EXHIBIT 10(4)(C)
AMENDMENT TO
THE PROMUS HOTEL CORPORATION SAVINGS AND
RETIREMENT PLAN - A
Whereas, Promus Hotel Corporation (the "Company"), a Delaware corporation,
finds it desirable to amend the Promus Hotel Corporation Savings and Retirement
Plan - A (the "Plan") in order to add additional provisions to the Plan
regarding qualified nonelective contributions and qualified matching
contributions. Pursuant to Section 11.1 of the Plan, the Plan is hereby
amended, effective as of June 30, 1995 or the earliest date permitted by law, as
follows:
1. Section 2.1 of Article II of the Plan is hereby amended by adding a
new Subsection (j) to the end thereof to read as follows:
(j) EMPLOYEE ACCOUNT 10 means the portion of a Member's Account which
evidences the value of the Qualified Contributions, if any, made
on his behalf by the Employer, and also any gains and losses of
the Fund attributable thereto.
2. Article II of the Plan is hereby further amended by adding new
subsections 2.36A, 2.36B and 2.36C thereof to read as follows:
2.36A QUALIFIED NONELECTIVE CONTRIBUTIONS means the qualified
nonelective contributions within the meaning of Internal Revenue Code
Section 401(m)(4)(C) and Code Regulation 1.401(k)-(1)(g)(13)(ii), if any,
made by an Employer pursuant to Sections 4.7(a)(2)(i)(B) and 4.7(b) of the
Plan.
2.36B QUALIFIED MATCHING CONTRIBUTIONS means the qualified
matching contributions within the meaning of Code Regulation 1.401(k)-
(1)(g)(13)(i)), if any, made by an Employer pursuant to Sections
4.7(a)(2)(i)(B) and 4.7(b) of the Plan.
2.36C QUALIFIED CONTRIBUTIONS means Qualified Nonelective
Contributions and Qualified Matching Contributions.
3. Section 2.46 of Article II of the Plan is hereby amended to read in
its entirety as follows:
2.46 VESTED BALANCE as of a given date means the Vested Percentage of the
Member's Employee Accounts 1, 6, and 8 plus the aggregate balances of the
Member's Employee Accounts 2, 3, 4, 5, 7, 9 and 10.
4. Article IV of the Plan is hereby amended by adding the following new
Subsection 4.4A thereof to read as follows:
4.4A QUALIFIED CONTRIBUTIONS
a. QUALIFIED CONTRIBUTIONS. To the extent permitted by Code
Section 401(k) and 401(m) and the regulations thereunder, each
Employer may make Qualified Nonelective Contributions and Qualified
Matching Contributions on behalf of some or all of its non-Highly
Compensated Employees, pursuant to Section 4.7 of the Plan.
b. TIMING AND ALLOCATION OF QUALIFIED CONTRIBUTIONS. Qualified
Nonelective Contributions and Qualified Matching Contributions, if
any, shall be made as soon as practicable after the Plan Year to which
they relate. Qualified Nonelective Contributions and Qualified
Matching Contributions shall be allocated to Employee Account 10 as
soon as administratively feasible following the payment of such
contributions to the Fund.
5. The second and third paragraphs preceding Section 4.7(a)(2)(i) of the
Plan are hereby amended in their entirety as follows:
The deferral percentage of each group of eligible Employees for any
Plan Year shall be the average of the ratios (calculated separately
for each eligible Employee in each group) of (i) the Before-Tax
Contributions made on behalf of each eligible Employee for such Plan
Year to (ii) such eligible Employee's Compensation for such Plan Year
or portion of the Plan Year in which the Employee was an Eligible
Employee as defined in Section 3.3. To the extent permitted by
applicable regulations, the Plan Administrator, in its discretion, may
elect to take Qualified Nonelective Contributions and/or Qualified
Matching Contributions into account in applying the deferral
percentage test of this subsection (a)(2). To the extent necessary to
conform to the limitation set forth in this subsection (a)(2), the
Plan Administrator may reduce Before-Tax Contributions made on behalf
of the Highly Compensated Employees. Such reduction shall be effected
by reducing contributions made on behalf of Highly Compensated
Employees (in the order of their actual deferral percentage) beginning
with the Highly Compensated Employees who elected the highest
percentage of such contributions. Any such reduction in the
Before-Tax Contributions made on behalf of any Member shall be
recharacterized as After-Tax Contributions or refunded to the Member
as soon as administratively possible, as provided in the Rules of the
Plan. If recharacterized, such excess contributions shall be
recharacterized as soon as practicable. In no event, however, shall
such excess contributions be left unrecharacterized later than two and
one-half months following the Plan Year in which such contributions
were made.
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In addition to the foregoing, if the Plan Administrator determines
during the course of a Plan Year or after the Plan Year that the
discrimination test of Code Section 401(k)(3) otherwise might not be
met for the Plan Year, the Plan Administrator may take the following
actions:
(A) reduce, at any time, the maximum percentage of Compensation at
which Highly Compensated Employees may elect Before-Tax
Contributions to such percentage as the Plan Administrator
determines appropriate to ensure that such test shall be met for
such Plan Year; or
(B) to the extent permitted by the Code Section 401(a)(4), Code
Regulation 1.401(k)-1(b)(5) (which are incorporated herein by
this reference) and other applicable regulations, the Company may
make a Qualified Nonelective Contribution and/or a Qualified
Matching Contribution to the Accounts 10 of certain Participants
and/or Eligible Employees (including Employees who are considered
eligible for purposes of the testing described in this Section
4.7(a)(2)) which contribution shall be allocated to Participants
and/or Eligible Employees in inverse order of Compensation
received in the Plan Year in question (lowest compensated
Participant or Eligible Employee receiving the first allocation)
with each Participant or Eligible Employee who receives an
allocation receiving the maximum allocation permitted by Code
Section 415 before any Participant or Eligible Employee with
greater Compensation receives any allocation, until such
contribution is fully allocated. For purposes of determining the
lowest compensated Participants and Eligible Employees, the Plan
Administrator, in its discretion, may (or to the extent required
by law, shall) annualize Compensation for part-time employees.
In order to conform to the limitation provided in this subsection
(a)(2), in the discretion of the Plan Administrator, the
correction methods described in this Section 4.7(a) may be
combined.
6. The second paragraph of Section 4.7(b) of the Plan is hereby amended
in its entirety as follows:
The contribution percentage of each group of eligible Employees for
any Plan Year shall be the average of the ratios (calculated
separately for each eligible Employee in each group) of (i) the
Matching Contributions and After-Tax Contributions made on behalf of
each eligible Employee for such Plan Year to (ii) such eligible
Employee's Compensation for such Plan Year or portion of the Plan Year
in which the Employee was an Eligible Employee as defined in Section
3.3. To the extent necessary to conform to such limitation, the Plan
Administrator may:
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(i) reduce Matching Contributions and After-Tax Contributions
made on behalf of the Highly Compensated Employees in a manner
similar to the method described in subsection (a), or
(ii) to the extent permitted by Code Section 401(a)(4), Code
Regulation Section 1.401(m)-1(b)(5) (which are incorporated
herein by this reference) and other applicable regulations, the
Company may make a Qualified Nonelective Contribution and/or a
Qualified Matching Contribution to the Accounts 10 of certain
Participants and/or Eligible Employees (including employees who
are considered eligible for purposes of the testing described in
this Section 4.7(b)) which contribution shall be allocated to
Participants and/or Eligible Employees in inverse order of
Compensation received in the Plan Year in question (lowest
compensated Participant or Eligible Employee receiving the first
allocation) with each Participant or Eligible Employee who
receives an allocation receiving the maximum allocation permitted
by Code Section 415 before any Participant or Eligible Employee
with greater Compensation receives any allocation, until such
contribution is fully allocated. For purposes of determining the
lowest compensated Participants and Eligible Employees, the Plan
Administrator, in its discretion, may (or to the extent required
by law, shall) annualize Compensation for part-time employees.
Any reduction in the Matching Contributions pursuant to item (i)
above or After-Tax Contributions pursuant to item (i) above made
on behalf of any Member (including income and losses allocable
thereto) shall be paid to the Member if vested, or treated as a
forfeiture (if forfeitable). If refunded, Matching Contributions
(and the income allocable to Matching Contributions) that are not
vested (determined without regard to any increase in vesting that
may occur after the date of the forfeiture) may also be forfeited
to correct excess aggregate contributions.
To the extent permitted by applicable Regulations, the Plan
Administrator may elect to take Before-Tax Contributions and
Qualified Nonelective Contributions into account in applying the
contribution percentage test of this subsection (b).
7. Section 4.7(b)(ix) of the Plan is hereby amended in its entirety to
read as follows:
(ix) Before-Tax Contributions and/or Qualified Nonelective
Contributions may be treated as matching contributions only if
the conditions described in Code Section 401(a)(4) and Code
Regulation 1.401(m)-1(b)(5) are satisfied.
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In order to conform to the limitation provided in this subsection (b),
the correction methods described in this subsection (b) may be
combined.
8. Section 4.8(a)(i) is hereby amended in its entirety to read as
follows:
(i) all Company and Affiliate contributions made for the Participant
under "any defined contribution plan" for the year (including
Qualified Contributions);
9. Section 4.7(d) of the Plan is hereby amended in its entirety as
follows:
(d) ADDITIONAL LIMITATION. The limits of this subsection shall
comply with the provisions of Code Regulation 1.401(m)-2 for "multiple
use of the alternative limitation" and for this purpose the provisions
of Section 1.401(m)-2(d) of the Code Regulations are incorporated
herein by reference. Correction of the multiple use of the
alternative limitation shall occur by first reducing the actual
contribution percentages for only those Highly Compensated Employees
who are eligible in both the arrangement subject to Code Section
401(k) and the plan subject to Code Section 401(m). If this is
insufficient to make the correction, then the actual deferral
percentage shall be reduced for these Employees in a manner that
complies with Code Regulations. Notwithstanding any other provision
in this subsection (d), instead of making such reductions described in
this subsection (d), an Employer may eliminate the "multiple use of
the alternative limitation" by making Qualified Nonelective
Contributions in accordance with Code Regulations 1.401(k)-1(b)(5) and
(f)(1) and Code Regulations 1.401(m)-1(b)(5) and (e)(1).
10. Section 7.1 of Article VII of the Plan is hereby amended in its
entirety to read as follows:
7.1 VESTING IN BEFORE-TAX CONTRIBUTIONS, ROLLOVER CONTRIBUTIONS AND
QUALIFIED CONTRIBUTIONS. A Member shall have a fully-vested interest
at all times in his Employee Accounts 2, 3, 4, 5, 7, 9 and 10.
11. Section 8.1 of Article VIII of the Plan is hereby amended in its
entirety to read as follows:
8.1 ORDER OF WITHDRAWAL. Subject to Section 8.2, a Member may
withdraw funds from his Account (valued as of the Valuation Date
immediately preceding the date of the withdrawal payment) in the
following order:
(a) Supplemental After-Tax Contributions and earnings from
Employee Account 5;
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(b) Basic After-Tax Contributions and earnings from Employee
Account 4;
(c) Rollover Contributions from Employee Account 7;
(d) Qualified Contributions from Employee Account 10;
(e) the vested portion of Basic Matching Contributions from
Employee Account 1;
(f) the vested portion of Discretionary Matching Contributions
from Employee Account 6;
(g) the vested portion derived from the Harrah's Plans in
Employee Account 8;
(h) all or any part of the amounts transferred from the Holiday
Inns, Inc. Employee's Retirement Plan in Employee Account 9;
(i) Supplemental Before-Tax Contributions from Employee Account
3 (and earnings credited to the analogous account under the
Predecessor Plan as of December 31, 1988 and transferred to
such Account 3); and
(j) Basic Before-Tax Contributions from Employee Account 2 (and
earnings credited to the analogous account under the
Predecessor Plan as of December 31, 1988 and transferred to
such Account 2).
(k) Earnings credited to Before-Tax Contributions after December
31, 1988.
Such a withdrawal shall be processed as soon as administratively
feasible following receipt of notice of such withdrawal by the Member
in accordance with the Rules of the Plan; PROVIDED, HOWEVER, a Member
must give at least 30 days advance written notice to the Plan
Administrator (or such other advance written notice the Plan
Administrator may allow in a uniform and nondiscriminatory manner) to
withdraw funds from Employee Account 9.
12. Section 8.2(b) of Article VIII of the Plan is hereby amended in its
entirety to read as follows:
(b) ADDITIONAL RESTRICTIONS ON WITHDRAWAL OF MATCHING CONTRIBUTIONS.
No amounts may be withdrawn under Sections 8.1(e) and (f) unless
the Member making the withdrawal has been participating in the
Plan for at
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least 60 months or unless the amounts being withdrawn have been
in the Fund for at least 24 months.
13. Section 8.2(c)(1) of Article VIII of the Plan is hereby amended in its
entirety to read as follows:
(c) ADDITIONAL RESTRICTIONS ON WITHDRAWALS FROM EMPLOYEE ACCOUNTS 2, 3, 8,
9 AND 10.
(1) A withdrawal under Sections 8.1(d), (g), (h), (i), (j) and (k)
shall be permitted only upon a Member's Retirement Date or other
Termination of Service, attainment of age 59 1/2, or financial
hardship (except a withdrawal under 8.1(k) shall not be permitted
upon a financial hardship). See also the provisions of Section
11.2 for distributions allowed upon plan termination and the
restrictions thereon and also the provisions herein dealing with
qualified domestic relations orders.
14. Section 11.2(2) of Article XI of the Plan is hereby amended in its
entirety to read as follows:
(2) The Employee's attainment of age 59 1/2 or the Employee's
financial hardship as described in Section 8.2(c)(2) except that
earnings credited to any Before-Tax Contributions after December
31, 1988 may not be withdrawn on account of an Employee's
financial hardship.
Executed on this 10th day of September, 1996.
/s/ Raymond E. Schultz
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Raymond E. Schultz
Chief Executive Officer
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