Exhibit 10(s)
LINCOLN ELECTRIC HOLDINGS, INC.
DEFERRED COMPENSATION PLAN
(AS AMENDED AND RESTATED AS OF JANUARY 1, 2002)
LINCOLN ELECTRIC HOLDINGS, INC.
DEFERRED COMPENSATION PLAN
(as amended and restated as of January 1, 2002)
TABLE OF CONTENTS
PAGE
ARTICLE I PURPOSE...............................................................1
ARTICLE II DEFINITIONS AND CONSTRUCTION..........................................1
Section 2.1 Definitions......................................................1
Section 2.2 Construction.....................................................4
ARTICLE III PARTICIPATION AND DEFERRALS...........................................4
Section 3.1 Eligibility and Participation....................................4
Section 3.2 Ineligible Participant...........................................4
Section 3.3 Amount of Deferral...............................................5
Section 3.4 Modification of Deferral Commitments.............................5
ARTICLE IV PARTICIPANTS' ACCOUNTS................................................5
Section 4.1 Establishment of Accounts........................................5
Section 4.2 Elective Deferred Compensation; Employment Agreement
Contributions.................................................5
Section 4.3 Determination of Accounts........................................5
Section 4.4 Adjustments to Accounts..........................................6
Section 4.5 Statement of Accounts............................................6
Section 4.6 Vesting of Accounts..............................................6
ARTICLE V FINANCING OF BENEFITS.................................................6
Section 5.1 Financing of Benefits............................................6
Section 5.2 Security For Benefits............................................6
Section 5.3 Investments......................................................7
ARTICLE VI DISTRIBUTION OF BENEFITS..............................................7
Section 6.1 Settlement Date..................................................7
Section 6.2 Amount to be Distributed.........................................7
Section 6.3 In-Service Distribution..........................................7
Section 6.4 Form of Distribution.............................................7
Section 6.5 Beneficiary Designation..........................................8
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TABLE OF CONTENTS
(continued)
PAGE
Section 6.6 Facility of Payment..............................................9
Section 6.7 Hardship Distributions...........................................9
Section 6.8 Special Distributions............................................9
Section 6.9 Coordination with Other Benefits.................................9
Section 6.10 Offset...........................................................9
ARTICLE VII ADMINISTRATION, AMENDMENT AND TERMINATION............................10
Section 7.1 Administration..................................................10
Section 7.2 Plan Administrator..............................................10
Section 7.3 Amendment, Termination and Withdrawal...........................10
Section 7.4 Successors......................................................10
Section 7.5 Claims..........................................................11
Section 7.6 Expenses........................................................11
ARTICLE VIII MISCELLANEOUS........................................................11
Section 8.1 No Guarantee of Employment......................................11
Section 8.2 Applicable Law..................................................11
Section 8.3 Interests Not Transferable......................................11
Section 8.4 Severability....................................................11
Section 8.5 Withholding of Taxes............................................11
Section 8.6 Top-Hat Plan....................................................12
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LINCOLN ELECTRIC HOLDINGS, INC.
DEFERRED COMPENSATION PLAN
The Lincoln Electric Holdings, Inc. Deferred Compensation Plan is
amended and restated effective as of January 1, 2002.
ARTICLE I PURPOSE
THE LINCOLN ELECTRIC HOLDINGS, INC. DEFERRED COMPENSATION PLAN (the
"Plan"), was established by The Lincoln Electric Company effective as of
November 15, 1994 to allow designated management and highly compensated
employees to defer a portion of their current salary. The Plan is hereby assumed
by Lincoln Electric Holdings, Inc. and amended and restated as of January 1,
2002. It is intended that the Plan will aid in attracting and retaining
employees of exceptional ability by providing these benefits. The terms and
conditions of the Plan are set forth below.
ARTICLE II DEFINITIONS AND CONSTRUCTION
Section 2.1 DEFINITIONS. Whenever the following terms are used in this
Plan they shall have the meanings specified below unless the context clearly
indicates to the contrary:
(a) "Account": The bookkeeping account maintained for each
Participant showing his interest under the Plan.
(b) "Accounting Date": December 31 of each year and the last
day of any calendar quarter in which a Participant's Settlement Date
occurs.
(c) "Accounting Period": The period beginning on the day
immediately following an Accounting Date and ending on the next
following Accounting Date.
(d) "Administrator": The committee established pursuant to the
provisions of Section 7.1.
(e) "Base Salary": The base earnings earned by a Participant
and payable to him by the Corporation with respect to a Plan Year
without regard to any increases or decreases in base earnings as a
result of an election to defer base earnings under this Plan, or an
election between benefits or cash provided under a plan of the
Corporation maintained pursuant to Section 125 or 401(k) of the Code.
(f) "Beneficiary": The person or persons (natural or
otherwise), within the meaning of Section 6.5, who are entitled to
receive distribution of the Participant's Account balance in the event
of the Participant's death.
(g) "Board": The Board of Directors of Holdings.
(h) "Bonus": Any annual bonus earned by a Participant and
payable to him by the Corporation with respect to any single bonus plan
year ending within a Plan Year without regard to any decreases as a
result of an election to defer all or any portion of a
bonus under this Plan, or an election between benefits or cash provided
under a plan of the Corporation maintained pursuant to Section 125 or
401(k) of the Code.
(i) "Change in Control": A Change in Control as defined in the
Executive Benefit Plan, as it may be amended from time to time. Such
definition is hereby incorporated by reference in the Plan, and an
amendment to such definition shall be deemed an amendment to the Plan.
(j) "Code": The Internal Revenue Code of 1986, as amended from
time to time; any reference to a provision of the Code shall also
include any successor provision thereto.
(k) "Committee": The Compensation Committee of the Board.
(l) "Compensation": The amount of Base Salary plus Bonuses
earned by a Participant and payable to him by the Corporation with
respect to a Plan Year.
(m) "Corporation": Holdings and any Participating Employer or
any successor or successors thereto.
(n) "Deferral Commitment": An agreement by a Participant to
have a specified percentage or dollar amount of his Compensation
deferred under the Plan for a specified period in the future.
(o) "Deferral Period": Means the Plan Year for which a
Participant has elected to defer a portion of his Compensation.
(p) "Disability": The occurrence, while a Participant is an
Employee, of a physical or mental incapacity which is likely to be
permanent and which prevents a Participant from engaging in any
occupation or performing any work for compensation or profit for which
he is qualified by education, training or experience, as determined by
the Administrator in its sole discretion on the basis of medical
evidence certified by a physician or physicians designated by it.
(q) "Effective Date": November 15, 1994.
(r) "Employee": Any employee of the Corporation who is, as
determined by the Committee, a member of a "select group of management
or highly compensated employees" of the Corporation, within the meaning
of Sections 201, 301 and 401 of ERISA, and who is designated by the
Committee as an Employee eligible to participate in the Plan.
(s) "Employment Agreement": A written agreement between the
Corporation and an Employee that provides for the deferral of
compensation, and that may also provide for vesting, the crediting of
earnings and other terms and conditions with respect to such deferred
compensation.
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(t) "Employment Agreement Contribution": Any amount
contributed to the Plan by the Corporation pursuant to an Employment
Agreement.
(u) "ERISA": The Employee Retirement Income Security Act of
1974, as amended from time to time; any reference to a provision of
ERISA shall also include any successor provision thereto.
(v) "Executive Benefit Plan": The Lincoln Electric Company
Executive Benefit Plan effective November 1, 1997.
(w) "Financial Hardship": An unforeseeable financial emergency
of the Participant, determined by the Administrator on the basis of
information supplied by the Participant, arising from an illness,
disability, casualty loss, sudden financial reversal or other such
unforeseeable occurrence, but not including foreseeable events such as
the purchase of a house or education expenses for children.
(x) "Participant": An Employee participating in the Plan in
accordance with the provisions of Section 3.1 or a former Employee
retaining benefits under the Plan that have not been fully paid.
(y) "Participating Employer": The Lincoln Electric Company,
and any other subsidiary or affiliate of Holdings that adopts the Plan
with the consent of the Committee. Any Participating Employer that
adopts the Plan and thereafter ceases to exist, ceases to be a
subsidiary or affiliate or Holdings or withdraws from the Plan shall no
longer be considered a Participating Employer unless otherwise
determined by the Committee.
(z) "Participation Agreement": The Agreement submitted by a
Participant to the Administrator with respect to one or more Deferral
Commitments.
(aa) "Plan": The Plan set forth in this instrument as it may,
from time to time, be amended.
(bb) "Plan Year": The 12-month period beginning January 1
through December 31; provided that the first plan year began on
November 15, 1994 and ended on December 31, 1994.
(cc) "Retirement": Termination of employment with the
Corporation on or after attainment of age sixty (60), or early
termination of employment with the Corporation on or after attainment
of age fifty-five (55) and completion of twenty-five (25) years of
service.
(dd) "Settlement Date": The date on which a Participant
terminates employment with the Corporation. Leaves of absence granted
by the Corporation will not be considered as termination of employment
during the term of such leave. Settlement Date shall also include (I)
with respect to any deferral date selected by a Participant pursuant to
Section 6.3 for distribution of the amounts deferred during such
Deferral Period, and (II) a date selected by the Participant pursuant
to Section 6.4.
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Section 2.2 CONSTRUCTION. The masculine gender, where appearing in the
Plan, shall be deemed to include the feminine gender, and the singular may
include the plural, unless the context clearly indicates to the contrary. The
words "hereof," "herein," "hereunder," and other similar compounds of the word
"here" shall mean and refer to the entire Plan, and not to any particular
provision or Section.
ARTICLE III PARTICIPATION AND DEFERRALS
Section 3.1 ELIGIBILITY AND PARTICIPATION.
(a) ELIGIBILITY. Eligibility to participate in the Plan for
any Deferral Period is limited to those management and/or highly
compensated Employees of the Corporation (i) who are designated, from
time to time, by the Committee, and (ii) who have elected to make the
maximum elective contributions permitted them under the terms of the
Corporation's Employee Savings Plan for such Deferral Period.
(b) PARTICIPATION. An eligible Employee may elect to
participate in the Plan with respect to any Deferral Period by
submitting a Participation Agreement to the Administrator by the last
business day immediately preceding the applicable Deferral Period.
(c) INITIAL YEAR OF PARTICIPATION. In the event that an
individual first becomes eligible to participate during a Deferral
Period and wishes to elect a Deferral Commitment with respect to the
Compensation earned by and payable to the individual during such
Deferral Period, a Participation Agreement must be submitted to the
Administrator no later than 30 days following such individual's initial
eligibility. Any Deferral Commitments elected in such Participation
Agreement shall be effective only with regard to Compensation earned
following the submission of the Participation Agreement to the
Administrator. If an eligible Employee does not submit a Participation
Agreement within such period of time, such individual will not be
eligible to participate in the Plan until the first day of a Deferral
Period subsequent to the Deferral Period in which the individual
initially became eligible to participate.
(d) TERMINATION OF PARTICIPATION. Participation in the Plan
shall continue as long as the Participant is eligible to receive
benefits under the Plan.
Section 3.2 INELIGIBLE PARTICIPANT. Notwithstanding any other
provisions of this Plan to the contrary, if the Administrator determines that
any Participant may not qualify as a "management or highly compensated employee"
within the meaning of ERISA, or regulations thereunder, the Administrator may
determine, in its sole discretion, that such Participant shall cease to be
eligible to participate in this Plan. Upon such determination, the Corporation
shall make an immediate lump sum payment to the Participant equal to the amount
credited to his Account. Upon such payment no benefit shall thereafter be
payable under this Plan either to the Participant or any Beneficiary of the
Participant, and all of the Participant's elections as to the time and manner of
payment of his Account will be deemed to be cancelled.
Section 3.3 AMOUNT OF DEFERRAL. With respect to each Plan Year, a
Participant may elect to defer a specified dollar amount or percentage of his or
her Compensation, provided
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the amount the Participant elects to defer under this Plan and the Corporation's
Employee Savings Plan shall not exceed the sum of 75% of his or her Base Salary
plus 100% of his or her Bonus with respect to such Plan Year. A Participant may
choose to have amounts deferred under this Plan deducted from his or her Base
Salary, Bonus or a combination of both. For the first Plan Year, a Participant
may elect to defer all or any portion of his or her Base Salary and/or Bonus
earned or payable after the later of the effective date of the Participation
Agreement or the date of filing the Participation Agreement with the
Administrator, provided the total deferred amount for such Plan Year does not
exceed the annual limitations under this Section 3.3 computed for the calendar
year. A Participant may change the dollar amount or percentage of his or her
Compensation to be deferred by filing a written notice thereof with the
Administrator. Any such change shall be effective as of the first day of the
Plan Year immediately succeeding the Plan Year in which such notice is filed
with the Administrator. Notwithstanding the foregoing, any Employment Agreement
Contribution shall be deferred in accordance with the terms of the Employment
Agreement.
Section 3.4 MODIFICATION OF DEFERRAL COMMITMENTS. A Deferral Commitment
shall be irrevocable, except that the Administrator may, in its sole discretion,
permit a Participant to terminate, prospectively, any Deferral Commitment for a
Deferral Period. If a Participant terminates a Deferral Commitment during a
Deferral Period, such Participant will not be permitted to enter into a new
Deferral Commitment until the following Deferral Period.
ARTICLE IV PARTICIPANTS' ACCOUNTS
Section 4.1 ESTABLISHMENT OF ACCOUNTS. The Corporation, through its
accounting records, shall establish an Account for each Participant. In
addition, the Corporation may establish one or more subaccounts of a
Participant's Account, if the Corporation determines that such subaccounts are
necessary or appropriate in administering the Plan.
Section 4.2 ELECTIVE DEFERRED COMPENSATION; EMPLOYMENT AGREEMENT
CONTRIBUTIONS. A Participant's Compensation that is deferred pursuant to a
Deferral Commitment shall be credited to the Participant's Account within thirty
days following the date the corresponding non-deferred portion of his
Compensation would have been paid to the Participant. The amount of the
Employment Agreement Contribution contributed for a Participant (if any) shall
be credited by the Corporation to the Participant's Account in accordance with
the terms of the Employment Agreement. Any withholding of taxes or other amounts
with respect to Deferred Compensation or with respect to an Employment Agreement
which is required by state, federal or local laws shall be withheld from the
Participant's Deferred Compensation or Employment Agreement Contribution.
Section 4.3 DETERMINATION OF ACCOUNTS.
(a) DETERMINATION OF ACCOUNTS. The amount credited to each
Participant's Account as of a particular date shall equal the deemed
balance of such Account as of such date. The balance in the Account
shall equal the amount credited pursuant to Section 4.2, and shall be
adjusted in the manner provided in Section 4.4.
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(b) ACCOUNTING. The Corporation, through its accounting
records, shall maintain a separate and distinct record of the amount in
each Account as adjusted to reflect income, gains, losses, withdrawals
and distributions.
Section 4.4 ADJUSTMENTS TO ACCOUNTS.
(a) Each Participant's Account shall be debited with the
amount of any distributions under the Plan to or on behalf of the
Participant or, in the event of his death, his Beneficiary during the
Accounting Period ending on such Accounting Date.
(b) The Participant's Account shall next be credited or
debited, as the case may be, with an income (loss) factor equal to an
amount determined by multiplying (i) the balance credited to the
Participant's Account as of the immediately preceding Accounting Date
(as adjusted pursuant to Section 4.3(a) for the current Accounting
Date) by (ii) the rate of return for the Accounting Period ending on
such Accounting Date on deemed investments provided for in Section 5.3.
Section 4.5 STATEMENT OF ACCOUNTS. As soon as practicable after the end
of each Plan Year, a statement shall be furnished to each Participant or, in the
event of his death, to his Beneficiary showing the status of his Account as of
the end of the Plan Year, any changes in his Account since the end of the
immediately preceding Plan Year, and such other information as the Administrator
shall determine.
Section 4.6 VESTING OF ACCOUNTS. Subject to Section 5.1, each
Participant shall at all times have a nonforfeitable interest in his Account
balance.
ARTICLE V FINANCING OF BENEFITS
Section 5.1 FINANCING OF BENEFITS. Benefits payable under the Plan to a
Participant or, in the event of his death, to his Beneficiary shall be paid by
the Corporation from its general assets. The payment of benefits under the Plan
represents an unfunded, unsecured obligation of the Corporation. Notwithstanding
the fact that the Participants' Accounts may be adjusted by an amount that is
measured by reference to the performance of any deemed investments as provided
in Section 5.3, no person entitled to payment under the Plan shall have any
claim, right, security interest or other interest in any fund, trust, account,
insurance contract, or asset of the Corporation which may be responsible for
such payment.
Section 5.2 SECURITY FOR BENEFITS. Notwithstanding the provisions of
Section 5.1, nothing in this Plan shall preclude the Corporation from setting
aside amounts in trust (the "Trust") pursuant to one or more trust agreements
between a trustee and the Corporation. However, no Participant or Beneficiary
shall have any secured interest or claim in any assets or property of the
Corporation or the Trust and all funds contained in the Trust shall remain
subject to the claims of the Corporation's general creditors.
Section 5.3 INVESTMENTS. The Committee may designate one or more
separate investment funds or vehicles, including, without limitation,
certificates of deposit, mutual funds, money market accounts or funds, limited
partnerships, or debt or equity securities, including equity securities of the
Corporation (measured by market value, book value or any formula
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selected by the Committee), in which the amount credited to a Participant's
Account will be deemed to be invested. Each Participant shall file an investment
preference request ("Request") to be effective as of the date of such Request
with respect to the amounts credited to his Account as of such date and amounts
subsequently credited to his Account. A Request will advise the Administrator as
to the Participant's preference with respect to investment vehicles for all or
some portion of the amounts credited to a Participant's Account in specified
multiples of 5%. A Request may be changed prospectively by a Participant as of
the first day of any calendar month by giving the Administrator prior written
notice. The Administrator may, but is under no obligation to, deem the amounts
credited to a Participant's Account to be invested in accordance with the
Request made by the Participant, or the Committee may, instead, in its sole
discretion, deem such Account to be invested in any deemed investment funds
selected by the Committee. Earnings on any amounts deemed to have been invested
in any deemed investment fund shall be deemed to have been reinvested in such
fund.
ARTICLE VI DISTRIBUTION OF BENEFITS
Section 6.1 SETTLEMENT DATE. A Participant or, in the event of his
death, his Beneficiary shall be entitled to distribution of the balance of his
Account, as provided in this Article VI, following his Settlement Date or Dates.
Section 6.2 AMOUNT TO BE DISTRIBUTED. The amount to which a Participant
or, in the event of his death, his Beneficiary is entitled in accordance with
the following provisions of this Article shall be based on the Participant's
adjusted account balance determined as of the Accounting Date coincident with or
next following his Settlement Date or Dates.
Section 6.3 IN-SERVICE DISTRIBUTION. A Participant may elect to receive
an in-service distribution of his or her deferred Compensation for any Deferral
Period in a single lump sum payment on a date which is at least two years after
the end of such Deferral Period. A Participant's election of an in-service
distribution shall be filed in writing with the Administrator at the same time
as is filed his election to participate as provided in Section 3.1. Any benefits
paid to the Participant as an in-service distribution shall reduce the
Participant's Account.
Section 6.4 FORM OF DISTRIBUTION. As soon as practicable after the end
of the Accounting Period in which a Participant's Settlement Date occurs, but in
no event later than thirty days following the end of such Accounting Period, the
Corporation shall commence distribution or cause distribution to be commenced,
to the Participant or, in the event of his death, to his Beneficiary, of the
balance of the Participant's Account, as determined under Section 6.2, under one
of the forms provided in this Section. Notwithstanding the foregoing, if elected
by the Participant, the distribution of the balance of the Participant's Account
may commence on (i) a date between a Settlement Date following his or her
Retirement and the date the Participant attains age sixty-five or (ii) the
beginning of the second calendar year commencing after the Participant's
Retirement. Anything in this Plan to the contrary notwithstanding, if a
Participant terminates employment with the Corporation prior to his Retirement,
the balance of his or her Account shall be distributed in a single lump sum
payment.
Distribution of a Participant's Account following his or her Retirement
or death shall be made in one of the following forms as elected by the
Participant:
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(a) by payment in cash in five (5) annual installments; or
(b) by payment in cash in ten (10) annual installments; or
(c) by payment in cash in fifteen (15) annual installments; or
(d) by payment in a single lump sum;
provided, however, that in the event of a Participant's death, if the balance in
his or her Account is then less than $35,000, such balance shall be distributed
in a single lump sum payment.
The Participant's election of the form of distribution shall be made by written
notice filed with the Administrator at least six (6) months prior to the
Participant's voluntary termination of employment with, or Retirement from, the
Corporation. Any such election may be changed by the Participant without the
consent of any other person by filing a later signed written election with the
Administrator; provided that any election made less than six (6) months prior to
the Participant's voluntary termination of employment or Retirement shall not be
valid, and in such case payment shall be made in accordance with the
Participant's prior election.
The amount of each installment shall be equal to the quotient obtained by
dividing the Participant's Account balance as of the date of such installment
payment by the number of installment payments remaining to be made to or in
respect of such Participant at the time of calculation.
If a Participant fails to make an election in a timely manner
as provided in this Section 6.4, distribution shall be made in cash in ten (10)
annual installments.
Section 6.5 BENEFICIARY DESIGNATION. As used in the Plan the term
"Beneficiary" means:
(a) The last person designated as Beneficiary by the
Participant in a written notice on a form prescribed by the
Administrator;
(b) If there is no designated Beneficiary or if the person so
designated shall not survive the Participant, such Participant's
spouse; or
(c) If no such designated Beneficiary and no such spouse is
living upon the death of a Participant, or if all such persons die
prior to the full distribution of the Participant's Account balance,
then the legal representative of the last survivor of the Participant
and such persons, or, if the Administrator shall not receive notice of
the appointment of any such legal representative within one year after
such death, the heirs-at-law of such survivor (in the proportions in
which they would inherit his intestate personal property) shall be the
Beneficiaries to whom the then remaining balance of the Participant's
Account shall be distributed.
Any Beneficiary designation may be changed from time to time by like notice
similarly delivered. No notice given under this Section shall be effective
unless and until the Administrator actually receives such notice.
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Section 6.6 FACILITY OF PAYMENT. Whenever and as often as any
Participant or his Beneficiary entitled to payments hereunder shall be under a
legal disability or, in the sole judgment of the Administrator, shall otherwise
be unable to apply such payments to his own best interests and advantage, the
Administrator in the exercise of its discretion may direct all or any portion of
such payments to be made in any one or more of the following ways: (i) directly
to him; (ii) to his legal guardian or conservator; or (iii) to his spouse or to
any other person, to be expended for his benefit; and the decision of the
Administrator, shall in each case be final and binding upon all persons in
interest.
Section 6.7 HARDSHIP DISTRIBUTIONS. Upon a finding by the Administrator
that a Participant has suffered a Financial Hardship, the Administrator may, in
its sole discretion, distribute, or direct the Trustee to distribute, to the
Participant an amount which does not exceed the amount required to meet the
immediate financial needs created by the Financial Hardship and not reasonably
available from other sources of the Participant; provided, however, that in no
event shall any amount attributable to a Deferral Commitment be distributed less
than six months after the date of the applicable Participation Agreement. No
distributions pursuant to this Section 6.4 may be made in excess of the value of
the Participant's Account at the time of such distribution.
Section 6.8 SPECIAL DISTRIBUTIONS. Notwithstanding any other provision
of this Article VI, a Participant, whether or not currently receiving a
distribution, may elect to receive a lump sum distribution of all or a portion
of the remaining balance of his Account if (and only if) the amount in such
Account subject to such distribution is reduced by ten percent (10%); provided,
however, that no such election may be made by a Participant who has an account
in the Executive Benefit Plan during any period commencing 90 days prior to a
Change in Control and ending on the date benefits, if any, are paid to
participants in the Executive Benefit Plan following a Change in Control. Any
distribution made pursuant to such an election shall be made within 30 days of
the date such election is submitted to the Administrator. The remaining ten
percent (10%) of the portion of the electing Participant's Account subject to
such distribution shall be forfeited.
Section 6.9 COORDINATION WITH OTHER BENEFITS. Except as provided in
Section 6.10, the benefits provided for a Participant and Participant's
Beneficiary under the Plan are in addition to any other benefits available to
such Participant under any other plan or program for employees of the
Corporation. The Plan shall supplement and shall not supersede, modify or amend
any other such plan or program except as may otherwise be expressly provided.
Section 6.10 OFFSET. In the event a Participant receives or becomes
entitled to receive a benefit under the Executive Benefit Plan, as it may be
amended from time to time, the benefits to be received under this Plan shall be
offset and reduced dollar for dollar (but not below zero) by the benefits paid
under the Executive Benefit Plan. In determining the amount that should offset
and reduce benefits under this Plan, the Participant's (or Beneficiary's)
Account hereunder at the time of distribution commencement shall be reduced by
an amount equal to the amount paid or to be paid under the Executive Benefit
Plan increased by earnings on such amount, if any, accruing from the time of
distribution from the Executive Benefit Plan through the time of the
commencement of distribution hereunder at an earnings rate corresponding to
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one-half of the Moody's Corporate Average Bond Yield adjusted on the first
business day of each January, April, July and October.
ARTICLE VII ADMINISTRATION, AMENDMENT AND TERMINATION
Section 7.1 ADMINISTRATION. The Plan shall be administered by an
Administrator consisting of one or more persons who shall be appointed by and
serve at the pleasure of the Board. The Administrator shall have such powers as
may be necessary to discharge its duties hereunder, including, but not by way of
limitation, to construe and interpret the Plan and determine the amount and time
of payment of any benefits hereunder. The Administrator may, from time to time,
employ agents and delegate to them such administrative duties as it sees fit,
and may from time to time consult with legal counsel who may be counsel to the
Corporation. The Administrator shall have no power to add to, subtract from or
modify any of the terms of the Plan, or to change or add to any benefits
provided under the Plan, or to waive or fail to apply any requirements of
eligibility for a benefit under the Plan. No member of the Administrator shall
act in respect of his own Account. All decisions and determinations by the
Administrator shall be final and binding on all parties. All decisions of the
Administrator shall be made by the vote of the majority, including actions in
writing taken without a meeting. All elections, notices and directions under the
Plan by a Participant shall be made on such forms as the Administrator shall
prescribe.
Section 7.2 PLAN ADMINISTRATOR. The Corporation shall be the
"administrator" under the Plan for purposes of ERISA.
Section 7.3 AMENDMENT, TERMINATION AND WITHDRAWAL. The Plan may be
amended from time to time or may be terminated at any time by the Board. No
amendment or termination of the Plan, however, may adversely affect the amount
or timing of payment of any person's benefits accrued under the Plan to the date
of amendment or termination without such person's written consent.
Section 7.4 SUCCESSORS. The Corporation shall require any successor
(whether direct or indirect, by purchase, merger, consolidation, reorganization
or otherwise) to all or substantially all of the business and/or assets of the
Corporation expressly to assume and to agree to perform this Plan in the same
manner and to the same extent the Corporation would be required to perform if no
such succession had taken place. This Plan shall be binding upon and inure to
the benefit of the Corporation and any successor of or to the Corporation,
including without limitation any persons acquiring directly or indirectly all or
substantially all of the business and/or assets of the Corporation whether by
sale, merger, consolidation, reorganization or otherwise (and such successor
shall thereafter be deemed the "Corporation" for the purposes of this Plan), and
the heirs, beneficiaries, executors and administrators of each Participant.
Section 7.5 CLAIMS. The Administrator will provide to any Participant
or Beneficiary whose claim for benefits under the Plan has been fully or
partially denied a written notice setting forth (i) the specific reasons for
such denial, (ii) a designation of any additional material or information
required and (iii) an explanation of the Plan's claim review procedure. Such
notice shall state that the Participant or Beneficiary is entitled to request a
review in writing, by the Administrator, of the decision denying the claim. The
claim will be reviewed by
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the Administrator who may, but need not, grant the claimant a hearing. On
review, the claimant may have legal representation, examine pertinent documents
and submit issues and comments in writing. The decision on review will be made
within 120 days following the request, will be provided in writing to the
claimant and will be final and binding on all parties concerned.
Section 7.6 EXPENSES. All expenses of the Plan shall be paid by the
Corporation from funds other than those deemed investments as provided in
Section 5.3, except that brokerage commissions and other transaction fees and
expenses relating to the investment of deemed assets and investment fees
attributable to commingled investment of such assets shall be paid from or
charged to such assets or earnings thereon.
ARTICLE VIII MISCELLANEOUS
Section 8.1 NO GUARANTEE OF EMPLOYMENT. Nothing contained in the Plan
shall be construed as a contract of employment between the Corporation and any
Employee, or as a right of any Employee, to be continued in the employment of
the Corporation, or as a limitation of the right of the Corporation to discharge
any of its Employees, with or without cause.
Section 8.2 APPLICABLE LAW. All questions arising in respect of the
Plan, including those pertaining to its validity, interpretation and
administration, shall be governed, controlled and determined in accordance with
the applicable provisions of federal law and, to the extent not preempted by
federal law, the laws of the State of Ohio.
Section 8.3 INTERESTS NOT TRANSFERABLE. No person shall have any right
to commute, encumber, pledge or dispose of any interest herein or right to
receive payments hereunder, nor shall such interests or payments be subject to
seizure, attachment or garnishment for the payments of any debts, judgments,
alimony or separate maintenance obligations or be transferable by operation of
law in the event of bankruptcy, insolvency or otherwise, all payments and rights
hereunder being expressly declared to be nonassignable and nontransferable.
Section 8.4 SEVERABILITY. Each section, subsection and lesser section
of this Plan constitutes a separate and distinct undertaking, covenant and/or
provision hereof. Whenever possible, each provision of this Plan shall be
interpreted in such manner as to be effective and valid under applicable law. In
the event that any provision of this Plan shall finally be determined to be
unlawful, such provision shall be deemed severed from this Plan, but every other
provision of this Plan shall remain in full force and effect, and in
substitution for any such provision held unlawful, there shall be substituted a
provision of similar import reflecting the original intention of the parties
hereto to the extent permissible under law.
Section 8.5 WITHHOLDING OF TAXES. The Corporation may withhold or cause
to be withheld from any amounts payable under this Plan all federal, state,
local and other taxes as shall be legally required.
Section 8.6 TOP-HAT PLAN. The Plan is intended to be a plan which is
unfunded and maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
within the meaning of Sections 201, 301 and 401 of ERISA, and therefore to be
exempt from the provisions of Parts 2, 3 and 4 of Title I of ERISA. Accordingly,
notwithstanding any other provision of the Plan, the Plan will terminate
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and no further benefits will accrue hereunder in the event it is determined by a
court of competent jurisdiction or by an opinion of counsel based upon a change
in law that the Plan constitutes an employee pension benefit plan within the
meaning of Section 3(2) of ERISA, which is not so exempt. In addition and
notwithstanding any other provision of the Plan, in the absolute discretion of
the Committee, the amount credited to each Participant's Account under the Plan
as of the date of termination, which shall be an Accounting Date for purposes of
the Plan, will be paid immediately to such Participant in a single lump sum cash
payment.
IN WITNESS WHEREOF, Lincoln Electric Holdings, Inc. has caused this
amendment and restatement of the Lincoln Electric Holdings, Inc. Deferred
Compensation Plan to be executed in its name as of January 1, 2002.
LINCOLN ELECTRIC HOLDINGS, INC.
By:_____________________________________
Its: Chairman, Chief Executive Officer
Date:__________________, 2002
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