuant to an irrevocable election made by the Participant. The Company
accounts for deferred compensation by establishing bookkeeping accounts for each
Participant ("Deferral Accounts"). Each Deferral Account shall be credited
monthly with income and gains and charged with losses, expenses and
distributions equal to the amount by which the Deferral Account would have been
credited or charged had the Deferral Account been actually invested in the
Participant's investment election. Each Participant may currently elect to have
his Deferral Account mirror one or more of the following investment vehicles:
(1) a Money Market Fund, (2) an Intermediate Term Bond Fund, (3) a High Yield
Bond Fund, (4) a Domestic Hybrid Fund (stocks and bonds), (5) two Large Value
Funds, (6) two Large Growth Funds, (7) a Large Blend Fund (value and growth
stocks), (8) an Index Fund, (9) a Mid-Cap Growth Fund, (10) a Small Value Fund,
(11) a Small Growth Fund, (12) a World Stock Fund, (13) a Foreign Stock Fund,
and (14) the Common Stock. Additional investment vehicles may be designated and
existing investment vehicles may be terminated from time to time.
Obligations to Participants are paid in cash on the date established in
accordance with the Participant's deferral election ("Distribution Date"),
except that Obligations mirroring the Common Stock are settled in Common Stock.
Participants may choose among the following Distribution Dates: (1) a specified
date no earlier than January 1 immediately following the third anniversary of
the Participant's initial deferral election, (2) the date of Participant's
termination of employment (or a specified date thereafter) or (3) the earlier of
(1) or (2). A Participant may make a one-time election to extend the
Participant's Distribution Date. Obligations will be paid in a lump sum or in
installments according to each Participant's election. If a Participant becomes
disabled (as defined within the Plan) payment of benefits due such Participant
shall commence as soon as administratively feasible and in accordance to the
payment election specified on the Participant's deferral election.
Obligations are unsecured general obligations of the Company to pay the
deferred compensation in the future in accordance with the terms of the Plan.
The Company is not required to fund or otherwise segregate assets to be used for
the payment of Obligations. Notwithstanding the foregoing, the Company may
establish one or more grantor trusts ("Trusts") to hold assets to be used for
payment of Obligations. However, assets of
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<PAGE>
any Trusts shall remain the assets of the Company subject to the claims of its
general creditors. Obligations will rank without preference with other unsecured
and unsubordinated indebtedness of the Company from time to time outstanding and
are, therefore, subject to the risks of the Company's insolvency. Obligations,
under the terms of the Plan, do not benefit from any affirmative or negative
pledge or covenant from the Company.
A Participant's rights to any amounts credited to his accounts may not be
alienated, sold, transferred, assigned, pledged, attached or otherwise
encumbered by the Participant and may only pass upon the Participant's death
pursuant to the terms of the Plan, pursuant to a beneficiary designation made by
a Participant in accordance with the terms of the Plan or pursuant to the laws
of inheritance. Obligations are not subject to early redemption, in whole or in
part, except as specified in the Plan. Obligations are not convertible into any
other security of the Company. The Company reserves the right to modify, amend
or terminate the Plan; provided, however, that any such action shall not
adversely affect the amount that any Participant is entitled to receive.
Item 5. Interests of Named Experts and Counsel
Certain matters with respect to the Obligations and the Common Stock being
registered hereunder are being passed upon by Mark J. Ohringer, Esq., whose
opinion is filed as Exhibit 5.1 to this Registration Statement. Mr. Ohringer is
Deputy General Counsel of the Company and participates in the Plan.
Item 6. Indemnification of Directors and Officers
The Company is a Delaware corporation. Reference is made to Section 145 of
the Delaware General Corporation Law, as amended (the "GCL"), which provides
that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that
such person is or was a director, officer, employee or agent of the corporation,
or is or was serving at its request in such capacity of another corporation or
business organization, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interest of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that such
person's conduct was unlawful. A Delaware corporation may indemnify officers and
directors in any action by or in the right of a corporation under the same
conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation.
Where an officer or director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him
against the expenses (including attorneys' fees) that such officer or director
actually and reasonably incurred.
Reference is also made to Section 102(b)(7) of the GCL, which permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the GCL or (iv) for any transaction from which the director
derived an improper personal benefit.
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<PAGE>
The Amended and Restated Certificate of Incorporation of the Company
provides for the elimination of personal liability of a director for breach of
fiduciary duty as permitted by Section 102(b)(7) of the GCL and the Amended and
Restated By-Laws of the Company provide that the Company shall indemnify its
directors and officers to the full extent permitted by Section 145 of the GCL.
The Company has directors and officers liability insurance that insures the
directors and officers of the Company against certain liabilities.
Item 7. Exemption From Registration Claimed
Not Applicable.
Item 8. Exhibits
A list of exhibits is set forth on the Index to Exhibits.
Item 9. Undertakings
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section
-------- -------
do not apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the Company pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
this 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.
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<PAGE>
(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 Company hereby further undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of the annual report of the
employee benefit plans pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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 Company pursuant to the foregoing provisions, or otherwise, the Company
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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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.
-7-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company 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 Chicago, Illinois on the 28th day of February, 2000.
HELLER FINANCIAL, INC.
By: /s/ Richard J. Almeida
------------------------
Richard J. Almeida
Chairman of the Board and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Lauralee E. Martin, Debra H. Snider and Mark J.
Ohringer and each of them (with full power to each of them to act alone), his
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the SEC, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all said attorneys-in-fact
and agents, or any of them, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
--------- ----- ----
/s/ Richard J. Almeida Chairman of the Board, February 28, 2000
-------------------------- Chief Executive Officer
Richard J. Almeida (Principal Executive
Officer) and Director
/s/ Frederick E. Wolfert President, Chief Operating
-------------------------- Officer and Director February 28, 2000
Frederick E. Wolfert
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<PAGE>
/s/ Lawrence G. Hund Executive Vice President
-------------------------- and Controller (Principal February 28, 2000
Lawrence G. Hund Accounting Officer)
/s/ Lauralee E. Martin Executive Vice President
-------------------------- and Chief Financial February 28, 2000
Lauralee E. Martin Officer
/s/ Masahiro Sawada Executive Vice President February 28, 2000
-------------------------- and Director
Masahiro Sawada
/s/ Takaaki Kato Senior Vice President February 28, 2000
-------------------------- and Director
Takaaki Kato
/s/ Kenichiro Tanaka Director February 28, 2000
--------------------------
Kenichiro Tanaka
/s/ Dennis P. Lockhart Director February 28, 2000
--------------------------
Dennis P. Lockhart
/s/ Soichi Hirabayashi Director February 28, 2000
--------------------------
Soichi Hirabayashi
/s/ Takashi Makimoto Director February 28, 2000
--------------------------
Takashi Makimoto
/s/ Tetsuo Kumon Director February 28, 2000
--------------------------
Tetsuo Kumon
/s/ Mark Kessel Director February 28, 2000
--------------------------
Mark Kessel
/s/ Michael A. Conway Director February 28, 2000
--------------------------
Michael A. Conway
/s/ Frank S. Ptak Director February 28, 2000
--------------------------
Frank S. Ptak
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<PAGE>
EXHIBIT INDEX
-------------
Exhibit
Number Description
------ -----------
4.1 Heller Financial, Inc. Executive Deferred Compensation Plan
(As Conformed through the Second Amendment, as of January 1,
2000)
4.2 Amended and Restated Certificate of Incorporation of the
Company (incorporated herein by reference to Exhibit 3.1 of
the Company's quarterly report on Form 10-Q for the period
ended March 31, 1998, file no. 1-6157)
4.3 Amended and Restated By-Laws of the Company (incorporated
herein by reference to Exhibit 3.2 of the Company's
quarterly report on Form 10-Q for the period ended March 31,
1998, file no. 1-6157)
4.4 The description of the Company's Class A Common Stock, $.25
par value per share (incorporated herein by reference to the
description thereof contained in the "Description of the
Securities We May Offer" section of the Company's
registration statement on Form S-3, file no. 333-84725,
filed with the Commission on August 6, 1999)
4.5 Specimen stock certificate representing Class A Common Stock
(incorporated herein by reference to Exhibit 4 of the
Company's registration statement on Form S-2, file no.
333-46915, filed with the Commission on February 26, 1998)
5.1 Opinion re: legality of the securities being registered
23.1 Consent of Arthur Andersen LLP
23.2 Consent of legal counsel (included as part of the opinion
filed as Exhibit 5.1)
24.1 Powers of Attorney (included on the signature page hereof)
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EXHIBIT 4.1
HELLER FINANCIAL, INC.
----------------------
EXECUTIVE DEFERRED COMPENSATION PLAN
------------------------------------
(As Conformed through the Second Amendment, as of January 1, 2000)
Section 1
---------
Introduction
------------
1.1 The Plan and Its Effective Date. The Heller International Corporation
-------------------------------
Executive Deferred Compensation Plan (the "Original Plan") was established by
Heller International Corporation effective as of January 1, 1994 (the "Effective
Date"). The Original Plan was renamed the Heller Financial, Inc. Executive
Deferred Compensation Plan (the "Plan") effective as of January 1, 1998.
1.2 Purpose. Heller International Corporation established the Original
-------
Plan effective January 1, 1994 for a select group of management and highly
compensated employees of Heller International Corporation or any subsidiary or
affiliate that adopted the Original Plan in accordance with Section 6 to retain
and attract highly qualified personnel by offering the benefits of a non-
qualified, unfunded plan of deferred compensation. This Plan allows Eligible
Employees to make deferrals and receive benefits regardless of the benefit and
contribution limits applicable to qualified retirement plans under the Internal
Revenue Code of 1986, as amended. Heller International Corporation transferred
sponsorship of the Original Plan to Heller Financial, Inc. (the "Company"),
effective as of January 1, 1998. The Plan is intended to be a top-hat plan
described in Section 201(2) of the Employee Retirement Income Security Act of
1974 ("ERISA").
1.3 Administration. The Plan shall be administered by a committee (the
--------------
"Committee") appointed by the Compensation Committee of the Board of Directors
of the Company (the "Compensation Committee"). In the event the Compensation
Committee fails to appoint such a committee, then the Compensation Committee
itself shall constitute the Committee. The Committee shall have the powers set
forth in the Plan and the power to interpret its provisions. Any decisions of
the Committee shall be final and binding on all persons with regard to the Plan.
The Committee may delegate its authority hereunder to one or more officers or
directors of the Company. The members of the Committee shall serve at the
pleasure of the Compensation Committee and may be removed, with or without
cause, by the Compensation Committee.
Section 2
---------
Participation and Deferral Elections
------------------------------------
2.1 Eligibility and Participation. Subject to the conditions and
-----------------------------
limitations of the Plan, all leadership executives (salary grade 18 and above)
of the Company or an Employer (as defined in Section 6.1), such other executives
of the Company or an Employer identified as eligible by the Committee, and those
non-employee members of the Board of Directors of the
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Company identified as eligible by the Committee shall be eligible to participate
in the Plan ("Eligible Employees"). Any Eligible Employee who makes a Deferral
Election as described in Section 2.2 below shall become a participant in the
Plan ("Participant") and shall remain a Participant until the entire balance of
his Deferral Account (defined in Section 3.1 below) is distributed to him.
2.2 Rules for Deferral Elections. Any Eligible Employee may make an
----------------------------
irrevocable election ("Deferral Election") to defer receipt of one or more of
his Incentive Payments, Annual Bonus, Annual Base Salary, REFS Plan Amount and
Retainer (as these terms are defined in Section 2.3) for a calendar year in
accordance with the rules set forth below:
(a) An individual shall be eligible to make a Deferral Election only if he
is an Eligible Employee on the date such election is made. Effective
July 17, 1998, an individual who first becomes an Eligible Employee
during a given calendar year may make an election to participate in
the Plan during that calendar year, so long as the election:
(i) is submitted to the Committed or its delegate within thirty days
after the individual becomes an Eligible Employee; and
(ii) relates only to compensation earned for services performed during
that calendar year after the election is properly submitted to
the Committee or its delegate.
July 17, 1998 will be a special date upon which individuals first
hired by the Company or an Employer earlier in 1998 become Eligible
Employees (assuming the Committee has named them as eligible, if
applicable).
(b) All Deferral Elections must be made in writing on such forms as the
Committee may prescribe and must be received by the Committee no later
than the date specified by the Committee. In no event will the date
specified by the Committee be later than the end of the month that
precedes the earliest date that the amount being deferred is made
available to such Eligible Employee.
(c) Deferred amounts will be deferred to the date specified by the
Eligible Employee at the time of his initial Deferral Election (the
"Distribution Date"). Except as provided in subsections 2.2(f),
2.2(k) or 2.2(l) below, the Distribution Date specified at the time of
the Eligible Employee's initial Deferral Election is irrevocable and
shall apply to all amounts deferred by the Eligible Employee under the
Plan.
(d) The Distribution Date specified by the Participant at the time of his
initial Deferral Election shall be either (i) a specified date not
earlier than January 1 immediately following the third anniversary of
the date on which the Eligible Employee files his initial Deferral
Election (the "Designated Distribution Date"), (ii) the Eligible
Employee's Termination of Employment (as defined in subsection
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<PAGE>
(e), below) or a specified date coinciding with or next following the
Eligible Employee's Termination of Employment (e.g., January 1
coinciding with or next following the Eligible Employee's Termination
of Employment), or (iii) the earlier of (i) or (ii) above, as may be
elected by the Eligible Employee at the time of his initial Deferral
Election.
(e) For purposes of this Plan, a "Termination of Employment" occurs when a
person leaves the employ of the Company (including all subsidiaries
and affiliates), or, as applicable, ceases to be a member of the Board
of Directors of the Company, by reason of a resignation, discharge,
retirement, or death; provided that in the event a person receives
periodic severance payments after he leaves the employ of the Company
(or an subsidiary or affiliate), then such person's Termination of
Employment shall occur on the date on which the final periodic
severance payment is made. For a Participant who is a non-employee
member of the Board of Directors of the Company, a "Termination of
Employment" occurs when the Participant ceases to be a non-employee
director.
(f) A Participant may make a one-time election after the Participant's
initial Deferral Election to extend the Distribution Date; provided
that such election shall not be effective unless the Committee
receives the election at least one year and one day before the
Distribution Date elected by the Participant at the time of his
initial Deferral Election and provided that with respect to
acceleration of the Distribution Date, the Participant's Employer
provides prior written consent to such acceleration.
(g) At the time of the Participant's initial Deferral Election, the
Participant must elect, in writing on such form as the Committee may
prescribe, the form of payment of the Participant's Deferral Account.
The Deferral Account may be paid in a single lump sum or in
substantially equal annual installments over a five, ten or fifteen
year period in accordance with Section 4.1. Except as provided in
Section 4.1, the Participant's election as to the form of payment of
his Deferral Account made at the time of the Participant's initial
Deferral Election shall apply to all amounts deferred by the Eligible
Employee under the Plan.
(h) At the time of the Participant's initial Deferral Election, the
Participant shall specify, in writing on such form as may be
prescribed by the Committee, the manner in which income, gains, losses
and expenses are credited or charged to a Participant's Deferral
Accounts in accordance with Section 3.2.
(i) No Deferral Election shall apply to any amounts which in the absence
of a Deferral Election would be payable to the Eligible Employee on or
after January 1, 2004, or such later date as may be permitted by the
Board of Directors of the Company.
(j) A Deferral Election shall be irrevocable; provided that if the
Committee determines that a Participant has an Unforeseeable Financial
Emergency (as
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<PAGE>
defined in Section 4.6), then the Participant's Deferral Election in
effect at the time of the Unforeseeable Financial Emergency shall be
revoked with respect to all amounts not previously deferred at the
time the Committee determines that the Participant has an
Unforeseeable Financial Emergency; and further provided that if a
Participant receives a distribution on account of hardship under any
qualified plan that is described in Section 401(k) of the Internal
Revenue Code (the "Code") and which is maintained by the Company, an
Employer or a commonly controlled entity (as defined in Code Sections
414(b) and (c)) of the Company or an Employer (a "401(k) Plan"), then
no amounts may be deferred under the Plan for a period of 12 months
following the date the Participant receives the distribution on
account of hardship from the 401(k) Plan.
(k) If a Participant makes a Deferral Election that will first become
effective after the Designated Distribution Date elected in the
Participant's initial Deferral Election, then the Participant must
select a new Distribution Date in the manner described in subsection
2.2(d) as though such Deferral Election were his initial Deferral
Election; provided, that the new Distribution Date selected by the
Participant shall only apply to amounts deferred by the Participant
for calendar years following the year in which the new Distribution
Date is selected.
(l) If a Participant is also a participant in the Heller Financial, Inc.
Real Estate Financial Services Plan ("REFS Plan") for the 1997
calendar year, such Participant may, in accordance with the provisions
of the REFS Plan, elect to transfer all or a portion of his Deferral
Account to the REFS Plan. All amounts so transferred shall be subject
to the terms and conditions of the REFS Plan (including, but not
limited to, the distribution provisions of the REFS Plan), but in no
event shall such amounts be distributed from the REFS Plan prior to
the date that they would otherwise be distributed under the Plan had
such transfer not occurred.
2.3 Amounts Deferred. An Eligible Employee may make a Deferral Election to
----------------
defer receipt of the following amounts:
(a) All or any portion of his incentive payments ("Incentive Payments")
under the Long-term Incentive Plan of Heller Financial, Inc. with
respect to performance in the calendar year in which the Deferral
Election is made in increments of 1%.
(b) All or any portion of his annual bonus ("Annual Bonus") for a calendar
year under the Management Incentive Plan of Heller Financial, Inc. in
increments of 1%.
(c) Up to 50% of his annual base salary excluding severance payments
("Annual Base Salary") in increments of 1%.
(d) Such other bonuses and incentive payments under any plan or
arrangement established by an Employer as the Chairman of the Board of
Directors of the Company (the "Chairman") may designate as
compensation eligible for deferral
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<PAGE>
under this Plan in such increments and subject to such limitations and
restrictions as the Chairman may establish.
(e) Subject to the terms and conditions of the REFS Plan, all of his
distribution from a given subaccount under the REFS Plan ("REFS Plan
Amount").
(f) All or any portion of his retainer received for services as a non-
employee member of the Board of Directors of the Company ("Retainer").
Section 3
---------
Deferral Accounts
-----------------
3.1 Deferral Accounts. All amounts deferred pursuant to one or more
-----------------
Deferral Elections under the Plan shall be allocated to a bookkeeping account in
the name of the Participant ("Deferral Account"). Amounts deferred pursuant to
a Deferral Election shall be credited to the Deferral Account as of the Deferral
Crediting Date (as defined below) coinciding with or next following the date on
which, in the absence of a Deferral Election, the Participant would otherwise
have received the deferred amounts. The "Deferral Crediting Date" shall be the
business day coinciding with or next preceding the 15th day of each calendar
month (the "Mid-Month Deferral Crediting Date") and the business day coinciding
with or next preceding the last day of each calendar month (the "End-of-Month
Deferral Crediting Date").
3.2 Investment Elections and Income Crediting. As of the close of
-----------------------------------------
business on each day the New York Stock Exchange is open for business
("Valuation Date"), each Participant's Deferral Account will be credited with
income and gains and charged with losses, expenses and distributions equal to
the amount by which the Deferral Account would have been credited or charged
since the prior Valuation Date (in the manner described below) had the
Participant's Deferral Account been invested in the Investment Funds (as defined
below) selected by the Participant in accordance with the Participant's
investment elections.
The "Investment Funds" will consist of two or more mutual funds or other
group investment funds designated by the Committee, in its sole discretion, for
Participants' investment elections. In addition, the Committee may establish an
Investment Fund consisting of the Company's Class A common stock, par value
$0.25 (the "Company Stock Fund"). Income, gains, losses, expenses and
distributions will be credited and charged in the manner dictated by each
Investment Fund. The Company Stock Fund may use a unit valuation method of
accounting. The Committee may, in its sole discretion, from time to time
designate additional Investment Funds or terminate existing Investment Funds.
A Participant must make an investment election at the time of his or her
initial Deferral Election. The investment election must designate the portion
of the amounts deferred to be treated as invested in each available Investment
Fund. As to elections effective on or after March 1, 1999, any investment
election made by a Participant that directed or directs investment into the
Company Stock Fund will be irrevocable. A Participant may elect no later than 1
p.m. Central Standard Time on February 26, 1999 to move amounts already in the
Company Stock Fund out of that Fund; any amounts not moved by that time will
remain in the Company Stock Fund. A Participant's investment election will
remain in effect for each deferral made after the
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<PAGE>
election is effective, until the Participant files a change in investment
election with the Committee (or its delegate). Except as described above with
regard to amounts invested in the Company Stock Fund, a Participant may change
his or her investment election as to amounts deferred following the change in
investment election, as to the investment allocation of the Participant's
existing Deferral Account, or as to both matters. A change in investment
election must be filed with the Committee (or its delegate) in the form
prescribed by the Committee and in the time and manner specified by the
Committee. A Participant's initial investment election, or any change in
investment election, will become effective in accordance with rules established
by the Committee and applied uniformly to similarly situated Participants. The
Company reserves the right to impose blackout periods during which no
contributions or transfers may be made to, or, for transfers to be effective
before March 1, 1999, from the Company Stock Fund.
3.3. Vesting. A Participant shall be fully vested at all times in the
-------
balance of his Deferral Account.
Section 4
---------
Payment of Benefits
-------------------
4.1 Time and Method of Payment. Payment of a Participant's Deferral
--------------------------
Account shall be made in the form of a single lump sum or shall commence in the
form of installments as elected by the Participant at the time of his initial
Deferral Election. A Participant may make a one-time election after the
Eligible Employee's initial Deferral Election to change the form of payment
elected by the Participant; provided that such election shall not be effective
unless the election to change the form of payment is received by the Committee
at least one year and one day before the Participant's Distribution Date.
Notwithstanding the foregoing, a Participant who also is a participant in the
REFS Plan (as described in Section 2.2(l)) may make a one-time election pursuant
to the terms of the REFS Plan to transfer all or a portion of his Deferral
Account to the REFS Plan.
If a Participant's Deferral Account is payable in a single lump sum, the
payment shall be made as of a Valuation Date occurring as soon as possible
following the Participant's Distribution Date, in an amount equal to the value
of the Participant's Deferral Account.
If a Participant's Deferral Account is payable in the form of installment
payments, then the Participant's Deferral Account shall be paid in substantially
equal installments over a five, ten or fifteen year period (as elected by the
Participant in accordance with this Section 4.1) commencing as soon as practical
after the Participant's Distribution Date.
Each installment payment shall be computed by dividing the balance of the
Participant's Deferral Account as of the most recent valuation completed prior
to the installment payment date by the number of payments remaining in the
installment period.
4.2 Payment Upon Disability. In the event a Participant becomes Disabled
-----------------------
(as defined below) before his Distribution Date, payment of the Participant's
Deferral Account shall be made or shall commence (in the form of payment elected
by the Participant in accordance
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<PAGE>
with Section 2.2(g) and 4.1) as of a Valuation Date occurring as soon as
practical after the date on which the Committee determines that the Participant
is Disabled.
For purposes of this Section 4.2, a Participant shall be "Disabled" if he
has a physical or mental condition resulting from a bodily injury, disease, or
mental disorder, which renders the Participant presumably permanently incapable
of performing his normal employment duties. Such determination shall be made by
the Committee on the basis of such medical and other competent evidence as the
Committee shall deem relevant.
4.3 Payment Upon Death of a Participant. Notwithstanding any election by
-----------------------------------
the Participant regarding the timing and manner of payment of his Deferral
Account, a Participant's Deferral Account shall be paid to the Participant's
Beneficiary (designated in accordance with Section 4.4) in any manner determined
by the Committee in its sole discretion.
4.4 Beneficiary. If a Participant is married on the date of his death,
-----------
then his Beneficiary shall be the Participant's spouse, unless the Participant
(with his spouse's written consent) names a Beneficiary or Beneficiaries (other
than the Participant's spouse) to receive the balance of the Participant's
Deferral Account in the event of the Participant's death prior to the payment of
his entire Deferral Account. To be effective, any Beneficiary designation shall
be filed in writing with the Committee. A Participant may revoke an existing
Beneficiary designation by filing another written Beneficiary designation with
the Committee. The latest Beneficiary designation received by the Committee
shall be controlling.
If no Beneficiary is named by a Participant or if he survives all of his
named Beneficiaries, the Deferral Account shall be paid in the following order
of precedence:
(1) the Participant's spouse;
(2) the Participant's children (including adopted children), per
stirpes; or
(3) the Participant's estate.
In order for a married Participant's Beneficiary designation to be
effective, the Participant's spouse must consent to the Beneficiary designation.
A valid spousal consent:
(1) must be in writing acknowledging the effect of the consent;
(2) must be witnessed by a notary public;
(3) must be effective only for the spouse who executes the consent;
and
(4) must designate a Beneficiary or Beneficiaries who may not be
changed by the Participant without the spouse's consent, unless
the Participant names his spouse as his sole Beneficiary or the
spouse's consent in the first instance expressly permits
designations by the Participant without any requirement of
further consent by the spouse.
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<PAGE>
4.5 Form of Payment. Effective March 1, 1999, if a Participant has
---------------
directed the investment of all or a part of his or her Deferral Account into the
Company Stock Fund, then any payments to that Participant from that portion of
his or her Deferral Account will be made in Company Stock. All other payments
will be made in cash.
4.6 Unforeseeable Financial Emergency. If the Committee determines that a
---------------------------------
Participant has incurred an Unforeseeable Financial Emergency (as defined
below), the Participant may withdraw the portion of the balance of his or her
Deferral Account that is needed to satisfy the Unforeseeable Financial
Emergency, to the extent that the Unforeseeable Financial Emergency may not be
relieved:
(1) through reimbursement or compensation by insurance or otherwise;
or
(2) by liquidation of the Participant's assets, to the extent
liquidation of those assets would not itself cause severe
financial hardship.
An "Unforeseeable Financial Emergency" is a severe financial hardship to the
Participant resulting from:
(1) a sudden and unexpected illness or accident of the Participant or
of a dependent of the Participant;
(2) loss of the Participant's property due to casualty; or
(3) such other similar extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the
Participant as determined by the Committee.
Notwithstanding the foregoing, effective for withdrawals made on or after March
1, 1999, no portion of a Participant's Deferral Account for which the
Participant has directed investment in the Company Stock Fund may be withdrawn
under this Section 4.6 under any circumstances. A withdrawal on account of an
Unforeseeable Financial Emergency will be paid in cash, as of a Valuation Date
occurring as soon as possible after the date on which the Committee approves the
withdrawal.
If a Participant is entitled to a withdrawal from the Plan on account of an
Unforeseeable Financial Emergency and at the same time is entitled to a
distribution on account of hardship from a 401(k) Plan (as defined in Section
2.2(j)), the Participant must withdraw his or her entire Deferral Account under
the Plan on account of the Unforeseeable Financial Emergency before he or she
may receive any distribution on account of hardship under the 401(k) Plan.
4.7 Withholding of Taxes. The Company will withhold any applicable
--------------------
Federal, state or local income tax from payments due under the Plan. The
Company will also withhold Social Security taxes, including the Medicare portion
of those taxes, and any other employment taxes necessary to comply with
applicable laws. To the extent that a Participant's Deferral Account does not
contain sufficient cash to satisfy the applicable taxes, the Company will
liquidate shares of Company Stock held for a Participant who directed the
investment of all or a portion of his or
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<PAGE>
her Deferral Account into the Company Stock Fund and use the obtained funds to
satisfy the taxes.
4.8 Cashout of Account Balances. Notwithstanding any election by the
---------------------------
Participant regarding the timing and manner of a payment of his Deferral
Account, in the event of a Participant's Termination of Employment, (a) the
Employer may elect to pay the Participant a lump sum distribution of the entire
value of the Participant's Deferral Account if the value is less than one
hundred thousand dollars ($100,000) determined as of the Valuation Date
coinciding with or immediately following the Participant's termination of
employment, and (b) the Compensation Committee may in its sole discretion elect
to pay the Participant a lump sum distribution of the entire value of the
Participant's Deferral Account.
Section 5
---------
Miscellaneous
-------------
5.1 Funding. Benefits payable under the Plan to any Participant shall be
-------
paid directly by the Participant's Employer (including the Company if the
Participant is employed by the Company). The Company and the Employers shall
not be required to fund, or otherwise segregate assets to be used for payment of
benefits under the Plan. While the Company and Employers may, in the discretion
of the Committee, make investments in the mutual funds designated by the
Committee as Investment Funds in amounts equal or unequal to Participants'
investment elections hereunder, the Company and the Employers shall not be under
any obligation to make such investments and any such investment shall remain an
asset of the Company or the Employer subject to the claims of its general
creditors. Notwithstanding the foregoing, the Company and the Employers, in the
discretion of the Committee, may maintain one or more grantor trusts ("Trust")
to hold assets to be used for payment of benefits under the Plan. The assets of
the Trust with respect to benefits payable to the employees of each Employer
shall remain the assets of such Employer subject to the claims of its general
creditors. Any payments by a Trust of benefits provided to a Participant under
the Plan shall be considered payment by the Company or the Employer and shall
discharge the Company or the Employer of any further liability under the Plan
for such payments.
5.2 Benefit Statements. As soon as practical after the end of each
------------------
calendar year (or after such additional date or dates as the Committee, in its
discretion, may designate), the Committee shall provide each Participant with a
statement of the balance of his Deferral Account hereunder as of the last day of
such calendar year (or as of such other dates as the Committee, in its
discretion may designate).
5.3 Employment Rights. Establishment of the Plan shall not be construed
-----------------
to give any Eligible Employee the right to be retained in the Company's service
or to any benefits not specifically provided by the Plan.
5.4 Interests Not Transferable. Except as to withholding of any taxes
--------------------------
under the laws of the United States or any state or locality and the provisions
of Section 4.4, no benefit payable
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<PAGE>
at any time under the Plan shall be subject in any manner to alienation, sale,
transfer, assignment, pledge, attachment, or other legal process, or encumbrance
of any kind. Any attempt to alienate, sell, transfer, assign, pledge or
otherwise encumber any such benefits, whether currently or thereafter payable,
shall be void. No person shall, in any manner, be liable for or subject to the
debts or liabilities of any person entitled to such benefits. If any person
shall attempt to, or shall alienate, sell, transfer, assign, pledge or otherwise
encumber his benefits under the Plan, or if by any reason of his bankruptcy or
other event happening at any time, such benefits would devolve upon any other
person or would not be enjoyed by the person entitled thereto under the Plan,
then the Committee, in its discretion, may terminate the interest in any such
benefits of the person entitled thereto under the Plan and hold or apply them
for or to the benefit of such person entitled thereto under the Plan or his
spouse, children or other dependents, or any of them, in such manner as the
Committee may deem proper.
5.5 Forfeitures and Unclaimed Amounts. Unclaimed amounts shall consist of
---------------------------------
the amounts of the Deferral Account of a Participant that cannot be distributed
because of the Committee's inability, after a reasonable search, to locate a
Participant or his Beneficiary, as applicable, within a period of two (2) years
after the Valuation Date upon which the payment of benefits become due.
Unclaimed amounts shall be forfeited at the end of such two-year period. These
forfeitures will reduce the obligations of the Company under the Plan. After an
unclaimed amount has been forfeited, the Participant or Beneficiary, as
applicable, shall have no further right to his Deferral Account.
5.6 Controlling Law. The law of Illinois, except its law with respect to
---------------
choice of law, shall be controlling in all matters relating to the Plan to the
extent not preempted by ERISA.
5.7 Gender and Number. Words in the masculine gender shall include the
-----------------
feminine, and the plural shall include the singular and the singular shall
include the plural.
5.8 Action by the Company. Except as otherwise specifically provided
---------------------
herein, any action required of or permitted by the Company under the Plan shall
be by resolution of the Board of Directors of the Company or by action of any
member of the Committee or person(s) authorized by resolution of the Board of
Directors of the Company.
5.9 Voting Company Stock. Effective March 1, 1999, any Participant that
--------------------
has directed or directs the investment of any part of his or her Deferral
Account into the Company Stock Fund will have the right to direct the voting of
shares of Company Stock allocated to his or her Deferral Account. The
Participant will direct the voting of shares allocated to his or her Deferral
Account according to the procedures and deadlines established by the Committee.
Section 6
---------
Employer Participation
----------------------
6.1 Adoption of Plan. Any subsidiary or affiliate of the Company
----------------
(including any domestic or foreign entity which is related to the Company by
less than a 50% direct or indirect ownership interest by or in the Company) (an
"Employer") may, with the approval of the Committee and under such terms and
conditions as the Committee may prescribe, adopt the
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<PAGE>
corresponding portions of the Plan by resolution of its board of directors. The
Committee will amend the Plan as necessary or desirable to reflect the adoption
of the Plan by an Employer, and the appearance of an Employer's name in Appendix
A will be conclusive proof that the Committee has approved the Employer's
adoption of the Plan. An adopting Employer has no authority to amend or
terminate the Plan under Section 7.
6.2 Withdrawal from the Plan by Employer. Any Employer has the right, at
------------------------------------
any time, upon the approval of and under such conditions as may be provided by
the Committee, to withdraw from the Plan by delivering to the Committee written
notice of its election to withdraw. Upon receipt of such a notice, the
Committee will direct that the portion of the Deferral Account of a Participant
or Beneficiary attributable to amounts deferred while the Participant was an
employee of the withdrawing Employer, plus any net earnings, gains and losses on
those amounts, be distributed from the Trust in cash, and, effective for
distributions made on or after March 1, 1999, to the extent invested in the
Company Stock Fund, in shares of Company Stock. Distribution under the
preceding sentence will be made at such time or times as the Committee, in its
sole discretion, deems to be in the best interest of the withdrawing Employer's
employees and their Beneficiaries. To the extent the amounts held in the Trust
for the benefit of its Participants and Beneficiaries are not sufficient to
satisfy the withdrawing Employer's obligation to its Participants and their
Beneficiaries accrued on account of their employment with the withdrawing
Employer, the amount remaining necessary to satisfy the obligation will be an
obligation of the withdrawing Employer, and the Company will have no further
obligation to the withdrawing Employer's Participants and Beneficiaries with
respect to those amounts.
Section 7
---------
Amendment and Termination
-------------------------
The Company intends the Plan to be permanent, but reserves the right at any
time by action of its Board of Directors to modify, amend or terminate the Plan,
provided, however, that any amendment or termination of the Plan shall not
reduce or eliminate any Deferral Account accrued through the date of such
amendment or termination, increased by any income and gain credited to the
Participant's Deferral Account and reduced by any losses, expenses and
distributions charged to the Participant's Deferral Account in accordance with
Section 3.2.
The Committee shall have the same authority to adopt amendments to the Plan
as the Board of Directors of the Company in the following circumstances:
(a) to adopt amendments to the Plan which the Committee determines
are necessary or desirable for the Plan to comply with or to
obtain benefits or advantages under the provisions of applicable
law, regulations or rulings or requirements of the Internal
Revenue Service or other governmental or administrative agency or
changes in such law, regulations, rulings or requirements; and
(b) to adopt any other procedural or cosmetic amendment that the
Committee determines to be necessary or desirable that does not
materially change
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<PAGE>
benefits to Participants or their Beneficiaries or materially
increase the Company's or adopting Employers' obligations under
the Plan.
The Committee shall provide notice of amendments adopted by the Committee to the
Board of Directors of the Company on a timely basis.
Executed in multiple originals this _______ day of July, 1998.
HELLER FINANCIAL, INC.
By: _________________________
Title: ______________________
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<PAGE>
Appendix A
----------
Adopting Employers
------------------
The affiliates and subsidiaries of the Company listed below have adopted the
Plan for their employees effective as of the dates indicated.
Adopting Employer Effective Date
- ----------------- --------------
Heller Financial Leasing, Inc. January 1, 1999
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<PAGE>
EXHIBIT 5.1
Opinion of Counsel
[Letterhead of Heller Financial, Inc.]
February 28, 2000
Heller Financial, Inc.
500 West Madison Street
Chicago, IL 60661
RE: Registration Statement on Form S-8 of Heller Financial, Inc. (the
"Registration Statement") registering $50,000,000 in deferred
compensation obligations and 500,000 shares of Class A Common Stock,
$.25 par value
Ladies and Gentlemen:
I have acted as Deputy General Counsel for Heller Financial, Inc., a
Delaware corporation (the "Company"), in connection with the registration on
Form S-8 of the offer and sale of up to $50,000,000 of deferred compensation
obligations (the "Obligations"), which will represent unsecured obligations of
the Company, and up to 500,000 shares of Class A Common Stock, $.25 par value,
of the Company (the "Common Stock") under the Heller Financial, Inc. Executive
Deferred Compensation Plan (as amended, the "Plan").
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K promulgated under the Securities Act of 1933, as
amended (the "Act").
In connection with this opinion, I have examined and am familiar with
originals or copies, certified or otherwise identified to my satisfaction, of:
(i) the Registration Statement to be filed with the Securities and Exchange
Commission (the "Commission") under the Act; (ii) the Amended and Restated
Certificate of Incorporation of the Company, as currently in effect; (iii) the
Amended and Restated By-Laws of the Company, as currently in effect; (iv) the
Plan. I have also examined such other documents as I have deemed necessary or
appropriate as a basis for the opinion set forth below.
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<PAGE>
In my examination, I have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authority of all documents
submitted to me as certified or photostatic copies, and the authenticity of the
originals of all documents. As to any facts material to this opinion which I did
not independently verify, I have relied upon oral or written statements and
representations of officers and other representatives of the Company and others.
Based upon and subject to the foregoing, I am of the opinion that (i) when
issued by the Company in the manner provided in the Plan, the Obligations will
be valid and binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws of general applicability relating to or
affecting enforcement of creditors' rights or by general principals of equity,
and (ii) when issued and delivered by the Company pursuant to the Plan, the
shares of Common Stock being registered will be legally issued, fully paid and
non-assessable shares of Common Stock.
I hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement. In giving such consent, I do not concede
that I am an expert within the meaning of the Act or the rules and regulations
thereunder or that this consent is required by Section 7 of the Act.
Very truly yours,
/s/ Mark J. Ohringer
------------------------------
Mark J. Ohringer
Deputy General Counsel
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<PAGE>
EXHIBIT 23.1
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 18, 2000
(except with respect to the matters discussed in Note 26, as to which the date
is February 15, 2000) included in Heller Financial, Inc.'s Form 10-K for the
year ended December 31, 1999 and to all references to our firm included in this
registration statement.
Arthur Andersen LLP
Chicago, Illinois
February 22, 2000
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