NACCO MATERIALS HANDLING GROUP,
INC.
UNFUNDED BENEFIT PLAN
NACCO Materials
Handling Group, Inc. (the “Company”) does hereby amend
and completely restate the NACCO Materials Handling Group, Inc.
Unfunded Benefit Plan on the terms and conditions described
hereinafter, effective April 24, 2009:
Section 1.1. Effective Date . The original
effective date of this Plan was February 10, 1993 and the Plan
was previously amended and restated as of September 1, 2000,
January 1, 2005 and December 1, 2007. The effective date of
this amendment and restatement is April 24, 2009.
Section 1.2. Purpose of the Plan . The purpose
of this Plan is to provide for the continued deferral of certain
frozen benefits.
Section 1.3. 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 1.4. 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. Application of Code
Section 409A
(a) As
a result of the changes to the payment provisions of this Plan in
accordance with the Code Section 409A transitional rules, none
of Accounts are “grandfathered” under Code
Section 409A
.
(b) 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 Employers
do 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 1.6. Benefit Freeze/Plan Termination . All
Excess Retirement Benefits under the Plan were frozen as of
December 31, 2007; provided, however, that earnings shall
continue to be credited on the Accounts after such date, as
specified in the Plan. The Plan shall automatically terminate when
the last Covered Employee 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) and terms
defined in the December 1, 2007 restatement of the Plan shall
have the same meanings when used herein, unless a different meaning
is clearly required by the context of this restatement of the Plan.
In addition, the following words and phrases shall have the
following respective meanings for purposes of this restated
Plan:
Section 2.1. Account shall mean the record
maintained by the Employer 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.
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Section 2.3. Change in Control shall mean the
occurrence of an event described in Appendix A hereto;
provided that such occurrence occurs on or after January 1,
2008 and meets the requirements of Treasury
Regulation Section 1.409A-3(i)(5) or any successor or
replacement thereto).
Section 2.4. Company shall mean NACCO Materials
Handling Group, Inc. or any entity that succeeds NACCO Materials
Handling Group, Inc. by merger, reorganization or
otherwise.
Section 2.5. Covered Employee shall mean any
Participant who, prior to December 31, 2007, is designated by
the Company’s Compensation Committee as an actual or
potential “covered employee” for purposes of Code
Section 162(m) for the 2008 calendar year.
Section 2.6. Employer shall mean the Company and
NMHG Oregon, LLC.
Section 2.7. Excess Retirement Benefit or
Benefit shall mean a Participant’s Account balance as of
April 24, 2009, plus interest thereon.
Section 2.8. 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 2.9. Key Employee . Effective as of
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 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.
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(b)
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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 .
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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 2.10. Participant shall mean the Covered
Employees who have Account balances hereunder.
Section 2.11. Plan shall mean the NACCO
Materials Handling Group, Inc. Unfunded Benefit Plan, as herein set
forth or as duly amended.
Section 2.12. Plan Administrator shall mean the
Administrative Committee of the Profit Sharing Plan.
Section 2.13. Plan Year shall mean the calendar
year.
Section 2.14. Profit Sharing Plan shall mean the
NACCO Materials Handling Group, Inc. Profit Sharing Retirement Plan
or any successor thereto.
Section 2.15. ROTCE Table Rate . ROTCE Table
Rate shall mean the interest rate determined under the annual ROTCE
Table that is adopted and approved by the Company’s
Compensation Committee each Plan Year.
Section 2.16. 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 2.17. Valuation Date shall mean the last
day of each calendar quarter and any other date chosen by the Plan
Administrator.
ARTICLE III
— EXCESS RETIREMENT
BENEFITS — CALCULATION OF AMOUNT
Section 3.1. Frozen Benefits. The Accounts of
the Participants contain amounts that were allocated for 2007 and
prior Plan Years. No additional amounts (other than earnings) shall
be credited to these Accounts.
Section 4.1. Participants’ Accounts . Each
Employer shall establish and maintain on its books an Account for
each Participant which shall contain the following
entries:
(a) Credits
to the Accounts for amounts earned during 2007 and prior Plan
Years.
(b) Credits
for the earnings described in Article V and the amounts
described in Section 7.3.
(c) Debits
for any distributions made from the Accounts.
(a)
In General. . Except as otherwise described in the Plan, for
periods on and after January 1, 2008, 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 the Covered Employees
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. Notwithstanding the foregoing, in the event that the ROTCE
Table Rate determined for such Plan Year exceeds the rate credited
under the preceding sentence to the Excess Profit Sharing
Sub-Account, Basic Excess Deferral Sub-Account, Basic Excess 401(k)
Sub-Account and Basic Excess Matching Sub-Account (as defined in
the December 1, 2007 restatement of the Plan), such Sub-Accounts
shall retroactively be credited with the excess (if any) of
(i) the
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amount
determined under the preceding sentence over (ii) the amount
determined by multiplying the Participant’s Sub-Account
balance during each month of such Plan Year by the ROTCE Table Rate
determined for such Plan Year, compounded monthly. This ROTCE Table
Rate calculation shall be made during the month in which the
Participant incurs a Termination of Employment and shall be based
on the year-to-date ROTCE Table Rate for the month ending prior to
the date the Participant incurred a Termination of Employment, as
calculated by the Company. For any subsequent month following such
Termination, such ROTCE calculation shall not apply.
Section 5.2. Changes in/Limitations on Earnings
Assumption .
(a) 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.
(b) 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.
(a) Subject
to Subsection (b) below and Section 7.2(c), a Participant
who is employed on December 31, 2007 and who is a Covered
Employee shall receive payment of the amounts allocated to his
Account under the following rules: (X) his Account balance as
of December 31, 2007 (after adjustment for the Excess Profit
Sharing Benefit and ROTCE earnings for 2007) shall automatically be
paid in the form of a single lump sum payment on the date of his
Termination of Employment and (Y) the amount of earnings that
is credited to his Account each Plan Year commencing on or after
January 1, 2008, increased by 15%, shall automatically be paid
in the form of annual lump sum payments during the period from
January 1 st
through March 15
th of the immediately following Plan Year.
Notwithstanding the foregoing, during the Plan Year in which a
Covered Employee receives a payment of his frozen Account balance,
such Covered Employee shall also receive payment of the pro-rata
earnings (and corresponding uplift) for such Plan Year at the same
time he receives payment of such Account balance
(b)
Payment Rules in the Event of a Change in Control.
Notwithstanding any provision of the Plan to the contrary, in the
event of a Change in Control, all amounts allocated to the Accounts
of all Participants shall be paid in the form of a lump sum payment
during the period that is thirty days prior to, or within two
(2) business days after, the date of the Change in Control, as
determined by the Compensation Committee.
(c)
Withholding/Taxes . To the extent required by applicable
law, the Employers shall withhold from the Excess Retirement
Benefits hereunder any income, employment or other taxes required
to be withheld therefrom by any governmental agency.
Section 7.2. Other Payment Rules and
Restrictions.
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(a)
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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.
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(b)
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Delayed Payments due to Solvency
Issues .
Notwithstanding any provision of the Plan to the contrary (but
except as otherwise provided in Article XI), an Employer shall
not be required to make any payment hereunder to any Participant or
Beneficiary if the making of the payment would jeopardize the
ability of the Employer to continue as a going concern; provided
that any missed payment is made during the first calendar year in
which the funds of the Employer are sufficient to make the payment
without jeopardizing the going concern status of the
Employer.
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(c)
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Key Employees
. Notwithstanding any
provision of the Plan to the contrary, distributions to Key
Employees made on account of a Termination of Employment may not be
made before the 1 st day of the seventh month following
such Termination of Employment (or, if earlier, the date of death)
except for payments made on account of (i) a QDRO (as
specified in Section 9.5), (ii) a conflict of interest or
(iii) the payment of FICA taxes (as specified in Subsection
(e) below). Any amounts that are otherwise payable to the Key
Employee during the 6-month period following his Termination of
Employment shall be accumulated and paid in a lump sum make-up
payment within 30 days following the 1
st
day of the 7
th
month following
Termination of Employment.
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(d)
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Time of
Payment/Processing . Except as described in
Sections 7.1(b) and 7.2(c), all payments under the Plan shall
be made on, or within 90 days of, the specified payment
date.
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(e)
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Acceleration of Payments
. Notwithstanding any
provision of the Plan to the contrary, to the extent permitted
under Code Section 409A and the Treasury Regulations issued
thereunder, payments of Post-2004 Sub-Accounts hereunder may be
accelerated (i) to the extent necessary to comply with
federal, state, local or foreign ethics or conflicts of interest
laws or agreements or (ii) to the extent necessary to pay the
FICA taxes imposed on benefits hereunder under Code
Section 3101, and the income withholding taxes related
thereto. Payments may also be accelerated if the Plan (or a portion
thereof) fails to satisfy the requirements of Code
Section 409A; provided that the amount of such payment may not
exceed the amount required to be included as income as a result of
the failure to comply with Code Section 409A.
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Section 7.3. Additional Payments.
(a) At
the time described in clause (b) of this Section 7.3, the
Company shall pay to each Participant who is a Covered Employees
(i) an amount equal to the positive difference, if any, of I
minus II (the “Income Tax Payment”), plus (ii) an
additional amount such that, after payment by the Participant of
all applicable federal, state and local income taxes and employment
( e.g. , FICA) taxes on the Income Tax Payment, the
Participant will retain an amount equal to the Income Tax Payment
(the “Gross-Up Payment”). For purposes of this
Section 7.3:
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I
=
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The
Participant’s federal, state and local income tax and
employment ( e.g. , FICA) tax liability with respect to the
payment of the amounts described in Section 7.1(b)(ii)(X) (his
“Frozen Account Balance”); and
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II
=
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The
amount of federal, state and local income tax employment (
e.g. , FICA) tax liability the Participant would have
incurred with respect to the payment of the Participant’s
Frozen Account Balance if the Frozen Account Balance had been paid
to the Participant during the 2008 Plan Year.
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For purposes of
calculating the amounts described in I and II above and determining
the Gross-Up Payment, the Participant will be considered to pay
(A) federal income taxes at the highest rate in effect in the
applicable year and (B) state and local income taxes at the
highest rate in effect in the state or locality in which the
applicable payment would be subject to state or local tax, net of
the maximum reduction in federal income tax that could be obtained
from deduction of such state and local taxes. All determinations
required to be made under this Section 7.3 shall be made by
the Company, after receiving applicable information from the
Participant.
(b) The
payment described in paragraph (a) of this Section 7.3
shall be made at the same time as the payment described in
Section 7.1(a)(X).
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ARTICLE VIII
—
BENEFICIARIES
Section 8.1. Beneficiary Designations . A
designation of a Beneficiary hereunder may be made only by an
instrument (in form acceptable to the Plan Administrator) signed by
the Participant and filed with the Plan Administrator prior to the
Participant’s death. Separate Beneficiary designations may be
made for each Sub-Account under the Plan (provided that a single
Beneficiary must be designated for both the Excess 401(k)
Sub-Account and the corresponding Excess Matching Sub-Account). In
the absence of such a designation and at any other time when there
is no existing Be
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