LODGIAN, INC. 401(K) PLAN AND TRUST AGREEMENT
AS AMENDED AND RESTATED
EFFECTIVE AS OF JANUARY 1, 2002
(EXCEPT AS OTHERWISE PROVIDED)
TABLE OF CONTENTS
Page
ss. 1. DEFINITIONS................................................................................................1
1.1. Account.........................................................................................1
1.2. Affiliate.......................................................................................1
1.3. Beneficiary.....................................................................................1
1.4. Board...........................................................................................1
1.5. Break in Service................................................................................1
1.6. Code............................................................................................1
1.7. Compensation....................................................................................2
1.8. Election........................................................................................2
1.9. Eligible Employee...............................................................................2
1.10. Eligible Participant............................................................................3
1.11. Employee........................................................................................3
1.12. ERISA...........................................................................................3
1.13. Forfeiture......................................................................................3
1.14. 401(k) Account..................................................................................3
1.15. 401(k) Contributions............................................................................3
1.16. Highly Compensated Employee.....................................................................3
1.17. Hour of Service.................................................................................4
1.18. Leased Employee.................................................................................5
1.19. Lodgian Stock...................................................................................5
1.20. Matching Account................................................................................5
1.21. Matching Contribution...........................................................................5
1.22. Nonhighly Compensated Employee..................................................................5
1.23. Participant.....................................................................................5
1.24. Participating Employer..........................................................................5
1.25. Plan............................................................................................5
1.26. Plan Administrator..............................................................................5
1.27. Plan Sponsor....................................................................................5
1.28. Plan Year.......................................................................................5
1.29. Rollover Account................................................................................6
1.30. Rollover Contribution...........................................................................6
1.31. Safe Harbor Matching Contribution...............................................................6
1.32. Safe Harbor Matching Contribution Account.......................................................6
1.33. Trust Agreement.................................................................................6
1.34. Trustee.........................................................................................6
1.35. Trust Fund......................................................................................6
1.36. Valuation Date..................................................................................6
1.37. Vested Benefit..................................................................................6
1.38. Year of Service.................................................................................6
-i-
ss. 2. PARTICIPATION..............................................................................................7
2.1. General Participation for 2002 Plan Year and Prior Years........................................7
2.2. General Participation After December 31, 2002...................................................7
2.3. Reemployment....................................................................................8
2.4. Change in Status................................................................................8
2.5. Not a Contract of Employment....................................................................8
2.6. USERRA..........................................................................................8
ss. 3. EMPLOYEE CONTRIBUTIONS.....................................................................................8
3.1. 401(k) Contributions............................................................................8
(a) General................................................................................8
(b) Amount of 401(k) Contributions.........................................................8
(c) 401(k) Accounts........................................................................9
3.2. Rate Changes....................................................................................9
(a) General................................................................................9
(b) Change in Eligibility Status...........................................................9
(c) Hardship Withdrawal....................................................................9
(d) Leave of Absence.......................................................................9
3.3. Payment of 401(k) Contributions to Trustee......................................................9
3.4. Rollover Contributions..........................................................................9
(a) General................................................................................9
(b) Rollover Accounts......................................................................9
ss. 4. EMPLOYER CONTRIBUTIONS....................................................................................10
4.1. Employer Matching Contributions...............................................................10
(a) Matching Contributions for the 2002 Plan Year.........................................10
(b) Safe Harbor Matching Contributions after December 31, 2002............................10
(c) Application of Forfeitures............................................................10
(d) No Matching Contributions or Safe Harbor Matching Contributions on Refunds............10
(e) Allocation............................................................................11
4.2. Application of Suspense Account................................................................11
4.3. Top Heavy Contributions........................................................................11
4.4. Payment of Employer Contributions..............................................................11
ss. 5. ACCOUNT INVESTMENTS AND ALLOCATIONS.......................................................................11
5.1. General........................................................................................11
5.2. Investment Elections...........................................................................12
5.3. Amounts Available for Investment...............................................................12
5.4. Allocations to Accounts........................................................................12
5.5. Allocation Corrections.........................................................................12
5.6. Transition Period to Implement Plan Changes....................................................12
5.7. Special Rules Concerning Investment in Lodgian Stock Fund......................................13
(a) Dividends.............................................................................13
(b) Purchase of Lodgian Stock.............................................................13
(c) Voting of Lodgian Stock...............................................................13
(d) Restrictions..........................................................................13
-ii-
ss. 6. LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS..............................................................14
6.1. Ordering Rule..................................................................................14
6.2. Code ss. 415 Limitations.......................................................................14
(a) General...............................................................................14
(b) Annual Additions......................................................................14
(c) Coordination Rules....................................................................15
(d) Corrections...........................................................................15
6.3. Code ss. 402(g) Limitations....................................................................15
(a) This Plan and Other Affiliate Plans...................................................15
(b) Other Plans or Arrangements...........................................................15
(c) Action to Satisfy 402(g) Limitation...................................................16
ss. 7. PLAN BENEFITS.............................................................................................16
7.1. Participant....................................................................................16
(a) Distribution Events...................................................................16
(b) Vested Benefit........................................................................17
(c) Vesting Schedule for Participants without an Hour of Service on or after
April 1, 2002.......................................................................17
(d) Vesting Schedule for Participants with an Hour of Service on or after April 1, 2002...18
(e) Forfeiture............................................................................18
(f) Reemployment..........................................................................18
7.2. Death of Participant...........................................................................19
7.3. In-Service Withdrawals.........................................................................19
(a) Hardship Withdrawals..................................................................19
(b) Age 59 1/2 Withdrawals................................................................21
(c) Rollover Account Withdrawals..........................................................21
(d) Limitations...........................................................................21
ss. 8. BENEFIT PAYMENT...........................................................................................22
8.1. Methods........................................................................................22
(a) General...............................................................................22
(b) Automatic Single Sum in Certain Cases.................................................22
(c) Installment Rules.....................................................................23
(d) Limitations...........................................................................23
8.2. Timing.........................................................................................23
(a) General...............................................................................23
(b) Deferral of Payment...................................................................24
(c) Participant's Required Beginning Date.................................................24
(d) Beneficiary...........................................................................24
8.3. Direct Rollover................................................................................24
(a) Eligible Rollover Distribution........................................................25
(b) Eligible Retirement Plan..............................................................25
(c) Distributee...........................................................................25
(d) Direct Rollover.......................................................................25
-iii-
8.4. Claim for Benefit..............................................................................25
8.5. No Estoppel of Plan............................................................................26
8.6. Legally Incompetent............................................................................26
8.7. Missing Person.................................................................................26
8.8. Other Payment Rules............................................................................27
(a) Withholding Obligations...............................................................27
(b) Waiver of Notices.....................................................................27
(c) Account Balance.......................................................................27
(d) Order of Withdrawal...................................................................27
(e) Reemployment..........................................................................27
ss. 9. NAMED FIDUCIARIES AND ADMINISTRATION......................................................................27
9.1. Named Fiduciaries..............................................................................27
9.2. Plan Administrator Appointment and Term of Office..............................................28
9.3. Organization of Plan Administrator.............................................................28
9.4. Plan Administrator Powers and Duties...........................................................28
(a) General...............................................................................28
(b) Liquidity Requirements................................................................28
(c) Records...............................................................................28
(d) Information from Others...............................................................28
9.5. Indemnification................................................................................29
9.6. Reporting and Disclosure.......................................................................29
ss. 10. DUTIES AND AUTHORITY OF TRUSTEE.........................................................................29
10.1. General Fiduciary Duties.......................................................................29
10.2. Deposits to Trust Fund.........................................................................29
10.3. Value Assets...................................................................................30
10.4. Segregation of Accounts........................................................................30
10.5. Tax Returns and Reports........................................................................30
10.6. Powers.........................................................................................30
10.7. Expenses.......................................................................................31
10.8. Litigation.....................................................................................32
ss. 11. LOANS....................................................................................................32
11.1. Administration.................................................................................32
11.2. Statutory Requirements.........................................................................32
(a) General...............................................................................32
(b) Repayments............................................................................32
(c) Limitations on Amounts................................................................33
11.3. Distribution and Default.......................................................................33
11.4. USERRA.........................................................................................33
ss. 12. AMENDMENT AND TERMINATION................................................................................33
12.1. Amendment......................................................................................33
12.2. Termination....................................................................................34
ss. 13. MISCELLANEOUS............................................................................................34
-iv-
13.1. Headings and Construction......................................................................34
13.2. Nontransferability.............................................................................34
13.3. Benefits Supported Only by Trust Fund..........................................................34
13.4. Nondiscrimination..............................................................................35
13.5. Nonreversion...................................................................................35
13.6. Merger, Consolidation or Similar Transaction...................................................35
(a) General...............................................................................35
(b) Authorization.........................................................................35
(c) No Annuities..........................................................................35
13.7. Qualified Domestic Relations Order.............................................................36
13.8. Top Heavy Plan.................................................................................36
(a) Determination of Top-Heavy Status.....................................................36
(b) Special Top Heavy Plan Rules..........................................................38
Appendix A.......................................................................................................40
Appendix B.......................................................................................................44
Appendix C.......................................................................................................46
-v-
LODGIAN, INC. 401(K) PLAN AND TRUST AGREEMENT
AS AMENDED AND RESTATED
EFFECTIVE AS OF JANUARY 1, 2002
(EXCEPT AS OTHERWISE PROVIDED)
The Servico, Inc. 401(k) Plan (the "Plan") was adopted by Servico, Inc.
("Servico") effective July 1, 1984 and previously amended several times. Servico
and Impac Hotel Group, LLC ("Impac") combined their respective businesses
through a series of corporate mergers the result of which is that Servico and
Impac became wholly-owned subsidiaries of Lodgian, Inc. ("Lodgian") effective on
December 11, 1998. Effective January 1, 1999, Lodgian assumed sponsorship of the
Plan and changed the name to the Lodgian, Inc. 401(k) Plan. The Plan was amended
and restated effective as of January 1, 1997, and subsequently amended.
This amendment and restatement of the Plan incorporates the terms of
the Plan's trust agreement and is effective January 1, 2002, unless otherwise
provided. This amendment and reinstatement of the Plan reflects certain
provisions of the Economic Growth and Tax Relief Reconciliation Act of 2001
("EGTRRA") and is intended to be in good faith compliance with the requirements
of EGTRRA and is to be construed in accordance with EGTRRA and guidance issued
thereunder.
ss. 1. DEFINITIONS
The following terms have the following meanings for purposes of this Plan.
1.1. Account -- means the bookkeeping account maintained for each Participant
and, where appropriate, Beneficiary or alternate payee, to show his or her
interest in this Plan.
1.2. Affiliate -- means the Plan Sponsor and any trade or business, whether or
not incorporated, that is considered to be a single employer with the Plan
Sponsor under Code ss. 414(b), (c), (m) or (o). Solely for purposes of the Code
ss. 415 limitations in ss. 6.2, the term Affiliate means each entity that would
be an Affiliate if the phrase "more than 50%" is substituted for the phrase "at
least 80%" each place it appears in Code ss. 1563(a)(1).
1.3. Beneficiary -- means the person or persons so designated in accordance with
ss. 7.2 by a Participant or by operation of this Plan to receive any Plan
benefits payable on account of the Participant's death.
1.4. Board -- means the Board of Directors of the Plan Sponsor.
1.5. Break in Service -- means for an Employee any Plan Year during which he or
she fails to complete more than 500 Hours of Service.
1.6. Code -- means the Internal Revenue Code of 1986, as amended, and the
regulations thereunder.
1.7. Compensation -- means the sum of the Participant's "taxable wages" and
"pre-tax contributions" received by the Participant for the portion of the Plan
Year during which he or she was a Participant. Taxable wages are the wages and.
other compensation paid by the Affiliates to the Employee that are reportable as
wages, tips and other compensation on Form W-2 or any other form that the
Affiliate is required to provide the Employee under Code ▇▇.▇▇. 3401(a),
6041(d), 6051(a)(3) and 6052 excluding any severance payments. Pre-tax
contributions are the Employee's 401(k) Contributions, and any other
contributions or deferrals made on the Employee's behalf by an Affiliate to a
Code ss. 401(k) plan, Code ss. 125 cafeteria plan or any other Affiliate plan or
program that are excludible from the Participant's taxable income for the Plan
Year under Code ▇▇.▇▇. 125, 132(f), 401(k), 402(h), 403(b), 414(v) or 457(b).
The annual Compensation of each Employee taken into account under the Plan will
not exceed $200,000 as adjusted for cost-of-living increases in accordance with
Code ss. 401(a)(17). The cost-of-living adjustment in effect for a calendar year
applies to any Plan Year beginning in that calendar year. If a Plan Year
consists of fewer than 12 months, this annual Compensation limit will be
multiplied by a fraction, the numerator of which is the number of months in the
Plan Year and the denominator of which is 12.
1.8. Election -- means an election or designation made on a form or by any other
method authorized by the Plan Administrator, properly completed and timely
delivered in accordance with rules adopted by the Plan Administrator from time
to time.
1.9. Eligible Employee -- means each individual who is classified on the payroll
of a Participating Employer as an Employee of that Participating Employer, other
than:
(a) an Employee who is included in unit of employees covered by a
collective bargaining agreement, unless the agreement by specific
reference to this Plan permits participation in this Plan;
(b) a Leased Employee;
(c) an Employee who is a nonresident alien receiving no earned
income from a Participating Employer from sources within the United
States (as described more fully in Code ss. 410(b)(3)(C)): or
(d) an Employee who performs intermittent services for a
Participating Employer and is classified in the job of "on-call"
employee as reflected on the payroll of a Participating Employer.
Under no circumstances will an individual who performs services for a
Participating Employer, but who is not classified on the payroll as an employee
of the Participating Employer, for example, an individual performing services
for a Participating Employer under a leasing arrangement or an independent
contractor, be treated as an Eligible Employee, even if that individual is
treated as an "employee" of a Participating Employer as a result of common law
principals, the leased employee rules under Code ▇▇.▇▇. 414(n) or (o). Further,
if an individual
-2-
performing services for a Participating Employer is retroactively reclassified
as an "employee" of a Participating Employer for any reason, the reclassified
individual will not be treated as an Eligible Employee for any period prior to
the actual date (and not the effective date) of the reclassification unless the
Participating Employer determines the reclassification is necessary to correct
an inadvertent payroll classification error.
1.10. Eligible Participant -- means for any Plan Year:
(a) a Participant who is an Eligible Employee (or on an authorized
leave of absence as an Eligible Employee) on the last day of that Plan
Year; and
(b) a Participant who has completed a Year of Service during such
Plan Year.
For purposes of this ss. 1.10, a Participant who terminated employment during
the Plan Year due to death or after attaining age 65 shall be considered an
Eligible Participant for such Plan Year. Further, if the Participating Employer
elects to apply the provisions in ss. 4.1(b) hereof for a Plan Year, Eligible
Participant shall include for purposes of the Safe Harbor Matching Contribution
any Participant who has made 401(k) Contributions during such Plan Year.
1.11. Employee -- means a person who is treated as an employee of an
Affiliate either as a result of common law principles or under the leased
employee rules of Code ss. 414(n).
1.12. ERISA -- means the Employee Retirement Income Security Act of 1974, as
amended, and the regulations thereunder.
1.13. Forfeiture -- means the dollar amount forfeited from an Account in
accordance with this Plan.
1.14. 401(k) Account -- means the subaccount of a Participant's Account
attributable to his or her 401(k) Contributions.
1.15. 401(k) Contributions -- means that part of a Participant's Compensation
that is contributed to his or her 401(k) Account pursuant to his or her Election
under ss. 3.1.
1.16. Highly Compensated Employee -- means each Participant who performs
services for an Affiliate during the Plan Year and who:
(a) is a 5% owner of an Affiliate (as defined in Code ss.
416(i)(1)(B)(i)) at any time during the Plan Year or the preceding
12-month period; or
(b) receives Compensation in excess of $85,000 (adjusted for
cost-of-living increases in accordance with Code ss. 414(q)) for the
preceding 12-month period.
The determination of which Participants are Highly Compensated Employees is
subject to Code ss. 414(q) and any regulations, rulings, notices or procedures
under that section. In determining whether an Employee is a Highly Compensated
Employee for any Plan Year, the Plan
-3-
Administrator may use any alternatives and elections authorized under the
applicable regulations, rulings or revenue procedures.
1.17. Hour of Service --
(a) General. The term Hour of Service means each hour for which an
Employee:
(1) is paid, or entitled to payment, by an Affiliate for
the performance of duties as an Employee;
(2) is directly or indirectly paid, or entitled to
payment, by an Affiliate for a period of time when he or she
performs no duties as an Employee due to vacation, holiday,
illness, incapacity (including disability), layoff, jury duty,
military duty or leave of absence; and
(3) is paid for any reason an amount as back pay by an
Affiliate, irrespective of mitigation of damages;
(b) Additional Rules.
(1) An Employee will not receive an Hour of Service
credit for service performed for which he or she is paid, or
entitled to payment, on account of a period during which he or
she performs no duties as an Employee if the payment is made
or is due under a plan maintained solely to comply with
applicable worker's compensation laws, unemployment
compensation laws or disability insurance laws.
(2) No more than 501 Hours of Service will be credited to
an Employee for any single continuous period during which he
or she performs no duties as an Employee.
(3) An Hour of Service will not be credited to an
Employee on account of a payment that solely reimburses the
Employee for medical, or medically related, expenses incurred
by or on behalf of the Employee.
(4) Hour of Service credit, if any, for periods when no
duties are performed as an Employee will be calculated in
accordance with ss. 2530.200b-2(b) and (c) of the Department
of Labor Regulations, which are incorporated as part of this
Plan by this reference.
(5) In lieu of actually recording each Hour of Service
that is completed by an Employee that is exempt from the
minimum wage and overtime requirements of the Federal Fair
Labor Standards Act, that Employee will receive credit for 45
Hours of Service for each week in which he or she completes at
least one Hour of Service. For each Employee who is not exempt
from those requirements, Hours
of Service credited for the performance of duties
will be the actual number of Hours of Service
completed by that Employee.
1.18. Leased Employee -- means an Employee (other than a common-law employee)
who has performed services for an Affiliate on a substantially full-time basis
for a period of at least one year under the primary direction and control of the
Affiliate pursuant to an agreement between the Affiliate and any other person,
as determined under Code ss. 414(n)(6).
1.19. Lodgian Stock -- means Lodgian, Inc. common stock, including any common
stock substituted for a previously issued class of common stock, provided such
stock is a "qualifying employer security" as defined in ERISA ss. 407(d)(5).
Such term shall not include any warrants to purchase or otherwise acquire
Lodgian Stock, which rights shall be referred to herein as "Lodgian Warrants".
1.20. Matching Account -- means the subaccount of a Participant's Account
attributable to Matching Contributions made prior to January 1, 2003.
1.21. Matching Contribution -- means the matching contribution made by a
Participating Employer or the Plan Sponsor on behalf of the Participating
Employer in accordance with ss. 4.1(a) for Plans Years ending on or before
December 31, 2002.
1.22. Nonhighly Compensated Employee -- means each Participant who performs
services for an Affiliate during the Plan Year and who is not a Highly
Compensated Employee.
1.23. Participant -- means (a) each Eligible Employee who has met the
eligibility requirements to participate in this Plan pursuant to ss. 2.1 and (b)
each other person (other than an alternate payee as defined in Code ss.
414(p)(8) or a Beneficiary) for whom an Account is being maintained as a result
of contributions made under this Plan or another plan that are transferred to
this Plan pursuant to ss. 13.6.
1.24. Participating Employer -- means the Plan Sponsor and any other
Affiliate that, with approval of the Board, has adopted this Plan during such
period that the adoption of the Plan is in effect.
1.25. Plan -- means this Lodgian, Inc. 401(k) Plan and Trust Agreement as set
forth in this document and all subsequent amendments to this document.
1.26. Plan Administrator -- means the person, committee or entity appointed
by the Board to administer this Plan on behalf of the Plan Sponsor as provided
in ss. 9. If no person, committee or entity is appointed, the Plan Sponsor shall
be the Plan Administrator.
1.27. Plan Sponsor -- means Lodgian, Inc. or any successor organization to
that company.
1.28. Plan Year -- means the calendar year.
-5-
1.29. Rollover Account -- means the subaccount of a Participant's Account
attributable to Rollover Contributions.
1.30. Rollover Contribution -- means an amount (or more than one amount) that
qualifies as an eligible rollover distribution under Code ss. 402(c)(4) that is
transferred to this Plan under ss. 3.5 other than after-tax contributions.
1.31. Safe Harbor Matching Contribution - means the contribution made by a
Participating Employer in accordance with ss. 4.1(b).
1.32. Safe Harbor Matching Contribution Account - means the subaccount of a
Participant's Account attributable to Safe Harbor Matching Contributions.
1.33. Trust Agreement -- means the trust agreement established as part of
this Plan in ss. 10.
1.34. Trustee -- means the person or persons acting as trustee under the
Trust Agreement.
1.35. Trust Fund -- means the assets held by the Trustee under the Trust
Agreement.
1.36. Valuation Date -- means the last day of each Plan Year and any other
date chosen by the Plan Administrator.
1.37. Vested Benefit -- means the sum of (a) the 401(k) Account, (b) the
Rollover Account, (c) the Safe Harbor Matching Account, and (d) the vested
portion of the Matching Account, as determined in accordance with ss. 7.1.
1.38. Year of Service --
(a) Vesting. For purposes of determining vesting service under ss.
7.1 of this Plan, a Year of Service means each Plan Year during which
an Employee is credited with at least 1,000 Hours of Service as an
Employee. Any Year of Service completed before a period of 5 or more
consecutive Break in Service shall be excluded for purposes of
determining a Participant's vested percentage if the Employee's vested
percentage in his or her Matching Account was zero at all times before
such Breaks in Service.
(b) Eligibility. For purposes of determining eligibility service
under ss. 2.1 and 2.2 of this Plan, a Year of Service means a
twelve-consecutive-month period during which an Employee completes no
less than 1,000 Hours of Service beginning on the date on which the
Employee first performs an Hour of Service upon his employment or
reemployment with a Participating Employer or, in the event the
Employee fails to complete 1,000 Hours of Service in that
twelve-consecutive-month period, any Plan Year thereafter during which
the Employee completes not less than 1,000 Hours of Service, including
the Plan Year which includes the first anniversary of the date the
Employee first performed an Hour of Service upon his employment or
reemployment.
-6-
(c) Service With All Related Employers. An Employee will be
credited with service under this Plan for his or her service with all
Affiliates.
(d) Service With Predecessor Employers. An Employee will be
credited with service under this Plan for his or her service with the
employers identified in Appendix C on the same basis as is used to
determine service with Affiliates.
ss. 2. PARTICIPATION
2.1. General Participation for 2002 Plan Year and Prior Years.
(a) Each Eligible Employee hired during the 2002 Plan Year will
become a Participant on the January 1 or July 1 coinciding with or next
following the date he or she:
(1) attains age 21;
(2) completes at least six months of service; and
(3) completes at least 500 Hours of Service in: i) the 6
month period immediately preceding July 1st or ii)
the 12 month period immediately preceding January
1st.
(b) An Eligible Employee who does not satisfy the criteria in ss.
2.1(a) in his or her first 12 months of employment shall become a
Participant as of the first payroll period beginning on or after the
first January 1 or July 1 coinciding with or next following the date he
or she completes a Year of Service and attains age 21.
(c) If an Employee is not an Eligible Employee on a January 1st or
July 1st but has otherwise satisfied either ss. 2.1(a) or (b), he or
she will become a Participant as of the first day of the month
thereafter on which he or she becomes an Eligible Employee.
(d) Effective January 1, 2002, each Eligible Employee may make a
Rollover Contribution to the Plan pursuant to ss. 3.5 prior to becoming
a Participant. An Eligible Employee may not make any 401(k)
Contributions to the Plan prior to satisfying the requirements of this
ss. 2.1 or ss. 2.2, notwithstanding any Rollover Contribution made to
the Plan prior to an Eligible Employee becoming a Participant.
(e) For Plan Years ending on or before December 31, 2001,
participation in the Plan shall be determined under the terms of the
Plan as then in effect.
2.2. General Participation After December 31, 2002. Each Eligible Employee
hired after December 31, 2002 will become a Participant effective with the first
payroll period beginning on or after the first day of the month coinciding with
or next following the date he or she completes a Year of Service and attains age
21. If an Employee is not an Eligible Employee on such date, he or she will
become a Participant as of the first payroll period beginning on or after the
first day of the month coincident with or immediately following the date on
which he or she becomes an Eligible Employee.
-2-
2.3. Reemployment. If a Participant terminates employment and is reemployed
as an Eligible Employee, he or she will be reinstated as a Participant on the
date of his or her reemployment. Each other former Employee who is reemployed
will become a Participant in accordance with the general rule in ▇▇.▇▇. 2.1 or
2.2, but his or her previous service shall be credited for purposes of
determining his or her eligibility to participate upon reemployment if he or she
had fewer than five consecutive Breaks in Service.
2.4. Change in Status. If the Plan Sponsor discovers that an individual was
mistakenly treated as an Eligible Employee, it will cause the individual's
401(k) Contributions to be refunded as soon as practicable after the discovery.
In no event will Matching Contributions or Safe Harbor Matching Contributions be
made with respect to those refunded 401(k) Contributions.
If the Plan Sponsor discovers that an Eligible Employee was not treated as
covered under the Plan, it will take any action that it deems appropriate and
proper under the circumstances to remedy the omission as soon as practicable
after the discovery.
2.5. Not a Contract of Employment. This Plan is not a contract of
employment. Thus participation in this Plan will not give any person the right
to be retained as an Employee or, upon termination of a person's employment, the
right to any interest in the Trust Fund other than as expressly provided in this
Plan.
2.6. USERRA. Notwithstanding any provision of this Plan to the contrary,
contributions, benefits and service credit with respect to qualified military
service will be provided in accordance with Code ss. 414(u).
ss. 3. EMPLOYEE CONTRIBUTIONS
3.1. 401(k) Contributions.
(a) General. Subject to the rules and limitations in this ss. 3
and in ss. 6, each Eligible Employee who has met the applicable
eligibility requirements in ss. 2 may elect that his or her
Participating Employer make 401(k) Contributions to this Plan on his or
her behalf through payroll deductions, and 401(k) Contributions shall
begin as soon as administratively possible on or after the date on
which he or she has completed all election and enrollment forms
required by the Plan Administrator. A Participant's initial
contribution election will continue while the Participant is an
Eligible Employee until the Participant changes the rate of his or her
401(k) Contributions in accordance with ss. 3.3 or suspends his or her
401(k) Contributions in accordance with ss. 3.4.
(b) Amount of 401(k) Contributions. 401(k) Contributions must be
made in 1% increments, from 1% to 10% prior to January 1, 2003 and up
to 15% on or after January 1, 2003 of Compensation. The Plan
Administrator has the right at any time unilaterally to reduce
prospectively the amount or percentage of 401(k) Contributions elected
by any
-8-
Highly Compensated Employee or by all Highly Compensated Employees as a
group if it determines that a reduction is appropriate in light of the
applicable limitations under ss. 6.
(c) 401(k) Accounts. A Participant's 401(k) Contributions will be
credited to his or her 401(k) Account.
3.2. Rate Changes.
(a) General. A Participant may change or suspend his or her rate
of 401(k) Contributions at any time by following the procedures
established by the Plan Administrator for rate changes.
(b) Change in Eligibility Status. A Participant's 401(k)
Contributions will automatically stop when he or she ceases to be an
Eligible Employee. If a Participant's status thereafter changes to an
Eligible Employee (whether by reemployment or otherwise), he or she may
elect to resume 401(k) Contributions at any time by following the
procedures established by the Plan Administrator.
(c) Hardship Withdrawal. A Participant's 401(k) Contributions will
be suspended for the six month period following a hardship withdrawal
in accordance with ss. 7.3(a)(4). A Participant may resume 401(k)
Contributions at any time after the end of the suspension period. The
suspension period for hardship withdrawals made prior to January 1,
2002 shall be twelve (12) months.
(d) Leave of Absence. A Participant's 401(k) Contributions will
continue to be deducted during any period of paid leave of absence
during which the Participant continues to receive Compensation from a
Participating Employer, provided he or she continues to be classified
as an Eligible Employee during the leave. However, a Participant's
401(k) Contributions will be suspended during any period of unpaid
leave of absence. A Participant returning from an unpaid leave may
resume 401(k) Contributions at any time after he or she resumes active
employment as an Eligible Employee.
3.3. Payment of 401(k) Contributions to Trustee. All 401(k) Contributions
will be paid to the Trust Fund as soon as practicable after the related payroll
deductions are made and, in any event, by the deadline, if any, established for
making those payments under ERISA or the Code.
3.4. Rollover Contributions.
(a) General. An Eligible Employee may elect to contribute a
Rollover Contribution to the Trust Fund, provided it is made by the
Eligible Employee (or transferred to this Plan in a direct rollover
from another plan): (a) in cash or in a form acceptable to the Trustee
and (b) in accordance with any rules that the Trustee, and the Plan
Administrator deem appropriate under the circumstances.
(b) Rollover Accounts. A Participant's Rollover Contributions will
be credited to his or her Rollover Account.
-9-
ss.4. EMPLOYER CONTRIBUTIONS
4.1. Employer Matching Contributions.
(a) Matching Contributions for the 2002 Plan Year. Subject to the
rules and limitations in this ss. 4 and in ss. 6, the Board in its
absolute discretion will determine the percentage, if any, of 401(k)
Contributions made by its Eligible Participants that will be matched
for each Plan Year and the maximum percentage or dollar limitation, if
any, on those contributions. In no case will a Matching Contribution
under this ss. 4.1(a) be made in the same Plan Year as a Safe Harbor
Matching Contribution under ss. 4.1(b). Matching Contributions will be
made only on behalf of Eligible Participants. This contribution will be
made in cash as the Board may determine from time to time. No Matching
Contribution will be made to the Plan for Plan Years beginning on or
after January 1, 2003.
(b) Safe Harbor Matching Contributions after December 31, 2002.
Effective for Plan Years beginning after December 31, 2002, if the Plan
Sponsor in its absolute discretion elects to have the Plan satisfy Code
▇▇.▇▇. 401(k)(12) and 401(m)(10), a Safe Harbor Matching Contribution
will be made in cash for each payroll period during such Plan Year for
each Eligible Participant in an amount equal to:
(1) one hundred percent (100%) of the first three percent
(3%) of a Participant's Compensation deferred to the Plan
pursuant to ss. 3.1, and
(2) fifty percent (50%) of the next two percent (2%) of a
Participant's Compensation deferred to the Plan pursuant
toss.3.1.
Within a reasonable period of time, before the beginning of the Plan
Year, the Plan Administrator will notify each Eligible Employee that
the Plan will comply with Code ▇▇.▇▇. 401(k)(12) and 401(m)(10), and
shall provide such notice to other Employees as they become eligible to
participate in the Plan in accordance with the requirements of Code
▇▇.▇▇. 401(k)(12) and 401(m)(10).
(c) Application of Forfeitures. Forfeitures occurring in a Plan
Year that are not used to make the corrective contributions and
restorations described in ▇▇.▇▇. 7.1(e) and 8.7 will, at the Plan
Sponsor's discretion, be used to reduce Matching Contributions or Safe
Harbor Matching Contributions, or to pay Plan expenses.
(d) No Matching Contributions or Safe Harbor Matching
Contributions on Refunds. No Matching Contribution or Safe Harbor
Matching Contribution will be made with respect to any 401(k)
Contributions that are refunded under ss. 6.3 or Appendix A to comply
with the limitations under Code ▇▇.▇▇. 402(g) or 401(k). Any Matching
Contributions and Safe Harbor Matching Contributions attributable to
those refunded 401(k) Contributions that have actually been credited to
the Participant's Matching
-10-
Account or Safe Harbor Matching Account will be treated as a Forfeiture
as soon as practicable after a determination is made that this
corrective action is necessary.
(e) Allocation. Matching Contributions made on an Eligible
Participant's behalf for a Plan Year will be credited to his or her
Matching Account as of the last day of that Plan Year. Safe Harbor
Matching Contributions made on a Participant's behalf for a Plan Year
will be credited to his or her Safe Harbor Matching Account each
payroll period, or such time as determined by the Plan Sponsor in
accordance with applicable sections of the Code and the regulations
thereunder. The employer matching contribution described in section
4.2(c) of the prior plan document will be allocated in the 2002 Plan
Year in accordance with such section of the prior plan document.
4.2. Application of Suspense Account. Excess amounts that are transferred to
a Code ss. 415 suspense account for a Plan Year under ss. 6.2(d) will be treated
as a Forfeiture for the current or next following Plan Year.
4.3. Top Heavy Contributions. If a determination is made that this Plan is
top heavy under ss. 13.8(a) for a Plan Year, the Participating Employers will
contribute the amount, if any, needed to satisfy the minimum allocation
requirements under ss. 13.8(b). Those contributions will be credited as of the
last day of that Plan Year to the affected Participants' Matching Accounts.
4.4. Payment of Employer Contributions. Except as otherwise provided herein,
Matching Contributions and Safe Harbor Matching Contributions for a Plan Year
shall be paid to the Trust Fund at the time determined by the Plan Sponsor in
its discretion, but in no event later than the due date (including any
extensions thereof) of the Plan Sponsor's or Participating Employer's federal
income tax return for its taxable year ending with or within the Plan Year for
which the contribution was made.
ss. 5. ACCOUNT INVESTMENTS AND ALLOCATIONS
5.1. General. It is intended that Participants, Beneficiaries of deceased
Participants and alternate payees will have an opportunity to direct the
investment of their Accounts among investment funds selected by the Plan Sponsor
in accordance with ss. 404(c) of ERISA. The Plan Sponsor will select four or
more investment funds to make available under the Trust Fund, and each such
investment fund will be described for Participants in the summary plan
description for this Plan or in such other materials as the Plan Sponsor deems
suitable under the circumstances. Investment funds may be added or eliminated at
any time by the Plan Sponsor. The investment funds may include, but are not
limited to, (1) mutual funds, (2) collective investment funds, (3) the Lodgian
Stock Fund and (4) the Lodgian Warrant Funds A and B (collectively the "Lodgian
Warrant Funds"). The Lodgian Warrant Funds are frozen investment funds that were
established in December 2002 solely for the purpose of holding Lodgian Warrants
received by the Trust Fund in connection with the court approved bankruptcy plan
of reorganization of the Plan Sponsor. A Participant whose Account included an
investment in the Lodgian Stock Fund on the date the Lodgian Warrants were
received by the Trust Fund shall automatically have a portion of his or her
Account invested in the Lodgian Warrant Funds in the same proportion that his
interest
-11-
in the Lodgian Stock Fund bears to the total amount of all Accounts which are
invested in the Lodgian Stock Fund at that time. The Lodgian Warrant Funds will
remain frozen funds until the earlier of: (1) the sale of the Lodgian Warrants
by the Trustee, as approved by the U. S. Department of Labor in connection with
a prohibited transaction exemption, or (2) the exercise of the Lodgian Warrants
by the Participants who have an interest in the Lodgian Warrant Funds, provided
that no Lodgian Warrant may be exercised until the fair market value of a share
of Lodgian Stock equals or exceeds the exercise price of a Lodgian Warrant. If
such sale or exercise occurs, the cash proceeds shall be held in the Lodgian
Warrant Funds for allocation to Participant Accounts in the Lodgian Warrant
Funds and the cash proceeds shall thereafter be subject to the investment
direction of Participants. If a Participant's interest in the Lodgian Warrant
Funds includes a partial Lodgian Warrant, the Participant shall not be entitled
to exercise any partial Lodgian Warrant. In that case, the Trustee shall
exercise all partial Lodgian Warrants by aggregating all partial Lodgian
Warrants into whole Lodgian Warrants. The Trustee may negotiate the sale of all
Lodgian Warrants held in the Lodgian Warrant Funds on behalf of all Participants
without the consent of Participants to the extent permitted by law or an
exemption issued by the U. S. Department of Labor. The assets of the Plan may be
commingled for investment purposes in a group trust and with the assets of other
plans whether or not the assets of this Plan will be held in a separate
investment fund.
5.2. Investment Elections. Each Participant, Beneficiary of a deceased
Participant and alternate payee will have the right to elect how his or her
Account will be invested among the available investment funds in accordance with
procedures established from time to time by the Plan Administrator and the
Trustee. An individual may revise his or her investment Election at such times
and in accordance with such procedures as are established by the Plan
Administrator, which may include restrictions on the investment of Accounts in
the Lodgian Stock Fund and the Lodgian Warrant Funds. An individual's Account
will continue to be invested in accordance with his or her most recent
investment Election until such Election is properly changed.
5.3. Amounts Available for Investment. Contributions under this Plan will
not be treated as part of an Account for investment purposes until such
contributions are actually received by the Trust Fund and posted on its records
as available for investment by the Participant, Beneficiary or alternate payee.
5.4. Allocations to Accounts. Subject to the limitations in ss. 6, all
Accounts will be adjusted as of each Valuation Date for contributions,
distributions, withdrawals and investment earnings or losses since the last
Valuation Date in accordance with nondiscriminatory procedures for adjusting
Account balances. Each Account will share in the investment earnings or losses
for each investment fund based on the portion of the Account invested in that
fund.
5.5. Allocation Corrections. If an error or omission is discovered in any
Account, an appropriate equitable adjustment will be made to remedy the error or
omission as soon as practicable after its discovery.
5.6. Transition Period to Implement Plan Changes. In connection with a
change in record keepers, trustees, or other service providers for the Plan, a
change in the methodology for valuing Accounts (including Lodgian Stock and/or
Lodgian Warrants), a change in investment options, a
-12-
plan merger or other circumstances, a temporary interruption in the normal
operations of the Plan may be required in order to properly implement such
change or merger or take action in light of such circumstances. In such event or
under such circumstances, the Plan Administrator, may take such action as it
deems appropriate under the circumstances to implement such change or merger or
in light of such circumstances, including authorizing a temporary interruption
in a Participant's ability to obtain information about his or her Account, to
take distributions from such Account and to make changes in the investment of
that Account, provided the Plan Administrator will take appropriate action as to
give Participants, Beneficiaries of a deceased Participant and alternate payees
advance notice in accordance with the requirements of ERISA as possible and to
minimize the scope and length of the interruption in normal Plan operations. In
addition, when changing investment options, the Plan Administrator will take
such action as it deems appropriate under the circumstances to direct the
investment of the funds pending completion by the Trustee of the administrative
processes necessary to transfer investment authority to the Participants,
Beneficiaries of deceased Participants or alternate payees, including, but not
limited to, mapping monies from old funds to new funds.
5.7. Special Rules Concerning Investment in Lodgian Stock Fund.
Notwithstanding any other provision of the Plan to the contrary, the following
rules shall apply to investments in the Lodgian Stock Fund.
(a) Dividends. A Participant's allocation share of cash dividends
(and other cash earnings) credited to the Lodgian Stock Fund will be
reinvested in Lodgian Stock held in the Lodgian Stock Fund. Dividends
on Lodgian Stock paid in the form of stock shall be credited to the
Lodgian Stock Fund for allocation to Participant Accounts invested in
such fund.
(b) Purchase of Lodgian Stock. The Trustee is authorized to
purchase Lodgian Stock from the Plan Sponsor or in the open market or
in a privately negotiated transaction with another shareholder,
including a party-in-interest with respect to the Plan unless such
transaction is prohibited by ERISA.
(c) Voting of Lodgian Stock. Each Participant may direct the
Trustee as to the exercise of any voting or similar rights attributable
to whole shares of Lodgian Stock allocated to the Participant's Account
through the Account's investment in the Lodgian Stock Fund. Voting
directions shall be provided to the Trustee by a Participant in
writing, or by mailgram or similar means and shall be held in
confidence by the Trustee and shall not be divulged to the Plan
Sponsor, or any officer or employee thereof, or any other person. Upon
receipt of voting directions, the Trustee shall vote the shares of
Lodgian Stock held in the Participant's Account as directed by the
Participant. The Trustee shall not vote shares of Lodgian Stock for
which it has received no direction from the Participant. The Trustee
shall vote any partial shares allocated to a Participant's Account in
proportion to the shares for which it receives voting directions from
Participants.
(d) Restrictions. The ability of a Participant or a Beneficiary to
engage in transactions with respect to the Lodgian Stock allocated to
his or her Account (within the
-13-
Lodgian Stock Fund) will be subject to such restrictions as the Plan
Administrator and the Trustee determine are necessary or appropriate to
satisfy federal or state securities laws.
ss. 6. LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS
6.1. Ordering Rule. The allocation of contributions made under this Plan
(other than Rollover Contributions) will be subject to the limitations of
this ss. 6 as applied in the following order:
(a) the Code ss. 415 limitations under ss. 6.2,
(b) the Code ss. 402(g) limitations under ss. 6.3,
(c) the Code ss. 401(k) limitations for Highly Compensated
Employees under Appendix A for Plan Years in which a Safe
Harbor Matching Contribution is not made to the Plan; and
(d) the Code ss. 401(m) limitations for Highly Compensated
Employees under Appendix A for Plan Years beginning prior to
January 1, 2003.
6.2. Code ss. 415 Limitations.
(a) General. The limitation year for purposes of Code ss. 415 and
the related regulations is the Plan Year. The total annual additions
(as described in ss. 6.2(b)) allocated to a Participant's Account for
any Plan Year, when added to the contributions that are treated as made
on behalf of the Participant for the Plan Year under the coordination
rules in ss. 6.2(c), will not exceed the lesser of:
(1) 100% of the Participant's compensation for the Plan
Year,
(2) $40,000, as adjusted for increases in the
cost-of-living under Code ss. 415(d), or
(3) any lesser amount as the Plan Sponsor deems necessary
or appropriate to satisfy the requirements of Code ss. 415
(including any applicable transition rules) in light of ss.
6.2(c) and any benefits accrued and any contributions made for
the Participant under any other employee benefit plan
maintained by an Affiliate.
For purposes of this ss. 6.2, the term "compensation" means
compensation as defined in Code ss. 415(c)(3).
(b) Annual Additions. The term annual additions for a Plan Year
means the total 401(k) Contributions (other than 401(k) Contributions
refunded pursuant to ss. 6.3), Matching Contributions, Safe Harbor
Matching Contributions and Forfeitures allocated to a Participant's
Account for that Plan Year. For purposes of this ss. 6.2, any
corrective allocations made under this Plan will be treated as annual
additions in the Plan Year to which those allocations relate.
-14-
(c) Coordination Rules. Any contributions allocated to an
individual medical benefit account described in Code ss. 415(l) and
contributions credited under a welfare benefit fund maintained by an
Affiliate for any year to a reserve for post-retirement medical
benefits for a Participant who is a key employee (within the meaning of
Code ss. 416(i)) will be treated as a contribution made on his or her
behalf under this Plan when, and to the extent, required under Code
▇▇.▇▇. 415 or 419A(d).
(d) Corrections. If crediting contributions or Forfeitures to a
Participant's Account would exceed the restrictions in this ss. 6.2,
the excess will be corrected in the following steps:
(1) by refunding unmatched 401(k) Contributions (and any
investment gain attributable to those refunded contributions);
(2) by refunding matched 401(k) Contributions (and any
investment gain attributable to those refunded contributions)
and transferring the related Matching Contributions and Safe
Harbor Matching Contributions to a Code ss. 415 suspense
account; and
(3) by transferring any remaining excess to a Code
ss. 415 suspense account.
Amounts transferred to a Code ss. 415 suspense account will not be
allocated to the Participant's Account, but will be held unallocated in
a separate suspense account and will be treated as a Forfeiture for the
next Plan Year. The balance credited to the suspense account will be
returned to the Participating Employers in the event this Plan is
terminated prior to the date the suspense account has been applied in
accordance with this ss. 6.2.
Any 401(k) Contributions refunded under this ss. 6.2 will be
disregarded for purposes of the Code ss. 402(g) limitations under ss.
6.3 and the Code ss. 401(k) limitations under Appendix A.
6.3. Code ss. 402(g) Limitations.
(a) This Plan and Other Affiliate Plans. A Participant's total
401(k) Contributions under this Plan and elective deferrals (within the
meaning of Code ss. 402(g)) under all other qualified plans, contracts
and arrangements maintained by the Affiliates during any calendar year
(other than amounts refunded to reduce a Code ss. 415 excess under ss.
6.2 or under those other plans) will not exceed the annual dollar limit
under Code ss. 402(g). If a Participant's 401(k) Contributions together
with other elective deferrals exceed this limitation, the Participant
will be deemed to have requested a refund from this Plan and the excess
will be refunded in accordance with this ss. 6.3.
(b) Other Plans or Arrangements. Any elective deferrals (within
the meaning of Code ss. 402(g)) made for a calendar year on a
Participant's behalf under plans or
-15-
contracts of an employer that is not an Affiliate, such as another
employer's Code ss. 401(k) plan or Code ss. 403(b) tax sheltered
annuity, will be taken into account under this Plan for purposes of the
limitations under this ss. 6.3 if requested by the Participant and
approved by the Plan Administrator.
(c) Action to Satisfy 402(g) Limitation.
(1) Refund Request. If a Participant's 401(k)
Contributions and other elective deferrals described in ss.
6.3(a) and (b) for a calendar year exceed the Code ss. 402(g)
dollar limit, he or she may request a refund of that excess
(or, if less, the Participant's 401(k) Contributions deducted
for that calendar year) by filing an Election no later than
March 1 of the following calendar year. A Participant's
Election under this ss. 6.3(c) must specify the dollar amount
of the excess and include a written statement that, absent the
refund, the 401(k) Contributions made under this Plan and
other elective deferrals described in ss. 6.3(a) and (b) will
exceed the Code ss. 402(g) limitation for the calendar year.
(2) Refund. Any refund timely requested or deemed
requested under this ss. 6.3 (adjusted for investment gain or
loss) will be made no later than the April 15 that immediately
follows the date the refund is requested or deemed requested.
(3) Treatment. Any 401(k) Contributions that exceed the
Code ss. 402(g) limit will be taken into account for purposes
of the ADP Test under Appendix A even if the excess 401(k)
Contributions are refunded in accordance with this ss. 6.3(c).
However, excess 401(k) Contributions refunded to a Nonhighly
Compensated Employee will not be taken into account for
purposes of the ADP Test to the extent the excess arises
solely from 401(k) Contributions under this Plan and elective
deferrals under all other qualified plans, contracts and
arrangements maintained by the Affiliates pursuant to Code ss.
401(a)(30). Excess 401(k) Contributions refunded under this
ss. 6.3 will not be taken into account for purposes of the
Code ss. 415 limitations under ss. 6.2.
(4) Determination of Investment Gain or Loss. Refunds of
excess elective deferrals will be adjusted for investment gain
or loss for the Plan Year for which the deferrals were made in
accordance with the regulations under Code ss. 402(g) but will
not be adjusted for investment gain or loss for the period
between the end of the Plan Year and the date the deferrals
are distributed.
ss. 7. PLAN BENEFITS
7.1. Participant.
(a) Distribution Events. A Participant's Vested Benefit will be
payable to the Participant in accordance with ss. 8 upon his or her
severance from employment (within the meaning of Code ss. 401(k)). In
addition, a Participant may request an in-service withdrawal from his
or her Vested Benefit before those events in accordance with ss. 7.3.
-16-
Finally, distributions must begin to a Participant who is a 5% owner in
accordance with ss. 8.2(c).
(b) Vested Benefit. A Participant's 401(k) Account, Rollover
Account and Safe Harbor Matching Account are fully vested at all times.
A Participant's Matching Account will become fully vested upon his or
her:
(1) death while an Employee,
(2) reaching age 65 (which is the normal retirement date
under the Plan) while an Employee, or
(3) completing the number of Years of Service required to
be fully vested in accordance with ss. 7.1(c) or ss. 7.1(d) as
applicable.
Otherwise, the vested portion of a Participant's Matching Account will
be determined in accordance with the vesting schedule in ss. 7.1(c) or
ss. 7.1(d) as applicable.
(c) Vesting Schedule for Participants without an Hour of Service
after March 31, 2002.
(1) General. The vested percentage of the Matching
Contribution Account of a Participant who does not complete
one Hour of Service after March 31, 2002 shall be determined
in accordance with the following vesting schedule:
Full Years of Service Vested Portion
--------------------- --------------
less than 3 0%
3 20%
4 40%
5 60%
6 80%
7 or more 100%
(2) AMI Operating Partners, L.P. Vesting Schedule. The
vested percentage of the portion of a Participant's Account
which represents the employer matching account directly
transferred to this Plan from the ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Inc.
Managed Properties Profit Sharing Plan - AMI Operating
Partners as a result of the acquisition of AMI Operating
Partner, L. P. by Servico, Inc. on May 28, 1998 shall be
determined in accordance with the following vesting schedule:
Full Years of Service Vested Portion
less than 2 0%
2 20%
3 40%
-17-
4 60%
5 80%
6 or more 100%
(d) Vesting Schedule for Participants with an Hour of
Service on or after April 1, 2002. The vested percentage of
the Matching Contribution Account of a Participant who
completed one Hour of Service on or after April 1, 2002 shall
be determined in accordance with the following vesting
schedule:
Full Years of Service Vested Portion
--------------------- --------------
less than 3 0%
3 or more 100%
(e) Forfeiture. If a Participant has a severance from
employment (within the meaning of Code ss. 401(k)), the
nonvested portion of his or her Account will be treated as a
Forfeiture after the earlier of (1) the occurrence of 5
consecutive Breaks in Service or (2) the date his or her
Vested Benefit is distributed from the Plan. For this purpose,
a Participant whose Matching Account has a Vested Benefit of
zero will be deemed to receive a distribution from the Plan of
his or her Matching Account when he or she has a severance
from employment.
Forfeitures occurring in a Plan Year will be applied as soon
as practicable in the following steps: (1) to make the
corrective contributions and restorations called for under
▇▇.▇▇. 7.1(f) or 8.7, (2) to pay Plan expenses and (3) to
offset Matching Contributions and Safe Harbor Matching
Contributions in accordance with ss. 4.1.
(f) Reemployment.
(1) Before Forfeiture. If a former Employee is
reemployed before the nonvested portion of his or her
Account has been treated as a Forfeiture, that
nonvested portion will remain a part of his or her
Account subject to the vesting rules of this ss. 7.1.
(2) After Forfeiture. If a former Employee is
reemployed as an Employee before he or she has 5
consecutive Breaks in Service but after the nonvested
portion of his or her Account has been treated as a
Forfeiture, that nonvested portion will be restored
without interest as of the first Valuation Date after
his or her reemployment if the Employee repays to the
Plan the full amount of the distribution attributable
to Matching Contributions before the earlier of i) 5
years after the first date on which the Employee is
subsequently reemployed by the Employer or ii) the
date the Employee incurs 5 consecutive Breaks in
Service following the date of the distribution.
Restorations will be made first from Forfeitures and
then from new contributions by the Participating
Employer. If a Participant was not vested in any
portion of his or her Matching Account and was deemed
to receive a cash out of such Matching Account
under ss. 7.1(e), the
-18-
Participant's Matching Account shall be credited with the
amount forfeited as of the first Valuation Date after his or
her reemployment if he or she has not incurred five
consecutive Breaks in Service.
7.2. Death of Participant. If a Participant dies before receiving payment in
full of his or her Vested Benefit, the remaining balance of that Vested Benefit
will be payable in accordance with ss. 8 to his or her Beneficiary, determined
in accordance with the following rules.
(a) If the Participant is lawfully married at death, the
Participant's Beneficiary will be the Participant's surviving spouse,
except as otherwise provided below.
(b) If the Participant is not lawfully married at death or if the
Participant's surviving spouse consented in writing before a notary
public to the designation of another person as the Participant's
Beneficiary (or the Plan Administrator determines that spousal consent
is not required under the Code or ERISA), the Participant's Beneficiary
will be the person or persons so designated by a Participant in an
Election.
(c) If paragraphs (a) and (b) do not apply or if no Beneficiary
designated under those paragraphs survives the Participant or can be
located (after checking his or her last known mailing address) within
12 months after the Participant's death, the Participant's Beneficiary
will be the personal representative of the Participant, provided the
representative has qualified within 12 months after the Participant's
death.
(d) If paragraphs (a), (b) and (c) do not apply, the Participant's
Beneficiary will be the Participant's heirs at law (including legally
adopted children of the deceased Participant) who make their
whereabouts known to the Plan Administrator within 12 months after the
Participant's death.
If the Participant designates a Beneficiary in more than one Election, the most
recent valid Election completed and received by the Plan Administrator before
the Participant's death will control.
7.3. In-Service Withdrawals.
(a) Hardship Withdrawals.
(1) General. Subject to the restrictions in ss.
7.3(a)(5), a Participant who is an Employee may withdraw all
or any part of his or her 401(k) Account, and Rollover Account
for a financial hardship. A hardship withdrawal will be
granted if, and to the extent that, the Plan Administrator
determines that the withdrawal is "necessary" to satisfy an
"immediate and heavy financial need" as determined in
accordance with this ss. 7.3(a).
(2) Immediate and Heavy Financial Need. An "immediate and
heavy financial need" means one or more of the following:
-19-
(i) expenses for medical care described in Code
ss. 213(d) incurred by the Participant or the
Participant's spouse or dependents (as defined in
Code ss. 152) and amounts necessary for those
individuals to obtain the medical care,
(ii) the purchase (excluding mortgage payments)
of a principal residence for the Participant,
(iii) the payment of room and board, tuition and
related educational fees for the next 12 months of
post-secondary education for the Participant or the
Participant's spouse, children or dependents (as
defined in Code ss. 152),
(iv) the prevention of the eviction of the
Participant from his or her principal residence or
the foreclosure on the mortgage of the Participant's
principal residence or
(v) any other events that the Internal Revenue
Service identifies as a deemed immediate and heavy
financial need pursuant to the regulations under Code
ss. 401(k).
(3) Withdrawal Necessary to Satisfy Need. A hardship
withdrawal will be deemed to be "necessary" to satisfy an
immediate and heavy financial need only if both of the
following conditions are satisfied:
(i) The withdrawal will not exceed the amount of
the need and any amounts necessary to pay any
federal, state or local income taxes or penalties
reasonably anticipated to result from the withdrawal.
(ii) The Participant has obtained all
distributions and withdrawals (other than hardship
withdrawals) and all nontaxable loans currently
available from this Plan and all plans maintained by
the Affiliates. However, a Participant will not be
required to obtain a loan if the effect of the loan
would be to increase the amount of the need.
(4) Suspension of Contributions and Adjusted Limits. If
any portion of the hardship withdrawal comes from the
Participant's 401(k) Account, for the 6 month period following
the date of the withdrawal, the Participant cannot make any
401(k) Contributions under this Plan or elective deferrals,
employee contributions or catch-up contributions under any
other plans maintained by the Affiliates. For this purpose,
"other plans" means all qualified and nonqualified plans of
deferred compensation, including a stock option, stock
purchase or other similar plan, but excluding a health or
welfare benefit plan (even if it is part of a cafeteria plan
described in Code ss. 125). The contribution suspension period
shall be twelve (12) months for a hardship withdrawal made
prior to January 1, 2002.
-20-
(5) Restrictions On Hardship Withdrawals. A Participant's
hardship withdrawals are subject to the following
restrictions:
(i) Investment gain on 401(k) Contributions made
after January 1, 1989 are not available for hardship
withdrawals.
(ii) Effective January 1, 2003, a Participant may
only make two hardship withdrawals per Plan Year.
(6) Procedures. Any hardship withdrawal Election must be
made in writing, describe in detail the nature of the hardship
and the amount needed as a result of the hardship and must
include any additional information that the Plan Administrator
requests consistent with this ss. 7.3(a).
Finally, the hardship withdrawal rules in this ss. 7.3(a) are
intended to satisfy the safe harbor requirements in the Code
ss. 401(k) regulations, and the Plan Administrator has the
power to implement written procedures to modify these rules
and to adopt additional rules to the extent permissible under
those regulations.
(7) Any withdrawal under this subsection 7.3(a) shall not
be eligible for a direct rollover under ss. 8.3.
(b) Age 59 1/2 Withdrawals. A Participant who is an Employee may
make an Election to withdraw all or any portion of his or her Vested
Benefit on or after reaching age 59 1/2. A Participant may only make
one age 59 1/2 withdrawal in a Plan Year.
(c) Rollover Account Withdrawals. A Participant who is an Employee
may make an Election to withdraw all (but not less than all) of his or
her Rollover Account at any time.
(d) Limitations. If at anytime the Plan Administrator imposes
restrictions on the sale or purchase of Lodgian Stock pursuant to ss.
5.2, the portion of a Participants' Account invested in the Lodgian
Stock Fund will not be considered in the amount available for
withdrawal under this ss. 7.3. Similarly, any interest in the Lodgian
Warrant Funds will also be disregarded for a withdrawal under this ss.
7.3.
ss. 8. BENEFIT PAYMENT
8.1. Methods.
(a) General. A Participant's Vested Benefit that becomes payable
under ss. 7 will be paid to the Participant or, in the event of his or
her death, to his or her Beneficiary in one of the following methods,
as specified in an Election made by the Participant or Beneficiary, as
applicable:
(1) an annuity;
-21-
(2) a single sum; or
(3) installment distribution consisting of approximately
equal annual or more frequent installments over a maximum of
10 years, not to exceed the life expectancy of the
Participant.
If an annuity option is available, and a Participant makes a valid
Election to receive an annuity, the annuity rules in Appendix B shall
apply. Notwithstanding the foregoing, the annuity option in
ss.8.1(a)(1) will be eliminated effective January 1, 2003.
A Participant may elect to receive his or her Vested Benefit in either
a) cash, b) Lodgian Stock to the extent his or her Account is invested
in the Lodgian Stock Fund at the time of the distribution, or c) a
combination of cash and Lodgian Stock, unless distribution in Lodgian
Stock is not permitted by applicable law. No distribution will be made
of Lodgian Warrants or the portion of a Participant's Account which is
invested in the Lodgian Warrant Funds until the Lodgian Warrants are
sold or exercised and cash is substituted for such Lodgian Warrants in
the Lodgian Warrant Funds. Distributions of Lodgian Stock may only be
made in whole shares and cash shall be distributed for partial shares.
(b) Automatic Single Sum in Certain Cases. Notwithstanding
anything to the contrary in this ss. 8:
(1) any in-service withdrawals under ss. 7.3 will be made
in a single sum;
(2) any distribution will be made in a single sum if the
value of the Vested Benefit (excluding the value of any
Rollover Account) is $5,000 or less.
(3) if a Participant continues to participate in the Plan
after being paid in a single sum upon his or her required
beginning date (as described in ss. 8.2(c)), any additional
amounts allocated to the Participant's Account will be paid in
a single sum no later than the date required under Code ss.
401(a)(9) or the related regulations.
(c) Installment Rules.
(1) Distributions Beginning Before Death. If the
Participant dies after installments have started but before
the Vested Benefit has been paid in full, the remaining Vested
Benefit will be distributed to his or her Beneficiary in
installments at least as rapidly as the installments were
being distributed to the Participant at his or her death.
(2) Distributions Beginning After Death. The following
rules apply if the Participant dies before distribution of his
or her Vested Benefit has started:
-22-
(i) For installments payable to the
Participant's surviving spouse, the installment
period may not exceed the spouse's life expectancy.
(ii) For installments payable to a Beneficiary
who is not the Participant's spouse, the installment
period may not exceed the period ending on December
31 of the calendar year containing the fifth
anniversary of the date of the Participant's death.
(3) Life Expectancy. A Participant's life expectancy and
the life expectancy of the Participant's Beneficiary or spouse
will be calculated in accordance with the tables under Code
ss. 72. Life expectancies will not be recalculated.
(4) Minimum Distribution Rule. All distributions under
this Plan will be determined and made in accordance with the
minimum distribution rules under Code ss. 401(a)(9) and the
related regulations, including the minimum distribution
incidental benefit requirements of Code ss. 401(a)(9)(G).
(5) Acceleration. The remaining Vested Benefit will be
paid in a single sum if this Plan is terminated or if the
Participant (or, in the event of his or her death, his or her
Beneficiary) so requests.
(d) Limitations. If at anytime the Plan Administrator imposes
restrictions on investments in the Lodgian Stock Fund pursuant to ss.
5.2, the portion of a Participant's Account invested in the Lodgian
Stock Fund will not be considered in the amount available for a
distribution under this ss. 8.1. Similarly, any interest in the Lodgian
Warrant Funds will not be available for distribution until the Lodgian
Warrants have been sold or exercised as provided herein.
8.2. Timing.
(a) General. A Participant's Vested Benefit will become payable as
soon as practicable after the occurrence of an event described in ss.
7. As a general rule, a Participant's Vested Benefit will be paid to
him or her as soon as practicable after he or she has a severance from
service, subject to the following:
(1) The Participant's consent to payment will not be
required if the value of the Vested Benefit (excluding the
value of any Rollover Account) is $5,000 or less.
(2) No payment will be made without the Participant's
consent before the Participant's required beginning date (as
described in ss. 8.2(c)) if the value of the Vested Benefit
(excluding the value of any Rollover Account) exceeds $5,000.
(b) Deferral of Payment. Unless the Participant elects otherwise,
payment of a Participant's Vested Benefit will not be delayed beyond
the 60th day after the close of the Plan Year in which the latest of
the following events occurs:
-23-
(1) the date on which the Participant attains age 65
(which is the normal retirement date under the Plan);
(2) the tenth anniversary of the Participant's
participation in the Plan; and
(3) the date the Participant separates from service.
However, unless he or she consents to an earlier distribution, the
Participant will be deemed to have elected to defer payment of his or
her Vested Benefit (which deemed election will be in lieu of a written
election described in Treasury Regulation ss. 1.401(a)-14) until the
Participant's death or until the Participant's required beginning date
(as described in ss. 8.2(c)), whichever comes first.
(c) Participant's Required Beginning Date. Notwithstanding the
foregoing, payment of a Participant's Vested Benefit will be made (or
commence) to the Participant no later than April 1 of the calendar year
following the calendar year in which he or she (1) reaches age 70 1/2
or (2) for a Participant who is not a 5% owner (as defined in Code ss.
416), terminates employment, whichever is later.
(d) Beneficiary. A deceased Participant's Vested Benefit will
become payable to his or her Beneficiary as soon as practicable after
the Plan Administrator determines that the person has an interest in
the Vested Benefit. A distribution generally must be completed by
December 31 of the calendar year containing the fifth anniversary of
the Participant's death. However, if the Vested Benefit is payable to
the Participant's spouse in installments, distribution must begin no
later than December 31 of the calendar year (1) in which the
Participant would have reached age 70 1/2, or (2) containing the first
anniversary of the Participant's death, whichever is later.
8.3. Direct Rollover. Notwithstanding any provision of this Plan to the
contrary that would otherwise limit a distributee's election under this ss. 8, a
distributee may elect, at the time and in the manner prescribed by the Plan
Administrator, to have any portion of an eligible rollover distribution paid
directly to an eligible retirement plan specified by the distributee in a direct
rollover.
(a) Eligible Rollover Distribution. An eligible rollover
distribution is any distribution or withdrawal of all or any portion of
the balance to the credit of the distributee, except that an eligible
rollover distribution does not include (1) any payment that is one of a
series of substantially equal periodic payments (not less frequently
than annually) made for the life (or life expectancy) of the
distributee or the joint lives (or joint life expectancies) of the
distributee and the distributee's designated beneficiary or for a
specified period of ten years or more; (2) any payment to the extent it
is required under Code ss. 401(a)(9); and (3) the portion of any
payment that is not includible in gross income (determined without
regard to the exclusion for net unrealized appreciation with respect to
employer securities). Any amount that is distributed on account of
hardship shall not be an eligible rollover distribution and the
distributee may not elect to have any
-24-
portion of such a distribution paid directly to an eligible retirement
plan. A portion of a distribution shall not fail to be an eligible
rollover distribution merely because the portion consists of after-tax
employee contributions which are not includible in gross income.
However, such portion may be transferred only to an individual
retirement account or annuity described in Code ss. 408(a) or (b),
or to a qualified defined contribution plan described in Code ss.
401(a) or 403(a) that agrees to separately account for amounts so
transferred, including separately accounting for the portion of such
distribution which is includible in gross income and the portion of
such distribution which is not so includible.
(b) Eligible Retirement Plan. An eligible retirement plan is (1)
an individual retirement account described in Code ss. 408(a), (2) an
individual retirement annuity described in Code ss. 408(b), (3) an
annuity plan described in Code ss. 403(a), (4) a qualified trust
described in Code ss. 401(a), (5) an annuity contract described in
Code ss. 403(b) and (6) an eligible plan under Code ss. 457(b) which is
maintained by a state, political subdivision of a state, or any agency
or instrumentality of a state or political subdivision of a state and
which agrees to separately account for amounts transferred into such
plan from this Plan. The definition of eligible retirement plan shall
also apply in the case of a distribution to a surviving spouse, or to a
spouse or former spouse who is the alternate payee under a qualified
domestic relation order, as defined in Code ss. 414(p).
(c) Distributee. A distributee includes an employee or former
employee. In addition, the employee's or former employee's surviving
spouse and the employee's or former employee's spouse or former spouse
who is the alternate payee under a qualified domestic relations order,
as defined in Code ss. 414(p), are distributees with regard to the
interest of the spouse or former spouse.
(d) Direct Rollover. A direct rollover is a payment by the Plan to
the eligible retirement plan specified by the distributee.
Notwithstanding the foregoing, a hardship withdrawal under ss. 7.3
shall not be treated as an eligible rollover distribution.
8.4. Claim for Benefit. A Participant or Beneficiary may be required to
complete and file a claim for a benefit in an Election as a condition to payment
of that benefit. All claims will be processed in accordance with the claims
procedure in the summary plan description for this Plan. Any payment to a
Participant or Beneficiary (or to their legal representative or heirs-at-law)
made in accordance with the provisions of this Plan will to the extent of that
payment be in full satisfaction of all claims under this Plan against the
Trustee, the Plan Administrator and each Participating Employer, any of whom may
require that person (or his or her legal representative or heirs-at-law), as a
condition precedent to that payment, to execute a receipt and release in a form
acceptable to the Trustee, Plan Administrator or Participating Employer, as the
case may be.
8.5. No Estoppel of Plan. No person is entitled to any benefit under this
Plan except and to the extent expressly provided under this Plan. The fact that
payments have been made from this Plan in connection with any claim for benefits
under this Plan does not (a) establish the validity of the claim, (b) provide
any right to have the benefits continue for any period of time or
-25-
(c) prevent this Plan from recovering the benefits paid to the extent that the
Plan Administrator determines that there was no right to payment of the benefits
under this Plan.
Thus, if a benefit is paid to a person under this Plan and thereafter the Plan
Administrator determines that the benefit should not have been paid (whether or
not attributable to an error by that person, the Plan Administrator or any other
person), the Plan Administrator may take any action it deems necessary or
appropriate to correct the overpayment, including without limitation by (1)
deducting the amount of any overpayment previously made to or on behalf of that
person from any succeeding payments to or on behalf of that person under this
Plan or from any amounts due or owing to that person by any Affiliate or under
any other plan, program or arrangement benefiting the employees or former
employees of any Affiliate or (2) otherwise recovering the overpayment from the
person who benefited from it.
If the Plan Administrator determines that an underpayment of benefits has been
made, the Plan Administrator will take any action it deems necessary or
appropriate to correct the underpayment. However, in no event will interest be
paid on the amount of the underpayment other than the investment gain or loss
credited to the Account pending payment.
8.6. Legally Incompetent. At the discretion of the Plan Administrator
payments may be made (a) directly to an incompetent or disabled person, whether
because of minority or mental or physical disability, (b) to an individual
appointed by a court of competent jurisdiction as the guardian or custodian of
that incompetent or disabled person or (3) to any person designated or
authorized under any state statute to receive payments on behalf of that
incompetent or disabled person, without further liability on the part of a
Participating Employer, the Plan Administrator or the Trustee for the amount of
the payments to the person on whose account the payment is made.
8.7. Missing Person. If a benefit is required to be paid under this Plan but
the Plan Administrator is unable to locate (in accordance with reasonable
procedures established for this purpose) the individual to whom payment is to be
made, that individual's benefit will be treated as a Forfeiture as of the date
determined by the Plan Administrator but no earlier than the last day of the
Plan Year that includes the second anniversary of the date that benefit first
became payable. However, the amount forfeited will be paid (from Forfeitures or
from additional Participating Employer contributions) to the missing individual
if he or she files a proper claim for the benefit while this Plan remains in
effect. If the Plan Administrator is unable to locate a Participant or any
Beneficiary for an Account and this Plan is terminated before the Account
becomes a Forfeiture under this ss. 8.7, those persons will be presumed dead
upon the Plan's termination and the Account will be applied thereafter to pay
administrative expenses of the Plan and Trust Fund.
8.8. Other Payment Rules.
(a) Withholding Obligations. The amount of any payment from an
Account under this Plan will be reduced as necessary or
appropriate to satisfy any applicable tax withholding
requirements with respect to the payment.
-26-
(b) Waiver of Notices. A Participant or Beneficiary may waive the
notice period under Code ss. 401(a)(31), 402(f) or 411(a)(11).
(c) Account Balance. A payment or Forfeiture from an Account may
be delayed pending completion of allocations to the Account if
necessary to avoid underpayment or overpayment.
(d) Order of Withdrawal. Unless otherwise expressly set forth in
this Plan, any payment of less than the Participant's entire Vested
Benefit will be deducted from the subaccounts in a Participant's
Account and the investment funds in which the subaccount is invested in
accordance with procedures established by the Plan Administrator.
(e) Reemployment. Except for required distributions under ss.
8.2(c) or in-service withdrawals under ss. 7.3, no payment will be made
to a Participant under this ss. 8 after he or she is reemployed as an
Employee.
ss. 9. NAMED FIDUCIARIES AND ADMINISTRATION
9.1. Named Fiduciaries. The Plan Sponsor and the Plan Administrator are the
named fiduciaries responsible for the control, management and administration of
this Plan. Any power or responsibility for the control, management or
administration of this Plan that is not expressly assigned to a named fiduciary
under the Plan, or with respect to which the proper assignment is in doubt, will
be deemed to have been assigned to the Plan Sponsor. One named fiduciary will
have no responsibility to inquire into the acts and omissions of the other named
fiduciary in exercising its powers or discharging its responsibilities under
this Plan.
A named fiduciary, by written instrument filed by the Plan Administrator with
the records of the Plan, may designate a person who is not a named fiduciary to
carry out any of its responsibilities under this Plan. A named fiduciary or a
person designated to perform any responsibility of a named fiduciary pursuant to
the procedure described in this ss. 9.1 may employ one or more persons to render
advice with respect to any responsibility assigned to the named fiduciary or
allocated to that person under this Plan. Any person (including a member of a
committee which is a Plan Administrator) may serve in more than one fiduciary
capacity under this Plan, and a fiduciary may be a Participant if he or she
otherwise satisfies the Plan's participation requirements.
9.2. Plan Administrator Appointment and Term of Office. If the Plan
Administrator is a committee (the "Committee"), the Committee will (except on a
temporary basis) consist of not less than three persons. The Committee members
will be appointed by the Board and will serve without compensation. The Board
has the right to remove any Committee member at any time, and a member may
resign at any time by written resignation to the Board. The Board may fill by
appointment any vacancy in the membership of the Committee.
9.3. Organization of Plan Administrator. If the Plan Administrator is a
Committee, the Committee members may allocate among themselves by mutual consent
specific Plan
-27-
Administrator responsibilities and functions for the operation and
administration of this Plan, provided that allocation is reported in the records
of the Committee. The Committee will act by majority vote. The Committee may
appoint agents or advisors to perform any functions it deems necessary and
helpful to the effective performance of its duties and the duties of the
individual Committee members. The compensation of those agents or advisors will
be fixed by the Committee within limits set by the Board and will constitute an
expense of the Plan.
9.4. Plan Administrator Powers and Duties.
(a) General. Except to the extent expressly reserved under this
Plan to the Plan Sponsor, the Plan Administrator (or the Committee in
the case of an appointment of a committee) has the exclusive
responsibility and complete discretionary authority to control the
operation, management and administration of this Plan, with all powers
necessary to enable it properly to carry out those responsibilities,
including (but not limited to) the power to construe this Plan, to
determine eligibility for benefits, to settle disputed claims and to
resolve all administrative, interpretive, operational, equitable and
other questions that arise under this Plan. The decisions of the Plan
Administrator on all matters within the scope of its authority will be
final and binding. To the extent a discretionary power or
responsibility under this Plan is expressly assigned to a person other
than the Plan Administrator, that person will have complete
discretionary authority to carry out that power or responsibility and
that person's decisions on all matters within the scope of that
person's authority will be final and binding.
(b) Liquidity Requirements. The Plan Administrator will be
responsible for determining the funding policy for the Plan, including
any anticipated liquidity requirements and for communicating that
policy to the Trustee when it deems appropriate.
(c) Records. All Plan records will be maintained by or at the
direction of the Plan Administrator.
(d) Information from Others. The Plan Administrator, the Committee
members, Participating Employers and their officers, directors,
employees and agents will be entitled to rely upon all information and
data in any certificate, report or other material prepared by any
actuary, accountant, attorney, consultant or advisor selected by the
Plan Administrator to perform services on behalf of this Plan. All
action taken or omitted in good faith in reliance upon the advice or
opinion of any of those persons will be conclusive upon all persons
interested in this Plan.
9.5. Indemnification. To the extent that the Plan Administrator, Trustee or
a member of the Committee is not protected and held harmless by or through
insurance, and to the extent permissible under ERISA and any other applicable
law, the Plan Sponsor will indemnify the Plan Administrator, Trustee and
Committee members from and against any liability, assessment, loss, expense or
other cost, of any kind or description whatsoever, including legal fees and
expenses, actually incurred by the member on account of any action or
proceeding, actual or threatened,
-28-
that arises as a result of his or her being the Trustee, Plan Administrator or a
member of the Committee.
9.6. Reporting and Disclosure. The Plan Administrator will be responsible
for satisfying any applicable reporting and disclosure requirement under federal
or state law with respect to this Plan.
ss.10. DUTIES AND AUTHORITY OF TRUSTEE
10.1. General Fiduciary Duties. Except as may be required or permitted by
ERISA, the Trustee and all fiduciaries hereunder shall discharge their duties
with respect to the Plan solely in the interest of the Participants,
Beneficiaries and alternate payees and:
(a) for the exclusive purpose of:
(i) providing benefits to Participants, Beneficiaries and
alternate payees; and
(ii) defraying reasonable expenses of administering the
Plan;
(b) with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent person acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of like character and with like aims;
(c) by diversifying the investments of the Plan so as to minimize
the risk of large losses, unless under the circumstances it is clearly
prudent not to do so; and
(d) in accordance with the Plan document insofar as the Plan
document is consistent with Part 4 of Title I of ERISA.
10.2. Deposits to Trust Fund. The Trust Fund shall receive from the
Participating Employers the payments made on account of contributions under the
Plan, and made by Participants, if any, but the Trustee shall have no duty to
compute any amount due from the Participating Employers or to collect the same.
10.3. Value Assets. The Trustee shall value the assets of the Trust Fund as
of the close of the last day of each Plan Year at their fair market value and
the Plan Administrator or its agent will allocate the sums contributed by the
Participating Employers and by Participants, if any, plus the net income or
minus the net loss of the Trust Fund and plus the net appreciation or minus the
net depreciation in the Trust Fund to separate bookkeeping accounts in the names
of the respective Participants under the Plan in accordance with the provisions
of ss. 5.
10.4. Segregation of Accounts. When directed in writing by the Plan
Administrator, the Trustee shall segregate the accounts of terminated
Participants, and make payments out of the Trust Fund from time to time to the
Participants, Beneficiaries or alternate payees, such
-29-
payments to be made in the manner and in the amounts as may be specified in the
written instructions of the Plan Administrator.
10.5. Tax Returns and Reports. If the Trustee is a corporate fiduciary, then
such Trustee shall prepare or cause to have prepared and filed, all tax returns,
reports, and related documents, except as otherwise specifically provided in
this Plan or unless the Plan Administrator, in writing, relieves the Trustee of
such obligation, in part or entirely, in which case the Plan Administrator, or
the person or persons it designates, shall be responsible for filing the tax
returns, reports, and related filings, as provided by the Plan Administrator.
The Trustee shall be entitled to rely on the accuracy of any written statement
from the Plan Administrator or from an officer of the Plan Sponsor.
10.6. Powers. Subject to the right in ss. 5.2 of Participants to direct the
investment of their Accounts, the Trustee is authorized and empowered to:
(a) invest and reinvest the Trust Fund, without distinction
between principal and income, in bank accounts, certificates of
deposit, common stocks, preferred stocks, bonds, notes, debentures,
mortgages, U.S. retirement plan bonds, and in other property, real or
personal, so long as the incidents of ownership of such property are
within the jurisdiction of the United States, and so long as such
investments do not violate applicable law;
(b) to acquire and hold up to 100% of the value of the assets in
the Trust Fund in "qualifying employer securities" and "qualifying
employer real property," as those terms are defined in ERISA if the
Plan Administrator determines that such investments are permitted;
(c) sell, exchange, convey, transfer, or otherwise realize the
value of any property held by it;
(d) convert any stocks, bonds, or other securities, to give
general or special proxies or powers of attorney with or without power
of substitution; to exercise any warrants, conversion privileges,
subscription rights, or other options and to make any payment
incidental thereto; to consent to or otherwise participate in corporate
reorganizations or other changes affecting corporate securities and to
delegate discretionary powers to pay any assessments or charges in
connection therewith; and generally to exercise any of the powers of an
owner with respect to stocks, bonds, securities or other properties
held in the Trust Fund provided that the Trustee shall follow the
directions of Participants on any voting and tender decisions
concerning Lodgian Stock as provided in ss. 5.7.
(e) make, execute, acknowledge, and deliver any and all documents
of transfer and conveyance and any other instruments that may be
necessary or appropriate to carry out the powers herein granted;
(f) register any investments held in the Trust Fund in its own
name or in the name of a nominee or nominees and to hold any investment
in bearer form, but the books and
-30-
records of the Trustee shall at all times show that all such
investments are part of the Trust Fund;
(g) invest all or a part of the Trust Fund in deposits which bear
a reasonable rate of interest in a bank or similar financial
institution, even though such institution is a Trustee or other
fiduciary, as defined in IRC ss. 4975(e)(3);
(h) investment in a common or collective trust fund or pooled
investment fund maintained by a bank or trust company or a pooled
investment fund of an insurance company qualified to do business in a
State even though such bank, trust company or insurance company is a
disqualified person, as defined in IRC ss. 4975(e)(2);
(i) make distributions to Participants, Beneficiaries or alternate
payees in cash or any other property;
(j) perform all such acts, although not specifically mentioned
herein, as the Trustee may deem necessary to administer the Trust Fund
and to carry out the purpose of the Trust, and
(k) borrow or loan sums, except as prohibited by IRC ss. 4975(c)
(without reference to IRC ss. 4975(d)), as the Trustee deems desirable,
and for that purpose, to mortgage or pledge all or part of the Trust
Fund.
10.7. Expenses. All brokerage costs, transfer taxes and similar expenses
incurred in connection with the investment and reinvestment of the Trust Fund
and all taxes of any kind whatsoever which may be levied or assessed under
existing or future laws upon or in respect of the Trust Fund, and any interest
which may be payable on money borrowed by the Trustee for the purpose of the
Trust, shall be paid from the Trust Fund, and, until paid, shall constitute a
charge upon the Trust Fund. All other administrative expenses incurred by the
Trustee in the performance of its duties, including such compensation to the
Trustee as may be agreed upon from time to time between the Plan Administrator
and the Trustee (in accordance with the Trustee's standard schedule of fees in
effect from time to time during the time it administers this Trust, if
applicable) and all proper charges and disbursements of the Trustee, may be paid
by the Participating Employers, and if not paid by the Participating Employers
shall be paid from the Trust Fund, and until paid shall constitute a charge upon
the Trust Fund. If the Plan Sponsor advises the Trustee in writing of its
determination to make no further contribution to this Trust, the expenses of the
Trustee shall thereafter be charged against and paid out of the Trust. However,
no person who is a disqualified person (as defined in IRC ss. 4975(e)(2)) and
who received full-time pay from the Plan Sponsor, may receive compensation from
the Trust, except for reimbursement of expenses properly and actually incurred.
10.8. Litigation. The Trustee shall not be required to participate in any
litigation either for the collection of monies or other property due the Trust
Fund, or in defense of any claim against the Trust Fund unless the Trustee shall
have been indemnified to its satisfaction against all expenses and liability to
which the Trustee might become subject.
-31-
ss.11. LOANS.
11.1. Administration. The Plan Administrator will be the named fiduciary
responsible for the administration of the loan program under this Plan. The Plan
Administrator will establish objective nondiscriminatory written procedures for
the loan program in compliance with ss. 2550.408b-1 of the Department of Labor
regulations. Those procedures and any amendments to those procedures, to the
extent not inconsistent with the terms of this Plan, are incorporated by this
reference as part of this Plan.
11.2. Statutory Requirements.
(a) General. All loans made under this Plan will comply with the
following requirements under ERISA ss. 408(b)(1):
(1) Loans will be made available to Participants and
Beneficiaries who are eligible for a loan on a reasonably
equivalent basis.
(2) Loans will not be made available to Highly
Compensated Employees in an amount greater than the amount
made available to other Employees.
(3) Loans will be made in accordance with specific
provisions regarding loans set forth in this Plan and the
written loan procedures described above.
(4) Loans will bear a reasonable rate of interest.
(5) Loans will be adequately secured by 1/2 of the
Participant's Vested Benefit or, if less, the amount of the
outstanding loan principal balance.
(b) Repayments. Principal and interest on the loan must be repaid
in substantially level installments with payments not less frequently
than quarterly over a period of 5 years or less, unless such loan is
used to acquire the principal residence of the Participant, then over a
period of 10 years. The Plan Administrator may establish other payment
rules, including rules regarding a grace period and suspension of
payments during unpaid leaves of absence, in the written loan
procedures.
(c) Limitations on Amounts. The principal amount of a loan made
under this Plan to a Participant or Beneficiary, together with the
outstanding principal amount of any loan made under any plan maintained
by an Affiliate that satisfies the requirements of Code ss. ss. 401 or
403, may not exceed the lesser of
(1) 50% of that person's Vested Benefit at the time the
loan is made, or
(2) $50,000, reduced by the excess (if any) of
(A) the highest outstanding balance of any
previous loans from this Plan and any other plan
maintained by an Affiliate during the one-year
-32-
period ending immediately before the date on which
the current loan is made over
(B) the outstanding balance of the previous
loans on the date on which the current loan is made.
(3) If at anytime the Plan Administrator imposes
restrictions on investments in the Lodgian Stock Fund pursuant
to ss. 5.2, the portion of a Participants' Account invested in
the Lodgian Stock Fund will not be considered in the amount
available for a loan under this ss. 11. Similarly, any
interest in the Lodgian Warrant Funds will also be disregarded
for purposes of determining the amount available for a loan
unless such amount consists solely of cash.
The Plan Administrator may establish other loan limits, including
minimum loan amounts and rules regarding the subaccounts from which a
loan may be made, in the written loan procedures.
11.3. Distribution and Default. The Vested Benefit actually payable to an
individual who has an outstanding loan will be determined by reducing the Vested
Benefit by the amount of the security interest in the Account (if any).
Notwithstanding anything to the contrary in this Plan or in the written loan
procedures described above, in the event of default, foreclosure on the note and
execution of the security interest in an Account will not occur until a
distributable event occurs under this Plan and interest will continue to accrue
only to the extent permissible under applicable law.
11.4. USERRA. Loan repayments will be suspended under this Plan as permitted
under ss. 414(u) of the Internal Revenue Code.
ss. 12. AMENDMENT AND TERMINATION
12.1. Amendment. The Plan Sponsor on behalf of all Participating Employers
has the right to amend this Plan in any respect whatsoever and at any time by
action of the Board, or a committee of the Board to which such authority has
been delegated. An officer of the Plan Sponsor has the right to amend the Plan
if such amendment is to comply with law. No amendment will be made that (unless
otherwise permissible under applicable law) would (a) divert any of the assets
of the Trust Fund to any purpose other than the exclusive benefit of
Participants and Beneficiaries, (b) eliminate or reduce an optional form of
benefit, except as permitted by law or (c) decrease a Participant's accrued
benefit under the Plan. However, this Plan may be amended retroactively to
affect the Accounts maintained for any person if necessary to cause this Plan
and the Trust Fund to be exempt from income taxes under the Code.
12.2. Termination. The Plan Sponsor expects this Plan to be continued
indefinitely but, of necessity, it reserves the right to terminate or to
partially terminate this Plan or to permanently discontinue contributions to
this Plan at any time by action of the Board. Each other Participating Employer
will have the right by action of its Board of Directors to terminate or to
-33-
partially terminate its participation in this Plan or to permanently discontinue
its contributions to this Plan. In the case of any termination of or permanent
discontinuance of contributions to this Plan, the Account of each affected
Participant who is an Employee as of its effective date will become fully
vested. Further, the Plan Administrator will, where appropriate, direct (1) the
allocation of unallocated amounts to the Accounts of affected individuals, (2)
distributions from those Accounts in accordance with procedures established by
the Plan Administrator consistent with Code ss. 401(k), (3) any action necessary
to implement the missing person provisions under ss. 8.7 and (4) the return of
any Trust Fund assets attributable to a Code ss. 415 suspense account in
accordance with ss. 13.5.
ss. 13. MISCELLANEOUS
13.1. Headings and Construction. The headings and subheadings in this Plan
have been inserted for convenience of reference only and are to be ignored in
construction of the provisions of this Plan. All references to sections and to
subsections are to sections and subsections of this Plan unless otherwise
indicated. Where appropriate, the singular should be read as the plural and the
plural as the singular. Any reference to a statute also includes any successor
statute and, if any amendment renumbers a section of a statute referred to in
this Plan, that reference automatically will become a reference to that section
as renumbered. This Plan is to be construed in accordance with the laws of the
State of Georgia to the extent that those laws are not preempted by federal law.
This Plan does not, and should not be construed to, grant any rights or
privileges to Participants or Beneficiaries in addition to those minimum rights
and privileges required under the Code and ERISA.
13.2. Nontransferability. Except to the extent permitted by law and subject
to ss. 13.7, no Account, benefit, payment or distribution under this Plan will
be subject to the claim of, or legal process by, any creditor of a Participant
or Beneficiary, and no Participant or Beneficiary will have any right to
alienate, commute, anticipate or assign all or any portion of his or her
Account, benefit, payment or distribution under this Plan.
13.3. Benefits Supported Only by Trust Fund. Any person having any claim for
any benefit under this Plan must look solely to the assets of the Trust Fund for
satisfaction of that claim. In no event will a Participating Employer, the Plan
Administrator, the Trustee or any of their employees, officers, directors or
agents be liable in their individual capacities to any person whomsoever for the
payment of benefits under the provisions of this Plan.
13.4. Nondiscrimination. The Plan Administrator, will administer this Plan in
a uniform and consistent manner with respect to all similarly situated
Participants and Beneficiaries and will not permit discrimination in favor of
highly compensated employees that would be prohibited under Code ss. 401(a).
13.5. Nonreversion. No part of the Trust Fund will ever be used for or be
diverted to purposes other than for the exclusive benefit of Participants and
Beneficiaries except that, upon direction of the Plan Administrator, the Trustee
will return contributions to a Participating Employer in the following
circumstances, to the extent permitted by the Code and ERISA:
-34-
(a) a contribution made by a mistake of fact will be returned,
provided the return is made within one year after the payment of the
contribution;
(b) a nondeductible contribution will be returned, provided the
return is made within one year after the Internal Revenue Service
denies the deduction for the contribution, all Plan contributions being
made expressly on the condition that the contributions are deductible
in full for federal income tax purposes; and
(c) any amount held in a Code ss. 415 suspense account (as
described in ss. 6.2(d)) that cannot be allocated upon the termination
of this Plan will be returned.
13.6. Merger, Consolidation or Similar Transaction.
(a) General. In the case of any merger or consolidation of this
Plan with, or transfer of assets or liabilities of this Plan to, any
other employee benefit plan, each person for whom an Account is
maintained will be entitled to receive a benefit from this Plan or the
other plan, as applicable, if it is then terminated, that is equal to
or greater than the benefit he or she would have been entitled to
receive immediately before the merger, consolidation or transfer, if
this Plan had then been terminated.
(b) Authorization. The Plan Administrator may authorize the
Trustee to accept a transfer of assets from or to transfer Trust Fund
assets to the trustee, custodian or insurance company holding assets of
any other plan that satisfies the requirements of Code ss. 401(a), in
connection with a merger or consolidation with or other transfer of
assets to or from that plan, provided that (1) the transfer will not
affect the qualification of this Plan under Code ss. 401(a) and (2) the
assets to be transferred are acceptable to the Trustee.
(c) No Annuities. No assets may be transferred directly to this
Plan from a plan described in Code ss. 401(a)(11)(B) that is subject to
the survivor annuity requirements in Code ss. 417, unless the transfer
meets the requirements of Code ss. 414(l) and the person for whom the
transfer is made has made an elective transfer that satisfies the
requirements in Q&A-3(b) of Treas. Reg. ss. 1.411(d)-4.
13.7. Qualified Domestic Relations Order. In accordance with uniform and
nondiscriminatory procedures established by the Plan Administrator from time to
time, the Plan Administrator will, upon the receipt of a domestic relations
order that seeks to require the distribution of a Participant's Account in whole
or in part to an alternate payee (as defined in Code ss. 414(p)(8)),
(a) promptly notify the Participant and alternate payee of the
receipt of the order and of the procedure that the Plan Administrator
will follow to determine whether the order constitutes a qualified
domestic relations order (within the meaning of Code ss. 414(p));
(b) determine whether the order constitutes a qualified domestic
relations order, notify the Participant and the alternate payee of the
results of its determination and, if the
-35-
Plan Administrator determines that the order does constitute a
qualified domestic relations order;
(c) transfer any amounts that the Plan Administrator determines
necessary or appropriate from the Participant's Account to a special
account for the alternate payee; and
(d) make any distributions to the alternate payee from the special
account that the Plan Administrator deems called for under the terms of
the order in accordance with Code ss. 414(p).
Unless otherwise provided in the order, an alternate payee's special account
shall be distributed as soon as practicable after the account has been
established in a lump sum, without regard to whether a distribution would be
permissible at that time to a Participant under the terms of this Plan. Unless
otherwise provided in the order, if an alternate payee dies before his or her
special account is paid in full, the balance in the account will be paid to the
person designated by the alternate payee as his or her Beneficiary or, if no
Beneficiary designation is made, to the alternate payee's estate.
13.8. Top Heavy Plan.
(a) Determination of Top-Heavy Status. This section shall apply
for purposes of determining whether the Plan is a top-heavy plan under
Code ss. 416(g) and whether the Plan satisfies the minimum benefits
requirements of Code ss. 416(c) for Plan Years beginning on or after
January 1, 2002. If, as of the last day of any such Plan Year
("determination date"), the sum of the present value of the accrued
benefits of key employees (as defined below) exceeds 60% of the sum of
the present value of the accrued benefits of all employees as of that
determination date, this Plan will be top heavy for the immediately
following Plan Year. For this purpose,
(1) Key Employee. Key employee means any employee or
former employee (including any deceased employee) who at any
time during the Plan Year that includes the determination date
was an officer of an Affiliate having annual compensation
greater than $130,000 (as adjusted under Code ss. 416(i)(1)
for Plan Years beginning after December 31, 2002), a 5-percent
owner of an Affiliate, or a 1-percent owner of an Affiliate
having annual compensation of more than $150,000. For this
purpose, annual compensation means compensation within the
meaning of Code ss. 415(c)(3). The determination of who is a
key employee will be made in accordance with Code ss.
416(i)(1) and the applicable regulations and other guidance of
general applicability issued thereunder.
(2) Determination of Present Values and Amounts. This ss.
13.9(a) shall apply for purposes of determining the present
values of accrued benefits and the amounts of account balances
of employees as of the determination date. The present value
of the accrued benefit of each employee will equal the sum of:
-36-
(i) the balance of his or her Account under this
Plan (determined for this purpose as of each
determination date); and
(ii) the present value of his or her accrued
benefit, if any, under each of the following plans
(determined as of the valuation date that coincides
with or precedes the determination date for that
plan) under
(A) each qualified plan (as described
in Code ss. 401(a)) maintained by an
Affiliate (i) in which a key employee is a
participant or (ii) that enables any plan
described in subclause (i) to meet the
requirements of Code ss. ss. 401(a)(4) or
410, and
(B) each other qualified plan
maintained by an Affiliate (other than a
plan described in clause (A)) that may be
aggregated with this Plan and the plans
described in clause (A), provided the
aggregation group (including a plan
described in this clause (B)) continues to
meet the requirements of Code ss. ss.
401(a)(4) and 410.
(3) Distribution During Year Ending on the Determination
Date. The present values of accrued benefits and the amounts
of account balances of an employee as of the determination
date shall be increased by the distributions made with respect
to the employee under the Plan and any plan aggregated with
the Plan under Code ss. 416(g)(2) during the 1-year period
ending on the determination date. The preceding sentence shall
also apply to distributions under a terminated plan which, had
it not been terminated, would have been aggregated with the
Plan under Code ss. 416(g)(2)(A)(i). In the case of a
distribution made for a reason other than separation from
service, death, or disability, this provision shall be applied
by substituting "5-year period" for "1-year period".
(4) Employees Not Performing Services During Year Ending
on the Determination Date. The accrued benefits and accounts
of any individual who has not performed services for the
employer during the 1-year period ending on the determination
date shall not be taken into account.
(b) Special Top Heavy Plan Rules. Notwithstanding any other rules
to the contrary in this Plan, the following special rules will apply if
the Plan Administrator determines that this Plan is top heavy for any
Plan Year.
(1) Minimum Contribution. A contribution will be made by
the Participating Employer for the Plan Year for each
Participant described in ss.1.23(a) who is not a key employee
and who is an Eligible Employee on the last day of that Plan
Year that, when added to the employer contributions and
forfeitures otherwise allocated on behalf of such individual
for such Plan Year under this Plan and any other defined
contribution plan maintained by an Affiliate, is equal to
(i) the excess, if any, of:
-37-
(A) the lesser of (a) 3% of the
Participant's Compensation or (b) the
largest amount (expressed as a percentage of
Compensation) of Forfeitures, 401(k)
Contributions and Matching Contributions
allocated for the Plan Year to the Account
of any key employee; over
(B) the total Forfeitures and Matching
Contributions allocated to the Participant's
Account for the Plan Year; or
(ii) for each such Eligible Employee who also
participates in a top heavy defined benefit plan
maintained by an Affiliate, 5% of such Eligible
Employee's Compensation for such year;
provided, however, that no such contribution shall be made
under this ss. 13.8(b) for any Eligible Employee to the extent
such Eligible Employee receives the top heavy minimum
contributions (as described in Code ss. 416(c)) under another
defined contribution plan maintained by an Affiliate for such
Plan Year.
(2) Matching Contributions. Matching Contributions shall
be taken into account for purposes of satisfying the minimum
contribution requirements of Code ss. 416(c)(2) of the Plan.
The preceding sentence shall apply with respect to Matching
Contributions and Safe Harbor Matching Contributions under the
Plan or, if the Plan provides that the minimum contribution
requirement shall be met in another plan, such other plan.
Matching Contributions that are used to satisfy the minimum
contribution requirements shall be treated as Matching
Contributions for purposes of the ACP Test and other
requirements of Code ss. 401(m).
IN WITNESS WHEREOF, the Plan Sponsor and the Participating Employers have caused
this Plan to be executed by their duly authorized officers and each to have its
seal to be affixed as of the date set forth below.
LODGIAN, INC.
By:
----------------------------------------
Title:
------------------------------------
Date:
--------------------------------------
TRUSTEE:
-------------------------------------------
▇▇▇ ▇▇▇▇▇, as Trustee
-38-
Appendix A to the
Lodgian, Inc. 401(k)Plan
Effective January 1, 2002
The allocation of 401(k) Contributions made under the Plan will be
subject to the limitations of this Appendix A for the Plan Year ending December
31, 2002 and any Plan Year beginning on or after January 1, 2003 in which the
Participating Employers do not make a Safe Harbor Matching Contribution to the
Plan. The allocation of Matching Contributions made under the Plan will be
subject to the limitation of this Appendix A for the Plan Year ending December
31, 2002. No Matching Contributions will be made to the Plan for Plan Years
beginning on or after January 1, 2003.
The following terms have the following meanings for purposes of this Appendix A:
ACP -- means the ratio (expressed as a percentage) of (a) the Matching
Contributions credited to a Participant's Account for the applicable Plan Year
to (b) his or her Compensation for the applicable Plan Year.
ACP Test -- means the Code ss. 401(m) nondiscrimination test described in ss. 2
below.
ADP -- means the ratio (expressed as a percentage) of (a) the 401(k)
Contributions credited to a Participant's Account for the applicable Plan Year
to (b) his or her Compensation for the applicable Plan Year.
ADP Test -- means the Code ss. 401(k) nondiscrimination test described in ss. 1
below.
Excess Aggregate Contributions -- means the excess of (a) the Matching
Contributions actually made on behalf of Highly Compensated Employees for a Plan
Year over (b) the maximum permissible amount of Matching Contributions for that
Plan Year under the ACP Test described in this Appendix A.
Excess Contributions -- means the excess of (a) the 401(k) Contributions
actually made on behalf of Highly Compensated Employees for a Plan Year over (b)
the maximum permissible amount of 401(k) Contributions for that Plan Year under
the ADP Test described in this Appendix A.
ss.1. Code ss. 401(k) Limitations for Highly Compensated Employees.
(a) ADP Test. Each Plan Year a determination will be made whether
the average of the Highly Compensated Employees' ADPs for that Plan
Year, when compared to the average of the Nonhighly Compensated
Employees' ADPs for the preceding Plan Year, satisfies either of the
following tests:
(1) the average of the ADPs for all Highly Compensated
Employees is not more than 125% of the average of the ADPs for
all Nonhighly Compensated Employees, or
-39-
(2) the average of the ADPs for all Highly Compensated
Employees is not more than two times the average of the ADPs
for all Nonhighly Compensated Employees, and the excess of the
average of the ADPs for all Highly Compensated Employees over
the average of the ADPs for all Nonhighly Compensated
Employees is not more than two percentage points.
In performing the ADP Test for a Plan Year, the applicable averages
will be calculated taking into account each Participant who was an
Eligible Employee at any time during that Plan Year.
(b) Aggregation with Other Plans or Arrangements. For purposes
of ss. 1 of this Appendix A, all contributions made on a Highly
Compensated Employee's behalf under Code ss. 401(k) for a Plan Year
under any other plan described in Code ss. 401(k) maintained by an
Affiliate will be treated as if made under this Plan in determining his
or her ADP for that Plan Year. If this Plan satisfies the coverage
requirements of Code ss. 410(b) only if aggregated with one or more
other plans or if one or more other plans satisfy the coverage
requirements of Code ss. 410(b) only if aggregated with this Plan, this
1 of Appendix A will be applied by determining the ADPs of all
Participants as if all those plans were a single plan.
(c) Other Requirements and Elections. The determination and
treatment of the 401(k) Contributions and ADP of any Participant will
satisfy any other requirements prescribed by the Secretary of the
Treasury, including any subsequent IRS guidance issued under Code ss.
401(k), and, in performing the ADP Test, the Plan Administrator may use
any alternatives and elections authorized under the applicable
regulations, rulings or revenue procedures.
(d) Action to Satisfy ADP Test.
(1) Refund of Excess Contributions. Excess Contributions
for a Plan Year (adjusted for investment gain or loss) will be
refunded no later than the last day of the immediately
following Plan Year to Highly Compensated Employees on whose
behalf the Excess Contributions were made. Refunds will be
made on the basis of the amount of 401(k) Contributions,
starting with the Highly Compensated Employee with the
greatest dollar amount of 401(k) Contributions and ending when
the Excess Contributions have been refunded in full. The
Excess Contributions that would otherwise be refunded will be
reduced (in accordance with the Code ss. 401(k) regulations)
by any refund made to the Highly Compensated Employee under
ss. 6.3 of the Plan.
(2) Determination of Investment Gain or Loss. Excess
Contributions will be adjusted for investment gain or loss for
the Plan Year for which the contributions were made in
accordance with the regulations under Code ss. 401(k) but will
not be adjusted for investment gain or loss for the period
between the end of the Plan Year and the date the Excess
Contributions are distributed.
-40-
ss. 2. Code ss. 401(m) Limitations For Highly Compensated Employees.
(a) Each Plan Year a determination will be made whether the
average of the Highly Compensated Employees' ACPs for that Plan Year,
when compared to the average of the Nonhighly Compensated Employees'
ACPs for the preceding Plan Year, satisfies one of the following tests:
(1) the average of the ACPs for all Highly Compensated
Employees is not more than 125% of the average of the ACPs for
all Nonhighly Compensated Employees, or
(2) the average of the ACPs for all Highly Compensated
Employees is not more than two times the average of the ACPs
for all Nonhighly Compensated Employees, and the excess of the
average of the ACPs for all Highly Compensated Employees over
the average of the ACPs for all Nonhighly Compensated
Employees is not more than two percentage points.
In performing the ACP Test for a Plan Year, the applicable averages
will be calculated taking into account each Participant who was an
Eligible Employee at any time during that Plan Year.
(b) Aggregation with Other Plans or Arrangements. For purposes
of ss. 2 of this Appendix A, all employee contributions (within the
meaning of Code ss. 401(m)) and matching contributions (within the
meaning of Code ss. 401(m)(4)) allocated to a Highly Compensated
Employee's account for a Plan Year under any other plan described in
Code ss. ss. 401(a) or 401(k) maintained by an Affiliate will be
treated as if made under this Plan in determining his or her ACP for
that Plan Year. If this Plan satisfies the coverage requirements of
Code ss. 410(b) only if aggregated with one or more other plans or if
one or more other plans satisfy the coverage requirements of Code ss.
410(b) only if aggregated with this Plan, ss. 2 of this Appendix A will
be applied by determining the ACPs of all Participants as if all those
plans were a single plan.
(c) Other Requirements. The determination and treatment of the
Matching Contributions and ACP of any Participant will satisfy any
other requirements prescribed by the Secretary of the Treasury,
including any subsequent IRS guidance issued under Code ss. 401(m),
and, in performing the ACP Test, the Plan Administrator may use any
alternatives and elections authorized under the applicable regulations,
rulings or revenue procedures.
(d) Action to Satisfy ACP Test.
(1) Distribution or Forfeiture of Excess Aggregate
Contributions. Excess Aggregate Contributions for a Plan Year
(adjusted for investment gain or loss) will be forfeited to
the extent forfeitable under ss. 7.1 or distributed to the
extent not so forfeitable from the Accounts of Highly
Compensated Employees no later
-42-
than the last day of the immediately following Plan Year. The
distributions or Forfeitures will be made on the basis of the
amount of Matching Contributions, starting with the Highly
Compensated Employee with the greatest dollar amount of
Matching Contributions and ending when the Excess Aggregate
Contributions have been distributed or forfeited in full.
(2) Determination of Investment Gain or Loss. Excess
Aggregate Contributions will be adjusted for investment gain
or loss for the Plan Year for which the contributions were
made in accordance with the regulations under Code ss. 401(m)
but will not be adjusted for investment gain or loss for the
period between the end of the Plan Year and the date the
Excess Aggregate Contributions are distributed.
-▇▇-
▇▇▇▇▇▇▇▇ ▇ TO THE
LODGIAN, INC. 401(K) PLAN AND TRUST AGREEMENT
If a Participant makes an Election, prior to January 1, 2003, that his or her
Vested Benefit be paid in the form of an annuity, the rules of this Appendix B
will apply to any withdrawal, loan or distribution from his or her Account at
that time or any future time.
(a) Normal Annuity Form. Any annuity distribution made (including
withdrawals under ss. 7.3) will be paid
(1) in the form of a single life annuity if he or she
does not have a spouse on the Annuity Starting Date, or
(2) in the form of a joint and survivor annuity with his
or her spouse as beneficiary if he or she has a spouse on his
or her Annuity Starting Date
unless the Participant elects another form of payment and his
or her spouse, if any, consents to that Election in accordance
with this Appendix B.
(b) Election Procedures for Annuity Benefits. If a Participant
elects that his or her Account be paid in the form of an
annuity, the Plan Administrator will (consistent with the
regulations under Code ss. 417) furnish him or her with a
written explanation of the normal annuity form, the optional
payment forms and his or her rights under Code ss. 401(a)(11),
ss. 411(a)(11), and ss. 417.
A Participant who elects an annuity payment form may waive the
normal annuity form and select an optional payment form on a
properly completed Election before his or her Annuity Starting
Date. The last properly completed Election before the
Participant's Annuity Starting Date will control the payment
of benefits under this Plan.
A Participant's Election to waive the normal annuity form
generally will not be effective unless (A) the Election
designates the form of payment, (B) his or her spouse consents
in writing to the waiver, (C) the spouse's consent
acknowledges the effect of the waiver, and (D) the spouse's
consent is witnessed by a Plan representative or a notary
public.
However, if the Participant establishes to the satisfaction of
the Plan Administrator and in accordance with Code ss. 417
that written consent of his or her spouse may not be obtained
because there is no spouse or the spouse cannot be located or
because of such other circumstances as may be described in the
regulations under Code ss. 417, the Participant's Election
will be deemed to be a valid waiver.
-43
A spouse's written consent will be irrevocable as to that
spouse and will be binding only as against that spouse.
A Participant may revoke (without the consent of his or her
spouse) an election to waive the normal annuity form by
completing another Election at any time prior to his or her
Annuity Starting Date.
(c) Loans. A Participant who has elected to have his or her
Account paid in the form of an annuity may not pledge his or
her Account as security for a loan under ss. 11 unless his or
her spouse, if any, consents to that pledge in a manner
described in this Appendix B. No loan will be made to the
Participant in the absence of proper spousal consent.
(d) Death Benefits. If a Participant who has elected to have his
or her Account paid in the form of an annuity dies before his
or her Annuity Starting Date, his or her Account balance will
be applied to purchase a Preretirement Survivor Annuity for
his or her surviving spouse if the Participant did not waive
the Preretirement Survivor Annuity in accordance with the
waiver procedures in this Appendix B.
(e) Definitions. For purposes of this Appendix B, the following
terms will have the meaning set forth below:
(1) Annuity Starting Date - means for each Participant or
spouse the first day of the first period for which an amount
is paid or is to be paid as an annuity under this Plan.
(2) Preretirement Survivor Annuity - means an annuity for
the life of a Participant's surviving spouse, that is equal to
the maximum amount of annuity benefit that can be purchased
with the Participant's Account as of the Annuity Starting
Date.
-44-
APPENDIX C TO THE
LODGIAN, INC. 401(K) PLAN AND TRUST AGREEMENT
An Employee will be credited with service under the Plan for his or her service
with the following employers on the same basis as is used to determine service
with an Affiliate under the Plan:
- Servico Corporation;
- Impac Hotel Group;
- AMI Operating Partners, L.P.;
- Any other employers for whom service was credited
under the qualified retirement plan(s) of Servico
Corporation, Impac Hotel Group, or AMI Operating
Partners, L.P.; and
- Any other employer required to be aggregated with any
of the above three entities under Code ss. ss.
414(b), (c), (m) or (o).
-45-