PARKER-HANNIFIN CORPORATION
SAVINGS RESTORATION PLAN
PARKER-HANNIFIN CORPORATION
SAVINGS RESTORATION PLAN
Parker-Hannifin Corporation, an Ohio corporation, (the "Company"), hereby
establishes this Savings Restoration Plan (the "Plan"), effective October 1,
1994, for the purpose of attracting high quality executives and promoting in
its executives increased efficiency and an interest in the successful
operation of the Company by restoring some of the deferral opportunities and
employer-provided benefits that are lost under The Parker-Hannifin Employees'
Savings Plus Stock Ownership Plan due to legislative limits. The benefits
provided under the Plan shall be provided in consideration for services to be
performed after the effective date of the Plan, but prior to the executive's
retirement.
ARTICLE 1
Definitions
1.1 Administrator shall mean the Company or, if applicable, the committee
appointed by the Board of Directors of the Company to administer the Plan
pursuant to Article 13 of the Plan.
1.2 Annual Deferral shall mean the amount of Compensation which the
Participant elects to defer for a Plan Year pursuant to Articles 2 and 3 of
the Plan.
1.3 Beneficiary shall mean the person or persons or entity designated as
such in accordance with Article 14 of the Plan.
1.4 Change in Control shall mean any of the following events shall have
occurred:
(i) Any person (as that term is defined in Section 13(d)(3)
or Section 14(d)(2) of the Securities Exchange Act of 1934 (the
"Exchange Act")) has become the beneficial owner (as that term is
defined under Rule 13d-3 or any successor rule or regulation
promulgated under the Exchange Act) of securities representing twenty-
five percent (25%) of the combined voting power of the then
outstanding securities entitled to vote generally in the election of
the directors of the Company ("Voting Stock"), which ownership of
securities has not been specifically approved by the Company's Board
of Directors with specific reference to this Plan;
(ii) The Company files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Exchange Act
disclosing in response to the applicable disclosure requirements of
Form 8-K or Schedule
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14A (or any successor schedule, form or report or item therein) that a
change in control of the Company has occurred or will occur in the
future pursuant to any then existing contract or transaction;
provided, however that if the report or proxy statement reports a
prospective change in control, any consequences of a Change in Control
as set forth elsewhere in this Plan will not occur until the reported
change in control has actually occurred;
(iii) If, during any period of twenty-four (24) consecutive
months, beginning before or after the effective date of this Plan,
individuals who at the beginning of any such period constitute the
directors of the Company cease for any reasons (other than death,
disability, or retirement pursuant to the Company's policy relating to
retirement of directors, if any, in effect on the date of this Plan)
to constitute at least a majority of the Board of Directors of the
Company; provided, however, that for purposes of this clause (iii) if
a person is first elected, or first nominated for election by the
Company's stockholders, by a vote of at least two-thirds of the Board
of Directors of the Company (or a committee thereof) then still in
office who were directors of the Company at the beginning of any such
period, then such person will be deemed to have been a director of the
Company at the beginning of such period.
Notwithstanding the foregoing provisions of Sections 1.4(i) or 1.4(ii),
unless otherwise determined in a specific case by a majority vote of the
Board of Directors, a Change in Control shall not be deemed to have
occurred for purposes of Sections 1.4(i) or 1.4(ii) solely because (1) the
Company, (2) an entity in which the Company directly or indirectly
beneficially owns 50% or more of the voting equity securities (a
"Subsidiary"), or (3) any employee stock ownership plan or any other
employee benefit plan of the Company or any Subsidiary (an "Employee
Plan") either files or becomes obligated to file a report or proxy
statment under or in response to the applicable disclosure requirements of
Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor
schedule, form or report or item therein) under the Exchange Act
disclosing beneficial ownership by it of shares of Voting Stock, whether
in excess of 25% or otherwise, or because the Company, a Subsidiary or an
Employee Plan reports that a change in control of the Company has occurred
or will occur in the future by reason of such beneficial ownership.
1.5 Compensation shall mean the sum of the Participant's base salary and
anticipated bonuses (including profit-sharing, RONA, and incentive bonuses
paid in cash) for a Plan Year before reductions for deferrals under the Plan,
or the Executive Deferral Plan, or the Savings Plan, or the Benefits Plus
Program.
1.6 Crediting Rate shall mean (i) the amount described in Section 1.7.1
to the extent the Restoration Account Balance represents either Annual
Deferrals under Article 3 or earnings previously credited on such deferrals
under Section 5.2 or (ii) the amount described in Section 1.7.2 to the extent
the Restoration Account balance
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represents either Matching Credits under Article 4 or interest previously
credited on such Matching Credits under Section 5.2:
1.6.1 Crediting Rate for Annual Deferrals shall mean any notional
gains or losses equal to those generated as if the Restoration Account
balance attributable to Annual Deferrals under Article 3 had been invested
in one or more of the investment portfolios sponsored by The Prudential
Series Fund, Inc. and designated as available by the Administrator, less
separate account fees and less applicable administrative charges
determined annually by the Administrator.
The allocation of the Restoration Account shall be determined
by the Participant among one or more of the available portfolios. The
gains or losses shall be credited based upon the daily unit values for the
portfolio(s) selected by the Participant. The rules and procedures for
allocating the Restoration Account balance among the portfolios shall be
determined by the Administrator. The Participant's allocation is solely
for the purpose of calculating the Crediting Rate. Notwithstanding the
method of calculating the Crediting Rate, the Company shall be under no
obligation to purchase any investments designated by the Participant.
1.6.2 Crediting Rate for Matching Credits shall mean any notional
gains or losses equal to those generated as if the Restoration Account
balance attributable to Matching Credits under Article 4 had been invested
in the Common Stock of the Company, including reinvestment of dividends.
The rules and procedures for determining the value of the Common Stock of
the Company shall be determined by the Administrator. The rules and
procedures for re-allocating the Restoration Account balance attributable
to the Matching Credits among the other portfolios offered under the Plan
shall be determined by the Administrator.
1.7 Disability shall mean any long term disability as defined under the
Company's long term disability plan. The Administrator, in its complete and
sole discretion, shall determine a Participant's Disability. The
Administrator may require that the Participant submit to an examination on an
annual basis, at the expense of the Company, by a competent physician or
medical clinic selected by the Administrator to confirm Disability. On the
basis of such medical evidence, the determination of the Administrator as to
whether or not a condition of Disability exists or continues shall be
conclusive.
1.8 Early Retirement Date shall mean age 55 with ten or more years of
employment with Company.
1.9 Eligible Executive shall mean a key employee of the Company or any of
its subsidiaries who (i) participates in the Savings Plan and makes the
maximum permissible pre-tax contributions of compensation, (ii) is designated
by the Administrator as eligible to participate in the Plan (subject to the
restriction in Sections 10.2 and 12.2 of the Plan), and (iii) qualifies as a
member of the "select
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group of management or highly compensated employees" under ERISA.
1.10 ERISA shall mean the Employee Retirement Income Security Act of
1974, as amended.
1.11 Executive Deferral Plan shall mean the Parker-Hannifin Corporation
Executive Deferral Plan as it currently exists and as it may subsequently be
amended.
1.12 Financial Hardship shall mean an unexpected need for cash arising
from an illness, casualty loss, sudden financial reversal, or other such
unforeseeable occurrence as determined by the Administrator. Cash needs
arising from foreseeable events such as the purchase of a residence or
education expenses for children shall not, alone, be considered a Financial
Hardship.
1.13 Fixed Crediting Rate shall mean an effective annual yield equal to
ninety percent (90%) of the sixty (60) month rolling average of the Ten-Year
United States Treasury Note as determined by the Administrator on September 30
of the preceding year. Notwithstanding the preceding sentence, with respect
to the first Plan Year, the Fixed Crediting Rate shall be determined as of
September 30, 1994. The Fixed Crediting Rate in effect as of the
Participant's Termination of Employment or death shall be held constant for
the remainder of the period for which benefits are paid.
1.14 Matching Credit shall mean the Company's credit to the Participant's
Restoration Account under Article 4.
1.15 Normal Retirement Date shall mean the date on which a Participant
attains age 65.
1.16 Participant shall mean an Eligible Executive who has elected to
participate and has completed a Participation Agreement pursuant to Article 2
of the Plan.
1.17 Participation Agreement shall mean the Participant's written
election to participate in the Plan.
1.18 Plan Year shall mean the calendar year, except that the first Plan
Year shall be the year commencing October 1, 1994 and ending December 31,
1994.
1.19 Restoration Account shall mean the notional account established for
record keeping purposes for a Participant pursuant to Article 5 of the Plan.
1.20 Retirement shall mean a termination of employment following Normal
or Early Retirement Date.
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1.21 Savings Plan shall mean The Parker-Hannifin Employees' Savings Plus
Stock Ownership Plan as it currently exists and as it may subsequently be
amended.
1.22 Statutory Limit shall mean any statutory or regulatory limit on
salary reduction contributions to savings plans, or on compensation taken into
account in calculating employer or employee contributions to savings plans
with the exception of Internal Revenue Code Section 415(c), as adjusted for
inflation, which shall be deemed to apply to the combination of both employer
and employee contributions made in combination to the Plan and the Savings
Plan. The impact of such limits on the Participants shall be determined by
the Company prior to the beginning of each Plan Year based upon its best
estimates and according to procedures determined by the Administrator. Once
the Company has determined the impact of the Statutory Limits, no adjustment
shall be made to increase deferrals or matching credits under this Plan
notwithstanding any adjustments ultimately required under the Savings Plan due
to actual employee contributions or other factors.
1.23 Termination of Employment shall mean the Participant's employment
with the Company ceases for any reason whatsoever, whether voluntary or
involuntary, other than Retirement or death.
1.24 Unscheduled Withdrawal shall mean a distribution of all or a portion
of the entire amount credited to the Participant's Restoration Account
requested by the Participant pursuant to the provisions of Article 11 of the
Plan.
1.25 Valuation Date shall mean the end of the month in which Retirement,
Termination of Employment, or death occurs, except in the event of an election
to delay retirement benefits under Article 6, in which case the Valuation Date
shall mean the November 30 of the year preceding commencement of benefit
payments.
ARTICLE 2
Participation
2.1 Participation Agreement / Annual Deferral. An Eligible Executive
shall become a Participant in the Plan on the first day of the Plan Year
coincident with or next following the later of the date the individual becomes
an Eligible Executive and the date the individual begins to participate in the
Savings Plan, provided such Eligible Executive has submitted to the
Administrator a Participation Agreement. To be effective, the Eligible
Executive must submit the Participation Agreement to the Administrator during
the enrollment period designated by the Administrator. In the Participation
Agreement, and subject to the restrictions in Article 3, the Eligible
Executive shall designate the Annual Deferral for the covered Plan Year.
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2.2 Continuation of Participation. An Eligible Executive who has elected
to participate in the Plan by making an Annual Deferral shall continue as a
Participant in the Plan for purposes of such Annual Deferral even though such
executive ceases to be an Eligible Executive. However, a Participant shall
not be eligible to elect a new Annual Deferral unless the Participant is an
Eligible Executive for the Plan Year for which the election is made.
ARTICLE 3
Executive Deferrals
3.1 Deferral Election. A Participant who has elected to contribute under
the Savings Plan, but whose pre-tax contributions to the Savings Plan are
limited by the Statutory Limit, may elect an Annual Deferral under this Plan
to defer all or a portion of the Compensation that he or she cannot defer
under the Savings Plan due to the Statutory Limit. Such election shall
designate a specified percentage of Compensation to be deferred. Such
percentage shall include anticipated contributions to the Savings Plan as well
as to this Plan. Annual Deferrals under this Plan shall be irrevocable.
3.2 Maximum Annual Deferral. The Annual Deferral for a Plan Year, when
combined with the amount the Participant has elected to contribute to the
Savings Plan on a pre-tax basis, may not exceed the stated percentage of
Compensation that could be deferred in the Savings Plan but for the Statutory
Limits. In addition, the Administrator shall, in its sole discretion and
prior to the first day of the Plan Year, decrease the deferral as needed to
allow the Participant to receive the optimal Matching Credit within the
Statutory Limits as defined for purpose of the Plan.
3.3 Discontinuation of Deferral. In the event that a Participant elects
to make after-tax contributions of Compensation to the Savings Plan, deferrals
under this Plan shall cease for the remainder of the Plan Year.
3.4 Vesting. The Participant's right to receive Compensation deferred
(and gains or losses thereon) under this Article 3 shall be 100% vested at all
times.
ARTICLE 4
Company Matching Credits
4.1 Amount. The Company's Matching Credit in each Plan Year shall equal
one hundred percent (100%) of the first three percent (3%) of Compensation
deferred and twenty-five percent (25%) of the next two (2%) of Compensation
deferred, reduced by the matching contributions credited to the Participant's
account under the Savings Plan.
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4.2 Discontinuation of Matching Credits. Notwithstanding the foregoing,
if the Participant decreases or ceases pre-tax contributions and/or makes
after-tax contributions to the Savings Plan in any Plan Year, additional
Matching Credits shall not be credited to the Participant's Restoration
Account for the remainder of that Plan Year.
4.3 Vesting. The Participant's right to receive Matching Credits (and
gains or losses thereon) credited to the Participant's Restoration Account
shall be one hundred percent (100%) vested.
ARTICLE 5
Restoration Accounts
5.1 Restoration Accounts. Solely for record keeping purposes, the
Company shall maintain a Restoration Account for each Participant.
5.2 Timing of Credits -- Pre-Termination. The Company shall credit to
the Restoration Account the Annual Deferrals under Article 3 at the time the
deferrals would otherwise have been paid to the Participant but for the
deferral election. Matching Credits under Article 4 shall be credited to the
Restoration Account quarterly as of the first day of the following quarter.
The Company shall also credit gains or losses to the Restoration Account each
calendar quarter, or as of the Valuation Date, using the Crediting Rate in
effect.
5.3 Mid-Year Terminations. If a Participant's Termination of Employment
occurs other than at the end of a Plan Year, the Company shall credit gains or
losses to the Restoration Account from the first day of such Plan Year to the
Valuation Date.
5.4 Statement of Accounts. The Administrator shall provide periodically
to each Participant a statement setting forth the balance of the Restoration
Account maintained for such Participant.
ARTICLE 6
Retirement Benefits
6.1 Amount. Upon Retirement, the Company shall pay to the Participant a
retirement benefit in the form provided in Section 6.2 of the Plan, based on
the balance of the Restoration Account as of the Valuation Date. If paid as a
lump sum, the retirement benefit shall be equal to such balance. If paid in
installments, the installments shall be paid in amounts that will amortize
such balance with interest credited at the Crediting Rate over the period of
time benefits are to be paid. For
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purposes of calculating installments, an assumed rate of interest established
by the Administrator shall be applied to the balance and reconciled once
annually with the actual Crediting Rate for the period; any excess earnings
shall be paid in an additional payment once per year, and any overpayments
shall be deducted pro rata over the remaining installments.
6.2 Form of Retirement Benefits. The retirement benefit shall be paid
monthly over a period of one hundred eighty (180) months or the number of
months required to result in a monthly benefit of one thousand dollars
($1,000.00), if less. Notwithstanding anything herein to the contrary, the
Participant may elect in the Participation Agreement to have the retirement
benefit paid in a lump sum or in installments paid monthly over a period of
sixty (60) or one hundred twenty (120) months. Payments shall be made or
shall begin as of the first day of the calendar quarter next following the
date sixty (60) days after the Participant's Retirement unless the Participant
elects in the Participation Agreement for payments to begin on January l of a
later year. However, in all events payments shall commence on or before the
earlier of the date the retired Participant attains age seventy (70) or the
January 1 five years after Retirement. Except as provided under Section 10.2,
Participants may elect an alternative form of payout as available under this
Section 6.2 by written election filed with the Administrator; provided,
however, that if the Participant files the election less than thirteen (13)
months prior to the date benefit payments are to commence, the Participant's
Restoration Account shall be reduced by ten percent (10%).
6.3 Small Benefit Exception. Notwithstanding any of the foregoing, if
the sum of all benefits payable to the Participant is less than or equal to
five thousand dollars ($5,000.00), the Company may, in its sole discretion,
elect to pay such benefits in a single lump sum.
ARTICLE 7
Termination Benefits
7.1 Amount. As of the first day of the calendar quarter beginning at
least sixty (60) days after Termination of Employment, the Company shall pay
to the Participant a termination benefit equal to the balance of the
Restoration Account as of the Valuation Date.
7.2 Form of Termination Benefits. The Company shall pay the termination
benefits in a single lump sum; provided, however, that except following a
Change in Control the Company may, in its sole discretion, elect to pay the
termination benefits over a period of three (3) years in monthly installments,
in which event the Company shall credit interest on the unpaid balance of the
Restoration Account after the Valuation Date at the Fixed Crediting Rate in
effect at the time of Termination of Employment.
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ARTICLE 8
Survivor Benefits
8.1 Pre-Commencement Survivor Benefit. If the Participant dies
prior to the time installment payments have commenced, the Company shall pay
to the Participant's Beneficiary within ninety (90) days after the
Participant's death a benefit equal to the balance of the Participant's
Restoration Account as of the Valuation Date.
8.2 Post-Commencement Survivor Benefit. If the Participant dies
after the time installment payments have commenced, the Company shall pay to
the Participant's Beneficiary an amount equal to the remaining benefits
payable to the Participant under the Plan over the same period such benefits
would have been paid to the Participant, in which event the Company shall
credit interest on the unpaid balance of the Restoration Account at the Fixed
Crediting Rate in effect at the date of the Participant's death.
8.3 Small Benefit Payment. Notwithstanding any of the foregoing, in
the event the sum of all benefits payable to the Beneficiary is less than or
equal to five thousand dollars ($5,000.00), the Company may, in its sole
discretion, elect to pay such benefits in a single lump sum.
ARTICLE 9
Disability
If a Participant suffers a Disability, the Company shall pay the
benefit described in Article 6 to the Participant as if the date of the
Participant's Termination of Employment for Disability were the Participant's
Normal Retirement Date.
ARTICLE 10
Change in Control
10.1 Election. At the time the Participant is completing his initial
Participation Agreement, the Participant may elect that, if a Change in
Control occurs, the Participant (or after the Participant's death the
Participant's Beneficiary) shall receive a lump sum payment of the balance of
the Restoration Account within thirty (30) days after the Change of Control.
Such balance shall be determined as of end of the month sixty (60) days prior
to the month in which the Change of Control occurs.
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10.2 Benefit Reduction on Withdrawal. If a Participant has not made
the election described in Section 10.1 above and, within thirty (30) days
after a Change of Control, the Participant (or Beneficiary) elects to receive
a distribution of the balance of the Restoration Account (determined as
described in Section 10.1 herein), the lump sum payment shall be reduced by an
amount equal to five percent (5%) of the total balance of the Restoration
Account (instead of the ten percent (10%) reduction otherwise provided for in
Section 11.2). If a Participant elects such a withdrawal, any on-going Annual
Deferral shall cease, and the Participant may not again be designated as an
Eligible Executive until one entire Plan Year following the Plan Year in which
such withdrawal was made has elapsed.
ARTICLE 11
Unscheduled Withdrawals
11.1 Election. A Participant (or Beneficiary if the Participant is
deceased) may request an Unscheduled Withdrawal of all or a portion of the
entire amount credited to the Participant's Restoration Account, which shall
be paid in a single lump sum; provided, however, (i) that the minimum
withdrawal shall be twenty-five percent (25%) of the Restoration Account
balance, and (ii) that an election to withdraw seventy-five percent (75%) or
more of the balance shall be deemed to be an election to withdraw the entire
balance.
11.2 Withdrawal Penalty. There shall be a penalty deducted from the
Restoration Account prior to an Unscheduled Withdrawal equal to ten percent
(10%) of the Unscheduled Withdrawal. If a Participant elects such a
withdrawal, any on-going Annual Deferral shall cease, and the Participant may
not again be designated as an Eligible Executive until one entire Plan Year
following the Plan Year in which such withdrawal was made has elapsed.
11.3 Small Benefit Exception. Notwithstanding any of the foregoing,
if the sum of all benefits payable to the Participant or Beneficiary who has
requested the Unscheduled Withdrawal is less than or equal to five thousand
dollars ($5,000.00), the Company may, in its sole discretion, elect to pay out
the entire Restoration Account balance (reduced by the ten percent (10%)
penalty) in a single lump sum.
ARTICLE 12
Conditions Related to Benefits
12.1 Nonassignability. The benefits provided under the Plan may not
be alienated, assigned, transferred, pledged or hypothecated by or to any
person or entity, at any time or any manner whatsoever. These benefits shall
be exempt from the claims of creditors of any Participant or other claimants
and from all orders,
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decrees, levies, garnishment or executions against any Participant to the
fullest extent allowed by law.
12.2 Financial Hardship Distribution. Upon a finding that the
Participant or the Beneficiary has suffered a Financial Hardship, the
Administrator may in its sole discretion, permit the Participant to cease any
on-going deferrals and accelerate distributions of benefits under the Plan in
the amount reasonably necessary to alleviate such Financial Hardship. If a
distribution is to be made to a Participant on account of Financial Hardship,
the Participant may not make deferrals under the Plan until one entire Plan
Year following the Plan Year in which a distribution based on Financial
Hardship was made has elapsed.
12.3 No Right to Company Assets. The benefits paid under the Plan
shall be paid from the general funds of the Company, and the Participant and
any Beneficiary shall be no more than unsecured general creditors of the
Company with no special or prior right to any assets of the Company for
payment of any obligations hereunder.
12.4 Protective Provisions. The Participant shall cooperate with the
Company by furnishing any and all information requested by the Administrator,
in order to facilitate the payment of benefits hereunder, taking such physical
examinations as the Administrator may deem necessary and taking such other
actions as may be requested by the Administrator. If the Participant refuses
to cooperate, the Company shall have no further obligation to the Participant
under the Plan. In the event of a Participant's suicide during the first two
(2) years of participation in the Plan, or if the Participant makes any
material misstatement of information or nondisclosure of medical history, then
no benefits shall be payable to the Participant or the Participant's
Beneficiary or estate under the Plan beyond the sum of the Participant's
Annual Deferrals.
12.5 Withholding. The Participant or the Beneficiary shall make
appropriate arrangements with the Company for satisfaction of any federal,
state or local income tax withholding requirements and Social Security or
other employee tax requirements applicable to the payment of benefits under
the Plan. If no other arrangements are made, the Company may provide, at its
discretion, for such withholding and tax payments as may be required.
ARTICLE 13
Administration of Plan
The Company shall administer the Plan, provided, however, that the
Company may elect by action of its Board of Directors to appoint a committee
of three (3) or more individuals to administer the Plan. All references to
the Administrator herein shall refer to the Company or, if such committee has
been appointed, the committee.
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The Administrator shall administer the Plan and interpret, construe
and apply its provisions in accordance with its terms. The Administrator
shall further establish, adopt or revise such rules and regulations as it may
deem necessary or advisable for the administration of the Plan. All decisions
of the Administrator shall be final and binding. The individuals serving on
the committee shall, except as prohibited by law, be indemnified and held
harmless by the Company from any and all liabilities, costs, and expenses
(including legal fees), to the extent not covered by liability insurance
arising out of any action taken by any member of the committee with respect to
the Plan, unless such liability arises from the individual's own gross
negligence or willful misconduct.
ARTICLE 14
Beneficiary Designation
The Participant shall have the right, at any time, to designate any
person or persons as Beneficiary (both primary and contingent) to whom payment
under the Plan shall be made in the event of the Participant's death. The
Beneficiary designation shall be effective when it is submitted in writing to
the Administrator during the Participant's lifetime on a form prescribed by
the Administrator.
The submission of a new Beneficiary designation shall cancel all prior
Beneficiary designations. Any finalized divorce or marriage of a Participant
subsequent to the date of a Beneficiary designation shall revoke such
designation, unless in the case of divorce the previous spouse was not
designated as Beneficiary and unless in the case of marriage the Participant's
new spouse has previously been designated as Beneficiary. The spouse of a
married Participant shall consent to any designation of a Beneficiary other
than the spouse, and the spouse's consent shall be witnessed by a notary
public.
If a Participant fails to designate a Beneficiary as provided above,
or if the Beneficiary designation is revoked by marriage, divorce, or
otherwise without execution of a new designation, or if every person
designated as Beneficiary predeceases the Participant or dies prior to
complete distribution of the Participant's benefits, then the Administrator
shall direct the distribution of such benefits to the Participant's estate.
ARTICLE 15
Amendment and Termination of Plan
15.1 Amendment of Plan. Except as provided in Section 15.3, the
Company may at any time amend the Plan in whole or in part, provided, however,
that such amendment (i) shall not decrease the balance of the Participant's
Restoration Account at the time of such amendment and (ii) shall not
retroactively decrease the
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applicable Crediting Rate of the Plan prior to the time of such amendment.
The Company may amend the Crediting Rate or Fixed Crediting Rate of the Plan
prospectively, in which case the Company shall notify the Participant of such
amendment in writing within thirty (30) days after such amendment.
15.2 Termination of Plan. Except as provided in Section 15.3, the
Company may at any time terminate the Plan. If the Company terminates the
Plan, the date of such termination shall be treated as the date of Retirement
or Termination of Employment for the purpose of calculating Plan benefits, and
the Company shall pay to the Participant the benefits the Participant is
entitled to receive under the Plan in monthly installments over a thirty-six
(36) month period. Interest at the Fixed Crediting Rate will be credited to
the Participant's Restoration Account commencing as of the date of the Plan's
termination and continuing until distribution under this Section is completed.
15.3 Amendment or Termination After Change in Control.
Notwithstanding the foregoing, the Company shall not amend or terminate the
Plan without the prior written consent of affected Participants for a period
of two calendar years following a Change in Control and shall not thereafter
amend or terminate the Plan in any manner which affects any Participant (or
Beneficiary of a deceased Participant) who commences receiving payment of
benefits under the Plan prior to the end of such two year period following a
Change in Control.
15.4 Company Action. Except as provided in Section 15.3 or 15.5, the
Company's power to amend or terminate the Plan shall be exercisable by the
Company's Board of Directors or by the committee or individual authorized by
the Company's Board of Directors to exercise such powers.
15.5 Constructive Receipt Termination. In the event the
Administrator determines that amounts deferred under the Plan have been
constructively received by Participants and must be recognized as income for
federal income tax purposes, the Plan shall terminate and distributions shall
be made to Participants in accordance with the Provisions of Section 15.2 or
as may be determined by the Administrator. The determination of the
Administrator under this Section 15.4 shall be binding and conclusive.
ARTICLE 16
Miscellaneous
16.1 Successors of the Company. The rights and obligations of the
Company under the Plan shall inure to the benefit of, and shall be binding
upon, the successors and assigns of the Company.
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16.2 ERISA Plan. The Plan is intended to be an unfunded plan
maintained primarily to provide deferred compensation benefits for "a select
group of management or highly compensated employees" within the meaning of
Sections 201, 301 and 401 of ERISA and therefore to be exempt from Parts 2, 3
and 4 of Title I of ERISA.
16.3 Trust. The Company shall be responsible for the payment of all
benefits under the Plan. At its discretion, the Company may establish one or
more grantor trusts for the purpose of providing for payment of benefits under
the Plan. Such trust or trusts may be irrevocable, but the assets thereof
shall be subject to the claims of the Company's creditors. Benefits paid to
the Participant from any such trust shall be considered paid by the Company
for purposes of meeting the obligations of the Company under the Plan.
16.4 Employment Not Guaranteed. Nothing contained in the Plan nor
any action taken hereunder shall be construed as a contract of employment or
as giving any Participant any right to continued employment with the Company.
16.5 Gender, Singular and Plural. All pronouns and variations
thereof shall be deemed to refer to the masculine, feminine, or neuter, as the
identity of the person or persons may require. As the context may require,
the singular may be read as the plural and the plural as the singular.
16.6 Captions. The captions of the articles and sections of the Plan
are for convenience only and shall not control or affect the meaning or
construction of any of its provisions.
16.7 Validity. If any provision of the Plan is held invalid, void or
unenforceable, the same shall not affect, in any respect whatsoever, the
validity of any other provisions of the Plan.
16.8 Waiver of Breach. The waiver by the Company of any breach of
any provision of the Plan by the Participant shall not operate or be construed
as a waiver of any subsequent breach by the Participant.
16.9 Applicable Law. The Plan shall be governed and construed in
accordance with the laws of Ohio except where the laws of Ohio are preempted
by ERISA.
16.10 Notice. Any notice or filing required or permitted to be
given to the Company under the Plan shall be sufficient if in writing and
hand-delivered, or sent by first class mail to the principal office of the
Company, directed to the attention of the Administrator. Such notice shall be
deemed given as of the date of delivery, or, if delivery is made by mail, as
of the date shown on the postmark.
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ARTICLE 17
Claims and Review Procedures
17.1 Claims Procedure. The Company shall notify a Participant in
writing, within ninety (90) days after his or her written application for
benefits, of his or her eligibility or noneligibility for benefits under the
Plan. If the Company determines that a Participant is not eligible for
benefits or full benefits, the notice shall set forth (1) the specific reasons
for such denial, (2) a specific reference to the provisions of the Plan on
which the denial is based, (3) a description of any additional information or
material necessary for the claimant to perfect his or her claim, and a
description of why it is needed, and (4) an explanation of the Plan's claims
review procedure and other appropriate information as to the steps to be taken
if the Participant wishes to have the claim reviewed. If the Company
determines that there are special circumstances requiring additional time to
make a decision, the Company shall notify the Participant of the special
circumstances and the date by which a decision is expected to be made, and may
extend the time for up to an additional ninety-day period.
17.2 Review Procedure. If a Participant is determined by the Company
not to be eligible for benefits, or if the Participant believes that he or she
is entitled to greater or different benefits, the Participant shall have the
opportunity to have such claim reviewed by the Company by filing a petition
for review with the Company within sixty (60) days after receipt of the notice
issued by the Company. Said petition shall state the specific reasons which
the Participant believes entitle him or her to benefits or to greater or
different benefits. Within sixty (60) days after receipt by the Company of
the petition, the Company shall afford the Participant (and counsel, if any)
an opportunity to present his or her position to the Company orally or in
writing, and the Participant (or counsel) shall have the right to review the
pertinent documents. The Company shall notify the Participant of its decision
in writing within the sixty-day period, stating specifically the basis of its
decision, written in a manner calculated to be understood by the Participant
and the specific provisions of the Plan on which the decision is based. If,
because of the need for a hearing, the sixty-day period is not sufficient, the
decision may be deferred for up to another sixty-day period at the election of
the Company, but notice of this deferral shall be given to the Participant.
In the event of the death of the Participant, the same procedures shall apply
to the Participant's beneficiaries.
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