EX-10.9



 





Exhibit 10.9




THE NACCO MATERIALS HANDLING GROUP, INC.

EXCESS RETIREMENT PLAN

(EFFECTIVE JANUARY 1, 2008)











 



 




NACCO MATERIALS HANDLING GROUP, INC.

EXCESS RETIREMENT PLAN




     NACCO Materials Handling Group, Inc. (the “Company”) does hereby adopt this NACCO Materials
Handling Group, Inc. Excess Retirement Plan effective January 1, 2008:



ARTICLE I — PREFACE




     Section 1.1. Effective Date. The effective date of this Plan is January 1,
2008.



     Section 1.2. Purpose of the Plan. The purpose of this Plan is to provide
for certain Employees the benefits they would have received under the Profit Sharing Plan but for
(a) the dollar limitation on Compensation taken into account under the Profit Sharing Plan as a
result of Section 401(a)(17) of the Code or the deferral of Compensation under this Plan, (b) the
limitations imposed under Section 415 of the Code, (c) the limitations under Sections 402(g),
401(k)(3) and 401(m) of the Code and (d) the limitations that apply under the Profit Sharing Plan
to the benefits payable to Highly Compensated Employees.



     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) 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 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 any Participant or Beneficiary 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 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 Employer in
accordance with Section 4.1 as the sum of the Participant’s Excess Retirement Benefits hereunder.
The









 



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Participant’s Account shall be further divided into the Sub-Accounts described in Article III
hereof.



     Section 2.2. Beneficiary shall mean the person or persons designated by the
Participant as his Beneficiary under this Plan, on a form acceptable to the Plan Administrator
prior to the Participant’s death. In the absence of a valid designation, a Participant’s
Beneficiary shall be the Beneficiary(ies) designated (or deemed designated) under the Profit
Sharing Plan.



     Section 2.3. Bonus shall mean any bonus under the Company’s annual incentive
compensation plan(s) that would be taken into account as Compensation under the Profit Sharing
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 2.4. 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. Compensation shall have the same meaning as under the Profit
Sharing Plan, except that Compensation shall be deemed to include (i) the amount of compensation
deferred by the Participant under this Plan, (ii) 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 3.2.



     Section 2.6. Employer shall mean the Company and NMHG Oregon, LLC.



     Section 2.7. Excess Retirement Benefit or Benefit shall mean an Excess Profit
Sharing Benefit, Excess 401(k) Benefit or Excess Matching Benefit (all as described in Article
III) which is payable to or with respect to a Participant under this Plan.



     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. 401(k) Employee shall mean an Employee of an Employer who is a
Participant in the Profit Sharing Plan who is eligible to receive Before-Tax Contributions and
Matching Employer Contributions thereunder.



     Section 2.10.  Key Employee. Effective 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










 



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	 	 	 	(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 the
definition under 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 2.11. Participant.



          (a) For purposes of Section 3.1 of the Plan, the term “Participant” means an Employee of an
Employer who is a Participant in the profit sharing portion of the Profit Sharing Plan whose profit
sharing benefit for a Plan Year is (i) limited by the application of Section 401(a)(17) or 415 of
the Code, (ii) limited by the terms of the Profit Sharing Plan that apply to Highly Compensated
Employees (if applicable) or (iii) is reduced as a result of his deferral of Compensation under
this Plan.




          (b) For purposes of Sections 3.2 and 3.3 of the Plan, the term “Participant” means a 401(k)
Employee (i) who is unable to make all of the Before-Tax Contributions that he has elected to make
to the Profit Sharing Plan, or is unable to receive the maximum amount of Matching Contributions
under the Profit Sharing Plan due to the limitations of Section 402(g), 401(a)(17), 401(k)(3) and
401(m) of the Code and (ii) whose base salary or annual base rate of pay for the Plan Year in which
a deferral election is effective is at least $125,000.




          (c) The term “Participant” shall also include any other person who has an Account balance
hereunder.




     Section 2.12. Plan shall mean the NACCO Materials Handling Group, Inc. Excess
Retirement Plan, as herein set forth or as duly amended.



     Section 2.13. Plan Administrator shall mean the Administrative Committee of
the Profit Sharing Plan.



     Section 2.14. Plan Year shall mean the calendar year.









 



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     Section 2.15. Profit Sharing Employee shall mean an Employee of an Employer
who is a participant in the Profit Sharing Plan and who is eligible for Profit Sharing
Contributions.



     Section 2.16. Profit Sharing Plan shall mean the NACCO Materials Handling
Group, Inc. Profit Sharing Retirement Plan or any successor thereto.



     Section 2.17. 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 2.18. Valuation Date shall mean the last day of each calendar month
and any other date chosen by the Plan Administrator.



ARTICLE III — EXCESS RETIREMENT BENEFITS — CALCULATION OF AMOUNT




     Section 3.1. 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 both an Employee of such
Employer and a Profit Sharing Employee, an amount equal to the excess, if any, of (i) the amount of
the Employer’s Profit Sharing Contribution which would have been made to the profit sharing portion
of the Profit Sharing Plan on behalf of the Participant if (1) such Plan did not contain the
limitations imposed under Sections 401(a)(17) and 415 of the Code or any limits on the amount of
Profit Sharing Contributions that may be paid to Highly Compensated Employees and (2) the term
“Compensation” (as defined in Section 2.5 hereof) were used for purposes of determining the amount
of profit sharing contributions under the Profit Sharing Plan, over (ii) the amount of the
Employer’s Profit Sharing Contribution which is actually made to such Plan on behalf of the
Participant for such Plan Year (the “Excess Profit Sharing Benefits”).



     Section 3.2. Basic and Additional Excess 401(k) Benefits.



          (a) Amount of Excess 401(k) Benefits. Each 401(k) Employee who is a Participant may,
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 Profit Sharing Plan for such Plan Year by reason of the application
of the limitations under Sections 402(g), 401(a)(17) and 401(k)(3) of the Code or any other limits
applicable to Highly Compensated Employees under the Profit Sharing Plan. All amounts deferred
under this Section shall be referred to herein collectively as the “Excess 401(k) Benefits.”
Notwithstanding the foregoing, a 401(k) Employee’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. Elections to defer Bonuses
earned in 2007 that were made under the NACCO Materials Handling Group, Inc. Unfunded Benefit Plan
prior to December 31, 2006 and shall continue in effect hereunder; provided, however, that the
payment of those amounts shall be as specified in Article VII hereof.




          (b) Consequences of Deferral Election. Any direction by a Participant to defer
Compensation under Subsection (a) shall be effective with respect to Compensation










 



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otherwise payable to the Participant for 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 earned in subsequent Plan Years. A new deferral election shall be
required for each Plan Year under the Plan.




          (c) Classification of Excess 401(k) Benefits. The Excess 401(k) Benefits for a
particular Plan Year shall be calculated monthly and shall be further divided into the “Basic
Excess 401(k) Benefits” and the “Additional Excess 401(k) Benefits” as follows:




          (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 7% 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 each
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) 7%, and the denominator of which is the percentage of Compensation elected to be deferred.





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.



     Section 3.3. Excess Matching Benefits. A 401(k) Employee who is a
Participant shall have credited to his Excess Matching Sub-Account an amount equal to the Matching
Employer Contributions attributable to the Excess 401(k) Benefits that he is prevented from
receiving under the Profit Sharing Plan because of the limitations of Code Sections 402(g),
401(a)(17), 401(k)(3) and 401(m) of the Code (the “Excess Matching Benefits”).  



ARTICLE IV — 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 an Excess Profit Sharing Sub-Account for the Excess Profit Sharing Benefits
described in Section 3.1, which shall be credited to the Sub-Account at the time the Profit Sharing
Contributions are otherwise credited to Participants’ accounts under the Profit Sharing Plan.




          (b) Credits to a Basic or Additional Excess 401(k) Sub-Account for the Basic and Additional
Excess 401(k) Benefits described in Section 3.2, which shall be credited to the Sub-Account when a
401(k) Employee is prevented from making a Before-Tax Contribution under the Profit Sharing Plan.










 



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          (c) Credits to an Excess Matching Sub-Account for the Excess Matching Benefits described in
Section 3.3, which amounts shall be credited to the Sub-Account when a 401(k) Employee is prevented
from receiving Matching Employer Contributions under the Profit Sharing Plan.




          (d) Credits to all Sub-Accounts for the earnings and the uplift described in Article V.




          (e) Debits for any distributions made from the Sub-Accounts.




ARTICLE V — EARNINGS/UPLIFT




     Section 5.1.
Earnings. Subject to Section 5.3, at the end of each calendar month while an amount is credited to a
Sub-Account hereunder, the Excess 401(k) and Excess Matching Sub-Accounts of all
Participants shall be credited with an amount determined by multiplying such Participant’s
Sub-Account balance during such month by the blended rate earned during the prior month by
the Fixed Income Fund. Notwithstanding the foregoing, no interest shall be credited for the
month in which a Sub-Account is distributed hereunder.



     Section 5.2.
Uplift on Plan Payments. Subject to Section 5.3, but in addition to the earnings described in Section 5.1, 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%.



     Section 5.3. Changes/Limitations.



          (a) The Company (with the approval or ratification of the Company’s 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 under Section 5.2) 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.









 



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ARTICLE VII -TIME AND FORM OF PAYMENT




     Section 7.1. Time and Form of Payment. All amounts credited to a
Participant’s Sub-Accounts for each Plan Year (a) including the Excess Profit Sharing Benefits,
earnings and uplift that are credited after the end of a Plan Year but (b) reduced for any
applicable withholding taxes shall automatically be paid to the Participant (or his Beneficiary in
event of his death) in the form of a single lump sum payment on March 15th of the
immediately following Plan Year.  



     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 (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.
	 
	 	(c)	 	Key Employees. Notwithstanding any provision of the Plan to the contrary, to
the extent the payment of a Sub-Account is subject to Code Section 409A, the payment of
such Sub-Account to a Key Employee 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 8.5) or (ii) a conflict of interest or 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)	 	Acceleration of Payments. Notwithstanding any provision of the Plan to the
contrary, to the extent a Sub-Account is subject to 409A, payments such Sub-Account
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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ARTICLE VIII — MISCELLANEOUS




     Section 8.1. 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 8.2.  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 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 the Employers 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. The amount standing to the credit of any
Participant’s Sub-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 8.3. 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 an Employer solely at the will of such Employer subject to discharge at any time, with
or without cause.



     Section 8.4. 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 8.5. 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 8.6. 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









 



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remainder of the Plan and the application of such provision to other circumstances or persons
shall not be affected thereby.



     Section 8.7. Effect on other Benefits. Benefits payable to or with respect
to a Participant under the Profit Sharing 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 9.1. 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 9.3 and 9.4 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 9.2. 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 9.3 and 9.4 hereof, be final
and binding on all persons.









 



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     Section 9.3. 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 power to interpret
the Plan and make findings of fact thereunder as is given to the Plan Administrator under Section
9.1(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 9.4. Revocability/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









 



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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 9.5. 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 or (b) 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, or exceptions to, Code Section 409A or that
accelerate the time of payment (provided that such amendments comply with the requirements of Code
Section 409A as applied to any Sub-Account that is 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. 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 9.6. Termination.



          (a) Subject to Subsection (b), the Company (without the consent of any Employer but with the
approval or ratification of the Compensation Committee), in its sole discretion, may terminate this
Plan at any time and for any reason whatsoever, except that, without the prior written consent of
the affected Participant, no such termination may (i) reduce the amount of any Participant’s
vested Benefit as of the date of such termination or (ii) alter the payment provisions described
in Article VII of the Plan, except for changes that are required to bring such provisions into
compliance with the requirements of, or exceptions to, Code Section 409A or that accelerate the
time of payment (in a manner permitted under Code Section 409A as applied to any Sub-Account that
is 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 on the order of the
Compensation Committee. Subject to the foregoing provisions of this Section, 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 as soon as practicable after the instrument is executed.




          (b) Notwithstanding anything in the Plan to the contrary, in the event of a termination of the
Plan (or any portion thereof), the Company, in its sole and absolute discretion, shall have the
right to change the time and form of distribution of Participants’ Excess Retirement Benefits but
only to the extent such change is permitted by Code Section 409A and Treasury Regulations or other
guidance issued thereunder.




ARTICLE X — 

ADOPTION BY OTHER EMPLOYERS, TRANSFERS AND GUARANTEES




     Section 10.1. In general. The provisions of this Article shall apply
notwithstanding any other provision of the Plan to the contrary.









 



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     Section 10.2. Adoption of Plan by other Employers/Withdrawal.



          (a) Any Controlled Group Member may adopt the Plan with the written consent of the Company
(with the approval or ratification of the NACCO Industries, Inc. Benefits Committee). Any such
adopting employer must (i) execute an instrument evidencing such adoption and (ii) file a copy of
such Instrument with the Plan Administrator. Such adoption may be subject to such terms and
conditions as the Company requires or approves. Notwithstanding the foregoing, any Employer that
previously adopted The NACCO Materials Handling Group, Inc. Unfunded Benefit Plan shall
automatically be deemed to have adopted this Plan without further action by such Employer. By this
adoption of the Plan, Employers other than the Company shall be deemed to authorize the Company to
take any actions within the authority of the Company under the terms of the Plan.




          (b) Notwithstanding the foregoing, in the case of any Employer that adopts the Plan and
thereafter (i) ceases to exist, (ii) ceases to be a Controlled Group Member or (iii) withdraws or
is eliminated from the Plan, it shall not thereafter be considered an Employer hereunder 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.




          (c) Any Employer (other than the Company) that adopts this Plan may elect separately to
withdraw from the Plan and such withdrawal shall constitute a termination of the Plan as to it;
provided, however, that (i) such terminating Employer shall continue to be an Employer for the
purposes hereof as to Participants or Beneficiaries to whom it owes obligations hereunder, and (ii)
such termination shall be subject to the limitations and other conditions described in Section 9.6,
treating the Employer as if it were the Company.




     Section 10.3. Expenses. The expenses of administering the Plan shall be paid
by the Employers, as directed by the Company.



     Section 10.4. Liability for Payment/Transfers of Employment.



          (a) Subject to the provisions of Subsections (b) and (c) hereof, each Employer shall be liable
for the payment of the Excess Retirement Benefits which are payable hereunder to or on behalf of
its Employees.




          (b) Notwithstanding the foregoing, if an Excess Retirement Benefit payable to or on behalf of
a Participant is based on the Participant’s employment with more than one Employer the following
provisions shall apply:




          (i) Upon a transfer of employment, the Participant’s Sub-Accounts shall be transferred from
the prior Employer to the new Employer and Excess Retirement Benefits (and earnings) shall continue
to be credited to the Sub-Accounts following the transfer (to the extent otherwise required under
the terms of the Plan). Subject to Section 10.4(b)(ii)(3), the last Employer of the Participant
shall be responsible for processing the payment of the entire amount which is allocated to the
Participant’s Sub Accounts hereunder; and










 



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          (ii) Notwithstanding the provisions of clause (i), (1) each Employer shall be solely liable
for the payment of the amounts credited to a Participant’s Account which were earned by the
Participant while he was employed by that Employer; (2) each Employer (unless it is insolvent)
shall reimburse the last Employer for its allocable share of the Participant’s distribution; (3) if
any responsible Employer is insolvent at the time of distribution, the last Employer shall not be
required to make a distribution to the Participant with respect to amounts which are allocable to
service with that Employer (until the payment date specified in Section 7.5(c)); and (4) each
Employer shall (to the extent permitted by applicable law) receive an income tax deduction for the
Employer’s allocable share of the Participant’s distribution.




          (c) Notwithstanding the foregoing, in the event that NMHG Oregon, LLC is unable or refuses to
satisfy its obligations hereunder with respect to the payment of Excess Retirement Benefits to its
Employees, the Company (unless it is insolvent) shall guarantee and be responsible for the payment
thereof.




          EXECUTED, this 14th day of December, 2007.




	 	 	 	 	 
	 	NACCO MATERIALS HANDLING
GROUP, INC.

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