<PAGE> 1
As filed with the Securities and Exchange Commission on May 14, 1999.
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
--------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
--------------------
BRISTOL HOTELS & RESORTS
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction 75-2754805
of incorporation or organization) (I.R.S. Employee Identification No.)
14295 Midway Road
Addison, Texas 75001
(Address, including zip code, of Principal Executive Offices)
--------------------
BRISTOL HOTEL MANAGEMENT CORPORATION 401(k) PLAN
(Full title of the plan)
--------------------
LYNN MARIE LUCIER, VICE PRESIDENT AND SECRETARY
Bristol Hotels & Resorts
14295 Midway Road
Addison, Texas 75001
(972) 391-3910
(Name, address, and telephone number of agent for service)
-------------------
COPY TO:
MARK A. KOPIDLANSKY
Munsch Hardt Kopf & Harr, P.C.
4000 Fountain Place
1445 Ross Avenue
Dallas, Texas 75202-2790
Telephone: (214) 855-7580
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================
Proposed
Proposed maximum
Title of Securities to Amount to be maximum aggregate offering Amount of
be Registered Registered(1) offering price(2) price(2) registration fee(2)
- ------------------------ ------------- ----------------- ------------------ -------------------
<S> <C> <C> <C> <C>
Common stock, par value
$0.01 per share 250,000 $7.69 $1,922,500 $535.00
===================================================================================================
</TABLE>
(1) This Registration statement covers shares of Common Stock of Bristol
Hotel & Resorts that may be offered or sold pursuant to the Bristol
Hotel Management Corporation 401(k) Plan (the "Plan"). Pursuant to Rule
416(c) under the Securities Act of 1933, as amended (the "Securities
Act"), this Registration Statement also covers an indeterminate amount
of interests to be offered or sold pursuant to the Plan. In addition,
pursuant to Rule 457(h)(2) under the Securities Act, no registration
fee is required with respect to such interests in the Plan. This
Registration Statement also relates to an indeterminate number of
shares of Common Stock that may be issued upon stock splits, stock
dividends or similar transactions in accordance with Rule 416 under the
Securities Act.
(2) Estimated solely for purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) on the basis of the average of the high
and low prices of the Common Stock as reported on the New York Stock
Exchange on May 12, 1999.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participating officers and employees as specified
by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities
Act"). The documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II below, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
Bristol Hotels & Resorts, a Delaware corporation (the "Company"),
hereby incorporates by reference into this Registration Statement on Form S-8
(the "Registration Statement") the following documents which have heretofore
been filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act or the Securities Exchange Act of 1934,
as amended (the "Exchange Act"):
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1998, as filed with the Commission on March 25, 1999.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999 as filed with the Commission on May 14, 1999.
(c) The description of the Company's Common Stock set forth in the
Corporation's Registration Statement on Form 10, pursuant to Section 12(b) of
the Exchange Act, including all reports updating such description.
All documents subsequently filed by the Company or the Bristol Hotel
Management Corporation 401(k) Plan pursuant to Sections 13(a), 13(c), 14 and
15(d) of 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 into this Registration Statement and to be a part hereof from the date
of filing of such documents.
Any statements contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained herein (or in any other subsequently filed document
which is also incorporated by reference herein) modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed to
constitute a part of this Registration Statement except as so modified or
superseded.
ITEM 4. Description of Securities.
Not applicable.
ITEM 5. Interests of Named Experts and Counsel.
Not applicable.
ITEM 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware:
(i) gives Delaware corporations broad powers to indemnify their present and
former directors and officers and those of affiliated corporations
2
<PAGE> 3
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with threatened,
pending or completed actions, suits or proceedings to which they are parties or
are threatened to be made parties by reason of being or having been such
directors or officers, subject to specified conditions and exclusions; (ii)
gives a director or officer who successfully defends an action the right to be
so indemnified; and (iii) permits a corporation to buy directors' and officers'
liability insurance. Such indemnification is not exclusive of any other rights
to which those indemnified may be entitled under any bylaw, agreement, vote of
stockholders or otherwise.
Article 34 of the Company's Amended and Restated Bylaws requires the
Company to indemnify its directors and officers to the maximum extent permitted
by the General Corporation Law of the State of Delaware (the "DGCL"). Article
Ninth of the Company's Amended and Restated Certificate of Incorporation
provides that the Company will indemnify and advance expenses to its directors,
officers, employees or agents to the fullest extent permitted by the DGCL.
Article Ninth of the Company's Amended and Restated Certificate of Incorporation
further provides that, to the fullest extent permitted by the DGCL or any other
applicable law currently or thereafter in effect, no director of the Company
will be personally liable to the Company or its stockholders for or with respect
to any acts or omissions in the performance of his or her duties as a director
of the Company, and any repeal or modification of such Article Ninth will not
adversely affect any right or protection of a director of the Company in respect
of any act or omission occurring in whole or in part prior to such repeal or
modification.
The Company has entered into individual agreements with each of its
directors and executive officers pursuant to which the Company has agreed to
indemnify each of its directors and executive officers to the fullest extent
provided by applicable law and the Bylaws of the Company as currently in effect.
The Company has purchased insurance policies containing customary terms
and conditions for the purpose of insuring its directors and officers against
certain losses incurred by them as a result of claims based upon their actions
or statements (including omissions to act or make statements) as directors and
officers which may cover liabilities under the Securities Act.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed that
in the opinion of the Commission such indemnification is against public policy
as expressed in such Act and therefore unenforceable.
ITEM 7. Exemption from Registration Claimed.
Not applicable.
ITEM 8. Exhibits. (1)
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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<S> <C>
4.1 The Company's Amended and Restated Certificate of
Incorporation (incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form 10 (SEC File No.
001-14047) (the "Form 10 Registration Statement")).
4.2 The Company's Amended and Restated Bylaws (incorporated by
reference to Exhibit 3.4 to the Company's Form 10 Registration
Statement).
4.3 Registration Rights Agreement among the Company, Bass America
Inc., Holiday Corporation and United/Harvey Holdings
(incorporated by reference to Exhibit 4.1 of the Company's
Form 10 Registration Statement).
</TABLE>
3
<PAGE> 4
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
----------- -----------------------
<S> <C>
4.4 Form of Stockholders' Agreement among the Company, Holiday
Corporation, Bass America Inc., Bass plc and United/Harvey
Holdings (incorporated by reference to Exhibit 4.1 of the
Company's Form 10 Registration Statement).
23.1 Consent of Arthur Andersen LLP, Independent Accountants.
24 Powers of Attorney (included as part of the Signature Page of
this Registration Statement).
99.1 Bristol Hotel Management Corporation 401(k) Plan and
amendments.
</TABLE>
- ----------------
(1) In lieu of an opinion of counsel concerning compliance with the
requirements of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and that the Plan is qualified under Section 401 of
the Internal Revenue Code of 1986, as amended (the "Code"), the Company
hereby undertakes that it has submitted the Plan and any amendments
thereto to the Internal Revenue Service ("IRS") in a timely manner and
it has made all changes as required by the IRS in order to qualify the
Plan.
ITEM 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement.
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
and
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in
this Registration Statement or any material change to
such information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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) 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
4
<PAGE> 5
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act 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 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 of 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.
5
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Addison, State of Texas, on May 14, 1999.
BRISTOL HOTELS & RESORTS
By: /s/ John D. Bailey
----------------------------------------
John D. Bailey
Vice President, Controller and
Chief Accounting Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints J. Peter Kline and Jeffrey P. Mayer, or
either one of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and any subsequent
registration statements relating to the offering to which this Registration
Statement relates, and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully and to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or either of them, or their or his
substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ J. Peter Kline Chairman of the Board of Directors and Chief May 14, 1999
- --------------------------- Executive Officer
J. Peter Kline
/s/ John A. Beckert President and Chief Operating Officer; Director May 14, 1999
- ---------------------------
John A. Beckert
/s/ Jeffrey P. Mayer Executive Vice President and Chief Financial May 14, 1999
- --------------------------- Officer
Jeffrey P. Mayer
/s/ John D. Bailey Vice President, Controller and Chief May 14, 1999
- --------------------------- Accounting Officer
John D. Bailey
</TABLE>
6
<PAGE> 7
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ David A. Dittman Director May 14, 1999
- ---------------------------
David A. Dittman
/s/ Kurt C. Read Director May 14, 1999
- ---------------------------
Kurt C. Read
/s/ Thomas R. Oliver Director May 14, 1999
- ---------------------------
Thomas R. Oliver
/s/ Reginald K. Brack, Jr. Director May 14, 1999
- ---------------------------
Reginald K. Brack, Jr.
/s/ Robert A. Whitman Director May 14, 1999
- ---------------------------
Robert A. Whitman
/s/ James J. Pinto Director May 14, 1999
- ---------------------------
James J. Pinto
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, the
representative for the Plan Administrator set forth below has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Addison, State of Texas, on May 14, 1999.
Bristol Hotel Management Corporation 401(k) Plan
By: /s/ Jeffrey P. Mayer
---------------------------------------------
Representative for the Plan Administrator
7
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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<S> <C>
4.1 The Company's Amended and Restated Certificate of
Incorporation (incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form 10 (SEC File No.
001-14047) (the "Form 10 Registration Statement")).
4.2 The Company's Amended and Restated Bylaws (incorporated by
reference to Exhibit 3.4 to the Company's Form 10 Registration
Statement).
4.3 Registration Rights Agreement among the Company, Bass America
Inc., Holiday Corporation and United/Harvey Holdings
(incorporated by reference to Exhibit 4.1 of the Company's
Form 10 Registration Statement).
4.4 Form of Stockholders' Agreement among the Company, Holiday
Corporation, Bass America Inc., Bass plc and United/Harvey
Holdings (incorporated by reference to Exhibit 4.1 of the
Company's Form 10 Registration Statement).
23.1 Consent of Arthur Andersen LLP, Independent Accountants.
24 Powers of Attorney (included as part of the Signature Page of
this Registration Statement).
99.1 Bristol Hotel Management Corporation 401(k) Plan and
amendments.
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
dated February 5, 1999 on the consolidated financial statements of Bristol
Hotels & Resorts and its Predecessor, the Bristol Hotel Company, (and to all
references to our Firm), incorporated by reference into the Registration
Statement on Form S-8 of Bristol Hotels & Resorts.
Dallas, Texas,
May 11, 1999
<PAGE> 1
EXHIBIT 99.1
BRISTOL HOTEL MANAGEMENT CORPORATION
401(k) PLAN
Effective January 1, 1998
<PAGE> 2
BRISTOL HOTEL MANAGEMENT CORPORATION 401(k) PLAN
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE PAGE
- ------- ----
<S> <C>
ARTICLE I DEFINITIONS 1
1.1 Definitions 1
ARTICLE II ELIGIBILITY 19
2.1 Initial Eligibility Requirements 19
2.2 Treatment of Interruptions of Service 19
2.3 Change in Employee Status 20
2.4 Other Change in Status 21
ARTICLE III CONTRIBUTIONS 22
3.1 Before-Tax Contributions 22
3.2 Deferral Elections 23
3.3 Matching Contributions 24
3.4 Supplemental Contributions 24
3.5 Form of Contributions 24
3.6 Timing of Contributions 25
3.7 Contingent Nature of Company Contributions 25
3.8 Restoration Contributions 25
ARTICLE IV ROLLOVERS AND TRANSFERS BETWEEN PLANS 26
4.1 Rollover Contributions 26
4.2 Transfer Contributions 26
4.3 Mergers and Spin-offs to Other Plans 27
ARTICLE V PARTICIPANTS' ACCOUNTS; CREDITING
AND ALLOCATIONS 28
5.1 Establishment of Participants' Accounts 28
5.2 Allocation and Crediting of Before-Tax, Matching,
Discretionary Matching Rollover and
Transfer Contributions 28
5.3 Allocation and Crediting of Supplemental Contributions 28
5.4 Allocation of Forfeitures 30
</TABLE>
i
<PAGE> 3
BRISTOL HOTEL MANAGEMENT CORPORATION 401(k) PLAN
TABLE OF CONTENTS (CONTINUED)
<TABLE>
<CAPTION>
ARTICLE PAGE
- ------- ----
<S> <C>
5.5 Allocation and Crediting of Investment Experience 30
5.6 Notice to Participants of Account Balances 31
5.7 Good Faith Valuation Binding 31
5.8 Errors and Omissions in Accounts 31
ARTICLE VI CONTRIBUTION AND SECTION 415 LIMITATIONS AND
NONDISCRIMINATION REQUIREMENTS 32
6.1 Deductibility Limitations 32
6.2 Maximum Limitation on Elective Deferrals 32
6.3 Nondiscrimination Requirements for Before-Tax Contributions 33
6.4 Nondiscrimination Requirements for Matching Contributions
and Discretionary Matching Contributions 35
6.5 Multiple Use of Tests 37
6.6 Order of Application 38
6.7 Code Section 415 Limitations on Maximum Contributions 39
6.8 Construction of Limitations and Requirements 43
ARTICLE VII INVESTMENTS 44
7.1 Establishment of Trust Account 44
7.2 Investment Funds 44
7.3 Participant Direction of Investments 45
7.4 Valuation 47
7.5 Bristol Stock 47
7.6 Purchase of Life Insurance 48
7.7 Voting and Tender Offer Rights with Respect to Investment Funds 48
7.8 Fiduciary Responsibilities for Investment Directions 48
ARTICLE VIII VESTING IN ACCOUNTS 49
8.1 Immediate 100% Vesting for Certain Accounts 49
8.2 Matching Contribution Accounts 49
8.3 Timing of Forfeitures and Vesting after Restoration Contributions 50
8.4 Amendment to Vesting Schedule 51
</TABLE>
ii
<PAGE> 4
BRISTOL HOTEL MANAGEMENT CORPORATION 401(k) PLAN
TABLE OF CONTENTS (CONTINUED)
<TABLE>
<CAPTION>
ARTICLE PAGE
- ------- ----
<S> <C>
ARTICLE IX BENEFIT PAYMENTS UPON SEPARATION FROM
SERVICE FOR REASONS OTHER THAN DEATH 52
9.1 Benefits Payable Upon Separation From Service 52
9.2 Distributions From Accounts Other Than Prior Pension
Plan Account 55
9.3 Distributions From Prior Pension Plan Account
For Reasons Other Than Death 57
9.4 Cash-Out Payment of Benefits 60
9.5 Assets Distributed; Effect of Outstanding Loans 60
9.6 Qualified Domestic Relations Orders 60
9.7 Unclaimed Benefits 61
9.8 Claims 61
9.9 Explanation of Rollover Distributions 62
ARTICLE X DEATH BENEFITS 63
10.1 Determination of Death Benefits 63
10.2 Non-Annuity Form of Distribution 63
10.3 Payment of Survivor Benefits From Prior Pension Plan Account 64
10.4 Election of Optional Payment Form From Prior Pension
Plan Account 64
10.5 Commencement of Survivor Benefits 65
10.6 Cash-Out Payment of Survivor Benefits 65
10.7 Death During Suspension of Benefits 65
10.8 Joint Annuitant and Beneficiary Designation 65
10.9 Survivor Benefit Notice 66
ARTICLE XI WITHDRAWALS AND LOANS 67
11.1 Withdrawals After Age 59-1/2 67
11.2 Hardship Withdrawals 67
11.3 Withdrawals Before Age 59-1/2 Not on Account of Hardship 68
11.4 Post-Termination Withdrawals 69
</TABLE>
iii
<PAGE> 5
BRISTOL HOTEL MANAGEMENT CORPORATION 401(k) PLAN
TABLE OF CONTENTS (CONTINUED)
<TABLE>
<CAPTION>
ARTICLE PAGE
- ------- ----
<S> <C>
11.5 Order of Withdrawals 69
11.6 Election to Withdraw 69
11.7 Payment of Withdrawals 69
11.8 Effect of Outstanding Loans 70
11.9 Loans to Participants 70
ARTICLE XII ADMINISTRATION 74
12.1 Administrative Committee; Appointment and Term of Office 74
12.2 Organization of Administrative Committee 74
12.3 Powers and Responsibility 74
12.4 Records of Administrative Committee 75
12.5 Reporting and Disclosure 76
12.6 Construction of the Plan 76
12.7 Assistants and Advisors 76
12.8 Investment Committee 77
12.9 Direction of Trustee 78
12.10 Bonding 78
12.11 Indemnification 78
ARTICLE XIII ALLOCATION OF AUTHORITY AND RESPONSIBILITIES 79
13.1 Controlling Company and Board 79
13.2 Administrative Committee 80
13.3 Investment Committee 80
13.4 Trustee 80
13.5 Limitations on Obligations of Fiduciaries 80
13.6 Delegation 80
13.7 Multiple Fiduciary Roles 80
ARTICLE XIV AMENDMENT, TERMINATION AND ADOPTION 81
14.1 Amendment 81
14.2 Termination 81
14.3 Adoption of the Plan by a Participating Company 82
14.4 Merger, Consolidation and Transfer of Assets or Liabilities 84
</TABLE>
iv
<PAGE> 6
BRISTOL HOTEL MANAGEMENT CORPORATION 401(k) PLAN
TABLE OF CONTENTS (CONTINUED)
<TABLE>
<CAPTION>
ARTICLE PAGE
- ------- ----
<S> <C>
ARTICLE XV TOP-HEAVY PROVISIONS 85
15.1 Top-Heavy Plan Years 85
15.2 Determination of Top-Heavy Status 85
15.3 Top-Heavy Minimum Contribution 88
15.4 Top-Heavy Minimum Vesting 90
15.5 Adjustments in Code Section 415 Limitations for Top-Heavy Plans 90
15.6 Special Effective Date 90
15.7 Construction of Limitations and Requirements 91
ARTICLE XVI MISCELLANEOUS 92
16.1 Nonalienation of Benefits and Spendthrift Clause 92
16.2 Headings 93
16.3 Construction, Controlling Law 93
16.4 No Contract of Employment 93
16.5 Legally Incompetent 93
16.6 Heirs, Assigns and Personal Representatives 93
16.7 Title to Assets, Benefits Supported Only By Trust Fund 93
16.8 Legal Action 94
16.9 No Discrimination 94
16.10 Severability 94
16.11 Exclusive Benefit; Refund of Contributions 94
16.12 Special Effective Dates 95
16.13 Predecessor Service 95
16.14 Plan Expenses 95
SIGNATURES 96
SCHEDULE A A
SCHEDULE B B
SCHEDULE C C
</TABLE>
v
<PAGE> 7
BRISTOL HOTEL MANAGEMENT CORPORATION 401(k) PLAN
Effective as of 12 midnight on the 1st day of January, 1998, Bristol
Hotel Management Corporation (the "Controlling Company"), hereby merges the
Bristol Hotel Management Corporation Profit Sharing Plan (the "Bristol Plan")
and the Bristol Hotel Management Corporation Profit Sharing Plan for Former
Employees of Holiday Inn and renames the merged plan as the Bristol Hotel
Management Corporation 401(k) Plan (the "Plan").
STATEMENT OF PURPOSE
A. The merged Plan is being amended and restated effective as of
January 1, 1998, and is intended to cover eligible employees of Bristol Hotel
Management Corporation.
B. The primary purpose of the Plan is to recognize the
contributions made to the Controlling Company and any Participating Company by
eligible employees and to reward those contributions by providing eligible
employees with an opportunity to accumulate savings for their future security.
C. The Controlling Company intends that the Plan be a profit
sharing plan qualified under Sections 401(a) and 401(k) of the Internal Revenue
Code of 1986, as amended.
<PAGE> 8
STATEMENT OF AGREEMENT
To amend and restate the Plan with the purposes and goals as
hereinabove described, the Controlling Company hereby sets forth the terms and
provisions as follows:
<PAGE> 9
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS.
For purposes of the Plan, the following terms, when used with an initial capital
letter, shall have the meanings set forth below unless a different meaning
plainly is required by the context.
(a) Account shall mean, with respect to a Participant, Joint
Annuitant or Beneficiary, the amount of money or other
property in the Trust Fund, as is evidenced by the last
balance posted in accordance with the terms of the Plan to the
account record established for such Participant, Joint
Annuitant or Beneficiary. The Administrative Committee, as
required by the terms of the Plan and otherwise as it deems
necessary or desirable in its sole discretion, may establish
and maintain separate subaccounts for each Participant, Joint
Annuitant and Beneficiary, provided allocations are made to
such subaccounts in the manner described in Article V of the
Plan. "Account" shall refer to the aggregate of all separate
subaccounts or to individual, separate subaccounts, as may be
appropriate in context.
(b) ACP or Average Contribution Percentage shall mean, with
respect to a specified group of Participants for a Plan Year,
the average of the ratios (calculated separately for each
Participant in such group and rounded to the nearest 1/100th
of a percent) of (i) the total of the amount of Matching
Contributions and Discretionary Matching Contributions and, to
the extent designated by the Administrative Committee, the
Before-Tax and/or Supplemental Contributions (excluding
Before-Tax and Supplemental Contributions counted for purposes
of Section 6.3 and any Contributions returned to a Participant
or otherwise removed from his Account to correct excess Annual
Additions) actually paid to the Trustee on behalf of each such
Participant for a specified Plan Year, to (ii) such
Participant's Compensation for such specified Plan Year. If a
Highly Compensated Employee participates in the Plan and one
or more other plans of any Affiliates to which matching
contributions are made (other than a plan for which
aggregation with the Plan is not permitted), the matching
contributions made with respect to such Highly Compensated
Employee shall be aggregated for purposes of determining his
ACP. The ACP shall be rounded to the nearest 1/100th of a
percent and shall be calculated in a manner consistent with
the terms of Code Section 401(m) and the regulations
promulgated thereunder. If a Participant is eligible to
participate in the Plan for all or a portion of a Plan Year by
reason of satisfying the eligibility requirements of Article
II, but makes no Before-Tax Contributions which are taken into
account (as described above) for purposes of calculating his
ACP, and if he receives no allocations of Matching
Contributions, Discretionary Matching Contributions or
Supplemental Contributions which are taken into account (as
1
<PAGE> 10
described above) for purposes of calculating his ACP, such
Participant's ACP for such Plan Year shall be zero.
Notwithstanding anything to the contrary contained herein, for
purposes of determining the ACP for the first Plan Year for
the Active Participants who are not Highly Compensated
Employees, rules similar to the rules of Code Section
401(k)(3)(E) shall apply (see Section 1.1 (f) of this Plan).
(c) ACP Tests shall mean the nondiscrimination tests described in
Section 6.4.
(d) Active Participant shall mean, for any Plan Year (or any
portion thereof), any Covered Employee who, pursuant to the
terms of Article II, has been admitted to, and not removed
from, active participation in the Plan since the last date his
employment commenced or recommenced.
(e) Administrative Committee shall mean the committee which shall
act on behalf of the Controlling Company to administer the
Plan as provided in Article XII. The Administrative Committee
shall be the plan administrator, as that term is defined in
Code Section 414(g); provided, the Controlling Company may act
in lieu of the Administrative Committee as it deems
appropriate or desirable.
(f) ADP or Actual Deferral Percentage shall mean, with respect to
a specified group of Participants for a Plan Year, the average
of the ratios (calculated separately for each Participant in
such group and rounded to the nearest 1/100th of a percent) of
(i) the total of the amount of Before-Tax Contributions
(excluding Before-Tax Contributions, if any, designated by the
Administrative Committee to be taken into account under
Section 6.4(c)(1) to help satisfy the ACP Tests, or returned
to a Participant to correct excess Annual Additions) and, to
the extent designated by the Administrative Committee, the
Supplemental Contributions [excluding Supplemental
Contributions counted for purposes of Section 6.4(c)] actually
paid to the Trustee on behalf of each such Participant for a
specified Plan Year, to (ii) such Participant's Compensation
for such specified Plan Year. If a Highly Compensated Employee
participates in the Plan and one or more other plans of any
Affiliates to which before-tax contributions are made (other
than a plan for which aggregation with the Plan is not
permitted), the before-tax contributions made with respect to
such Highly Compensated Employee shall be aggregated for
purposes of determining his ADP. The ADP shall be rounded to
the nearest 1/100th of a percent and shall be calculated in a
manner consistent with the terms of Code Section 401(k) and
the regulations promulgated thereunder. If a Participant is
eligible to participate in the Plan for all or a portion of a
Plan Year by reason of satisfying the eligibility requirements
of Article II but makes no Before-Tax Contributions and
receives no allocation of Supplemental Contributions, which
the Administrative Committee takes into account for purposes
of the ADP Tests, such Participant's ADP for such Plan Year
shall be zero percent. Notwithstanding anything herein to the
contrary, if the Plan is determined not to be "successor plan"
within the meaning of Code Section 401(k)(3)(E), in the case
of the first Plan Year, the amount taken into account as the
ADP for the Active Participants who are not Highly Compensated
Employees for the proceeding Plan Year shall be: (i)
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<PAGE> 11
3 percent or (ii) if the Controlling Company makes an election
under Code Section 401(k)(3)(E)(ii), the ADP for the Active
Participants who are not Highly Compensated Employees
determined for such first Plan Year.
(g) ADP Tests shall mean the nondiscrimination tests described in
Section 6.3.
(h) Affiliate shall mean, as of any date, (i) a Participating
Company, and (ii) any company, person or organization which,
on such date, (A) is a member of the same controlled group of
corporations [within the meaning of Code Section 414(b)] as is
a Participating Company; (B) is a trade or business (whether
or not incorporated) which controls, is controlled by or is
under common control [within the meaning of Code Section
414(c)] with a Participating Company; (C) is a member of an
affiliated service group [as defined in Code Section 414(m)]
which includes a Participating Company; or (D) is required to
be aggregated with a Participating Company pursuant to
regulations promulgated under Code Section 414(o); provided,
solely for purposes of Section 6.7, the term "Affiliate" as
defined in this Section shall be deemed to include
corporations that would be Affiliates if the phrase "more than
50 percent" were substituted for the phrase "at least 80
percent" in each place the latter phrase appears in Code
Section 1563(a)(1).
(i) After-Tax Contributions Account shall mean the separate
subaccount established and maintained on behalf of a
Participant or Beneficiary to reflect his interest in the
Trust Fund attributable to his after-tax contributions made to
the Holiday Inn Plan.
(j) Annual Addition shall mean the sum of the amounts described in
Section 6.7(d)(1).
(k) Basic Before-Tax Contributions shall mean the amounts paid by
each Participating Company to the Trust Fund at the election
of Participants, all pursuant to the terms of Section 3.1(a).
(l) Before-Tax Account shall mean the separate subaccount
established and maintained on behalf of a Participant or
Beneficiary to reflect his interest in the Trust Fund
attributable to his Basic and Supplemental Before-Tax
Contributions.
(m) Before-Tax Contributions shall mean the Basic and Supplemental
Before-Tax Contributions made by each Participating Company to
the Trust Fund at the election of Participants, all pursuant
to the terms of Section 3.1(a).
(n) Beneficiary shall mean the person(s) designated in accordance
with Section 10.8 to receive any death benefits that may be
payable under the Plan upon the death of a Participant.
(o) Benefit Commencement Date shall mean the date benefits are
scheduled to commence as described in Section 9.1(b)(1) or
Section 9.1(b)(2), as applicable.
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<PAGE> 12
(p) Board shall mean board of directors of the Controlling
Company. A reference to the board of directors of any other
Participating Company shall specify it as such.
(q) Break in Service shall mean, with respect to an Employee, any
year during which such Employee fails to complete more than
500 Hours of Service; provided, a Break in Service shall not
be deemed to have occurred during any period for which he is
granted a Leave of Absence if he returns to the service of an
Affiliate within the time permitted as set forth in the Plan.
A Break in Service shall be deemed to have commenced on the
first day of the year in which it occurs.
For purposes of determining whether or not an Employee has
incurred a Break in Service, an Employee absent from work due
to a Maternity or Paternity Leave shall be credited with (i)
the number of Hours of Service with which he normally would
have been credited but for the Maternity or Paternity Leave,
or (ii) if the Administrative Committee is unable to determine
the hours described in (i), 8 Hours of Service for each day of
absence included in the Maternity or Paternity Leave;
provided, the maximum number of Hours of Service credited for
purposes of this Section shall not exceed 501 hours. Hours of
Service so credited shall be applied only to the year in which
the Maternity or Paternity Leave begins, unless such Hours of
Service are not required to prevent the Employee from
incurring a Break in Service, in which event such Hours of
Service shall be credited to the Employee in the immediately
following year. No Hour of Service shall be credited due to
Maternity or Paternity Leave as described in this Section
unless the Employee furnishes proof satisfactory to the
Administrative Committee (A) that his absence from work was
due to a Maternity or Paternity Leave and (B) of the number of
days he was absent due to the Maternity or Paternity Leave.
The Administrative Committee shall prescribe uniform and
nondiscriminatory procedures by which to make the above
determinations.
As used in this Section, the term "year" shall mean the same
12-month period as forms the basis for determining a Year of
Eligibility Service or a Year of Vesting Service, as
applicable.
(r) Bristol Stock shall mean common stock of Bristol Hotel
Company, par value $.01.
(s) Business Day shall mean each day on which the Trustee
operates, and is open to the public, for its business. If more
than one trust is used as a funding vehicle for the Plan,
Business Day shall be determined by reference to the
institutional Trustee; provided, if there is more than one
institutional Trustee, the Administrative Committee shall
designate and specify the institutional Trustee with respect
to which Business Day shall be determined.
(t) Code shall mean the Internal Revenue Code of 1986, as amended,
and any succeeding federal tax provisions.
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<PAGE> 13
(u) Company Contribution Account shall mean the separate
subaccount, or combination of subaccounts, established and
maintained on behalf of a Participant or his Beneficiary to
reflect his interest in the Trust Fund attributable to Company
Contributions.
(v) Company Contributions shall mean Before-Tax, Matching,
Discretionary Matching and Supplemental Contributions made by
the Participating Companies pursuant to the terms of the Plan.
(w) Compensation shall have the meaning set forth in subsection
(1), (2), (3) or (4) hereof, whichever is applicable;
provided, in no event shall the annual compensation taken into
account under the Plan for the Plan years beginning after
December 31, 1993 exceed $150,000 (as adjusted by the
Secretary of the Treasury under Code Section 401(a)(17) for
cost of living increases).
(1) Benefit Compensation. For purposes of determining the
amount of Before-Tax Contributions in Section 3.1 and
Matching Contributions and Discretionary Matching
Contributions in Section 3.3, "Compensation" shall
mean, for any Plan Year, such Participant's
compensation for the Plan Year or portion of Plan
Year during which the Participant is eligible to
participate in the Plan paid by a Participating
company reportable for Federal income tax purposes on
IRS Form W-2 plus the amount of the Participant's
elective deferrals as defined in Section 402(g)(3)
and any deferrals made pursuant to Code Section 125
and nonqualified deferred compensation plans of the
Participating Companies.
(2) Section 415 Compensation. Solely for purposes of
Section 6.1 (relating to maximum deductible
contribution limitations under Code Section 404),
Section 6.7 (relating to maximum contribution and
benefit limitations under Code Section 415) and
Section 14.4 (relating to minimum Contributions under
a Top-Heavy Plan), "Compensation" shall mean, with
respect to a Participant for a specified period all
such Participant's compensation paid by Affiliates,
that is reportable for Federal income tax purposes on
IRS Form W-2. Effective January 1, 1998,
"Compensation" as determined hereunder shall also
include any elective deferrals as defined in Section
402(g)(3) and any deferrals made pursuant to Code
Section 125.
(3) Testing Compensation. For purposes of performing
discrimination testing to ensure compliance with Code
Section 401(a)(4), Section 401(k) and Section 401(m),
the allocation of Supplemental Contributions in
Section 5.3, and for all other purposes except those
set forth in subsections (1) and (2) hereof,
"Compensation" generally shall be defined as the
amount determined under subsection (2) hereof;
provided, on a plan year-by-plan year basis, the
Administrative Committee may elect to use any other
definition that satisfies the nondiscrimination
requirements of Code Section 414(s) to perform the
discrimination testing referred to above.
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<PAGE> 14
(4) Expatriate Compensation. For purposes of determining
the Compensation of an Employee described in Section
1.1(pp), "Compensation" shall include all
remuneration paid to such individual by or for his
foreign affiliate employer (for which an agreement
under Code Section 3121(1) is in effect), to the
extent that such remuneration would have been treated
as "Compensation" if his services had been performed
for the Controlling Company.
(x) Contributions shall mean, individually or collectively, the
Before-Tax, Matching, Discretionary Matching, Supplemental,
Rollover and Transfer Contributions permitted under the Plan.
(y) Controlling Company shall mean Bristol Hotel Management
Corporation and its successors which adopt the Plan.
(z) Covered Employee shall mean an Employee other than:
(1) An Employee who is a "leased employee" within the
meaning of Code Section 414(n);
(2) An Employee who is a member of a collective
bargaining unit, unless the terms of the collective
bargaining agreement between the Participating
Company of the Employee and the bargaining unit
require that the Employee be eligible to participate
in the Plan;
(3) An Employee who is a nonresident alien who receives
no earned income from an Affiliate which constitutes
income from sources within the United States; or
(4) An Employee who is determined by a Participating
Company to be an on-call or special project employee,
such that he has no regular duties but works only at
such time(s) as a Participating Company requests that
he provide services, generally for a particular
project, including employees classified as "banquet
extra employees."
(aa) Deferral Election shall mean an election by an Active
Participant directing the Participating Company of which he is
an Employee to withhold a percentage of his current
Compensation from his paychecks and to contribute such
withheld amount to the Plan as Before-Tax Contributions, all
as provided in Section 3.1.
(bb) Defined Benefit Minimum shall mean the minimum benefit level
as described in Section 14.4(d).
(cc) Defined Benefit Plan shall mean a plan described in
Section 6.7(d)(2).
(dd) Defined Benefit Plan Fraction shall mean the fraction
described in Section 6.7(d)(3).
(ee) Defined Contribution Minimum shall mean the minimum
contribution level as described in Section 14.4(c).
6
<PAGE> 15
(ff) Defined Contribution Plan shall mean a plan described in
Section 6.7(d)(4).
(gg) Defined Contribution Plan Fraction shall mean the fraction
described in Section 6.7(d)(5).
(hh) Determination Date shall mean the date described in Section
14.2(b)(1).
(ii) Disability or Disabled shall mean that a Participant is, in
the opinion of the Administrative Committee, wholly prevented
from engaging in any substantially gainful activity, by reason
of a medically-determinable physical or mental impairment
which can be expected to result in death or to be of
long-continued and indefinite duration. In determining whether
a Participant has suffered a Disability, the Administrative
Committee may require such medical proof as it deems
necessary, including the certificate of one or more licensed
physicians selected by the Administrative Committee. The
decision of the Administrative Committee as to Disability
shall be final and binding.
(jj) Discretionary Matching Contributions shall mean the amounts
paid by each Participating Company to the Trust Fund as an
additional discretionary match to Participant's Basic
Before-Tax Contribution pursuant to Section 3.3(b).
(kk) Effective Date shall mean January 1, 1998, the date that this
merged Plan generally shall be effective; provided, any
effective date specified herein for any provision, if
different from the "Effective Date," shall control. The
effective date of participation in the Plan for each
Participating Company shall be the date set forth with respect
to the Participating Company in Schedule A hereto.
(ll) Elective Deferrals shall mean, with respect to a Participant
for any calendar year, the total amount of his Before-Tax
Contributions plus such other amounts as shall be determined
pursuant to the terms of Code Section 402(g)(3).
(mm) Eligible Participant shall mean, for any Plan Year, any Active
Participant who (i) has a Deferral Election for Before-Tax
Contributions in place on the last day of such Plan Year, and
(ii) is in the active employ of an Affiliate on the last day
of such Plan Year.
(nn) Eligible Retirement Plan shall mean a plan which is a defined
contribution plan, the terms of which permit the acceptance of
rollover distributions and which is either (i) an individual
retirement account described in Code Section 408(a), (ii) an
individual retirement annuity described in Code Section 408(b)
(other than an endowment contract), (iii) a qualified trust
described in Code Section 401(a) and exempt from tax under
Code Section 501(a), or (iv) an annuity plan described in Code
Section 403(a). In the case of a distribution to the Surviving
Spouse, Eligible Retirement Plan shall mean the Plan described
in either clause (i) or (ii) hereof.
(oo) Eligible Rollover Distribution shall mean any distribution to
an employee of all or any portion of the balance to his credit
in a qualified trust (including any
7
<PAGE> 16
distribution to a Participant of all or any portion of his
Account); provided, an employee's "Eligible Rollover
Distribution" shall not include (i) any distribution which is
one of a series of substantially equal periodic payments made,
not less frequently than annually, (A) for the life (or life
expectancy) of the employee or the joint lives (or joint life
expectancies) of the employee and his beneficiary, or (B) for
a specified period of 10 years or more, (ii) any distribution
to the extent such distribution is required under Code Section
401(a)(9), (iii) the portion of any distribution that is not
includable in gross income of the employee and (iv)
distributions which total less than $200 in a Plan Year.
(pp) Employee shall mean:
(1) General Definition. Any individual who is employed by
a Participating Company (including officers, but
excluding independent contractors and directors who
are not officers or otherwise employees) and shall
include leased employees of a Participating Company
within the meaning of Code Section 414(n).
Notwithstanding the foregoing, if leased employees
constitute 20 percent or less of a Participating
Company's nonhighly compensated work force within the
meaning of Code Section 414(n)(5)(C)(ii), the term
"Employee" shall not include those leased employees
covered by a plan described in Code Section
414(n)(5)(B).
(2) Expatriates. Any individual who is a citizen or
resident of the United States, who is an employee of
a foreign affiliate of the Controlling Company [as
that term is defined in Code Section 3121(l)(6)] and
who receives remuneration from the Controlling
Company, if both of the following requirements are
satisfied: (i) a Participating Company has entered
into an agreement under Code Section 3121(l) which
applies to the foreign affiliate of which such
individual is an employee, and (ii) no contributions
under a funded plan of deferred compensation are
provided by any other person with respect to the
remuneration paid to such individual by, or on behalf
of, the foreign affiliate.
(qq) Employment Date shall mean the date that an Employee first
performs an Hour of Service for an Affiliate.
(rr) Entry Date shall mean the first day of every January and July
during the period in which the Plan remains in effect.
(ss) ERISA shall mean the Employee Retirement Income Security Act
of 1974, as amended.
(tt) Forfeiture shall mean for any Plan Year, the dollar amount of
an Account of a former Employee that is removed from the
Account during such Plan Year.
8
<PAGE> 17
(uu) Highly Compensated Employee shall mean an employee of an
Affiliate who is described in subsections (1)(A) or (B) below,
as modified by subsections (2), (3), and (4) hereof:
(1) General Rule.
(A) An employee who at any time during the
current Plan Year or the immediately
preceding Plan Year owned [or was considered
as owning within the constructive ownership
rules of Code Section 318 as modified by
Code Section 416(i)(1)(B)(iii)] more than 5
percent of the outstanding stock of a
corporate Affiliate or stock possessing more
than 5 percent of the total combined voting
power of all stock of a corporate Affiliate
or more than 5 percent of the capital or
profits interest in a noncorporate
Affiliate; or
(B) An employee who at any time during the
immediately preceding Plan Year:
(i) received Compensation from an
Affiliate in excess of $80,000 (as
adjusted by the Internal Revenue
Service under Code Section 414(q)
[which references Code Section
415(d), except that the base period
shall be the calendar quarter
ending September 30, 1996] and the
regulations promulgated thereunder
for cost of living increases);
(ii) and, if elected by the Controlling
Company, was for the Plan Year
within the group consisting of the
most highly compensated 20 percent
of the employees of all Affiliates
(determined on the basis of
"Compensation" as defined in
Section 1.1(w)(3)).
(2) Excluded Employees. For purposes of subsection
(1)(B)(ii) hereof, the following may be excluded when
determining the most highly compensated 20 percent of
the employees of an Affiliate:
(A) employees who have not completed 6 months of
service;
(B) employees who normally work fewer than
17-1/2 hours per week;
(C) employees who normally work during not more
than 6 months during any Plan Year;
(D) employees who have not attained age 21; and
(E) employees who are included in a unit of
employees covered by an agreement which the
Secretary of Labor finds to be a collective
bargaining agreement between employee
representatives and an Affiliate.
9
<PAGE> 18
(3) Former Employees. For purposes of this Section, a
former employee shall be treated as a Highly
Compensated Employee if (i) the former employee was a
Highly Compensated Employee at the time the employee
separated from service with all Affiliates or (ii)
the former employee was a Highly Compensated Employee
at any time after he attained age 55.
(4) Nonresident Aliens. For purposes of this Section,
nonresident aliens who receive no earned income from
an Affiliate which constitutes income from sources
within the United States [as described in Code
Section 414(q)(8)] shall not be treated as employees.
(5) Compliance with Code Section 414(q). The
determination of who is a "Highly Compensated
Employee," including all of the parts of that
definition, shall be made in accordance with Code
Section 414(q) and the regulations promulgated
thereunder.
(vv) Holiday Inn Plan shall mean the Holiday Inns, Inc. Savings and
Retirement Plan.
(ww) Hour of Service shall mean the increments of time described in
subsection (1) hereof, as modified by subsections (2), (3) and
(4) hereof:
(1) General Rule.
(A) Each hour for which an Employee is paid, or
entitled to payment, for the performance of
duties for an Affiliate during the
applicable computation period;
(B) Each hour for which an Employee is paid, or
entitled to payment, by an Affiliate 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),
layoff, jury duty, military duty or Leave of
Absence; provided:
(i) No more than 501 Hours of Service
shall be credited under this
subsection (2) to an Employee for
any single continuous period during
which he performs no duties as an
employee of an Affiliate (whether
or not such period occurs in a
single computation period);
(ii) An hour for which an Employee is
directly or indirectly paid, or
entitled to payment, on account of
a period during which he performs
no duties as an employee of an
Affiliate shall not be credited as
an Hour of Service if such payment
10
<PAGE> 19
is made or due under a plan
maintained solely to comply with
applicable workers' compensation,
unemployment compensation or
disability insurance laws; and
(iii) Hours of Service shall not be
credited to an Employee for a
payment which solely reimburses
such Employee for medical or
medically related expenses incurred
by him.
For purposes of this subsection (2), a
payment shall be deemed to be made by or due
from an Affiliate regardless of whether such
payment is made by or due from an Affiliate
directly, or indirectly through, among
others, a trust fund or insurer, to which
the Affiliate contributes or pays premiums
and regardless of whether contributions made
or due to the trust fund, insurer or other
entity are for the benefit of particular
employees or are on behalf of a group of
employees in the aggregate; and
(C) Each hour for which back pay irrespective of
mitigation of damages, is either awarded or
agreed to by an Affiliate; provided, the
same Hours of Service shall not be credited
both under subsection (1) or subsection (2),
as the case may be, and under this
subsection (3); and, provided further,
crediting of Hours of Service for back pay
awarded or agreed to with respect to periods
described in subsection (2) shall be subject
to the limitations set forth in that
subsection.
(i) Equivalencies. Each Employee for
whom an Affiliate does not keep
records of actual Hours of Service
shall be credited, in accordance
with this Section and applicable
regulations promulgated by the
Department of Labor, with 45 Hours
of Service for each week for which
such Employee would be required to
be credited with at least 1 Hour of
Service.
(ii) Changes by Administrative
Committee. The rate or manner used
for crediting Hours of Service may
be changed at the direction of the
Administrative Committee from time
to time so as to facilitate
administration and to equitably
reflect the purposes of the Plan;
provided, no change shall be
effective as to any Plan Year for
which allocations have been made
pursuant to Article V at the time
such change is made; and, provided
further, Hours of Service shall be
credited and determined in
compliance with Department of Labor
Regulation Section 2530.200b-2(b)
and (c), 29 CFR Part 2530, as may
be amended from time to time, or
such other federal regulations as
may from time to time be
applicable.
11
<PAGE> 20
(iii) Computation Period. For purposes of
this Section, a "computation
period" shall mean the 12-month
period that forms the basis for
determining an Employee's Years of
Vesting Service, whichever is
applicable.
(xx) Investment Committee shall mean the committee which shall act
on behalf of the Controlling Company with respect to making
and effecting investment decisions, all as provided in Article
XI. Unless the Controlling Company specifies otherwise, the
Administrative Committee shall serve as the Investment
Committee. The Controlling Company may act in lieu of the
Investment Committee as it deems appropriate or desirable.
(yy) Investment Fund or Funds shall mean one or all of the
investment funds established from time to time pursuant to the
terms of Section 7.2.
(zz) Investment Manager shall mean an "investment manager" within
the meaning of ERISA Section 3(38).
(aaa) Joint Annuitant shall mean the person(s) designated as such by
a Participant (or deemed designated as such under the terms of
the Plan) in accordance with Section 9.3 to receive any
retirement or termination benefits that may be payable from
his Prior Pension Plan Account or Prior Annuity Plan Account
(to the extent applicable) upon the death of the Participant.
(bbb) Key Employee shall mean the persons described in Section
15.2(b)(2).
(ccc) Leave of Absence shall mean an excused leave of absence
granted to an Employee by an Affiliate in accordance with
applicable federal or state law or the Affiliate's personnel
policy. Among other things, Leave of Absence shall be granted
to an Employee:
(1) who leaves the service of an Affiliate, voluntarily
or involuntarily, to enter the Armed Forces of the
United States; provided, (i) the Employee is legally
entitled to reemployment under the veteran's
reemployment rights provisions of the Uniformed
Services Employment and Reemployment Rights Act, its
predecessors and successors; and (ii) the Employee
applies for and reenters service with an Affiliate
within the time, in the manner and under the
conditions prescribed by law; and
(2) under such other circumstances as the Administrative
Committee shall determine are fair, reasonable and
equitable, as applied uniformly among Employees under
similar circumstances.
(ddd) Limitation Year shall mean the 12 month period ending on each
December 31, which shall be the "limitation year" for purposes
of Code Section 415 and the regulations promulgated
thereunder.
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<PAGE> 21
(eee) Matching Contributions shall mean the amounts paid by each
Participating Company to the Trust Fund as a match to
Participants' Basic Before-Tax Contributions, all as pursuant
to the terms of Section 3.3(a).
(fff) Matching Contribution Account shall mean the separate
subaccount established and maintained on behalf of a
Participant or Beneficiary to reflect his interest in the
Trust Fund attributable to Matching Contributions and
Discretionary Matching Contributions made on or after the
Effective Date.
(ggg) Maternity or Paternity Leave shall mean any period during
which an Employee is absent from work as an employee of an
Affiliate (i) because of the pregnancy of such Employee; (ii)
because of the birth of a child of such Employee; (iii)
because of the placement of a child with such Employee in
connection with the adoption of such child by such Employee;
or (iv) for purposes of such Employee caring for a child
immediately after the birth or placement of such child.
(hhh) Maximum Deferral Amount shall mean $7,000, as adjusted from
time to time in accordance with Code Section 402(g)(5).
(iii) Named Fiduciary shall mean the Controlling Company, the Board,
the Trustee, the Administrative Committee and the Investment
Committee.
(jjj) Non-Key Employee shall mean the persons described in Section
15.2(b)(3).
(kkk) Normal Retirement Age shall mean age 65.
(lll) One Year Period of Severance shall mean a twelve consecutive
month Period of Severance.
(mmm) Participant shall mean any person who has been admitted to,
and has not been removed from, participation in the Plan
pursuant to the provisions of Article II. "Participant" shall
include Active Participants and former Employees who have an
Account under the Plan.
(nnn) Participating Company shall mean all companies that have
adopted or hereafter may adopt the Plan for the benefit of
their employees and which continue to participate in the Plan,
all as provided in Section 14.3.
(ooo) Permissive Aggregation Group shall mean the group of plans
described in Section 14.2(b)(4).
(ppp) Period of Severance shall mean a period of time commencing on
the Severance from Service Date (unless such period is
required to be taken into account as continuous Vesting
Service under Section 1.1(nnnn)).
(qqq) Plan shall mean the Bristol Hotel Management Corporation
401(k) Plan as contained herein and all amendments thereto.
The Plan is intended to be a profit sharing plan qualified
under Code Sections 401(a) and 401(k).
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<PAGE> 22
(rrr) Plan Year shall mean the 12-month period ending on each
December 31.
(sss) Prior Annuity Plan Account shall mean the separate subaccount
established and maintained on behalf of a Participant, Joint
Annuitant or Beneficiary to reflect his interest in the Trust
Fund attributable to direct trustee to trustee transfers to
the Plan from a profit sharing plan subject to the
requirements of Code Section 417, and the earnings and losses
attributable thereto.
(ttt) Prior Pension Plan Account shall mean the separate subaccount
established and maintained on behalf of a Participant or Joint
Annuitant to reflect his interest in the Trust Fund
attributable to direct trustee to trustee transfers to the
Holiday Inn Plan of a Participant's interest in the Holiday
Inns, Inc. Employee's Retirement Plan, or direct trustee to
trustee transfers to this Plan from any other plan (other than
a profit sharing plan) subject to the requirements of Code
Section 417, and the earnings and losses attributable thereto.
(uuu) Qualified Retirement Election shall mean an election which
relates to retirement and termination benefits described in
Article IX, which satisfies the criteria of this Section and
pursuant to which (i) an unmarried Participant designates a
Joint Annuitant and/or waives the annuity form of benefit
(described in Section 9.3(a)) by selecting an alternative form
of benefit payable to him and/or his Joint Annuitant, or (ii)
a married Participant designates a non-spouse Joint Annuitant
and/or waives the annuity form (described in Section 9.3(a))
of benefit by selecting an alternative form of benefit payable
to him and/or his Joint Annuitant. Such election must be in
writing and, if the Participant is married, must be consented
to by the Participant's Spouse. The Spouse's consent to such
election must acknowledge the effect of such election and must
be witnessed by a notary public or a Plan representative.
Notwithstanding this spousal consent requirement, if the
Participant establishes to the satisfaction of the
Administrative Committee that such written consent may not be
obtained because he has no Spouse, his Spouse cannot be
located or such other permissible circumstances exist as the
Secretary of the Treasury may by regulations prescribe, such
election signed only by the Participant may be deemed a
Qualified Retirement Election. Any consent necessary under
this provision will be valid only with respect to the Spouse
who signs the consent or, in the event of a deemed Qualified
Retirement Election, the designated Spouse. A revocation of a
prior election may be made by a Participant, without the
consent of his Spouse, if any, at any time before the
Participant's Benefit Commencement Date; the number of
revocations shall not be limited. Besides a revocation, a
married Participant may not change the designated non-spousal
Joint Annuitant and/or form of benefit without spousal consent
(which acknowledges his right to limit his consent to one
Joint Annuitant or benefit form), unless the consent of his
Spouse expressly permits designations by the Participant
without additional consent by his Spouse.
(vvv) Qualified Spousal Waiver shall mean a written election
executed by a Spouse, delivered to the Administrative
Committee and witnessed by a notary public or a
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<PAGE> 23
Plan representative, which consents to the payment of all or a
specified portion of a Participant's death benefit to a
Beneficiary other than such Spouse and which acknowledges that
such Spouse has waived his right to be the Participant's
Beneficiary under the Plan. A Qualified Spousal Waiver shall
be valid only with respect to the Spouse who signs it and
shall apply only to the alternative Beneficiary designated
therein, unless the written election expressly permits other
designations without further consent of the Spouse. A
Qualified Spousal Waiver shall be irrevocable unless revoked
by the Participant by way of (i) a written statement executed
by the Participant and delivered to the Administrative
Committee or (ii) a written revocation of the nonspouse
Beneficiary designation to which such Spouse has consented;
provided, any such revocation must be received by the
Administrative Committee prior to the Participant's date of
death.
(www) Required Aggregation Group shall mean the group of plans
described in Section 14.2(b)(5).
(xxx) Rollover Account shall mean the separate subaccount
established and maintained on behalf of a Participant or
Beneficiary to reflect his interest in the Trust Fund
attributable to Rollover Contributions.
(yyy) Rollover Contributions shall mean the amounts contributed to
the Trust Fund (and received and accepted by the Trustee) as
"rollover" contributions as defined in Code Section 402 and/or
Eligible Rollover Distributions. An amount shall be treated as
a Rollover Contribution only to the extent that its acceptance
by the Trustee is permitted under the Code (including the
regulations and rulings promulgated thereunder).
(zzz) Severance from Service Date shall mean the earlier of (1) or
(2) where (1) is the date on which an Employee quits, retires,
is discharged or dies and (2) is the first anniversary of the
first date of a period in which an Employee remains absent
from service (with or without pay) with all Affiliates for any
reason other than quit, retirement, discharge or death, such
as vacation, holiday, sickness, disability, leave of absence
or layoff.
(aaaa) Spouse or Surviving Spouse shall mean, with respect to a
Participant, the person who is treated as married to such
Participant under the laws of the state in which the
Participant resides. The determination of a Participant's
Spouse or Surviving Spouse shall be made as of the earlier of
the date as of which benefit payments from the Plan to such
Participant are made or commence (as applicable) or the date
of such Participant's death. In addition, a Participant's
former spouse shall be treated as his Spouse or Surviving
Spouse to the extent provided under a qualified domestic
relations order, as defined in Code Section 414(p).
(bbbb) Supplemental Account shall mean the separate subaccount
established and maintained on behalf of a Participant or
Beneficiary to reflect his interest in the Trust Fund
attributable to Supplemental Contributions.
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<PAGE> 24
(cccc) Supplemental Before-Tax Contributions shall mean the amounts
paid by each Participating Company to the Trust Fund at the
election of Participants, all pursuant to the terms of Section
3.1(b).
(dddd) Supplemental Contributions shall mean the amounts paid to the
Trust Fund by each Participating Company pursuant to the terms
of Section 3.5.
(eeee) Top-Heavy Group shall mean the group of plans described in
Section 15.2(b)(6).
(ffff) Top-Heavy Plan shall mean a plan to which the conditions set
forth in Article XIV apply.
(gggg) Transfer Account shall mean one or more separate subaccounts
established and maintained on behalf of a Participant or
Beneficiary to reflect his interest in the Trust Fund
attributable to Transfer Contributions; provided, to the
extent that the Administrative Committee (in conjunction with
the Plan's recordkeeper) deems appropriate, other subaccounts
(for example, Before-Tax or Matching) may be used to reflect
Participant's interest attributable to Transfer Contributions.
"Transfer Account" shall refer to the aggregate of all
separate subaccounts established for Transfer Contributions or
to individual, separate subaccounts appropriately described,
as may be appropriate in context.
(hhhh) Transfer Contributions shall mean amounts which are received
either (i) by a direct trustee to trustee transfer or (ii) as
part of a spin-off, merger or other similar event by the
Trustee from the trustee or custodian of another qualified
retirement plan and held in the Trust Fund on behalf of a
Participant or Beneficiary. Transfer Contributions shall
retain the character that those contributions had under the
other qualified retirement plan; for example, after-tax
contributions under the Holiday Inn Plan shall continue to be
treated as after-tax contributions when held in the Transfer
Account.
(iiii) Transferred Matching Contributions Account shall mean the
separate subaccount established and maintained on behalf of a
Participant or his Beneficiary to reflect his interest in the
Trust Fund attributable to Matching Contributions made prior
to the Effective Date and transferred from the Holiday Inn
Plan.
(jjjj) Trust or Trust Agreement shall mean each agreement entered
into between the Controlling Company and a Trustee governing
the creation of a Trust Fund, and all amendments thereto. If
more than one Trust Fund is used to hold Plan assets, there
shall be a separate and distinct Trust and Trust Agreement for
each such Trust Fund. To the extent indicated by the context,
"Trust" or "Trust Agreement" may refer collectively to all
Trusts and Trust Agreements creating Trust Funds.
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<PAGE> 25
(kkkk) Trustee shall mean the party or parties so designated from
time to time pursuant to a Trust Agreement. If more than one
Trust Fund is used to hold Plan assets, there may be a
separate and distinct Trustee for each such Trust Fund. To the
extent indicated by the context, "Trustee" may refer to all of
the Trustees or Trustee groups for the Trust Funds.
(llll) Trust Fund shall mean the total amount of cash and other
property held by a Trustee (or any nominee thereof) at any
time under a Trust Agreement. To the extent indicated by
context, "Trust Fund" may refer to all of the Trust Funds
under the Plan.
(mmmm) Valuation Date shall mean each Business Day; provided, the
value of an Account or the Trust Fund on a day other than a
Business Day shall be the value determined for the immediately
preceding Business Day.
(nnnn) Year of Eligibility Service shall mean a 12-consecutive-month
period during which an Employee completes no less than 1,000
Hours of Service and has attained age 18. For this purpose,
the computation period initially shall be the
12-consecutive-month period beginning on the date the
Employee's employment or reemployment commences and thereafter
shall be each Plan Year, beginning with the Plan Year which
includes the first anniversary of the Employee's employment or
reemployment commencement date.
(1) Service with Holiday Inn. An Employee's period of
employment credited under the Holiday Inn Plan shall
be taken into account in determining the Employee's
Years of Eligibility Service, provided the Employee
became an Employee immediately following and as a
result of Bristol Hotel Management Corporation's
acquisition of the Holiday Inn properties on April
28, 1997.
(2) Predecessor Employer. To the extent determined by the
Administrative Committee, set forth on Schedule B
hereto and not otherwise counted hereunder, an
Employee's periods of employment with one or more
companies or enterprises that was the predecessor to
an Affiliate with respect to the management of a
property or that was acquired by or merged into, or
all or a portion of the assets or business of which
are acquired by, an Affiliate shall be taken into
account in determining his Years of Eligibility
Service.
(oooo) Year of Vesting Service effective January 1, 1998, shall mean
the number of years of service determined by measuring the
period of time from the later of (i) January 1, 1998, or (ii)
an Employee's Employment Date (or the date an Employee first
performs an Hour of Service following a Period of Severance)
until the Employee's Severance from Service Date (including
any Period of Severance of 12 months or less [24 months in the
case of severance due to maternity or paternity]). Except as
otherwise expressly provided in this Plan, Vesting Service
need not be consecutive or continuous and all fractional
periods of employment
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<PAGE> 26
are aggregated so that 30 days of employment constitute a
month of Vesting Service and completed months of Vesting
Service constitute a fractional year.
(1) Subsequent Service. Years of Vesting Service
completed after a period in which the Participant had
at least a 5 Year Period of Severance shall be
disregarded for the purpose of determining his vested
interest in that portion of his Account which accrued
before such Period of Severance.
(2) Service With Holiday Inn. An Employee's period of
employment credited under the Holiday Inn Plan shall
be taken into account in determining the Employee's
Years of Vesting Service, provided the Employee
became an Employee immediately following and as a
result of Bristol Hotel Management Corporation's
acquisition of the Holiday Inn properties on April
28, 1997.
(3) Predecessor Plan. To the extent required by Code
Section 414(a)(1) and not otherwise counted
hereunder, if an Affiliate maintains a plan that is
or was the qualified retirement plan of a predecessor
employer, an Employee's service with such predecessor
employer shall be taken into account in determining
his Years of Vesting Service.
(4) Predecessor Employer. To the extent determined by the
Administrative Committee, set forth on a schedule
hereto and not otherwise counted hereunder, an
Employee's periods of employment with one or more
companies or enterprises that was the predecessor to
an Affiliate with respect to the management of a
property or that was acquired by or merged into, or
all or a portion of the assets or business of which
are acquired by, an Affiliate shall be taken into
account in determining his Years of Vesting Service.
(5) Prior Vesting Service - Change in Method of Crediting
Service. The amendment and restatement of this Plan
has resulted in a change in the basis for measuring
Years of Vesting Service, effective as of January 1,
1998, from the hours of service method set forth in
Section 2530.200b-2 of the Department of Labor
Regulations to the elapsed time method as provided
for in Section 1.410(a)-7 of the Income Tax
Regulations. Accordingly, in addition to Years of
Vesting Service credited for periods beginning on or
after January 1, 1998, each Employee whose service
was measured by the hours of service method under
this Plan prior to January 1, 1998 shall continue to
be credited with a number of Years of Vesting Service
equal to the number of Years of Vesting Service
credited to such Employee before the Vesting
Computation Period ending on or including December
31, 1997.
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<PAGE> 27
ARTICLE II
ELIGIBILITY
SECTION 2.1 INITIAL ELIGIBILITY REQUIREMENTS.
(a) General Rule. Except as provided in subsections (b) and (c)
hereof, every Covered Employee shall be eligible to become an
Active Participant in the Plan on the Entry Date coinciding
with or next following the date on which he first has
completed one (1) Year of Eligibility Service, provided he is
a Covered Employee on such date.
(b) Participation Upon Effective Date. Each Covered Employee who
is an Active Participant in the Bristol Plan or the Bristol
Hotel Management Corporation Profit Sharing Plan for Former
Employees of Holiday Inn on the day immediately preceding the
Effective Date shall be eligible to become an Active
Participant as of the Effective Date.
(c) New Participating Companies. For employees of companies that
become Participating Companies after the Effective Date, each
Covered Employee employed by a Participating Company on the
date such Participating Company first becomes a Participating
Company shall be eligible to become an Active Participant as
of such Participating Company's effective date under the Plan,
if, as of the Participating Company's effective date, the
Covered Employee has completed one (1) Year of Eligibility
Service.
SECTION 2.2 TREATMENT OF INTERRUPTIONS OF SERVICE.
(a) Leave of Absence. If a Covered Employee satisfies the
eligibility requirements set forth in Section 2.1 but is on a
Leave of Absence on the Entry Date on which he otherwise would
have been eligible to become an Active Participant, he shall
be eligible to become an Active Participant on the date he
subsequently resumes the performance of duties as a Covered
Employee in accordance with the terms of his Leave of Absence.
(b) Reemployment Before Break in Service. If a Covered Employee
satisfies the eligibility requirements set forth in Section
2.1, separates from service with a Participating Company (and
all other Participating Companies) before the Entry Date on
which he otherwise would be eligible to become an Active
Participant, and then is reemployed by a Participating Company
prior to completing a Break in Service, he shall be eligible
to become an Active Participant as of the later of (i) the
Entry Date on which he otherwise would have been eligible to
become an Active Participant if he had not terminated
employment or (ii) the date he is reemployed as a Covered
Employee.
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<PAGE> 28
(c) Reemployment After Break in Service. If a Covered Employee
satisfies the eligibility requirements set forth in Section
2.1, separates from service with a Participating Company (and
all other Participating Companies) before the Entry Date on
which he otherwise would be eligible to become an Active
Participant, and then is reemployed as a Covered Employee by a
Participating Company after completing a Break in Service, he
shall be eligible to become an Active Participant as of the
date he is reemployed as a Covered Employee.
(d) Reparticipation Upon Reemployment of Active Participant. If an
Active Participant separates from service with a Participating
Company (and all other Participating Companies), his active
participation in the Plan shall cease immediately, and he
again shall be eligible to become an Active Participant as of
the day he again becomes a Covered Employee. However,
regardless of whether he again becomes an Active Participant,
he shall continue to be a Participant until he no longer has
an Account under the Plan.
SECTION 2.3 CHANGE IN EMPLOYEE STATUS.
(a) Loss of Covered Employee Status. If a Covered Employee (i)
satisfies the eligibility requirements set forth in Section
2.1, (ii) changes his employment status (but remains employed)
so that he ceases to be a Covered Employee before the Entry
Date on which he otherwise would be eligible to become an
Active Participant, and (iii) then again changes his
employment status and becomes a Covered Employee prior to
completing a Break in Service, he shall be eligible to become
an Active Participant as of the date he again becomes a
Covered Employee. If an Employee covered by this subsection
does complete a Break in Service prior to again becoming a
Covered Employee, his entry to participation in the Plan will
be governed by Section 2.2(c).
(b) Change to Covered Employee Status. If an Employee who first
satisfies the eligibility requirements of Section 2.1 while he
is not a Covered Employee subsequently changes his employment
status so that he becomes a Covered Employee, he shall be
eligible to become an Active Participant on the Entry Date
coinciding with or next following his change in status. If, on
such date, he has not satisfied the eligibility requirements
of Section 2.1 or is not a Covered Employee, he shall be
eligible to become an Active Participant on the Entry Date
coinciding with or next following the date he satisfies the
eligibility requirements of Section 2.1, provided he is a
Covered Employee on such Entry Date.
(c) Change by Participant. If an Active Participant changes his
status of employment (but remains employed) so that he is no
longer a Covered Employee, his active participation in the
Plan shall cease immediately, and he shall again become an
Active Participant in the Plan as of the day he again becomes
a Covered Employee. However, regardless of whether he again
becomes an Active Participant, he shall continue to be a
Participant until he no longer has an Account
20
<PAGE> 29
under the Plan. The rights and duties of a Participant who
leaves the Company's employment in connection with a sale of
assets, transfer of property management, or other corporate
transaction and who immediately becomes an employee of the
purchaser or other successor employer in connection with such
corporate transaction such that distribution to the
Participant is prohibited under IRS "Same Desk" rule shall be
set out in Schedule C hereto.
SECTION 2.4 OTHER CHANGE IN STATUS.
An individual who becomes eligible to become an Active Participant, may begin to
participate in the Plan and to make a Deferral Election by complying with the
enrollment (or reenrollment) process established by the Administrative
Committee. The Deferral Election and participation in the Plan shall be
effective as soon as administratively practicable following completion of the
enrollment process by the Employee and shall be subject to any administrative
deadlines established by the Administrative Committee.
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<PAGE> 30
ARTICLE III
CONTRIBUTIONS
SECTION 3.1 BEFORE-TAX CONTRIBUTIONS.
Each Participating Company shall contribute to the Plan, on behalf of each
Active Participant employed by such Participating Company and for each regular
payroll period, made during any payroll period for which such Active Participant
has a Deferral Election in effect with such Participating Company, Basic and
Supplemental Before-Tax Contributions in amounts equal to the amounts by which
such Active Participant's Compensation has been reduced for such period pursuant
to his Deferral Election.
(a) Basic Before-Tax Contributions. The amount of the Basic
Before-Tax Contribution shall be determined in increments of 1
percent of such Active Participant's Compensation for each
payroll period. The Active Participant may elect to reduce his
Compensation for any payroll period by an amount that shall
not exceed 6 percent of his Compensation for such payroll
period (or such other maximum percentage and/or amount, if
any, established by the Administrative Committee from
time-to-time); provided, the maximum limitations in Article VI
shall apply.
(b) Supplemental Before-Tax Contributions. An Active Participant
who has made the maximum permitted Basic Before-Tax
Contribution may elect to make Supplemental Before-Tax
Contributions to the Plan. The amount of the Supplemental
Before-Tax Contribution shall be determined in increments of 1
percent of such Active Participant's Compensation for each
payroll period. The Active Participant may elect to reduce his
Compensation for any period by a maximum of 10 percent or
within such other limits established by the Administrative
Committee from time-to-time; provided, the maximum limitations
in Article VI shall apply.
(c) Special Limits on Before-Tax Contributions. Notwithstanding
anything to the contrary contained herein, the maximum
Before-Tax Contribution that can be elected by a Highly
Compensated Employee who is eligible to participate in the
Bristol Hotel Management Corporation Nonqualified Savings Plan
for any period shall be 3 percent or such other amount as is
designated by the Administrative Committee from time to time.
The Administrative Committee may also from time to time limit
the maximum Before Tax Contribution percentage that can be
elected by other Highly Compensated Employees to the extent
deemed necessary or desirable by the Administrative Committee
to comply with the limitations described in Article VI.
22
<PAGE> 31
SECTION 3.2 DEFERRAL ELECTIONS.
Each Active Participant, who desires that his Participating Company make a
Before-Tax Contribution on his behalf, shall make a Deferral Election on a form
provided by the Administrative Committee, through an interactive telephone
system or in such other manner as the Administrative Committee may prescribe.
Such Deferral Election shall provide for the reduction of his Compensation for
each payroll period ending or occurring while he is an Active Participant
employed by such Participating Company. The Administrative Committee, in its
sole discretion, may also prescribe such nondiscriminatory terms and conditions
governing the use of the Deferral Elections as it deems appropriate. Subject to
any modifications, additions or exceptions which the Administrative Committee,
in its sole discretion, deems necessary, appropriate or helpful, the following
terms shall apply to Deferral Elections:
(a) Effective Date. An Active Participant's initial Deferral
Election with a Participating Company shall be effective for
the first full payroll period which ends after the Deferral
Election is made and after the effective date of such Deferral
Election or as soon as administratively practicable. If an
Active Participant fails to submit a Deferral Election in a
timely manner, he shall be deemed to have elected a deferral
of zero percent. For purposes of this subsection, the
"effective date" of a Deferral Election shall mean: (A) for a
Participant who commences participation in the Plan on an
Entry Date, that Entry Date; and (B) for a Participant who
commences or recommences participation in the Plan on a date
other than an Entry Date, the next following Entry Date.
(b) Term. Each Active Participant's Deferral Election with a
Participating Company shall remain in effect in accordance
with its original terms until the earlier of (A) the date the
Active Participant ceases to be a Covered Employee of all
Participating Companies, (B) the date the Active Participant
revokes such Deferral Election pursuant to the terms of
subsection (c) hereof, or (C) the date the Active Participant
or the Administrative Committee modifies such Deferral
Election pursuant to the terms of subsection (d) hereof. If a
Participant is transferred from the employment of a
Participating Company to the employment of another
Participating Company, his Deferral Election with the first
Participating Company will remain in effect and will apply to
his Compensation from the second Participating Company until
the earlier of (A), (B) or (C) of the preceding sentence.
(c) Modification by Participant. Not more than once during each
calendar quarter an Active Participant may modify his existing
Deferral Election to increase or decrease the percentage of
his Before-Tax Contributions (including revocation of the
Deferral Election) and the change shall be effective as soon
as practicable.
(d) Modification by Administrative Committee. Notwithstanding
anything herein to the contrary, the Administrative Committee
may modify any Deferral Election of any Active Participant at
any time by decreasing the percentage of any
23
<PAGE> 32
Before-Tax Contributions to any extent the Administrative
Committee believes necessary to comply with the limitations
described in Article VI. The Administrative Committee may also
increase the maximum Before-Tax Contribution percentage at
anytime up to the maximum percentage generally permitted under
the Code.
SECTION 3.3 MATCHING CONTRIBUTIONS.
(a) General Match. For each Active Participant on whose behalf a
Participating Company has made, with respect to a payroll
period, any Basic Before-Tax Contributions, such Participating
Company shall make a Matching Contribution equal to 50 percent
of the amount of the total of such Basic Before-Tax
Contributions; provided, the total amount of the Matching
Contributions which a Participating Company shall make for any
such Active Participant for any payroll period shall not
exceed 3 percent of such Active Participant's Compensation
paid by such Participating Company for such payroll period
(that is, the 50 percent Matching Contributions shall not be
applied to Basic Before-Tax Contributions that exceed 6
percent of a Participant's Compensation for a payroll period),
nor shall such amount exceed (or cause the Contributions to
exceed) any of the maximum limitations described in Section
6.1, Section 6.4 or Section 6.7. The Administrative Committee,
in its sole discretion, may change the, 50 percent, or 3
percent levels set forth hereinabove, and any such changes
shall be effective without amendment to the Plan.
(b) Discretionary Match. For each Eligible Participant on whose
behalf a Participating Company has made, with respect to a
calendar year, any Basic Before-Tax Contributions, such
Participating Company shall make additional Discretionary
Matching Contributions with respect to Basic Before-Tax
Contributions in such percentage or amount as the Board shall
designate for such Plan Year (such amount may be zero),
provided such amount shall not cause the Contributions to
exceed the maximum limits described in Section 6.1, Section
6.4 and Section 6.7. The Participating Company shall make the
additional Discretionary Matching Contributions pursuant to
this subsection as of the Valuation Date which is the last day
of the Plan Year. Discretionary Matching Contributions shall
be made for and allocated to Eligible Participants only.
SECTION 3.4 SUPPLEMENTAL CONTRIBUTIONS.
To the extent and in such amounts as the Administrative Committee, in its sole
discretion, deems desirable or helpful as a method to help satisfy the ADP
and/or ACP Tests for any Plan Year and subject to the requirements and
limitations set forth in Section 6.1, Section 6.3, Section 6.4 and Section 6.7,
each Participating Company shall make a Supplemental Contribution for a Plan
Year.
SECTION 3.5 FORM OF CONTRIBUTIONS.
All Contributions shall be paid to the Trustee in the form of cash.
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<PAGE> 33
SECTION 3.6 TIMING OF CONTRIBUTIONS.
(a) Before-Tax Contributions. Each Participating Company that
withholds Before-Tax Contributions from an Active
Participant's paycheck pursuant to a Deferral Election shall
pay such Before-Tax Contributions to the Trustee as of the
earliest date (not to exceed 15 business days following the
end of the month during which such amounts otherwise would
have been payable to such Active Participant in cash) on which
such Contributions can reasonably be segregated from the
Participating Company's general assets.
(b) Matching, Discretionary Matching and Supplemental
Contributions. Each Participating Company shall pay its
Matching, Discretionary Matching and Supplemental
Contributions to the Trustee (i) on or before the date for
filing its federal income tax return (including extensions
thereof) for the tax year to which such Matching,
Discretionary Matching and Supplemental Contributions relate,
or (ii) on or before such other date as shall be within the
time allowed to permit the Participating Company to properly
deduct, for federal income tax purposes and for the tax year
of the Participating Company in which the obligation to make
such Contributions was incurred, the full amount of such
Matching, Discretionary Matching and Supplemental
Contributions; provided, in the event the amount of
Supplemental Contributions cannot be calculated by the latest
date described hereinabove, such Supplemental Contributions
may be made at a later date permitted by law.
SECTION 3.7 CONTINGENT NATURE OF COMPANY CONTRIBUTIONS.
Notwithstanding Section 3.1 and subject to the terms of Section 15.11, each
Company Contribution made to the Plan by a Participating Company is made
expressly contingent upon the deductibility thereof for federal income tax
purposes for the taxable year of the Participating Company with respect to which
such Company Contribution is made.
SECTION 3.8 RESTORATION CONTRIBUTIONS.
(a) Restoration of Forfeitures. If a Participant has forfeited his
nonvested Account in accordance with Section 8.3, and such
Participant subsequently is rehired as a Covered Employee
prior to the occurrence of 5 consecutive Breaks in Service
and, is or becomes entitled to a restoration of forfeitures in
accordance with Section 8.3, his Account shall be credited
with all of the benefits (unadjusted for gains or losses)
which were forfeited, as determined pursuant to the terms of
Section 8.3.
(b) Restoration Contribution. The assets necessary to fund the
Account of the rehired individual (in excess of the amount of
the repayment, if any) entitled to restoration of forfeitures
in accordance with Section 8.3 shall be provided no later than
as of the end of the Plan Year following the Plan Year in
which the individual becomes entitled to the restoration, and
shall be provided in the discretion of the Administrative
Committee from (i) income or gain to the Trust Fund, (ii)
Forfeitures arising from the Accounts of Participants employed
or formerly employed by the Participating Companies, or (iii)
Contributions by the Participating Companies.
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<PAGE> 34
ARTICLE IV
ROLLOVERS AND TRANSFERS BETWEEN PLANS
SECTION 4.1 ROLLOVER CONTRIBUTIONS.
(a) Request by Covered Employee. A Covered Employee may make a
written request to the Administrative Committee that he be
permitted to contribute, or cause to be contributed, to the
Trust Fund a Rollover Contribution which is received by such
Covered Employee or to which such Covered Employee is
entitled. Such written request shall contain information
concerning the type of property constituting the Rollover
Contribution and a statement, satisfactory to the
Administrative Committee, that the property constitutes a
Rollover Contribution. If a Covered Employee who is not a
Participant makes a Rollover Contribution, the time and method
of distribution of such Covered Employee's Rollover Account
shall be determined under the terms of the Plan as if such
Covered Employee were a Participant, but he shall not be
considered a Participant under the Plan for any other purpose.
(b) Acceptance of Rollover. Subject to the terms of the Plan and
the Code (including regulations and rulings promulgated
thereunder), the Administrative Committee, in its sole
discretion, shall determine whether (and if so, under what
conditions and in what form) a Rollover Contribution shall be
accepted at any time by the Trustee. For example, the
Administrative Committee, in its sole discretion, may decide to
allow Rollover Contributions from Participants and/or direct
Rollover Contributions from another qualified retirement plan
[as described in Code Section 401(a)(31)]. In the event the
Administrative Committee permits an Active Participant to make
a Rollover Contribution, the amount of the Rollover
Contribution shall be transferred to the Trustee and allocated
as of the coincidental or first succeeding Valuation Date to a
Rollover Account for the Active Participant. Unless the
Administrative Committee permits otherwise, all Rollover
Contributions shall be made in cash.
SECTION 4.2 TRANSFER CONTRIBUTIONS.
(a) Direct Transfers Permitted. In addition to the transfers from
the Holiday Inn Plan, the Administrative Committee, in its
sole discretion, may permit direct trustee-to-trustee
transfers of assets and liabilities to the Plan [which shall
be distinguished from direct Rollover Contributions as
described in Code Section 401(a)(31)] as a Transfer
Contribution on behalf of an Active Participant.
(b) Mergers and Spin-offs Permitted. The Administrative Committee,
in its sole discretion, may permit other qualified retirement
plans to transfer assets and
26
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liabilities to the Plan as part of a merger, spin-off or
similar transaction. Any such transfer shall be made in
accordance with the terms of the Code and subject to such
rules and requirements as the Administrative Committee may
deem appropriate. Without limitation, the Administrative
Committee shall determine the schedule under which such
Transfer Contributions shall vest.
(c) Establishment of Transfer Accounts. As of the coincidental or
first succeeding Valuation Date after the date the Trustee
receives a Transfer Contribution, there shall be credited to
one or more Transfer Accounts of each Participant the total
amount received from the respective accounts of such
Participant in the transferring qualified retirement plan. Any
amounts so credited as a result of any such merger or spin-off
or other transfer shall be subject to all of the terms and
conditions of the Plan from and after the date of such
transfer.
(d) Transfer Accounts. The rules and terms applicable to Transfer
Contributions and resulting Transfer Accounts shall be
reflected on a schedule hereto to the extent necessary.
SECTION 4.3 MERGERS AND SPIN-OFFS TO OTHER PLANS.
The Administrative Committee, in its sole discretion, may cause the Plan to
transfer to another qualified retirement plan (as part of a plan merger, plan
spin-off, or similar transaction) all or part of the assets and liabilities
maintained under the Plan. Any such transfer shall be made in accordance with
the terms of the Code and subject to such rules and requirements as the
Administrative Committee may deem appropriate. Upon the effectiveness of any
such transfer, the Plan and Trust shall have no further responsibility or
liability with respect to the transferred assets and liabilities.
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ARTICLE V
PARTICIPANTS' ACCOUNTS; CREDITING AND ALLOCATIONS
SECTION 5.1 ESTABLISHMENT OF PARTICIPANTS' ACCOUNTS.
To the extent appropriate, the Administrative Committee shall establish and
maintain, on behalf of each Participant, Joint Annuitant and Beneficiary, an
Account which shall be divided into segregated subaccounts. The subaccounts
shall include Before-Tax, After-Tax, Matching, Supplemental, Rollover, Prior
Pension Plan, Transferred Matching, and other Transfer Accounts and such other
subaccounts as the Administrative Committee shall deem appropriate or helpful.
Each Account shall be credited with Contributions allocated to such Account and
generally shall be credited with income on investments derived from the assets
of such Accounts. Notwithstanding anything herein to the contrary, while
Contributions may be allocated to a Participant's Account as of a particular
date (as specified in the Plan), such Contributions shall actually be added to a
Participant's Account and shall be credited with investment experience only from
the date such Contributions are received by the Trustee. Each Account of a
Participant, Joint Annuitant or Beneficiary shall be maintained until the value
thereof has been distributed to or on behalf of such Participant, Joint
Annuitant or Beneficiary.
SECTION 5.2 ALLOCATION AND CREDITING OF BEFORE-TAX, MATCHING,
DISCRETIONARY MATCHING, ROLLOVER AND TRANSFER CONTRIBUTIONS.
(a) Before-Tax, Matching, Rollover and Transfer Contributions. As
of each Valuation Date coinciding with or immediately
following the date on which Before-Tax, Matching, Rollover and
Transfer Contributions are received on behalf of an Active
Participant, such Contributions shall be allocated and
credited directly to the appropriate Before-Tax, Matching,
Rollover and Transfer Accounts, respectively, of such Active
Participant.
(b) Discretionary Matching Contributions. As of the last day of
each Plan Year for which the Participating Companies make
Discretionary Matching Contributions, each Eligible
Participant who made Basic Before-Tax Contributions shall have
allocated and credited to his Matching Contribution Account
the Discretionary Matching Contribution received on his behalf
for such Plan Year.
SECTION 5.3 ALLOCATION AND CREDITING OF SUPPLEMENTAL CONTRIBUTIONS.
(a) General Provision. As of the last day of each Plan Year for
which the Participating Companies make (or are deemed to have
made) Supplemental Contributions, each Eligible Participant
who is eligible to receive an allocation of Supplemental
Contributions for such Plan Year (pursuant to the terms of
subsection (b), (c), (d) or (e) hereof, whichever is
applicable) shall have allocated
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<PAGE> 37
and credited to his Supplemental Account a portion of the
Supplemental Contributions made for such Plan Year by the
Participating Companies. The Administrative Committee shall
cause a portion of such Supplemental Contributions to be
allocated to the Supplemental Account of each such Eligible
Participant in accordance with the terms of subsection (b),
(c), (d) or (e) hereof, whichever is applicable.
(b) Per Capita Supplemental Contributions. To the extent that the
Board and/or Administrative Committee designates all or any
portion of the Supplemental Contributions for a Plan Year as
"Per Capita Supplemental Contributions", such Contributions
shall be allocated to the Supplemental Accounts of all
Eligible Participants who are not Highly Compensated Employees
on a per capita basis (that is, the same dollar amount shall
be allocated to the Supplemental Account of each Eligible
Participant who is not a Highly Compensated Employee).
(c) Proportional Supplemental Contributions. To the extent that
the Board and/or Administrative Committee designates all or
any portion of the Supplemental Contributions for a Plan Year
as "Proportional Supplemental Contributions", such
Contributions shall be allocated to the Supplemental Account
of each Eligible Participant who is not a Highly Compensated
Employee in the same proportion that (i) the Compensation of
such Eligible Participant for such Plan Year bears to (ii) the
total Compensation of all such Eligible Participants for such
Plan Year.
(d) Section 415 Supplemental Contributions. To the extent that the
Board and/or Administrative Committee designates all or any
portion of the Supplemental Contributions for a Plan Year as
"Section 415 Supplemental Contributions", such Contributions
shall be allocated to the Supplemental Account of some or all
Eligible Participants who are not Highly Compensated
Employees, (A) beginning with such Eligible Participant(s) who
have the lowest Compensation [within the meaning of "Testing
Compensation" as described in Section 1.20(d)], until such
Eligible Participant(s) reach their annual addition limits (as
described in Section 6.7), or the amount of the Supplemental
Contributions is fully allocated, and then (B) continuing with
successive individuals or groups of such Eligible Participants
in the same manner until the amount of the Section 415
Supplemental Contributions is fully allocated.
(e) Supplemental Matching Contributions. To the extent that the
Board and/or Administrative Committee designates all or any
portion of the Supplemental Contributions for a Plan Year as
"Supplemental Matching Contributions", such Contributions
shall be allocated to the Supplemental Account of each
Eligible Participant in the same proportion that (i) such
Eligible Participant's Plan Year Before-Tax Contributions that
do not exceed the maximum amount of Before-Tax Contributions
taken into account in determining Matching Contributions for
such Plan Year, bears to (ii) the total of all such Eligible
Participants' Plan Year Before-Tax Contributions (calculated
by taking into account for such Eligible
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Participants only the maximum amount of Before-Tax
Contributions taken into account in determining Matching
Contributions for such Plan Year).
SECTION 5.4 ALLOCATION OF FORFEITURES.
To the extent Forfeitures for a Plan Year are not used to pay restoration
Contributions pursuant to Section 3.8(b) or to replace abandoned Accounts as
provided in Section 9.7, the Administrative Committee, in its sole discretion,
shall deem such Forfeitures to be Matching, Discretionary Matching or
Supplemental Contributions (that shall first be used to reduce the Participating
Companies' obligation, if any, to make such Contributions pursuant to the terms
of the Plan and then shall be added to, and combined with, any such other
Contributions made for such Plan Year by the Participating Companies), and such
Forfeitures shall be allocated pursuant to the terms of Section 5.2 and Section
5.3, as applicable.
SECTION 5.5 ALLOCATION AND CREDITING OF INVESTMENT EXPERIENCE.
As of each Valuation Date, the Trustee shall determine the fair market value of
the Trust Fund which shall be the sum of the fair market values of the
Investment Funds. The Administrative Committee shall determine the amount of the
Accounts as follows:
(a) Determination of Earnings or Losses. As of each Valuation
Date, the investment earnings (or losses) of each Investment
Fund shall be the amount by which the sum determined in (1)
exceeds (or is less than) the sum determined in (2), where (1)
and (2) are as follows:
(1) The sum of (A) the fair market value of such
Investment Fund as of such Valuation Date, plus (B)
the amount of distributions and withdrawals and any
transfers to other Investment Funds made since the
immediately preceding Valuation Date from amounts
invested in the Investment Fund; and
(2) The sum of (A) the fair market value of the
Investment Fund as of the immediately preceding
Valuation Date, plus (B) Contributions deposited in
and amounts transferred to such Investment Fund since
the immediately preceding Valuation Date.
(b) Formula For Allocation. To the extent directed by the
Administrative Committee, investment earnings initially shall
be used to replace abandoned Accounts as provided in Section
9.7. As of each Valuation Date and prior to the allocations
described in Section 5.2, Section 5.3 and Section 5.4, each
Participant's Account shall be allocated and credited with a
portion of such earnings or debited with a portion of such
losses of each Investment Fund, as determined in accordance
with subsection (a) hereof, in the proportion that (i)(A) the
amount credited to such Account that was invested in such
Investment Fund as of the immediately preceding Valuation
Date, minus (B) any distributions or withdrawals or transfers
to other Investment Funds which
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<PAGE> 39
were made from such Account since such preceding Valuation
Date and on or before such current Valuation Date, plus (C)
any amounts transferred to such Investment Fund since the
immediately preceding Valuation Date; bears to (ii)(A) the
total amount invested in such Investment Fund by all
Participants as of the immediately preceding Valuation Date,
minus (B) any distributions or withdrawals or transfers to
other Investment Funds which were made since such preceding
Valuation Date and on or before such current Valuation Date,
plus (C) any amounts transferred to such Investment Fund since
the immediately preceding Valuation Date.
SECTION 5.6 NOTICE TO PARTICIPANTS OF ACCOUNT BALANCES.
At least once for each Plan Year, the Administrative Committee shall cause a
written statement of a Participant's Account balance to be distributed to the
Participant.
SECTION 5.7 GOOD FAITH VALUATION BINDING.
In determining the value of the Trust Fund and the Accounts, the Trustee and the
Administrative Committee shall exercise their best judgment, and all such
determinations of value (in the absence of bad faith) shall be binding upon all
Participants, Joint Annuitants and Beneficiaries.
SECTION 5.8 ERRORS AND OMISSIONS IN ACCOUNTS.
If an error or omission is discovered in the Account of a Participant, Joint
Annuitant or Beneficiary, the Administrative Committee shall cause appropriate,
equitable adjustments to be made as soon as practicable following the discovery
of such error or omission.
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ARTICLE VI
CONTRIBUTION AND SECTION 415 LIMITATIONS
AND NONDISCRIMINATION REQUIREMENTS
SECTION 6.1 DEDUCTIBILITY LIMITATIONS.
In no event shall the total Company Contribution amount for any taxable year of
a Participating Company exceed that amount which is properly deductible for
federal income tax purposes under the then appropriate provisions of the Code.
Generally, the maximum, tax-deductible Company Contribution amount for any
taxable year of a Participating Company shall be equal to 15 percent of the
total Compensation paid or accrued during such taxable year to all Participants
employed by such Participating Company; provided, no Company Contribution amount
shall be deductible if it shall cause the Plan to exceed the applicable maximum
allocation limitations under Code Section 415, as described in Section 6.7. For
purposes of this Section, a Company Contribution may be deemed made by a
Participating Company for a taxable year if it is paid to the Trustee on or
before the date of filing the Participating Company's federal income tax return
(including extensions thereof) for that year or on or before such other date as
shall be within the time allowed to permit proper deduction by the Participating
Company of the amount so contributed for federal income tax purposes for the
year in which the obligation to make such Company Contribution was incurred.
SECTION 6.2 MAXIMUM LIMITATION ON ELECTIVE DEFERRALS.
(a) Maximum Elective Deferrals Under Participating Company Plans.
The aggregate amount of a Participant's Elective Deferrals
made for any calendar year under the Plan and any other plans,
contracts or arrangements with the Participating Companies
shall not exceed the Maximum Deferral Amount.
(b) Return of Excess Before-Tax Contributions. If the aggregate
amount of a Participant's Before-Tax Contributions made for
any calendar year by itself exceeds the Maximum Deferral
Amount, the Participant shall be deemed to have notified the
Administrative Committee of such excess, and the
Administrative Committee shall cause the Trustee to distribute
to such Participant, on or before April 15 of the next
succeeding calendar year, the total of (i) the amount by which
such Before-Tax Contributions exceed the Maximum Deferral
Amount, plus (ii) any earnings allocable thereto. In addition,
Matching Contributions and Discretionary Matching
Contributions made on behalf of the Participant which are
attributable to the distributed Before-Tax Contributions shall
be forfeited.
(c) Return of Excess Elective Deferrals Provided by Other
Participating Company Arrangements. If after the reduction
described in subsection (b) hereof, a Participant's aggregate
Elective Deferrals under plans, contracts and arrangements
with Participating Companies still exceed the Maximum Deferral
Amount, then,
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<PAGE> 41
the Participant shall have been deemed to have notified the
Administrative Committee of such excess, and, unless the
Administrative Committee directs otherwise, such excess shall
be reduced by distributing to the Participant Elective
Deferrals that were made for the calendar year under such
plans, contracts and/or arrangements with Participating
Companies other than the Plan. However, if the Administrative
Committee decides to make any such distributions from
Before-Tax Contributions made to the Plan, such distributions
(including Forfeiture of Matching or Discretionary Matching
Contributions) shall be made in a manner similar to that
described in subsection (b) hereof.
(d) Discretionary Return of Elective Deferrals. If after the
reduction described in subsections (b) and (c) hereof, (i) a
Participant's aggregate Elective Deferrals made for any
calendar year under the Plan and any other plans, contracts or
arrangements with Participating Companies and any other
employers still exceed the Maximum Deferral Amount, and (ii)
such Participant submits to the Administrative Committee, on
or before the March 1 following the end of such calendar year,
a written request that the Administrative Committee distribute
to such Participant all or a portion of his remaining
Before-Tax Contributions made for such calendar year, and any
earnings attributable thereto, then the Administrative
Committee may, but shall not be required to, cause the Trustee
to distribute such amount to such Participant on or before the
following April 15. However, if the Administrative Committee
decides to make any such distributions from Before-Tax
Contributions made to the Plan, such distributions (including
Forfeiture of Matching or Discretionary Matching
Contributions) shall be made in a manner similar to that
described in subsection (b) hereof.
(e) Return of Excess Annual Additions. Any Before-Tax
Contributions returned to a Participant to correct excess
Annual Additions shall be disregarded for purposes of
determining whether the Maximum Deferral Amount has been
exceeded.
SECTION 6.3 NONDISCRIMINATION REQUIREMENTS FOR BEFORE-TAX CONTRIBUTIONS.
(a) ADP Test. The annual allocation of the aggregate of all
Before-Tax Contributions and, to the extent designated by the
Administrative Committee pursuant to subsection (c) hereof,
Supplemental Contributions shall satisfy at least one of the
following ADP Tests for each Plan Year:
(1) The ADP for a Plan Year for the Highly Compensated
Employees who are Active Participants shall not
exceed the product of (A) the ADP for the immediately
preceding Plan Year for the Active Participants who
are not Highly Compensated Employees, multiplied by
(B) 1.25; or
(2) The ADP for a Plan Year for the Highly Compensated
Employees who are Active Participants shall not
exceed the ADP for the immediately preceding Plan
Year for the Active Participants who are not Highly
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<PAGE> 42
Compensated Employees by more than 2 percentage
points, nor shall it exceed the product of (A) the
ADP for the immediately preceding Plan Year of the
Active Participants who are not Highly Compensated
Employees, multiplied by (B) 2.
(b) Multiple Plans. If before-tax, matching and/or supplemental
contributions are made to one or more other plans [other than
employee stock ownership plans as described in Code Section
4975(e)(7)] which, along with the Plan, are considered as a
single plan for purposes of Code Section 401(a)(4) or Section
410(b), such plans shall be treated as one plan for purposes
of this Section, and the before-tax and applicable matching
and supplemental contributions made to those other plans shall
be combined with the Before-Tax and applicable Supplemental
Contributions for purposes of performing the tests described
in subsection (a) hereof. In addition, the Administrative
Committee may elect to treat the Plan as a single plan along
with the one or more other plans [other than employee stock
ownership plans as described in Code Section 4975(e)(7)] to
which before-tax, matching and/or supplemental contributions
are made for purposes of this Section; provided, the Plan and
all of such other plans also must be treated as a single plan
for purposes of satisfying the requirements of Code Section
401(a)(4) and Section 410(b) [other than the requirements of
Code Section 410(b)(2)(A)(ii)]. However, plans may be
aggregated for purposes of this subsection only if they have
the same plan year.
(c) Adjustments to Actual Deferral Percentages. In the event that
the initial allocation of the Before-Tax and Supplemental
Contributions for a Plan Year does not satisfy one of the ADP
Tests, the Administrative Committee shall cause the Before-Tax
and Supplemental Contributions for such Plan Year to be
adjusted in accordance with one or a combination of the
following options:
(1) The Administrative Committee may cause the
Participating Companies to make, with respect to such
Plan Year, Supplemental Contributions on behalf of,
and allocable to, the Eligible Participants described
in Section 5.3 with respect to such Plan Year, in the
minimum amount necessary to satisfy one of the ADP
Tests. Such Supplemental Contributions shall be
allocated among such Eligible Participants pursuant
to one of the methods described in Section 5.3 as
directed by the Administrative Committee.
(2) By the last day of the Plan Year following the Plan
Year in which the annual allocation failed both of
the ADP Tests, the Administrative Committee may
direct the Trustee to reduce the Before-Tax
Contributions taken into account with respect to
Highly Compensated Employees under such failed ADP
Tests by an amount necessary to satisfy one of the
ADP Tests. Any amount by which Before-Tax
Contributions are so reduced, plus any earnings
attributable thereto, shall be distributed to the
Highly Compensated Employees from whose Before-Tax
Accounts such reductions shall have been made. Such
reductions in Before-Tax Contributions shall be made
in accordance with, and solely to the
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Accounts of those Highly Compensated Employees who
are affected by, the following procedure:
(A) First, the Before-Tax Contributions of the
Highly Compensated Employee(s) with the
highest ADP for such Plan Year shall be
reduced by the lesser of (i) the entire
amount necessary to satisfy one of the ADP
Tests, or (ii) that part of the amount
necessary to satisfy one of the ADP Tests as
shall cause the ADP of each such Highly
Compensated Employee to equal the ADP of
each of the Highly Compensated Employees
with the next highest ADP for such Plan
Year. In addition, to the extent that a
Highly Compensated Employee's Before-Tax
Contributions are reduced pursuant to this
Section, any Matching or Discretionary
Matching Contributions made on behalf of a
Highly Compensated Employee which are
attributable to the distributed Before-Tax
Contributions shall be forfeited.
(B) Substantially identical steps shall be
followed for making further reductions in
the Before-Tax Contributions of each of the
Highly Compensated Employees with the next
highest ADP for such Plan Year until one of
the ADP Tests has been satisfied.
(d) New Law Rules. Notwithstanding anything to the contrary
contained herein, application and correction of ADP testing
shall comply with applicable new law, including the
requirements of the Small Business Job Protection Act of 1996.
SECTION 6.4 NONDISCRIMINATION REQUIREMENTS FOR MATCHING CONTRIBUTIONS AND
DISCRETIONARY MATCHING CONTRIBUTIONS.
(a) ACP Test. The amount of the aggregate of all Matching
Contributions and Discretionary Matching Contributions, and to
the extent designated by the Administrative Committee pursuant
to subsection (c) hereof, Supplemental Contributions made for
each Plan Year, shall satisfy at least one of the following
ACP Tests:
(1) The ACP for a Plan Year for the Highly Compensated
Employees who are Active Participants during the Plan
Year shall not exceed the product of (A) the ACP for
the immediately preceding Plan Year for the Active
Participants who are not Highly Compensated
Employees, multiplied by (B) 1.25; or
The ACP for a Plan Year for the Highly Compensated
Employees who are Active Participants shall not
exceed the ACP for the immediately preceding Plan
Year for the Active Participants who are not Highly
Compensated Employees during the Plan Year by more
than 2 percentage points, nor shall it exceed the
product of (A) the ACP for the immediately
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<PAGE> 44
preceding Plan Year of the Active Participants who
are not Highly Compensated Employees, multiplied by
(B) 2.
(b) Multiple Plans. If matching, after-tax and/or supplemental
contributions are made to one or more other plans [other than
employee stock ownership plans as described in Code Section
4975(e)(7)] which, along with the Plan, are considered as a
single plan for purposes of Code Section 401(a)(4) or Section
410(b), such plans shall be treated as one plan for purposes
of this Section, and the matching, after-tax and applicable
supplemental contributions made to those other plans shall be
combined with the Matching, Discretionary Matching and
Supplemental Contributions for purposes of performing the
tests described in subsection (a) hereof. In addition, the
Administrative Committee may elect to treat the Plan as a
single plan along with one or more other plans [other than
employee stock ownership plans as described in Code Section
4975(e)(7)] to which matching, after-tax and/or supplemental
contributions are made for purposes of this Section; provided,
the Plan and all of such other plans also must be treated as a
single plan for purposes of satisfying the requirements of
Code Section 401(a)(4) and Section 410(b) [other than the
requirements of Code Section 410(b)(2)(A)(ii)]. However, plans
may be aggregated for purposes of this subsection only if they
have the same plan year.
(c) Adjustments to Average Contribution Percentages. In the event
that the allocation of the Before-Tax, Matching, Discretionary
Matching and Supplemental Contributions for a Plan Year, after
the application of subsections (a) and (b) hereof, does not
satisfy one of the ACP Tests, the Administrative Committee
shall cause such Before-Tax, Matching, Discretionary Matching
and/or Supplemental Contributions for the Plan Year to be
adjusted in accordance with one or a combination of the
following options:
(1) The Administrative Committee may cause the
Participating Companies to make, with respect to such
Plan Year, Supplemental Contributions on behalf of,
and specifically allocable to, the Eligible
Participants described in Section 5.3 with respect to
such Plan Year, in the minimum amount necessary to
satisfy one of the ACP Tests; such Supplemental
Contributions shall be allocated among the affected
Eligible Participants pursuant to the methods
described in Section 5.3. Alternatively or in
addition, the Administrative Committee may add a
portion of the Before-Tax Contributions, that are
made for the Plan Year by the Participants who are
not Highly Compensated Employees and that are not
needed for the Plan to satisfy the ADP Tests for the
Plan Year, to the Matching Contributions and/or
Discretionary Matching Contributions for such
Participants to increase the ACP for such
Participants.
(2) By the last day of the Plan Year following the Plan
Year in which the annual allocation failed both of
the ACP Tests, the Administrative Committee may
direct the Trustee to reduce the Matching
Contributions and/or Discretionary Matching
Contributions taken into account with
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respect to Highly Compensated Employees under such
failed ACP Tests by an amount necessary to satisfy
one of the ACP Tests. The amount by which Matching
Contributions and/or Discretionary Matching
Contributions are to be reduced, plus any earnings
attributable thereto, shall be forfeited; provided,
if the Matching Contributions and Discretionary
Matching Contributions to be reduced are vested and
therefore may not be forfeited, those Matching
Contributions and/or Discretionary Matching
Contributions (plus any earnings attributable
thereto) shall be distributed to the Highly
Compensated Employees from whose Matching
Contribution Accounts such reductions have been made.
Such reductions in Contributions shall be made in
accordance with, and solely to the Accounts of those
Highly Compensated Employees who are affected by, the
following procedure:
(A) First, the Matching Contributions and/or
Discretionary Matching Contributions of the
Highly Compensated Employee(s) with the
highest ACP for such Plan Year shall be
reduced by the lesser of (i) the entire
amount necessary to satisfy one of the ACP
Tests, or (ii) that part of the amount
necessary to satisfy one of the ACP Tests as
shall cause the ACP of each such Highly
Compensated Employee to equal the ACP of
each of the Highly Compensated Employees
with the next highest ACP(s) for such Plan
Year.
(B) The Administrative Committee shall follow
substantially identical steps for making
further reductions in the Contributions of
each of the Highly Compensated Employees
with the next highest ACP for such Plan Year
until one of the ACP Tests has been
satisfied.
(d) New Law Rules. Notwithstanding anything to the contrary
contained herein, application and correction of ACP testing
shall comply with applicable new law, including the
requirements of the Small Business Job Protection Act of 1996.
SECTION 6.5 MULTIPLE USE OF TESTS.
(a) Aggregate Limitation. The sum of the ADP and the ACP for a
Plan Year for the entire group of eligible Highly Compensated
Employees who are Active Participants, following the
application of Sections 6.3(c) and 6.4(c) for such Plan Year,
may not exceed the greater of (1) or (2) below (or such other
applicable limits as may be established under the Code,
regulations or otherwise):
(1) the sum of:
(A) 125 percent of the greater of (i) the ADP
for the immediately preceding Plan Year for
the group of non-Highly Compensated
Employees eligible under the Plan for the
Plan Year, or (ii) the ACP for the
immediately preceding Plan Year for the
group of
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non-Highly Compensated Employees who are
eligible under the Plan for the Plan Year;
plus
(B) the lesser of 2 plus or 2 times the lesser
of the amount determined in subsection
(a)(1)(A)(i) or (a)(1)(A)(ii) hereof; or
(2) the sum of:
(A) 125 percent of the lesser of (i) the ADP for
the immediately preceding Plan Year for the
group of non-Highly Compensated Employees
eligible under the Plan for the Plan Year,
or (ii) the ACP for the immediately
preceding Plan Year for the group of
non-Highly Compensated Employees who are
eligible under the Plan for the Plan Year;
plus
(B) the lesser of 2 plus or 2 times the greater
of the amount determined in subsection
(a)(2)(A)(i) or (a)(2)(A)(ii) hereof.
(b) Multiple Plans. If at least one Highly Compensated Employee
participates in another qualified retirement plan maintained
by the Participating Company which (i) permits before-tax
contributions and/or after-tax contributions or matching
contributions, and (ii) is not aggregated with the Plan for
purposes of nondiscrimination testing, then the multiple use
aggregate limitations described in subsection (a) shall apply
in testing the Plan separately against each such other plan.
(c) Correction. If the maximum limitation of the combination of
the ADP and ACP, as described in subsection (a) hereof, is
exceeded, this excess shall be reduced or otherwise corrected
by any method permissible under Section 6.3 for satisfying the
ADP Test or through any method permitted under Section 6.4 to
satisfy the ACP Test, or any combination thereof. Any
adjustment necessary to satisfy said maximum limitation shall
be made by adjusting the ADP's or the ACP's of Highly
Compensated Employees.
(d) New Law Rules. Notwithstanding anything to the contrary
contained herein, the multiple use limitations shall comply
with the requirements of applicable new law, including the
Small Business Job Protection Act of 1996.
SECTION 6.6 ORDER OF APPLICATION.
For any Plan Year in which adjustments shall be necessary or otherwise made
pursuant to the terms of Sections 6.2, 6.3 and/or 6.4, such adjustments shall be
applied in the manner and order prescribed by law.
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<PAGE> 47
SECTION 6.7 CODE SECTION 415 LIMITATIONS ON MAXIMUM CONTRIBUTIONS.
(a) General Limit on Annual Additions. In no event shall the
Annual Addition to a Participant's Account for any Limitation
Year, under the Plan and any other Defined Contribution Plan
maintained by an Affiliate, exceed the lesser of:
(1) $30,000 [as adjusted by the Secretary of the Treasury
under Code Section 415(d)]; or
(2) 25 percent of such Participant's Compensation.
(b) Combined Plan Limitation. If an Employee is a Participant in
the Plan and any one or more Defined Benefit Plans, welfare
benefit funds [as defined in Code Section 419(d)] or
individual medical accounts [as defined in Code Section
415(l)(2)], maintained by an Affiliate, the sum of his Defined
Benefit Plan Fraction and his Defined Contribution Plan
Fraction shall not exceed 1.0 for any Limitation Year. (For
purposes of this subsection, any adjustments in the definition
of "Compensation" permitted by the Internal Revenue Service
for purposes of determining this combined limit are included
herein by reference.) If any corrective adjustment in any
Participant's benefits is required to comply with this
subsection, such adjustment shall be made exclusively under
the Defined Benefit Plans maintained by the Affiliates. If an
Employee is a Participant in the Plan and any one or more
other Defined Contribution Plans maintained by an Affiliate
and a corrective adjustment in such Participant's benefits is
required to comply with this subsection, such adjustment shall
be made under such other Defined Contribution Plan or Plans.
(c) Correction of Excess Annual Additions. If, as a result of
either the allocation of Forfeitures to an Account, a
reasonable error in estimating a Participant's Compensation or
Elective Deferrals, or such other occurrences as the Internal
Revenue Service permits to trigger this subsection, the Annual
Addition made on behalf of a Participant exceeds the
limitations set forth in this Section, the Administrative
Committee shall direct the Trustee to take such of the
following actions as it shall deem appropriate, specifying in
each case the amount of contributions involved:
(1) The Before-Tax Contributions allocated to the
Participant's Before-Tax Account shall be reduced to
the extent of any such excess, up to the total amount
of Before-Tax Contributions made on behalf of such
Participant, and the amount of the reduction (plus
any investment earnings thereon) shall be returned to
such Participant. In addition, any Matching
Contributions (and earnings thereon) attributable to
the returned Before-Tax Contributions shall be
forfeited and reallocated in a manner similar to that
described in subsection (c)(4) hereof.
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<PAGE> 48
(2) The Participant's Annual Addition next shall be
reduced by reducing Forfeitures (allocated in
addition to, rather than as a reduction of, the
Participating Companies' Contributions otherwise made
pursuant to the terms of the Plan) allocated to his
Account to the extent of any such excess up to the
total amount of such Forfeitures allocated to the
Participant, and the amount of the reduction shall be
reallocated to the Accounts of Active Participants
who otherwise are eligible to receive allocations of
such Forfeitures and who are not affected by the
Annual Addition limitations, in the same proportion
as such Forfeitures otherwise are allocated to such
Accounts, disregarding the Compensation of those
Active Participants whose Annual Addition equals or
exceeds the limitations hereunder.
(3) If further reduction is necessary, the Matching,
Discretionary Matching and Supplemental Contributions
allocated to the Participant's Account shall be
reduced in the amount of the remaining excess. The
amount of the reduction shall be reallocated to the
Matching and Supplemental Accounts of Active
Participants who otherwise are eligible for
allocations of Contributions, who are employed by the
Participating Company or Companies employing the
Participant and who are not affected by such
limitations, in the same proportion as Matching,
Discretionary Matching and Supplemental Contributions
otherwise are allocated to such Accounts,
disregarding the Compensation of those Active
Participants whose Annual Addition equals or exceeds
the limitations hereunder.
(4) If the reallocation to the Accounts of other
Participants in the then current Limitation Year (as
described in subsection (c)(2) and (c)(3) hereof) is
impossible without causing them or any of them to
exceed the Annual Addition limitations described in
this Section, the amount that cannot be reallocated
without exceeding such limitations shall continue to
be held in a suspense account and shall be applied to
reduce permissible Contributions in each successive
year until such amount is fully allocated; provided,
so long as any suspense account is maintained
pursuant to this Section: (A) no Contributions shall
be made to the Plan which would be precluded by this
Section; (B) investment gains and losses of the Trust
Fund shall not be allocated to such suspense account;
and (C) amounts in the suspense account shall be
allocated in the same manner as Contributions as of
the earliest Valuation Date possible, until such
suspense account is exhausted.
(d) Special Definitions Applicable to Code Section 415
Limitations.
(1) Annual Addition. For purposes of this Section, the
term "Annual Addition" for any Participant means the
sum for any Limitation Year of:
(A) contributions made by an Affiliate on behalf
of the Participant under all Defined
Contribution Plans;
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<PAGE> 49
(B) contributions made by the Participant under
all Defined Contribution Plans of an
Affiliate [excluding rollover contributions
as defined in Code Sections 402(c)(4),
403(a)(4), 403(b)(8) and 408(d)(3) and
contributions of previously distributed
benefits which result in such a Plan's
restoration of previously forfeited benefits
pursuant to Treasury Regulations Section
1.411(a)-7(d)]; provided, the Annual
Additions limitation for Limitation Years
beginning before January 1, 1987 shall not
be recomputed to treat all after-tax
Contributions as Annual Additions;
(C) forfeitures allocated to the Participant
under all Defined Contribution Plans of an
Affiliate;
(D) amounts allocated for the benefit of the
Participant after March 31, 1984, to an
individual medical account established under
a pension or annuity plan maintained by an
Affiliate, as described in Code Section
415(l); and
(E) if the Participant was a key employee [as
defined in Code Section 419A(d)(3)] at any
time during the Plan Year during which or
coincident with which the Limitation Year
ends or during any preceding Plan Year, any
amount paid or accrued after December 31,
1985 by an Affiliate to a special account
under a welfare benefit fund [as defined in
Code Section 419(e)] to provide
post-retirement medical or life insurance
benefits to the Participant, as described in
Code Section 419A(d)(2).
Contributions do not fail to be Annual
Additions merely because they are (i)
Before-Tax Contributions that exceed the
Maximum Deferral Amount, (ii) Before-Tax
Contributions that cause the Plan to fail
the ADP Tests, or (iii) Matching
Contributions that cause the Plan to fail
the ACP Tests, or merely because the
Contributions described in clauses (ii) and
(iii) immediately above are corrected
through distribution; Contributions
described in clause (i) immediately above
that are distributed in accordance with the
terms of Section 6.2 shall not be Annual
Additions.
(2) Defined Benefit Plan. The term "Defined Benefit Plan"
shall mean any qualified retirement plan maintained
by an Affiliate which is not a Defined Contribution
Plan.
(3) Defined Benefit Plan Fraction. The term "Defined
Benefit Plan Fraction" shall mean, with respect to a
Participant for any Limitation Year, a fraction, the
numerator of which is his projected annual benefit
under all Defined Benefit Plans maintained by an
Affiliate, as determined as of the close of the
Limitation Year, and the denominator of which is the
lesser of:
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<PAGE> 50
(A) 125 percent of the dollar limitation in
effect for such year under Code Section
415(b)(1)(A); or
(B) 140 percent of his average compensation for
his highest three consecutive plan years of
participation in such Defined Benefit Plans.
In appropriate cases, the Defined Benefit
Plan Fraction will be adjusted to reflect
applicable transition rules provided by Code
Section 415 [inclusive of Code Section
415(b)] and the regulations thereunder.
(4) Defined Contribution Plan. The term "Defined
Contribution Plan" shall mean any qualified
retirement plan maintained by an Affiliate which
provides for an individual account for each
Participant and for benefits based solely on the
amount contributed to the Participant's account and
any income, expenses, gains, losses and forfeitures
of accounts of other Participants, which may be
allocated to such Participant's account.
(5) Defined Contribution Plan Fraction. The term "Defined
Contribution Plan Fraction" shall mean, with respect
to a Participant for any Limitation Year, a fraction,
the numerator of which is the sum of the Annual
Additions to his Accounts in this Plan and to his
accounts in any other Defined Contribution Plans
required to be aggregated with this Plan under Code
Section 415(h), as of the close of the Limitation
Year, and the denominator of which is the sum of the
lesser of the following amounts determined separately
for the current Limitation Year and for each prior
Limitation Year in which the Participant was employed
by an Affiliate:
(A) 125 percent of the dollar limitation in
effect under Code Section 415(c)(1)(A) as of
the last day of such Limitation Year; or
(B) 35 percent of the Participant's Compensation
from Affiliates for the Limitation Year.
In appropriate cases, the Defined
Contribution Plan Fraction will be adjusted
to reflect applicable transition rules
provided by Code Section 415 and regulations
thereunder.
(e) Compliance with Code Section 415. The limitations in
this Section are intended to comply with the
provisions of Code Section 415 so that the maximum
benefits permitted under plans of the Affiliates
shall be exactly equal to the maximum amounts allowed
under Code Section 415 and the regulations
promulgated thereunder. The provisions of this
Section generally are effective as of the Effective
Date, but to the extent the Code requires an earlier
or later effective date with respect to any
portion(s) of this Section, such other effective date
shall apply. If there is any discrepancy between the
provisions of this Section and the provisions of Code
Section 415 and the regulations promulgated
thereunder, such discrepancy shall be
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<PAGE> 51
resolved in such a way as to give full effect to the
provisions of the Code and regulations.
SECTION 6.8 CONSTRUCTION OF LIMITATIONS AND REQUIREMENTS.
The descriptions of the limitations and requirements set forth in this Article
are intended to serve as statements of the minimum legal requirements necessary
for the Plan to remain qualified under the applicable terms of the Code. The
Participating Companies do not desire or intend, and the terms of this Article
shall not be construed, to impose any more restrictions on the operation of the
Plan than required by law. Therefore, the terms of this Article and any related
terms and definitions in the Plan shall be interpreted and operated in a manner
which imposes the least restrictions on the Plan. For example, if use of a more
liberal definition of "Compensation" or a more liberal multiple use test is
permissible at any time under the law, then the more liberal provisions may be
applied as if such provisions were included in the Plan.
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<PAGE> 52
ARTICLE VII
INVESTMENTS
SECTION 7.1 ESTABLISHMENT OF TRUST ACCOUNT.
All Contributions are to be paid over to the Trustee to be held in the Trust
Fund and invested in accordance with the terms of the Plan and the Trust.
SECTION 7.2 INVESTMENT FUNDS.
(a) Named Investment Funds. In accordance with instructions from
the Administrative Committee and the terms of the Plan and the
Trust, the Trustee shall establish and maintain for the
investment of assets of the Trust Fund, Investment Funds which
may include the following:
(1) Fixed Income Fund (which shall include the Plan
assets held in the EB MaGIC Fund as well as Plan
assets invested in individual GICs [guaranteed
investment contracts issued by insurance carriers]
which were transferred from the Holiday Inn Plan,
(2) American Balanced Fund,
(3) Victory Growth Fund,
(4) American Intermediate Bond Fund of America,
(5) Neuberger & Berman Partners,
(6) Janus Worldwide Fund, and
(7) Bristol Stock Fund.
The Bristol Stock Fund shall consist primarily of Bristol
Stock and such amount of cash or equivalents, as in the
Committee's discretion, is too small to be reasonably invested
in such stock or as is otherwise determined by the
Administrative Committee to be prudent. the Trustee is hereby
authorized to acquire and hold Bristol Stock. Any and all
investments, reinvestments or purchases shall be made at
prices not in excess of the current fair market value of the
Bristol Stock at the time of such purchase or investments.
(b) Other Investment Funds. At the proper direction of the
Controlling Company or the Administrative Committee, the
Trustee shall establish other Investment Funds (or modify the
investment mix of the Investment Funds), in addition to or in
lieu of the Investment Funds described herein, which may
include, for example, other fixed income funds or, equity
funds, bond funds, balanced funds, money market
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<PAGE> 53
funds and international equity funds, any of which may be held
directly or indirectly through any mutual fund, collective
investment trust or other vehicle. Such other Investment Funds
shall be established without necessity of amendment to the
Plan and shall have the investment objectives prescribed by
the Controlling Company or the Administrative Committee and to
which the Trustee consents. Such other Investment Funds also
may be established and maintained for any limited purpose(s)
the Controlling Company or the Administrative Committee may
properly direct (for example, for the investment of certain
specified Accounts transferred from a prior plan).
(c) Reinvestment of Cash Earnings. Any investment earnings
received in the form of cash with respect to any Investment
Fund (in excess of the amounts necessary to make cash
distributions or to pay Plan or Trust expenses) shall be
reinvested in such Investment Fund.
SECTION 7.3 PARTICIPANT DIRECTION OF INVESTMENTS.
Each Participant, Joint Annuitant or Beneficiary generally may direct the manner
in which his Before-Tax, After-Tax, Matching, Supplemental, Rollover, Prior
Pension Plan and Transfer Accounts shall be invested in and among the Investment
Funds described in Section 7.2(a); provided, such investment directions shall be
made in accordance with the following terms:
(a) Investment of Contributions. Except as otherwise provided in
this Section, each Participant may elect, on a form provided
by the Administrative Committee, through an interactive
telephone system or in such other manner as the Administrative
Committee may prescribe, the percentage of his future
Before-Tax, Matching, Discretionary Matching, Supplemental,
Rollover and Transfer Contributions that will be invested in
each Investment Fund; provided, as part of making an election,
the Participant may elect different Investment Fund(s) and
combinations of Investment Funds for each such type of
Contribution. An initial election of a Participant shall be
made as of the Entry Date coinciding with or immediately
following the date the Participant commences or recommences
participation in the Plan and shall apply to all such
specified Contributions credited to such Participant's Account
after such Entry Date. Such Participant may make subsequent
elections as of any Business Day, but not more often than once
in any 30-day period. Any such elections shall apply to all
such specified Contributions credited to such Participant's
Accounts after such date; for purposes hereof, Contributions
and/or Forfeitures that are credited to a Participant's, Joint
Annuitant's or Beneficiary's Account shall be subject to the
investment election in effect on the date on which such
amounts are actually received and credited, regardless of any
prior date "as of" which such Contributions may have been
allocated to his Account. Any election made pursuant to this
subsection with respect to future Contributions shall remain
effective until changed by the Participant. In the event a
Participant never makes an investment election or makes an
incomplete or insufficient election in some manner, the
Trustee shall
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<PAGE> 54
direct the investment of the Participant's future
Contributions into the most conservative fund available under
the Plan (either a fixed income or stable value fund) and such
Contributions and earnings thereon shall remain so invested
until a proper Participant direction is made with regard to
such amounts.
(b) Investment of Existing Account Balances. Except as otherwise
provided in this Section, each Participant, Joint Annuitant or
Beneficiary may elect, on a form provided by the
Administrative Committee, through an interactive telephone
system or in such other manner as the Administrative Committee
may prescribe, the percentage of his existing Before-Tax,
After-Tax, Matching, Supplemental, Rollover, Prior Pension
Plan and Transfer Accounts that will be invested in each
Investment Fund. Such Participant, Joint Annuitant or
Beneficiary may make subsequent elections effective as of any
Business Day following his Entry Date into the Plan, but not
more often than once in any 30-day period. Each such election
shall remain in effect until changed by such Participant,
Joint Annuitant or Beneficiary. In the event a Participant
fails to make an election for his existing Account pursuant to
the terms of this subsection (b) which is separate from any
election he made for his Contributions pursuant to the terms
of subsection (a) hereof, or if a Participant's, Joint
Annuitant's or Beneficiary's investment election is incomplete
or insufficient in some manner, the Participant's, Joint
Annuitant's or Beneficiary's existing Account will continue to
be invested in the same manner provided under the terms of the
most recent election affecting that portion of his Account, or
if no election has ever been made by the Participant, the
Trustee shall direct the investment of the Participant's
existing Account into the most conservative fund available
under the Plan (either a fixed income or stable value fund)
and such amounts and earnings thereon shall remain so invested
until a proper Participant direction is made with regard to
such amounts.
(c) Conditions Applicable to Elections. Allocations of investments
in the various Investment Funds, as described in subsections
(a) and (b) hereof, shall be made in multiples of 5 percent as
directed by the Participant, Joint Annuitant or Beneficiary.
The Administrative Committee shall have complete discretion to
adopt and revise procedures to be followed in making such
investment elections. Such procedures may include, but are not
limited to, the process of the election, the permitted
frequency of making elections, the percentage increments for
investing in each Investment Fund, the deadline for making
elections and the effective date of such elections; provided,
elections must be permitted at least once every 3 months. Any
procedures adopted by the Administrative Committee that are
inconsistent with the deadlines or procedures specified in
this Section shall supersede such provisions of this Section
without the necessity of a Plan amendment. Investment
directions shall be subject to any applicable securities laws
and regulations or rules and procedures set forth by the
Administrative Committee to comply with applicable securities
laws and regulations.
(d) Restrictions on Certain Investments. Each Participant, Joint
Annuitant or Beneficiary shall be subject to any restrictions
or limitations imposed by the
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<PAGE> 55
Investment Fund in which his Accounts are invested.
Furthermore, a Participant may not direct the investment of
more than 30 percent of the Participant's existing account
balance or future Contributions into the Bristol Stock Fund
(prior to January 1, 1998, the maximum percentage was 50
percent and Participants who, prior to January 1, 1998, had
elected a percentage higher than 30 percent but not higher
than 50 percent may continue to have such higher percentage of
the Participant's existing Account Balance and future
Contributions invested in the Bristol Stock Fund).
SECTION 7.4 VALUATION.
As of each Valuation Date, the Trustee shall determine the fair market value of
each of the Investment Funds after first deducting any expenses which have not
been paid by the Participating Companies. All costs and expenses incurred in
connection with Plan investments and, unless paid by the Participating
Companies, all costs and expenses incurred in connection with the general
administration of the Plan and the Trust shall be allocated between the
Investment Funds in the proportion in which the amount invested in each
Investment Fund bears to the amount invested in all Investment Funds as of the
appropriate Valuation Date; provided, all costs and expenses directly
identifiable to one Investment Fund shall be allocated to that Investment Fund.
SECTION 7.5 BRISTOL STOCK
(a) Acquisition of Stock by Trustee. Consistent with the terms of
the Trust Agreement, the Trustee shall acquire shares of
Bristol Stock pursuant to Participants' elections in
accordance with the provisions of Section 7.3 in the open
market or from private sources (including Participating
Company but excluding directors or officers thereof), at not
more than the market price then prevailing.
(b) Restriction on Stock Acquisition. Notwithstanding any other
provisions hereof, it is specifically provided that the
Trustee shall not purchase Bristol Stock during any period in
which such purchase is, in the opinion of counsel for the
Company, the Administrative Committee or the Plan (and that is
communicated in writing to the Trustee), restricted by any law
or regulation applicable thereto. During such period, amounts
that would otherwise be invested in Bristol Stock shall be
held in the Bristol Stock Fund in cash or cash equivalents.
(c) Stock Rights, Stock Splits and Stock Dividends. No Participant
or Beneficiary shall have any right of request, direction or
demand upon the Committee or the Trustee to exercise in his
behalf rights or privileges to acquire, convert into, or
exchange for Bristol Stock or other securities. The Trustee,
in its discretion, may exercise or sell any such rights or
privileges. Each affected Participant's Accounts shall be
appropriately credited. Bristol Stock received by the Trustee
by reason of a stock split, stock dividend or recapitalization
shall be appropriately allocated to the Accounts of the
affected Participant or Beneficiary.
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<PAGE> 56
(d) Voting of Bristol Stock. Unless otherwise provided under ERISA
and consistent with the Trust Agreement, at each annual
meeting and special meeting of the stockholders of the
Company, the Trustee shall vote all shares of Bristol Stock
except to the extent the Administrative Committee determines
it appropriate to appoint an independent fiduciary solely for
the purpose of voting such stock in connection with a
particular corporate or plan transaction.
SECTION 7.6 PURCHASE OF LIFE INSURANCE.
Life insurance contracts shall not be purchased.
SECTION 7.7 VOTING AND TENDER OFFER RIGHTS WITH RESPECT TO INVESTMENT
FUNDS.
To the extent and in the manner permitted by the Trust and/or any documents
establishing or controlling any of the Investment Funds, Participants, Joint
Annuitants and Beneficiaries shall be given the opportunity to vote and tender
their interests in each such Investment Fund. Otherwise, such interests shall be
voted and/or tendered by the investment manager or other fiduciary that controls
such Investment Fund, as may be provided in the controlling documents.
SECTION 7.8 FIDUCIARY RESPONSIBILITIES FOR INVESTMENT DIRECTIONS.
All fiduciary responsibility with respect to the direction for the investment of
a Participant's, Joint Annuitant's or Beneficiary's Accounts among the available
Investment Funds shall be allocated to the Participant, Joint Annuitant or
Beneficiary who directs the investment. Neither the Administrative Committee,
the Trustee, nor any Participating Company shall be accountable for any loss
sustained by reason of any action taken, or investment made, pursuant to an
investment direction by a Participant, Joint Annuitant or Beneficiary.
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ARTICLE VIII
VESTING IN ACCOUNTS
SECTION 8.1 IMMEDIATE 100% VESTING FOR CERTAIN ACCOUNTS.
All Participants shall at all times be fully vested in their Before-Tax,
Supplemental, Rollover and Transfer Accounts, except that Transfer Contributions
made pursuant to Section 4.2(b) shall vest in accordance with that Section.
SECTION 8.2 MATCHING CONTRIBUTION ACCOUNTS.
(a) Vesting Upon Attainment of Normal Retirement Age, Death or
Disability. A Participant's Matching Contribution Account
shall become 100 percent vested and nonforfeitable upon the
occurrence of any of the following events:
(1) The Participant's attainment of Normal Retirement Age
while still employed as an employee of any Affiliate;
(2) The Participant's death while still employed as an
employee of any Affiliate; or
(3) The Participant becoming Disabled while still
employed as an employee of any Affiliate.
(b) Transfer Accounts. The Transfer Account balances, including
the balance of the Transferred Matching Contributions Account,
which were transferred from the Holiday Inn Plan shall at all
times be fully vested.
(c) Vesting Schedule. Except as provided in subsections (a) or
(b), for a Participant with an Account balance in the Plan on
or after April 28, 1997 and with an Hour of Service on or
after April 28, 1997, the Matching Contribution Account of the
Participant shall vest in accordance with the following
vesting schedule, based on the total of the Participant's
Years of Vesting Service:
<TABLE>
<CAPTION>
Years of Vesting Service Vested Percentage of
Completed by Participant Participant's Matching
Contributions Account
<S> <C>
Less than 1 Year None
1 Year, but less than 2 20%
2 Years, but less than 3 40%
3 Years, but less than 4 60%
4 Years, but less than 5 80%
5 Years or more 100%
</TABLE>
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<PAGE> 58
SECTION 8.3 TIMING OF FORFEITURES AND VESTING AFTER RESTORATION
CONTRIBUTIONS.
If a Participant who is not yet 100 percent vested in his Matching Contributions
Account separates from service with all Affiliates, the nonvested amount in his
Matching Contributions Account shall be immediately forfeited upon distribution
of the Participant's vested Account or, if such vested Account is not
distributed prior to the last day of the Plan Year in which such separation
occurs, shall be forfeited as of the last day of such Plan Year and shall become
available for allocation as a Forfeiture (in accordance with the terms of
Section 5.7) as of the last day of the Plan Year during which such separation
occurs; provided, if a Participant has no vested interest in his Account at the
time he separates from service, he shall be deemed to have received a cash-out
distribution at the time he separates from service, and the forfeiture
provisions of this Section shall apply. If such a Participant resumes employment
with an Affiliate after he has incurred 5 or more consecutive One-Year Periods
of Severance, such nonvested amount shall not be restored. If such a Participant
resumes employment with an Affiliate before he has incurred 5 consecutive
One-Year Periods of Severance, the nonvested amount shall be restored as
follows:
(a) Reemployment and Vesting Before any Distribution. If by the
date of reemployment such a Participant has not received any
distributions of his vested interest in his Account, or if he
has no vested interest in his Account, the nonvested amount of
his Matching Contribution Account shall be restored pursuant
to the terms of Section 3.8 and shall be credited to his
Matching Contribution Account. The Participant's Matching
Contribution Account then shall be subject to all of the
vesting rules in this Article VIII as if no Forfeitures had
occurred.
(b) Reemployment and Vesting After Normal Distribution
If by the date of reemployment such a Participant has received
a distribution of the entire vested interest in his Account
not later than the close of the second Plan Year following the
Plan Year in which separation from service with all Affiliates
occurred, then the nonvested amount of his Matching
Contribution Account that was forfeited shall be restored
pursuant to the terms of Section 3.8(b), if the Participant
repays the full amount of his distribution before the earlier
of (i) five years after the date of the Participant's
reemployment or (ii) the last day of the Plan Year within
which the Participant incurs five consecutive One Year Periods
of Severance commencing after the date of distribution.
(c) Reemployment And Vesting After Other Distribution or Prior to
Distribution. If by the date of reemployment such a
Participant (i) has received a distribution of a portion but
not all of the vested portion of his Account, or (ii) has
received a distribution of the entire vested interest in his
Account later than the close of the second Plan Year following
the Plan Year in which separation from service with all
Affiliates occurred, then, notwithstanding the general rules
set forth in Section 8.1, the nonvested amount of his Matching
Contribution Account shall be restored pursuant to the terms
of Section 3.8, and the total amount of his undistributed
Matching Contribution Account (including the restored amount)
shall be credited to his
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<PAGE> 59
Matching Contribution Account. The vested interest of such
Participant in such Matching Contribution Account prior to the
date such Participant (i) again separates from service with
all Affiliates, (ii) incurs 5 consecutive One Year Periods of
Severance (such that the nonvested portion of his Matching
Contribution Account is forfeited), or (iii) becomes 100
percent vested pursuant to the terms of Section 8.1 or Section
8.2 hereof (whichever is earliest), shall be determined
pursuant to the following formula:
X = P (AB + [R x D]) - (R x D),
where X is the vested interest at the relevant time (that is,
the time at which the vested percentage in such Matching
Contribution Account cannot increase); P is the vested
percentage at the relevant time; AB is the balance of his
Matching Contribution Account at the relevant time; D is the
amount of the distribution; and R is the ratio of his Matching
Contribution Account balance at the relevant time to such
Account's balance immediately after the distribution.
SECTION 8.4 AMENDMENT TO VESTING SCHEDULE.
Notwithstanding anything herein to the contrary, in no event shall the terms of
any amendment to the Plan reduce the vested percentage that any Participant has
earned under the Plan. In the event that the Plan provides for Participants to
vest in their Accounts at a rate which is faster than that provided under any
amendment hereto (or in the event any other change is made that directly has an
adverse effect on Participants' vested percentage), any Participant who has 3 or
more years of vesting service [calculated in a manner consistent with Treasury
Regulation Section 1.411(a)-8T (or any successor section)] may elect to have his
vested percentage calculated under the schedule in the Plan before any such
change, and the Administrative Committee shall give each such Participant notice
of his rights to make such an election. The period during which the election may
be made shall commence with the date the amendment is adopted or deemed to be
made and shall end on the latest of: (1) 60 days after the amendment is adopted;
(2) 60 days after the amendment becomes effective; or (3) 60 days after the
Participant is issued written notice of the amendment by a Participating Company
or Administrative Committee.
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ARTICLE IX
BENEFIT PAYMENTS UPON SEPARATION FROM SERVICE
FOR REASONS OTHER THAN DEATH
SECTION 9.1 BENEFITS PAYABLE UPON SEPARATION FROM SERVICE.
(a) General Rule Concerning Benefits Payable. In accordance with
the terms of subsection (b) hereof and subject to the
restrictions set forth in subsections (c) and (d) hereof, if a
Participant separates from service with all Affiliates for any
reason other than death, he shall be entitled to receive or
begin receiving a distribution of (i) the vested amount
credited to his Account, determined as of the Valuation Date
on which such distribution is processed, plus (ii) the vested
amount of any Contributions made on his behalf since such
Valuation Date. For purposes of this subsection, the "date on
which such distribution is processed" refers to the date
established for such purpose by administrative practice, even
if actual payment and/or processing is made or commenced at a
later date due to delays in the valuation, administrative or
any other procedure.
(b) Timing of Distribution.
(1) Except as provided in subsections (b)(2), (b)(3) and
(c) hereof, benefits payable to a Participant under
this Section shall be distributed, or shall commence
to be distributed, as soon as administratively
feasible after such Participant separates from
service with all Affiliates for any reason other than
death; provided, this timing schedule generally shall
not require distributions to be made or commenced on
more than one date during each calendar month. For
purposes of this subsection (b)(1), such date shall
be the Participant's Benefit Commencement Date. Any
annuity payments that do not actually begin on the
date as of which payment is scheduled to commence
under this Article shall be adjusted so that the
first payment includes all amounts due through the
date of such payment.
(2) Notwithstanding the foregoing, in the event that (A)
the value of the Participant's Account exceeds (or at
any time prior to distribution exceeded) $5,000 and
(B) the Benefit Commencement Date described in
subsection (b)(1) hereof occurs or is to occur prior
to the Participant's Normal Retirement Age, benefits
shall not be distributed (or commence to be
distributed) to such Participant at the time set
forth in subsection (b)(1) hereof without the
Participant's written election, on a form provided by
the Administrative Committee. In order for such
Participant's election to be valid, he must actually
separate from service on or before his selected
Benefit Commencement Date, his election must be filed
with the Administrative Committee within the 90-day
period ending on such date, and the Administrative
Committee (no later than 30 days and no earlier
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than 90 days before his Benefit Commencement Date, or
within such other period as may be permissible) must
have presented him with a notice informing him of his
right to defer his distribution. With the
Participant's written consent, the distribution of
his Account, other than his Prior Pension Plan
Account, may commence less than 30 days after such
notice is given; provided the Administrative
Committee informs the Participant that he has a right
to a period of at least 30 days after receiving the
notice to consider to elect a distribution (or term
of distribution, if applicable), and the Participant
affirmatively elects to receive a distribution after
receiving the notice. If the Participant does not
consent in writing to the distribution (or
commencement of his distribution) of his benefit at
such time, his benefit shall be distributed (or
commence to be distributed) as soon as practicable
after he files a written election with the
Administrative Committee requesting such payment. If
a Participant fails to file a written election
specifying the time of payment, then, unless he
elects to further defer the distribution of his
benefit, his benefit shall be distributed (or
commence to be distributed) as soon as
administratively feasible after the end of the Plan
Year in which he attains Normal Retirement Age, but
in no event later than the 60th day after the end of
such Plan Year; provided, if the amount of payment
cannot be ascertained by such date, payment shall be
made (or commence) no later than 60 days after the
earliest date on which such payment can be
ascertained under the Plan. A Participant's Benefit
Commencement Date under this subsection (b)(2) shall
be the date as of which benefits are scheduled to
begin hereunder.
(3) Notwithstanding anything in the Plan to the contrary,
unless a Participant elects to further defer the
distribution of his benefit, in no event shall
payment of the Participant's benefit commence (or be
made) later than 60 days after the end of the Plan
Year which includes the latest of (i) the date on
which the Participant attained Normal Retirement Age,
(ii) the date which is the 10th anniversary of the
date he commenced participation in the Plan, or (iii)
the date he actually separates from service with all
Affiliates; provided, if the amount of the payment
cannot be ascertained by the date as of which
payments are scheduled to be made (or commence)
hereunder, payment shall be made (or commence) no
later than 60 days after the earliest date on which
such payment can be ascertained under the Plan.
(4) Notwithstanding anything in the Plan to the contrary,
the Participant's benefit payments shall be made (or
commence) no later than the April 1 following the
calendar year in which the Participant attains age
70 1/2 or if later, the calendar year in which the
Participant actually separates from service with all
Affiliates. Notwithstanding the foregoing, with
respect to (i) the Prior Pension Plan Account of any
Participant and (ii) the total Account of any 5%
owner (within the meaning of Code Section 416(i)(1)),
payments shall commence no later than the April 1
following the calendar
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year in which the Participant attains age 70 1/2
without regard to whether he has actually separated
from service with all Affiliates prior to such date.
All distributions will be made in accordance with
Code Section 401(a)(9), the regulations promulgated
under Code Section 401(a)(9), including Treasury
Regulation Section 1.401(a)(9)-2 (relating to
incidental benefit limitations) and any other
provisions reflecting the requirements of Code
Section 401(a)(9) and prescribed by the Internal
Revenue Service; and the terms of the Plan reflecting
the requirements of Code Section 401(a)(9) override
the distribution options (if any) in the Plan which
are inconsistent with those requirements.
(c) Restrictions on Distributions from Before-Tax and
Supplemental Accounts. Notwithstanding anything in
the Plan to the contrary, (i) amounts in a
Participant's Before-Tax and Supplemental Accounts,
and (ii) amounts in a Participant's Transfer Accounts
credited with before-tax contributions, matching and
company contributions used to satisfy the Code
Section 401(k) actual deferral percentage test and
company contributions used to satisfy the Code
Section 401(m) average contribution percentage test,
shall not be distributable to such Participant
earlier than the earliest of the following to occur:
(1) The Participant's death or separation from
service with all Affiliates;
(2) The termination of the Plan without the
establishment or maintenance of a successor
defined contribution plan [other than an
employee stock ownership plan as defined in
Code Section 4975(e)] at the time the Plan
is terminated or within the period ending 12
months after the final distribution of all
assets in all Before-Tax, Supplemental and
Transfer Accounts described above in this
subsection (c); provided, if fewer than 2
percent of the Employees who are or were
eligible under the Plan at the time of its
termination are or were eligible under
another defined contribution plan at any
time during the 24 month period beginning 12
months before the time of termination, such
other plan shall not be a successor plan;
(3) The date of disposition by the Participating
Company employing such Participant of
substantially all of its assets [within the
meaning of Code Section 409(d)(2)] that were
used by such Participating Company in a
trade or business; provided, such
Participant continues employment with the
corporation acquiring such assets. The sale
of 85 percent of the assets used in a trade
or business will be deemed a sale of
"substantially all" of the assets used in
such trade or business;
(4) The date of disposition by the Participating
Company employing such Participant of its
interest in a subsidiary [within the meaning
of Code Section 409(d)(3)]; provided, such
Participant continues employment with such
subsidiary;
(5) The attainment by such Participant of age
59-1/2; or
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(6) The Participant's incurrence of a financial
hardship (to the extent, if any, such a
distribution is permitted under the Plan);
provided, for an event described in subsections
(c)(2), (c)(3) or (c)(4) hereof to constitute events
permitting a distribution from the Before-Tax and
Supplemental Accounts (or the affected Transfer
Accounts), such distribution must be made on account
of such event in the form of a lump sum distribution,
as defined in Code Section 402(d)(4) (without regard
to clauses (i), (ii), (iii) and (iv) of subparagraph
(A), or subparagraphs (B) and (F) thereof); and
provided, further, for the events described in
subsections (c)(3) or (c)(4) hereof to constitute
events permitting such a distribution, the
Participating Company must maintain the Plan after
the disposition.
(d) Discontinuance Upon Reemployment. If a Participant
becomes eligible to receive or begins receiving
benefit payments in accordance with the terms of this
Article IX and subsequently is reemployed by an
Affiliate prior to the time his Account has been
distributed in full, all distributions to such
Participant shall be delayed or cease until such
Participant again becomes eligible to receive
distributions from the Plan. Notwithstanding the
foregoing, if a Participant's benefit payments have
commenced in the form of an annuity or installment
payments for which an annuity contract has been
purchased, payments under such annuity contract shall
not cease but shall continue during the period of his
reemployment.
SECTION 9.2 DISTRIBUTIONS FROM ACCOUNTS OTHER THAN PRIOR PENSION PLAN
ACCOUNT.
(a) Method of Payment. The method pursuant to which a
Participant's benefits under the Plan shall be distributed
from his Accounts other than his Prior Pension Plan Account
shall be determined as follows:
(1) Except as provided in Section 9.4, the payment of any
distribution to a Participant or Beneficiary from the
Plan shall be in the form of a single sum cash
payment unless an alternative form of payment
permitted under this section is selected by the
Participant by written notice delivered to the
Administrative Committee, all in accordance with the
terms of this subsection (a)(1) and subsections
(a)(2) - (a)(6) hereof. Subject to Section 9.5(a),
the Participant may choose between (A) a single sum
cash payment and (B) equal cash installments
(adjusted for investment earnings and losses between
payments), paid annually, quarterly or monthly, as he
elects, over a term not to exceed the life expectancy
of the Participant or the joint life expectancy of
the Participant and his designated Beneficiary; The
election of any option may be revoked and a new
option elected, but election of any option hereunder
shall be duly filed prior to the date benefits would
otherwise be paid or commenced, and in no event shall
an election be permitted after the initial
distribution or commencement of payment of any
benefit. If the payment of a Participant's benefit
commences in
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accordance with Section 9.1(b)(4), the payment shall
be in the form of a single sum cash payment.
(2) If a Participant selects payment in the form of
installments, the initial value of the obligation for
the installment payments shall be equal to the amount
of the Participant's vested Account balance on the
day payments are scheduled to commence.
Notwithstanding anything herein to the contrary,
distributions from the Plan must satisfy the
requirements of Code Section 401(a)(9)(G). This means
that the incidental benefit rules as described in
Treasury Regulation Section 1.401(a)(9)-2 shall be
satisfied.
(3) If installment payments of a Participant's benefit
from the Plan have begun, then at any time thereafter
the Participant may elect to receive the remaining
Account balance in the form of a single sum payment.
(4) If a Participant dies before his Benefit Commencement
Date, distribution to his Beneficiary shall be made
in the form prescribed pursuant to the terms of
Article X.
(5) If a Participant dies after his Benefit Commencement
Date but before his entire benefit has been
distributed, his Beneficiary may elect at any time
thereafter to receive the remainder of the deceased
Participant's vested Account in the form of a single
sum payment or to continue to receive the same
installment payments which would have been paid to
the deceased Participant if he had survived.
(6) If a Beneficiary who has begun receiving installment
payments dies prior to the full payment thereof, the
remaining vested amount of the Account balance shall
be distributed to the designated beneficiary of such
Beneficiary or, if no such beneficiary has been
designated or survives, to the estate of such
Beneficiary.
(7) If a distribution is to be made to a Participant
and/or his Spouse Beneficiary in the form of
installments payable over the life expectancy or
joint life expectancy of such persons, the life
expectancy or joint life expectancy, as applicable,
of such persons shall be calculated at the time
distributions commence and shall not thereafter be
recalculated (except as provided in
Section 9.1(b)(4)).
(b) Direct Rollover Distributions. If (i) a Participant, (ii) his
Spouse who is his Beneficiary, or (iii) his Spouse or former
Spouse who is the alternate payee under a qualified domestic
relations order, as defined in Code Section 414(p), who is the
recipient of any Eligible Rollover Distribution, elects to
have such Eligible Rollover Distribution paid directly to an
Eligible Retirement Plan and specifies (in such form and at
such time as the Administrative Committee may prescribe) the
Eligible Retirement Plan to which such distribution is to be
paid, such distribution shall be made in the form of a direct
trustee-to-trustee transfer to the
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specified Eligible Retirement Plan; provided, such transfer
shall be made only to the extent that the Eligible Rollover
Distribution would be included in gross income if not so
transferred [determined without regard to Code Section 402(c)
and Section 403(a)(4)].
(c) Prior Annuity Plan Account. The provisions of this Article IX
other than Section 9.3 shall apply to payment of a
Participant's Prior Annuity Plan Account unless, within 90
days prior to the Participant's Benefit Commencement Date, the
Participant elects to have his Prior Annuity Plan Account paid
in the form of a qualified joint and survivor annuity (or life
annuity, if unmarried). If a Participant with a Prior Annuity
Plan Account elects to have such account paid in the form of a
qualified joint and survivor annuity (or life annuity, if
unmarried) within the 90 days prior to the Participant's
Benefit Commencement Date, the payment of the Participant's
Prior Annuity Plan Account shall be made in accordance with
the provisions of Section 9.3.
SECTION 9.3 DISTRIBUTIONS FROM PRIOR PENSION PLAN ACCOUNT FOR REASONS
OTHER THAN DEATH.
(a) Normal Forms. Except as provided in Section 9.4 or unless a
Participant otherwise elects in accordance with subsection
(b)(1) hereof, a Participant's benefit under the Plan (other
than his death benefit) shall be paid from his Prior Pension
Plan Account in the following applicable form:
(1) in the form of a life annuity, if the Participant
does not have a Spouse on his Benefit Commencement
Date; or
(2) in the form of a joint and 50% survivor annuity
payable to the Participant and his Spouse (as his
Joint Annuitant), if the Participant has a Spouse on
his Benefit Commencement Date.
(b) Election of Optional Payment Forms.
(1) Election. After receiving the notice described in
subsection (c) hereof, a Participant may make a
Qualified Retirement Election at any time within the
90-day period ending on his Benefit Commencement Date
to have his benefits paid in one of the alternative
benefit payment forms described in subsection (b)(2)
hereof (substituting his Joint Annuitant for
"Beneficiary" in said section) and/or to name a Joint
Annuitant (including a non-spouse Joint Annuitant for
a married Participant) with respect to any
installments selected as an alternative benefit
payment form.
(2) Optional Payment Forms. The alternative benefit forms
from which a Participant may elect pursuant to the
terms of this Section shall be equivalent to the
amount of the Participant's Prior Pension Plan
Account balance as follows:
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(A) Life Annuity. A monthly retirement benefit
payable during the Participant's lifetime,
with payments to cease after the payment due
on the first day of the month in which the
Participant's death occurs. Such payments
shall be made through an annuity contract
purchased with the Participant's vested
Account balance and distributed to him, and
the amount of such payments shall be equal
to the amount that can be provided through
such an annuity contract;
(B) Joint and 25%, 50%, 75% or 100% Survivor
Annuity. A monthly retirement benefit which
shall be payable during the Participant's
lifetime, with 25, 50, 75 or 100 percent, as
elected by the Participant, of the
Participant's monthly benefit amount
continuing after his death to the person
designated (or deemed designated) as his
Beneficiary if such Beneficiary survives
him, for such Beneficiary's remaining
lifetime. Payments shall cease with the
payment due on the first day of the month in
which occurs the later of the Participant's
death or his Beneficiary's death. Such
payments shall be made through an annuity
contract purchased with the Participant's
vested Account balance and distributed to
him, and the amount of such payments shall
be provided through such an annuity
contract;
(C) Life Annuity with 10 Years Certain. A
monthly benefit which shall be payable
during the Participant's lifetime with
payments to cease after the payment due on
the first day of the month in which the
Participant's death occurs; provided,
payments shall continue for a period of 10
years after the Participant's Benefit
Commencement Date, regardless of whether the
Participant dies before all such payments
are made, and shall be paid to his
Beneficiary for the balance of such period
certain; and, provided further, in the event
the joint life expectancy of the Participant
and his Beneficiary [determined as of the
Participant's Benefit Commencement Date in
accordance with Code Section 401(a)(9)] is
less than the period certain selected by the
Participant, then the guaranteed period
under this subsection shall not exceed such
joint life expectancy. If both the
Participant and his Beneficiary die before
the expiration of the period certain
described in this subsection such that
benefits remain due hereunder, all remaining
amounts due shall be paid to the estate of
the Beneficiary. Such payments shall be made
through an annuity contract purchased with
the Participant's vested Account balance and
distributed to him, and the amount of such
payments shall be provided through such an
annuity contract;
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(D) Periodic Installments. Periodic installments
made in accordance with Section 9.2; or
(E) Single-Sum Payment. A single-sum payment of
the Participant's Prior Pension Plan Account
balance.
(3) Rate of Payments to Joint Annuitant. Notwithstanding
anything herein to the contrary, if a Participant
dies after his benefit payments to him have begun
under an annuity form of payment that provides for
continued benefit payments after his death, the
remaining portion of his distributable benefit (if
any) shall be distributed to his Joint Annuitant at
least as rapidly as under the method of distribution
in effect at the time of the Participant's death,
such that the requirements of Code Section 401(a)(9)
shall be satisfied.
(c) Retirement Notice. For a Participant who is eligible for an
annuity form of distribution pursuant to subsection (a)
hereof, no less than 30 days (no less than 7 days, if the
Participant waives the 30 day requirement) and no more than 90
days before each Participant's Benefit Commencement Date (or
within such other permissible period), the Administrative
Committee shall furnish such Participant written notice of:
(1) the terms and conditions of the benefit payment forms
described in subsection (b)(2) hereof, the conditions
under which they will be provided and the relative
financial effect of selecting any alternative benefit
form;
(2) the Participant's right (subject to the written
consent of such Participant's Spouse, if any) to
elect a benefit payment form other than the forms
payable to him under subsection (a) hereof and the
effect, if any, of such election;
(3) the right of a married Participant's Spouse to negate
the Participant's election of an optional benefit
payment form through a failure to consent in writing
before a notary public or a Plan representative to
such election;
(4) the Administrative Committee's right to rely on a
Spouse's properly executed and notarized consent to
the payment of Plan benefits in one of the optional
forms described in subsection (b)(2) hereof, which
consent shall be irrevocable with respect to such
Spouse under the Plan;
(5) the Participant's right to revoke an election that
his benefit be paid in a form other than the annuity
form payable to him under subsection (a) hereof; and
(6) the Participant's right, upon his written request
delivered to the Administrative Committee, to receive
more specific information regarding the financial
effect of selecting an alternative benefit form
(including the amount of payments under an annuity).
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SECTION 9.4 CASH-OUT PAYMENT OF BENEFITS.
Notwithstanding anything to the contrary in this Article IX, in the event that
the vested amount of the Account of any Participant who separates from the
service of all Affiliates is less than or equal to (and never exceeded) $5,000,
the full vested amount of such benefit automatically shall be paid to such
Participant in one single-sum, cash-out distribution as soon as practicable
after the date the Participant separates from service, but in no event later
than the end of the second Plan Year following the Plan Year in which such
Participant's separation occurs. In the event a Participant has no vested
interest in his Account at the time of his separation from service, he shall be
deemed to have received a cash-out distribution at the time of his separation
from service, and the forfeiture provisions of Section 8.3 shall apply.
SECTION 9.5 ASSETS DISTRIBUTED; EFFECT OF OUTSTANDING LOANS.
(a) Single-Sum and Installment Payments. Any distribution made in
the form of a single-sum payment or installment payments to a
Participant or Beneficiary shall be made in the form of cash
(or, to the extent invested in the Bristol Stock Fund, if
elected by the Participant, in whole shares of Bristol Stock
with fractional shares paid in cash). However, the
Administrative Committee may direct the Trustee to purchase an
annuity (other than a life annuity) which shall be distributed
to a Participant in satisfaction of his election to receive
payment in the form of installments.
(b) Life Annuity Payments. Any distribution made in the form of a
life annuity to a Participant or Joint Annuitant shall be made
in cash, or, if the Administrative Committee directs, through
the purchase with Trust Fund assets of an annuity contract
which is distributed to the Participant or Joint Annuitant, as
applicable, and pursuant to which an insurance company is
obligated to make such cash distributions in accordance with
the provisions of the Plan.
(c) Effect of Outstanding Loans. If an amount becomes payable to a
Participant or his Joint Annuitant pursuant to this Article at
a time when a Participant has an outstanding loan from the
Plan, the terms of Section 11.9(g) shall apply.
SECTION 9.6 QUALIFIED DOMESTIC RELATIONS ORDERS.
In the event the Administrative Committee receives a domestic relations order
which it determines to be a qualified domestic relations order [see Section
15.1(b)], the Plan shall pay such benefit to the prescribed alternate payee(s)
at such time and in such form, as shall be described in the qualified domestic
relations order and permitted under Section 15.1(b). If the qualified domestic
relations order requires immediate payment, the specified benefit shall be paid
to the alternate payee as soon as practicable following the end of the month
within which the Administrative Committee determines that the order is qualified
or, if later, after timing restrictions and requirements under the Code are
satisfied. To the extent consistent with the qualified domestic
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relations order, the amount of the payment to an alternate payee shall include
earnings, interest and other investment proceeds through (but not after) the
Valuation Date as of which the Trustee processes the distribution. If a
Participant's Account is partially paid or payable to an alternate payee, the
Participant's remaining portion of his Account shall be reduced accordingly and
shall be subject to the distribution provisions in this Article IX.
SECTION 9.7 UNCLAIMED BENEFITS.
In the event a Participant, Beneficiary or Joint Annuitant becomes entitled to
benefits under the Plan and the Administrative Committee is unable to locate
such Participant, Beneficiary or Joint Annuitant (after sending a letter, return
receipt requested, to the last known address, and after such further diligent
efforts as the Administrative Committee in its sole discretion deems
appropriate) within 1 year from the date upon which he becomes so entitled, the
full Account of the Participant shall be deemed abandoned and shall be used to
reduce the Participating Companies' obligations to make Matching or Supplemental
Contributions as the Administrative Committee in its sole discretion may direct;
provided, in the event such Participant, Joint Annuitant or Beneficiary is
located and makes a claim subsequent to the termination of the Plan, the amount
of the abandoned Account (unadjusted for any investment gains or losses from the
time of abandonment) shall be restored (from abandoned Accounts, Forfeitures,
Trust earnings or Contributions made by the Participating Companies) to such
Participant, Joint Annuitant or Beneficiary, as appropriate; and, provided
further, the Administrative Committee, in its sole discretion, may delay the
deemed date of abandonment of any such Account for a period longer than the
prescribed one Plan Year, but not longer than the period required for escheat
under applicable state law, if it believes that it is in the best interest of
the Plan to do so.
SECTION 9.8 CLAIMS.
(a) Procedure. Claims for benefits under the Plan may be filed
with the Administrative Committee on forms supplied by the
Administrative Committee. The Administrative Committee shall
furnish to the claimant written notice of the disposition of a
claim within 90 days after the application therefor is filed;
provided, if special circumstances require an extension of
time for processing the claim, the Administrative Committee
shall furnish written notice of the extension to the claimant
prior to the end of the initial 90-day period, and such
extension shall not exceed one additional, consecutive 90-day
period. In the event the claim is denied, the notice of the
disposition of the claim shall provide the specific reasons
for the denial, cites of the pertinent provisions of the Plan,
and, where appropriate, an explanation as to how the claimant
can perfect the claim and/or submit the claim for review.
(b) Review Procedure. Any Participant, Joint Annuitant or
Beneficiary who has been denied a benefit, or his duly
authorized representative, shall be entitled, upon request to
the Administrative Committee, to appeal the denial of his
claim. The claimant, or his duly authorized representative,
may review pertinent documents related to the Plan and in the
Administrative Committee's possession in order to
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prepare the appeal. The form containing the request for
review, together with a written statement of the claimant's
position, must be filed with the Administrative Committee no
later than 60 days after receipt of the written notification
of denial of a claim provided for in subsection (a) hereof.
The Administrative Committee's decision shall be made within
60 days following the filing of the request for review and
shall be communicated in writing to the claimant; provided, if
special circumstances require an extension of time for
processing the appeal, the Administrative Committee shall
furnish written notice to the claimant prior to the end of the
initial 60-day period, and such an extension shall not exceed
one additional 60-day period. If unfavorable, the notice of
decision shall explain the reason or reasons for denial and
indicate the provisions of the Plan or other documents used to
arrive at the decision.
(c) Satisfaction of Claims. Any payment to a Participant, Joint
Annuitant or Beneficiary, or to his legal representative or
heirs at law, all in accordance with the provisions of the
Plan, shall to the extent thereof be in full satisfaction of
all claims hereunder against the Trustee, the Administrative
Committee and the Controlling Company, any of whom may require
such Participant, Joint Annuitant, Beneficiary, legal
representative or heirs at law, as a condition to such
payment, to execute a receipt and release therefor in such
form as shall be determined by the Trustee, the Administrative
Committee or the Controlling Company, as the case may be. If
receipt and release shall be required but execution by such
Participant, Joint Annuitant, Beneficiary, legal
representative or heirs at law shall not be accomplished so
that the terms of Section 9.1(b) (dealing with the timing of
distributions) may be fulfilled, such benefits may be
distributed or paid into any appropriate court or to such
other place as such court shall direct, for disposition in
accordance with the order of such court, and such distribution
shall be deemed to comply with the requirements of
Section 9.1(b).
SECTION 9.9 EXPLANATION OF ROLLOVER DISTRIBUTIONS.
Within a reasonable period of time [as defined for purposes of Code Section
402(f)] before making an Eligible Rollover Distribution from the Plan to a
Participant, Joint Annuitant or Beneficiary, the Administrative Committee shall
provide such Participant, Joint Annuitant or Beneficiary with a written
explanation of (i) the provisions under which the distributee may have the
distribution directly transferred to another Eligible Retirement Plan, (ii) the
provisions which require the withholding of tax on the distribution if it is not
directly transferred to another Eligible Retirement Plan, (iii) the provisions
under which the distribution will not be subject to tax if transferred to an
Eligible Retirement Plan within 60 days after the date on which the distributee
receives the distribution, and (iv) such other terms and provisions as may be
required under Code Section 402(f) and the regulations promulgated thereunder.
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ARTICLE X
DEATH BENEFITS
SECTION 10.1 DETERMINATION OF DEATH BENEFITS.
If a Participant dies before payment of his benefits from the Plan is made or
commenced, the Joint Annuitants or Beneficiaries designated by such Participant
in his latest, effective designation form filed with the Administrative
Committee in accordance with the terms of Section 10.8 shall be entitled to
receive a distribution of the total of (i) the entire vested amount credited to
such Participant's Account, determined as of the Valuation Date on which the
distribution is processed, plus (ii) any Contributions made on such
Participant's behalf since such Valuation Date. For purposes of this subsection,
the "date on which the distribution is processed" refers to the date established
for such purpose by administrative practice, even if actual payment and/or
processing is made at a later date due to delays in the valuation,
administrative or any other procedure.
SECTION 10.2 NON-ANNUITY FORM OF DISTRIBUTION.
(a) Method, Timing and Assets. With respect to a Participant's
Accounts other than his Prior Pension Plan Account or, with
respect to his entire Account if the Participant's Joint
Annuitant is not his Surviving Spouse, if the Participant dies
before his Benefit Commencement Date then, except as provided
in subsection (b) or (c) hereof, any distribution to his Joint
Annuitant or Beneficiary or Beneficiaries shall be made as
soon as practicable after the Participant's date of death in
the form of a single sum cash payment or, if elected by the
Beneficiary, in the form of installment payments in accordance
with Section 9.2; provided, such payments may be divided among
multiple Joint Annuitants and Beneficiaries, as applicable;
and further provided, this timing schedule generally shall not
require distributions to be made or commenced on more than one
date during each calendar month; provided further that if the
Beneficiary or Joint Annuitant so elects, commencement of
distribution may be delayed, provided that the entire Account
shall be distributed not later than December 31st of the Plan
Year which contains the fifth anniversary of the date the
employee died or within such shorter period as shall be
required to permit the Plan to comply with the requirements of
Code Section 401(a)(9) and the regulations thereunder.
(b) Direct Rollover Distributions. If a Participant's Spouse, who
is his Beneficiary and who is the recipient of any Eligible
Rollover Distribution, elects to have such Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan and
specifies (in such form and at such time as the Administrative
Committee may prescribe) the Eligible Retirement Plan to which
such distribution is to be paid, such distribution shall be
made in the form of a direct trustee-to-trustee transfer to
the specified Eligible Retirement Plan; provided, such
transfer shall be made only
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to the extent that the Eligible Rollover Distribution would be
included in gross income if not so transferred [determined
without regard to Code Section 402(c) and Section 403(a)(4)].
(c) Prior Annuity Plan Account. The provisions of this Article X
other than Sections 10.3 and 10.4 shall apply to payment of a
Participant's Prior Annuity Plan Account unless, within the 90
days prior to the Participant's Benefit Commencement Date, the
Participant elects to have his Prior Annuity Plan Account paid
in the form of a qualified joint and survivor annuity (or life
annuity, if unmarried). If a Participant with a Prior Annuity
Plan Account elects to have such account paid in the form of a
qualified joint and survivor annuity (or life annuity, if
unmarried) within the 90 days prior to the Participant's
Benefit Commencement Date, distribution of the Participant's
Prior Annuity Plan Account shall be made in accordance with
the provisions of Section 10.3.
SECTION 10.3 PAYMENT OF SURVIVOR BENEFITS FROM PRIOR PENSION PLAN ACCOUNT.
(a) General. With respect to a deceased Participant's Prior
Pension Plan Account, if (i) the deceased Participant is
eligible to receive the distribution of his Prior Pension Plan
Account in the form of an annuity (pursuant to the terms of
Section 9.3), (ii) the Participant has a vested interest in
all or any portion of such Account and dies before his Benefit
Commencement Date, and (iii) the Participant's Spouse is his
Joint Annuitant, then, except as provided in Section 10.6 or
unless the Participant or his Spouse elects otherwise in
accordance with Section 10.4, a monthly Survivor Annuity shall
be payable on his behalf to his Spouse. Such monthly Survivor
Annuity shall be an annuity for the life of the Participant's
Spouse, the actuarial equivalent of which shall be equal to
the Participant's Prior Pension Plan Account as of the
Valuation Date on which such distribution is processed.
(b) Exclusion. No survivor benefit shall be payable under this
Section 10.3 to any person who is not living on the date as of
which the payment is scheduled to commence under Section 10.5.
SECTION 10.4 ELECTION OF OPTIONAL PAYMENT FORM FROM PRIOR PENSION PLAN
ACCOUNT.
Subject to Section 10.6, a Participant may make an election to have his survivor
benefit from his Prior Pension Plan Account paid in a single-sum payment. Any
such election generally may be made at any time during the period beginning on
or after the first day of the Plan Year in which the Participant attains age 35
and ending on the earlier of the Participant's death or Benefit Commencement
Date; provided, an election may be made prior to the date this period begins,
but the effectiveness of any such election shall expire as of the date the
Participant attains age 35. No spousal consent shall be required for any such
election which changes the form of benefit (but see Section 10.8 regarding
spousal consent requirements for designation of a non-spouse Joint Annuitant).
In addition, after the death of the Participant, his Joint Annuitant may elect
to receive a distribution in a single-sum payment of the Participant's Prior
Pension Plan Account balance.
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SECTION 10.5 COMMENCEMENT OF SURVIVOR BENEFITS.
(a) Payments to Spouse. Except as provided in Section 10.6, if the
Participant's Spouse is his Joint Annuitant and is eligible to
receive a survivor benefit under Section 10.3(a), payment of
such benefit shall commence as of the first day of the
calendar month following the later of (i) the date on which
the Participant would have attained his Normal Retirement Age
(if he had survived) or (ii) the Participant's date of death;
provided, if the Participant dies before his Normal Retirement
Age, his Spouse instead may elect (on a form provided for this
purpose by the Administrative Committee and in a manner that
satisfies the requirements of the Retirement Equity Act of
1984) for the payment of his survivor benefit to commence as
soon as practicable after the Participant's date of death.
(b) Minimum Benefit Rules. All distributions will be made in
accordance with Code Section 401(a)(9), the regulations
promulgated under Code Section 401(a)(9), including Treasury
Regulation Section 1.401(a)(9)-2 and any other provisions
reflecting the requirements of Code Section 401(a)(9) and
prescribed by the Internal Revenue Service, all of which are
incorporated by reference; and the terms of the Plan
reflecting the requirements of Code Section 401(a)(9) override
the distribution options (if any) in the Plan which are
inconsistent with those requirements.
SECTION 10.6 CASH-OUT PAYMENT OF SURVIVOR BENEFITS.
If the Participant's vested Account balance is $5,000 or less as of the
Participant's date of death, the full amount of such vested Account balance
automatically shall be paid to his Joint Annuitant or Beneficiary in one
single-sum, cash-out distribution as soon as practicable after the Participant's
date of death.
SECTION 10.7 DEATH DURING SUSPENSION OF BENEFITS.
If a Participant separates from service for any reason (other than death), he
begins receiving benefits as of his Benefit Commencement Date, he then becomes
reemployed, his benefit payments are suspended [as provided in Section 9.1(d)],
and he dies before payment of his benefits recommence, his suspended benefits
(if any) and any new benefits which are allocated to his Account during such
period of reemployment shall be treated as a death benefit and shall be
determined and paid pursuant to the terms of this Article.
SECTION 10.8 JOINT ANNUITANT AND BENEFICIARY DESIGNATION.
(a) General. In accordance with the terms of this Section,
Participants shall designate and from time to time may
redesignate their Joint Annuitants and Beneficiaries in such
form and manner as the Administrative Committee may determine.
A Participant shall be deemed to have named his Surviving
Spouse, if any, as his sole Joint Annuitant and Beneficiary
unless his Spouse consents to the payment of
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all or a specified portion of the Participant's death benefit
to a Joint Annuitant or Beneficiary other than or in addition
to the Surviving Spouse in a manner satisfying the
requirements of a Qualified Spousal Waiver and such other
procedures as the Administrative Committee may establish.
Notwithstanding the foregoing, a married Participant may
designate a nonspouse Joint Annuitant and Beneficiary without
a Qualified Spousal Waiver if the Participant establishes to
the satisfaction of the Administrative Committee that a
Qualified Spousal Waiver may not be obtained because his
Spouse cannot be located or such other permissible
circumstances exist as the Secretary of the Treasury may
prescribe by regulation. A Qualified Spousal Waiver generally
may be made at any time; provided, with respect to a
Participant's Prior Pension Plan Account, if the Participant
dies before his Benefit Commencement Date and after he attains
age 35, his designation of a non-spouse Joint Annuitant will
be effective only if made during the period beginning on or
after the first day of the Plan Year in which the Participant
attains age 35 and ending on the earlier of the Participant's
death or Benefit Commencement Date.
(b) No Designation or Designee Dead or Missing. In the event that:
(1) a Participant dies without designating a Joint
Annuitant or Beneficiary;
(2) the Joint Annuitant or Beneficiary designated by a
Participant is not surviving when a payment is to be
made to such person under the Plan, and no contingent
Joint Annuitant or Beneficiary has been designated;
or
(3) the Joint Annuitant or Beneficiary designated by a
Participant cannot be located by the Administrative
Committee within 1 year after the date benefits are
to commence to such person;
then, in any of such events, the Joint Annuitant or
Beneficiary of such Participant with respect to any
benefits that remain payable under the Plan shall be
the Participant's Surviving Spouse, if any, and if
not, then the estate of the Participant.
SECTION 10.9 SURVIVOR BENEFIT NOTICE.
The Administrative Committee shall furnish each Participant who has a Prior
Pension Plan Account with a written notice which explains the terms and
conditions related to the survivor benefit provided hereunder and which is
comparable in content and substance to the retirement notice described in
Section 9.3(c). The Administrative Committee shall furnish such survivor benefit
notice within whichever of the following periods ends last:
(a) the period beginning on the 1st day of the Plan Year in which
the Participant attains age 32 and ending on the last day of
the Plan Year preceding the Plan Year in which the Participant
attains age 35;
(b) the period which begins 1 year before and ends on the day
before the 1-year anniversary of the date on which an Employee
becomes a Participant; or
(c) with respect to a Participant whose employment with all
Affiliates ends before he attains age 35, the period which
begins 1 year before and ends 1 year after the date on which
he separates from service.
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ARTICLE XI
WITHDRAWALS AND LOANS
SECTION 11.1 WITHDRAWALS AFTER AGE 59-1/2.
A Participant, who has attained age 59-1/2 and who is an employee of an
Affiliate, may request a withdrawal of all or part of his vested Account other
than his Prior Pension Plan Account.
SECTION 11.2 HARDSHIP WITHDRAWALS.
(a) Parameters of Hardship Withdrawals. A Participant may make, on
account of hardship, a withdrawal from his vested Account
[other than (i) his Supplemental Account, (ii) any investment
earnings attributable to Before-Tax Contributions earned after
December 31, 1988 and (iii) his Prior Pension Plan Account.]
For purposes of this subsection, a withdrawal will be on
account of "hardship" if it is necessary to satisfy an
immediate and heavy financial need of the Participant. A
withdrawal based on financial hardship cannot exceed the
amount necessary to meet the immediate financial need created
by the hardship and not reasonably available from other
resources of the Participant. The Administrative Committee
shall make its determination, as to whether a Participant has
suffered an immediate and heavy financial need and whether it
is necessary to use a hardship withdrawal from the Plan to
satisfy that need, on the basis of all relevant facts and
circumstances.
(b) Immediate and Heavy Financial Need. For purposes of the Plan,
an immediate and heavy financial need exists if the withdrawal
is on account of (i) expenses for medical care described in
Code Section 213(d) previously incurred by the Participant,
his Spouse or dependents, or necessary to obtain such medical
care for such persons, (ii) the purchase (excluding mortgage
payments) of a principal residence for the Participant, (iii)
the payment of tuition and related educational fees for the
next 12 months of post-secondary education for the
Participant, his Spouse or dependents, (iv) the need to
prevent eviction of the Participant from his principal
residence or foreclosure on the mortgage of the Participant's
principal residence, or (v) payment of funeral expenses for
the Participant's immediate family (parents, siblings or
children).
(c) Necessary to Satisfy a Financial Need. In determining whether
the withdrawal is necessary to relieve the Participant's
immediate and heavy financial need, the Administrative
Committee shall rely upon the Participant's reasonable
representation that the need cannot be relieved: (i) through
reimbursement or compensation by insurance or otherwise; (ii)
by reasonable liquidation of the Participant's assets to the
extent that liquidation would not itself cause an immediate
and heavy financial need; (iii) by cessation of Before-Tax
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Contributions to the Plan; or (iv) by other distributions or
nontaxable (at the time of the loan) loans from plans
maintained by one or more Participating Companies or by
borrowing from commercial sources on reasonable commercial
terms. In determining the amount of a Participant's assets,
the resources of his spouse and minor dependents are
considered to be reasonably available to the Participant
unless they are held for his child or children under an
irrevocable trust or under the Uniform Gifts to Minors Act.
The amount of an immediate and heavy financial need may
include amounts necessary for the Participant to pay any
federal, state or local taxes which are reasonably anticipated
to result from the hardship withdrawal.
(d) Limitation on Before-Tax Contributions. The Before-Tax
Contributions of a Participant who takes a hardship withdrawal
shall be limited for the next Plan Year to an amount equal to
the limit under Section 6.2 less the Participant's Before-Tax
Contributions in the Plan Year of the withdrawal, provided
further that the Participant shall not be permitted to make
any elective contributions (including Before-Tax
Contributions) or employee contributions to this Plan or any
other plan of a Participating Employer. For this purpose, any
other plan includes all qualified and nonqualified plans of
deferred compensation. The phrase includes a stock option,
stock purchase, or similar plan, or a cash or deferred
arrangement that is part of a cafeteria plan within the
meaning of section 125. However, it does not include the
mandatory employee contribution portion of a defined benefit
plan or a health or welfare benefit plan, including one that
is part of a cafeteria plan within the meaning of section 125.
SECTION 11.3 WITHDRAWALS BEFORE AGE 59-1/2 NOT ON ACCOUNT OF HARDSHIP.
A participant who had an Account under the Bristol Hotel Management Corporation
Profit Sharing Plan for Former Employees of Holiday Inn shall have the following
additional withdrawal right:
(a) Election to Withdraw. A Participant, who has not attained age
59-1/2 and who is an employee of an Affiliate, may request,
not on account of a hardship, a withdrawal of all or part of
his vested Account attributable to contributions made prior to
January 1, 1998, other than any amounts attributable to
Before-Tax Contributions or recharacterized excess
contributions, and his Prior Pension Plan Account.
(b) Restrictions on Withdrawals. No Matching Contribution amount
may be withdrawn unless the Participant has been participating
in the Plan (including the period of participation in the
Holiday Inn Plan) for at least sixty (60) months prior to the
month of withdrawal or unless the amounts being withdrawn have
been held by the Trust Fund for at least twenty-four (24)
months.
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SECTION 11.4 POST-TERMINATION WITHDRAWALS.
A Participant, who is no longer an employee of an Affiliate, may request a
withdrawal of all or part of his vested Account in accordance with Article IX.
SECTION 11.5 ORDER OF WITHDRAWALS.
Any withdrawal shall be made to the extent available in the following order:
(a) After-Tax Contribution Account: limited to the principal
amount of After-Tax Contributions made prior to 1987;
(b) After-Tax Contribution Account: limited to principal amount of
after-tax contributions made after 1986 and investment
earnings credited to the After-Tax Contribution Account
regardless of when credited;
(c) Rollover Account;
(d) Transfer Account;
(e) The vested Matching Contributions;
(f) The Prior Annuity Plan Account; and
(g) Before-Tax Contribution Account.
SECTION 11.6 ELECTION TO WITHDRAW.
All applications for withdrawals shall be in writing on a form provided by the
Administrative Committee and shall contain such information and be made at such
time as the Administrative Committee may reasonably request. The Administrative
Committee may, in its sole discretion, require that a Participant's Spouse
consent to the application for a withdrawal; provided, if any portion of a
Participant's withdrawal is from his Prior Pension Plan Account, the consent of
the Participant's spouse shall be required in the form of a Qualified Retirement
Election.
SECTION 11.7 PAYMENT OF WITHDRAWAL.
The amount of any withdrawal shall be paid to a Participant in a single-sum,
cash payment as soon as practicable after the Administrative Committee receives
and approves a properly completed withdrawal application; provided, the annuity
form of distribution shall be applicable to that portion of withdrawals from the
Participant's Prior Pension Plan Account in accordance with the terms of Section
9.3, Section 9.4 and Section 9.5 unless waived by the Participant and his spouse
as provided herein. At the time of making any withdrawals for a Participant, his
Account may be charged with any administrative expenses (such as check
processing fees) specifically allocable against his Account pursuant to the
policies of the Administrative Committee (see also Section 16.14).
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SECTION 11.8 EFFECT OF OUTSTANDING LOANS.
If an amount becomes payable to a Participant as a withdrawal pursuant to this
Article at a time when such Participant has an outstanding loan from the Plan,
the terms of Section 11.9(g) shall apply.
SECTION 11.9 LOANS TO PARTICIPANTS.
(a) Grant of Authority. Loans to Participants, Beneficiaries and
alternate payees, who are parties-in-interest as defined in
Section 3(14) of ERISA, generally shall be allowed; provided,
if the Administrative Committee determines in its sole
discretion that it is not administratively feasible or
desirable to make such loans during any period of time, no
loans shall be made during such period. Subject to the
limitations set forth in this Section and to such uniform and
nondiscriminatory rules as may from time to time be adopted by
the Administrative Committee and set forth in a written policy
statement which hereby is incorporated by reference, the
Trustee, upon proper application by an eligible Participant,
Beneficiary or alternate payee in a manner approved by the
Administrative Committee, may make a loan or loans to the
borrower.
(b) Nondiscriminatory Policy. Loans shall be available to all
Participants, Beneficiaries and alternate payees, who are
parties-in-interest as defined in Section 3(14) of ERISA, on a
reasonably equivalent basis, without regard to an individual's
race, color, religion, age, sex or national origin; provided,
the Administrative Committee may provide for different
treatment of Participants who are active employees of
Affiliates and eligible Participants, Beneficiaries and
alternate payees who are not, as long as that different
treatment is based on valid economic differences which may
exist between these two groups and which commercial lenders in
the business of making similar types of loans legally
recognize for purposes of loan availability. Loans shall not
be made available to borrowers who are Highly Compensated
Employees in an amount greater than the amount available to
other borrowers; provided, this limitation shall be
interpreted to mean that, subject to the other limitations in
this Section, the same percentage of each borrower's vested
Account balance may be loaned to each such borrower regardless
of the actual amount of his vested Account balance.
(c) Minimum Loan Amount. The minimum amount of any loan shall be
$500 or such other amount established by the Administrative
Committee in the written loan policy statement.
(d) Maximum Loan Amount. No loan may be made to any borrower from
the Plan if the amount of such loan exceeds the lesser of:
(1) $50,000 minus the highest aggregate principal
balance, outstanding during the year ending on the
day before such loan is made, of all loans made to
the borrower by the qualified employer plans [as
defined in Code Section 72(p)(4)(A)] maintained by
the Affiliates; or
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(2) 50 percent of the borrower's total vested interest in
the Plan and all other qualified employer plans
maintained by the Affiliates, minus (B) the total
amount of all loans outstanding on the date the loan
is made from all qualified employer plans maintained
by the Affiliates.
Notwithstanding anything herein to the contrary, in
no event shall the amount of a loan made to a
borrower from the Plan (when aggregated with the
Account balance already used as security for
outstanding Plan loans) exceed 50 percent of such
borrower's vested Account balance immediately after
the origination of the loan.
(e) Maximum Loan Term.
(1) Except as provided in subsection (e)(2) hereof, the
terms of any loan made to a borrower from the Plan
shall require that the full amount of the loan be
repaid within the 5-year period (or such other
shorter maximum term as the Administrative Committee
may establish in its written loan policy statement)
commencing on the date the loan is made, and in no
event shall the repayment period of the loan
subsequently be extended beyond such 5-year period.
The Trustee shall make a diligent effort to collect
the full amount of the loan within this specified
repayment period and shall inform the borrower that,
in the event the loan is not fully repaid within the
5-year period, the borrower will be treated as having
received a taxable distribution from the Plan.
(2) The 5-year repayment rule set forth in subsection
(e)(1) hereof shall not apply to the extent that a
loan to a borrower from the Plan is used to acquire
any dwelling unit which is used, or within a
reasonable time is to be used, as a principal
residence of the borrower. Whether a dwelling unit is
to be used within a reasonable time as a principal
residence is to be determined by the Administrative
Committee at the time the loan is made, and the
Administrative Committee may require such written
statements and other evidence from the borrower as it
deems necessary to make this determination. Loans
made with respect to principal residences pursuant to
this subsection generally shall have a repayment
period that the Administrative Committee determines
is appropriate taking into account circumstances
which commercial lenders would consider relevant. The
Trustee, with the consent of the Administrative
Committee, may extend or renew such loans if the
conditions qualifying the borrower for the initial
loan continue beyond the loan due date; provided,
such extensions and renewals shall be treated as the
making of new loans under this Section and shall
satisfy the maximum loan amounts and other
limitations and requirements set forth in this
Section.
(f) Terms of Repayment. All loans to borrowers made by the Trustee
shall be subject to a definite repayment schedule which
requires substantially level amortization
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over the term of the loan with payments to be made not less
frequently than quarterly (and more frequently if required by
the Administrative Committee's written loan policy statement).
Unless the Administrative Committee provides for different
methods in its written loan policy statement, payments shall
be made by Participants who are employees of Affiliates on a
payroll deduction basis, and payments from other borrowers
shall be made by cash, check or other cash equivalent.
(g) Adequacy of Security. All loans to borrowers made by the
Trustee shall be secured by the pledge of a dollar amount of
the borrower's Account balance (i) which is not less than the
principal amount of the loan plus an additional amount, if
any, which the Administrative Committee, pursuant to its
written loan policy statement, deems desirable to secure
payment of interest accruing on the loan, and (ii) which in no
event (when aggregated for all outstanding loans) is greater
than 50 percent of the borrower's vested Account balance
immediately after the origination of the loan. Notwithstanding
anything herein to the contrary, the pledge of such security
shall be made in such manner and amount as the Administrative
Committee, pursuant to its written loan policy statement, may
require for the loan to be considered adequately secured. A
loan will be considered to be "adequately secured" if the
security posted for such loan is in addition to and supporting
a promise to pay, if it is pledged in a manner such that it
may be sold, foreclosed upon, or otherwise disposed of upon
default of repayment of the loan, and if the value and
liquidity of that security is such that it may reasonably be
anticipated that loss of principal or interest will not result
from the loan. The adequacy of such security will be
determined in light of the type and amount of security which
would be required in the case of an otherwise identical
transaction in a normal commercial setting between unrelated
parties on arm's-length terms. During the period that a loan
is outstanding, if a Participant becomes eligible to receive a
withdrawal or a distribution, the amount of such Participant's
Account which he shall be eligible to receive through
withdrawal or distribution shall not exceed that amount which
will reduce by more than 50 percent such Participant's Account
balance, excluding all outstanding loan amounts. Should a
withdrawal or distribution reduce the Account balance by more
than 50 percent, the withdrawal or distribution shall first be
applied to reduce such loan amount, and, once the loan is
repaid in full, any excess amount may be distributed to such
Participant (or his Beneficiary).
(h) Rate of Interest. A loan from the Plan to a borrower must bear
a reasonable rate of interest as determined daily by the
Trustee. A loan will be considered to bear "a reasonable rate
of interest" if such loan provides the Plan with a return
commensurate with interest rates charged by persons in the
business of lending money for loans which would be made under
similar circumstances
(i) Source of Loan Amounts. The proceeds of a loan shall be
charged pro rata against the Accounts of the borrower (other
than his Prior Pension Plan Account) or in such other manner
as the Administrative Committee may determine in its
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loan policy statement. If the assets of an Account are
invested in more than one Investment Fund, the loan proceeds
shall be charged pro rata against each Investment Fund or in
such other manner prescribed in the written loan policy
statement.
(j) Crediting Loan Payments to Accounts. The loan shall be
considered a directed investment of the borrower and any
principal and interest paid on the loan shall be considered a
part of his total Account. Each payment of principal and
interest shall be credited to the borrower's Accounts in the
same proportion as the loan proceeds were withdrawn from such
Accounts. Repayment of principal and interest shall be
credited to each Investment Fund in accordance with the
Participant's current elections or in such other manner
prescribed in the written loan policy statement.
(k) Consent Rules. If a Participant applies for a loan from the
Plan and the amount of such loan (when added to the
outstanding balances of all loans made to the Participant
under the Plan (and all other qualified employer plans, as
defined in Code Section 72(p)(4)(A), maintained by the
Affiliates) which used the Participant's Account as security
therefor) is greater than $5,000, and if any portion of the
Participant's loan is from a Prior Pension Plan Account, the
Participant's Spouse, if any, must consent to such loan. The
spousal consent must be obtained within the 90-day period that
ends on the date the loan is to be secured by the
Participant's Prior Pension Plan Account. Such consent must be
in writing, must acknowledge the effect of the loan and must
be witnessed by a notary public or Plan representative, all in
a manner consistent with the rules applicable to Qualified
Retirement Elections. In addition, even if spousal consent is
not required by the terms of this subsection, the
Administrative Committee, in its sole discretion, may require
spousal consent for any Participant loan.
(l) Remedies in the Event of Default. If any loan payments are not
paid as and when due, the Administrative Committee may declare
the loan to be in default. The Administrative Committee may
take such actions, as it deems appropriate in accordance with
its written loan policy statement, to allow the borrower to
cure such default or to otherwise collect such overdue
payments or, as the case may be, the outstanding balance of
the loan. Among other things, the Administrative Committee's
actions may include causing all or any portion of the
borrower's Account which has been pledged to secure the loan
to be used to repay such loan; provided, although the
Administrative Committee may treat any portion of the loan
balance that remains outstanding after a default as taxable
income to the borrower in accordance with the terms of Code
Section 72(p), no portion of such outstanding loan balance may
be treated as a reduction of a Participant's Account balance
until such time as such reduction, if treated as a
distribution, will not breach the special distribution
restrictions of Code Section 401(k)(2)(B).
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ARTICLE XII
ADMINISTRATION
SECTION 12.1 ADMINISTRATIVE COMMITTEE; APPOINTMENT AND TERM OF OFFICE.
(a) Appointment. The Administrative Committee shall consist of not
less than one member who shall be appointed by and serve at
the pleasure of the Board.
(b) Removal; Resignation. The Board shall have the right to remove
any member of the Administrative Committee at any time. A
member may resign at any time by written resignation to the
Board. If a vacancy in the Administrative Committee should
occur, a successor may be appointed by the Board.
(c) Certification. A written certification shall be given to the
Trustee by the Board of all members of the Administrative
Committee together with a specimen signature of each member.
For all purposes hereunder, the Trustee shall be conclusively
entitled to rely upon such certification until the Trustee is
otherwise notified in writing.
SECTION 12.2 ORGANIZATION OF ADMINISTRATIVE COMMITTEE.
The Administrative Committee may elect a Chairman and a Secretary from among its
members. In addition to those powers set forth elsewhere in the Plan, the
Administrative Committee may appoint such agents, who need not be members of
such Administrative Committee, as it may deem necessary for the effective
performance of its duties and may delegate to such agents such powers and
duties, whether ministerial or discretionary, as the Administrative Committee
may deem expedient or appropriate. The compensation of such agents who are not
full-time Employees of a Participating Company shall be fixed by the
Administrative Committee within limits set by the Board and shall be paid by the
Controlling Company (to be divided equitably among the Participating Companies)
or from the Trust Fund as determined by the Administrative Committee. The
Administrative Committee shall act by majority vote. Its members shall serve as
such without compensation.
SECTION 12.3 POWERS AND RESPONSIBILITY.
The Administrative Committee shall fulfill the duties of "administrator" as set
forth in Section 3(16) of ERISA and shall have complete control of the
administration of the Plan hereunder, with all powers necessary to enable it
properly to carry out its duties as set forth in the Plan and the Trust
Agreement. The Administrative Committee shall have the following duties and
responsibilities:
(a) to construe the Plan and to determine all questions that shall
arise thereunder;
(b) to have all powers elsewhere herein conferred upon it;
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(c) to decide all questions relating to the eligibility of
Employees to participate in the benefits of the Plan;
(d) to determine the benefits of the Plan to which any
Participant, Joint Annuitant or Beneficiary may be entitled;
(e) to maintain and retain records relating to Participants, Joint
Annuitants and Beneficiaries;
(f) to prepare and furnish to Participants all information
required under federal law or provisions of the Plan to be
furnished to them;
(g) to prepare and furnish to the Trustee sufficient employee data
and the amount of Contributions received from all sources so
that the Trustee may maintain separate accounts for
Participants, Joint Annuitants and Beneficiaries and make
required payments of benefits;
(h) to prepare and file or publish with the Secretary of Labor,
the Secretary of the Treasury, their delegates and all other
appropriate government officials all reports and other
information required under law to be so filed or published;
(i) to provide directions to the Trustee with respect to methods
of benefit payment, and all other matters where called for in
the Plan or requested by the Trustee;
(j) to engage assistants and professional advisers;
(k) to arrange for fiduciary bonding;
(l) to provide procedures for determination of claims for
benefits; and
(m) to amend the Plan at any time and from time to time as
provided for in Section 14.1;
all as further set forth herein.
SECTION 12.4 RECORDS OF ADMINISTRATIVE COMMITTEE.
(a) Notices and Directions. Any notice, direction, order, request,
certification or instruction of the Administrative Committee
to the Trustee shall be in writing and shall be signed by a
member of the Administrative Committee. The Trustee and every
other person shall be entitled to rely conclusively upon any
and all such proper notices, directions, orders, requests,
certifications and instructions received from the
Administrative Committee and reasonably believed to be
properly executed, and shall act and be fully protected in
acting in accordance with any such directions that are proper.
(b) Records. All acts and determinations of the Administrative
Committee shall be duly recorded by its Secretary or under his
supervision, and all such records
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(including records necessary to demonstrate compliance with
the nondiscrimination requirements of the Code), together with
such other documents as may be necessary for the
administration of the Plan, shall be preserved in the custody
of such Secretary.
SECTION 12.5 REPORTING AND DISCLOSURE.
The Administrative Committee shall keep all individual and group records
relating to Participants, Joint Annuitants and Beneficiaries and all other
records necessary for the proper operation of the Plan. Such records shall be
made available to the Participating Companies and to each Participant, Joint
Annuitant and Beneficiary for examination during normal business hours except
that a Participant, Joint Annuitant or Beneficiary shall examine only such
records as pertain exclusively to the examining Participant, Joint Annuitant or
Beneficiary and the Plan and Trust Agreement. The Administrative Committee shall
prepare and shall file as required by law or regulation all reports, forms,
documents and other items required by ERISA, the Code and every other relevant
statute, each as amended, and all regulations thereunder. This provision shall
not be construed as imposing upon the Administrative Committee the
responsibility or authority for the preparation, preservation, publication or
filing of any document required to be prepared, preserved or filed by the
Trustee or by any other Named Fiduciary to whom such responsibilities are
delegated by law or by the Plan.
SECTION 12.6 CONSTRUCTION OF THE PLAN.
The Administrative Committee shall take such steps as are considered necessary
and appropriate to remedy any inequity that results from incorrect information
received or communicated in good faith or as the consequence of an
administrative error. The Administrative Committee, in its sole and full
discretion, shall interpret the Plan and shall determine the questions arising
in the administration, interpretation and application of the Plan. The
Administrative Committee shall endeavor to act, whether by general rules or by
particular decisions, so as not to discriminate in favor of or against any
person and so as to treat all persons in similar circumstances uniformly. The
Administrative Committee shall correct any defect, reconcile any inconsistency
or supply any omission with respect to the Plan.
SECTION 12.7 ASSISTANTS AND ADVISORS.
(a) Engaging Advisors. The Administrative Committee shall have the
right to hire, at the expense of the Controlling Company (to
be divided equitably among the Participating Companies), such
professional assistants and consultants as it, in its sole
discretion, deems necessary or advisable. To the extent that
the costs for such assistants and advisors are not so paid by
the Controlling Company, they shall be paid at the direction
of the Administrative Committee from the Trust Fund as an
expense of the Trust Fund.
(b) Reliance on Advisors. The Administrative Committee and the
Participating Companies shall be entitled to rely upon all
certificates and reports made by an
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accountant, attorney or other professional adviser selected
pursuant to this Section; the Administrative Committee, the
Participating Companies, and the Trustee shall be fully
protected in respect to any action taken or suffered by them
in good faith in reliance upon the advice or opinion of any
such accountant, attorney or other professional adviser; and
any action so taken or suffered shall be conclusive upon each
of them and upon all other persons interested in the Plan.
SECTION 12.8 INVESTMENT COMMITTEE.
(a) Funding Policy. The Investment Committee is the named
fiduciary to act on behalf of the Controlling Company to
establish and carry out a funding policy consistent with the
Plan objectives and with the requirements of any applicable
law. Such policy shall be in writing and shall have due regard
for the liquidity needs of the Trust. Such funding policy
shall also state the general investment objectives of the
Trust and the philosophy upon which maintenance of the Plan is
based.
(b) Appointment. The Board shall determine the membership of the
Investment Committee, and the members shall serve at the
pleasure of the Board or until their resignation.
(c) Duties. The Investment Committee also shall carry out the
Controlling Company's responsibility and authority:
(1) To appoint one or more persons to serve as investment
manager with respect to all or part of the Plan
assets, including assets maintained under separate
accounts of an insurance company;
(2) To allocate the responsibility and authority being
carried out by the Investment Committee among the
members of the Committee;
(3) To take any action appropriate to ensure that the
Plan assets are invested for the exclusive purpose of
providing benefits to Participants, Joint Annuitants
and their Beneficiaries in accordance with the Plan
and defraying reasonable expenses of administering
the Plan, subject to the requirements of any
applicable law; and
(4) To employ one or more persons to render advice with
respect to any responsibility or authority being
carried out by the Investment Committee. To the
extent that the costs for such assistants and
advisors are not paid by the Controlling Company,
they shall be paid at the direction of the Investment
Committee from the Trust Fund as an expense of the
Trust Fund.
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SECTION 12.9 DIRECTION OF TRUSTEE.
The Investment Committee shall have the power to provide the Trustee with
general investment policy guidelines and directions to assist the Trustee
respecting investments made in compliance with, and pursuant to, the terms of
the Plan.
SECTION 12.10 BONDING.
The Administrative Committee shall arrange for fiduciary bonding as is required
by law, but no bonding in excess of the amount required by law shall be required
by the Plan.
SECTION 12.11 INDEMNIFICATION.
Each of the Administrative Committee and the Investment Committee and each
member of those Committees shall be indemnified by the Participating Companies
against judgment amounts, settlement amounts (other than amounts paid in
settlement to which the Participating Companies do not consent) and expenses,
reasonably incurred by the Committee or him in connection with any action to
which the Committee or he may be a party (by reason of his service as a member
of a Committee) except in relation to matters as to which the Committee or he
shall be adjudged in such action to be personally guilty of gross negligence or
willful misconduct in the performance of its or his duties. The foregoing right
to indemnification shall be in addition to such other rights as such Committee
or each Committee member may enjoy as a matter of law or by reason of insurance
coverage of any kind. Rights granted hereunder shall be in addition to and not
in lieu of any rights to indemnification to which such Committee or each
Committee member may be entitled pursuant to the by-laws or other organizational
rules of the Controlling Company. Service on the Administrative or Investment
Committee shall be deemed in partial fulfillment of a Committee member's
function as an Employee or officer of the Controlling Company or any
Participating Company, if he serves in such other capacity as well.
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ARTICLE XIII
ALLOCATION OF AUTHORITY AND RESPONSIBILITIES
SECTION 13.1 CONTROLLING COMPANY AND BOARD.
(a) General Responsibilities. The Controlling Company, as Plan
sponsor, and the Board each shall serve as a Named Fiduciary
having the following (and only the following) authority and
responsibilities:
(1) To appoint the Trustee, the Administrative Committee
and the Investment Committee and to monitor each of
their performances;
(2) To communicate such information to the Trustee, the
Administrative Committee and the Investment Committee
as each needs for the proper performance of its
duties;
(3) To provide channels and mechanisms through which the
Administrative Committee and/or the Trustee can
communicate with Participants, Joint Annuitants and
Beneficiaries; and
(4) To terminate the Plan.
In addition, the Controlling Company shall perform
such duties as are imposed by law or by regulation
and shall serve as plan administrator in the absence
of an appointed Administrative Committee.
(b) Allocation of Authority. In the event any of the areas of
authority and responsibilities of the Controlling Company and
the Board overlap with that of any other Plan fiduciary, the
Controlling Company and the Board shall coordinate with such
other fiduciaries the execution of such authority and
responsibilities; provided, the decision of the Controlling
Company and the Board with respect to such authority and
responsibilities ultimately shall be controlling.
(c) Authority of Participating Companies. Notwithstanding anything
herein to the contrary, and in addition to the authority and
responsibilities specifically given to the Participating
Companies in the Plan, the Controlling Company, in its sole
discretion, may grant the Participating Companies such
authority and charge them with such responsibilities as the
Controlling Company deems appropriate.
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SECTION 13.2 ADMINISTRATIVE COMMITTEE.
The Administrative Committee shall have the authority and responsibilities
imposed by Article XI hereof. With respect to said authority and
responsibilities, the Administrative Committee shall be a Named Fiduciary, and
as such, shall have no authority or responsibilities other than as granted in
the Plan or as imposed as a matter of law.
SECTION 13.3 INVESTMENT COMMITTEE.
The Investment Committee, if any is appointed, shall be a Named Fiduciary with
respect to its authority and responsibilities, as imposed by Article XI. The
Investment Committee shall have no authority or responsibilities other than
those granted in the Plan and the Trust.
SECTION 13.4 TRUSTEE.
The Trustee shall be a Named Fiduciary with respect to investment of Trust Fund
assets and shall have the powers and duties set forth in the Trust Agreement.
SECTION 13.5 LIMITATIONS ON OBLIGATIONS OF FIDUCIARIES.
No fiduciary shall have authority or responsibility to deal with matters other
than as delegated to it under the Plan, under the Trust Agreement or by
operation of law. A fiduciary shall not in any event be liable for breach of
fiduciary responsibility or obligation by another fiduciary (including Named
Fiduciaries) if the responsibility or authority for the act or omission deemed
to be a breach was not within the scope of such fiduciary's authority or
delegated responsibility.
SECTION 13.6 DELEGATION.
Named Fiduciaries shall have the power to delegate specific fiduciary
responsibilities (other than Trustee responsibilities). Such delegations may be
to officers or Employees of a Participating Company or to other persons, all of
whom shall serve at the pleasure of the Named Fiduciary making such delegation
and, if full-time Employees of a Participating Company, without compensation.
Any such person may resign by delivering a written resignation to the delegating
Named Fiduciary. Vacancies created by any reason may be filled by the
appropriate Named Fiduciary or the assigned responsibilities may be reabsorbed
or redelegated by the Named Fiduciary.
SECTION 13.7 MULTIPLE FIDUCIARY ROLES.
Any person may hold more than one position of fiduciary responsibility and shall
be liable for each such responsibility separately.
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ARTICLE XIV
AMENDMENT, TERMINATION AND ADOPTION
SECTION 14.1 AMENDMENT.
The provisions of the Plan may be amended at any time and from time to time by
the Administrative Committee; provided:
(a) No amendment shall increase the duties or liabilities of the
Trustee without the consent of such party;
(b) No amendment shall decrease the balance or vested percentage
of an Account or eliminate an optional form of benefit;
(c) No amendment shall be made which would divert any of the
assets of the Trust Fund to any purpose other than the
exclusive benefit of Participants, Joint Annuitants and
Beneficiaries, except that the Plan and Trust Agreement may be
amended retroactively and to affect the Accounts of
Participants, Joint Annuitants and Beneficiaries if necessary
to cause the Plan and Trust to be qualified and exempt from
taxation under the Code; and
(d) Each amendment shall be approved by the Administrative
Committee by resolution.
SECTION 14.2 TERMINATION.
(a) Right to Terminate. The Controlling Company expects the Plan
to be continued indefinitely, but it reserves the right to
terminate the Plan or to completely discontinue Contributions
to the Plan at any time by action of the Board. In either
event, the Administrative Committee, Investment Committee,
each Participating Company and the Trustee shall be promptly
advised of such decision in writing. [For termination of the
Plan by a Participating Company as to itself (rather than the
termination of the entire Plan) refer to Section 14.3(e).]
(b) Vesting Upon Complete Termination. If the Plan is terminated
by the Controlling Company or Contributions to the Plan are
completely discontinued, the Accounts of all Participants,
Joint Annuitants, Beneficiaries or other successors in
interest as of such date shall continue to be 100 percent
vested and nonforfeitable. Upon termination of the Plan, the
Administrative Committee, in its sole discretion, shall
instruct the Trustee either (i) to continue to manage and
administer the assets of the Trust for the benefit of the
Participants, Joint Annuitants and their Beneficiaries
pursuant to the terms and provisions of the Trust Agreement,
or (ii) if there is no successor plan permitted under the
terms of Section 9.1(c) or no benefits
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subject to the restrictions in said Section, to pay over to
each Participant the value of his interest in a single sum and
to thereupon dissolve the Trust.
(c) Dissolution of Trust. In the event that the Administrative
Committee decides to dissolve the Trust, as soon as
practicable following the termination of the Plan or the
Administrative Committee's decision, whichever is later, the
assets under the Plan shall be converted to cash or other
distributable assets, to the extent necessary to effect a
complete distribution of the Trust assets as described
hereinbelow. Following completion of the conversion, on a date
selected by the Administrative Committee, each individual with
an Account under the Plan on such date shall receive a
distribution of the total amount then credited to his Account.
The amount of cash and other property distributable to each
such individual shall be determined as of the date of
distribution (treating, for this purpose, such distribution
date as the Valuation Date as of which the distributable
amount is determined). In the case of a termination
distribution as provided herein, the Administrative Committee
may direct the Trustee to take any action provided in Section
9.7 (dealing with unclaimed benefits), except that it shall
not be necessary to hold funds for any period of time stated
in such Section. Within the expense limitations set forth in
the Plan, the Administrative Committee may direct the Trustee
to use assets of the Trust Fund to pay any due and accrued
expenses and liabilities of the Trust and any expenses
involved in termination of the Plan (other than expenses
incurred for the benefit of the Participating Companies).
(d) Vesting Upon Partial Termination. In the event of a partial
termination of the Plan [as provided in Code Section
411(d)(3)], the Accounts of those Participants, Joint
Annuitants and Beneficiaries affected shall continue to be 100
percent vested and nonforfeitable and, unless transferred to
another qualified plan, shall be distributed in a manner and
at a time consistent with the terms of Articles IX and X.
SECTION 14.3 ADOPTION OF THE PLAN BY A PARTICIPATING COMPANY.
(a) Procedures for Participation. As of the Effective Date, the
Controlling Company and the other company listed on Schedule A
hereto shall be Participating Companies in the Plan. Any other
Affiliate may become a Participating Company and commence
participation in the Plan subject to the provisions of this
subsection. In order for a company to become a Participating
Company, the Administrative Committee must designate such
company as a Participating Company and specify the effective
date of such designation. The name of any company which shall
commence participation in the Plan, along with the effective
date of its participation, shall be recorded on Schedule A
hereto which shall be appropriately modified each time a
Participating Company is added or deleted. To adopt the Plan
as a Participating Company, the board of directors or other
managing body of the company must approve a resolution
expressly adopting the Plan for the benefit of its eligible
employees and accepting designation as a
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Participating Company, subject to all of the provisions of
this Plan and of the Trust. The resolution shall specify the
date as of which the designation as a Participating Company
shall be effective. A copy of the resolution (certified if
requested) of the board of directors of the adopting
Participating Company shall be provided to the Administrative
Committee. Upon adoption of the Plan by a Participating
Company as herein provided, the Employees of such company
shall be eligible to participate in the Plan subject to the
terms hereof and of the resolution of the Administrative
Committee designating the adopting company as such.
(b) Single Plan. The Plan, as adopted by all Participating
Companies, shall be considered a single plan for purposes of
Treasury Regulation Section 1.414(l)-1(b)(1). All assets
contributed to the Plan by the Participating Companies shall
be held together in a single fund and shall be available to
pay benefits to all Participants, Joint Annuitants and
Beneficiaries. Nothing contained herein shall be construed to
prohibit the separate accounting of assets contributed by the
Participating Companies for purposes of cost allocation,
contributions, forfeitures and other purposes, pursuant to the
terms of the Plan and as directed by the Administrative
Committee.
(c) Authority under Plan. As long as a Participating Company's
designation as such remains in effect, such Participating
Company shall be bound by, and subject to, all provisions of
the Plan and the Trust. The exclusive authority to amend the
Plan and the Trust shall be vested in the Board, and no other
Participating Company shall have any right to amend the Plan
or the Trust. Any amendment to the Plan or the Trust adopted
by the Board shall be binding upon every Participating Company
without further action by such Participating Company.
(d) Contributions to Plan. A Participating Company shall be
required to make Contributions to the Plan at such times and
in such amounts as specified in Articles III and VI. The
Contributions made (or to be made) to the Plan by the
Participating Companies shall be allocated between and among
such companies in whatever equitable manner or amounts as the
Administrative Committee shall determine.
(e) Withdrawal from Plan. The Administrative Committee may
terminate the designation of a Participating Company,
effective as of any date. A Participating Company may withdraw
from participation in the Plan, with the approval of the
Administrative Committee, by action of its board of directors,
provided such action is communicated in writing to the
Administrative Committee. The withdrawal of a Participating
Company shall be effective as of the last day of the Plan Year
in which the notice of withdrawal is received by the
Administrative Committee (unless the Controlling Company or
Administrative Committee consents to a different effective
date). Any such Participating Company which ceases to be a
Participating Company shall be liable for all costs and
liabilities (whether imposed under the terms of the Plan, the
Code or ERISA) accrued
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(f) through the effective date of its withdrawal or termination.
The withdrawing or terminating Participating Company shall
have no right to direct that assets of the Plan be transferred
to a successor plan for its employees unless such transfer is
approved by the Controlling Company or Administrative
Committee in its sole discretion.
SECTION 14.4 MERGER, CONSOLIDATION AND TRANSFER OF ASSETS OR LIABILITIES.
In the event of any merger or consolidation of the Plan with, or transfer of
assets or liabilities of the Plan to, any other plan, each Participant, Joint
Annuitant and Beneficiary shall have a plan benefit in the surviving or
transferee plan (determined as if such plan were then terminated immediately
after such merger, consolidation or transfer of assets or liabilities) that is
equal to or greater than the benefit he would have been entitled to receive
under the Plan immediately before such merger, consolidation or transfer of
assets or liabilities, if the Plan had terminated at that time.
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ARTICLE XV
TOP-HEAVY PROVISIONS
SECTION 15.1 TOP-HEAVY PLAN YEARS.
The provisions set forth in this Article XV shall become effective for any Plan
Years with respect to which the Plan is determined to be a Top-Heavy Plan and
shall supersede any other provisions of the Plan which are inconsistent with
these provisions; provided, if the Plan is determined not to be a Top-Heavy Plan
in any Plan Year subsequent to a Plan Year in which the Plan was a Top-Heavy
Plan, the provisions of this Article XV shall not apply with respect to such
subsequent Plan Year; and, provided, further, to the extent that any of the
requirements of this Article XV shall no longer be required under Code Section
416 or any other section of the Code, such requirements shall be of no force or
effect.
SECTION 15.2 DETERMINATION OF TOP-HEAVY STATUS.
(a) Application. The Plan will be considered a Top-Heavy Plan for
a Plan Year if either:
(1) the Plan is not part of a Required Aggregation Group
or a Permissive Aggregation Group and, as of the
Determination Date of such Plan Year, the value of
the Accounts of the Participants who are Key
Employees under the Plan exceeds 60 percent of the
value of the Accounts of all Participants; or
(2) the Plan is part of a Required Aggregation Group
which, as of the Determination Date of such Plan
Year, is a Top-Heavy Group;
provided, the Plan shall not be considered a
Top-Heavy Plan for a Plan Year under subsection
(a)(2) hereof if the Plan also is part of a
Permissive Aggregation Group which is not a Top-Heavy
Group for such Plan Year.
(b) Special Definitions.
(1) Determination Date. The term "Determination Date"
shall mean (i) in the case of the Plan Year that
includes the Effective Date of the Plan, the last day
of such Plan Year, and (ii) with respect to any other
Plan Year of the Plan, the last day of the
immediately preceding Plan Year and (iii) for any
plan year of each other qualified plan maintained by
a Participating Company or Affiliate which is part of
a Required or Permissive Aggregation Group, the date
determined under (i) or (ii) above as if the term
"Plan Year" means the plan year for each such other
qualified plan.
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(2) Key Employee. The term "Key Employee" shall mean an
Employee defined in Code Section 416(i) and the
Treasury regulations thereunder. Generally, Key
Employee shall mean an Employee, former Employee or
deceased Employee (and the beneficiaries of any such
Employee) who, at any time during the Plan Year or
the 4 previous Plan Years, was either:
(A) an officer of an Affiliate having a combined
annual Compensation [as defined in Section
1.1(v)(3)] from all Affiliates greater than
50 percent of the amount in effect under
Code Section 415(b)(1)(A) for any such Plan
Year; provided, no less than one nor more
than fifty individuals shall be treated as
officers of an Affiliate;
(B) one of the ten individuals owning [or
considered as owning under Code Section 318,
as modified by Code Section
416(i)(1)(B)(iii)] the largest percentage
ownership interests in value in the
Affiliates (as more fully described in
Treasury Regulation Section 1.416-1, T-19
and T-20) and having a combined annual
Compensation [as defined in Section
1.1(v)(3)] from all Affiliates of more than
the limitation in effect under Code Section
415(c)(1)(A);
(C) a 5-percent owner [or constructive owner
within the meaning of Code Section 318, as
modified by Code Section 416(i)(1)(B)(iii)]
of an Affiliate; or
(D) a 1-percent owner [or constructive owner
within the meaning of Code Section 318, as
modified by Code Section 416(i)(1)(B)(iii)
and the Treasury regulations thereunder] of
an Affiliate having a combined annual
Compensation [as defined in Section
1.1(v)(3)] from all Affiliates of more than
$150,000.
For purposes of subsection (B) hereof, if
two individuals have the same percentage
ownership interest in an Affiliate, the
individual having greater combined annual
Compensation from all Affiliates shall be
treated as having the larger interest. In
determining percentage ownership hereunder,
employers that otherwise would be aggregated
under Code Sections 414(b), (c) and (m)
shall be treated as separate employers.
(3) Non-Key Employee. The term "Non-Key Employee" shall
mean any Employee who is not a Key Employee. For
purposes hereof, former Key Employees shall be
treated as Non-Key Employees.
(4) Permissive Aggregation Group. The term "Permissive
Aggregation Group" shall mean a Required Aggregation
Group and any other qualified plan or plans
maintained or contributed to by an Affiliate which,
when considered with the Required Aggregation Group,
would continue to satisfy the requirements of Code
Sections 401(a)(4) and 410.
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(5) Required Aggregation Group. The term "Required
Aggregation Group" shall mean a group of plans of the
Affiliates consisting of (i) each plan which, for
such Plan Year or any of the 4 preceding Plan Years,
qualifies under Code Section 401(a) and in which a
Key Employee is a participant, and (ii) each other
plan which, during this 5-year period, qualifies
under Code Section 401(a) and which enables any plan
described in clause (i) hereof to satisfy the
requirements of Code Sections 401(a)(4) or 410.
(6) Top-Heavy Group. The term "Top-Heavy Group" shall
mean a Required or Permissive Aggregation Group with
respect to which the sum (determined as of a
Determination Date) of (i) the present value of the
cumulative accrued benefits for Key Employees under
all Defined Benefit Plans included in such group, and
(ii) the aggregate of the accounts of Key Employees
under all Defined Contribution Plans included in such
group, exceeds 60 percent of a similar sum determined
for all Employees.
(c) Special Rules. The following rules shall apply in determining
whether the Plan is a Top-Heavy Plan under subsection (a)(1)
or (a)(2) above:
(1) The value of any account balance under any Defined
Contribution Plan and the value of any accrued
benefit under any Defined Benefit Plan shall be
determined as of the most recent Valuation Date that
falls within, or ends with, the 12-month period
ending on the Determination Date or, if plans are
aggregated, the Determination Dates that fall within
the same calendar year;
(2) The value of the Accounts under the Plan or the
accounts under any other Defined Contribution Plan
included in a Required or Permissive Aggregation
Group for any Determination Date, other than the
Determination Date for the first plan year, shall
include the amounts actually contributed and paid to
the plan on or before the Determination Date, and
shall exclude any amounts to be contributed with
respect to such preceding plan year but not actually
paid to the plan on or before the Determination Date.
The value of the accounts under any Defined
Contribution Plan for the Determination Date of the
first plan year shall include all amounts contributed
to the plan as of the Determination Date, regardless
of whether such amounts shall have been actually paid
or merely accrued as of the Determination Date;
(3) The value of any account balance under any Defined
Contribution Plan and the present value of any
accrued benefit under any Defined Benefit Plan as of
any Determination Date shall be increased by the
aggregate distributions made under the plan during
the 5-year period ending on the Determination Date;
(4) Accrued benefits and accounts of the following
individuals shall not be taken into account for a
Plan Year: (A) any Non-Key Employee who, in a
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prior Plan Year, was a Key Employee or (B) any
Employee who had not performed any services for a
Participating Company at any time during the 5-year
period ending on the Determination Date for such Plan
Year;
(5) The value of any account balance shall not include
deductible employee contributions, as described in
Code Section 72(o)(5)(A);
(6) The extent to which rollovers and plan to plan
transfers are taken into account in determining the
value of any account balance or accrued benefit shall
be determined in accordance with Code Section 416 and
the regulations thereunder; and
(7) Effective for plan years beginning after December 31,
1986, each Non-Key Employee's accrued benefit under
the Plan and any Defined Benefit Plans shall be
determined (A) under the method, if any, that
uniformly applies for accrual purposes under all
Defined Benefit Plans, or (B) if there is no such
method, as if such benefit accrued more rapidly than
the slowest accrual rate permitted under the
fractional accrual rate set forth under
Code Section 411(b)(1)(C).
SECTION 15.3 TOP-HEAVY MINIMUM CONTRIBUTION.
(a) Multiple Defined Contribution Plans. For any Plan Year in
which the Plan is a Top-Heavy Plan, the aggregate Company
Contributions (when added to similar contributions made under
other defined contribution plans) allocated to the Account of
any Active Participant who is a Non-Key Employee shall not be
less than the Defined Contribution Minimum. To the extent that
the Company Contributions are less than the Defined
Contribution Minimum, additional Company Contributions shall
be provided under the Plan.
For purposes hereof, a Non-Key Employee shall not fail to
receive a minimum contribution hereunder for a Plan Year
because (i) such Non-Key Employee fails to complete 1,000
Hours of Service for such Plan Year or (ii) such Non-Key
Employee is excluded from participation (or receives no
allocation) merely because his Compensation is less than a
stated amount or because he failed to make a Deferral Election
for such Plan Year.
(b) Defined Contribution and Benefit Plans. In the event that
Non-Key Employees are covered under both the Plan and one or
more Defined Benefit Plans maintained by an Affiliate, the
minimum contribution level set forth in subsection (a) hereof
shall be satisfied if each such Non-Key Employee receives a
benefit level under such Defined Contribution and Defined
Benefit Plans which is not less than the Defined Benefit
Minimum offset by any benefits provided under the Plan and any
other Defined Contribution Plans maintained by any Affiliate.
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(c) Defined Contribution Minimum. The term "Defined Contribution
Minimum" means, with respect to the Plan, a minimum level of
Company Contributions allocated with respect to a Plan Year to
the Account of each Active Participant who is a Non-Key
Employee; such level being the lesser of:
(1) 3 percent of such Active Participant's Compensation
for such Plan Year; or
(2) if no Defined Benefit Plan of an Affiliate uses the
Plan to satisfy the requirements of Code Sections
401(a)(4) or 410, the highest percentage of
Compensation at which Company Contributions are made,
or are required to be made, under the Plan for such
Plan Year for any Key Employee.
For purposes of this subsection, (i) qualified
nonelective contributions made by the Company in
order to satisfy the anti-discrimination tests of
Code Section 401(k) or Section 401(m) (for example,
Supplemental Contributions) may be treated as Company
Contributions; (ii) Before-Tax and Matching
Contributions shall be taken into account as Company
Contributions for Key Employees; (iii) Matching
Contributions may be treated as Company Contributions
and may be taken into account for satisfying the
Minimum Contribution Requirement for Non-Key
Employees, but only if such Matching Contributions
are not treated as Matching Contributions for
purposes of the ADP Tests or Code Section 401(m) and
instead satisfy the requirements of Code Section
401(a)(4) as Company Contributions; and (iv)
Before-Tax Contributions shall not be taken into
account for satisfying the Minimum Contribution
Requirement for Non-Key Employees.
(d) Defined Benefit Minimum. The term "Defined Benefit Minimum"
means, with respect to a Defined Benefit Plan, a minimum level
of accrued benefit derived from employer contributions with
respect to a plan year for each participant who is a Non-Key
Employee; such level, when expressed as an annual retirement
benefit, being not less than the product of (1) and (2),
where:
(1) equals the Non-Key Employee's average Compensation
for the period of consecutive years (not exceeding 5)
when such Non-Key Employee had the highest aggregate
Compensation from all Affiliates; and
(2) equals the lesser of (A) 2 percent times such Non-Key
Employee's number of years of service or (B) 20
percent.
For purposes of determining the Defined Benefit
Minimum, "years of service" shall not include any
year of service if the plan was not a Top-Heavy Plan
for the plan year ending during such year of service
and shall not include any years of service completed
in a plan year beginning before January 1, 1984.
Compensation in years before January 1, 1984, and
Compensation in years after the close of the last
plan year in which the plan is a Top-Heavy Plan shall
be disregarded. All accruals of
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employer-provided benefits, whether or not
attributable to years for which the Plan is top
heavy, may be used in determining whether the minimum
contribution requirements set forth in this Section
are satisfied.
SECTION 15.4 TOP-HEAVY MINIMUM VESTING.
The vesting schedule in Section 8.1 satisfies the Top-Heavy Plan vesting
requirements.
SECTION 15.5 ADJUSTMENTS IN CODE SECTION 415 LIMITATIONS FOR TOP-HEAVY
PLANS.
(a) Special Adjustment. In the event that, during a Plan Year in
which the Plan is a Top-Heavy Plan, an individual is a
participant in both a Defined Benefit Plan and a Defined
Contribution Plan maintained by an Affiliate, the computation
of the Defined Benefit Plan Fraction and the Defined
Contribution Plan Fraction, as set forth in subsections
6.7(d)(3) and (5) hereof, shall be modified by substituting
"100 percent" for "125 percent" each time it appears in said
subsections; provided, in the event that the requirements set
forth in subsection (b) hereof are satisfied, the
modifications otherwise required by this subsection (a) shall
not be required and shall be of no effect.
(b) Exception. In the event that:
(1) the Plan would not be a Top-Heavy Plan if "90
percent" were substituted for "60 percent" each time
it appears in Section 14.2(a)(1) hereof and in the
definition of Top-Heavy Group in Section 14.2(b)(6);
(2) the Plan would continue to satisfy the requirements
of Section 14.4 hereof if "3 percent" were
substituted for "2 percent" each time it appears in
Section 14.4(d), and if "20 percent", as used in
Section 14.4(d), were increased by one percentage
point (but not by more than 10 percentage points) for
each year for which the plan was taken into account
under this Section 14.6; and
(3) the Plan would continue to satisfy the requirements
of Section 14.4 hereof if "4 percent" were
substituted for "3 percent" each time it is used in
Section 14.4(c);
then, the substitution of "100 percent" for "125
percent" as otherwise required in subsection (a)
hereof, shall not be required or effected.
SECTION 15.6 SPECIAL EFFECTIVE DATE.
The provisions of this Article generally are effective as of the Effective Date,
but to the extent the Code requires an earlier or later effective date with
respect to any portion(s) of this Article, such other effective date shall
apply.
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SECTION 15.7 CONSTRUCTION OF LIMITATIONS AND REQUIREMENTS.
The descriptions of the limitations and requirements set forth in this Article
are intended to serve as statements of the minimum legal requirements necessary
for the Plan to remain qualified under the applicable terms of the Code. The
Participating Companies do not desire or intend, and the terms of this Article
shall not be construed, to impose any more restrictions on the operation of the
Plan than required by law. Therefore, the terms of this Article and any related
terms and definitions in the Plan shall be interpreted and operated in a manner
which imposes the least restrictions on the Plan. For example, if use of a more
liberal definition of "Compensation" is permissible at any time under the law,
then the more liberal provisions may be applied as if such provisions were
included in the Plan.
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<PAGE> 100
ARTICLE XVI
MISCELLANEOUS
SECTION 16.1 NONALIENATION OF BENEFITS AND SPENDTHRIFT CLAUSE.
(a) General Nonalienation Requirements. Except to the extent
permitted by law and as provided in subsections (b) and (c)
hereof, none of the Accounts, benefits, payments, proceeds or
distributions under the Plan shall be subject to the claim of
any creditor of a Participant, Joint Annuitant or Beneficiary
or to any legal process by any creditor of such Participant,
Joint Annuitant or Beneficiary; and such Participant, Joint
Annuitant or Beneficiary shall not have any right to alienate,
commute, anticipate or assign any of the Accounts, benefits,
payments, proceeds or distributions under the Plan except to
the extent expressly provided herein.
(b) Exception for Qualified Domestic Relations Orders.
(1) The nonalienation requirements of subsection (a)
hereof shall apply to the creation, assignment or
recognition of a right to any benefit, payable with
respect to a Participant pursuant to a domestic
relations order, unless such order is (i) determined
to be a qualified domestic relations order, as
defined in Code Section 414(p), entered on or after
January 1, 1985, or (ii) any domestic relations
order, as defined in Code Section 414(p), entered
before January 1, 1985, pursuant to which a
transferor plan was paying benefits on January 1,
1985. The Administrative Committee shall establish
reasonable written procedures to determine the
qualified status of a domestic relations order.
Further, to the extent provided under a qualified
domestic relations order, a former spouse of a
Participant shall be treated as the Spouse or
Surviving Spouse for all purposes under the Plan.
(2) The Administrative Committee shall establish
reasonable procedures to administer distributions
under qualified domestic relations orders which are
submitted to it. The Administrative Committee, to the
extent provided in a qualified domestic relations
order, shall direct the Trustee to pay, in a single
sum payment, the full amount of the benefit payable
to any alternate payee under a qualified domestic
relations order. Such cash-out payment shall be made
as soon as practicable after the end of the month
within which the Administrative Committee determines
that a domestic relations order is a qualified
domestic relations order, or if later, when the terms
of the qualified domestic relations order permit such
a distribution. (See also Section 9.8.) If the terms
of a qualified domestic relations order do not permit
an immediate cash-out payment, the benefits shall be
paid to the alternate payee in accordance with the
terms of such order and the applicable terms of the
Plan.
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(c) Exception for Loans from the Plan. All loans made by the
Trustee to any Participant or Beneficiary shall be secured by
a pledge of the borrower's interest in the Plan.
SECTION 16.2 HEADINGS.
The headings and subheadings in the Plan have been inserted for convenience of
reference only and are to be ignored in any construction of the provisions
hereof.
SECTION 16.3 CONSTRUCTION, CONTROLLING LAW.
In the construction of the Plan, the masculine shall include the feminine and
the feminine the masculine, and the singular shall include the plural and the
plural the singular, in all cases where such meanings would be appropriate.
Unless otherwise specified, any reference to a section shall be interpreted as a
reference to a section of the Plan. The Plan shall be construed in accordance
with the laws of the State of Georgia and applicable federal laws.
SECTION 16.4 NO CONTRACT OF EMPLOYMENT.
Neither the establishment of the Plan, nor any modification thereof, nor the
creation of any fund, trust or account, nor the payment of any benefits shall be
construed as giving any Participant, Employee or any person whomsoever the right
to be retained in the service of any Affiliate, and all Participants and other
Employees shall remain subject to discharge to the same extent as if the Plan
had never been adopted.
SECTION 16.5 LEGALLY INCOMPETENT.
The Administrative Committee may in its discretion direct that payment be made
and the Trustee shall make payment on such direction, directly to an incompetent
or disabled person, whether incompetent or disabled because of minority or
mental or physical disability, or to the guardian of such person or to the
person having legal custody of such person, without further liability with
respect to or in the amount of such payment either on the part of any
Participating Company, the Administrative Committee or the Trustee.
SECTION 16.6 HEIRS, ASSIGNS AND PERSONAL REPRESENTATIVES.
The Plan shall be binding upon the heirs, executors, administrators, successors
and assigns of the parties, including each Participant, Joint Annuitant and
Beneficiary, present and future.
SECTION 16.7 TITLE TO ASSETS, BENEFITS SUPPORTED ONLY BY TRUST FUND.
No Participant, Joint Annuitant or Beneficiary shall have any right to, or
interest in, any assets of the Trust Fund upon termination of his employment or
otherwise, except as provided from time to time under the Plan, and then only to
the extent of the benefits payable under the Plan to such Participant out of the
assets of the Trust Fund. Any person having any claim under the Plan shall
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look solely to the assets of the Trust Fund for satisfaction. The foregoing
sentence notwithstanding, each Participating Company shall indemnify and save
any of its officers, members of its board of directors or agents, and each of
them, harmless from any and all claims, loss, damages, expense and liability
arising from their responsibilities in connection with the Plan and from acts,
omissions and conduct in their official capacity, except to the extent that such
effects and consequences shall result from their own willful misconduct or gross
negligence.
SECTION 16.8 LEGAL ACTION.
In any action or proceeding involving the assets held with respect to the Plan
or Trust Fund or the administration thereof, the Participating Companies, the
Administrative Committee and the Trustee shall be the only necessary parties and
no Participants, Employees, or former Employees of the Company, their Joint
Annuitants and Beneficiaries or any other person having or claiming to have an
interest in the Plan shall be entitled to any notice of process; provided, that
such notice as is required by the Internal Revenue Service and the Department of
Labor to be given in connection with Plan amendments, termination, curtailment
or other activity shall be given in the manner and form and at the time so
required. Any final judgment which is not appealed or appealable that may be
entered in any such action or proceeding shall be binding and conclusive on the
parties hereto, the Administrative Committee and all persons having or claiming
to have an interest in the Plan.
SECTION 16.9 NO DISCRIMINATION.
The Controlling Company, through the Administrative Committee, shall administer
the Plan in a uniform and consistent manner with respect to all Participants,
Joint Annuitants and Beneficiaries and shall not permit discrimination in favor
of officers, stockholders, supervisory or highly compensated Employees.
SECTION 16.10 SEVERABILITY.
If any provisions of the Plan shall be held invalid or unenforceable, such
invalidity or unenforceability shall not affect any other provisions hereof, and
the Plan shall be construed and enforced as if such provisions had not been
included.
SECTION 16.11 EXCLUSIVE BENEFIT; REFUND OF CONTRIBUTIONS.
No part of the Trust Fund shall be used for or diverted to purposes other than
the exclusive benefit of the Participants, Joint Annuitants and Beneficiaries,
subject, however, to the payment of all costs of maintaining and administering
the Plan and Trust. Notwithstanding the foregoing, Contributions to the Trust by
a Participating Company may be refunded to the Participating Company under the
following circumstances and subject to the following limitations:
(a) Permitted Refunds. If and to the extent permitted by the Code
and other applicable laws and regulations thereunder, upon the
Participating Company's request, a Contribution which is (i)
made by a mistake in fact, (ii) conditioned
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upon initial qualification of the Plan with the Plan receiving
an adverse determination even though the application for
determination is submitted to the Internal Revenue Service for
review within the remedial amendment period respecting the
Plan, or (iii) conditioned upon the deductibility of the
Contribution under Code Section 404, shall be returned to the
Participating Company making the Contribution within 1 year
after the payment of the Contribution, the denial of the
qualification, or the disallowance of the deduction (to the
extent disallowed), whichever is applicable.
(b) Payment of Refund. If any refund is paid to a Participating
Company hereunder, such refund shall be made without interest
or other investment gains, shall be reduced by any investment
losses attributable to the refundable amount and shall be
apportioned among the Accounts of the Participants as an
investment loss, except to the extent that the amount of the
refund can be attributed to one or more specific Participants
(for example, as in the case of certain mistakes of fact), in
which case the amount of the refund attributable to each such
Participant's Account shall be debited directly against such
Account.
(c) Limitation on Refund. No refund shall be made to a
Participating Company if such refund would cause the balance
in a Participant's Account to be less than the balance would
have been had the refunded contribution not been made.
SECTION 16.12 SPECIAL EFFECTIVE DATES.
(a) Intent of Plan. The Plan, as amended and restated, is
generally is effective as of January 1, 1998. The Plan is
intended to comply with all current laws and regulations.
(b) Effective Dates. To the extent any law changes have requisite
effective dates prior to January 1, 1998, the effective date
of the Plan provisions shall be deemed to be effective as of
such requisite effective dates solely for the purpose of
satisfying such legal and regulatory requirements.
SECTION 16.13 PREDECESSOR SERVICE.
In the event a Participating Company maintains the Plan as successor to a
predecessor employer who maintained the Plan, service for the predecessor
employer shall be treated as service for the Participating Company.
SECTION 16.14 PLAN EXPENSES.
As permitted under the Code and ERISA, expenses incurred with respect to
administering the Plan and Trust shall be paid by the Trustee from the Trust
Fund to the extent such costs are not paid by the Participating Companies or to
the extent the Controlling Company requests that the Trustee reimburse it for
its payment of such expenses. Upon request, the Trustee shall reimburse the
Controlling Company for its salary and other labor costs related to the Plan to
the extent that such costs constitute proper Plan expenses.
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<PAGE> 104
IN WITNESS WHEREOF, the Controlling Company has caused the
Plan to be executed by its duly authorized officers as of the date first above
written.
BRISTOL HOTEL MANAGEMENT CORPORATION
By:
-----------------------------------
Title:
--------------------------------
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<PAGE> 105
BRISTOL HOTEL MANAGEMENT CORPORATION 401(k) PLAN
SCHEDULE A
PARTICIPATING COMPANIES AND EFFECTIVE DATES
<TABLE>
<CAPTION>
Name Effective Date
- ---- --------------
<S> <C>
Bristol Hotel Management Corporation January 1, 1998
</TABLE>
A
<PAGE> 106
HOLIDAY INNS, INC. SAVINGS AND RETIREMENT PLAN
SCHEDULE B
PREDECESSOR EMPLOYER SERVICE CREDITED
<TABLE>
<CAPTION>
NAME SERVICE
---- -------
<S> <C>
Union Square Holiday Inn Select All periods of service prior to April 28, 1997.
Craigshire Hotel Company, LP. All periods of service prior to October 1, 1997.
Allen & O'Hara All periods of service prior to December 4, 1997.
Omaha Hotel Incorporated All periods of service prior to April 30, 1998.
Leominster Massachusetts All periods of service prior to April 21, 1998.
Meadowlands Hilton All periods of service prior to April 30, 1998.
Hampton Inn Las Vegas All periods of service prior to May 20, 1998.
</TABLE>
B
<PAGE> 107
HOLIDAY INNS, INC. SAVINGS AND RETIREMENT PLAN
SCHEDULE C
SAME DESK PARTICIPANTS
C
<PAGE> 108
EXHIBIT 99.1
FIRST AMENDMENT TO
THE BRISTOL HOTEL MANAGEMENT CORPORATION
401(k) PLAN
WHEREAS, effective as of 12 midnight on the 1st day of January, 1998,
Bristol Hotel Management Corporation (the "Controlling Company") merged the
Bristol Hotel Management Corporation Profit Sharing Plan (the "Plan") and the
Bristol Hotel Management Corporation Profit Sharing Plan for Former Employees of
Holiday Inn, amended and restated the Plan and renamed the merged plan as the
Bristol Hotel Management Corporation 401(k) Plan (the "Plan"); and
WHEREAS, the Employer now desires to make additional changes to the
Plan as a result of the spin-off and merger of Bristol Hotel Company with FelCor
Suite Hotels, Inc. by adopting this First Amendment to the Plan to be effective
July 27, 1998.
NOW THEREFORE, the Plan is hereby amended effective July 27, 1998 as
follows:
ARTICLE I, SECTION 1.1(r) is amended in its entirety to read
as follows:
(r) Bristol Stock shall mean common stock of Bristol Hotels and Resorts,
Inc.
ARTICLE VII, SECTION 7.2(B) is amended in its entirety to read
as follows:
(b) Other Investment Funds.
(1) At the proper direction of the Controlling Company or the
Administrative Committee, the Trustee shall establish other
Investment Funds (or modify the investment mix of the
Investment Funds), in addition to or in lieu of the Investment
Funds described herein, which may include, for example, other
fixed income funds or, equity funds, bond funds, balanced
funds, money market funds and international equity funds, any
of which may be held directly or indirectly through any mutual
fund, collective investment trust or other vehicle. Such other
Investment Funds shall be established without necessity of
amendment to the Plan and shall have the investment objectives
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prescribed by the Controlling Company or the Administrative
Committee and to which the Trustee consents. Such other
Investment Funds also may be established and maintained for
any limited purpose(s) the Controlling Company or the
Administrative Committee may properly direct (for example, for
the investment of certain specified Accounts transferred from
a prior plan).
(2) The Plan received certain shares of stock of FelCor Suite
Hotels, Inc. ("FelCor") in connection with the spin-off and
merger of Bristol Hotel Company with FelCor. In connection
with these transactions, the Plan received,1/2share of stock
of Bristol Hotel and Resorts, Inc. and .685 share of stock of
FelCor ("FelCor Stock") in exchange for each share of Bristol
Hotel Company stock owned by the Plan. The FelCor Stock has
been segregated into a separate investment fund to be known as
the FelCor Stock Fund and notwithstanding anything to the
contrary in this Plan, the following provisions shall apply
with regard to such fund. A Participant may elect, at any time
on or before June 30, 1999, in accordance with the provisions
of Section 7.3, to transfer all of the Participant's existing
Account that is invested in the FelCor Stock Fund to another
Investment Fund available under the Plan (no partial transfers
shall be permitted). Notwithstanding anything to the contrary
contained in this Article VII or elsewhere in the Plan, in no
event may a Participant elect to transfer any portion of his
existing Account or future Contributions to the FelCor Stock
Fund. As of June 30, 1999, Participants shall be required to
elect to transfer any portion of their Account remaining in
the FelCor Stock Fund to another Investment Fund available
under the Plan. If a Participant with any amount of the
Participant's Account invested in the FelCor Stock Fund fails
to redirect all or any part of such amount as of June 30,
1999, the remaining portion of a Participant's Account
invested in the FelCor Stock Fund shall automatically be
reinvested in accordance with the Participant's then current
investment directions for future Contributions. As soon as
practicable after June 30, 1999, the FelCor Stock Fund shall
be liquidated and on or after July 1, 1999, the FelCor Stock
Fund shall not be available for investments under the Plan.
ARTICLE VII, SECTION 7.3(d) is amended in its entirety to read
as follows:
(d) Restrictions on Certain Investments. Each Participant, Joint
Annuitant or Beneficiary shall be subject to any restrictions
or limitations imposed by the Investment Fund in which his
Accounts are invested. Furthermore, a Participant may not
direct the investment of more than 30 percent of the
Participant's existing account balance or future Contributions
into the Bristol Stock Fund. Prior to January 1, 1998, the
maximum percentage was 50 percent and Participants who, prior
to January 1, 1998, had elected a percentage higher than 30
percent but not higher than 50 percent may continue to have
such higher percentage of the Participant's existing Account
Balance and future Contributions invested in the Bristol Stock
Fund. Provided further that any
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<PAGE> 110
Participant who had more than 30% of the Participant's Account
Balance invested in the Bristol Stock Fund on July 27, 1998,
and whose percentage in the Bristol Stock Fund dropped below
30% as a result of the spin-off and merger of Bristol Hotel
Company and FelCor Suite Hotels, Inc. may elect to make
additional investments in the Bristol Stock Fund to increase
the percentage of the Participant's Account invested in such
fund to the same percentage as was invested in such fund
immediately prior to the restructuring and merger of Bristol
Hotel Company with FelCor Suite Hotels, Inc.
ARTICLE VII is amended by the addition of a new Section 7.9 to
read as follows:
SECTION 7.9 FELCOR STOCK
(a) Holding of FelCor Stock by Trustee. The Trustee is authorized
to hold shares of FelCor Stock received in connection with the
spin-off and merger of Bristol Hotel Company and FelCor until
July 1, 1999; provided, however, that the Trustee shall sell
shares of FelCor Stock prior to July 1, 1999 as necessary to
carry out Participants' elections to transfer the portion of
their existing Account Balance invested in the FelCor Stock
Fund to another Investment Fund. As soon as practicable on or
after July 1, 1999, the Trustee shall sell all remaining
shares of FelCor Stock and reinvest the proceeds in accordance
with Participant elections (or in the absence of a proper
election, in accordance with Section 7.2(b)(2)) and
thereafter, no FelCor stock shall be held in the Plan.
(b) Restriction on FelCor Stock Acquisition. Notwithstanding any
other provisions hereof, it is specifically provided that the
Trustee shall not purchase additional shares of FelCor Stock.
(c) Stock Rights, Stock Splits and Stock Dividends. No Participant
or Beneficiary shall have any right of request, direction or
demand upon the Committee or the Trustee to exercise in his
behalf rights or privileges to acquire, convert into, or
exchange for FelCor Stock or other securities. The Trustee, in
its discretion, may exercise or sell any such rights or
privileges. Each affected Participant's Accounts shall be
appropriately credited. FelCor Stock received by the Trustee
by reason of a stock split, stock dividend or recapitalization
shall be appropriately allocated to the Accounts of the
affected Participant or Beneficiary.
(d) Voting of FelCor Stock. Unless otherwise provided under ERISA
and consistent with the Trust Agreement, at each annual
meeting and special meeting of the stockholders of FelCor, the
Trustee shall vote all shares of FelCor Stock except to the
extent the Administrative Committee determines it appropriate
to appoint an independent fiduciary solely for the purpose of
voting such stock in connection with a particular corporate or
plan transaction.
END OF AMENDMENT
3
<PAGE> 111
SIGNATURES
IN WITNESS WHEREOF, the Controlling Company has caused this First
Amendment to the Bristol Hotel Management Corporation 401(k) Plan, to be
executed effective as of July 27, 1998.
BRISTOL HOTEL MANAGEMENT CORPORATION
The "Controlling Company"
By:
----------------------------
Title:
-------------------------
4
<PAGE> 112
EXHIBIT 99.1
SECOND AMENDMENT TO
THE BRISTOL HOTEL MANAGEMENT CORPORATION
401(k) PLAN
WHEREAS, effective as of 12 midnight on the 1st day of January, 1998,
Bristol Hotel Management Corporation (the "Controlling Company"), merged the
Bristol Hotel Management Corporation Profit Sharing Plan and the Bristol Hotel
Management Corporation Profit Sharing Plan for Former Employees of Holiday Inn,
amended and restated the Plan and renamed the merged plan as the Bristol Hotel
Management Corporation 401(k) Plan (the "Plan"); and
WHEREAS, the Controlling Company adopted Amendment No. One to the Plan
as amended and restated, effective July 27, 1998.
WHEREAS, the Controlling Company now desires to make additional changes
to the Plan by adopting this Second Amendment to the Plan effective January 1,
1999, which amendment was made subject to IRS approval which has now been
obtained.
NOW THEREFORE, the Plan is hereby amended effective January 1, 1999 as
follows:
ARTICLE XI, SECTION 11.3 is amended in its entirety to read as
follows:
SECTION 11.3 WITHDRAWALS BEFORE AGE 59-1/2 NOT ON ACCOUNT OF
HARDSHIP.
(a) Additional Withdrawal Rights of Former Employees of Holiday Inn. A
participant who had an Account under the Bristol Hotel Management
Corporation Profit Sharing Plan for Former Employees of Holiday Inn
shall have the following additional withdrawal right:
(1) A Participant, who has not attained age 59-1/2 and who is an
employee of an Affiliate, may request, not on account of a
hardship, a withdrawal of all or part of his vested Account
attributable to contributions made prior to January 1, 1998,
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<PAGE> 113
other than any amounts attributable to Before-Tax
Contributions or recharacterized excess contributions, and his
Prior Pension Plan Account.
(2) No Matching Contribution amount may be withdrawn unless the
Participant has been participating in the Plan (including the
period of participation in the Holiday Inn Plan) for at least
sixty (60) months prior to the month of withdrawal or unless
the amounts being withdrawn have been held by the Trust Fund
for at least twenty-four (24) months.
(b) Additional Withdrawal Rights of Certain Former Craigshire Employees. A
former employee of Craigshire Hotel Company, L.P. who became an
Employee of the Controlling Company in connection with the acquisition
of the Holiday Inn St. Louis Westport Hotel on October 1, 1997 and
whose Account Balance consists solely of a Transfer Account containing
forfeitures allocated under the Craigshire Hotel Company, L.P. 401(k)
Plan (plus earnings and losses allocated to such Transfer Account) may
elect to withdraw his entire Account Balance at any time.
END OF AMENDMENT
2
<PAGE> 114
SIGNATURES
IN WITNESS WHEREOF, the Employer has caused this Second Amendment to
the Bristol Hotel Management Corporation 401(k) Plan, to be executed as of the
______ day of ___________, 1999.
BRISTOL HOTEL MANAGEMENT CORPORATION
The "Employer"
By:
------------------------------
Title:
---------------------------
3
<PAGE> 115
EXHIBIT 99.1
THIRD AMENDMENT TO
THE BRISTOL HOTEL MANAGEMENT CORPORATION
401(k) PLAN
WHEREAS, effective as of 12 midnight on the 1st day of January, 1998,
Bristol Hotel Management Corporation (the "Employer") merged the Bristol Hotel
Management Corporation Profit Sharing Plan (the "Plan") and the Bristol Hotel
Management Corporation Profit Sharing Plan for Former Employees of Holiday Inn,
amended and restated the Plan and renamed the merged plan as the Bristol Hotel
Management Corporation 401(k) Plan (the "Plan");
WHEREAS, the Employer made additional changes to the Plan as a result
of the spin-off and merger of Bristol Hotel Company with FelCor Suite Hotels,
Inc. by adopting the First Amendment to the Plan to be effective July 27, 1998;
and
WHEREAS, the Employer proposed additional changes to the Plan by the
Proposed Second Amendment which was subject to IRS approval; and
WHEREAS, the IRS has requested certain additional changes to the Plan
as a condition of issuing a favorable determination letter; and
WHEREAS, the Employer now desires to make the changes requested by the
IRS and also to make certain other clarifying changes, including minor changes
to certain of the provisions adopted in the First Amendment, by adopting this
Third Amendment to the Plan.
NOW THEREFORE, the Plan is hereby further amended as follows:
ARTICLE I, SECTIONS 1.1(b) AND (f) are amended in their entirety,
effective January 1, 1998, to read as follows:
(b) ACP or Average Contribution Percentage shall mean, with respect to a
specified group of Participants for a Plan Year, the average of the
ratios (calculated separately for each
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Participant in such group and rounded to the nearest 1/100th of a
percent) of (i) the total of the amount of Matching Contributions and
Discretionary Matching Contributions and, to the extent designated by
the Administrative Committee and permissible under Code Section 401(a)
and 401(m) and applicable guidance thereunder, the Before-Tax and/or
Supplemental Contributions (excluding Before-Tax and Supplemental
Contributions counted for purposes of Section 6.3 and any Contributions
returned to a Participant or otherwise removed from his Account to
correct excess Annual Additions) actually paid to the Trustee on behalf
of each such Participant for a specified Plan Year, to (ii) such
Participant's Compensation for such specified Plan Year. The ACP for
the Highly Compensated Employee group shall be determined for the
current year and the ACP for the Non-Highly Compensated Employee group
shall be determined for the prior plan year. If a Highly Compensated
Employee participates in the Plan and one or more other plans of any
Affiliates to which matching contributions are made (other than a plan
for which aggregation with the Plan is not permitted), the matching
contributions made with respect to such Highly Compensated Employee
shall be aggregated for purposes of determining his ACP. The ACP shall
be rounded to the nearest 1/100th of a percent and shall be calculated
in a manner consistent with the terms of Code Section 401(m) and the
regulations promulgated thereunder. If a Participant is eligible to
participate in the Plan for all or a portion of a Plan Year by reason
of satisfying the eligibility requirements of Article II, but makes no
Before-Tax Contributions which are taken into account (as described
above) for purposes of calculating his ACP, and if he receives no
allocations of Matching Contributions, Discretionary Matching
Contributions or Supplemental Contributions which are taken into
account (as described above) for purposes of calculating his ACP, such
Participant's ACP for such Plan Year shall be zero. Notwithstanding
anything to the contrary contained herein, for purposes of determining
the ACP for the first Plan Year for the Active Participants who are not
Highly Compensated Employees, rules similar to the rules of Code
Section 401(k)(3)(E) shall apply (see Section 1.1 (f) of this Plan).
(f) ADP or Actual Deferral Percentage shall mean, with respect to a
specified group of Participants for a Plan Year, the average of the
ratios (calculated separately for each Participant in such group and
rounded to the nearest 1/100th of a percent) of (i) the total of the
amount of Before-Tax Contributions (excluding Before-Tax Contributions,
if any, designated by the Administrative Committee to be taken into
account under Section 6.4(c)(1) to help satisfy the ACP Tests, or
returned to a Participant to correct excess Annual Additions) and, to
the extent designated by the Administrative Committee and permissible
under Code Sections 401(a) and 401(k) and applicable guidance
thereunder, the Supplemental Contributions [excluding Supplemental
Contributions counted for purposes of Section 6.4(c)] actually paid to
the Trustee on behalf of each such Participant for a specified Plan
Year, to (ii) such Participant's Compensation for such specified Plan
Year. The ADP for the Highly Compensated Employee group shall be
determined for the
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current Plan Year and the ADP for the Non-Highly Compensated Employee
group shall be determined for the prior Plan Year. If a Highly
Compensated Employee participates in the Plan and one or more other
plans of any Affiliates to which before-tax contributions are made
(other than a plan for which aggregation with the Plan is not
permitted), the before-tax contributions made with respect to such
Highly Compensated Employee shall be aggregated for purposes of
determining his ADP. The ADP shall be rounded to the nearest 1/100th of
a percent and shall be calculated in a manner consistent with the terms
of Code Section 401(k) and the regulations promulgated thereunder. If a
Participant is eligible to participate in the Plan for all or a portion
of a Plan Year by reason of satisfying the eligibility requirements of
Article II but makes no Before-Tax Contributions and receives no
allocation of Supplemental Contributions, which the Administrative
Committee takes into account for purposes of the ADP Tests, such
Participant's ADP for such Plan Year shall be zero percent.
Notwithstanding anything herein to the contrary, if the Plan is
determined not to be "successor plan" within the meaning of Code
Section 401(k)(3)(E), in the case of the first Plan Year, the amount
taken into account as the ADP for the Active Participants who are not
Highly Compensated Employees for the proceeding Plan Year shall be: (i)
3 percent or (ii) if the Controlling Company makes an election under
Code Section 401(k)(3)(E)(ii), the ADP for the Active Participants who
are not Highly Compensated Employees determined for such first Plan
Year.
ARTICLE VI, SECTIONS 6.3(c) is amended in its entirety,
effective January 1, 1998, to read as follows:
(c) Adjustments to Actual Deferral Percentages. In the event that the
initial allocation of the Before-Tax Contributions for a Plan Year does
not satisfy one of the ADP Tests, the Administrative Committee shall
cause the Before-Tax Contributions for such Plan Year to be adjusted in
accordance with one or a combination of the following options:
(1) To the extent permissible under Code Sections 401(a) and
401(k) and applicable guidance thereunder, the Administrative
Committee may cause the Participating Companies to make, with
respect to such Plan Year, Supplemental Contributions on
behalf of, and allocable to, the Eligible Participants
described in Section 5.3 with respect to such Plan Year. Such
Supplemental Contributions shall be allocated among such
Eligible Participants pursuant to one of the methods described
in Section 5.3 as directed by the Administrative Committee.
(2) By the last day of the Plan Year following the Plan Year in
which the annual allocation failed both of the ADP Tests, the
Administrative Committee may direct the Trustee to reduce the
Before-Tax Contributions taken into account with respect to
Highly Compensated Employees under such failed ADP Tests by an
amount necessary to satisfy one of the ADP Tests in accordance
with
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Section 6.3(c)(2)(A). Any amount by which Before-Tax
Contributions are so reduced (plus any earnings attributable
thereto for the Plan Year during which such contributions were
made, calculated in accordance with Code Section 401(k) and
applicable guidance thereunder) shall be distributed to the
Highly Compensated Employees in accordance with Section
6.3(c)(2)(B). The amount of Before-Tax Contributions that are
to be distributed under this section shall first be reduced by
the amount of excess Elective Deferrals distributed for such
Plan Year pursuant to Section 6.2. The dollar amount of the
required reduction in Before-Tax Contributions ("Excess
Contributions") and the refund of the Excess Contributions
shall be determined in accordance with the following
procedures:
(A) First, the Before-Tax Contributions of the Highly
Compensated Employee(s) with the highest ADP for such
Plan Year shall be reduced by the lesser of (i) the
entire dollar amount necessary to satisfy one of the
ADP Tests, or (ii) that part of the dollar amount
necessary to satisfy one of the ADP Tests as shall
cause the ADP of each such Highly Compensated
Employee to equal the ADP of each of the Highly
Compensated Employees with the next highest ADP for
such Plan Year.
Substantially identical steps shall be followed for
making further reductions in the ADP of each of the
Highly Compensated Employees with the next highest
ADP for such Plan Year (including the ADP of the
Highly Compensated Employees whose ADP was reduced in
the preceding step(s)) until one of the ADP Tests has
been satisfied. This determines the total dollar
amount of the Excess Contributions.
(B) The amount of Excess Contributions to be distributed
to each Highly Compensated Employee is determined as
follows. First, the Before-Tax Contribution of the
Highly Compensated Employee with the highest dollar
amount of Before-Tax Contributions are reduced by the
lesser of (i) the amount required to cause that
Highly Compensated Employee's Before-Tax
Contributions to equal the dollar amount of the
Before-Tax Contributions of the Highly Compensated
Employee with the next highest dollar amount of
Before-Tax Contributions, or (ii) that dollar amount
which equals the total of the Excess Contributions.
Substantially identical steps shall be followed for
making further reductions in the Before-Tax
Contributions of each of the Highly Compensated
Employees with the next highest dollar amount of
Before-Tax Contributions (including the Before-Tax
Contributions of the Highly Compensated Employees
whose Before-Tax Contributions
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<PAGE> 119
were reduced in the preceding step(s)) until the
total amount of the Excess Contributions has been
reduced. The amount by which each affected Highly
Compensated Employee's Before-Tax Contributions have
been reduced will be distributed to the Highly
Compensated Employee (plus any earnings for the Plan
Year during which such contributions were made,
calculated in accordance with Code Section 401(k) and
applicable guidance).
In addition, to the extent that a Highly Compensated
Employee's Before-Tax Contributions are distributed
pursuant to this section, any Matching or
Discretionary Matching Contributions made on behalf
of a Highly Compensated Employee which are
attributable to the distributed Before-Tax
Contributions shall be forfeited. If the distribution
of Excess Contributions is made as provided above,
the test provided in Code Section 401(k)(3) shall be
deemed to be met regardless of whether the test
provided in Section 6.3(a), if recalculated after
distribution of the Excess Contributions, would
satisfy Code Section 401(k)(3). For purposes of Code
Section 401(m)(9), if a corrective distribution of
Excess Contributions has been made, the Actual
Deferral Percentage for Highly Compensated Employees
is deemed to be the largest amount permitted under
Code Section 401(k)(3).
ARTICLE VI, SECTIONS 6.4(c) is amended in its entirety,
effective January 1, 1998, to read as follows:
(c) Adjustments to Average Contribution Percentages. In the event that the
allocation of the Before-Tax, Matching and Discretionary Matching for a
Plan Year, after the application of subsections (a) and (b) hereof,
does not satisfy one of the ACP Tests, the Administrative Committee
shall cause such Before-Tax, Matching and/or Discretionary Matching for
the Plan Year to be adjusted in accordance with one or a combination of
the following options:
(1) To the extent permissible under Code Sections 401(a) and
401(k) and applicable guidance thereunder, the Administrative
Committee may cause the Participating Companies to make, with
respect to such Plan Year, Supplemental Contributions on
behalf of, and specifically allocable to, the Eligible
Participants described in Section 5.3 with respect to such
Plan Year. Such Supplemental Contributions shall be allocated
among the affected Eligible Participants pursuant to the
methods described in Section 5.3. Alternatively or in
addition, the Administrative Committee may add a portion of
the Before-Tax Contributions, that are made for the Plan Year
by the Participants who are not Highly Compensated Employees
and that are not needed for the Plan to satisfy the ADP Tests
for the Plan Year, to the
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<PAGE> 120
Matching Contributions and/or Discretionary Matching
Contributions for such Participants to increase the ACP for
such Participants.
(2) By the last day of the Plan Year following the Plan Year in
which the annual allocation failed both of the ACP Tests, the
Administrative Committee may direct the Trustee to reduce the
Matching Contributions and/or Discretionary Matching
Contributions taken into account with respect to Highly
Compensated Employees under such failed ACP Tests by an amount
necessary to satisfy one of the ACP Tests in accordance with
Section 6.4(c)(2)(A). The amount by which Matching
Contributions and/or Discretionary Matching Contributions are
to be reduced (plus any earnings attributable thereto for the
Plan Year during which such contributions were made,
calculated in accordance with Code Section 401(m) and
applicable guidance thereunder) shall be forfeited; provided,
if the Matching Contributions and Discretionary Matching
Contributions to be reduced are vested and therefore may not
be forfeited, those Matching Contributions and/or
Discretionary Matching Contributions (plus any earnings
attributable thereto for the Plan Year during which such
contributions were made, calculated in accordance with Code
Section 401(m) and applicable guidance thereunder) shall be
distributed to the Highly Compensated Employees, all as
determined in accordance with Section 6.4(c)(2)(B). The dollar
amount of the reduction in Matching Contributions and
Discretionary Matching Contributions ("Excess Aggregate
Contributions") and the forfeiture or distribution of the
Excess Aggregate Contributions shall be determined in
accordance with the following procedures:
(A) First, the Matching Contributions and Discretionary
Matching Contributions of the Highly Compensated
Employee(s) with the highest ACP for such Plan Year
shall be reduced by the lesser of (i) the entire
dollar amount necessary to satisfy one of the ACP
Tests, or (ii) that part of the dollar amount
necessary to satisfy one of the ACP Tests as shall
cause the ACP of each such Highly Compensated
Employee to equal the ACP of each of the Highly
Compensated Employees with the next highest ACP for
such Plan Year.
The Administrative Committee shall follow
substantially identical steps for making further
reductions in the ACP of each of the Highly
Compensated Employees with the next highest ACP for
such Plan Year (including the ACP of the Highly
Compensated Employees whose ACP was reduced in the
preceding step(s)) until one of the ACP Tests has
been satisfied. This determines the total dollar
amount of the Excess Aggregate Contribution.
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<PAGE> 121
(B) The amount of Excess Aggregate Contributions to be
forfeited and/or distributed to each Highly
Compensated Employee is determined as follows. First,
the Matching and Discretionary Matching Contributions
of the Highly Compensated Employee with the highest
dollar amount of Matching and Discretionary Matching
Contributions are reduced by the lesser of (i) the
dollar amount required to cause that Highly
Compensated Employee's Matching and Discretionary
Matching Contributions to equal the dollar amount of
the Matching and Discretionary Matching Contributions
of the Highly Compensated Employee with the next
highest dollar amount of Matching and Discretionary
Matching Contributions, or (ii) that dollar amount
which equals the total of the Excess Aggregate
Contributions.
Substantially identical steps shall be followed for
making further reductions in the Matching and
Discretionary Matching Contributions of each of the
Highly Compensated Employees with the next highest
dollar amount of Matching and Discretionary Matching
Contributions (including the Matching and
Discretionary Matching Contributions of the Highly
Compensated Employees whose Matching and
Discretionary Matching Contributions were reduced in
the preceding step(s)) until the total amount of the
Excess Aggregate Contributions have been reduced. The
amount by which each affected Highly Compensated
Employee's Matching and Discretionary Matching
Contributions has been reduced will be forfeited
and/or distributed to the Highly Compensated Employee
(plus any earnings for the Plan Year during which
such contributions were made, calculated in
accordance with Code Section 401(m) and applicable
guidance).
In no case shall the amount of Excess Aggregate
Contributions to be forfeited and/or distributed with
respect to any Highly Compensated Employee exceed the
amount of Matching and Discretionary Matching
Contributions made on behalf of such Highly
Compensated Employee for such Plan Year. If the
distribution of Excess Aggregate Contributions is
made as provided above, the test provided in Code
Section 401(m)(2) shall be deemed to be met
regardless of whether the test provided in Section
6.4(a), if recalculated after distribution of the
Excess Aggregate Contributions, would satisfy Code
Section 401(m)(2). For purposes of Code Section
401(m)(9), if a corrective distribution of Excess
Aggregate Contributions has been made, the Actual
Contribution Percentage for Highly Compensated
Employees is deemed to be the largest amount
permitted under Code Section 401(m)(2).
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<PAGE> 122
ARTICLE VII, SECTION 7.2(b)(2) is amended in its entirety,
effective July 27, 1998, to read as follows:
(2) The Plan received certain shares of stock of FelCor Suite
Hotels, Inc. ("FelCor") in connection with the spin-off and
merger of Bristol Hotel Company with FelCor. In connection
with these transactions, the Plan received, 1/2 share of stock
of Bristol Hotel and Resorts, Inc. and .685 share of stock of
FelCor ("FelCor Stock") in exchange for each share of Bristol
Hotel Company stock owned by the Plan. The FelCor Stock has
been segregated into a separate investment fund to be known as
the FelCor Stock Fund and notwithstanding anything to the
contrary in this Plan, the following provisions shall apply
with regard to such fund. A Participant may elect, at any time
on or before September 30, 1999, in accordance with the
provisions of Section 7.3, to transfer all of the
Participant's existing Account that is invested in the FelCor
Stock Fund to another Investment Fund available under the Plan
(no partial transfers shall be permitted). Notwithstanding
anything to the contrary contained in this Article VII or
elsewhere in the Plan, in no event may a Participant elect to
transfer any portion of his existing Account or future
Contributions to the FelCor Stock Fund. As of September 30,
1999, Participants shall be required to elect to transfer any
portion of their Account remaining in the FelCor Stock Fund to
another Investment Fund available under the Plan. If a
Participant with any amount of the Participant's Account
invested in the FelCor Stock Fund fails to redirect all or any
part of such amount as of September 30, 1999, the remaining
portion of a Participant's Account invested in the FelCor
Stock Fund shall automatically be reinvested in accordance
with the Participant's then current investment directions for
future Contributions. As soon as practicable after September
30, 1999, the FelCor Stock Fund shall be liquidated and on or
after October 1, 1999, the FelCor Stock Fund shall not be
available for investments under the Plan.
ARTICLE VII, SECTION 7.9(a) is amended in its entirety,
effective July 27, 1998, to read as follows:
(a) Holding of FelCor Stock by Trustee. The Trustee is authorized to hold
shares of FelCor Stock received in connection with the spin-off and
merger of Bristol Hotel Company and FelCor until October 1, 1999;
provided, however, that the Trustee shall sell shares of FelCor Stock
prior to October 1, 1999 as necessary to carry out Participants'
elections to transfer the portion of their existing Account Balance
invested in the FelCor Stock Fund to another Investment Fund. As soon
as practicable on or after October 1, 1999, the Trustee shall sell all
remaining shares of FelCor Stock and reinvest the proceeds in
accordance with Participant elections (or in the absence of a proper
election, in accordance with Section 7.2(b)(2)) and thereafter, no
FelCor stock shall be held in the Plan.
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<PAGE> 123
ARTICLE IX, SECTION 9.1(b)(4) is hereby amended in its
entirety, effective January 1, 1998, to read as follows:
(4) Notwithstanding anything in the Plan to the contrary, the
Participant's benefit payments shall be made (or commence) no
later than the April 1 following the calendar year in which
the Participant attains age 70 1/2 or if later, the calendar
year in which the Participant actually separates from service
with all Affiliates. Notwithstanding the foregoing, the
Participant may elect to have the Plan commence distributions
to the Participant as of the April 1 following the calendar
year in which the Participant attains age 70 1/2; if the
Participant does not so elect, the Participant shall be deemed
to have elected to defer payment commencement until the April
1 following the calendar year in which the Participant
actually separates from service with all Affiliates. Provided
further that notwithstanding the foregoing, with respect to
(i) the Prior Pension Plan Account of any Participant and (ii)
the total Account of any 5% owner (within the meaning of Code
Section 416(i)(1)), payments shall commence no later than the
April 1 following the calendar year in which the Participant
attains age 70 1/2 without regard to whether he has actually
separated from service with all Affiliates prior to such date.
All distributions will be made in accordance with Code Section
401(a)(9), the regulations promulgated under Code Section
401(a)(9), including Treasury Regulation Section 1.401(a)(9)-2
(relating to incidental benefit limitations) and any other
provisions reflecting the requirements of Code Section
401(a)(9) and prescribed by the Internal Revenue Service; and
the terms of the Plan reflecting the requirements of Code
Section 401(a)(9) override the distribution options (if any)
in the Plan which are inconsistent with those requirements.
ARTICLE IX is hereby further amended effective January 1,
1998, by the addition of the following new SECTION 9.1(e):
(e) Same Desk Rule. Notwithstanding anything to the contrary contained in
this Plan, in no event shall a distribution be made to a Participant
under this Article IX on account of termination of employment if the
Participant has not had a "separation from service" within the meaning
of Code Section 401(k) and IRS guidance thereunder. A Participant who
ceases to be an Employee of Bristol due to a sale, merger or similar
corporate event affecting an owned or leased property, a takeover of a
managed property by another manager, or other similar change in
employer, but who continues to work at the same property and in the
same or substantially the same job for a different employer shall be
deemed not to have had a "separation from service." Distribution from
the Plan to a Participant affected by this provision shall be made only
when the Participant ceases to work at the same property and in the
same or substantially the same job. A Participant
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<PAGE> 124
affected by this provision will continue to be treated as a Participant
in the Plan until he receives a distribution, however, no additional
contributions will be made for the Participant, the Participant's
Account will continue to be credited with earnings (and losses, if any)
in accordance with the Participant's investment elections and the
Participant can make changes to investment directions in the same
manner as an active Participant. The Participant will also remain
eligible to take a withdrawal in the event of a hardship as permitted
under the Plan. The Participant can also continue to make repayments on
existing outstanding loans so long as the loan is not in default but
will not be permitted to take new loans from the Plan. This section is
intended to ensure that the Plan complies with the IRS' "same desk"
rule and the Administrative Committee, in its sole discretion, shall
interpret and apply this provision to ensure that the Plan remains in
compliance with such rule.
ARTICLE IX, SECTION 9.7 is hereby amended in its entirety,
effective January 1, 1999, to read as follows:
In the event a Participant, Beneficiary or Joint Annuitant becomes entitled to
benefits under the Plan and the Administrative Committee is unable to locate
such Participant, Beneficiary or Joint Annuitant (after such diligent efforts as
the Administrative Committee in its sole discretion deems appropriate) within
six (6) months from the date upon which he becomes so entitled, the full Account
of the Participant shall be deemed abandoned and shall be used to reduce the
Participating Companies' obligations to make Matching or Supplemental
Contributions as the Administrative Committee in its sole discretion may direct;
provided, in the event such Participant, Joint Annuitant or Beneficiary is
located and makes a claim prior to the termination and final liquidation of the
Plan, the amount of the abandoned Account (unadjusted for any investment gains
or losses from the time of abandonment) shall be restored (from abandoned
Accounts, Forfeitures, Trust earnings or Contributions made by the Participating
Companies) to such Participant, Joint Annuitant or Beneficiary, as appropriate;
and, provided further, the Administrative Committee, in its sole discretion, may
delay the deemed date of abandonment of any such Account for a period longer
than the prescribed six (6) months, but not longer than the period required for
escheat under applicable state law, if it believes that it is in the best
interest of the Plan to do so.
END OF AMENDMENT
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<PAGE> 125
SIGNATURES
IN WITNESS WHEREOF, the Employer has caused this Third Amendment to the
Bristol Hotel Management Corporation 401(k) Plan, to be executed as of the
______ day of ___________, 1999.
BRISTOL HOTEL MANAGEMENT CORPORATION
The "Employer"
By:
------------------------------
Title:
---------------------------
11
