EXHIBIT 10.4
LINCOLN ELECTRIC HOLDINGS, INC.
2005 DEFERRED COMPENSATION PLAN FOR EXECUTIVES
(EFFECTIVE DECEMBER 30, 2004)
ARTICLE I PURPOSE
The Lincoln Electric Holdings, Inc. 2005 Deferred Compensation
Plan (the "Plan") is established by Lincoln Electric Holdings, Inc., effective
December 30, 2004 to allow designated management and highly compensated
employees to defer a portion of their current salary and bonus compensation.
The Plan is intended to comply with Section 409A of the Code,
created by the American Jobs Creation Act of 2004, and shall be construed and
interpreted in accordance with such intent.
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 or her 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 6.6, who are entitled to
receive distribution of the Participant's Account balance in the event
of the Participant's death.
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(g) "Board": The Board of Directors of Holdings.
(h) "Bonus": Any bonus earned by a Participant and
payable to him by the Corporation with respect to any bonus plan year
ending within a Plan Year without regard to any decreases as a result
of an election to defer 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) "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.
(j) "Committee": The Compensation Committee of the Board.
(k) "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.
(l) "Corporation": Holdings and any Participating
Employer or any successor or successors thereto.
(m) "Deferral Commitment": An agreement by a Participant
to have a specified percentage or dollar amount of his or her
Compensation deferred under the Plan.
(n) "Deferral Period": The Plan Year for which a
Participant has elected to defer a portion of his or her Compensation.
(o) "Disability": A Participant shall be considered to
have a Disability if the Participant (i) is unable to engage in any
substantial activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than twelve (12)
months, or (ii) is, by reason of any medically determinable physical or
mental impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than twelve (12)
months, receiving income replacement benefits for a period of not less
than three (3) months under the Corporation's plan providing benefits
for short term disability.
(p) "Effective Date": December 30, 2004.
(q) "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.
(r) "Employee Savings Plan": The Lincoln Electric
Holdings, Inc. Employee Savings Plan.
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(s) "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.
(t) "Financial Hardship": A severe financial hardship to
the Participant resulting from an illness or accident of the
Participant, the Participant's spouse, or a dependent of the
Participant, loss of the Participant's property due to casualty, or
other similar extraordinary and unforeseeable circumstances arising as
a result of events beyond the control of the Participant.
(u) "Holdings": Lincoln Electric Holdings, Inc., an Ohio
corporation.
(v) "Investment Funds": Has the meaning set forth in
Section 5.3.
(w) "Investment Request": An investment preference
request filed by a Participant which (i) shall apply with respect to
contributions credited to the Participant's Account until the timely
filing of a subsequent Investment Request and (ii) shall determine the
manner in which such credited contributions shall be initially
allocated by the Participant among the various Investment Funds within
the Plan. A subsequent Investment Request may be submitted in writing
to the Administrator by the Participant. Such Investment Request will
be effective on the first business day of the next calendar month
following receipt by the Administrator of such Investment Request.
(x) "Investment Re-Allocation Request": An investment
preference request filed by a Participant which shall re-direct the
manner in which earlier credited amounts to a Participant's Account, as
well as any appreciation (or depreciation) to-date, are invested within
the deemed Investment Funds available in the Plan. An Investment
Re-Allocation Request may be submitted in writing to the Administrator
by the Participant. Such Investment Re-Allocation Request will be
effective on the first business day of the next calendar month with
respect to the balance of the Participant's Account following receipt
by the Administrator of such Investment Re-Allocation Request.
(y) "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.
(z) "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.
(aa) "Participation Agreement": The Agreement submitted by
a Participant to the Administrator with respect to one (1) or more
Deferral Commitments.
(bb) "Plan": The Plan set forth in this instrument as it
may, from time to time, be amended.
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(cc) "Plan Year": The twelve (12) - month period beginning
January 1 through December 31, commencing with the Plan Year beginning
January 1, 2005.
(dd) "Retirement": Termination of employment with the
Corporation on or after attainment of age sixty (60), or on or after
attainment of age fifty-five (55) and completion of twenty-five (25)
years of service (as measured under the Corporation's Retirement
Annuity Program).
(ee) "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 will also include a date
selected by the Participant pursuant to Section 6.3.
(ff) "Specified Employee": An Employee (up to a maximum of
fifty (50) individuals) who, at any time during the Plan Year, is (i)
an officer of the Corporation having an annual compensation greater
than $130,000, (ii) a five percent (5%) owner of the Corporation, or
(iii) a one percent (1%) owner of the Corporation having an annual
compensation from the Corporation of more than $150,000.
Section 2.2 Construction. The masculine or feminine gender,
where appearing in the Plan, shall be deemed to include the opposite 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
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 (i) with
respect to a Deferral Commitment of an eligible Employee's Base Salary,
by the last business day immediately preceding the applicable Deferral
Period, and (ii) with respect to a Deferral Commitment of an eligible
Employee's Bonus, by a date not later than six (6) months prior to the
end of the applicable Deferral Period in which the Bonus is paid.
(c) Initial Year of Participation. Except as provided in
Section 3.1(d), in the event that an individual first becomes eligible
to participate during a Plan Year and wishes to elect a Deferral
Commitment with respect to the Compensation earned by and payable to
the individual during such Plan Year, a Participation Agreement must be
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submitted to the Administrator no later than thirty (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) Participation for 2005. In the event that an
individual wishes to elect a Deferral Commitment with respect to the
Compensation earned by and payable to the individual during the Plan
Year beginning January 1, 2005, a Participation Agreement must be
submitted to the Administrator on or before March 15, 2005. Any
Deferral Commitments elected in such Participation Agreement shall be
effective only with regard to Compensation that has not been paid or
become payable at the time of election, as provided in A-21 of Notice
2005-1, published by the Treasury Department and the Internal Revenue
Service on December 20, 2004. 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 2005.
(e) 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 or her 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 or her Account will be deemed to be cancelled.
Section 3.3 Amount of Deferral.
(a) With respect to each Deferral Period, a Participant
may elect to defer a specified dollar amount or percentage of his or
her Compensation, provided the amount the Participant elects to defer
under this Plan and the Employee Savings Plan shall not exceed the sum
of eighty percent (80%) of his or her Base Salary plus eighty percent
(80%) of his or her Bonus with respect to such Deferral Period. Such
amount to be deferred shall be indicated in the Participant's
Participation Agreement. A Participant may choose to have amounts
deferred under this Plan deducted from his or her Base Salary, Bonus or
a combination of both, which shall also be indicated in the
Participant's Participation Agreement.
(b) For the first Deferral Period, 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
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effective date of the Participation Agreement or the date of filing the
Participation Agreement with the Administrator, provided the total
deferred amount for such Deferral Period does not exceed the annual
limitations under this Section 3.3 computed for the calendar year.
(c) 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 Deferral Period immediately
succeeding the Deferral Period in which such notice is filed with the
Administrator.
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 (1) or more sub-accounts of a
Participant's Account, if the Corporation determines that such sub-accounts are
necessary or appropriate in administering the Plan.
Section 4.2 Elective Deferred Compensation. A Participant's
Compensation that is deferred pursuant to a Deferral Commitment shall be
credited to the Participant's Account within thirty (30) days following the date
the corresponding non-deferred portion of his or her Compensation would have
been paid to the Participant. Any withholding of taxes or other amounts with
respect to Deferred Compensation which is required by state, federal or local
laws shall be withheld from the Participant's Deferred Compensation.
Section 4.3 Determination of Accounts.
(a) 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.
(b) 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 or her death, his or her Beneficiary during the
Accounting Period ending on such Accounting Date.
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(b) The Participant's Account shall next be credited or
debited, as the case may be, on a daily basis with the performance of each
deemed Investment Fund based on the manner in which the balance of such
Participant's Account has been allocated among the deemed Investment Funds
provided for in Article V. The performance of each deemed Investment Fund
(either positive or negative) will be determined by the Administrator, in its
sole discretion.
(c) Earnings on any amounts deemed to have been invested
in any deemed Investment Fund will be deemed to have been reinvested as the
Committee so determines.
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 or her death, to his or her Beneficiary
showing the status of his or her Account as of the end of the Plan Year, any
changes in his or her 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 or her
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 or her death, to his or her
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 Investment Funds 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 (1) 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 Deemed Investments. The Committee may designate
one (1) or more separate investment funds or vehicles or measures for crediting
earnings, 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 selected by the Committee), in which the amount
credited to a Participant's Account will be deemed to be invested (collectively,
the "Investment Funds"). An Investment Request or Investment Re-Allocation
Request will advise the Administrator as to the Participant's preference with
respect to Investment Funds for all or
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some portion of the amounts credited to a Participant's Account in specified
multiples of one percent (1%).
Section 5.4 Change of Investment Request Election.
(a) A Participant may change his or her Investment
Request prospectively as of the first business day of any calendar
month by giving the Administrator prior written notice by filing an
Investment Request, with respect to contributions subsequently credited
to a Participant's Account.
(b) A Participant may change his or her Investment
Re-Allocation Request prospectively as of the first business day of any
calendar month by giving the Administrator prior written notice by
filing an Investment Re-Allocation Request, with respect to all or a
portion of the Participant's Account.
(c) 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 Investment Request or Investment Re-Allocation
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.
(d) Notwithstanding any provision of the Plan to the
contrary:
(i) The Administrator, in its sole and absolute
discretion (but subject to the requirements
of applicable law) may temporarily suspend,
in whole or in part, certain Plan
transactions, including without limitation,
the right to change investment preference
allocation elections and/or the right to
receive a distribution or withdrawal from a
Participant's Account in the event of any
conversion, change in recordkeepers, change
in Investment Funds and/or Plan merger,
spin-off or similar corporate change.
(ii) In the event of a change in Investment Funds
and/or a Plan merger, spin-off or similar
corporate change, the Administrator, in its
sole and absolute discretion may decide to
map investments from a Participant's prior
investment preference allocation elections
to the then available Investment Funds under
the Plan. In the event that investments are
mapped in this manner, the Participant will
be permitted to reallocate funds among the
Investment Funds (in accordance with this
Section 5.4) after the suspension period
described in Section 5.4(d)(i), if any, has
ended.
ARTICLE VI DISTRIBUTION OF BENEFITS
Section 6.1 Settlement Date. A Participant or, in the event of
his or her death, his or her Beneficiary will be entitled to distribution of the
balance of his or her Account, as provided in this Article VI, following his or
her Settlement Date or Dates.
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Section 6.2 Amount to be Distributed. The amount to which a
Participant or, in the event of his or her death, his or her 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 or her 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 one
(1) year after the date 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 or her 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.
(a) 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 (30) 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 or her death, to his or her Beneficiary, of the balance of the
Participant's Account, as determined under Section 6.2, under one (1)
of the forms provided in this Section 6.4, as specified in the
Participant's Participation Agreement.
(b) Notwithstanding the foregoing, if elected by the
Participant in his or her Participation Agreement, 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 (65) or (ii) with respect to a
lump sum distribution, 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 or her Retirement, the balance of his
or her Account shall be distributed in a single lump sum payment;
provided, however, that if the Participant is a Specified Employee,
said lump-sum distribution may not be made before the date which is six
(6) months after the date of the Participant's termination of
employment.
(c) Distribution of a Participant's Account following his
or her Retirement or death shall be made in one (1) of the following
forms as elected by the Participant in his or her Participation
Agreement:
(i) by payment in cash in five (5) annual
installments; or
(ii) by payment in cash in ten (10) annual
installments; or
(iii) by payment in cash in fifteen (15) annual
installments; or
(iv) by payment in cash in a single lump sum;
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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; provided further,
that if the Participant is a Specified Employee, said lump-sum
distribution may not be made before the date which is six (6) months
after the date of the Participant's termination of employment.
(d) The Participant's election of the form and date of
distribution shall be provided for in the Participant's Participation
Agreement. 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, however, that any subsequent
election that alters the payment form designated in the Participant's
original Participation Agreement (i) may not take effect for at least
twelve (12) months; (ii) must be made at least twelve (12) months prior
to the due date of the first payment under the Participant's original
Participation Agreement; and (iii) must extend payment of a
Participant's Account at least five (5) years from the due date of the
first payment under the Participant's original Participation Agreement.
(e) 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.
(f) If a Participant fails to make an election in a
timely manner as provided in this Section 6.4 or Section 6.5,
distribution shall be made in a single lump sum payment.
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 (1) year
after such death, the heirs-at-law of such survivor (in the proportions
in which they would inherit his or her intestate personal property)
shall be the Beneficiaries to whom the then remaining balance of the
Participant's Account shall be distributed.
Prior to the Participant's death, 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 or her 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 or her 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 (1) or more of the following
ways: (i) directly to him; (ii) to his or her legal guardian or conservator; or
(iii) to his or her spouse or to any other person, to be expended for his or her
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, plus amounts necessary to pay taxes reasonably anticipated as a result
of the distribution and are not otherwise available through reimbursement or
compensation by insurance or otherwise or by liquidation of the Participant's
assets (to the extent that the liquidation of such assets would not itself cause
severe financial hardship to the Participant). No distributions pursuant to this
Section 6.7 may be made in excess of the value of the Participant's Account at
the time of such distribution.
Section 6.8 Coordination with Other Benefits. 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.
ARTICLE VII ADMINISTRATION, AMENDMENT AND TERMINATION
Section 7.1 Administration. The Plan shall be administered by
an Administrator consisting of one (1) 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 or her 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.
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Section 7.3 Amendment, Termination and Withdrawal.
(a) In general. The Plan may be amended from time to time
or may be terminated at any time by the Board. Except as provided in
Section 7.3(b), 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.
(b) Compliance with Section 409A of the Code. The Plan is
intended to comply with Section 409A of the Code and shall be construed
and interpreted in accordance with such intent. The Plan may be amended
from time to time by the Board to effect required compliance under
Section 409A of the Code as additional guidance is issued.
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 Procedure.
(a) Except as otherwise provided in the Plan, the
Administrator will determine the rights of any Participant to any
benefits hereunder. Any employee or former employee of the Company who
believes that he has not received any benefit under the Plan to which
he believes he is entitled, may file a claim in writing with the
Administrator. The Administrator will, no later than ninety (90) days
after the receipt of a claim, either allow or deny the claim by written
notice to the claimant; provided, however, that if the Administrator
determines that special circumstances require an extension of time for
processing of an employee's claim, the Administrator will provide
written notice of the extension to the employee within such ninety
(90)-day period. In no event will the extension of time to process the
claim exceed a period of ninety (90) days from the end of the initial
ninety (90)-day review period. If a claimant does not receive written
notice of the Administrator's decision on his or her claim within the
first ninety (90)-day review period (or the one-hundred and eighty
(180)-day review period, in the case of special circumstances as
determined by the Administrator), the claim will be deemed to have been
denied in full.
(b) A denial of a claim by the Administrator, wholly or
partially, will be written in a manner calculated to be understood by
the claimant and will include:
(i) the specific reason or reasons for the
adverse determination;
12
(ii) specific reference to pertinent Plan
provisions on which the denial is based;
(iii) 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
(iv) an explanation of the claim review procedure
and the time limits applicable to such
procedures, including a statement of a
claimant's right to bring a civil action
under ERISA following an adverse benefit
determination on review.
(c) A claimant whose claim is denied (or his duly
authorized representative) may, within sixty (60) days after receipt of
denial of his or her claim, request a review of such denial by the
Committee by filing with the Secretary of the Committee a written
request for review of his or her claim. If the claimant does not file a
request for review with the Committee within such sixty (60)-day
period, the claimant will be deemed to have acquiesced in the original
decision of the Committee on his or her claim. If a written request for
review is so filed within such sixty (60)-day period, the Committee
will conduct a full and fair review of such claim. During such full
review, the claimant will be given the opportunity to, upon request and
free of charge, obtain reasonable access to and copies of all
documents, records and other information that are pertinent to his or
her claim and to submit issues and comments in writing. The Committee
will notify the claimant of its decision on review within sixty (60)
days after receipt of a request for review; provided, however, that if
the Committee determines that special circumstances require an
extension of time for processing of an employee's claim, the Committee
will provide written notice of the extension to the employee within
such sixty (60)-day review period. In no event will the extension of
time to process the claim exceed a period of sixty (60) days from the
end of the initial sixty (60)-day review period. If a claimant does not
receive written notice of the Committee's decision on his or her claim
within the first sixty (60)-day review period (or the one-hundred and
eighty (180)-day review period, in the case of special circumstances as
determined by the Committee), the claim will be deemed to have been
denied on review. Notice of the decision on review will be in writing.
Section 7.6 Expenses. All expenses of the Plan shall be paid
by the Corporation from funds other than those deemed Investment Funds 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.
13
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; Withholding Indemnification
Agreement. 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; provided, however, that the Corporation, in its sole
discretion may determine not to withhold or cause to be withheld such taxes from
any amounts payable under this Plan to a Participant who is a non-resident of
the State of Ohio, provided, that such Participant submits a tax withholding
indemnification agreement (in the form set forth by the Corporation) to the
Administrator no later than thirty (30) days prior to a Participant's Settlement
Date.
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.
14
IN WITNESS WHEREOF, Lincoln Electric Holdings, Inc. has caused
this Lincoln Electric Holdings, Inc. 2005 Deferred Compensation Plan for
Executives to be executed in its name as of December 30, 2004.
LINCOLN ELECTRIC HOLDINGS, INC.
By:
------------------------------------
Its: Chairman, Chief Executive Officer
Date: December __, 2004
15
LINCOLN ELECTRIC HOLDINGS, INC.
2005 DEFERRED COMPENSATION PLAN FOR EXECUTIVES
(EFFECTIVE DECEMBER 30, 2004)
LINCOLN ELECTRIC HOLDINGS, INC.
2005 DEFERRED COMPENSATION PLAN FOR EXECUTIVES
(EFFECTIVE DECEMBER 30, 2004)
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.....................................................................5
Section 3.3 Amount of Deferral.........................................................................5
Section 3.4 Modification of Deferral Commitments.......................................................6
ARTICLE IV PARTICIPANTS' ACCOUNTS.....................................................................6
Section 4.1 Establishment of Accounts..................................................................6
Section 4.2 Elective Deferred Compensation.............................................................6
Section 4.3 Determination of Accounts..................................................................6
Section 4.4 Adjustments to Accounts....................................................................6
Section 4.5 Statement of Accounts......................................................................7
Section 4.6 Vesting of Accounts........................................................................7
ARTICLE V FINANCING OF BENEFITS......................................................................7
Section 5.1 Financing of Benefits......................................................................7
Section 5.2 Security For Benefits......................................................................7
Section 5.3 Deemed Investments.........................................................................7
Section 5.4 Change of Investment Request Election......................................................8
ARTICLE VI DISTRIBUTION OF BENEFITS...................................................................8
Section 6.1 Settlement Date............................................................................8
Section 6.2 Amount to be Distributed...................................................................9
Section 6.3 In Service Distribution....................................................................9
Section 6.4 Form of Distribution.......................................................................9
Section 6.5 Beneficiary Designation...................................................................10
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TABLE OF CONTENTS
(continued)
PAGE
Section 6.6 Facility of Payment.......................................................................11
Section 6.7 Hardship Distributions....................................................................11
Section 6.8 Coordination with Other Benefits..........................................................11
ARTICLE VII ADMINISTRATION, AMENDMENT AND TERMINATION.................................................11
Section 7.1 Administration............................................................................11
Section 7.2 Plan Administrator........................................................................11
Section 7.3 Amendment, Termination and Withdrawal.....................................................12
Section 7.4 Successors................................................................................12
Section 7.5 Claims Procedure..........................................................................12
Section 7.6 Expenses..................................................................................13
ARTICLE VIII MISCELLANEOUS.............................................................................13
Section 8.1 No Guarantee of Employment................................................................13
Section 8.2 Applicable Law............................................................................14
Section 8.3 Interests Not Transferable................................................................14
Section 8.4 Severability..............................................................................14
Section 8.5 Withholding of Taxes; Withholding Indemnification Agreement...............................14
Section 8.6 Top-Hat Plan..............................................................................14
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