-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EeEpA0oVRvMjeb6bmmYcva0Ik8TygH51f+T1kB8pWhTU5zu7gtQJx1leTbCcnZyV A3/lFFhSBBh9B+UgfE5t7w== 0000950131-00-006617.txt : 20001201 0000950131-00-006617.hdr.sgml : 20001201 ACCESSION NUMBER: 0000950131-00-006617 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20001129 EFFECTIVENESS DATE: 20001129 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HELLER FINANCIAL INC CENTRAL INDEX KEY: 0000046738 STANDARD INDUSTRIAL CLASSIFICATION: SHORT-TERM BUSINESS CREDIT INSTITUTIONS [6153] IRS NUMBER: 361208070 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-50916 FILM NUMBER: 780598 BUSINESS ADDRESS: STREET 1: 500 W MONROE ST CITY: CHICAGO STATE: IL ZIP: 60661 BUSINESS PHONE: 3124417000 MAIL ADDRESS: STREET 1: 500 W MONROE ST CITY: CHICAGO STATE: IL ZIP: 60661 FORMER COMPANY: FORMER CONFORMED NAME: HELLER WALTER E & CO /NEW/ DATE OF NAME CHANGE: 19850503 S-8 1 0001.txt REGISTRATION STATEMENT As filed with the Commission on November 29, 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. Deferral Restoration Plan (Full title of the Plan) --------------------------------------------------------- Mark J. Ohringer, Esq. 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
- ------------------------------------------------------------------------------------------------------------------------------------ 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 - ------------------------------------------------------------------------------------------------------------------------------------ Heller Financial, Inc. Deferral $50,000,000 100% $50,000,000 $12,500(1) Restoration Plan Obligations (2).... - ------------------------------------------------------------------------------------------------------------------------------------ Class A Common Stock, $.25 par value 500,000 shares(3) $26.5315 $13,265,750(4) $ 3,318(4) - ------------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------- (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. Deferral Restoration 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 November 27, 2000, which was $26.5315. 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 Quarterly Reports of Form 10-Q filed with the Commission on May 9, August 4 and November 13, 2000; (c) The Company's Current Reports on Form 8-K filed with the Commission on January 20, January 21, April 20, April 21, July 19, July 21, September 11, October 19 and October 20; and (d) 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 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. -2- 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. Deferral Restoration 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 each subsidiary or affiliate of the Company that participates in the Heller Financial, Inc. Savings and Profit Sharing Plan (the "401(K) Plan") (collectively, the "Employers"), 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 (each a "Participant") as well as the matching contributions of the Company are referred to herein as "Obligations." The Company herein registers $50,000,000 of Obligations and 500,000 shares of its Class A Common Stock, $.25 par value (the "Common Stock"). The Plan operates in connection with the 401(k) Plan. Compensation is deferred by each Participant, in accordance with the Plan, pursuant to an annual, irrevocable election made by the Participant. Each pay period, each Participant will be credited with a "Supplemental Pre-tax Salary Deferral Contribution" equal to the difference, if any, between (a) the amount that would have been allocated to him or her for that period as a pre-tax salary deferral under the 401(k) Plan if the Internal Revenue Code of 1986, as amended (the "Code"), did not limit such amounts and (b) the amount actually allocated to him or her for that period as a pre-tax salary deferral under the 401(k) Plan. In addition, as of January 1 and July 1 of each year, each Participant will be credited with a "Supplemental Matching Contribution" equal to the difference, if any, between (a) the matching contribution that would have been allocated to the Participant under the 401(k) Plan for the six-month period just ended if the limitations on such contributions under the Code did not exist and (b) the matching contribution actually allocated to the Participant under the 401(k) Plan for the six-month period just ended. The Company accounts for deferred compensation and matching contributions by establishing bookkeeping accounts for each Participant (the "Supplemental Pre-tax Salary Deferral Account" and the "Supplemental Matching Contributions Account", respectively, together, the "Accounts"). Each Account shall be credited with income and gains and charged with losses, expenses and distributions equal to the amount by which the Account would have been credited or charged had the Account been actually invested in the Participant's investment election. Each Participant may elect to have his or her Supplemental Pre-tax Salary Deferral Account mirror one or more of the following investment vehicles (the same investment vehicles available under the 401(k) Plan): (1) a High Yield Bond Fund, (2) a High Yield Bond Index Fund, (3) a Large Growth Hybird Fund (stocks and bonds), (4) a Stock Index Fund, (5) a Large Growth Stock Fund, (6) a Foreign Stock Fund, (7) a Small-Cap Stock Fund and (8) the Common Stock. All Supplemental Matching Contributions credited under the Plan will be deemed to be invested solely in the Common Stock. No amounts directed into the Common Stock may be redirected into another deemed investment fund. -3- 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 chose to receive payments in one lump-sum or a series of annual payments in installments over 5, 10 or 15 years. Participants may choose among the following Distribution Dates: (1) a specified date no earlier than the day after the first anniversary of his or her initial participation election, (2) the date of the Participant's termination of employment with any Employer (or a specified date thereafter) or (3) the earlier of (1) or (2). A Participant may make a one-time election to change his or her Distribution Date. 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 participation 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 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 The financial statements and schedules incorporated by reference in this Registration Statement have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their reports with respect thereto, and are included in reliance upon the authority of said firm as experts in giving said reports. Certain matters with respect to the Obligations and the Common Stock being registered hereunder are being passed upon by Mark Ohringer, Esq., whose opinion is filed as Exhibit 5.1 to this Registration Statement. Mr. Ohringer is 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 -4- 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. 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: -5- (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. (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. -6- 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 29th day of November, 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 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, November 29, 2000 ________________________ Richard J. Almeida Chief Executive Officer (Principal Executive Officer) and Director /s/ Frederick E. Wolfert President, Chief Operating November 29, 2000 ________________________ Frederick E. Wolfert Officer and Director
-7- /s/ Lawrence G. Hund Executive Vice President November 29, 2000 ------------------------ Lawrence G. Hund and Controller (Principal Accounting Officer) /s/ Lauralee E. Martin Executive Vice President November 29, 2000 ------------------------ Lauralee E. Martin and Chief Financial Officer /s/ Kenichiro Tanaka Executive Vice President November 29, 2000 ------------------------ Kenichiro Tanaka and Director /s/ Masahiro Sawada Senior Vice President and November 29, 2000 ----------------------- Masahiro Sawada Director /s/ Dennis P. Lockhart ------------------------ Dennis P. Lockhart Director November 29, 2000 /s/ Michio Ueno ------------------------ Michio Ueno Director November 29, 2000 /s/ Takashi Makimoto ------------------------ Takashi Makimoto Director November 29, 2000 /s/ Tetsuo Kumon ------------------------ Tetsuo Kumon Director November 29, 2000 ------------------------ Mark Kessel Director November , 2000 ------------------------ Michael A. Conway Director November , 2000 ------------------------ Frank S. Ptak Director November , 2000 /s/ Takaaki Kato ------------------------ Takaaki Kato Director November 29, 2000
-8- EXHIBIT INDEX ------------- Exhibit Number Description - ------ ----------- 4.1 Heller Financial, Inc. Deferral Restoration Plan 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 their opinion filed as Exhibit 5.1) 24.1 Powers of Attorney (included on the signature page hereof) -9- EX-4.1 2 0002.txt DEFERRAL RESTORATION PLAN EXHIBIT 4.1 Heller Financial, Inc. Deferral Restoration Plan ------------------------------------------------ (Effective January 1, 2001) Winston & Strawn Chicago Heller Financial, Inc. Deferral Restoration Plan ------------------------------------------------ (Effective January 1, 2001) ARTICLE I Introduction ------------ 1.1. Plan. Heller Financial, Inc. (the "Company") hereby establishes the Heller Financial, Inc. Deferral Restoration Plan (the "Plan"), for the benefit of eligible employees of the Company and those subsidiaries and affiliates of the Company which are participating employers. 1.2. Effective Date. The Plan is effective January 1, 2001 (the "Effective Date"). The Plan's records will be maintained on the basis of a "Plan Year" that is the same as the calendar year. 1.3. Employers. The Company is one "Employer" under the Plan. In addition, each subsidiary or affiliate of the Company that participates in the Heller Financial, Inc. Savings and Profit Sharing Plan (the "401(k) Plan") will be an "Employer" under this Plan, from the date that the subsidiary or affiliate first becomes an employer under the 401(k) Plan until the date the subsidiary or affiliate ceases to be an employer under the 401(k) Plan. The Company and those subsidiaries and affiliates that participate in the Plan are sometimes referred to collectively as the "Employers." 1.4. Purpose. The Plan is intended to supplement the retirement benefits provided by the 401(k) Plan, by permitting a select group of management or highly compensated employees to defer amounts they cannot defer under the 401(k) Plan because of the limitations of Sections 401(a)(17), 401(k)(3), 401(m)(2), 402(g) and 415 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated under it (the "Code"). By supplementing the retirement benefits of certain executives in this way, the Employers hope to be more competitive in attracting and retaining top-quality personnel. The Plan is also an integral part of the Company's "total compensation" philosophy. ARTICLE II Eligibility ----------- 2.1. Eligibility. Subject to the conditions and limitations of the Plan, all leadership executives (defined for purposes of the Plan as executives in salary grades 18 and above) of an Employer will be permitted to participate. In addition, other executives of an Employer that the Committee (as hereinafter defined) identifies as eligible will be permitted to participate. Executives who are permitted to participate are referred to as "Eligible Employees." 2.2. Effective Date of Participation; Deferral Agreements. An Eligible Employee becomes a "Participant" in the Plan on the date his or her first election to participate under this Section 2.2 becomes effective. An Eligible Employee must elect before the beginning of each Plan Year whether to participate for that Plan Year. If an Eligible Employee elects to participate for a given year, the amount credited to him or her under Section 3.1 will be determined according to his or her deferral elections under the 401(k) Plan, and will begin, end and vary with his or her deferral election under the 401(k) Plan. Notwithstanding the foregoing, if an individual becomes an Eligible Employee part-way through a Plan Year, he or she must elect whether or not to participate for the remainder of the Plan Year within thirty days after he or she becomes an Eligible Employee, and his or her election to participate in this Plan will become effective as soon as practicable after it has been properly made. 2.3. Inactive Participation. A Participant becomes an "Inactive Participant" when he or she ceases to be an Eligible Employee, and continues as an Inactive Participant until he or she has been paid all amounts allocated to his or her account under the Plan. An Inactive Participant has all the Plan rights of other Participants, except the right to receive allocations of contributions for periods of time after he or she ceased to be an Eligible Employee. The beneficiary of a deceased Participant will be considered an Inactive Participant as to any unpaid accounts of the deceased Participant. ARTICLE III CONTRIBUTIONS ------------- 3.1. Supplemental Pre-tax Salary Deferral Contributions. Each pay period, each Participant will be credited with a "Supplemental Pre-tax Salary Deferral Contribution" equal to the difference, if any, between: (a) the amount that would have been allocated to him or her for that pay period as a pre-tax salary deferral under the 401(k) Plan if the limitations of Code Sections 401(a)(17), 401(k)(3), 402(g) and 415 did not exist; and (b) the amount that actually was allocated to him or her for that pay period as a pre-tax salary deferral under the 401(k) Plan. In addition, each Participant in this Plan will be deemed to have made an irrevocable election to credit to his or her account for any Plan Year an amount equal to the amount, if any, by which the pre-tax salary deferrals allocated to him or her under the 401(k) Plan for that Plan Year are actually reduced in order to ensure that the 401(k) Plan complies with Code Section 401(k)(3). 3.2. Supplemental Matching Contributions. As of each January 1 and July 1, each Participant will be credited with a "Supplemental Matching Contribution" equal to the difference, if any, between: (a) the matching contribution that would have allocated to the Participant under the 401(k) Plan for the six-month period just ended if Code Sections 401(a)(17), 401(m)(2), and 415 did not exist; and (b) the matching contribution actually allocated to the Participant under the 401(k) Plan for the six-month period just ended. In addition, as of the end of each Plan Year, each Participant will be credited an amount equal to the amount, if any, by which the matching contributions allocated to him or her under the 401(k) Plan for that Plan Year are actually reduced in order to ensure that the 401(k) Plan complies with Code Section 401(m)(2). No Participant will be entitled to any earnings on any amount allocated under the preceding sentence for any period of time before the amount is actually allocated. -2- ARTICLE IV Bookkeeping Accounts -------------------- 4.1. Participant Accounts. All amounts allocated to a Participant per Article III will be credited to bookkeeping accounts. The Committee, or its delegate, will maintain a "Supplemental Pre-tax Salary Deferral Account" and a "Supplemental Matching Contributions Account" (together, the "Accounts") for each Participant. Each such account will reflect the allocations credited to the Participant, together with any deemed interest or income and any deemed expenses, losses or distributions credited to or charged against the allocations, in accordance with the deemed investment elections the Participant makes and any expenses the Committee or its delegate charges to Participants, per this Article IV. The rules regarding when and how contribution allocations are credited to Accounts will be the same as the rules regarding allocations of contributions under the 401(k) Plan. 4.2. Accounts Fully Vested. Each Participant will at all times be fully vested in his or her Accounts, as subject to adjustment per Section 4.1. 4.3. Investment Elections. The Committee will establish "Investment Funds," which will be two or more mutual funds or other group investment funds. In addition, the Committee may establish and 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. Any or all of the Investment Funds may use a unit valuation method of accounting. The Committee may, in its sole discretion, from time to designate additional Investment Funds, or terminate existing Investment Funds. At the time he or she begins to participate in the Plan, each Participant must make an investment election. The investment election must designate the portion of the amounts deferred that will be treated as invested in each available Investment Fund. All Supplemental Matching Contributions credited under the Plan will be deemed to be invested in the Company Stock Fund at all times. A Participant's investment election will remain in effect for each allocation credited after the election is effective, until after the Participant properly submits a request to make a change in his investment election. Except as described below with regard to amounts invested in the Company Stock Fund, a Participant may change his or her investment election as to amounts allocated following the change in investment election, as to the investment allocation of the Participant's existing Accounts, or as to both matters. Any request to make a change in investment election must be filed or otherwise submitted to the party and 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 request to make a change in investment election, will become effective in accordance with rules established by the Committee and applied uniformly to similarly situated Participants. Notwithstanding any other provision of the Plan, any investment election made by a Participant that directs investment into the Company Stock Fund will be irrevocable. The -3- Company reserves the right to impose blackout periods during which no contributions or transfers may be made to the Company Stock Fund. 4.4. Company Responsibility for Plan Benefits; Funding. Benefits payable under the Plan to any Participant will be paid directly by the Company. The Company may, but is not required to, charge each Participant's Plan benefits back to the Participant's Employer, or, if the Participant was employed by more than one Employer during the time he or she was an active Participant, the Employers who employed the Participant while he or she participated actively in the Plan. The Company will not be required to fund or otherwise segregate assets to be used to pay Plan benefits. While the Company may, in the discretion of the Committee, make investments in the mutual funds designated by the Committee as Investment Funds, in amounts that may or may not equal Participants' investment elections under this Plan, it will not be under any obligation to make those types of investments, and any such investment will remain an asset of the Company, subject to the claims of the Company's general creditors. Notwithstanding the foregoing, the Company may, in the discretion of the Committee, maintain one or more grantor trusts (each a "Trust") to hold assets to be used to pay Plan benefits. The assets of such a Trust will remain assets of the Company, subject to the claims of its general creditors. Any payments from a Trust of Plan benefits will discharge the Company of any further liability for those benefits. ARTICLE V Payment of Benefits ------------------- 5.1. Election of Distribution Date and Form of Payment. At the time a Participant first elects to participate actively in the Plan, he or she must select the date as of which payment of his or her Accounts will begin. This date is the Participant's "Distribution Date." At the same time, the Participant must elect whether to receive his or her Accounts in one lump sum or in installments over five, ten or fifteen years. The Distribution Date the Participant specifies in his or her initial election to participate must be: (a) a particular date no earlier than the day after the first anniversary of the date the Participant files his or her first election to participate in the Plan; (b) the date the Participant terminates employment for any reason with his or her Employer and all of its affiliates or a particular date coinciding with or next following that date (e.g., "January 1 coinciding with or next following my termination of employment with my employer and all of its affiliates"); or (c) the earlier of (a) and (b). The period during which an individual is receiving severance pay will not be considered active employment, and will be considered to be after the individual's termination of employment. A Participant may make a one-time election after his or her initial election to change the Distribution Date, or the form in which his or her Accounts will be paid, or both, but the election -4- will be effective only if the Committee or its delegate receives it at least one year and one day before the Distribution Date originally elected by the Participant. Except as provided in the following sentence, the Distribution Date election and the election the Participant makes as to the form in which his or her Accounts are to be paid will apply to all amounts credited to him or her under the Plan. If a Participant continues to participate actively in the Plan after the Distribution Date he or she initially elected, the Participant must select a new Distribution Date and new form of payment. The new election will apply only to amounts deferred by the Participant for calendar years following the year in which the Participant selects the new Distribution Date, and will be treated as the Participant's initial election as to those amounts. 5.2. Time and Method of Payment. A Participant's Accounts will be paid in a single lump sum or installments, as he or she elects per Section 5.1. If a Participant's Accounts are payable in a single lump sum, the payment will be made as soon as possible following the Participant's Distribution Date, in an amount equal to the value of the Participant's Accounts determined as short a time as practicable before the Distribution Date. If the Participant's Accounts are to be paid in installments, the Accounts will be paid in installments over the five-, ten- or fifteen-year period he or she elected, with payments beginning as soon as practicable after the Participant's Distribution Date. Each installment payment will be computed by dividing the amount determined to be credited to the Participant's Accounts as short a time as practicable before the installment payment is due, by the number of payments then remaining in the installment period. 5.3. Payment upon Disability. If a Participant becomes Disabled (as defined in the next sentence) before his or her Distribution Date, payment of his or her Accounts will be made or begin, in the form of payment elected under Section 5.1, as soon as practicable after the date the Committee determines the Participant is Disabled. A Participant will be deemed to be "Disabled" if he or she has a physical or mental condition that results from a bodily injury, disease, or mental disorder, and that renders him or her incapable, presumably permanently, of performing his or her normal employment duties. The Committee will determine, on the basis of the medical and other competent evidence it deems relevant, whether a Participant is Disabled. 5.4. Payment upon Death of A Participant. If a Participant dies before he or she has received all or part of his or her Accounts, the amount remaining to be paid will be paid to the Participant's Beneficiary. Notwithstanding any election by a Participant regarding the timing and manner of payment of his or her Accounts, the Committee will determine in its sole discretion how and when the Participant's Accounts will be paid to his or her Beneficiary. 5.5. Beneficiary. If a Participant is married on the date of his or her death, then his or her Beneficiary will be his or her spouse. Notwithstanding the foregoing, the Participant may, with the written consent of his or her spouse, name someone other than his or her spouse as a Beneficiary or Beneficiaries. A Beneficiary designation will be effective only if it is filed with the Committee or other party designated by the Committee, in the form specified by the Committee. A Participant may revoke an existing Beneficiary designation by filing another Beneficiary designation with the Committee. The latest proper Beneficiary designation received by the Committee will control. -5- If a Participant fails to name a Beneficiary or survives all of his or her named Beneficiaries, his or her Accounts will be paid to the individual or individuals named as his or her beneficiary under the 401(k) Plan, or, if the Participant has not named a beneficiary under the 401(k) Plan, in the following order of precedence: (a) to the Participant's spouse; (b) to the Participant's children (including adopted children), per stirpes; or (c) to the Participant's estate. A married Participant may designate someone other than his or her spouse as Beneficiary of all or part of his or her Accounts only if the spouse validly consents to the designation. To be valid, a spousal consent: (a) must be in writing acknowledging the effect of the consent; (b) must be witnessed by a notary public; (c) must be effective only for the spouse who executes the consent; and (d) must designate a Beneficiary or Beneficiaries who may not be changed by the Participant without the spouse's consent, unless the Participant names his or her spouse as sole Beneficiary or the spouse's consent expressly permits the Participant to make further Beneficiary designations without the further consent of the Participant's spouse. 5.6. Medium of Payment. Any portion of a Participant's Account that is deemed to be invested in the Company Stock Fund will be paid in the form of whole shares of Company Stock, with cash paid for fractional shares of Company Stock. All other amounts owing under the Plan will be paid in cash. 5.7. Unforeseeable Financial Emergency. If the Committee determines that a Participant has incurred an Unforeseeable Financial Emergency (as defined below) it will permit the Participant to receive a portion of the amount credited to his or her Supplemental Pre-tax Salary Deferral Account equal to the amount needed to satisfy the Unforeseeable Financial Emergency. A Participant may take a "withdrawal" under the preceding sentence only to the extent that the Unforeseeable Financial Emergency cannot be relieved: (a) through reimbursement or compensation by insurance or otherwise; or (b) by liquidation of the Participant's assets, to the extent liquidation of those assets would not itself cause the Participant severe financial hardship. An "Unforeseeable Financial Emergency" is a severe financial hardship to the Participant resulting from: (a) a sudden and unexpected illness or accident of the Participant or of a dependent of the Participant; -6- (b) loss of the Participant's property due to casualty; or (c) other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant and determined by the Committee to constitute an Unforeseeable Financial Emergency. Notwithstanding the foregoing, no portion of a Participant's Supplemental Pre- tax Salary Deferral Account that is "invested" in the Company Stock Fund may be withdrawn under this Section 5.7 under any circumstances. A withdrawal on account of an Unforeseeable Financial Emergency will be paid in cash as soon as possible after the date on which the Committee approves the withdrawal. If a Participant meets the conditions necessary to take a withdrawal from the Plan on account of an Unforeseeable Financial Emergency and at the same time meets the conditions necessary to take a withdrawal on account of unforeseeable Financial Emergency under the Heller Financial, Inc. Executive Deferred Compensation Plan or to take a hardship withdrawal from a 401(k) plan (including the 401(k) Plan), the Participant must take the maximum amount available on account of an Unforeseeable Financial Emergency under the Heller Financial, Inc. Executive Deferred Compensation Plan before his or her application for a distribution under this Section 5.7 will be considered. If the Participant then still meets the conditions necessary to take both a withdrawal from the Plan on account of an Unforeseeable Financial Emergency and a hardship withdrawal from a 401(k) plan, he or she must take the maximum amount available from this Plan on account of Unforeseeable Financial Emergency before his or her application for a hardship distribution from 401(k) plan (including the 401(k) Plan) will be considered. 5.8 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 Accounts do not contain sufficient cash to satisfy the applicable taxes, the Company will liquidate shares of Company Stock that may be held for a Participant who directed the investment of all or a portion of his or her Accounts into the Company Stock Fund, and use the funds obtained to satisfy the taxes. 5.9 Cashout of Account Balances. Notwithstanding a Participant's election regarding the timing and manner of payment of his or her Accounts, if a Participant terminates employment with his or her Employer and all of its affiliates, and if the entire value of his or her Accounts is then or later less than $100,000, the Participant's Employer or the Company may direct that he or she be paid a lump sum distribution of the entire value of his or her Accounts. Also notwithstanding a Participant's election regarding the timing and manner of payment of his or her Accounts, if a Participant terminates employment with his or her employer and all of its affiliates the Committee may in its sole discretion direct that the Participant be paid the entire value of his or her Accounts in one lump sum, regardless of their size. For purposes of this Section 5.9, the value of a Participant's Accounts will be determined as of the date of his or her termination of employment, or as of a date as soon thereafter as practicable. -7- ARTICLE VI Plan Administration ------------------- 6.1. Administration by the Committee. The Plan will be administered by a committee appointed by the Compensation Committee of the Board of Directors of the Company (the "Compensation Committee") or, if the Compensation Committee fails to appoint such a committee, by the Compensation Committee. If the Compensation Committee does appoint a committee to administer the Plan, that committee's members will serve at the pleasure of the Compensation Committee and may be removed, with or without cause, by the Compensation Committee. The committee that administers the Plan is known as the "Committee." As of the date of adoption of this Plan, the Compensation Committee had appointed the Company's Benefits Committee as the Committee. 6.2. Powers and Duties of Committee. The Committee will administer the Plan in accordance with its terms and has all powers necessary to carry out its provisions. The Committee has the power to interpret the Plan, and will determine all questions arising in the administration, interpretation, and application of the Plan, including but not limited to, questions of eligibility and the status and rights of employees, Participants and other persons. Any decision of the Committee regarding the Plan will be final and binding on all persons. Benefits under this Plan will be paid only if the Committee or its representative decides in its discretion that the applicant is entitled to them. All rules and determinations of the Committee will be uniformly and consistently applied to all persons in similar circumstances. To the extent not inconsistent with this Plan, all provisions set forth in (and promulgated under) the 401(k) Plan regarding the administrative powers and duties of the Committee, expenses of administration, and procedures for filing claims, will also apply to this Plan. The Committee may delegate some or all of its authority under the Plan to one or more officers or directors of the Company, and may delegate administrative responsibilities to one or more employees of the Company, or to one or more outside vendors. ARTICLE VII Amendment or Termination ------------------------ 7.1. Amendment or Termination. The Company intends the Plan to be permanent but reserves the right to modify, amend or terminate it at any time, by action of the Board of Directors of the Company or of a person or persons duly authorized by the Board of Directors. 7.2. Effect of Amendment or Termination. No amendment or termination of the Plan will reduce or eliminate any Account accrued through the date of amendment or termination, as adjusted pursuant to Section 4.1. If and when the Plan is terminated, the amounts in each Participant's Accounts will be distributed to him or her or his or her beneficiary, in the manner and at the time described in Article V. No allocations will be made to any Participant's Account for any period of time after the Plan is terminated, but the Committee will continue to credit gains and losses to Participants' Accounts pursuant to Article IV, until the Accounts have been fully distributed. -8- ARTICLE VIII Miscellaneous ------------- 8.1. Participant's Rights Unsecured. The Plan will at all times be unfunded. The right of a Participant or Beneficiary to receive benefits under this Plan will be an unsecured claim against the general assets of his or her Employer, and neither the Participant nor any Beneficiary has any rights in or against any specific assets of the Employers. 8.2. Benefit Statements. The Committee or its delegate will provide each Participant and Beneficiary with a statement of the amounts credited to him or her under the Plan at the same time and in the same manner as the Participant or Beneficiary is provided with a statement of his or her Accounts under the 401(k) Plan. 8.3. Employment Rights. The establishment and maintenance of the Plan must not be construed to give any Eligible Employee the right to be retained in any Employer's service, or to any benefits not specifically provided by the Plan. 8.4. Interests Not Transferable. Except as to withholding of any taxes under the laws of the United States or any state or locality and as to a Participant's ability to name a Beneficiary, no benefit payable at any time under the Plan will 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 Plan benefits, whether then or later payable, will be void. No person will in any manner be liable for or subject to the debts or liabilities of any person entitled to those benefits. If any person attempts to, or does, alienate, sell, transfer, assign, pledge or otherwise encumber his or her benefits under the Plan, or if by any reason of his or her bankruptcy or other event's happening at any time, his or her benefits would devolve upon any other person or would not be enjoyed by the person entitled to them under the Plan, then the Committee, in its discretion, may terminate the interest in those benefits of the person entitled to them under the Plan and hold or apply them for or to the benefit of the person entitled to them under the Plan or to his or her spouse, children or other dependents, or any of them, in whatever manner the Committee deems proper. 8.5. Controlling Law. To the extent it is not preempted by the Employee Retirement Income Security Act of 1974, as amended, the law of Illinois (other than its choice of law provisions) will control in all matters relating to the Plan. 8.6. Incapacity. If any person entitled to benefits under the Plan is deemed to be incapable of personally receiving and giving a valid receipt for payment of the benefits, then, unless and until a duly appointed guardian or other legal representative of the person makes a claim for the benefits, the Committee or its delegate may pay all or part of the amount due to any other person or institution then contributing toward or providing for the care and maintenance of the person. A payment made under the previous sentence will completely discharge any liability of the Committee or the Employers relating to make the payment under the Plan. 8.7. Successors. The Plan will be binding upon the successors to the Company and the Employers. -9- 8.8. Unclaimed Benefit. If the Committee or its designee is unable to distribute any part of a Participant's Accounts because it cannot, despite conducting a reasonable search, locate the Participant or his Beneficiary within two years after the date a Plan payment becomes due, the Accounts will be deemed an "unclaimed amount." Unclaimed amounts will be forfeited, and any forfeiture will reduce the obligations of the Employers under the Plan. After an unclaimed amount has been forfeited, the Participant or Beneficiary, as applicable, will have no further right to his or her Accounts. 8.9. Limitations on Liability. Notwithstanding any other provision of the Plan, neither the Committee, the Employers, nor any individual acting as an employee or agent of the Committee or an Employer, will be liable to any Participant, former Participant, Beneficiary or other person for any claim, loss, liability or expense incurred in connection with the Plan. 8.10. Claims Procedure. A claim for a Plan benefit shall be deemed filed when a written communication is made by a Participant or Beneficiary, or the authorized representative of either, which is reasonably calculated to bring the claim to the attention of the Committee. If a claim is wholly or partly denied, notice of the denial will be furnished to the claimant in writing within 90 days after the Committee receives the claim. The notice will set forth, in a manner calculated to be understood by the claimant: (a) the specific reason or reasons for the denial; (b) specific reference to pertinent Plan provisions on which the denial is based; (c) a description of any additional material or information necessary to perfect the claim and an explanation of why that material or information is necessary; and (d) an explanation of the Plan's claims review procedure. If no such notice is furnished to the claimant within 90 days after the Committee receives the claim, the claim will be deemed to have been wholly denied. Within 90 days after receiving the notice of denial, a claimant may appeal the denial to the Committee for a full and fair review. A request for review will be deemed filed as of the date the Committee receives it. The claimant or his or her authorized representative will have the right to review all pertinent documents, may submit issues and comments in writing and may do any other appropriate things the Committee allows. The Committee will make its decision on review no later than 60 days after it receives the request for review, unless special circumstances require an extension of time, in which case the Committee will render its decision no later than 120 days after it receives the request for review. The decision on review will be final and binding on the claimant. 8.11. Gender and Number. Words in the masculine gender include the feminine, words in the plural include the singular, and words in the singular include the plural, unless the context requires otherwise. Headings are included for reference only, and are not to be construed so as to alter the terms of this Plan. 8.12. Indemnification. The Company and each Employer indemnify and hold harmless each member of the Committee, or any employee of the Company or an Employer, or any individual acting as an employee or agent of either of them (to the extent not indemnified or saved harmless under any liability insurance or any other indemnification arrangement) from any and all claims, losses, liabilities, costs and expenses (including attorneys' fees) arising out of any actual or alleged act or failure to act made in good faith pursuant to the provisions of the Plan or the Trust, including expenses reasonably incurred in the defense of any claim relating thereto -10- with respect to administration of the Plan or the Trust, except that no indemnification or defense will be provided to any person as to any conduct that has been judicially determined, or agreed by the parties, to have constituted willful misconduct on the part of that person, or to have resulted in his or her receipt of personal profit or advantage to which he or she is not entitled. 8.13. Action by the Company. Except as otherwise specifically provided in this document, any action required of or permitted to be taken by the Company under the Plan must be taken by resolution of the Board of Directors of the Company, by action of the Committee or of a member of the Committee, or by a person or persons or committee authorized by resolution of the Board of Directors of the Company or the Committee. 8.14. Voting Company Stock. Any Participant that has directed or directs the deemed investment of any part of his or her Accounts into the Company Stock Fund will have the right to direct the voting of shares of Company Stock allocated to his or her Accounts, according to the procedures and deadlines established by the Committee or its delegate. Executed in multiple originals this 29th day of November, 2000. Heller Financial, Inc. /s/ Nina Eidell By:_________________________________ Title: Vice President and Chief Human Resources Officer -11- EX-5.1 3 0003.txt OPINION RE: LEGALITY OF THE SECURITIES EXHIBIT 5.1 Mark J. Ohringer General Counsel and Secretary 312.441.7128 DIRECT 312.441.7456 FAX mohringer@hellerfin.com November 29, 2000 Heller Financial, Inc. 500 West Monroe 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 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 and matching 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. Deferral Restoration Plan (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; and (v) the proceedings of the Benefits Committee of the Company with respect to the establishment of 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. Page 2 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 OHRINGER Mark J. Ohringer General Counsel EX-23.1 4 0004.txt CONSENT OF ARTHUR ANDERSEN LLP 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. /s/ Arthur Andersen LLP Chicago, Illinois November 22, 2000 -----END PRIVACY-ENHANCED MESSAGE-----