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Exhibit 10 (xxiii)
THE NACCO INDUSTRIES, INC.
UNFUNDED BENEFIT PLAN
(EFFECTIVE SEPTEMBER 1, 2000)
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NACCO INDUSTRIES INC.
UNFUNDED BENEFIT PLAN
NACCO Industries, Inc. (the "Company") does hereby establish
the NACCO Industries, Inc. Unfunded Benefit Plan on the terms and conditions
described hereinafter, effective as of September 1, 2000. Effective as of the
close of business on August 31, 2000, this Plan was spun-off from the NACCO
Materials Handling Group, Inc. Unfunded Benefit Plan.
ARTICLE I
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PREFACE
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SECTION 1.2. EFFECTIVE DATE. The effective date of this Plan is
September 1, 2000.
SECTION 1.3. PURPOSE OF THE PLAN. The purpose of this Plan is to
provide for certain Employees the benefits they would have received under the
Qualified Plans but for (a) the dollar limitation on Compensation taken into
account under the Qualified Plans as a result of Section 401(a)(17) of the Code,
(b) the limitations imposed under Section 415 of the Code, and (c) the
limitations under Sections 402(g), 401(k)(3) and 401(m) of the Code.
SECTION 1.4. 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 1.5. 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
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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.
SECTION 2.1. ACCOUNT shall mean the record maintained by the Company in
accordance with Section 4.1 as the sum of the Participant's Excess Profit
Sharing Sub-Account, Excess 401(k) Sub-Account and Excess Matching 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
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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
and its subsidiaries, as applicable 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
(v) "WEIGHTED AVERAGE UMWA ADJUSTMENT" is calculated by adding the
balance in the Obligation to United Mine Workers of America Combined Benefit
Fund, net of tax, for NACCO Industries, Inc. 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 (Stockholders' Equity + Accumulated
Amortization of Goodwill + UMWA Adjustment).
(c) 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 VIII hereof.
SECTION 2.4. COMPANY shall mean NACCO Industries, Inc. or any entity
that succeeds NACCO Industries, 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 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.
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SECTION 2.6. EXCESS RETIREMENT BENEFIT OR BENEFIT shall mean Excess
Profit Sharing Benefit, Excess 401(k) Benefit or Excess Matching Benefit(as
described in Article III) which is payable to or with respect to a Participant
under this Plan.
SECTION 2.7. 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 2.8. 401(k) EMPLOYEE shall mean an Employee of the Company who
is a Participant in the Profit Sharing Plan who is eligible to receive
Before-Tax Contributions and Matching Employer Contributions thereunder.
SECTION 2.9. 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 2.10. 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 Sections 3.2 and 3.3 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.
(c) The term "Participant" shall also include any other person who, as
of August 31, 2000, was entitled to receive an Excess Retirement Benefit under
the Prior Plan.
SECTION 2.11. PLAN shall mean the NACCO Industries, Inc. Unfunded
Benefit Plan, as herein set forth or as duly amended.
SECTION 2.12. PLAN ADMINISTRATOR shall mean the Company.
SECTION 2.13. PLAN YEAR shall mean the calendar year.
SECTION 2.14. PRIOR PLAN shall mean for the period from January 1, 1995
through August 31, 2000, the NACCO Materials Handling Group, Inc. Unfunded
Benefit Plan and for the period prior to January 1, 1995, the North American
Coal Corporation Deferred Compensation Plan for Management Employees.
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SECTION 2.15. PROFIT SHARING EMPLOYEE shall mean an Employee of the
Company who is a participant in the Profit Sharing Plan and who is eligible for
Profit Sharing Contributions.
SECTION 2.16. PROFIT SHARING PLAN shall mean the NACCO Materials
Handling Group, Inc. Profit Sharing Plan or any successor thereto.
SECTION 2.17. 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 2.18. VALUATION DATE shall mean the last day of each Plan Year
and any other date chosen by the Plan Administrator.
ARTICLE III
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EXCESS RETIREMENT BENEFITS
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SECTION 3.1. EXCESS PROFIT SHARING BENEFITS.
(a) IN GENERAL. The Company shall credit to a Sub-Account (the "Excess
Profit Sharing Sub-Account") established for each Participant who is both an
Employee 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 Account balance
of a Participant who was a participant in the Prior Plan on the Effective Date
shall in no event be less than the amount credited to such Participant's account
under the Prior Plan as of August 31, 2000.
SECTION 3.2. 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 and subsequent Plan Years, 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"). As further described in Section
3.4, if a Participant who has completed a deferral election form for a Plan
Year fails to complete a new deferral election form for a
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subsequent Plan Year, such prior deferral election form shall continue in
effect for each subsequent Plan Year.
(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 Excess 401(k) Benefits shall be
credited to the Additional Excess 401(k) Sub-Account hereunder.
SECTION 3.3. 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 3.4. RULES RELATING TO DEFERRAL ELECTIONs.
(a) DEFERRAL PERIOD/TIME OF PAYMENT.
(i) GENERAL RULE. The initial deferral elections made by a Participant
under Sections 3.2 and 3.3 above shall also contain such Participant's
irrevocable 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 such Sub-Account as soon
as practicable following one of the following dates:
(A) the date on which he ceases to be an Employee of the Controlled
Group,
(B) January 1 of the year following the date on which he ceases to be
an Employee of the Controlled Group,
(C) the date on which he attains an age specified in the deferral
form,
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(D) January 1 of the year following the date on which he attains an
age specified in the deferral form, or
(E) the earlier or later of any two such dates.
A Participant may elect a different payment date for his Excess 401(k)
Sub-Account in the event that his employment is terminated due to a
Disability. such election must also be made on the initial deferral
election form. The available payment dates are the same as those
specified above.
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
401(k)and Excess Matching 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 August 31, 2000 shall be given a one-time
irrevocable election to determine the payment date of their Excess
401(k) Sub-Account(and corresponding Excess Matching Sub-Account) by
filing a written election with the Plan Administrator within a thirty
day election period specified by the Company. such election period will
occur after September 1, 2000 but prior to December 31, 2000. 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 401(k), Excess Matching Sub-Accounts as
soon as practicable following the date on which the Participant ceases
to be an Employee of the Controlled Group.
(b) EFFECT OF DEFERRAL ELECTIONS. Any direction by a Participant to
defer Compensation under Section 3.2 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 401(k) Sub-Account hereunder. Any such direction 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 any subsequent Plan Year.
(c) AUTOMATIC TERMINATION OF DEFERRAL ELECTIONS.
(i) A Participant's direction to defer Compensation under Section 3.2
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 requirements of Section 2.10(b), (3)
the Company is deemed Insolvent or (4) the Plan is terminated.
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(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 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).
(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
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ACCOUNTS
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SECTION 4.1. PARTICIPANTS' ACCOUNTS. 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 3.1, 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 401(k) Sub-Account for the
Basic and Additional Excess 401(k) Benefits described in Section 3.2, 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.
(c) Credits to a Basic or Additional Excess Matching Sub-Account for
the Basic and Additional Excess Matching Benefits described in Section 3.3,
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.
(d) Credits to the appropriate Sub-Account of each Participant of the
amount of any and all liabilities of the Company under the Prior Plan which were
transferred to this Plan as of the Effective Date.
(e) 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.
(f) Debits for any distributions made from the Sub-Accounts and any
amounts forfeited under Section 7.1(e).
SECTION 4.2. EFFECT ON OTHER BENEFITS. Benefits payable to or with
respect to a Participant under the Profit Sharing Plan or any other Company
sponsored (qualified or nonqualified) plan, if any, are in addition to those
provided under this Plan.
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ARTICLE V
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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 5.3, 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 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 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. Subject to Section
5.3, at the end of each calendar month during the Plan Year and Additional
Excess 401(k) Sub-Account, 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
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. 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%.
ARTICLE VI
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VESTING
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SECTION 6.1. VESTING. A Participant shall always be 100% vested in all
amounts credited to his Account hereunder.
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ARTICLE VII
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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 401(k) SUB-ACCOUNT AND EXCESS MATCHING SUB-ACCOUNT.
(i) TIMING. The Excess 401(k) Sub-Account and the 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
original deferral election form (as provided in Section 3.4(a)).
(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 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 his Excess
401(k) sub-Account and 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 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-Accounts. (A single form of payment must
be elected for both such Sub-Accounts.) 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) UNFORESEEABLE EMERGENCY DISTRIBUTIONS. Notwithstanding the
foregoing, the Company may at any time, upon written request of the Participant,
cause to be paid to such
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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. 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 Company.
(d) SMALL ACCOUNTS. Notwithstanding the foregoing payment provisions,
in the event that a participant's total Account balance does not exceed $10,000
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.
(e) WITHDRAWALS SUBJECT TO 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; or
(B) the Additional Excess Matching 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 401(k) Sub-Account; and
(B) the Basic Excess Matching Sub-Account.
(iv) Withdrawals under this Subsection (e) 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 Company. Such 10% reduction shall be treated as a
forfeiture hereunder and shall immediately be subtracted from the
applicable Sub-Account, never to be restored.
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(f) 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 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 not event greater than
the total amount otherwise 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 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
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BENEFICIARIES
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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, 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. 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 words, the Beneficiary hereunder
need not be the same as under the Profit Sharing Plan.
(b) Any change in Beneficiary shall be made by giving written notice
thereof to the Company or Plan Administrator and any change shall be effective
only if received prior to the death of the Participant.
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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
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MISCELLANEOUS
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SECTION 9.1. 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 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 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.
(b) Notwithstanding any provision of the Plan to the contrary, the
Company shall not be required to make any payment hereunder to any Participant
or Beneficiary if the Company 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 the Company solely at the will of the Company
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.
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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).
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
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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.
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
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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 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
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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 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, 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,
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.
EXECUTED, this 29th day of August, 2000.
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NACCO INDUSTRIES, INC.
By: /s/ Charles A. Bittenbender
-------------------------------------
Title: Vice President, General Counsel
and Secretary
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