As filed with the Securities and Exchange Commission on June 21, 1996
Commission File No. 1-14040
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HOST MARRIOTT SERVICES CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 52-1938672
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
10400 Fernwood Road
Department 928.83
Bethesda, MD 20817-1109
(Address of Principal Executive Offices) (Zip Code)
HOST MARRIOTT SERVICES CORPORATION
EMPLOYEES' PROFIT SHARING, RETIREMENT AND SAVINGS PLAN AND TRUST
(Full title of the plan)
ANITA COOKE WELLS
Corporate Secretary
Host Marriott Services Corporation
10400 Fernwood Road
Department 928.83
Bethesda, MD 20817-1109
(301) 380-7000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
- ----------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------
Title of securities Amount Proposed Proposed Amount of
to be registered to be maximum maximum registration fee
registered offering aggregate
price offering
per price(1)
share(1)
- ----------------------------------------------------------------------------
Common Stock,
$1.00 par value per 50,000 $ 7.50 $ 375,000 $ 129.31
share. . . . .
- ----------------------------------------------------------------------------
(1) Pursuant to Rule 457(h), these prices are estimated solely for the purpose
of calculating the registration fee and are based upon the average of the high
and low sales prices of the Registrant's Common Stock on the New York Stock
Exchange on June 17, 1996.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein. There
are also registered hereunder such additional indeterminate number of shares as
may be issued as a result of the antidilution provisions of the Plan.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing information specified by Part I of this Form
S-8 Registration Statement (the "Registration Statement") have been or will be
sent or given to participants in the plan listed on the cover of the
Registration Statement (the "Plan") as specified in Rule 428(b)(1) promulgated
by the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"). Such documents are
not being filed with the Commission but constitute (along with the documents
incorporated by reference into the Registration Statement pursuant to Item 3 of
Part II hereof), a prospectus that meets the requirements of Section 10(a) of
the Securities Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission are incorporated
herein by reference:
(1) The Amended Annual Report on Form 10-K/A of Host Marriott Services
Corporation, a Delaware corporation (the "Company"), for the fiscal
year ended December 29, 1995.
(2) The Quarterly Report on Form 10-Q/A of Host Marriott Services
Corporation, a Delaware corporation (the "Company"), for the twelve
weeks ended March 22, 1996.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act"), as amended, prior to the filing of a post effective amendment that (1)
indicates that all securities offered pursuant to this Registration Statement
have been sold or (2) deregisters all Securities then remaining unsold shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides for the indemnification of officers and directors under certain
circumstances against expenses (including attorneys fees, judgments, fines and
amounts paid in settlement) actually and reasonably incurred in connection with
the defense or settlement of any threatened, pending or completed legal
proceedings in which he or she is involved by reason of the fact that he or she
is or was a director or officer of the Company if he or she acted in good faith
and in a manner that he or she reasonably believed to be in or not opposed to
the best interests of the Company, and, in respect to the criminal actions or
proceedings, if he or she had no reasonable cause to believe that his or her
conduct was unlawful. The Certificate and By-laws of the Company provide for
indemnification of its officers and directors to the full extent authorized by
law.
The Company maintains officers' and directors' liability insurance
which insures against liabilities that the officers and directors of the Company
may incur in such capacities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
2
<PAGE>
ITEM 8. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
4.1 The Plan.
23.1 Consent of Arthur Andersen LLP.
23.2 Opinion of the Company's Law Department.
24 The Power of Attorney by the Officers and Directors
who signed this Registration Statement is set forth
on page 5 herein.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
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 the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a)
3
<PAGE>
or Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
4
<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Bethesda, State of Maryland, on this 21st day of
June, 1996.
HOST MARRIOTT SERVICES CORPORATION
By /s/ Joe P. Martin
-------------------------------
Joe P. Martin
General Counsel
THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
the Plan's administrator has caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Bethesda, State of Maryland, on this 21st day of June, 1996.
HOST MARRIOTT SERVICES CORPORATION
EMPLOYEES' PROFIT SHARING, RETIREMENT
AND SAVINGS PLAN AND TRUST
By /s/ Stephen H. Shoemaker
----------------------------------
Plan Administrator
Vice President of Corporate Finance
Host Marriott Services Corporation
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below under the heading "Signatures" constitutes and appoints Anita
Cooke Wells and Joe P. Martin his or her true and lawful attorney-in-fact and
agent with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities to sign any or all
amendments to this Registration Statement, and to file the same with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, each acting alone, 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 for all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, each acting alone, or his or her substitute or 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 indicated
on this 21st day of June, 1996.
5
<PAGE>
SIGNATURE TITLE
*
- --------------------------------- Chairman of the Board of Directors
William J. Shaw
*
- --------------------------------- President, Chief Executive Officer
William W. McCarten (Principal Executive Officer)
Director
*
- --------------------------------- Senior Vice President and
Brian W. Bethers Chief Financial Officer
(Principal Financial Officer)
*
- --------------------------------- Vice President-Finance and
Brian J. Gallant Corporate Controller
(Principal Accounting Officer)
*
- --------------------------------- Director
Rosemary M. Collyer
*
- --------------------------------- Director
J.W. Marriott, Jr.
*
- --------------------------------- Director
Richard E. Marriott
*
-------------------------------- Director
R. Michael McCullough
*
- --------------------------------- Director
Gilbert T. Ray
*
-------------------------------- Director
Andrew J. Young
* By /s/ Joe P. Martin
-----------------------------
Joe P. Martin
Attorney-in-fact
6
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
4.1 The Plan.
23.1 Consent of Arthur Andersen LLP.
23.2 Opinion of the Company's Law Department .
24 The Power of Attorney executed by the officers and
directors who signed this Registration Statement is
set forth on page 5 herein.
7
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 reports dated
February 23, 1996 included in Host Marriott Services Corporation's Form 10-K/A
for the year ended December 29, 1995 and to all references to our Firm included
in this registration statement.
ARTHUR ANDERSEN LLP
Washington, D.C.
June 19, 1996
8
[LOGO] HOST MARRIOTT
SERVICES Host Marriott Services Corporation
10400 Fernwood Road
Bethesda, MD 20817-1109
301/380-3532
301/380-7626 Fax
Joe P. Martin
Senior Vice President and General Counsel
June 20, 1996
Securities and Exchange Commission
450 Fifth Street, NW
Washington, D.C. 20549
Re: Host Marriott Services Corporation Employees'
Profit Sharing, Retirement and Savings Plan and Trust
REGISTRATION ON FORM S-8
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-8
(the "Registration Statement") of Host Marriott Services Corporation, a Delaware
corporation (the "Company"), to be filed on or about June 21, 1996, with the
Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as
amended (the "Act"), in connection with a proposed offering by the Company to
certain of its employees of 50,000 shares of the Company's common stock (the
"Shares"), under the Host Marriott Services Corporation Employees' Profit
Sharing, Retirement and Savings Plan and Trust (the "Plan"), you have asked for
my opinion as to the validity of the shares.
In my capacity as General Counsel for the Company, I am
familiar with and have reviewed (1) the Company's Certificate of Incorporation
and its by-laws, in each case as amended as of the date hereof, (2) the
Registration Statement, including the exhibits thereto, (3) the materials
maintained by the Company as Part I of the Registration Statement, and such
other documents that I believe necessary and appropriate.
Subject to the foregoing and the other matters set forth
herein, it is my opinion that upon issuance the Shares will be duly and validly
authorized and, when distributed pursuant to the offering contemplated by the
Registration Statement, will be validly issued, fully paid and nonassessable.
I consent to your filing this opinion as an exhibit to the
Registration Statement.
By: /s/ Joe P. Martin
-------------------------------
Joe P. Martin
Title: Senior Vice President
and General Counsel
HOST MARRIOTT SERVICES CORPORATION EMPLOYEES' PROFIT SHARING,
RETIREMENT AND SAVINGS PLAN AND TRUST
As Amended and Restated
Effective December 30, 1995
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE I DEFINITIONS.................................................................................3
1.1 Account...................................................................................3
1.2 Actual Contribution Percentage............................................................3
1.3 Actual Deferral Percentage................................................................3
1.4 Additional After-tax Savings..............................................................3
1.5 Additions.................................................................................3
1.6 Administrative Expenses...................................................................3
1.7 Affiliated Company........................................................................3
1.8 After-tax Savings.........................................................................3
1.9 After-tax Savings Account.................................................................3
1.10 Allocable Portion.........................................................................3
1.11 Alternate Payee...........................................................................4
1.12 Annuity Starting Date.....................................................................4
1.13 Authorized Leave of Absence...............................................................4
1.14 Basic After-tax Savings...................................................................4
1.15 Beneficiary...............................................................................4
1.16 Board of Directors........................................................................4
1.17 Code......................................................................................4
1.18 Combined Basic Savings....................................................................4
1.19 Committee.................................................................................4
1.20 Company...................................................................................4
1.21 Company Contribution Account..............................................................4
1.22 Compensation..............................................................................4
1.23 Consolidated Net Profit...................................................................5
1.24 Consolidated Net Worth....................................................................5
1.25 Distributee...............................................................................5
1.26 Effective Date............................................................................5
1.27 Eligible Rollover Distribution............................................................5
1.28 Eligible Retirement Plan..................................................................6
1.29 Employee..................................................................................6
1.30 Employment Date...........................................................................6
1.31 Entry Date................................................................................6
1.32 ERISA.....................................................................................7
1.33 Fiduciary.................................................................................7
1.34 Fiscal Year...............................................................................7
1.35 Flexible Compensation.....................................................................7
1.36 FLSA......................................................................................7
1.37 Fund......................................................................................7
1.38 Hardship..................................................................................7
1.39 Highly Compensated Employee...............................................................7
1.40 Hire Date.................................................................................8
1.41 Host Marriott Services or Host Marriott Services Corporation..............................8
1.42 Hour of Service...........................................................................8
1.43 Investment Expenses......................................................................11
1.44 Maximum Permissible Amounts..............................................................11
1.45 Month....................................................................................11
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1.46 Month of Credit..........................................................................11
1.47 Named Fiduciary..........................................................................11
1.48 One Year Break in Service................................................................11
1.49 Participant..............................................................................11
1.50 Participating Company....................................................................12
1.51 Permanent Disability.....................................................................12
1.52 Plan.....................................................................................12
1.53 Plan Administrator.......................................................................12
1.54 Plan Year................................................................................12
1.55 Predecessor Company......................................................................13
1.56 Prior Plan...............................................................................13
1.57 Pro Rata Share of Administrative Expenses................................................13
1.58 Qualified Domestic Relations Order or QDRO...............................................13
1.59 Qualified Joint and Survivor Annuity or QJSA.............................................13
1.60 Qualifying Employer Real Property........................................................13
1.61 Qualifying Employer Securities...........................................................13
1.62 Required Beginning Date..................................................................13
1.63 Section 401(k) Contribution..............................................................13
1.64 Section 401(k) Contribution Account......................................................13
1.65 Separation Date..........................................................................13
1.66 Service..................................................................................14
1.67 Spousal Consent..........................................................................14
1.68 Spouse or Surviving Spouse...............................................................14
1.69 Subaccount...............................................................................14
1.70 Subsidiary or Affiliated Company.........................................................14
1.71 Trustees.................................................................................15
1.72 Trust Fund...............................................................................15
1.73 Valuation Date...........................................................................15
1.74 Year of Service..........................................................................15
ARTICLE II ELIGIBILITY AND PARTICIPATION..............................................................16
2.1 Eligibility and Participation..............................................................16
(a) Age and Service....................................................................16
(b) Participation Voluntary............................................................16
(c) Commencement of Participation......................................................16
(d) Automatic Participation............................................................16
(e) Continuation of Former Participant Status..........................................16
2.2 Reemployment of Employee...................................................................16
(a) Eligibility Upon Reemployment......................................................16
(b) Years of Service to be Counted Upon Resumption of Employment.......................16
2.3 Termination of Plan Participation..........................................................17
2.4 Readmission of Former Participant..........................................................17
2.5 Participation During Authorized Leave of Absence or During Employment by
Subsidiary Which Has Not Joined Plan.......................................................17
2.6 Treatment of Participants Who Cease Being Employees Pursuant to Section 1.29
..........................................................................................17
2.7 Credit for Service with a Predecessor Company.............................................17
ii
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ARTICLE III COMPANY CONTRIBUTION.......................................................................18
3.1 Amount of Contribution.....................................................................18
3.2 Allocable Portion..........................................................................19
3.3 Net Profits, Net Worth and Earnings and Profits............................................19
(a) Determination of Consolidated Net Profits and Consolidated Net Worth...............19
(b) Insufficient Earnings and Profits..................................................19
3.4 Effect of Change in Consolidated Net Profit................................................19
3.5 Time of Payment of Contributions...........................................................19
3.6 Form of Payment of Contributions...........................................................20
3.7 Return of Contributions to Company. .......................................................20
ARTICLE IV PARTICIPANTS' AFTER-TAX SAVINGS............................................................21
4.1 Participant After-tax Savings............................................................21
4.2 Amount of After-tax Savings..............................................................21
4.3 Payroll Deduction........................................................................21
4.4 Change in Rate of After-tax Savings......................................................21
4.5 Payment to Trustees......................................................................21
4.6 Advancement by Company...................................................................21
4.7 Investment of Participants' After-tax Savings............................................22
4.8 In-Service Withdrawal of After-tax Savings...............................................22
ARTICLE V SECTION 401(k) CONTRIBUTIONS...............................................................23
5.1 Designation of Flexible Compensation.....................................................23
5.2 Section 401(k) Contributions.............................................................23
5.3 Election Rules...........................................................................23
(a) Method of Election.................................................................23
(b) Effective Date of Election.........................................................23
(c) Revocation or Amendment............................................................23
5.4 Compensation Reduction...................................................................24
5.5 Limitations on Section 401(k) Contributions..............................................24
5.6 Actual Deferral Percentage Tests.........................................................24
5.7 Recharacterization of Certain Section 401(k) Contributions...............................24
5.8 Coordination of After-tax Savings and Section 401(k) Contributions.......................24
5.9 Payment to Trustees......................................................................25
5.10 Advancement by Company...................................................................25
5.11 Distribution of Section 401(k) Contributions.............................................25
(a) Restrictions on Distributions......................................................25
(b) In-Service Withdrawal of Section 401(k) Contributions..............................25
5.12 Effect of Termination of Plan or Discontinuance of
Section 401(k) Contributions.............................................................26
ARTICLE VI ALLOCATION OF CONTRIBUTIONS
AND NET INCOME AMONG PARTICIPANTS..........................................................27
6.1 Maintenance of Separate Accounts.........................................................27
6.2 Allocation to After-tax Savings Accounts.................................................27
6.3 Allocation to Section 401(k) Contribution Account........................................27
6.4 Allocation of Company Contribution.......................................................27
6.5 (a) Limitation on After-tax Savings and Company Contributions...........................28
(b) Multiple Use of the Alternative Limitation..........................................28
iii
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6.6 Correcting Excess Aggregate Contributions................................................29
6.7 Special Provision for Allocating Company Contributions...................................29
6.8 Allocation of Net Income.................................................................29
6.9 Allocation of Forfeitures................................................................31
6.10 Allocation of Unclaimed Benefits.........................................................31
(a) Method of Allocation...............................................................31
(b) Reduction in Forfeitures...........................................................31
6.11 Allocation Limitations...................................................................31
(a) Maximum Additions..................................................................31
(b) Correction of Excess...............................................................31
(c) Further Limitations on Additions...................................................31
6.12 Transfers to Other Trusts................................................................32
(a) Time and Manner....................................................................32
(b) Beginning Account Balances After Transfer..........................................32
6.13 Transfers From Other Qualified Plans.....................................................32
(a) Manner of Transfer.................................................................32
(b) Governing Provisions...............................................................33
ARTICLE VII VESTING....................................................................................34
7.1 Vesting of After-tax Savings Account.....................................................34
7.2 Vesting of Section 401(k) Contribution Account...........................................34
7.3 Vesting of Company Contribution Account..................................................34
(a) Vesting Schedule...................................................................34
(b) Service to be Credited Upon Resumption of Employment...............................34
(c) Definition of "Service"............................................................34
(d) Automatic 100% Vesting.............................................................35
7.4 Vesting of Amounts Transferred Pursuant to Section 6.12...................................35
ARTICLE VIII TERMINATION AND DISTRIBUTION UPON
RETIREMENT, DEATH OR DISABILITY............................................................36
8.1 Retirement................................................................................36
8.2 Death....................................................................................36
8.3 Disability...............................................................................36
8.4 Valuation and Adjustment of Account Balances.............................................36
8.5 Available Payment Options................................................................37
8.6 Qualified Joint and Survivor Annuity.....................................................37
(a) Cash Payments in Lieu of a Qualified Joint and Survivor Annuity....................37
(b) Waiver of Qualified Joint and Survivor Annuity.....................................37
(c) Written Explanation................................................................38
(d) Result of Effective Waiver.........................................................38
(e) Spousal Consent....................................................................38
8.7 Distributions Upon Married Participant's Death...........................................39
8.8 General Distribution Requirements........................................................39
(a) Distributions to Participants......................................................39
(b) Distributions to Beneficiary.......................................................39
(c) Commencement of Distribution.......................................................40
8.10 Form of Payment..........................................................................40
8.11 Mandatory Cash-Out of Small Accounts.....................................................40
8.12 Account Balance..........................................................................40
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8.13 Special Rule for Rollovers Out of the Plan...............................................41
ARTICLE IX TERMINATION AND DISTRIBUTION UPON
TERMINATION OF EMPLOYMENT OTHER THAN
FOR RETIREMENT, DEATH OR DISABILITY........................................................42
9.1 Terminated Participant...................................................................42
9.2 Distribution of After-tax Savings and Section 401(k) Contributions.......................42
9.3 Distribution of Vested Company Contribution Account......................................42
(a) Governing Rule.....................................................................42
(b) Special Adjustments................................................................42
9.4 Mandatory Cash-Out of Small Accounts.....................................................43
9.5 Unvested Company Contributions...........................................................43
(a) Forfeiture.........................................................................43
(b) Restoration of Forfeiture..........................................................43
(1) General Rule..............................................................43
(2) Special Rule for Amounts Transferred Pursuant to Section 6.12.............44
(c) Distribution Prior to Reemployment.................................................44
9.6 Account Balance..........................................................................44
9.7 Special Rule for Rollovers Out of the Plan...............................................44
ARTICLE X DISTRIBUTION DURING CONTINUED EMPLOYMENT...................................................45
10.1 Withdrawal of After-tax Savings..........................................................45
(a) Withdrawal of Additional After-tax Savings.........................................45
(b) Withdrawal of Basic After-tax Savings..............................................45
(c) Valuation of After-tax Savings Account..............................................45
(d) Form of Payment....................................................................45
(e) Taxation of Withdrawal..............................................................45
10.2 Withdrawal of Section 401(k) Contribution. ..............................................45
10.3 Withdrawal of Vested Company Contribution Account........................................45
10.4 Readmission of Former Participant to Plan................................................45
10.5 Distributions Upon Attainment of Age 59-1/2..............................................46
10.6 Account Balance..........................................................................46
10.7 Hardship Withdrawals.....................................................................46
(a) Terms of Hardship Withdrawals......................................................46
(b) Restrictions.......................................................................46
(c) Spousal Consent....................................................................46
(d) Committee Guidelines and Determination.............................................47
10.8 Special Rule for Rollovers Out of the Plan...............................................47
ARTICLE XI LOANS TO PARTICIPANTS......................................................................48
11.1 General Provisions.......................................................................48
11.2 Maximum Loan Amount......................................................................48
11.3 Repayment Period.........................................................................48
11.4 Terms and Conditions.....................................................................49
11.5 Nondiscrimination........................................................................49
11.6 Decision of the Plan Administrator.......................................................50
11.7 Offset of Account Balance................................................................50
11.8 Default..................................................................................50
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ARTICLE XII BENEFICIARIES..............................................................................51
12.1 Designation of Beneficiary...............................................................51
12.2 Manner of Designation....................................................................51
12.3 Absence of Valid Designation of Beneficiary..............................................51
12.4 Beneficiary Bound by Plan Provisions.....................................................51
ARTICLE XIII QUALIFIED DOMESTIC RELATIONS ORDERS........................................................52
13.1 Governing Provisions.....................................................................52
ARTICLE XIV TRUST FUND.................................................................................53
14.1 Receipt of Contributions, After-tax Savings and Transfers.................................53
14.2 Investment of Trust Fund..................................................................53
(a) Investment Vehicles................................................................53
(b) Investment Policy..................................................................53
14.3 Investment Authority.....................................................................54
(a) General Authority..................................................................54
(b) Undertaking to Stock Exchanges.....................................................54
14.4 Individually Directed Accounts...........................................................54
14.5 Payments From Trust Fund.................................................................55
ARTICLE XV PARTICIPANT'S DIRECTED INVESTMENTS.........................................................56
15.1 Election by Participants.................................................................56
15.2 Election Rules...........................................................................56
(a) Election to be in Writing..........................................................56
(b) Effective Date of Election.........................................................56
(c) Revocation of Election.............................................................56
(d) Change in Election.................................................................56
(e) Default Election...................................................................56
15.3 Transfer Date............................................................................57
15.4 Confirmation.............................................................................57
15.5 Subdivision of Accounts..................................................................57
(a) Establishment of Subaccounts.......................................................57
(b) Allocation of After-tax Savings, Section 401(k) Contributions, Company
Contributions and Forfeitures Among Subaccounts....................................57
15.6 Investment Funds.........................................................................57
(a) Committee's Responsibility for Funds...............................................57
(b) Investment Policy of Funds.........................................................57
(c) Funds..............................................................................58
(1) Stable Value Fund.........................................................58
(2) Bond Fund.................................................................58
(3) Balanced Fund.............................................................58
(4) Stock Fund................................................................58
(5) Host Marriott Services Stock Fund.........................................58
(6) International Stock Fund..................................................58
15.7 Participant-Insider Provisions...........................................................58
15.8 Allocation of Income of Funds.............................................................58
15.9 Investment Authority of Former Employees..................................................58
15.10 Investment for the Benefit of Incompetents................................................58
15.11 Rules of Committee........................................................................59
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ARTICLE XVI PLAN FIDUCIARIES...........................................................................60
16.1 Plan Fiduciaries...........................................................................60
(a) Named Fiduciary....................................................................60
(b) Profit Sharing Committee...........................................................60
(c) Trustees...........................................................................60
16.2 Fiduciary Duty............................................................................60
16.3 Agents and Advisors.......................................................................61
(a) Employment of Agents...............................................................61
(b) Delegation to Agents and Plan Administrator........................................61
(c) Appointment of Investment Manager..................................................61
16.4 Administrative Action.....................................................................61
(a) Action by Majority.................................................................61
(b) Right to Vote......................................................................62
(c) Authority to Execute Documents.....................................................62
16.5 Liabilities and Indemnifications.........................................................63
(a) Liability of Fiduciaries...........................................................63
(b) Indemnity by Company...............................................................63
16.6 Plan Expenses and Taxes..................................................................63
(a) Plan Expenses......................................................................63
(b) Taxes..............................................................................63
16.7 Records and Financial Reporting..........................................................63
(a) Book of Account....................................................................63
(b) Financial Reporting Under ERISA....................................................63
16.8 Compliance with ERISA and Code...........................................................64
16.9 Prohibited Transactions..................................................................64
16.10 Foreign Assets...........................................................................64
16.11 Exclusive Benefit of Trust Fund..........................................................64
16.12 Board of Directors Resolution............................................................65
ARTICLE XVII PLAN ADMINISTRATION.......................................................................66
17.1 Administration of the Plan...............................................................66
(a) Authority to Administer............................................................66
(b) Delegation of Authority to Plan Administrator......................................66
(c) Finality of Decision...............................................................66
17.2 Claims....................................................................................66
(a) Claims for Benefits................................................................66
(b) Notice of Claim Denied.............................................................66
(c) Request for Review of Denial.......................................................67
(d) Decision on Review of Denial.........................................................67
ARTICLE XVIII PARTICIPATING COMPANY WITHDRAWAL FROM PLAN;
TERMINATION OR MERGER OF THE PLAN..........................................................68
18.1 Voluntary Withdrawal from Plan............................................................68
(a) Withdrawal By Participating Company................................................68
(b) Segregation of Trust Assets Upon Withdrawal........................................68
(c) Exclusive Benefit of Participants..................................................68
(d) Applicability of Withdrawal Provisions.............................................68
18.2 Amendment of Plan........................................................................68
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18.3 Voluntary Termination of Plan............................................................69
(a) Right to Terminate Plan............................................................69
(b) Merger or Consolidation of Plan and Trust..........................................69
(c) Termination of Plan and Trust Fund.................................................69
18.4 Discontinuance of Contributions..........................................................70
18.5 Rights to Benefits Upon Termination of Plan or Complete Discontinuance of
Contributions..........................................................................70
ARTICLE XIX ELECTION TO PARTICIPATE BY SUBSIDIARIES............................................71
19.1 Consent Required for Subsidiaries to Join Plan...........................................71
ARTICLE XX MISCELLANEOUS PROVISIONS...................................................................72
20.1 Status of Employment.....................................................................72
20.2 Liability of Company.....................................................................72
20.3 Information..............................................................................72
(a) Supplied by Named Fiduciary, the Committee or Trustees.............................72
(b) Supplied by Company................................................................72
20.4 Provisions of Plan to Control............................................................72
20.5 Payment for Benefit of Incompetent.......................................................72
20.6 Account to be Charged Upon Payment.......................................................73
20.7 Tax Qualification of Plan.................................................................73
20.8 Deductibility of Company Contributions...................................................73
20.9 Valuation of Trust Fund..................................................................73
20.10 Restriction on Alienation or Assignment..................................................73
20.11 Unclaimed Benefits.......................................................................73
20.12 Recovery of Plan Benefits Payment Made by Mistake........................................74
20.13 Bonding..................................................................................74
20.14 Titles and Captions......................................................................74
20.15 Execution of Counterparts................................................................74
20.16 Governing Law............................................................................74
20.17 Separability.............................................................................74
20.18 Supplements and Appendices...............................................................74
ARTICLE XI TOP HEAVY PROVISIONS.......................................................................75
21.1 Determination of Top Heavy Status........................................................75
21.2 Definitions..............................................................................75
21.3 Requirements if Plan a Top Heavy Plan....................................................76
(a) Modification to Article 3.1........................................................76
(b) Modification to Article 7.3........................................................76
21.4 Change in Top Heavy Status...............................................................76
</TABLE>
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HOST MARRIOTT SERVICES CORPORATION EMPLOYEES' PROFIT SHARING,
RETIREMENT AND SAVINGS PLAN AND TRUST
PREAMBLE
WHEREAS, Marriott Corporation established the Marriott Corporation
Employees' Profit Sharing, Retirement and Savings Plan and Trust (the "Marriott
Corporation Plan") to enable the employees of Marriott Corporation and its
subsidiaries to share in the profits and the cash flow from Marriott Corporation
business operations, to encourage savings by the employees and to help them
prepare for retirement, old age and death; and
WHEREAS, Marriott International, Inc. was a wholly owned subsidiary of
Marriott Corporation until the date of distribution of a special dividend (the
"Marriott International Distribution") of all of the stock of Marriott
International, Inc. to the shareholders of Marriott Corporation following
approval of the Marriott International Distribution by the shareholders at the
1993 annual meeting of shareholders of Marriott Corporation; and
WHEREAS, upon the consummation of the Marriott International
Distribution, employees of Marriott Corporation became employees of Marriott
International, Inc. or Host Marriott Corporation (as Marriott Corporation was
renamed as of the Marriott International Distribution); and
WHEREAS, the Marriott Corporation Board of Directors at its meeting on
July 23, 1993 approved (a) the adoption of a new Host Marriott Corporation
Employees' Profit Sharing, Retirement and Savings Plan and Trust (the "Host
Marriott Plan") by Host Marriott Corporation, and (b) the assumption of
sponsorship of the Marriott Corporation Plan by Marriott International, Inc.
(hereinafter the "Marriott International Plan"); and
WHEREAS, Host Marriott Corporation established the Host Marriott Plan
to be effective as of the date of the Marriott International Distribution to
provide benefits to its employees and those of its subsidiaries after the
Marriott International Distribution; and
WHEREAS, Marriott International, Inc. transferred to the Host Marriott
Plan the assets and liabilities representing the account balances (both vested
and unvested) of any participant in the Marriott International Plan who was
employed by Host Marriott Corporation on the date of the Marriott International
Distribution and the Host Marriott Plan accepted such transfer of assets and
liabilities; and
WHEREAS, Host Marriott Services Corporation is a wholly-owned
subsidiary of Host Marriott Corporation until the date of distribution of a
special dividend (the "Host Marriott Services Distribution") of all of the stock
of Host Marriott Services Corporation to the shareholders of Host Marriott
Corporation; and
WHEREAS, upon consummation of the Host Marriott Services Distribution,
employees of Host Marriott Corporation will become employees of Host
Marriott Corporation or Host Marriott Services Corporation; and
WHEREAS, the Host Marriott Corporation Board of Directors at its
meeting on December 6, 1995 approved (a) adoption of a new Host Marriott
Corporation (HMC) Retirement Plan and Trust by Host Marriott Corporation, (b)
the assumption of the sponsorship of the Host Marriott Plan by Host Marriott
Services Corporation, and (c) the amendment and restatement of the Host Marriott
Plan; and
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WHEREAS, Host Marriott Services Corporation assumed sponsorship of the
Host Marriott Plan to continue to provide benefits under the Plan on behalf of
its employees and those of its subsidiaries after the Host Marriott Services
Distribution; and
WHEREAS, Host Marriott Corporation has determined it appropriate to
establish a new plan (the "Host Marriott Corporation Retirement Plan") to
provide benefits on behalf of its employees and those of its subsidiaries on and
after the Host Marriott Services Distribution Date; and
WHEREAS, Host Marriott Services Corporation intends to transfer to the
Host Marriott Corporation Retirement Plan the assets and liabilities
representing the account balances (both vested and unvested) of any participant
in the Host Marriott Plan who was employed by Host Marriott Corporation on the
date of the Host Marriott Services Distribution; and
WHEREAS, the Host Marriott Corporation Retirement Plan intends to
accept such transfer;
NOW THEREFORE, as of December 30, 1995, the Board of Directors of Host
Marriott Services Corporation hereby adopts the Host Marriott Plan and renames
the Host Marriott Plan the Host Marriott Services Corporation Employees' Profit
Sharing, Retirement and Savings Plan and Trust, as amended and restated
effective December 30, 1995, for the benefit of Host Marriott Services
Corporation employees from and after the Host Marriott Services Distribution.
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ARTICLE I
DEFINITIONS
When used in this instrument, the following words and phrases have the
indicated meanings except where the contrary is expressly stated:
1.1 "ACCOUNT" shall have the meaning set forth in Section 6.1.
1.2 "ACTUAL CONTRIBUTION PERCENTAGE" means, for a given Plan Year, the
average of the ratios, calculated separately for each Participant in a group, of
(a) the sum of After-tax Savings credited to the Participant's After-tax Savings
Account and Company contributions and forfeitures allocable to the Participant's
Company Contribution Account for the Plan Year to (b) the Participant's
Compensation for such Plan Year.
1.3 "ACTUAL DEFERRAL PERCENTAGE" means, for a given Plan Year, the
average of the ratios, calculated separately for each Participant in a group, of
(a) the Section 401(k) Contributions made on behalf of such Participant by the
Company for the Plan Year to (b) the Participant's Compensation for such Plan
Year.
1.4 "ADDITIONAL AFTER-TAX SAVINGS" means After-tax Savings in excess of
five percent (5%) of a Participant's Compensation in a Fiscal Year with respect
to After-tax Savings made prior to December 28, 1979, and six percent (6%) of a
Participant's Compensation in a Fiscal Year with respect to After-tax Savings
made subsequent to December 28, 1979.
1.5 "ADDITIONS" means, with respect to each Participant for any Fiscal
Year, the total of (a) the Company contributions and forfeitures allocated for
the Fiscal Year to the Participant's Company Contribution Account, plus (b)
Section 401(k) Contributions allocated for the Fiscal Year to the Participant's
Section 401(k) Contributions Account, plus (c) the After-tax Savings allocated
for the Fiscal Year to the Participant's After-tax Savings Account.
1.6 "ADMINISTRATIVE EXPENSES" means the administrative expenses
described in Section 16.6(a).
1.7 "Affiliated Company" means a "Subsidiary", as hereinafter
defined.
1.8 "AFTER-TAX SAVINGS" means the after-tax savings deposited into the
Trust Fund by a Participant in accordance with Article IV.
1.9 "AFTER-TAX SAVINGS ACCOUNT" shall have the meaning set forth in
Section 6.1(a).
1.10 "ALLOCABLE PORTION" means, for purposes of Section 11.2, the
lesser of: (a) fifty percent (50%) of the Participant's vested Account balance;
(b) the combined total of the Participant's After-tax Savings Account and
Section 401(k) Contribution Account; or (c) $50,000, reduced by the highest
outstanding balance of any previous loans from the Plan and any other plans of
the Company or a Subsidiary during the one-year period ending immediately before
the date on which the current loan is made.
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<PAGE>
1.11 "ALTERNATE PAYEE" means any Spouse, former Spouse, child or other
dependent of a Participant who is entitled under a Qualified Domestic Relations
Order to receive all, or part of, the benefits payable to that Participant under
the Plan.
1.12 "ANNUITY STARTING DATE" means the first day of the first period
for which an amount is received as an annuity by reason of retirement or
disability.
1.13 "AUTHORIZED LEAVE OF ABSENCE" means any absence authorized by the
Company under the Company's standard personnel practices provided that the
Employee or Participant returns within the period of authorized absence. An
absence due to service in the Armed Forces of the United States shall be
considered an Authorized Leave of Absence provided that the absence is caused by
war or other emergency, or provided that the Employee or Participant is required
to serve under the laws of conscription in time of peace, and further provided
that the Employee or Participant returns to employment with the Company within
the period provided by law. Except for service in the Armed Forces of the United
States in accordance with the preceding sentence, an Authorized Leave of Absence
may not extend beyond two (2) years.
1.14 "BASIC AFTER-TAX SAVINGS" means After-tax Savings up to six
percent (6%) of a Participant's Compensation in a Fiscal Year.
1.15 "BENEFICIARY" means the person or persons designated as a
beneficiary pursuant to Article XII.
1.16 "BOARD OF DIRECTORS" means Host Marriott Services Corporation's
Board of Directors or the Executive Committee of such Board of Directors.
1.17 "CODE" means the Internal Revenue Code of 1986, as amended, or any
successor statute, including the regulations issued thereunder.
1.18 "COMBINED BASIC SAVINGS" means the sum of a Participant's
After-tax Savings and Section 401(k) Contributions for the Fiscal Year, provided
that such sum shall include only an amount up to six percent (6%) of
Compensation for the Fiscal Year.
1.19 "COMMITTEE" means the Profit Sharing Committee appointed by the
Board of Directors pursuant to Section 16.1(b).
1.20 "COMPANY" means Host Marriott Services Corporation and any
Subsidiary that elects to join the Plan with the consent of the Board of
Directors.
1.21 "COMPANY CONTRIBUTION ACCOUNT" shall have the meaning set forth in
Section 6.1(c).
1.22 "COMPENSATION" means:
(a) Except as hereinafter specified, (1) earned income, wages,
salary, overtime, cash bonus, commissions, annual leave, sick leave and holiday
pay, paid by the Company to an Employee, and (2) gratuities reported by the
Employee to the Company and the Internal Revenue Service, all without regard for
any election under Article V or any elections made by the Participant under any
plan maintained by the Company pursuant to Section 125 of the Code, but
excluding any and all other forms of compensation. Notwithstanding the
foregoing, Compensation taken into account for each Employee
4
<PAGE>
for a Plan Year shall not exceed One Hundred Fifty Thousand Dollars ($150,000)
or such other amount as the United States Secretary of Treasury may designate
under Section 401(a)(17) of the Code; provided, however, in the application of
this limit to any Employee, the rules of Section 414(q)(6) of the Code shall
apply, except that, for purposes of such rules, the term "family" shall include
only the Spouse of such Employee and any lineal descendant of such Employee who
has not attained age nineteen (19) before the end the Plan Year.
(b) For purposes of the limitation on contributions and
benefits under Section 415 of the Code as set forth in Section 6.11, a
Participant's wages, salaries, and fees for professional services, and other
amounts received for personal services actually rendered in the course of
employment with the Company to the extent that the amounts are includable in
gross income (including, but not limited to, commissions, gratuities reported by
the Employee to the Company and the Internal Revenue Service, bonuses, fringe
benefits, reimbursements or other expenses allowable under a nonaccountable plan
(as described in Section 1.62-2(c) of the Treasury Regulations) annual leave,
sick leave and holiday pay), and excluding the following:
(1) Company contributions to a plan of deferred
compensation which are not included in the Employee's gross income for the
taxable year in which contributed or Company contributions under a simplified
employee pension plan to the extent such contributions are deductible by
the Employee, or any distributions from a plan of deferred compensation;
(2) Amounts realized from the exercise of a
nonqualified stock option, or when restricted stock (or property) held by the
Employee either becomes freely transferable or is no longer subject to a
substantial risk of forfeiture;
(3) Amounts realized from the sale, exchange or
other disposition of stock acquired under a qualified stock option; and
(4) Other amounts which received special tax
benefits.
1.23 "CONSOLIDATED NET PROFIT" shall have the meaning set forth in
Section 3.3(a).
1.24 "CONSOLIDATED NET WORTH" shall have the meaning set forth in
Section 3.3(a).
1.25 "DISTRIBUTEE" means a Participant, Former Participant, Retired
Participant and Disabled Participant. In addition, the Surviving Spouse of the
Deceased Participant and the Alternate Payee are Distributee.
1.26 "EFFECTIVE DATE" means the date on which Marriott Corporation
distributed a special dividend to its shareholders, on a share for share basis,
of all of the stock of Marriott International, Inc.
1.27 "ELIGIBLE ROLLOVER DISTRIBUTION" means any distribution of all or
a portion of the Distributee's Account balance, except that an Eligible Rollover
Distribution does not include (a) any distribution that is one of a series of
substantially equal periodic payments (not less frequently than annually) made
for the life (or life expectancy) of the Distributee or the joint lives (or
joint life expectancies) of the Distributee and the Distributee's designated
Beneficiary, or for a specified period of ten (10) years or more, (b) any
distribution to the extent such distribution is required under Section 401(a)(9)
of the Code, and (c) the portion of any distribution that is not includable in
gross income
5
<PAGE>
(determined without regard to the exclusion for net unrealized appreciation with
respect to Company securities).
1.28 "ELIGIBLE RETIREMENT PLAN" means an individual retirement account
(described in Section 408(a) of the Code), an individual retirement annuity
(described in Section 408(b) of the Code), an annuity plan (described in Section
403(a) of the Code), or a qualified trust (described in Section 401(a) of the
Code), that accepts the Distributee's Eligible Rollover Distribution. However,
in the case of an Eligible Rollover Distribution to the Spouse, an "Eligible
Retirement Plan" means an individual retirement account or individual retirement
annuity only.
1.29 "EMPLOYEE" means any person employed by a Participating Company
other than:(a) a person who is covered by a collective bargaining agreement, if
there is evidence to show that retirement benefits were the subject of good
faith bargaining between a Participating Company and the employee
representatives with whom such agreement was entered; (b) a nonresident alien
who receives no earned income (within the meaning of Section 911(d)(2) of the
Code) from a Participating Company which constitutes income from sources within
the United States (within the meaning of Section 861(a)(3) of the Code);(c) a
participant in a profit sharing plan, pension plan or other retirement plan
(other than this Plan) maintained by Host Marriott Services Corporation or a
Subsidiary, whether or not the plan or the trust of such plan is intended to
qualify under Section 401 of the Code; and (d) a leased employee (within the
meaning of Section 414(n) of the Code) if such leased employee is eligible to
participate in another pension, profit sharing or other tax-qualified retirement
plan and if leased employees do not constitute more than 20% of the aggregate
workforce of all Participating Companies.
Employees are classified as follows:
CLASS A consists of all Employees not included in Class B
whose base compensation is stated in terms of hourly rates of pay including
those who receive gratuities collected and distributed by the employer.
CLASS B consists of all management and professional Employees
whose base compensation at the time the determination is to be made is stated in
terms of a weekly or annual salary, or whose base compensation is stated in
terms of hourly rates but who receive management benefits, regardless of whether
such Employees are exempt from the overtime pay requirements of the FLSA.
Unless specifically referring to a particular class, any and all
provisions of this Plan shall apply to all Employees regardless of
classification.
1.30 "EMPLOYMENT DATE" means the first day (other than the initial Hire
Date) on which the Employee performs an Hour of Service.
1.31 "ENTRY DATE" means the first day of the four week accounting
period of the Company immediately following receipt by the Plan Administrator of
an application for admission to the Plan in writing, or in such other form
authorized by the Plan Administrator. The Board of Directors may, with respect
to persons who become Employees by virtue of having been employed by any
business entity the stock or substantially all of the assets of which are
acquired by Host Marriott Services Corporation or any Subsidiary or the
management of which is assumed by the Company, establish by written resolution
as a special Entry Date, solely for such Employees, the date of such acquisition
or assumption of management.
6
<PAGE>
1.32 "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
1.33 "FIDUCIARY" means any person who (a) exercises any discretionary
authority or discretionary control respecting management of the Plan or
exercises any authority or control respecting management or disposition of the
Plan's assets; (b) renders investment advice for a fee or other compensation,
direct or indirect, with respect to any monies or other property of the Plan, or
has any authority or responsibility to do so; or (c) has any discretionary
authority or discretionary responsibility in the administration of the Plan. The
term "Fiduciary" includes the Named Fiduciary, the Trustees and any person to
whom fiduciary responsibilities have been delegated pursuant to Section 16.3.
1.34 "FISCAL YEAR" means each year beginning on the first day of each
fiscal year of Host Marriott Services Corporation and ending on the last day of
each fiscal year of Host Marriott Services Corporation. The fiscal year is
currently an annual period which varies from 52 to 53 weeks and always ends on
the Friday closest to December 31. The period beginning on the Effective Date
and ending on December 31, 1993 shall be considered a Fiscal Year. The Fiscal
Year shall be the "limitation year" of the Plan for purposes of the limitation
on contributions and benefits under Section 415 of the Code, or any successor
provision thereto.
Notwithstanding the foregoing, for purposes of the nondiscrimination
tests of Sections 401(a), 401(k) and 401(m) of the Code, and the limitation on
contributions and benefits under Section 415 of the Code, the period beginning
on January 2, 1993 and ending on December 31, 1993 shall be considered a Fiscal
Year.
1.35 "FLEXIBLE COMPENSATION" shall have the meaning set forth in
Section 5.l.
1.36 "FLSA" means the Fair Labor Standards Act, as amended from time to
time.
1.37 "FUND" means any of the separate funds in which Participants'
Accounts may be placed and which are allocated and invested in accordance with
Article XV.
1.38 "HARDSHIP" means the existence of an immediate and heavy financial
need of the Participant. A need exists if it is necessary for the following:
(a) Payment of major, uninsured medical expenses incurred
by the Participant or a member of the Participant's immediate family;
(b) Payment of expenses directly related to the death of
an immediate family member of the Participant; or
(c) Payments necessary to prevent eviction from, or
foreclosure on the mortgage on, the Participants principal residence.
1.39 "HIGHLY COMPENSATED EMPLOYEE" means any Employee or former
Employee who during the current or preceding Fiscal Year:
(a) was at any time a 5% owner (within the meaning of section
416(i)(1)(B)(i) of the Code) of the Company or any Subsidiary;
7
<PAGE>
(b) received Compensation from the Company or a
Subsidiary in excess of $75,000 (or such other amount as is in effect under
section 414(q)(1)(B)) for the Fiscal Year;
(c) was an officer of the Company or a Subsidiary and received
Compensation from the Company or a Subsidary greater than 50 percent of the
dollar amount in effect under section 415(b)(1)(A) of the Code for such Fiscal
Year; or
(d) received Compensation from the Company or a Subsidary in
excess of $50,000 (or such other amount as is in effect under section
414(q)(1)(C)) for the Fiscal Year, and was among the top paid 20 percent of
employees (as determined under section 414(q)(4) of the Code).
Notwithstanding the foregoing, not more than 50 Employees (or,
if lesser, the greater of 3 Employees or 10 percent of Employees) shall be
considered Highly Compensated Employees by reason of subparagraph (c) above.
Unless an Employee is one of the 100 highest paid Employees during the Fiscal
Year, an Employee shall not be treated as a Highly Compensated Employee by
reason of subparagraph (b), (c) or (d) for such Fiscal Year if such Employee did
not satisfy the standards of such subparagraphs in the prior Fiscal Year. If any
Employee is a member of the family (i.e., spouse, lineal ascendant or descendant
or a spouse of such lineal ascendant or descendant) of a 5% owner (within the
meaning of Section 416(i)(1)(B)(i) of the Code) or of one of the 10 most Highly
Compensated Employees during the Fiscal Year, then for purposes of this Section
only: (i) such Employee shall not be considered a separate Employee; and (ii)
any Compensation paid to such Employee shall be treated as if it were paid to
(or on behalf of) the 5% owner or Highly Compensated Employee. The term Highly
Compensated Employee includes any former Employee (a) whose terminated
employment with the Company and all Subsidiaries (or was deemed to have
terminated employment) before the current Fiscal Year, (b) who performs no
services for the Company or any Subsidiary during the current Fiscal Year, and
(c) who was a Highly Compensated Employee for either the separation year or any
determination year ending on or after the Employee's 55th birthday.
Whether any individual is treated as a Highly Compensated
Employee shall be determined in accordance with the provisions of section 414(q)
of the Code and any regulations thereunder, including any election by the Plan
Administrator thereunder regarding the period for the determination of Highly
Compensated Employees.
1.40 "HIRE DATE" means any date on which an individual first becomes an
Employee (or became an employee of a Predecessor Company). Notwithstanding the
foregoing, in the event an individual incurs a number of consecutive One Year
Breaks in Service after his initial Hire Date which result in the forfeiture of
his Years of Service prior to his One Year Breaks in Service under Section
2.2(b), his Hire Date shall thereafter be the date on which he again becomes an
Employee (or became an employee of a Predecessor Company) after such Breaks.
1.41 "HOST MARRIOTT SERVICES" or "HOST MARRIOTT SERVICES CORPORATION"
means Host Marriott Services Corporation, a Delaware Corporation, or any
corporate successor thereto by merger, consolidation or the acquisition of
substantially all of the assets and business thereof.
1.42 "HOUR OF SERVICE" means:
(a) PERFORMANCE OF DUTIES. Each hour for which an Employee is
paid, or entitled to payment, by the Company for the performance of duties. Each
such Hour of Service shall be credited to the computation period in which the
duties were performed.
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(b) NON-WORKING TIME PAY. Each hour for which an Employee is
paid, or entitled to payment, by the Company on account of a period of time
during which no duties are performed (such as vacation, holiday, sickness,
disability, jury duty, military duty or compensated leave of absence and similar
paid periods). Each such Hour of Service shall be credited to the computation
period in which the time during which no duties are performed occurs, on the
following basis:
(1) UNITS OF TIME. If the payments are
calculated on the basis of units of time, such as hours, days, weeks, or months,
the number of Hours of Service to be credited shall be the number of regularly
scheduled working hours included in the units of time on the basis of which the
payments are calculated. In the case of an Employee without an actual regular
work schedule, such Employee shall be deemed to have a regular work schedule
of forty (40) hours per week and eight (8) hours per work day. Each such Hour
of Service shall be credited to the computation period in which the time
during which no duties are performed occurs, beginning with the first unit
of time to which the payment relates.
(2) NO UNITS OF TIME. If the payments referred
to above are not calculated on the basis of units of time (such as lump sum
disability payment for an injury), the number of Hours of Service to be
credited shall be equal to the amount of the payment divided by the Employee's
most recent hourly rate of compensation before the period during which no
duties are performed. If an Employee's compensation is determined on the
basis of a fixed rate for specified periods of time (other than hours) such as
days, weeks or months, the Employee's hourly rate of compensation shall be the
Employee's most recent rate of compensation for a specified period of time
(other than an hour) divided by the number of hours regularly scheduled for the
performance of duties during such period. If the Employee has no regular work
schedule, the rate of compensation shall be calculated on the basis of a forty
(40) hour work week or an eight (8) hour work day. Each such Hour of Service
shall be credited to the computation period in which the period during which no
duties are performed occurs, except that if the period of non-performance of
duties extends beyond one computation period, such Hours of Service shall be
allocated by the Named Fiduciary, in their discretion, between not more than
the first two such computation periods on any reasonable basis which is
consistently applied with respect to all Employees within the same job
classification, reasonably defined.
(3) NO DUPLICATION. An Employee shall not be
credited with an Hour of Service under both paragraph (b)(1) and paragraph
(b)(2) of this section with respect to the same item.
(4) EXCLUSIONS. Notwithstanding the foregoing:
(A) An Employee shall not be credited on
account of a period during which no duties are performed with a number of Hours
of Service which is greater than the number of hours regularly scheduled for
the performance of duties during such period.
(B) In no event shall the number of
credited Hours of Service attributable to a single continuous period (whether or
not such period involves more than one computation period) for which no duties
are performed exceed 501 Hours of Service.
(C) An Hour of Service shall not be
credited for a payment which reimburses an Employee solely for medical or
medically related expenses incurred by the Employee.
(D) An Hour of Service shall not include
any hour for which an Employee is directly or indirectly paid, or entitled to
payment, on account of a period during which no
9
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duties are performed if such payment is made or due under a plan maintained
solely for the purpose of complying with applicable workmen's compensation,
unemployment compensation or disability insurance laws.
(5) UNCOMPENSATED LEAVE OF ABSENCE OTHER THAN
PARENTAL LEAVE. Solely for purposes of determining whether a One Year Break in
Service for eligibility purposes has occurred in a computation period, Hour of
Service shall include each hour credited during the period in which an
Employee is on an Authorized Leave of Absence. The number of hours to be so
credited shall be at a rate per week equal to such Employee's regularly
scheduled working hours per week immediately prior to such Authorized Leave
of Absence (or, in the case of an Employee without an actual regular work
schedule, then at the rate of forty (40) hours per week).
(6) PARENTAL LEAVE. Solely for purposes of
determining whether a One Year Break in Service for eligibility purposes has
occurred in a computation period, Hour of Service shall include each hour
an Employee normally would have been credited (or eight hours each day if normal
hours cannot be determined) while the Employee is absent from work due to: (i)
the Employee's pregnancy; (ii) the birth of the Employee's child; (iii) the
placement of a child with the Employee in connection with the Employee's
adoption of such child; or (iv) the caring of a child during the period
immediately following such child's birth or placement for adoption. No more than
501 Hours of Service may be credited under this paragraph (b)(6) by reason of
any one pregnancy or placement. All Hours of Service credited under this
paragraph (b)(6) shall be credited only in such computation period in which the
absence from work begins if any of such Hours of Service are required in the
computation period to prevent a One Year Break in Service. In all other cases,
the Hours of Service shall be credited in the following computation period. No
credit for Hours of Service will be given pursuant to this paragraph (b)(6)
unless the Employee furnishes such timely information as the Plan Administrator
may require, under reasonable and uniform rules, to establish (i) that the
absence from work is for a reason described in this paragraph (b)(6), and (ii)
the number of days for which there was such an absence.
(7) OVERLAPPING PAYROLL PERIOD. In the case of
Hours of Service attributable to a period of no more than thirty-one (31)
days which overlaps two computation periods, all such Hours of Service shall be
credited to either the first computation period or to the second computation
period as the Named Fiduciary, in its discretion, may determine on a consistent
basis with respect to all Employees within the same job classification,
reasonably defined.
(8) EQUIVALENCY RULE FOR FLSA EXEMPT EMPLOYEES.
In the case of an Employee whose Compensation is not determined on the
basis of certain amounts for each hour worked (such as salaried and commission
employees) and whose hours are not required to be counted and recorded by any
Federal law (such as the FLSA), such Employee's Hours of Service need not be
determined from employment records and such Employee may be credited with
forty-five (45) Hours of Service per each week (or nine (9) Hours of Service per
each day) in which the Employee would be credited with Hours of Service
pursuant to this definition.
(c) BACK PAY. Each hour for which back pay (irrespective of
mitigation of damages) has been awarded or agreed to by the Company. Each such
Hour of Service received under this paragraph (c) shall be credited to the
computation period to which the agreement or award for back pay pertains rather
than to the computation period in which the award, agreement or payment is made.
The same Hours of Service will not be credited both under paragraph (a) or
paragraph (b) of this section, as the case may be, and under this paragraph (c).
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(d) CREDIT FOR HOURS OF SERVICE WITH OTHER COMPANIES. Hours of
Service will be credited for employment with a Predecessor Company. In addition,
Hours of Service will be credited for Service (as defined in Section 1.66) with
other employers.
(e) RECORDS. Except as otherwise provided in paragraph (b)(8)
of this section, Hours of Service shall be determined from records maintained by
the Company, a Predecessor Company and any other company required to be
aggregated with the Company under paragraph (d) of this section.
1.43 "INVESTMENT EXPENSES" means all expenses which under generally
accepted accounting principles would be classified as investment expenses,
including, without limitation, investment manager's or advisor's fees and
expenses, custodial fees, fees of broker-dealers for effecting investment
transactions or rendering investment advice, expenses relating to the making of
investments and expenses relating to the recovery of any investment in a
bankrupt or insolvent entity.
1.44 "MAXIMUM PERMISSIBLE AMOUNTS" means the lesser of:
(a) $30,000 (or, if greater, twenty-five percent (25%) of the
dollar limitation set forth in Section 415(b)(1)(A) of the Code in effect for
the Fiscal Year), or such higher amount to which such amount may be adjusted or,
pursuant to Section 415(f) of the Code, to implement special rules applicable to
combining more than one defined contribution plan as a single plan; or
(b) Twenty-five percent (25%) of the Participant's
Compensation. Compensation for any Fiscal Year is the Compensation actually paid
or includable in gross income during such year.
1.45 "MONTH" means any calendar month.
1.46 "MONTH OF CREDIT" means any month during the entire period of
which an Employee is employed by the Company. For purposes of the foregoing, a
Month of Credit shall be deemed to commence on the day of hire and end on the
close of business on the day preceding the next month's anniversary thereof.
Months of Credit are cumulative and need not be successive.
Notwithstanding anything to the contrary elsewhere in the Plan, for
purposes of computing a Month of Credit, employment with a Predecessor Company
is deemed to be employment with the Company.
1.47 "NAMED FIDUCIARY" means the Committee in its role as named
fiduciary of the Plan as set forth in Section 16.1(a).
1.48 "ONE YEAR BREAK IN SERVICE" means the 12-consecutive month period
(computation period) during which an Employee does not complete more than 500
Hours of Service. The computation period shall be measured by reference to the
12-consecutive month period beginning on the Employee's Hire Date, and each
subsequent 12-consecutive month period will begin on the anniversary of such
date.
1.49 "PARTICIPANT" means an Employee of the Company who has been
admitted to participation in this Plan in accordance with Article II. To the
extent provided in Section 6.12, the term "Participant" (or any appropriate
sub-definition thereof) shall also include any person who was a participant in
the Prior Plan and whose account balance under such plan on the date before the
Effective Date was transferred to this Plan. As appropriate to the context a
"Participant" may include one or more of the following sub-definitions.
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(a) "FORMER PARTICIPANT" means any present Employee of the
Company who, after having been a Participant, ceases to participate in the Plan.
(b) "TERMINATED PARTICIPANT" means any prior Employee of the
Company or of Marriott Corporation who, after having been a Participant,
terminated his employment other than by retirement, death or disability, and has
any vested balance in the Plan.
(c) "RETIRED PARTICIPANT" means any retired Participant
who has any vested balance in the Plan.
(d) "DISABLED PARTICIPANT" means any Participant with a
Permanent Disability who has any vested balance in the Plan.
(e) "DECEASED PARTICIPANT" means any deceased person who
leaves any vested balance in the Plan.
(f) "PARTICIPANT-INSIDER" means any Participant who is,
pursuant to Section 16 of the Securities Exchange Act of 1934, 15 U.S.C. 78p
(1988) (the "Exchange Act"), a Company officer or director, or a person who is
directly or indirectly the beneficial owner of more than ten percent (10%) of
any class of equity securities of the Company registered pursuant to Section 12
of the Exchange Act, and who is subject to the reporting requirements of the
Exchange Act (and accompanying rules issued by the Securities and Exchange
Commission).
1.50 "PARTICIPATING COMPANY" means Host Marriott Services Corporation
or any Subsidiary that has elected to join the Plan with the consent of the Host
Marriott Services Corporation's Board of Directors. All of the Participating
Companies constitute the "Company", as defined in Section 1.20.
1.51 "PERMANENT DISABILITY" means that the Participant, as a result of
a disability, will be prevented on a permanent basis from engaging in any
occupation for which he is reasonably qualified by education, training or
experience as certified by a competent medical authority designated by the Named
Fiduciary to make such determination. The foregoing shall include disability
attributable to the permanent loss or loss of use of a member or function of the
body, or to the permanent disfigurement of the Participant.
The determination of the existence of a Permanent Disability shall be
made by the Plan Administrator and shall be final and binding upon the
Participant and all other parties.
1.52 "PLAN" means the Host Marriott Services Corporation Employees'
Profit Sharing, Retirement and Savings Plan and Trust, as amended and restated
effective December 30, 1995, and all subsequent amendments thereto, which is a
continuation of the Host Marriott Corporation Employees' Profit Sharing,
Retirement and Savings Plan and Trust.
1.53 "PLAN ADMINISTRATOR" means the person to whom the duties of Plan
Administrator are delegated pursuant to Section 16.3(b).
1.54 "PLAN YEAR" shall have the same meaning as "Fiscal Year" in
Section 1.34.
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1.55 "PREDECESSOR COMPANY" means (1) Marriott Corporation, as Host
Marriott Corporation was named before the Effective Date, and (2) Host Marriott
Corporation for the period beginning on the Effective Date and ending on
December 29, 1995.
1.56 "PRIOR PLAN" means the Marriott Corporation Employees' Profit
Sharing, Retirement and Savings Plan and Trust as it existed before the
Effective Date.
1.57 "PRO RATA SHARE OF ADMINISTRATIVE EXPENSES" means the amount
determined by multiplying the Administrative Expenses of the Plan by a fraction,
the numerator of which is the total value of each Fund and the denominator of
which is the total aggregate value of all such Funds.
1.58 "QUALIFIED DOMESTIC RELATIONS ORDER" or "QDRO" shall have the same
meaning as "qualified domestic relations order" under Section 414(p) of the Code
and the Treasury Regulations thereunder.
1.59 "QUALIFIED JOINT AND SURVIVOR ANNUITY" or "QJSA" means an annuity
for the life of the Participant with a survivor annuity for the life of the
Participant's Surviving Spouse in an amount not less than fifty percent (50%)
and not more than one hundred percent (100%) of the amount being paid to the
Participant during his lifetime, and which is actuarially equivalent to a
single-life annuity for the Participant.
1.60 "QUALIFYING EMPLOYER REAL PROPERTY" means parcels of real property
(and related personal property) which are leased to the Company or an Affiliated
Company (a) if a substantial number of the parcels are dispersed geographically;
and (b) if each parcel and the improvements thereon are suitable (or adaptable
without excessive cost) for more than one use.
1.61 "QUALIFYING EMPLOYER SECURITIES" means (a) any stocks or other
equity securities issued by the Company or an Affiliated Company; or (b) any
bonds, debentures, notes or certificates or other evidences of indebtedness of
the Company or an Affiliated Company which are described in Section 503(e) of
the Code and Section 407(e) of ERISA.
1.62 "REQUIRED BEGINNING DATE" means April 1 of the calendar year
following the calendar year in which the Participant attains age 70-1/2;
provided, however, that in the case of a Participant who attained age 70-1/2
before January 1, 1988, Required Beginning Date means the April 1 following the
later of the calendar year in which he (a) attained age 70-1/2; or (b) the
sixtieth (60th) day following the close of the Plan Year in which the
Participant terminates employment with the Company, provided such date is not
later than April 1 of the calendar year following the calendar year during which
such termination occurs, unless he was a five percent (5%) owner (as defined in
Section 416 of the Code) of the Company with respect to the Plan Year ending in
the calendar year in which the he attains age 70- 1/2, in which case, clause (b)
shall not apply.
1.63 "SECTION 401(K) CONTRIBUTION" shall have the meaning set forth in
Section 5.2.
1.64 "SECTION 401(K) CONTRIBUTION ACCOUNT" shall have the meaning set
forth in Section 6.1(b).
1.65 "SEPARATION DATE" means the earlier of:
(a) Any date on which an Employee's employment with the
Company terminates by reason of voluntary termination, discharge, retirement or
death; or
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(b) The first anniversary of the first date of a period in
which the Employee remains absent from active employment with the Company for
some reason other than voluntary termination, discharge, retirement, death,
approved leave of absence, or military service.
Provided, however, that if an Employee is absent from service
beyond the first anniversary of the first date of absence by reason of a
"maternity or paternity leave" (as those terms are defined in Section 9.5(b)),
then the Separation Date of such Employee shall be the second anniversary of the
first date of such absence.
1.66 "SERVICE" means an Employee's or a Participant's period of
employment with the Company, a Predecessor Company and any other employer that
is required to be aggregated with the Company under Section 414 of the Code as
determined in accordance with Article II or Article VII. Employment of an
Employee or a Participant by any of the following employers shall be treated as
Service:
(a) A Subsidiary, both prior to and after becoming a
Subsidiary, if such Subsidiary has elected to join the Plan.
(b) A Subsidiary, after becoming a Subsidiary, if such
Subsidiary has not elected to join the Plan.
In addition, the Board of Directors shall have the authority by
adopting written resolutions to recognize employment of an Employee or a
Participant by any of the following employers as Service:
(a) A Subsidiary, prior to becoming a Subsidiary, if such
Subsidiary has not elected to join the Plan.
(b) Any business entity substantially all of the assets of
which are acquired by Host Marriott Services Corporation or any Subsidiary or
whose management is assumed by the Company; provided that such recognition shall
apply uniformly to all employees of any such employer.
1.67 "SPOUSAL CONSENT" means a Spouse's written consent which
acknowledges the effect of the Participant's election and is witnessed by a Plan
representative or notary public. Spousal Consent may be in the form of a
specific consent, general consent or limited general consent, as provided in
Section 8.6(e).
1.68 "SPOUSE" or "SURVIVING SPOUSE" means the spouse or surviving
spouse of the Participant, provided that a former spouse will be treated as the
spouse or surviving spouse and a current spouse will not be treated as the
spouse or surviving spouse to the extent provided in a Qualified Domestic
Relations Order.
1.69 "SUBACCOUNT" means the portion of a Participant's Account
placed in each Fund pursuant to Article XV.
1.70 "SUBSIDIARY" or "AFFILIATED COMPANY" means (a) a member of a
controlled group of corporations of which Host Marriott Services Corporation is
a member; or (b) an unincorporated trade or business which is under common
control by or with Host Marriott Services Corporation, as determined in
accordance with Section 414(c) of the Code and Treasury Regulations issued
thereunder. For purposes hereof, a "controlled group of corporations" shall mean
a controlled group of corporations as defined in Section 1563(a) of the Code,
determined without regard to Sections 1563(a)(4) and
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1563(e)(3)(C) of the Code, except that, with respect to the limitation on Annual
Additions set forth in Section 6.11, instead of eighty percent (80%), the
applicable percentage shall be fifty percent (50%) wherever such percentage
appears in Section 1563(a)(1) of the Code.
1.71 "TRUSTEES" means the persons appointed as Trustees pursuant to
Section 16.1(c).
1.72 "TRUST FUND" means, and consists of (a) the contributions made
from time to time by the Company as provided in Article III, (b) the After-tax
Savings of Participants as provided in Article IV, (c) Section 401(k)
Contributions made by the Company on behalf of Participants as provided in
Article V, (d) the income derived from such contributions and After-tax Savings
that have not been distributed in accordance with the terms of the Plan, and (e)
any transfers from other trusts pursuant to Sections 6.12 and 6.13, less (f) any
losses on such contributions and After-tax Savings and (g) any distributions
made in accordance with the terms of the Plan. The Trust Fund shall further be
defined as the aggregate of the Funds described in Section 15.6(c) (or any other
Funds created by the Committee).
1.73 "VALUATION DATE" means the date as of which the Trustees shall
value the interest of a Participant in the assets of the Trust Fund, such
valuation being made in accordance with the provisions of Section 20.9.
1.74 "YEAR OF SERVICE" means the 12-consecutive month period
(computation period) during which an Employee completes at least 1,000 Hours of
Service with the Company or a Predecessor Company. The initial computation
period is the 12-consecutive month period beginning on the Employee's Hire Date.
If the Employee fails to complete a Year of Service during the initial 12
consecutive month period, the 12 consecutive month period by which a Year of
Service is measured shall commence on succeeding anniversaries of the Employee's
Hire Date.
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ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 ELIGIBILITY AND PARTICIPATION.
(a) AGE AND SERVICE. Any Employee who has both attained
the age of 21 and completed one Year of Service shall be eligible to participate
in the Plan.
(b) PARTICIPATION VOLUNTARY. Participation in the Plan
shall be entirely voluntary.
(c) COMMENCEMENT OF PARTICIPATION. Any Employee who meets the
eligibility requirements of paragraph (a) of this section may commence
participation in the Plan on any Entry Date thereafter and shall be admitted to
the Plan on any such Entry Date if the Plan Administrator receives the
Employee's written application for admission to the Plan.
(d) AUTOMATIC PARTICIPATION. Any person who was participating
in the Prior Plan on the day before the Effective Date shall automatically be
admitted to this Plan and shall become a Participant under this Plan on the
Effective Date; provided, however, if such person is not an Employee on the
Effective Date, the person shall be treated as unemployed on the Effective Date
and shall be admitted to this Plan in accordance with Section 2.2.
(e) CONTINUATION OF FORMER PARTICIPANT STATUS. Any person who
was a former participant under the Prior Plan on the day before the Effective
Date shall automatically become a Former Participant under this Plan on the
Effective Date; provided, however, that if such person was ineligible for
readmission to the Prior Plan until six (6) months had elapsed from the date on
which such person became a former participant under the Prior Plan, the person
shall be ineligible for readmission to this Plan until six (6) months have
elapsed; provided, further, that if such former participant is not an Employee
on the Effective Date, the person shall be treated as unemployed on the
Effective Date and shall be admitted to this Plan in accordance with Section
2.2.
2.2 REEMPLOYMENT OF EMPLOYEE.
(a) ELIGIBILITY UPON REEMPLOYMENT. An Employee who terminates
employment after meeting the eligibility requirements of Section 2.1(a)
(regardless of whether or not he was ever a Participant) and who subsequently
resumes employment with the Company shall become eligible to participate in the
Plan immediately upon again becoming an Employee and may be admitted to the Plan
on any Entry Date thereafter upon written application in accordance with Section
2.1(c); provided, however, that if, upon re-employment his Years of Service
prior to his One Year Break in Service are not reinstated to his credit pursuant
to paragraph (b) of this section, he shall be treated as a new Employee and
shall again be required to satisfy the eligibility and participation
requirements contained in Section 2.1 before he may participate in the Plan.
(b) YEARS OF SERVICE TO BE COUNTED UPON RESUMPTION OF
EMPLOYMENT. Upon an Employee's resumption of employment with the Company, all
Years of Service shall be counted for eligibility purposes; provided, however,
that if (1) at the time the Employee terminated employment, the Employee had no
vested right to any portion of his Company Contribution Account (as described in
Article VII, and (2) the number of consecutive One Year Breaks in Service equals
or exceeds the greater
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of (i) five, or (ii) the aggregate number of Years of Service completed prior to
such Break (exclusive of Years of Service previously disregarded pursuant to
this paragraph (b)), then his Years of Service prior to his One Year Breaks in
Service shall be disregarded.
2.3 TERMINATION OF PLAN PARTICIPATION.
A Participant may cease to participate in the Plan during the
Participant's continued employment at any time by giving written notice thereof
to the Plan Administrator. Such notice shall be effective to terminate
participation upon its receipt by the Plan Administrator and such Employee shall
thereupon become a Former Participant.
2.4 READMISSION OF FORMER PARTICIPANT.
Any Former Participant may be readmitted to the Plan as a Participant
on any Entry Date upon written application in accordance with Section 2.1(c);
provided, however, that if any Former Participant withdraws any portion of his
Basic After-tax Savings pursuant to Section 10.1 or receives a distribution of
his entire Account pursuant to Section 10.5 before completing sixty (60) months
of participation in the Plan, he shall not be eligible for readmission to the
Plan until six (6) months have elapsed from the date on which he became a Former
Participant.
2.5 PARTICIPATION DURING AUTHORIZED LEAVE OF ABSENCE OR DURING
EMPLOYMENT BY SUBSIDIARY WHICH HAS NOT JOINED PLAN.
Participation in the Plan may continue during periods of Authorized
Leave of Absence, and periods during which a Participant is employed by a
Subsidiary which has not elected to join the Plan. However, the Participant may
neither deposit savings in the Trust Fund nor share in the allocation of the
Company contribution during such periods. A Participant on Authorized Leave of
Absence who does not return to active employment with the Company by the
expiration of such Authorized Leave of Absence shall be treated for the purposes
of the Plan as having terminated employment pursuant to Section 9.1.
2.6 TREATMENT OF PARTICIPANTS WHO CEASE BEING EMPLOYEES PURSUANT
TO SECTION 1.29.
Notwithstanding the provisions of Section 2.5, any Participant who
ceases to be an Employee (a) by reason of Section 1.29(c), (d) or (e), or (b) by
becoming employed by a Subsidiary which has not elected to join the Plan (if
such person also becomes covered by an agreement described in Section 1.29(c) or
becomes a participant in a plan (other than this Plan) described in Section
1.29(e)), shall be treated thereupon as a Former Participant in accordance with
the provisions of this Plan.
2.7 CREDIT FOR SERVICE WITH A PREDECESSOR COMPANY.
Notwithstanding anything to the contrary contained elsewhere in this
Article II, for purposes of determining eligibility to participate in this Plan,
employment with a Predecessor Company is deemed to be employment with the
Company and the employee's hire date and entry date under the Prior Plan are
deemed to be the Employee's Hire Date and Entry Date under this Plan.
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ARTICLE III
COMPANY CONTRIBUTION
3.1 AMOUNT OF CONTRIBUTION.
Each Participating Company shall make the following contributions to
the Trust Fund:
(a) For each Fiscal Year or portion thereof, its allocable
portion (as determined under Section 3.2) of an amount determined in the
absolute and sole discretion of the Board of Directors. In determining this
discretionary amount, the Board of Directors shall take into account the
following factors, among others:
(1) The Company accruals to the Host Marriott
Services Corporation Executive Deferred Compensation Plan which are accrued
during that year, excluding any such accruals attributable to interest or
earnings on previously accrued amounts;
(2) The amount, if any, contributed by the
Company to any other profit sharing plan or pension plan maintained by the
Company and which has qualified under Section 401(a) of the Code;
(3) The amount of Host Marriott Service's
consolidated Net Worth at the beginning of the Fiscal Year; and
(4) The cost of death benefits paid during that
year by the Company to Beneficiaries of Retired or Disabled Participants holding
death certificates issued at retirement to Participants in the Plan or Prior
Plan prior to August 1, 1964, if any. Provided, however, that for the balance of
the 1993 Fiscal Year, the Company contribution shall be the aggregate amount
necessary to provide an allocation at the rate equal to the company contribution
rate provided to participants in the Marriott International, Inc. Employees'
Profit Sharing, Retirement and Savings Plan and Trust for the same period to all
Participants entitled to an allocation for the Fiscal Year in accordance with
Section 6.4.
Notwithstanding anything to the contrary in this paragraph (a), in no
event shall the amount contributed by any Participating Company include an
amount, if any, equal to the amount of any "excess aggregate contributions" (as
defined in Section 401(m)(6)(B) of the Code) for such year that would otherwise
be allocable to Participants who are Highly Compensated Employees, if such
amounts were contributed to the Plan; and
(b) SECTION 401(K) CONTRIBUTIONS. Section 401(k)
Contributions, as provided by Article V.
Contributions under this Section 3.1 shall be computed in accordance
with the provisions of Section 3.3; provided, however, that in no event shall
the amount of the contribution exceed the maximum amount deductible by a
Participating Company for the Fiscal Year with respect to which the contribution
is made under Section 404(a) of the Code or the corresponding provision of any
subsequent tax law.
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3.2 ALLOCABLE PORTION. Each Participating Company shall contribute out
of its current profits, or, if there are no current profits, out of accumulated
earnings and profits that proportion of the aggregate contribution made in
accordance with this Article III as is equal to the total sum credited, out of
such aggregate contribution, to the accounts of all Participants employed by
such Participating Company pursuant to Section 6.4. Notwithstanding the
foregoing, if there are no current profits or accumulated earnings and profits,
each Participating Company nevertheless shall make its allocable portion of the
discretionary Company contribution described in Section 3.1(a), subject to the
provisions of Section 3.3(b).
3.3 NET PROFITS, NET WORTH AND EARNINGS AND PROFITS.
(a) DETERMINATION OF CONSOLIDATED NET PROFITS AND CONSOLIDATED
NET WORTH. For purposes of this Article III, Consolidated Net Profits and the
Consolidated Net Worth of Host Marriott Services shall be determined and
certified by the Company's auditors in accordance with the established methods
of accounting regularly employed by the Company; provided, however, that
Consolidated Net Profits shall be determined before deducting contributions made
pursuant to this Plan, accruals for employee cash and deferred stock bonuses,
death benefits paid during that year by the Company to the Beneficiaries of
Retired or Disabled Participants holding death benefit certificates issued at
retirement to Participants in the Plan or Prior Plan prior to August 1, 1964, if
any, and Federal and state income and franchise taxes and shall exclude such
special items as the Board of Directors may from time to time determine,
including major nonrecurring gains and losses, earnings of any foreign
Subsidiary, or any domestic Subsidiary designated by the Board of Directors.
(b) INSUFFICIENT EARNINGS AND PROFITS. In the event the
current and accumulated earnings and profits of a Participating Company shall be
insufficient to make such Participating Company's contribution, determined
pursuant to Sections 3.1(a) and Section 3.2, then, and in that event, each of
the other Participating Companies shall contribute to the extent of its current
and accumulated earnings and profits, that proportion of such deficiency as such
Participating Company's current and accumulated earnings and profits bear to the
current earnings and accumulated profits of all the contributing Participating
Companies.
3.4 EFFECT OF CHANGE IN CONSOLIDATED NET PROFIT.
The amount of each contribution shall not be changed by reason of any
changes in Consolidated Net Profit due to the action of any government
department or agency occurring after the final computation thereof by the
Participating Company making the same and the submission by it to the
Commissioner of Internal Revenue of its Federal income tax return for the Fiscal
Year involved.
3.5 TIME OF PAYMENT OF CONTRIBUTIONS.
A Participating Company may pay its contributions at such time or times
and in such amount or amounts as it may deem appropriate during the Fiscal Year
for which each such contribution becomes due and for such period thereafter
during which payment thereof may be permitted as a deduction for the previous
Fiscal Year, under the Rules and Regulations of the Treasury Department and the
provisions of the Code.
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3.6 FORM OF PAYMENT OF CONTRIBUTIONS.
All payments of contributions shall be made directly to the Trustees.
Payments may be in cash, ualifying Employer Securities (including treasury stock
or previously unissued stock of Host Marriott Services), Qualifying Employer
Real Property or in such other property of any kind as the Named Fiduciary may
authorize the Trustees to accept, to the extent permitted by law. The value of
any property other than cash which may be paid to the Trustees shall be its fair
market value as of the date of such payment, as determined by the Named
Fiduciary, based on the report of an independent appraiser.
3.7 RETURN OF CONTRIBUTIONS TO COMPANY. Notwithstanding any other
provisions of this Plan, any contributions made by a Participating Company
pursuant to Article 3.1 shall, to the extent permitted by Section 403(c) of
ERISA, be returned to a Participating Company if:
(a) The contributions are made as the result of a mistake
of fact;
(b) A tax deduction claimed for the contributions
pursuant to Section 404 of the Code is denied to the Company by the Internal
Revenue Service; or
(c) The IRS determines that the Plan is not tax-qualified
under Section 401 of the Code.
Notwithstanding the foregoing, however, no contributions may be returned to a
Participating Company under the above provisions later than one (1) year from
the date a mistaken contribution is made, a tax deduction for a contribution is
denied, or the IRS determines that the Plan is not tax-qualified, as the case
may be. Further, except as otherwise provided in this paragraph, the assets of
the Plan shall not inure to the benefit of the Company, and shall be held for
the exclusive purposes of providing benefits to Participants and Beneficiaries
and defraying reasonable expenses of administering the Plan.
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ARTICLE IV
PARTICIPANTS' AFTER-TAX SAVINGS
4.1 PARTICIPANT AFTER-TAX SAVINGS.
Subject to the provisions of Section 4.2, each Participant may deposit
After-tax Savings into the Trust Fund.
4.2 AMOUNT OF AFTER-TAX SAVINGS.
Subject to the limitation provisions of Section 6.5, a Participant
shall deposit in the Trust Fund, specified in multiples of one percent (1%), an
amount which is at least one percent (1%), but not more than fifteen percent
(15%), of his Compensation earned during each Fiscal Year from the date the
Participant joins the Plan; provided, however, that the amount of a
Participant's After-tax Savings may not result in a cumulative amount for all
such After-tax Savings (plus all of the Participant's contributions to any other
plan, if any, maintained by the Company or an Affiliated Company which is
qualified under Section 401(a) of the Code) which exceeds fifteen percent (15%)
of such Participant's Compensation for all Fiscal Years in which the Participant
has been a Participant in the Plan. In lieu of depositing a percentage of
Compensation, a Participant may deposit into the Trust Fund a fixed dollar
amount which is at least three dollars ($3.00) per week; provided, however, that
such Participant may not deposit, in any given pay period, more than fifteen
percent (15%) of his Compensation for that pay period.
4.3 PAYROLL DEDUCTION.
Each Participant's After-tax Savings shall be withheld by the Company
from Compensation paid such Participant for each payroll period.
4.4 CHANGE IN RATE OF AFTER-TAX SAVINGS.
A Participant may change the rate of his After-tax Savings to any other
rate authorized by Section 4.2 at any time by giving written notice to the Plan
Administrator. Such notice shall be effective as specified by the Committee. In
addition, a Participant may discontinue his After-tax Savings at any time by
giving written notice to the Plan Administrator. Such notice of discontinuation
shall be effective as specified in Section 2.3, unless the Participant has made
an election pursuant to Section 5.2.
4.5 PAYMENT TO TRUSTEES.
The Participants' After-tax Savings withheld shall be paid to the
Trustees by the Company on the earliest date on which such After-tax Savings can
reasonably be segregated from the Company's general assets. A statement showing
the amount representing the After-tax Savings of each Participant shall
accompany each such payment.
4.6 ADVANCEMENT BY COMPANY.
Notwithstanding the provisions of Section 4.5, the Company may, at any
time, estimate the aggregate After-tax Savings to be made by Participants for
any portion of the remainder of any Fiscal
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Year, and advance a sum equal to such aggregate estimated future After-tax
Savings to the Trustees. In such event the Company shall retain all After-tax
Savings thereafter withheld by it until the advance has been recovered.
4.7 INVESTMENT OF PARTICIPANTS' AFTER-TAX SAVINGS.
Subject to the Participant's right to direct investments under Article
XIV, the Participant's After-tax Savings shall be commingled with other assets
in the Trust Fund for investment purposes.
4.8 IN-SERVICE WITHDRAWAL OF AFTER-TAX SAVINGS.
A Participant may withdraw After-tax Savings from his After-tax Savings
Account as provided in Sections 10.1 and 10.5.
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<PAGE>
ARTICLE V
SECTION 401(k) CONTRIBUTIONS
5.1 DESIGNATION OF FLEXIBLE COMPENSATION.
The books and records of the Company shall designate fifteen percent
(15%) of each Participant's Compensation as "Flexible Compensation." Flexible
Compensation shall for all purposes, tax or otherwise, be treated as part of a
Participant's Compensation and the designation of such amount shall be relevant
only for purposes of this Article V.
5.2 SECTION 401(K) CONTRIBUTIONS.
Subject to the terms and conditions of this Article V, any Participant
may, at any time and from time to time, elect to have contributed to the Trust
Fund out of his Flexible Compensation, specified in multiples of one percent
(1%), an amount which shall be designated a Section 401(k) Contribution and
shall constitute a contribution to the Trust Fund by the Company on behalf of
the Participant under the provisions of Section 401(k) of the Code. In lieu of
contributing a percentage of Compensation, a Participant may contribute to the
Trust Fund out of his Flexible Compensation a fixed dollar amount which is at
least three dollars ($3.00) per week; provided, however, that such Participant
may not contribute, in any given pay period, more than fifteen percent (15%) of
his Compensation for that pay period.
5.3 ELECTION RULES.
(a) METHOD OF ELECTION. The Committee shall determine the
method by which an election may be made pursuant to this Article V. Any such
election method must be consistent with the provisions of Section 401(k)(2) of
the Code and (assuming such consistency) may include either an affirmative
election procedure whereby Participants shall only be treated as having made an
election upon written direction of the Participants or a negative election
procedure whereby Participants shall be deemed to have made an election until
and unless a Participant files a written direction negating the election.
Regardless of the method of election determined by the Committee, Participants
shall be given prompt and adequate notice thereof and thus be afforded an
appropriate opportunity to exercise their rights under this Article V.
(b) EFFECTIVE DATE OF ELECTION. An election shall become
effective (unless previously revoked) upon the first day of the payroll period
of the Company immediately following receipt by the Plan Administrator of the
election.
(c) REVOCATION OR AMENDMENT. An election may be made to change
a Participant's rate of Section 401(k) Contributions to any other rate
authorized under Section 5.2 at any time. Such election shall be made in the
manner, and shall be effective, as specified by the Committee. In addition, an
election may be made to discontinue future Section 401(k) Contributions at any
time. Such election to discontinue future contributions shall be effective as
specified in Section 2.3, unless the Participant is depositing After-tax Savings
into the Trust Fund pursuant to Section 4.2. Finally, the Plan Administrator
shall have the right and obligation to reduce a Participant's rate of Section
401(k) Contribution to any rate as necessary, from time to time, in order to
assure compliance by this Plan with the standards of Section 401(k)(3) of the
Code.
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<PAGE>
5.4 COMPENSATION REDUCTION.
For each payroll period, a Participant's Compensation shall be reduced
by the portion of a Participant's Flexible Compensation which such Participant
has elected to have contributed by the Company to the Trust Fund as a Section
401(k) Contribution (or such lesser amount determined by the Plan Administrator
pursuant to Section 5.3(c)). A Participant's Flexible Compensation for the
payroll period in excess of such amount shall be paid to the Participant as cash
compensation for the period.
5.5 LIMITATIONS ON SECTION 401(K) CONTRIBUTIONS.
Notwithstanding any provision of this Plan to the contrary, the maximum
amount of Section 401(k) Contributions for any Fiscal Year shall not exceed the
least of:
(a) Fifteen percent (15%) of each Participant's
Compensation;
(b) the amount in effect for such Fiscal Year under
section 402(g)(5) of the Code; or
(c) Such lesser amount which may be allowed in order to assure
compliance by the Plan with one of the Actual Deferral Percentage Tests set
forth in Section 5.6.
5.6 ACTUAL DEFERRAL PERCENTAGE TESTS.
The Actual Deferral Percentage Test shall be satisfied for a Plan Year
if one of the following two tests is met for such Plan Year:
(a) The Actual Deferral Percentage for the eligible Highly
Compensated Employees is not more than the Actual Deferral Percentage of all
other eligible Employees multiplied by 1.25; or
(b) The Actual Deferral Percentage for the Highly Compensated
Employees is not more than the Actual Deferral Percentage of all other eligible
Employees multiplied by 2.0, and the excess of the Actual Deferral Percentage
for the Highly Compensated Employees over all other eligible Employees is not
more than two percentage points.
5.7 RECHARACTERIZATION OF CERTAIN SECTION 401(K) CONTRIBUTIONS.
To the extent that contributions made on behalf of a Participant
pursuant to an election under Section 5.2 by a Participant who is a Highly
Compensated Employee would otherwise cause the Plan to fail to comply with the
Actual Deferral Percentage Test set forth in Section 5.6, such contributions
shall constitute After-tax Savings by the Participant rather than Section 401(k)
Contributions.
5.8 COORDINATION OF AFTER-TAX SAVINGS AND SECTION 401(K)
CONTRIBUTIONS.
A Section 401(k) Contribution is made in lieu of all or a portion of
such Participant's After-tax Savings deposits into the Trust Fund under Section
4.2 of the Plan. Thus, the maximum After-tax Savings deposit which may be made
by a Participant under Section 4.2 during any Fiscal Year is equal to (a) the
amount which may be made under Section 4.2 without regard to this Section 5.8,
less (b) the Section 401(k) Contribution made on behalf of the Participant under
Section 5.2.
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<PAGE>
5.9 PAYMENT TO TRUSTEES.
Section 401(k) Contributions shall be paid to the Trustees by the
Company on the earliest date on which such Section 401(k) Contributions can
reasonably be segregated from the Company's general assets. A statement showing
the amount representing the Section 401(k) Contributions of each Participant
shall accompany each such payment.
5.10 ADVANCEMENT BY COMPANY.
Notwithstanding the provisions of Section 5.9, the Company may, at any
time, estimate the aggregate Section 401(k) Contributions to be made on behalf
of Participant for any portion of the remainder of any Fiscal Year, and advance
a sum equal to such aggregate estimated amount to the Trustees. In such event,
the Company shall contribute no Section 401(k) Contributions until the advance
has been recovered.
5.11 DISTRIBUTION OF SECTION 401(K) CONTRIBUTIONS.
(a) RESTRICTIONS ON DISTRIBUTIONS. A Participant's
Section 401(k) Contributions (and earnings attributable thereto) shall not be
distributable other than upon:
(1) The Participant's termination of employment
with the Company and all Subsidiaries, death or disability;
(2) The Participant's attainment of age 59-1/2,
or termination of participation in the Plan after attaining age 59-1/2;
(3) The Participant's Hardship;
(4) The termination of the Plan by the Company
without establishment or maintenance of another defined contribution plan (other
than an employee stock ownership plan as defined in Section 4975(e)(7) of the
Code);
(5) The sale or other disposition by the Company
(or a Participating Company employing the Participant) of substantially all of
the assets (within the meaning of Section 409(d)(2) of the Code) used in a trade
or business of the Company (or such Participating Company) with respect to a
Participant who continues employment with the corporation acquiring such assets;
or
(6) The sale or other disposition by the Company
(or a Participating Company) employing the Participant of its interest in a
Participating Company (within the meaning of Section 409(d)(3) of the Code or
any successor provision) with respect to a Participant who continues employment
with the sold Participating Company.
Notwithstanding the foregoing, any distribution made pursuant to
paragraphs (a)(4), (a)(5) and (a)(6) of this section must meet the requirements
of Section 410(k)(10) of the Code.
(b) IN-SERVICE WITHDRAWAL OF SECTION 401(K) CONTRIBUTIONS. Any
Participant or Former Participant who meets the requirements of paragraph (a)(2)
of this section may withdraw his Section 401(k) Contributions during the
Participant's continued employment, as provided in Section 10.5.
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<PAGE>
5.12 EFFECT OF TERMINATION OF PLAN OR DISCONTINUANCE OF SECTION
401(K) CONTRIBUTIONS.
In the event (a) the Plan is terminated or partially terminated with
respect to a Participating Company or particular group or class of Participants,
or (b) the Company or any Participating Company discontinues the making of
Section 401(k) Contributions, the election made by any affected Participant
under the provisions of this Article V shall be immediately null and void and of
no further effect, and no additional amounts of such Participant's Flexible
Compensation shall be contributed to the Trust Fund by the Company or the
Participating Company.
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<PAGE>
ARTICLE VI
ALLOCATION OF CONTRIBUTIONS
AND NET INCOME AMONG PARTICIPANTS
6.1 MAINTENANCE OF SEPARATE ACCOUNTS.
The Plan Administrator shall maintain the following accounts in the
name of each person participating in the Plan:
(a) After-tax Savings Account (consisting of
Participants' After-tax Savings pursuant to Article IV and any earnings or
losses thereon);
(b) Section 401(k) Contribution Account (consisting of
Section 401(k) Contributions pursuant to Article V and any earnings of losses
thereon); and
(c) Company Contribution Account (consisting of Company
contributions, forfeitures and any gain or loss thereon).
All of such separate accounts and the separate Fund Subaccounts, as
established pursuant to Section 15.5(a), shall in the aggregate constitute the
Participant's Account.
6.2 ALLOCATION TO AFTER-TAX SAVINGS ACCOUNTS.
The After-tax Savings deposited by a Participant pursuant to Section
4.2 shall be credited to the Participant's After-tax Savings Account, as made.
After-tax Savings credited to a Participant's After-tax Savings Account shall be
subject to the special rules set forth in Section 6.5.
6.3 ALLOCATION TO SECTION 401(K) CONTRIBUTION ACCOUNT.
Section 401(k) Contributions made by the Company on behalf of a
Participant pursuant to Section V shall be credited, as made, to the
Participant's Section 401(k) Contribution Account.
6.4 ALLOCATION OF COMPANY CONTRIBUTION.
Subject to Section 6.7, Company contributions pursuant to Sections
3.1(a) and 3.2 shall be allocated and applied in the following order:
(a) To the restoration of forfeitures of Terminated
Participants readmitted to the Plan in accord with Section 9.5(b), to the extent
that current forfeitures are insufficient to provide for such restoration as
provided in Section 6.9;
(b) To offset the amount of advance pro rata allocation of
Company contributions made to Disabled, Deceased and Retired Participants
pursuant to Section 8.4 and to Participants working in or affiliated with the
unit of Marriott Family Restaurants, Inc. being sold pursuant to Section 9.3;
and
(c) The balance to the Company Contribution Accounts of
all Participants who are Employees of the Company on the last day of the Fiscal
Year for which such contribution is made
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<PAGE>
according to the ratio that each Participant's Combined Basic Savings for such
Fiscal Year bears to the total Combined Basic Savings of all such Participants
for such Fiscal Year. The Company Contributions allocated to each Participant's
Account shall be further allocated among such Participant's Fund Subaccounts in
accordance with the provisions of Article XV.
Company contributions allocated to a Participant's Company Contribution Account
shall be subject to the special rules set forth in Section 6.5.
6.5 (a) LIMITATION ON AFTER-TAX SAVINGS AND COMPANY CONTRIBUTIONS.
Notwithstanding any provisions of the Plan to the contrary, the Participant's
After-tax Savings and Company contributions (including forfeitures) for a Plan
Year must satisfy the Actual Contribution Percentage Tests for such Plan Year.
The Actual Contribution Percentage Test shall be satisfied for a Plan Year if
one of the following two tests is met for such Plan Year:
(1) The Actual Contribution Percentage for the
eligible Highly Compensated Employees is not more than the Actual Contribution
Percentage of all other eligible Employees multiplied by 1.25; or
(2) The Actual Contribution Percentage for the
Highly Compensated Employees is not more than the Actual Contribution Percentage
of all other eligible Employees multiplied by 2.0, and the excess of the Actual
Contribution Percentage for the Highly Compensated Employees over all other
eligible Employees is not more than two percentage points.
(b) MULTIPLE USE OF THE ALTERNATIVE LIMITATION.
Notwithstanding the above, if both Section 5.6(a) and paragraph (a)(1) of this
section are not satisfied for a Plan Year and one Highly Compensated Employee of
the Company is eligible to have Section 401(k) Contributions made on his behalf,
and to make deposits of After-tax Savings to his After-tax Savings Account or
have Company contributions allocated to his Company Contribution Account during
such Plan Year, then the following shall apply:
The sum of the Actual Deferral Percentage and the Actual Contribution
Percentage for eligible Highly Compensated Employees shall not exceed the
greater of:
(1) The sum of:
(A) 1.25 multiplied by the greater of:
(i) The Actual Deferral
Percentage for eligible Employees who are not Highly Compensated Employees, or
(ii) The Actual Contribution
Percentage for eligible Employees who are not Highly Compensated Employees; and
(B) Two (2) plus the lesser of:
(i) Paragraph (b)(l)(i)(A) of
this section, or
(ii) Paragraph (b)(1)(i)(B) of
this section, which shall in no event exceed twice the lesser of paragraph
(b)(1)(i)(A) of this section or paragraph (b)(1)(i)(B); or
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<PAGE>
(2) The sum of:
(A) 1.25 multiplied by the lesser of:
(i) Paragraph (b)(1)(i)(A) of
this section, or
(ii) Paragraph (b)(1)(i)(B); and
(B) Two (2) plus the greater of:
(i) Paragraph (b)(1)(i)(A), or
(ii) Paragraph (b)(1)(i)(B),
which shall in no event exceed twice the greater of paragraph (B)(1)(i)(A) or
paragraph (b)(1)(i)(B) above.
In the event that the limitation of this paragraph (b) is exceeded, the Actual
Contribution Percentage shall be reduced in accordance with the manner described
in Section 6.6.
6.6 CORRECTING EXCESS AGGREGATE CONTRIBUTIONS.
In the event that the limitation imposed by Section 6.5 is not
satisfied for any Plan Year, Participant After-tax Savings (including
recharacterized Section 401(k) Contributions) credited to a Participant's
Account shall, to the extent such credited amounts constitute "excess aggregate
contributions" (within the meaning of Section 401(m)(6)(B) of the Code, and
after taking into account the last paragraph of Section 3.1(a) and Section 6.7),
be distributed to such Participant on or before the date which is two and
one-half (2-1/2) months after the end of the Plan Year to which such credited
amounts relate. Distribution of credited amounts shall include any income
attributable thereto, and shall be determined in accordance with regulations
promulgated by the United States Secretary of the Treasury under Section 401(m)
of the Code.
6.7 SPECIAL PROVISION FOR ALLOCATING COMPANY CONTRIBUTIONS.
Notwithstanding any other provision of this Plan, Company contributions
pursuant to Section 3.1(a) shall be allocated and applied to the accounts of
Participants who are not Highly Compensated Employees as if the reduction of
contributions provided in the last paragraph of Section 3.l(a) had not taken
place. Company contributions shall be allocated and applied to the accounts of
Highly Compensated Employees after taking into account the reduction of
contributions provided in the last paragraph of Section 3.1(a) so that no
amounts constituting "excess aggregate contributions" (within the meaning of
Section 401(m)(6)(B) of the Code) are allocated to the Company Contribution
Account of any Participant under this Article VI.
6.8 ALLOCATION OF NET INCOME.
The net income of each Fund (after deducting related Investment
Expenses and the Pro Rata Share of Administrative Expenses), together with the
realized and unrealized investment profits or losses, as certified by the
Trustees pursuant to Section 20.9, shall be allocated proportionately to the
Subaccounts of each Participant to the extent invested in each such Fund, as of
the close of each Month. The allocation described in this Section 6.8 shall be
based on the balances of the Subaccounts identified in the preceding sentence as
of the end of the prior Month, plus one-half of all After-tax Savings and
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<PAGE>
Section 401(k) Contributions which have been deposited since the close of
such prior Month into eachSubaccount, plus any transfers into each Subaccount
from a Subaccount invested in any other Fund which have occurred since the close
of such prior Month, less any transfers from such Subaccount into a Subaccount
invested in any other Fund which have occurred since the close of such prior
Month, and less one-half of all distributions which have been made to
Participants from the After-tax Savings Account, Section 401(k) Contribution
Account and Company Contribution Account since the close of such prior Month.
If, at the time the allocation described in this Section 6.8 is made,
the balance in a given Participant's Account is zero, then no allocation of net
income shall be made under this Section to such account.
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<PAGE>
6.9 ALLOCATION OF FORFEITURES.
Forfeitures, as described in Section 9.5(a), shall first be applied to
the restoration of forfeitures of Terminated Participants readmitted to the Plan
in accordance with Section 9.5(b). The balance, if any, shall be reallocated as
of the end of each Fiscal Year among the Company Contribution Accounts of
Participants and Former Participants, subject to Section 6.5. Reallocation of
forfeitures shall be proportionate based upon the ratio of each Participant's
Combined Basic Savings for the current Fiscal Year to the aggregate total
Combined Basic Savings of all Participants for the current Fiscal Year. Any
forfeiture reallocated to the Company Contribution Account of a Participant
shall be further allocated among such Participant's Fund Subaccounts in
accordance with the provisions of Article XV.
6.10 ALLOCATION OF UNCLAIMED BENEFITS.
(a) METHOD OF ALLOCATION. Unclaimed benefits, as
described in Section 20.11, shall be reallocated in the same manner as
forfeitures as provided in Section 6.9.
(b) REDUCTION IN FORFEITURES. If the Plan Administrator pays
any unclaimed benefits which had previously been reallocated hereunder, the
amount of such benefits shall reduce the amount of forfeitures otherwise
reallocated pursuant to Section 6.9. In the event that forfeitures for the
Fiscal Year in question are not sufficient to pay any unclaimed benefits, the
Company contribution for such Fiscal Year shall first be applied for such
payment.
6.11 ALLOCATION LIMITATIONS.
(a) MAXIMUM ADDITIONS. Notwithstanding anything to the
contrary contained in the Plan, the sum of: (1) the total Additions made to the
Account of a Participant under this Plan for any Fiscal Year; and (2) the
"annual additions" (as defined in Section 415 of the Code) made to the account
of a Participant under any other qualified defined contribution plan maintained
by the Company or any Affiliated Company, shall not exceed the Maximum
Permissible Amount.
(b) CORRECTION OF EXCESS. If the Maximum Permissible Amount is
exceeded in any Fiscal Year for any Participant, any Additional After-tax
Savings under Article IV made by the Participant to the Plan for the Fiscal Year
and otherwise allocable to the Participant's After-tax Savings Account, which
cause the excess, shall be distributed to the Participant. If, after returning
such Additional After-tax Savings to the Participant, an excess still exists,
such excess shall be reallocated to the Company Contribution Accounts of the
remaining Participants on the same basis as the Company contribution is
allocated pursuant to Section 6.4. The foregoing or anything contained in
paragraph (c) of this section notwithstanding, no portion of the balance in a
Participant's Section 401(k) Contribution Account may be reallocated or returned
to the Participant from that account.
(c) FURTHER LIMITATIONS ON ADDITIONS. Notwithstanding the
foregoing provisions of this Section 6.11, the otherwise permissible annual
additions for any Participant under this Plan shall be further reduced to the
extent necessary, as determined by the Committee to prevent disqualification of
the Plan under Section 415 of the Code, which imposes additional limitations on
the benefits payable to Participants who also may be participating in another
tax-qualified pension, profit sharing, savings or stock bonus plan of the
Company or any Affiliated Company. The Committee shall advise affected
Participants of any additional limitation of their annual Additions required by
the preceding sentence.
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6.12 TRANSFERS TO OTHER TRUSTS.
(a) TIME AND MANNER. After the Effective Date, the trustees of
the Prior Plan transferred directly to the Trustees, and the Trustees accepted,
the assets and liabilities representing the full account balance (both vested
and unvested) as of the Effective Date of any participant or former participant
in the Prior Plan who upon the Effective Date becomes an Employee of Host
Marriott Corporation. Additionally, if the account balance of any such
participant was valued at zero on the Effective Date, such zero account balance
was deemed to have been transferred.
(b) BEGINNING ACCOUNT BALANCES AFTER TRANSFER. The
amounts transferred from the Prior Plan pursuant to paragraph (a) of this
section shall be held as follows:
(1) All amounts (and any gains or losses
thereon) that were deposited in the Prior Plan as employee contributions shall
be held in the Participant's After-tax Savings Account.
(2) All amounts (and any gains or losses
thereon) that were deposited in the Prior Plan as participant-elected company
contributions shall be held in the Participant's Section 401(k) Contribution
Account.
(3) All amounts (and any gains or losses
thereon) that were deposited in the Prior Plan as Company contributions and
forfeitures shall be held in the Participant's Company Contribution Account.
The Participant's Accounts shall continue to be invested based on the
most recent investment election filed by the Participant under the Prior Plan,
until such time as the Participant files a new election in the manner specified
in Sections 15.1 and 15.2.
6.13 TRANSFERS FROM OTHER QUALIFIED PLANS.
(a) MANNER OF TRANSFER. A Participant who has had distributed
to him his entire interest in a plan meeting the requirements of Section 401(a)
of the Code (the "Other Plan") may, in accordance with the procedures approved
by the Committee, transfer the distribution received from the Other Plan to the
Trustees, provided the following conditions are met:
(1) The transfer occurs on or before the
sixtieth (60th) day following the Employee's receipt of the distribution from
the Other Plan;
(2) The distribution from the Other Plan
qualifies as an "eligible rollover distribution" (within the meaning of Section
402(a)(5)(E)(i) of the Code); and
(3) The amount transferred is equal to any
portion of the distribution the Employee received from the Other Plan, less the
amount, if any, considered employee contributions (as defined in Section
402(a)(5)(E)(ii) of the Code) in accordance with Section 402(a)(5)(B) of the
Code.
Notwithstanding the foregoing, if a Participant transferred an "eligible
rollover distribution" from another plan meeting the requirements of Section
401(a) of the Code to an individual retirement account ("IRA") (as defined in
Section 408 of the Code) to which the Participant has made no contributions
other than rollover contributions, the Participant may transfer any amount from
the IRA to this Plan; provided,
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<PAGE>
however, that such rollover amount must be deposited with the Trustees on or
before the sixtieth (60th) day following the Employee's receipt of the
distribution from the IRA.
(b) GOVERNING PROVISIONS. The Committee shall develop such
procedures, and may require such information from an Employee desiring to make
such a transfer, as it deems necessary to determine that the proposed transfer
will meet the requirements of this Section 6.13 and will not jeopardize the tax
qualified status of the Plan. All amounts transferred pursuant to this Section
6.13 shall be deposited in the Trust Fund and shall be credited to a rollover
account. The rollover account shall be one hundred percent (100%) vested in the
Participant, shall share in income allocations in accordance with Section 6.8
(but shall not share in Company contributions or forfeiture allocations) and
shall be invested in accordance with the provisions of Article XV. Distributions
of amounts so transferred shall be subject to the same restrictions as those
stated in Section 5.11.
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<PAGE>
ARTICLE VII
VESTING
7.1 VESTING OF AFTER-TAX SAVINGS ACCOUNT.
The interest of each Participant in the assets of the Trust Fund
derived from the Participant's After-tax Savings (and the earnings thereon
computed in accordance with Article VI) shall vest to the extent of one hundred
percent (100%) in such Participant as soon as such After-tax Savings are
withheld from his Compensation pursuant to Article IV and as soon as the
earnings on such After-tax Savings are credited pursuant to Article VI.
7.2 VESTING OF SECTION 401(K) CONTRIBUTION ACCOUNT.
The interest of each Participant in the assets of the Trust Fund
derived from Section 401(k) Contributions (and the earnings thereon computed in
accordance with Article VI) shall vest to the extent of one hundred percent
(100%) in such Participant as soon as such Section 401(k) Contributions are made
on his behalf by the Company pursuant to Article V and as soon as the earnings
thereon are credited pursuant to Article VI.
7.3 VESTING OF COMPANY CONTRIBUTION ACCOUNT.
(a) VESTING SCHEDULE. The interest of Participants or
Former Participants in their Company Contribution Accounts shall vest as
follows:
<TABLE>
<CAPTION>
PERIOD OF SERVICE VESTED PERCENT OF COMPANY
CONTRIBUTION ACCOUNT
<S> <C>
Less than 3 years 0%
At least 3 years but less than 4 years 20%
At least 4 years but not less than 5 years 40%
At least 5 years but not less than 6 years 60%
At least 6 years but not less than 7 years 80%
7 years of more 100%
</TABLE>
(b) SERVICE TO BE CREDITED UPON RESUMPTION OF EMPLOYMENT. Upon
an Employee's resumption of employment, all Service with the Company (including
Service before and after such reemployment) shall be counted for purposes of
determining his vested interest in his Company Contribution Account, if any.
(c) DEFINITION OF "SERVICE". For purposes of determining his
vested interest in his Company Contribution Account, "Service" means the
aggregate of the period or periods during which the Participant or Former
Participant was an Employee with the Company, a Predecessor Company and any
other employer that is required to be aggregated with the Company under Section
414 of the Code. Such Service shall include the period following a Separation
Date described in Section 1.65(a) if a Participant's or Former Participant's
next Employment Date occurs within the 12-consecutive month period following
such Separation Date; provided, however, that if a Participant or Former
Participant is otherwise absent from employment, the period following such
Separation Date shall be counted as
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<PAGE>
Service only if the Participant's or Former Participant's next Employment Date
occurs within the 12-consecutive month period following the commencement of such
other absence from employment. "Service" shall also include any periods of
absence from active employment followed by a Separation Date, and periods of
approved leaves of absence granted in accordance with a nondiscriminatory leave
policy; provided, however, that if the Participant or Former Participant does
not resume status as an Employee of the Company at the time agreed upon by the
Company and the Participant, the Participant shall be deemed to be discharged at
such time.
(d) AUTOMATIC 100% VESTING. Notwithstanding paragraph (a) of
this section, all of the Participant's or Former Participant's interest in the
Trust Fund shall vest in such Participant to the extent of one hundred percent
(100%) upon the earlier of the following:
(1) Death;
(2) Permanent Disability; or
(3) Attainment of age 55 for Class B
Participants and age 45 for Class A Participants.
Such vesting in the event of Permanent Disability is intended to
provide "accident or health insurance" as described in Section 105(a) of the
Code, in providing benefits for the permanent loss or loss of use of a member or
function of the body, or the permanent disfigurement of Participants, to the
extent that Permanent Disability results.
7.4 VESTING OF AMOUNTS TRANSFERRED PURSUANT TO SECTION 6.12.
A Participant's vested interest in any amounts transferred to this Plan
pursuant to Section 6.12 is determined as follows:
(a) Any amount held in this Plan pursuant to Section
6.12(b)(1) shall at all times be one hundred percent (100%) vested in the
Participant.
(b) Any amount held in this Plan pursuant to Section
6.12(b)(2) shall at all times be one hundred percent (100%) vested in the
Participant.
(c) For purposes of determining a Participant's vested
interest in his Company Contribution Account held in this Plan pursuant to
Section 6.12(b)(3), employment with a Predecessor Company is deemed to be
employment with the Company and an individual's separation date and next
employment date under the Prior Plan are deemed to be the Employer's Separation
Date and next Employment Date under this Plan.
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ARTICLE VIII
TERMINATION AND DISTRIBUTION UPON
RETIREMENT, DEATH OR DISABILITY
8.1 RETIREMENT.
Upon retirement, a Participant shall be eligible to receive the balance
in his Account. Retirement for purposes of this Plan may be elected by any
Participant upon attaining the earliest of the following age:
Class A Participants - Age 45
Class B Participants - Age 55
Any age after two hundred forty (240)
Months of Credit with the Company
8.2 DEATH.
The death of any Participant or Former Participant shall be reported
promptly to the Plan Administrator by the Company. The death of a Terminated
Participant or a Retired Participant shall be reported to the Plan Administrator
by dependents or beneficiaries who are directly concerned. Upon the
Participant's death, the Participant's Beneficiary shall be entitled to payment
of the balance of the Participant's Account in the manner provided by the Plan.
8.3 DISABILITY.
The termination of a Participant's employment with the Company by
reason of Permanent Disability shall be promptly certified to the Plan
Administrator by the Company. Upon such termination of employment, the
Participant shall be eligible to receive the balance in his Account.
8.4 VALUATION AND ADJUSTMENT OF ACCOUNT BALANCES.
The Account balance of a Retired, Deceased or Disabled Participant
shall be valued as of the Valuation Date coinciding with or immediately
preceding the date distribution is made to such Participant or Beneficiary, as
applicable. All such Account balances shall be adjusted as of such Valuation
Date to reflect such Participant's advance pro rata share of the current year
Company Contribution. Such advance allocation of current year Company
Contribution shall be an amount equal to the product of (a) the average weekly
Company Contribution rate calculated based on the quarter Company Contribution
forecast for the quarter of the Fiscal Year prior to the Distribution Date,
multiplied by (b) the number of full weeks during the current Fiscal Year
coinciding with or immediately preceding the date the distribution is made.
There will be no pro rata credit of forfeitures for a partial Fiscal Year.
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8.5 AVAILABLE PAYMENT OPTIONS.
A Retired, Deceased or Disabled Participant's Account balance shall be
distributed by the Trustees under such of the following payment options as the
Participant (or, if a Deceased Participant shall have failed to select a payment
option, as his Beneficiary) shall determine:
(a) Lump sum cash payment;
(b) Purchase of term annuity (such annuity shall be a
Qualified Joint and Survivor Annuity for a married Participant, unless waived
pursuant to Section 8.6(b));
(c) Deferred payments in installments in any amount from time
to time or over a period of time specified by the Participant, including
installment payments in substantially equal amounts; or
(d) Variable payment accounts with regulated investment
companies.
8.6 QUALIFIED JOINT AND SURVIVOR ANNUITY.
(a) CASH PAYMENTS IN LIEU OF A QUALIFIED JOINT AND SURVIVOR
ANNUITY. A married Participant who has selected a Qualified Joint and Survivor
Annuity (hereinafter "QJSA"), pursuant to Section 8.5(b), may elect instead that
the present value of such annuity be distributed in cash if:
(1) The value of the QJSA does not (and did not
at the time of any prior distribution or withdrawal) exceed Three Thousand Five
Hundred Dollars ($3,500); provided such distribution shall not be made after the
Annuity Starting Date unless the Participant and his Spouse (or the Surviving
Spouse, if the Participant has died) consent in writing to such distribution; or
(2) The present value of the QJSA exceeds (or,
at the time of any prior distribution or withdrawal, exceeded) Three Thousand
Five Hundred Dollars ($3,500), and the Participant and his Spouse (or the
Surviving Spouse, if the Participant has died) consent in writing to the
distribution.
(b) WAIVER OF QUALIFIED JOINT AND SURVIVOR ANNUITY. A married
Participant who has selected a QJSA, pursuant to Section 8.5(b), may elect to
waive the QJSA payment option. Such waiver must be made within the ninety (90)
day period ending on the Participant's Annuity Starting Date with respect to
such benefit. A Participant may subsequently revoke the election to waive the
QJSA and elect again to waive the QJSA at any time and any number of times prior
such Annuity Starting Date. All such elections and revocations shall be in
writing. Any election to waive the QJSA must:
(1) Specify the alternate payment option
elected;
(2) Be accompanied by the designation of a
specific nonspouse Beneficiary (including any class of beneficiaries or any
contingent beneficiaries) who will receive the benefit upon the Participant's
death, if applicable; and
(3) Be accompanied by Spousal Consent, to the
extent required under this Section.
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Notwithstanding the above, no consent under this paragraph (b) shall be valid
unless, within thirty (30) days and no more than ninety (90) days before the
Annuity Starting Date, the Plan Administrator has provided the Participant with
the written explanation described in paragraph (c) of this section.
(c) WRITTEN EXPLANATION. The written explanation shall
contain the following:
(1) The terms and conditions of the QJSA;
(2) The Participant's right to make, and the
effect of, an election to waive the QJSA payment option;
(3) The rights of the Participant's Spouse; and
(4) The right to make, and the effect of, a
revocation of a previous election to waive the QJSA.
(d) RESULT OF EFFECTIVE WAIVER. In the event of an effective
waiver of the QJSA payment option, in accordance with the terms of paragraph (b)
of this section, the amount payable to the married Retired or Disabled
Participant (or to the Beneficiary of a Deceased Participant) shall be
distributed by the Trustees or their delegate under such of the alternate
payment options set forth in Section 8.5 as the Participant or his legal
representative may select.
(e) SPOUSAL CONSENT. A Spousal Consent shall be in one
of the following forms:
(1) A "specific consent" shall specify the
non-spouse Beneficiary, if any, and the alternate payment option elected.
(2) A "general consent" shall allow the
Participant, without further Spousal Consent, to change the Beneficiary
designation and to elect any alternate payment option, if such general consent
indicates that the Spouse has the right to limit his consent to a specific
Beneficiary and alternate payment option and that such Spouse voluntarily elects
to relinquish such right.
(3) A "limited general consent" shall allow the
Participant, without further Spousal Consent, to change the Beneficiary
designation to any person or persons (natural or otherwise) among those set
forth in writing and to elect one or among a list of payment options set forth
in writing, or any combination of the above.
Once made, a general consent shall be irrevocable. A specific or limited consent
shall be irrevocable unless the Participant changes his Beneficiary designation
or revokes his election to waive the Qualified Joint and Survivor Annuity; upon
such event, a specific consent and a limited general consent (if the
Participant's subsequent Beneficiary designation or election of a payment option
is not among those options expressly set forth in the limited general consent)
shall be deemed to be revoked.
Notwithstanding the foregoing, Spousal Consent is not required if the
Participant establishes to the satisfaction of the Plan Administrator that such
written consent may not be obtained because there is no Spouse or that the
Spouse cannot be located. In addition, no Spousal Consent is necessary if the
Participant has been legally separated or abandoned within the meaning of local
law and the Participant provides the Plan Administrator with a court order to
that effect, so long as such court order does not
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conflict with a Qualified Domestic Relations Order. If the Spouse is legally
incompetent to consent, the Spouse's legal guardian may consent on his behalf,
even if the legal guardian is a Participant.
8.7 DISTRIBUTIONS UPON MARRIED PARTICIPANT'S DEATH.
If a Participant is married on the date of his death, the full amount
of the Participant's Account balance, adjusted in accordance with Section 8.4,
shall be payable on the death of the Participant to the Participant's Surviving
Spouse, unless the Participant's Surviving Spouse has given Spousal Consent to
the designation of a specific non-spouse Beneficiary (including any class of
beneficiaries or any contingent beneficiaries) who will receive the Account
balance upon the Participant's death.
8.8 GENERAL DISTRIBUTION REQUIREMENTS.
The distributions of benefits to which Participant or Beneficiaries
become entitled to shall be made in accordance with this Section 8.9.
Notwithstanding any provision to the contrary, all Plan distributions shall
comply with the requirements of Section 401(a)(9) of the Code and the
regulations thereunder, including the incidental death benefit distribution
rules of Section 1.401(a)(9)-2 of the Treasury Regulations.
(a) DISTRIBUTIONS TO PARTICIPANTS. The Participant's Account
balance shall be distributed or begin to be distributed no later than the
Participant's Required Beginning Date and may only be distributed over:
(1) A period of years not to exceed the
life-expectancy of the Participant, or the joint life expectancy of the
Participant and the Participant's designated Beneficiary; or
(2) The life of the Participant, or the lives of
the Participant and the Participant's designated Beneficiary.
Life expectancy shall be recalculated annually.
(b) DISTRIBUTIONS TO BENEFICIARY. Notwithstanding any
other provision of this Article VIII, any distribution to a Participant's
Beneficiary must comply with the following requirements:
(1) If the Participant dies after distribution
of his Account balance has begun, then the remaining portion of such Account
balance shall be distributed at least as rapidly as under the method of
distribution being used prior to the Participant's death.
(2) If the Participant dies before receiving any
portion of his Account balance, then distribution of the Participant's entire
Account balance shall be completed by December 31 of the calendar year
containing the fifth (5th) anniversary of the Participant's death unless:
(A) The Beneficiary elects to receive
payments over his life (or over a period not extending beyond his life
expectancy), in which case the first installment must be made by December 31 of
the calendar year immediately following the calendar year in which the
Participant died; or
(B) In the case of a Beneficiary who is
a Surviving Spouse, the Surviving Spouse elects to receive installment payments
as set forth in paragraph (b)(2)(A) of this
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section, in which case the first installment may be deferred until the later of:
December 31 of the calendar year immediately following the calendar year in
which the Participant died, or December 31 of the calendar year in which the
Participant would have attained age 70-1/2.
Such an election shall be made by the earlier of: the date the distribution is
required to be made under paragraph (b)(2) of this section, or December 31 of
the calendar year which contains the fifth (5th) anniversary of the
Participant's death. If the Participant has no Beneficiary, or if the
Beneficiary does not elect a method of distribution, distribution of the entire
Account balance shall be completed by December 31 of the calendar year
containing the fifth (5th) anniversary of the Participant's death.
If the Surviving Spouse dies after the Participant, but before payments to such
Surviving Spouse begin, then the provisions of paragraph (b)(2) of this section,
with the exception of paragraph (b)(2)(B) of this section, shall be applied as
if the Spouse were the Participant.
(c) COMMENCEMENT OF DISTRIBUTION. Distribution of a
Participant's Account balance shall be made or commence no later than 60 days
after the close of the Plan Year in which occurs the latest of:
(1) The date on which the Participant attains
age 62;
(2) The tenth anniversary of the year in which
the Participant commenced participation in the Plan; or
(3) The date on which the Participant terminates
employment with the Company.
Notwithstanding the preceding sentence, no payment will be made under the Plan
until the Participant files a written claim for such payment, unless otherwise
required by the Plan.
8.10 FORM OF PAYMENT.
Distribution may be in cash or employer securities, except that any
distribution of employer securities shall be limited to the amount of such
securities credited to the Participant's account under the Host Marriott
Services Stock Fund.
8.11 MANDATORY CASH-OUT OF SMALL ACCOUNTS.
Notwithstanding any other provision of this Article VIII, if the total
value of the Participant's Account does not (and did not at the time of any
other distribution or withdrawal) exceed Three Thousand Five Hundred Dollars
($3,500), the Plan Administrator shall direct the Trustee to distribute as soon
as practicable the full amount thereof to the Participant, his legal
representative or Beneficiary to the extent permitted by Section 411(a)(11) of
the Code and Section 203(e) of ERISA, and subject to Section 5.11.
8.12 ACCOUNT BALANCE.
For purposes of this Article VIII, Account balance shall include any
rollover account balance.
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8.13 SPECIAL RULE FOR ROLLOVERS OUT OF THE PLAN.
Notwithstanding any provision of the Plan to the contrary that would
otherwise limit the election of a Distributee under this Article VIII, a
Distributee may elect, at the time and in the manner prescribed by the Plan
Administrator, to have any portion of an Eligible Rollover Distribution paid
directly to an Eligible Retirement Plan specified by the Distributee in a direct
rollover. Any portion of an Eligible Rollover Distribution that is not paid
directly to an Eligible Retirement Plan shall be subject to applicable income
tax withholding. For purposes of this Section 8.13, a "direct rollover" is a
payment by the Plan to the Eligible Retirement Plan specified by the
Distributee.
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ARTICLE IX
TERMINATION AND DISTRIBUTION UPON
TERMINATION OF EMPLOYMENT OTHER THAN
FOR RETIREMENT, DEATH OR DISABILITY
9.1 TERMINATED PARTICIPANT.
Upon a Participant's or Former Participant's termination of employment
with the Company for any reason other than retirement, death or Permanent
Disability, the Company shall promptly notify the Plan Administrator in writing
of such fact and such Participant shall become (a) a Terminated Participant if
such Participant has not attained retirement age (as provided in Section 8.1),
or (b) a Retired Participant if such Participant has attained retirement age (as
provided in Section 8.1). In the event a Terminated Participant has attained
retirement age, the provisions of Article VIII shall thereafter apply to such
Participant.
9.2 DISTRIBUTION OF AFTER-TAX SAVINGS AND SECTION 401(K)
CONTRIBUTIONS.
The balance of a Terminated Participant's After-tax Savings Account and
Section 401(k) Contribution Account (as determined in accordance with Articles
IV and V) shall be valued as of the Valuation Date coinciding with or
immediately preceding the date distribution is made to the Participant, and
shall be subject to distribution in the same manner as provided in Sections 8.5,
8.7 and 8.9(c) (and in the same forms as provided in Section 8.10) without
discrimination in favor of or against any class.
9.3 DISTRIBUTION OF VESTED COMPANY CONTRIBUTION ACCOUNT.
(a) GOVERNING RULE. The vested interest of the Terminated
Participant in the Terminated Participant's Company Contribution Account (as
determined in accordance with Article VII) shall be valued as of the Valuation
Date coinciding with or immediately preceding the date distribution is made to
the Participant, and shall be subject to distribution in the same manner as
provided in Section 8.5 and 8.9(c) (and in the same forms as provided in Section
8.10) without discrimination in favor of or against any class. A Terminated
Participant may elect to defer distribution of his vested interest until the
earliest of the date such Terminated Participant attains age 62, dies, or
suffers a Permanent Disability; provided, however, that the Terminated
Participant may elect to commence distribution in any of the forms of payment
available under Section 8.5 as of any earlier date after the date on which he
becomes a Terminated Participant. There will be no pro rata credit of the
Company Contribution or forfeitures for the partial Fiscal Year in valuing a
Terminated Participant's Company Contribution Account.
(b) SPECIAL ADJUSTMENTS. In addition to the foregoing, if a
Participant ceases to be an Employee as a result of the sale of a unit (the
"Participant's Unit") of Marriott Family Restaurants Inc. in which a Participant
is employed, then the Account balance of such Participant ("Marriott Family
Restaurants Terminated Participant") shall be adjusted as of the end of the week
(the "Marriott Family Restaurants Unit Final Week") immediately preceding or
coinciding with the closing date of the sale of the Participant's Unit to
reflect the Marriott Family Restaurants Terminated Participant's advance pro
rata share of the Company Contributions for a Fiscal Year by using the following
methodology. A Marriott Family Restaurants Terminated Participant's advance pro
rata share of the Company Contribution shall mean the Marriott Family
Restaurants Terminated Participant's pro rata share (as determined in the manner
provided in Section 6.4) as of an amount equal to the product of (1) the most
Current Fiscal Year
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Company Contribution Forecast (as defined below), and (2) a fraction, the
numerator of which is the number of full weeks during the Fiscal Year up to and
including he Marriott Family Restaurants Unit Final Week and the denominator of
which shall be the number of weeks in said Fiscal Year; provided, however, there
will be no pro rata credit of forfeitures for a partial Fiscal Year allocated to
Marriott Family Restaurants Terminated Participants. For purposes of the
foregoing, adjustments shall be made only to the accounts of those Participants
(1) who are Employees working in or affiliated with Marriott Family Restaurants,
Inc. on the day before the closing date ("Closing Date") of the sale of the
Participant's Unit and (2) who cease to be Employees as of the Closing Date.
The Current Fiscal Year Company Contribution Forecast shall mean the most
current report prepared as of the Marriott Family Restaurants Unit Final Week by
the reports section of the corporate accounting department of Host Marriott
Services Corporation, using the same methodology as that used in preparing the
regular quarterly forecast reports to the Plan Administrator.
9.4 MANDATORY CASH-OUT OF SMALL ACCOUNTS.
Notwithstanding any other provision in this Article IX, if the total
value of the Terminated Participant's Account does not (and did not at the time
of any prior distribution or withdrawal) exceed Three Thousand Five Hundred
Dollars ($3,500), the Plan Administrator shall direct the Trustee to distribute
as soon as practicable the full amount thereof to the Terminated Participant or
his legal representative or Beneficiary to the extent permitted by Section
411(a)(11) of the Code and Section 203(e) of ERISA, and subject to Section 5.11.
9.5 UNVESTED COMPANY CONTRIBUTIONS.
(a) FORFEITURE. Any portion of a Terminated Participant's
Company Contribution Account, which has not vested at the time the Participant's
employment is terminated will be forfeited. Such forfeiture shall be valued as
of the Valuation Date immediately preceding the date such Participant terminates
employment.
(b) RESTORATION OF FORFEITURE.
(1) GENERAL RULE. Subject to the requirements
of paragraph (c) of this section, a Terminated Participant (described in
paragraph (a) of this section) who resumes status as an Employee of the Company
before incurring five (5) consecutive One-Year Breaks in Service and who is
readmitted to the Plan in accordance with Section 2.2 shall have his forfeited
amounts restored and added to his new Company Contribution Account (where it
will vest in accordance with Article VII).
Notwithstanding the above, if a Participant's termination of employment is due
to a "maternity or paternity leave," then the number "six (6)" shall be
substituted for the number "five (5)" in the preceding sentence. For purposes of
this paragraph (b), "maternity or paternity leave" means termination of
employment or absence from work due to: (i) the pregnancy of the Participant,
(ii) the birth of a child of the Participant, (iii) the placement of a child in
connection with the adoption of the child by a Participant, or (iv) the caring
for a Participant's child during the period immediately following the child's
birth or placement for adoption. The Plan Administrator shall determine, under
rules of uniform application and based on information provided to the Plan
Administrator by the Participant, whether or not the Participant's termination
of employment or absence from work is due to "maternity or paternity leave."
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(2) SPECIAL RULE FOR AMOUNTS TRANSFERRED
PURSUANT TO SECTION 6.12. Subject to the requirements of paragraph (c) of this
section, a person who forfeited a portion of his company contribution account
under the Prior Plan and whose vested account balance (minus such forfeitures)
is held by the Marriott International, Inc. Employees' Profit Sharing,
Retirement and Savings Plan and Trust shall, upon becoming an Employee of the
Company before incurring the Breaks in Service described in paragraph (b)(1) of
this section and upon being admitted to the Plan in accordance with Section 2.2,
have his forfeited amounts restored to his new Company Contribution Account
(where they will vest in accordance with Article VII) to the extent that such
forfeited amounts have not been restored under the Marriott International, Inc.
Employees' Profit Sharing, Retirement and Savings Plan and Trust.
(c) DISTRIBUTION PRIOR TO REEMPLOYMENT. A Terminated
Participant described in paragraph (b) of this section who previously received a
distribution will have his forfeitures restored only if he repays, at any time
prior to the end of a period of five (5) consecutive One Year Breaks in Service
commencing on the date such distribution is made:
(1) The entire amount of distribution, if any,
previously received from the Terminated Participant's After-tax Savings Account
under Section 9.2;
(2) The entire amount of distribution, if any,
previously received from the Terminated Participant's Section 401(k)
Contribution Account under Section 9.2; and
(3) The entire amount of distribution, if any,
previously received from the Terminated Participant's Vested Company
Contribution Account under Section 9.3.
Any repayment made by a Participant pursuant to this paragraph (c) shall be made
by means of a single lump sum cash payment.
9.6 ACCOUNT BALANCE.
For purposes of this Article IX, Account balance shall include any
rollover account balance.
9.7 SPECIAL RULE FOR ROLLOVERS OUT OF THE PLAN.
The special rule provided in Section 8.13 shall apply to distributions
under this Article IX.
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ARTICLE X
DISTRIBUTION DURING CONTINUED EMPLOYMENT
10.1 WITHDRAWAL OF AFTER-TAX SAVINGS.
(a) WITHDRAWAL OF ADDITIONAL AFTER-TAX SAVINGS. A
Participant or Former Participant may withdraw his Additional After-tax Savings
at any time and continue to participate in the Plan after such withdrawal.
(b) WITHDRAWAL OF BASIC AFTER-TAX SAVINGS. A Participant or
Former Participant may withdraw his Basic After-tax Savings at any time.
However, upon withdrawing such Basic After-tax Savings, the Participant shall
cease to participate in the Plan and shall in all respects become a Former
Participant, except as otherwise provided in Section 10.5 and subject to the
provisions of Section 2.4.
(c) VALUATION OF AFTER-TAX SAVINGS ACCOUNT. The After-tax
Savings Account of the Participant or Former Participant shall be valued as of
the Valuation Date coinciding with or immediately preceding the date
distribution is made to the Participant or Former Participant.
(d) FORM OF PAYMENT. Withdrawals of After-tax Savings under
this Section 10.1 (including the withdrawal of any earnings thereon) shall be
distributed in whole or in part as a single lump sum cash payment.
(e) TAXATION OF WITHDRAWAL. Any withdrawal of After-tax
Savings shall be nontaxable to the Participant or Former Participant provided
that such withdrawn amounts are less than the amount of all After-tax Savings
deposited by the Participant into the Trust Fund before January 1, 1987. After
the amount of After-tax Savings equals the amount of all After-tax Savings
deposited by the Participant into the Trust Fund before January 1, 1987 and not
previously distributed, a portion of all future withdrawals shall be treated as
consisting in part of taxable earnings, determined in accordance with Section
72(e)(8) of the Code. The nontaxable percentage of such distributions shall be a
fraction (a) the numerator of which equals the amount of After-tax Savings held
in the Participant's Account, and (b) the denominator of which equals the
balance in the Participant's After-tax Savings Account.
10.2 WITHDRAWAL OF SECTION 401(K) CONTRIBUTION.
Distribution of a Participant's or Former Participant's Section 401(k)
Contribution Account (and the earnings thereon) is subject to Section 5.11 and
the limitations of Section 401(k) of the Code.
10.3 WITHDRAWAL OF VESTED COMPANY CONTRIBUTION ACCOUNT.
A Participant or Former Participant may not withdraw his vested Company
contributions (or any earnings thereon) during his continued employment, except
as provided in Section 10.5.
10.4 READMISSION OF FORMER PARTICIPANT TO PLAN.
A Former Participant who terminates participation in the Plan during
continued employment shall be entitled to readmission thereto as provided in
Section 2.4.
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10.5 DISTRIBUTIONS UPON ATTAINMENT OF AGE 59-1/2.
Upon attainment of age 59-1/2, a Participant or Former Participant may
elect to withdraw the entire balance of his After-tax Savings Account, Section
401(k) Contribution Account and vested Company Contribution Account and continue
participation in the Plan, provided that he has been a Participant for at least
sixty (60) months. In the event the Participant has not completed sixty (60)
months of participation in the Plan, he may elect to withdraw the entire balance
of his After-tax Savings Account, Section 401(k) Contribution Account and vested
Company Contribution Account; however, such Participant must thereupon terminate
participation in the Plan and shall in all other respects be treated as a Former
Participant. Application for withdrawal under this Section 10.5 by Participants
or Former Participants shall be made in writing and shall be made in accordance
with the distribution and the spousal consent requirements set forth in Article
VIII.
10.6 ACCOUNT BALANCE.
For purposes of this Article X, Account balance shall include any
rollover account balance.
10.7 HARDSHIP WITHDRAWALS.
(a) TERMS OF HARDSHIP WITHDRAWALS. Any Participant who
sustains a Hardship may submit a request to the Plan Administrator for a
distribution from the Plan as may be necessary to meet such Hardship. The Plan
Administrator shall have the power in its sole discretion to approve or
disapprove (in whole or in part) any such request, based on the standards set
forth in this Section 10.7. Any distribution to a Participant pursuant to this
Section 10.7 shall not exceed the amount required to meet the Hardship, and
distribution shall be made only if participant represents in writing that such
amount is not reasonably available from other resources of the Participant as
described in Treas. Reg. Section 1.401(k)-1(d)(2)(ii)(B). Such distributions
shall be limited to the sum of (1) amounts in the Participant's Section 401(k)
Contribution Account attributable to amounts accrued under the Prior Plan on or
before December 31, 1988 (along with earnings attributable thereto), plus (2)
amounts in the Participant's Section 401(k) Contribution Account accrued after
December 31, 1988 (exclusive of any earnings).
(b) RESTRICTIONS. Participants receiving Hardship
distribution under this Section 10.7 shall be subject to the following
restrictions:
(1) The Participant's limit under Section 402(g)
of the Code on Section 401(k) Contributions for the Fiscal Year immediately
following the Fiscal Year in which a distribution is made to the Participant
shall be reduced by the amount of Section 401(k) Contributions for the Fiscal
Year in which such distribution was made; and
(2) The Participant shall be prohibited for
twelve (12) months from the date of a distribution under this Section 10.7 from
electing any Section 401(k) Contributions under Article V or making
contributions of Basic or Additional After-tax Savings under Article IV of this
Plan. The Participant shall likewise be prohibited for the same twelve (12)
month period from making employee contributions under any deferred compensation
plan of the Company, in accordance with written guidelines set forth by the
Committee.
(c) SPOUSAL CONSENT. If the Participant is married at he
requests a Hardship withdrawal, disbursement of the amount to be withdrawn may
not be made unless such Participant's
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Spouse consents in writing to the withdrawal. Such consent shall be obtained no
earlier than the beginning of the 90 day period that ends on the date on which
the withdrawal is to be made. The consent must be in writing, must acknowledge
the effect of the withdrawal, and must be witnessed by a plan representative or
notary public. Notwithstanding the foregoing, if the Participant establishes to
the satisfaction of the Plan Administrator that such written consent may not be
obtained because there is no Spouse or that the Spouse cannot be located, then
no spousal consent is required. In addition, no spousal consent is necessary if
the Participant has been legally separated or abandoned within the meaning of
local law and the Participant provides the Plan Administrator with a court order
to that effect, so long as such court order does not conflict with a Qualified
Domestic Relations Order. If the Spouse is legally incompetent to consent, the
Spouse's legal guardian may consent on his behalf, even if the legal guardian is
a Participant; and
(d) COMMITTEE GUIDELINES AND DETERMINATION. The Committee
shall set forth written guidelines for the Administrator to make its
determination under this Section 10.7 in accordance with the above standards
(and the definition of Hardship) in a uniform and nondiscriminatory manner. The
Committee shall make its determination under this Section 10.7 in accordance
with the above standards (and the definition of Hardship) and in a uniform and
nondiscriminatory manner.
10.8 SPECIAL RULE FOR ROLLOVERS OUT OF THE PLAN.
Unless otherwise provided by a provision of the Code, the rule provided
in Section 8.13 shall apply to distributions under this Article X.
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ARTICLE XI
LOANS TO PARTICIPANTS
11.1 GENERAL PROVISIONS.
The Committee shall direct the Trustees to make a loan to Participants
who are "parties in interest" (as defined in Section 3(14) of ERISA) and who
have been Participants for at least twelve (12) months (and to beneficiaries of
such Participants as designated in written rules set forth by the Committee) as
provided in this Section 11.1. Such loan shall be in an amount that does not
exceed the amount set forth in Section 11.2. Loans shall be made on written
application to the Plan Administrator and on such terms and conditions as set
forth in this Article XI, and in accordance with the rules and procedures
established by the Committee in a written resolution. All such rules and
procedures shall be uniform and nondiscriminatory and shall relate to such
matters as:
(a) Procedures for applying for loans;
(b) The basis on which loans will be approved or denied;
(c) Limitations on the types of loans offered;
(d) The procedure for determining a reasonable rate of
interest;
(e) The types of collateral which may secure a loan;
(f) The events constituting default;
(g) Minimum loan amounts;
(h) Frequency of loans; and
(i) Any other appropriate matters consistent with this
Article XI.
11.2 MAXIMUM LOAN AMOUNT.
A loan to a Participant (when added to the outstanding balance of all
other loans made to the Participant under this Plan) shall not be in an amount
that exceeds the Allocable Portion of the total balance in the Participant's
After-tax Savings Account and Section 401(k) Contribution Account (valued as of
the Valuation Date coinciding with or immediately preceding the date of such
loan). The Allocable Portion shall be adjusted accordingly in the event the
maximum permissible loan amount under Section 72(p) of the Code (or any
successor provision) is decreased.
11.3 REPAYMENT PERIOD.
The term of a loan made under this Article XI shall be fixed by the
Committee, but in no event shall such term exceed sixty (60) months.
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11.4 TERMS AND CONDITIONS.
Loans made to Participants shall be made in accordance with the
following terms and conditions:
(a) The loans shall be secured by the Participant's interest
in the Plan, plus by the Participant's promissory note for the amount of the
loan (including interest) payable to the order of the Trustees. The Plan
Administrator may also require such other collateral which in a normal
commercial setting would be considered adequate for the full protection of the
Trust Fund;
(b) A reasonable rate of interest shall be determined by the
Committee at the time the loan is made and shall be at a rate that is
commensurate with the interest rate charge by persons in the business of lending
money for loans which would be made under similar circumstances;
(c) Payment of principal and interest shall be made through
appropriate payroll deductions from the Compensation otherwise payable to the
Participant. Such payroll deductions shall continue until the full outstanding
balance of any loans is repaid, regardless of whether the borrower remains a
Participant in the Plan;
(d) The loan shall be made to the Participant from his Account
and shall be treated as an investment of assets of such Account. All interest
and all losses attributable to loans shall be charged to the borrowing
Participant's Account, and all loan payments shall be credited to the
Participant's Account;
(e) If the Participant is married at the time for disbursement
of the loan proceeds, disbursement may not be made unless such Participant's
Spouse consents in writing to the use of the Account balance as security for the
loan. Such consent shall be obtained no earlier than the beginning of the 90 day
period that ends on the date on which the loan is to be so secured. The consent
must be in writing, must acknowledge the effect of the loan, and must be
witnessed by a plan representative or notary public. Such consent shall
thereafter be binding with respect to the consenting Spouse or any subsequent
Spouse with respect to that loan. A new consent shall be required if the Account
balance is used for renegotiation, extension, renewal, or other revision of the
loan. Notwithstanding the foregoing, if the Participant establishes to the
satisfaction of the Plan Administrator that such written consent may not be
obtained because there is no Spouse or that the Spouse cannot be located, then
no spousal consent is required. In addition, no spousal consent is necessary if
the Participant has been legally separated or abandoned within the meaning of
local law and the Participant provides the Plan Administrator with a court order
to that effect, so long as such court order does not conflict with a Qualified
Domestic Relations Order. If the Spouse is legally incompetent to consent, the
Spouse's legal guardian may consent on his behalf, even if the legal guardian is
a Participant; and
(f) The loan shall not be used as a means of distributing
benefits before they otherwise become due.
11.5 NONDISCRIMINATION.
In making loans under this Article XI, the Committee shall not
discriminate in favor of or against any Participant or group of Participant.
Accordingly, loans shall be available to all Participants on a reasonably
equivalent basis and shall not be made to Highly-Compensated Employees of the
Company in an amount greater than the amount made available to other
Participants.
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11.6 DECISION OF THE PLAN ADMINISTRATOR.
The Plan Administrator's decision to grant or deny a loan under this
Article XI shall be final.
11.7 OFFSET OF ACCOUNT BALANCE.
Notwithstanding anything to the contrary contained elsewhere in the
Plan, in determining the amount of any distribution made in accordance with
Article VIII or Article IX, the amount of any security interest held by the Plan
by reason of any loan made against the Participant's Account under this Article
XI, including accrued interest, shall be collected by the Plan Administrator
from any amounts standing to the credit of the Participant in the Plan in
satisfaction of the loan before making any payments to the Participant or to the
Participant's Beneficiary.
11.8 DEFAULT.
In the event a Participant defaults on the repayment of a loan (under
uniform and nondiscriminatory written standards adopted by the Committee as to
what constitutes default), the Trustees may treat the loan as a distribution and
pay the principal and interest owing under the loan from the Participant's
After-tax Savings Account in the following order of priority:
(a) Current year After-tax Savings;
(b) Prior years' After-tax Savings;
(c) Earnings on prior years' After-tax Savings; and
(d) Earnings on current year After-tax Savings.
In the event the Participant's After-tax Savings Account is insufficient to
repay the full amount of principal and interest owing, the Plan Administrator,
in its sole discretion, may treat the unpaid balance as a distribution from the
vested portion of the Participant's Company Contribution Account.
In the event the Participant's After-tax Savings Account and the vested
portion of the Participant's Company Contribution Account are insufficient to
repay the full amount of principal and interest owing, a determination shall be
made whether the Participant qualifies for a Hardship withdrawal under the
provisions of Section 10.7, and, if so, a distribution shall be made in
accordance therewith. If the Participant fails to qualify for a Hardship
distribution, the Plan Administrator shall take such other collection action as
it deems fit, in accordance with written standards adopted by the Committee;
provided, however, that the Plan Administrator shall defer making any
distribution from the Participant's Section 401(k) Contribution Account to repay
any unpaid loan balance until such time as the Participant has become a
Terminated Participant or has attained age 59 1/2, or until an event described
in Section 401(k)(10) of the Code has occurred.
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ARTICLE XII
BENEFICIARIES
12.1 DESIGNATION OF BENEFICIARY.
Each Participant or Alternate Payee may designate, on the forms
provided by the Plan Administrator, one or more Beneficiaries and contingent
Beneficiaries to receive the Plan benefits in the event of the Participant's or
Alternate Payee's death. Notwithstanding the preceding sentence, if the
Participant is married at the time of his death and has not elected a Qualified
Joint and Survivor Annuity, his Account balance shall be payable in full to his
Surviving Spouse, unless he has designated a different beneficiary with the
consent of his Spouse, if any, in accordance with Section 8.6(b).
12.2 MANNER OF DESIGNATION.
Such designation may be delivered, on forms provided by the Plan
Administrator, at the time such Participant commences participation in the Plan,
or thereafter. A beneficiary designation completed by an Alternate Payee may be
delivered at the time the Administrator notifies the Alternate Payee that he is
entitled to Plan benefits under a Qualified Domestic Relations Order, or
thereafter. A Participant or Alternate Payee may designate different
Beneficiaries at any time by delivering a new written designation to the Plan
Administrator. Any such designation shall become effective only upon its receipt
by the Plan Administrator. The last effective designation received by the Plan
Administrator shall supersede all prior designations. A designation of a
Beneficiary shall be effective only if the designated Beneficiary survives the
Participant or Alternate Payee. All designations must be signed by either the
Participant or Alternate Payee, as appropriate.
12.3 ABSENCE OF VALID DESIGNATION OF BENEFICIARY.
Except as provided in Section 8.8, if a Participant or Alternate Payee
fails to designate a Beneficiary, if no designated Beneficiary survives the
Participant or Alternate Payee, or if such designation is for any reason illegal
or ineffective, distribution of benefits otherwise payable under this Plan shall
be made to the Participant's or Alternate Payee's estate.
12.4 BENEFICIARY BOUND BY PLAN PROVISIONS.
Whenever the rights of a Participant or Alternate Payee are stated or
limited in the Plan, the Participant's or Alternate Payee's Beneficiaries shall
be bound thereby.
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ARTICLE XIII
QUALIFIED DOMESTIC RELATIONS ORDERS
13.1 GOVERNING PROVISIONS.
Notwithstanding any other provisions of this Plan, a Participant's
Account may be assigned in whole or in part pursuant to the provisions of a
Qualified Domestic Relations Order (hereinafter "QDRO"). In such case, the
following rules shall apply:
(a) A separate Account shall be established for any Alternate
Payee who has been awarded Plan assets, unless a QDRO obligates the Plan to
distribute, as soon as administratively practicable, all or part of a
Participant's Account to the Alternate Payee. In such cases, a pro rata portion
of the amount payable to the Alternate Payee shall be withdrawn from each Fund
in which the Participant, pursuant to Section 15.1, has invested. This pro rata
withdrawal from each Fund shall be calculated according to the percentage of the
Participant's total Account which the Participant has placed in each Fund. Thus,
for example, if a Participant with an Account of $200,000 has invested 50% in
the Balanced Fund and 50% in the Bond Fund, and a QDRO awards $100,000 to an
Alternate Payee, 50% of the Alternate Payee's award shall be deducted from the
Bond Fund and 50% from the Balanced Fund.
(b) All such payments pursuant to a QDRO shall be subject to
reasonable rules and regulations promulgated by the Committee respecting the
time of payment pursuant to such order and the valuation of the Participant's
Account from which payment is made, provided that all such payments are made in
accordance with such order and Section 414(p) of the Code.
(c) The balance of a Participant's Account subject to any QDRO
shall be reduced by the amount of any payment made pursuant to such order.
An Alternate Payee for whom a separate Account is established pursuant to this
Article XIII shall be entitled to file an election with regard to investment of
that Account in the manner specified by Article XV and subject to the terms of
the QDRO. All such elections shall be subject to the same terms and conditions
as Article XV imposes upon Participant elections, and all such elections shall
be carried out by the Administrator in accordance with Article XV.
Upon the death of an Alternate Payee, the Alternate Payee's
Beneficiaries shall be entitled to payment of benefits in an amount and in the
manner provided by the Plan.
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ARTICLE XIV
TRUST FUND
14.1 RECEIPT OF CONTRIBUTIONS, AFTER-TAX SAVINGS AND TRANSFERS.
The Trustees shall receive the Company contributions, Participants'
After-tax Savings, Section 401(k) Contributions, forfeitures, and transfers from
other trusts pursuant to Sections 6.12 and 6.13, which, together with the income
therefrom, shall constitute the Trust Fund which shall be held, managed, and
administered in trust pursuant to the terms of the Plan for the exclusive
benefit of Participants and their Beneficiaries.
14.2 INVESTMENT OF TRUST FUND.
(a) INVESTMENT VEHICLES. The Trustees shall invest and
reinvest the principal and income of the Trust Fund and keep the Trust Fund
invested in accordance with the investment policy determined pursuant to
paragraph (b) of this section, without distinction between principal and income,
in such securities (including Qualifying Employer Securities to an unlimited
amount acquired or sold in accordance with Section 408(e) of ERISA), in a
contract or contracts issued by an insurance company for the purpose of
providing for the benefits under the Plan or investing the assets of the Plan,
or in such property, real or personal, wherever situated (including Qualifying
Employer Real Property to an unlimited amount acquired or sold in accordance
with Section 408(3) of ERISA), as the Trustees shall deem advisable and as
consistent with the provisions of Sections 16.2, 16.9 and 16.10 and the
provisions of any investment policies established by the Named Fiduciary,
including, but not limited to, common or preferred stock (including stock upon
which call options traded on the Chicago Board Option Exchange or other
organized exchange will be written and subsequently traded); purchase and sale
of puts and calls traded on the Chicago Board Option Exchange or other organized
exchange; personal, corporate and governmental obligations; shares of investment
company stock, trust and participation certificates; leaseholds, mortgages and
other interests in realty; notes and other evidences of indebtedness of
ownership, secured or unsecured; interests in joint ventures, partnerships or
limited partnerships; and shares or interests in real estate investment trusts,
discretionary common trust funds and mutual funds. In making such investments,
the Trustees shall not be restricted to securities or other property of the
character now or hereafter authorized or required by applicable law for trust
investment. Without liability for interest, the Trustees may keep a portion of
the Trust Fund uninvested and may place any uninvested funds in any bank or
banks; provided, however, that the Trustees may place funds in a bank or similar
financial institution which is a Fiduciary hereunder only if the funds bear a
reasonable interest rate, and only if such bank or financial institution is
supervised by the United States or a State. The Trustees may also engage in any
transaction with (1) a common or collective trust fund or pooled investment fund
maintained by a "party-in-interest," within the meaning of Section 3(14) of
ERISA, which is a bank or trust company supervised by a State or Federal Agency,
or (2) a pooled investment fund of an insurance company qualified to do business
in a State, if (i) the transaction is a sale or purchase of an interest in each
fund and (ii) the bank, trust company or insurance company receives not more
than reasonable compensation.
(b) INVESTMENT POLICY. The Named Fiduciary, acting by and
through the Committee, shall establish an investment policy and method
consistent with the objectives of the Plan and the requirements of Title I of
ERISA. Such objectives shall include, those set forth in Article XV with respect
to the Funds. The Committee acting on behalf of the Named Fiduciary shall at
least annually
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review such investment policy and method. In establishing and reviewing such
investment policy and method, the Named Fiduciary shall endeavor to determine
the Plan's short-term and long-term objectives and financial needs, taking into
account the need for liquidity to pay benefits and the need for investment
growth. All actions of the Committee acting on behalf of the Named Fiduciary
taken pursuant to this paragraph (b) and the reasons therefor shall be recorded
and shall be communicated to the Trustees and to the Board of Directors.
14.3 INVESTMENT AUTHORITY.
(a) GENERAL AUTHORITY. In furtherance and not in limitation of
their investment authority, the Trustees shall have full power and authority,
subject to the provisions of any investment policies established by the
Committee on behalf of the Named Fiduciary, to deal with all or any part of the
Trust Fund, including, without limitation, the power and authority to invest,
reinvest and change investments; to acquire any property by purchase,
subscription, lease, or other means; to sell for cash or on credit, convey,
lease for long or short terms, or convert, redeem or exchange, all or any part
of the Trust Fund; to borrow and to pledge as security for such borrowings all
or any part of the Trust Fund; to make loans with or without security; to
improve, repair and develop real property; to enforce, by suit or otherwise, or
to waive their rights on behalf of the Trust Fund, and to defend claims asserted
against them or the Trust Fund; to compromise, adjust and settle any and all
claims against or in favor of them or the Trust Fund; to renew, extend or
foreclose any mortgage or other security; to bid in property on foreclosure; to
take deeds in lieu of foreclosure with or without paying a consideration
therefor; to vote, or give proxies to vote, any stock or other security and to
waive notice of meetings; to oppose, participate in or consent to the
reorganization, merger, consolidation, or readjustment of finances of any
enterprise, to pay assessments and expenses in connection therewith, and to
deposit securities under deposit agreements; to hold investments unregistered or
to register them in their names, as Trustees, or in the name of a nominee; to
open, deposit and withdraw funds in, and maintain bank accounts with savings
banks, commercial banks, savings and loan associations, building loan
associations and other institutions and to manage such accounts as they deem
advisable; to lend securities to a broker-dealer registered under the Securities
Exchange Act of 1934 or to a bank, in accordance with the requirements of ERISA;
to make, execute, acknowledge and deliver any and all instruments that they
shall deem necessary or appropriate to carry out the powers herein granted; and
generally to exercise any and all of the powers of an owner with respect to all
or any part of the Trust Fund. No person dealing with the Trustees shall be
bound to see to the application of any money or property paid or delivered to
the Trustees or to inquire into the validity or propriety of any transaction by
them or on their behalf.
(b) UNDERTAKING TO STOCK EXCHANGES. The Trustees are further
authorized and empowered to enter into such undertakings or agreements with the
New York Stock Exchange or any other national securities exchange on which the
common stock of the Company is listed, under which the Trustees will agree, as
and to the extent necessary to comply with the rules and regulations of any such
national securities exchange, to vote any shares of the common stock of the
Company owned by the Trust Fund in the same proportion as the vote of other
shareholders of the Company on any issue acted upon at any meeting of
shareholders at which a vote is taken either in person or by proxy.
14.4 INDIVIDUALLY DIRECTED ACCOUNTS.
Article XV of this Plan grants each Participant the right to direct the
investment and reinvestment of his (a) Account balance, (b) share of future
allocations of Company contributions (pursuant to Sections 3.1(a) and 3.2), (c)
share of future forfeitures, and (d) future After-tax Savings and Section 401(k)
Contributions, be invested in any of the Funds maintained under the Plan,
provided the
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Participant elects to do so in accordance with Article XV. Such directions
(including default directions) shall be promptly transmitted to the Trustees by
the Committee and shall be completed in the time period prescribed by Article
XV. The Trustees shall have no duty or responsibility to evaluate any investment
decision made by the Participant pursuant to Article XV, including the decision
to retain an investment.
14.5 PAYMENTS FROM TRUST FUND.
The Named Fiduciary, acting by and through the Committee, shall direct
the Trustees to make payments out of the Trust Fund to such persons, in such
manner, in such amounts, and for such purposes as may be required in the
execution of the Plan, and upon any such payment being made the amount thereof
shall no longer constitute a part of the Trust Fund. The Named Fiduciary, the
Committee and the Trustees shall not be responsible in any way for the
application of such payments or for the adequacy of the Trust Fund to meet and
discharge liabilities under the Plan.
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ARTICLE XV
PARTICIPANT'S DIRECTED INVESTMENTS
15.1 ELECTION BY PARTICIPANTS.
Subject to the terms and conditions of this Article XV, each
Participant shall have the right to direct that his (a) Account balance, (b)
share of future allocations of Company contributions (pursuant to Sections
3.1(a) and 3.2), (c) share of future forfeitures, and (d) future After-tax
Savings and Section 401(k) Contributions, be invested, in specified multiples of
ten (10%) percent, in any of the Funds maintained under the Plan, provided the
Participant elects to do so. The Plan Administrator shall carry out the election
in accordance with the provisions of this Article XV. For the purposes of making
elections under this Article XV, the term "Participant" shall include a
Beneficiary, and an Alternate Payee for whom a separate account has been
established in accordance with Article XIII.
15.2 ELECTION RULES.
(a) ELECTION TO BE IN WRITING. A Participant's election to
direct investments shall be in writing, on a form furnished by the Plan
Administrator, or shall be made under such other procedures as specified by the
Plan Administrator. The election shall state the percentage to be transferred to
or from a Fund.
(b) EFFECTIVE DATE OF ELECTION. An election shall become
effective upon the next subsequent Transfer Date (as described in Section 15.3)
occurring within a reasonable time (as determined under procedures specified by
the Plan Administrator) after the receipt of the Participant's election by the
Plan Administrator, unless such election is revoked before such Transfer Date.
(c) REVOCATION OF ELECTION. A Participant may revoke an
election, in whole or in part, any time prior to the Transfer Date. Thereafter,
a revocation shall become effective as of the next ensuing Transfer Date
occurring within a reasonable time (as determined under procedures specified by
the Plan Administrator) after the Plan Administrator's receipt of such
revocation. An election having once become effective must remain in effect for
at least one calendar month.
(d) CHANGE IN ELECTION. Each Participant may elect to change
the Funds (and/or the percentage to be allocated thereto) in which his (1)
Account balance, (2) share of future allocations of Company contributions
(pursuant to Sections 3.1(a) and 3.2), (3) share of future forfeitures, and (4)
future After-tax Savings and Section 401(k) Contributions, are to be invested.
Upon the receipt by the Plan Administrator of a Participant's request for a
change in writing or in some other form authorized by the Plan Administrator,
the election shall be effective as provided in paragraph (b) of this section.
(e) DEFAULT ELECTION. In the event that a Participant does not
make an initial election to direct investments, his (1) Account balance, (2)
share of future allocations of Company contributions (pursuant to Sections
3.1(a) and 3.2), (3) share of future forfeitures, and (4) future After-tax
Savings and Section 401(k) Contributions, shall be invested in the Fund(s)
determined in the sole discretion of the Committee until an election is made
pursuant to this Article XV.
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15.3 TRANSFER DATE.
The Committee on behalf of the Named Fiduciary shall establish one or
more Transfer Dates in each Fiscal Year; provided, however, that such Transfer
Dates shall occur no less frequently than quarter-annually.
15.4 CONFIRMATION.
The Plan Administrator shall provide written confirmation to a
Participant within a reasonable time after an election or revocation is made by
such Participant.
15.5 SUBDIVISION OF ACCOUNTS.
(a) ESTABLISHMENT OF SUBACCOUNTS. The Account of a Participant
who has made an election pursuant to this Article XV shall be subdivided as of
the Transfer Date into a Subaccount corresponding to each of the Funds
maintained under the Plan into which the Participant has made an election to
have his Account invested. Such Participant's Fund Subaccounts shall each have a
balance as of the Transfer Date giving effect to the percentages indicated by
the Participant's election. If a Participant has not made an election as to any
Fund, such Participant's Account shall be placed into the Fund(s) determined
under Section 15.2(e) and the Participant's Fund Subaccount(s) shall have an
aggregate value equal to the Participant's entire Account balance.
(b) ALLOCATION OF AFTER-TAX SAVINGS, SECTION 401(K)
CONTRIBUTIONS, COMPANY CONTRIBUTIONS AND FORFEITURES AMONG SUBACCOUNTS. The
following amounts shall be further allocated among such Participant's Fund
Subaccounts in the appropriate percentages in accordance with the Participant's
election: (l) that portion of any Company contribution (pursuant to Sections
3.1(a) and 3.2) which is allocated pursuant to Section 6.4 to the Company
Contribution Account of a Participant who has made an election; (2) the
Participant's After-tax Savings; (3) the Participant's Section 401(k)
Contributions; and (4) forfeitures allocated under Section 6.9 to the Company
Contribution Account of a Participant.
15.6 INVESTMENT FUNDS.
(a) COMMITTEE'S RESPONSIBILITY FOR FUNDS. The Committee shall
be responsible for designating Funds in the Trust Fund into which Participants
may elect to invest their Accounts as provided in this Article XV. The Plan
Administrator shall provide sufficient information to Participants concerning
the Funds to permit them to make informed investment decisions, or, if
appropriate, provide Participants with directions as to how such information may
be obtained.
(b) INVESTMENT POLICY OF FUNDS. The Committee shall determine
the investment policy of the Funds in accordance with Section 14.2(b); provided
however, that at all times three (3) or more Funds shall be maintained which (l)
shall not invest in Qualifying Employer Securities or Qualifying Employer Real
Property; (2) shall be designed to enable Participants, by choosing among them,
to minimize the risk of large losses in their Accounts; (3) shall be designed to
enable Participants, by combining them, to achieve general risk and return
characteristics in their Accounts as desired by Participants; and (4) shall be
designed to permit Participants to generally minimize the risk to their Accounts
at any level of expected return.
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(c) FUNDS. The Committee shall make available to the
Participants the following Funds:
(1) STABLE VALUE FUND. The assets of the Stable
Value Fund shall be invested in a manner which will emphasize a high level of
stability and preservation of principal over capital appreciation or income.
(2) BOND FUND. The assets of the Bond Fund
shall be invested in a manner which will emphasize relatively high and stable
income over capital appreciation, with a moderate level of risk.
(3) BALANCED FUND. The assets of the Balanced
Fund shall be invested in a manner which will emphasize long-term growth of
capital as well as providing income, with a moderate level of risk.
(4) STOCK FUND. The assets of the Stock Fund
shall be invested in a manner which will emphasize long-term capital
appreciation with a level of risk concomitant with the potential for increased
growth in value through prudent investments in stock.
(5) HOST MARRIOTT SERVICES STOCK FUND. The
assets of the Host Marriott Services Stock Fund shall be invested primarily in
Host Marriott Services Corporation common stock which constitutes Qualifying
Employer Securities.
(6) INTERNATIONAL STOCK FUND. The assets of the
International Stock Fund shall be invested in a manner which will emphasize
long-term capital growth, principally through investment in a portfolio of
diversified common stocks of established non-U.S. companies.
15.7 PARTICIPANT-INSIDER PROVISIONS.
Notwithstanding anything contained herein to the contrary, all
investments in the Host Marriott Services Stock Fund by Participant-Insiders (as
defined in Section 1.49) shall comply with the requirements of Section 16 of the
Securities Exchange Act of 1934, 15 U.S.C. 78p (1988) (and accompanying rules
issued by the Securities and Exchange Commission).
15.8 ALLOCATION OF INCOME OF FUNDS.
The net income of each Fund shall be allocated among the Fund
Subaccounts as provided in Section 6.8.
15.9 INVESTMENT AUTHORITY OF FORMER EMPLOYEES.
Any Participant who ceases to be an Employee shall continue to have the
authority to direct the investment of his Account in accordance with the
provisions of this Article.
15.10 INVESTMENT FOR THE BENEFIT OF INCOMPETENTS.
If any person entitled to direct investments hereunder is legally
incompetent, his Account shall be placed in a Fund(s) determined under Section
15.2(e) until such time as the person's legal representative files an election
in the manner specified in this Article XV.
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15.11 RULES OF COMMITTEE.
The Committee may establish such rules as it deems necessary to carry
out the provisions of this Article XV and to comply with the requirements of
ERISA.
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ARTICLE XVI
PLAN FIDUCIARIES
16.1 PLAN FIDUCIARIES.
(a) NAMED FIDUCIARY. The Committee is hereby named as the
fiduciary of the Plan to have authority to control and manage the operation and
administration of the Plan. As such, the Committee may hereinafter be referred
to as the "Named Fiduciary". The Named Fiduciary shall have all of the legal
liabilities and obligations set forth in ERISA with respect to employee benefit
plan fiduciaries.
(b) PROFIT SHARING COMMITTEE. The function of the Committee
shall be to advise and assist the Plan Administrator in the day-to-day discharge
of its duties hereunder. The Committee shall consist of not more than ten (10)
persons appointed by the Board of Directors. The Plan Administrator shall attend
all meetings of the Committee and shall act as the secretary of the Committee ex
officio to record minutes of all action taken at any such meeting. Each member
of the Committee shall sit at the pleasure of the Board of Directors and may be
removed at any time with or without cause.
(c) TRUSTEES. The Named Fiduciary shall appoint one or more
trustees ("Trustees") and upon acceptance of such appointment, the Trustees
shall have the authority and discretion to manage and control the assets of the
Plan as set forth in this Article XVI (except to the extent that authority to
manage, acquire or dispose of assets of the Plan is designated to one or more
investment managers pursuant to Section 16.3); provided, however, that
notwithstanding anything to the contrary in this Plan, the Trustees shall be
subject to proper directions of the Named Fiduciary, where such directions are
in accordance with the terms of this Plan and are not contrary to ERISA. The
Trustees shall manage and control the assets of the Plan jointly except to the
extent that an agreement executed by the Trustees and approved by the Named
Fiduciary provides for allocation of specific responsibilities, obligations or
duties among the Trustees. Any Trustee may resign at any time upon thirty (30)
days' advance written notice mailed or otherwise delivered to each of the
remaining Trustees and to the Named Fiduciary. Any Trustee may be removed by the
Named Fiduciary upon ten (10) days' advance written notice mailed or delivered
to such Trustee. If, for any reason, there are no Trustees appointed, then the
Named Fiduciary may elect to jointly be Trustee until a successor Trustee is
appointed. A successor Trustee shall succeed to the right and title of the
predecessor Trustee in the assets of the Trust Fund, without the need for
execution of any documents of transfer or assignment, and each successor Trustee
shall have all the powers conferred by this Plan as if originally name Trustee.
Notwithstanding the foregoing, a retiring Trustee shall deliver the property
comprising the Trust Fund to the successor Trustee, and shall provide such
successor Trustee with any instruments of transfer, conveyance, assignment and
further assurance as the successor Trustee may reasonably require.
16.2 FIDUCIARY DUTY.
Subject to Section 403(c) of ERISA, the Named Fiduciary and each other
Fiduciary shall discharge its duties with respect to the Plan solely in the
interest of the Participants and their Beneficiaries and:
(a) For the exclusive purpose of providing benefits to
Participants and their Beneficiaries and defraying reasonable expenses of
administering the Plan;
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(b) With the care, skill, prudence, and diligence under the
circumstances then prevailing, that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of a like
character and with like aims;
(c) By diversifying the investments of the Plan so as to
minimize the risk of large losses, unless under the circumstances it is clearly
prudent not to do so; and
(d) In accordance with the provisions of this Plan
insofar as they are consistent with the provisions of ERISA.
The diversification requirement of paragraph (c) of this section and the
prudence requirement (only to the extent that it requires diversification) of
paragraph (b) of this section shall not be violated by acquisition or holding of
Qualifying Employer Real Property or by acquisition or holding of Qualifying
Employer Securities.
16.3 AGENTS AND ADVISORS.
(a) EMPLOYMENT OF AGENTS. The Named Fiduciary, the Committee
and the Trustees shall have the power to employ suitable agents and advisors for
themselves including but not limited to auditors, accountants, investment
advisors and custodians and legal and other counsel, and to pay reasonable
compensation for their services. Such agents may be persons acting in a similar
capacity for the Company, or may be employees of the Company. The opinion of any
such agent shall be complete authority and protection for any action taken or
omitted by the Named Fiduciary, the Committee and the Trustees acting in good
faith and in accordance with such opinion.
(b) DELEGATION TO AGENTS AND PLAN ADMINISTRATOR. The Named
Fiduciary acting by and through the Committee may employ agents and delegate to
them ministerial duties. The Named Fiduciary may also designate persons,
including a Plan Administrator and the Committee, to carry out both ministerial
and fiduciary responsibilities; provided, however, that the Trustees'
responsibility to manage or control the assets of the Plan may not be so
delegated except to an investment manager or managers pursuant to paragraph (c)
of this Section.
(c) APPOINTMENT OF INVESTMENT MANAGER. The Named Fiduciary
shall have the power to appoint an investment manager or managers with the power
to manage, acquire or dispose of any assets of the Plan so long as each such
investment manager (l)(i) is registered as an investment advisor under the
Investment Advisors Act of 1940; (ii) is a bank, as defined in that Act; or
(iii) is an insurance company qualified to manage, acquire, or dispose of assets
of employee pension benefit plans under the laws of more than one State; and (2)
has acknowledged in writing to the Named Fiduciary that he or she or it is a
fiduciary with respect to the Plan. The Named Fiduciary or the Committee shall
not be liable for the acts or omissions of such investment manager or managers,
or be under an obligation to invest or otherwise manage any asset of the Plan
which is subject to the management of such investment manager.
16.4 ADMINISTRATIVE ACTION.
(a) ACTION BY MAJORITY. The action of a majority of the Board
of Directors, the Committee or Trustees at the time acting hereunder, and any
instrument executed by a majority of such Directors, Committee members or
Trustees, shall be considered the action or instrument of the Named
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Fiduciary, the Committee or Trustees as the case may be. Action may be taken by
the Board of Directors, the Committee or Trustees at a meeting or in writing
without a meeting.
(b) RIGHT TO VOTE. No Director, Committee member or Trustee
shall have the right to vote or decide upon any matter relating solely to
himself or solely to any of his rights or benefits under the Plan.
(c) AUTHORITY TO EXECUTE DOCUMENTS. The Named Fiduciary,
Committee or Trustees may authorize in writing any one or more of their number
to execute any document or documents on their behalf, and anyone dealing with
the Named Fiduciary, Committee or Trustees may accept and rely upon any document
executed by such member or members as representing action by the Named
Fiduciary, Committee or Trustees, as the case may be.
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16.5 LIABILITIES AND INDEMNIFICATIONS.
(a) LIABILITY OF FIDUCIARIES. The Trustees and the Named
Fiduciary and their assistants and representatives including members of the
Committee and the Plan Administrator (other than any Investment Manager) shall
be free from all liability for their acts and conduct in the administration of
the Plan except for acts of willful misconduct; provided, however, that the
foregoing shall not relieve any of them from any responsibility or liability for
any responsibility, obligation or duty that they may have pursuant to ERISA.
(b) INDEMNITY BY COMPANY. In the event and to the extent not
insured against by any insurance company pursuant to provisions of any
applicable insurance policy, the Company shall indemnify and hold harmless the
Trustees, the Named Fiduciary and their assistants and representatives including
members of the Committee and the Plan Administrator from any and all claims,
demands, suits or proceedings in connection with the Plan that may be brought by
the Company's (or Affiliated Company's) employees, Participants or their
Beneficiaries or legal representatives, or by any other person, corporation,
entity, government or agency thereof; provided, however, that such
indemnification shall not apply to any such person for such person's acts of
willful misconduct in connection with the Plan.
16.6 PLAN EXPENSES AND TAXES.
(a) PLAN EXPENSES. The administrative expenses (and the
Investment Expenses) incurred by the Named Fiduciary, the Committee and Trustees
in the performance of their duties, including recordkeeping fees and fees for
legal services rendered to the Named Fiduciary and Trustees, such compensation
to the Named Fiduciary and Trustees as may be agreed upon in writing from time
to time between themselves and the Board of Directors, and all other proper
charges and disbursements of the Named Fiduciary, the Committee and Trustees,
shall be paid from the Trust Fund, except to the extent assumed by the Company.
(b) TAXES. All taxes of any and all kinds whatsoever that may
be levied or assessed under existing or future laws upon or with respect to the
Trust Fund or the income thereof shall be paid from the Trust Fund, subject to
the making of appropriate charges.
16.7 RECORDS AND FINANCIAL REPORTING.
(a) BOOK OF ACCOUNT. The Named Fiduciary acting by and through
the Committee and the Trustees shall keep accurate and detailed accounts of all
investments, receipts, disbursements and other transactions hereunder. Within
ninety (90) days following the close of each Fiscal Year and at the request of
the Company ninety (90) days after the removal or resignation of any Trustee as
provided in Section 16.1(c), the Trustees shall file with the Company a written
account setting forth all investments, receipts, disbursements, allocations and
other transactions effected by the Trustees during such Fiscal Year or during
the period from the close of the last Fiscal Year to the date of such removal or
resignation.
(b) FINANCIAL REPORTING UNDER ERISA. The Named Fiduciary shall
cause the Plan to engage, on behalf of the Participants, an independent
qualified public accountant, who shall conduct such examinations and give such
opinions as are required in connection with the Plan's reporting and filing
requirements under ERISA. The Named Fiduciary shall make available or cause to
be made available to
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each Participant and each beneficiary who is receiving benefits under this Plan,
such information, financial and otherwise, and in such manner and at such times
as is required under ERISA.
16.8 COMPLIANCE WITH ERISA AND CODE.
The Named Fiduciary shall cause the Plan to comply with all filing
requirements as provided in ERISA and in the Code and all regulations
promulgated thereunder. All authority granted to the Named Fiduciary, the
Committee and the Trustees hereunder is subject to their compliance with
Sections 16.2, 16.9 and 16.10 and with ERISA.
16.9 PROHIBITED TRANSACTIONS.
A Fiduciary shall not engage in any prohibited transaction within the
meaning of Sections 406 and 407 of ERISA, or Section 4975(c) of the Code, unless
such transaction is exempt under Section 408 or Section 414(c) of ERISA or
Section 4975(d) of the Code, or acquire or hold any Company securities or real
property except to the extent permitted under Section 407 of ERISA.
16.10 FOREIGN ASSETS.
No Fiduciary may maintain the indicia of ownership of any assets of the
Plan outside the jurisdiction of the district courts of the United States,
except as may be authorized by the Secretary of Labor by regulation.
16.11 EXCLUSIVE BENEFIT OF TRUST FUND.
The assets of the Trust Fund shall never inure to the benefit of the
Company and shall be held for the exclusive purposes of providing benefits to
Participants and their Beneficiaries and defraying reasonable expenses of
administering the Plan.
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16.12 BOARD OF DIRECTORS RESOLUTION.
Any action by the Company pursuant to any of the provisions hereof
shall be evidenced by a resolution of its Board of Directors certified to the
Committee or the Trustees over the signature of its secretary or of any
assistant secretary. The Committee and the Trustees shall be fully protected in
acting in accordance with such certified resolution.
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ARTICLE XVII
PLAN ADMINISTRATION
17.1 ADMINISTRATION OF THE PLAN.
(a) AUTHORITY TO ADMINISTER. On behalf of the Named Fiduciary,
the Committee shall administer the Plan in accordance with its terms and shall
have all powers and discretionary authority necessary to carry out the
provisions of the Plan, including but not limited to, the power to: (1)
interpret and construe the provisions of the Plan, including making factual
determinations; (2) prepare any rules and regulations which may become necessary
or desirable in the operation of the Plan, including but not limited to
specifying procedures to be followed by eligible Employees in electing to
participate in the Plan and in revoking such participation; (3) determine
eligibility for benefits and determine the amounts and manner of payment thereof
under the provisions of the Plan; (4) keep individual accounts; (5) establish
investment policies to be followed by the Trustees; and (6) perform such other
duties as may be required for the proper administration of the Plan. The
Committee shall have absolute discretion in interpreting the provisions of the
Plan and administering the Plan in accordance with such provisions, including by
way of illustration and not of limitation, the making of determinations of
eligibility to participate and the calculation of benefits accruing or payable
under this Plan (e.g., as provided in Sections 1.29, 1.40, 8.1(b), 10.7, 17.2,
and Articles II and XI).
(b) DELEGATION OF AUTHORITY TO PLAN ADMINISTRATOR. In
accordance with Section 16.3(b), the duties described in paragraph (a) of this
section shall be exercised by the Plan Administrator acting on behalf of the
Committee, subject to review by the Committee under Section 17.2(c) of a denial
of a claim for benefits.
(c) FINALITY OF DECISION. Any decision of the Named Fiduciary
or of the Committee on its behalf, in matters within its jurisdiction shall be
final, binding and conclusive upon the Company and upon all persons who have
participated or have any interest or concern, whatsoever, in the Plan.
17.2 CLAIMS.
(a) CLAIMS FOR BENEFITS. Any claim for benefits under the Plan
shall be made in writing to the Plan Administrator. Except as to his own
account, no claimant shall have any legal right to inquire as to any payment
under the Plan having been made or as to determining the amount of such payment.
(b) NOTICE OF CLAIM DENIED. If a claim for benefits is denied,
in whole or in part, the Plan Administrator shall, within thirty (30) days after
receipt of the claim, notify the claimant of the denial of the claim. The notice
shall be written in language calculated to be understood by the claimant and
shall include the following information:
(1) The specific reason or reasons for denial of
the claim;
(2) Specific reference to the pertinent Plan
provisions upon which the denial is based;
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(3) A description of any additional material or
information necessary for the claimant to perfect the claim, along with an
explanation of why such material or information is necessary; and
(4) An explanation of the Plan's claim review
procedure with respect to the denial of benefits.
(c) REQUEST FOR REVIEW OF DENIAL. Within sixty (60) days after
the receipt by the claimant of a written notice of denial of the claim, or such
later time as shall be deemed reasonable taking into account the nature of the
benefit subject to the claim and any other attendant circumstances, the claimant
may file a written request with the Plan Administrator requesting that the
Committee conduct a full and fair review of the denial of the claim for
benefits. In connection with the claimant's appeal of the denial of the claim
for benefits, the claimant (or his authorized representative) may review
permanent documents and may submit issues and comments regarding the claim in
writing.
(d) DECISION ON REVIEW OF DENIAL. The Committee shall deliver
to the claimant a written decision on the claim within thirty (30) days after
the receipt of the aforesaid request for review, except that if there are
special circumstances (such as the need to hold a hearing, if necessary) which
require an extension of time for processing, the aforesaid thirty (30) day
period shall be extended to sixty (60) days. If an extension of time is
necessary, written notice shall be furnished to the claimant before the
extension period commences. If the claim is denied on review, in whole or in
part, the decision shall be written in a manner calculated to be understood by
the claimant and shall include the following information: (1) the specific
reason or reasons for denial; and (2) specific references to the pertinent Plan
provisions on which the decision is based.
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ARTICLE XVIII
PARTICIPATING COMPANY WITHDRAWAL FROM PLAN;
TERMINATION OR MERGER OF THE PLAN
18.1 VOLUNTARY WITHDRAWAL FROM PLAN.
(a) WITHDRAWAL BY PARTICIPATING COMPANY. Any Participating
Company may at any time withdraw from the Plan upon giving the Named Fiduciary
and the Trustees at least thirty (30) days notice in writing of its intention to
withdraw. The withdrawal of such Participating Company shall be effective on the
last day of the Month in which the foregoing thirty (30) day period ends.
(b) SEGREGATION OF TRUST ASSETS UPON WITHDRAWAL. Upon the
withdrawal of a Participating Company pursuant to paragraph (a) of this
section), the Plan Administrator shall segregate the share of the assets in the
Trust Fund, the value of which, determined on the day the withdrawal of such
Participating Company shall be effective, shall equal the total credited to the
accounts of Participants of the withdrawing Participating Company. The
determination of which assets are to be so segregated shall be made by the
Committee acting on behalf of the Named Fiduciary in its sole discretion.
(c) EXCLUSIVE BENEFIT OF PARTICIPANTS. Neither the segregation
and transfer of the Trust assets upon the withdrawal of a Participating Company
nor the execution of a new agreement and declaration of trust by such
withdrawing Participating Company shall operate to permit any part of the Trust
Fund to be used for or diverted to purposes other than for the exclusive benefit
of the Participants.
(d) APPLICABILITY OF WITHDRAWAL PROVISIONS. The withdrawal
provisions contained in this Section 18.1 shall be applicable only if the
withdrawing Participating Company continues to cover its Participants and
eligible employees in another profit-sharing plan or pension plan and trust
qualified under Sections 401 and 501 of the Code. Otherwise, the termination
provisions of Section 18.3 shall apply.
18.2 AMENDMENT OF PLAN.
The Board of Directors or the Executive Committee of the Board of
Directors may amend the Plan with respect to all Participating Companies or with
respect to a particular Participating Company at any time, and from time to
time, pursuant to written resolutions adopted by the Board of Directors (and all
Employees and persons claiming any interest hereunder shall be bound thereby);
provided, however, that no such amendment shall:
(a) Alter the rights, duties or responsibilities of the
Named Fiduciary or Trustees without their written consent;
(b) Permit any portion of the Trust Fund to inure to the
benefit of the Company or permit any portion of the Trust Fund to be held or
used other than for the exclusive purpose of providing benefits to Participants
and their Beneficiaries and defraying reasonable costs of administering the
Plan;
(c) Have the effect of decreasing the "accrued benefit"
of any Participant as proscribed in Section 411(d)(6) of the Code; or
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(d) Have the effect of reducing any then vested percentage of
benefits of any Participant as computed in accordance with the vesting schedule
under Article VII of the Plan.
If the vesting schedule under Article VII of the Plan shall be amended and such
an amendment would, at any time, decrease the percentage of vested benefits
which any Participant would have been entitled to receive had the vesting
schedule not been so amended, then each Participant who is an Employee on the
date such amendment is adopted, or the date such amendment is effective,
whichever is later, and who has three (3) or more Periods of Service as of the
end of the period within which such Participant may make the election provided
for herein, shall be permitted, beginning on the date such amendment is adopted,
to irrevocably elect to have the Participant's vested interest computed without
regard to such amendment. Written notice of such amendment and the availability
of such election must be given to each such Participant, and each such
Participant shall be granted a period of sixty (60) days after the later of:
(1) The Participant's receipt of such notice; or
(2) The effective date of such amendment within
which to make such election.
Such election shall be exercised by the Participant by delivering or sending
written notice thereof to the Named Fiduciary prior to the expiration of such
sixty (60) day period.
18.3 VOLUNTARY TERMINATION OF PLAN.
(a) RIGHT TO TERMINATE PLAN. Each Participating Company
contemplates that the Plan shall be permanent and that it shall be able to make
contributions to the Plan. Nevertheless, in recognition of the fact that future
conditions and circumstances cannot now be entirely foreseen, each Participating
Company reserves the right to terminate (as to such Participating Company)
either the Plan (exclusive of the Trust Fund) or both the Plan and the Trust
Fund, at any time, by resolution of the Board of Directors.
(b) MERGER OR CONSOLIDATION OF PLAN AND TRUST. Neither the
Plan nor the Trust Fund may be merged or consolidated with, nor may its assets
or liabilities be transferred to, any other plan or trust, unless each
Participant would (if the Plan then terminated) receive a benefit immediately
after the merger, consolidation, or transfer which is equal to or greater than
the benefit the Participant would have been entitled to receive immediately
before the merger, consolidation, or transfer (if the Plan had then terminated).
(c) TERMINATION OF PLAN AND TRUST FUND. If the board of
directors of a Participating Company determines to terminate (as to such
Participating Company) the Plan and Trust Fund completely, the Plan and Trust
Fund shall be terminated insofar as they are applicable to such Participating
Company as of the date specified in certified copies of resolutions of such
board of directors delivered to the Named Fiduciary, the Committee and the
Trustees. Upon such termination of the Plan and Trust Fund, after payment of all
expenses and proportional adjustment of accounts of Participants employed by
such Participating Company to reflect such expenses, Trust Fund earnings or
losses, and allocations of any previously unallocated funds to the date of
termination, such Participating Company's Participants shall be entitled to
receive the amount then credited to their respective accounts in the Trust Fund.
The Named Fiduciary, in its sole discretion, may make payment of such amount in
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cash, in assets of the Trust Fund, or in the form of immediate or deferred
payment term annuity contracts for such Participants.
18.4 DISCONTINUANCE OF CONTRIBUTIONS.
Whenever a Participating Company determines that it is impossible or
inadvisable for it to make further contributions as provided in the Plan, the
board of directors of such Participating Company may, without terminating the
Trust Fund, adopt an appropriate resolution permanently discontinuing all
further contributions by such Participating Company. A certified copy of such
resolution shall be delivered to the Named Fiduciary, the Committee and the
Trustees. Thereafter, the Named Fiduciary, the Committee and the Trustees shall
continue to administer all the provisions of the Plan which are necessary and
remain in force, other than the provisions relating to contributions by such
Participating Company. However, the Trust Fund shall remain in existence with
respect to such Participating Company and all of the provisions of the Plan
relating to the Trust Fund shall remain in force.
18.5 RIGHTS TO BENEFITS UPON TERMINATION OF PLAN OR COMPLETE
DISCONTINUANCE OF CONTRIBUTIONS.
Upon the termination or partial termination of the Plan or the complete
discontinuance of contributions by a Participating Company, the rights of each
of such Participating Company's Participants affected by such termination or
partial termination to the amount credited to such Participant's Account at such
time shall be nonforfeitable without reference to any formal action on the part
of such Participating Company, the Named Fiduciary, the Committee or the
Trustees.
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ARTICLE XIX
ELECTION TO PARTICIPATE BY SUBSIDIARIES
19.1 CONSENT REQUIRED FOR SUBSIDIARIES TO JOIN PLAN.
The Plan Administrator, upon receiving a written resolution of the
board of directors of a Subsidiary electing to become a Participating Company,
may approve or disapprove such election acting as the delegate of the Board of
Directors. The Board of Directors shall retain the final authority to override
such action and approve or disapprove the Subsidiary's request.
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ARTICLE XX
MISCELLANEOUS PROVISIONS
20.1 STATUS OF EMPLOYMENT.
The adoption and maintenance of the Plan shall not be deemed to
constitute a contract of employment between the Company and any Employee or
Participant, or to be a consideration for, or an inducement or condition of, any
employment. Nothing contained herein shall be deemed to give any Employee the
right to be retained in the service of the Company or to interfere with the
right of the Company to discharge any Employee or Participant at any time.
20.2 LIABILITY OF COMPANY.
Except as may be determined by the Board of Directors, in its sole
discretion from time to time, all benefits payable under this Plan shall be paid
or provided solely from the Trust Fund and the Company assumes no liability or
responsibility therefor; its obligation which is expressly stated to be
non-contractual is limited solely to the making of contributions to the Trust
Fund as provided in this Plan.
20.3 INFORMATION.
(a) SUPPLIED BY NAMED FIDUCIARY, THE COMMITTEE OR TRUSTEES. A
certification in writing to the Named Fiduciary, Plan Administrator, the
Committee or the Trustees, executed in accordance with the provisions of this
Plan, certifying to the existence, occurrence or happening of any event, shall
constitute evidence of such existence, occurrence or happening; and the Named
Fiduciary, Plan Administrator, the Committee, the Trustees and the Company shall
be fully protected in accepting and relying upon such certification and shall
incur no liability or responsibility for so doing.
(b) SUPPLIED BY COMPANY. At the request of the Named
Fiduciary, the Committee or the Trustees, the Company shall furnish in writing
to the Named Fiduciary, the Committee or the Trustees such information as may be
necessary or desirable in order that the Named Fiduciary, the Committee or the
Trustees may be able to carry out their respective duties hereunder. The Named
Fiduciary, the Committee and the Trustees shall be entitled to rely upon such
information as being correct.
20.4 PROVISIONS OF PLAN TO CONTROL.
In event of any conflict between the terms of the Plan as set forth in
this instrument and in any description of the Plan which may be furnished to
Participants or others, the Plan set forth herein shall control.
20.5 PAYMENT FOR BENEFIT OF INCOMPETENT.
The Trustees may make payment to any incompetent who is entitled to
receive payments hereunder by making the same to the legal representative of
such incompetent or to his parent or Spouse or may apply them for the
incompetent benefit.
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20.6 ACCOUNT TO BE CHARGED UPON PAYMENT.
When any distribution or other payment is made to or for the benefit or
on behalf of any party entitled to receive payments hereunder, the account held
for the benefit of such party shall be charged accordingly.
20.7 TAX QUALIFICATION OF PLAN.
The Plan is intended to qualify as a tax exempt profit sharing plan
pursuant to the provisions of Section 401, the cash or deferred arrangement
provisions of the Plan set forth in Article V and elsewhere are intended to
satisfy the requirements of Sections 401(k) and 401(m), and the Trust created
hereunder is intended to qualify as a tax exempt trust under the provisions of
Section 501(a) of the Code together with any amendments thereto and all
provisions of the Plan shall be construed to obtain those results.
20.8 DEDUCTIBILITY OF COMPANY CONTRIBUTIONS.
The Contributions made by the Company under this Plan are intended to
be deductible as business expenses, under the provisions of Section 404 of the
Code, together with any amendments thereto, and all provisions of the Plan shall
be construed accordingly.
20.9 VALUATION OF TRUST FUND.
The Trustees at the end of each Month and at such other times as the
Committee acting on behalf of the Named Fiduciary deems advisable, ascertain and
certify the value of all securities and other properties held in the Trust Fund.
All property held in the Trust Fund shall be valued at its fair market value on
a reasonable and consistent basis established by the Trustees.
20.10 RESTRICTION ON ALIENATION OR ASSIGNMENT.
Benefits provided under the Plan may not be assigned or alienated,
except as permitted by Article XIII and the following:
(a) A loan made by the Plan to a Participant in accordance
with Article XI shall be secured by the Participant's After-tax Savings Account
and Company Contribution Account as provided in Article XI.
(b) If a Participant is indebted to the Company or to the
Marriott Employees Federal Credit Union at the time any payments are to be made
to such Participant or to the Participant's Beneficiary hereunder and if the
Participant, prior to September 2, 1974 has executed in favor of such creditor
an irrevocable security assignment of the Participant's account balances in the
Plan, the Trustees are authorized to pay to such creditor all or such portion of
said payments as may be required to discharge such indebtedness.
20.11 UNCLAIMED BENEFITS.
In the event that benefit payments owing to a Participant have not been
claimed by the Participant within three (3) years of the date on which such
benefits first became payable, the Plan Administrator shall, at the end of the
Fiscal Year during which such three (3) year anniversary occurs reallocate such
benefits to the remaining Participants in the manner provided in Section
6.10(a). If
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subsequent to such reallocation, the Participant entitled to such benefits makes
claim therefor, the Plan Administrator shall promptly pay such forfeited
benefit. Funds with which to pay any such benefits shall be provided as set
forth in Section 6.10(b).
20.12 RECOVERY OF PLAN BENEFITS PAYMENT MADE BY MISTAKE.
A Participant or Beneficiary shall be required to return to the Plan
any payments made under the Plan made by a mistake of fact or law.
20.13 BONDING.
Every Fiduciary of the Plan and every person who handles funds or other
property of the Plan shall be bonded if and to the extent required by Section
412 of ERISA.
20.14 TITLES AND CAPTIONS.
The titles and captions to the Articles, Sections and subsections in
the Plan are placed herein for convenience of reference only, and in case of any
conflict the text of this instrument, rather than such titles, shall control.
20.15 EXECUTION OF COUNTERPARTS.
This instrument may be executed in any number of counterparts, each of
which shall be deemed to be an original.
20.16 GOVERNING LAW.
The Plan shall be governed, construed, administered and regulated in
all respects by and under the laws of the State of Maryland.
20.17 SEPARABILITY.
If any provisions of the Plan shall for any reason be invalid or
unenforceable, the remaining provisions shall nevertheless remain in full force
and effect.
20.18 SUPPLEMENTS AND APPENDICES.
Supplements and Appendices to the Plan or the Trust may be adopted,
attached to and incorporated in the Plan or the Trust at any time. The
provisions of any such Supplements or Appendices shall have the same effect that
such provisions would have if they were included within the basic text of the
Plan or the Trust. Supplements and Appendices shall be adopted by the Board
pursuant to the amendment authority set forth in Section 18.2 of the Plan and
shall specify the persons affected.
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ARTICLE XI
TOP HEAVY PROVISIONS
21.1 DETERMINATION OF TOP HEAVY STATUS.
For purposes of this Article XI, the Plan shall be a Top Heavy Plan if,
as of the Determination Date, either:
(a) The sum of the aggregated accounts of Participants who are
"key employees" (as defined in Section 416(i) of the Code) exceeds sixty percent
(60%) of the sum of the aggregated accounts of all Plan Participants; or
(b) The Plan is included in Top Heavy Group.
If a Participant has received no compensation from the Company during the five
year period preceding the Determination Date, his account balance may be
disregarded for purposes of determining whether the Plan is top-heavy. Solely
for purposes of determining which Participants are "key employees," the term
"compensation" (as used in Section 416(i) of the Code) shall mean the
compensation stated on an Employee's Form W-2 for the calendar year that ends
with or within the Plan Year.
21.2 DEFINITIONS.
For purposes of this Article, the following terms shall have the
meanings set forth herein:
(a) "AGGREGATION GROUP" means:
(1) Each Section 401 Plan of the Company in
which a "key employee" (as defined in Section 416(i) of the Code) is a
participant; and
(2) Each Section 401 Plan of the Company which
enables any plan described in paragraph (a)(i) of this section to meet the
requirements of Section 401(a)(4) or 410 of the Code.
(b) "DETERMINATION DATE" means, with respect to any Plan Year,
the last day of the preceding Plan Year. In the case of the Plan Year which
includes the Effective Date of the Plan, the last day of such Plan Year.
(c) "SECTION 401 PLAN" means any stock bonus, pension, or
profit sharing plan subject to the qualification requirements of Section 401 of
the Code.
(d) "TOP HEAVY GROUP" means any Aggregation Group determined
to be a Top Heavy Group in accordance with the test set forth in Code Section
416(g)(2)(B).
(e) "VALUATION DATE" shall have the same meaning as set
forth in Section 1.73.
75
<PAGE>
21.3 REQUIREMENTS IF PLAN A TOP HEAVY PLAN.
If as of the Determination Date the Plan is a Top Heavy Plan then
notwithstanding any other provision of this Plan, Sections 3.1 and 7.3 shall be
modified as follows during such Plan Year:
(a) MODIFICATION TO ARTICLE 3.1. For purposes of this Article
XXI, the minimum Company Contribution provided under this Plan on behalf of any
Participant who is not a "key employee" (as defined in Section 416(i) of the
Code) shall be not less than three percent (3%) of such Participant's annual
Compensation (as defined in Section 414(a)(7) of the Code.
(b) MODIFICATION TO ARTICLE 7.3. For purposes of Article
XXI, the vested interest in the Company Contribution Account of any Participant
shall be as follows:
<TABLE>
<CAPTION>
TOTAL MONTHS OF CREDIT VESTED PERCENT OF COMPANY
CONTRIBUTION ACCOUNT
<S> <C>
less than 24 0
24 20
36 40
48 60
60 80
72 or more 100
</TABLE>
21.4 CHANGE IN TOP HEAVY STATUS.
(a) If the status of the Plan as a Top Heavy Plan changes at
any time, the Vested Percentage (as determined under Section 21.3(b)) of each
Participant in the Participant's Company Contribution Account (determined as of
the effective date of such change in status) shall not be less than the Vested
Percentage computed without regard to such change in status.
(b) If the status of the Plan as a Top Heavy Plan changes at
any time, each Participant with not less than three (3) Years of Service as of
such time may elect, within sixty (60) days of the effective date of such change
in status (or, if later, within sixty days after notice of such right to elect
is communicated to Participants by the Committee or the Plan Administrator), to
have the Vested Percentage in such Participant's Company Contribution Account
(determined as of the effective date of such change of status) computed without
regard to such change in status.
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<PAGE>
TRUSTEES' ACKNOWLEDGMENT AND CONSENT
The undersigned as Trustees under the HOST MARRIOTT SERVICES
CORPORATION EMPLOYEES' PROFIT SHARING, RETIREMENT AND SAVINGS PLAN AND TRUST,
each on his own behalf and on behalf of the other Trustees thereunder, hereby
acknowledges receipt of the amendment and restatement of the Plan effective
December 30, 1995 and consents thereto.
Dated as of the 30th day of December, 1995
By: /s/ Lori Cramp
---------------------------------------
Lori Cramp, Trustee
By: /s/ Charles E. Powers
---------------------------------------
Charles E. Powers, Trustee
77
