Exhibit (10)(q)* to Report
on Form 10-K for Fiscal
Year Ended June 30, 1995
by Parker-Hannifin Corporation
Parker-Hannifin Corporation Savings Restoration Plan,
as amended as of August 17, 1995
*Numbered in accordance with Item 601 of Regulation S-K.
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 have
occurred:
(i) any "person" (as such term is defined in Section 3(a)(9) of
the Securities Exchange Act of 1934 (the "Exchange Act") and as used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing 20%
or more of the combined voting power of the Company's then outstanding
securities eligible to vote for the election of the Board of Directors
of the Company (the "Company Voting Securities"); provided, however,
that the event described in this paragraph shall not be deemed to be a
Change in Control by virtue of any of the following situations: (A) an
acquisition by the Company or, direct or indirect, majority-owned
subsidiaries of the Company; (B) an acquisition by any employee benefit
plan sponsored or maintained by the Company or any corporation
controlled by the Company; (C) an acquisition by any underwriter
temporarily holding securities pursuant to an offering of such
securities; (D) a Non-Control Transaction (as defined in paragraph
(iii)); (E) any acquisition by one or more of the officers who have
"change in control"
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contracts with the Company; or (F) the acquisition of Company Voting
Securities from the Company, if a majority of the Board of Directors of
the Company approves a resolution providing expressly that the
acquisition pursuant to this clause (F) does not constitute a Change in
Control under this paragraph (i);
(ii) individuals who, at the beginning of any period of twenty-four
(24) consecutive months, constitute the Board of Directors of the
Company (the "Incumbent Board") cease for any reason to constitute at
least a majority thereof, provided that any person becoming a director
subsequent to the beginning of such twenty-four (24) month period,
whose election, or nomination for election, by the Company's
shareholders was approved by a vote of at least two-thirds of the
directors comprising the Incumbent Board (either by a specific vote or
by approval of the proxy statement of the Company in which such person
is named as a nominee for director, without objection to such
nomination) shall be, for purposes of this paragraph (ii), considered
as though such person were a member of the Incumbent Board; provided,
however, that no individual initially elected or nominated as a
director of the Company as a result of an actual or threatened election
contest with respect to directors or any other actual or threatened
solicitation of proxies or consents by or on behalf of any person other
than the Board of Directors shall be deemed to be a member of the
Incumbent Board;
(iii) a merger or consolidation or similar form of corporate
reorganization, or sale or other disposition of all or substantially
all of the assets, of the Company (a "Business Combination") is
consummated, unless immediately following such Business Combination:
(A) more than 55% of the total voting power of the corporation
resulting from such Business Combination (including, without
limitation, for purposes of making such 55% determination, any shares
owned through any entity which directly or indirectly has beneficial
ownership of the Company Voting Securities or all or substantially all
of the Company's assets) eligible to elect directors of such
corporation is represented by shares held by shareholders of the
Company immediately prior to such Business Combination (either by
remaining outstanding or being converted); (B) no person (other than
any holding company resulting from such Business Combination, any
employee benefit plan sponsored or maintained by the Company (or the
corporation resulting from such Business Combination), or any person
which beneficially owned, immediately prior to such Business
Combination, directly or indirectly, 20% or more of the Company Voting
Securities) becomes the beneficial owner, directly or indirectly, of
20% or more of the total voting power of the outstanding voting
securities eligible to elect directors of the corporation resulting
from such Business Combination; and (C) at least a majority of the
members of the board of directors of the corporation resulting from
such Business Combination were members of the Incumbent Board at the
time of the execution of the initial agreement, or action of the Board
of Directors, providing for such Business Combination (a "Non-Control
Transaction"); or
(iv) the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company.
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Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because any person acquires beneficial ownership of more
than 20% of the Company Voting Securities as a result of the acquisition
of Company Voting Securities by the Company which, by reducing the number
of Company Voting Securities outstanding, increases the percentage of
shares beneficially owned by such person; provided, that if a Change in
Control would occur as a result of such an acquisition by the Company (if
not for the operation of this sentence), and after the Company's
acquisition such person becomes the beneficial owner of additional Company
Voting Securities that increases the percentage of outstanding Company
Voting Securities beneficially owned by such person, then a Change in
Control shall occur.
1.5 Compensation shall mean the sum of the Participant's base salary
and anticipated regular bonuses (including profit-sharing, RONA, and
executive compensation, but excluding payments under any long term
incentive plan, volume incentive plan, or other extraordinary bonus or
incentive plan) 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
1.6.1 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 1.6.2
to the extent the Restoration Account balance 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
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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 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.
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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.
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.
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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.
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.
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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.
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. Subject to Section 12.4, 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.
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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 annually amortize such balance with earnings and losses
credited at the Crediting Rate over the period of time benefits are to be
paid.
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
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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.
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, decrees, levies, garnishment or
executions against any Participant to the fullest extent allowed by law.
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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.
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
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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 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
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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.
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.
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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.
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
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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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