NACCO INDUSTRIES, INC.
UNFUNDED BENEFIT PLAN FOR TERMINATED NMHG EMPLOYEES
NACCO Industries,
Inc. (the “Company”) does hereby adopt the NACCO
Industries, Inc. Unfunded Benefit Plan for Terminated NMHG
Employees on the terms and conditions described hereinafter,
effective April 24, 2009:
The Plan was
spun-off from, and is a successor in interest to, the NACCO
Materials Handling Group, Inc. Unfunded Benefit Plan (the
“Prior Plan”), which was frozen effective
December 31, 2007.
Section 1.1. Effective Date . The effective date
of this Plan is April 24, 2009
Section 1.2. Governing Law . This Plan shall be
regulated, construed and administered under the laws of the State
of North Carolina, except where preempted by federal
law.
Section 1.3. Gender and Number . For purposes of
interpreting the provisions of this Plan, the masculine gender
shall be deemed to include the feminine, the feminine gender shall
be deemed to include the masculine, and the singular shall include
the plural unless otherwise clearly required by the
context.
Section 1.4. Application of Code
Section 409A As a result of the changes to the payment
provisions of the Prior Plan in accordance with the Code
Section 409A transitional rules, none of the Accounts are
“grandfathered” under Code Section 409A. It is
intended that the compensation arrangements under the Plan be in
full compliance with the requirements of Code Section 409A.
The Plan shall be interpreted and administered in a manner to give
effect to such intent. Notwithstanding the foregoing, the Company
does not guarantee to Participants or Beneficiaries any particular
tax result with respect to any amounts deferred or any payments
provided hereunder, including tax treatment under Code
Section 409A.
Section 1.5. Benefit Freeze/Plan Termination .
All Excess Retirement Benefits under the Plan were frozen as of the
earlier of December 31, 2007 or the date the Participant
incurred a Termination of Employment; provided, however, that
earnings shall continue to be credited on all Accounts after such
date, as specified in the Plan. The Plan shall automatically
terminate in 2009 when the last Participant receives a payment of
his entire Account hereunder.
Except as
otherwise provided in this Plan, terms defined in the Profit
Sharing Plan as it may be amended from time to time shall have the
same meanings when used herein, unless a different meaning is
clearly required by the context of this Plan. In addition, the
following words and phrases shall have the following respective
meanings for purposes of this Plan:
Section 2.1. Account shall mean the record
maintained by the Company or its delegate in accordance with
Section 4.1 as the sum of the Participant’s Excess
Retirement Benefits hereunder.
Section 2.2. Beneficiary shall mean the person
or persons designated by the Participant as his Beneficiary under
this Plan, in accordance with the provisions of Article VIII
hereof.
Section 2.3. Company shall mean NACCO
Industries, Inc.
Section 2.4. Excess Retirement Benefit or
Benefit shall mean a Participant’s Account balance as of
April 24, 2009, plus interest.
1
Section 2.5. Fixed Income Fund shall mean the
Vanguard Retirement Savings Trust IV investment fund under the
Profit Sharing Plan or any equivalent fixed income fund thereunder
which is designated by the NACCO Industries, Inc. Retirement Funds
Investment Committee as the successor thereto.
Section 2.6. Key Employee . Effective as of
April 1, 2008, a Participant shall be classified as a Key
Employee if he meets the following requirements:
|
|
(a)
|
|
The
Participant, with respect to the Participant’s relationship
with the Company and the Controlled Group Members. met the
requirements of Section 416(i)(1)(A)(i), (ii) or (iii) of
the Code (without regard to Section 416(i)(5)) and the
Treasury Regulations issued thereunder at any time during the
12-month period ending on the most recent Identification Date
(defined below) and his Termination of Employment occurs during the
12-month period beginning on the most recent Effective Date
(defined below). When applying the provisions of Code
Section 416(i)(1)(A)(i), (ii) or (iii) for this
purpose: (i) the definition of “compensation”
(A) shall be as defined in Treasury Regulation
Section 1.415(c)-2(d)(4) (i.e., the wages and other
compensation for which the Employer is required to furnish the
Employee with a Form W-2 under Code Sections 6041, 6051 and
6052, plus amounts deferred at the election of the Employee under
Code Sections 125, 132(f)(4) or 401(k)) and (B) shall
apply the rule of Treasury Regulation Section
1.415-2(g)(5)(ii) which excludes compensation of non-resident alien
employees and (ii) the number of officers described in Code
Section 416(i)(1)(A)(i) shall be 60 instead of 50.
|
|
|
|
|
|
|
|
(b)
|
|
The
Identification Date for Key Employees is each
December 31 st and the Effective Date is the
following April 1 st . As such, any Employee who is
classified as a Key Employee as of December 31
st
of a particular Plan
Year shall maintain such classification for the 12-month period
commencing on the following April 1 st .
|
|
|
|
|
|
|
|
(c)
|
|
Notwithstanding the foregoing, a
Participant shall not be classified as a Key Employee unless the
stock of NACCO Industries, Inc. (or a related entity) is publicly
traded on an established securities market or otherwise on the date
of the Participant’s Termination of Employment.
|
Section 2.7. Participant . Any person with an
Account balance hereunder.
Section 2.8. Plan shall mean the NACCO
Industries, Inc. Unfunded Benefit Plan for Terminated NMHG
Employees, as herein set forth or as duly amended.
Section 2.9. Plan Administrator shall mean the
Administrative Committee of the Profit Sharing Plan.
Section 2.10. Plan Year shall mean the calendar
year.
Section 2.11. Profit Sharing Plan shall mean the
NACCO Materials Handling Group, Inc. Profit Sharing Retirement Plan
or any successor thereto.
Section 2.12. Termination of Employment means,
with respect to any Participant’s relationship with the
Company and the Controlled Group Members, a separation from service
as defined in Code Section 409A (and the regulations or other
guidance issued thereunder).
Section 2.13. Valuation Date shall mean the last
day of each calendar quarter and any other date chosen by the Plan
Administrator.
2
ARTICLE III
— EXCESS RETIREMENT
BENEFITS — CALCULATION OF AMOUNT
Section 3.1. Frozen Benefits. The Accounts of
the Participants contain amounts that were credited to their
Accounts under the Prior Plan prior to the earlier of
December 31, 2007 or their Termination of Employment. No
additional amounts (other than earnings) shall be credited to these
Accounts.
Section 4.1. Participants’ Accounts . The
Company (or its delegate) shall establish and maintain on its books
an Account for each Participant which shall contain the following
entries:
|
|
(a)
|
|
Credits to the Accounts for the
amounts earned under the Prior Plan;
|
|
|
|
|
|
|
|
(b)
|
|
Credits to Accounts for the earnings
described in Article V; and
|
|
|
|
|
|
|
|
(c)
|
|
Debits for any distributions made
from the Accounts.
|
(a) Except
as otherwise described in the Plan, at the end of each calendar
month during a Plan Year through the end of the month prior to the
payment date, the Accounts of all Participants shall be credited
with an amount determined by multiplying such Participant’s
Account balance during such month by the blended rate earned during
the prior month by the Fixed Income Fund.
(b) The
Company’s Compensation Committee may change (but, for periods
prior to the last day of the month prior to the payment date, may
not suspend) the earnings rate credited on Accounts under the Plan
at any time.
(c) Notwithstanding
any provision of the Plan to the contrary, in no event will
earnings on Accounts for a Plan Year be credited at a rate which
exceeds 14%.
Section 6.1. Vesting . A Participant shall
always be 100% vested in all amounts credited to his Account
hereunder.
ARTICLE VII
— TIME AND FORM OF
PAYMENT TO PARTICIPANTS
Section 7.1. Time and Form of Payment . The
amounts allocated to the Account of a Participant shall
automatically be paid in a single lump sum payment during the
period from January 1, 2009 through April 30, 2009.
Notwithstanding the foregoing, if such a Participant was in pay
status on December 31, 2007, such Participant shall receive
his normally scheduled installment payment at the appropriate time
during 2008 (determined in accordance with the terms of the Prior
Plan and his payment election, as applicable), with each such
installment payment being classified as a single payment for
purposes of Code Section 409A. To the extent required by
applicable law, the Company (or its delegate) shall withhold from
the Excess Retirement Benefits hereunder any income, employment or
other taxes required to be withheld therefrom by any governmental
agency.
3
Section 7.2. Other Payment Rules and
Restrictions.
|
(a)
|
|
Payments Violating Applicable
Law. Notwithstanding any provision of the
Plan to the contrary, the payment of all or any portion of the
amounts p
|
|
