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Exhibit 10 (cxxv)
THE HAMILTON BEACH/PROCTOR-SILEX, INC.
UNFUNDED BENEFIT PLAN
(AS AMENDED AND RESTATED EFFECTIVE NOVEMBER 1, 2000)
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HAMILTON BEACH/PROCTOR-SILEX, INC.
UNFUNDED BENEFIT PLAN
Hamilton Beach/Proctor-Silex, Inc. (the "Company") does hereby amend
and completely restate the Hamilton Beach/Proctor-Silex, Inc. Unfunded Benefit
Plan to read as follows, effective November 1, 2000.
ARTICLE I
PREFACE
SECTION 1.1 EFFECTIVE DATE. The original effective date of this Plan
was March 10, 1993. The effective date of this amendment and restatement is
November 1, 2000.
SECTION 1.2 PURPOSE OF THE PLAN. The purpose of this Plan is to provide
for certain Employees (a) the benefits they would have received under the Cash
Balance Plan but for (i) the dollar limitation on Compensation taken into
account as a result of Section 401(a)(17) of the Code, and (ii) the limitations
imposed under Section 415 of the Code, and/or (b) the benefits they would have
received under the Savings Plan but for the limitations imposed under Section
402(g), 401(m), 401(a)(17), 401(k)(3) or 415 of the Code.
SECTION 1.3 GOVERNING LAW. This Plan shall be regulated, construed and
administered under the laws of the State of Ohio, 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
Except as otherwise provided in this Plan, terms defined in the
Qualified Plans as they 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.
SECTION 2.1 ACCOUNT shall mean the record maintained by the Company in
accordance with Section 3.5 as the sum of the Participant's Excess Profit
Sharing Sub-Account, Basic Excess 401(k) Sub-Account, Basic Excess Matching
Sub-Account, Additional Excess 401(k) Sub-Account and Additional Excess Matching
Sub-Account.
SECTION 2.2 ADJUSTED ROE.
(a) For purposes of this Section, the following terms shall have the
following meanings:
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(i) "NET INCOME (BEFORE EXTRAORDINARY ITEMS)" is defined as
consolidated net income, as defined by general accepted accounting principals
("GAAP"), for the Company 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.
(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 (Shareholders' Equity + Accumulated
Amortization of Goodwill)
Adjusted ROE shall be determined at least annually by the Company.
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 VII hereof.
SECTION 2.4 CASH BALANCE EMPLOYEE shall mean a participant in the Cash
Balance Plan.
SECTION 2.5 CASH BALANCE PLAN shall mean Part II of the Combined
Defined Benefit Plan for NACCO Industries, Inc. and Its Subsidiaries (commonly
known as the "Hamilton Beach/Proctor-Silex, Inc. Profit Sharing Retirement
Plan") (or any successor thereto), as the same may be amended from time to time.
Benefits under the Cash Balance Plan were permanently frozen effective for Plan
Years beginning on or after January 1, 1997.
SECTION 2.6 COMPANY shall mean Hamilton Beach/ Proctor-Silex, Inc.
SECTION 2.7 COMPENSATION. For purposes of Sections 3.2 and 3.3 of the
Plan, the term "Compensation" shall have the same meaning as under the Savings
Plan, except that Compensation shall be deemed to include (a) the amount of
compensation deferred by the Participant under this Plan and (b) amounts in
excess of the limitation imposed by Code Section 401(a)(17).
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SECTION 2.8 EXCESS RETIREMENT BENEFIT OR BENEFIT shall mean an Excess
Pension Benefit, an Excess Profit Sharing Benefit, a Basic or Additional Excess
401(k) Benefit or a Basic or Additional Excess Matching Benefit (as described in
Article III) which is payable to or with respect to a Participant under this
Plan.
SECTION 2.9 FIXED INCOME FUND shall mean the Stable Asset Fund under
the Savings 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 2.10 SECTION 2.10. 401(k) EMPLOYEE shall mean a participant in
the Savings Plan who is eligible for Before-Tax and Matching Employer
Contributions thereunder.
SECTION 2.11 INSOLVENT. For purposes of this Plan, the Company 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 pending voluntary or involuntary proceeding as a
debtor under the United States Bankruptcy Code.
SECTION 2.12 Participant.
(a) For purposes of Section 3.1 of the Plan, the term "Participant"
shall mean a Cash Balance Employee whose benefit under the Cash Balance Plan is
limited by the application of Section 401(a)(17) or 415 of the Code.
(b) For purposes of Section 3.2 of the Plan, the term "Participant"
shall mean a Profit Sharing Employee (i) whose Post-1996 Profit Sharing
Contributions for a Plan Year are limited by the application of Section
401(a)(17) or 415 of the Code and (ii) who is classified in job grades 17 or
above.
(c) For purposes of Sections 3.3 and 3.4 of the Plan, the term
"Participant" shall mean a 401(k) Employee (i) who is unable to make all of the
Before-Tax Contributions that he has elected to make to the Savings Plan, or who
is unable to receive the maximum amount of Post-1994 Matching Employer
Contributions under the Savings Plan, because of the limitations imposed under
Section 402(g), 401(a)(17), 401(k)(3) or 401(m) of the Code and (ii) who is
classified in job grades 17 or above.
(d) The term "Participant" shall also include any other person who, as
of October 31, 2000, was entitled to receive a Benefit under the Plan.
SECTION 2.13 PLAN shall mean the Hamilton Beach/Proctor-Silex, 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.
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SECTION 2.16 PROFIT SHARING EMPLOYEE shall mean a participant in the
Savings Plan who is eligible for Post-1996 Profit Sharing Contributions.
SECTION 2.17 QUALIFIED PLAN shall mean (a) for Cash Balance Employees,
the Cash Balance Plan, (b) for Profit Sharing Employees, the profit-sharing
portion of the Savings Plan and (c) for 401(k) Employees, the Before-Tax
Contributions and Matching Employer Contributions portion of the Savings Plan.
References throughout this Plan to a "Qualified Plan" shall be deemed to refer
to the underlying Qualified Plan to which a particular Benefit relates.
SECTION 2.18 SAVINGS PLAN shall mean the Hamilton Beach/Proctor-Silex,
Inc. Employees' Retirement Savings Plan (401(k)), as the same may be amended
from time to time, 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 business day of each
Plan Year and any other date chosen by the Plan Administrator.
ARTICLE III
EXCESS RETIREMENT BENEFITS
SECTION 3.1 EXCESS PENSION BENEFITS. The Excess Pension Benefit payable
to a Participant who is a Cash Balance Employee shall be a monthly benefit equal
to the excess, if any, of (a) the amount of the monthly benefit that would be
payable to such Participant under the Cash Balance Plan (in the form actually
paid) if such Plan did not contain the limitations imposed under Sections
401(a)(17) and 415 of the Code and, effective as of January 1, 1995, the
definition of Compensation under such Plan included any amounts deferred under
Section 3.3 of this Plan, OVER (b) the amount of the monthly benefit that is
actually payable to the Participant under the Cash Balance Plan.
SECTION 3.2 EXCESS PROFIT SHARING BENEFITS. At the time described in
Section 3.5(a), the Company shall credit to a Sub-Account (the "Excess Profit
Sharing Sub-Account") established for each Participant who is a Profit Sharing
Employee, an amount equal to the excess, if any, of (a) the amount of the
Company's Post-1996 Profit Sharing Contribution which would have been made to
the profit sharing portion of the Savings Plan on behalf of the Participant if
(i) such Plan did not contain the limitations imposed under Sections 401(a)(17)
and 415 of the Code and (ii) the term "Compensation" (as defined in Section 2.7
hereof) were used for purposes of determining the amount of profit sharing
contributions under the Savings Plan, OVER (b) the amount of the Company's
Post-1996 Profit Sharing Contribution which is actually made to the Savings Plan
on behalf of the Participant for such Plan Year (the "Excess Profit Sharing
Benefits").
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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 the Company to reduce his Compensation
for such Plan Year by 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 Savings Plan for such Plan Year by reason of the application of
the limitations imposed under Sections 402(g), 401(a)(17), or 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 such 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 Excess 401(k) Benefits shall be
credited to the Additional Excess 401(k) Sub-Account hereunder. The Basic and
Additional Excess 401(k) Sub-Accounts shall be referred to collectively as the
"Excess 401(k) Sub-Account."
(c) Rules Relating to Deferral Elections.
(i) DEFERRAL PERIOD/PAYMENT DATE. The initial deferral election
made by a Participant shall also contain the Participant's election
regarding the time of the commencement of payment of the Participant's
entire Excess 401(k) Sub-Account hereunder. The Participant may elect
to commence payment of his Excess 401(k) Sub-Account as soon as
practicable following (1) the date on which he ceases to be an Employee
of a Controlled Group Member, (2) January 1st of the year following the
date on which he ceases to be an Employee of a Controlled Group Member,
(3) the date on which he attains a specified age, or (4) the earlier or
later of such dates. A Participant who does not timely and properly
file such an election form shall be deemed to have elected to receive
his Excess 401(k) Sub-Account as soon as practicable following the date
on which he ceases to be an Employee of a Controlled Group Member.
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(ii) CHANGE OF PAYMENT DATE. Notwithstanding the foregoing, a
Participant who is an Employee may elect to change the payment date
selected (or deemed selected) for his Excess 401(k) Sub-Account to one
of the other dates permitted under (i) above; provided, however that
(1) the form electing such change is filed with the Plan Administrator
at least two (2) years prior to the original payment date and while the
Participant is an Employee, (2) the new payment date is at least two
(2) years after the date the form is filed and (3) the Participant
remains employed throughout such two (2) year period. Any election to
change the payment date which does not meet all of the foregoing
requirements shall not be valid and, in such case, payment shall be
made in accordance with the Participant's last effective payment date
election.
(iii) SPECIAL ELECTION. Due to administrative errors on the part of the
Company, all payment date elections which were made by Participants who
are actively employed by the Company on November 1, 2000 shall be
deemed null and void. Such Participants shall be given new payment date
election forms which must be completed during a 45-day election period
specified by the Company. Such elections shall supercede any prior
elections. Any such Participant who does not timely and properly file
such an election form shall be deemed to have elected to receive all
amounts credited to his Excess 401(k) Sub-Account (whether before or
after the Effective Date of this restatement of the Plan) as soon as
practicable following the date on which he ceases to be an Employee of
the Controlled Group; provided, however, that such a Participant may
elect to change such deemed payment date in accordance with the
requirements of (2) above.
(d) EFFECT AND DURATION OF DEFERRAL ELECTION. Any direction by a
Participant to make deferrals of Excess 401(k) Benefits hereunder shall be
effective with respect to Compensation otherwise payable to the Participant
during the Plan Year for which the 401(k) Deferral Election Form is in effect,
and the Participant shall not be eligible to receive such Excess 401(k)
Benefits. Instead, such amounts shall be credited to the Participant's Basic and
Additional Excess 401(k) Sub-Accounts (as applicable) as provided in Section
3.5(b). Any directions made in accordance with Subsection (a) above shall be
irrevocable and shall remain in effect for subsequent Plan Years unless changed
or terminated by the Participant for Plan Years commencing after such change or
termination, on the appropriate form provided by the Plan Administrator, prior
to the first day of such subsequent Plan Year.
(e) AUTOMATIC TERMINATION/SUSPENSION OF DEFERRAL ELECTION.
(i) A Participant's direction to make deferrals of Excess 401(k)
Benefits shall automatically terminate on the earlier of the date on which (1)
the Participant ceases employment with the Company, (2) the Company is deemed
Insolvent, (3) the Participant is no longer eligible to make deferrals of Excess
401(k) Benefits hereunder, or (4) the Plan is terminated.
(ii) Any Participant whose eligibility to make Before-Tax Contributions
to the Savings Plan has been suspended because he has taken a hardship
withdrawal from the Savings Plan shall not be eligible to make deferrals of
Excess 401(k) Benefits under this Plan for the period of his suspension from the
Savings Plan.
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(iii) 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 Excess 401(k) 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).
SECTION 3.4 Excess Matching Benefits.
(a) AMOUNT. A 401(k) Employee shall have credited to his Basic or
Additional Excess Matching Sub-Account (as applicable) an amount equal to the
Post-1994 Matching Employer Contributions attributable to the Basic or
Additional Excess 401(k) Benefits that he is prevented from receiving under the
Savings Plan because of the limitations imposed under Code Sections 402(g),
401(a)(17), 401(k)(3) and 401(m) (collectively, the "Excess Matching Benefits").
(b) TIME OF PAYMENT. The Excess Matching Benefits shall be paid (or
commence to be paid) at the same time as Participant's Excess 401(k) Benefits.
SECTION 3.5 PARTICIPANT'S ACCOUNT. The Company 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 3.2, which shall be credited to the
Sub-Account at the time the Profit Sharing Contributions are otherwise credited
to Participants' Accounts under the Savings Plan;
(b) Credits to a Basic or Additional Excess 401(k) Sub-Account (as
applicable) 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 Savings Plan;
(c) Credits to a Basic or Additional Excess Matching Sub-Account (as
applicable) for the Basic or Additional Excess Matching Benefits described in
Section 3.4, which shall be credited to the Sub-Account when a 401(k) Employee
is prevented from receiving Post-1994 Matching Employer Contributions under the
Savings Plan;
(d) Credits to all such Sub-Accounts for the earnings described in
Article IV, which shall continue until the Sub-Accounts have been distributed to
the Participant or his Beneficiary; and
(e) Debits for any distributions made from such Sub-Accounts and any
amounts forfeited under Section 6.1(d).
To the extent determined necessary by the Company, the Company may also
establish a "notional account" in the name of each Cash Balance Employee to
reflect the Excess Pension benefits payable to such Employees.
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SECTION 3.6 EFFECT ON OTHER BENEFITS. Benefits payable to or with
respect to a Participant under the Qualified Plans or any other
Company-sponsored (qualified or nonqualified) plan, if any, are in addition to
those provided under this Plan.
ARTICLE IV
EARNINGS
SECTION 4.1 Earnings on Basic 401(k) and Matching Sub-Accounts and
Profit Sharing Sub-Accounts.
(a) Subject to Subsection (b) and Section 4.3, at the end of each
calendar month during a Plan Year, the Excess Profit Sharing 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
exceeds the rate credited to the Sub-Accounts under the preceding sentence, such
Sub-Accounts shall retroactively be credited with the difference between (1) the
amount determined under the preceding sentence, and (2) 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 Company. For any
subsequent month, such Adjusted ROE calculation shall not apply. The Fixed
Income Fund calculation described above 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 4.2 EARNINGS ON ADDITIONAL 401(K) AND MATCHING SUB-ACCOUNTS.
Subject to Section 4.3, at the end of each calendar month during a Plan Year,
the Additional Excess 401(k) Sub-Account and Additional 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 earning 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 4.3 Changes in Limitations on Earnings Assumptions.
(a) The NACCO Industries, Inc. Benefits Committee (the "Committee") may
change (but not suspend) the earnings rate credited to Accounts hereunder 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 V
VESTING
SECTION 5.1 VESTING. A Participant shall always be 100% vested in all
amounts credited to his Account hereunder and in his Excess Pension Benefits.
ARTICLE VI
DISTRIBUTION OF BENEFITS TO PARTICIPANTS
SECTION 6.1 TIME AND MANNER OF PAYMENT.
(a) Excess Pension Benefits.
(i) TIMING. A Participant who is a Cash Balance Employee is required to
elect the time and manner of payment of his benefits under the Cash Balance Plan
before he will be eligible to receive payment of his Excess Pension Benefit
hereunder. The Excess Pension Benefit payable to a Participant shall be paid at
the same time or times and in the same manner as the benefits payable to the
Participant under the Cash Balance Plan.
(ii) FORM. Notwithstanding the foregoing, in the event that the monthly
payments of the Excess Pension Benefits payable to a Participant hereunder
following the Participant's termination of the employment with the Controlled
Group amount to less than Fifty Dollars ($50) per month, such Excess Pension
Benefits shall be paid in the form of a single lump sum payment. Such lump sum
amount shall be equal to the Actuarial Equivalent present value of such Excess
Pension Benefits.
(b) 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
at the time the corresponding Post-1996 Profit Sharing Contributions payable to
the Participant under the Savings Plan commence to be paid.
(c) EXCESS 401(k) AND MATCHING BENEFITS.
(i) TIMING. A Participant's Excess 401(k) Sub-Account and Excess
Matching Sub-Account shall be paid (or commence to be paid) to the Participant
as soon as practicable after the date specified in the Participant's last valid
election form (as provided in Section 3.3(c)).
(ii) NORMAL FORM OF PAYMENT. The Excess 401(k) Sub-Account and Excess
Matching Sub-Account shall each be distributed in the form of ten annual
installments with each installment being based on the value of the applicable
Sub-Account on the Valuation Date immediately preceding the date 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.
(iii) OPTIONAL FORMS OF PAYMENT. Notwithstanding the foregoing, the
Participant may elect to receive the amounts credited to his Excess 401(k)
Sub-Account and/or his Excess Matching 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
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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 payment 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 a Participant
and filed with the Plan Administrator while such Participant is alive and at
least one year prior to the time he had elected to commence receiving payment of
such Sub-Account.
(iv) UNFORESEEABLE EMERGENCY DISTRIBUTIONS. Notwithstanding the
foregoing, the Company 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 401(k) Sub-Account and/or Excess Matching Sub-Account if
the Company determines, in its absolute discretion based on such reasonable
evidence that it shall require, that such a payment 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.
(d) Withdrawals Subject to a 10% Penalty.
(i) The provisions of this Subsection shall apply notwithstanding any
other provision of the Plan to the contrary.
(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 401(k) Sub-Account; and
(B) the Additional Excess Matching Sub-Account.
(iii) In addition to the amounts described in (ii) above, Participants
who have 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 401(k) Sub-Account;
(B) the Basic Excess Matching Sub-Account; and
(C) the Excess Profit Sharing Sub-Account.
(iv) Withdrawals under this Subsection shall be equal to the entire
amount credited to any such Sub-Account, less 10%. Such 10% reduction shall be
treated as a forfeiture hereunder and shall immediately be subtracted from the
applicable Sub-Account, never to be restored.
(e) 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 Company
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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 Company 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 Company by reason of
Section 162(m) of the Code. The Nominating, Organization and Compensation
Committee of the Board of Directors, 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 6.2 SMALL SUB-ACCOUNTS. Notwithstanding the foregoing, in the
event that the Participant's Account does not exceed $10,000 at the time of such
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 his termination of employment.
SECTION 6.3 LIABILITY FOR PAYMENT/EXPENSES. The Company shall be liable
for the payment of the Excess Retirement Benefits which are payable hereunder to
the Participants. Expenses of administering the Plan shall be paid by the
Company.
ARTICLE VII
BENEFICIARIES
SECTION 7.1 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 Pension Benefits shall be his
beneficiary under the Cash Balance Plan and (b) the Beneficiary of a Participant
for his Account shall be his Beneficiary under the Savings Plan. 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 Excess Retirement Benefit
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 7.2 CHANGE IN BENEFICIARY. (a) Anything herein or in the
Qualified Plans 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
applicable underlying Qualified Plan. In other words, the Beneficiary hereunder
need not be the same as under the applicable underlying Qualified Plan.
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(b) Any change in Beneficiary shall be made by giving written
notice thereof to the Plan Administrator and any change shall be effective only
if received by the Plan Administrator prior to the death of the Participant.
SECTION 7.3 Distributions to Beneficiaries.
(a) AMOUNT OF BENEFITS.
(i) AMOUNT OF EXCESS PENSION BENEFIT. The Excess Pension Benefit
payable to a Beneficiary under this Plan shall be a monthly
benefit equal to the excess, if any, of (A) the amount of the
monthly benefit that would be payable to the Beneficiary last
effectively designated by the Participant under the Cash
Balance Plan (in the form actually paid) if such Plan did not
contain the limitations imposed under Sections 401(a)(17) or
415 of the Code and the definition of Compensation under such
Plan included any amounts deferred under this Plan OVER (B)
the amount of the monthly benefit that is actually paid to
such Beneficiary under such Plan.
(ii) AMOUNT OF EXCESS PROFIT SHARING BENEFIT. The Excess Profit
Sharing Benefit payable to a Participant's Beneficiary under
this Plan shall be equal to such Participant's Excess Profit
Sharing Sub-Account balance on the date of the distribution of
the Sub-Account to the Beneficiary.
(iii) AMOUNT OF EXCESS 401(k) AND EXCESS MATCHING BENEFITS. The
Excess 401(k) and Excess Matching Benefits payable to a
Participant's Beneficiary under this Plan shall be equal to
such Participant's Excess 401(k) and Excess Matching
Sub-Account balances on the date of the distribution of the
Sub-Accounts to the Beneficiary.
(b) Time and Manner of Payment.
(i) EXCESS PENSION BENEFIT. The Excess Pension Benefit payable to
a Beneficiary under this Plan shall be paid at the same time
or times and in the same manner as the benefits payable to the
Beneficiary last effectively designated by the Participant
under the Cash Balance Plan; provided however, that the
provisions of Subsection 6.1(a)(ii) shall apply to such
Benefit, treating the Beneficiary hereunder as if he were the
Participant.
(ii) EXCESS PROFIT SHARING BENEFIT/EXCESS 401(k) BENEFIT AND EXCESS
MATCHING BENEFIT. The Excess Profit Sharing Benefit, Excess
401(k) Benefit and Excess Matching Benefit payable to a
Beneficiary under this Plan shall be paid as soon as
practicable following the death of the Participant in the form
of a lump sum payment.
(c) EFFECT OF DIFFERENT BENEFICIARIES UNDER THIS PLAN AND THE CASH
BALANCE PLAN. In the event the Beneficiary designated hereunder for the Excess
Pension Benefit is different than the Beneficiary under the Cash Balance Plan,
(i) if the Beneficiary hereunder dies after the Participant but while the
Beneficiary under the Cash Balance Plan is still living, any
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remaining payments hereunder shall be payable, as they come due, to the estate
of the Beneficiary hereunder and (ii) if the Beneficiary hereunder predeceases
the Beneficiary under the Cash Balance Plan and the Participant, the Beneficiary
hereunder shall revert to the Beneficiary last effectively designated under the
Cash Balance Plan unless and until the Participant again makes a change of
Beneficiary pursuant to Section 7.2.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 LIABILITY OF COMPANY. Nothing in this Plan shall constitute
the creation of a trust or other fiduciary relationship between the Company and
any Participant, Beneficiary or any other person.
SECTION 8.2 LIMITATION ON RIGHTS OF PARTICIPANTS AND BENEFICIARIES - NO
LIEN. The 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 the Company. The Company shall have
no obligation to purchase any assets that do not remain subject to the claims of
the creditors of the Company 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 Company prior to the time
that such assets are paid to the Participant or Beneficiary as provided herein.
Each Participant and Beneficiary shall have the status of a general unsecured
creditor of the Company.
SECTION 8.3 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 the Company solely at the will of the Company
subject to discharge at any time, with or without cause.
SECTION 8.4 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 Company from all liability with
respect to such Benefit.
SECTION 8.5 ASSIGNMENT. 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. Notwithstanding the foregoing, the Plan
Administrator shall honor a judgment, order or decree from a state domestic
relations court which requires the payment of part or all or a Participant's or
Beneficiary's vested interest under this Plan to an "alternate payee" as defined
in Code Section 414(p).
SECTION 8.6 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
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jurisdiction, the remainder of the Plan and the application of such provision to
other circumstances or persons shall not be affected thereby.
ARTICLE IX
ADMINISTRATION OF PLAN
SECTION 9.1 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 Excess Retirement 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 9.3 and 9.4 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 Excess Retirement
Benefits, to a named administrator or administrators.
SECTION 9.2 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 9.3 and 9.4 hereof, be final
and binding on all persons.
SECTION 9.3 CLAIMS PROCEDURES. The Plan Administrator shall determine
the rights of any person to any Excess Retirement Benefits hereunder. Any person
who believes that he has not received the Excess Retirement 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 written 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;
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(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 9.1(a) above.
The Company shall mail or deliver to the claimant a written decision on
the matter based on the facts and the 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 9.4 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 Excess Retirement 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 9.5 AMENDMENT. The Committee may at any time amend any or all
of the provisions of this Plan, except that (a) no such amendment may adversely
affect the amount of any Participant's Excess Retirement 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
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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 9.6 TERMINATION.
(a) The Company, 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 the amount of any
Participant's Excess Retirement 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, 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 Nominating,
Organization and Compensation Committee of the Board of Directors 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.
Executed, this 17th day of October, 2000.
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HAMILTON BEACH/PROCTOR-SILEX, INC.
By: /s/ Charles A. Bittenbender
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Title: Assistant Secretary
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