Exhibit 10.11
THE GRADALL COMPANY
AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
WITNESSETH THAT:
WHEREAS, effective March 1, 1988, The Gradall Company, an Ohio
corporation (the "Company") adopted a Supplemental Executive Retirement Plan
(the "Plan") for the benefit of certain employees of the Company, as selected by
the Board of Directors of the Company, and
WHEREAS, the Company desires to amend and restate the Plan for the
further benefit of those employees participating in the Plan.
NOW, THEREFORE, the Plan is hereby amended and restated as follows:
ARTICLE I
ESTABLISHMENT OF PLAN AND PURPOSE
1.1 ESTABLISHMENT OF PLAN. The Company hereby establishes a plan to be
known as The Gradall Company Supplemental Executive Retirement Plan (the
"Plan"). The Plan is to be effective as of March 1, 1988.
1.2 PURPOSE OF PLAN. The purpose of the Plan shall be to reward
selected employees of the Company for loyal service rendered to the Company by
providing them with supplemental compensation, the payment of which will be
deferred pursuant to the provisions of this Plan and by permitting those
selected employees to elect to defer the payment to them of all or a portion of
their compensation pursuant to the terms and conditions hereinafter set forth.
1.3 ESTABLISHMENT OF TRUST. The Company has established an irrevocable
grantor trust pursuant to the terms of that certain Trust Agreement dated as of
August 30, 1995, by and between the Company and Barry L. Phillips, Bruce A.
Jonker and Stanley W. Swope, as Trustees (the "Trust"). All amounts heretofore
or hereafter contributed pursuant to the terms of this Plan by the Company or
any Participant, including any investments or life insurance policies purchased
prior to the date of the Trust and any income or other earnings accrued or
realized with respect to such contributions prior to the date of the Trust shall
be paid to the Trustees, to be held, administered and distributed in accordance
with the terms of the Trust.
ARTICLE II
DEFINITIONS
2.1 "ACCOUNTS" shall mean the following accounts which may be
maintained for Participants in the Plan, adjusted in each case for such
account's share in the increase or decrease in the net worth of the Trust:
(a) "COMPANY ACCOUNT" shall mean the separate bookkeeping
account maintained for each Participant to which shall
be credited the Participant's share of any Company
contributions made to this Plan as provided in Article
IV hereof.
(b) "COMPENSATION DEFERRAL ACCOUNT" shall mean the
separate bookkeeping account maintained for each
Participant to which shall be credited the portion of
the Participant's Compensation for which payment has
been deferred pursuant to Article V.
2.2 "BENEFICIARY" shall mean the person(s) a Participant shall have
selected to receive his or her death benefits, as provided in Section 8.4
hereof.
2.3 "BOARD OF DIRECTORS" shall mean the Board of Directors of the
Company.
2.4 "CLAIMS MANAGER" shall mean the person designated to review claims
pursuant to Section 7.1 hereof.
2.5 "COMMITTEE" shall mean the separate committee established by the
Board of Directors to administer the Plan.
2.6 "COMPANY" shall mean The Gradall Company, an Ohio corporation.
2.7 "COMPENSATION" with respect to any Participant shall mean the total
compensation paid or accrued by the Company for a Plan Year which shall include
regular salary and wages, overtime pay, bonuses and commissions. Amounts paid to
a Participant pursuant to this Plan and the Trust shall not be considered as
Compensation.
2.8 "DISABILITY" shall mean a physical or mental condition of a
Participant resulting from bodily injury, disease or mental disorder which
renders the Participant incapable of continuing his or her usual and customary
employment with the Company for a period of one (1) year or longer. The
Disability of a Participant shall be determined by a licensed physician chosen
by the Company.
2.9 "EMPLOYEE" shall mean any person who is employed by the Company on
a regular and full-time basis.
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2.10 "ELECTION FORM" shall mean the form to be distributed to and
completed by Participants each year electing to defer Compensation, as provided
in Section 5.1 hereof.
2.11 "ENROLLMENT PERIOD" shall mean the period commencing on January 1
and ending on February 15 of each year.
2.12 "PARTICIPANT" shall mean an employee who has been selected for
participation in the Plan as provided in Article III hereof.
2.13 "PLAN" shall mean The Gradall Company Supplemental Executive
Retirement Plan.
2.14 "PLAN ADMINISTRATOR" shall mean the person(s) or entity designated
to administer the Plan in accordance with Section 8.1 hereof.
2.15 "PLAN YEAR" shall mean the twelve (12) month period commencing on
March 1 and ending on the last day of February of each year.
2.16 "RETIREMENT DATE" shall mean the day on which a Participant
attains the age of sixty (60) years.
2.17 "TRUST" shall mean the trust established pursuant to the terms of
The Gradall Company Nonqualified Deferred Compensation Plans Trust Agreement,
dated as of August 30, 1995, by and between the Company and Barry L. Phillips,
Bruce A. Jonker and Stanley W. Swope, as Trustees.
2.18 "TRUSTEES" shall mean the persons who serve as trustees of the
Trust.
ARTICLE III
PARTICIPATION
The Committee shall determine from time to time, by resolution, those
Employees who are eligible to participate in the Plan. The Plan is designed to
be a selective benefit program and only Employees designated to participate in
the Plan by the Committee shall be eligible to participate in the Plan. The
Committee is hereby authorized from time to time to designate for participation
in this Plan, Employees not previously selected for participation in this Plan
and to terminate the eligibility to participate in this Plan of any Employee
previously selected for participation herein; provided, however, the termination
by the Committee of the eligibility to participate in this Plan of any Employee
shall not reduce or eliminate the Accounts of any such Employee, prohibit such
Employee from having his or her Accounts increased by earnings attributable
thereto following such Employee's termination of participation in this Plan or
restrict or otherwise affect the right of the Employee to receive
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amounts in his or her Accounts in accordance with the terms of this Plan and
Trust.
ARTICLE IV
COMPANY CONTRIBUTIONS
The Company shall, from time to time, contribute such amounts to the
Trust for the benefit of the Participants as the Board of Directors shall
determine. All Company contributions shall be allocated among the Company
Accounts of the Participants in such manner as the Board of Directors shall
determine, in its sole discretion.
ARTICLE V
PARTICIPANT CONTRIBUTIONS
5.1 PARTICIPANT ELECTIVE CONTRIBUTIONS. Each Participant in the Plan
may elect to defer the payment to him or her of all or any portion of the
Participant's Compensation for any Plan Year. Prior to the commencement of each
Enrollment Period, the Plan Administrator will give each Participant the option
of electing to defer receipt of the payment of all or any portion of such
Participant's Compensation for the ensuing Plan Year by distributing an election
form (an "Election Form") to each Participant which will provide as follows:
(a) That the Employee has the option of reducing all or
any portion of his or her Compensation for such Plan
Year by completing the Election Form;
(b) That the Employee's election to defer receipt of
Compensation will be effective on the first day of the
Plan Year immediately following such Enrollment
Period;
(c) That the Election Form must be completed and returned
to the Plan Administrator prior to the termination of
the Enrollment Period; and
(d) That the Election Form may not be revised or revoked
by the Employee during the Plan Year for any reason.
5.2 FAILURE TO ELECT. If a Participant fails to return an
Election Form to the Plan Administrator prior to the end of an Enrollment
Period, the Participant will not be eligible to have the payment of all or any
portion of the Participant's Compensation deferred for the Plan Year immediately
following such
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Enrollment Period. However, a Participant who fails to timely submit an Election
Form prior to the end of an Enrollment Period, will be allowed to submit an
Election Form during any subsequent Enrollment Period for subsequent Plan Years.
5.3 REVISION OF ELECTION FORM. No Participant may revise his or her
Election Form during a Plan Year.
ARTICLE VI
DISTRIBUTION OF BENEFITS UPON CESSATION OF EMPLOYMENT
6.1 VESTING IN COMPENSATION DEFERRAL ACCOUNT. Notwithstanding anything
herein contained to the contrary, each Participant shall at all times be fully
vested in such Participant's Compensation Deferral Account. Upon the date a
Participant becomes entitled to a distribution of his or her Company Account as
provided in Sections 6.2 through 6.7 hereof (or in the case of a Participant who
is "Terminated For Cause" as defined in Section 6.5 hereof, upon the date a
Participant would be entitled to a distribution but for the application of
Section 6.5 hereof), the Participant shall also be entitled to receive a
distribution of his or her Compensation Deferral Account.
6.2 DISABILITY AND RETIREMENT. Upon the date a Participant is either
(a) determined to be suffering from a Disability or (b) reaches his or her
Retirement Date, the Participant shall fully vest in the entire balance of his
or her Company Account and such Participant's Company Account shall be
distributed to such Participant in the manner set forth in Section 6.7 hereof.
6.3 TERMINATION OF EMPLOYMENT. In the event any Participant ceases to
be an Employee prior to the Participant's Retirement Date for any reason other
than the death or Disability of the Participant, the Participant shall, subject
to the provisions of Sections 6.5 and 6.6 hereof, become vested in the balance
of his or her Company Account in accordance with the following schedule:
IF TERMINATION OCCURS VESTED PERCENTAGE
--------------------- -----------------
Prior to Date Employee Attains Age 55 0%
Prior to Date Employee Attains Age 60 50%
But on or after Date Employee
Attains Age 55
On or after Date Employee Attains Age 60 100%
A Participant who ceases to be an Employee of the Company shall have such vested
amounts of the Participant's Company Account distributed to him or her in the
manner set forth in Section 6.7 hereof and such Participant shall forfeit the
nonvested portion of his or her Account which funds shall revert to and become
the property of the Company.
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6.4 DEATH. Upon the death of a Participant, the Participant shall fully
vest in the entire balance of his or her Company Account. Upon the death of a
Participant, all proceeds of life insurance policies, insuring the life of such
Participant and payable to the Trust shall be allocated to such Participant's
Compensation Deferral Account and the entire balance of the
Participant's Company Account and Compensation Deferral Account, including any
life insurance proceeds allocated to such Accounts as set forth above, shall be
distributed to such Participant's Beneficiary in one lump sum within sixty (60)
days following the close of the Plan Year in which the Participant dies (or at
such earlier time as the Plan Administrator shall determine), provided, that, in
the event any life insurance proceeds have not been received by the Trust by
such date, such life insurance proceeds shall be distributed to such
Participant's Beneficiary within sixty (60) days of the Trust's receipt thereof.
6.5 TERMINATION FOR CAUSE. Notwithstanding the provisions of
Section 6.3 hereof, any Participant whose employment with the Company shall be
"Terminated For Cause" prior to the time such Participant has reached his or her
Retirement Date, shall forfeit any and all rights to his or her Company Account
and such funds shall become the property of the Company. For purposes of this
Plan, a Participant shall be deemed to be Terminated For Cause if the Committee
shall have made a good faith determination that:
(a) The Participant has committed gross neglect in the performance
of any duties required by the Company to be performed by such
Participant;
(b) The Participant has committed an act of theft or fraud while
in the employ of the Company; or
(c) The Participant shall commit acts of repeated insubordination
to the Company.
6.6 CHANGE OF CONTROL. Notwithstanding the provisions of Section 6.3
hereof, if at any time there shall be a sale of substantially all of the assets
of the Company or a sale of more than fifty percent (50%) of the outstanding
shares of voting common stock of the Company, each Participant's
Company Account shall fully vest in such Participant and become distributable as
provided in Section 6.7 hereof. The foregoing notwithstanding, a Participant's
Company Account shall fully vest in such Participant and payment thereon may be
made to such Participant pursuant
to this Section only to the extent that such
accelerated vesting or payment would not create an excess parachute payment
under Section 280G or Section 4999 of the Internal Revenue Code of 1986, as
amended. Notwithstanding the above, this Section 6.6 shall not be triggered by
the acquisition of stock in the Company by Morgan, Lewis, Githens & Ahn, Inc.
prior to October 31, 1995.
6.7 DISTRIBUTIONS UPON TERMINATION OF EMPLOYMENT. Upon the termination
of the Participant's full time employment with the Company, for any reason other
than death, whether voluntary or involuntary, with or without cause, the entire
vested balance of the Participant's Company Account and
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Compensation Deferral Account (subject to the forfeiture as provided for in
Section 6.5 hereof) shall be distributed to such Participant in monthly
installments for a period of sixty (60) months, with the first such installment
being due and payable within sixty (60) days following the termination of the
Participant's employment with the Company, the amount of which installments
shall be equal to that portion of the Participant's vested and nonforfeited
Accounts as is determined by multiplying the balance thereof (including any
allocations of income, earnings, gain or loss) by a fraction, the numerator of
which shall be one (1) and the denominator of which shall be the number of
remaining installment payments to be made. Notwithstanding the above, the Plan
Administrator may accelerate the payment of such distribution if he deems such
acceleration to be in the best interests of such Participant. No Participant
shall have any right to require the acceleration of any distribution to such
Participant. During the period of any installment distribution, the vested and
nonforfeited amounts remaining in such Participant's Account shall continue to
be held by the Trust and invested in accordance with the terms of the Trust.
ARTICLE VII
CLAIMS PROCEDURE
7.1 CLAIMS MANAGER. For claims procedure purposes, the "Claims Manager"
shall be STAN SWOPE, or such other individual who may be appointed by the Board
of Directors.
7.2 EXPLANATION OF DENIAL OF CLAIMS. If for any reason a claim for
benefits under this Plan is denied by the Company, the Plan Administrator shall
deliver to the claimant a written explanation setting forth the specific reasons
for the denial, pertinent references to the Plan section on which the denial is
based, such other data as may be pertinent and information on the procedures to
be followed by the claimant in obtaining a review of his or her claim, all
written in a manner calculated to be understood by the claimant. For this
purpose:
(a) The claim shall be deemed filed when presented orally or in
writing to the Plan Administrator.
(b) The Plan Administrator's explanation shall be in writing and
delivered to the claimant within ninety (90) days of the date
the claim is filed.
(c) If the Plan Administrator does not notify the Participant of
the denial of the claim within the ninety (90) day period
specified in Section 7.2(b) hereof, then the claim shall be
deemed denied.
7.3 REVIEW OF DENIAL OF CLAIMS. The claimant shall have sixty (60) days
following the earlier of (a) the receipt of the denial of the claim
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or (b) the effective date of the denial of the claim, as provided in Section
7.2(c) hereof, to file with the Claims Manager a written request for a full and
fair review of the denial. For such review, the claimant or the claimant's
representative may submit pertinent documents and written issues and comments.
The Claims Manager shall decide the issue and furnish the claimant with a
written response within sixty (60) days of receipt of the claimant's request for
review of the claim. The written response shall include specific reasons for the
decision written in a manner calculated to be understood by the claimant, as
well as specific references to the pertinent Plan provisions on which the
decision is based. If a written response is not so furnished to the claimant
within such sixty (60) day period, the claim shall be deemed denied on review.
ARTICLE VIII
MISCELLANEOUS
8.1 ADMINISTRATION. This plan shall be operated and administered by
the Committee, which shall, for the purposes of this Plan, be the Plan
Administrator. The construction and interpretation by the Plan Administrator of
any provision of this Plan shall be final and conclusive, unless otherwise
determined by the Plan Administrator or otherwise decided by the Claims
Manager. No member of the Committee, nor any person to whom the Committee
delegated its authority pursuant to the foregoing, shall be liable for any
action or determination made by him or her in good faith.
8.2 NONALIENATION OF BENEFITS. No Participant shall have the right to
assign, pledge, sell, anticipate, encumber or transfer his or her benefits under
this Plan in any manner whatsoever. No assignment, pledge, sale, anticipation,
encumbrance or transfer of any of the benefits under this Plan made by any
Participant shall be valid or recognized by the Company.
8.3 AMENDMENT OR TERMINATION. This Plan may be amended or terminated by
the Company at any time; provided, however, no such amendment or termination
shall impair or diminish in any manner whatsoever the Participant's rights to
amounts allocated to Participant's Accounts prior to such amendment or
termination.
8.4 RESTRICTIONS ON PARTICIPANTS' RIGHTS. The benefits granted or
allocated to any Participant pursuant to this Plan do not constitute any stock
of the Company nor shall they evidence any indebtedness of the Company, but,
rather, shall constitute only a right to receive benefits which are payable
pursuant to the terms and conditions provided herein. Notwithstanding anything
herein to the contrary, nothing in this Plan shall:
(a) Give any Participant any rights in any stock of the Company
currently outstanding or hereafter issued;
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(b) Give any Participant any rights as a creditor of the Company;
or
(c) Create any right of employment in any Participant, limit the
Company's rights to terminate the employment of any
Participant, or evidence any agreement or understanding that
the Company will employ a Participant in any particular
position, at any particular rate of remuneration or for any
particular length of time.
8.4 DESIGNATION OF BENEFICIARY. Each Employee, upon becoming a
Participant, shall file with the Plan Administrator, a notice in writing
designating one or more beneficiaries to whom payments otherwise due the
Participant pursuant to this Plan shall be made in the event of such
Participant's death. A Participant shall have the right to change the
beneficiary or beneficiaries from time to time but no such change shall become
effective until submitted in writing to the Plan Administrator. In the event no
designation of beneficiary is made by a Participant or if all of the
beneficiaries a Participant shall have designated shall be deceased, the
deceased Participant shall be deemed to have designated his or her estate as
beneficiary hereunder.
8.5 GOVERNING LAW. This Plan shall be construed and governed by the
laws of the State of Ohio, to the extent not preempted by Federal law.
8.6 PARTICIPANT AS COMMITTEE MEMBER. No person who is a member of the
Committee shall take part in any decision regarding the eligibility of such
member to become a Participant in this Plan, the eligibility of such member as a
Participant to share in any Company contribution for any Plan Year, the right of
such member to receive an accelerated distribution hereunder, or in any
other election or decision as a Committee member which affects such member's
rights as a Participant hereunder. The provisions of this Section 8.6 shall
apply notwithstanding anything in this Plan or in the Trust to the contrary.
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