NACCO
MATERIALS HANDLING GROUP, INC.
EXCESS PENSION PLAN FOR UK TRANSFEREES
(As Amended and Restated Effective November 11,
2008)
NACCO Materials
Handling Group, Inc. (the “Company”) does hereby adopt
this amendment and restatement of the NACCO Materials Handling
Group, Inc. Excess Pension Plan for UK Transferees, on the terms
and conditions described hereinafter, effective as of
November 11, 2008:
Section 1.1. Effective Date . This Plan was
originally effective as of October 1, 2002. The applicable original
Effective Date for the sole Participant in the Plan is listed on
Exhibit A hereto. The effective date of this amendment
and restatement of the Plan is November 11, 2008.
Section 1.2. Purpose of the Plan/Benefit Freeze
. The purpose of this Plan is to provide the Participant with
non-qualified supplemental pension benefits which were designed to
provide the Participant (and his Beneficiaries) with a level of
retirement benefits at least equal to the retirement benefits they
would have received had they continued to participate in the UK
Pension Plan through December 31, 2005. The Excess Pension
Benefits under the Plan are hereby permanently frozen effective
December 31, 2005.
Section 1.3. Governing Law . This Plan shall be
regulated, construed and administered under the laws of the State
of North Carolina, except when preempted by federal law.
Section 1.4. 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 1.5. Code Section 409A .
(i) The
portion of a Participant’s Excess Pension Benefit that was
vested and deferred prior to January 1, 2005 and that
qualifies for “grandfathered status” under
Section 409A of the Code (determined in accordance with the
regulations issued thereunder) shall continue to be governed by the
law applicable to nonqualified deferred compensation prior to the
addition of Section 409A to the Code, shall be subject to the
terms and conditions specified in the Plan as in effect prior to
January 1, 2005 (as restated herein) and shall be referred to
herein as the “Grandfathered Excess Pension
Benefits.”
(ii) The
portion of a Participant’s Excess Pension Benefit that does
not qualify for “grandfathered status” under
Section 409A of the Code (if any) is intended to fully comply
with the requirements of Section 409A of the Code and shall be
referred to herein as the “Non-Grandfathered Excess Pension
Benefits.”
(iii) It
is intended that the Non-Grandfathered Excess Pension Benefits
provided 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 Employers do not guarantee any
particular tax result to Participants or Beneficiaries with respect
to any amounts deferred or any payments provided hereunder,
including tax treatment under Code Section 409A.
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.
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Section 2.1. Actual UK Pension Benefit shall
mean an amount payable in British Pounds Sterling equal to the
annual benefit in fact payable to the Participant or his
Beneficiary under the UK Pension Plan at the time of the
Participant’s Termination of Employment, taking into account
for this purpose any cost-of-living increases between the Effective
Date of a Participant’s participation in the Plan and the
date of Termination of Employment.
Section 2.2. Beneficiary shall mean the
Participant’s surviving spouse or any other designated
beneficiary who is entitled to receive survivor benefits under the
UK Pension Plan.
Section 2.3. Company shall mean NACCO Materials
Handling Group, Inc. or any entity that succeeds NACCO Materials
Handling Group, Inc. by merger, reorganization or
otherwise.
Section 2.4. Compensation shall mean the actual
US compensation received by the Participant from the Controlled
Group through December 31, 2005. In those circumstances where
it is necessary to convert US dollars to UK equivalent earnings,
the conversion will be based on comparable compa-ratio to midpoint
of UK equivalent level position
Section 2.5. Controlled Group shall have the
meaning specified in the Profit Sharing Plan (i.e., the Company and
any and all other corporations, trades and/or businesses, the
Employees of which, together with the Employees of the Company, are
required by Code Section 414 to be treated as if they were
employed by a single employer).
Section 2.6. Employer shall mean the Company and
NMHG Oregon, LLC.
Section 2.7. Excess Pension Benefit or Benefit
shall mean the retirement benefits described in Article III
that are payable to or with respect to a Participant under this
Plan.
Section 2.8. “Key Employee.” Effective
April 1, 2008, a Participant shall be classified as a Key
Employee if he meets the following requirements:
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(a)
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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 Key Employee Effective
Date (defined below). When applying the provisions of Code Section
416(i) 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.
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(b)
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The
Identification Date for Key Employees is each
December 31 st and the Key Employee 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 .
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(c)
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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.
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Section 2.9. Participant . shall mean the
Participant listed on Exhibit A hereto.
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Section 2.10. Plan shall mean the NACCO
Materials Handling Group, Inc. Excess Pension Plan for UK
Transferees, as herein set forth or as duly amended.
Section 2.11. Plan Administrator shall mean the
Administrative Committee appointed under the NACCO Materials
Handling Group, Inc. Profit Sharing Retirement Plan.
Section 2.12. Plan Year shall mean the calendar
year.
Section 2.13. Profit Sharing Plan shall mean the
NACCO Materials Handling Group, Inc. Profit Sharing Plan as in
effect on December 31, 2005.
Section 2.14. Targeted UK Pension Benefit shall
mean an amount payable to the Participant in British Pounds
Sterling equal to the annual benefit which would have been paid to
the Participant under the UK Pension Plan if the Participant had
continued to participate in the UK Pension Plan until
December 31, 2005, taking into account the Participant’s
service with the US members of the Controlled Group and all
Compensation which would otherwise satisfy the definition of
pensionable earnings under the UK Pension Plan (converted to UK
equivalent earnings) through such date. Without limiting or
expanding the foregoing, as applied to a Beneficiary, if the
Participant dies after December 31, 2005 but before incurring
a Termination of Employment, the Targeted UK Pension Benefit
payable to the Beneficiary shall be calculated as if the
Participant had died while an active member of the UK Pension Plan;
provided, however, that the Beneficiary shall not be entitled to
receive the death in service lump sum benefit that would otherwise
have been payable with respect to the UK Pension Plan
Section 2.15. Termination of Employment shall
mean, with respect to the Participant’s relationship with the
Controlled Group, a separation from service as defined under Code
Section 409A (and the regulations and other guidance issued
thereunder).
Section 2.16. UK Pension Plan : shall mean the
NMHG UK Retirement Plan, as in effect from time to time.
Section 2.17. Unfunded Plan shall mean the NACCO
Materials Handling Group, Inc. Unfunded Benefit Plan, as in effect
on December 31, 2005.
Section 2.18. US Retirement Benefits shall mean
$261,351 as of December 31, 2005, increased at an assumed
investment return rate of 6% per year until Termination of
Employment.
Section 2.19. Valuation Date shall mean the last
day of each Plan Year and any other date chosen by the Plan
Administrator.
ARTICLE III- EXCESS PENSION
BENEFITS
Section 3.1. Excess Pension Benefits.
(a)
Amount . Subject to the provisions of Sections 6.5, 6.6
and 7.4 hereof, the Excess Pension Benefit shall initially be
calculated as an annual retirement benefit equal to the difference
between:
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(i)
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The
Targeted UK Pension Benefit reduced by the Actual UK Pension
Benefit (both converted to U.S. dollars in accordance with rules
adopted by the Plan Administrator); and
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(ii)
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The
US Retirement Benefits, converted to an annuity using a 6% interest
rate and the 1983 Group Annuity Mortality table.
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The annual
Excess Pension Benefit so determined shall be divided by twelve
(12) to determine the monthly Excess Pension Benefit payable
hereunder.
(b)
Time and Form of Payment .
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(i)
Normal Form of Payment . The monthly Excess Pension Benefit
shall be paid to the Participant (or his Beneficiary, in the event
of his death) in the form of monthly annuity payments for the life
of the Participant (or Beneficiary, as applicable). Except as
otherwise specified in clause (vi) below, the first payment
shall commence on the first day of the second month after the
Participant’s Termination of Employment
(ii)
Optional Lump Sum Payment subject to 10% Penalty .
Notwithstanding clause (i), the Participant (or Beneficiary, if
applicable), shall be permitted to elect an immediate lump sum
payment of the present value of the Grandfathered Excess Pension
Benefits, at any time following the Participant’s Termination
of Employment. The amount of such lump sum payment shall be equal
to the present value of the Grandfathered Excess Pension Benefits,
calculated using a 6% interest rate and the 1983 Group Annuity
Mortality Table, less 10%. Such payment shall be made as soon as
practicable after such withdrawal request is processed by the
Employer and shall fully discharge the Employer for any and all
liabilities hereunder to the Participant and his Beneficiary with
respect to the Grandfathered Excess Pension Benefits.
(iii)
Time of Payment/Processing. All payments under the Plan
shall be made on, or within 90 days of, the specified payment
date.
(iv)
Payments Violating Applicable Law. Notwithstanding any
provision of the Plan to the contrary, the payment of all or any
portion of the amounts payable hereunder will be deferred to the
extent that the Company reasonably anticipates that the making of
such payment would violate Federal securities laws or other
applicable law (provided that the making of a payment that would
cause income taxes or penalties under the Code shall not be treated
as a violation of applicable law). The deferred amount shall become
payable at the earliest date at which the Company reasonably
anticipates that making the payment will not cause such
violation
(v)
Delayed Payments due to Solvency Issues . Notwithstanding
any provision of the Plan to the contrary, an Employer shall not be
required to make any paym
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