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EXHIBIT 10D
[WORKING COPY INCORPORATING
AMENDMENTS NOS. 1, 2 AND 3]
DECEMBER 31, 1995
THE LINCOLN ELECTRIC COMPANY
DEFERRED COMPENSATION PLAN
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TABLE OF CONTENTS
Page
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ARTICLE I. PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II. DEFINITIONS AND CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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Section 2.2. Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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ARTICLE III. PARTICIPATION AND DEFERRALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.1. Eligibility and Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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(a) Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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(b) Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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(c) Initial Year of Participation . . . . . . . . . . . . . . . . . . . . . . . . 4
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(d) Termination of Participation . . . . . . . . . . . . . . . . . . . . . . . . . 4
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Section 3.2. Ineligible Participant . . . . . . . . . . . . . . . . . . . . . . . . . 5
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Section 3.3 Amount of Deferral . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.4. Modification of Deferral Commitments . . . . . . . . . . . . . . . . . . 5
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ARTICLE IV. PARTICIPANTS' ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4.1. Establishment of Accounts . . . . . . . . . . . . . . . . . . . . . . . 5
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Section 4.2. Elective Deferred Compensation; Employment Agreement Contributions . . . . . . . . . . . 6
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 4.3. Determination of Accounts . . . . . . . . . . . . . . . . . . . . . . . 6
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(a) Determination of Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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(b) Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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Section 4.4. Adjustments to Accounts . . . . . . . . . . . . . . . . . . . . . . . . 6
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Section 4.5. Statement of Accounts . . . . . . . . . . . . . . . . . . . . . . . . . 6
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Section 4.6. Vesting of Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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ARTICLE V. FINANCING OF BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 5.1. Financing of Benefits . . . . . . . . . . . . . . . . . . . . . . . . . 7
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Section 5.2. Security For Benefits . . . . . . . . . . . . . . . . . . . . . . . . . 7
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Section 5.3. Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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ARTICLE VI. DISTRIBUTION OF BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 6.1. Settlement Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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Section 6.2. Amount to be Distributed . . . . . . . . . . . . . . . . . . . . . . . . 8
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Section 6.3. In-Service Distribution . . . . . . . . . . . . . . . . . . . . . . . . 8
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Section 6.4. Form of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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Section 6.5. Beneficiary Designation . . . . . . . . . . . . . . . . . . . . . . . . 9
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Section 6.6. Facility of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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Section 6.7. Hardship Distributions . . . . . . . . . . . . . . . . . . . . . . . . . 10
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ARTICLE VII. ADMINISTRATION, AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 7.1. Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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Section 7.2. Plan Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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Section 7.3. Amendment, Termination and Withdrawal . . . . . . . . . . . . . . . . . . 11
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Section 7.4. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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Section 7.5. Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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Section 7.6. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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ARTICLE VIII. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 8.1. No Guarantee of Employment . . . . . . . . . . . . . . . . . . . . . . . . 12
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Section 8.2. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Section 8.3. Interests Not Transferable . . . . . . . . . . . . . . . . . . . . . . . . 12
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Section 8.4. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Section 8.5. Withholding of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Section 8.6. Top-Hat Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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[Working Copy Incorporating
Amendments Nos. 1, 2, and 3]
December 31, 1995
THE LINCOLN ELECTRIC COMPANY
DEFERRED COMPENSATION PLAN
The Lincoln Electric Company Deferred Compensation Plan is made and executed
as of the 10th day of November, 1994 and is effective as of November 15, 1994.
ARTICLE I. PURPOSE
THE LINCOLN ELECTRIC COMPANY DEFERRED COMPENSATION PLAN (the "Plan"), is
hereby established by The Lincoln Electric Company to allow designated
management and highly compensated employees to defer a portion of their current
salary. It is intended that the Plan will aid in attracting and retaining
employees of exceptional ability by providing these benefits. The terms and
conditions of the Plan are set forth below.
ARTICLE II. DEFINITIONS AND CONSTRUCTION
Section 2.1. DEFINITIONS. Whenever the following terms are used in this
Plan they shall have the meanings specified below unless the context clearly
indicates to the contrary:
(a) "Account": The bookkeeping account maintained for each Participant
showing his interest under the Plan.
(b) "Accounting Date": December 31 of each year and the last day of any
calendar quarter in which a Participant's Settlement Date occurs.
(c) "Accounting Period": The period beginning on the day immediately
following an Accounting Date and ending on the next following Accounting
Date.
(d) "Administrator": The committee established pursuant to the provisions
of Section 7.1.
(e) "Base Salary": The base earnings earned by a Participant and payable
to him by the Corporation with respect to a Plan Year without regard to any
increases or decreases in base earnings as a result of an election to defer
base earnings under this Plan, or an election between benefits or cash
provided under a plan of the Corporation maintained pursuant to Section 125
or 401(k) of the Code.
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(f) "Beneficiary": The person or persons (natural or otherwise), within
the meaning of Section 6.5, who are entitled to receive distribution of the
Participant's Account balance in the event of the Participant's death.
(g) "Board": The Board of Directors of the Corporation.
(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 all or
any portion of a bonus under this Plan, or an election between benefits or
cash provided under a plan of the Corporation maintained pursuant to Section
125 or 401(k) of the Code.
(i) "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": The Lincoln Electric Company or any successor or
successors thereto.
(m) "Deferral Commitment": An agreement by a Participant to have a
specified percentage or dollar amount of his Compensation deferred under the
Plan for a specified period in the future.
(n) "Deferral Period": Means the Plan Year for which a Participant has
elected to defer a portion of his Compensation.
(o) "Disability": The occurrence, while a Participant is an Employee, of
a physical or mental incapacity which is likely to be permanent and which
prevents a Participant from engaging in any occupation or performing any work
for compensation or profit for which he is qualified by education, training
or experience, as determined by the Administrator in its sole discretion on
the basis of medical evidence certified by a physician or physicians
designated by it.
(p) "Effective Date": November 15, 1994.
(q) "Employee": Any employee of the Corporation who is, as determined by
the Committee, a member of a "select
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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) "Employment Agreement": A written agreement between the Corporation
and an Employee that provides for the deferral of compensation, and that may
also provide for vesting, the crediting of earnings and other terms and
conditions with respect to such deferred compensation.
(s) "Employment Agreement Contribution": Any amount contributed to the
Plan by the Corporation pursuant to an Employment Agreement.
(t) "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.
(u) "Financial Hardship": An unforeseeable financial emergency of the
Participant, determined by the Administrator on the basis of information
supplied by the Participant, arising from an illness, disability, casualty
loss, sudden financial reversal or other such unforeseeable occurrence, but
not including foreseeable events such as the purchase of a house or education
expenses for children.
(v) "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.
(w) "Participation Agreement": The Agreement submitted by a Participant
to the Administrator with respect to one or more Deferral Commitments.
(x) "Plan": The Plan set forth in this instrument as it may, from time to
time, be amended.
(y) "Plan Year": The 12-month period beginning January 1 through December
31; provided that the first plan year shall begin on November 15, 1994 and
end on December 31, 1994.
(z) "Retirement": Termination of employment with the Corporation on or
after attainment of age 60.
(aa) "Settlement Date": The date on which a Participant terminates
employment with the Corporation. Leaves of absence granted by the
Corporation will not be considered as termination of employment during the
term of such leave. Settlement Date shall also include with respect
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to any Deferral Period the date prior or subsequent to termination of
employment selected by a Participant in a Participation Agreement for
distribution of all or a portion of the amounts deferred during such Deferral
Period.
Section 2.2. CONSTRUCTION. The masculine gender, where appearing in the
Plan, shall be deemed to include the feminine gender, and the singular may
include the plural, unless the context clearly indicates to the contrary. The
words "hereof," "herein," "hereunder," and other similar compounds of the word
"here" shall mean and refer to the entire Plan, and not to any particular
provision or Section.
ARTICLE III. PARTICIPATION AND DEFERRALS
Section 3.1. Eligibility and Participation.
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(a) ELIGIBILITY. Eligibility to participate in the Plan for any Deferral
Period is limited to those management and/or highly compensated Employees of
the Corporation (i) who are designated, from time to time, by the Committee,
and (ii) who have elected to make the maximum elective contributions
permitted them under the terms of the Corporation's Employee Savings Plan for
such Deferral Period.
(b) PARTICIPATION. An eligible Employee may elect to participate in the
Plan with respect to any Deferral Period by submitting a Participation
Agreement to the Administrator by the last business day immediately preceding
the applicable Deferral Period.
(c) INITIAL YEAR OF PARTICIPATION. In the event that an individual first
becomes eligible to participate during a Deferral Period and wishes to elect
a Deferral Commitment with respect to the Compensation earned by and payable
to the individual during such Deferral Period, a Participation Agreement must
be submitted to the Administrator no later than 30 days following such
individual's initial eligibility. Any Deferral Commitments elected in such
Participation Agreement shall be effective only with regard to Compensation
earned following the submission of the Participation Agreement to the
Administrator. If an eligible Employee does not submit a Participation
Agreement within such period of time, such individual will not be eligible to
participate in the Plan until the first day of a Deferral Period subsequent
to the Deferral Period in which the individual initially became eligible to
participate.
(d) TERMINATION OF PARTICIPATION. Participation in the Plan shall
continue as long as the Participant is eligible to receive benefits under the
Plan.
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Section 3.2. INELIGIBLE PARTICIPANT. Notwithstanding any other provisions
of this Plan to the contrary, if the Administrator determines that any
Participant may not qualify as a "management or highly compensated employee"
within the meaning of ERISA, or regulations thereunder, the Administrator may
determine, in its sole discretion, that such Participant shall cease to be
eligible to participate in this Plan. Upon such determination, the Corporation
shall make an immediate lump sum payment to the Participant equal to the amount
credited to his Account. Upon such payment no benefit shall thereafter be
payable under this Plan either to the Participant or any Beneficiary of the
Participant, and all of the Participant's elections as to the time and manner
of payment of his Account will be deemed to be cancelled.
Section 3.3 AMOUNT OF DEFERRAL. With respect to each Plan Year, a
Participant may elect to defer a specified dollar amount or percentage of his
or her Compensation, provided the amount the Participant elects to defer under
this Plan and the Corporation's Employee Savings Plan shall not exceed 25% of
his Compensation with respect to such Plan Year. A Participant may choose to
have amounts deferred under this Plan deducted from his Base Salary, Bonus or a
combination of both. For the first Plan Year, a Participant may elect to defer
all or any portion of his or her Compensation earned or payable after the later
of the effective date of the Participation Agreement or the date of filing the
Participation Agreement with the Administrator, provided the total deferred
amount for such Plan Year does not exceed the annual limitation under this
Section 3.3 computed for the calendar year. A Participant may change the
dollar amount or percentage of his or her Compensation to be deferred by filing
a written notice thereof with the Administrator. Any such change shall be
effective as of the first day of the Plan Year immediately succeeding the Plan
Year in which such notice is filed with the Administrator. Notwithstanding the
foregoing, any Employment Agreement Contribution shall be deferred in
accordance with the terms of the Employment Agreement.
Section 3.4. MODIFICATION OF DEFERRAL COMMITMENTS. A Deferral Commitment
shall be irrevocable, except that the Administrator may, in its sole
discretion, permit a Participant to terminate, prospectively, any Deferral
Commitment for a Deferral Period. If a Participant terminates a Deferral
Commitment during a Deferral Period, such Participant will not be permitted to
enter into a new Deferral Commitment until the following Deferral Period.
ARTICLE IV. PARTICIPANTS' ACCOUNTS
Section 4.1. ESTABLISHMENT OF ACCOUNTS. The Corporation, through its
accounting records, shall establish an Account for each Participant. In
addition, the Corporation may
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establish one or more subaccounts of a Participant's Account, if the
Corporation determines that such subaccounts are necessary or appropriate in
administering the Plan.
Section 4.2. ELECTIVE DEFERRED COMPENSATION; EMPLOYMENT AGREEMENT
CONTRIBUTIONS. A Participant's Compensation that is deferred pursuant to a
Deferral Commitment shall be credited to the Participant's Account within
thirty days following the date the corresponding non-deferred portion of his
Compensation would have been paid to the Participant. The amount of the
Employment Agreement Contribution contributed for a Participant (if any) shall
be credited by the Corporation to the Participant's Account in accordance with
the terms of the Employment Agreement. Any withholding of taxes or other
amounts with respect to Deferred Compensation or with respect to an Employment
Agreement which is required by state, federal or local laws shall be withheld
from the Participant's Deferred Compensation or Employment Agreement
Contribution.
Section 4.3. Determination of Accounts.
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(a) DETERMINATION OF ACCOUNTS. The amount credited to each Participant's
Account as of a particular date shall equal the deemed balance of such
Account as of such date. The balance in the Account shall equal the amount
credited pursuant to Section 4.2, and shall be adjusted in the manner
provided in Section 4.4.
(b) ACCOUNTING. The Corporation, through its accounting records, shall
maintain a separate and distinct record of the amount in each Account as
adjusted to reflect income, gains, losses, withdrawals and distributions.
Section 4.4. Adjustments to Accounts.
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(a) Each Participant's Account shall be debited with the amount of any
distributions under the Plan to or on behalf of the Participant or, in the
event of his death, his Beneficiary during the Accounting Period ending on
such Accounting Date.
(b) The Participant's Account shall next be credited or debited, as the
case may be, with an income (loss) factor equal to an amount determined by
multiplying (i) the balance credited to the Participant's Account as of the
immediately preceding Accounting Date (as adjusted pursuant to Section 4.2(a)
for the current Accounting Date) by (ii) the rate of return for the
Accounting Period ending on such Accounting Date on deemed investments
provided for in Section 5.3.
Section 4.5. STATEMENT OF ACCOUNTS. As soon as practicable after the end
of each Plan Year, a statement shall be
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furnished to each Participant or, in the event of his death, to his Beneficiary
showing the status of his Account as of the end of the Plan Year, any changes
in his Account since the end of the immediately preceding Plan Year, and such
other information as the Administrator shall determine.
Section 4.6. VESTING OF ACCOUNTS. Subject to Section 5.1, each Participant
shall at all times have a nonforfeitable interest in his Account balance.
ARTICLE V. FINANCING OF BENEFITS
Section 5.1. FINANCING OF BENEFITS. Benefits payable under the Plan to a
Participant or, in the event of his death, to his Beneficiary shall be paid by
the Corporation from its general assets. The payment of benefits under the
Plan represents an unfunded, unsecured obligation of the Corporation.
Notwithstanding the fact that the Participants' Accounts may be adjusted by an
amount that is measured by reference to the performance of any deemed
investments as provided in Section 5.3, no person entitled to payment under the
Plan shall have any claim, right, security interest or other interest in any
fund, trust, account, insurance contract, or asset of the Corporation which may
be responsible for such payment.
Section 5.2. SECURITY FOR BENEFITS. Notwithstanding the provisions of
Section 5.1, nothing in this Plan shall preclude the Corporation from setting
aside amounts in trust (the "Trust") pursuant to one or more trust agreements
between a trustee and the Corporation. However, no Participant or Beneficiary
shall have any secured interest or claim in any assets or property of the
Corporation or the Trust and all funds contained in the Trust shall remain
subject to the claims of the Corporation's general creditors.
Section 5.3. INVESTMENTS. The Committee may designate one or more separate
investment funds or vehicles, including, without limitation, certificates of
deposit, mutual funds, money market accounts or funds, limited partnerships, or
debt or equity securities, including equity securities of the Corporation
(measured by market value, book value or any formula selected by the
Committee), in which the amount credited to a Participant's Account will be
deemed to be invested. Each Participant shall file an investment preference
request ("Request") to be effective as of the date of such Request with respect
to the amounts credited to his Account as of such date and amounts subsequently
credited to his Account. A Request will advise the Administrator as to the
Participant's preference with respect to investment vehicles for all or some
portion of the amounts credited to a Participant's Account in specified
multiples of 10%. A Request may be changed prospectively by a Participant only
as of January 1, April 1, July 1 and October 1 by giving the
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Administrator prior written notice. The Administrator may, but is under no
obligation to, deem the amounts credited to a Participant's Account to be
invested in accordance with the Request made by the Participant, or the
Committee may, instead, in its sole discretion, deem such Account to be
invested in any deemed investment funds selected by the Committee. Earnings on
any amounts deemed to have been invested in any deemed investment fund shall be
deemed to have been reinvested in such fund.
ARTICLE VI. DISTRIBUTION OF BENEFITS
Section 6.1. SETTLEMENT DATE. A Participant or, in the event of his death,
his Beneficiary shall be entitled to distribution of the balance of his
Account, as provided in this Article VI, following his Settlement Date or
Dates.
Section 6.2. AMOUNT TO BE DISTRIBUTED. The amount to which a Participant
or, in the event of his death, his Beneficiary is entitled in accordance with
the following provisions of this Article shall be based on the Participant's
adjusted account balance determined as of the Accounting Date coincident with
or next following his Settlement Date or Dates.
Section 6.3. IN-SERVICE DISTRIBUTION. A Participant may elect to commence
to receive an in-service distribution of his or her deferred Compensation for
any Deferral Period beginning at any time at least two years after the date
such Compensation otherwise would have been first payable. A Participant's
election of an in-service distribution shall be filed in writing with the
Administrator at the same time as is filed his election to participate as
provided in Section 3.1. The Participant may elect to receive such
Compensation as an in-service distribution under one of the forms provided in
Section 6.4. Any benefits paid to the Participant as an in-service
distribution shall reduce the Participant's Account.
Section 6.4. FORM OF DISTRIBUTION. As soon as practicable after the end of
the Accounting Period in which a Participant's Settlement Date occurs, but in
no event later than thirty days following the end of such Accounting Period,
the Corporation shall commence distribution or cause distribution to be
commenced, to the Participant or, in the event of his death, to his
Beneficiary, of the balance of the Participant's Account, as determined under
Section 6.2, under one of the forms provided in this Section. Notwithstanding
the foregoing, if elected by the Participant, the distribution of all or a
portion of the Participant's Account may commence on a date between the
Settlement Date and the date the Participant attains age sixty-five.
Distribution of a Participant's Account with respect to any Deferral Period
shall be made in one of the following forms as elected by the Participant:
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(a) by payment in cash in five (5) annual installments; or
(b) by payment in cash in ten (10) annual installments; or
(c) by payment in cash in fifteen (15) annual installments.
The Participant's election of the form of distribution shall be made by written
notice filed with the Administrator at least one (1) year prior to the
Participant's voluntary termination of employment with, or retirement from, the
Corporation. Any such election may be changed by the Participant at any time
and from time to time without the consent of any other person by filing a later
signed written election with the Administrator; provided that any election made
less than one (1) year prior to the Participant's voluntary termination of
employment or retirement shall not be valid, and in such case payment shall be
made in accordance with the Participant's prior election.
The amount of each installment shall be equal to the quotient obtained by
dividing the Participant's Account balance as of the date of such installment
payment by the number of installment payments remaining to be made to or in
respect of such Participant at the time of calculation.
If a Participant fails to make an election in a timely manner as provided in
this Section 6.4, distribution shall be made in cash in ten (10) annual
installments.
Section 6.5. BENEFICIARY DESIGNATION. As used in the Plan the term
"Beneficiary" means:
(a) The last person designated as Beneficiary by the Participant in a
written notice on a form prescribed by the Administrator;
(b) If there is no designated Beneficiary or if the person so
designated shall not survive the Participant, such Participant's spouse; or
(c) If no such designated Beneficiary and no such spouse is living upon
the death of a Participant, or if all such persons die prior to the full
distribution of the Participant's Account balance, then the legal
representative of the last survivor of the Participant and such persons, or,
if the Administrator shall not receive notice of the appointment of any such
legal representative within one year after such death, the heirs-at-law of
such survivor (in the proportions in which they would inherit his intestate
personal property) shall be the Beneficiaries to whom the then
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remaining balance of the Participant's Account shall be distributed.
Any Beneficiary designation may be changed from time to time by like notice
similarly delivered. No notice given under this Section shall be effective
unless and until the Administrator actually receives such notice.
Section 6.6. FACILITY OF PAYMENT. Whenever and as often as any Participant
or his Beneficiary entitled to payments hereunder shall be under a legal
disability or, in the sole judgment of the Administrator, shall otherwise be
unable to apply such payments to his own best interests and advantage, the
Administrator in the exercise of its discretion may direct all or any portion
of such payments to be made in any one or more of the following ways: (i)
directly to him; (ii) to his legal guardian or conservator; or (iii) to his
spouse or to any other person, to be expended for his benefit; and the decision
of the Administrator, shall in each case be final and binding upon all persons
in interest.
Section 6.7. HARDSHIP DISTRIBUTIONS. Upon a finding by the Administrator
that a Participant has suffered a Financial Hardship, the Administrator may, in
its sole discretion, distribute, or direct the Trustee to distribute, to the
Participant an amount which does not exceed the amount required to meet the
immediate financial needs created by the Financial Hardship and not reasonably
available from other sources of the Participant; provided, however, that in no
event shall any amount attributable to a Deferral Commitment be distributed
less than six months after the date of the applicable Participation Agreement.
No distributions pursuant to this Section 6.4 may be made in excess of the
value of the Participant's Account at the time of such distribution.
ARTICLE VII. ADMINISTRATION, AMENDMENT AND TERMINATION
Section 7.1. ADMINISTRATION. The Plan shall be administered by an
Administrator consisting of one or more persons who shall be appointed by and
serve at the pleasure of the Board. The Administrator shall have such powers
as may be necessary to discharge its duties hereunder, including, but not by
way of limitation, to construe and interpret the Plan and determine the amount
and time of payment of any benefits hereunder. The Administrator may, from
time to time, employ agents and delegate to them such administrative duties as
it sees fit, and may from time to time consult with legal counsel who may be
counsel to the Corporation. The Administrator shall have no power to add to,
subtract from or modify any of the terms of the Plan, or to change or add to
any benefits provided under the Plan, or to waive or fail to apply any
requirements of eligibility for a benefit under the Plan. No member of the
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Administrator shall act in respect of his own Account. All decisions and
determinations by the Administrator shall be final and binding on all parties.
All decisions of the Administrator shall be made by the vote of the majority,
including actions in writing taken without a meeting. All elections, notices
and directions under the Plan by a Participant shall be made on such forms as
the Administrator shall prescribe.
Section 7.2. PLAN ADMINISTRATOR. The Corporation shall be the
"administrator" under the Plan for purposes of ERISA.
Section 7.3. AMENDMENT, TERMINATION AND WITHDRAWAL. The Plan may be
amended from time to time or may be terminated at any time by the Board. No
amendment or termination of the Plan, however, may adversely affect the amount
or timing of payment of any person's benefits accrued under the Plan to the
date of amendment or termination without such person's written consent.
Section 7.4. SUCCESSORS. The Corporation shall require any successor
(whether direct or indirect, by purchase, merger, consolidation, reorganization
or otherwise) to all or substantially all of the business and/or assets of the
Corporation expressly to assume and to agree to perform this Plan in the same
manner and to the same extent the Corporation would be required to perform if
no such succession had taken place. This Plan shall be binding upon and inure
to the benefit of the Corporation and any successor of or to the Corporation,
including without limitation any persons acquiring directly or indirectly all
or substantially all of the business and/or assets of the Corporation whether
by sale, merger, consolidation, reorganization or otherwise (and such successor
shall thereafter be deemed the "Corporation" for the purposes of this Plan),
and the heirs, beneficiaries, executors and administrators of each Participant.
Section 7.5. CLAIMS. The Administrator will provide to any Participant or
Beneficiary whose claim for benefits under the Plan has been fully or partially
denied a written notice setting forth (i) the specific reasons for such denial,
(ii) a designation of any additional material or information required and (iii)
an explanation of the Plan's claim review procedure. Such notice shall state
that the Participant or Beneficiary is entitled to request a review in writing,
by the Administrator, of the decision denying the claim. The claim will be
reviewed by the Administrator who may, but need not, grant the claimant a
hearing. On review, the claimant may have legal representation, examine
pertinent documents and submit issues and comments in writing. The decision on
review will be made within 120 days following the request, will be provided in
writing to the claimant and will be final and binding on all parties concerned.
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Section 7.6. EXPENSES. All expenses of the Plan shall be paid by the
Corporation from funds other than those deemed investments as provided in
Section 5.3, except that brokerage commissions and other transaction fees and
expenses relating to the investment of deemed assets and investment fees
attributable to commingled investment of such assets shall be paid from or
charged to such assets or earnings thereon.
ARTICLE VIII. MISCELLANEOUS
Section 8.1. NO GUARANTEE OF EMPLOYMENT. Nothing contained in the Plan
shall be construed as a contract of employment between the Corporation and any
Employee, or as a right of any Employee, to be continued in the employment of
the Corporation, or as a limitation of the right of the Corporation to
discharge any of its Employees, with or without cause.
Section 8.2. APPLICABLE LAW. All questions arising in respect of the Plan,
including those pertaining to its validity, interpretation and administration,
shall be governed, controlled and determined in accordance with the applicable
provisions of federal law and, to the extent not preempted by federal law, the
laws of the State of Ohio.
Section 8.3. INTERESTS NOT TRANSFERABLE. No person shall have any right to
commute, encumber, pledge or dispose of any interest herein or right to receive
payments hereunder, nor shall such interests or payments be subject to seizure,
attachment or garnishment for the payments of any debts, judgments, alimony or
separate maintenance obligations or be transferable by operation of law in the
event of bankruptcy, insolvency or otherwise, all payments and rights hereunder
being expressly declared to be nonassignable and nontransferable.
Section 8.4. SEVERABILITY. Each section, subsection and lesser section of
this Plan constitutes a separate and distinct undertaking, covenant and/or
provision hereof. Whenever possible, each provision of this Plan shall be
interpreted in such manner as to be effective and valid under applicable law.
In the event that any provision of this Plan shall finally be determined to be
unlawful, such provision shall be deemed severed from this Plan, but every
other provision of this Plan shall remain in full force and effect, and in
substitution for any such provision held unlawful, there shall be substituted a
provision of similar import reflecting the original intention of the parties
hereto to the extent permissible under law.
Section 8.5. WITHHOLDING OF TAXES. The Corporation may withhold or cause
to be withheld from any amounts payable under this Plan all federal, state,
local and other taxes as shall be legally required.
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Section 8.6. TOP-HAT PLAN. The Plan is intended to be a plan which is
unfunded and maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
within the meaning of Sections 201, 301 and 401 of ERISA, and therefore to be
exempt from the provisions of Parts 2, 3 and 4 of Title I of ERISA.
Accordingly, notwithstanding any other provision of the Plan, the Plan will
terminate and no further benefits will accrue hereunder in the event it is
determined by a court of competent jurisdiction or by an opinion of counsel
based upon a change in law that the Plan constitutes an employee pension
benefit plan within the meaning of Section 3(2) of ERISA, which is not so
exempt. In addition and notwithstanding any other provision of the Plan, in
the absolute discretion of the Committee, the amount credited to each
Participant's Account under the Plan as of the date of termination, which shall
be an Accounting Date for purposes of the Plan, will be paid immediately to
such Participant in a single lump sum cash payment.
IN WITNESS WHEREOF, The Lincoln Electric Company has caused this instrument
to be executed in its name as of the date first above written.
THE LINCOLN ELECTRIC COMPANY
By: /s/ H. Jay Elliott
--------------------------
Its: Senior Vice President,
--------------------------
Chief Financial Officer and Treasurer
Attest:
/s/ Gabriel Bruno
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