CHOICE HOTELS INTERNATIONAL, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
Effective January 1, 2003
TABLE OF CONTENTS
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ARTICLE I--PURPOSE AND EFFECTIVE DATE.................................................................. 1
ARTICLE II--DEFINITIONS................................................................................ 1
2.1 Account........................................................................................ 1
2.2 Administrative Committee....................................................................... 1
2.3 Beneficiary.................................................................................... 1
2.4 Board.......................................................................................... 1
2.5 Change in Control.............................................................................. 1
2.6 Code........................................................................................... 2
2.7 Company........................................................................................ 2
2.8 Compensation................................................................................... 3
2.9 Deferral Election.............................................................................. 3
2.10 Disability..................................................................................... 3
2.11 Discretionary Contribution..................................................................... 3
2.12 Effective Date................................................................................. 3
2.13 Elected Deferred Compensation.................................................................. 3
2.14 Employer....................................................................................... 3
2.15 Financial Hardship............................................................................. 3
2.16 Hardship Distribution.......................................................................... 4
2.17 Match Rate..................................................................................... 4
2.18 Matching Contribution.......................................................................... 4
2.19 Moody's Rate of Return......................................................................... 4
2.20 Moody's Plus Rate of Return.................................................................... 4
2.21 Participant.................................................................................... 4
2.22 Participation Agreement........................................................................ 4
2.23 Plan........................................................................................... 5
2.24 Plan Year...................................................................................... 5
2.25 Small Benefit.................................................................................. 5
2.26 Transfer Contribution.......................................................................... 5
2.27 Year of Service................................................................................ 5
ARTICLE III--PARTICIPATION AND DEFERRAL ELECTIONS...................................................... 5
3.1 Eligibility and Participation.................................................................. 5
3.2 Deferral Elections............................................................................. 5
3.3 Commencement, Duration and Modification of Deferral Election................................... 6
(i)
TABLE OF CONTENTS
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ARTICLE IV--DEFERRED COMPENSATION ACCOUNTS............................................................. 6
4.1 Accounts....................................................................................... 6
4.2 Crediting of Deferrals......................................................................... 6
4.3 Basic Account.................................................................................. 6
4.4 Matching Contribution Account.................................................................. 6
4.5 Discretionary Contribution Account............................................................. 7
4.6 Transfer Contribution.......................................................................... 7
4.7 Vesting of Accounts............................................................................ 7
4.8 Statement of Accounts.......................................................................... 8
ARTICLE V--INVESTMENT AND EARNINGS..................................................................... 8
5.1 Plan Investments............................................................................... 8
5.2 Crediting Investment Gains and Losses.......................................................... 8
ARTICLE VI--PLAN BENEFITS.............................................................................. 8
6.1 Commencement and Distribution Options.......................................................... 8
6.2 Death Benefits................................................................................. 9
6.3 Disability Benefits............................................................................ 9
6.4 Hardship Distribution.......................................................................... 10
6.5 Accelerated Distribution....................................................................... 10
6.6 Small Benefit.................................................................................. 10
6.7 Withholding and Payroll Taxes.................................................................. 10
6.8 Payment to Guardian............................................................................ 11
ARTICLE VII--BENEFICIARY DESIGNATION................................................................... 11
7.1 Beneficiary Designation........................................................................ 11
7.2 Changing Beneficiary........................................................................... 11
7.3 No Beneficiary Designation..................................................................... 11
7.4 Effect of Payment.............................................................................. 12
ARTICLE VIII--ADMINISTRATION........................................................................... 12
8.1 Committee; Duties.............................................................................. 12
8.2 Agents......................................................................................... 12
8.3 Binding Effect of Decisions.................................................................... 12
8.4 Indemnity of Committee......................................................................... 12
8.5 Election of Committee After Change in Control.................................................. 12
(ii)
TABLE OF CONTENTS
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ARTICLE IX--CLAIMS PROCEDURE........................................................................... 13
9.1 Claim.......................................................................................... 13
9.2 Denial of Claim................................................................................ 13
9.3 Review of Claim................................................................................ 13
9.4 Final Decision................................................................................. 13
ARTICLE X--AMENDMENT AND TERMINATION OF PLAN........................................................... 13
10.1 Amendment...................................................................................... 13
10.2 Company's Right to Terminate................................................................... 14
ARTICLE XI--MISCELLANEOUS.............................................................................. 15
11.1 Unfunded Plan.................................................................................. 15
11.2 Unsecured General Creditor..................................................................... 15
11.3 Trust Fund..................................................................................... 15
11.4 Nonassignability............................................................................... 15
11.5 Not a Contract of Employment................................................................... 16
11.6 Protective Provisions.......................................................................... 16
11.7 Governing Law.................................................................................. 16
11.8 Validity....................................................................................... 16
11.9 Gender......................................................................................... 16
11.10 Notice......................................................................................... 16
11.11 Successors..................................................................................... 16
(iii)
CHOICE HOTELS INTERNATIONAL, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
ARTICLE I--PURPOSE AND EFFECTIVE DATE
The purpose of this Executive Deferred Compensation Plan is to provide
current tax planning opportunities as well as supplemental funds upon the
retirement or death of certain key employees of Employer. It is intended that
the Plan will aid in attracting and retaining employees of exceptional ability
by providing them with these benefits.
ARTICLE II--DEFINITIONS
For the purposes of this Plan, the following terms shall have the
meanings indicated, unless the content clearly indicates otherwise:
2.1 Account
"Account" means the interest of a Participant in the Plan as
represented by the hypothetical bookkeeping entries kept by Employer. Separate
Accounts shall be established for each Participant in accordance with the
provisions of Section 4.1 of the Plan.
2.2 Administrative Committee
"Administrative Committee" means the committee appointed by the
Company's Chief Executive Officer to administer the Plan pursuant to Article
VIII.
2.3 Beneficiary
"Beneficiary" means the person, persons or entity (including, without
limitation, any trustee) entitled to receive the benefits specified hereunder,
in the event of the Participant's death, as determined pursuant to the
provisions of Article VII.
2.4 Board
"Board" means the Board of Directors of the Company.
2.5 Change in Control
"Change in Control" of the Company means, and shall be deemed to have
occurred upon, the first to occur of any of the following events:
(a) Any "Person" (other than those Persons in control of the
Company as of the Effective Date, or other than a trustee or other
fiduciary holding securities under an employee benefit plan of the
Company, or a corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportions as
their ownership of stock of the Company) becomes the "Beneficial
Owner," directly or indirectly, of securities of the Company
representing twenty-
PAGE 1 - EXECUTIVE DEFERRED COMPENSATION PLAN
five percent (25%) or more of the combined voting power of the
Company's then outstanding securities; or
(b) During any period of two (2) consecutive years after an
employee becomes a Plan Participant, individuals who at the beginning
of such period constitute the Board (and any new Director, whose
election by the Company's stockholders was approved by a vote of at
least two-thirds (2/3) of the Directors then still in office who
either were Directors at the beginning of the period or whose election
or nomination for election was so approved), cease for any reason to
constitute a majority thereof; or
(c) The stockholders of the Company approve:
(i) A plan of complete liquidation of the Company; or
(ii) An agreement for the sale or disposition of all or
substantially all of the Company's assets; or
(iii) A merger, consolidation, or reorganization of the
Company with or involving any other corporation, other than a
merger, consolidation, or reorganization that would result in the
voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding
or by being converted into voting securities of the surviving
entity) at least fifty percent (50%) of the combined voting power
of the voting securities of the Company (or such surviving
entity) outstanding immediately after such merger, consolidation,
or reorganization.
However, in no event shall a "Change in Control" be deemed to
have occurred, with respect to the Participant, if the Participant is
part of a purchasing group which consummates the Change in Control
transaction. The Participant shall be deemed "part of a purchasing
group" for purposes of the preceding sentence if the Participant is an
equity participant in the purchasing company or group except for:
(i) Passive ownership of less than two percent (2%) of the
stock of the purchasing company; or
(ii) Ownership of equity participation in the purchasing
company or group which is otherwise not significant, as
determined prior to the Change in Control by a majority of the
nonemployee continuing Directors.
For purposes of this Section, the terms "Person" and "Beneficial
Owner" shall have the meanings given those terms in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, and Rule 13d-3 under that Act.
2.6 Code
"Code" means the Internal Revenue Code of 1986, as amended.
2.7 Company
"Company" means Choice Hotels International, Inc., or any successor to
the business thereof.
PAGE 2 - EXECUTIVE DEFERRED COMPENSATION PLAN
2.8 Compensation
"Compensation" means the base salary and bonus payable to a
Participant for services performed for the Employer and considered to be wages
for purposes of federal income tax withholding. Inclusion of any other forms of
Compensation is subject to the sole discretion of the Committee, which need not
be applied on a uniform basis among all Participants. Compensation shall be
calculated before reduction for any amounts deferred by the Participant pursuant
to the Employer's tax qualified plans which may be maintained under Code Section
401(a) or a plan maintained under Code Section 125, or under this Plan.
2.9 Deferral Election
"Deferral Election" means a commitment by a Participant to defer a
portion of Compensation to this Plan and for which a Participation Agreement has
been submitted by the Participant to the Administrative Committee.
2.10 Disability
"Disability" means a physical or mental condition that prevents the
Participant from satisfactorily performing the Participant's usual duties for
Employer. The Administrative Committee shall determine the existence of
Disability and may rely on advice from a medical examiner satisfactory to the
Administrative Committee in making the determination.
2.11 Discretionary Contribution
"Discretionary Contribution" means an Employer contribution credited
to a Participant's Account pursuant to Section 4.5 of this Plan.
2.12 Effective Date
This Plan shall be effective as of January 1, 2003.
2.13 Elected Deferred Compensation
"Elected Deferred Compensation" means the amount of Compensation that
a Participant elects to defer pursuant to a Deferral Election.
2.14 Employer
"Employer" means the Company and any affiliated or subsidiary entities
designated by the Board as participating in this Plan.
2.15 Financial Hardship
"Financial Hardship" means an unforeseeable emergency due to an
illness or accident of the Participant or Beneficiary, the Participant's or
Beneficiary's spouse or the Participant's or Beneficiary's dependant (as defined
in Section 152(a)) of the Code; loss of the Participant's or Beneficiary's
property due to casualty; or other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of the
Participant or the Beneficiary that would result in severe financial hardship if
early withdrawal were not permitted. Financial Hardship will not exist if the
financial need can be relieved through reimbursement or compensation from
insurance or otherwise; by liquidation of the
PAGE 3 - EXECUTIVE DEFERRED COMPENSATION PLAN
Participant's assets, to the extent the liquidation of such assets would not
itself cause severe financial hardship; or by cessation of deferrals under the
Plan.
2.16 Hardship Distribution
"Hardship Distribution" means a distribution pursuant to Section 6.4
of the Plan made on account of the Participant or Beneficiary's Financial
Hardship. Such distribution must be limited to the amount reasonably necessary
to satisfy the Financial Hardship (which may include any amounts necessary to
pay any federal, state, or local income taxes or penalties reasonably
anticipated to result from the distribution).
2.17 Match Rate
"Match Rate" means the rate at which base salary deferrals are matched
determined by reference to the Participant's Years of Service as of the first
day of the Plan Year. The Match Rate shall be as follows:
1 2
YEARS OF
SERVICE MATCH RATE
- ----------------------------------------
1-5 50%
6-9 75
10 or More 100
========================================
2.18 Matching Contribution
"Matching Contribution" means an Employer contribution credited to a
Participant's Account pursuant to Section 4.4 of this Plan.
2.19 Moody's Rate of Return
"Moody's Rate of Return" means, with respect to any calendar month,
the monthly equivalent of three percentage points (3%) greater than the annual
yield of the Moody's Average Corporate Bond Yield Index for the preceding
calendar month as published by Moody's Investor Services, Inc. (or any successor
thereto), or, if such index is no longer published, a substantially similar
index selected by the Board.
2.20 Participant
"Participant" means any individual who is participating in this Plan
as provided in Article III.
2.21 Participation Agreement
"Participation Agreement" means the agreement, whether written or
provided through electronic means, to defer Compensation submitted by a
Participant to the Administrative Committee or its delegates prior to the
commencement of the period in which the Elected Deferred Compensation is to be
earned.
PAGE 4 - EXECUTIVE DEFERRED COMPENSATION PLAN
2.22 Plan
"Plan" means this Choice Hotels International, Inc. Executive Deferred
Compensation Plan as set forth in this document and as the same may be amended
from time to time.
2.23 Plan Year
"Plan Year" means each calendar year beginning on January 1 and ending
on December 31.
2.24 Small Benefit
"Small Benefit" means a lump-sum payment pursuant to Section 6.6 of
the Plan.
2.25 Transfer Contribution
"Transfer Contribution" means a Participant's contribution credited to
a Participant's Account pursuant to Section 4.6 of the Plan.
2.26 Year of Service
"Year of Service" shall be complete twelve (12) month periods
beginning on the Participant's date of hire.
ARTICLE III--PARTICIPATION AND DEFERRAL ELECTIONS
3.1 Eligibility and Participation
(a) Eligibility. The Company's Chief Executive Officer (CEO)
and executive employees who report directly to the CEO shall be
eligible to participate in the Plan.
(b) Participation. An eligible employee may elect to participate
in the Plan with respect to a Plan Year by submitting a Participation
Agreement to the Administrative Committee prior to the beginning of
such Plan Year.
(c) Part-Year Participation. In the event an employee first
becomes eligible to participate in the Plan on other than the first
day of a Plan Year, a Participation Agreement may be submitted to the
Administrative Committee within thirty (30) days after the
Administrative Committee notifies such employee of eligibility to
participate in the Plan. The Deferral Election shall be effective only
with regard to Compensation earned following submission of the
Participation Agreement to the Administrative Committee.
3.2 Deferral Elections
A Participant may file with the Administrative Committee a
Participation Agreement to defer any or all of the following:
(a) Salary Deferrals. A Participant may elect to defer up to
ninety percent (90%) of base salary. The amount to be deferred shall
be stated as a whole percentage of base salary.
PAGE 5 - EXECUTIVE DEFERRED COMPENSATION PLAN
(b) Bonus Deferrals. A Participant may elect to defer all or
any portion of each bonus to be paid by the Employer. The amount to be
deferred shall be stated as a whole percentage of each bonus payment.
(c) Changes to Deferral Elections. Participants may modify a
salary deferral election at any time; however, such modification shall
only be effective for salary earned after the date of modification.
The Administrative Committee may change the maximum percentage of base
salary and/or bonus that may be deferred by giving written notice to
all Participants. No such change may affect a Deferral Election
entered into prior to the Administrative Committee's action.
3.3 Commencement, Duration and Modification of Deferral Election
(a) Commencement. A Deferral Election shall become effective
on the first day of the Plan Year immediately following the date a
Participation Agreement for such Deferral Election is filed with the
Administrative Committee.
(b) Duration. A Deferral Election shall remain in effect for
the Plan Year.
(c) Modification. A Deferral Election shall terminate on the
date a Participant terminates employment, receives a Hardship
Distribution pursuant to Section 6.4 or an Accelerated Distribution
pursuant to Section 6.5 of the Plan.
ARTICLE IV--DEFERRED COMPENSATION ACCOUNTS
4.1 Accounts
For recordkeeping purposes only, Employer shall maintain at least
three (3) separate Accounts for each Participant. The Accounts shall be known as
the Basic Account, Matching Contribution Account, and Discretionary Contribution
Account.
4.2 Crediting of Deferrals
A Participant's Elected Deferred Compensation which consists of
deferred base salary shall be credited to the Participant's Accounts as of the
date when the corresponding nondeferred portion of the Participant's base salary
is paid or would have been paid but for the Deferral Election. Beginning January
1 of each Plan Year, a Participant's Elected Deferred Compensation which
consists of deferred bonus shall be credited to the Participant's Accounts as of
the date of each year on which the corresponding bonus is paid or would have
been paid but for the Deferral Election.
4.3 Basic Account
A Participant may establish a Basic Account by filing a Participation
Agreement to defer Compensation into the Account and to receive benefits from
such Account as elected by the Participant.
PAGE 6 - EXECUTIVE DEFERRED COMPENSATION PLAN
4.4 Matching Contribution Account
There shall be credited to each Participant's Matching Contribution
Account an amount equal to (a) less (b), where:
(a) Equals total base salary (up to fifteen percent (15%)
total) deferred under this Plan and the Company's 401(k) plan, times
the Participant's Match Rate; and
(b) Equals the match to the Company's 401(k) plan which is
allocated to such Participant's account in the 401(k) plan, after all
necessary adjustments have been made to reflect any applicable
nondiscrimination rules.
The amount credited to the Matching Contribution Account shall be as
of the date designated by the Administrative Committee.
4.5 Discretionary Contribution Account
The Employer may make contributions in such amount and at such times
as recommended by the Administrative Committee and approved by the Compensation
Committee of the Board, or as the Board, in its sole discretion, shall
determine. Such amount shall be credited to the Participant's Discretionary
Contribution Account as of the date designated by the Administrative Committee.
4.6 Transfer Contribution
Any Eligible Participant who has one or more account balance in the
Company's Deferred Compensation Plan or in the Company's Nonqualified Retirement
Savings and Investment shall have their balances in such plans transferred to
this Plan as of the date or dates selected by the Committee. Such transfers to
this Plan shall include the vested and nonvested portions of the Participant's
balances in such Plans, and such amounts shall be appropriately allocated among
the Participant's Termination Account and Matching Contribution Account,
respectively.
4.7 Vesting of Accounts
Each Participant shall be vested in the amounts credited to such
Participant's Account as follows:
(a) Elected Deferred Compensation. A Participant shall be
one hundred percent (100%) vested at all times in his Elected Deferred
Compensation and any gains or losses thereon.
(b) Matching Contributions. A Participant's Matching
Contribution Account shall be vested at the rate of twenty percent
(20%) for each completed Year of Service; except, a Participant shall
become one hundred percent (100%) vested at death or Disability. In
addition, the Compensation Committee of the Board, or the Board, may,
in its sole discretion, accelerate all or any portion of a
Participant's Matching Contribution Account at any time and from time
to time.
(c) Discretionary Contributions. A Participant's Discretionary
Contribution Account shall become vested as determined by the
Compensation Committee of the Board, or by the Board.
PAGE 7 - EXECUTIVE DEFERRED COMPENSATION PLAN
4.8 Statement of Accounts
From time to time, but not less frequently than annually, the
Administrative Committee shall provide to each Participant a benefit statement
setting forth the balance of the Accounts maintained for the Participant.
ARTICLE V--INVESTMENT AND EARNINGS
5.1 Plan Investments
A Participant shall complete a portfolio allocation form electing from
among a series of hypothetical investment options designated by the
Administrative Committee into which the Participant's Elected Deferred
Compensation, Transfer Contribution and all Employer contributions shall be
credited. In addition to the hypothetical investment options designated by the
committee, the Moody's Plus Rate of Return shall also be available as a
hypothetical investment for all active Participants and any Participant who
terminates after age fifty-five (55) with ten (10) or more Years of Service. For
Participants who terminate before age fifty-five (55) and ten (10) Years of
Service, the Moody's Rate of Return shall be available. In the event a
Participant terminates employment prior to age fifty-five (55) or prior to
having completed ten (10) or more Years of Service and does not terminate with
the approval of the Board, then from and after such termination, the Moody's
Rate of Return shall not be an available hypothetical investment option as to
such Participant.
The performance of the Participant's Accounts shall be measured based
upon the investment options selected. The Participant's Accounts shall be
credited with such hypothetical crediting rates calculated after any applicable
investment managers' expenses have been deducted but before any
insurance-related or other expenses have been deducted. Investment options may
be changed monthly by following such procedures as may be determined by the
Administrative Committee. A revised or changed investment allocation shall be
effective on the first business day of the next month following the
Participant's request for a change.
5.2 Crediting Investment Gains and Losses
Participant Accounts shall be credited daily with investment gains and
losses as if such Account(s) were invested in one (1) or more of the Plan's
investment options, as selected by the Participant, less administrative charges
applied against the particular investment options.
ARTICLE VI--PLAN BENEFITS
6.1 Commencement and Distribution Options
(a) Commencement. Benefits shall commence based upon an election
made by the Participant. Participants may elect to commence benefits
upon termination or a January selected by the Participant. Such date
may not be later than January following the Participant's sixty-fifth
(65th) birthday.
(b) Form of Payment. Benefits payable due to the Participant's
election or the death of the Participant may be made in one (1) or a
combination of the following forms:
PAGE 8 - EXECUTIVE DEFERRED COMPENSATION PLAN
(i) Lump Sum. One (1) lump-sum payment.
(ii) Installment Payments. Annual installment payments
amortized over a period of up to twenty (20) years, as elected by
the Participant. The first installment payment shall be paid as
soon as is administratively feasible after the Participant's
elected date or death. Subsequent installments shall be paid at
the beginning of each subsequent Plan Year based on the remaining
Account balance as of the immediately preceding December 31, as
adjusted for gains and losses, and the remaining number of
installment payments. Adjustments for investment gains and losses
shall continue on unpaid Account balances.
(iii) If a Participant has made no election, benefit
payments shall be paid in a lump sum upon termination.
(c) Change in Form and Time of Payment. A Participant's
election as to the form and time of distribution shall be irrevocable,
except that a Participant may file a new form and time of payment
election which shall supersede his most recent prior election provided
the election is made at least sixty (60) days prior to the date of
scheduled benefit commencement or death. An election filed within the
sixty (60) days preceding scheduled benefit commencement or death
shall be null and void and the next preceding timely election filed by
the Participant shall be controlling.
6.2 Death Benefits
(a) Pre-Benefit Commencement. A Beneficiary shall receive
all of the Participant's Account balances in the form elected by the
Participant pursuant to Section 6.1 of the Plan.
(b) Post-Benefit Commencement. If a Participant dies following
the commencement of benefit payments, the Employer shall continue to
pay to the Beneficiary any remaining installment payments that would
have been paid to the Participant had the Participant survived.
If a Participant dies after all Account balances have been
completely distributed, no death benefit shall be payable to the
Beneficiary under the Plan.
(c) Investment Direction. The Beneficiary shall succeed to the
Participant's right to direct investments pursuant to Section 5.1 of
the Plan following the Participant's death.
(d) Subsequent Beneficiaries. If a Beneficiary who is receiving
payments dies before all payments have been paid, any subsequent
Beneficiary (as determined and provided for in Article VII) shall be
paid any remaining Account balances in a lump sum as soon as practical
after the death of the first Beneficiary.
6.3 Disability Benefits
Upon a finding that a Participant has suffered a Disability, the
Administrative Committee may, in its sole discretion, modify the Participant's
current Deferral Election or make distributions notably from the Participant's
Accounts in an amount reasonably necessary to meet the Participant's needs
resulting from the Disability. Such distribution shall not exceed the
Participant's vested balance in the Participant's Accounts and shall be paid in
a single lump sum.
PAGE 9 - EXECUTIVE DEFERRED COMPENSATION PLAN
6.4 Hardship Distribution
Upon finding that a Participant or Beneficiary has suffered a
Financial Hardship, the Administrative Committee may, in its sole discretion,
make distributions from the Participant's Account prior to the time specified
for payment of benefits under the Plan. The Hardship Distribution shall be made
ratably from all Accounts. The amount of such distribution shall be limited to
the amount reasonably necessary to meet the Participant's or Beneficiary's
requirements during the Financial Hardship.
Applications for a Hardship Distribution and determinations thereon by
the Administrative Committee shall be in writing, and a Participant or
Beneficiary may be required to furnish written proof of the Financial Hardship,
as determined by the Administrative Committee in its sole discretion.
Upon receiving a Hardship Distribution, a Participant's Deferral
Election shall cease and such Participant shall not participate in the Plan
until the first day of the Plan Year following twelve (12) months from the date
of the Hardship Distribution.
6.5 Accelerated Distribution
Notwithstanding any other provision of the Plan, at any time a
Participant shall be entitled to receive, upon written request to the
Administrative Committee, a lump-sum distribution equal to ninety percent (90%)
(ninety-four percent (94%) if requested within thirty-six (36) months of a
Change in Control) of the vested balance of his Accounts on the last day of the
month immediately preceding the date on which the Administrative Committee
receives the written request. The remaining balance of such Accounts plus any
nonvested amounts shall be forfeited by the Participant. Notwithstanding any
provision in the Plan to the contrary, a distribution pursuant to this Section
6.5 shall be made as soon as administratively feasible but in no event later
than thirty (30) days after the request is received by the Administrative
Committee. Such Participant's Deferral Election shall cease at the time the
request is filed with the Administrative Committee and such Participant shall
not be eligible to make a new Deferral Election until the first day of the Plan
Year following a period of twelve (12) months from the date of distribution.
6.6 Small Benefit
Notwithstanding any election made by the Participant, if, on the
Participant's date of termination or date of death, the vested balance of his
Accounts is less than fifty thousand dollars ($50,000), such Account shall be
paid to the Participant or Beneficiary in a single lump sum.
6.7 Withholding and Payroll Taxes
The Employer shall withhold from Plan payments and, in the case of
Social Security and Medicare taxes, shall withhold from Elected Deferred
Compensation, any taxes required to be withheld under federal, state or local
law. Such taxes shall be withheld from the Plan payments to the maximum extent
possible with any excess being withheld from the Participant's nondeferred base
salary or bonus to the maximum extent possible , and then from the Participant's
Elected Deferred Compensation. Each Participant shall bear the ultimate
responsibility for payment of all taxes owed under this Plan.
PAGE 10 - EXECUTIVE DEFERRED COMPENSATION PLAN
6.8 Payment to Guardian
If a Plan benefit is payable to a minor or a person declared
incompetent or to a person incapable of handling the disposition of his
property, the Administrative Committee may direct payment to the guardian,
conservator, legal representative or person having the care and custody of such
minor, incompetent or incapacitated person. The Administrative Committee may
require proof of minority, incompetency, incapacity, conservatorship or
guardianship as it may deem appropriate prior to distribution. Such distribution
shall completely discharge the Administrative Committee from all liability with
respect to such benefit.
ARTICLE VII--BENEFICIARY DESIGNATION
7.1 Beneficiary Designation
Each Participant shall have the right, at any time, to designate one
(1) or more persons or entity as Beneficiary (both primary as well as secondary)
to whom benefits under this Plan shall be paid in the event of Participant's
death prior to complete distribution of the Participant's vested Account
balance. Each Beneficiary designation shall be in a written form prescribed by
the Administrative Committee and shall be effective only when filed with the
Administrative Committee during the Participant's lifetime.
For married Participants living in a community property state, the
Participant's spouse shall be entitled to fifty percent (50%) interest in any
benefit due the Participant unless such spouse waives the right to receive such
benefit by executing a written consent acknowledging the effect of the
Beneficiary designation, or it is established that such consent cannot be
obtained because the spouse cannot be located.
If the Participant's validly designated Beneficiary survives the
Participant but dies prior to the complete distribution of the Participant's
benefits, the remaining benefits will be paid to the deceased Beneficiary's
estate in accordance with Section 6.2(d).
7.2 Changing Beneficiary
Any Beneficiary designation may be changed by a Participant living
outside a community property state without the consent of the previously named
Beneficiary by the filing of a new Beneficiary designation with the
Administrative Committee.
A married Participant living in a community property state may change
Beneficiary designation by filing a new Beneficiary designation with the
Administrative Committee with the consent of the Participant's spouse as
provided for in Section 7.1 above. The filing of a new designation shall
supercede all designations previously filed.
7.3 No Beneficiary Designation
If any Participant fails to designate a Beneficiary in the manner
provided above, if the designation is void, or if the Beneficiary dies before
the Participant, the Participant's Beneficiary shall be the person in the first
of the following classes in which there is a survivor:
(a) The Participant's surviving spouse;
PAGE 11 - EXECUTIVE DEFERRED COMPENSATION PLAN
(b) The Participant's children in equal shares, except that if
any of the children predecease the Participant with surviving issue,
then such issue shall take by right of representation;
(c) The Participant's estate.
7.4 Effect of Payment
Payment to the Beneficiary shall completely discharge the Employer's
obligations under this Plan.
ARTICLE VIII--ADMINISTRATION
8.1 Committee; Duties
The Plan shall be administered by an Administrative Committee
consisting of at least three (3) members as may be appointed by the Company's
Chief Executive Officer except after a Change in Control, as provided in Section
8.5 below. The Administrative Committee shall have the authority to make, amend,
interpret and enforce all appropriate rules and regulations for the
administration of the Plan and decide or resolve any and all questions,
including interpretations of the Plan, as may arise in such administration. A
majority vote of the Administrative Committee members in office at the time of
the vote shall control any decision. Members of the Administrative Committee may
be Participants in this Plan.
8.2 Agents
The Administrative Committee may employ agents and delegate to them
such administrative duties as it sees fit, and may consult with counsel who may
be counsel to the Company.
8.3 Binding Effect of Decisions
The decision or action of the Administrative Committee with respect to
any question arising out of or in connection with the administration,
interpretation and application of the Plan and the rules and regulations
promulgated hereunder shall be final, conclusive and binding upon all persons
having any interest in the Plan.
8.4 Indemnity of Committee
The Company shall indemnify and hold harmless the members of the
Administrative Committee against any and all claims, loss, damage, expense or
liability arising from any action or failure to act with respect to this Plan on
account of such person's service on the Administrative Committee, except in the
case of gross negligence or willful misconduct.
8.5 Election of Committee After Change in Control
After a Change in Control, vacancies on the Administrative Committee
shall be filled by majority vote of the remaining Administrative Committee
members and Administrative Committee members may be removed only by such a vote.
If no Administrative Committee members remain, a new Administrative Committee
shall be elected by majority vote of the Participants in the Plan immediately
preceding such Change in Control. No amendment shall be made to Article VIII or
other Plan provisions regarding
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Administrative Committee authority with respect to the Plan without prior
approval by the Administrative Committee.
ARTICLE IX--CLAIMS PROCEDURE
9.1 Claim
Any person claiming a benefit, requesting an interpretation or ruling
under the Plan, or requesting information under the Plan, shall present the
request in writing to the Administrative Committee which shall respond in
writing within thirty (30) days.
9.2 Denial of Claim
If the claim or request is denied, the written notice of denial shall
state:
(a) The reason for denial, with specific reference to the Plan
provisions on which the denial is based.
(b) A description of any additional material or information
required and an explanation of why it is necessary.
(c) An explanation of the Plan's claim review procedure.
9.3 Review of Claim
Any person whose claim or request is denied may request review by
notice given in writing to the Administrative Committee. Such notice must be
received by the Administrative Committee within sixty (60) days following the
end of the thirty (30) day review period. The claim or request shall be reviewed
by the Administrative Committee who may, but shall not be required to, grant the
claimant a hearing. On review, the claimant may have representation, examine
pertinent documents, and submit issues and comments in writing.
9.4 Final Decision
The decision on review shall normally be made within sixty (60) days
after the claim or request is received by the Administrative Committee. If an
extension of time is required for a hearing or other special circumstances, the
claimant shall be notified and the time limit shall be one hundred twenty (120)
days. The decision shall be in writing and shall state the reason and the
relevant Plan provisions. All decisions on review shall be final and bind all
parties concerned.
ARTICLE X--AMENDMENT AND TERMINATION OF PLAN
10.1 Amendment
(a) The Board may at any time amend the Plan by a written
instrument subject to subsection (e) below.
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(b) The Administrative Committee may adopt any technical,
clerical, conforming or clarifying amendment or other change,
provided:
(i) The Administrative Committee deems it necessary or
advisable to:
(A) Correct any defect, supply any omission or
reconcile any inconsistency in order to carry out the intent
and purposes of the Plan;
(B) Maintain the Plan's status as a "top-hat" plan for
purposes of ERISA; or
(C) Comply with law or the Internal Revenue Service's
regulations;
(ii) The amendment or change does not, without the consent
of the Board, result in current annual additional costs to the
Employer of maintaining the Plan in excess of $50,000; and
(iii) Any formal amendment adopted by the Administrative
Committee shall be in writing, signed by a member of the
Committee and promptly reported to the Board.
(c) To the extent permitted under subsection (e) below,
amendments may have an immediate, prospective or retroactive effective
date.
(d) Amendments do not require the consent of any Participant or
Beneficiary.
(e) Amendments are subject to the following limitations:
(i) Preservation of Account Balance. No amendment shall
reduce the amount credited or to be credited to any Account as of
the date notice of the amendment is given to Participants.
(ii) Preservation of Crediting Rate. After a Change in
Control, no amendment shall reduce the crediting rate, including
Moody's Rate of Return on deferrals made prior to, or elected
prior to, the date notice of the amendment is given to
Participant.
(iii) After a Change in Control, no amendment may limit the
Participant payout options under Section 6.1 or in anyway force
Participants to accelerate the receipt of Benefits.
10.2 Company's Right to Terminate
The Board may at any time partially or completely terminate the Plan
if, in its judgment, the tax, accounting or other effects of the continuance of
the Plan, or potential payments thereunder would not be in the best interests of
the Company.
(a) Partial Termination. The Board may partially terminate the
Plan by instructing the Administrative Committee not to credit any
additional Elected Deferred Compensation to the Plan. If such a
partial termination occurs, the Plan shall continue to operate and be
effective with regard to amounts credited prior to the effective date
of such partial termination.
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(b) Complete Termination. The Board may completely terminate
the Plan by instructing the Administrative Committee not to accept any
additional Elected Deferred Compensation, and by terminating all
ongoing Deferral Elections. If such a complete termination occurs, the
Plan shall cease to operate and the Employer shall pay out each
Account. Prior to a Change in Control, payment shall be made in the
manner prescribed below, notwithstanding any election made by the
Participant. After a Change in Control, the existing election of
Participants regarding the distribution of benefits shall continue to
apply. Earnings shall continue to be credited on any unpaid Account
balances.
ACCOUNT BALANCE PAYOUT PERIOD
--------------------------------------------------------------------
Less than $50,000 Lump Sum
$50,000 but not more than $100,000 3 annual installments
$100,000 or more 5 annual installments
====================================================================
ARTICLE XI--MISCELLANEOUS
11.1 Unfunded Plan
This Plan is an unfunded plan maintained primarily to provide deferred
compensation benefits for a select group of "management or highly-compensated
employees" within the meaning of Sections 201, 301 and 401 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and therefore is
exempt from the provisions of Parts 2, 3 and 4 of Title I of ERISA.
11.2 Unsecured General Creditor
Participants and Beneficiaries shall be unsecured general creditors,
with no secured or preferential right to any assets of the Company or any other
party for payment of benefits under this Plan. Any property held by any Employer
for the purpose of generating the cash flow for benefit payments shall remain
its general, unpledged and unrestricted assets. The obligation of the Employer
under the Plan shall be an unfunded and unsecured promise to pay money in the
future.
11.3 Trust Fund
At its discretion, the Company may establish one (1) or more trusts,
with such trustees as the Board may approve, for the purpose of providing for
the payment of benefits owed under the Plan. Although such a trust may be
irrevocable, its assets must be held for payment to Employer's general creditors
in the event of insolvency or bankruptcy. To the extent any benefits provided
under the Plan with respect to an Employer's Participants are paid from any such
trust, that Employer shall have no further obligation to pay such benefits. If
not paid from the trust, such benefits shall remain the obligation solely of
such Employer.
11.4 Nonassignability
Neither a Participant nor any other person shall have any right to
commute, sell, assign, transfer, pledge, anticipate, mortgage or otherwise
encumber, transfer, hypothecate or convey in advance of actual receipt the
amounts, if any, payable hereunder, or any part thereof. Such payments, and all
rights thereto are expressly declared to be unassignable and nontransferable. No
part of the amounts payable shall, prior to actual payment, be subject to
seizure or sequestration for the payment of any debts, judgments,
PAGE 15 - EXECUTIVE DEFERRED COMPENSATION PLAN
alimony or separate maintenance owed by a Participant or any other person, nor
be transferable by operation of law in the event of a Participant's or any other
person's bankruptcy or insolvency.
11.5 Not a Contract of Employment
This Plan shall not constitute a contract of employment between
Employer and the Participant. Nothing in this Plan shall give a Participant the
right to be retained in the service of Employer or to interfere with the right
of Employer to discipline or discharge a Participant at any time.
11.6 Protective Provisions
A Participant shall cooperate with Employer by furnishing any and all
information requested by Employer in order to facilitate the payment of benefits
hereunder, and by taking such physical examinations as Employer may deem
necessary and taking such other action as may be requested by Employer.
11.7 Governing Law
The provisions of this Plan shall be construed and interpreted
according to the laws of the State of Maryland, except as preempted by federal
law.
11.8 Validity
In case any provision of this Plan shall be held illegal or invalid
for any reason, said illegality or invalidity shall not affect the remaining
parts hereof, but this Plan shall be construed and enforced as if such illegal
and invalid provision had never been inserted herein.
11.9 Gender
The masculine gender shall include the feminine and the singular shall
include the plural, except where the context expressly dictates otherwise.
11.10 Notice
Any notice required or permitted under the Plan shall be sufficient if
in writing and sent by first-class mail. Such notice shall be deemed as given as
of the date of delivery or, if delivery is made by mail, as of the date that is
three (3) business days after the mailing date. Mailed notice to the
Administrative Committee shall be directed to the Company's address. Mailed
notice to a Participant or Beneficiary shall be directed to the individual's
last known address in Employer's records.
11.11 Successors
The provisions of this Plan shall bind and inure to the benefit of
Company and its successors and assigns. The term successors as used herein shall
include any corporate or other business entity which shall, whether by merger,
consolidation, purchase or otherwise acquire all or substantially all of the
business and assets of Company, and successors of any such corporation or other
business entity.
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CHOICE HOTELS INTERNATIONAL, INC.
By:
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Its:
Dated:
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