Exhibit 10.18
THE NACCO MATERIALS HANDLING GROUP, INC.
EXCESS PENSION PLAN FOR UK TRANSFEREES
(AS AMENDED AND RESTATED AS OF JANUARY 1, 2005)
NMHG NQ/UK Excess JOBs Act Restmt
NACCO MATERIALS HANDLING GROUP, INC.
EXCESS PENSION PLAN FOR UK TRANSFEREES
NACCO Materials Handling Group, Inc. (the "Company") does hereby adopt this
amendment and restatement of the NACCO Materials Handling Group, Inc.
Excess Pension Plan for UK Transferees, on the terms and conditions
described hereinafter.
ARTICLE I - PREFACE
Section 1.1. Effective Date. This Plan was initially effective as of
October 1, 2002 for all Participants. The Effective Date of this amendment and
restatement is January 1, 2005.
Section 1.2. Purpose of the Plan. The purpose of this Plan is to provide
Participants with non-qualified supplemental pension benefits that are designed
to provide the Participants (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 through December 31, 2005.
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.
Section 1.5. American Jobs Creation Act (AJCA).
(a) Any Excess Pension Benefits (or portion thereof) that were vested
and deferred prior to January 1, 2005 and that qualify for "grandfathered
status" under Section 409A of the Code (determined in accordance with the
regulations issued thereunder) shall continue to be governed by the law
applicable to nonqualified deferred compensation prior to the addition of
Section 409A to the Code, shall be subject to the terms and conditions specified
in the Plan as in effect prior to January 1, 2005 and shall be referred to
herein as the "Grandfathered Excess Pension Benefits."
(b) The portion of a Participant's Excess Pension Benefits that does
not qualify for "grandfathered status" under Section 409A of the Code is
intended to comply with the provisions of Section 409A of the Code, as enacted
by the AJCA, so as to prevent the inclusion in gross income of any amount of
Supplemental Retirement benefit accrued hereunder in a taxable year that is
prior to the taxable year or years in which such amounts would otherwise be
actually distributed or made available to the Participant and shall be referred
to herein as the "Non-Grandfathered Excess Pension Benefits."
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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.
Section 2.4. Compensation shall mean the actual US compensation received by
the Participant from the Controlled Group through December 31, 2005. 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 2.5. 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 2.6. Employer shall mean the Company and NMHG Oregon, LLC.
Section 2.7. 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 2.8. 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 2.9. Key Employee shall mean a key employee, as defined in Code
Section 416(i) (without regard to paragraph (5) thereof) of an Employer, as long
as the stock of NACCO Industries, Inc. (or a related entity) is publicly traded
on an established securities market or otherwise on the date of the Employee's
Termination of Employment. Key Employees are identified on a Controlled
Group-wide basis and include non-resident alien Employees (whether or not such
Employees are eligible to participate in the Plan). The selected identification
date for Key Employees is December 31st. As such, any Employee who is
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classified by the Company as a Key Employee as of December 31st of a particular
Plan Year shall maintain such classification for the 12-month period commencing
the following April 1st. The Company shall have the sole and absolute discretion
to classify Employees as Key Employees hereunder. To the extent determined by
the Company, such classification may include up to 75 highly compensated
Employees (including some who do not meet the statutory requirements of a Key
Employee) as long as such determination is made in a consistent, reasonable and
good faith manner.
Section 2.10. Participant. shall mean those highly compensated or select
management employees of an Employer who (a) were participants in the UK Pension
Plan, (b) were designated by the President of the Company as a Participant in
this Plan and (c) were listed on Exhibit A to the initial Plan document.
Section 2.11. Plan shall mean the NACCO Materials Handling Group, Inc.
Excess Pension Plan for UK Transferees, as herein set forth or as duly amended.
Section 2.12. Plan Administrator shall mean the Administrative Committee
appointed under the NACCO Materials Handling Group, Inc. Profit Sharing
Retirement Plan.
Section 2.13. Plan Year shall mean the calendar year.
Section 2.14. 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 2.15. Targeted UK Pension Benefit . With respect to the
Participant, the Targeted UK Pension Benefit shall mean an amount payable to the
Participant in British Pounds Sterling equal to the annual benefit which would
have been paid to the Participant under the UK Pension Plan if the Participant
had continued to participate in the UK Pension Plan until December 31, 2005,
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) through such date. As applied to a Beneficiary, if the
Participant dies after December 31, 2005 but before terminating employment with
all members of the Controlled Group, the Targeted UK Pension Benefit payable to
the Beneficiary shall be calculated as if the Participant had died while an
active member of the UK Pension Plan (taking into account service projected to
the normal retirement date under such plan, but Compensation through December
31, 2005); provided, however, that the Beneficiary shall not be entitled to
receive the death in service lump sum benefit that would otherwise have been
payable with respect to the UK Pension Plan. Furthermore, if the Participant
dies after December 31, 2005 and after commencing payment of his Excess Pension
Benefit hereunder, the Targeted UK Pension Benefit payable to a Beneficiary
shall be calculated in accordance with the survivor benefit provisions of the UK
Pension Plan (i.e., a 50% survivor benefit and, if the Participant should die
within 5 year of his retirement date, an additional benefit calculated based on
the benefits that would have been paid to the Participant for the remainder of
the 5 year period but for his death).
Section 2.16. Termination of Employment shall mean a separation of service
as defined under Code Section 409A (and the regulations and other guidance
issued thereunder).
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Section 2.17. UK Pension Plan: shall mean the NMHG UK Retirement Plan, as
in effect from time to time.
Section 2.18. 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 2.19. US Retirement Benefits shall mean the sum of (a) the "Deemed
401(k)/Matching Contributions" (as defined in the next sentence) and (b) 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 2.20. 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.
Benefit Freeze. Notwithstanding any provision of the Plan to the contrary,
all Excess Pension Benefits under the Plan shall be frozen as of December
31, 2005. In furtherance thereof, but without limiting the foregoing, a
Participant shall not receive credit under this Plan for any service or
compensation that is earned after December 31, 2005 (except for projected
service required under the survivor benefit provisions of the UK Pension
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Plan if the Participant dies prior to his termination of employment with
the Controlled Group, as specified in Section 2.15 hereof).
(b) Time and Form of Payment.
(i) In General. 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. Notwithstanding the foregoing, in the event that the
Participant is a Key Employee, payment of the Non-Grandfathered portion of his
Excess Pension Benefit will be delayed for a period of six months following the
Participant's Termination of Employment (for any reason other than death), at
which time a single "make up" payment shall be issued.
(ii) Optional Lump Sum Payment For Grandfathered Excess Pension
Benefits 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 Grandfathered 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 Grandfathered 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 (ii) 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. Notwithstanding the foregoing, in the event that the
Participant is a Key Employee, payment of the Non-Grandfathered portion of his
Excess Pension Benefit will be delayed for a period of six months following the
Participant's Termination of Employment (for any reason other than death), at
which time a single "make up" payment shall be issued.
(iv) Other Acceleration of Payment. Notwithstanding the foregoing
payment provisions, in the event that the Plan (or a portion thereof) fails to
satisfy the requirements of Code Section 409A, the payment of Benefits under the
Plan may be accelerated; provided that the amount of such payment may not exceed
the amount required to be included as income as a result of the failure to
comply with Code Section 409A.
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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.
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 or if the payment would jeopardize the solvency of the
Employer; provided that the payment shall be made during the first calendar year
in which the funds of the Employer are sufficient to make the payment without
jeopardizing the solvency of the Employer.
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.
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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.
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.
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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.
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
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shall, to the extent permitted by law, be final and binding on all
interested persons. Such a decision shall include statements that (i) the
claimant is entitled to receive, upon request and free of charge,
reasonable access to, and copies of, all documents, records and other
information relevant to the claimant's claim for benefits and (ii) a
statement of the claimant's right to bring an action under Section 502(a)
of ERISA.
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. In
addition, 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 any 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 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 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)); to the
extent permitted by Code Section 409A. 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 (i) 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 (ii)
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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 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.
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(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, LLC
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.
EXECUTED, this 8th day of February, 2006.
NACCO MATERIALS HANDLING GROUP, INC.
By: /s/ Charles A. Bittenbender
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Title: Assistant Secretary
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