EX-10.11



 





Exhibit 10.11




THE NORTH AMERICAN COAL CORPORATION

EXCESS RETIREMENT PLAN

(EFFECTIVE JANUARY 1, 2008)





 









 








THE NORTH AMERICAN COAL CORPORATION

EXCESS RETIREMENT PLAN




          The North American Coal Corporation (the “Company”) does hereby adopt this Excess Retirement
Plan, effective January 1, 2008.




ARTICLE I.

INTRODUCTION



Section 1.01 Effective Date. The effective date of this Plan is January 1, 2008.



Section 1.02 Purpose of the Plan. The purpose of this Plan is to provide for certain
Employees the benefits they would have received under the Savings Plan but for (a) the limitations
imposed under Code Sections 402(g), 401(a)(17), 401(k)(3), 401(m) and 415, (b) the deferral of
Compensation under this Plan or (c) the limitations that apply to the benefits payable to certain
Highly Compensation Employees.



Section 1.03 Governing Law. This Plan shall be regulated, construed and administered under
the laws of the State of Ohio, except when preempted by federal law.



Section 1.04 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 1.05 Status of Plan. This document is classified as a single “plan” for purposes
of recordkeeping, the Code and the requirements of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”). For purposes of the federal securities laws, however, this document
shall be classified as two separate “plans.” One plan shall consist of the Accounts of those
persons who satisfy the requirements of an “accredited investor” or a “sophisticated purchaser”
under Rule 506 of the Securities Act of 1933 and the other plan shall consist of the Accounts of
all other Plan Participants.



Section 1.06 Application of Code Section 409A.





	 	(a)	 	The Excess 401(k) Sub-Accounts under the Plan are subject to the requirements of Code
Section 409A. The Excess Matching Sub-Account and the Excess Profit Sharing Sub-Account
are intended to be exempt from the requirements of Code Section 409A.
	 
	 	(b)	 	It is intended that the compensation arrangements under the Plan be in full compliance
with the requirements of, or the exceptions to, 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.




 









 











ARTICLE II.

DEFINITIONS





Except as otherwise provided in this Plan, terms defined in the Savings Plan as they 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 2.01 Account shall mean the record maintained in accordance with Section 3.05 by
the Employer as the sum of the Participant’s Excess Retirement Benefits hereunder. The
Participant’s Account shall be further divided into the Sub-Accounts described in Article III.



Section 2.02 Beneficiary shall mean the person or persons designated by the Participant as
his Beneficiary under this Plan, in accordance with the provisions of Article VII hereof.



Section 2.03 Benefits Committee shall mean the NACCO Industries, Inc. Benefits
Committee.



Section 2.04 Bonus shall mean any bonus under the Company’s annual incentive compensation
plan(s) that would be taken into account as Compensation under the Savings Plan, which is earned
with respect to services performed by a Participant during a Plan Year (whether or not such Bonus
is actually paid to the Participant during such Plan Year). An election to defer a Bonus under
this Plan must be made before the period in which the services are performed which gives rise to
such Bonus.



Section 2.05 Company shall mean The North American Coal Corporation or any entity that
succeeds The North American Coal Corporation by merger, reorganization or otherwise.



Section 2.06 Compensation shall have the same meaning as under the Savings Plan, except
that Compensation shall be deemed to include (a) the amount of compensation deferred by the
Participant under this Plan and (b) amounts in excess of the limitation imposed by Code Section
401(a)(17). Notwithstanding the foregoing, the timing and crediting of Bonuses hereunder shall be
as specified in Section 3.01.



Section 2.07 Compensation Committee shall mean the Compensation Committee of the
Board of Directors of the Company.



Section 2.08 Employer shall mean the Company and any other Controlled Group Member that
adopts this Plan pursuant to Section 8.07.



Section 2.09 Excess Retirement Benefit or Benefit shall mean an Excess Profit Sharing
Benefit, an Excess 401(k) Benefit or an Excess Matching Benefit (all as described in Article III)
that is payable to or with respect to a Participant under this Plan.



Section 2.10 Fixed Income Fund shall mean the Vanguard Retirement Savings Trust IV
investment fund under the Savings Plan or any equivalent fixed income fund thereunder which is
designated by the NACCO Industries, Inc. Retirement Funds Investment Committee as the successor
thereto.




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Section 2.11 Key Employee. Effective April 1, 2008, a Participant shall be classified as a
Key Employee if he meets the following requirements:





	 	•	 	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.
	 
	 	•	 	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.
	 
	 	•	 	Notwithstanding the foregoing, a Participant shall not be classified as a Key
Employee unless the stock of NACCO (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 2.12 NACCO shall mean NACCO Industries, Inc.



Section 2.13 Participant.




	 	(a)	 	For purposes of Sections 3.01 and 3.02 of the Plan, the term “Participant” means an
Employee of an Employer (other than a San Miguel Employee or a Florida Dragline Employee)
who is a Participant in the Savings Plan (i) who is unable to make all of the Before-Tax
Contributions that he has elected to make to the Savings Plan, or is unable to receive the
maximum amount of Matching Contributions under the Savings Plan because of the limitations
of Code Section 402(g), 401(a)(17), 401(k)(3), 401(m) or 415 or as a result of his deferral
of Compensation under this Plan; (ii) who is in salary grade 14 or above; and (iii) whose
total compensation from the Controlled Group for the year in which a deferral election is
required is at least $125,000.
	 
	 	(b)	 	For purposes of Section 3.03 of the Plan, the term “Participant” means an Employee of
an Employer (i) who is a Salaried Profit Sharing Employee under the Savings Plan and (ii)
whose Profit Sharing Contribution under the Savings Plan (A) is limited by the application
of Code Section 401(a)(17) or 415, (B) is reduced due to his deferral of




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	 	 	 	Compensation under this Plan or (C) is limited by the terms of the Savings Plan that apply
to Highly Compensated Employees (if applicable).
	 
	 	(c)	 	The term “Participant” shall also include any other person who has an Account balance
hereunder.




Section 2.14 Plan shall mean The North American Coal Corporation Excess Retirement Plan, as
herein set forth or as duly amended.



Section 2.15 Plan Administrator shall mean the Administrative Committee appointed under the
Savings Plan.



Section 2.16 Plan Year shall mean the calendar year.



Section 2.17 Savings Plan shall mean The North American Coal Corporation Retirement Savings
Plan (or any successor plan).



Section 2.18 Termination of Employment shall mean, with respect to any Participant’s
relationship with the Company and the Controlled Group Members, a separation from service as
defined under Code Section 409A (and the regulations and other guidance issued thereunder).



Section 2.19 Valuation Date shall mean the last business day of each calendar quarter and
any other date chosen by the Plan Administrator.




ARTICLE III.

EXCESS RETIREMENT BENEFITS — CALCULATION OF AMOUNT



Section 3.01 Basic and Additional Excess 401(k) Benefits.





	 	(a)	 	Amount of Excess 401(k) Benefits. For periods on and after January 1, 2008,
each Participant may, on or prior to each December 31st , by completing an
approved deferral election form, direct his Employer to reduce his Compensation for the
next Plan Year by an amount equal to the difference between (i) a specified percentage,
in 1% increments, with a maximum of 25%, of his Compensation for the Plan Year, and (ii)
the maximum Before-Tax Contributions actually permitted to be contributed for him to the
Savings Plan for such Plan Year by reason of the application of the limitations under Code
Sections 402(g), 401(a)(17), 401(k)(3) and 415. All amounts deferred under this Section
shall be referred to herein collectively as the “Excess 401(k) Benefits.” Notwithstanding
the foregoing, (1) a Participant’s direction to reduce a Bonus earned during a particular
Plan Year shall be made no later than December 31st of the Plan Year preceding
the Plan Year in which the Bonus commences to be earned and (2) elections to defer Bonuses
earned in 2007 that were made under The North American Coal Corporation Deferred
Compensation Plan for Management Employees prior to December 31, 2006 shall continue in
effect hereunder; provided, however, that the payment of those amounts shall be as
specified in Article VI hereof.
	 
	 	(b)	 	Classification of Excess 401(k) Benefits. The Excess 401(k) Benefits for a
particular Plan Year shall be calculated per pay period and shall be further divided into
the “Basic Excess 401(k) Benefits” and the “Additional Excess 401(k) Benefits” as follows:




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	 	(i)	 	The Basic Excess 401(k) Benefits shall be determined by multiplying each Excess
401(k) Benefit by a fraction, the numerator of which is the lesser of the percentage of
Compensation elected to be deferred in the deferral election form for such Plan Year or
5% and the denominator of which is the percentage of Compensation elected to be
deferred; and
	 
	 	(ii)	 	The Additional Excess 401(k) Benefits (if any) shall be determined by
multiplying such Excess 401(k) Benefit by a fraction, the numerator of which is the
excess (if any) of (1) the percentage of Compensation elected to be deferred in the
deferral election form for such Plan Year over (2) 5%, and the denominator of which is
the percentage of Compensation elected to be deferred.
	 
	 	(iii)	 	The Basic Excess 401(k) Benefits shall be credited to the Basic Excess 401(k)
Sub-Account under this Plan and the Additional Excess 401(k) Benefits shall be credited
to the Additional Excess 401(k) Sub-Account hereunder. The Basic and Additional Excess
401(k) Sub-Accounts shall be referred to collectively as the “Excess 401(k)
Sub-Account.”






	 	(c)	 	Consequences of Deferral Election. Any direction by a Participant to defer
Compensation under Subsection (a) shall be effective with respect to Compensation otherwise
payable to the Participant during the Plan Year for which the deferral election form is
effective, and the Participant shall not be eligible to receive such Compensation.
Instead, such amounts shall be credited to the Participant’s Excess 401(k) Sub-Account
hereunder. Any such direction shall be irrevocable with respect to Compensation earned for
such Plan Year, but shall have no effect on Compensation that is earned in subsequent Plan
Years. A new deferral election will be required for each Plan Year.




Section 3.02 Excess Matching Benefits. A Participant shall have credited to his Excess
Matching Sub-Account an amount equal to the Matching Contributions attributable to his Basic Excess
401(k) Benefits that he is prevented from receiving under the Savings Plan because of the
limitations imposed under Code Sections 402(g), 401(a)(17), 401(k)(3), 401(m) and 415 or as a
result of his deferral of Compensation under this Plan (the “Excess Matching Benefits”). .



Section 3.03 Excess Profit Sharing Benefits. Effective for Plan Years commencing on or
after January 1, 2008, each Employer shall credit to a Sub-Account (the “Excess Profit Sharing
Sub-Account”) established for each Participant who is an Employee of such Employer, an amount equal
to the excess, if any, of (i) the amount of the Employer’s Profit Sharing Contribution that
would have been made to the Savings Plan on behalf of the Participant for a Plan Year if (1) such
Plan did not contain the limitations imposed under Code Sections 401(a)(17) and 415 or any limits
on the Profit Sharing Contributions provided to Highly Compensated Employees and (2) the term
“Compensation” (as defined in Section 2.06 hereof) were used for purposes of determining the amount
of Profit Sharing Contributions under the Savings Plan, over (ii) the amount of the
Employer’s Profit Sharing Contribution that is actually made to the Savings Plan on behalf of the
Participant for such Plan Year (the “Excess Profit Sharing Benefits”).



Section 3.04 Participants’ Accounts. Each Employer shall establish and maintain on its
books for each Participant who is an Employee of such Employer an Account which shall contain the
following entries:




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	 	(a)	 	Credits to a Basic or Additional Excess 401(k) Sub-Account (as applicable) for the
Excess 401(k) Benefits described in Section 3.01, which shall be credited to the
Sub-Account when a Participant is prevented from making a Before-Tax Contribution under the
Savings Plan;
	 
	 	(b)	 	Credits to an Excess Matching Sub-Account for the Excess Matching Benefits described in
Section 3.02, which shall be credited to the Sub-Account when a Participant is prevented
from receiving Matching Contributions under the Savings Plan;
	 
	 	(c)	 	Credits to an Excess Profit Sharing Sub-Account for the Excess Profit Sharing Benefits
described in Section 3.03, which shall be credited to the Sub-Account at the time the
Profit Sharing Contributions are otherwise credited to Participants’ accounts under the
Savings Plan;
	 
	 	(d)	 	Credits to all Sub-Accounts for the earnings and the upliftdescribed in Article IV; and
	 
	 	(e)	 	Debits for any distributions made from the Sub-Accounts.




Section 3.05 Statements. Participants shall be provided with statements of their Account
balances at least once each Plan Year.




ARTICLE IV.

EARNINGS/UPLIFT



Section 4.01 Amount of Earnings.





Subject to Section 4.03, at the end of each calendar month during a Plan Year, the Excess 401(k)
Sub-Account and the Excess Matching Sub-Account of each Participant shall be credited with an
amount determined by multiplying such Participant’s average Sub-Account balance during such
month by the blended rate earned during such month by the Fixed Income Fund. However, no
earnings shall be credited for the month in which a Participant receives a distribution from his
Sub-Account.


Section 4.02 Uplift on Plan Payments. In addition to the earnings described in Section
4.01, the balance of the Basic Excess 401(k) Sub-Account, the Excess Matching Sub-Account and the
Excess Profit Sharing Sub-Account as of the last day of the month prior to the payment date shall
each be increased by an additional 15%.




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Section 4.03 Changes/Limitations.





	 	(a)	 	The Compensation Committee may change (or suspend) (i) the earnings rate credited on
Accounts and/or (ii) the amount of the uplift 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 (excluding the uplift described in Section 4.02) be credited at a
rate which exceeds 14%.





ARTICLE V.

VESTING



Section 5.01 Vesting A Participant shall always be 100% vested in the amounts credited to
his Account hereunder.




ARTICLE VI.

TIME AND FORM OF PAYMENT



Section 6.01 Time and Form of Payment. All amounts credited to a Participant’s
Sub-Accounts for each Plan Year (including the Excess Profit Sharing Benefits, earnings and the
uplift that are credited after the end of a Plan Year) shall automatically be paid to the
Participant (or his Beneficiary in the event of his death) in the form of a single lump sum payment
on March 15th of the immediately following Plan Year.



Section 6.02 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 Employer 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 Employer 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, 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.
	 
	 	(c)	 	Key Employees. Notwithstanding any provision of the Plan to the contrary, to
the extent the payment of a particular Sub-Account is subject to the requirements of Code
Section 409A, the distribution of such Sub-Account to Key Employees made on account of a
Termination of Employment may not be made before the 1st day of the
7th 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 8.05) or
(ii) a conflict of interest or the payment of FICA taxes (as specified in Subsection (d)
below). Any




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	 	 	 	Benefits 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 10 days following the 1st day of the 7th month following
Termination of Employment.
	 	(d)	 	Acceleration of Payments. Notwithstanding any provision of the Plan to the
contrary, to the extent the payment of a particular Sub-Account is subject to the
requirements of Code Section 409A, the payment of such Sub-Account 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, or the exceptions to, Code Section 409A; provided that the
amount of such payment from any Sub-Account that is subject to the requirements of Code
Section 409A may not exceed the amount required to be included as income as a result of the
failure to comply with Code Section 409A.




Section 6.03 Liability for Payment/Expenses. The Employer by which the Participant was
last employed prior to his payment date under the Plan shall process and pay all Excess Retirement
Benefits hereunder to or on behalf of such Participant, but such Employer’s liability shall be
limited to its proportionate share of such amount, as hereinafter provided. If the Excess
Retirement Benefits payable to or on behalf of a Participant are based on the Participant’s
employment with more than one Employer, the liability for such Benefits shall be shared by all such
Employers (by reimbursement to the Employer making such payment) as may be agreed to among them in
good faith (taking into consideration the Participant’s service and Compensation paid by each such
Employer) and as will permit the deduction (for purposes of federal income tax) by each such
Employer of its portion of the payments made and to be made hereunder. Expenses of administering
the Plan shall be paid by the Employers, as directed by the Company.



Section 6.04 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 there from by any government or government agency.




ARTICLE VII.

BENEFICIARIES



Section 7.01 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 and received by the Plan Administrator prior to the Participant’s death. A single
Beneficiary designation must be made for the Participant’s entire Account hereunder. In the
absence of such a designation and at any other time when there is no existing Beneficiary
designated hereunder, the Beneficiary of a Participant for his Excess Retirement Benefits shall be
the estate of the last to die of the Participant and his Beneficiaries. If two or more persons
designated as a Participant’s Beneficiary are in existence with respect to a single Sub-Account,
the amount of any payment to the Beneficiary under this Plan shall be divided equally among such
persons unless the Participant’s designation specifically provides for a different allocation. Any
change in Beneficiary shall be made by giving written notice thereof to the Plan


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Administrator and any change shall be effective only if received by the Plan Administrator prior to
the death of the Participant.



Section 7.02 Distributions to Beneficiaries. The Excess Retirement Benefit payable to a
Participant’s Beneficiary under this Plan shall be equal to the balance in the applicable
Sub-Account on the date of the distribution of the Account to the Beneficiary. Excess Retirement
Benefits payable to a Beneficiary shall be paid in the form of a lump sum payment on the date such
Benefits would otherwise be paid to the Participant under Article VI.




ARTICLE VIII.

MISCELLANEOUS



Section 8.01 Liability of Employers. Nothing in this Plan shall constitute the creation of
a trust or other fiduciary relationship between an Employer and any Participant, Beneficiary or any
other person.



Section 8.02 Limitation on Rights of Participants and Beneficiaries — No Lien. The 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 an Employer. The
Employers shall have no obligation to purchase any assets that do not remain subject to the claims
of the creditors of the Employers 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 an Employer 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 his Employer.



Section 8.03 No Guarantee of Employment. Nothing in this Plan shall be construed as
guaranteeing future employment to Participants. A Participant continues to be an Employee of the
Employers solely at the will of the Employers subject to discharge at any time, with or without
cause.



Section 8.04 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
Employers from all liability with respect to such Benefit.



Section 8.05 Anti-Assignment/Early Payment in the Event of a QDRO.





	 	(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




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	 	 	 	payment of all or a part of a Participant’s or Beneficiary’s Account under this Plan to an
“alternate payee” as defined in Code Section 414(p).




Section 8.06 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 8.07 Adoption by Other Employers. Any member of the Controlled Group that is an
Employer under the Savings Plan may adopt this Plan with the consent of the Benefits Committee by
executing an instrument evidencing its adoption of this Plan on the order of its Board of Directors
(or the applicable committee of such Board of Directors) (or its delegate) and filing a copy
thereof with the Company. Such adoption may be subject to such terms and conditions as the
Benefits Committee requires or approves. Notwithstanding the foregoing, any Employer that
previously adopted The North American Coal Corporation Deferred Compensation Plan for Management
Employees shall automatically be deemed to have adopted this Plan without any further action on
behalf of such Employer.



Section 8.08 Effect on other Benefits. Benefits payable to or with respect to a
Participant under the Savings Plan or any other Employer-sponsored (qualified or nonqualified)
plan, if any, are in addition to those provided under this Plan.




ARTICLE IX.

ADMINISTRATION OF PLAN





	Section 9.01 Administration. The Plan shall be administered by the Plan Administrator.
The Plan Administrator shall have the 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 person is a Participant, and (ii) to determine if a person is
entitled to Excess Retirement 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 9.03 and 9.04 hereof.
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
Excess Retirement Benefits, to a named administrator or administrators. Pursuant to this
delegation power, the Company has appointed the Administrative Committee under the Savings Plan (as
it exists from time to time) as the Plan Administrator of this Plan.
	 
	Section 9.02 Regulations. The Plan Administrator shall 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




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	 	 	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 to the provisions of Sections 9.03 and 9.04 hereof, be final and binding on all
persons.
	 
	 	 	Section 9.03 Claims and Appeals Procedures.






	 	(a)	 	The Plan Administrator shall determine the rights of any person to any Excess
Retirement Benefits hereunder. Any person who believes that he has not received the Excess
Retirement Benefits to which he is entitled under the Plan must file a claim in writing
with the Plan Administrator specifying the basis for his claim and the facts upon which he
relies in making such a claim. Such a claim must be signed by the claimant or his duly
authorized representative (the “Claimant”).
	 
	 	(b)	 	Whenever the Plan Administrator denies (in whole or in part) a claim for benefits under
the Plan, the Plan Administrator shall transmit a written notice of such decision to the
Claimant, 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). Such notice shall be written in a manner
calculated to be understood by the Claimant and shall state (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 Plan’s 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)	 	Within 60 days after receipt of denial of a claim, the Claimant must file with the
Plan Administrator a written request for a review of such claim. If such an appeal is not
filed 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, a named fiduciary designated by the Plan Administrator 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 named fiduciary shall have the same
power to interpret the Plan and make findings of fact thereunder as is given to the Plan
Administrator under Section 9.01 above. The named fiduciary 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 (i) shall be written in a manner calculated to be understood by
the Claimant, (ii) shall state the specific reasons for the decision and the specific Plan
provisions on which the decision was based and (iii) shall, to the extent permitted by
applicable law, 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




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	 	 	 	for benefits and a statement of the Claimant’s right to bring a civil action under Section
502(a) of ERISA.




Section 9.04 Revocability of Action/Adjustment. Any action taken by the Plan Administrator
or an Employer with respect to the rights or benefits under the Plan of any person shall be
revocable by the Plan Administrator or the Employer as to payments not yet made to such person. In
addition, the acceptance of any Excess Retirement Benefits under the Plan constitutes acceptance of
and agreement to the Plan Administrator’s or the Employer’s making any appropriate adjustments in
future payments to they payee (or to recover from such person) any excess payment or underpayment
previously made to him.



Section 9.05 Amendment. The Company (with the approval or ratification of the Compensation
Committee) may at any time (without the consent of an Employer) authorize the amendment of any or
all of the provisions of this Plan, except that without the prior written consent of the affected
Participant, no such amendment (a) may reduce the amount of any Participant’s Excess Retirement
Benefit as of the date of such amendment or (b) may alter the time of payment provisions described
in Article VI hereof, except for amendments (i) that are required to bring such provisions into
compliance with the requirements of (or exceptions to) Code Section 409A or (ii) that accelerate
the time of payment (in a manner permitted by Code Section 409A but solely with respect to those
Sub-Accounts that are subject to the requirements of Code Section 409A). Any amendment shall be in
the form of a written instrument executed by an officer of the Company on the order of the
Compensation Committee. 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.



Section 9.06 Termination.





	 	(a)	 	The Company, in its sole discretion, may terminate this Plan (or any portion thereof)
at any time and for any reason whatsoever, except that, without the prior written consent
of the affected Participant, no such amendment may (i) reduce the amount of any
Participant’s Excess Retirement Benefit as of the date of such amendment or (b) alter the
time of payment provisions described in Article VI hereof, except for a termination that
accelerates the time of payment (in a manner permitted by Code Section 409A but solely with
respect to those Sub-Accounts that are subject to the requirements of Code Section 409A).
Any such termination shall be expressed in the form of a written instrument executed by an
officer of the Company with the approval or ratification of the Compensation Committee.
such termination shall become effective as of the date specified in such instrument or, if
no such date is specified, on the date of its execution. Written notice of any termination
shall be given to the Participants at a time determined by the Plan Administrator.





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	 	(b)	 	Any Employer (other than the Company) that adopts the Plan may elect to withdraw from the
Plan and such withdrawal shall constitute a termination of the Plan as to such Employer;
provided, however, that such terminating Employer shall continue to be an Employer for the
purposes hereof as to Participants or Beneficiaries to whom it owes obligations hereunder.
Such withdrawal and termination shall be expressed in an instrument executed by the
terminating Employer on authority of its Board of Directors (or the applicable Committee
thereof) and filed with the Company, and shall become effective as of the date designated in
such instrument or, if no such date is specified, on the date of its execution. If an
Employer (other than the Company) ceases to be a member of the Controlled Group, unless
other action is taken by the Compensation Committee, the Sub-Accounts of the Employees of
such Employer shall be paid as specified in Article VI hereof.





          Executed, this 14th day of December, 2007.




	 	 	 	 	 
	 	THE NORTH AMERICAN COAL CORPORATION

 	 
	 	By:  	/s/ Charles A. Bittenbender
 	 
	 	 	Title: Assistant Secretary 	 
	 	 	 	 
	 




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