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Exhibit 10(lxxiii)
THE NACCO MATERIALS HANDLING GROUP, INC.
UNFUNDED BENEFIT PLAN
(AS AMENDED AND RESTATED EFFECTIVE SEPTEMBER 1, 2000)
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NACCO MATERIALS HANDLING GROUP, INC.
UNFUNDED BENEFIT PLAN
NACCO Materials Handling Group, Inc. (the "Company") does hereby
amend and completely restate the NACCO Materials Handling Group, Inc. Unfunded
Benefit Plan on the terms and conditions described hereinafter, effective
September 1, 2000:
ARTICLE I
PREFACE
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SECTION 1.1 EFFECTIVE DATE. The original effective date of this Plan
was February 10, 1993. The effective date of this amendment and restatement is
September 1, 2000.
SECTION 1.2 PURPOSE OF THE PLAN. The purpose of this Plan is (a) to
allow certain employees to defer the receipt of Compensation or the receipt of
certain long-term incentive compensation award payments, (b) to provide for
certain Employees the benefits they would have received under the Qualified
Plans but for (i) the dollar limitation on Compensation taken into account under
the Qualified Plans as a result of Section 401(a)(17) of the Code, (ii) the
limitations imposed under Section 415 of the Code, and (iii) the limitations
under Sections 402(g), 401(k)(3) and 401(m) of the Code, and (c) to provide for
the continued deferral of certain frozen benefits.
SECTION 1.3 GOVERNING LAW. This Plan shall be regulated, construed and
administered under the laws of the State of North Carolina, except when
preempted by federal law.
SECTION 1.4 GENDER AND NUMBER. For purposes of interpreting the
provisions of this Plan, the masculine gender shall be deemed to include the
feminine, the feminine gender shall be deemed to include the masculine, and the
singular shall include the plural unless otherwise clearly required by the
context.
ARTICLE II
DEFINITIONS
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Except as otherwise provided in this Plan, terms defined in the
Profit Sharing Plan as it may be amended from time to time shall have the same
meanings when used herein, unless a different meaning is clearly required by the
context of this Plan. In addition, the following words and phrases shall have
the following respective meanings for purposes of this Plan.
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SECTION 2.1 ACCOUNT shall mean the record maintained by the Employer in
accordance with Section 4.1 as the sum of the Participant's Excess Profit
Sharing Sub-Account, Excess 401(k) Sub-Account, Excess Matching Sub-Account,
Excess Deferral Sub-Account, LTIP Deferral Sub-Account and Yale Short-Term
Deferral Sub-Account.
SECTION 2.2 ADJUSTED ROE.
(a) For purposes of this Section, the following terms shall have the
following meanings:
(i) "NET INCOME (BEFORE EXTRAORDINARY ITEMS)" is defined as
consolidated net income, as defined by generally accepted accounting principles
("GAAP"), for the Company and its subsidiaries for the subject year before
extraordinary items, but including any extraordinary items related to
refinancings (net of tax);
(ii) "AMORTIZATION OF GOODWILL" is defined as the consolidated
amortization expense related to the intangible asset goodwill for the Company
for the subject year;
(iii) "WEIGHTED AVERAGE STOCKHOLDERS' EQUITY" is calculated by adding
the consolidated stockholders' equity for the Company as defined by GAAP, at the
beginning of the subject year and the end of each month of the subject year and
dividing by thirteen;
(iv) "WEIGHTED AVERAGE ACCUMULATED AMORTIZATION OF GOODWILL" is
calculated by adding consolidated accumulated amortization of goodwill, as
defined by GAAP, at the beginning of the subject year and the end of each month
of the subject year and dividing by thirteen; and
(b) "Adjusted ROE" shall mean the average return on equity of the
Company calculated for the applicable time period, based on A divided by B,
where:
A = Net Income (before extraordinary items) + Amortization of Goodwill;
and
B = Weighted Average (Stockholders' Equity + Accumulated Amortization of
Goodwill).
(c) Adjusted ROE shall be determined at least annually by the Company
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SECTION 2.3 BENEFICIARY shall mean the person or persons designated by
the Participant as his Beneficiary under this Plan, in accordance with the
provisions of Article VIII hereof.
SECTION 2.4 COMPANY shall mean NACCO Materials Handling Group, Inc. or
any entity that succeeds NACCO Materials Handling Group, Inc. by merger,
reorganization or otherwise.
SECTION 2.5 COMPENSATION shall have the same meaning as under the
Profit Sharing Plan, except that (a) Compensation shall be deemed to include (i)
the amount of compensation deferred by the Participant under this Plan,
excluding, however, LTIP Deferral Benefits and (ii) amounts in excess of the
limitation imposed by Code Section 401(a)(17) and (b) Compensation shall be
deemed to exclude cash compensation which is paid for special perquisites, such
as country club dues and company plane allowances. Notwithstanding the
foregoing, cash allowances in lieu of general perquisites that are paid to
substantially all Participants shall be included in the definition of
Compensation hereunder.
SECTION 2.6 EMPLOYER shall mean the Company, NACCO Industries, Inc.,
NACCO Materials Handling Group, Ltd., NACCO Materials Handling, B.V. NACCO
Materials Handling, S.r.l., NMHG Mexico, S.A. de C.V. and NACCO Materials
Handling Group Brasil Ltda.
SECTION 2.7 EXCESS RETIREMENT BENEFIT OR BENEFIT shall mean an LTIP
Deferral Benefit, Yale Short-Term Deferral Benefit, Excess Profit Sharing
Benefit, Excess 401(k) Benefit, Excess Matching Benefit or Excess Deferral
Benefit (as described in Article III) which is payable to or with respect to a
Participant under this Plan.
SECTION 2.8 FIXED INCOME FUND shall mean the Stable Asset Fund under
the Profit Sharing Plan or any equivalent fixed income fund thereunder which is
designated by the NACCO Industries, Inc. Retirement Funds Investment Committee
as the successor to the Stable Asset Fund.
SECTION 2.9 401(k) EMPLOYEE shall mean an Employee of an Employer who
is a Participant in the Profit Sharing Plan who is eligible to receive
Before-Tax Contributions and Matching Employer Contributions thereunder.
SECTION 2.10 INSOLVENT. For purposes of this Plan, an Employer shall be
considered Insolvent at such time as it (a) is unable to pay its debts as they
mature, or (b) is subject to a
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pending voluntary or involuntary proceeding as a debtor under the United States
Bankruptcy Code (or similar foreign law).
SECTION 2.11 LTIP PLAN shall mean the NACCO Materials Handling Group, Inc.
Long-Term Incentive Compensation Plan (Effective January 1, 1990) or the NACCO
Materials Handling Group, Inc. Long-Term Incentive Compensation Plan (Effective
January 1, 2000), or any successor thereto.
SECTION 2.12 PARTICIPANT.
(a) For purposes of Section 3.1 of the Plan, the term
"Participant" means an Employee who is a Participant in the profit sharing
portion of the Profit Sharing Plan (i) whose profit sharing benefit for a Plan
Year is limited by the application of Section 401(a)(17) or 415 of the Code and
(ii) whose total annual compensation from the Controlled Group for such Plan
Year was at least $100,000.
(b) For purposes of Section 3.2 of the Plan, the term
"Participant" means (i) any Employee of the Company who made Excess Deferrals
under the Plan prior to January 1, 1996 and (ii) any Employee of the Company
whose total annual Compensation from the Controlled Group for the Plan Year in
which a deferral election is required was at least $100,000, who is listed on
Exhibit A hereto and who is eligible to make Excess Deferrals on or after
January 1, 2000.
(c) For purposes of Sections 3.3 and 3.4 of the Plan, the term
"Participant" means a 401(k) Employee (i) who is unable to make all of the
Before-Tax Contributions that he has elected to make to the Profit Sharing Plan,
or is unable to receive the maximum amount of Matching Employer Contributions
under the Profit Sharing Plan because of the limitations of Section 402(g),
401(a)(17), 401(k)(3), or 401(m) of the Code, and (ii) whose total annual
compensation from the Controlled Group for the Plan Year in which a deferral
election is required is at least $100,000.
(d) For purposes of Section 3.5 of the Plan, the term
"Participant" means an Employee (i) who is a participant in the LTIP Plan, (ii)
who, both at the time the deferral election is required and at the time the
deferral becomes effective, is either a U.S. citizen, a nonresident alien who is
covered on a U.S. payroll or a citizen or resident of the United Kingdom
(referred to herein as the "UK Participants"), Brazil, Italy or Mexico and (iii)
whose total annual Compensation from the Controlled Group for the Plan Year in
which a deferral election
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is required was at least $100,000 (U.S.). In addition, the Employee must either
be an active Employee at the time the deferral becomes effective or must have
"Retired" as such term is defined in the LTIP Plan.
(e) For purposes of Section 3.6 of the Plan, the term
"Participant" means any person who was entitled to receive benefits under the
Yale Short-Term Plan on August 31, 1999.
(f) The term "Participant" shall also include any other person
who, as of August 31, was entitled to receive an Excess Retirement Benefit under
the Plan.
SECTION 2.13 PLAN shall mean the NACCO Materials Handling Group, Inc.
Unfunded Benefit Plan, as herein set forth or as duly amended.
SECTION 2.14 PLAN ADMINISTRATOR shall mean the Company.
SECTION 2.15 PLAN YEAR shall mean the calendar year.
SECTION 2.16 PRIOR PLAN shall mean the Yale Materials Handling
Corporation Unfunded Deferred Compensation Plan.
SECTION 2.17 PROFIT SHARING EMPLOYEE shall mean an Employee of an
Employer who is a participant in the Profit Sharing Plan and who is eligible for
Profit Sharing Contributions.
SECTION 2.18 PROFIT SHARING PLAN shall mean the NACCO Materials
Handling Group, Inc. Profit Sharing Plan or any successor thereto.
SECTION 2.19 UNFORESEEABLE EMERGENCY shall mean an event which results
(or will result) in severe financial hardship to the Participant as a
consequence of an unexpected illness or accident or loss of the Participant's
property due to casualty or other similar extraordinary or unforeseen
circumstances out of the control of the Participant.
SECTION 2.20 VALUATION DATE shall mean the last day of each Plan Year
and any other date chosen by the Plan Administrator.
SECTION 2.21 YALE SHORT-TERM PLAN shall mean the Yale Materials
Handling Corporation Short-Term Incentive Compensation Deferral Plan, a plan
that was frozen prior to 1992. The Yale
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Short-Term Plan was merged into the Plan effective August 31, 1999.
ARTICLE III
EXCESS RETIREMENT BENEFITS
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SECTION 3.1 EXCESS PROFIT SHARING BENEFITS.
(a) IN GENERAL. Each Employer shall credit to a Sub-Account
(the "Excess Profit Sharing Sub-Account") established for each Participant who
is both an Employee of such Employer and a Profit Sharing Employee, an amount
equal to the excess, if any, of (i) the amount of the Employer's Profit Sharing
Contribution which would have been made to the profit sharing portion of the
Profit Sharing Plan on behalf of the Participant if (1) such Plan did not
contain the limitations imposed under Sections 401(a)(17) and 415 of the Code
and (2) the term "Compensation" (as defined in Section 2.5 hereof) were used for
purposes of determining the amount of profit sharing contributions under the
Profit Sharing Plan, OVER (ii) the amount of the Employer's Profit Sharing
Contribution which is actually made to such Plan on behalf of the Participant
for such Plan Year (the "Excess Profit Sharing Benefits").
(b) MINIMUM BENEFIT. Notwithstanding the foregoing, the Excess
Profit Sharing Sub-Account balance of a Participant who was a participant in the
Prior Plan shall in no event be less than the amount credited to such
Participant's account under the Prior Plan as of February 10, 1993.
SECTION 3.2 BASIC AND ADDITIONAL EXCESS DEFERRAL BENEFITS.
(a) PRE-1996 EXCESS DEFERRAL BENEFITS. Prior to January 1,
1996, certain Employees of the Company were permitted to elect to defer
specified amounts of salary and bonus of up to 7% of compensation (the "Basic
Excess Deferrals") which are credited to the Basic Excess Deferral Sub-Account
hereunder and in excess of 7% of compensation (the "Additional Excess
Deferrals") which are credited to the Additional Excess Deferral Sub-Account
hereunder.
(b) POST-1999 EXCESS DEFERRAL BENEFITS. Each Participant
described in Section 2.14(c)(ii) may, prior to the first day of any Plan Year,
by completing an approved deferral election form, direct the Company to reduce
his Compensation for such Plan Year by an amount equal to between 1% and 17% of
his Compensation for the Plan Year (in 1% increments). The first 7%
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of Compensation deferred by a Participant will be classified as the Basic Excess
Deferrals which are credited to the Basic Excess Deferrals Sub-Account and
Compensation deferred in excess of 7% of Compensation will be classified as the
Additional Excess Deferrals and will be credited to the Additional Excess
Deferral Sub-Account.
SECTION 3.3 BASIC AND ADDITIONAL EXCESS 401(k) BENEFITS.
(a) AMOUNT OF EXCESS 401(k) BENEFITS. Each 401(k) Employee who
is a Participant, may, prior to the first day of any Plan Year, by completing an
approved deferral election form, direct his Employer to reduce his Compensation
for such Plan Year by an amount equal to the difference between (i) a specified
percentage, in 1% increments, with a maximum of 17%, of his Compensation for the
Plan Year, and (ii) the maximum Before-Tax Contributions actually permitted to
be contributed for him to the Profit Sharing Plan for such Plan Year by reason
of the application of the limitations under Sections 402(g), 401(a)(17), and
401(k)(3) of the Code (which amounts shall be referred to as the "Excess 401(k)
Benefits").
(b) CLASSIFICATION OF EXCESS 401(k) BENEFITS. The Excess
401(k) Benefits for a particular Plan Year shall be calculated monthly and shall
be further divided into the "Basic Excess 401(k) Benefits" and the "Additional
Excess 401(k) Benefits" as follows:
(i) The Basic Excess 401(k) Benefits shall be determined by
multiplying each Excess 401(k) Benefit by a fraction,
the numerator of which is the lesser of the percentage
of Compensation elected to be deferred in the 401(k)
Deferral Election Form for such Plan Year or 7% and the
denominator of which is the percentage of Compensation
elected to be deferred; and
(ii) The Additional Excess 401(k) Benefits (if any) shall be
determined by multiplying each Excess 401(k) Benefit by
a fraction, the numerator of which is the difference
between (1) the percentage of Compensation elected to
be deferred in the 401(k) Deferral Election Form for
such Plan Year and (2) 7%, and the denominator of which
is the percentage of Compensation elected to be
deferred.
The Basic Excess 401(k) Benefits shall be credited to the Basic Excess 401(k)
Sub-Account under this Plan and the Additional
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Excess 401(k) Benefits shall be credited to the Additional Excess 401(k)
Sub-Account hereunder.
SECTION 3.4 EXCESS MATCHING BENEFITS. A 401(k) Employee who is a
Participant shall have credited to his Basic or Additional Excess Matching
Sub-Account (as applicable) an amount equal to the Matching Employer
Contributions attributable to the Basic or Additional Excess 401(k) Benefits
that he is prevented from receiving under the Profit Sharing Plan because of the
limitations of Code Sections 402(g), 401(a)(17), 401(k)(3) and 401(m) of the
Code (the "Excess Matching Benefits").
SECTION 3.5 LTIP DEFERRAL BENEFITS. (a) Each Participant (as defined in
Section 2.12(d)) may, with the consent of the Company, by completing an approved
deferral election form, direct his Employer:
(i) to reduce an "Award" (as that term is defined in the LTIP
Plan) which has been deferred until the tenth anniversary of the
"Grant Date" of such Award (as defined in the LTIP Plan)and
thereby extinguish his entitlement under the LTIP Plan to 100%
of such deferred Award; and
(ii) to credit the amount of the reduction (the "LTIP Deferral
Benefits") to the LTIP Deferral Sub-Account hereunder. Such
election must be made no later than one-year prior to the date
such Award would otherwise be payable to the Participant under
the LTIP Plan or(six months prior to Retirement, if later)or at
such other time as approved by the Company, in its sole and
absolute discretion.
(a) In addition, certain Awards which were deferred under the
LTIP Plan will automatically be transferred to this Plan in the case of a
Participant's "Retirement" (as defined in the LTIP Plan) in which case such
Awards will also be credited to the Participant's LTIP Deferral Sub-Account
hereunder.
SECTION 3.6 YALE SHORT-TERM DEFERRAL BENEFITS. Prior to 1992, certain
Employees of a corporate predecessor to the Company were permitted to elect to
defer specified amounts of their short-term incentive compensation under the
Yale Short-Term Plan. Effective August 31, 1999, the Yale Short-Term Plan was
merged into the Plan and amounts credited under the Yale Short-Term Plan were
credited to the "Yale Short-Term Deferral Sub-Account" hereunder.
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SECTION 3.7 RULES RELATING TO DEFERRAL ELECTIONS.
(a) DEFERRAL PERIOD.
(i) GENERAL RULE. The initial deferral elections made by a
Participant under Sections 3.2, 3.3 and 3.5 above shall also
contain such Participant's irrevocable election regarding the
time of the commencement of payment of the Participant's
entire Excess Deferral Sub-Account, Excess 401(k) Sub-Account
and LTIP Deferral Sub-Account hereunder. The Participant may
elect to commence payment of each such Sub-Account (with
separate elections being made for each such Sub-Account) as
soon as practicable following (A) the date on which he ceases
to be an Employee of the Controlled Group, (B) the date on
which he attains an age specified in the deferral form, or (C)
the earlier or later of such dates. Payment of the
Participant's Excess Matching Sub-Account shall be made at the
same time as the payment of the Participant's Excess 401(k)
Sub-Account. A Participant who does not timely and properly
file such an election form shall be deemed to have elected to
receive his Excess Deferral, Excess 401(k), Excess Matching
and LTIP Deferral Sub-Accounts as soon as practicable
following the date on which the Participant ceases to be an
Employee of the Controlled Group.
(ii) SPECIAL ONE-TIME ELECTION. Notwithstanding the foregoing,
due to administrative errors on the part of the Company,
Participants who are actively employed on a date to be
specified by the Company (which shall be after September 1,
2000 and prior to December 31,2000)shall be given a one-time
irrevocable election to determine the payment date of their
Excess Deferral Sub-Account, Excess 401(k) Sub-Account(and
corresponding Excess Matching Sub-Account) and LTIP Deferral
Sub-Account by filing a written election with the Plan
Administrator during a 45-day election period specified by the
Company. Such an election shall supersede any prior election.
A Participant who does not timely and properly file such an
election form shall be deemed to have elected to receive his
Excess Deferral, Excess 401(k), Excess Matching and LTIP
Deferral Sub-Accounts as soon as practicable following the
date on which the Participant ceases to be an Employee of the
Controlled Group.
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(b) EFFECT OF DEFERRAL ELECTIONS.
(i) Any direction by a Participant to defer Compensation under
Sections 3.2 or 3.3 shall be effective with respect to
Compensation otherwise payable to the Participant for the Plan
Year for which the deferral election form is effective and the
Participant shall not be eligible to receive such
Compensation. Instead, such amounts shall be credited to the
Participant's Excess Deferral or Excess 401(k) Sub-Account
hereunder (as applicable). Any such direction shall be
irrevocable with respect to Compensation earned for such Plan
Year, but shall have no effect on Compensation earned in
subsequent Plan Years. A new deferral election will be
required for each Plan Year under the Plan.
(ii) While separate deferral elections may be entered into
with respect to each Award payable under the LTIP Plan, any
direction by a Participant to defer receipt of a specific
Award and to receive LTIP Deferral Benefits in lieu thereof
shall be irrevocable with respect to that Award.
(c) AUTOMATIC TERMINATION OF DEFERRAL ELECTIONS.
(i) Except to the extent specifically provided in the LTIP
Plan to the contrary, a Participant's direction to defer
Compensation under Section 3.2 or 3.3, or to defer an Award
under the LTIP Plan under Section 3.5, shall automatically
terminate on the earlier of the date on which (A) the
Participant ceases employment with the Controlled Group, (B)
the Participant ceases to satisfy the applicable requirements
of Section 2.12, (3) the Participant's Employer is deemed
Insolvent or (4) the Plan is terminated.
(ii) The Plan Administrator may, in its sole and absolute
discretion, pursuant to nondiscriminatory rules adopted by the
Plan Administrator, reduce and/or cease the deferral of
Compensation and/or LTIP Deferral Benefits being made by one
or more Participants, to the extent deemed necessary or
desirable in order to satisfy the requirements of any
applicable law (including, without limitation, federal
securities laws).
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(iii) Any Participant whose eligibility to make Before-Tax
Contributions to the Profit Sharing Plan has been suspended
because he has taken a Hardship withdrawal from such plan
shall not be eligible to defer Excess 401(k) Benefits under
this Plan for his period of suspension from the Profit Sharing
Plan.
ARTICLE IV
ACCOUNTS
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SECTION 4.1 PARTICIPANTS' ACCOUNTS. Each Employer shall establish and
maintain on its books an Account for each Participant which shall contain the
following entries:
(a) Credits to an Excess Profit Sharing Sub-Account for the
Excess Profit Sharing Benefits described in Section 3.1, which shall be credited
to the Sub-Account at the time the Profit Sharing Contributions are otherwise
credited to Participants' accounts under the Profit Sharing Plan.
(b) Credits to a Basic or Additional Excess Deferral
Sub-Account for the Basic and Additional Excess Deferrals described in Section
3.2 which shall be credited to the Sub-Account as soon as practicable after the
time Compensation would otherwise have been paid to the Participant.
(c) Credits to a Basic or Additional Excess 401(k) Sub-Account
for the Basic and Additional Excess 401(k) Benefits described in Section 3.3,
which shall be credited to the Sub-Account when a 401(k) Employee is prevented
from making a Before-Tax Contribution under the Profit Sharing Plan.
(d) Credits to a Basic or Additional Excess Matching
Sub-Account for the Basic and Additional Excess Matching Benefits described in
Section 3.4, which amounts shall be credited to the Sub-Account when a 401(k)
Employee is prevented from receiving Matching Employer Contributions under the
Profit Sharing Plan.
(e) Credits to an LTIP Deferral Sub-Account for the LTIP
Deferral Benefits described in Section 3.5, which shall be credited to the
Sub-Account as soon as practicable following the time the Award would otherwise
be payable to the Participant under the LTIP Plan.
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(f) Credits to a Yale Short-Term Deferral Sub-Account for the
Yale Short-Term Deferral Benefits described in Section 3.6.
(g) Credits to all Sub-Accounts for the earnings described in
Article V, which shall continue until the such Sub-Accounts have been
distributed to the Participant or his Beneficiary.
(h) Debits for any distributions made from the Sub-Accounts
and any amounts forfeited under Section 7.1(f).
SECTION 4.2 EFFECT ON OTHER BENEFITS. Benefits payable to or with
respect to a Participant under the Profit Sharing Plan or any other Employer
sponsored (qualified or nonqualified) plan, if any, are in addition to those
provided under this Plan.
ARTICLE V
EARNINGS
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SECTION 5.1 EARNINGS ON BASIC SUB-ACCOUNTS AND PROFIT SHARING
SUB-ACCOUNTS.
(a) Subject to Subsection (b) and Section 5.4, at the end of
each calendar month during a Plan Year, the Excess Profit Sharing Sub-Account,
Basic Excess Deferral Sub-Account, Basic Excess 401(k) Sub-Account and Basic
Excess Matching Sub-Account of each Participant shall be credited with an amount
determined by multiplying such Participant's average Sub-Account balance during
such month by the blended rate earned during such month by the Fixed Income
Fund. Notwithstanding the foregoing, in the event that the Adjusted ROE
determined for such Plan Year that is applicable to the Participant exceeds the
rate credited to the Sub-Accounts under the preceding sentence, such
Sub-Accounts shall retroactively be credited with the difference between (i) the
amount determined under the preceding sentence, and (ii) the amount determined
by multiplying the Participant's average Sub-Account balance during each month
of such Plan Year by the Adjusted ROE determined for such Plan Year, compounded
monthly.
(b) The Adjusted ROE calculation described in Subsection (a)
shall be made during the month in which the Participant terminates employment
and shall be based on the year-to-date Adjusted ROE for the month ending prior
to the date the Participant terminated employment, as calculated by the
Participant's Employer. For any subsequent month following termination, such
Adjusted ROE calculation shall not apply. The Fixed Income Fund calculation
described above for the month in
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which the Participant receives a distribution from his Sub-Account shall be
based on the blended rate earned during the preceding month by the Fixed Income
Fund.
SECTION 5.2 EARNINGS ON ADDITIONAL SUB-ACCOUNTS AND THE YALE SHORT-TERM
SUB-ACCOUNT. Subject to Section 5.4, at the end of each calendar month during
the Plan Year, the Additional Excess Deferral Sub-Account, Additional Excess
401(k) Sub-Account, Additional Excess Matching Sub-Account and Yale Short-Term
Deferral Sub Account of each Participant shall be credited with an amount
determined by multiplying such Participant's average Sub-Account balance during
such month by the blended rate earned during such month by the Fixed Income
Fund. The earnings calculation for the month in which the Participant receives a
distribution from his Sub-Account shall be based on the blended rate earned
during the preceding month by the Fixed Income Fund.
SECTION 5.3 EARNINGS ON LTIP DEFERRAL SUB-ACCOUNTS. Subject to Section
5.4, at the end of each calendar month during a Plan Year, the LTIP Deferral
Sub-Account of each Participant shall be credited with an amount determined by
multiplying such Participant's average Sub-Account balance during such month by
the "10-Year U.S. Treasury Yield" plus 2.0%. For purposes hereof, the 10-Year
U.S. Treasury Yield shall be the 10 year yield on U.S. Treasury issues as listed
in the Bond Market Data Bank for the last day of the preceding calendar quarter
as printed in the Wall Street Journal. In the event that a yield is not listed
for a maturity exactly 10 years from the calendar quarter end, the next
preceding chronological treasury bond issue yield shall be used.
SECTION 5.4 CHANGES IN/LIMITATIONS ON EARNINGS ASSUMPTION.
(a) The NACCO Industries, Inc. Benefits Committee (the
"Committee") may change (but not suspend) the earnings rate credited on Accounts
under the Plan at any time upon at least 30 days advance notice to Participants.
(b) Notwithstanding any provision of the Plan to the contrary,
in no event will earnings on Accounts for a Plan Year be credited at a rate
which exceeds 14%.
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ARTICLE VI
VESTING
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SECTION 6.1 VESTING. A Participant shall always be 100% vested in all
amounts credited to his Account hereunder. Notwithstanding the foregoing, while
Participants are always 100% vested in the amounts credited to their LTIP
Deferral Sub-Accounts, this does not give rise to any right or entitlement
(whether legal, equitable or otherwise) to payment or distribution otherwise
than in accordance with Article VII or Article VIII of the Plan.
ARTICLE VII
DISTRIBUTION OF BENEFITS TO PARTICIPANTS
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SECTION 7.1 TIME AND MANNER OF PAYMENT.
(a) EXCESS PROFIT SHARING BENEFITS. The Excess Profit Sharing
Benefit payable to a Participant shall be paid in the form of a single lump sum
payment as soon as practicable following the later of (i) his termination of
employment with the Controlled Group or (ii) the date on which all amounts
allocable to the Participant's Excess Profit Sharing Sub-Account for the year of
such termination have been credited to such Sub-Account.
(b) EXCESS DEFERRAL SUB-ACCOUNT, EXCESS 401(K) SUB-ACCOUNT,
EXCESS MATCHING SUB-ACCOUNT AND LTIP DEFERRAL SUB-ACCOUNT.
(i) TIMING. Each of the Sub-Accounts named in this Subsection
(b)shall be paid (or commence to be paid) to the Participant
at the time specified in the deferral election form applicable
to such Sub-Account (as provided in Section 3.7).
(ii) NORMAL FORM OF PAYMENT. Each such Sub-Account shall be
distributed to the Participant in the form of ten annual
installments. All installment payments under the Plan shall be
based on the value of the particular Sub-Account on the
Valuation Date immediately preceding the date such installment
is to be paid, with each installment being a fraction of such
value in which the numerator is one and the denominator is the
total number of remaining installments to be paid. The first
installment payment shall be paid as soon as practicable after
the designated payment date, with each additional
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installment being paid in the month of January of each
succeeding calendar year.
(iii) OPTIONAL FORMS OF PAYMENT. Notwithstanding the
foregoing, the Participant may elect to receive the amount
credited to a particular Sub-Account in the form of a single
lump sum payment or in annual installments for a period of
less than 10 years by filing a notice in writing, signed by
the Participant and filed with the Plan Administrator while
the Participant is alive and at least one year prior to the
time he had elected to commence receiving payment of such
Sub-Account. Any such election of the form of benefit may be
changed at any time and from time to time, without the consent
of any other person, by filing a later election in writing
that is signed by the Participant and filed with the Plan
Administrator while the Participant is alive and at least one
year prior to the time he had elected to commence receiving
payment of such Sub-Account. Any such lump sum payment shall
be paid as soon as practicable following the later of (A) the
designated payment date or (B) the date on which all amounts
allocable to the particular Sub-Account for the year of such
termination have been credited to the such Sub-Account.
(c) YALE SHORT-TERM DEFERRAL SUB-ACCOUNT. The Yale Short-Term
Deferral Sub-Account shall commence to be paid to the Participant (i) in the
form of five annual installments with each installment being based on the value
of the Yale Short-Term Deferral Sub-Account on the Valuation Date preceding the
date on which such installment is to be paid and being a fraction of such value
in which the numerator is one and the denominator is the total number of
remaining installments to be paid, and (ii) commencing in the January following
the date on which the Participant ceases to be an Employee of the Controlled
Group. Subsequent installment payments shall be paid in each succeeding January.
(d) UNFORESEEABLE EMERGENCY DISTRIBUTIONS. Notwithstanding the
foregoing, an Employer may at any time, upon written request of the Participant,
cause to be paid to such Participant an amount equal to all or any part of the
Participant's Excess Deferral Sub-Account and/or Excess 401(k)Sub-Account and/or
Excess Matching Sub-Account if the Employer determines, in its absolute
discretion based on such reasonable evidence that it shall require, that such a
payment
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or payments is necessary for the purpose of alleviating the consequences of an
Unforeseeable Emergency occurring with respect to the Participant. Payments of
amounts because of an Unforeseeable Emergency shall be permitted only to the
extent reasonably necessary to satisfy the emergency need. Unforeseeable
Emergency distributions shall be paid to the Participant in the form of a lump
sum payment as soon as practicable after such distribution request is approved
and processed by the Employer.
(e) SMALL ACCOUNTS. Notwithstanding the foregoing payment
provisions:
(i) In the event that a Participant's total Account balance
does not exceed $50,000 on the date of the Participant's
termination of employment with the Controlled Group, such
Account shall automatically be paid to him in a single lump
sum payment as soon as practicable following the later of (A)
the date of his termination of employment with the Controlled
Group or (B) the date on which all amounts allocable to the
Participant's Account for the year of such termination have
been credited to his Account.
(ii) In no event will any installment payment under the Plan
be less than $10,000 and this $10,000 minimum installment
payment shall override and supercede any form of payment
election made by a Participant. In the event that any elected
installment payment would be less than $10,000, a Participant
shall automatically receive an installment payment equal to
the lesser of $10,000 or the balance of the particular
Sub-Account. Such $10,000 installment payments shall continue
in effect until the Sub-Account balance is exhausted.
(iii) These minimum payment provisions shall also apply to any
Account which is in pay status on September 1, 2000.
(f) WITHDRAWALS SUBJECT TO 10% PENALTY.
(i) The provisions of this Subsection shall apply
notwithstanding any other provision of the Plan to the
contrary; provided, however, that the provisions of this
Subsection shall not apply to the UK Participants.
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(ii) A Participant who is an Employee may, at any time (and
from time to time) elect in writing to receive a withdrawal
from one or more of the following Sub-Accounts:
(A) the Additional Excess Deferral Sub-Account;
(B) the Additional Excess 401(k) Sub-Account;
(C) the Additional Excess Matching Sub-Account;
(D) the Yale Short-Term Deferral Sub-Account;
and
(E) the LTIP Deferral Sub-Account.
(iii) In addition to the amounts described in (ii) above,
Participants who have previously elected to delay commencement
of the payment of such Sub-Accounts and who ceased to be
Employees of the Controlled Group may also elect in writing to
receive a withdrawal from one or more of the following
Sub-Accounts:
(A) the Basic Excess Deferral Sub-Account;
(B) the Basic Excess 401(k) Sub-Account; and
(C) the Basic Excess Matching Sub-Account.
(iv) Withdrawals under this Subsection (f) shall be equal to
value of the Sub-Account as of the Valuation Date preceding
the payment date, less 10%, and shall be paid to the
Participant in the form of a lump sum payment as soon as
practicable after such withdrawal request is processed by the
Employer. Such 10% reduction shall be treated as a forfeiture
hereunder and shall immediately be subtracted from the
applicable Sub-Account, never to be restored.
(g) PAYMENT RESTRICTION. Notwithstanding any provision of the
Plan to the contrary , the payment of all or any portion of the amounts payable
hereunder will be deferred to the extent that any amount payable, when added to
any other compensation received or to be received by the Participant in the same
calendar year, would not be deductible by the Employer by reason of Section
162(m) of the Code. The amount to be deferred will equal the amount that
otherwise would not be deductible by the Employer by reason of Section 162(m) of
the Code, but in no event greater than the total amount otherwise payable
hereunder. The deferred amount shall become payable on December 31 of the first
succeeding calendar year in which such amount, when added to all other
compensation received or to be received by the Participant in such calendar
year, would not be non-deductible by the Employer by reason of Section 162(m)of
the
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Code. The Nominating Organization and Compensation Committee of the Board of
Directors of the Company, in its sole and absolute discretion, shall have the
authority to waive this payment restriction (in whole or in part) upon the
written request of the Participant.
SECTION 7.2 LIABILITY FOR PAYMENT/EXPENSES. Each Employer shall be
liable for the payment of the Excess Retirement Benefits which are payable
hereunder to its Employees. Expenses of administering the Plan shall be paid by
the Employers, as directed by the Company.
ARTICLE VIII
BENEFICIARIES
-------------
SECTION 8.1 BENEFICIARY DESIGNATIONS. A designation of a Beneficiary
hereunder may be made only by an instrument (in form acceptable to the Plan
Administrator) signed by the Participant and filed with the Plan Administrator
prior to the Participant's death. Separate Beneficiary designations may be made
for each Benefit under the Plan. In the absence of such a designation and at any
other time when there is no existing Beneficiary designated hereunder, (a) the
Beneficiary of a Participant for his Excess 401(k) Benefits, his Excess Matching
Benefits and his Excess Profit Sharing Benefits shall be his beneficiary under
the Profit Sharing Plan, and (b) the Beneficiary of a Participant for his Excess
Deferral Benefits, his LTIP Deferral Benefits and his Yale Short-Term Benefits
shall be his surviving spouse or, if none, his estate. A person designated by a
Participant as his Beneficiary who or which ceases to exist shall not be
entitled to any part of any payment thereafter to be made to the Participant's
Beneficiary unless the Participant's designation specifically provided to the
contrary. If two or more persons designated as a Participant's Beneficiary are
in existence with respect to a single Sub-Account, the amount of any payment to
the Beneficiary under this Plan shall be divided equally among such persons
unless the Participant's designation specifically provides for a different
allocation.
SECTION 8.2 CHANGE IN BENEFICIARY. (a) Anything herein or in the Profit
Sharing Plan to the contrary notwithstanding, a Participant may, at any time and
from time to time, change a Beneficiary designation hereunder without the
consent of any existing Beneficiary or any other person. A change in Beneficiary
hereunder may be made regardless of whether such a change is also made under the
Profit Sharing Plan. In other
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words, the Beneficiary hereunder need not be the same as under the Profit
Sharing Plan.
(a) Any change in Beneficiary shall be made by giving written notice thereof to
the Employer or Plan Administrator and any change shall be effective only if
received prior to the death of the Participant.
SECTION 8.3 DISTRIBUTIONS TO BENEFICIARIES.
(a) AMOUNT OF BENEFITS. Excess Retirement Benefits payable
to a Participant's Beneficiary under this Plan shall be
equal to the balance in the applicable Sub-Account of
such Participant on the Valuation Date preceding the
date of the distribution of the Sub-Account to the
Beneficiary.
(b) TIME OF PAYMENT. Excess Retirement Benefits payable to
a Beneficiary under this Plan shall be paid as soon as
practicable following the death of the Participant.
(c) FORM OF PAYMENT. All Benefits payable to a Beneficiary
hereunder shall be paid in the form of a lump sum
payment.
ARTICLE IX
MISCELLANEOUS
-------------
SECTION 9.1 LIABILITY OF EMPLOYERS. Nothing in this Plan shall
constitute the creation of a trust or other fiduciary relationship between an
Employer and any Participant, Beneficiary or any other person.
SECTION 9.2 LIMITATION ON RIGHTS OF PARTICIPANTS AND BENEFICIARIES - NO
LIEN.
(a) This Plan is designed to be an unfunded, nonqualified
plan. Nothing contained herein shall be deemed to create a trust or lien in
favor of any Participant or Beneficiary on any assets of an Employer. The
Employers shall have no obligation to purchase any assets that do not remain
subject to the claims of the creditors of the Employers for use in connection
with the Plan. No Participant or Beneficiary or any other person shall have any
preferred claim on, or any beneficial ownership interest in, any assets of the
Employers prior to the time that such assets are paid to the Participant
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or Beneficiary as provided herein. Each Participant and Beneficiary shall have
the status of a general unsecured creditor of his Employer. The amount standing
to the credit of any Participant's Sub-Account is purely notional and affects
only the calculation of benefits payable to or in respect of him. It does not
give the Participant any right or entitlement (whether legal, equitable or
otherwise) to any particular assets held for the purposes of the Plan or
otherwise.
(b) Notwithstanding any provision of the Plan to the contrary,
an Employer shall not be required to make any payment hereunder to any
Participant or Beneficiary if the Employer is Insolvent at the time such payment
is due to be made.
SECTION 9.3 NO GUARANTEE OF EMPLOYMENT. Nothing in this Plan shall be
construed as guaranteeing future employment to Participants. A Participant
continues to be an Employee of an Employer solely at the will of such Employer
subject to discharge at any time, with or without cause.
SECTION 9.4 PAYMENT TO GUARDIAN. If a Benefit payable hereunder is
payable to a minor, to a person declared incompetent or to a person incapable of
handling the disposition of his property, the Plan Administrator may direct
payment of such Benefit to the guardian, legal representative or person having
the care and custody of such minor, incompetent or person. The Plan
Administrator may require such proof of incompetency, minority, incapacity or
guardianship as it may deem appropriate prior to distribution of the benefit.
Such distribution shall completely discharge the Employers from all liability
with respect to such Benefit.
SECTION 9.5 ASSIGNMENT. (a) Subject to Subsection (b), no right or
interest under this Plan of any Participant or Beneficiary shall be assignable
or transferable in any manner or be subject to alienation, anticipation, sale,
pledge, encumbrance or other legal process or in any manner be liable for or
subject to the debts or liabilities of the Participant or Beneficiary.
(b) Notwithstanding the foregoing, the Plan Administrator
shall honor a judgment, order or decree from a state domestic relations court
which requires the payment of all or a part of a Participant's or Beneficiary's
vested interest under this Plan to an "alternate payee" as defined in Code
Section 414(p).
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SECTION 9.6 SEVERABILITY. If any provision of this Plan or the
application thereof to any circumstance(s) or person(s) is held to be invalid by
a court of competent jurisdiction, the remainder of the Plan and the application
of such provision to other circumstances or persons shall not be affected
thereby.
ARTICLE X
ADMINISTRATION OF PLAN
----------------------
SECTION 10.1 ADMINISTRATION. (a) IN GENERAL. The Plan shall be
administered by the Plan Administrator. The Plan Administrator shall have
discretion to interpret where necessary all provisions of the Plan (including,
without limitation, by supplying omissions from, correcting deficiencies in, or
resolving inconsistencies or ambiguities in, the language of the Plan), to make
factual findings with respect to any issue arising under the Plan, to determine
the rights and status under the Plan of Participants or other persons, to
resolve questions (including factual questions) or disputes arising under the
Plan and to make any determinations with respect to the benefits payable under
the Plan and the persons entitled thereto as may be necessary for the purposes
of the Plan. Without limiting the generality of the foregoing, the Plan
Administrator is hereby granted the authority (i) to determine whether a
particular employee is a Participant, and (ii) to determine if a person is
entitled to Benefits hereunder and, if so, the amount and duration of such
Benefits. The Plan Administrator's determination of the rights of any person
hereunder shall be final and binding on all persons, subject only to the
provisions of Sections 10.3 and 10.4 hereof.
(b) DELEGATION OF DUTIES. The Plan Administrator may delegate
any of its administrative duties, including, without limitation, duties with
respect to the processing, review, investigation, approval and payment of
Benefits, to a named administrator or administrators.
SECTION 10.2 REGULATIONS. The Plan Administrator shall promulgate any
rules and regulations it deems necessary in order to carry out the purposes of
the Plan or to interpret the provisions of the Plan; provided, however, that no
rule, regulation or interpretation shall be contrary to the provisions of the
Plan. The rules, regulations and interpretations made by the Plan Administrator
shall, subject only to the provisions of Sections 10.3 and 10.4 hereof, be final
and binding on all persons.
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SECTION 10.3 CLAIMS PROCEDURES. The Plan Administrator shall determine
the rights of a person to any Benefits hereunder. Any person who believes that
he has not received the Benefits to which he is entitled under the Plan may file
a claim in writing with the Plan Administrator. The Plan Administrator shall, no
later than 90 days after the receipt of a claim (plus an additional period of 90
days if required for processing, provided that notice of the extension of time
is given to the claimant within the first 90 day period), either allow or deny
the claim in writing. If a claimant does not receive written notice of the Plan
Administrator's decision on his claim within the above-mentioned period, the
claim shall be deemed to have been denied in full.
A denial of a claim by the Plan Administrator, wholly or
partially, shall be written in a manner calculated to be understood by the
claimant and shall include:
(a) the specific reasons for the denial;
(b) specific reference to pertinent Plan provisions on
which the denial is based;
(c) a description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why such material or information is
necessary; and
(d) an explanation of the claim review procedure.
A claimant whose claim is denied (or his duly authorized
representative) may within 60 days after receipt of denial of a claim file with
the Plan Administrator a written request for a review of such claim. If the
claimant does not file a request for review of his claim within such 60-day
period, the claimant shall be deemed to have acquiesced in the original decision
of the Plan Administrator on his claim. If such an appeal is so filed within
such 60 day period, the Company (or its delegate) shall conduct a full and fair
review of such claim. During such review, the claimant shall be given the
opportunity to review documents that are pertinent to his claim and to submit
issues and comments in writing. For this purpose, the Company (or its delegate)
shall have the same power to interpret the Plan and make findings of fact
thereunder as is given to the Plan Administrator under Section 10.1(a) above.
The Company shall mail or deliver to the claimant a written
decision on the matter based on the facts and the
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pertinent provisions of the Plan within 60 days after the receipt of the request
for review (unless special circumstances require an extension of up to 60
additional days, in which case written notice of such extension shall be given
to the claimant prior to the commencement of such extension). Such decision
shall be written in a manner calculated to be understood by the claimant, shall
state the specific reasons for the decision and the specific Plan provisions on
which the decision was based and shall, to the extent permitted by law, be final
and binding on all interested persons. If the decision on review is not
furnished to the claimant within the above-mentioned time period, the claim
shall be deemed to have been denied on review.
SECTION 10.4 REVOCABILITY OF PLAN ADMINISTRATOR/COMPANY ACTION. Any
action taken by the Plan Administrator or the Company with respect to the rights
or benefits under the Plan of any person shall be revocable by the Plan
Administrator or the Company as to payments not yet made to such person, and
acceptance of any Benefits under the Plan constitutes acceptance of and
agreement to the Plan Administrator's or the Company's making any appropriate
adjustments in future payments to such person (or to recover from such person)
any excess payment or underpayment previously made to him.
SECTION 10.5 AMENDMENT. The Committee may at any time (without the
consent of any Employer) amend any or all of the provisions of this Plan, except
that (a) no such amendment may adversely affect any Participant's vested Benefit
as of the date of such amendment, and (b) no such amendment may suspend the
crediting of earnings on the balance of a Participant's Account, until the
entire balance of such Account has been distributed, in either case, without the
prior written consent of the affected Participant. Any amendment shall be in the
form of a written instrument executed by an officer of the Company on the order
of the Committee. Subject to the foregoing provisions of this Section, such
amendment shall become effective as of the date specified in such instrument or,
if no such date is specified, on the date of its execution.
SECTION 10.6 TERMINATION.
(a) The Company (without the consent of any Employer), in its
sole discretion, may terminate this Plan at any time and for any reason
whatsoever, except that, subject to Subsection (b) hereof, (i) no such
termination may adversely affect any Participant's vested Benefit as of the date
of such termination and (ii) no such termination may suspend the crediting of
earnings on the balance of a Participant's Account,
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until the entire balance of such Account has been distributed, in either case,
without the prior written consent of the affected Participant. Any such
termination shall be expressed in the form of a written instrument executed by
an officer of the Company on the order of the Company. Subject to the foregoing
provisions of this Section, such termination shall become effective as of the
date specified in such instrument or, if no such date is specified, on the date
of its execution. Written notice of any termination shall be given to the
Participants as soon as practicable after the instrument is executed.
(b) Notwithstanding anything in the Plan to the contrary, in
the event of a termination of the Plan (or any portion thereof), the Company, in
its sole and absolute discretion, shall have the right to change the time and
form of distribution of Participants' Excess Retirement Benefits including
requiring that all amounts credited to Participant's Account hereunder be
immediately distributed in the form of lump sum payments.
SECTION 10.7 WITHDRAWAL BY EMPLOYER. Any Employer (other than the
Company) which adopts this Plan may elect separately to withdraw from such Plan
and such withdrawal shall constitute a termination of the Plan as to it;
provided, however, that (a) such terminating Employer shall continue to be an
Employer for the purposes hereof as to Participants or Beneficiaries to whom it
owes obligations hereunder, and (b) such termination shall be subject to the
limitations and other conditions described in Section 10.6, treating the
Employer as if it were the Company.
EXECUTED, this 8th day of August, 2000.
--- ------
NACCO MATERIALS HANDLING
GROUP, INC.
By: /s/ Charles A. Bittenbender
----------------------------
Title: Assistant Secretary
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EXHIBIT A
---------
Employees Eligible to Make Post-1999 Excess Deferrals
-----------------------------------------------------
INTENTIONALLY OMITTED