EXHIBIT 10(lxxxiv)
THE NACCO MATERIALS HANDLING GROUP, INC.
EXCESS PENSION PLAN FOR UK TRANSFEREES
(EFFECTIVE AS OF OCTOBER 1, 2002)
NACCO MATERIALS HANDLING GROUP, INC.
EXCESS PENSION PLAN FOR UK TRANSFEREES
NACCO Materials Handling Group, Inc. (the "Company") does hereby adopt
this NACCO Materials Handling Group, Inc. Excess Pension Plan for UK
Transferees, on the terms and conditions described hereinafter,
effective as of October 1, 2002:
ARTICLE I - PREFACE
Section 1.1. Effective Date. This Plan is effective as of October 1,
2002. The applicable Effective Date for each Participant in the Plan is listed
on Exhibit A hereto.
Section 1.2. Purpose of the Plan. The purpose of this Plan is to
provide certain employees who provide services to various members of the
Company's controlled group (in the U.S. and abroad) with non-qualified
supplemental pension benefits which are designed to provide the employees (and
their beneficiaries) with a level of retirement benefits at least equal to the
retirement benefits they would have received had they continued to participate
in the UK Pension Plan (as such term is defined in Section 2.14 below) until
termination of employment.
Section 1.3. Governing Law. This Plan shall be regulated, construed and
administered under the laws of the State of North Carolina, except when
preempted by federal law.
Section 1.4. Gender and Number. For purposes of interpreting the
provisions of this Plan, the masculine gender shall be deemed to include the
feminine, the feminine gender shall be deemed to include the masculine, and the
singular shall include the plural unless otherwise clearly required by the
context.
ARTICLE II - DEFINITIONS
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. Actual UK Pension Benefit shall mean an amount payable in
British Pounds Sterling equal to the annual benefit in fact payable to the
Participant or his Beneficiary under the UK Pension Plan at the time of the
Participant's termination of employment with all members of the Company's
Controlled Group (whether on account of death, retirement or otherwise), taking
into account for this purpose any cost-of-living increases between the Effective
Date of a Participant's participation in the Plan and the date of termination.
Section 2.2. Beneficiary shall mean the Participant's surviving spouse
or any other designated beneficiary who is entitled to receive survivor benefits
under the UK Pension Plan.
Section 2.3. Company shall mean NACCO Materials Handling Group, Inc. or
any entity that succeeds NACCO Materials Handling Group, Inc. by merger,
reorganization or otherwise.
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Section 2.4. Compensation shall mean the actual US compensation
received by the Participant from the Controlled Group. In those circumstances
where it is necessary to convert US dollars to UK equivalent earnings, the
conversion will be based on comparable compa-ratio to midpoint of UK equivalent
level position.
Section 2.4A. Controlled Group shall have the meaning
specified in the Profit Sharing Plan (i.e., the Company and any and all other
corporations, trades and/or businesses, the Employees of which, together with
the Employees of the Company, are required by Code Section 414 to be treated as
if they were employed by a single employer).
Section 2.5. Employer shall mean the Company and NMHG Oregon, Inc.
Section 2.6. Excess Pension Benefit or Benefit shall mean the
retirement benefits described in Article III which are payable to or with
respect to a Participant under this Plan.
Section 2.7. Insolvent. For purposes of this Plan, an Employer shall be
considered Insolvent at such time as it (a) is unable to pay its debts as they
mature, or (b) is subject to a pending voluntary or involuntary proceeding as a
debtor under the United States Bankruptcy Code (or similar foreign law).
Section 2.8. Participant. shall mean those highly compensated or select
management employees of an Employer who at one time were participants in the UK
Pension Plan and who are designated by the President of the Company as a
Participant in this Plan. The Participants in the Plan shall be listed on
Exhibit A hereto.
Section 2.9. Plan shall mean the NACCO Materials Handling Group, Inc.
Excess Pension Plan for UK Transferees, as herein set forth or as duly amended.
Section 2.10. Plan Administrator shall mean the Company.
Section 2.11. Plan Year shall mean the calendar year.
Section 2.12. Profit Sharing Plan shall mean the NACCO Materials
Handling Group, Inc. Profit Sharing Plan or any successor thereto, as in effect
from time to time.
Section 2.13. Targeted UK Pension Benefit shall mean an amount payable
in British Pounds Sterling equal to the annual benefit which would have been
paid to the Participant or his Beneficiary (if applicable) under the UK Pension
Plan if the Participant had continued to participate in the UK Pension Plan
until the Participant's termination of employment with all members of the
Company's Controlled Group (whether on account of death, retirement or
otherwise), taking into account the Participant's service with the US members of
the Controlled Group and all Compensation which would otherwise satisfy the
definition of pensionable earnings under the UK Pension Plan (converted to UK
equivalent earnings).
Section 2.14. UK Pension Plan: shall mean the NMHG UK Retirement Plan,
as in effect from time to time.
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Section 2.15. Unfunded Plan shall mean the NACCO Materials Handling
Group, Inc. Unfunded Benefit Plan, or any successor thereto, as in effect from
time to time.
Section 2.16. US Retirement Benefits shall mean the sum of (1) the
"Deemed 401(k)/Matching Contributions" (as defined in the next sentence) and (2)
the actual Profit Sharing Contributions and Excess Profit Sharing Contributions
which are allocated to the Participant's accounts under the Profit Sharing Plan
and the Unfunded Plan, in both cases, for periods on and after the Effective
Date, increased at an assumed investment return rate of 6% per year until
termination of employment. For purposes of the Plan, the Deemed 401(k)/Matching
Contributions shall be the amounts that would be allocated to the Participant's
accounts under the Profit Sharing Plan and Unfunded Plan if the Participant
elected to make Before-Tax Contributions and Excess 401(k) Benefits from his
Compensation in an amount equal to the amount needed to obtain the maximum
amount of Matching Contributions (and Excess Matching Benefits) under such
plans, as in effect from time to time. In furtherance of, but without limiting
the foregoing, as of the Effective Date, the Deemed 401(k)/Matching
Contributions shall be calculated assuming that the Participant annually
deferred 7% of Compensation and received a combined Matching Employer
Contribution/Excess Matching Benefit equal to 3% of Compensation.
Section 2.17. Valuation Date shall mean the last day of each Plan Year
and any other date chosen by the Plan Administrator.
ARTICLE III - EXCESS PENSION BENEFITS
Section 3.1. Excess Pension Benefits.
(a) Amount. Subject to the provisions of Sections 6.6,
6.7 and 7.5 hereof, the Excess Pension Benefit shall initially be calculated as
an annual retirement benefit equal to the difference between:
(i) The Targeted UK Pension Benefit reduced by the Actual
UK Pension Benefit; and
(ii) The US Retirement Benefits, converted (1) to British
Pounds Sterling and (2) to an annuity using a 6%
interest rate and the 1983 Group Annuity Mortality
table.
The annual Excess Pension Benefit so determined shall be divided by
twelve (12) to determine the monthly Excess Pension Benefit payable
hereunder.
(b) Time and Form of Payment.
(i) Normal Form of Payment. The monthly Excess Pension
Benefit shall be paid to the Participant (or his Beneficiary, in the event of
his death) in the form of monthly annuity payments for the life of the
Participant (or Beneficiary, as applicable), with the first payment thereof
commencing on the first day of the second month after the Participant's
termination of employment with the Controlled Group.
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(ii) Optional Lump Sum Payment subject to 10% Penalty.
Notwithstanding the foregoing, the Participant (or Beneficiary, if applicable),
shall be permitted to elect an immediate lump sum payment of the present value
of the Excess Pension Benefits, at any time following the Participant's
termination of employment with the Controlled Group. The amount of such lump sum
payment shall be equal to the present value of the Excess Pension Benefits,
calculated using a 6% interest rate and the 1983 Group Annuity Mortality Table,
less 10%. Such payment shall be made as soon as practicable after such
withdrawal request is processed by the Employer and shall fully discharge the
Employer for any and all liabilities hereunder to the Participant and his
Beneficiary.
(iii) Small Benefits. Notwithstanding the foregoing payment
provisions, in the event that the present value of a Participant's (or
Beneficiary's) Excess Pension Benefit (calculated using the assumptions
contained in (iii) above) does not exceed $50,000 on the date of the
Participant's termination of employment with the Controlled Group, such Benefit
shall automatically be paid in a single lump sum payment as soon as practicable
following the date of the Participant's termination of employment with the
Controlled Group.
(iv) Payment Restriction. Notwithstanding any provision of
the Plan to the contrary, the payment of all or any portion of the amounts
payable hereunder will be deferred to the extent that any amount payable, when
added to any other compensation received or to be received by the Participant in
the same calendar year, would not be deductible by the Employer by reason of
Section 162(m) of the Code. The amount to be deferred will equal the amount that
otherwise would not be deductible by the Employer by reason of Section 162(m) of
the Code, but in no event greater than the total amount otherwise payable
hereunder. The deferred amount shall become payable on December 31 of the first
succeeding calendar year in which such amount, when added to all other
compensation received or to be received by the Participant in such calendar
year, would not be non-deductible by the Employer by reason of Section 162(m)of
the 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.
ARTICLE IV - VESTING
Section 4.1. Vesting. A Participant shall always be 100% vested in his
Excess Pension Benefits hereunder. Notwithstanding the foregoing, while
Participants are always 100% vested in their Excess Pension Benefits hereunder,
this does not give rise to any right or entitlement (whether legal, equitable or
otherwise) to payment or distribution otherwise than in accordance with Article
III of the Plan.
ARTICLE V - MISCELLANEOUS
Section 5.1. Liability of Employers. Nothing in this Plan shall
constitute the creation of a trust or other fiduciary relationship between an
Employer and any Participant, Beneficiary or any other person.
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Section 5.2. Limitation on Rights of Participants and Beneficiaries -
No Lien.
(a) This Plan is designed to be an unfunded, nonqualified
plan. Nothing contained herein shall be deemed to create a trust or lien in
favor of any Participant or Beneficiary on any assets of an Employer. The
Employers shall have no obligation to purchase any assets that do not remain
subject to the claims of the creditors of the Employers for use in connection
with the Plan. No Participant or Beneficiary or any other person shall have any
preferred claim on, or any beneficial ownership interest in, any assets of the
Employers prior to the time that such assets are paid to the Participant or
Beneficiary as provided herein. In the event of the Insolvency of an Employer,
each Participant and Beneficiary shall have the status of a general unsecured
creditor of his Employer. Any liabilities on the books of the Employers are
purely notional. They do not give the Participant any right or entitlement
(whether legal, equitable or otherwise) to any particular assets held for the
purposes of the Plan or otherwise.
(b) An Employer shall not be required to make any payment
hereunder to any Participant or Beneficiary if the Employer is Insolvent at the
time such payment is due to be made.
Section 5.3. No Guarantee of Employment. Nothing in this Plan shall be
construed as guaranteeing future employment to Participants. A Participant
continues to be an Employee of an Employer solely at the will of such Employer
subject to discharge at any time, with or without cause.
Section 5.4. Payment to Guardian. If a Benefit payable hereunder is
payable to a minor, to a person declared incompetent or to a person incapable of
handling the disposition of his property, the Plan Administrator may direct
payment of such Benefit to the guardian, legal representative or person having
the care and custody of such minor, incompetent or person. The Plan
Administrator may require such proof of incompetency, minority, incapacity or
guardianship as it may deem appropriate prior to distribution of the benefit.
Such distribution shall completely discharge the Employers from all liability
with respect to such Benefit.
Section 5.5. 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 5.6. 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.
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Section 5.7. Effect on other Benefits. Benefits payable to or with
respect to a Participant under the Profit Sharing Plan or any other Employer
sponsored (qualified or nonqualified) plan, if any, are in addition to those
provided under this Plan. In addition, the Excess Pension Benefits provided
hereunder shall not be taken into account for any purpose under any other
Employer sponsored plan.
Section 5.8. Taxes. Benefits payable under the Plan shall be reduced by
all applicable income and employment taxes.
ARTICLE VI -ADMINISTRATION OF PLAN
Section 6.1. 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 6.3
and 6.4 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 6.2. 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 6.3 and 6.4 hereof, be final
and binding on all persons.
Section 6.3. Claims Procedures. The Plan Administrator shall determine
the rights of a person to any Benefits hereunder. Any person who believes that
he has not received the Benefits to which he is entitled under the Plan may file
a claim in writing with the Plan Administrator. The Plan Administrator shall, no
later than 90 days after the receipt of a claim (plus an additional period of 90
days if required for processing, provided that notice of the extension of time
is given to the claimant within the first 90 day period), either allow or deny
the claim in writing. If a claimant does not receive written notice of the Plan
Administrator's decision on his claim within the above-mentioned period, the
claim shall be deemed to have been denied in full.
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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 6.1(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.
Section 6.4. Revocability of Plan Administrator/Company Action. Any
action taken by the Plan Administrator or the Company with respect to the rights
or benefits under the Plan of any person shall be revocable by the Plan
Administrator or the Company as to payments not yet made to such person, and
acceptance of any Benefits under the Plan constitutes acceptance of and
agreement to the Plan Administrator's or the Company's making any appropriate
adjustments in future payments to such person (or to recover from such person)
any excess payment or underpayment previously made to him.
Section 6.5. Amendment. The Company may at any time (without the
consent of any Employer) amend any or all of the provisions of this Plan, except
that no such amendment may reduce or adversely affect any Participant's vested
Benefit as of the date of such amendment without the prior written consent of
the affected Participant. Any amendment shall be (1) subject to the approval or
ratification of The NACCO Industries, Inc. Benefits Committee and (2) in the
form of a written instrument executed by an officer of the Company. Subject to
the foregoing
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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 6.6. Termination.
(a) The Company (without the consent of any Employer), in
its sole discretion, may terminate this Plan at any time and for any reason
whatsoever, except that, subject to Subsection (b) hereof, no such termination
may reduce or adversely affect any Participant's vested Benefit as of the date
of such termination 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 Pension Benefits, including
requiring that all such Benefits be immediately distributed in the form of lump
sum payments (calculated using the assumptions specified in Section 3.1(b)(ii)).
In the event that the Company exercises its rights under this Subsection and
pays Benefits to a Participant in the form of a single lump sum, then the
Participant shall also be entitled to receive a "tax gross up payment" equal to
the sum of (A) the difference between the "Taxes" (as such term is defined in
the following sentence) which the Participant actually pays on such lump sum
payment and the Taxes which would have been paid by the Participant had the
Benefits been paid in the normal form of payment hereunder and (B) all Taxes
incurred by the Participant as a result of the receipt of this tax gross up
payment. For purposes of this Section, the terms "Taxes" means the incremental
Federal, state, local and foreign income, excise and other taxes payable by the
Participant with respect to the Benefits (and/or the tax gross up payment, as
applicable). The Company shall be solely responsible for the calculation of the
amount of the tax gross up payment and shall notify the Participant of the
amount thereof. The tax gross up payment (if any) shall be paid at the same time
as the lump sum payment of the Benefits hereunder.
ARTICLE VII - ADOPTION BY OTHER EMPLOYERS, TRANSFERS AND GUARANTEES
Section 7.1. In general.
The provisions of this Article shall apply notwithstanding any
other provision of the Plan to the contrary.
Section 7.2. Adoption of Plan by other Employers/Withdrawal.
(a) Any Controlled Group Member may adopt the Plan with
the written consent of the Company (on the authorization of the NACCO
Industries, Inc. Benefits Committee). Any such adopting employer must (i)
execute an instrument evidencing such
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adoption and (ii) file a copy of such Instrument with the Plan Administrator.
Such adoption may be subject to such terms and conditions as the Company
requires or approves. By this adoption of the Plan, Employers other than the
Company shall be deemed to authorize the Company to take any actions within the
authority of the Company under the terms of the Plan.
(b) Notwithstanding the foregoing, in the case of any
Employer that adopts the Plan and thereafter (i) ceases to exist, (ii) ceases to
be a Controlled Group Member or (iii) withdraws or is eliminated from the Plan,
it shall not thereafter be considered an Employer hereunder.
(c) Any Employer (other than the Company) which adopts
this Plan may elect separately to withdraw from the Plan and such withdrawal
shall constitute a termination of the Plan as to it; provided, however, that (i)
such terminating Employer shall continue to be an Employer for the purposes
hereof as to Participants or Beneficiaries to whom it owes obligations
hereunder, and (ii) such termination shall be subject to the limitations and
other conditions described in Section 6.6, treating the Employer as if it were
the Company.
Section 7.3. Expenses. The expenses of administering the Plan shall be
paid by the Employers, as directed by the Company.
Section 7.4. Liability for Payment/Transfers of Employment Within U.S.
(a) Subject to the provisions of Subsections (b) and (c)
hereof, each Employer shall be liable for the payment of the Excess Pension
Benefits which are payable hereunder to or on behalf of its Employees.
(b) Notwithstanding the foregoing, if an Excess Pension
Benefit payable to or on behalf of a Participant is based on the Participant's
employment with more than one U.S. Employer the following provisions shall
apply:
(i) Upon a transfer of employment, the liabilities
accrued on the books of the prior Employer shall be frozen and
the new Employer shall establish a liability on its books for
future accruals.
(ii) Upon distribution, each Employer shall be liable for
the payment of its portion of the Excess Pension Benefits and
each Employer shall (to the extent permitted by applicable
law) receive an income tax deduction for the amount of those
payments.
(c) Notwithstanding the foregoing, in the event that NMHG
Oregon, Inc. is unable or refuses to satisfy its obligations hereunder with
respect to the payment of Excess Pension Benefits to its Employees, the Company
(unless it is Insolvent) shall guarantee and be responsible for the payment
thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Section 7.5. Transfers of Employment Outside the U.S. Notwithstanding
any provision of the Plan to the contrary, in the event that a Participant
transfers employment to a Controlled Group Member (or other NMHG affiliate)
located outside of the United States, the Participant's Excess Pension Benefits
calculated hereunder shall be frozen as of such date. Such Benefits otherwise be
paid to the Participant (or his Beneficiary) in accordance with the provisions
of Article III hereof.
EXECUTED, this 26th day of February, 2003.
NACCO MATERIALS HANDLING GROUP, INC.
By: /s/ James M. Phillips
-------------------------------------
Title: Vice President Human Resources