exv10w9



 





EXHIBIT 10.9




INTERSTATE SUPPLEMENTAL

DEFERRED COMPENSATION PLAN




Amended and Restated

Effective as of January 1, 2005





 









 










INTERSTATE SUPPLEMENTAL

DEFERRED COMPENSATION PLAN




Amended and Restated

Effective as of January 1, 2005




TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I

	 	          DEFINITIONS
	 	 	1	 
	 
	 	 	 	 	 	 
	ARTICLE II

	 	          ELIGIBILITY AND PARTICIPATION
	 	 	4	 
	 
	 	 	 	 	 	 
	2.1	 	REQUIREMENTS 	 	 	4	 
	2.2	 	RE-EMPLOYMENT/BOARD MEMBERSHIP 	 	 	4	 
	2.3	 	CHANGE OF EMPLOYMENT CATEGORY 	 	 	4	 
	 
	 	 	 	 	 	 
	ARTICLE III

	 	           CONTRIBUTIONS AND CREDITS
	 	 	4	 
	 
	 	 	 	 	 	 
	3.1	 	EMPLOYER CONTRIBUTION CREDITS 	 	 	4	 
	3.2	 	PARTICIPANT COMPENSATION DEFERRALS	 	 	5	 
	 
	 	 	 	 	 	 
	ARTICLE IV

	 	          ALLOCATION OF FUNDS
	 	 	5	 
	 
	 	 	 	 	 	 
	4.1	 	ALLOCATION OF DEEMED EARNINGS OR LOSSES ON ACCOUNTS 	 	 	5	 
	4.2	 	ACCOUNTING FOR DISTRIBUTIONS 	 	 	6	 
	4.3	 	SEPARATE BOOKKEEPING ACCOUNTS 	 	 	6	 
	4.4	 	DEEMED INVESTMENT DIRECTIONS OF PARTICIPANTS 	 	 	6	 
	4.5	 	PAYMENT OF TAXES AND EXPENSES 	 	 	7	 
	 
	 	 	 	 	 	 
	ARTICLE V

	 	           ENTITLEMENT TO BENEFITS
	 	 	7	 
	 
	 	 	 	 	 	 
	5.1	 	FIXED PAYMENT DATES; TERMINATION OF EMPLOYMENT/BOARD MEMBERSHIP 	 	 	7	 

<
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	5.2	 	UNFORESEEABLE EMERGENCY DISTRIBUTIONS 	 	 	7	 
	5.3	 	RE-EMPLOYMENT/BOARD MEMBERSHIP OF RECIPIENT 	 	 	8	 
	5.4	 	VESTING 	 	 	8	 
	5.5	 	GRANDFATHERED SUB-ACCOUNTS 	 	 	8	 
	 
	 	 	 	 	 	 
	ARTICLE VI

	 	          DISTRIBUTION OF BENEFITS
	 	 	8	 
	 
	 	 	 	 	 	 
	6.1	 	AMOUNT 	 	 	8	 
	6.2	 	METHOD OF PAYMENT	 	 	8	 
	6.3	 	DEATH OR DISABILITY BENEFITS	 	 	9	 
	6.4	 	CHANGE IN CONTROL 	 	 	9	 
	6.5	 	GRANDFATHERED SUB-ACCOUNTS 	 	 	9	 
	 
	 	 	 	 	 	 
	ARTICLE VII

	 	           BENEFICIARY & PARTICIPANT DATA
	 	 	9	 
	 
	 	 	 	 	 	 
	7.1	 	DESIGNATION OF BENEFICIARIES 	 	 	9	 
	7.2	 	INFORMATION TO BE FURNISHED BY PARTICIPANTS AND BENEFICIARIES; INABILITY TO LOCATE 	 	 	10	 
	 	 	PARTICIPANTS OR BENEFICIARIES 	 	 	10	 
	 
	 	 	 	 	 	 
	ARTICLE VIII

	 	          ADMINISTRATION AND RECORDKEEPING
	 	 	10	 
	 
	 	 	 	 	 	 
	8.1	 	ADMINISTRATIVE AND RECORDKEEPING AUTHORITY 	 	 	10	 
	8.2	 	UNIFORMITY OF DISCRETIONARY ACTS 	 	 	10	 
	8.3	 	LITIGATION 	 	 	10	 
	8.4	 	CLAIMS PROCEDURE 	 	 	10	 
	 
	 	 	 	 	 	 
	ARTICLE IX

	 	          AMENDMENT
	 	 	12	 
	 
	 	 	 	 	 	 
	9.1	 	RIGHT TO AMEND 	 	 	12	 






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	 	 	 	 	Page
	9.2

	 	AMENDMENT TO ENSURE PROPER CHARACTERIZATION OF THE PLAN
	 	 	12	 
	9.3

	 	CHANGES IN LAW AFFECTING TAXABILITY
	 	 	12	 
	 
	 	 	 	 	 	 
	ARTICLE X

	 	           TERMINATION
	 	 	13	 
	 
	 	 	 	 	 	 
	10.1

	 	PLAN SPONSOR’S RIGHT TO TERMINATE PLAN
	 	 	13	 
	10.2

	 	SUCCESSOR TO PLAN SPONSOR
	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE XI

	 	           MISCELLANEOUS
	 	 	13	 
	 
	 	 	 	 	 	 
	11.1

	 	LIMITATIONS ON LIABILITY OF PLAN SPONSOR AND EMPLOYER
	 	 	13	 
	11.2

	 	CONSTRUCTION
	 	 	13	 
	11.3

	 	SPENDTHRIFT PROVISION
	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE XII

	 	           THE TRUST
	 	 	14	 
	 
	 	 	 	 	 	 
	12.1

	 	ESTABLISHMENT OF TRUST
	 	 	14	 









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INTERSTATE SUPPLEMENTAL

DEFERRED COMPENSATION PLAN




Amended and Restated

Effective as of January 1, 2005




RECITALS




     This amended and restated Plan, the Interstate Supplemental Deferred Compensation Plan (the
“Plan”) is adopted by Interstate Hotels & Resorts, Inc. (the “Plan Sponsor”) for certain of its
directors and certain management employees of Interstate Management Company, LLC (the “Employer”).
The Plan constitutes an amendment and restatement of the Interstate Hotels and Resorts, Inc.
Supplemental Deferred Compensation Plan. The Plan was amended and restated to comply with the
requirements of section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the
guidance promulgated thereunder.



     The purpose of the Plan is to offer participants deferred compensation benefits pursuant to
section 409A of the Code and to supplement such participants’ retirement benefits under the Plan
Sponsor’s tax-qualified retirement plan and other retirement programs. The Plan is intended to be
a “top-hat plan” (i.e., an unfunded deferred compensation plan maintained for a select group of
management or highly compensated employees) pursuant to sections 201(2), 301(a)(3) and 401(a)(1) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”).



     Accordingly, the Plan is amended and restated as follows.



ARTICLE I

DEFINITIONS




     The following terms, as used herein, unless a different meaning is implied by the context,
have the following meaning:



     1.1 ACCOUNT means the balance credited to a Participant’s Plan accounts, including
amounts credited under the Compensation Deferral Account and the Plan Sponsor Contribution Credit
Account. Said Account shall be determined as of the date of reference.



     1.2 BASE COMPENSATION means the total base cash compensation of the Participant
(including any contributions made on the behalf of the Participant to any qualified plan maintained
by the Plan Sponsor or to any cafeteria plan under Code section 125 maintained by the Plan Sponsor)
for the Plan Year of reference; provided, that, with respect to Participants working in the
Development Group who are eligible to receive commissions, Base Compensation includes commissions
paid during the Plan Year of reference.



     1.3 BASE COMPENSATION DEFERRALS is defined in Section 3.1.



     1.4 BENEFICIARY means any person or persons so designated in accordance with the
provisions of Article VII.



     1.5 BOARD means the Board of Directors of the Plan Sponsor.



     1.6 CHANGE IN CONTROL means a transaction or series of transactions occurring after
the Effective Date, in which (1) any individual, firm, corporation or other entity, or any group
(as defined in Section 13(d)(3) or the Securities Exchange Act of 1934 (the “Act”)), becomes,
directly or indirectly, the beneficial owner (as defined in the general rules and regulations of
the Securities and Exchange Commission with respect to Sections 13(d) and 13(g) of the Act) of more
than fifty percent (50%) of the then outstanding shares of the Plan Sponsor’s capital stock
entitled to vote generally in the election of directors of the Plan Sponsor; (2) the stockholders
of the Plan Sponsor approve a definitive agreement for (A) the merger or other business combination
of the Plan Sponsor with or into another corporation pursuant to which the stockholders of the Plan
Sponsor do not own, immediately after the transaction, more than fifty percent (50%) of the voting
power of the corporation that survives and is a publicly owned corporation and not a



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subsidiary of another corporation, or (B) the sale, exchange or other disposition of all or
substantially all of the assets of the Plan Sponsor; or (3) during any period of two (2) years or
less, individuals who at the beginning of such period constituted the Board cease for any reason to
constitute at least a majority thereof, unless the election, or the nomination for election by the
stockholders of the Plan Sponsor, of each new director was approved by a vote of at least
seventy-five percent (75%) of the directors then still in office who were directors at the
beginning of the period. Notwithstanding the foregoing, a Change in Control shall not be deemed to
have taken place if beneficial ownership is acquired by, or a tender exchange offer is commenced
by, the Plan Sponsor or any of its subsidiaries, any profit sharing, employee ownership or other
employee benefit plan of the Plan Sponsor or any subsidiary of any trustee of or fiduciary with
respect to any such plan when acting in such capacity, or any group comprised solely of such
entities.




     1.7 CHIEF EXECUTIVE OFFICER means the Chief Executive Officer of the Plan Sponsor.



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



     1.9 COMMITTEE means the Compensation Committee of the Board.



     1.10 COMPENSATION means the total current cash remuneration, including Base
Compensation, total cash Bonus Compensation, all cash awards or other compensation, director
retainers, and meeting fees of the Participant for the Plan Year of reference.



          For purposes of the preceding sentence and for all other purposes under the Plan, Bonus
Compensation is performance-based compensation that is: (1) established over a performance period
of at least 12 consecutive months and (2) based on organizational or individual performance
criteria that are established no later than 90 days after the performance period begins.




     1.11 COMPENSATION DEFERRAL ACCOUNT is defined in Section 3.2.



     1.12 COMPENSATION DEFERRALS is defined in Section 3.2.



     1.13 DESIGNATION DATE means the date or dates as of which a designation of deemed
investment directions by an individual pursuant to Section 4.4 shall become effective. The
Designation Dates in any Plan Year include January 1, April 1, July 1 and October 1.



     1.14 DEVELOPMENT GROUP means the group responsible for all of the Employer’s new
business. The Employer’s new business includes sourcing new management contracts, executing joint
venture partnerships and acquiring wholly owned assets for the Employer. The Development Group
also is responsible for any investment activities the Employer may undertake. The Development
Group actively participates in owner relations and the overall marketing of the Employer to
interested parties, which may include branded franchise companies, public and private investors,
lenders and consultants



     1.15 DISABILITY means the Participant has satisfied either of the following
definitions of disability: (1) unable to engage in gainful activity due to medical impairment for
12 months continuously or (2) medical impairment is expected to result in death or to last for not
less than 12 months and receiving income replacement benefits for not less than 3 months.



     1.16 EFFECTIVE DATE means the effective date of this amendment and restatement of the
Plan, which shall be January 1, 2005.



     1.17 ELIGIBLE INDIVIDUAL means, for any Plan Year (or applicable portion thereof), any
individual who is not employed by the Employer but is a member of the Board, any individual who is
employed by the Employer in the position of a Vice President or a more senior position, or any
individual employed by the Employer who is determined by the Employer to be a member of a select
group of management or highly compensated employees of the Employer (within the meaning of ERISA),
and who is designated by the Chief Executive Officer to be an Eligible Individual under the Plan,
and (1) whose benefits under the Qualified Plan are limited due to application of the



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compensation or nondiscrimination contribution limits of the Code, and/or (2) to whom the Plan
Sponsor desires to provide supplemental retirement benefits.




          By each December 1, the Plan Sponsor shall notify those individuals, if any, who will be
Eligible Individuals for the next Plan Year. If the Plan Sponsor determines that an individual
first becomes an Eligible Individual during a Plan Year, the Plan Sponsor shall notify such
individual of that determination and of the date during the Plan Year on which the individual shall
first become an Eligible Individual.



     1.18 EMPLOYER means Interstate Management Company, LLC and its successors and assigns
unless otherwise herein provided, or any other corporation or business organization which, with the
consent of the Plan Sponsor or its successors or assigns, assumes the Employer’s obligations
hereunder, or any other corporation or business organization which agrees, with the consent of the
Plan Sponsor to become a party to the Plan.



     1.19 EMPLOYER CONTRIBUTION CREDIT ACCOUNT is defined in Section 3.1.



     1.20 EMPLOYER CONTRIBUTION CREDITS is defined in Section 3.1.



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



     1.22 GRANDFATHERED SUB-ACCOUNT means that portion of an Account that was earned and
vested as of December 31, 2004, including any earnings or losses thereon.



     1.23 KEY EMPLOYEE means an individual within the meaning of Code Section
409A(a)(2)(B).



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



     1.25 PARTICIPANT ENROLLMENT AND ELECTION FORM means the form (or forms) on which a
Participant elects to defer Compensation hereunder, on which the Participant makes elections
concerning the time and manner of payment of amounts attributable to such election, and on which
the Participant makes certain other designations as required thereon.



     1.26 PLAN means this amended and restated Interstate Supplemental Deferred
Compensation Plan, an amendment and restatement of the Interstate Hotels & Resorts, Inc.
Supplemental Deferred Compensation Plan, as amended from time to time.



     1.27 PLAN SPONSOR means Interstate Hotels & Resorts, Inc. and its successors and
assigns.



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



     1.29 QUALIFIED PLAN means the Plan Sponsor’s tax-qualified 401(k) plan, as amended
from time to time.



     1.30 RETIREMENT means a Participant’s termination from the employ of the Plan Sponsor
upon or after attaining age sixty-five (65).



     1.31 TRUST means the trust fund, if any, established pursuant to the Plan.



     1.32 TRUSTEE means the trustee named in the agreement establishing the Trust and such
successor and/or additional trustees as may be named pursuant to the terms of the agreement
establishing the Trust.



     1.33 VALUATION DATE means each day of each Plan Year.



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ARTICLE II

ELIGIBILITY AND PARTICIPATION




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



          Participation in the Compensation Deferral Account portion of the Plan is voluntary. In order
to participate in the Compensation Deferral Account portion of the Plan, an otherwise Eligible
Individual must make written application in such manner as may be required by Section 3.2 and by
the Plan Sponsor and must agree to make Compensation Deferrals as provided in Article III.



          Participation in the Employer Contribution Credit Account portion of the Plan is automatic for
all eligible Participants.



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



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



ARTICLE III

CONTRIBUTIONS AND CREDITS




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



          Provided that a Participant remains in the employ of the Employer as an employee on the last
day of a Plan Year and that the Participant has elected to defer all or a portion of his or her
Base Compensation pursuant to Section 3.2 (referred to herein as “Base Compensation Deferrals”)
with respect to such Plan Year, Employer Contribution Credits shall be credited to the
Participant’s Employer Matching Contribution Sub-Account for such Plan Year in an amount equal to
the excess of (a) one hundred percent (100%) of the Participant’s Base Compensation Deferrals for
such Plan Year, but not to exceed such percentage of the Participant’s Base Compensation for such
Plan Year as shall be established in the sole discretion of the Chief Executive Officer (until
changed by the Chief Executive Officer, a four percent (4%) rate shall apply); over (b) the sum of
the matching contributions actually made by the Employer or Plan Sponsor to the Qualified Plan for
such Plan Year.



          Provided a Participant remains in the employ of the Employer as an employee on the last day of
a Plan Year, Employer Contribution Credits shall be credited to the Participant’s Employer Profit
Sharing Contribution Sub-Account for such Plan Year in an amount (if any) equal to a percentage of
the Participant’s combined Employer Matching Contribution Sub-Account credits and Qualified Plan
matching contributions for such Plan Year, which percentage shall be established in the sole
discretion of the Chief Executive Officer and may vary from Participant to Participant (but may in
no event exceed one hundred fifty percent (150%)).



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          A Participant shall become vested in amounts credited to his or her Employer Contribution
Credit Account as provided in Section 5.4.



     3.2 PARTICIPANT COMPENSATION DEFERRALS. In accordance with rules established by the
Plan Sponsor, a Participant may elect to defer Compensation which is due to be earned and which
would otherwise be paid to the Participant in any percentages designated by the Participant.
Amounts so deferred will be considered a Participant’s “Compensation Deferrals.” A Participant
shall make such Compensation Deferral elections with respect to a coming twelve (12) month Plan
Year during the period beginning on the December 1 and ending on the December 31 of the prior Plan
Year, or during such other period as is established by the Plan Sponsor so long as such Plan
Sponsor determined period ends on or prior to the December 31 of the prior Plan Year. The Plan
Sponsor shall have the discretion to permit special Compensation Deferral election periods for
deferral elections relating to Bonus Compensation; provided, however, that any such elections to
defer Bonus Compensation must be made at least 6 months prior to the end of the applicable
performance period and the applicable performance criteria must not be substantially certain to be
met at the time of such deferral.



          If the Plan Sponsor determines that an individual first becomes an Eligible Individual during
a Plan Year, such individual will have thirty (30) days from the date he or she becomes eligible to
participate in the Plan to make an initial election to apply to Compensation earned after he or she
makes such an election. Separate elections must be made for Base Compensation and Bonus
Compensation. The amount of Bonus Compensation applicable to the deferral election shall be the
Bonus Compensation earned during the Plan Year multiplied by the fraction derived by dividing (a)
the number of days remaining in the Plan Year after the date the individual becomes an Eligible
Individual by (b) the total number of days in the Plan Year.



          Compensation Deferrals shall be made through regular payroll deductions (including, if
applicable, deductions of regular cash retainer payments or payments of meeting fees to a
Participant who is a Board member) or through an election by the Participant to defer the payment
of a bonus not yet payable to him or her at the time of the election.



          There shall be established and maintained by the Plan Sponsor a separate Compensation Deferral
Account in the name of each Participant, to which shall be credited or debited, as applicable: (a)
amounts equal to the Participant’s Compensation Deferrals; (b) amounts equal to any deemed earnings
and losses (to the extent realized, based upon deemed fair market value of the Account’s deemed
assets as determined by the Plan Sponsor in its discretion) attributable or allocable thereto; and
(c) expenses and taxes charged to that Account.



          A Participant shall at all times be one hundred percent (100%) vested in amounts credited to
his or her Compensation Deferral Account, as provided in Section 5.4.



ARTICLE IV

ALLOCATION OF FUNDS




     4.1 ALLOCATION OF DEEMED EARNINGS OR LOSSES ON ACCOUNTS. Pursuant to Section 4.4,
each Participant shall have the right to direct the Plan Sponsor as to how amounts in his or her
Plan Account shall be deemed to be invested in the deemed investment options made available under
the Plan. Subject to such limitations as may from time to time be required by law, imposed by the
Plan Sponsor or the Trustee or contained elsewhere in the Plan, and subject to such operating rules
and procedures as may be imposed from time to time by the Plan Sponsor, prior to the date on which
a direction will become effective, the Participant shall have the right to direct the Plan Sponsor
as to how amounts in his or her Account shall be deemed to be invested.



          The value of the Participant’s Account shall be equal to the value of the account maintained
under the Trust on behalf of the Participant. As of each valuation date of the Trust, the
Participant’s Account will be credited or debited to reflect the Participant’s deemed investments
of the Trust. The Participant’s Plan Account will be credited or debited with the increase or
decrease in the realizable net asset value or credited interest, as applicable, of the designated
deemed investments, as follows. As of each Valuation Date, an amount equal to the net increase or
decrease in realizable net asset value or credited interest, as applicable (as determined by the
Trustee), of each deemed investment option within the Account since the preceding Valuation Date
shall be allocated among all Participants’ Accounts deemed to be



5









 




invested in that investment option in accordance with the ratio which the portion of the
Account of each Participant which is deemed to be invested within that investment option,
determined as provided herein, bears to the aggregate of all amounts deemed to be invested within
that investment option.




     4.2 ACCOUNTING FOR DISTRIBUTIONS. As of the date of any distribution hereunder, the
distribution made hereunder to a Participant or his or her Beneficiary or Beneficiaries shall be
charged to such Participant’s Account. Such amounts shall be charged on a pro rata basis against
the investment options in which the Participant’s Account is deemed to be invested; provided,
however, that such amounts shall be charged first against any money market, fixed income or similar
fund in which the Participant’s Account is deemed to be invested.



     4.3 SEPARATE BOOKKEEPING ACCOUNTS. A separate bookkeeping account under the Plan
shall be established and maintained by the Plan Sponsor to reflect the Account for each
Participant, with bookkeeping sub-accounts to show separately the Participant’s Compensation
Deferral Account, the Participant’s Employer Contribution Credit Account and the Participant’s
Grandfathered Sub-Account. Each sub-account will separately account for the credits and debits
described in Article III.



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



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



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



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



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



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



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



     4.5 PAYMENT OF TAXES AND EXPENSES. Expenses, including Trustee fees, associated with
the administration or operation of the Plan shall be paid by the Plan Sponsor, unless, in the
discretion of the Plan Sponsor, the Plan Sponsor elects to charge such expenses against the
appropriate Participant’s Account or Participants’ Accounts. Any taxes (or net operating loss
reductions) allocable to an Account (or portion thereof) maintained under the Plan which arise
prior to the complete distribution of the Account, shall be absorbed by the Plan Sponsor, unless,
in the discretion of the Plan Sponsor, the Plan Sponsor elects to charge such taxes against the
appropriate Participant’s Account or Participants’ Accounts.



ARTICLE V

ENTITLEMENT TO BENEFITS




     5.1 FIXED PAYMENT DATES; TERMINATION OF EMPLOYMENT/BOARD MEMBERSHIP. On his or her
Participant Enrollment and Election Form, a Participant may elect to receive some or all of each
year’s deferrals and related earnings on a specific date (the “In-Service Distribution Date”) prior
to his or her separation from service, as such term is defined under Code section 409A. Each
specific date is deemed an “In-Service Account,” and a maximum of three (3) In-Service Accounts may
be established and maintained by each Participant, which will be payable according to the
provisions of Article VI. Such payment dates may be extended to later dates so long as elections
to so extend the dates are made by the Participant at least twelve (12) months prior to the date on
which the distribution is to be made or commence; provided, however, that such payment dates may
not be accelerated and must commence no less than five (5) years after the original distribution
was to commence.



          Alternatively, on his or her Participant Enrollment and Election Form, a Participant may
select payment or commencement of payment of his or her vested Account (or a sub-account thereof)
to be made after his or her separation from service with the Employer or, with respect to any
non-employee Participant, upon his or her termination of Board membership. An election to have
payment commence after the Participant’s separation from service shall be deemed a “Termination
Account,” which will be payable according to the provisions of Article VI. Any Participant who is
employed as an employee of the Employer and who also is a director of the Board, and who ceases his
or her employment, but retains membership on the Board, shall not be deemed to have separated from
service hereunder.



     5.2 UNFORESEEABLE EMERGENCY DISTRIBUTIONS. In the event of an Unforeseeable Emergency
of the Participant, as hereinafter defined, the Participant may apply to the Plan Sponsor for the
distribution of all or any part of his or her vested Account. The Plan Sponsor shall consider the
circumstances of each such case, and the best interests of the Participant and his or her family,
and shall have the right, in its sole discretion, if applicable, to allow such distribution, or, if
applicable, to direct a distribution of part of the amount requested, or to refuse to allow any
distribution. Upon a finding of Unforeseeable Emergency, the Plan Sponsor shall make the
appropriate distribution to the Participant from the Participant’s vested Account. In no event
shall the aggregate amount of the distribution exceed either the full value of the Participant’s
vested Account or the amount necessary to meet the needs of the Participant’s Unforeseeable
Emergency (which Unforeseeable Emergency may be considered to include any taxes due because of the
distribution occurring because of this Section), and which is not reasonably available from other
resources of the Participant, including, but not limited to, reimbursement or compensation from
insurance or liquidation of assets if such liquidation itself would not result in severe financial
hardship. For purposes of this Section, the value of the Participant’s vested Account shall be
determined as of the date of the distribution.



          “Unforeseeable Emergency” means (a) a severe financial hardship to the Participant resulting
from a sudden and unexpected illness or accident of the Participant, of the Participant’s spouse or
of a dependent (as defined in Code section 152(a)) of the Participant, (b) loss of the
Participant’s property due to casualty, or (c) other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of the Participant, each as
determined to exist by the Plan Sponsor.



     5.3 RE-EMPLOYMENT/BOARD MEMBERSHIP OF RECIPIENT. If a Participant receiving
installment distributions pursuant to Section 6.2 is re-employed by the Employer (or again becomes
a Board member), the remaining distributions due to the Participant shall be suspended until such
time as the Participant (or his or her Beneficiary) once



7









 




again becomes eligible for benefits under Section 5.1 or 5.2, at which time such distribution
shall commence, subject to the limitations and conditions contained in this Plan.




     5.4 VESTING. A Participant shall at all times be one hundred percent (100%) vested in
amounts credited to his or her Compensation Deferral Account.



          With respect to amounts credited to a Participant’s Employer Contribution Credit Account, such
amounts shall vest according to the following schedule:



	 	 	 	 	 
	Years of Service	 	Vested Percentage
	Less than 1
	 	 	0	%
	1 but less than 2
	 	 	20	%
	2 but less than 3
	 	 	40	%
	3 but less than 4
	 	 	60	%
	4 but less than 5
	 	 	80	%
	5 or more
	 	 	100	%






          For purposes of this Section 5.4, a “year of service” shall mean (i) any Plan Year during
which a Participant is employed by the Employer (i.e., the Participant is on the Employer’s
payroll) on a full-time basis for any full six (6) months and remains employed by the Employer as
of the last day of that Plan Year; and (ii) any calendar year before the Effective Date during
which a Participant was employed by the Employer, Interstate Hotels Corporation, Continental Design
& Supplies Company, LLC, Crossroads Hospitality Company, LLC, Colony Hotels and Resorts Company or
Interstate Hotels Company on a full-time basis for any full six (6) months and remained employed by
that employer as of the last day of that calendar year. Notwithstanding anything above that may
suggest otherwise, in no event shall more than one (1) year of service be credited to a Participant
with respect to the 2002 calendar year during which the Plan was established.



          Notwithstanding the foregoing, if a Participant separates from service because of death,
Disability or Retirement, or if there occurs a Change in Control, the Participant shall become one
hundred percent (100%) vested in his or her Employer Contribution Credit Account. If a Participant
separates from service for any other reason, he or she shall remain vested in his or her Employer
Contribution Credit Account, if at all, under the vesting schedule set forth above.



     5.5 GRANDFATHERED SUB-ACCOUNTS. Notwithstanding anything to the contrary in the Plan,
solely with respect to Grandfathered Sub-Accounts, the rules relating to a Participant’s or
Beneficiary’s entitlement to benefits shall continue as they were in effect immediately prior to
January 1, 2005.



ARTICLE VI

DISTRIBUTION OF BENEFITS




     6.1 AMOUNT. A Participant (or his or her Beneficiary) shall become entitled to
receive, on or about the date or dates selected by the Participant on his or her Participant
Enrollment and Election Form or, if none, on or about the date of the Participant’s termination of
employment (or Board membership, as applicable) (or earlier as provided in Article V or in Section
6.4), a distribution in an aggregate amount equal to the Participant’s vested Account. Any payment
due hereunder will be paid by the Plan Sponsor from its general assets or from the Trust, if any.



     6.2 METHOD OF PAYMENT.



          (a) Medium of Payment. Payments under the Plan shall be made in cash.



          (b) Timing and Manner of Payment. In the case of a Participant’s In-Service Account,
payment of the vested portion of such Account shall be made in a lump sum in cash as soon as is
administratively feasible following the payment fixed date selected for the In-Service Account.
Notwithstanding the preceding, a Participant who selects payment under an In-Service Account shall
receive payment of the vested portion of the In-Service Account at the



8









 




earlier of such fixed payment date (as extended, if applicable) or his or her separation from
service with the Employer or, with respect to non-employee Participants, upon his or her
termination of Board membership.




               In the case of a Participant’s Termination Account, payment of the vested portion of such
Account shall be made in a lump sum or in five (5) substantially equal annual installments
(adjusted for gains, losses and expenses), as selected by the Participant on his or her applicable
Participant Enrollment and Election Form.



               If a Participant fails to designate properly the manner of payment of the Participant’s
benefit under the Plan, such payment will be in a lump sum as a Termination Account.



               An In-Service Account payable in connection with a participant’s separation from service and
any Participant’s Termination Account shall be paid (or, in the case of a Termination Account, paid
or commenced) as soon as is administratively feasible following the Participant’s separation from
service; provided, however, that in the case of a Key Employee payment shall be made or commenced
under the applicable form as soon as is administratively feasible following the six month
anniversary of the Participant’s separation from service, unless payment is being made on account
of death.



               If the whole or any part of a payment hereunder by the Plan Sponsor is to be in installments,
the total to be so paid shall continue to be deemed to be invested pursuant to Sections 4.1 and 4.4
under such procedures as the Plan Sponsor may establish, in which case any deemed income, gain,
loss or expense attributable thereto (as determined by the Plan Sponsor, in its discretion) shall
be reflected in the installment payments, in such equitable manner as the Plan Sponsor shall
determine.



               In all events, to the extent required under Code Section 409A(a)(2)(B)(i), the payment to a
Key Employee shall not be distributed earlier than 6 months after the date of the Key Employee’s
separation from service.



     6.3 DEATH OR DISABILITY BENEFITS. If a Participant dies or experiences a Disability
before separating from service (or Board membership, as applicable) with the Employer, the entire
value of the Participant’s Account shall become fully vested and shall be paid, as provided in
Section 6.2, to the Participant, or, in the case of the death, to the person or persons designated
in accordance with Section 7.1.



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



     6.4 CHANGE IN CONTROL. Notwithstanding anything herein to the contrary, upon a Change
in Control, each Participant shall become entitled to receive the entire balance of his or her
Account in a single lump sum payment on the thirtieth (30th) day following the Change in
Control (or as soon thereafter as is administratively feasible).



     6.5 GRANDFATHERED SUB-ACCOUNTS. Notwithstanding anything to the contrary in the Plan,
solely with respect to Grandfathered Sub-Accounts, the rules relating to a Participant’s or
Beneficiary’s distribution of benefits shall continue as they were in effect immediately prior to
January 1, 2005.



ARTICLE VII

BENEFICIARY & PARTICIPANT DATA




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



9









 





          In the absence of a valid Beneficiary designation, or if, at the time any benefit payment is
due to a Beneficiary, there is no living Beneficiary validly named by the Participant, the Plan
Sponsor shall pay any such benefit payment to the Participant’s spouse, if then living, but
otherwise to the Participant’s estate.



     7.2 INFORMATION TO BE FURNISHED BY PARTICIPANTS AND BENEFICIARIES; INABILITY TO LOCATE
PARTICIPANTS OR BENEFICIARIES. Any communication, statement or notice addressed to a
Participant or to a Beneficiary at his or her last post office address as shown on the Plan
Sponsor’s records, shall be binding on the Participant or Beneficiary for all purposes of the Plan.
Neither the Trustee nor the Plan Sponsor shall be obliged to search for any Participant or
Beneficiary beyond the sending of a registered letter to such last known address. If the Plan
Sponsor notifies any Participant or Beneficiary that he or she is entitled to an amount under the
Plan and the Participant or Beneficiary fails to claim such amount or make his or her location
known to the Plan Sponsor within three (3) years thereafter, then, except as otherwise required by
law, if the location of one or more of the next of kin of the Participant is known to the Plan
Sponsor, the Plan Sponsor may direct distribution of such amount to any one or more or all of such
next of kin, and in such proportions as the Plan Sponsor determines. If the location of none of
the foregoing persons can be determined, the Plan Sponsor shall have the right to direct that the
amount payable shall be deemed to be a forfeiture and paid to the Plan Sponsor, except that the
dollar amount of the forfeiture, unadjusted for deemed gains or losses in the interim, shall be
paid by the Plan Sponsor if a claim for the benefit subsequently is made by the Participant or the
Beneficiary to whom it was payable. If a benefit payable to an unlocated Participant or
Beneficiary is subject to escheat pursuant to applicable state law, neither the Trustee nor the
Plan Sponsor shall be liable to any person for any payment made in accordance with such law.



ARTICLE VIII

ADMINISTRATION AND RECORDKEEPING




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



          (a) Resolve and determine all disputes or questions arising under the Plan, including the
power to determine the rights of Participants and Beneficiaries, and their respective benefits, and
to remedy any ambiguities, inconsistencies or omissions, in the Plan.



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



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



          (d) Subject to Section 9.1, make determinations concerning the crediting and distribution of
Participants’ benefits.



     8.2 UNIFORMITY OF DISCRETIONARY ACTS. Whenever in the administration or operation of
the Plan discretionary actions by the Employer or the Plan Sponsor are required or permitted, such
action shall be consistently and uniformly applied to all persons similarly situated, and no such
action shall be taken which shall discriminate in favor of any particular person or group of
persons.



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



     8.4 CLAIMS PROCEDURE. This Section 8.4 is based on final regulations issued by the
Department of Labor and published in the Federal Register on November 21, 2000 and codified at
section 2560.503-1 of the Department



10









 




of Labor Regulations. If any provision of this Section 8.4 conflicts with the requirements of
those regulations, the requirements of those regulations will prevail.




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



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



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



               (i) The specific reasons for the denial;



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



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



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



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



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



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



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



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



               (i) its decision;



               (ii) the specific reasons for the decision;



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



11









 





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



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



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



          (d) Failure of Plan to Follow Procedures. If the Plan fails to follow the claims
procedures required by this Section, a Claimant shall be deemed to have exhausted the
administrative remedies available under the Plan and shall be entitled to pursue any available
remedy under ERISA section 502(a) on the basis that the Plan has failed to provide a reasonable
claims procedure that would yield a decision on the merits of the claim.



ARTICLE IX

AMENDMENT




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



     9.2 AMENDMENT TO ENSURE PROPER CHARACTERIZATION OF THE PLAN. Notwithstanding the
provisions of Section 9.1, the Plan may be amended at any time, retroactively if required, if found
necessary, in the opinion of the Plan Sponsor, in order to ensure that the Plan is characterized as
a non-tax-qualified “top hat” plan of deferred compensation maintained for a select group of
management or highly compensated employees, as described under ERISA sections 201(2), 301(a)(3) and
401(a)(1) and to conform the Plan and the Trust to the provisions and requirements of any
applicable law (including ERISA and the Code).



     9.3 CHANGES IN LAW AFFECTING TAXABILITY. This Section shall become operative upon the
enactment of any change in applicable statutory law or the promulgation by the Internal Revenue
Service of a final regulation or other pronouncement having the force of law, which statutory law,
as changed, or final regulation or pronouncement, as promulgated, would cause any Participant to
include in his or her federal gross income amounts accrued by the Participant under the Plan on a
date (an “Early Taxation Event”) prior to the date on which such amounts are made available to him
or her hereunder.



          (a) Affected Right or Feature Nullified. Notwithstanding any other Section
of this Plan to the contrary (but subject to subsection (b), below), as of an Early Taxation Event,
the feature or features of this Plan that would cause the Early Taxation Event shall be null and
void, to the extent, and only to the extent, required to prevent the Participant from being
required to include in his or her federal gross income amounts accrued by the Participant under the
Plan prior to the date on which such amounts are made available to him or her hereunder. If only a
portion of a Participant’s Account is impacted by the change in the law, then only such portion
shall be subject to this Section, with the remainder of the Account not so affected being subject
to such rights and features as if the law were not changed. If the law only impacts Participants
who have a certain status with respect to the Employer, then only such Participants shall be
subject to this Section.



12









 





ARTICLE X

TERMINATION




     10.1 PLAN SPONSOR’S RIGHT TO TERMINATE PLAN. The Plan Sponsor reserves the right, at
any time, to terminate the Plan and/or its obligation to make further credits to Plan Accounts by
unanimous action of the Committee or other designee of the Board; provided, however, that no such
termination shall deprive any Participant or Beneficiary of a right accrued hereunder prior to the
date of termination and provided that, upon termination, the full amount of each Participant’s Plan
account(s) shall become immediately distributable to him or her.



     10.2 SUCCESSOR TO PLAN SPONSOR. Any corporation or other business organization which
is a successor to the Plan Sponsor by reason of a consolidation, merger or purchase of
substantially all of the assets of the Plan Sponsor shall have the right to become a party to the
Plan by adopting the same by resolution of the entity’s board of directors or other appropriate
governing body. If, within thirty (30) days from the effective date of such consolidation, merger
or sale of assets, such new entity does not become a party hereto, as above provided, the Plan
shall be terminated automatically, and the provisions of the foregoing Sections shall become
operative.



ARTICLE XI

MISCELLANEOUS




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



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



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



     11.3 SPENDTHRIFT PROVISION. No amount payable to a Participant or any Beneficiary
under the Plan will, except as otherwise specifically provided by law, be subject in any manner to
anticipation, alienation, attachment, garnishment, sale, transfer, assignment (either at law or in
equity), levy, execution, pledge, encumbrance, charge or any other legal or equitable process, and
any attempt to do so will be void; nor will any benefit hereunder be in any manner liable for or
subject to the debts, contracts, liabilities, engagements or torts of the person entitled thereto.
Further, (a) the withholding of taxes from Plan benefit payments, (b) the recovery under the Plan
of overpayments of benefits previously made to a Participant or any Beneficiary, (c) if applicable,
the transfer of benefit rights from the Plan to another plan, or



13









 





     (d) the direct deposit of Plan benefit payments to an account in a banking institution (if not
actually part of an arrangement constituting an assignment or alienation) shall not be construed as
an assignment or alienation.



          In the event that a Participant’s or any Beneficiary’s benefits hereunder are garnished or
attached by order of any court, the Plan Sponsor may bring an action for a declaratory judgment in
a court of competent jurisdiction to determine the proper recipient of the benefits to be paid
under the Plan. During the pendency of said action, any benefits that become payable shall be held
as credits to a Participant’s or Beneficiary’s Account or, if the Plan Sponsor prefers, paid into
the court as they become payable, to be distributed by the court to the recipient as it deems
proper at the close of said action.



ARTICLE XII

THE TRUST




     12.1 ESTABLISHMENT OF TRUST. The Plan Sponsor may, but need not, establish the Trust
with the Trustee pursuant to such terms and conditions as are set forth in the Trust agreement to
be entered into between the Plan Sponsor and the Trustee. The Trust is intended to be treated as a
“grantor” trust under the Code and the establishment of the Trust is not intended to cause the
Participant to realize current income on amounts contributed thereto nor to cause the Plan to be
“funded” within the meaning of ERISA, and the Trust shall be so interpreted.



     IN WITNESS WHEREOF, the Plan Sponsor has caused this amended and restated Plan to be executed
and its seal to be affixed hereto, effective as of the 1st day of January, 2005.



	 	 	 	 	 	 	 	 	 	 	 
	ATTEST/WITNESS:	 	INTERSTATE HOTELS & RESORTS, INC.  
	 
	 	 	 	 	 	 	 	 	 	 
	     /s/ Dan O’Neil	 	By:	 	     /s/
Christopher L. Bennett	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Print Name:

	 	Dan O’Neil
	 	Print Name:
	 	Christopher L. Bennett	 	 	 	 
	 

	 	Benefits Manager
	 	 	 	Executive Vice President &	 	 	 	 
	 

	 	 	 	 	 	General Counsel	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Date:
	 	December 21, 2006	 	 	 	 







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