EX-10.2






Exhibit 10.2




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.



ARTICLE I — PREFACE




     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.



ARTICLE II — DEFINITIONS




     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.



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     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 31st and
the Effective Date is the following April 1st. As such, any Employee who is
classified as a Key Employee as of December 31st of a particular Plan Year
shall maintain such classification for the 12-month period commencing on the following
April 1st.
	 
	 	(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.



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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.



ARTICLE IV  — 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.





ARTICLE V  — EARNINGS




     Section 5.1. Earnings.



          (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%.




ARTICLE VI  — VESTING




     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.



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     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 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.
	 
	(b)	 	Delayed Payments due to Solvency Issues. Notwithstanding any provision of the
Plan to the contrary, the Company 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 Company to continue as a going concern; provided that any missed payment is made during
the first calendar year in which the funds of the Company are sufficient to make the payment
without jeopardizing the going concern status of the Company.
	 
	(c)	 	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 1st 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
1st day of the 7th month following Termination of Employment.
	 
	(d)	 	Time of Payment/Processing. Except as described in Section 7.2(c), all payments
under the Plan shall be made on, or within 90 days of, the specified payment date.
	 
	(e)	 	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.





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.



     Section 8.2. Distributions to Beneficiaries.



          (a) Amount of Benefits. Excess Retirement Benefits payable to a Participant’s
Beneficiary under this Plan shall be equal to the balance in the Account of such Participant on the
Valuation Date preceding the date of the distribution of the Account to the Beneficiary.




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          (b) Time of Payment. Excess Retirement Benefits that are credited to the Account of a
Participant as of his date of death shall be payable to the Participant’s Beneficiary in accordance
with the rules described in Article VII.




          (c) Form of Payment. All Benefits payable to a Beneficiary hereunder shall be paid in
the form of a lump sum payment.




ARTICLE IX — MISCELLANEOUS




     Section 9.1. Liability of Company. Nothing in this Plan shall constitute
the creation of a trust or other fiduciary relationship between the Company and any Participant,
Beneficiary or any other person.



     Section 9.2. Limitation on Rights of Participants and Beneficiaries — No
Lien. This Plan is designed to be an unfunded, nonqualified plan. Nothing contained herein
shall be deemed to create a trust or lien in favor of any Participant or Beneficiary on any
assets of the Company. The Company shall have no obligation to purchase any assets that do not
remain subject to the claims of the creditors of the Company for use in connection with the Plan.
No Participant or Beneficiary or any other person shall have any preferred claim on, or any
beneficial ownership interest in, any assets of the Company prior to the time that such assets
are paid to the Participant or Beneficiary as provided herein. Each Participant and Beneficiary
shall have the status of a general unsecured creditor of the Company. The amount standing to the
credit of any Participant’s Account is purely notional and affects only the calculation of
benefits payable to or in respect of him. It does not give the Participant any right or
entitlement (whether legal, equitable or otherwise) to any particular assets held for the
purposes of the Plan or otherwise.



     Section 9.3. Payment to Guardian. If a Benefit payable hereunder is
payable to a minor, to a person declared incompetent or to a person incapable of handling the
disposition of his property, the Plan Administrator may direct payment of such Benefit to the
guardian, legal representative or person having the care and custody of such minor, incompetent
or person. The Plan Administrator may require such proof of incompetency, minority, incapacity
or guardianship as it may deem appropriate prior to distribution of the benefit. Such
distribution shall completely discharge the Company from all liability with respect to such
Benefit.



     Section 9.4. Assignment.



          (a) Subject to Subsection (b), no right or interest under this Plan of any Participant or
Beneficiary shall be assignable or transferable in any manner or be subject to alienation,
anticipation, sale, pledge, encumbrance or other legal process or in any manner be liable for or
subject to the debts or liabilities of the Participant or Beneficiary.




          (b) Notwithstanding the foregoing, the Plan Administrator shall honor a qualified domestic
relations order (“QDRO”) from a state domestic relations court which requires the payment of all
or a part of a Participant’s or Beneficiary’s vested interest under this Plan to an “alternate
payee” as defined in Code Section 414(p).




     Section 9.5. Severability. If any provision of this Plan or the
application thereof to any circumstance(s) or person(s) is held to be invalid by a court of
competent jurisdiction, the remainder of the Plan and the application of such provision to other
circumstances or persons shall not be affected thereby.



     Section 9.6. Effect on other Benefits. Benefits payable to or with respect
to a Participant under the Profit Sharing Plan or any other Company sponsored (qualified or
nonqualified) plan, if any, are in addition to those provided under this Plan.



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ARTICLE X — ADMINISTRATION OF PLAN




     Section 10.1. Administration.



          (a) In General. The Plan shall be administered by the Plan Administrator. The Plan
Administrator shall have discretion to interpret where necessary all provisions of the Plan
(including, without limitation, by supplying omissions from, correcting deficiencies in, or
resolving inconsistencies or ambiguities in, the language of the Plan), to make factual findings
with respect to any issue arising under the Plan, to determine the rights and status under the Plan
of Participants or other persons, to resolve questions (including factual questions) or disputes
arising under the Plan and to make any determinations with respect to the benefits payable under
the Plan and the persons entitled thereto as may be necessary for the purposes of the Plan.
Without limiting the generality of the foregoing, the Plan Administrator is hereby granted the
authority (i) to determine whether a particular employee is a Participant, and (ii) to determine if
a person is entitled to Benefits hereunder and, if so, the amount and duration of such Benefits.
The Plan Administrator’s determination of the rights of any person hereunder shall be final and
binding on all persons, subject only to the provisions of Sections 10.3 and 10.4 hereof.




          (b) Delegation of Duties. The Plan Administrator may delegate any of its
administrative duties, including, without limitation, duties with respect to the processing,
review, investigation, approval and payment of Benefits, to a named administrator or
administrators.




     Section 10.2. Regulations. The Plan Administrator may promulgate any rules
and regulations it deems necessary in order to carry out the purposes of the Plan or to interpret
the provisions of the Plan; provided, however, that no rule, regulation or interpretation shall
be contrary to the provisions of the Plan. The rules, regulations and interpretations made by
the Plan Administrator shall, subject only to the provisions of Sections 10.3 and 10.4 hereof, be
final and binding on all persons.



     Section 10.3. Claims Procedures.



          (a) The Plan Administrator shall determine the rights of any person to any Benefits hereunder.
Any person who believes that he has not received the Benefits to which he is entitled under the
Plan must file a claim in writing with the Plan Administrator. The Plan Administrator shall, no
later than 90 days after the receipt of a claim (plus an additional period of 90 days if required
for processing, provided that notice of the extension of time is given to the claimant within the
first 90 day period), either allow or deny the claim in writing.




          (b) A written denial of a claim by the Plan Administrator, wholly or partially, shall be
written in a manner calculated to be understood by the claimant and shall include: (i) the specific
reasons for the denial; (ii) specific reference to pertinent Plan provisions on which the denial is
based; (iii) a description of any additional material or information necessary for the claimant to
perfect the claim and an explanation of why such material or information is necessary; and (iv) an
explanation of the claim review procedure and the time limits applicable thereto (including a
statement of the claimant’s right to bring a civil action under Section 502(a) of ERISA following
an adverse benefit determination on review).




          (c) A claimant whose claim is denied (or his duly authorized representative) who wants to
contest that decision must file with the Plan Administrator a written request for a review of such
claim within 60 days after receipt of denial of a claim. If the claimant does not file a request
for review of his claim within such 60-day period, the claimant shall be deemed to have acquiesced
in the original decision of the Plan Administrator on his claim. If such an appeal is so filed
within such 60 day period, the Compensation Committee (or its delegate) shall conduct a full and
fair review of such claim. During such review, the claimant shall be given the opportunity to
review documents that are pertinent to his claim and to submit issues and comments in writing. For
this purpose, the Compensation Committee (or its delegate) shall have the same




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power to interpret the Plan and make findings of fact thereunder as is given to the Plan
Administrator under Section 10.1(a) above.




          (d) The Compensation Committee (or its delegate) shall mail or deliver to the claimant a
written decision on the matter based on the facts and the pertinent provisions of the Plan within
60 days after the receipt of the request for review (unless special circumstances require an
extension of up to 60 additional days, in which case written notice of such extension shall be
given to the claimant prior to the commencement of such extension). Such decision shall be written
in a manner calculated to be understood by the claimant, shall state the specific reasons for the
decision and the specific Plan provisions on which the decision was based and, to the extent
permitted by law, shall be final and binding on all interested persons. In addition, the notice of
adverse determination shall also include statements that the claimant is entitled to receive, upon
request and free of charge, reasonable access to and copies of all documents, records and other
information relevant to the claimant’s claim for benefits and a statement of the claimant’s right
to bring a civil action under Section 502(a) of ERISA.




     Section 10.4. Revocability of Action/Recovery. Any action taken by the
Plan Administrator or the Compensation Committee (or its delegate) a with respect to the rights
or benefits under the Plan of any person shall be revocable as to payments not yet made to such
person. In addition, the acceptance of any Benefits under the Plan constitutes acceptance of
and agreement to the Plan making any appropriate adjustments in future payments to any person
(or to recover from such person) any excess payment or underpayment previously made to him.



     Section 10.5. Amendment. The Company (with the approval or ratification of
the Compensation Committee) may at any time prospectively or retroactively amend any or all of
the provisions of this Plan for any reason whatsoever, except that, without the prior written
consent of the affected Participant, no such amendment may (a) reduce the amount of any
Participant’s vested Benefit as of the date of such amendment, (b) suspend the crediting of
earnings on the balance of a Participant’s Account, until the last day of the month prior to the
payment date of such Account or (c) alter the time of payment provisions described in Article VII
of the Plan, except for any amendments that are required to bring such provisions into compliance
with the requirements of Code Section 409A or that accelerate the time of payment in a manner
permitted by Code Section 409A. Any amendment shall be in the form of a written instrument
executed by an officer of the Company. Subject to the foregoing provisions of this Section, such
amendment shall become effective as of the date specified in such instrument or, if no such date
is specified, on the date of its execution.



     EXECUTED, this 24th day of April, 2009.




	 	 	 	 	 
	 	NACCO INDUSTRIES, INC.

 	 
	 	By:  	/s/  Suzanne Schultz Taylor
 	 
	 	 	Title:  	Associate General Counsel and
Assistant Secretary 	 
	 




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