<PAGE> 1
EXHIBIT 10(f)
NON-QUALIFIED DEFERRED COMPENSATION PLAN
E-8
<PAGE> 2
WORTHINGTON INDUSTRIES, INC.
NON-QUALIFIED
DEFERRED COMPENSATION PLAN
--------------------------
<PAGE> 3
ARTICLE I - INTRODUCTION
1.1 NAME AND ADOPTION OF PLAN.
Worthington Industries, Inc. (the "Company") hereby adopts this
Worthington Industries Non-Qualified 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 shall become effective March 1, 2000. Bonus Deferrals may be made
for Fiscal Quarters beginning on or after March 1, 2000. Base Salary
Deferrals may be made for pay periods beginning on or after March 1, 2000.
1.6 ADMINISTRATION.
The Plan shall be administered by the Committee.
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
1
<PAGE> 4
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 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.
2
<PAGE> 5
"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.
"DEFERRALS" means Base Salary Deferrals, Bonus Deferrals and Employer
Contributors.
"DIRECTORS" means the Board of Directors of the Company.
"EFFECTIVE DATE" means March 1, 2000.
3
<PAGE> 6
"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.
"PLAN" means this Worthington Industries Non-Qualified 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.
4
<PAGE> 7
"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 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
5
<PAGE> 8
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
(or for the first Fiscal Quarter ending May 31, 2000, no later than May
15, 2000). 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
(or for the first Plan Year, June 15, 2000 but only with respect to
compensation earned after June 30, 2000), 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 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.
6
<PAGE> 9
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.
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
7
<PAGE> 10
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 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
8
<PAGE> 11
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 deducted from the
Participant's Account to the extent his other compensation is not
sufficient to pay those taxes.
9
<PAGE> 12
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.
(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 (i) the
end of the Participant's tax year prior to the previously selected
Deferral Date; (ii) 12 months prior to the previously selected Deferral
Date; or (iii) such earlier date, if any, as set by the Committee.
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).
10
<PAGE> 13
(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
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.
11
<PAGE> 14
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.
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
12
<PAGE> 15
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 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.
13
<PAGE> 16
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 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)
14
<PAGE> 17
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.
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
15
<PAGE> 18
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.
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
16
<PAGE> 19
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,
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
17
<PAGE> 20
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 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
18
<PAGE> 21
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.
IN WITNESS WHEREOF, the Company has caused the Plan to be executed as of
March 1, 2000.
WORTHINGTON INDUSTRIES, INC.
BY: /s/John P. McConnell
ITS: Chairman & Chief Executive Officer
19
