Exhibit 10.19
THE NORTH AMERICAN COAL CORPORATION
SUPPLEMENTAL RETIREMENT BENEFIT PLAN
(AS AMENDED AND RESTATED AS OF JANUARY 1, 2005)
WHEREAS, The North American Coal Corporation (the "Company") is the
sponsor of the Combined Defined Benefit Plan for NACCO Industries, Inc. and Its
Subsidiaries (the "Pension Plan"); and
WHEREAS, certain provisions of the Internal Revenue Code of 1986, as
amended, placed certain limitations on the amount of benefits that would
otherwise be made available under the Pension Plan for certain participants; and
WHEREAS, the Company and other participating employers desired to
provide the benefits that would otherwise have been payable to such participants
under the Pension Plan except for such limitations; and
WHEREAS, effective as of August 31, 1994, (1) The NACCO Industries,
Inc. ("NACCO") $200,000 Cap Plan was merged into and became a part of The NACCO
Industries, Inc. Supplemental Retirement Benefit Plan (the "Plan"), (2)
sponsorship of the merged Plan was transferred from NACCO to the Company, and
(3) the Plan was renamed as "The North American Coal Corporation Supplemental
Retirement Benefit Plan;" and
WHEREAS, effective as of December 31, 1993, benefits under the Pension
Plan for NACCO employees were frozen, except for certain cost-of-living
adjustments ("COLAs"); and
WHEREAS, effective as of December 31, 2004, benefits under the Pension
Plan for the majority of the employees of the Company and all other
participating employers were also frozen, except for certain COLAs (including
the benefits of all of the employees who are Participants in this Plan); and
WHEREAS, benefits under this Plan were temporarily frozen as of
December 31, 2004 as a result of the enactment of the American Jobs Creations
Act (the "AJCA").
NOW, THEREFORE, the Company hereby amends and restates the Plan,
effective as of January 1, 2005, in order to lift the temporary benefit freeze
and to bring the Plan into compliance with the requirements of the AJCA.
NA Coal NQ/SERP JOBS Act Restatement
ARTICLE I
PREFACE
Section 1.1 Effective Date. The original effective date of the Plan was
January 1, 1983. The effective date of this amendment and restatement of the
Plan is January 1, 2005.
Section 1.2 Purpose of the Plan. The purpose of this Plan is to provide
additional retirement benefits for certain management and highly compensated
employees of the Company (and other participating Employers).
Section 1.3 Governing Law. This Plan shall be regulated, construed and
administered under the laws of the State of Ohio, except when preempted by
federal law.
Section 1.4 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 Severability. If any provision of this Plan or the application
thereof to any circumstances(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 1.6 American Jobs Creation Act (AJCA).
(a) Any Supplemental Retirement Benefit (or portion thereof) that was
vested and deferred prior to January 1, 2005 and that qualifies 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 Supplemental Retirement Benefits".
(b) The portion of a Participant's Supplemental Retirement Benefit
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 Participants and shall be
referred to herein as the "Non-Grandfathered Supplemental Retirement Benefits."
ARTICLE II
DEFINITIONS
Section 2.1 Words and phrases used herein with initial capital letters
which are defined in a Pension Plan are used herein as so defined, unless
otherwise specifically defined herein or the context clearly indicates
otherwise. The following words and phrases when used in this Plan with initial
capital letters shall have the following respective meanings, unless the context
clearly indicates otherwise:
(1). "Actual Pension Plan Benefit" shall mean the amount of the monthly
benefit in fact payable to the Participant or his Beneficiary under the Pension
Plan.
(2). "Beneficiary".
(a) In General. The term "Beneficiary" shall mean the person who is
entitled to receive part or all of a pension or other benefit payable with
respect to the Participant under a Pension Plan.
(b) Change of Beneficiaries. Notwithstanding the foregoing, each
Participant may at any time and from time to time, before and after retirement,
change his Beneficiary hereunder without the consent of any existing Beneficiary
or any other person. Therefore, the Beneficiary under the Plan need not be the
same as the Beneficiary under the Pension Plan. However, as described in
Subsection (c) of this Section, the Beneficiary under the Pension Plan shall be
used as the "measuring life" for purposes of the amount and duration of the
Supplemental Retirement Benefits payable to any Beneficiary hereunder. The
change of a Beneficiary under the Plan may be made, and may be revoked, only by
an instrument (in a form acceptable to the Company) signed by the Participant
and filed with the Plan Administrator prior to the Participant's death. If two
or more persons designated as a Participant's Beneficiary are in existence, the
amount of any payment to the Beneficiary under this Plan shall be divided
equally among such persons unless the Participant's designation specifically
provided to the contrary.
(c) Effect of Change of Beneficiary. Supplemental Retirement Benefits
shall be payable to a Beneficiary hereunder only so long as Actual Pension Plan
Benefits are being paid to the Beneficiary under the Pension Plan. In the event
that the Beneficiary hereunder is different than the Beneficiary under the
Pension Plan, (i) if the Beneficiary hereunder dies after the Participant but
while the Beneficiary under the Pension Plan is still living, any remaining
payments hereunder shall be payable, as they come due, to the estate of the
Beneficiary hereunder or, if applicable, to the contingent Beneficiary
designated hereunder by the Participant, (ii) if the Beneficiary hereunder
predeceases the Beneficiary under the Pension Plan and the Participant, the
Beneficiary hereunder shall revert to the Beneficiary last effectively
designated under the Pension Plan unless and until the Participant again makes a
change of Beneficiary pursuant to Subsection (b) above, and (iii) if the
Beneficiary under the Pension Plan predeceases the Beneficiary hereunder,
Supplemental Retirement Payments hereunder shall cease.
(d) Community Property States. In states with community property laws,
a Participant may designate someone other than his Spouse as his Beneficiary
hereunder to the extent of such Spouse's community property interest in the
Supplemental Retirement Payments, or revoke or change his Beneficiary
designation hereunder to such extent, only with the consent of his Spouse. To
the extent necessary, the provisions of this Subsection (d) shall apply to each
person who is or was a Spouse of a Participant regardless of whether the
Participant and such person are married at the applicable time. Notwithstanding
the foregoing, however, a Participant's present or former Spouse shall have no
greater rights under this Plan than such Spouse has pursuant to the applicable
state community property laws.
(3). "Code" shall mean the Internal Revenue Code of 1986, as it has been
and may be amended from time to time.
(4). "Code Limitations" shall mean the limitations imposed by Sections
401(a)(17) and 415 of the Code, or any successor(s) thereto, on the amount of
the benefits which may be payable to a Participant from the Pension Plan.
(5). "Compensation". Effective January 1, 1995, Compensation shall have the
same meaning as under the Pension Plan, except that Compensation (a) shall not
be subject to the dollar limitation imposed by Code Section 401(a)(17) and (b)
shall be deemed to include the amount of compensation deferred by a Participant
under The North American Coal Corporation Deferred Compensation Plan for
Management Employees.
(6). "Employer(s)" shall mean the Company and/or any other member of the
Controlled Group that has previously adopted this Plan.
(7). "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 (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 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.
(8). "Minimum Benefit" shall mean the amount of a Participant's "excess
retirement benefit" under The NACCO Industries, Inc. $200,000 Cap Plan as of
August 31, 1994.
(9). "Participant" shall mean each Employee of an Employer (a) who is
either a highly compensated or a management employee, (b) who is a participant
in a Pension Plan, and (c) who, as a result of participation in this Plan, is
entitled to a Supplemental Retirement Benefit under this Plan. Upon a
termination of employment with the Controlled Group, a former Participant shall
remain as an inactive Participant until all vested Supplemental Retirement
Benefits have been paid to him or his Beneficiary.
(10). "Pension Plan" shall mean The NACCO Industries, Inc. Pension Plan for
Salaried Employees (terminated November 30, 1986), or Part I of the Combined
Defined Benefit Plan for
NACCO Industries, Inc. and Its Subsidiaries, which includes The NACCO
Industries, Inc. Pension Plan for Salaried Employees which was merged into such
plan on December 31, 1993) ("Plan 005"). Pension accruals under Plan 005 for
employees of NACCO Industries, Inc. were generally frozen as of December 31,
1993 and pension accruals under Plan 005 for employees of all other Employers
were generally frozen as of December 31, 2004; provided that such frozen
benefits are increased by a specified percentage for each year until the
employee terminates employment with the Controlled Group (in accordance with the
terms of Plan 005).
(11). "Plan" shall mean The North American Coal Corporation Supplemental
Retirement Benefit Plan, as it may be amended from time to time.
(12). "Plan 006 Participants" shall mean those Participant (a) who were
participants in The NACCO Industries, Inc. Pension Plan for Salaried Employees
on December 31, 1993, (b) who were employed by NACCO Industries, Inc. on
December 31, 1993 or who transferred employment from NACCO Industries, Inc. to
another Controlled Group Member during 1993, and (c) whose Compensation exceeded
$100,000 for the 1993 Plan Year.
(13). "Supplemental Retirement Benefit" shall mean the retirement benefits
determined under Article III.
(14) "Termination of Employment" shall mean a separation of service as
defined under Code Section 409A (and the regulations and other guidance issued
thereunder).
ARTICLE III
SUPPLEMENTAL RETIREMENT BENEFIT
Section 3.1 Amount of Supplemental Retirement Benefit.
(1) Eligibility. Each Participant or Beneficiary of a deceased
Participant (a) whose benefits under the Pension Plan payable on or after the
Effective Date were reduced due to the Code Limitations, or (b) who is or was a
Participant in The North American Coal Corporation Deferred Compensation Plan
for Management Employees who defers Compensation thereunder on or after the
Effective Date, shall be entitled to a Supplemental Retirement Benefit, which
shall be determined as hereinafter provided.
(2) Amount. The Supplemental Retirement Benefit shall be a monthly
retirement benefit equal to the difference between (a) the amount of the monthly
benefit payable to the Participant or his Beneficiary under the Pension Plan,
determined under the Pension Plan as in effect on the date of the Participant's
termination of employment with the Controlled Group (and payable in the same
optional form as his Actual Pension Plan Benefit) but calculated as if (i) the
Pension Plan did not contain the Code Limitations and (ii) the definition of
"Compensation" contained in Section 2.1(5) hereof were substituted for the
definition of Compensation under the Pension Plan and (b) the amount of the
Actual Pension Plan Benefit. Notwithstanding the foregoing, in no event shall
a Participant's Supplemental Retirement Benefit hereunder be less than the
amount of the Participant's Minimum Benefit.
(3) Effect of QDRO. In the event that any portion of a Participant's
benefit under any Pension Plan is allocated to an alternate payee pursuant to
the terms of a qualified domestic relations order, the Participant's
Supplemental Retirement Benefit hereunder shall be calculated without taking
into account such allocation. In no event may an alternate payee receive a
distribution or an allocation of any portion of a Supplemental Retirement
Benefit hereunder.
(4) Withholding/Taxes. To the extent required by applicable law, the
Employers shall withhold from the Supplemental Retirement Benefits any taxes
required to be withheld therefrom by an federal, state or local government.
Section 3.2 Additional Supplemental Retirement Benefits.
(1) Additional Benefits for Plan 006 Participants. In addition to the
Supplemental Retirement Benefit described in Section 3.1, the Plan 006
Participants shall also receive the Supplemental Retirement Benefit described in
this Section 3.2. A Plan 006 Participant shall receive a monthly Supplemental
Retirement Benefit in an amount equal to the sum of A plus B, where:
A = the difference between (1) the Indexed Merged Plan Benefit (as
defined in the Pension Plan) that would be payable to the Plan
006 Participant if he were eligible for such Benefit and (2) the
Plan 006 Participant's accrued benefit under the Merged Plan as
of December 31, 1993; and
B = the difference between (1) the Plan 006 Participant's
Supplemental Retirement Benefit under this Plan as of December
31, 1993, expressed as a monthly benefit payable in the form of a
single life annuity (without ancillary benefits) commencing on
the Plan 006 Participant's Normal Retirement increased at the
rate of 4%, compounded annually, for the number of full years
between January 1, 1994 and the earlier of the Plan 006
Participant's first termination of employment for any reason with
the Controlled Group (including retirement, death, disability) or
the termination of the Plan, with simple interest at the rate of
.333% per month for any remaining five months to the earlier of
such termination of employment or the termination of the Plan,
and (2) the Plan 006 Participant's Supplemental Retirement
Benefit.
(2) Additional 1994 Special Early Retirement Window Benefits. In
addition to the Supplemental Retirement Benefit described in Section 3.1, a
Participant who (i) is an Employee (other than an officer) of The North American
Coal Corporation or Bellaire Corporation, (ii) has attained at least age 55 and
is credited with at least 7 years of Benefit Service under The North American
Coal Corporation Salaried Employees Pension Plan ("Plan 005") or has attained at
least age 52 and is credited with at least 10 years of Benefit Service under
Plan 005, in either case by December 31, 1994, (iii) terminated employment with
the Controlled Group on or after August 1, 1994 and on or prior to December 31,
1994, and (iv) is a Highly Compensated Employee whose Compensation for the 1993
or 1994 Plan Year was at least $100,000 (a "Window Participant") shall also
receive the Supplemental Retirement Benefit described in this
Section. The additional Supplemental Retirement Benefit shall be a monthly
amount equal to the difference between (a) the amount of monthly benefit payable
to the Window Participant or his Beneficiary under Plan 005, calculated by
adding an additional three years of Benefit Service or three years of age (or
any combination thereof, as elected by the Window Participant) to the years of
Benefit Service and/or age otherwise used for purposes of calculating a Pension
under Plan 005 (to the extent that such additions result in an increased Pension
thereunder) and (b) the amount of the actual Pension Plan Benefit.
(3) Additional 1998 Special Early Retirement Window Benefits.
(a) The following provisions shall apply to Participants who (i) are
Employees (other than officers) of The Coteau Properties Company or The Falkirk
Mining Company, (ii) are paid on a semi-monthly basis, (iii) have attained at
least age 50 and have been credited with at least 10 years of Benefit Service by
July 15, 1998, (iv) effectively elected by August 31, 1998, in writing on a form
provided by the Employers, to retire on January 4, 1999 and (v) are highly
compensated employees (as defined in Code Section 414(q)) whose Compensation for
the 1997 and 1998 Plan Years was at least $100,000 (a "1998 Window
Participant").
(b) In addition to the Supplement Retirement Benefit described in Section
3.1, the 1998 Window Participants shall also receive the following additional
Supplemental Retirement Benefits:
(i) A monthly amount equal to the difference between (A) the amount of the
monthly benefit payable to the 1998 Window Participant or his Beneficiary under
Plan 005, calculated by adding an additional sixty months of Benefit Service or
sixty months of Age (or any combination thereof not exceeding sixty total
months, as elected by the 1998 Window Participant) to the years of Benefit
Service and/or Age otherwise used for purposes of calculating a Pension under
Plan 005 (to the extent that such additions result in an increased Pension
thereunder) and (B) the amount of the Actual Pension Benefit.
(ii) For 1998 Window Participants who have not attained age 62 by January
4, 1999,a non-qualified Social Security Supplement in the amount of $1,000 per
month. The Social Security Supplement shall automatically be payable for the
period from the first day of the month after the end of the 1998 Window
Participant's pay-through date for vacation pay purposes until and including the
month in which the 1998 Window Participant reaches age 62 and is eligible to
apply for Social Security benefits (whether or not he or she actually applies
for such benefits). In the event of the death of the 1998 Window Participant
prior to reaching age 62, the Social Security Supplement shall continue to be
paid to the surviving Spouse of the 1998 Window Participant (if any) until and
including the month in which the 1998 Window Participant would have attained age
62 if he or she had lived.
Section 3.3 Time and Manner of Payment.
(1) Persons In Pay Status On Or Before December 31, 2006. The
Supplemental Retirement Benefit of a Participant (or Beneficiary) who goes into
pay status on or before December 31, 2006 shall commence at the same time and
under the same conditions as the benefits payable to the Participant (or
Beneficiary) under the Pension Plan. The
Supplemental Retirement Benefit shall be payable in the same form and for the
same duration as the benefits payable to the Participant (or Beneficiary) under
the Pension Plan. Notwithstanding the foregoing, if the Participant is a Key
Employee, payment of the Non-Grandfathered portion of the Supplemental
Retirement Benefit shall be delayed for a period of six months following the
date of the Participant's Termination of Employment, at which time, a single
"make up" payment shall be issued. Notwithstanding the foregoing, the provisions
of Section 3.2(3) shall govern the timing and form of payment of the Social
Security Supplement to the 1998 Window Participants. In addition, the
Supplemental Retirement Benefit for a 1998 Window Participant who has not
attained age 55 by January 4, 1995 may commence to be paid under this Plan at
the time and in the form elected by such Participant; provided, however, that
(i) if such Participant elects to commence the Supplemental Retirement Benefit
before the earliest date on which the Actual Pension Plan Benefit becomes
payable, the Supplemental Retirement Benefit payable hereunder shall be reduced
by the Actual Pension Plan Benefit on the earliest date on which such Actual
Pension Plan Benefit becomes payable under the Pension Plan, (ii) if such
Participant does not elect to commence the Supplemental Retirement Benefit until
on or after the earliest date on which the Actual Pension Plan Benefit becomes
payable, the Supplemental Retirement Benefit payable hereunder shall be reduced
by the Actual Pension Plan Benefit payable on the date on which the Supplemental
Retirement Benefit commences, and (iii) for purposes of this sentence, the term
"Actual Pension Plan Benefit" shall mean the monthly benefit that would be
payable to the Participant or his Beneficiary under the Pension Plan if paid in
the same form as the Supplemental Retirement Benefit.
(2) Persons Going Into Pay Status After December 31, 2006. The
Grandfathered Supplemental Retirement Benefit of a Participant (or Beneficiary)
who goes into pay status after December 31, 2006 shall commence at the same time
and under the same conditions as the benefits payable to the Participant (or
Beneficiary) under the Pension Plan. The Grandfathered Supplemental Retirement
Benefit shall be payable in the same form and for the same duration as the
benefits payable to the Participant (or Beneficiary) under the Pension Plan. The
Non-Grandfathered Supplemental Retirement Benefit of a Participant (or
Beneficiary) who goes into pay status after December 31, 2006 will be paid in
the form of a single life annuity commencing at the later of the Participant's
Termination of Employment or attainment of age 55. Notwithstanding the
foregoing, if the Participant is a Key Employee, payment of the
Non-Grandfathered Supplemental Retirement Benefit shall be delayed for a period
of six months following the date of the Participant's Termination of Employment,
at which time, a single "make up" payment shall be issued.
(3) Cash-Out of Small Benefits. Notwithstanding the foregoing, if the
present value of a Participant's or Beneficiary's Supplemental Retirement
Benefit hereunder at the time of the Participant's Termination of Employment is
$10,000 or less, such Benefit shall be paid as soon as practicable following
such Termination in a lump sum that is the Actuarial Equivalent of such Benefit;
provided, however, that if the Participant is a Key Employee, payment of the
Non-Grandfathered portion of the Supplemental Retirement Benefit shall be
delayed for a period of six months following the date of the Participant's
Termination of Employment, at which time, a single "make up" payment shall be
issued. Such $10,000 amount shall be calculated using an interest rate equal to
the Applicable Interest Rate in effect on January 1 of the Plan Year in which
the distribution is made. The Supplemental Retirement Benefit described in
Section 3.2(2) shall not be subject to the provisions of this Subsection.
Section 3.4 Liability for Payment.
(1) The Employer by which the Participant was employed at the time of
his termination of employment with the Controlled Group shall pay the
Supplemental Retirement Benefit to the Participant and/or his Beneficiary, but
such Employer's liability hereunder shall be limited to its proportionate share
of such Supplemental Retirement Benefit, determined as hereinafter provided. If
the benefits payable to the Participant and/or his Beneficiary under a Pension
Plan are based on the Participant's employment with more than one Employer, the
amount of the Supplemental Retirement Benefit shall be shared by all such
Employers (by reimbursement to the Employer making such payment) as may be
agreed to between them in good faith, taking into consideration the
Participant's Benefit Service and Compensation paid by each such Employer and as
will permit the deduction (for purposes of federal income taxes) by each such
Employer of its portion of the payments made and to be made hereunder.
(2) The liabilities of the Employers hereunder shall be several
liabilities and no Employer shall be liable for the default of any other
Employer hereunder, even though it has, for convenience of administration,
agreed to pay directly to the Participant or Beneficiary the entire Supplemental
Retirement Benefit as provided in Subsection (1) of this Section.
ARTICLE IV
VESTING
Section 4.1 Vesting. All Participants are 100% fully vested in their
Supplemental Retirement Plan Benefits hereunder.
ARTICLE V
MISCELLANEOUS
Section 5.1 Limitation on Rights of Participants and Beneficiaries - No
Lien. This Plan is an unfunded, nonqualified plan and the entire cost of this
Plan shall be paid from the general assets of one or more of the Employers. No
trust has been established for the Participants or Beneficiaries. No liability
for the payment of benefits under the Plan shall be imposed upon any officer,
director, employee, or stockholder of an Employer. Nothing contained herein
shall be deemed to create a lien in favor of any Participant or Beneficiary on
any assets of any 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. Each Participant and Beneficiary
shall have the status of a general unsecured creditor of the Employers and shall
have no right to, prior claim to, or security interest in, any assets of the
Company or any Employer.
Section 5.2 Nonalienation. No right or interest of a Participant or his
Beneficiary under this Plan shall be anticipated, assigned (either at law or in
equity) or alienated by the Participant or his Beneficiary, nor shall any such
right or interest be subject to attachment, garnishment, levy, execution or
other legal or equitable process or in any manner be liable for or subject to
the debts of any Participant or Beneficiary. If any Participant or Beneficiary
shall attempt to or shall alienate, sell, transfer, assign, pledge or otherwise
encumber his benefits under the Plan or any part thereof, or if by reason of his
bankruptcy or other event happening at any
time such benefits would devolve upon anyone else or would not be enjoyed by
him, then the Company may terminate his interest in any such benefit and hold or
apply it to or for his benefit or the benefit of his spouse, children or other
person or persons in fact dependent upon him, or any of them, in such a manner
as the Company may deem proper; provided, however, that the provisions of this
sentence shall not be applicable to the surviving Spouse of any deceased
Participant if the Company consents to such inapplicability, which consent shall
not unreasonably be withheld; and provided further that this provision shall not
apply to the extent it violates Code Section 409A.
Section 5.3 Employment Rights. Employment rights shall not be enlarged or
affected hereby. The Employers shall continue to have the right to discharge a
Participant, with or without cause.
Section 5.4 Administration of Plan.
(1) The Compensation Committee shall be responsible for the general
administration of the Plan and for carrying out the provisions hereof and, for
purposes of the Employee Retirement Income Security Act of 1974, as amended, the
Company shall be the plan sponsor and the plan administrator. The Compensation
Committee shall interpret where necessary, in its reasonable and good faith
judgment, the provisions of the Plan and, except as otherwise provided in the
Plan, shall determine the rights and status of Participants and Beneficiaries
hereunder (including, without limitation, the amount of any Supplemental
Retirement Benefit to which a Participant or Beneficiary may be entitled under
the Plan.
(2) Notwithstanding the foregoing, the Board of Directors of the
Company and the Company each may, from time to time, delegate all or part of the
administrative powers, duties and authorities delegated to it under this Plan to
such person or persons, office or committee as it shall select.
Section 5.5 Expenses. The Employers shall pay all expenses incurred in the
administration and operation of the Plan.
Section 5.6 Claims Procedure.
(1) Any Participant or Beneficiary who believes that he is entitled to
receive a benefit under the Plan which he has not received may file with the
Compensation Committee a written claim specifying the basis for his claim and
the facts upon which he relies in making such a claim. Such a claim must be
signed by the claimant or his duly authorized representative (the "Claimant").
(2) Whenever the Compensation Committee denies (in whole or in part),
a claim for benefits filed by a Claimant, the Compensation Committee shall
transmit a written notice of such decision to the Claimant, within 90 days after
such claim was filed (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). Such notice shall be written in a
manner calculated to be understood by the Claimant and shall state (a) the
specific reason(s) for the denial of the claim, (b) specific reference(s) to
pertinent provisions of the Plan on which the denial of the claim was 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 Plan's
review procedures under Subsection (3) below and the time limits applicable to
such procedures, including a statement of the Claimant's right to bring a civil
action under Section 502(a) of ERISA following an adverse benefit determination
on review.
(3) Within 60 days after the denial of his claim, the Claimant must
request that the claim denial be reviewed by filing with the Compensation
Committee a written request therefor. If such an appeal is not filed within this
60-day limit, the Claimant shall be deemed to have agreed with the Compensation
Committee's denial of the claim. If such an appeal is so filed within such
60-days, a named fiduciary designated by the Compensation Committee shall (a)
conduct a full and fair review of such claim and (b) mail or deliver to the
Claimant a written decision on the matter based on the facts and pertinent
provisions of the Plan within a period of 60 days after the receipt of the
request for review unless special circumstances require an extension of time, in
which case such decision shall be rendered not later than 120 days after receipt
of such request. If an extension of time for review is required, written notice
of the extension shall be furnished to the Claimant prior to the commencement of
the extension. Such decision (a) shall be written in a manner calculated to be
understood by the Claimant, (b) shall state the specific reason(s) for the
decision, (c) shall make specific reference(s) to pertinent provisions of the
Plan on which the decision is based and (d) shall, to the extent permitted by
applicable law, be final and binding on all interested persons. During such full
review, the Claimant shall be given an opportunity to review documents that are
pertinent to the Claimant's claim and to submit issues and comments in writing.
In addition, the notice of adverse determination shall also include statements
that (a) 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 (b) a statement of
the Claimant's right to bring an action under Section 502(a) of ERISA.
Section 5.7 Effect on other Benefits. Benefits payable to or with respect
to a Participant under the Pension Plan or any other Employer sponsored
(qualified or nonqualified) plan, if any, are in addition to those provided
under this Plan, except as specifically provided in such other plans.
Section 5.8 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 Company 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 Company 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.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1 Amendment. Subject to Section 6.3, the Company (with the
approval or ratification of the Benefits Committee) does hereby reserve the
right to amend, at any time, any or all of the provisions of the Plan for all
Employers, without the consent of any other Employer
or any Participant, Beneficiary or any other person. Any such amendment shall be
expressed in an instrument executed by an officer of the Company and shall
become effective as of the date designated in such instrument or, if no such
date is specified, on the date of its execution.
Section 6.2 Termination.
(1) The Board of Directors of the Company (and/or the Compensation
Committee thereof) does hereby reserve the right to terminate the Plan at any
time for any or all Employers, without the consent of any other Employer or of
any Participant, Beneficiary or any other person. Such termination shall be
expressed in an instrument executed by an officer of the Company and shall
become effective as of the date designated in such instrument, or if no date is
specified, on the date of its execution. Any other Employer that has adopted the
Plan may, with the written consent of the Compensation Committee, elect
separately to withdraw from the Plan and such withdrawal shall constitute a
termination of the Plan as to it, but it shall continue to be an Employer for
the purposes hereof as to Participants or Beneficiaries to whom it owes
obligations hereunder. Any such withdrawal and termination shall be expressed in
an instrument executed by an officer of the terminating Employer and shall
become effective as of the date designated in such instrument or, if no date is
specified, on the date of its execution. Notwithstanding the foregoing, if an
Employer ceases to exist or is no longer a member of the Controlled Group, such
action shall automatically constitute a termination of the Plan as to such
Employer.
(2) Upon any termination of the Plan, each affected Participant's
Supplemental Pension Benefit shall be determined and distributed to him (or his
Beneficiary) as otherwise provided in Article III.
Section 6.3 Effect of Amendment and Termination.
(1) No amendment or termination of the Plan shall, without the consent
of the Participant (or, in the case of his death, his Beneficiary), adversely
affect the amount of the vested Supplemental Retirement Benefit under the Plan
of any Participant or Beneficiary as such Benefit exists on the date of such
amendment or termination.
(2) Notwithstanding any provision of the Plan to the contrary, in the
event of a termination of the Plan, the Company, in its sole and absolute
discretion, shall have the right to change the time and/or manner of
distribution of Supplemental Retirement Benefits, including, without limitation,
by providing for the payment of a single lump sum payment to each Executive or
Beneficiary then entitled to a Supplemental Retirement Benefit in an amount
equal to the Actuarial Equivalent of such Benefit; to the extent permitted by
Code Section 409A. Such lump sum amount shall be calculated by using an interest
rate equal to the Applicable Interest Rate in effect on January 1 of the Plan
Year in which the distribution is made.
IN WITNESS WHEREOF, the Company has executed this restatement this
8th day of February, 2006.
THE NORTH AMERICAN COAL CORPORATION
By: /s/ Charles A. Bittenbender
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Title: Assistant Secretary
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