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EXHIBIT 10(c)
EXECUTIVE DEFERRED COMPENSATION
PLAN, AS AMENDED AND RESTATED
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WORTHINGTON INDUSTRIES, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
AS AMENDED AND RESTATED
EFFECTIVE JUNE 1, 2000
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Worthington Industries, Inc. established the Executive Deferred Compensation
Plan (the "Plan"), effective March 1, 1983 to provide selected key employees of
Worthington Industries, Inc. and its subsidiaries with the option to defer the
payment of a portion of their compensation. The Plan is amended and restated as
follows, effective as of June 1, 2000.
ARTICLE I - INTRODUCTION
1.1 NAME AND ADOPTION OF PLAN.
Worthington Industries, Inc. (the "Company") has adopted this
Worthington Industries Executive Deferred Compensation Plan (the
"Plan"). The Company also extends the Plan to any Company Subsidiary
that adopts the Plan, subject to the terms described in Section 1.7.
1.2 PURPOSES OF PLAN.
The purposes of the Plan are to provide deferred compensation for a
select group of management or highly compensated employees of the
Employers.
1.3 "TOP HAT" PENSION BENEFIT PLAN.
The Plan is an "employee pension benefit plan" within the meaning of
ERISA Section 3(2). The Plan is maintained, however, for a select group
of management or highly compensated employees and, therefore, is exempt
from Parts 2, 3 and 4 of Title 1 of ERISA. The Plan is not intended to
qualify under Code Section 401(a).
1.4 PLAN UNFUNDED.
The Plan is unfunded. All benefits will be paid from Employers' general
assets, which will continue to be subject to the claims of Employers'
creditors as described in Section 11.6.
1.5 EFFECTIVE DATE.
The Plan initially became effective March 1, 1983. This amendment and
restatement is effective as of June 1, 2000.
1.6 ADMINISTRATION.
The Plan shall be administered by the Committee.
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1.7. PARTICIPATING EMPLOYERS.
Any Company Subsidiary may become an Employer in the Plan upon mutual
agreement between the Company and the Company Subsidiary. As a
condition to becoming an Employer, each Company Subsidiary must
(a) designate the Committee as the entity responsible for Plan
administration, (b) delegate to the Company, the Committee and the
Executive Committee all power and authority to interpret, amend or
terminate the Plan, as described in this document, and to discharge the
duties and responsibilities described in Article VIII and (c) subject
to Section 11.6, guarantee the payment of any Plan benefits accrued by
its Employees under the Plan. An entity that ceases to be an Employer
will nevertheless remain responsible for any liabilities arising from
or attributable to periods during which it was an Employer.
ARTICLE II - DEFINITIONS AND CONSTRUCTION
2.1 DEFINITIONS.
For purposes of the Plan, the following words and phrases shall have
the respective meanings set forth below, unless their context clearly
requires a different meaning:
"ACCOUNT" means the bookkeeping account maintained by the Committee on
behalf of each Participant pursuant to Article VI.
"BASE SALARY" means the base rate of cash compensation paid by the
Employers to or for the benefit of a Participant for services rendered
or labor performed after the Effective Date including base pay a
Participant could have received in cash in lieu of deferrals pursuant
to Section 4.1 and contributions made on his behalf to any qualified
retirement or cafeteria plan maintained by the Employers for that
Participant.
"BASE SALARY DEFERRAL" means the amount of a Participant's Base Salary
which the Participant elects to have withheld on a pre-tax basis from
his Base Salary and credited to his Account pursuant to Section 4.1.
However, no Participant may defer any portion of this Base Salary that
is earned before the later of the Effective Date or the date that he
files a properly completed Election Form with the Committee.
"BENEFICIARY" means the person or persons designated by the Participant
in accordance with Section 7.2.
"BONUS COMPENSATION" means (a) sales commissions and (b) the amount
awarded to a Participant for a Fiscal Quarter under the
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Employer's Executive Bonus Plan, Cash Profit Sharing Plan or a similar
plan, including any amount the Participant could have received under
such plan in cash in lieu of deferrals pursuant to Section 4.1 and
contributions made on his behalf to any qualified retirement or
cafeteria plan maintained by the Employer for the Participant.
"BONUS DEFERRAL" means the amount of a Participant's Bonus Compensation
which the Participant elects to have withheld on a pre-tax basis from
his Bonus Compensation and credited to his account pursuant to Section
4.1. However, no Participant may defer any portion of his Bonus
Compensation that is established before the later of the Effective Date
or the date that he files an Election Form.
"CODE" means the Internal Revenue Code of 1986, as amended, or any
successor thereto, together with the rules, regulations and
interpretations promulgated thereunder.
"COMMITTEE" means the committee appointed to administer the Plan in
accordance with Article VIII.
"COMPANY" means Worthington Industries, Inc. and any successor thereto.
"COMPANY SUBSIDIARY" means any entity which is (i) at least 100%
owned, directly or indirectly, by the Company, and (ii) any other
entity which is at least 30% owned, directly or indirectly, by the
Company and which is designated as a Company Subsidiary for purposes of
this Plan by the Committee. Indirect ownership will be determined by
applying rules issued under Treas. Reg. Section 1.414(c)(4).
"DEFERRAL DATE" means (a) with respect to amounts attributable to Base
Salary and Bonus Deferrals, the earlier of (i) the Deferral Date
selected by the Participant in the Election Form, which date must be at
least one year after the end of the Quarter with respect to which the
payment would otherwise be made, or (ii) the date of the Participant's
death, and (b) unless the Employer selects a different Deferral Date
with respect to amounts attributable to Employer Contributions at the
time such contributions are made, the later of (i) the date the
Participant reaches age 62 or (ii) the date the Participant ceases to
be an Employee. To the extent provided in Section 7.3, the Committee
shall have the right, in its sole discretion, (A) to accelerate a
Participant's Deferral Date to the earlier of the date the participant
(i) ceases to be an Employee of any Employer or (ii) turns age 70, and
(B) to set other parameters on the Deferral Dates which it believes are
appropriate.
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"DEFERRALS" means Base Salary Deferrals, Bonus Deferrals and Employer
Contributors.
"DIRECTORS" means the Board of Directors of the Company.
"EFFECTIVE DATE" means March 1, 1983, with respect to the Plan and June
1, 2000 with respect to this amendment and restatement.
"ELECTION FORM" means the written agreement (in the form attached to
this document) entered into between the Participant and his Employer
pursuant to which the Participant designates his Beneficiary and elects
the amount of his Base Salary and/or his Bonus Compensation to be
deferred into the Plan, the Deferral Date, the deemed investment and/or
the form of payment for such amounts. Although a copy of the Election
Form is attached to this document, it is not part of the Plan and may
be changed by the Committee at any time.
"EMPLOYEE" means any common-law employee of an Employer.
"EMPLOYER" means the Company or a Company Subsidiary which has become a
participating Employer in the Plan. A Company Subsidiary shall cease to
be an Employer at such time as agreed between the Company and the
Company Subsidiary or, if earlier, the date an Employer ceases to be a
Company Subsidiary.
"EMPLOYER CONTRIBUTION" means the amount, as determined by each
Employer, credited by the Committee to the Account of a Participant as
an Employer Contribution. Such amounts may vary by individual
Participant at the sole discretion of the Employer.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"EXECUTIVE COMMITTEE" means the Executive Committee of the Directors.
"FISCAL QUARTER" means any fiscal quarter of the Company (currently the
three month periods ending on the last day of August, November,
February, and May).
"401(k) PLAN" means the Worthington Industries Deferred Profit Sharing
Plan, as amended and restated.
"PARTICIPANT" means each Employee who has been selected for
participation the Plan and who has become a Participant pursuant to
Article III.
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"PLAN" means this Worthington Industries Executive Deferred
Compensation Plan, as amended from time to time.
"PLAN YEAR" means the twelve consecutive month period commencing
January 1 of each year-end ending on December 31. The first Plan Year
shall begin on the Effective Date and end the following December 31.
"POST EMPLOYMENT RATE" means the rate of interest established by the
Committee from time to time as the Post Employment Rate which shall be
the interest paid on Accounts after the Participant ceases employment
with the Employers.
2.2 NUMBER AND GENDER.
Wherever appropriate herein, words used in the singular shall be
considered to include the plural and words used in the plural shall be
considered to include the singular. The masculine gender, where
appearing in the Plan, shall be deemed to include the feminine gender.
2.3 HEADINGS.
The headings of Articles and Sections herein are included solely for
convenience, and if there is any conflict between such headings and the
rest of the Plan, the text shall control.
ARTICLE III - PARTICIPATION AND ELIGIBILITY
3.1 PARTICIPATION.
Participants in the Plan are those Employees who are both (a) members
of a select group of highly compensated or management Employees of
their Employer, as determined by the Committee, and (b) selected by the
Committee, in its sole discretion, to be Participants. The Committee
shall notify each Participant of his selection as a Participant and the
time his participation may start. A Participant shall remain eligible
to continue participation in the Plan until his participation ceases as
set forth below in Section 3.3.
3.2 COMMENCEMENT OF PARTICIPATION.
An Employee may commence participation in the Plan on the later of the
date (i) the Committee approves his participation or (ii) with respect
to Base Salary and Bonus Deferrals, he returns to the Committee a
properly completed Election Form. However, neither the Company, the
Employer, the Committee, the Plan nor any other person shall be liable
to any
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person if the Committee inadvertently fails to notify him of his
eligibility to be a Participant.
3.3 CESSATION OF PARTICIPATION.
Notwithstanding any provision herein to the contrary, an individual who
has become a Participant in the Plan shall cease to be a Participant
hereunder effective as of the earlier of the date he (a) dies, (b)
otherwise ceases to be an Employee of at least one of the Employers,
(c) ceases to be a member of his Employer's select group of highly
compensated or management employees but remains an Employee of any
Employer, (d) any date designated by the Committee or (e) his Employer
ceases to be a Company Subsidiary or an Employer (but only if he is
then an Employee of the affected Employer). The Committee will notify a
Participant if he is no longer eligible to be a Participant. A person
who has ceased to actively participate in the Plan as described in this
Section but who also remains an Employee, will continue to be entitled
to all rights and benefits (and subject to all limitations) described
in the Plan other than the right to make additional Base Salary or
Bonus Deferrals or to receive additional Employer Contributions.
ARTICLE IV - DEFERRALS
4.1 DEFERRALS BY PARTICIPANT.
Any Participant who desires to defer any portion of his Bonus
Compensation and/or his Base Salary must complete and deliver to the
Committee an Election Form in the form attached as Exhibit A, or in
such other form as the Committee may prescribe. The Election Form with
respect to Bonus Compensation must be filed prior to the date the
amount of the Bonus is established or at such other time established by
the Committee but in no case later than the last day of the second
month of each Fiscal Quarter. An Election Form with respect to Base
Salary must be filed at least by the 15th day of the month prior to the
beginning of the Plan Year, as to which the election relates (or such
greater or lesser period prior to such date as the Committee
establishes for purposes of administrative convenience) and will relate
only to Base Salary earned after the date the Committee receives the
Participant's properly completed Election Form. Notwithstanding the
foregoing, Base Salary Deferrals may be discontinued at any time by
filing a new Election Form, such discontinuance to become effective as
of the first day of the next Plan Year. Under no circumstances may a
Participant's Deferral Election be made, modified or revoked
retroactively. Once made, an Election Form will continue in effect
until it is revoked or modified, subject to the
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limitations described above, even if a Participant transfers his
employment between Employers.
The Committee, in its discretion, may set limits on the amount of Base
Salary and/or Bonus Compensation that may be deferred under the Plan.
4.2 TIME OF CREDIT OF DEFERRALS.
Bonus Deferrals and Base Salary Deferrals shall be credited to the
Account of each Participant at the same time as the Base Salary or
Bonus Compensation would have otherwise been paid; provided that a
Participant whose participation terminates (as described in Section
3.3) before such Deferred Compensation is credited to his Account will
have the amounts deferred but not credited, paid to him in cash,
without interest, as soon as reasonably possible after the date his
participation ceases.
4.3 EMPLOYER CONTRIBUTIONS.
The Employer may determine, in its sole discretion, to make Employer
Contributions for any Participant or Participants as it elects. The
amount of any Employer Contribution to be made for any Participant
shall be determined in such manner as his Employer shall, in its sole
discretion, deems appropriate and may be a different amount (or no
amount) for each Plan Year and for each Participant. Employer
Contributions shall be in the form of a credit to the Participant's
Account.
4.4 TIMING OF EMPLOYER CONTRIBUTIONS.
Employer Contributions will be credited to the Participant's Account as
of the date specified by the Employer or, if no date is specified, as
soon as administratively practical after they are declared.
A Participant shall be notified within a reasonable time of any
Employer Contribution to be made on his behalf under the Plan.
4.5 VESTING.
A Participant shall be fully vested in his Account at all times except
to the extent that the Employer establishes a deferred vesting schedule
to apply to Employer Contributions made on or after the time the
deferred vesting schedule is established.
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ARTICLE V - EARNINGS
5.1 EARNINGS AND INVESTMENT.
Amounts credited to a Participant's Account shall be credited with
earnings and losses based on hypothetical investment directions made
(or deemed to be made) by the Participant in accordance with investment
options and procedures adopted and amended by the Committee from time
to time. Any amounts credited to a Participant's Account to which a
Participant does not provide investment direction (or as to which no
direction is permitted) shall be credited with earnings as if the
Participant shall have elected the investment option provided for in
the Plan or determined from time to time by the Committee for cases
where no investment option is made. A Participant's Account shall be
adjusted as of each Valuation Date to reflect investment gains and
losses. The Committee retains the right to change, amend or eliminate
investment options and procedures as it shall deem appropriate in its
sole discretion.
5.2 EARNINGS AFTER CESSATION OF PARTICIPATION.
If the amount in a Participant's Account is to be paid in installments,
the amount remaining unpaid after the first installment shall bear
interest from the Deferral Date at the Post Employment Rate and no
other investment options shall be available.
If a former Participant who is no longer an Employee (or is employed by
an entity that ceases to be an Employer or a Company Subsidiary) still
has an Account in the Plan, the amount in the Account shall be credited
with interest at the Post Employment Rate.
ARTICLE VI - ACCOUNTS
6.1 ESTABLISHMENT OF ACCOUNTS.
The Committee will establish a separate bookkeeping account for each
Participant. Such account shall be credited with the Base Salary
Deferrals and Bonus Deferrals made by the Participant pursuant to
Section 4.1, and Employer Contributions made by the Employer pursuant
to Section 4.3 and credited or charged, as the case may be with the
hypothetical investment results determined pursuant to Article V and
taxes described in Section 6.4.
6.2 SUBACCOUNTS.
Within each Participant's bookkeeping account, separate subaccounts
shall be maintained to the extent necessary for the administration of
the
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Plan. For example, it may be necessary to maintain separate subaccounts
where the Participant has specified different Deferral Dates, methods
of payment or investment directions. Also, the Committee will
separately account for amounts credited for each Participant while the
Participant was an Employee of each Employer and will use this
subaccount to account for Base Salary and Bonus Deferrals and Employer
Contributions (and attributable earnings, losses and taxes described in
Section 6.4) attributable to the Participant's employment with each
Employer.
6.3 HYPOTHETICAL NATURE OF ACCOUNTS.
The Accounts (or subaccounts) established under this Article VI shall
be hypothetical in nature and shall be maintained for bookkeeping
purposes only, so that earnings and losses on the Base Salary
Deferrals, Bonus Deferrals and Employer Contributions made to the Plan
can be credited (or charged, as the case may be). Neither the Plan nor
any of the Accounts (or subaccounts) established hereunder shall hold
any actual funds or assets. The right of any person to receive one or
more payments under the Plan shall be an unsecured claim against the
general assets of the Employer for whom the Participant was an Employee
when the Deferral (including attributable earnings and losses) was
credited. Any liability of the Company, any Employer, the Committee or
any other person to any Participant, former Participant, or Beneficiary
with respect to a right to payment shall be based solely upon
contractual obligations created by the Plan. Neither the Employers,
their directors, officers or employees, nor any other person shall be
deemed to be a trustee of or fiduciary with respect to any amounts to
be paid under the Plan. Nothing contained in the Plan, and no action
taken pursuant to its provisions, shall create or be construed to
create a trust of any kind, or a fiduciary relationship, between any
Employer and a Participant, former Participant, Beneficiary, or any
other Person.
6.4 REDUCTION FOR TAXES
(a) If any taxing authority establishes that any Participant is in
constructive receipt of any portion of his Account, the Committee may,
in its discretion, distribute to the Participant all or any portion of
the amount subject to that determination, reduced by the amount of any
taxes imposed as a result of that determination.
(b) Any employment or other taxes (such as wage taxes) that are imposed
on Base Salary or Bonus Deferrals or Employer Contributions when those
amounts are credited to a Participant's Account will be assessed
against the affected Participant's other compensation or
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deducted from the Participant's Account to the extent his other
compensation is not sufficient to pay those taxes.
ARTICLE VII - PAYMENT OF ACCOUNT
7.1 DISTRIBUTION AFTER DEFERRAL DATE
(a) TIME OF DISTRIBUTION. DISTRIBUTION OF THAT PORTION OF A
PARTICIPANT'S ACCOUNT WHICH IS NOT PREVIOUSLY DISTRIBUTED UNDER THE
TERMS OF THE PLAN SHALL BE MADE AS SOON AS PRACTICABLE FOLLOWING THE
DEFERRAL DATE FOR SUCH AMOUNTS, AND IN ANY EVENT NO LATER THAN JANUARY
31 OF THE YEAR FOLLOWING THE DEFERRAL DATE.
(b) FORM OF PAYMENT OR PAYMENTS. A PARTICIPANT'S ACCOUNT BALANCE SHALL
BE DISTRIBUTED IN ACCORDANCE WITH THE FORM OF PAYMENT ELECTED BY THE
PARTICIPANT ON THE ELECTION FORM TO WHICH SUCH AMOUNTS RELATE. THE FORM
OF PAYMENT WITH RESPECT TO AMOUNTS AND THE EARNINGS CREDITED THEREON
MAY BE IN ANY OF THE FOLLOWING FORMS:
(i) A lump sum; or
(ii) Other methods that the Committee, in its sole discretion,
may allow.
Installment payments, if permitted, shall be paid annually during
January of each Plan Year. Each installment payment shall be determined
by multiplying the Account balance by a fraction, the numerator of
which is one and the denominator of which is the number of remaining
installment payments to be made to the Participant. Anything contained
herein to the contrary notwithstanding, total distribution of a
Participant's account must be made by the date such Participant attains
age 85.
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(c) Changes to deferral date or form of payment. A participant may
change (I) the form of payment of his account or (II) his deferral date
by filing an amended election form; provided that such form must be
received by the company no later than the earlier of (A) the end of the
participant's tax year prior to the previously selected deferral date;
(B) 12 months prior to the previously Selected Deferred Date; or (C)
such earlier date, if any, as set by the committee. notwithstanding the
foregoing, a participant may not change his deferral date unless such
change is approved by the committee, such approval to be within the
total discretion of the committee. The committee may adopt such
guidelines as it deems appropriate in order to assure that any change
in the deferral date and the approvals by the committee are consistent
with the code and the rules and interpretations thereunder.
7.2 DISTRIBUTIONS UPON DEATH
(a) Distribution on Death. Upon the Participant's death, the
Participant's Account shall be distributed to the Participant's
Beneficiary in one of the forms specified by the Participant from among
those available under Section 7.1(b).
(b) Designation of Beneficiaries.
Each Participant shall have the right to designate the beneficiary or
beneficiaries to receive payment of his benefit in the event of his
death. A beneficiary designation shall be made by executing the
beneficiary designation portion of the Election Form and filing the
same with the Committee. Any such designation may be changed at any
time by execution of a new beneficiary designation portion of the
Election Form in accordance with this Section. If no such designation
is on file with the Committee at the time of death of the Participant
or such designation is not effective for any reason as determined by
the Committee, then the designated beneficiary or beneficiaries to
receive such benefit shall be the Participant's surviving spouse, if
any, or if none, the executor, personal representative, or
administrator of the Participant's probate estate, or his heirs-at-law,
if there is no administration of such Participant's probate estate.
7.3 ACCELERATION OF DEFERRAL DATE AND PAYMENT.
In the event a Participant ceases to be an Employee, the Committee may,
in its sole discretion, elect to accelerate the Participant's Deferral
Date to any date after he ceases to be an Employee, regardless of when
the Participant's Deferral Date would otherwise occur. The Committee
may also, in such case (and in the case of distributing death benefits
under Section 7.2), accelerate the method of payment by shortening the
number of installments selected by the Participant or by paying the
Account in a
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lump sum, such payment to be made or to commence within a reasonable
period after the accelerated Deferral Date.
7.4 UNCLAIMED BENEFITS
In the case of a benefit payable on behalf of such Participant, if the
Committee is unable to locate the Participant or beneficiary to whom
such benefit is payable, such benefit may be forfeited to the Employer
or Employers for whom the Participant was an Employee when the
forfeited Deferral was credited to his Account, upon the Committee's
determination. Notwithstanding the foregoing, if subsequent to any such
forfeiture the Participant or Beneficiary to whom such benefit is
payable makes a valid claim for such benefit, such forfeited benefit
shall be paid by the Employer or Employers (or restored to the Plan by
the Employer (without interest from the date it would have otherwise
been paid) to whom the Account was initially forfeited. However,
neither the Company any Employer, the Committee nor any other person is
liable to restore any benefit forfeited under this Section to any other
Employer.
7.5 HARDSHIP WITHDRAWALS.
A Participant may apply in writing to the Committee for, and the
Committee may permit, a hardship withdrawal of all or any part of a
Participant's Account if the Committee, in its sole discretion,
determines that the Participant has incurred a severe financial
hardship resulting from a sudden and unexpected illness or accident of
the Participant or of a dependent (as defined in Section 152(a) of the
Code) of the Participant, loss of the Participant's property due to
casualty, or other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of the
Participant, as determined by the Committee, in its sole and absolute
discretion. The amount that may be withdrawn shall be limited to the
smaller of (i) the amount reasonably necessary to relieve the hardship
or financial emergency upon which the request is based, plus the
federal and state taxes due on the withdrawal, as determined by the
Committee or (ii) the affected Participant's Account balance as of the
most recent Valuation Date. The Committee may require a Participant who
requests a hardship withdrawal to submit such evidence as the
Committee, in its sole discretion, deems necessary or appropriate to
substantiate the circumstances upon which the request is based. If a
condition qualifies as a hardship under this Section and under the
401(k) Plan, a Participant must first withdraw all funds from this Plan
before he may file a hardship withdrawal application under the 401(k)
Plan.
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ARTICLE VIII - ADMINISTRATION
8.1 COMMITTEE.
The Plan shall be administered by a Committee appointed by the
Executive Committee or the Directors. If no other Committee is so
appointed, the Committee shall be the Compensation Committee of the
Directors. The Committee shall be responsible for approving an
Employer's designation of an Employee to be a Participant and for the
general operation and administration of the Plan and for carrying out
the provisions thereof. The Committee may delegate to others certain
aspects of the management and operational responsibilities of the Plan
including the employment of advisors and the delegation of ministerial
duties to qualified individuals, provided that such delegation is in
writing.
8.2 GENERAL POWERS OF ADMINISTRATION.
The Committee shall have all powers necessary or appropriate to enable
it to carry out its administrative duties. Not in limitation, but in
application of the foregoing, the Committee shall have the duty and
power to interpret the Plan and determine all questions that may arise
hereunder as to the status and rights of Employees, Participants, and
Beneficiaries. The Committee may exercise the powers hereby granted in
its sole and absolute discretion. No member of the Committee shall be
personally liable for any actions taken by the Committee unless the
member's action involves gross negligence or willful misconduct.
8.3 INDEMNIFICATION OF COMMITTEE.
The Company and all Employers shall indemnify the members of the
Committee against any and all claims, losses, damages, expenses,
including attorney's fees, incurred by them, and any liability,
including any amounts paid in settlement with their approval, arising
from their action or failure to act, except when the same is judicially
determined to be attributable to their gross negligence or willful
misconduct.
8.4 COSTS OF ADMINISTRATION.
The costs of administering the Plan shall be borne by each Employer (in
proportion to number of their Employees who are Participants) unless
and until a Participant receives written notice of the imposition of
administrative costs, with such costs to begin with the next Plan Year.
Such
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costs may only be imposed prospectively and not retroactively for prior
Plan Years. Such costs, if imposed, shall be charged against a
Participant's Account and shall be uniform for all Plan Participants.
Such costs shall not exceed standard fees for similarly designed
non-qualified plans under administration by high quality third party
administrators.
ARTICLE IX - DETERMINATION OF BENEFITS, CLAIMS
PROCEDURE AND ADMINISTRATION
9.1 CLAIMS
A person who believes that he is being denied a benefit to which he is
entitled under the Plan (hereinafter referred to as a "Claimant") may
file a written request for such benefit with the Committee, setting
forth his claim. The request must be addressed to the Committee at the
Company's then principal place of business.
9.2 CLAIM DECISION.
Upon receipt of a claim, the Committee shall advise the Claimant that a
reply will be forthcoming within ninety (90) days and shall, in fact,
deliver such reply within such period. The Committee may, however,
extend the reply period for an additional ninety (90) days for
reasonable cause.
If the claim is denied in whole or in part, the Committee shall adopt a
written opinion, using language calculated to be understood by the
Claimant, setting forth:
(1) The specific reason or reasons for such denial;
(2) The specific reference to pertinent provisions of the Plan on
which such denial is based;
(3) A description of any additional material or information
necessary for the Claimant to perfect his claim and an
explanation why such material or such information is
necessary.
(4) Appropriate information as to the steps to be taken if the
Claimant wishes to submit the claim for review; and
(5) The time limits for requesting a review under Section 9.3 and
for review under Section 9.4 hereof.
9.3 REQUEST FOR REVIEW.
Within sixty (60) days after receipt by the Claimant of the written
opinion described above, the Claimant may request in writing that the
Executive Committee review the determination of the Committee. Such
request must be addressed to the Executive Committee, at the Company's
then
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principal place of business. The Claimant or his duly authorized
representative may, but need not, review the pertinent documents and
submit issues and comments in writing for consideration by the
Executive Committee. If the Claimant does not request a review of the
Committee's determination by the Executive Committee within such sixty
(60) day period, he shall be barred and estopped from challenging the
Committee's determination.
9.4 REVIEW OF DECISION
Within sixty (60) days after the receipt of a request for review, the
Executive Committee will review the determination rendered by the
Committee. After considering all materials presented by the Claimant,
the Executive Committee will render a written opinion, written in a
manner calculated to be understood by the Claimant, setting forth the
specific reasons for the decision and containing specific references to
the pertinent provisions of this Plan on which the decision is based.
If special circumstances require that the sixty (60) day time period be
extended, the Executive Committee will so notify the Claimant and will
render the decision as soon as possible, but no later than one hundred
twenty (120) days after receipt of the request for review.
ARTICLE X - CHANGE IN CONTROL
10.1 EFFECT OF CHANGE IN CONTROL.
(a) Notwithstanding any provision to the contrary contained herein, but
subject to the following sentence, in the event of a Change of Control
that affects an Employer, the Deferral Date for each Participant who
has an Account credited with any amounts attributable to Deferrals made
while an Employee of that Employer shall be accelerated to the date of
the Change of Control and the Accounts shall be paid out as of such
date, but only to the extent of the portion of the Account attributable
to Deferrals made while an Employee of that Employer. The provisions of
this Section 10.1 shall not apply to any Change in Control when
expressly provided otherwise by a three-fourths vote of the Whole Board
of the affected Employer, but only if a majority of the members of the
Board of Directors then in office and acting upon such matters shall be
Continuing Directors.
(b) The liability to pay any benefit that is not distributed in
connection with a Change in Control (or to pay other costs and expenses
reference in Section 1.7) will remain the liability of the Employer
incurring the Change in Control.
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10.2 DEFINITIONS: For purposes of this Article, the following terms shall have
the meanings set forth below:
(a) A Change in Control shall have occurred (i) with respect to the
Company when any "Person" (other than (A) the Company or any Company
Subsidiary, (B) any employee benefit plan of the Company or a Company
Subsidiary or any trustee of or fiduciary with respect to any such plan
when acting in such capacity, or (C) any person who, on the Effective
Date of the Plan, is an Affiliate of the Company and beneficially
owning in excess of ten percent (10%) of the outstanding shares of the
Company and the respective successors, executors, legal
representatives, heirs and legal assigns of such person), alone or
together with its Affiliates and Associates, becomes an Acquiring
Person and (ii) with respect to any Employer other than the Company,
when it no longer meets the definition of Company Subsidiary. The
occurrence of a Change in Control will be determined separately with
respect to the Company and each Employer.
(b) "Acquiring Person" means any "Person" (i.e., any individual, firm,
corporation or other entity) who or which, together with all Affiliates
and Associates, has acquired or obtained the right to acquire the
beneficial ownership of twenty-five percent (25%) or more of the
Company's Shares then outstanding.
(c) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended, or
any successor provision.
(d) "Continuing Director" means any person who was a member of the
Employer's board of directors on the Effective Date of the Plan or
thereafter elected by the shareholders or appointed by the Employer's
board of directors prior to the date as of which the Acquiring Person
became a Substantial Shareholder (as such term is defined in Article
Seventh of the Company's Amended Articles of Incorporation) or, a
person designated (before his initial election or employment as a
director) as a Continuing Director by three-fourths of the Employer's
Whole Board, but only if a majority of the Whole Board shall then
consist of Continuing Directors.
(e) "Whole Board" means the total number of directors which the
Employer would have if there were no vacancies.
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ARTICLE XI - MISCELLANEOUS
11.1 PLAN NOT A CONTRACT OF EMPLOYMENT.
The adoption and maintenance of the Plan shall not be deemed to be a
contract of employment between any Employer and any person or to be a
commitment for the employment of any person. Nothing herein contained
shall be deemed to give any person the right to be retained in the
employ of any Employer or to restrict the right of any Employer to
discharge any person at any time; nor shall the Plan be deemed to give
any Employer the right to require any person to remain in the employ of
any Employer or to restrict any person's right to terminate his
employment at any time.
11.2 NON-ASSIGNABILITY OF BENEFITS.
No Participant, Beneficiary or distributee of benefits under the Plan
shall have any power or right to transfer, assign, anticipate,
hypothecate or otherwise encumber any part or all of the amounts
payable hereunder, which are expressly declared to be unassignable and
non-transferable. Any such attempted assignment or transfer shall be
void. No amount payable hereunder shall, prior to actual payment
hereof, be subject to seizure by any creditor of any such Participant,
Beneficiary or other distributee for the payment of any debt, judgment,
or other obligation, by a proceeding at law or in equity, nor
transferable by operation of law in the event of the bankruptcy,
insolvency or death of such Participant, Beneficiary or other
distributee hereunder.
11.3 WITHHOLDING.
All deferrals and payments provided for hereunder shall be subject to
applicable withholding and other deductions as shall be required of the
Employers under any applicable local, state or federal law.
11.4 AMENDMENT AND TERMINATION.
The Directors may from time to time, in its discretion, amend, in whole
or in part, any or all of the provisions of the Plan; provided,
however, that no amendment may be made which would impair the rights of
a Participant with respect to amounts already allocated to his Account
(unless the affected Participant consents in writing to the application
of that amendment), but this provision shall not be read to restrict
the authority of the Directors or the Executive Committee or the
Committee to change or limit investment options. The Directors or the
Executive Committee may terminate the Plan at any time. Unless the
Directors or the Executive Committee determines otherwise, in the event
that the Plan is terminated,
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the balance in a Participant's Account shall be paid to such
Participant or his Beneficiary in a single lump sum, determined as of
the most recent Valuation Date, in full satisfaction of all such
Participant's or Beneficiary's benefits hereunder. Any such amendment
to or termination of the Plan shall be in writing and signed by a
member of the Executive Committee or an Officer of the Company and will
bind each Employer without separate action.
11.5 NO TRUST CREATED.
Nothing contained in this Plan, and no action taken pursuant to its
provisions by either party hereto, shall create, nor be construed to
create, a trust of any kind or a fiduciary relationship between the
Company or any Employer and the Participant, his Beneficiary, or any
other person. The Company may establish a "grantor trust" (so-called
"Rabbi Trust") under federal income tax law to aid in meeting the
obligations created under this Plan, but the Company intends that the
assets of any such trust will at all times remain subject to the claims
of the Employers' general creditors (to the extent of the amounts
credited for a Participant while he was an Employee of that Employer),
and that the existence of any such trust will not alter the
characterization of the Plan as "unfunded" for purposes of ERISA, and
will not be construed to provide income to any Participant prior to
actual payment under this Plan.
11.6 UNSECURED GENERAL CREDITOR STATUS OF EMPLOYEE.
The payments to Participant, his Beneficiary or any other distributee
hereunder shall be made from assets which shall continue, for all
purposes, to be a part of the general, unrestricted assets of the
Employer for whom the Participant was an Employee when the Deferral to
which the claim relates was credited to the claiming Participant's
Account; no person shall have or acquire any interest in any such
assets by virtue of the provisions of this Plan. The obligation
hereunder shall be an unfunded and unsecured promise to pay money in
the future. To the extent that the Participant, a Beneficiary, or other
distributee acquires a right to receive payments from the Plan under
the provisions hereof, such right shall be no greater than the right of
any unsecured general creditor of the Employer for whom the Participant
was an Employee when the Deferral to which the claim relates was
credited to the claiming Participant's Account; no such person shall
have nor require any legal or equitable right, interest or claim in or
to any property or assets of any Employer.
In the event that, in its discretion, the Employer purchases an
insurance policy or policies insuring the life of the Participant(or
any other property) to allow the Employer to recover the cost of
providing the benefits, in whole, or in part, hereunder, neither the
Participant, his Beneficiary or
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other distributee shall have nor acquire any rights whatsoever therein
or in the proceeds therefrom. The Employer shall be the sole owner and
beneficiary of any such policy or policies and, as such, shall possess
and may exercise all incidents of ownership therein. Except to the
extent the Company may establish a Rabbi Trust as described in Section
11.5, no such policy, policies or other property shall be held in any
trust for a Participant, Beneficiary or other distributee or held as
collateral security for any obligation hereunder. The existence of any
such Rabbi Trust does not give a Participant, Beneficiary or other
distributee, any interest, direct or beneficial, in any policy,
policies or other property held in such a trust. A Participant's
participation in the underwriting or other steps necessary to acquire
such policy or policies may be required by the Committee and, if
required, shall not be a suggestion of any beneficial interest in such
policy or policies to a Participant.
11.7 SEVERABILITY.
If any provision of this Plan shall be held illegal for any reason,
said illegality or invalidity shall not affect the remaining provisions
hereof; instead, each provision shall be fully severable and the Plan
shall be constructed and enforced as if said illegal or invalid
provision had never been included herein.
11.8 BINDING EFFECT.
This Plan shall be binding on each Participant and his heirs and legal
representatives and on the Company and each Employer and its successors
and assigns.
11.9 GOVERNING LAWS.
All provisions of the Plan shall be construed in accordance with the
laws of Ohio, except to the extent preempted by federal law.
11.10 ENTIRE AGREEMENT.
This document and any amendments contain all the terms and provisions
of the Plan and shall constitute the entire Plan, any other alleged
terms or provisions being of no effect.
ARTICLE XII - DEFERRALS ON OR AFTER JUNE 1, 2000
12.1 DEFERRALS ON OR AFTER JUNE 1, 2000.
Unless the Committee otherwise determines, all Deferrals for periods
beginning on or after June 1, 2000 by or for Employees who participate
in both this Plan and the Worthington Industries, Inc. Non-Qualified
Deferred
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Compensation Plan shall be made under the Non-Qualified Deferred
Compensation Plan.
IN WITNESS WHEREOF, the Company has caused the Plan, as amended and
restated, to be executed as of June 1, 2000.
WORTHINGTON INDUSTRIES, INC.
By: /s/ John P. McConnell
Title: Chairman & Chief Executive Officer
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