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HOST HOTELS RESORTS, L.P. Executive Deferred Compensation Plan

Executive Compensation Plan Agreement

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Title: HOST HOTELS RESORTS, L.P. Executive Deferred Compensation Plan
Date: 3/2/2009

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Exhibit 10.25

HOST HOTELS & RESORTS, L.P.

Executive Deferred Compensation Plan

As Amended and Restated, Effective as of January 1, 2008


TABLE OF CONTENTS

 

 

  

Page

ARTICLE I—INTRODUCTION

  

2

            1.1

  

Name

  

2

            1.2

  

Purpose

  

2

            1.3

  

Interpretation

  

2

ARTICLE II—DEFINITIONS

  

2

            2.1

  

Generally

  

2

            2.2

  

Account

  

2

            2.3

  

Agreement

  

3

            2.4

  

Balance

  

3

            2.5

  

Board Committee

  

3

            2.6

  

Board of Directors

  

3

            2.7

  

Change of Control

  

3

            2.8

  

Code

  

5

            2.9

  

Committee

  

5

            2.10

  

Compensation

  

5

            2.11

  

Contributions

  

5

            2.12

  

Deemed Earnings

  

5

            2.13

  

Deemed Crediting Options

  

5

            2.14

  

Deferral Election Form

  

5

            2.15

  

Designated Beneficiary

  

6

            2.16

  

Disability or Disabled

  

6

            2.17

  

Distribution Election Form

  

6

            2.18

  

Effective Date

  

6

            2.19

  

Eligible Employee

  

6

            2.20

  

Employee

  

7

            2.21

  

Employer

  

7

            2.22

  

ERISA

  

7

            2.23

  

In-Service Distribution

  

7

            2.24

  

Matching Contribution

  

7

            2.25

  

Matching Contribution Account

  

7

            2.26

  

Participant

  

7

            2.27

  

Participant Deferral

  

7

            2.28

  

Participant Deferral Account

  

7

            2.29

  

Plan Year

  

8

            2.30

  

Qualified Retirement Plan

  

8

            2.31

  

Separation from Service

  

8

            2.32

  

Specified Employee

  

8

            2.33

  

Unforeseeable Emergency

  

8

            2.34

  

Valuation Date

  

9

 

i


ARTICLE III—ELIGIBILITY AND PARTICIPATION

  

9

            3.1

  

Eligibility Requirements

  

9

            3.2

  

Participation

  

9

ARTICLE IV—ELECTIONS, DEFERRALS & MATCHING CONTRIBUTIONS

  

9

            4.1

  

Participant Election to Defer Compensation

  

9

            4.2

  

Distribution Elections

  

10

            4.3

  

New Participants and Partial Years

  

10

            4.4

  

Irrevocable Elections

  

10

            4.5

  

Unclear Elections

  

11

            4.6

  

Matching Contributions

  

11

ARTICLE V—ACCOUNTS AND ACCOUNT CREDITING

  

11

            5.1

  

Establishment of a Participant’s Account

  

11

            5.2

  

Deemed Crediting Options

  

11

            5.3

  

Allocation Of Account Among Deemed Crediting Options

  

12

            5.4

  

Valuation and Risk of Decrease in Value

  

12

            5.5

  

Limited Function of Committee

  

12

ARTICLE VI—VESTING

  

12

            6.1

  

Vesting of Participant Deferrals

  

12

            6.2

  

Vesting of Matching Contributions

  

13

ARTICLE VII—DISTRIBUTIONS

  

13

            7.1

  

Distributions Generally

  

13

            7.2

  

Automatic Distributions

  

13

            7.3

  

In-Service Distributions

  

14

            7.4

  

Distributions Resulting from Unforeseeable Emergency

  

14

            7.5

  

Distributions of Small Accounts

  

14

ARTICLE VIII—ADMINISTRATION AND CLAIMS PROCEDURE

  

15

            8.1

  

Duties of the Employer

  

15

            8.2

  

The Committee

  

15

            8.3

  

Committee’s Powers and Duties to Enforce Plan

  

15

            8.4

  

Organization of the Committee

  

15

            8.5

  

Limitation of Liability

  

16

            8.6

  

Committee Reliance on Records and Reports

  

16

            8.7

  

Costs of the Plan

  

17

            8.8

  

Claims Procedure

  

17

            8.9

  

Litigation

  

18

ARTICLE IX—AMENDMENT, TERMINATION & REORGANIZATION

  

18

 

ii


            9.1

  

Amendment

  

18

            9.2

  

Amendment Required By Law

  

19

            9.3

  

Termination

  

19

            9.4

  

Consolidation/Merger

  

19

ARTICLE X—GENERAL PROVISIONS

  

20

            10.1

  

Applicable Law

  

20

            10.2

  

Benefits Not Transferable or Assignable

  

20

            10.3

  

Not an Employment Contract

  

21

            10.4

  

Notices

  

21

            10.5

  

Severability

  

21

            10.6

  

Participant is General Creditor with No Rights to Assets

  

21

            10.7

  

No Trust Relationship Created

  

22

            10.8

  

Limitations on Liability of the Employer

  

22

            10.9

  

Agreement Between Employer and Participant Only

  

23

            10.10

  

Independence of Benefits

  

23

            10.11

  

Unclaimed Property

  

23

            10.12

  

Required Tax Withholding and Reporting

  

23

            10.13

  

Section 409A Compliance

  

23

 

iii


HOST HOTELS & RESORTS, L.P.

Executive Deferred Compensation Plan

(As Amended and Restated Effective January 1, 2008)

PREAMBLE

WHEREAS, Host Marriott, L.P. sponsored the Host Marriott, L.P. Executive Deferred Compensation Plan, as amended and restated January 31, 2002, and further amended and restated effective January 1, 2005 and January 1, 2008 (the “Plan”); and

WHEREAS, Host Marriott, L.P. changed its name to Host Hotels & Resorts, L.P.; and

WHEREAS, pursuant to Section 9.1 of the Plan, the Board of Directors (as defined in Section 2.6) reserves the right to amend the Plan at any time; and

WHEREAS, the Board of Directors has determined to amend the Plan to reflect the final regulations issued under Section 409A of the Internal Revenue Code (as part of the American Jobs Creation Act of 2004); and

WHEREAS, Host Hotels & Resorts, L.P. intends to comply fully with the requirements of Section 409A of the Code, and Treasury regulations to be issued from time to time interpreting the statute; and

NOW, THEREFORE, set forth herein are the terms of the Plan, as amended and restated effective January 1, 2008, for the benefit of certain key executives.


ARTICLE I—INTRODUCTION

1.1 Name.

The name of this Plan is the Host Hotels & Resorts, L.P. Executive Deferred Compensation Plan (the “Plan”).

1.2 Purpose.

The purpose of the Plan is to offer Participants the opportunity to defer voluntarily current Compensation for retirement income and other significant future financial needs for themselves, their families and other dependents, and to provide the Employer, if appropriate, a vehicle to address limitations on its contributions under any tax-qualified defined contribution plan. This Plan is intended to be a nonqualified “top-hat” plan; that is, an unfunded plan of deferred compensation maintained for a select group of management or highly compensated employees pursuant to Sections 201(2), 301(a)(3), and 401(a)(1) of ERISA, and an unfunded plan of deferred compensation under the Code.

1.3 Interpretation.

Throughout the Plan, certain words and phrases have meanings, which are specifically defined for purposes of the Plan. These words and phrases can be identified in that the first letter of the word or words in the phrase is capitalized. The definitions of these words and phrases are set forth in Article II and elsewhere in the Plan document. Wherever appropriate, pronouns of any gender shall be deemed synonymous, as shall singular and plural pronouns. Headings of Articles and Sections are for convenience or reference only, and are not to be considered in the construction or interpretation of the Plan. The Plan shall be interpreted and administered to give effect to its purpose in Section 1.2 and to qualify as a nonqualified, unfunded plan of deferred compensation. In addition, the Plan is designed to provide a benefit that is not “contingent”, as such term is defined and applied in Treasury Regulation Section 401(k)-1(e)(6), upon a Participant’s making elective contributions to the Qualified Retirement Plan. Both the form and the operation of the Plan shall be interpreted to assure compliance with such Regulation, or its successor, as amended from time to time.

ARTICLE II—DEFINITIONS

2.1 Generally.

Certain words and phrases are defined when first used in later paragraphs of this Agreement. Unless the context clearly indicates otherwise, the following words and phrases when used in this Agreement shall have the following respective meanings:

2.2 Account.

“Account” shall mean the interest of a Participant in the Plan as represented by the hypothetical bookkeeping entries kept by the Employer for each Participant. Each Participant’s

 

2


interest may be divided into one or more separate accounts or sub-accounts, including the Participant Deferral Account and the Matching Contribution Account, which reflect not only the Contributions into the Plan, but also gains and losses, and income and expenses allocated thereto, as well as distributions or any other withdrawals. The value of these accounts or sub-accounts shall be determined as of the Valuation Date. The existence of an account or bookkeeping entries for a Participant (or his Designated Beneficiary) does not create, suggest or imply that a Participant, Designated Beneficiary, or other person claiming through them under this Plan, has a beneficial interest in any asset of the Employer.

2.3 Agreement.

“Agreement” shall mean this agreement, together with any and all amendments or restatements thereto.

2.4 Balance.

“Balance” shall mean the total of Contributions and Deemed Earnings credited to a Participant’s Account under Article V, as adjusted for distributions or other withdrawals in accordance with the terms of this Plan and the standard bookkeeping rules established by the Employer.

2.5 Board Committee.

“Board Committee” shall mean the Compensation Committee of the Employer’s Board of Directors, or such other Committee of the Board as may be delegated with the duty of determining Participant eligibility under the Plan.

2.6 Board of Directors.

“Board of Directors” or “Board” shall mean the Board of Directors of Host Hotels & Resorts, Inc., a Delaware corporation and the General Partner of Host Hotels & Resorts, L.P.

2.7 Change of Control.

“Change of Control” shall mean the occurrence of a “change in the ownership,” a “change in the effective control” or a “change in the ownership of a substantial portion of the assets” of the Employer, as determined in accordance with this Section. In determining whether an event shall be considered a “change in the ownership,” a “change in the effective control” or a “change in the ownership of a substantial portion of the assets” of the Employer, the following provisions shall apply:

(a) A “change in the ownership” of the Employer shall occur on the date on which any one person, or more than one person acting as a group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (a “Person”)), acquires ownership of the equity securities of the Employer that, together with the equity securities held by such Person, constitutes more than 50% of the total fair market value or total voting power of the Employer, as determined in accordance with Treas. Reg. §1.409A-3(i)(5)(v). If a Person is considered either to own more than 50% of the total fair market value or total voting power of the equity securities of the Employer, or to have effective control of the Employer within the meaning of Section 2.7(b), and such Person acquires additional equity securities of the Employer, the acquisition of additional equity securities by such Person shall not be considered to cause a “change in the ownership” of the Employer.

 

3


(b) A “change in effective control” of the Employer shall occur on either of the following dates:

 

 

(i)

The date on which any Person, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such Person) ownership of equity securities of the Employer possessing 30% or more of the total voting power of the Employer’s equity securities, as determined in accordance with Treas. Reg. §1.409A-3(i)(5)(vi). If a Person is considered to possess 30% or more of the total voting power of the Employer’s equity securities, and such Person acquires additional equity securities of the Employer, the acquisition of additional equity securities by such Person shall not be considered to cause a “change in the effective control” of the Employer; or

 

 

(ii)

The date on which a majority of the members of the Board of Directors is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board of Directors before the date of the appointment or election, as determined in accordance with Treas. Reg. §1.409A-3(i)(5)(vi).

(c) A “change in the ownership of a substantial portion of the assets” of the Employer shall occur on the date on which any one Person acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such Person) assets from the Employer that have a total gross fair market value equal to or more than 40% of the total gross fair market value of all of the assets of the Employer immediately before such acquisition or acquisitions, as determined in accordance with Treas. Reg. §1.409A-3(i)(5)(vii). A transfer of assets shall not be treated as a “change in the ownership of a substantial portion of the assets” when such transfer is made to an entity that is controlled by the holders of the Employer’s equity securities, as determined in accordance with Treas. Reg. §1.409A-3(i)(5)(vii)(B).

(d) Notwithstanding the foregoing, the following acquisitions shall not constitute a Change in Control: (i) an acquisition by the Employer or entity controlled by the Employer, or (ii) an acquisition by an employee benefit plan (or related trust) sponsored or maintained by the Employer or any entity controlled by the Employer.

 

4


2.8 Code.

“Code” shall mean the Internal Revenue Code of 1986 and the regulations issued thereunder, as amended from time to time.

2.9 Committee.

“Committee” shall mean the person or persons described in Article VIII who are charged with the day-to-day administration and operation of the Plan.

2.10 Compensation.

“Compensation” shall mean the base or regular cash salary payable to an Employee by the Employer, as well as cash incentives or cash bonuses payable to an Employee by the Employer, and cash commissions payable to an Employee by the Employer, including any such amounts which are not includible in the Participant’s gross income under Sections 125, 401(k), 402(h) or 403(b) of the Internal Revenue Code of 1986, as amended.

2.11 Contributions.

“Contributions” shall mean the total of Participant Deferrals and Matching Contributions pursuant to Article IV, which represent each Participant’s credits to his Account.

2.12 Deemed Earnings.

“Deemed Earnings” shall mean the gains and losses (realized and unrealized), and income and expenses credited or debited to Contributions based upon the Deemed Crediting Options in a Participant’s Account as of any Valuation Date.

2.13 Deemed Crediting Options.

“Deemed Crediting Options” shall mean the hypothetical options made available to Plan Participants by the Employer for the purposes of determining the proper crediting of gains and losses, and income and expenses to each Participant’s Account, subject to procedures and requirements established by the Committee. A Participant may reallocate his Account among such Deemed Crediting Options periodically at such frequency and upon such terms as the Committee may determine from time to time.

2.14 Deferral Election Form.

“Deferral Election Form” or “Annual Deferral Election Form” shall mean that written agreement of a Participant, which among other information the Committee may require of the Participant for proper administration of the Plan, shall establish the Participant’s election to defer Compensation for a Plan Year under the Plan, the amount of the deferral into the Plan for the Plan Year, the Participant’s election as to the distribution of his Account as an In-Service Distribution, and the allocation of his Accounts among the Deemed Crediting Options provided under the Plan. The Deferral Election Form shall be in such form or forms as may be prescribed by the Committee, and filed annually with the Employer according to procedures and at such times as set forth in this Plan and as established by the Committee.

 

5


2.15 Designated Beneficiary.

“Designated Beneficiary” or “Beneficiary” shall mean the person, persons or trust specifically named to be a direct or contingent recipient of all or a portion of a Participant’s benefits under the Plan in the event of the Participant’s death prior to the distribution of his full Account Balance. Such designation of a recipient or recipients may be made and amended, at the Participant’s discretion, on the Distribution Election Form and according to procedures established by the Committee. No beneficiary designation or change of Beneficiary shall become effective until received and acknowledged by the Employer. In the event a Participant does not have a beneficiary properly designated, the beneficiary under this Plan shall be the Participant’s estate.

2.16 Disability or Disabled.

“Disability” or “Disabled” shall mean that the Participant either: (a) has been determined to be entitled to benefits under a disability insurance program that complies with the requirements of Treas. Reg. §1.409A-3(i)(4), or (b) if he is not a participant in such long-term disability insurance program, has been determined to be totally disabled by the Social Security Administration.

2.17 Distribution Election Form.

“Distribution Election Form” shall mean that written agreement of a Participant, which among other information the Committee may require of the Participant for proper administration of the Plan, shall establish the Participant’s elections as to the form of distribution of his Account upon a Separation from Service and timing of distribution upon death or Disability, and the name of the Designated Beneficiary. The Distribution Election Form shall be in such form or forms as may be prescribed by the Committee and filed with the Employer in accordance with Section 4.2, according to procedures and at such times as set forth in this Plan and as established by the Committee.

2.18 Effective Date.

“Effective Date” of the Plan, as amended and restated, shall mean January 1, 2008.

2.19 Eligible Employee.

“Eligible Employee” shall mean a person who (for any Plan Year or portion thereof) is: (1) an Employee of the Employer; (2) subject to US income tax laws; (3) a member of a select group of management or a highly compensated employee of the Employer; and (4) an executive having a title of Executive or Senior Vice President or higher with Compensation in excess of $210,000 annually, which such amount may be adjusted from time to time by the Committee to reflect cost of living increases.

 

6


2.20 Employee.

“Employee” shall mean a full time common law employee of the Employer.

2.21 Employer.

“Employer” shall mean Host Hotels & Resorts, L.P. and Host Hotels & Resorts, Inc., and any corporate successors and assigns, unless otherwise provided herein.

2.22 ERISA.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time.

2.23 In-Service Distribution.

“In-Service Distribution” shall mean a distribution of a portion of a Participant’s Account in accordance with Section 7.3.

2.24 Matching Contribution.

“Matching Contribution” shall mean an amount credited to a Participant’s Account in accordance with Section 4.6.

2.25 Matching Contribution Account.

“Matching Contribution Account” shall mean that portion of a Participant’s Account established to record Matching Contributions on behalf of a Participant.

2.26 Participant.

“Participant” shall mean an Eligible Employee who participates in the Plan under Article III; a former Eligible Employee who has participated in the Plan and continues to be entitled to a benefit (in the form of an undistributed Account Balance) under the Plan, and any Eligible Employee who has participated in the Plan under Article III and is out on a leave of absence and has not yet had a Separation from Service.

2.27 Participant Deferral.

“Participant Deferral” shall mean voluntary Participant deferral amounts, which could have been received currently but for the election to defer and are credited to his Account for later distribution, subject to the terms of the Plan.

2.28 Participant Deferral Account.

“Participant Deferral Account” shall mean that portion of a Participant’s Account established to record Participant Deferrals on behalf of a Participant.

 

7


2.29 Plan Year.

“Plan Year” shall mean the twelve (12) consecutive month period constituting a calendar year, beginning on January 1 and ending on December 31.

2.30 Qualified Retirement Plan.

“Qualified Retirement Plan” shall mean the Retirement and Savings Plan sponsored by the Employer.

2.31 Separation from Service.

“Separation from Service” shall mean the termination of Participant’s services to the Employer, other than due to death or Disability, in accordance with Treas. Reg. §1.409A-1(h). A transfer of employment within and among the Employer and any member of a controlled group, as provided in Code Section 409A(d)(6), shall not be deemed a Separation from Service.

2.32 Specified Employee.

“Specified Employee” shall have the meaning set forth in Code Section 409A(a)(2)(B)(i) and the regulations issued thereunder.

2.33 Unforeseeable Emergency.

“Unforeseeable Emergency” shall mean a severe financial hardship of the Participant resulting from:

(a) an illness or accident of the Participant, the Participant’s spouse, the Participant’s beneficiary or the Participant’s dependent (as defined in Code Section 152 without regard to paragraphs (b)(1), (b)(2) and (d)(1)(B) thereof),

(b) a loss of the Participant’s property due to casualty,

(c) imminent foreclosure on or eviction from the Participant’s primary residence,

(d) the need to pay for medical expenses, including non-refundable deductibles and the costs of prescription drug medications,

(e) the need to pay for the funeral expenses of the Participant’s spouse, beneficiary, or dependent (as defined above), or

(f) such other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant, all as determined by the Committee in accordance with Treas. Reg. Sec. 1.409A-3(i)(3).

 

8


2.34 Valuation Date.

“Valuation Date” shall mean the close of each business day, as established and amended from time to time by guidelines and procedures of the Committee in its sole and exclusive discretion.

ARTICLE III—ELIGIBILITY AND PARTICIPATION

3.1 Eligibility Requirements.

The Board Committee shall notify an Eligible Employee of his eligibility to participate in the Plan for a Plan Year in such form as it may determine most appropriate. Only an Eligible Employee may become a Participant in this Plan. Current Participants remain eligible until notified otherwise, provided that a Participant shall not be permitted to make new Participant Deferrals to the Plan for any Plan Year following the year in which he ceases to be an Eligible Employee for any reason (unless he again becomes an Eligible Employee, is notified of his eligibility to participate and meets the requirements of Section 3.2). If a Participant ceases to be an Eligible Employee other than as a result of death, Disability or Separation from Service, then his Accounts will remain in and continue to be subject to the provisions of the Plan.

3.2 Participation.

An Eligible Employee shall become a Participant in the Plan by the completion and timely filing with and subsequent acceptance by, the Employer of the Deferral Election Form, in such form and according to the terms and conditions established by the Committee. A Participant (or any Designated Beneficiary who becomes entitled) remains a Participant as to his Account until his Account Balance is fully distributed under the terms of the Plan.

ARTICLE IV—ELECTIONS, DEFERRALS & MATCHING CONTRIBUTIONS

4.1 Participant Election to Defer Compensation.

(a) No later than December 31, or an earlier date set by the Committee, a Participant may elect to defer Compensation for services to be performed in the next following Plan Year by the execution and timely filing, and Employer’s acceptance of, a Deferral Election Form in such form and according to such procedures as the Committee may prescribe from time to time. Each such Deferral Election Form shall be effective for the Plan Year to which the Deferral Election Form pertains. However, no Deferral Election Form shall be accepted unless a Participant has first elected as of January 1 of the applicable Plan Year to defer the maximum amount of Compensation permitted by Code Sections 401(k), 402(g), and 415 under the Qualified Retirement Plan.

 

9


(b) Each Participant may elect annually to have his Compensation for the Plan Year reduced by a stated amount or a whole but not more than one hundred percent (100%). The amount deferred under the Plan shall be only the amount of such elected deferral that is in excess of the sum of (i) the amount that the Participant has elected to defer into the Qualified Retirement Plan as of January 1 of such Plan Year (regardless of any subsequent changes to such election during the Plan Year), (ii) the amount necessary for the Employer to satisfy any income and empl


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