EX-4.1 2 dex41.htm EXHIBIT 4.1 EXHIBIT 4.1

 

Exhibit 4.1

 

MERISTAR HOSPITALITY CORPORATION

NONQUALIFIED DEFERRED COMPENSATION PLAN

 

Effective as of December 31, 2004

 

 

MERISTAR HOSPITALITY CORPORATION

NONQUALIFIED DEFERRED COMPENSATION PLAN

 

Effective as of December 31, 2004

 

TABLE OF CONTENTS

 

ARTICLE 1

DEFINITIONS

 

1.1    ACCOUNT    1
1.2    BENEFICIARY    1
1.3    BOARD    1
1.4    CHANGE IN CONTROL    1
1.5    CHIEF EXECUTIVE OFFICER    1
1.6    CODE    2
1.7    COMMON STOCK    2
1.8    COMPENSATION    2
1.9    COMPENSATION DEFERRAL ACCOUNT    2
1.10    COMPENSATION DEFERRALS    2
1.11    DESIGNATION DATE    2
1.12    EFFECTIVE DATE    2
1.13    ELIGIBLE INDIVIDUAL    2
1.14    EMPLOYER    2
1.15    EMPLOYER CONTRIBUTION CREDIT ACCOUNT    2
1.16    EMPLOYER CONTRIBUTION CREDITS    2
1.17    EMPLOYER DISCRETIONARY CONTRIBUTION SUB-ACCOUNT    2
1.18    EMPLOYER MAKE-WHOLE CONTRIBUTION SUB-ACCOUNT    3
1.19    EMPLOYER STOCK FUND    3
1.20    ENTRY DATE    3
1.21    FORM AND TIMING OF PAYMENT ELECTION FORM    3
1.22    ICP    3
1.23    PARTICIPANT    3
1.24    PERFORMANCE-BASED COMPENSATION    3
1.25    PHANTOM STOCK    3
1.26    PLAN    3
1.27    PLAN YEAR    3
1.28    SEPARATION FROM SERVICE    3
1.29    SPECIFIED EMPLOYEE    3
1.30    TRUST    4
1.31    TRUSTEE    4
1.32    UNREALIZED EQUITY GAINS    4
1.33    UNREALIZED EQUITY GAINS CONTRIBUTION ACCOUNT    4
1.34    UNREALIZED EQUITY GAINS CONTRIBUTIONS    4
1.35    VALUATION DATE    4

 

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ARTICLE 2

ELIGIBILITY AND PARTICIPATION

 

2.1    REQUIREMENTS    4
2.2    RE-EMPLOYMENT    5
2.3    CHANGE OF EMPLOYMENT CATEGORY/BOARD MEMBERSHIP    5

 

ARTICLE 3

CONTRIBUTIONS AND CREDITS

 

3.1    PARTICIPANT CONTRIBUTIONS AND CREDITS    5
3.2    EMPLOYER CONTRIBUTION CREDITS    7
3.3    CONTRIBUTIONS TO THE TRUST    8

 

ARTICLE 4

ALLOCATION OF FUNDS

 

4.1    ALLOCATION OF DEEMED EARNINGS OR LOSSES ON ACCOUNTS    8
4.2    ACCOUNTING FOR DISTRIBUTIONS    9
4.3    SEPARATE ACCOUNTS    9
4.4    INTERIM VALUATIONS    9
4.5    DEEMED INVESTMENT DIRECTIONS OF PARTICIPANTS    10
4.6    DEEMED INVESTMENTS IN PHANTOM STOCK    11
4.7    EXPENSES AND TAXES    11

 

ARTICLE 5

ENTITLEMENT TO BENEFITS

 

5.1    SEPARATION FROM SERVICE    12
5.2    FIXED PAYMENT DATES    12
5.3    UNFORESEEABLE EMERGENCY    12
5.4    CHANGE IN CONTROL    13
5.5    RE-EMPLOYMENT/BOARD MEMBERSHIP OF RECIPIENT    13

 

ARTICLE 6

DISTRIBUTION OF BENEFITS

 

6.1    AMOUNT    13
6.2    METHOD OF PAYMENT    14
6.3    NO ACCELERATIONS    14
6.4    DEATH BENEFITS    14

 

ARTICLE 7

BENEFICIARIES; PARTICIPANT DATA

 

7.1    DESIGNATION OF BENEFICIARIES    15
7.2    INFORMATION TO BE FURNISHED BY PARTICIPANTS AND BENEFICIARIES; INABILITY TO LOCATE PARTICIPANTS OR BENEFICIARIES    15

 

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ARTICLE 8

ADMINISTRATION

 

8.1    ADMINISTRATIVE AUTHORITY    16
8.2    UNIFORMITY OF DISCRETIONARY ACTS    16
8.3    LITIGATION    17
8.4    CLAIMS PROCEDURE    17

 

ARTICLE 9

AMENDMENT

 

9.1    RIGHT TO AMEND    19
9.2    AMENDMENTS TO ENSURE PROPER CHARACTERIZATION OF PLAN    19
9.3    CHANGES IN LAW AFFECTING TAXABILITY    19

 

ARTICLE 10

TERMINATION

 

10.1    EMPLOYER’S RIGHT TO TERMINATE OR SUSPEND PLAN    20
10.2    AUTOMATIC TERMINATION OF PLAN    20
10.3    SUSPENSION OF DEFERRALS    20
10.4    ALLOCATION AND DISTRIBUTION    20
10.5    SUCCESSOR TO EMPLOYER    20
10.6    WITHDRAWAL OR TERMINATION BY AN EMPLOYER    21
10.7    PROHIBITED ACCELERATION/DISTRIBUTION TIMING    21

 

ARTICLE 11

THE TRUST

 

11.1    ESTABLISHMENT OF TRUST    21

 

ARTICLE 12

MISCELLANEOUS

 

12.1    LIABILITY OF EMPLOYER; LIMITATIONS ON LIABILITY OF EMPLOYER OR EMPLOYER    21
12.2    CONSTRUCTION    22
12.3    SPENDTHRIFT PROVISION    22
12.4    EMPLOYER STOCK SUBJECT TO THE PLAN    23
12.5    AGGREGATION OF EMPLOYERS    24

 

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MERISTAR HOSPITALITY CORPORATION

NONQUALIFIED DEFERRED COMPENSATION PLAN

 

Effective as of December 31, 2004

 

RECITALS

 

This MeriStar Hospitality Corporation Nonqualified Deferred Compensation Plan (the “Plan”) is adopted by MeriStar Hospitality Corporation (the “Employer”) for certain of its directors and executive and management employees. The purpose of the Plan is to offer participants an opportunity to elect to defer the receipt of compensation in order to provide deferred compensation benefits taxable pursuant to section 451 of the Internal Revenue Code of 1986, as amended (the “Code”), and to provide a deferred compensation vehicle to which the Employer may credit certain amounts on behalf of participants. The Plan is intended to be a “top-hat” plan (i.e., an unfunded deferred compensation plan maintained for a select group of management or highly-compensated employees) under sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). The Plan is also intended to comply with the requirements of section 409A of the Code, as added by the American Jobs Creation Act of 2004, and the Treasury regulations or any other authoritative guidance issued thereunder.

 

Accordingly, the following Plan is adopted.

 

ARTICLE 1

DEFINITIONS

 

1.1 ACCOUNT means the balance credited to a Participant’s or Beneficiary’s Plan account, including amounts credited under the Compensation Deferral, the Unrealized Equity Gains Contribution Account and the Employer Contribution Credit Account and deemed income, gains and losses (as determined by the Employer, in its discretion) credited thereto. A Participant’s or Beneficiary’s Account shall be determined as of the date of reference.

 

1.2 BENEFICIARY means any person or person so designated in accordance with the provisions of Article 7.

 

1.3 BOARD means the Employer’s Board of Directors, or with respect to any powers or duties in respect of the Plan described herein, a committee thereof, if any, duly authorized to make determinations and act for the Board under this Plan.

 

1.4 CHANGE IN CONTROL means a transaction or series of transactions occurring after the Effective Date that constitutes a “change in control”, as defined in the ICP, as amended from time to time.

 

1.5 CHIEF EXECUTIVE OFFICER means the Chief Executive Officer of the Employer.

 

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1.6 CODE means the Internal Revenue Code of 1986 and the regulations thereunder, as amended from time to time.

 

1.7 COMMON STOCK means the shares of the Employer’s common stock, $.01 par value per share.

 

1.8 COMPENSATION means the total current cash remuneration, including regular salary, bonus awards, cash retainers and/or meeting fees, paid by the Employer to an Eligible Individual with respect to his or her service for the Employer (as determined by the Employer, in its discretion).

 

1.9 COMPENSATION DEFERRAL ACCOUNT is defined in Section 3.1.

 

1.10 COMPENSATION DEFERRALS is defined in Section 3.1.

 

1.11 DESIGNATION DATE means the date or dates as of which a designation of deemed investment directions by an individual pursuant to Section 4.5, or any change in a prior designation of deemed investment directions by an individual pursuant to Section 4.5, shall become effective. The Designation Dates in any Plan Year shall be designated by the Employer.

 

1.12 EFFECTIVE DATE means December 31, 2004.

 

1.13 ELIGIBLE INDIVIDUAL means, for any Plan Year (or applicable portion thereof), an individual who is determined by the Employer to be a member of the Employer’s Board or who is otherwise a member of a select group of management or highly compensated employees of the Employer and who is designated by the Board or the Chief Executive Officer to be an Eligible Individual under the Plan. Upon the Plan’s inception, an Eligible Individual shall include any individual holding the title of Vice President or higher.

 

By each November 1 (or before the Effective Date for the Plan’s first Plan Year), the Employer shall notify those individuals, if any, who will be Eligible Individuals for the next Plan Year. If the Employer determines that an individual first becomes an Eligible Individual during a Plan Year, the Employer shall notify such individual of its determination and the individual shall become an Eligible Individual as of the date of such notification.

 

1.14 EMPLOYER means MeriStar Hospitality Corporation and its successors and assigns unless otherwise herein provided, and any affiliated or related corporation or business organization which agrees, with the consent of the Employer, to become an Employer under the Plan.

 

1.15 EMPLOYER CONTRIBUTION CREDIT ACCOUNT is defined in Section 3.2.

 

1.16 EMPLOYER CONTRIBUTION CREDITS is defined in Section 3.2.

 

1.17 EMPLOYER DISCRETIONARY CONTRIBUTION SUB-ACCOUNT is defined in Section 3.2.

 

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1.18 EMPLOYER MAKE-WHOLE CONTRIBUTION SUB-ACCOUNT is defined in Section 3.2.

 

1.19 EMPLOYER STOCK FUND means an account maintained on the books of the Employer reflecting credits to Participants’ Accounts in Phantom Stock.

 

1.20 ENTRY DATE with respect to an individual means the first day of the pay period following the date on which the individual first becomes an Eligible Individual.

 

1.21 FORM AND TIMING OF PAYMENT ELECTION FORM means the form or forms on which a Participant elects the form and timing of the Participant’s Plan benefit.

 

1.22 ICP means the MeriStar Hospitality Corporation Incentive Compensation Plan.

 

1.23 PARTICIPANT means any person so designated in accordance with the provisions of Article 2, including, where appropriate according to the context of the Plan, any former employee or Board member who is or may become (or whose Beneficiaries may become) eligible to receive a benefit under the Plan.

 

1.24 PERFORMANCE-BASED COMPENSATION means that portion of an Eligible Individual’s Compensation which is based on the performance by the Eligible Individual of services for the Employer over a period of at least twelve (12) months and which qualifies as “performance-based compensation” under applicable Treasury regulations or other authoritative guidance issued under Code §409A.

 

1.25 PHANTOM STOCK means an artificial unit of value, the amount of one unit of which equals the value of one share of Common Stock and varies with the value of one share of Common Stock. Except as otherwise provided herein, all distributions to a Participant or Beneficiary with respect to Phantom Stock shall be made in Common Stock.

 

1.26 PLAN means this MeriStar Hospitality Corporation Nonqualified Deferred Compensation Plan, as amended from time to time.

 

1.27 PLAN YEAR means the twelve (12) month period ending on the December 31 of each year during which the Plan is in effect.

 

1.28 SEPARATION FROM SERVICE means separation from service within the meaning of Code §409A and the Treasury regulations or other authoritative guidance issued thereunder, including (to the extent not inconsistent with such guidance) the termination of Board membership of a Board member Plan Participant.

 

1.29 SPECIFIED EMPLOYEE means, with respect to a corporation any stock of which is publicly traded on an established securities market or otherwise, a key employee, as currently defined in Code §416(i) (without regard to paragraph (5) thereof) to mean, as of the Effective Date, an

 

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employee of the Employer who, at any time during the Plan Year, is (1) an officer of the Employer having an annual compensation greater than one hundred thirty-five thousand dollars ($135,000) for 2005 (indexed for inflation in future years); (ii) a five-percent (5%) owner of the Employer; or (iii) a one-percent (1%) owner of the Employer having an annual compensation from the Employer of more than one hundred fifty thousand dollars ($150,000).

 

1.30 TRUST means the Trust described in Article 11.

 

1.31 TRUSTEE means the trustee of the Trust described in Article 11.

 

1.32 UNREALIZED EQUITY GAINS, with respect to a restricted stock award granted to a particular Participant under the ICP, means the fair market value of the restricted stock elected to be converted to an Unrealized Equity Gains Contribution hereunder determined as of the effective date of the conversion. The fair market value is determined with reference to the closing price of the shares of Common Stock held as restricted stock on the day that immediately precedes the conversion date specified in the election, or if such day is not a trading day, on the next trading day (or on such other date as the Employer shall reasonably elect).

 

1.33 UNREALIZED EQUITY GAINS CONTRIBUTION ACCOUNT is defined in Section 3.1.

 

1.34 UNREALIZED EQUITY GAINS CONTRIBUTIONS means contributions made under Section 3.1

 

1.35 VALUATION DATE means the last day of each Plan Year and any other date that the Employer, in its sole discretion, designates as a Valuation Date.

 

ARTICLE 2

ELIGIBILITY AND PARTICIPATION

 

2.1 REQUIREMENTS. Every Eligible Individual on the Effective Date shall be eligible to become a Participant on the Effective Date. Every other Eligible Individual shall be eligible to become a Participant on the first Entry Date occurring on or after the date on which he or she becomes an Eligible Individual. No individual shall become a Participant, however, if he or she is not an Eligible Individual on the date his or her participation is to begin.

 

Participation in the Compensation Deferral and Unrealized Equity Gains Contribution Account portion of the Plan is voluntary. In order to participate in those portions of the Plan, an otherwise Eligible Individual must make written application in such manner as may be required by Section 3.1 and by the Employer and must agree to make Compensation Deferrals or Unrealized Equity Gains Contributions as provided in Article 3. An Eligible Individual shall have the right to make Unrealized Equity Gains Contributions only as provided by the Employer in a Notice of Right to Conversion Contribution and only subject to the terms and conditions specified in the Notice.

 

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Participation in the Employer Contribution Credit Account portion of the Plan, if and when it is activated by the Board, is automatic and does not require a Participant’s election to participate.

 

2.2 RE-EMPLOYMENT. If a Participant whose employment with the Employer (or Board membership, as applicable) is terminated is subsequently re-employed (or again becomes a Board member), he or she shall become a Participant in accordance with the provisions of Section 2.1.

 

2.3 CHANGE OF EMPLOYMENT CATEGORY/BOARD MEMBERSHIP. During any period in which a Participant remains in the employ of the Employer (or a member of the Board), but ceases to be an Eligible Individual, he or she shall not be eligible to make Compensation Deferrals or Unrealized Equity Gains Contributions hereunder or to receive Employer Contribution Credits hereunder.

 

ARTICLE 3

CONTRIBUTIONS AND CREDITS

 

3.1 PARTICIPANT CONTRIBUTIONS AND CREDITS.

 

(a) Compensation Deferrals. In accordance with rules established by the Employer and subject to such amount limitations as might be imposed by the Employer in its discretion, a Participant may elect to defer Compensation which is due to be earned and which would otherwise be paid to the Participant, in any fixed periodic dollar amounts or percentages designated by the Participant. Amounts so deferred will be considered a Participant’s “Compensation Deferrals.” Except as provided below, a Participant shall make such an election with respect to a coming twelve (12) month Plan Year during the period beginning on the November 1 and ending on the November 30 of the prior calendar year, or during such other period as might be established by the Employer which period ends no later than the last day of the Plan Year preceding the Plan Year in which the services giving rise to the Compensation to be deferred are to be performed.

 

Notwithstanding the preceding, in the case of the first Plan Year in which an Eligible Individual becomes eligible to become a Participant, if and to the extent permitted by the Employer, the Eligible Individual may make an election no later than thirty (30) days after the date he or she becomes eligible to become a Participant to defer Compensation for services to be performed after the election. Also, notwithstanding the preceding, if and to the extent permitted by the Employer, a Participant may make an election to defer Performance-Based Compensation no later than six (6) months prior to the last day of the period over which the services giving rise to the Performance-Based Compensation are performed.

 

Notwithstanding the preceding, the Employer shall, in its discretion, be permitted to offer special contingent elections to Participants to defer bonus payments payable in 2005 in respect of services performed during the 2004 calendar year (“2004 Contingent Bonus Deferral Elections”) and/or bonus payments payable in 2006 in respect of services performed during the 2005 calendar year (“2005 Contingent Bonus Deferral Elections”). Any bonus which is the

 

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subject of a 2004 Contingent Bonus Deferral Election shall be paid to the Participant rather than being deferred under the Plan if, under Code §409A and the Treasury regulations or other authoritative guidance issued thereunder, an earlier election was required in order to properly defer tax with respect to such bonus. Any 2005 Contingent Bonus Deferral Election may be revoked or modified by the Participant at any time prior to July 1, 2005 if the bonus to which the election relates qualifies as Performance-Based Compensation for the performance period ending December 31, 2005; provided, however, that no such revocation or modification will be effective or available if and to the extent Code §409A and the Treasury regulations or other authoritative guidance issued thereunder provide that such revocation or modification, or the availability thereof, prevents the proper deferral of tax with respect to such bonus.

 

Compensation Deferrals shall be made through regular payroll deductions (including, if applicable, deductions of regular cash retainer payments or payments of meeting fees to a Participant who is a Board member) or through an election by the Participant to defer the payment of a bonus. The Participant may change or revoke his or her Compensation Deferral election only if and to the extent permitted by the Employer and in accordance with any Treasury regulation or other authoritative guidance issued under Code §409A specifically relating to the change and/or revocation of deferral elections.

 

Once made, a Compensation Deferral regular payroll deduction election shall continue in force only for the Plan Year to which the election relates, unless changed as provided above. A Compensation Deferral bonus payment election shall continue in force only for the bonus payment for which the election is specifically effective. Compensation Deferrals shall be deducted by the Employer from the pay of a deferring Participant and shall be credited to the Compensation Deferral Account of the deferring Participant.

 

There shall be established and maintained a separate Compensation Deferral Account in the name of each Participant to which shall be credited or debited: (a) amounts equal to the Participant’s Compensation Deferrals; and (b) amounts equal to any deemed earnings or losses (to the extent realized, based upon deemed fair market value of the Compensation Deferral Account’s deemed assets, as determined by the Employer, in its discretion) attributable or allocable thereto. With respect to any Participant having an amount credited on his or her behalf under the Plan immediately prior to the Effective Date, such amount shall, as of the Effective Date, be credited to the Participant’s Compensation Deferral Account.

 

A Participant shall at all times be 100% vested in amounts credited to his or her Compensation Deferral Account.

 

(b) Unrealized Equity Gains Contributions. In accordance with rules established by the Employer, a Participant may elect to have amounts in respect of Unrealized Equity Gains made as Unrealized Equity Gains Contributions to the Participant’s Unrealized Equity Gains Contribution Account. The value of the Unrealized Equity Gains Contributions to be credited to the Participant’s Account shall be the value of the Unrealized Equity Gains converted as determined pursuant to Section 1.32.

 

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A Participant shall be entitled to make an Unrealized Equity Gains Contribution solely at the time and in the form and manner determined by the Employer and communicated to the Participant. No Participant shall have a right to make an Unrealized Equity Gains Contribution unless and until notified in writing by the Employer and only to the extent provided in such notice.

 

An Unrealized Equity Gains Contribution election shall be made by a Participant with respect to restricted stock granted under the ICP during the applicable election period established by the Board which ends no later than the day before the date on which the restricted stock are to become unrestricted. The preceding notwithstanding, if a Participant makes an Unrealized Equity Gains Contribution election and events occur or conditions exist that would have caused the restricted stock to be forfeited, to the extent of any such forfeiture, the Unrealized Equity Gains Contribution shall be null and void and the forfeiture amount (determined by the Employer in its discretion) shall be returned to the Employer.

 

There shall be established and maintained a separate Unrealized Equity Gains Contribution Account in the name of each Participant to which shall be credited or debited: (a) amounts equal to the Participant’s Unrealized Equity Gains Contribution; and (b) amounts equal to any deemed earnings or losses (to the extent realized, based upon deemed fair market value of the Unrealized Equity Gains Contribution Account’s deemed assets, as determined by the Employer, in its discretion) attributable or allocable thereto.

 

A Participant shall become vested in amounts credited to his or her Unrealized Equity Gains Contribution Account on the date that the restricted stock otherwise would have vested under the ICP without regard to the conversion.

 

3.2 EMPLOYER CONTRIBUTION CREDITS. There shall be established and maintained a separate Employer Contribution Credit Account in the name of each Participant. There shall be established the following two (2) sub-accounts under a Participant’s Employer Contribution Credit Account: (a) the Employer Make-Whole Contribution Sub-Account; and (b) the Employer Discretionary Contribution Sub-Account. Each such Sub-Account shall be credited or debited, as applicable, with (i) amounts equal to the Employer’s Contribution Credits credited to that Sub-Account; and (ii) amounts equal to any deemed earnings and losses (to the extent realized, based upon deemed fair market value of the Sub-Account’s deemed assets as determined by the Employer, in its discretion) allocated to that Sub-Account.

 

(a) Employer Make-Whole Contribution Sub-Account. Employer Contribution Credits shall be credited to the Employer Make-Whole Contribution Sub-Accounts of certain Participants who are eligible to receive a matching contribution allocation under the Employer’s tax-qualified retirement plan. Specifically, those Participants who, for any given year, elect to contribute the maximum permissible amount to the Employer’s tax-qualified retirement plan for the year shall be eligible to receive Employer Contribution Credits under this Section. The Employer shall credit such contributions with such frequency, and such times, as the Employer determines in its sole discretion, and in the following circumstances:

 

(i) crediting such contributions at the close of each Plan Year in an amount equal to the excess of: (A) the matching contributions that would be made by the Employer under the Employer’s tax-qualified retirement plan for the Plan Year, calculated as if Participant Compensation Deferrals hereunder for the Plan Year had instead been made to the Employer’s tax-qualified retirement plan, but using the Participant’s Compensation for the Plan Year rather than the Employer’s tax-qualified retirement plan definition of “compensation” and calculated without regard to the limits on recognizable compensation and employee deferrals under the Employer’s tax-qualified retirement plan resulting from the application of the Code’s non-discrimination testing requirements; over (B) the matching contribution actually made by the Employer to the Employer’s tax-qualified retirement plan for the Plan Year.

 

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(ii) the amount by which the matching contribution to the Employer’s tax-qualified retirement plan on behalf of a Participant is reduced on account of the inability of the Employer’s tax-qualified retirement plan to take into account in calculating Employer contributions thereunder Compensation Deferrals under this Plan.

 

A Participant shall become vested in amounts credited to his or her Employer Make-Whole Contribution Sub-Account according to the vesting schedule applicable to matching contributions under the Employer’s tax-qualified retirement plan or according to any other vesting schedule adopted by the Board, in its discretion.

 

(b) Employer Discretionary Contribution Sub-Account. The Employer Contribution Credits credited to a Participant’s Employer Discretionary Contribution Sub-Account for any particular Plan Year shall be an amount (if any) determined by the Board, in its discretion. The Employer shall credit such contributions on behalf of such individuals, in such amounts and with such frequency, and subject to such vesting requirements, as the Board determines in its sole discretion.

 

3.3 CONTRIBUTIONS TO THE TRUST. Except as to amounts credited as Phantom Stock under Section 4.6, an amount shall be contributed by the Employer to the Trust maintained under Section 11.1 equal to the amount(s) required to be credited to the Participant’s Account under Sections 3.1 and 3.2. The Employer shall make a good faith effort to contribute these amounts to the Trust as soon as practicable following the date on which the contribution credit amount(s) are determined.

 

ARTICLE 4

ALLOCATION OF FUNDS

 

4.1 ALLOCATION OF DEEMED EARNINGS OR LOSSES ON ACCOUNTS. Subject to such limitations as may from time to time be required by law, imposed by the Employer or the Trustee or contained elsewhere in the Plan (including Section 4.6), and subject to such operating rules and procedures as may be imposed from time to time by the Employer, prior to the date on which a direction will become effective, the Participant shall have the right to direct the Employer as to how amounts in his or her Account shall be deemed to be invested. The Employer, may, but is not required to, direct the Trustee to invest the account maintained in the Trust on behalf of the

 

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Participant pursuant to the deemed investment directions the Employer properly has received from the Participant.

 

The value of the Participant’s Account shall be equal to the value of the deemed investments maintained under the Trust on behalf of the Participant plus, if applicable, any Phantom Stock deemed to be held in the Participant’s Unrealized Equity Gains Contribution Account. As of each valuation date of the Trust, the Participant’s Account will be credited or debited to reflect the Participant’s deemed investments of the Trust. The Participant’s Plan Account will be credited or debited with the increase or decrease in the realizable net asset value or credited interest, as applicable, of the designated deemed investments, as follows. As of each Valuation Date, an amount equal to the net increase or decrease in realizable net asset value or credited interest, as applicable (as determined by the Trustee), of each deemed investment option within the Account since the preceding Valuation Date shall be allocated among all Participants’ Accounts deemed to be invested in that investment option in accordance with the ratio which the portion of the Account of each Participant which is deemed to be invested within that investment option, determined as provided herein, bears to the aggregate of all amounts deemed to be invested within that investment option.

 

4.2 ACCOUNTING FOR DISTRIBUTIONS. As of the date of any distribution hereunder, the distribution made hereunder to the Participant or his or her Beneficiary or Beneficiaries shall be charged to such Participant’s Account. If a cash distribution is requested, the amount of the distribution shall first be charged against the investments of the Trust other than the Employer Stock Fund in which the Participant’s Account is deemed to be invested, on a pro rata basis, until such deemed investments are exhausted. If an in-kind distribution is requested, the amount of the distribution shall be charged on a pro rata basis against all the investments of the Trust in which the Participant’s Account is deemed to be invested.

 

4.3 SEPARATE ACCOUNTS. A separate bookkeeping account under the Plan shall be established and maintained by the Employer to reflect the Account for each Participant with bookkeeping sub-accounts to show separately the Participant’s Compensation Deferral Account, the Participant’s Unrealized Equity Gains Contribution Account, and the Participant’s Employer Contribution Credit Account. Separate sub-accounts shall also be maintained to reflect portions of a Participant’s Unrealized Equity Gains Contribution Account representing the Plan’s Employer Stock Fund and, if different, the Plan’s other deemed investment categories. Each sub-account will separately account for the credits and debits described in Article 3. In addition, the Accounts of those Participants employed by one Employer shall be accounted for separately from the Accounts of Participants employed by other Employers.

 

4.4 INTERIM VALUATIONS. If it is determined by the Employer that the value of a Participant’s Account as of any date on which distributions are to be made differs materially from the value of the Participant’s Account on the prior Valuation Date upon which the distribution is to be based, the Employer, in its discretion, shall have the right to designate any date in the interim as a Valuation Date for the purpose of revaluing the Participant’s Account so that the Account will, prior to the distribution, reflect its share of such material difference in value.

 

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4.5 DEEMED INVESTMENT DIRECTIONS OF PARTICIPANTS. Subject to such limitations as may from time to time be required by law, imposed by the Employer or the Trustee or contained elsewhere in the Plan (including Section 4.6), and subject to such operating rules and procedures as may be imposed from time to time by the Employer, prior to and effective for each Designation Date, each Participant may communicate to the Employer a direction (in accordance with (a), below) as to how his or her Plan Accounts should be deemed to be invested among such categories of deemed investments as may be made available by the Employer hereunder, which may be unlimited, at the Employer’s sole discretion. Such direction shall designate the percentage (in any whole percent multiples) of each portion of the Participant’s Plan Accounts which is requested to be deemed to be invested in such categories of deemed investments, and shall be subject to the following rules:

 

(a) Any initial or subsequent deemed investment direction shall be in writing, on a form supplied by and filed with the Employer, and/or, as required or permitted by the Employer, shall be by oral designation and/or electronic transmission designation. A designation shall be effective as of the Designation Date next following the date the direction is received and accepted by the Employer on which it would be reasonably practicable for the Employer to effect the designation.

 

(b) All amounts credited to the Participant’s Account shall be deemed to be invested in accordance with the then effective deemed investment direction, and as of the Designation Date with respect to any new deemed investment direction, all or a portion of the Participant’s Account at that date shall be reallocated among the designated deemed investment funds according to the percentages specified in the new deemed investment direction unless and until a subsequent deemed investment direction shall be filed and become effective. An election concerning deemed investment choices shall continue indefinitely as provided in the Participant’s most recent investment direction form provided by and filed with the Employer.

 

(c) If the Employer receives an initial or revised deemed investment direction which it deems to be incomplete, unclear or improper, the Participant’s investment direction then in effect shall remain in effect (or, in the case of a deficiency in an initial deemed investment direction, the Participant shall be deemed to have filed no deemed investment direction) until the next Designation Date, unless the Employer provides for, and permits the application of, corrective action prior thereto.

 

(d) If the Employer possesses (or is deemed to possess as provided in (c), above) at any time directions as to the deemed investment of less than all of a Participant’s Account, the Participant shall be deemed to have directed that the undesignated portion of the Account be deemed to be invested in a money market, fixed income or similar fund made available under the Plan as determined by the Employer in its discretion.

 

(e) Each Participant hereunder, as a condition to his or her participation hereunder, agrees to indemnify and hold harmless the Employer, the Employer and their agents and representatives from any losses or damages of any kind relating to the deemed investment of the Participant’s Account hereunder.

 

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(f) Each reference in this Section to a Participant shall be deemed to include, where applicable, a reference to a Beneficiary of a deceased Participant.

 

4.6 DEEMED INVESTMENTS IN PHANTOM STOCK. Unless the Employer, in its sole discretion, permits otherwise, Participants’ Unrealized Equity Gains Contributions automatically will be deemed to be invested in Phantom Stock, through the Employer Stock Fund.

 

Unless the Employer, in its sole discretion, permits otherwise, a Participant may not transfer any portion of his or her Account from the Employer Stock Fund into another deemed investment option, nor may a Participant transfer any amounts from another deemed investment option into the Employer Stock Fund.

 

All amounts invested in Phantom Stock shall be treated as if they had been invested in shares of Common Stock purchased from the Employer at fair market value, determined pursuant to Section 1.32.

 

Unless the Employer, in its sole discretion, permits otherwise, all distributions with respect to the portion of a Participant’s Account allocated to the Employer Stock Fund shall be made solely in shares of Common Stock. For purposes of making distributions with respect to amounts allocated to the Employer Stock Fund, any fractional shares credited to the Participant’s Account shall be rounded up to the nearest full share.

 

In the event that the Employer declares a cash dividend to the holders of its Common Stock, with respect to each Participant deemed to hold Phantom Stock in the Employer Stock Fund, the Employer shall credit the Participant’s Compensation Deferral Account with an amount equal to that amount of cash that a holder of a share of Common Stock would receive multiplied by the shares of Phantom Stock credited to the Participant’s Employer Stock Fund on the date of record of such dividend. Such contributions shall be treated as Compensation Deferrals for all purposes of this Plan, including being eligible for Participant investment direction among the Plan’s deemed investments, except that the same shall not be considered Compensation Deferrals for any “Make-Whole” Employer Contributions made under the Plan.

 

Despite the foregoing, the Employer may, but need not, prohibit or delay the liquidation, disposition, or acquisition of any Phantom Stock units by any Participant who is subject to short swing trading liability under Section 16(b) of the Securities and Exchange Act of 1934 if said liquidation, disposition, or acquisition may result in the imposition of such liability.

 

4.7 EXPENSES AND TAXES. Expenses, including Trustee fees, associated with the administration or operation of the Plan shall be paid by the Employer from its general assets unless the Employer elects to charge such expenses against the appropriate Participant’s Account or Participants’ Accounts. Any taxes allocable to an Account (or portion thereof) maintained under the Plan which are payable prior to the distribution of the Account (or portion thereof), as determined by the Employer, shall be paid by the Employer unless the Employer elects to charge such taxes against the appropriate Participant’s Account or Participants’ Accounts.

 

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ARTICLE 5

ENTITLEMENT TO BENEFITS

 

5.1 SEPARATION FROM SERVICE. Subject to Section 5.2, upon a Participant’s Separation from Service with the Employer for any reason, the Participant’s as-yet undistributed vested Account shall be valued and payable according to the provisions of Article 6; provided, however, that any Participant who is a Specified Employee and who incurs a Separation from Service with the Employer shall not be entitled to receive any portion of his or her vested Account under this Section prior to the date which is six (6) months after the date or his or her Separation from Service (or, if earlier, his or her death).

 

5.2 FIXED PAYMENT DATES. On his or her Form and Timing of Payment Election Form, a Participant may select a fixed payment date for the payment or commencement of payment of that portion of his or her Account attributable to fully vested Compensation Deferrals, fully vested Unrealized Equity Gains Contributions and/or fully vested Employer Contribution Credits made by the Participant or on the Participant’s behalf during the period indicated in the Form and Timing of Payment Election Form which portion will be valued and payable according to the provisions of Article 6. Any such fixed date elected by a Participant must be a date no earlier than the January 1 of the third calendar year after the calendar year in which the applicable Compensation Deferrals, Unrealized Equity Gains Contributions and/or Employer Contribution Credits were made by the Participant or on the Participant’s behalf. Any such fixed payment date may be extended to a later fixed payment date so long as election to so extend the date is made by the Participant at least twelve (12) months prior to the date on which the distribution is to be made or commence and such extension is at least five (5) full calendar years in length. Such payment dates may not be accelerated, except as provided in the remaining Sections of this Article.

 

Notwithstanding the preceding, a Participant who selects payment or commencement of payment of the designated portion of his or her vested Account on a fixed date or dates shall receive payment of the designated portion of his or her vested Account at the earlier of such fixed payment date or dates (as extended, if applicable) or, to the extent permitted under Section 409A, his or her Separation from Service with the Employer (or, with respect to a Specified Employee, six (6) months after his or her Separation from Service (or, if earlier, his or her death)). If Section 409A does not permit distributions upon the earlier of a fixed payment date or a Separation from Service, distributions subject to a fixed payment date election shall be made upon the Participant’s selected fixed payment date regardless of any intervening Separation from Service. Distributions made with respect to this Section 5.2 shall be in a single lump sum payment.

 

5.3 UNFORESEEABLE EMERGENCY DISTRIBUTIONS. In the event the Participant incurs an unforeseeable emergency, as hereinafter defined, the Participant may apply to the Employer for the distribution of all or any part of his or her Account attributable to fully vested Compensation Deferrals, fully vested Unrealized Equity Gains Contributions and/or fully vested Employer Contribution Credits. The Employer shall consider the circumstances of each such case, and the best interests of the Participant and his or her family, and shall have the right, in its sole discretion, if applicable, to allow such distribution, or, if applicable, to direct a distribution of part of the amount requested, or to refuse to allow any distribution; provided, however, that such distribution shall be

 

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permitted solely to the extent permitted under Code §409A and the Treasury regulations or other authoritative guidance thereunder. Upon a finding of unforseeable emergency, the Employer shall direct that the appropriate distribution is made to the Participant with respect to the Participant’s vested Account in a lump sum payment. In no event shall the aggregate amount of the distribution exceed either the full value of the Participant’s vested Account or the amount determined by the Employer to be necessary to satisfy the unforeseeable emergency plus amounts necessary to pay taxes reasonably anticipated as a result of the distribution, after taking into account the extent to which the hardship is or may be relieved through reimbursement or compensation by insurance or otherwise or by liquidation of the Participant’s assets (to the extent the liquidation of assets would not itself cause severe financial hardship). For purposes of this Section, the value of the Participant’s vested Account shall be determined as of the date of the distribution.

 

“Unforseeable emergency” means (a) a severe financial hardship to the Participant resulting from an illness or accident of the Participant, the Participant’s spouse or a dependent (as defined in Code section 152(a)) of the Participant, (b) loss of the Participant’s property due to casualty, or (c) other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant, each as determined to exist by the Employer. A distribution may be made under this Section only with the consent of the Employer.

 

Notwithstanding the foregoing, the Employer may but need not deny a hardship distribution election made by a Participant who is subject to short-swing trading liability of Section 16(b) of the Securities and Exchange Act of 1934 under circumstances in which said distribution may result in the imposition of such liability.

 

5.4 CHANGE IN CONTROL. Notwithstanding anything herein to the contrary, upon a Change in Control, each Participant shall become fully vested in his or her Account balance attributable to Unrealized Equity Gains Contributions with respect to restricted stock if such restricted stock would have vested under the ICP upon a “change in control”.

 

5.5 RE-EMPLOYMENT/BOARD MEMBERSHIP OF RECIPIENT. If a Participant receiving installment distributions pursuant to Section 6.2 is re-employed by the Employer (or again becomes a Board member), the remaining distributions due to the Participant shall be suspended until such time as the Participant (or his or her Beneficiary) once again becomes eligible for benefits under this Article, at which time such distribution shall commence, subject to the limitations and conditions contained in this Plan.

 

ARTICLE 6

DISTRIBUTION OF BENEFITS

 

6.1 AMOUNT. A Participant (or his or her Beneficiary) shall become entitled to receive, within ninety (90) days following the date or dates selected by the Participant on his or her Form and Timing of Payment Election Form, or if no such selection is made or, to the extent permitted under Section 409A, if the Participant incurs a Separation from Service before the selected date(s), on or about the date of such Separation from Service (or earlier as provided in Section 5.3), a distribution (or commencement of distributions) in an aggregate amount equal to the Participant’s vested Account

 

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(or applicable portion thereof). Notwithstanding the preceding, any distribution under the Plan pursuant to the Separation from Service of a Participant who is a Specified Employee shall not be made (or commence) earlier than the date which is six (6) months after the Separation from Service (or, if earlier, his or her death) Any payment due hereunder from the Trust which is not paid by the Trust for any reason will be paid by the Employer from its general assets.

 

6.2 METHOD OF PAYMENT.

 

(a) Cash Or In-Kind Payments. Payments under the Plan (other than payments with respect to amounts deemed invested in Phantom Stock) shall be made in cash or in-kind, as elected by the Participant and as permitted by the Employer and the Trustee in their sole and absolute discretion, subject, however, to Section 12.4 and any other applicable restrictions on transfer that may be applicable legally or contractually. All amounts deemed invested in Phantom Stock through the Employer Stock Fund shall be distributed in shares of Common Stock.

 

(b) Timing and Manner of Payment. Except as otherwise provided herein, in the case of distributions to a Participant or his or her Beneficiary by virtue of an entitlement pursuant to Sections 5.1, an aggregate amount equal to the Participant’s vested Account will be paid by the Trust or the Employer, as provided in Section 6.1, in a lump sum or, if permitted by the Employer in its sole and absolute discretion, in five (5), ten (10) or fifteen (15) annual installments (adjusted for gains and losses). To the extent required under Section 409A, any Participant election to receive his or her vested Post-2004 Plan Account in the form of five (5), ten (10) or fifteen (15) annual installments must be made at least twelve (12) months prior to the distribution date and the chosen annual installment payments must begin no earlier than five (5) years after the date payments would have been made (or commenced) in absence of the election.

 

If the whole or any part of a payment hereunder is to be in installments, the total to be so paid shall continue to be deemed to be invested pursuant to Article 4 under such procedures as the Employer may establish, in which case any deemed income, gain, loss or expense or tax allocable thereto (as determined by the Employer, in its discretion) shall be reflected in the installment payments, using such method for the calculation of the installments as the Employer shall reasonably determine.

 

6.3 NO ACCELERATIONS. Notwithstanding anything in the Plan to the contrary, no change submitted on a Form and Timing of Payment Election Form shall be accepted by the Employer if the change accelerates the time over which distributions shall be made to the Participant (except as otherwise permitted by Treasury regulations or other authoritative guidance issued under Code §409(A)) and the Employer shall deny any change made to an election if the Employer determines that the change violates the requirement under Code §409A and the Treasury regulations and other authoritative guidance issued thereunder that the first payment with respect to which such election is made be deferred for a period of not less than five (5) years from the date such payment would otherwise have been made.

 

6.4 DEATH BENEFITS. If a Participant dies before incurring a Separation from Service and before the commencement of payments to the Participant hereunder, the entire value of the

 

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Participant’s Account shall be paid, within ninety (90) days following the Participant’s death, in a lump sum, to the person or persons designated in accordance with Section 7.1.

 

Upon the death of a Participant after payments hereunder have begun but before he or she has received all payments to which he or she is entitled under the Plan, the remaining benefit payments shall be paid to the person or persons designated in accordance with Section 7.1, in the manner in which such benefits were payable to the Participant.

 

ARTICLE 7

BENEFICIARIES; PARTICIPANT DATA

 

7.1 DESIGNATION OF BENEFICIARIES. Each Participant from time to time may designate any person or persons (who may be named contingently or successively) to receive such benefits as may be payable under the Plan upon or after the Participant’s death, and such designation may be changed from time to time by the Participant by filing a new designation. Each designation will revoke all prior designations by the same Participant, shall be in a form prescribed by the Employer, and will be effective only when filed in writing with the Employer during the Participant’s lifetime.

 

In the absence of a valid Beneficiary designation, or if, at the time any benefit payment is due to a Beneficiary, there is no living Beneficiary validly named by the Participant, the Employer shall pay any such benefit payment to the Participant’s spouse, if then living, but otherwise to the Participant’s then living descendants, if any, per stirpes, but, if none, to the Participant’s estate. In determining the existence or identity of anyone entitled to a benefit payment, the Employer may rely conclusively upon information supplied by the Participant’s personal representative, executor or administrator. If a question arises as to the existence or identity of anyone entitled to receive a benefit payment as aforesaid, or if a dispute arises with respect to any such payment, then, notwithstanding the foregoing, the Employer, in its sole discretion, may distribute or direct that the Trustee distribute such payment to the Participant’s estate without liability for any tax or other consequences which might flow therefrom, or may take such other action as the Employer deems to be appropriate.

 

7.2 INFORMATION TO BE FURNISHED BY PARTICIPANTS AND BENEFICIARIES; INABILITY TO LOCATE PARTICIPANTS OR BENEFICIARIES. Any communication, statement or notice addressed to a Participant or to a Beneficiary at his or her last post office address as shown on the Employer’s records shall be binding on the Participant or Beneficiary for all purposes of the Plan. The Employer shall not be obliged to search for any Participant or Beneficiary beyond the sending of a registered letter to such last known address. If the Employer notifies any Participant or Beneficiary that he or she is entitled to an amount under the Plan and the Participant or Beneficiary fails to claim such amount or make his or her location known to the Employer within three (3) years thereafter, then, except as otherwise required by law, if the location of one or more of the next of kin of the Participant is known to the Employer, the Employer may distribute or direct distribution of such amount to any one or more or all of such next of kin, and in such proportions as the Employer determines. If the location of none of the foregoing persons can be determined, the Employer shall have the right to direct that the amount payable shall be deemed to be a forfeiture, except that the dollar amount of the forfeiture, unadjusted for deemed gains or losses in

 

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the interim, shall be paid by the Employer if a claim for the benefit subsequently is made by the Participant or the Beneficiary to whom it was payable. If a benefit payable to an unlocated Participant or Beneficiary is subject to escheat pursuant to applicable state law, the Employer shall not be liable to any person for any payment made in accordance with such law.

 

ARTICLE 8

ADMINISTRATION

 

8.1 ADMINISTRATIVE AUTHORITY. Except as otherwise specifically provided herein, the Employer shall have the sole responsibility for and the sole control of the operation and administration of the Plan, and shall have the power and authority to take all action and to make all decisions and interpretations which may be necessary or appropriate in order to administer and operate the Plan, including, without limiting the generality of the foregoing, the power, duty and responsibility to:

 

(a) Resolve and determine all disputes or questions arising under the Plan, and to remedy any ambiguities, inconsistencies or omissions in the Plan.

 

(b) Adopt such rules of procedure and regulations as in its opinion may be necessary for the proper and efficient administration of the Plan and as are consistent with the Plan.

 

(c) Implement the Plan in accordance with its terms and the rules and regulations adopted as above.

 

(d) Make determinations with respect to the eligibility of any Eligible Individual as a Participant and make determinations concerning the crediting of Plan Accounts.

 

(e) Appoint any persons or firms, or otherwise act to secure specialized advice or assistance, as it deems necessary or desirable in connection with the administration and operation of the Plan, and the Employer shall be entitled to rely conclusively upon, and shall be fully protected in any action or omission taken by it in good faith reliance upon, the advice or opinion of such firms or persons. The Employer shall have the power and authority to delegate from time to time by written instrument all or any part of its duties, powers or responsibilities under the Plan, both ministerial and discretionary, as it deems appropriate, to any person or committee, and in the same manner to revoke any such delegation of duties, powers or responsibilities. Any action of such person or committee in the exercise of such delegated duties, powers or responsibilities shall have the same force and effect for all purposes hereunder as if such action had been taken by the Employer. Further, the Employer may authorize one or more persons to execute any certificate or document on behalf of the Employer, in which event any person notified by the Employer of such authorization shall be entitled to accept and conclusively rely upon any such certificate or document executed by such person as representing action by the Employer until such notified person shall have been notified of the revocation of such authority.

 

8.2 UNIFORMITY OF DISCRETIONARY ACTS. Whenever in the administration or operation of the Plan discretionary actions by the Employer are required or permitted, such actions

 

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shall be consistently and uniformly applied to all persons similarly situated, and no such action shall be taken which shall discriminate in favor of any particular person or group of persons.

 

8.3 LITIGATION. Except as may be otherwise required by law, in any action or judicial proceeding affecting the Plan, no Participant or Beneficiary shall be entitled to any notice or service of process, and any final judgment entered in such action shall be binding on all persons interested in, or claiming under, the Plan.

 

8.4 CLAIMS PROCEDURE. This Section 8.4 is based on final regulations issued by the Department of Labor and published in the Federal Register on November 21, 2000 and codified at section 2560.503-1 of the Department of Labor Regulations. If any provision of this Section 8.4 conflicts with the requirements of those regulations, the requirements of those regulations will prevail.

 

 (a) Initial Claim. A Participant or Beneficiary (hereinafter referred to as a “Claimant”) who believes he or she is entitled to any Plan benefit under this Plan may file a claim with the Employer. The Employer shall review the claim itself or appoint an individual or an entity to review the claim.

 

  The Claimant shall be notified within ninety (90) days after the claim is filed whether the claim is allowed or denied, unless the Claimant receives written notice from the Employer or appointee of the Employer prior to the end of the ninety (90) day period stating that special circumstances require an extension of the time for decision, such extension not to extend beyond the day which is one hundred eighty (180) days after the day the claim is filed.

 

  If the Employer denies a claim, it must provide to the Claimant, in writing or by electronic communication:

 

  (i) The specific reasons for the denial;

 

  (ii) A reference to the Plan provision upon which the denial is based;

 

  (iii) A description of any additional information or material that the Claimant must provide in order to perfect the claim;

 

  (iv) An explanation of why such additional material or information is necessary;

 

  (v) Notice that the Claimant has a right to request a review of the claim denial and information on the steps to be taken if the Claimant wishes to request a review of the claim denial; and

 

  (vi) A statement of the Claimant’s right to bring a civil action under ERISA section 502(a) following a denial on review of the initial denial.

 

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 (b) Review Procedures. A request for review of a denied claim must be made in writing to the Employer within sixty (60) days after receiving notice of denial. The decision upon review will be made within sixty (60) days after the Employer’s receipt of a request for review, unless special circumstances require an extension of time for processing, in which case a decision will be rendered not later than one hundred twenty (120) days after receipt of a request for review. A notice of such an extension must be provided to the Claimant within the initial sixty (60) day period and must explain the special circumstances and provide an expected date of decision.

 

  The reviewer shall afford the Claimant an opportunity to review and receive, without charge, all relevant documents, information and records and to submit issues and comments in writing to the Employer. The reviewer shall take into account all comments, documents, records and other information submitted by the Claimant relating to the claim regardless of whether the information was submitted or considered in the initial benefit determination.

 

  Upon completion of its review of an adverse initial claim determination, the Employer will give the Claimant, in writing or by electronic notification, a notice containing:

 

  (i) its decision;

 

  (ii) the specific reasons for the decision;

 

  (iii) the relevant Plan provisions on which its decision is based;

 

  (iv) a statement that the Claimant is entitled to receive, upon request and without charge, reasonable access to, and copies of, all documents, records and other information in the Plan’s files which is relevant to the Claimant’s claim for benefits;

 

  (v) a statement describing the Claimant’s right to bring an action for judicial review under ERISA section 502(a); and

 

  (vi) if an internal rule, guideline, protocol or other similar criterion was relied upon in making the adverse determination on review, a statement that a copy of the rule, guideline, protocol or other similar criterion will be provided without charge to the Claimant upon request.

 

 (c) Calculation of Time Periods. For purposes of the time periods specified in this Section, the period of time during which a benefit determination is required to be made begins at the time a claim is filed in accordance with the Plan procedures without regard to whether all the information necessary to make a decision accompanies the claim. If a period of time is extended due to a Claimant’s failure to submit all information necessary, the period for making the determination shall be tolled from the date the notification is sent to the Claimant until the date the Claimant responds.

 

 (d) Failure of Plan to Follow Procedures. If the Plan fails to follow the claims procedures required by this Section 8.4, a Claimant shall be deemed to have exhausted the

 

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administrative remedies available under the Plan and shall be entitled to pursue any available remedy under ERISA section 502(a) on the basis that the Plan has failed to provide a reasonable claims procedure that would yield a decision on the merits of the claim.

 

 (e) Failure of Claimant to Follow Procedures. A Claimant’s compliance with the foregoing provisions of this Section 8.4 is a mandatory prerequisite to the Claimant’s right to commence any legal action with respect to any claim for benefits under the Plan.

 

ARTICLE 9

AMENDMENT

 

9.1 RIGHT TO AMEND. The Employer, by action of its Board, shall have the right to amend the Plan, at any time and with respect to any provisions hereof, and all parties hereto or claiming any interest hereunder shall be bound by such amendment; provided, however, that no such amendment shall deprive a Participant or a Beneficiary of a benefit amount accrued hereunder prior to the date of the amendment.

 

9.2 AMENDMENTS TO ENSURE PROPER CHARACTERIZATION OF PLAN. Notwithstanding the provisions of Section 9.1, the Plan may be amended by the Employer, by action of the Board, at any time, retroactively if required, if found necessary, in the opinion of the Employer, in order to ensure that the Plan is characterized as “top-hat” plan of deferred compensation maintained for a select group of management or highly compensated employees as described under ERISA sections 201(2), 301(a)(3), and 401(a)(1), to conform the Plan to the provisions of Code §409A and the Treasury regulations or other authoritative guidance issued thereunder and to conform the Plan to the provisions and other requirements of any applicable law (including ERISA and the Code). No such amendment shall be considered prejudicial to any interest of a Participant or a Beneficiary hereunder.

 

9.3 CHANGES IN LAW AFFECTING TAXABILITY. This Section shall become operative upon the enactment of any change in applicable statutory law or the promulgation by the Internal Revenue Service of a final regulation or other pronouncement having the force of law, which statutory law, as changed, or final regulation or pronouncement, as promulgated, would cause any Participant to include in his or her federal gross income amounts accrued by the Participant under the Plan on a date (an “Early Taxation Event”) prior to the date on which such amounts are made available to him or her hereunder; provided, however, that no portion of this Section shall become operative to the extent that portion would result in a violation of Code section 409A (e.g., by causing an impermissible distribution under Code section 409A, or would result in pre-2005 deferrals becoming subject to Code section 409A).

 

(a) Affected Right or Feature Nullified. Notwithstanding any other Section of this Plan to the contrary (but subject to subsection (b), below), as of an Early Taxation Event, the feature or features of this Plan that would cause the Early Taxation Event shall be null and void, to the extent, and only to the extent, required to prevent the Participant from being required to include in his or her federal gross income amounts accrued by the Participant under the Plan prior to the date on which such amounts are made available to him or her hereunder. If only a portion of a Participant’s

 

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Account is impacted by the change in the law, then only such portion shall be subject to this Section, with the remainder of the Account not so affected being subject to such rights and features as if the law were not changed. If the law only impacts Participants who have a certain status with respect to the Employer, then only such Participants shall be subject to this Section.

 

(b) Tax Distribution. If an Early Taxation Event is earlier than the date on which the statute, regulation or pronouncement giving rise to the Early Taxation Event is enacted or promulgated, as applicable (i.e., if the change in the law is retroactive), there shall be distributed to each Participant, as soon as practicable following such date of enactment or promulgation, the amounts that became taxable on the Early Taxation Event.

 

ARTICLE 10

TERMINATION

 

10.1 EMPLOYER’S RIGHT TO TERMINATE OR SUSPEND PLAN. The Employer reserves the right to terminate the Plan and/or obligations to make further credits to Plan Accounts, by action of the Board. The Employer also reserves the right to suspend the operation of the Plan for a fixed or indeterminate period of time, by action of the Board. Finally, the Employer reserves the right to terminate any Employer’s participation herein as provided in Section 10.6.

 

10.2 AUTOMATIC TERMINATION OF PLAN. The Plan automatically shall terminate upon the dissolution of the Employer, or upon its merger into or consolidation with any other corporation or business organization if there is a failure by the surviving corporation or business organization to adopt specifically and agree to continue the Plan.

 

10.3 SUSPENSION OF DEFERRALS. In the event of a suspension of the Plan, the Employer shall continue all aspects of the Plan, other than contributions to the Plan, during the period of the suspension, in which event payments hereunder will continue to be made during the period of the suspension in accordance with Articles 5 and 6.

 

10.4 ALLOCATION AND DISTRIBUTION. This Section shall become operative on a complete termination of the Plan. The provisions of this Section also shall become operative in the event of a partial termination of the Plan, as determined by the Employer, but only with respect to that portion of the Plan attributable to the Participants to whom the partial termination is applicable. Upon the effective date of any such event, notwithstanding any other provisions of the Plan, but subject to Section 10.7, no persons who were not theretofore Participants shall be eligible to become Participants, the value of the interest of all Participants and Beneficiaries shall be determined and, after deduction of estimated expenses in liquidating and, if applicable, paying Plan benefits, paid to them as soon as is practicable after such termination; provided however, if immediate distribution of a Participant’s Account on termination is not permitted by Code section 409A and the Treasury regulations or other authoritative guidance issued thereunder, the payment of Plan Accounts shall be made only after Plan benefits otherwise become due hereunder.

 

10.5 SUCCESSOR TO EMPLOYER. Any corporation or other business organization which is a successor to the Employer by reason of a consolidation, merger or purchase of

 

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substantially all of the assets of the Employer shall have the right to become a party to the Plan by adopting the same by resolution of the entity’s board of directors or other appropriate governing body. If, within ninety (90) days from the effective date of such consolidation, merger or sale of assets, such new entity does not become a party hereto, as above provided, the Plan automatically shall be terminated, and the provisions of Section 10.4 shall become operative.

 

10.6 WITHDRAWAL OR TERMINATION BY AN EMPLOYER. Any Employer, by action of its board of directors or other governing authority and notice to the Employer and the Trustee, may withdraw from the Plan and Trust at any time, or may terminate the Plan and Trust with respect to its employees at any time, without affecting other Employers not withdrawing or terminating. A withdrawing Employer may arrange for the continuation of this Plan and Trust in separate forms for its own employees, with such amendments, if any, as it may deem proper, and may arrange for continuation of the Plan and Trust by merger with an existing plan and trust. The Employer may, in its absolute discretion, terminate an Employer’s participation in this Plan at any time, without the consent of any Employer, Participant or Beneficiary.

 

10.7 PROHIBITED ACCELERATION/DISTRIBUTION TIMING. This Section shall take precedence over any other provision of the Plan or this Article 10 to the contrary. No provision of this Plan shall be followed if following the provision would result in the acceleration of the time or schedule of any payment from the Plan as would require immediate income tax to Participants based on the law in effect at the time the distribution is to be made, including Code §409A. In addition, if the timing of any distribution election would result in any tax or other penalty (other then ordinary payable Federal, state any payroll taxes), which tax or penalty can be avoided by payment of the distribution at a later time, then the distribution shall be made (or commence as the case may be) on (or as soon as practicable after) the first date on which such distributions can be made (or commence) without such tax or penalty.

 

ARTICLE 11

THE TRUST

 

11.1 ESTABLISHMENT OF TRUST. The Employer shall establish the Trust with the Trustee pursuant to such terms and conditions as are set forth in the Trust agreement to be entered into between the Employer and the Trustee or the Employer shall cause to be maintained one or more separate subaccounts in an existing Trust maintained with the Trustee with respect to one or more other plans of the Employer, which subaccount or subaccounts represent Participants’ interests in the Plan. Any such Trust shall be intended to be treated as a “grantor trust” under the Code and the establishment of the Trust or the utilization of any existing Trust for Plan benefits, as applicable, shall not be intended to cause any Participant to realize current income on amounts contributed thereto, and the Trust shall be so interpreted.

 

ARTICLE 12

MISCELLANEOUS

 

12.1 LIABILITY OF EMPLOYER; LIMITATIONS ON LIABILITY OF EMPLOYER. Notwithstanding anything herein that may suggest otherwise, the Employer shall be solely liable for

 

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the payment of any benefits due hereunder. However, neither the establishment of the Plan nor any modification thereof, nor the creation of any account under the Plan, nor the payment of any benefits under the Plan shall be construed as giving to any Participant or other person any legal or equitable right against the Employer or any officer or employer thereof except as provided by law or by any Plan provision. The Employer shall not in any way guarantee any Participant’s Account from loss or depreciation, whether caused by poor investment performance of a deemed investment or the inability to realize upon an investment due to an insolvency affecting an investment vehicle or any other reason. In no event shall the Employer or any successor, employee, officer, director or stockholder of the Employer, be liable to any person on account of any claim arising by reason of the provisions of the Plan or of any instrument or instruments implementing its provisions, or for the failure of any Participant, Beneficiary or other person to be entitled to any particular tax consequences with respect to the Plan, or any credit or distribution hereunder.

 

12.2 CONSTRUCTION. If any provision of the Plan is held to be illegal or void, such illegality or invalidity shall not affect the remaining provisions of the Plan, but shall be fully severable, and the Plan shall be construed and enforced as if said illegal or invalid provision had never been inserted herein. For all purposes of the Plan, where the context admits, the singular shall include the plural, and the plural shall include the singular. Headings of Articles and Sections herein are inserted only for convenience of reference and are not to be considered in the construction of the Plan. The laws of Maryland shall govern, control and determine all questions of law arising with respect to the Plan and the interpretation and validity of its respective provisions, except where those laws are preempted by the laws of the United States. Participation under the Plan will not give any Participant the right to be retained in the service of the Employer nor any right or claim to any benefit under the Plan unless such right or claim has specifically accrued hereunder.

 

The Plan is intended to be and at all times shall be interpreted and administered so as to qualify as an unfunded deferred compensation plan, and no provision of the Plan shall be interpreted so as to give any individual any right in any assets of the Employer which is greater than the rights of a general unsecured creditor of the Employer.

 

12.3 SPENDTHRIFT PROVISION. No amount payable to a Participant or a Beneficiary under the Plan will, except as otherwise specifically provided by law, be subject in any manner to anticipation, alienation, attachment, garnishment, sale, transfer, assignment (either at law or in equity), levy, execution, pledge, encumbrance, charge or any other legal or equitable process, and any attempt to do so will be void; nor will any benefit be in any manner liable for or subject to the debts, contracts, liabilities, engagements or torts of the person entitled thereto. Further, (i) the withholding of taxes from Plan benefit payments, (ii) the recovery under the Plan of overpayments of benefits previously made to a Participant or Beneficiary, (iii) if applicable, the transfer of benefit rights from the Plan to another plan, or (iv) the direct deposit of benefit payments to an account in a banking institution (if not actually part of an arrangement constituting an assignment or alienation) shall not be construed as an assignment or alienation.

 

In the event that any Participant’s or Beneficiary’s benefits hereunder are garnished or attached by order of any court, the Employer or the Trustee may bring an action or a declaratory judgment in a court of competent jurisdiction to determine the proper recipient of the benefits to be

 

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paid under the Plan. During the pendency of said action, any benefits that become payable shall be held as credits to the Participant’s or Beneficiary’s Account or, if the Employer or the Trustee prefers, paid into the court as they become payable, to be distributed by the court to the recipient as the court deems proper at the close of said action.

 

12.4 EMPLOYER STOCK SUBJECT TO THE PLAN.

 

(a) Changes in Capital Structure. Subject to any required action by the stockholders and directors of the Employer, the number of units of Phantom Stock allocable to the Account of any Participant and the number of shares of Common Stock distributable from the Account of any Participant and the per-unit value or per-share price thereof shall be proportionately adjusted for any increase or decrease in the number of issued shares of Common Stock resulting from a stock split, reverse stock split, combination, reclassification, the payment of a stock dividend on the Common Stock or any other increase or decrease in the number of such shares of Common Stock effected without receipt of consideration by the Employer. Such adjustment shall be made by the Board, whose determination in that respect shall be final, binding, and conclusive.

 

The Employer may, if it so determines in the exercise of its sole discretion, also make provision for adjusting the number or class of securities covered by the Plan, as well as the value thereof or price to be paid therefor, in the event of the Employer’s effecting one or more reorganizations, recapitalizations, rights, offerings, or other increase or reductions of the number of shares of its outstanding Common Stock, or in the event of the Employer’s being consolidated with or merged into any other corporation. Unless otherwise determined by the Board, upon the dissolution or liquidation of the Employer or upon any merger or consolidation in any Plan Year, if the Employer is not the surviving corporation, a Participant’s right to receive shares of Common Stock hereunder shall terminate and thereupon become null and void.

 

(b) Necessary Actions. To the extent required by law, as determined by the Board, the adoption of the Plan shall be subject to approval by the affirmative vote of the stockholders of the Employer in accordance with applicable federal or state laws. Shares of Common Stock shall not be issued under the Plan unless the issuance and delivery of such securities pursuant thereto shall comply with all relevant provisions of federal, state, and local securities laws. As a condition to the issuance of securities under the Plan, the Employer may require the Participant to represent and warrant, at the time of any allocation of securities, that the securities are being acquired only for investment and without any present intention to sell or distribute such securities if, in the opinion of the Employer, such a representation is required by any of the aforementioned relevant provisions of law. During the term of this Plan, the Employer will at all times reserve and keep available the number of securities as shall be sufficient to satisfy the requirements of the Plan. Inability of the Employer to obtain pertinent approval or exemption from any regulatory body having jurisdiction and authority deemed by the Employer to be necessary to the lawful allocation, issuance, or sale of any securities hereunder shall relieve the Employer of any liability in respect of the nonallocation, nonissuance, or nonsale of such securities as to which such requisite authority shall not have been obtained.

 

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12.5 AGGREGATION OF EMPLOYERS. To the extent required under Code §409A and the Treasury regulations or other authoritative guidance issued thereunder, if the Employer is a member of a controlled group of corporations or a group of trades or business under common control (as described in Code §§414(b) or (c)), all members of the group shall be treated as a single Employer under the Plan.

 

IN WITNESS WHEREOF, the Employer has caused the Plan to be executed and its seal to be affixed hereto, effective as of the 31st day of December, 2004.

 

ATTEST/WITNESS:       MERISTAR HOSPITALITY CORPORATION

/s/ J. Brooks Martin

       By:  

/s/ Donald D. Olinger

   (SEAL)

Print:

  

J. Brooks Martin

      

Print Name: Donald D. Olinger

           

Date: December 29, 2004

 

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