Exhibit 10.12
THE GRADALL COMPANY
BENEFIT RESTORATION PLAN
ARTICLE I - ESTABLISHMENT AND PURPOSE
1.1 ESTABLISHMENT. The Gradall Company (the "Company"), hereby
establishes, effective as of August 30, 1995, an unfunded retirement benefit
plan to be known as the "THE GRADALL COMPANY BENEFIT RESTORATION PLAN" (the
"plan").
1.2 PURPOSE. The general purpose of this plan is to provide the amount
of the benefit which would have otherwise been paid under the Company's
Employees' Retirement Plan (effective October 28, 1983) as it was constituted on
December 31, 1987, but which cannot be paid due to revisions in the Employees'
Retirement Plan As Amended and Restated January 1, 1988 to comply with tax law
changes.
1.3 APPLICATION OF PLAN. The terms of this plan are applicable only to
employees of the Company who are in the active employ of the Company on or after
the effective date of the plan.
ARTICLE II - DEFINITIONS AND CONSTRUCTION
2.1 DEFINITIONS. Unless otherwise indicated, the terms used in this
plan shall have the same meaning as they have under the pension plan in effect
on the applicable date.
2.2 GENDER AND NUMBER. Except when otherwise indicated by the context,
any masculine terminology when used in the plan shall also include the feminine
gender, and the definition of any term in the singular shall also include the
plural.
2.3 SEVERABILITY. In the event any provision of the plan shall be held
invalid or illegal for any reason, any illegality or invalidity shall not affect
the remaining parts of the plan, but the plan shall be construed and enforced as
if the illegal or invalid provision had never been inserted, and the Company
shall have the privilege and opportunity to correct and remedy such questions of
illegality or invalidity by amendment as provided in the plan.
2.4 APPLICABLE LAW. This plan shall be governed and construed in
accordance with the laws of the State of Ohio.
2.5 PLAN NOT AN EMPLOYMENT CONTRACT. This plan is not an employment
contract. It does not give to any person the right to be continued in
employment, and all employees remain subject to change of salary, transfer,
change of job, discipline, layoff, discharge, or any other change of employment
status.
ARTICLE III - PARTICIPATION
3.1 PARTICIPANTS. The Committee shall determine if an employee of the
Company is eligible to participate in the plan. An employee of the Company shall
be considered for participation in this plan when his annual pension benefit
under the Employees' Retirement Plan (effective October 28, 1983) as it was
constituted on December 31, 1987, is reduced on account of changes in the
pension formula in the Employees' Retirement Plan as Amended and Restated
January 1, 1988.
Attached in Appendix A are the affected participants. Additional employees may
be added as participants if they meet the criteria and are part of the select
group of management or are highly compensated as determined by the Committee.
ARTICLE IV - BENEFITS
4.1 AMOUNT OF BENEFITS.
(a) GENERAL. The monthly benefit payable at actual retirement
under this plan to the participant shall be equal to the difference between the
amount in (1) and the amount in (2) where --
(1) is the amount of the monthly benefit that would
be payable under the Employees' Retirement Plan (effective October 28,
1983) as it was constituted on December 31, 1987, in the form of a
single life annuity.
(2) is the amount of the monthly benefit actually
payable under the Employees' Retirement Plan As Amended and Restated
January 1, 1988, in the form of a single life annuity.
The existence of a qualified domestic relations order does not affect the
calculation of the benefit under (a)(1) or (a)(2).
(b) OTHER FORMS. Alternative forms of benefit payout can be
elected prior to the retirement date. The benefit will be adjusted using
actuarial factors used in the pension plan. In addition, a lump sum amount will
be calculated and will be included as an alternative form of benefit under this
plan.
(c) PLAN TERMINATION. In the event that the pension plan is
terminated, one of the following should occur --
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(1) If the pension plan is merged or replaced, then
the benefit calculated in 4.1(a)(2) will be based on the pension plan
in effect.
(2) If the pension plan is settled through the
purchase of deferred annuities or a lump sum payment in cash, then the
benefit in 4.1 will be determined and settled in a similar fashion at
the effective date of the settlement.
4.2 COMMENCEMENT DATE. Benefits payable under this plan shall commence
on or about the same date that benefits commence under the pension plan.
4.3 VESTING. A participant shall become vested in the benefit payable
under Section 4.1 at the same time that he becomes vested under the pension
plan.
4.4 DEATH BENEFITS. No death benefit shall be paid under this plan
except as provided in this section. A death benefit shall be payable to a
surviving spouse or other designated beneficiary of the participant if a death
benefit is payable under the terms of the pension plan. Such death benefit shall
be computed using the same factors and assumptions used to compute the
applicable death benefit under the pension plan and shall be paid in the same
form as such death benefit, except that the amount of the death benefit shall be
computed with respect to the amount of the benefit the participant accrues under
this plan.
4.5 FUNDING. All amounts paid under this plan shall be paid in cash
from the general assets of the Company. Benefits shall be reflected on the
accounting records of the Company but shall not be construed to create, or
require the creation of, a trust, custodial or escrow account. No employee shall
have any right, title, or interest whatever in or to any investment reserves,
accounts, or funds that the Company may purchase, establish, or accumulate to
aid in providing the benefits described in this plan. Nothing contained in this
plan, and no action taken pursuant to its provisions, shall create or be
construed to create a trust or a fiduciary relationship of any kind between the
Company and an employee or any other person. Neither an employee or a
beneficiary of an employee shall acquire any interest greater than that of an
unsecured creditor.
4.6 TAX WITHHOLDING. The Company may withhold from a payment any
federal, state, or local taxes required by law to be withheld with respect to
such payment and such sum as the Company may reasonably estimate as necessary to
cover any taxes for which the Company may be liable and which may be assessed
with regard to such payment.
4.7 NONTRANSFERABILITY. An employee or his beneficiary shall have no
rights by way of anticipation or otherwise to assign or otherwise dispose of any
interest under this plan, nor shall rights be assigned or transferred by
operation of law.
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ARTICLE V - ADMINISTRATION
5.1 ADMINISTRATION. The plan shall be administered by the Compensation
Committee of the Board.
5.2 FINALITY OF DETERMINATION. The determination of the Committee as to
any disputed questions arising under this plan, including questions of
construction and interpretation, shall be final, binding, and conclusive upon
all persons.
5.3 EXPENSES. The expenses of administering the plan shall be borne by
the Company.
5.4 INDEMNIFICATION AND EXCULPATION. The members of the Committee, its
agents, and officers, directors, and employees of the Company and its affiliates
shall be indemnified and held harmless by the Company against and from any and
all loss, cost, liability, or expense that may be imposed upon or reasonably
incurred by them in connection with or resulting from any claim, action, suit,
or proceeding to which they may be a party or in which they may be involved by
reason of any action taken or failure to act under this plan and against and
from any and all amounts paid by them in settlement (with the Company's written
approval) or paid by them in satisfaction of a judgment in any such action,
suit, or proceeding. The foregoing provision shall not be applicable to any
person if the loss, cost, liability, or expense is due to such person's gross
negligence or willful misconduct.
ARTICLE VI - CLAIMS PROCEDURE
6.1 WRITTEN CLAIM. Benefits shall be paid in accordance with the
provisions of this agreement. The participant, or a designated recipient or any
other person claiming through the participant shall make a written request for
benefits under this agreement. This written claim shall be mailed or delivered
to the named fiduciary. Such claim shall be reviewed by the named fiduciary or
his delegate. The named fiduciary for this plan shall be the same as the named
fiduciary of the Company's pension plan.
6.2 DENIED CLAIM. If the claim is denied, in full or in part, the named
fiduciary shall provide a written notice within ninety (90) days setting forth
the specific reasons for denial, and any additional material or information
necessary to perfect the claim, and an explanation of why such material or
information is necessary, and appropriate information and explanation of the
steps to be taken if a review of the denial is desired.
6.3 REVIEW PROCEDURE. If the claim is denied and a review is desired,
the participant (or beneficiary) shall notify the named fiduciary in writing
within sixty (60) days (a claim shall be deemed denied if the named fiduciary
does not take any action within the aforesaid ninety (90) day period) after
receipt of the written notice of denial. In requesting a review, the participant
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or his beneficiary may request a review of the plan document or other pertinent
documents with regard to the employee benefit plan created under this agreement,
may submit any written issues and comments, may request an extension of time for
such written submission of issues and comments, and may request that a hearing
be held, but the decision to hold a hearing shall be within the sole discretion
of the committee.
6.4 COMMITTEE REVIEW. The decision on the review of the denied claim
shall be rendered by the Committee within sixty (60) days after the receipt of
the request for review (if no hearing is held) or within sixty (60) days after
the hearing if one is held. The decision shall be written and shall state the
specific reasons for the decision including reference to specific provisions of
this plan on which the decision is based.
ARTICLE VII - MERGER, AMENDMENT, AND TERMINATION
7.1 MERGER, CONSOLIDATION, OR ACQUISITION. The plan shall be binding
upon the Company, its assigns, and any successor Company which shall succeed to
substantially all of its assets and business through merger, consolidation or
acquisition.
7.2 AMENDMENT AND TERMINATION. The Board of Directors of the Company
may amend, modify, or terminate the plan at any time. In the event of a
termination of the plan pursuant to this section, unpaid benefits shall continue
to be an obligation of the Company and shall be paid as scheduled.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officer on this 31st day of AUGUST, 1995,
effective as of the 30th day of AUGUST, 1995.
THE GRADALL COMPANY
By: /s/ Barry Phillips
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ATTEST:
By:
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[SEAL]
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APPENDIX A
THE GRADALL COMPANY
The participants in the Benefit Restoration Plan are as follows:
James Cahill
Bruce Jonker
John Gano
William English
Stanley Swope
Michael Haberman
Ky Kuehling
Everett Evans
Phillip Keller