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Exhibit 10(l)
THE LINCOLN ELECTRIC COMPANY
EXECUTIVE BENEFIT PLAN
EFFECTIVE NOVEMBER 1, 1997
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TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
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ARTICLE 2
SELECTION, ENROLLMENT AND ELIGIBILITY
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2.1 Selection by Compensation Committee.........................................................6
2.2 Enrollment Requirements.....................................................................6
2.3 Eligibility; Commencement of Participation..................................................6
ARTICLE 3
VESTING ACCOUNT BALANCE
3.1 Vesting in Change in Control Benefit........................................................6
3.2 Forfeiture..................................................................................7
3.3 Account Balance.............................................................................7
ARTICLE 4
BENEFITS
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4.1 Change in Control Benefit...................................................................7
4.2 Withholding and Payroll Taxes...............................................................7
ARTICLE 5
BENEFICIARY
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5.1 Beneficiary.................................................................................8
5.2 Beneficiary Designation; Change.............................................................8
5.3 Acknowledgment..............................................................................8
5.4 No Beneficiary Designation..................................................................8
5.5 Discharge of Obligations....................................................................8
ARTICLE 6
TERMINATION, AMENDMENT OR
MODIFICATION OF THE PLAN
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6.1 Termination, Amendment or Modification Prior to One Year Before Change
in Control..................................................................................8
6.2 Termination, Amendment or Modification Within One Year Before Change in .....................
Control or Following Change in Control......................................................9
6.3 Termination of Plan Agreement...............................................................9
ARTICLE 7
OTHER BENEFITS AND AGREEMENTS
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7.1 Coordination with Other Benefits............................................................9
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ARTICLE 8
TRUSTS
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8.1 Establishment of the Trusts.................................................................9
8.2 Interrelationship of the Plan and the Trusts...............................................10
8.3 Accounts...................................................................................10
ARTICLE 9
INSURANCE POLICIES
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9.1 Policies...................................................................................11
9.2 Documents Required by Insurer..............................................................11
ARTICLE 10
ADMINISTRATION
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10.1 Administrator Duties.......................................................................12
10.2 Agents.....................................................................................12
10.3 Binding Effect of Decisions................................................................12
10.4 Indemnity of Administrator.................................................................12
10.5 Employer Information.......................................................................12
ARTICLE 11
CLAIMS PROCEDURES
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11.1 Presentation of Claim......................................................................13
11.2 Notification of Decision...................................................................13
11.3 Review of a Denied Claim...................................................................13
11.4 Decision on Review.........................................................................14
11.5 Legal Action...............................................................................14
ARTICLE 12
MISCELLANEOUS
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12.1 Unsecured General Creditor.................................................................14
12.2 Employer's Liability.......................................................................14
12.3 Nonassignability...........................................................................14
12.4 Not a Contract of Employment...............................................................15
12.5 Furnishing Information.....................................................................15
12.6 Terms......................................................................................15
12.7 Captions...................................................................................15
12.8 Governing Law..............................................................................15
12.9 Validity...................................................................................15
12.10 Notice.....................................................................................15
12.11 Successors.................................................................................16
12.12 Spouse's Interest..........................................................................16
12.13 Incompetent................................................................................16
12.14 Distribution in the Event of Taxation......................................................16
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THE LINCOLN ELECTRIC COMPANY
EXECUTIVE BENEFIT PLAN
Effective November 1, 1997
PURPOSE
The purpose of this Plan is to provide specified benefits
for the purpose of motivating and retaining a select group of management and
highly compensated employees who contribute materially to the continued growth,
development, and future success of The Lincoln Electric Company, an Ohio
corporation (the "Company"). The Plan generally is intended to provide benefits
to covered employees in the event of a "Change in Control" of the Company (as
defined herein) and is not intended to constitute an "employee pension benefit
plan" within the meaning of Section (3)(2) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). Benefits, if payable under the Plan,
will be payable generally prior to termination of employment.
ARTICLE 1
DEFINITIONS
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For purposes hereof, unless otherwise clearly apparent from
the context, the following phrases or terms shall have the following indicated
meaning:
1.1 "Administrative Account" shall mean an account established in accordance
with Section 8.3(a)(ii) below.
1.2 "Administrator" shall mean the administrative committee appointed to manage
and administer the Plan in accordance with the provisions of Article 10 below.
1.3 "Beneficiary" shall mean one or more persons, trusts, estates or other
entities, designated in accordance with Article 5 below, that are entitled to
receive benefits under this Plan upon the death of a Participant.
1.4 "Beneficiary Designation Form" shall mean the form established from time to
time by the Administrator that a Participant completes, signs and returns to the
Administrator to designate one or more Beneficiaries.
1.5 "Board" shall mean the Board of Directors of the Company.
1.6 "Change in Control" shall mean the occurrence of any of the following:
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(a) Any "person", as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), other than
a Permitted Holder, is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing 20 percent or more of the combined voting power of the
Company's then outstanding securities;
(b) During any period of two consecutive years (not including any
period prior to the Effective Date), individuals who at the beginning of such
period constitute the Board, and any new director (other than a director
designated by a person who has entered into an agreement with the Company to
effect a transaction described in Subsection (a), (c) or (d) of this Section)
whose election by the Board or nomination for election by the Company's
shareholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority thereof;
(c) The shareholders of the Company approve a merger or consolidation
of the Company with any other corporation, other than a Permitted Transaction.
(d) The shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets;
(e) The Company voluntarily files a petition for bankruptcy under
federal bankruptcy law, or an involuntary bankruptcy petition is filed against
the Company under federal bankruptcy law, which involuntary petition is not
dismissed within 120 days of the filing;
(f) The Company makes a general assignment for the benefit of
creditors; or
(g) The Company seeks or consents to the appointment of a trustee,
receiver, liquidator or similar person.
1.7 "Change in Control Benefit" shall mean the benefit set forth in Section 4.1
below.
1.8 "Claimant" shall have the meaning set forth in Section 11.1 below.
1.9 "Code" shall mean the Internal Revenue Code of 1986, as amended from time to
time.
1.10 "Compensation Committee" shall mean the Compensation Committee of the
Board.
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1.11 "Company" shall mean initially The Lincoln Electric Company, an Ohio
corporation, and, following a Permitted Transaction in which the Company becomes
a direct or indirect subsidiary of a Successor Public Company, such Successor
Public Company.
1.12 "Disability" shall mean a period of disability during which a Participant
qualifies for benefits under the Employer's long-term disability program by
which the Participant is covered.
1.13 "Effective Date" shall mean November 1, 1997.
1.14 "Employer" shall mean the Company and any other subsidiary that adopts the
Plan with the consent of the Company.
1.15 "Forfeiture" shall mean a forfeiture of a Participant's rights to benefits
under this Plan as set forth in Section 3.2 below.
1.16 "Insurer" shall mean the insurance company or companies that issue one or
more Policies.
1.17 "Lincoln Family" shall mean: any person who is a descendant of, or who is
related by blood or marriage to a descendant of, James F. Lincoln or John C.
Lincoln, any trusts or similar arrangements for any of the foregoing (and any
trustee or other fiduciary for the same in their capacity as such), any
foundations established by any of the foregoing (and any trustee or other
fiduciary for the same in their capacity as such), any estate of any of the
foregoing (and any executor or administrator thereof in their capacity as such),
and any entity (other than the Company) in which a majority of the voting
interests are owned by any of the foregoing.
1.18 "Participant" shall mean any employee of an Employer (a) who is selected to
participate in the Plan, (b) who elects to participate in the Plan, (c) who
signs a Plan Agreement and a Beneficiary Designation Form, (d) whose signed Plan
Agreement and Beneficiary Designation Form are accepted by the Administrator,
and (e) whose Plan Agreement has not terminated.
1.19 "Participant's Account" shall mean an account established at the direction
of the Compensation Committee for a Participant in a Trust in accordance with
Section 8.3(a)(i) below.
1.20 "Permitted Holder" shall mean any of the following:
(a) the Company or any wholly owned subsidiary of the Company;
(b) any trustee or other fiduciary holding securities under
any employee benefit plan of the Company or any of the Company's subsidiaries;
or
(c) the Lincoln Family.
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1.21 "Permitted Transaction" shall mean any of the following:
(a) a merger or consolidation that results in the voting
securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being changed into voting
securities of the voting securities of the surviving entity of such merger) more
than 80 percent of the combined voting power of the voting securities of such
surviving entity outstanding immediately after such merger or consolidation;
(b) a merger or consolidation that is effected to implement a
recapitalization of the Company (for example, without limitation, the changing
of nonvoting securities into voting securities, the reduction or increase in the
number of existing securities, or the changing of existing securities into
securities of one or more different classes of securities) in which no person,
other than a Permitted Holder, owns more than 20 percent of the combined voting
power of the Company's outstanding securities immediately following such
recapitalization; or
(c) a merger or consolidation that causes the Company to
become a direct or indirect subsidiary of an entity (a "Successor Public
Company") in which no person, other than a Permitted Holder, holds more than 20
percent of the combined voting power of such Successor Public Company's
outstanding securities immediately following such merger or consolidation, and
the security holders of the Company immediately before such merger or
consolidation are the only security holders of the Successor Public Company
immediately following such merger or consolidation.
1.22 "Plan" shall mean The Lincoln Electric Company Executive Benefit Plan,
which is defined by this instrument and by each Plan Agreement, all as may be
amended from time to time.
1.23 "Plan Agreement" shall mean a written agreement, as may be amended from
time to time, which is entered into by and between an Employer and a
Participant. Each Plan Agreement executed by a Participant shall provide for the
entire benefit to which such Participant is entitled under the Plan, and the
Plan Agreement bearing the latest date of acceptance by the Administrator shall
govern such entitlement.
1.24 "Plan Year" shall, for the first Plan Year, begin on November 1, 1997, and
end on December 31, 1997. For each Plan Year thereafter, the Plan Year shall
begin on January 1 of each year and continue through December 31 of that year.
1.25 "Policy" or "Policies" shall mean the policy or policies issued in the name
of the Trustee in accordance with the terms and conditions of this Plan and each
respective Plan Agreement.
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1.26 "Reserve Account" shall mean an account established in accordance with
Section 8.3(a)(iii) below.
1.27 "Retirement," "Retires" or "Retired" shall mean a Participant's severance
from employment from all Employers for any reason other than a leave of absence,
death or Disability on or after the Participant's attaining age 60, or with the
consent of the Compensation Committee on or after the Participant's attaining
age 55.
1.28 "Successor Public Company" shall have the meaning set forth in Section 1.20
hereof.
1.29 "Supplemental Retirement Plans" shall mean The Lincoln Electric Company
Supplemental Executive Retirement Plan and The Lincoln Electric Company Deferred
Compensation Plan.
1.30 "Termination of Employment" shall mean the ceasing of employment with all
Employers, voluntarily or involuntarily, for any reason other than Retirement,
Disability, death or an authorized leave of absence.
1.31 "Trust" or "Trusts" shall mean (as applicable) one or more of the trusts
established pursuant to one or more of the sequentially numbered Trust
Agreements for The Lincoln Electric Company Executive Benefit Plan, between the
Company and the Trustee, as amended from time to time.
1.32 "Trustee" shall mean the trustee named in a Trust and any successor
trustee.
1.33 "Vesting Date" shall mean the date upon which a Participant becomes 100%
vested in his or her Change in Control Benefit in accordance with Section 3.1
below.
ARTICLE 2
SELECTION, ENROLLMENT AND ELIGIBILITY
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2.1 SELECTION BY COMPENSATION COMMITTEE. Participation in the Plan shall be
limited to a select group of management and highly compensated employees of the
Employers. From that group, the Compensation Committee shall select, in its sole
discretion, employees to participate in the Plan.
2.2 ENROLLMENT REQUIREMENTS. As a condition to participation, each selected
employee shall complete, execute and return to the Administrator a Plan
Agreement and a Beneficiary Designation Form. In addition, the Administrator, in
its sole discretion, shall establish from time to time such other enrollment
requirements as it determines are necessary.
2.3 ELIGIBILITY; COMMENCEMENT OF PARTICIPATION. Provided an employee selected to
participate in the Plan has met all enrollment requirements set forth in this
Plan and required by the Administrator, that employee shall commence
participation in the Plan on the date
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specified by the Compensation Committee. If a selected employee fails to meet
all such requirements prior to that date, that employee shall not be eligible to
participate in the Plan until the completion of those requirements.
ARTICLE 3
VESTING; ACCOUNT BALANCE
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3.1 VESTING IN CHANGE IN CONTROL BENEFIT. Subject to Section 3.2 below:
(a) General Rule. If a Participant has not forfeited his or her
benefits pursuant to Section 3.2(a) below prior to 90 days before a Change in
Control, the Participant shall become 100% vested in his or her Change in
Control Benefit on the date six months following the Change in Control (the
"Vesting Date").
(b) Early Vesting. If at any time on or after 90 days prior to a Change
in Control and prior to the Vesting Date a Participant Retires, dies, suffers a
Disability or experiences an involuntarily Termination of Employment, the
Participant (or the Participant's Beneficiary in the event of the Participant's
death) shall become 100% vested in his or her Change in Control Benefit on the
later of (i) the date of the Change in Control or (ii) the date of such
Retirement, death, Disability or involuntary Termination of Employment, and such
date (rather than the date six months following a Change in Control) shall be
considered the "Vesting Date" for purposes of this Plan.
3.2 FORFEITURE. Notwithstanding Section 3.1 above, a Participant shall forfeit
any right to benefits under this Plan if he or she:
(a) Retires, dies, suffers a Disability, or experiences any
Termination of Employment, in each case prior to 90 days before a Change in
Control, or receives a lump sum distribution from the Supplemental Retirement
Plans that permanently ends his or her participation in the Supplemental
Retirement Plans (a "Termination Distribution") at any time; or
(b) Experiences a voluntarily Termination of Employment at any
time on or after the date of a Change in Control and prior to the date six
months following the Change in Control.
3.3 ACCOUNT BALANCE. Within 60 days after the end of each Plan Year, each
Participant shall receive a statement setting forth the balance of his or her
Participant's Account as of the end of that Plan Year.
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ARTICLE 4
BENEFITS
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4.1 CHANGE IN CONTROL BENEFIT.
(a) Eligibility. On the Vesting Date, the Participant or the
Participant's Beneficiary, as the case may be, shall become entitled to the
Change in Control Benefit described in Section 4.1(b).
(b) Benefit and Payment. The "Change in Control Benefit" shall be a
dollar amount that is equal to the fair market value of the assets allocated to
and held in the Participant's Account as of the Vesting Date. This benefit shall
be paid to the Participant, or his or her Beneficiary, within 90 days of the
Vesting Date.
4.2 WITHHOLDING AND PAYROLL TAXES. The Trustee shall withhold from any and all
benefit payments made under this Article 4, all federal, state and local income,
employment and other taxes required to be withheld in connection with the
payment of benefits hereunder, in amounts to be determined in the sole
discretion of the Participant's Employer.
ARTICLE 5
BENEFICIARY
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5.1 BENEFICIARY. Each Participant shall have the right, at any time, to
designate his or her Beneficiary (both primary as well as contingent) to receive
any benefits payable under the Plan to a Beneficiary upon the death of the
Participant.
5.2 BENEFICIARY DESIGNATION; CHANGE. A Participant shall designate his or her
Beneficiary by completing and signing a Beneficiary Designation Form, and
returning it to the Administrator. A Participant shall have the right to change
a Beneficiary by completing, signing and otherwise complying with the terms of
the Beneficiary Designation Form and the Administrator's rules and procedures,
as in effect from time to time. Upon the acceptance by the Administrator of a
new Beneficiary Designation Form, all Beneficiary designations previously filed
shall be cancelled. The Administrator shall be entitled to rely on the last
Beneficiary Designation Form filed by the Participant and accepted by the
Administrator before his or her death.
5.3 ACKNOWLEDGMENT. No designation or change in designation of a Beneficiary
shall be effective until received, accepted and acknowledged in writing by the
Administrator.
5.4 NO BENEFICIARY DESIGNATION. If a Participant fails to designate a
Beneficiary as provided in Sections 5.1, 5.2 and 5.3 above, or if all designated
Beneficiaries predecease the Participant or die prior to complete distribution
of the Participant's benefits, then the Participant's designated Beneficiary
shall be deemed to be his or her surviving spouse. If the
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Participant has no surviving spouse, the benefits remaining under the Plan to be
paid to a Beneficiary shall be payable to the executor or personal
representative of the Participant's estate.
5.5 DISCHARGE OF OBLIGATIONS. The payment of benefits under the Plan to a
Beneficiary shall fully and completely discharge all Employers and the
Administrator from all further obligations under this Plan with respect to the
Participant, and that Participant's Plan Agreement shall terminate upon such
full payment of benefits.
ARTICLE 6
TERMINATION, AMENDMENT OR
-------------------------
MODIFICATION OF THE PLAN
------------------------
6.1 TERMINATION, AMENDMENT OR MODIFICATION PRIOR TO ONE YEAR BEFORE CHANGE IN
CONTROL. The Company reserves, and delegates to the Compensation Committee, the
right to terminate, amend or modify the Plan or any related Plan Agreement, in
whole or in part. Notwithstanding the foregoing, no termination, amendment or
modification shall be effective to decrease or reduce a Participant's potential
benefits under this Plan below the balance in his or her Participant's Account
as of the effective date of the termination, amendment or modification.
6.2 TERMINATION, AMENDMENT OR MODIFICATION WITHIN ONE YEAR BEFORE CHANGE IN
CONTROL OR FOLLOWING CHANGE IN CONTROL. Within one year before a Change in
Control and thereafter, neither the Company, any subsidiary of the Company, any
Employer, any corporation, trust or other person that succeeds to all or any
substantial portion of the assets of the Company nor the Compensation Committee
shall have the right to terminate, amend or modify the Plan and/or any Plan
Agreement in effect prior to such Change in Control, and all benefits under the
Plan and any such Plan Agreement shall thereafter be paid in accordance with the
terms of the Plan and such Plan Agreement, as in effect immediately prior to
such Change in Control. If the Plan is terminated, amended, or modified within
one year before a Change in Control, such termination, amendment or modification
shall be considered void as of the date of the termination, amendment or
modification. Any provision of this Plan or any Plan Agreement to the contrary
shall be construed in accordance with this Section 6.2.
6.3 TERMINATION OF PLAN AGREEMENT. Absent the earlier termination, modification
or amendment of the Plan, or a Participant's Forfeiture of his or her benefits
under this Plan, the Plan Agreement of any Participant shall terminate upon the
full payment of the Change in Control Benefit provided under Article 4.
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ARTICLE 7
OTHER BENEFITS AND AGREEMENTS
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7.1 COORDINATION WITH OTHER BENEFITS. The benefits provided for a Participant
and Participant's Beneficiary under the Plan are in addition to any other
benefits available to such Participant under any other plan or program for
employees. The Plan shall supplement and shall not supersede, modify or amend
any other such plan or program except as may otherwise be expressly provided.
ARTICLE 8
TRUSTS
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8.1 ESTABLISHMENT OF THE TRUSTS; PREMIUMS. The Company shall establish one or
more Trusts and the Employers shall, at least annually, transfer over to each
Trust such assets, if any, as the Company determines, in its sole discretion, to
contribute or cause to be contributed to such Trust prior to a Change in
Control. The Administrator may direct, prior to a Change in Control, payment of
any and all Policy premiums and other costs relating to insurance policies owned
by the Trusts. In addition, if a Trust incurs any tax liability, the Employers
shall contribute to such Trust sufficient funds to allow the Trustee to pay any
such tax liability. 8.2
8.2 INTERRELATIONSHIP OF THE PLAN AND THE TRUSTS. The provisions of the Plan and
each Plan Agreement shall govern the rights of a Participant to receive
distributions pursuant to the Plan. The provisions of a Trust shall govern the
rights of the Trustee, each Participant with a Participant's Account in such
Trust, and such Participant's Beneficiary as to the assets of the Trust. The
Employers shall at all times remain liable to carry out their obligations under
the Plan. The Employers and the Trustee shall cooperate with each other as is
necessary to minimize each Trust's tax liability.
8.3 ACCOUNTS.
(a) The Trustee shall establish and maintain the following separate
accounts for each Trust:
(i) A "Participant's Account" for each Participant selected by
the Compensation Committee (A) to which the Employers' contributions, or a
portion thereof, may be allocated and held, (B) to which the earnings on amounts
held pursuant to (A) shall be allocated and held, (C) to which amounts from the
Reserve Account may be allocated and held, and (D) to which the earnings on
amounts held pursuant to (C) shall be allocated and held, the assets of which
are to be used to pay the Change in Control Benefit in accordance with this Plan
and the Trust;
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(ii) An "Administrative Account" for the administrative
expenses of the Trust to which a portion of the Employers' contributions and
earnings thereon and the Reserve Account and earnings and gains thereon may be
allocated to and held, the assets of which are to be used to pay the
administrative expenses, including all taxes, of the Trust in accordance with
the terms and provisions of this Plan and the Trust that are not paid directly
by the Employers; and
(iii) A "Reserve Account" for (A) the Employers' contributions
and earnings thereon prior to allocation to a Participant's Account or the
Administrative Account, (B) amounts that were held in Participants' Accounts
prior to Forfeiture, and (C) gains constituting the excess of the life insurance
proceeds of a Policy over the cash value thereof, which assets shall be
allocated to and held in the Reserve Account pending allocation or reallocation
to other Participants' Accounts or the Administrative Account.
(b) Prior to a Change in Control, the Administrator committee shall, in
its sole discretion, direct the Trustee in writing as to (i) the allocation of
the Employers' contributions to the Trusts, and to the accounts described in
Section 8.3(a) above, (ii) the allocation of the amounts that were held in
Participants' Accounts prior to Forfeiture, and (iii) the allocation of gains
allocated to Reserve Account in accordance with Section 2.5 of a Trust. Assets
in one Trust shall not be allocated to any other Trust. After a Change in
Control, the Trustee shall make such allocations in accordance with the terms of
the Plan and each Trust. Notwithstanding the foregoing, and except for a payment
of benefits in accordance with Article 4 or a Forfeiture of benefits, a
Participant's Account balance shall not be reduced.
(c) Each of the accounts described in Section 8.3(a) above shall
qualify for and be treated as a separate share under Code Section 663(c).
(d) Notwithstanding the foregoing, for purposes of this Plan, in the
event of the death of a person whose life is insured by a Policy, the excess of
the life insurance proceeds of the Policy over the cash value thereof on the
date of death of such person shall constitute a gain allocable to the Reserve
Account, and the addition to the cash value thereof shall constitute income
allocable to the Account to which such Policy has (except for the right to such
gain) been allocated.
ARTICLE 9
INSURANCE POLICIES
------------------
9.1 POLICIES. The Administrator may direct the Trustee in writing to acquire, by
purchase or transfer, one or more Policies in the Trustee's name. The Trustee
shall be the sole and absolute owner and beneficiary of each Policy, with all
rights of an owner and beneficiary, including without limitation, the right to
surrender Policies for their cash surrender values and to take one or more loans
against one or more Policies. Notwithstanding the foregoing, the Trustee shall
exercise its ownership rights in each Policy only in accordance with the terms
of this Plan, the respective Plan Agreements and the Trust.
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9.2 DOCUMENTS REQUIRED BY INSURER. The Trustee, the Participant's Employer and
the Participant shall sign such documents and provide such information as may be
required from time to time by the Insurer.
ARTICLE 10
ADMINISTRATION
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10.1 ADMINISTRATOR DUTIES. This Plan shall be administered by the Administrator
which shall be appointed by the Board. Members of the Administrator committee
may be Participants under this Plan. The Administrator shall also have the sole
and absolute discretion and authority to (i) make, amend, interpret, and enforce
all appropriate rules and regulations for the administration of this Plan, and
(ii) interpret where necessary all provisions of this Plan (including, without
limitation, by supplying omissions from, correcting deficiencies in, or
resolving inconsistencies in, the language of this Plan), as may arise in
connection with the Plan. Any individual serving on the Administrator committee
who is a Participant shall not vote or act on any matter relating solely to
himself or herself. When making a determination or calculation, the
Administrator shall be entitled to rely on information furnished by a
Participant or the Company.
10.2 AGENTS. In the administration of this Plan, the Administrator committee
may, from time to time, employ agents and delegate to them such administrative
duties as it sees fit (including acting through a duly appointed representative)
and may from time to time consult with counsel who may be counsel to any
Employer.
10.3 BINDING EFFECT OF DECISIONS. The decision or action of the Administrator
with respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules and
regulations promulgated hereunder shall be final and conclusive and binding upon
all persons having any interest in the Plan.
10.4 INDEMNITY OF ADMINISTRATOR. All Employers shall indemnify and hold harmless
the members of the Administrator committee and its delegates against any and all
claims, losses, damages, expenses or liabilities arising from any action or
failure to act with respect to this Plan, except in the case of willful
misconduct by the Administrator committee or any of its members.
10.5 EMPLOYER INFORMATION. To enable the Administrator to perform its functions,
each Employer shall supply full and timely information to the Administrator on
all matters relating to the compensation of its Participants, the date and
circumstances of the Retirement, Disability, death or Termination of Employment
of its Participants, and such other pertinent information as the Administrator
committee may reasonably require.
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ARTICLE 11
CLAIMS PROCEDURES
-----------------
11.1 PRESENTATION OF CLAIM. Any Participant or Beneficiary of a deceased
Participant (such Participant or Beneficiary being referred to below as a
"Claimant") may deliver to the Administrator a written claim for a determination
with respect to the amounts distributable to such Claimant from the Plan. If
such a claim relates to the contents of a notice received by the Claimant, the
claim must be made within 60 days after such notice was received by the
Claimant. All other claims must be made within 180 days of the date on which the
event that caused the claim to arise occurred. The claim must state with
particularity the determination desired by the Claimant.
11.2 NOTIFICATION OF DECISION. The Administrator shall consider a Claimant's
claim within 60 days of receipt of that claim, and shall notify the Claimant in
writing:
(a) that the Claimant's requested determination has been made, and that
the claim has been allowed in full; or
(b) that the Administrator has reached a conclusion contrary, in whole
or in part, to the Claimant's requested determination, and such notice must set
forth in a manner calculated to be understood by the Claimant:
(i) the specific reason(s) for the denial of the claim, or any
part of it;
(ii) the specific reference(s) to pertinent provisions of the
Plan upon which such denial was based;
(iii) a description of any additional material or information
necessary for the Claimant to perfect the claim, and an explanation of why such
material or information is necessary; and
(iv) an explanation of the claim review procedure set forth in
Section 11.3 below.
11.3 REVIEW OF A DENIED CLAIM. Within 60 days after receiving a notice from the
Administrator that a claim has been denied, in whole or in part, a Claimant (or
the Claimant's duly authorized representative) may file with the Administrator a
written request for a review of the denial of the claim. Thereafter, but not
later than 30 days after the review procedure began, the Claimant (or the
Claimant's duly authorized representative):
(a) may review pertinent documents;
(b) may submit written comments or other documents; and/or
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(c) may request a hearing, which the Administrator, in its sole
discretion, may grant.
11.4 DECISION ON REVIEW. The Administrator shall render its decision on review
promptly, and not later than 60 days after the filing of a written request for
review of the denial, unless a hearing is held or other special circumstances
require additional time, in which case the Administrator's decision must be
rendered within 120 days after such date. Such decision must be written in a
manner calculated to be understood by the Claimant, and it must contain:
(a) specific reasons for the decision;
(b) specific reference(s) to the pertinent Plan provisions upon which
the decision was based; and
(c) such other matters as the Administrator deems relevant.
11.5 LEGAL ACTION. A Claimant's compliance with the foregoing provisions of this
Article 11 is a mandatory prerequisite to a Claimant's right to commence any
legal action with respect to any claim for benefits under this Plan.
ARTICLE 12
MISCELLANEOUS
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12.1 UNSECURED GENERAL CREDITOR. Participants and their Beneficiaries, heirs,
successors and assigns shall have no legal or equitable rights, interest or
claims in any property or assets of an Employer. Any and all of an Employer's
assets shall be, and remain, the general, unpledged and unrestricted assets of
the Employer. An Employer's obligation under the Plan shall be merely that of an
unfunded and unsecured promise to pay money in the future.
12.2 EMPLOYER'S LIABILITY. An Employer's liability for the payment of benefits
shall be defined only by the Plan and the Plan Agreement, as entered into
between the Employer and a Participant. An Employer shall have no obligation to
a Participant under the Plan except as expressly provided in the Plan and his or
her Plan Agreement.
12.3 NONASSIGNABILITY. Neither a Participant nor any other person shall have any
right to commute, sell, assign, transfer, pledge, anticipate, mortgage or
otherwise encumber, transfer, hypothecate or convey in advance of actual
receipt, the amounts, if any, payable hereunder, or any part thereof, which are,
and all rights to which are expressly declared to be unassignable and
non-transferable. No part of the amounts payable shall, prior to actual payment,
be subject to seizure or sequestration for the payment of any debts, judgments,
alimony or separate maintenance owed by a Participant or any other person, nor
be transferable by
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operation of law in the event of a Participant's or any other person's
bankruptcy or insolvency or be transferable to a spouse as a result of a
property settlement or otherwise.
12.4 NOT A CONTRACT OF EMPLOYMENT. The terms and conditions of this Plan shall
not be deemed to constitute a contract of employment between any Employer and
the Participant. Such employment is hereby acknowledged to be an "at will"
employment relationship that can be terminated at any time for any reason, with
or without cause, unless expressly provided in a written employment agreement.
Nothing in this Plan shall be deemed to give a Participant the right to be
employed in the service of any Employer, or to interfere with the right of any
Employer to discipline or discharge the Participant at any time.
12.5 FURNISHING INFORMATION. A Participant will cooperate with the Administrator
by furnishing any and all information requested by the Administrator and take
such other actions as may be requested in order to facilitate the administration
of the Plan and the payments of benefits hereunder, including but not limited to
taking such physical examinations as the Administrator may deem necessary.
12.6 TERMS. Whenever any words are used herein in the singular or in the plural,
they shall be construed as though they were used in the plural or the singular,
as the case may be, in all cases where they would so apply.
12.7 CAPTIONS. The captions of the articles, sections and paragraphs of this
Plan are for convenience only and shall not control or affect the meaning or
construction of any of its provisions.
12.8 GOVERNING LAW. The provisions of this Plan shall be construed and
interpreted according to the laws of the State of Ohio.
12.9 VALIDITY. In case any provision of this Plan shall be illegal, invalid or
ineffective for any reason, said illegality, invalidity or ineffectiveness shall
not affect the remaining parts hereof, but this Plan shall be construed and
enforced as if such illegal, invalid and/or ineffective provision had never been
inserted herein.
12.10 NOTICE. Any notice or filing required or permitted to be given to the
Administrator under this Plan shall be sufficient if in writing and
hand-delivered, or sent by registered or certified mail or recognized overnight
courier, to the address below:
The Lincoln Electric Company
22801 St. Clair Avenue
Cleveland, Ohio 44117-1199
Attention: General Counsel
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Such notice shall be deemed given as of the date of delivery
or, if delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification.
Any notice or filing required or permitted to be given to a
Participant under this Plan shall be sufficient if in writing and
hand-delivered, or sent by mail, to the last known address of the Participant.
12.11 SUCCESSORS. The provisions of this Plan shall bind and inure to the
benefit of the Participant's Employer and its successors and assigns and the
Participant, the Participant's Beneficiaries, and their permitted successors and
assigns.
12.12 SPOUSE'S INTEREST. The interest in the benefits hereunder of a spouse of a
Participant who has predeceased the Participant shall automatically pass to the
Participant and shall not be transferable by such spouse in any manner,
including but not limited to such spouse's will, nor shall such interest pass
under the laws of intestate succession.
12.13 INCOMPETENT. If the Administrator determines in its discretion that a
benefit under this Plan is to be paid to a minor, a person declared incompetent
or to a person incapable of handling the disposition of that person's property,
the Administrator may direct payment of such benefit to the guardian, legal
representative or person having the care and custody of such minor, incompetent
or incapable person. The Administrator may require proof of minority,
incompetency, incapacity or guardianship, as it may deem appropriate prior to
distribution of the benefit. Any payment of a benefit shall be a payment for the
account of the Participant and the Participant's Beneficiary, as the case may
be, and shall be a complete discharge of any liability under the Plan for such
payment amount.
12.14 DISTRIBUTION IN THE EVENT OF TAXATION. If, for any reason, all or any
portion of a Participant's benefit under this Plan becomes taxable to the
Participant prior to the Vesting Date, a Participant may petition the
Administrator, if prior to a Change in Control, or the Trustee, after a Change
in Control, for a distribution of assets sufficient to meet the Participant's
tax liability (including additions to tax, penalties and interest). Upon the
grant of such a petition, which grant shall not be unreasonably withheld, the
Trustee shall distribute to the Participant from the applicable Trust
immediately available funds in an amount equal to that Participant's federal,
state and local tax liability associated with such taxation, which liability
shall be measured by using that Participant's then current highest federal,
state and local marginal tax rate, plus the rates or amounts for the applicable
additions to tax, penalties and interest. If the petition is granted, the tax
liability distribution shall be made within 90 days of the date when the
Participant's petition is granted.
IN WITNESS WHEREOF the Company has signed this Plan document as of the
first day of November, 1997.
THE LINCOLN ELECTRIC COMPANY
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By: Anthony A. Massaro
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Its: Chairman and CEO
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