<PAGE>
As filed with the Securities and Exchange Commission on December 10, 1996.
----------------------------------------------------------------------------
REGISTRATION STATEMENT NO. _____________
********************************************************************************
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
CHOICE HOTELS INTERNATIONAL, INC.
---------------------------------
(Exact name of issuer as specified in its charter)
Delaware 52-1985619
--------- ----------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
10750 Columbia Pike
Silver Spring, Maryland 20901
----------------------- -----
(Address of Principal (Zip Code)
Executive Offices)
CHOICE HOTELS INTERNATIONAL, INC.
RETIREMENT SAVINGS & INVESTMENT PLAN
------------------------------------
(Full title of the plan)
Edward A. Kubis, Esq.
Senior Vice President, General Counsel and Secretary
10750 Columbia Pike
Silver Spring, MD 20901
------------------------
(Name and address of agent for service)
(301) 979-6233
--------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
********************************************************************************
<TABLE>
<CAPTION>
Proposed
Title of Proposed Maximum Maximum Amount
Each Class of Amount Offering Aggregate Of
Securities To Be Price Per Offering Registration
To Be Registered Registered Share* Price* Fee*
- ---------------- ---------- ------ ------ ----
<S> <C> <C> <C> <C>
Common Stock, 3,000,000 Shs. $15.9375 $47,812,500 $16,488
par value of $.01
per share
</TABLE>
********************************************************************************
(*) Estimated pursuant to Rule 457 solely for the purpose of calculating the
registration fee. Estimate based on the average of the high and low share
prices reported on the New York Stock Exchange for December 6, 1996.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Except as set forth below with respect to Items 4, 7, 8 and 9 of Form S-8,
the description of Registrant's common stock contained in the Registrant's
Registration Statement on Form 10 filed on July 11, 1996, as amended, and
Current Report on Form 8-K dated November 5, 1996 are incorporated by reference
into this registration statement.
All documents subsequently filed by the Choice Hotels International, Inc.
Retirement Savings and Investment Plan (the "Plan") or the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which 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 filing such documents. Any statement contained in a
documents incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities. Not Applicable.
- ------- --------------------------
Item 6. Indemnification of Officers and Directors.
- ------- ------------------------------------------
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") provides, in summary, that directors and officers of Delaware
corporations such as the Registrant are entitled, under certain circumstances,
to be indemnified against all expenses and liabilities (including attorneys'
fees) incurred by them as a result of suits brought against them in their
capacity as a director or officer, if they acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, if they had
no reasonable cause to believe their conduct was unlawful; provided, that no
indemnification may be made against expenses in respect of any claim, issue or
matter as to which they shall have been adjudged to be liable to the
corporation, unless and only to the extent that the court in which such action
or suit was brought shall determine upon application that despite the
adjudication of liability but in view of all the circumstances of the case, they
are fairly and reasonably entitled to indemnity for such expenses which such
court shall deem proper. Any such indemnification may be made
2
<PAGE>
by the corporation only as authorized in each specific case upon a determination
by the stockholders or disinterested directors that indemnification is proper
because the indemnitee has met the applicable standard of conduct. Article VII
of the Registrant's By-Laws entitles officers, directors and controlling persons
of the Registrant to indemnification to the full extent permitted by Section 145
of DGCL, as the same may be supplemented or amended from time to time.
Article VII of the Bylaws of Choice Hotels International, Inc. provides:
INDEMNIFICATION OF
OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
Section 1. Action, Other Than by or in the Right of the Corporation.
---------------------------------------------------------
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding or investigation, whether civil, criminal or administrative,
and whether external or internal to the Corporation (other than a judicial
action or suit brought by or in the right of the Corporation) by reason of the
fact that he is or was a director, officer, employee or trustee of the
Corporation, or that, being or having been such a director, officer, employee or
trustee, he is or was serving at the request of the Corporation as a director,
officer, employee, trustee or agent of another corporation, partnership, joint
venture, trust or other enterprise (all such persons being referred to hereafter
as an "Agent"), against expenses (including attorneys' fees), judgements, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding, or any appeal therein, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding -- whether by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
---- ----------
its equivalent -- shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, that he had reasonable cause to believe that his
conduct was unlawful.
Section 2. Action, by or in the Right of the Corporation. The
----------------------------------------------
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed judicial action or suit
brought by or in the right of the Corporation to procure a judgement in its
favor by reason of the fact that he is or was an Agent (as defined above)
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense, settlement or appeal of such action or suit
if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, except that no
3
<PAGE>
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for gross negligence or
misconduct in the performance of the duty of the Corporation unless and only to
the extent that the Court of Chancery or the court in which such action or suit
was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or other such court shall deem proper.
Section 3. Determination of Right of Indemnification. Any indemnification
-----------------------------------------
under Section 1 or 2 (unless ordered by a court) shall be made by the
Corporation unless a determination is reasonably and promptly made (i) by the
Board by a majority vote or a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (ii) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders, that such person acted in bad faith and in a manner that such
person did not believe to be in or not opposed to the best interests of the
Corporation, or, with respect to any criminal proceeding, that such person
believed or had reasonable cause to believe that his conduct was unlawful.
Section 4. Indemnification Against Expenses of Successful Party.
-----------------------------------------------------
Notwithstanding the other provisions of this Article, to the extent that an
Agent has been successful on the merits or otherwise, including the dismissal of
an action without admission of liability, in defense of any proceeding or in
defense of any claim, issue or matter therein, or on appeal from any such
proceeding, action, claim or matter, such Agent shall be indemnified against all
expenses incurred in connection therewith.
Section 5. Advances of Expenses. Except as limited by Section 6 of
---------------------
this Article, expenses incurred in any action, suit, proceeding or investigation
or any appeal therein shall be paid by the Corporation in advance of the final
disposition of such matter, if the Agent shall undertake to repay such amount in
the event that it is ultimately determined, as provided herein, that such person
is not entitled to indemnification. Notwithstanding the foregoing, no advance
shall be made by the Corporation if a determination is reasonably and promptly
made by the Board of Directors by a majority vote of a quorum of disinterested
directors, or (if such a quorum is not obtainable or, even if obtainable, a
quorum of disinterested directors so directs) by independent legal counsel in a
written opinion, that, based upon the facts known to the Board or counsel at the
time such determination is made, such person acted in bad faith and in a manner
that such person did not believe to be in or not opposed to the best interests
of the Corporation, or, with respect to any criminal proceeding, that such
person believed or had reasonable cause to believe his conduct was unlawful. In
no event shall any advance be made in instances where the Board or independent
legal counsel reasonably determines that such person deliberately breached his
duty to the Corporation or its shareholders.
4
<PAGE>
Section 6. Right of Agent to Indemnification Upon Application; Procedure
-------------------------------------------------------------
Upon Application. Any indemnification under Sections 1, 2, and 4, or advance
- ----------------
under Section 5 of this Article, shall be made promptly, and in any event within
ninety days, upon the written request of the Agent, unless with respect to
applications under Sections 1, 2, and 5, a determination is reasonably and
promptly made by the Board of Directors by a majority vote of a quorum of
disinterested directors that such Agent acted in a manner set forth in such
Sections as to justify the Corporation's not indemnifying or making an advance
to the Agent. In the event no quorum of disinterested directors is obtainable,
the Board of Directors shall promptly direct that independent legal counsel
shall decide whether the Agent acted in the manner set forth in such Sections as
to justify the Corporation's not indemnifying or making an advance to the Agent.
The right to indemnification or advances as granted by this Article shall be
enforceable by the Agent in any court of competent jurisdiction, if the Board or
independent legal counsel denies the claim, in whole or in part, or if no
disposition of such claim is made within ninety days. The Agent's expenses
incurred in connection with successfully establishing his right to
indemnification, in whole or in part, in any such proceeding shall also be
indemnified by the Corporation.
Section 7. Contribution. In order to provide for just and equitable
-------------
contribution in circumstances in which the indemnification provided for in this
Article is held by a court of competent jurisdiction to be unavailable to an
indemnitee in whole or in part, the Corporation shall, in such an event, after
taking into account, among other things, contributions by other directors and
officers of the Corporation pursuant to indemnification agreements or otherwise,
and in the absence of personal enrichment, acts of intentional fraud or
dishonesty or criminal conduct on the part of the agent, contribute to the
payment of Agent's losses to the extent that, after other contributions are
taken into account, such losses exceed: (i) in the case of a director of the
Corporation or any of its subsidiaries who is not an officer of the Corporation
or any of such subsidiaries, the amount of fees paid to him for serving as a
director during the 12 months preceding the commencement of the suit, proceeding
or investigation; or (ii) in the case of a director of the Corporation or any of
its subsidiaries who is also an officer of the Corporation or any of such
subsidiaries, the amount set forth in clause (i) plus 5% of the aggregate cash
compensation paid to said director for service in such office(s) during the 12
months preceding the commencement of the suit, proceeding or investigation; or
(iii) in the case of an officer of the Corporation or any of the subsidiaries,
5% of the aggregate cash compensation paid to such officer for service in such
office(s) during the 12 months preceding the commencement of such suit,
proceeding or investigation.
Section 8. Other Rights and Remedies. The indemnification provided by this
--------------------------
Article shall not be deemed exclusive of, and shall not affect, any other rights
to which an Agent seeking indemnification may be entitled under any Bylaws,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official
5
<PAGE>
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be an Agent and shall inure to
the benefit of the heirs, executors and administrators of such a person. All
rights to indemnification under this Article shall be deemed to be provided by a
contract between the Corporation and the Agent who serves in such capacity at
any time while these bylaws and other relevant provisions of the general
corporation law and other modification thereof shall not affect any rights or
obligations then existing.
Section 9. Insurance. Upon resolution passed by the Board, the
---------
Corporation may purchase and maintain insurance on behalf of any person who is
or was an Agent against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article. The Corporation may create a trust fund, grant a
security interest or use other means (including, without limitation, a letter of
credit) to ensure the payment of such sums as may become necessary to effect
indemnification as provided herein.
Section 10. Constituent Corporations. For the purposes of this Article,
-------------------------
references to "the Corporation" include all constituent corporations absorbed in
a consolidation or merger as well as the resulting or surviving corporation, so
that any person who is or was a director, officer, employees, or trustee of such
a constituent corporation or who, being or having been such a director, officer
employee or trustee, is or was serving at the request of such constituent
corporation as a director, officer, employee, trustee of another corporation,
partnership, joint venture, trust or other enterprise shall stand in the same
position under the provisions of this Article with respect to the resulting or
surviving corporation as he would if he had served the resulting or surviving
corporation in the same capacity.
Section 11. Other Enterprises, Fines, and Serving at Corporation's
------------------------------------------------------
Request. For purposes of this Article, references to "other enterprises" in
- --------
Sections 1 and 7 shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to any employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service by Agent as director, officer, employee, trustee or
agent of the Corporation which imposes duties on, or involves services by, such
Agent with respect to any employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interests of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
Article.
Section 12. Savings Clause. If this Article or any portion hereof shall
---------------
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Agent as to expenses (including
attorneys' fees),
6
<PAGE>
judgements, fines and amounts paid in settlement with respect to any action,
suit, appeal, proceeding or investigation, whether civil, criminal or
administrative, and whether internal or external, including a grand jury
proceeding and an action or suit brought by or in the right of the Corporation,
to the full extent permitted by any applicable portion of this Article that
shall not have been invalidated, or by any other applicable law.
The Registrant has entered into separate indemnification agreements with
directors and officers of the Registrant, pursuant to which the Registrant will
indemnify such directors and officers to the fullest extent permitted by
Delaware law, as the same may be amended from time to time.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
Item 7. Exemptions from Registration Claimed. None.
- ------- -------------------------------------
Item 8. Exhibits.
- ------- ---------
4 Choice Hotels International, Inc. Retirement Savings & Investment
Plan.
5 Opinion regarding legality of shares to be offered.
23(i) Consent of Arthur Andersen LLP.
23(ii) Consent of Edward A. Kubis, Esq. (included in Exhibit 5)
24 Powers of Attorney authorizing execution of registration statement of
Form S-8 on behalf of certain directors of Registrant.
Item 9. Undertaking.
- ------- ------------
(a) Rule 415 Offering.
------------------
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;
7
<PAGE>
(i) To include any prospectus required by Section 10 (a) (3) of the
Securities Act of 1933;
(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 registration statement is on Form S-3 or Form S-8, and 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 Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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) Filings incorporating subsequent Exchange Act documents by reference.
--------------------------------------------------------------------
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13 (a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Request for acceleration of effectiveness or filing of registration
-------------------------------------------------------------------
statement on Form S-8.
---------------------
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the
8
<PAGE>
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 Act and
will be governed by the final adjudication of such issue.
SIGNATURES
----------
The Registrant. Pursuant to the requirements of the Securities Act of
---------------
1933, the Registrant certifies 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 Silver
Spring, State of Maryland, on this 10th day of December, 1996.
CHOICE HOTELS INTERNATIONAL, INC.
By: /s/ Edward A. Kubis
-----------------------------
Edward A. Kubis
Secretary
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
* Executive Chairman December 10, 1996
- ----------------------------
Stewart Bainum, Jr. of the Board and Director
* Vice Chairman of the Board, December 10, 1996
- ----------------------------
William R. Floyd Chief Executive Officer and
Director
* Director December 10, 1996
- ----------------------------
Stewart Bainum
9
<PAGE>
* Director December 10, 1996
- ----------------------------
Barbara Bainum
* Director December 10, 1996
- ----------------------------
Paul A. Gould
* Director December 10, 1996
- ----------------------------
Frederic V. Malek
* Director December 10, 1996
- ----------------------------
Jerry E. Robertson
* Director December 10, 1996
- ----------------------------
Robert C. Hazard, Jr.
* Director December 10, 1996
- ----------------------------
Gerald W. Petitt
* Executive Vice President, December 10, 1996
- ----------------------------
James A. MacCutcheon Chief Financial Officer,
and Treasurer (Principal
Financial Officer)
* Vice President and December 10, 1996
- ---------------------------- Controller
Charles G. Warczak, Jr. (Principal Accounting Officer)
* By: /s/ Edward A. Kubis
--------------------------
Edward A. Kubis
Attorney-in-fact
10
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
- --------
trustee (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on December 10, 1996.
CHOICE HOTELS INTERNATIONAL, INC. RETIREMENT
SAVINGS & INVESTMENT PLAN
By: CHASE MANHATTAN BANK
By: /s/ Catherine E. Kidder
-----------------------------
Assistant Vice President
-----------------------------
11
<PAGE>
EXHIBIT 4
THE CHOICE HOTELS INTERNATIONAL, INC.
RETIREMENT SAVINGS AND INVESTMENT PLAN
--------------------------------------
<PAGE>
TABLE OF CONTENTS
-----------------
Page
-----
SECTION ONE PURPOSE OF PLAN 1
A. Purpose........................................................ 1
B. Voluntary Participation........................................ 1
SECTION TWO DEFINITIONS........................................ 2
SECTION THREE REQUIREMENTS FOR ELIGIBILITY....................... 21
SECTION FOUR PARTICIPATION IN THE PLAN.......................... 23
A. Participation in the Cash or Deferred Arrangement.............. 23
B. Information to Participants.................................... 23
C. Rollover Amount................................................ 24
SECTION FIVE ADMINISTRATION OF THE PLAN......................... 24
A. Responsibility for Administration of the Plan.................. 24
B. Appointment of Administrative Committee........................ 25
C. Responsibility for Administration of the Trust Fund............ 25
D. Delegation of Powers........................................... 25
E. Records........................................................ 25
F. General Administrative Powers.................................. 26
G. Appointment of Professional Assistance and Investment Manager.. 26
H. Actions by the Administrative Committee........................ 27
I. Directives of the Administrative Committee..................... 27
J. Discretionary Acts............................................. 27
K. Payment of Fees and Expenses................................... 28
L. Plan Administrator............................................. 28
M. Allocation and Delegation of Administrative
Committee Responsibilities..................................... 29
SECTION SIX CONTRIBUTIONS...................................... 29
A. Salary Reduction Contributions................................. 29
-i-
<PAGE>
B. Company Matching Contributions................................. 32
C. Nondiscrimination Rules Applicable to Salary
Reduction Contributions........................................ 34
D. Nondiscrimination Rules Applicable to Company
Matching Contributions......................................... 38
E. Additional Adjustments......................................... 40
-ii-
<PAGE>
Page
----
SECTION SEVEN ALLOCATION TO PARTICIPANTS' ACCOUNTS.................... 40
A. Maintenance of Accounts........................................ 40
B. Method of Allocating Salary Reduction Contributions............ 41
C. Method of Allocating Company Matching Contributions............ 41
D. Limitation on Annual Additions................................. 42
E. Limitations on Annual Additions Due to Participation in
Other Defined Contribution Plans............................... 44
F. Limitations on Annual Additions Due to Participation in
Defined Benefit Plans.......................................... 44
G. Definitions Relating to Annual Additions Limitations........... 45
H. Change of Employee Status...................................... 47
SECTION EIGHT EVALUATION OF TRUST FUND........................... 48
SECTION NINE PARTICIPANTS' ACCOUNTS............................. 49
A. Separate Accounts.............................................. 49
B. Accounts of Participants Transferred to an
Affiliated Company............................................. 50
C. Annual Adjustment of Participant's Accounts.................... 50
D. Investment of Contributions.................................... 50
E. Special Rules Regarding Manor Care, Inc. Stock................. 52
SECTION TEN COMMON TRUST FUND.................................. 53
SECTION ELEVEN DISABILITY BENEFITS................................ 53
A. Disability Retirement Benefits................................. 53
B. Determination of Disability.................................... 54
SECTION TWELVE RETIREMENT BENEFITS................................ 54
SECTION THIRTEEN DEATH BENEFITS..................................... 55
A. Death Benefits................................................. 55
B. Designation of Beneficiaries................................... 55
-iii-
<PAGE>
C. Failure of Participant to Designate........................... 56
D. Beneficiaries' Rights......................................... 57
SECTION FOURTEEN EMPLOYMENT TERMINATION BENEFITS.................... 57
A. Vesting Upon Termination of Employment........................ 57
B. Counting Years of Service..................................... 57
C. Forfeiture of Non-Vested Amount............................... 58
Page
----
SECTION FIFTEEN PAYMENT OF BENEFITS................................ 60
A. Retirement, Disability and Death Benefits..................... 60
B. Employment Termination Benefits............................... 61
C. Methods of Payment of Benefits................................ 64
D. Required Distributions........................................ 67
E. Distribution of Small Account Balances........................ 68
F. Loans to Participants......................................... 69
G. Benefits of Persons Who Cannot Be Located..................... 72
H. Pre-Retirement Distributions.................................. 73
I. Post-Age 59 1/2 Withdrawals................................... 73
J. Distribution for Minor Beneficiary............................ 74
K. Hardship Withdrawals.......................................... 74
L. Eligible Rollover Distributions............................... 76
SECTION SIXTEEN RIGHT OF FIRST REFUSAL............................. 77
SECTION SEVENTEEN STOCK CERTIFICATE LEGEND........................... 79
SECTION EIGHTEEN BENEFIT CLAIMS PROCEDURE........................... 79
A. Claims for Benefits........................................... 79
B. Request for Review of Denial.................................. 80
C. Decision on Review of Denial.................................. 80
SECTION NINETEEN INALIENABILITY OF BENEFITS......................... 81
A. In General.................................................... 81
B. Qualified Domestic Relations Orders........................... 81
- iv -
<PAGE>
SECTION TWENTY INVESTMENT OF TRUST FUND........................... 83
SECTION TWENTY-ONE AMENDMENT OF THE PLAN.............................. 83
SECTION TWENTY-TWO PERMANENCY OF THE PLAN............................. 84
A. Right to Terminate Plan....................................... 84
B. Merger or Consolidation of Plan............................... 85
SECTION TWENTY-THREE DISCONTINUANCE OF CONTRIBUTIONS AND
TERMINATION........................................ 85
A. Discontinuance of Contributions............................... 85
B. Termination of Plan and Trust................................. 86
C. Rights to Benefits Upon Termination of Plan or
Complete Discontinuance of Contributions...................... 87
SECTION TWENTY-FOUR STATUS OF EMPLOYMENT RELATIONS..................... 87
Page
----
SECTION TWENTY-FIVE BENEFITS PAYABLE BY TRUST.......................... 88
SECTION TWENTY-SIX EXCLUSIVE BENEFIT OF TRUST FUND.................... 88
A. Limitation Upon Reversions.................................... 88
B. Mistake of Fact............................................... 88
SECTION TWENTY-SEVEN APPLICABLE LAW..................................... 88
SECTION TWENTY-EIGHT INTERPRETATION OF THE PLAN AND TRUST............... 89
SECTION TWENTY-NINE ADOPTION OF PLAN BY AFFILIATED COMPANIES............ 89
SECTION THIRTY TOP-HEAVY CONTINGENCY PROVISIONS................... 90
A. Application................................................... 90
B. Definition of Top-Heavy Plan.................................. 90
- v -
<PAGE>
C. Consideration of Multiple Plans in Determining
Top-Heavy Status of Plan...................................... 92
D. Minimum Benefits.............................................. 94
E. Special Vesting Rules......................................... 95
F. Adjustment of Section 415 Limitations in Plan
Years in Which the Plan Is a Top-Heavy Plan................... 96
- vi -
<PAGE>
THE CHOICE HOTELS INTERNATIONAL, INC.
RETIREMENT SAVINGS AND INVESTMENT PLAN
--------------------------------------
Effective November 1, 1996, CHOICE HOTELS INTERNATIONAL, INC. (the
"Sponsoring Company") hereby establishes the Choice Hotels International, Inc.
Retirement Plan in accordance with the terms and conditions set forth below. It
is anticipated that the Trust shall receive an infusion of assets from the trust
associated with the Manor Care, Inc. Plan (the "Manor Care Plan") equal to the
value of the accounts in the Manor Care Plan attributable to all individuals who
are employed by the Sponsoring Company on or about November 1, 1996.
SECTION ONE
PURPOSE OF PLAN
---------------
Designation. The Plan is designated the Choice Hotels International,
-----------
Inc. Retirement Savings and Investment Plan."
A. Purpose. The purpose of the Plan is to provide retirement,
-------
disability, death and employment termination benefits for the Participating
Companies' eligible employees and their beneficiaries. To provide such
benefits, the Participating Companies propose to make contributions to a trust
established in accordance with the requirements of law. Such contributions and
<PAGE>
any income derived therefrom shall be for the exclusive benefit of the
Participating Companies' employees and their beneficiaries and shall not be used
for, or diverted to, any other purpose.
B. Voluntary Participation. An Employee who completes the
-----------------------
eligibility requirements set forth in Section Three of the Plan may voluntarily
elect to participate in the Plan by notifying the Administrative Committee as
described in subparagraph (i) of Paragraph A of Section Six.
SECTION TWO
DEFINITIONS
-----------
As used in the Plan:
A. "Accounts" shall mean a Participant's Company Contribution Account, his
Salary Reduction Contribution Account, and, if applicable, his Company Stock
Account, his Voluntary Account and/or his Rollover Account. The term "Accounts"
shall also include any additional accounts established by the Administrative
Committee, in its sole discretion.
B. "Administrative Committee" shall mean the person or persons or
entity appointed to administer the Plan in accordance with the provisions of
Section Five of the Plan. Notwithstanding
- 2 -
<PAGE>
the foregoing, "Administrative Committee" may also include any individual or
committee to which the Administrative Committee has delegated authority to act
with respect to a specific activity. The Administrative Committee shall be the
"named fiduciary," as referred to in Section 402(a) of ERISA, with respect to
the management, operation and administration of the Plan.
C. " Affiliated Company" shall mean (i) a member of a controlled group
of corporations of which the Sponsoring Company is a member, as determined in
accordance with Section 414(b) of the Internal Revenue Code and the regulations
issued thereunder, (ii) a trade or business which is under common control with
the Sponsoring Company, as determined in accordance with Section 414(c) of the
Internal Revenue Code and the regulations issued thereunder, or (iii) a member
of an affiliated service group of which the Sponsoring Company is a member, as
determined in accordance with Section 414(m) of the Internal Revenue Code. For
this purpose, a "controlled group of corporations" shall mean a controlled group
of corporations as defined in Section 1563(a) of the Internal Revenue Code,
determined without regard to subsections 1563(a)(4) and 1563(e)(3)(C), except
that, with respect to the limitations set forth in Paragraphs D, E and F of
- 3 -
<PAGE>
Section Seven of the Plan and the definitions set forth in Paragraph G of
Section Seven of the Plan, the phrase "more than 50%" shall be substituted for
the phrase "at least 80%" whenever such percentage appears in Section 1563(a)(1)
of the Internal Revenue Code. In addition, "Affiliated Company" shall also
include any other entity designated by the Board of Directors, in its sole
discretion, in which any Participating Company owns an equity interest which
exceeds fifty percent (50%).
D. "Average Contribution Percentage" shall mean the average of the ratios,
calculated separately for each applicable Employee, by which the amount of the
Company Matching Contributions allocated to such Employee with respect to such
Plan Year bears to the amount of such Employee's compensation (as defined in
Section 414(s) of the Internal Revenue Code) for such Plan Year or, at the
election of the Administrative Committee, that portion of the Plan Year during
which the Employee was eligible to participate in the cash or deferred
arrangement under the Plan.
E. "Average Deferral Percentage" shall mean the average of the
ratios, calculated separately for each applicable Employee, by which the amount
of the Salary Reduction Contributions
- 4 -
<PAGE>
contributed to the Trust on behalf of such Employee for a given Plan Year bears
to the amount of such Employee's compensation (as defined in Section 414(s) of
the Internal Revenue Code) for such Plan Year, or, at the election of the
Administrative Committee, for the portion of the Plan Year during which the
Employee was eligible to participate in the cash or deferred arrangement under
the Plan.
F. "Beneficiary" shall mean any person entitled to receive benefits
which are payable upon or after a Participant's death pursuant to Section
Thirteen of the Plan.
G. "Board of Directors" shall mean the Board of Directors of the
Sponsoring Company or any individual or committee to which the Board of
Directors has delegated authority to act with respect to a specific activity.
H. "Company Contribution Account" shall mean the separate account
maintained for a Participant reflecting Company Matching Contributions allocated
to such Participant pursuant to Paragraph B of Section Six of the Plan as
adjusted for earnings or losses thereon in accordance with the provisions of
Section Nine of the Plan. In addition, a Participant's Company Contribution
Account shall include all amounts transferred on behalf of such
- 5 -
<PAGE>
Participant from the Participant's corresponding company contribution account,
if any, in the Manor Care Plan.
I. "Company Matching Contributions" shall mean the contributions made by
the Participating Company to each Participant's Company Contribution Account
pursuant to Paragraph B of Section Six of the Plan, except that all or a portion
of the Company Matching Contributions made with respect to the Plan Year
beginning November 1, 1996 may be made in the form of Manor Care, Inc. stock,
subject to the provisions of Paragraph E of Section Nine.
J. "Company Stock" shall mean common stock issued by the Sponsoring
Company.
K. "Company Stock Account" shall mean the separate account maintained on
behalf of a Participant reflecting the Company Stock allocated to such
Participant's Company Stock Account, together with any cash or stock dividends
on such Company Stock. In addition, a Participant's Company Stock Account shall
include all amounts transferred on behalf of such Participant from the
Participant's corresponding company stock account, if any, in the Manor Care
Plan.
- 6 -
<PAGE>
L. "Compensation" shall mean basic cash compensation, before any payroll
deductions for taxes or any other purposes, including regular commissions paid
by the Participating Companies to an Employee in respect of such Employee's
service to the Participating Companies during the Plan Year increased by any
amounts by which the Employee has elected to reduce his base salary with respect
to such Plan Year under any qualified "cash or deferred arrangement" (as
described in Section 401(k) of the Internal Revenue Code) contained in this Plan
or any other qualified retirement plan maintained by the Participating Companies
or under any "cafeteria plan" (as described in Section 125 of the Internal
Revenue Code) maintained by the Participating Companies. Compensation shall not
include any amounts paid to the Employee as (i) bonuses, (ii) overtime pay,
(iii) except as otherwise provided in the preceding sentence, any amounts paid
during that Plan Year on account of the Employee under this Plan or under any
other employee pension benefit plan (as defined in Section 3(2) of ERISA), and
(iv) except as otherwise provided in the preceding sentence, any amounts which
are not includible in the Employee's income for federal income tax purposes.
- 7 -
<PAGE>
In determining the Compensation of an Employee for a Plan Year, if the
Employee is either a Five-Percent Owner or one of the ten (10) Highly
Compensated Employees paid the greatest Compensation during the Plan Year, then
any Compensation paid by the Participating Companies during such Plan Year to
the spouse of such Employee or to any lineal descendants of such Employee who
have not attained age nineteen (19) prior to the close of the Plan Year shall be
treated as Compensation paid to such Employee for such Plan Year.
For purposes of determining the Plan contributions or benefits for a Plan
Year and for purposes of applying the various nondiscrimination rules under the
Internal Revenue Code, Compensation in any Plan Year shall not include any
amounts in excess of One Hundred and Fifty Thousand Dollars ($150,000), as
adjusted for increases in the cost of living pursuant to Section 401(a)(17) of
the Internal Revenue Code. In 1996, the One Hundred and Fifty Thousand Dollars
($150,000) limitation, as adjusted for increases in the cost of living, is One
Hundred and Fifty-Five Thousand Dollars ($155,000).
M. "Effective Date" of this amendment and restatement of the Plan shall
mean November 1, 1996.
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<PAGE>
N. "Eligibility Computation Period" for each Employee shall mean a
twelve (12) consecutive month period beginning on the date such Employee first
performs an Hour of Service with a Participating Company or an Affiliated
Company; provided, however, that if the Employee does not complete one thousand
(1,000) or more Hours of Service during such twelve (12) month period, the
Eligibility Computation Period shall be the Plan Year, beginning with the Plan
Year immediately following the Plan Year within which the Employee first
performs an Hour of Service with a Participating Company or an Affiliated
Company. If the Employee has a One-Year Break in Service prior to becoming
eligible to participate in the Plan and is subsequently rehired, his Eligibility
Computation Period shall be determined pursuant to this Paragraph beginning on
the date the Employee first completes an Hour of Service with the Participating
Company or the Affiliated Company immediately following his rehire.
O. "Eligibility Year of Service" shall mean an Eligibility Computation
Period during which an Employee completes one thousand (1,000) or more Hours of
Service.
P. "Eligible Participant" shall mean any Participant who (i) completed at
least one thousand (1,000) Hours of Service with
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<PAGE>
the Participating Companies during such Plan Year, (ii) was employed by a
Participating Company or an Affiliated Company on the last day of the Plan Year,
and (iii) elected, pursuant to Paragraph A of Section Six, to reduce his
Compensation during such Plan Year.
Q. "Employee" shall mean any person who is employed by a Participating
Company; provided, however, that the term "Employee" shall not include (i) any
person included in a unit of employees covered by a collective bargaining
agreement (as so determined by the Secretary of Labor) between employee
representatives and a Participating Company if retirement benefits were the
subject of good faith bargaining between such employee representatives and the
Participating Company unless such collective bargaining agreement expressly
provides for the inclusion of such persons as Participants in the Plan and (ii)
nonresident aliens who receive no earned income (within the meaning of section
911(d)(2) of the Internal Revenue Code) from the Participating Companies which
constitutes income from sources within the United States (within the meaning of
section 861(a)(3) of the Internal Revenue Code). Leased Employees shall be
- 10 -
<PAGE>
considered Employees for purposes of the provisions of this Plan, but shall not
be eligible to participate in the Plan.
R. "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time. References in the Plan to any Section of
ERISA shall include any successor provision thereto.
S. "Excess Aggregate Contributions" shall mean, with respect to any
Plan Year, the excess of (i) the sum of all Company Matching Contributions made
to the Trust on behalf of the Highly Compensated Employees for such Plan Year
over (ii) the maximum amount of such Company Matching Contributions for such
Plan Year permitted under the Average Contribution Percentage Test.
T. "Family Member" shall mean, with respect to an Employee, such
Employee's spouse, his lineal ascendants and descendants, and the spouses of
such lineal ascendants and descendants.
U. "Fiscal Year" shall mean the customary fiscal year of a Participating
Company.
V. "Five-Percent Owner" shall mean an individual who (i) owns (or is
considered as owning within the meaning of Section
- 11 -
<PAGE>
318 of the Internal Revenue Code) more than five percent (5%) of the outstanding
stock of a Participating Company or an Affiliated Company or stock possessing
more than five percent (5%) of the total combined voting power of all stock of a
Participating Company or an Affiliated Company provided such entity is a
corporation or (ii) owns more than five percent (5%) of the capital or profits
interest in a Participating Company or an Affiliated Company if such entity is
not a corporation.
W. "Highly Compensated Employee" shall mean an Employee who at any
time during the current Plan Year or the immediately preceding Plan Year (i) was
a Five-Percent Owner, (ii) received more than $75,000 in compensation from the
Participating Companies and the Affiliated Companies, (iii) received more than
$50,000 in compensation from the Participating Companies and the Affiliated
Companies and was one of the top twenty percent (20%) highest paid employees
during the Plan Year, or (iv) was an officer of a Participating Company or an
Affiliated Company and received compensation from the Participating Companies
and the Affiliated Companies of more than $45,000 during the Plan Year (or such
larger amount as may then constitute fifty percent (50%) of the amount in effect
under Section 415(b)(1)(A) of the
- 12 -
<PAGE>
Internal Revenue Code in respect of the Plan Year); provided, however, that an
Employee not falling within clause (ii), (iii) or (iv) above for the preceding
Plan Year shall not be treated as falling within clause (ii), (iii) or (iv)
above for the current Plan Year unless he is a member of the group consisting of
the one hundred (100) employees of the Participating Companies and the
Affiliated Companies paid the greatest compensation by the Participating
Companies and the Affiliated Companies during the current Plan Year. For
purposes of this paragraph, the term "compensation" shall mean "compensation" as
defined in Section 414(q)(7) of the Internal Revenue Code.
The $75,000 and $50,000 amounts in clauses (ii) and (iii) above shall
be adjusted annually in accordance with the pronouncements of the Secretary of
the Treasury or his delegate. For purposes of clause (iv) above, no more than
fifty (50) employees (or, if lesser, the greater of three (3) employees or ten
percent (10%) of all employees) shall be treated as officers, and if for any
Plan Year no officer of a Participating Company or any Affiliated Company is
described in clause (iv) above, then the highest paid officer of the
Participating Companies or the
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<PAGE>
Affiliated Companies for such Plan Year shall be treated as described in
clause (iv) above.
Any former Employee who was a Highly Compensated Employee when he separated
from service or was a Highly Compensated Employee at any time after attaining
age fifty-five (55) shall at all times thereafter be treated as a Highly
Compensated Employee under the Plan.
X. "Hour of Service" shall be determined from records maintained by the
Participating Companies and the Affiliated Companies and shall include the
following:
(i) Performance of Duties. Each hour for which an Employee is
---------------------
directly or indirectly paid, or entitled to payment, by a Participating Company
or an Affiliated Company for the performance of duties. Each such Hour of
Service shall be credited to the Eligibility Computation Period or the Plan
Year, as the case may be, in which the duties were performed.
(ii) Back Pay. Each hour for which back pay (irrespective of
--------
mitigation of damages) has been either awarded or agreed to by a Participating
Company or an Affiliated Company. Each such Hour of Service shall be credited to
the Eligibility Computation Period or the Plan Year, as the case may be, to
which
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<PAGE>
the agreement or award for back pay pertains rather than to the Eligibility
Computation Period or Plan Year, as the case may be, in which the award,
agreement or payment is made.
(iii) Non-Working Time Pay. Each hour for which an Employee is
--------------------
directly or indirectly paid, or entitled to payment, by a Participating Company
or an Affiliated Company on account of a period of time during which no duties
are performed (irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity (including
disability), lay-off, jury duty or lease of absence. Each such Hour of Service
shall be computed and credited in accordance with Department of Labor Regulation
Section 2530.200b.
(iv) No Duplication. An Employee shall not be credited with any Hour
--------------
of Service under both clause (ii) above and clause (i) or (iii) above (as the
case may be) with respect to the same item.
(v) Maternity and Paternity Leave. Solely for purposes of
-----------------------------
determining whether an Employee has incurred a One-Year Break in Service,
such Employee shall be credited for up to five hundred and one (501) Hours of
Service in respect of any period of absence attributable to a maternity or
paternity leave,
- 15 -
<PAGE>
based upon the number of Hours of Service which otherwise normally would have
been credited to such Employee but for such absence or, in any case in which the
Plan is unable to determine the number of Hours of Service which would have
normally been so credited, then such Employee shall be credited with eight (8)
Hours of Service per day of absence. Any such Hours of Service attributable to a
maternity or paternity leave shall be credited in the Eligibility Computation
Period or the Plan Year, as the case may be, in which the maternity or paternity
absence begins if such crediting will prevent the Employee from incurring a
One-Year Break in Service in such Eligibility Computation Period or Plan Year.
Otherwise, such Hours of Service shall be credited in the Eligibility
Computation Period or the Plan Year, as the case may be, following the
Eligibility Computation Period or Plan Year in which the maternity or paternity
leave begins. For these purposes, a maternity or paternity leave of absence
shall include any time during which an Employee is absent from work for any
period: (a) by reason of the pregnancy of the Employee; (b) by reason of the
birth of a child of the Employee; (c) by reason of the placement of a child with
the Employee in connection with the adoption of such child by such individual;
or (d) for purposes of
- 16 -
<PAGE>
caring for such child for a period beginning immediately following such birth
or placement.
Y. "Ineligible Participant" shall mean any Participant who (i) has not
completed at least one thousand (1,000) Hours of Service with the Participating
Companies during the Plan Year, (ii) was not employed by a Participating Company
or an Affiliated Company on the last day of the Plan Year, or (iii) did not
elect, pursuant to Paragraph A of Section Six, to reduce his Compensation.
Z. "Internal Revenue Code" shall mean the Internal Revenue Code of 1986,
as amended from time to time. References in the Plan to any Section of the
Internal Revenue Code shall include any successor provision thereto.
AA. "Investment Election" shall mean the form, filed with the
Administrative Committee or its delegate, or such other procedure as may be
specified by the Administrative Committee at any time, and from time to
time, through which a Participant may designate the manner in which his
Accounts (other than his Company Stock Account) shall be allocated among the
Investment Funds.
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<PAGE>
BB. "Investment Election Date" shall mean the first business day of
each month.
CC. "Investment Fund" shall mean each fund, contract, or other
arrangement designated by the Administrative Committee as an Investment Fund in
which Participants may direct their Accounts to be invested.
DD. "Investment Manager" shall mean any party that (i) is either (a)
registered as an investment adviser under the Investment Advisers Act of 1940,
(b) a bank (as defined in the Investment Advisers Act of 1940), or (c) an
insurance company qualified to manage, acquire and dispose of Plan assets under
the laws of more than one State, (ii) acknowledges in writing that it is a
fiduciary with respect to the Plan, and (iii) is granted the power to manage,
acquire or dispose of any asset of the Plan pursuant to Paragraph G of Section
Five hereof.
EE. "Leased Employee" shall mean any individual who performs services for
a Participating Company or an Affiliated Company in a capacity other than as a
common-law employee if (i) the services are provided pursuant to one or more
agreements between the Participating Company or the Affiliated Company and one
or more leasing organizations, (ii) the individual has
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<PAGE>
performed services for the Participating Company or the Affiliated Company on a
substantially full-time basis for a period of at least one year, and (iii) such
services are of a type historically performed, in the business field of the
Participating Company or the Affiliated Company, by employees. This paragraph
shall be interpreted in accordance with the provisions of Section 414(n) of the
Internal Revenue Code and the regulations thereunder.
FF. "Maximum Reduction Amount" shall mean Seven Thousand Dollars ($7,000)
per calendar year, as adjusted for increases in the cost of living pursuant to
Section 402(g)(5) of the Internal Revenue Code. In 1996, the Maximum Deduction
Amount is Nine Thousand and Five Hundred Dollars ($9,500).
GG. "Net Profits" shall mean, with respect to any Fiscal Year that ends
within a Plan year with respect to which a determination of Net Profits is made,
the Sponsoring Company's consolidated net income or profit for such Fiscal Year
determined upon the basis of the Sponsoring Company's books of account in
accordance with generally accepted accounting principles, without any reduction
for taxes based upon income, or for contributions made by the Sponsoring Company
to this Plan. "Net Profit" shall
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<PAGE>
not include capital gains or losses or income or loss which is determined to be
of a nonrecurring nature. Such determination shall be made solely by the
Administrative Committee.
HH. "One-Year Break in Service" shall mean an Eligibility Computation
Period or a Plan Year, as the case may be, during which an Employee does not
complete more than five hundred (500) Hours of Service.
II. "Participant" shall mean an eligible Employee who becomes a
Participant in the Plan as provided in Section Four of the Plan.
JJ. "Participating Company" shall mean the Sponsoring Company or any
Affiliated Company which adopts the Plan and Trust pursuant to the provisions of
Section Thirty of the Plan.
KK. "Plan" shall mean the Choice Hotels International, Inc. Retirement
Savings and Investment Plan as set forth in this document, and as hereafter
amended.
LL. "Plan Year" shall mean the twelve (12)-consecutive month period ending
on December 31.
MM. "Retirement Date" of a Participant shall mean the Participant's
sixty-fifth (65th) birthday.
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<PAGE>
NN. "Rollover Account" shall mean the separate account maintained for a
Participant reflecting any rollover made by such Participant pursuant to
Paragraph D of Section Four, as adjusted by earnings or losses thereon pursuant
to the provisions of Section Nine of the Plan. In addition, a Participant
Rollover Account shall include all amounts transferred on behalf of such
Participant from one Participant's corresponding rollover account if any, in the
Manor Care Plan.
OO. "Rollover Amount" shall mean any rollover amount or rollover
contribution defined in (i) Section 402(a)(5) or Section 403(a)(4) of the
Internal Revenue Code (relating to certain distributions from an employees'
trust or employee annuity described in Section 401(a) or 403(a) of the Internal
Revenue Code), (ii) Section 408(d)(3) of the Internal Revenue Code (relating to
certain distributions from an individual retirement account or an individual
retirement annuity), or (iii) former Section 409(b)(3)(C) of the Internal
Revenue Code (relating to certain distributions from a retirement bond).
PP. "Salary Reduction Contribution" shall mean the cumulative amount the
Participating Company contributes to the Trust each Plan Year equal to the
amount by which a Participant
- 21 -
<PAGE>
elected to reduce his Compensation for such Plan Year pursuant to Section Six.
QQ. "Salary Reduction Contribution Account" shall mean the account
maintained for a Participant reflecting the Salary Reduction Contributions (if
any) made on behalf of such Participant pursuant to the "cash or deferred
arrangement" set forth in Paragraph A of Section Six as adjusted by earnings or
losses thereon in accordance with the provisions of Section Nine of the Plan.
In addition, a Participant's Salary Reduction Contribution Account shall include
all amounts transferred on behalf of such Participant from the Participant's
corresponding salary reduction contribution account, if any, in the Manor Care
Plan. All amounts held in a Participant's Salary Reduction Contribution Account
shall not be distributable to such Participant (or to his Beneficiary) before
the earliest of:
(a) His attainment of age fifty-nine and one-half (59-1/2), his
Termination of Employment, his death, or his retirement after attaining
Retirement Date or after sustaining a Total and Permanent Disability;
(b) The termination of the Plan without the establishment or
maintenance of another defined contribution plan
- 22 -
<PAGE>
(other than an employee stock ownership plan as defined in Section 4975(e)(7) of
the Internal Revenue Code);
(c) The sale or other disposition by a corporate Participating Company
of substantially all of the assets (within the meaning of Section 409(d)(2) of
the Internal Revenue Code) used by the Participating Company in a trade or
business, but only with respect to a Participant who continues employment with
the corporation acquiring such assets; or
(d) The sale or other disposition by a corporate Participating Company
of its interests in a subsidiary (within the meaning of Section 409(d)(3) of the
Internal Revenue Code), but only with respect to a Participant who continues
employment with such subsidiary.
RR. "Sponsoring Company" shall mean Choice Hotels International, Inc.
SS. "Termination of Employment" shall mean termination of employment with
all Participating Companies and all Affiliated Companies, whether voluntarily
or involuntarily, other than by reason of a Participant's death or his
retirement after attaining his Retirement Date or after sustaining a Total and
Permanent Disability.
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<PAGE>
TT. "Total and Permanent Disability" shall mean physical and/or mental
incapacity of such a nature that it prevents a Participant from engaging in or
performing the principal duties of his customary employment or occupation on a
continuing or sustained basis.
UU. "Trust" shall mean the legal entity resulting from the Trust Agreement
between the Sponsoring Company and the Trustee, which entity receives the
Participating Companies' and the Participants' contributions, and holds, invests
and disburses funds pursuant to the instructions of and to or for the benefit of
Participants and their Beneficiaries.
VV. "Trust Agreement" shall mean the Choice Hotels International, Inc.
Retirement Savings and Investment Trust Agreement executed by the Sponsoring
Company and the Trustee as amended from time to time.
WW. "Trust Fund" shall mean the total of contributions made by the
Participating Companies and the Participants to the Trust pursuant to the Plan
together with the assets of the Prior Plan and the assets of the Manor
Healthcare Plan and the Quality Inns Plan transferred to the Plan upon the
merger of those plans into this Plan, increased by profits, gains, income
and recoveries
- 24 -
<PAGE>
received, and decreased by losses, depreciation, benefits paid and expenses
incurred in the administration of the Trust. The Trust Fund shall include all
assets acquired by investment and reinvestment which are held in the Trust by
the Trustee.
XX. "Trustee" shall mean the party or parties, individual or corporate,
named in the Trust Agreement and any duly appointed additional or successor
Trustee acting thereunder. The Trustee and the Investment Managers, if any,
shall be the "named fiduciaries" referred to in Section 402(a) of ERISA with
respect to the control, management and disposition of the assets of the Trust.
YY. "Valuation Date" shall mean the last day of each month or any other
date the Administrative Committee, in its sole discretion, shall select as a
Valuation Date.
ZZ. "Voluntary Account" shall mean the total amount in a Participant's
Voluntary Account as adjusted for earnings or losses thereon in accordance with
the provisions of Section Nine of the Plan. In addition, a Participant's
Voluntary Account shall include all amounts transferred on behalf of such
Participant from the Participant's corresponding voluntary account, if any, in
the Manor Care Plan.
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<PAGE>
AAA. "Year of Service" shall mean a Plan Year during which an Employee
completes one thousand (1,000) or more Hours of Service. In addition, the Board
of Directors, in its sole discretion, may elect to grant Years of Service in
connection with a stock or asset acquisition to reflect employment periods prior
to the date of such stock or asset acquisition. 'Years of Service,' in the case
of an individual who transfers from the employment of Manor Care, Inc. to the
employment of a Participating Company prior to June 1, 1998, shall also include
all Years of Service earned with respect to service performed on behalf of Manor
Care, Inc.
BBB. Wherever appropriate, words used in the Plan in the singular may
mean the plural, the plural may mean the singular, and the masculine may mean
the feminine.
SECTION THREE
REQUIREMENTS FOR ELIGIBILITY
----------------------------
Any Employee (other than a Leased Employee) who was a participant in the
Manor Care, Inc. Retirement Savings and Investment Plan on October 31, 1996 and
who is employed by the Sponsoring Company on November 1, 1996 shall
automatically become a Participant in this Plan on November 1, 1996. Any other
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<PAGE>
Employee (other than a Leased Employee) shall be eligible to elect to have
Salary Reduction Contributions made on his behalf under the Plan and to share in
the allocations of Company Matching Contributions under the Plan as of the first
day of the first full pay period of the month following the date upon which such
Employee has (i) completed an Eligibility Year of Service and (ii) attained age
twenty-one (21), provided such Employee is employed by a Participating Company
on such date. Any Employee who does not elect to have Salary Reduction
Contributions made on his behalf under the Plan as of the first day of the first
full pay period of the first month on which he is first eligible shall be
allowed to make a subsequent election to have Salary Reduction Contributions
made on his behalf as of the first business day of any subsequent month. Leased
Employees shall not be eligible to participate in the Plan.
Any Participant who otherwise meets the requirements of this Section Three,
who suffers a Termination of Employment, and who is subsequently rehired by a
Participating Company, shall become eligible to elect to have Salary Reduction
Contributions made on his behalf under the Plan effective as of the date of his
rehire and to share in the allocations of the Company Matching
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<PAGE>
Contributions under the Plan provided the individual meets the criteria of an
Eligible Participant for such Plan Year and provided further that the period of
time between the individual's initial date of Termination of Employment and the
individual's date of rehire does not exceed the greater of (a) five (5) years or
(b) the period of the individual's employment performed prior to the date of his
initial Termination of Employment. Notwithstanding the foregoing, a Participant
who suffers a Termination of Employment with vested Accounts in the Plan and who
is not subsequently rehired until the occurrence of a period of absence greater
than (a) or (b) above shall be treated as a new Employee for purposes of
determining such individual's eligibility to participate in the Plan.
SECTION FOUR
PARTICIPATION IN THE PLAN
-------------------------
A. Participation in the Cash or Deferred Arrangement. Upon meeting the
-------------------------------------------------
eligibility requirements set forth in Section Three, each eligible Employee
shall be notified that he is so eligible.
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<PAGE>
B. Information to Participants. Each Participant shall be provided with
---------------------------
such information as is required by ERISA within the time prescribed for
providing such information. In addition, each Participant shall be provided with
a designation of beneficiary form with which he may designate one or more
Beneficiaries to receive benefits in the event of his death. The designation of
beneficiary form shall include an explanation of the spousal death benefit rules
of Section Thirteen.
C. Rollover Amount. Any Employee (other than a Leased Employee) may file
---------------
a written petition with the Administrative Committee requesting that it direct
the Trustee to accept a Rollover Amount from such Employee. An Employee may make
such election prior to satisfaction of the age and service requirements
described in Section Three. The Administrative Committee, in its sole
discretion, shall determine whether or not such Employee shall be permitted to
contribute a Rollover Amount to the Trust. Any written petition filed pursuant
to this Paragraph D shall set forth the amount of such Rollover Amount and a
statement, satisfactory to the Administrative Committee, that such contribution
constitutes a Rollover Amount.
- 29 -
<PAGE>
Any Rollover Amount contributed to the Trust shall be maintained in a
separate, fully-vested Rollover Account on behalf of the Employee. The Employee
may direct the investment of such Rollover Account in accordance with the
provisions of Section Nine of the Plan. The Rollover Account shall be
distributed to an Employee or, where applicable, his Beneficiary at the same
time and in the same manner as provided in the Plan for the distribution of
other Accounts in the Plan.
SECTION FIVE
ADMINISTRATION OF THE PLAN
--------------------------
A. Responsibility for Administration of the Plan. The Administrative
---------------------------------------------
Committee shall be responsible for the management, operation and administration
of the Plan.
B. Appointment of Administrative Committee. The Board of Directors of
---------------------------------------
the Sponsoring Company shall appoint an Administrative Committee consisting of
at least one (1) but not more than seven (7) persons. The Administrative
Committee shall be responsible for the management, operation and administration
of the Plan. Any member of the Administrative Committee may resign upon ten (10)
days prior written notice to the Board of
- 30 -
<PAGE>
Directors of the Sponsoring Company. The Board of Directors of the Sponsoring
Company shall be authorized to remove any member of the Administrative
Committee at any time and in its sole discretion to appoint a successor
whenever a vacancy on the Administrative Committee occurs.
C. Responsibility for Administration of the Trust Fund. The Trustee
---------------------------------------------------
shall be responsible for the administration of the Trust Fund in accordance with
the provisions of the Trust Agreement.
D. Delegation of Powers. The Administrative Committee may appoint such
--------------------
assistants or representatives as it deems necessary for the effective exercise
of its duties in administering the Plan and Trust. The Administrative Committee
may delegate to such assistants and representatives any powers and duties, both
ministerial and discretionary, as it deems expedient or appropriate.
E. Records. All acts and determinations with respect to the
-------
administration of the Plan made by the Administrative Committee and any
assistants or representatives appointed by it shall be duly recorded by the
Administrative Committee or by the assistant or representative appointed by it
to keep such records.
- 31 -
<PAGE>
All records, together with such other documents as may be necessary for the
administration of the Plan, shall be preserved in the custody of the
Administrative Committee or the assistants or representatives appointed by it.
F. General Administrative Powers. The Administrative Committee
-----------------------------
shall have all powers necessary to administer the Plan in accordance with its
terms, including the power to construe the Plan and to determine all questions
that may arise thereunder. In the exercise of such powers under the Plan, the
Administrative Committee shall have discretionary authority to interpret the
terms of the Plan and to determine eligibility for and entitlement to Plan
benefits in accordance with the terms of the Plan. Any interpretation or
determination made pursuant to such discretionary authority shall be given full
force and effect, unless it can be shown that the interpretation or
determination was arbitrary and capricious.
G. Appointment of Professional Assistance and Investment Manager. The
-------------------------------------------------------------
Administrative Committee may engage accountants, attorneys, physicians and
such other personnel as it deems necessary or advisable. The Administrative
Committee, in its sole discretion, may appoint one or more Investment
Managers to
- 32 -
<PAGE>
manage (including the power to acquire or dispose of) all or any of the assets
of the Trust provided that such appointment is approved by the Board of
Directors of the Sponsoring Company. The functions of any such persons engaged
by the Administrative Committee shall be limited to the specific services and
duties for which they are engaged, and such persons shall have no other duties,
obligations or responsibilities under the Plan or Trust. Such persons shall
exercise no discretionary authority or discretionary control respecting the
management of the Plan, and, unless engaged specifically as Investment Manager,
shall exercise no authority or control respecting management or disposition of
the assets of the Trust. The fees and costs of such services shall be an
administrative expense of the Plan to be paid out of the Trust Fund, except to
the extent that such fees and costs are paid by the Participating Companies.
H. Actions by the Administrative Committee. All actions of the
---------------------------------------
Administrative Committee shall be taken pursuant to the decision of a majority
of the then members of the Administrative Committee.
I. Directives of the Administrative Committee. Directives of the
------------------------------------------
Administrative Committee to the Trustee shall be delivered
- 33 -
<PAGE>
in writing, signed by an appropriate member of the Administrative Committee.
J. Discretionary Acts. Any discretionary actions of the Administrative
------------------
Committee or the Sponsoring Company with respect to the administration of the
Plan shall be made in a manner which does not discriminate in favor of
stockholders, officers and Highly Compensated Employees. In the event the
Administrative Committee exercises any discretionary authority under the Plan
with respect to a Participant who is a member of the Administrative Committee,
such discretionary authority shall be exercised solely and exclusively by those
members of the Administrative Committee other than such Participant, or, if such
Participant is the sole member of the Administrative Committee, such
discretionary authority shall be exercised solely and exclusively by the Board
of Directors of the Sponsoring Company.
K. Payment of Fees and Expenses. The members of the Administrative
----------------------------
Committee and their assistants and representatives shall be entitled to payment
from the Trust Fund for all reasonable costs, charges and expenses incurred in
the administration of the Plan and Trust, including, but not limited to,
reasonable fees for accounting, legal and other services
- 34 -
<PAGE>
rendered, to the extent incurred by the members of the Administrative Committee
or their assistants and representatives in the course of performance of their
duties under the Plan and the Trust, except to the extent that such fees and
costs are paid by the Participating Companies. Notwithstanding any other
provision of the Plan or Trust, no person who receives full-time pay from the
Participating Companies shall receive compensation from the Trust Fund, except
for reimbursement of expenses properly and actually incurred.
L. Plan Administrator. The Sponsoring Company shall be the
------------------
"administrator" (as defined in Section 3(16)(A) of ERISA) of the Plan, and shall
be responsible for the performance of all reporting and disclosure obligations
under ERISA and all other obligations required or permitted to be performed by
the Plan administrator under ERISA. The Vice President of Human Resources of the
Sponsoring Company shall be the designated agent for service of legal process.
The Trustee may also receive service of legal process for the Plan.
M. Allocation and Delegation of Administrative Committee
-----------------------------------------------------
Responsibilities. The Administrative Committee may upon approval of a majority
- ----------------
of the members of the Administrative Committee, (i)
- 35 -
<PAGE>
allocate among any of the members of the Administrative Committee any of the
responsibilities of the Administrative Committee under the Plan or (ii)
designate any person, firm or corporation that is not a member of the
Administrative Committee to carry out any of the responsibilities of the
Administrative Committee under the Plan. Any such allocation or designation
shall be made pursuant to a written instrument executed by a majority of the
members of the Administrative Committee.
SECTION SIX
CONTRIBUTIONS
-------------
A. Salary Reduction Contributions. On behalf of each Participant
------------------------------
who has elected to reduce his Compensation pursuant to subparagraph (i) of this
Paragraph A, the Participating Company employing such Participant shall
contribute to the Trust each Plan Year the Salary Reduction Contributions as
elected by such Participant.
(i) Compensation Reduction Election. A Participant may elect to
-------------------------------
reduce his Compensation through regular payroll deductions by notifying the
Administrative Committee, no later than the first business day of the month as
of which such
- 36 -
<PAGE>
election is intended to become effective, pursuant to such notification
procedures as the Administrative Committee may establish, from time to time.
Such election shall remain in effect for subsequent Plan Years until suspended
or revoked pursuant to subparagraph (iii) of this Paragraph A.
The aggregate amount by which a Participant may elect to reduce his
Compensation under this Plan and under the Choice Hotels International, Inc.
Nonqualified Retirement Savings and Investment Plan, shall be in whole
percentages of his Compensation determined without regard to the One Hundred
Fifty Thousand Dollar ($150,000) limitation described in Paragraph L of Section
Two and shall not exceed fifteen percent (15%) of his Compensation for any Plan
Year. In no event may the total amount by which a Participant elects to reduce
his Compensation under this Plan with respect to a Plan Year exceed the Maximum
Reduction Amount.
(ii) Maximum Reduction Amount. If the amount of the Salary Reduction
------------------------
Contributions made to the Plan for any calendar year (together with any other
salary reduction contributions made during the calendar year to any other plans
which contain qualified "cash or deferred arrangements" as described in Section
401(k) of the Internal Revenue Code) with respect to any
- 37 -
<PAGE>
Participant exceeds the Maximum Reduction Amount, the full amount of such excess
(the "Excess Deferrals") shall be returned to the Participant (together with any
earnings attributable thereto for the calendar year) by no later than the April
15 following the end of such calendar year; provided, however, that the amount
of Excess Deferrals that shall be distributed to such Participant for such
calendar year shall be reduced by the amount of any Excess Contributions (as
defined in Paragraph C of this Section Six) previously distributed to such
Participant for the Plan Year beginning with such calendar year. With respect to
the Plan Year beginning November 1, 1996, each Participant eligible to receive
an allocation of Company Matching Contributions will receive 100% of such
allocation of Company Matching Contributions in the form of shares of Company
Stock.
(iii) Suspension of Reductions. A Participant may, by filing the
------------------------
appropriate form, elect to suspend his Compensation reductions. Such voluntary
suspension shall be effective as of the first day of the first applicable
payroll period commencing after the receipt and completion of processing of the
appropriate form by the Administrative Committee. Any such suspension shall
remain in effect until the following month, at which time the Participant may
recommence such Compensation reductions. During
- 38 -
<PAGE>
such period of suspension, the Salary Reduction Contributions made on behalf of
such Participant shall be suspended. A Participant may not make up suspended
Compensation reductions. The Compensation reductions of a Participant and the
Salary Reduction Contributions made on behalf of such Participant shall be
suspended automatically for any payroll period in which such Participant does
not receive any Compensation.
B. Company Matching Contributions.
------------------------------
(i) Amount of Contributions. On behalf of each Eligible Participant,
-----------------------
the Participating Company employing such Eligible Participant shall contribute
to the Trust out of its Net Profits each Plan Year an amount (the "Company
Matching Contribution") equal to a percentage of the amount of Salary Reduction
Contributions made on behalf of such Eligible Participant during such Plan Year.
The aggregate amount of the Company Matching Contribution which may be allocated
to each Eligible Participant's Company Contribution Account for such Plan Year
under this Plan and under the Choice Hotels International, Inc. Nonqualified
Retirement Savings and Investment Plan shall not exceed six percent (6%) of his
Compensation, determined without regard to the One Hundred and Fifty Thousand
Dollar ($150,000) limitation described in Paragraph L of Section Two. For these
- 39 -
<PAGE>
purposes, Compensation shall be determined after increasing such Eligible
Participant's Compensation, as defined in Paragraph L of Section Two, by any
basic cash compensation which such Eligible Participant has elected to defer
through any nonqualified deferred compensation program established by the
Sponsoring Company. This percentage shall be based upon the Eligible
Participant's Years of Service in accordance with the following schedule:
- 40 -
<PAGE>
Years of Service Matching Percentage
---------------- -------------------
1 to 5 years 25%
6 to 9 years 75%
10 or more years 100%
Notwithstanding the above, however, the combination of the Company Matching
Contribution made to this Plan for any Plan Year when combined with Company
Matching Contribution made with respect to such Plan Year under the Choice
Hotels International, Inc. Nonqualified Retirement Savings and Investment Plan
shall not exceed six percent (6%) of the Net Profits of the Sponsoring Company
determined with respect to the fiscal year that ends within such Plan Year. If
the combined Company Matching Contributions would otherwise exceed the six
percent (6%) limitation, then the amount of available Company Matching
Contributions shall be pro-rated among the two plans based upon the relative
Company Matching Contributions otherwise due to both programs.
(ii) Remittance of Company Matching Contributions. Each
--------------------------------------------
Participating Company shall make its Company Matching Contributions to the Trust
in cash by no later than the last date, including any extensions thereof, for
filing its federal income tax return for its Fiscal Year ending with or after
the last day of such Plan Year.
- 41 -
<PAGE>
(iii) Inclusion of Ineligible Participant. If, in any Plan Year, any
-----------------------------------
person who should not have been included as a Participant in the Plan is
erroneously included and discovery of such incorrect inclusion is not made until
after a contribution for the Plan Year has been made and allocated, the
Participating Company shall not be entitled to recover the contribution made
with respect to the Ineligible Participant regardless of whether or not a
deduction is allowable with respect to such contribution. In such event, the
amount contributed with respect to the Ineligible Participant shall constitute a
forfeiture for the Plan Year in which the discovery is made.
(iv) Company Matching Contributions for First Plan Year. For
--------------------------------------------------
purposes of the first Plan Year and pursuant to the provisions of the Employee
Benefits & Other Employment Matters Allocation Agreement between Manor Care,
Inc. and Choice Hotels Holdings, Inc., the amounts initially transferred to the
Trust from the trust associated with the Manor Care Plan shall be supplemented
by an amount equal to the matching contribution amount described in Paragraph B
of Section Six of the Manor Care Plan on behalf of all Participants whose
accounts in the Manor Care Plan are transferred to the Plan on or about November
1, 1996. Such supplemental amount shall be made by Manor Care, Inc.
- 42 -
<PAGE>
and treated as an annual addition under the Manor Care Plan with respect to the
compensation earned through November 1, 1996.
C. Nondiscrimination Rules Applicable to Salary Reduction
------------------------------------------------------
Contributions. Notwithstanding any other provisions of the Plan, the Average
- -------------
Deferral Percentage (as defined below) of the Highly Compensated Employees for a
Plan Year shall not exceed the greater of (i) one hundred and twenty-five
-------
percent (125%) of the Average Deferral Percentage of all the other Employees
(the "Remaining Employees") for such Plan Year, or (ii) a percentage amount
which is equal to the lesser of (a) the Average Deferral Percentage of the
Remaining Employees for such Plan Year plus two (2) percentage points or (b) two
hundred percent (200%) of the Average Deferral Percentage of the Remaining
Employees for such Plan Year. For purposes of this test (hereinafter the
"Average Deferral Percentage Test"), only Employees who are eligible to
participate in the cash or deferred arrangement under the Plan shall be counted.
In calculating each Employee's Average Deferral Percentage ratio, the
Salary Reduction Contributions made on behalf of such Employee shall be taken
into account only if they relate to Compensation that either (i) would have been
received by the Employee in the Plan Year but for the deferral election or (ii)
- 43 -
<PAGE>
was attributable to services performed by the Employee in the Plan Year and
would have been received by the Employee within two and one-half (2-1/2) months
after the close of the Plan Year but for the deferral election. In addition, in
calculating each Employee's Average Deferral Percentage ratio, the Salary
Reduction Contributions made on behalf of such Employee shall be taken into
account for a Plan Year only if such contributions were allocated to the
Employee under the Plan as of a date within that Plan Year, which requirement
shall be deemed satisfied if the allocations are not contingent upon the
Employee's participation in the Plan or the performance of services on any date
subsequent to the end of the Plan Year and the contributions are actually paid
to the Trust no later than the end of the twelve (12) month period immediately
following the Plan Year to which the contributions relate. Notwithstanding the
foregoing, the Administrative Committee may, in its sole discretion, adjust the
percentage by which a Participant has elected to reduce his Compensation in
order to enable the Plan to satisfy the nondiscrimination test.
If two (2) or more plans maintained by a Participating Company or an
Affiliated Company which contain qualified "cash or deferred arrangements" under
Section 401(k) of the Internal
- 44 -
<PAGE>
Revenue Code are aggregated for purposes of Section 401(a)(4) or Section 410(b)
of the Internal Revenue Code, all such cash or deferred arrangements shall be
treated as one cash or deferred arrangement for purposes of this Average
Deferral Percentage Test. If a Highly Compensated Employee participates in two
or more plans described in Section 401(a) of the Internal Revenue Code which are
maintained by a Participating Company or an Affiliated Company and to which
contributions subject to Section 401(k) of the Internal Revenue Code are made,
all such contributions shall be aggregated for purposes of this Average Deferral
Percentage Test. Finally, if any Highly Compensated Employee who is either a
Five-Percent Owner or in the group consisting of the ten (10) Highly Compensated
Employees paid the greatest Compensation by the Participating Companies and the
Affiliated Companies during the Plan Year has a Family Member participating in
this Plan, then any compensation paid to such Family Member shall be aggregated
with the compensation of such Highly Compensated Employee and any Salary
Reduction Contributions made on behalf of such Family Member shall be aggregated
with the Salary Reduction Contributions made on behalf of such Highly
Compensated Employee for purposes of this Average Deferral Percentage Test.
- 45 -
<PAGE>
The amount of any Excess Contributions (as defined below) for a Plan
Year (together with any earnings or losses allocable thereto for the Plan Year)
shall be distributed to the Highly Compensated Employees based upon the
respective portions of the Excess Contributions attributable to each such Highly
Compensated Employee. The amount of the Excess Contributions to be distributed
to each such Highly Compensated Employee for a Plan Year shall be determined by
use of a leveling method, under which the Average Deferral Percentage ratio of
the Highly Compensated Employee with the highest ratio shall be reduced to the
extent necessary to enable the Plan to satisfy the Average Deferral Percentage
Test or to cause such Highly Compensated Employee's Average Deferral Percentage
ratio to equal the ratio of the Highly Compensated Employee with the next
highest ratio. This process shall be repeated until the Plan satisfies the
Average Deferral Percentage Test.
Any corrective distribution of Excess Contributions shall be made no
later than the last day of the Plan Year following the Plan Year for which such
Excess Contributions were made. The amount of any Excess Contributions to be
distributed to a Highly Compensated Employee for a Plan Year shall be reduced by
the amount of any Excess Deferrals (as defined in subparagraph (ii)
- 46 -
<PAGE>
of Paragraph A of this Section Six) which were previously distributed to such
Highly Compensated Employee for his taxable year ending with or within such Plan
Year.
D. Nondiscrimination Rules Applicable to Company Matching
------------------------------------------------------
Contributions. Notwithstanding any other provisions of the Plan, the Average
- -------------
Contribution Percentage of the Highly Compensated Employees for any Plan Year
shall not exceed the greater of (i) one hundred and twenty-five percent (125%)
of the Average Contribution Percentage applicable to all other Employees (the
"Remaining Employee") for such Plan Year or (ii) a percentage amount which is
equal to the lesser of (a) the Average Contribution Percentage of the Remaining
Employees for such Plan Year plus two (2) percentage points or (b) two hundred
percent (200%) of the Average Contribution Percentage of the Remaining Employees
for such Plan Year. For purposes of this test (hereinafter the "Average
Contribution Percentage Test"), only Employees who are eligible to participate
in the cash or deferred arrangement under the Plan shall be counted.
If a Highly Compensated Employee participates in two (2) or more plans
described in Section 401(a) of the Internal Revenue Code which are maintained by
a Participating Company or an Affiliated Company and to which contributions
subject to Section
- 47 -
<PAGE>
401(m) of the Internal Revenue Code are made, all such contributions shall be
aggregated for purposes of this Average Contribution Percentage Test. In
addition, if two (2) or more plans maintained by a Participating Company or an
Affiliated Company to which contributions subject to Section 401(m) of the
Internal Revenue Code are made are aggregated for purposes of Internal Revenue
Code Section 401(a)(4) or 410(b) (other than the average benefits test under
Section 410(b)(2)(A)(ii)), all such plans shall be treated as one plan for
purposes of this Average Contribution Percentage Test. Furthermore, if any
Highly Compensated Employee who is either a Five-Percent Owner or in the group
consisting of the ten (10) Highly Compensated Employees paid the greatest
Compensation by the Participating Companies and the Affiliated Companies during
the Plan Year has a Family Member (as defined in Paragraph C of this Section
Six) participating in this Plan, any compensation paid to such Family Member and
any Company Matching Contributions allocated to such Family Member shall be
aggregated with the compensation and the Company Matching Contributions of such
Highly Compensated Employee for purposes of this Paragraph D.
The amount of any Excess Aggregate Contributions for a Plan Year
(together with earnings or losses allocable to such
- 48 -
<PAGE>
contributions for such Plan Year) shall be forfeited by the Highly Compensated
Employees on whose behalf such Excess Aggregate Contributions were contributed
to the Trust, based upon the respective portions of the Excess Aggregate
Contributions attributable to each such Highly Compensated Employee. The amount
of the Excess Aggregate Contributions for a Plan Year to be forfeited by each
such Highly Compensated Employee shall be determined by the use of a leveling
method, under which the Average Contribution Percentage ratio of the Highly
Compensated Employee with the highest ratio shall be reduced to the extent
necessary to enable the Plan to satisfy the Average Contribution Percentage Test
for such Plan Year or to cause such Highly Compensated Employee's ratio to equal
the ratio of the Highly Compensated Employee with the next highest Average
Contribution Percentage ratio. This process shall be repeated until the Plan
satisfies the Average Contribution Percentage Test for such Plan Year.
Any Excess Aggregate Contributions (together with earnings or losses
thereon) which are forfeited under this Paragraph D shall be treated in the same
manner as forfeitures of Non-Vested Amounts under Paragraph C of Section
Fourteen of the Plan.
- 49 -
<PAGE>
E. Additional Adjustments. In accordance with regulations issued by
----------------------
the Internal Revenue Service under Internal Revenue Code Sections 401(k) and
401(m), the Administrative Committee may, in its sole discretion, treat some or
all of the Company Matching Contributions as being subject to the Average
Deferral Percentage Test described in Paragraph C, above, and may make such
other adjustments to the amounts contributed and allocated under the Plan as may
be necessary to comply with the multiple use test established under Treasury
Regulation Section 1.401(m)-2.
SECTION SEVEN
ALLOCATION TO PARTICIPANTS' ACCOUNTS
------------------------------------
A. Maintenance of Accounts. There shall be maintained on behalf of
-----------------------
each Participant a Company Contribution Account, a Salary Reduction Contribution
Account, and, if applicable, a Company Stock Account, a Voluntary Account and/or
a Rollover Account. The Participant's interest in his Company Contribution
Account shall be subject to the vesting schedule set forth in Paragraph A of
Section Fourteen. The Participant's interest in his Salary Reduction
Contribution Account, and, if applicable, his Company Stock Account, his
Voluntary Contribution Account
- 50 -
<PAGE>
and/or his Rollover Account shall be one hundred percent (100%) vested at all
times.
B. Method of Allocating Salary Reduction Contributions. Subject to
---------------------------------------------------
the limitations of Paragraph D of this Section Seven, the Salary Reduction
Contributions for each Plan Year shall be allocated among the Salary Reduction
Contribution Accounts of all Participants who elected to reduce their
Compensation for such Plan Year pursuant to the provisions of Paragraph A of
Section Six. The amount to be allocated to each such Participant's Salary
Reduction Contribution Account for such Plan Year shall be equal to the amount
by which such Participant elected to reduce his Compensation for such Plan Year
pursuant to the provisions of Paragraph A of Section Six.
C. Method of Allocating Company Matching Contributions. Subject to
---------------------------------------------------
the limitations of Paragraph D of this Section Seven, the Company Matching
Contribution for each Plan Year shall be allocated among the Company
Contribution Accounts of all Eligible Participants (as defined in Paragraph B of
Section Six of the Plan) in an amount (not to exceed six percent (6%) of each
such Eligible Participant's Compensation) equal to a percentage of the amount by
which each such Eligible Participant elected to reduce his Compensation for such
Plan Year pursuant to the provisions of
- 51 -
<PAGE>
Paragraph A of Section Six, which percentage shall be based upon the Eligible
Participant's Years of Service in accordance with the following schedule:
Years of Service Matching Percentage
---------------- -------------------
1 to 5 years 25%
6 to 9 years 75%
10 or more years 100%
D. Limitation on Annual Additions.
------------------------------
(i) Notwithstanding any other provisions of the Plan, the sum of the
Annual Additions to a Participant's Accounts for any Limitation Year shall not
exceed the lesser of (i) Thirty Thousand Dollars ($30,000) or, if greater, one-
fourth (1/4) of the dollar limitation then in effect under Section 415(b)(1)(A)
of the Internal Revenue Code, or (ii) twenty-five percent (25%) of such
Participant's Limitation Year Compensation. The term "Annual Additions" to a
Participant's Accounts for any Limitation Year shall mean the sum of:
(a) All Participating Company contributions allocated to the
Participant's Accounts for the Plan Year ending with such Limitation Year; and
(b) If employee contributions are permitted under the Plan, the
amount of such Participant's employee contributions
- 52 -
<PAGE>
(excluding any Rollover Amount) for the Plan Year ending with such Limitation
Year.
(ii) In the event that it is determined that, but for the limitations
contained in subparagraph (i) of this Paragraph D, the Annual Additions to a
Participant's Accounts for any Limitation Year would be in excess of the
limitations contained herein, such Participant's allocable share of the Company
Matching Contribution shall be reduced to the extent necessary to bring such
Annual Additions within the limitations contained in subparagraph (i) of this
Paragraph D.
(iii) If and to the extent that the amount of any Participant's share
of the Company Matching Contribution is reduced in accordance with the
provisions of subparagraph (ii) of this Paragraph D, the amount of such
reductions shall be maintained in a suspense account under the Trust
(hereinafter referred to as the "Suspense Account") to be allocated among
Participants in the next succeeding Plan Year, in accordance with the provisions
of Paragraph B of this Section Seven, as if such amount were part of the Company
Matching Contribution for such next succeeding Plan Year (and succeeding Plan
Years, as necessary). In addition, the following rules shall apply to any
- 53 -
<PAGE>
Suspense Account established in accordance with this subparagraph (iii):
(a) No portion of the net income, loss, appreciation or depreciation
in the value of the Trust Fund may be allocated to such Suspense Account.
(b) The maximum Company Matching Contribution for any Plan Year in
which a Suspense Account exists may not exceed the difference between:
(A) The maximum Company Matching Contribution which could be
allocated among all Eligible Participants for such Plan Year in accordance with
the provisions of this Section Seven,
Less
----
(B) The full amount of the Suspense Account.
(c) In the event that the Plan is terminated at a time when a
Suspense Account exists and in the further event that the full amount of such
Suspense Account cannot be allocated among the Participants in the Plan as of
the date of the termination of the Plan due to the restrictions set forth in
this Section Seven, then, notwithstanding any other provision of this Plan or
the Trust Agreement to the contrary, the amount of such
- 54 -
<PAGE>
Suspense Account that cannot be allocated among the Participants shall revert to
the Participating Companies.
E. Limitations on Annual Additions Due to Participation in Other Defined
---------------------------------------------------------------------
Contribution Plans. In the event that any Participant in this Plan is a
- ------------------
participant in any other Defined Contribution Plan (whether or not terminated)
maintained by a Participating Company or an Affiliated Company, the total amount
of Annual Additions to such Participant's accounts in all such Defined
Contribution Plans shall not exceed the limitations set forth in Paragraph D of
this Section Seven. If it is determined that as a result of the limitations set
forth in this Paragraph E the Annual Additions to a Participant's Accounts in
this Plan must be reduced, such reduction shall be accomplished in accordance
with the provisions of Paragraph D of this Section Seven.
F. Limitations on Annual Additions Due to Participation in Defined
---------------------------------------------------------------
Benefit Plans. In the event that any Participant in this Plan is a participant
- -------------
in one or more Defined Benefit Plans (whether or not terminated) maintained by a
Participating Company or an Affiliated Company, then for any Limitation Year the
sum of the Defined Benefit Plan Fraction for such Limitation Year and the
Defined Contribution Plan Fraction for such Limitation Year
- 55 -
<PAGE>
shall not exceed one (1.0). If it is determined that as a result of the
limitations set forth in this Paragraph F the Annual Additions to a
Participant's Accounts in this Plan must be reduced, such reduction shall be
accomplished in accordance with the provisions of Paragraph D of this Section
Seven.
G. Definitions Relating to Annual Additions Limitations. For purposes of
----------------------------------------------------
Paragraphs D, E, F and this Paragraph G of Section Seven, the following
definitions shall apply:
(i) "Retirement Plan" shall mean (a) any profit-sharing, pension or
stock bonus plan described in Sections 401(a) and 501(a) of the Internal Revenue
Code, (b) any annuity plan or annuity contract described in Sections 403(a) or
403(b) of the Internal Revenue Code, (c) any qualified bond purchase plan
described in former Section 405(a) of the Internal Revenue Code, and (d) any
individual retirement account, individual retirement annuity or retirement bond
described in Sections 408(a), 408(b) or former Section 409 of the Internal
Revenue Code.
(ii) "Defined Contribution Plan" shall mean a Retirement Plan which
provides for an individual account for each participant and for benefits based
solely on the amount contributed to the participant's accounts, and any income,
expenses, gains and losses, and any forfeitures of accounts of
- 56 -
<PAGE>
other participants which may be allocated to such participant's account.
(iii) "Defined Benefit Plan" shall mean any Retirement Plan which
does not meet the definition of a Defined Contribution Plan.
(iv) "Defined Benefit Plan Fraction," for any Limitation Year, shall
mean a fraction (a) the numerator of which is the projected annual benefit of
the Participant (the annual benefit to which such participant would be entitled
under the terms of the Defined Benefit Plan on the assumptions that he continues
employment until his normal retirement age as determined under the terms of such
Defined Benefit Plan, that his compensation continues at the same rate as in
effect in the Limitation Year under consideration until the date of his normal
retirement age and that all other relevant factors used to determine benefits
under such Defined Benefit Plan remain constant as of the current Limitation
Year for all future Limitation Years) under all Defined Benefit Plans maintained
by the Participating Companies and the Affiliated Companies, determined as of
the close of the Limitation Year, and (b) the denominator of which is the lesser
of (I) the product of the dollar limitation in effect under Section 415(b)(1)(A)
of the
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<PAGE>
Internal Revenue Code for such Limitation Year multiplied by one and twenty-five
one-hundredths (1.25) or (II) the product of the Participant's average
compensation for his high three years multiplied by one and four tenths (1.4).
(v) "Defined Contribution Plan Fraction," for any Limitation Year,
shall mean a fraction (a) the numerator of which is the sum of the Annual
Additions to the Participant's accounts under all Defined Contribution Plans
maintained by the Participating Companies and the Affiliated Companies in such
Limitation Year, and (b) the denominator of which is the sum of the lesser of
the following amounts for such Limitation Year and for all prior Limitation
Years during which he performed service recognized under such plans: (I) the
product of the dollar limitation in effect under Section 415(c)(1)(A) of the
Internal Revenue Code for each such Limitation Year times one and twenty-five
one-hundredths (1.25) or (II) the product of twenty-five percent (25%) of such
Participant's Limitation Year Compensation for such Limitation Year times one
and four tenths (1.4).
(vi) "Limitation Year" shall mean the twelve (12) consecutive month
period ending on December 31 of each year.
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<PAGE>
(vii) "Limitation Year Compensation" shall mean the aggregate of all
wages, salaries, and other amounts paid for personal services rendered which are
received by an Employee from the Participating Companies and the Affiliated
Companies within a Limitation Year, to the extent that such amounts are
includible in gross income. Limitation Year Compensation shall not include
deferred compensation, stock options and other distributions which receive
special tax benefit. Limitation Year Compensation shall be calculated in
accordance with the provisions of Section 415(c)(3) of the Internal Revenue Code
and the regulations issued thereunder.
H. Change of Employee Status. If any Participant does not suffer a
-------------------------
Termination of Employment but ceases to be an Employee by reason of becoming (i)
a nonresident alien or (ii) included in a unit of employees covered by a
collective bargaining agreement with regard to which there has been good faith
bargaining with respect to retirement benefits, then unless the applicable
collective bargaining agreement otherwise provides, during the period that such
Participant is not an Employee, (a) such Participant shall not receive any
further allocation of any contributions under the Plan, other than an allocation
of the Salary Reduction Contributions made on behalf on such Participant
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<PAGE>
for the period of time during which he was an Employee and an allocation of the
Company Matching Contribution for the Plan Year in which he ceased to be an
Employee if he completed one thousand (1,000) or more Hours of Service with the
Participating Companies during the portion of such Plan Year prior to the date
on which he so ceased to be an Employee, and (b) such Participant's Accounts
shall continue to share in the earnings or losses of the Trust Fund. If any
person who derives Compensation from the Company does not become a Participant
in the Plan because he is not an Employee and he subsequently qualifies as an
Employee, such person shall become eligible to become a Participant in the Plan
immediately upon such change of status if he has then fulfilled the requirements
for eligibility set forth in Section Three.
SECTION EIGHT
EVALUATION OF TRUST FUND
------------------------
The Trustee shall evaluate the Trust Fund at fair market value as of the
close of business on the last day of the Plan Year. In making such evaluation,
the Trustee shall deduct all charges, expenses and other liabilities, if any,
contingent or otherwise, then chargeable against the Trust Fund and not
otherwise payable by the Participating Companies, in order to give effect to
income realized and expenses paid or incurred,
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<PAGE>
losses sustained and unrealized gains or losses constituting appreciation or
depreciation in the value of Trust investments since the last previous
valuation. All such charges shall be allocated among the Accounts of the
Participants in an equitable manner based upon the source and nature of such
charges and the Investment Funds in which each such Account has been invested.
As soon as practicable after such valuation, the Trustee shall deliver in
writing to the Administrative Committee and to the Board of Directors of the
Sponsoring Company a valuation of the Trust Fund, including a separate breakdown
of each Participant's Accounts, together with a statement of the amount of net
income or loss (including appreciation or depreciation in the value of Trust
investments) since the last previous valuation.
SECTION NINE
PARTICIPANTS' ACCOUNTS
----------------------
A. Separate Accounts. A separate Company Contribution Account, a separate
-----------------
Salary Reduction Contribution Account, and, if applicable, a separate Company
Stock Account, a separate Voluntary Account, a separate Rollover Account and any
other account deemed necessary by the Administrative Committee shall be
maintained for each Participant. The amount contributed by a
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<PAGE>
Participant or allocated to such Participant shall be credited to his Accounts
in the manner set forth in Sections Six and Seven hereof. All payments to a
Participant or his Beneficiaries shall be charged against the respective
Accounts of such Participant.
B. Accounts of Participants Transferred to an Affiliated Company. If a
-------------------------------------------------------------
Participant is transferred to an Affiliated Company which has not adopted the
Plan, the amount in the Trust which is credited to his Accounts shall continue
to be governed by the provisions of the Plan and Trust.
C. Annual Adjustment of Participant's Accounts. Promptly after prepar-
-------------------------------------------
ation of the Trustee's evaluation, as provided in Section Eight above, the
Accounts of each Participant shall be adjusted so that the amount of net income,
loss, appreciation or depreciation in the value of assets invested in an
Investment Fund shall be allocated equitably and exclusively to the
Participants' Accounts invested in such Investment Fund.
D. Investment of Contributions.
---------------------------
(i) Participant-Directed Investments. In accordance with procedures
--------------------------------
established by the Administrative Committee, each Participant shall have the
opportunity, on or before each Investment Election Date, to make an Investment
Election with the Administrative Committee or its delegate. This election shall
be
- 62 -
<PAGE>
effective beginning on the Investment Election Date following its receipt by the
Administrative Committee or its delegate and shall continue in effect until
revoked or modified as of a subsequent Investment Election Date. Any such
modification or revocation of an Investment Election shall be effective on the
Investment Election Date following the receipt by the Administrative Committee
or its delegate of a new Investment Election. The following restrictions shall
apply to such investment elections:
(a) No election may be made in violation of any applicable investment
contract or other agreement establishing an Investment Fund;
(b) Transfers among the available Investment Funds may be made only
in whole percentage multiples of one percent (1%) of the balances therein; and
(c) Shares of Company Stock which have been allocated to a
Participant's Company Contribution Account or Company Stock Account may be
liquidated or otherwise converted into another form of investment. Any shares
of Company Stock which must be acquired by the Trust to effectuate an investment
election shall be purchased on the open market (or otherwise acquired in any
other manner as may be specified from time to time by the Administrative
Committee) as soon as practicable after the next
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<PAGE>
applicable Valuation Date. Any dividends paid with respect to Company Stock
shall be used to purchase additional whole or partial shares of Company Stock as
soon as practicable after the next Valuation Date.
In addition, the Administrative Committee, in its sole discretion, may from
time to time establish special Investment Election Dates to provide the
Participants with additional opportunities to designate the manner in which
their Accounts shall be allocated among the then-available Investment Funds.
(d) The Administrative Committee shall establish a uniform and
nondiscriminatory set of procedures pursuant to which any Manor Care, Inc.
common stock which is held in a Participant's Company Stock Account or Company
Contribution Account as a result of the transfer of assets from the Manor Care
Plan to this Plan is converted into Company Stock or cash. Any Manor Care, Inc.
common stock which is not so liquidated shall be retained in the Participant's
Company Stock Account and Company Contribution Account. Such shares may not be
liquidated prior to the payment of benefits to such Participant from his Company
Stock Account and Company Contribution Account in accordance with the provisions
of the Plan. Any dividends payable with respect to
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<PAGE>
Manor Care, Inc. stock retained by the Plan shall be reinvested in additional
shares of Manor Care, Inc. stock.
(ii) Administrative Committee Directed Investments. All Accounts
---------------------------------------------
(other than Company Stock Accounts) not subject to an Investment Election filed
with the Administrative Committee pursuant to subparagraph (i) above shall be
invested in a money market fund or other liquid or pooled fund investment
vehicle selected by the Administrative Committee.
E. Special Rules Regarding Manor Care, Inc. Stock. It is anticipated
----------------------------------------------
that the Company Stock Accounts and Company Contribution Accounts of
Participants shall initially be credited with shares of Manor Care, Inc. stock
as a result of the transfer of assets from the Manor Care, Inc. Nonqualified
Retirement Savings and Investment Plan and the Company Matching Contributions
made with respect to the 1996 Plan Year. The Administrative Committee shall
establish a uniform and non-discriminatory set of procedures pursuant to which a
Participant may elect that all or any portion of the Manor Care, Inc. stock held
in his Company Stock Account or Company Contribution Account be liquidated and
the proceeds therefrom reinvested among the then-available investment funds. It
is anticipated that such election period shall occur in November and December of
1996.
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<PAGE>
Manor Care, Inc. stock which is not so liquidated will be retained in the
Participant's Company Stock Account and Company Contribution Account. Such
shares may not be liquidated prior to the payment of benefits to such
Participant from his Company Stock Account and Company Contribution Account in
accordance with the provisions of the Plan. Any dividends payable with respect
to Manor Care, Inc. stock retained by the Plan will be reinvested in additional
shares of Manor Care, Inc. stock.
SECTION TEN
COMMON TRUST FUND
-----------------
The fact that for administrative purposes separate Accounts are maintained
for each Participant shall not be deemed to segregate for such Participant, or
to give such Participant any direct interest in, any specific assets in the
Trust Fund held by the Trustee. All such assets may be held and administered by
the Trustee as a commingled fund.
SECTION ELEVEN
DISABILITY BENEFITS
-------------------
A. Disability Retirement Benefits. If a Participant retires by reason of a
------------------------------
Total and Permanent Disability while in the employ of
- 66 -
<PAGE>
of a Participating Company or an Affiliated Company, his Company Contribution
Account shall fully vest, and he shall be entitled to receive benefits equal to
the total amount in his Accounts in the Plan as determined in accordance with
the provisions of Paragraph A of Section Fifteen hereof. Such benefits shall be
paid at the time and in the manner specified in Section Fifteen of the Plan.
B. Determination of Disability. The Administrative Committee shall
---------------------------
determine whether a Participant has suffered a Total and Permanent Disability
and its determination in that respect shall be binding upon the Participant. In
making its determination, the Administrative Committee may (i) require the
Participant to submit to medical examinations by doctors selected by the
Administrative Committee or (ii) rely upon a determination that the Participant
is entitled to disability benefits payable under Title II of the Social Security
Act, 42 U.S.C. 301 et seq., or similar subsequent section, as evidenced by a
-- ---
Certificate of Social Security Insurance Award. The provisions of this Section
Eleven shall be uniformly and consistently applied to all Participants.
SECTION TWELVE
RETIREMENT BENEFITS
-------------------
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<PAGE>
If a Participant is employed by a Participating Company or an Affiliated
Company on his Retirement Date, his Company Contribution Account shall fully
vest at that time. If the Participant continues in a Participating Company's
employ after his Retirement Date, he shall continue to be eligible to elect to
have Salary Reduction Contributions made on his behalf under the Plan and to
share in the allocations of Company Matching Contributions under the Plan until
his actual retirement. Upon retirement on or after attaining his Retirement
Date, a Participant shall be entitled to receive benefits equal to the total
amount in his Accounts in the Plan as determined in accordance with the
provisions of Paragraph A of Section Fifteen hereof. Such benefits shall be paid
at the time and in the manner specified in Section Fifteen of the Plan.
SECTION THIRTEEN
DEATH BENEFITS
--------------
A. Death Benefits. Upon the death of a Participant who is employed by a
--------------
Participating Company or an Affiliated Company at the time of his death, such
deceased Participant's Company Contribution Account shall fully vest, and his
Beneficiary shall be entitled to receive benefits equal to the total amount in
the
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<PAGE>
deceased Participant's Accounts in the Plan as determined in accordance with the
provisions of Paragraph A of Section Fifteen hereof. Upon the death of a
Participant who is not employed by a Participating Company or an Affiliated
Company at the time of his death, such deceased Participant's Beneficiary shall
be entitled to receive benefits equal to the vested amount in the deceased
Participant's Accounts in the Plan as determined in accordance with the
provisions of Paragraph A of Section Fourteen. In either event, such benefits
shall be paid at the time and in the manner specified in Section Fifteen of the
Plan.
B. Designation of Beneficiaries. Subject to rules contained in the
----------------------------
following paragraph, each Participant may designate one or more Beneficiaries
and contingent Beneficiaries by delivering a written designation thereof over
his signature to the Administrative Committee. Again subject to the rules
contained in the following paragraph, a Participant may designate different
Beneficiaries at any time by delivering a new written designation over his
signature to the Administrative Committee. Any such designation shall become
effective only upon its receipt by the Administrative Committee. The last
effective designation received by the Administrative Committee shall supersede
all prior designations. A designation of a Beneficiary shall be
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<PAGE>
effective only if the designated Beneficiary survives the Participant.
Notwithstanding the above, if a Participant is married at the time of his
death, such Participant's surviving spouse shall be his Beneficiary, unless such
spouse has waived this right and consented to the Participant's designation of a
different Beneficiary. Any such spousal consent must be in writing, must
acknowledge the effect of the waiver, and must be witnessed by a notary public.
Any subsequent designation of a Beneficiary by the Participant shall require a
new spousal consent, unless the spouse's original consent expressly permits
future changes without additional spousal consent.
C. Failure of Participant to Designate. If a Participant fails to
-----------------------------------
designate a Beneficiary, or if no designated Beneficiary survives the
Participant, the Participant shall be deemed to have designated the following
Beneficiaries (if then living) in the following order of priority: (1) his
spouse, (2) his children, including adopted children and stepchildren, in equal
shares, (3) his parents, in equal shares, and (4) his estate.
D. Beneficiaries' Rights. Whenever the rights of a Participant are
---------------------
stated or limited in the Plan, his Beneficiaries shall be bound thereby.
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<PAGE>
SECTION FOURTEEN
EMPLOYMENT TERMINATION BENEFITS
-------------------------------
A. Vesting Upon Termination of Employment. In the event of the Termination of
--------------------------------------
Employment of a Participant, such Participant shall be entitled to receive (i)
one hundred percent (100%) of the amounts (if any) in his Salary Reduction
Contribution Account, his Company Stock Account, his Voluntary Account, and his
Rollover Account, and (ii) the following percentage of the amount in his Company
Contribution Account, based upon the number of his Years of Service prior to
such Termination of Employment, as follows:
Years of Service Percentage
---------------- ----------
Less than 3 years None
3 years 20%
4 years 40%
5 years 60%
6 years 80%
7 or more years 100%
Such benefits shall be paid at the time and in the manner set forth in Section
Fifteen of the Plan.
B. Counting Years of Service. For purposes of this Section Fourteen,
-------------------------
all Years of Service (whether or not
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<PAGE>
continuous) shall be taken into account, except Years of Service which are
disregarded as follows:
(i) In the case of any Participant who has a One-Year Break in
Service, Years of Service before such break shall not be taken into account
until such Participant has completed a Year of Service after such break.
(ii) In the case of any Participant who has no vested amount in the
Plan attributable to Participating Company contributions, Years of Service
before any period of consecutive One-Year Breaks in Service shall not be taken
into account if the number of consecutive One-Year Breaks in Service equals or
exceeds the greater of (a) five (5) or (b) the aggregate number of Years of
Service before such break. Such aggregate number of Years of Service before
such break shall be deemed not to include any Years of Service not required to
be taken into account under this Paragraph B by reason of any prior breaks in
service.
(iii) In the case of any Participant who has five (5) or more
consecutive One-Year Breaks in Service, Years of Service after such break shall
not be taken into account for purposes of determining the vested amount in his
Company Contribution Account which accrued prior to such break.
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<PAGE>
C. Forfeiture of Non-Vested Amount. The excess of (i) the amount in the
-------------------------------
Company Contribution Account of a Participant whose Termination of Employment
has occurred, over (ii) the vested amount in such Company Contribution Account
as determined in accordance with the vesting schedule set forth in Paragraph A
of this Section Fourteen (such difference being referred to herein as the "Non-
Vested Amount") shall be forfeited upon the earlier of (i) the Participant's
receipt of a distribution of his total vested Accounts under the Plan, or (ii)
his incurring his second (2nd) consecutive One-Year Break in Service following
such Termination of Employment. For this purpose, if such a Participant had no
vested Accounts in the Plan upon his Termination of Employment, he shall be
deemed to have received a distribution of zero dollars ($0) from the Plan upon
his Termination of Employment, representing a distribution of his total vested
Accounts under the Plan.
If a Participant who has received a distribution of his total vested
Accounts under the Plan (i) is rehired by a Participating Company and performs
more than five hundred (500) Hours of Service in any Plan Year before incurring
five (5) consecutive One-Year Breaks in Service and (ii) repays the full amount
of his prior distribution within five (5) years of the
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<PAGE>
date on which he is rehired by the Participating Company, any previously
forfeited Non-Vested Amount shall be restored to his Company Contribution
Account, and he shall continue to earn future Years of Service for purposes of
determining the vested amount in such Account without regard to his cessation of
employment. The funds needed to restore such a Participant's Non-Vested Amount
shall be drawn first from any Account balances forfeited under the provisions of
this Paragraph C or under the provisions of Paragraph G of Section Fifteen
during the Plan Year in which such restoration is required. If such sources are
not sufficient to fully restore the previously forfeited Non-Vested Amount to
the Participant's Company Contribution Account, the Participating Company which
rehired such Employee shall make a special contribution earmarked to fund the
remainder of the amount needed.
Subject to the immediately preceding paragraph and to the provisions
of Paragraph G of Section Fifteen, all Non-Vested Amounts which are forfeited
during a Plan Year under this Paragraph C shall be used to reduce the future
cost of benefits by applying such forfeited Non-Vested Amounts to the current
or the following year's Company Matching Contribution required under the Plan.
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<PAGE>
SECTION FIFTEEN
PAYMENT OF BENEFITS
-------------------
A. Retirement, Disability and Death Benefits. The Administrative
-----------------------------------------
Committee shall make distribution of the benefits payable to a Participant (or,
if applicable, his Beneficiary) upon such Participant's retirement on or after
attaining his Retirement Date or upon sustaining a Total and Permanent
Disability or upon such Participant's death while employed by a Participating
Company or an Affiliated Company. Such distribution shall be made as soon as
administratively feasible following the close of the Plan Year in which such
retirement, Total and Permanent Disability or death occurs, and shall be based
upon the balance in such Participant's Accounts as of the Valuation Date
coincident with or immediately preceding such distribution.
At the request of the Participant (or, if applicable, his
Beneficiary), the Administrative Committee shall make such distribution prior to
the close of the Plan Year in which such retirement, Total and Permanent
Disability, or death occurs. In such event, the benefit payable to the
Participant (or, if applicable, his Beneficiary) shall be based upon the
balances in
- 75 -
<PAGE>
such Participant's Accounts as of the Valuation Date immediately preceding the
distribution, supplemented, where applicable, by an amount representing any
Salary Reduction Contributions contributed to the Plan on behalf of such
Participant subsequent to such Valuation Date and any Rollover Amounts
contributed to the Plan by such Participant subsequent to such Valuation Date.
Notwithstanding the foregoing, if the total benefits payable to a
Participant under this Paragraph A exceed Three Thousand Five Hundred Dollars
($3,500), such benefits may not be distributed to such Participant before he
reaches his Retirement Date unless he consents to an earlier distribution.
B. Employment Termination Benefits. The Administrative Committee
-------------------------------
shall make an employment termination benefit distribution to a Participant (or,
if applicable, his Beneficiary) as soon as administratively feasible following
the close of the Plan Year in which the Participant's Termination of Employment
occurs. The benefits payable to a Participant (or, if applicable, his
Beneficiary) upon such Participant's Termination of Employment shall be based
upon the vested amount (as provided in Paragraph A of Section Fourteen) in his
Company Contribution Account and the total amount in his other Accounts as of
the
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<PAGE>
Valuation Date coincident with or immediately preceding the date on which the
distribution is made.
At the request of the Participant (or, if applicable, his
Beneficiary), the Administrative Committee shall, if administratively feasible,
make such distribution prior to the close of the Plan Year in which the
Participant's Termination of Employment occurs. In such event, the benefit
payable to the Participant or Beneficiary shall be based upon the vested amount
(as provided in Paragraph A of Section Fourteen) in such Participant's Company
Contribution Account and the total amount in his other Accounts as of the
Valuation Date immediately preceding the distribution, supplemented, where
applicable, by an amount representing any Salary Reduction Contributions
contributed to the Plan on behalf of such Participant subsequent to such
Valuation Date and any Rollover Amounts contributed to the Plan by such
Participant subsequent to such Valuation Date. In the event that an Employee
incurs a Termination of Employment after the attainment of age fifty-five (55),
any distribution made to such Employee shall be exempt from the ten percent
(10%) additional tax on early distributions imposed under Section 72(t) of the
Internal Revenue Code.
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<PAGE>
Notwithstanding the foregoing, if the total vested benefits payable to
a Participant under this Paragraph B exceed Three Thousand Five Hundred Dollars
($3,500), such benefits may not be distributed to such Participant before he
reaches his Retirement Date unless he consents to an earlier such distribution.
In the event that a distribution is made pursuant to this Paragraph B
to a Participant who, at the time of such distribution, is not one hundred
percent (100%) vested in the amount in his Company Contribution Account, the
following rules shall apply:
(i) Establishment of Separate Ledger Account. The Administrative
----------------------------------------
Committee shall establish a separate ledger account (hereinafter referred to as
the "Separate Account") for such Participant as of the time of such
distribution. The balance in such Participant's Company Contribution Account
immediately following such distribution shall be transferred to this Separate
Account and shall constitute the initial balance of this Separate Account. For
this purpose, all references to a Participant's Company Contribution Account in
the Plan shall be deemed applicable to such Participant's Separate Account.
(ii) Subsequent Payments. In the event that after such distribution
-------------------
the former Employee is rehired by a Participating
- 78 -
<PAGE>
Company but then again incurs a Termination of Employment at a time when such
Participant is less than one hundred percent (100%) vested in his Separate
Account, then the nonforfeitable portion of such Participant's Separate Account
for purposes of Paragraph A of Section Fourteen shall be an amount equal to:
(A) The vesting percentage set forth in Paragraph A of
Section Fourteen applicable to such Participant at the time of such subsequent
distribution,
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<PAGE>
Multiplied by:
-------------
(B) The sum of the present balance in the Separate Account
plus the sum of all prior distribution amounts,
- ----
Less:
----
The sum of all prior distribution amounts.
C. Methods of Payment of Benefits. Except as otherwise provided in
------------------------------
this Section Fifteen, the Administrative Committee shall make distribution of
the benefits payable under Paragraph A or B of this Section Fifteen in
accordance with the method of distribution set forth below selected by the
Participant (or in the case of death benefits, by the Participant's
Beneficiary):
(i) Total Distribution. Benefits may be paid in the form of a
------------------
total distribution of the amount payable, in cash, to the Participant or
Beneficiary within one taxable year of such Participant or Beneficiary.
(ii) Annuity Payments. Benefits may be paid as an annuity for a
----------------
fixed number of years without regard to the duration of the life of the
Participant or Beneficiary. Any benefit in the form of annuity payments shall
be provided by the purchase of a nontransferable immediate or deferred payment
annuity contract from an insurance company selected by the
- 80 -
<PAGE>
Administrative Committee. Any annuity contract so purchased shall be delivered
to the Participant or Beneficiary.
(iii) Installment Payments. Benefits may be paid (a) in the
--------------------
form of approximately equal annual, semi-annual, quarterly, or monthly
installments, over a fixed period of time, or (b) in the form of annual payments
over a specified period of years in an amount for each year equal to the value
of the Participant's Accounts as of the Valuation Date for such year multiplied
by a fraction whose numerator is one (1) and whose denominator is the number of
years remaining in such specified period of years.
At the election of a Participant or Beneficiary, the payment of any
benefits to the Participant in installments may be accelerated and the unpaid
balance distributed to such Participant or Beneficiary in a single distribution.
(iv) Limits on Deferred Payments. In the event that benefits
---------------------------
are distributed in the form of annuity payments or installment payments, such
benefits shall be paid in substantially equal periodic amounts over a period of
years such that the cost or present value of the payments to be made to the
Participant during his life expectancy is greater than one-half (1/2) of the
amount credited to his Accounts at the date such
- 81 -
<PAGE>
payments commence. In no event may the Trustee pay to a Participant or
Beneficiary interest only on his benefits.
(v) Distribution of Company Stock. Notwithstanding the fore-
-----------------------------
going, the distribution of the benefits attributable to that portion of the
Participant's Company Stock Account and Company Contribution Account held in the
form of Company Stock shall be made (i) in cash if the aggregate number of
shares in such accounts is fifty (50) or less, or (ii) in cash or Company Stock
or both if the aggregate number of shares in such accounts is more than fifty
(50). Prior to making a distribution of benefits, the Administrative Committee
shall advise the Participant (or, if applicable, his Beneficiary) in writing of
the right to demand that that portion of the Participant's Company Stock Account
and Company Contribution Account held in the form of Company Stock be
distributed solely in Company Stock, if such accounts contain in the aggregate
greater than fifty (50) shares. If the Participant (or, if applicable, his
Beneficiary) fails to make such demand in writing within ninety (90) days after
receipt of such written notice, the Administrative Committee shall direct the
Trustee to make distribution of that portion of the Participant's Company Stock
Account and Company Contribution Account held in Company Stock in such form as
the
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<PAGE>
Administrative Committee, in its sole discretion, shall determine.
If a Participant (or, if applicable, his Beneficiary) demands that
that portion of the Participant's Company Stock Account and Company Contribution
Account held in the form of Company Stock be distributed solely in Company
Stock, and if such accounts contain in the aggregate greater than fifty (50)
shares, the distribution of such applicable portion of his Company Stock Account
and Company Contribution Account held in the form of Company Stock shall be made
entirely in whole shares or other units of Company Stock. Any cash balance in
the Participant's Company Stock Account shall be used to acquire for
distribution the maximum number of whole shares or other units of Company Stock
at the then fair market value. Any fractional unit of the unexpended balance
shall be distributed in cash. If Company Stock is not available for purchase by
the Trustee, then the Trustee shall hold such balance until Company Stock is
acquired and then make such distribution. If the Trustee is unable to purchase
the Company Stock required for distribution, it shall make distribution in cash
within one (1) year after the date the distribution was to be made, except in
the case of a retirement distribution, which shall be made within sixty (60)
days after
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<PAGE>
the close of the Plan Year in which the Participant's retirement occurs.
D. Required Distributions. Notwithstanding any other provision of
----------------------
the Plan to the contrary, unless a Participant elects otherwise, or fails to
submit proper documentation, the distribution of his benefits under the Plan
shall begin no later than the sixtieth (60th) day after the close of the Plan
Year in which the latest of the following events occurs: (i) the Participant
------
reaches his Retirement Date, (ii) the ten (10) year anniversary of the date the
Participant commenced participation in the Plan occurs, or (iii) the Participant
terminates employment with the Participating Companies and all Affiliated
Companies.
Also notwithstanding any other provision of the Plan to the contrary
and in accordance with the provisions of Section 401(a)(9) of the Internal
Revenue Code, the distribution of a Participant's benefits under the Plan shall
commence no later than April 1 of the calendar year following the calendar year
in which the Participant attains age seventy and one-half (70-1/2), regardless
of whether the Participant is still employed by a Participating Company or an
Affiliated Company at that time.
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<PAGE>
All benefit distributions must be paid over a period of time which
does not exceed the life expectancy of the Participant or the combined life
expectancy of the Participant and his Designated Beneficiary (as defined below).
In the event a Participant dies after distribution of his benefits has begun,
-----
but before the Participant's full benefits have been distributed, the remaining
portion of such benefits shall be distributed at least as rapidly as under the
method of distribution being used as of the date of his death. In the event a
Participant dies prior to commencement of the receipt of benefits, the death
--------
benefits attributable to such Participant shall be distributed within five (5)
years of the Participant's death, provided, however, that any portion of the
death benefits which is payable to (or for the benefit of) a Designated
Beneficiary may be distributed, commencing within one (1) year of the
Participant's death, over the life of such Designated Beneficiary (or over a
period not extending beyond the life of such Designated Beneficiary) and further
provided that if the Designated Beneficiary is the Participant's surviving
spouse, distribution need not begin earlier than the date on which the
Participant would have attained age seventy and one-half (70-1/2). For purposes
of this paragraph, the term "Designated Beneficiary"
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<PAGE>
shall mean an individual designated (or deemed to be designated under Paragraph
C of Section Thirteen) as a Beneficiary by the Participant.
E. Distribution of Small Account Balances. Notwithstanding any
--------------------------------------
other provision of the Plan to the contrary, if the total value of the vested
Accounts to be distributed to a Participant (or, if applicable, his Beneficiary)
on account of such Participant's retirement after attaining his Retirement Date
or after sustaining a Total and Permanent Disability, his death, or his
Termination of Employment is Three Thousand Five Hundred Dollars ($3,500) or
less, the Administrative Committee shall distribute such benefits to such
Participant (or, if applicable, his Beneficiary) in the form of a single payment
of the total amount of such benefits. Such payment shall be made no later than
sixty (60) days after the Valuation Date of the Plan Year within which such
Participant so retires after attaining his Retirement Date or after sustaining a
Total and Permanent Disability, dies or incurs a Termination of Employment, or
as soon thereafter as is administratively feasible. Such payment shall be in
full discharge of all obligations under the Plan with respect to such
Participant or Beneficiary. However, no distribution may be made pursuant to
this Paragraph E after the
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<PAGE>
date benefit payments commence under the Plan without the written consent of the
Participant (or, if the Participant has died, his surviving spouse).
F. Loans to Participants. Pursuant to the procedures and limita-
---------------------
tions stated in that certain document entitled "Rules and Procedures Governing
Plan Loans to Participants," upon the written application of a Participant, the
Administrative Committee shall make a loan or loans to the Participant,
provided:
(i) that the total amount of any such loan to a Participant
(when added to the outstanding balance of all previous loans, if any, made to
the Participant by the Plan) shall not exceed the lesser of (a) Fifty Thousand
------
Dollars ($50,000) reduced by the excess (if any) of (I) the highest outstanding
balance of all previous loans, if any, made to the Participant by the Plan
during the one-year period ending on the day before the date the loan is made,
over (II) the outstanding balance of all previous loans, if any, made to such
Participant by the Plan on the date the loan is made, or (b) fifty percent (50%)
of the total vested amount of the Participant's Accounts at the time of the
loan; and
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<PAGE>
(ii) that the amount of the loan shall not be less than Seven
Hundred Fifty Dollars ($750) or such other amount as the Administrative
Committee may determine in its sole discretion.
Interest shall be charged on such a loan at the prevailing rate of
interest at the time of making the loan which persons in the business of lending
money for loans would charge in similar circumstances.
Each such loan shall be secured by a portion of the Participant's
vested Accounts not otherwise used to secure loans to the Participant equal to
the amount of the loan; provided, however, that at the time the loan is made no
more than fifty percent (50%) of the total vested amount of the Participant's
Accounts may be used to secure loans to the Participant under the Plan. Each
such loan shall be considered an investment of the individual Accounts of the
Participant used to secure the loan.
Each loan made to a Participant pursuant to this Paragraph F shall be
subject to substantially level amortization over the term of the loan, with
payments due not less frequently than quarterly. Each loan by its terms shall
be required to be repaid within five (5) years of the date of the loan is made;
provided, however, that a "home loan" (as described in Section 72(p)(2)(B)(ii)
of the Internal Revenue Code) may, in the
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<PAGE>
discretion of the Administrative Committee, be repaid over a reasonable period
of time in excess of five (5) years.
Each such loan shall be repaid through salary withholding or other
means approved by the Administrative Committee. In the event a Participant does
not repay all or any portion of such loan when the same becomes due and payable,
in addition to any legal remedies which the Administrative Committee may have,
the Administrative Committee shall, upon the occurrence of an event permitting a
distribution of the Participant's Accounts under this Plan, deduct the unpaid
amount of such loan from the Participant's Accounts in the Plan.
The Participant loan program established under this Paragraph F shall
be subject to the terms and conditions of the "Rules and Procedures Governing
Plan Loans to Participants." Such "Rules and Procedures Governing Plan Loans to
Participants" shall contain, at a minimum, the information required under
Department of Labor Regulations Section 2550.408b-1(d)(2). The terms and
conditions of the "Rules and Procedures Governing Plan Loans to Participants"
shall be established and approved by the Administrative Committee, which shall
have the authority to amend such terms and conditions from time to time. A copy
of the most recent "Rules and Procedures Governing Plan Loans to
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<PAGE>
Participants" shall at all times be maintained by the Administrative Committee
or its delegate.
G. Benefits of Persons Who Cannot Be Located. If the Administrative
-----------------------------------------
Committee determines in good faith that a Participant or Beneficiary entitled to
receive a benefit payment hereunder cannot be located, the Administrative
Committee shall nevertheless give written notice to such person of the fact that
such benefit payment is payable to him under the Plan. Such written notice
shall be given by United States mail to the person entitled to the benefit
payment (according to the records of the Plan) at the last known address of such
person. In addition, the Administrative Committee shall use such other means as
are reasonably available to it in order to ascertain the location of such
person. If such Participant or Beneficiary makes no claim for such benefit
payment before the earlier of (i) a period of two (2) years after the giving of
such written notice or (ii) the termination of the Plan, then the Administrative
Committee shall declare a forfeiture of the benefit otherwise payable to such
person, provided such person has not yet been located.
Notwithstanding the foregoing, if a claim for payment of such benefit
is thereafter made by the Participant or Beneficiary, such benefit shall be
reinstated and paid in full.
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<PAGE>
If such a valid claim for payment of benefits is subsequently made, the funds
needed to pay such benefit shall be drawn first from any amounts forfeited under
the provisions of this Paragraph G or under the provisions of Paragraph C of
Section Fourteen during the Plan Year in which such payment is required. If such
sources are not sufficient to fully pay such benefits, the Participating Company
which last employed the Participant to whom such benefits are attributable shall
make a special contribution earmarked to fund the remainder of the amount
needed.
Subject to the immediately preceding paragraph and to the provisions
of Paragraph C of Section Fourteen, all amounts which are forfeited during a
Plan Year under this Paragraph G shall be used to reduce the future cost of
benefits by applying such forfeited amounts to the current or following year's
Company Matching Contribution of the Participating Companies.
H. Pre-Retirement Distributions. A Participant may elect to withdraw
----------------------------
all or any portion of his Voluntary Account prior to his retirement, death,
Total and Permanent Disability or Termination of Employment. Only one such
withdrawal may be made during any Plan Year. Amounts withdrawn from a
Participant's Voluntary Account shall be distributed to the electing Participant
within sixty (60) days following the first day of the
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<PAGE>
month following the election. No pre-retirement distributions from a
Participant's other Accounts in the Plan shall be made for any reasons other
than the Participant's death, Total and Permanent Disability, or Termination of
Employment.
I. Post-Age 59 1/2 Withdrawals. A Participant may withdraw any
---------------------------
portion, including earnings thereon, of his vested Accounts at any time on or
after attaining age 59 1/2, provided such Participant gives at least thirty (30)
days advance written notice to the Administrative Committee. After making an
initial post-age 59 1/2 withdrawal, a Participant may make additional
withdrawals of any remaining amounts in his vested Accounts upon giving the
applicable thirty (30) day advance notice at any time prior to his Termination
of Employment.
J. Distribution for Minor Beneficiary. In the event a distribution
----------------------------------
is to be made to a minor, then the Administrative Committee may, in its sole
discretion, direct that such distribution be paid to the legal guardian, or if
none, to a parent of such Beneficiary or a responsible adult with whom the
Beneficiary maintains his residence, or to the custodian for such Beneficiary
under the Uniform Gift to Minors Act or Gift to Minors Act, if such is permitted
by the laws of the state in which said Beneficiary resides. Such a payment to
the legal
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<PAGE>
guardian or parent of a minor Beneficiary shall fully discharge the Trustee,
Participating Companies and Plan from further liability on account thereof.
K. Hardship Withdrawals. A Participant who has not reached age
--------------------
fifty-nine and one-half (59-1/2) may withdraw an amount from his Salary
Reduction Contribution Account prior to Termination of Employment only if such
Participant displays, to the satisfaction of the Administrative Committee or its
delegate, that such withdrawal is necessary in light of a financial hardship,
that the amount requested to be withdrawn does not exceed the amount required to
meet the financial needs created by the hardship and that such an amount is not
reasonably available from the other resources of the Participant. The amounts
which may be withdrawn under this Paragraph K shall not include earnings and
gains on a Participant's Salary Reduction Contribution Account and may not
exceed the value of such Salary Reduction Contribution Account at the time of
withdrawal.
The following expenses shall be deemed to constitute an immediate and
heavy financial need: (i) medical expenses incurred by the Participant, his
spouse or dependents; (ii) the purchase of a principal residence of the
Participant (excluding mortgage payments); (iii) the payment of tuition for the
next
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<PAGE>
semester or quarter of post-secondary education for the Participant, his
spouse, children or dependents; and (iv) expenses needed to prevent the eviction
of the Participant from, or the foreclosure of the mortgage on, the
Participant's principal residence. A withdrawal shall be permitted under this
Paragraph only if the Participant has obtained all loans currently available
under all plans maintained by the Participating Company.
A Participant who has received a withdrawal pursuant to this Paragraph
shall not be permitted to make or receive Salary Reduction Contributions for
twelve (12) months after receipt of the hardship distribution, and his salary
reduction elections shall be suspended for such period. Furthermore, for the
calendar year following the withdrawal, the Maximum Reduction Amount for the
Participant shall be reduced by the amount of the Participant's Salary Reduction
Contributions for the calendar year during which the withdrawal occurred.
L. Eligible Rollover Distributions. Notwithstanding any provision of
-------------------------------
the Plan to the contrary that would otherwise limit a Distributee's election
under this Paragraph L, with respect to all distributions made from the Plan on
and after January 1, 1993, a Distributee may elect, at the time and in the
manner
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<PAGE>
prescribed by the Administrative Committee, to have all or any portion of
an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan
specified by the Distributee in a Direct Rollover.
As used in this Paragraph L, the following
terms shall have the following meanings:
(i) "Eligible Rollover Distribution" shall mean any distribution of
all or any portion of the balance to the credit of a Distributee under the Plan,
except that the term 'Eligible Rollover Distribution' shall not include 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, any distribution that
is one of a series of substantially equal periodic payments (not less frequently
than annually) made for a specified period of ten (10) years or more, any
distribution to the extent such distribution is required under Section 401(a)(9)
of the Internal Revenue Code or the portion of any distribution that is not
includible in gross income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities).
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<PAGE>
(ii) "Eligible Retirement Plan" shall mean an individual retirement
account described in Section 408(a) of the Internal Revenue Code, an individual
retirement annuity described in Section 408(b) of the Internal Revenue Code, an
annuity plan described in Section 403(a) of the Internal Revenue Code or a
qualified trust described in Section 401(a) of the Internal Revenue Code, that
accepts the Distributee's Eligible Rollover Distribution. In the case of an
Eligible Rollover Distribution made to the surviving spouse of an Employee or
former Employee, the term 'Eligible Retirement Plan' shall mean an individual
retirement account described in Section 408(a) of the Internal Revenue Code or
an individual retirement annuity described in Section 408(b) of the Internal
Revenue Code.
(iii) "Distributee" shall mean an Employee or former Employee. In
addition, the term 'Distributee' shall mean the surviving spouse of an Employee
or former Employee, or the spouse or former spouse of an Employee or former
Employee who is an alternate payee under a qualified domestic relations order
(as defined in Section 414(p) of the Internal Revenue Code), with regard to the
interest of such surviving spouse, spouse or former spouse under the Plan.
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<PAGE>
(iv) "Direct Rollover" shall mean a payment by the Plan to the
Eligible Retirement Plan specified by the Distributee.
SECTION SIXTEEN
RIGHT OF FIRST REFUSAL
----------------------
If any Participant, Beneficiary or any other person to whom shares of
Company Stock are distributed from the Plan (the "Selling Participant") shall,
at any time, desire to sell some or all of such shares (the "Offered Shares") to
a third party (the "Third Party"), the Selling Participant shall give written
notice of such desire to the Sponsoring Company and to the Administrative
Committee, which notice shall contain the number of shares offered for sale, the
proposed terms of the sale, and the names and addresses of both the Selling
Participant and the Third Party. The Sponsoring Company shall have a right of
first refusal for a period of fourteen (14) days from the date the Selling
Participant gives such written notice to the Sponsoring Company and to the
Administrative Committee to acquire the Offered Shares. The selling price and
terms shall be the same as offered by the Third Party.
If the Sponsoring Company does not exercise its right of first refusal
within the required fourteen (14) day period provided above, the Selling
Participant shall have the right, at
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<PAGE>
any time following the expiration of such fourteen (14) day period, to dispose
of the Offered Shares to the Third Party; provided, however, that (i) no
disposition shall be made to the Third Party on terms more favorable to the
Third Party than those set forth in the written notice delivered by the Selling
Participant above, and (ii) if such disposition shall not be made to a Third
Party on the terms offered to the Sponsoring Company, the Offered Shares shall
again be subject to the right of first refusal set forth above.
The closing pursuant to the exercise of the right of first refusal
under this Section Sixteen shall take place at such place agreed upon between
the Administrative Committee and the Selling Participant, but not later than ten
(10) days after the Sponsoring Company shall have notified the Selling
Participant of the exercise of the right of first refusal. At such closing, the
Selling Participant shall deliver certificates representing the Offered Shares
duly endorsed in blank for transfer, or with stock powers attached duly executed
in blank with all required transfer tax stamps attached or provided for, and the
Sponsoring Company shall deliver the purchase price, or an appropriate portion
thereof, to the Selling Participant.
SECTION SEVENTEEN
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<PAGE>
STOCK CERTIFICATE LEGEND
------------------------
Certificates for shares distributed pursuant to the Plan shall
contain the following legend:
"The shares represented by this certificate are transferable only upon
compliance with the terms of the CHOICE HOTELS INTERNATIONAL, INC. RETIREMENT
SAVINGS AND INVESTMENT PLAN (the "Plan"), effective as of November 1, 1996,
which grants Choice Hotels International, Inc. a right of first refusal, a copy
of said Plan being on file in the office of Choice Hotels International, Inc."
SECTION EIGHTEEN
BENEFIT CLAIMS PROCEDURE
------------------------
A. Claims for Benefits. Any claim for benefits under the Plan shall
-------------------
be made in writing to the Administrative Committee. If such claim for benefits
is wholly or partially denied, the Administrative Committee shall, within ninety
(90) days after receipt of the claim, notify the Participant or Beneficiary of
the denial of the claim. Such notice of denial shall (i) be in writing, (ii) be
written in a manner calculated to be understood by the Participant or
Beneficiary, and (iii) contain (a) the specific reason or reasons for denial of
the claim, (b) a
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<PAGE>
specific reference to the pertinent Plan provisions upon which the denial is
based, (c) a description of any additional material or information necessary to
perfect the claim, along with an explanation of why such material or information
is necessary, and (d) an explanation of the claim review procedure as set forth
in this Section Eighteen.
B. Request for Review of Denial. Within sixty (60) days after the
----------------------------
receipt by a Participant or Beneficiary 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 Participant or Beneficiary may file a written request with
the Administrative Committee that it conduct a full and fair review of the
denial of the claim for benefits.
C. Decision on Review of Denial. The Administrative Committee shall
----------------------------
deliver to the Participant or Beneficiary a written decision on the claim within
sixty (60) days after the receipt of the aforesaid request for review. Such
decision shall (i) be written in a manner calculated to be understood by the
Participant or Beneficiary, (ii) include the specific reason or reasons for the
decision, and (iii) contain a specific reference
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<PAGE>
to the pertinent Plan provisions upon which the decision is based.
SECTION NINETEEN
INALIENABILITY OF BENEFITS
--------------------------
A. In General. The right of any Participant or Beneficiary to any
----------
benefit or payment under the Plan or Trust or to any separate Account maintained
as provided by the Plan shall not be subject to voluntary or involuntary
transfer, alienation, or assignment, and, to the fullest extent permitted by
law, shall not be subject to attachment, execution, garnishment, sequestration,
or other legal or equitable process. In the event a Participant or Beneficiary
who is receiving or is entitled to receive benefits under the Plan attempts to
assign, transfer or dispose of such right, or if an attempt is made to subject
said right to such process, such assignment, transfer or disposition shall be
null and void.
B. Qualified Domestic Relations Orders. Notwithstanding Paragraph A,
-----------------------------------
benefits shall be payable to an individual other than a Participant in
accordance with the applicable requirements of a Qualified Domestic Relations
Order (as defined below) pursuant to the following provisions:
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<PAGE>
(i) The term "Qualified Domestic Relations Order" shall mean any
judgment, decree, or order (including approval of a property settlement
agreement) which relates to the provision of child support, alimony payments, or
marital property rights to a spouse, former spouse, child or other dependent of
a Participant, which creates or recognizes the existence of an alternative
payee's right to, or assigns to an alternate payee the right to, receive all or
a portion of the benefits payable with respect to a Participant under the Plan,
and which meets the following requirements:
(a) Such order shall specify the name and last known mailing
address (if any) of the Participant and each alternate payee covered by the
order;
(b) Such order shall specify the amount or percentage of the
Participant's benefits to be paid by the Plan to each such alternate payee or
the manner in which such amount or percentage is to be determined;
(c) Such order shall specify the number of payments or period to
which the order applies;
(d) Such order shall specify each plan to which
the order applies;
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<PAGE>
(e) Such order shall not require the Plan to provide any type or form
of benefits or any option not otherwise provided under the Plan;
(f) Such order shall not require the Plan to provide increased
benefits (determined on the basis of actuarial value); and
(g) Such order shall not require the payment of benefits to an
alternate payee which are required to be paid to another alternate payee under
another order previously determined to be a Qualified Domestic Relations Order.
(ii) The Administrative Committee shall determine a set of
nondiscriminatory and reasonable procedures to determine the qualified status of
domestic relations orders and to administer distributions under such qualified
orders in accordance with Section 414(p) of the Internal Revenue Code.
(iii) To the extent that a Qualified Domestic Relations Order
provides that a former spouse is to be treated as the Participant's spouse for
purposes of the death benefits payable under this Plan, the Participant's
current spouse shall not be treated as the Participant's spouse for that
---
purpose.
SECTION TWENTY
INVESTMENT OF TRUST FUND
------------------------
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<PAGE>
At a meeting duly called for such purpose, the Administrative
Committee shall establish a funding policy and method consistent with the
objectives of the Plan and the requirements of Title I of ERISA. The
Administrative Committee shall meet at least annually to review such funding
policy and method. In establishing and reviewing such funding policy and
method, the Administrative Committee 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.
SECTION TWENTY-ONE
AMENDMENT OF THE PLAN
---------------------
The Sponsoring Company may amend the Plan at any time, and from time
to time, pursuant to written resolutions of the Board of Directors of the
Sponsoring Company. No such amendment, however, shall have the effect of
reducing any then nonforfeitable percentage of benefits of any Participant as
computed in accordance with the vesting schedule under Paragraph A of Section
Fourteen of the Plan. If the vesting schedule under Paragraph A of Section
Fourteen of the Plan is amended and such amendment would, at any time, decrease
the percentage of vested benefits which any Participant would have been entitled
to
- 104 -
<PAGE>
receive had the vesting schedule not been so amended, then each Participant
who is employed on the date such amendment is adopted, or the date such
amendment is effective, whichever is later, and who has three (3) or more Years
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 his 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
(i) his receipt of such notice, or (ii) 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
Administrative Committee prior to the expiration of such sixty (60) day period.
SECTION TWENTY-TWO
PERMANENCY OF THE PLAN
----------------------
A. Right to Terminate Plan. The Participating Companies contemplate that
-----------------------
the Plan shall be permanent and that they shall
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<PAGE>
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 either the Plan or
both the Plan and the Trust with respect to such Participating Company, and the
Sponsoring Company reserves the right to terminate either the Plan or both the
Plan and the Trust with respect to all the Participating Companies.
B. Merger or Consolidation of Plan. The Plan may not be merged or
-------------------------------
consolidated with, nor may its assets or liabilities be transferred to, any
other plan, unless each Participant would (if the other plan then terminated)
receive a benefit immediately after the merger, consolidation, or transfer which
is equal to or greater than the benefit he would have been entitled to receive
immediately before the merger, consolidation, or transfer (if the Plan had then
terminated).
SECTION TWENTY-THREE
DISCONTINUANCE OF CONTRIBUTIONS AND TERMINATION
-----------------------------------------------
A. 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
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<PAGE>
Directors of the such Participating Company may, without terminating its
participation in the Trust, adopt an appropriate resolution permanently
discontinuing all further contributions by such Participating Company. A
certified copy of such resolution shall be delivered to the Administrative
Committee and the Trustee. Thereafter, the Administrative Committee and the
Trustee 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 shall remain in
existence with respect to such Participating Company and all of the provisions
of the Trust Agreement shall remain in force.
B. Termination of Plan and Trust. If the Board of Directors of a
-----------------------------
Participating Company determines to terminate the Plan and Trust completely with
respect to such Participating Company, the Plan and Trust shall be terminated
with respect to such Participating Company as of the date specified in certified
copies of resolutions of such Board of Directors of the Participating Company
delivered to the Administrative Committee and the Trustee. If the Board of
Directors of the Sponsoring Company determines to terminate the Plan and Trust
completely with respect to all the Participating Companies, the Plan and
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<PAGE>
Trust shall be terminated with respect to all the Participating Companies as of
the date specified in certified copies of resolutions of the Board of Directors
of the Sponsoring Company delivered to the Administrative Committee and the
Trustee. Upon such termination or partial termination of the Plan and Trust,
after payment of all expenses and proportional adjustment of the Accounts of the
Participants affected by such termination to reflect such expenses, profits or
losses of the Trust, and allocations of any previously unallocated funds to the
date of termination, the Participants affected by such termination shall be
entitled to receive the amount then credited to their respective Accounts in the
Plan. The Administrative Committee may make payment of such amount in cash or in
assets of the Trust Fund.
C. 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 right of each Participant affected by such termination or such
discontinuance of contributions to the amount credited to his Accounts at such
time shall be nonforfeitable without reference to any formal
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<PAGE>
action on the part of any Participating Company, the Administrative Committee,
or the Trustee.
SECTION TWENTY-FOUR
STATUS OF EMPLOYMENT RELATIONS
------------------------------
The adoption and maintenance of the Plan and Trust shall not be deemed
to constitute a contract between any Participating Company and its Employees or
to be consideration for, or an inducement or condition of, the employment of any
person. Nothing herein contained shall be deemed (i) to give to any Employee
the right to be retained in the employ of a Participating Company; (ii) to
affect the right of a Participating Company to discipline or discharge any
Employee at any time; (iii) to give a Participating Company the right to require
any Employee to remain in its employ; or (iv) to affect any Employee's right to
terminate his employment at any time.
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<PAGE>
SECTION TWENTY-FIVE
BENEFITS PAYABLE BY TRUST
-------------------------
All benefits payable under the Plan shall be paid or provided for
solely from the Trust, and the Participating Companies assume no liability or
responsibility therefor.
SECTION TWENTY-SIX
EXCLUSIVE BENEFIT OF TRUST FUND
-------------------------------
A. Limitation Upon Reversions. Except as provided in Paragraph B
--------------------------
below, the assets of the Trust Fund shall not inure to the benefit of the
Participating Companies and shall be held for the exclusive purposes of
providing benefits to Participants and their Beneficiaries and defraying
reasonable expenses of administering the Plan.
B. Mistake of Fact. In the event that all or any portion of a
---------------
contribution made to the Trust is based upon a mistake of fact, the excess
amount of the contribution attributable to the mistake of fact shall be returned
to the Participating Company making such contribution as promptly as
practicable, but in no event later than one (1) year after the payment of the
contribution.
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<PAGE>
SECTION TWENTY-SEVEN
APPLICABLE LAW
--------------
The Plan and the Trust which is a part thereof shall be construed,
regulated, interpreted, and administered under and in accordance with the laws
of the State of Maryland, other than its laws respecting choice of law, to the
extent not preempted by ERISA.
SECTION TWENTY-EIGHT
INTERPRETATION OF THE PLAN AND TRUST
------------------------------------
It is the intention of the Participating Companies that the Plan and
the Trust established to implement the Plan shall comply with the provisions of
Sections 401 and 501 of the Internal Revenue Code, the requirements of ERISA,
and the corresponding provisions of any subsequent laws, and the provisions of
the Plan and Trust Agreement shall be construed to effectuate such intention.
SECTION TWENTY-NINE
ADOPTION OF PLAN BY AFFILIATED COMPANIES
----------------------------------------
Any Affiliated Company, whether or not presently existing, may, with
the approval of the Board of Directors of the Sponsoring Company, adopt the Plan
and Trust by means of
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<PAGE>
appropriate corporate action of such Affiliated Company and by executing such
documents as the Board of Directors of the Sponsoring Company may require in
order for such Affiliated Company to become a party to the Trust. Any such
Affiliated Company which adopts the Plan and Trust as provided above shall
thereafter be included within the meaning of the term "Participating Company"
when used in the Plan and Trust.
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<PAGE>
SECTION THIRTY
TOP-HEAVY CONTINGENCY PROVISIONS
--------------------------------
A. Application. The provisions of this Section Thirty-One are
-----------
included in the Plan pursuant to Section 401(a)(10)(B)(ii) of the Internal
Revenue Code and shall become applicable only if the Plan becomes a Top-Heavy
Plan (as defined below) under Section 416(g) of the Internal Revenue Code for
any Plan Year.
B. Definition of Top-Heavy Plan. The determination as to whether
----------------------------
the Plan has become a Top-Heavy Plan for any such Plan Year shall be made as of
the last day of the immediately preceding Plan Year, or, in the case of the
first Plan Year, the last day of such Plan Year (the "Determination Date"), and
the Plan shall be a "Top-Heavy Plan" only if the aggregate of the Account
balances under the Plan for Key Employees (as defined below) exceeds sixty
percent (60%) of the aggregate of the Account balances under the Plan for all
Participants. For such purpose, the aggregate Account balances shall be
computed and adjusted pursuant to Section 416(g) of the Internal Revenue Code
and the regulations thereunder.
As used herein, the term "Key Employee" shall mean any Employee or
former Employee who at any time during the current
- 113 -
<PAGE>
Plan Year or any of the four (4) preceding Plan Years meets the criteria under
Section 416(i)(1) of the Internal Revenue Code. A Key Employee shall include the
following:
(i) an officer of a Participating Company or an Affiliated Company if
such individual's annual Compensation from the Participating Companies and all
Affiliated Companies exceeds fifty percent (50%) of the dollar limitation then
in effect under Section 415(b)(1)(A) of the Internal Revenue Code for such Plan
Year;
(ii) an actual or constructive owner (using the attribution rules of
Section 318 of the Internal Revenue Code) of both more than a one-half of one
percent (1/2%) interest in the total ownership value of, and of one of the ten
(10) largest percentage ownership interests in value in, a Participating Company
or an Affiliated Company if such individual's Compensation from the
Participating Companies and all Affiliated Companies exceeds one hundred percent
(100%) of the dollar limitation then in effect under Section 415(c)(1)(A) of the
Internal Revenue Code for such Plan Year;
(iii) a Five-Percent Owner;
(iv) a "one-percent owner" (as defined in Section 416(i)(1)(B)(ii) of
the Internal Revenue Code) of a Participating
- 114 -
<PAGE>
Company or an Affiliated Company having an annual Compensation from the
Participating Companies and all Affiliated Companies of more than One Hundred
Fifty Thousand Dollars ($150,000); or
(v) the Beneficiary of any deceased Employee or former Employee
described in subparagraph (i), (ii), (iii) or (iv) above.
For purposes of subparagraph (i) above, no more than fifty (50) employees
(or, if lesser, the greater of three (3) employees or ten percent (10%) of all
employees) shall be treated as officers. For purposes of this Section Thirty,
the term "compensation" shall mean "compensation" as defined in Section
414(q)(7) of the Internal Revenue Code.
C. Consideration of Multiple Plans in Determining Top-Heavy Status of
------------------------------------------------------------------
Plan. All plans of the Participating Companies or the Affiliated Companies
- ----
which are included in a Required Aggregation Group or in a Permissive
Aggregation Group (both as defined below) with this Plan shall be considered
together in determining whether this Plan is a Top-Heavy Plan. Each plan of a
Participating Company or an Affiliated Company which is required to be included
in an aggregation group shall be treated as a Top-Heavy Plan if such group is a
Top-Heavy Group (as defined below). For these purposes, a "Required Aggregation
- 115 -
<PAGE>
Group" shall mean (i) each plan of a Participating Company or an Affiliated
Company in which a Key Employee is a participant plus (ii) each other plan of a
Participating Company or an Affiliated Company which is required to exist in
order for the plans contained in (i) above to meet the nondiscrimination
requirements of Section 401(a)(4) or 410 of the Internal Revenue Code. A
"Permissive Aggregation Group" shall mean (i) a Required Aggregation Group plus
(ii) any other plan (or plans) of a Participating Company or an Affiliated
Company which is able to separately meet the nondiscrimination requirements of
Sections 401(a)(4) and 410 of the Internal Revenue Code and which the Sponsoring
Company elects to include within such group.
An aggregation group (either permissive or required) shall be a "Top-
Heavy Group" only if the sum of (a) the present value of the cumulative accrued
benefits for Key Employees under all defined benefit plans included in such
group and (b) the total of the account balances for Key Employees under all
defined contribution plans included in such group exceeds sixty percent (60%) of
the accrued benefits and account balances determined for all employees covered
under such plans. For these purposes, account balances shall be computed and
adjusted pursuant to the principles of Section 416(g) of the Internal Revenue
Code. In
- 116 -
<PAGE>
determining the cumulative accrued benefits and account balances for
purposes of this top-heavy test:
(i) the present value of the cumulative accrued benefits of all Key
Employees shall be increased by the aggregate distributions made with respect to
each such individual under the plan during the previous five (5) years (ending
on the Determination Date). This subparagraph (i) shall also apply to
distributions under a terminated plan which would have been required to be
included in an aggregation group had it not been terminated;
(ii) the extent to which rollovers and transfers must be taken into
account shall be made in accordance with Section 416 of the Internal Revenue
Code and the regulations thereunder; and
(iii) the account balances and accrued benefits of (a) a Participant
who is not currently a Key Employee but who was a Key Employee in a prior year
or (b) a Participant who is a Key Employee but who has not performed any
services for a Participating Company or an Affiliated Company at any time during
the five (5)-year period ending on the Determination Date, shall be disregarded.
- 117 -
<PAGE>
D. Minimum Benefits. For any Plan Year in which the Plan is a Top-
----------------
Heavy Plan, each Participant who is not a Key Employee (a "Non-Key Employee")
and who is employed on the last day of the Plan Year shall receive a minimum
allocation of Participating Company contributions (other than Salary Reduction
Contributions) to his Accounts under this Plan which, when combined with the
amount of any other Participating Company or Affiliated Company contributions
and/or forfeitures allocated to such Participant's accounts under any other
defined contribution plans maintained by the Participating Companies and the
Affiliated Companies shall be no less than the lesser of (i) three percent (3%)
of his Limitation Year Compensation (as defined in subparagraph (vii) of
Paragraph G of Section Seven of the Plan) during such Plan Year or (ii) a
percentage of such Participant's Limitation Year Compensation during such Plan
Year which is equal to the highest percentage of Limitation Year Compensation
which any Key Employee received in the form of Participating Company
contributions to his Accounts in this Plan for such Plan Year. A Participant
who is a Non-Key Employee need not complete one thousand (1,000) Hours of
Service during the Plan Year in order to receive such an allocation. Any
contributions made to a Non-Key Employee's accounts under this or any other
defined contribution plans
- 118 -
<PAGE>
maintained by the Participating Companies and the Affiliated Companies which are
made on behalf of such Non-Key Employee pursuant to a cash or deferred
arrangement satisfying the requirements of Section 401(k) of the Internal
Revenue Code may not be used to satisfy this minimum allocation requirement.
Prior to January 1, 1994. For purposes of this Paragraph D, a Participant's
Limitation Year Compensation during any Plan Year shall not include any amounts
in excess of One Hundred and Fifty Thousand Dollars ($150,000), as adjusted for
increases in the cost of living pursuant to Section 401(a)(17) of the Internal
Revenue Code.
E. Special Vesting Rules. As of the first day of any Plan Year in which
---------------------
the Plan has become a Top-Heavy Plan, the vesting schedule contained in
Paragraph A of Section Fourteen shall be revised to provide for vesting in
accordance with the following schedule:
Years of Service Vested
---------------- ------
Less than 2 years 0%
2 years 20%
3 years 40%
4 years 60%
5 years 80%
6 or more years 100%
- 119 -
<PAGE>
In the event the vesting schedule is revised in accordance with this
Paragraph E and the Plan is later determined to no longer constitute a Top-Heavy
Plan, the vesting schedule shall revert to the schedule specified in Paragraph A
of Section Fourteen as to the effect of vesting arising from future Years of
Service, but any Participant who has three (3) or more Years of Service as of
the time of such change may irrevocably elect to have his vested interest
computed without regard to such change in the vesting schedule, in accordance
with the principles set forth in Section Twenty-One of the Plan.
F. Adjustment of Section 415 Limitations in Plan Years in Which the
----------------------------------------------------------------
Plan Is a Top-Heavy Plan. For any Plan Year in which the Plan is a Top-Heavy
- ------------------------
Plan, the reference to a factor of one and twenty-five one-hundredths (1.25) in
subparagraphs (iv) and (v) of Paragraph G of Section Seven of the Plan shall be
modified so as to constitute a reference to a factor of one (1.0). This
modification shall not be made, however, if (i) the Account balances
attributable to Key Employees do not exceed ninety percent (90%) of the total
Account balances under the Plan and (ii) the Participating Companies have chosen
to make the additional contribution specified in Section 416(h)(2)(A)(ii)(II) of
the Internal Revenue Code.
- 120 -
<PAGE>
EXHIBIT 5
---------
December 10, 1996
Securities and Exchange Commission
450 5th Street, N.W.
Washington, D.C. 20549
RE: Choice Hotels International, Inc.
Registration Statement on Form S-8
Gentlemen:
I am General Counsel of Choice Hotels International, Inc. (the "Company")
and have acted for the Company in connection with the preparation of the
Company's Registration Statement on Form S-8 filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended. The Registration Statement covers shares of the Company's Common Stock,
$.01 par value, offered under the Company's Retirement Savings & Investment Plan
(the "Plan").
In connection with the rendering of the opinion set forth below, I have
reviewed the records of the Company, the minutes of the meetings of the
stockholders and directors of the Company and such other records and documents
as was necessary in my judgment to so render the following opinion.
Based on the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated and existing under the
laws of the State of Delaware; and
2. The shares of Common Stock of the Company offered to the holders under
the exercise of options under the Plan, have been or will be legally issued,
fully paid and nonassessable.
I hereby consent to the filing of a copy of this opinion with the
Commission as an exhibit to the Registration Statement referred to above.
Very truly yours,
/s/ Edward A. Kubis
Edward A. Kubis
Senior Vice President
and General Counsel
<PAGE>
EXHIBIT 23(i)
-------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated June 28, 1996,
included in Choice Hotels International, Inc.'s Form 10/A-4 dated October 10,
1996 and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Washington, D.C.
December 10, 1996
<PAGE>
EXHIBIT 24
----------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints EDWARD A. KUBIS his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign Registration Statements or
amendments (including post-effective amendments) thereto with respect to the
registration under the Securities Act of 1933, as amended, of shares of Common
Stock, $.01 par value, of Choice Hotels International, Inc. (the "Company")
delivered pursuant to the Company's Retirement Savings & Investment Plan and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 10th day
of December, 1996.
/s/ Stewart Bainum, Jr.
-------------------------------
Stewart Bainum, Jr.
Executive Chairman of the Board
and Director
<PAGE>
EXHIBIT 24
----------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints EDWARD A. KUBIS his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign Registration Statements or
amendments (including post-effective amendments) thereto with respect to the
registration under the Securities Act of 1933, as amended, of shares of Common
Stock, $.01 par value, of Choice Hotels International, Inc.(the "Company")
delivered pursuant to the Company's Retirement Savings & Investment Plan and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 10th day
of December, 1996.
/s/ William R. Floyd
-------------------------------
William R. Floyd
Vice Chairman of the Board,
Chief Executive Officer and
Director
<PAGE>
EXHIBIT 24
----------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints EDWARD A. KUBIS his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign Registration Statements or
amendments (including post-effective amendments) thereto with respect to the
registration under the Securities Act of 1933, as amended, of shares of Common
Stock, $.01 par value, of Choice Hotels International, Inc. (the "Company")
delivered pursuant to the Company's Retirement Savings & Investment Plan and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 10th day
of December, 1996.
/s/ Stewart Bainum
-------------------------------
Stewart Bainum
Director
<PAGE>
EXHIBIT 24
----------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints EDWARD A. KUBIS her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for her and in her name, place
and stead, in any and all capacities, to sign Registration Statements or
amendments (including post-effective amendments) thereto with respect to the
registration under the Securities Act of 1933, as amended, of shares of Common
Stock, $.01 par value, of Choice Hotels International, Inc. (the "Company")
delivered pursuant to the Company's Retirement Savings & Investment Plan and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and purposes as she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or her substitute may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set her hand this 10th day
of December, 1996.
/s/ Barbara Bainum
------------------------------
Barbara Bainum
Director
<PAGE>
EXHIBIT 24
----------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints EDWARD A. KUBIS his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign Registration Statements or
amendments (including post-effective amendments) thereto with respect to the
registration under the Securities Act of 1933, as amended, of shares of Common
Stock, $.01 par value, of Choice Hotels International, Inc. (the "Company")
delivered pursuant to the Company's Retirement Savings & Investment Plan and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and purposes as she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or her substitute may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 10th day
of December, 1996.
/s/ Paul A. Gould
----------------------------
Paul A. Gould
Director
<PAGE>
EXHIBIT 24
----------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints EDWARD A. KUBIS his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign Registration Statements or
amendments (including post-effective amendments) thereto with respect to the
registration under the Securities Act of 1933, as amended, of shares of Common
Stock, $.01 par value, of Choice Hotels International, Inc. (the "Company")
delivered pursuant to the Company's Retirement Savings & Investment Plan and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and purposes as she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or her substitute may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 10th day
of December, 1996.
/s/ Frederic V. Malek
----------------------------------
Frederic V. Malek
Director
<PAGE>
EXHIBIT 24
----------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints EDWARD A. KUBIS his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign Registration Statements or
amendments (including post-effective amendments) thereto with respect to the
registration under the Securities Act of 1933, as amended, of shares of Common
Stock, $.01 par value, of Choice Hotels International, Inc. (the "Company")
delivered pursuant to the Company's Retirement Savings & Investment Plan and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and purposes as she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or her substitute may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 10th day
of December, 1996.
/s/ Jerry E. Robertson
--------------------------------
Jerry E. Robertson
Director
<PAGE>
EXHIBIT 24
----------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints EDWARD A. KUBIS his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign Registration Statements or
amendments (including post-effective amendments) thereto with respect to the
registration under the Securities Act of 1933, as amended, of shares of Common
Stock, $.01 par value, of Choice Hotels International, Inc. (the "Company")
delivered pursuant to the Company's Retirement Savings & Investment Plan and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and purposes as she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or her substitute may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 10th day
of December, 1996.
/s/ Robert C. Hazard, Jr.
---------------------------------------
Robert C. Hazard, Jr.
Director
<PAGE>
EXHIBIT 24
----------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints EDWARD A. KUBIS his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign Registration Statements or
amendments (including post-effective amendments) thereto with respect to the
registration under the Securities Act of 1933, as amended, of shares of Common
Stock, $.01 par value, of Choice Hotels International, Inc. (the "Company")
delivered pursuant to the Company's Retirement Savings & Investment Plan and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and purposes as she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or her substitute may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 10th day
of December, 1996.
/s/ Gerald W. Petitt
---------------------------------
Gerald W. Petitt
Director
<PAGE>
EXHIBIT 24
----------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints EDWARD A. KUBIS his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign Registration Statements or
amendments (including post-effective amendments) thereto with respect to the
registration under the Securities Act of 1933, as amended, of shares of Common
Stock, $.01 par value, of Choice Hotels International, Inc. (the "Company")
delivered pursuant to the Company's Retirement Savings & Investment Plan and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and purposes as she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or her substitute may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 10th day
of December, 1996.
/s/ James A. MacCutcheon
----------------------------------
James A. MacCutcheon
Executive Vice President, Chief
Financial Officer and Treasurer
<PAGE>
EXHIBIT 24
----------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints EDWARD A. KUBIS his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign Registration Statements or
amendments (including post-effective amendments) thereto with respect to the
registration under the Securities Act of 1933, as amended, of shares of Common
Stock, $.01 par value, of Choice Hotels International, Inc. (the "Company")
delivered pursuant to the Company's Retirement Savings & Investment Plan and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and purposes as she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or her substitute may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 10th day
of December, 1996.
/s/ Charles G. Warczak, Jr.
-----------------------------------------
Charles G. Warczak, Jr.
Vice President and Controller
