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EXHIBIT 4.4
STUDIO PLUS HOTELS, INC.
RABBI TRUST AGREEMENT
(a) WHEREAS, Studio Plus Hotels, Inc. (The "Employer") a Virginia
Corporation, has adopted a nonqualified deferred compensation Plan attached
hereto as Appendix A and made part of this Agreement; such plan known as the
Studio Plus Hotels, Inc. Top Hat Savings Plan (the "Plan");
(b) WHEREAS, Employer intends and Fifth Third Bank agrees that Fifth Third
Bank shall act as Trustee as that term is defined in this Agreement
(c) WHEREAS, Employer has incurred or expects to incur liability under the
terms of such Plan with respect to the individuals participating in such Plan;
(d) WHEREAS, Employer wishes to establish a Trust (hereinafter called
"Trust") and to contribute to the Trust assets that shall be held therein,
subject to the clams of Employers creditors in the event of Employer's
Insolvency, as herein defined until paid to Plan participants and their
beneficiaries in such manner and at such times as speeded in the Plan;
(e) WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974,
as amended; and
(f) WHEREAS, it is the further intention of the Employer to make
contributions to the Trust to provide itself with a source of funds to assist
it in the meeting of its liabilities under the Plan.
NOW, THEREFORE, BE IT RESOLVED THAT Employer does hereby establish the Trust
and Fifth Third Bank agrees to be Trustee of such Trust, and said Trust shall
be comprised, held and disposed of as follows:
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SECTION 1. ESTABLISHMENT OF TRUST
(a) Trust hereby established shall be irrevocable
(b) The Trust is intended to be a grantor Trust of which Employer is the
grantor within the meaning of subpart E, part I, subchapter L chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
(c) The principal of the Trust and any earnings thereon shall be held
separate and apart from other funds of Employer and shall be used exclusively
for the uses and purposes of Plan participants and general creditors as herein
set forth. Plan participants and their beneficiaries shall have no preferred
claim on, or any beneficial ownership interest in, any assets of the Trust. Any
rights created under the Plan and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries against
Employer. Any assets held by the Trust will be subject to the claims of
Employer's general creditors under federal and state law in the event of
Insolvency, as defined in Section 3(a) herein.
(d) The Employer in its sole discretion, may at any time, or from time to
time, make additional deposits of cash or other property in Trust with Trustee
to augment the principal to be held, administered and disposed of by Trustee as
provided in this Trust Agreement. Neither Trustee nor any Plan participant or
beneficiary shall have any right to compel such additional deposits.
(e) Upon a Change in Control, Employer shall, in its discretion and as
soon as possible but in no event longer than thirty (30) days following the
Change in Control, as defined herein, make an irrevocable contribution to the
Trust up to the amount that is sufficient to pay each Plan participant or
beneficiary the benefits to which Plan participant or their beneficiaries would
be entitled to receive pursuant to the terms of the Plan as if the Change in
Control had never occurred. The Employer, in its discretion, shall consult with
an actuary as to the amount oL. contribution that could be made to satisfy the
obligations created under the Plan by reason of the Change in Control.
SECTION 2. PAYMENTS TO PLAN PARTICIPANT AND THEIR BENEFICIARIES
(a) Employer shall deliver to Trustee a schedule (the "Payment Schedule")
that indicates the amount payable in respect of each Plan participant (and his
or her beneficiaries), that provides a formula or other instructions
acceptable to Trustee for determining the amounts so payable, the form in which
such amount is to be paid (as provided for or available under the Plan), and
the time of commencement for payment of such amounts. Except as otherwise
provided herein, Trustee shall make payments to the Plan participants and their
beneficiaries in accordance with such Payment Schedule. The Trustee shall make
provision for the reporting and withholding of
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any federal, state or local taxes that may be required to be withheld with
respect to the payment of benefits pursuant to the terms of the Plan and shall
pay amounts withheld to the appropriate taxing authorities or determine that
such amounts have been reported, withheld and paid by Employer.
SECTION 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARY
WHEN EMPLOYER IS INSOLVENT
(a) Trustee shall cease payment of benefits to Plan participants and their
beneficiaries if the Employer is Insolvent. Employer shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) Employer is unable to
pay its debts as they become due, or (ii) Employer is subject to a pending
proceeding as a debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be subject to
claims of general creditors of Employer under federal and state law as set
forth below.
(1) The Chief Executive Officer and the Chief Financial Officer of
employer shall have the duty to inform Trustee in writing of Employer's
Insolvency. If a person claiming to be a creditor of Employer alleges in
writing to Trustee that Employer has become Insolvent, Trustee shall
discontinue payment of benefits to Plan participants or their beneficiaries.
(2) Unless Trustee has actual knowledge of Employer's Insolvency,
or has received notice from Employer or a person claiming to be a creditor
alleging that Employer is Insolvent, Trustee shall have no duty to inquire
whether Employer is Insolvent. Trustee may in all events rely on such evidence
concerning Employer's solvency as may be furnished to Trustee and that provides
Trustee with a reasonable basis for making a determination concerning
Employer's solvency.
(3) If at any time Trustee has determined that Employer is
Insolvent, Trustee shall discontinue payments to Plan participants or their
beneficiaries and shall hold the assets of the Trust for the benefit of
Employer's general creditors. Nothing in this Trust Agreement shall in any way
diminish any rights of Plan participants or their beneficiaries to pursue their
rights as general creditors of Employer with respect to benefits due under the
Plan or otherwise.
(4) Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Section 2 of this Trust
Agreement only after Trustee has determined that Employer is not or is no
longer Insolvent.
(c) Provided that there are sufficient assets, if Trustee discontinues the
payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plan for the period
of such
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discontinuance, less the aggregate amount of any payments made to Plan
participants or their beneficiaries by Employer in lieu of the payments
provided for hereunder during any such period of discontinuance.
SECTION 4. INVESTMENT AUTHORITY
Trustee may invest in securities (including stock or rights to acquire stock)
or obligations issued by Employer. All rights associated within assets of the
Trust shall be exercised by Trustee or the person designated by Trustee, and
shall in no event be exercisable by or rest with Plan participants.
SECTION 5. DISPOSITION OF INCOME.
During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
SECTION 6. ACCOUNTING BY TRUSTEE.
Trustees shall keep accurate and detailed records of all investments, receipts,
disbursements, and all other transactions required to be made, including such
specific records as shall be agreed upon in writing between Employer and
Trustee. Within sixty (60) days following the close of each calendar year and
within sixty (60) days after removal or resignation of Trustee, Trustee shall
deliver to Employer a written account of its administration of the Trust during
such year or during the period from the close of the last preceding year to the
date of such removal or resignation, setting forth all investments, receipts,
disbursements and other transactions affected by it, including a description of
all securities and investments purchased and sold with the cost or net proceeds
of such purchases or sales (accrued interest paid or receivable being shown
separately), and showing all cash, securities and other property held in the
Trust at the end of such year or as of the date of such removal or resignation,
as the case may be.
SECTION 7. RESPONSIBILITY OF TRUSTEE
(a) Trustee shall act with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent person acting in like capacity
and familiar with such matters would use in the conduct of an enterprise of a
like character and with like aims, provided, however, that Trustee shall incur
no liability to any person for any action taken pursuant to a direction,
request or approval given by Employer which is contemplated by, and in
conformity with, the terms of the Plan or this Trust and is given in writing by
Employer. In the event of a dispute between Employer and a party, Trustee may
apply to a court of competent jurisdiction to resolve the dispute.
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(b) If Trustee undertakes or defends any litigation arising in connection
with this Trust, Employer agrees to indemnify Trustee against Trustee's
reasonable costs, expenses and liabilities (including, without limitation,
reasonable attorney's fees and expenses) relating thereto and to be primarily
liable for such payments. If Employer does not pay such costs, expenses and
liabilities in a reasonably timely manner, Trustee may obtain payment from the
Trust.
(c) Trustee may consult with legal counsel (who may also be counsel for
Employer generally) with respect to any of its duties or obligations hereunder.
(d) Trustee may hire agents, accountants, actuaries, investment advisors,
financial consultant or other professionals to assist it in performing any of
its duties or obligations hereunder.
(e) Trustee shall have, without exclusion, all powers conferred on
Trustees by applicable law, unless expressly provided otherwise herein,
provided, however, that if an insurance policy is held as an asset of the
Trust, Trustee shall have no power to name a beneficiary of the policy other
than the Trust, to assign the policy (as distinct from conversion of the policy
to a different form) other than to a successor Trustee, or to loan to any
person the proceeds of an borrowing against such policy.
(f) However, notwithstanding the provisions of Section 8(e) above, Trustee
may loan to Employer the proceeds of any borrowing against an insurance policy
held as an asset of the Trust.
(g) Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law, Trustee shall not have any power that could
give this Trust the objective of carrying on a business and dividing the gains
therefrom, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
SECTION 8. COMPENSATION AND EXPENSE OF TRUSTEE
Employer shall pay all reasonable administrative and Trustee's fees and
expenses. If not so paid, the fees and expenses shall be paid from the Trust.
SECTION 9. RESIGNATION AND REMOVAL OF TRUSTEE
(a) Trustee may resign at any time by written notice to Employer, which
shall be effective sixty (60) days after receipt of such notice unless Employer
and Trustee agree otherwise.
(b) Trustee may be removed by Employer on sixty (60) days notice or upon
shorter notice accepted by Trustee.
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(c) Upon a Change in Control, as defined herein, Trustee may not be
removed by Employer until all of the assets of the Trust have been used to
provide benefits to Plan participants and beneficiaries under the terms of this
Plan and Trust determined as of the date of a Change in Control.
(d) If Trustee resigns or is removed, as defined herein, Employer shall
select a successor Trustee in accordance with the provisions of Section 11(a)
herein prior to the effective date of Trustee's resignation or removal.
(e) Upon resignation or removal or Trustee and appointment of a successor
Trustee, all assets shall subsequently be transferred to the successor Trustee.
The transfer shall be completed within sixty (60) days after receipt of notice
of resignation, removal or transfer, unless Employer extends the time limit.
(f) If Trustee resigns or is removed pursuant to the terms of this Trust
Agreement, a successor shall be appointed, in accordance with Section 11
hereof, by the effective date of resignation or removal under Sections 10(a)
[or 10(b)] of this Section. If no such appointment has been made, Trustee may
apply to a court of competent jurisdiction for appointment of a successor for
instructions. All reasonable expenses of Trustee in connection with the
proceeding shall be allowed as administrative expenses of the Trust.
SECTION 10. APPOINTMENT OF SUCCESSOR
(a) If Trustee resigns or is removed in accordance with Section 10 hereof,
Employer may appoint any third party, such as a bank Trust department or other
party that may be granted corporate Trustee powers under state law, as a
successor to replace Trustee upon resignation or removal. The appointment
shall be effective when accepted in writing by the new Trustee, who shall have
all of the rights and powers of the former Trustee, including ownership rights
in the Trust assets. The former Trustee shall execute any instrument necessary
or reasonably requested by Employer or the successor Trustee to evidence the
transfer.
SECTION 11. AMENDMENT OR TERMINATION
(a) This Trust Agreement may be amended by a written instrument executed
by Trustee and Employer. Notwithstanding the foregoing, no such amendment
shall conflict with the terms of the Plan or shall make the Trust revocable
after it has become irrevocable in accordance with Section 1(a) hereof.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits
pursuant to the terms of the Plan. Upon termination of the Trust any assets
remaining in the Trust shall be returned to Employer.
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SECTION 12. MISCELLANEOUS
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries under
this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment,
garnishment, levy, execution or other legal process.
(c) This Trust Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Kentucky.
(d) For purposes of this Trust, Change in Control shall mean (i) a change
in control of the Employer of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A promulgated under the Securities and
Exchange Act of 1934, as amended (the "Exchange Act"); or (ii) any of the
following events:
(1) any "person" (as such term is used in Section 13(d) and 14(d)
of the Exchange Act), other than Norwood Cowgill, Jr., or one of his
direct heirs, who is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act) directly or indirectly, of
securities of the Employer representing fifteen percent (15%) of the
Employer's then outstanding voting securities;
(2) the Employer's shareholders approve an agreement to merge or
consolidate the Employer with another corporation or entity (other
than a corporation or entity more than fifty percent (50%) of which is
controlled by, or is under common control with the Employer);
(3) Employer, or a wholly owned subsidiary of the Employer, in
either case, together with any employee benefit maintained by the
Employer for the exclusive benefit of the Employer's employees, shall
cease to directly own and control, of record and beneficially, at
least eighty percent (80%) of each class of capital stock of Studio
Plus Properties, Inc., provided, however, that a Change of Control
shall not occur under this subsection (3) upon (I) the merger of
Studio Plus Properties, Inc., into the Employer, or (II) the merger of
Studio Plus Properties, Inc. into another wholly owned subsidiary of
the Employer;
(4) the Employer's shareholder's approve the sale, assignment or
transfer of all or substantially all of the assets of Employer or
Studio Plus Properties, Inc.; or
(5) the Employer's shareholders approve the liquidation or
dissolution of the Employer or Studio Plus Properties, Inc.
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IN WITNESS WHEREOF, the Employer has caused the Agreement to be signed
and adopted this 31st day of May, 1996.
ATTEST: STUDIO PLUS HOTELS, INC.
/s/ James C. Baughman, Jr. By: /s/ William E.Anderson
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Chief Financial Officer Executive Vice President
ATTEST: FIFTH THIRD BANK
/s/ Holly Thompson By: /s/ James C. Smith
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Assistant Trust Officer
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