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EXHIBIT 10(d)
DEFERRED COMPENSATION PLAN
FOR DIRECTORS, AS AMENDED AND RESTATED
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WORTHINGTON INDUSTRIES, INC.
DEFERRED COMPENSATION PLAN FOR DIRECTORS
AS AMENDED AND RESTATED, EFFECTIVE JUNE 1, 2000
Section 1. PURPOSE
Worthington Industries, Inc. has established this deferred compensation plan to
provide the Directors of Worthington Industries, Inc. with the option to defer
the payment of their Directors' Fees. The Plan as originally adopted became
effective as to Directors' Fees which were paid with respect to any Quarter
beginning after February 28, 1983. This amendment and restatement is effective
June 1, 2000.
Section 2. DEFINITIONS.
2.1 "Beneficiary" shall mean the person designated by a Participant in
accordance with the Plan to receive payment of any remaining balance in his
Deferred Compensation Account in the event of the Participant's death.
2.2 "Book Value" of the Common Shares shall mean the value of each Common Share
as of the end of the most recently completed fiscal quarter of the Company, as
reflected on its published financial statements (with such adjustments as may be
determined by the Committee pursuant to Section 5.3).
2.3 "Board of Directors" shall mean the Board of Directors of the Company.
2.4 "Committee" shall mean the committee appointed by the Board of Directors of
the Company to administer the Plan. If no committee is specifically named by the
Board of Directors to administer the Plan, the "Committee" shall mean the
Compensation Committee of the Board of Directors of the Company.
2.6 "Common Shares" shall mean the Common Shares of the Company.
2.7 "Company" shall mean Worthington Industries, Inc., an Ohio corporation, its
corporate successors and the surviving corporation resulting from any merger or
acquisition of Worthington Industries, Inc. with or by any corporation or
corporations.
2.8 "Date of Deferral" shall mean the date to which payment of the
Participant's Directors Fees is deferred in accordance with this Plan. Subject
to the terms of the following sentence, the Date of Deferral shall be the
earlier of (i) the date selected by the Participant in the Election Agreement,
which date must be at least one year after the end of the Year with respect to
which the payment would otherwise be made, or (ii) the date of the Participant's
death. To the extent provided in Section 6.1(b), the Committee shall have the
right, in its sole discretion, to accelerate a
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Participant's Date of Deferral to the date the Participant ceases to be a
Director. In no event shall a Participant's Date of Deferral extend beyond the
later of his 70th birthday or the date he ceases to be a Director.
2.9 "Deferred Compensation Account" shall mean the bookkeeping account on which
the amount of Directors Fees that is deferred by a Participant shall be recorded
and credited with dividends and interest in accordance with the Plan.
2.10 "Director" shall mean any member of the Board of Directors of the Company
who is not an Employee of the Company.
2.11 "Directors Fees" shall mean fees owed to the Directors by the Company for
their services as Directors including quarterly fees, board meeting fees,
committee meeting fees and other similar fees, if any.
2.12 "Election Agreement" means the written agreement entered into between the
Company and the Participant pursuant to which the Participant elects the amount
of his Directors Fees to be deferred into the Plan, the Date of Deferral, the
deemed investment and/or the form of payment for such amounts.
2.13 "Fair Market Value" of the Common Shares is defined in Section 5.2.
2.14 "Fixed Interest Rate" is defined in Section 5.2.
2.15 "Participant" shall mean any Director who has elected to defer payment of
all or any portion of his Directors Fees in accordance with the Plan and who
still has an Account under the Plan.
2.16 The "Plan" shall mean the "Worthington Industries, Inc. Deferred
Compensation Plan for Directors" as set forth herein, as the same may be amended
from time to time.
2.17 "Post Directorship Rate" is defined in Section 5.2.
2.18 "Quarter" shall mean any fiscal quarter of the Company, currently the
three month periods ending the last day of August, November, February, and May.
2.19 "Theoretical FMV Shares" shall mean those hypothetical Common Shares
computed and credited to the Deferred Compensation Account in accordance with
the Plan, based on the Fair Market Value of the Common Shares.
2.20 "Theoretical Shares" shall mean those hypothetical Common Shares computed
and credited to the Deferred Compensation Account in accordance with the Plan,
based on the Book Value of the Common Shares, for periods prior to June 1, 2000.
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Section 3. ADMINISTRATION
3.1 POWER OF THE COMMITTEE.
The Plan shall be administered by the Committee. The Committee shall have full
power to construe and interpret the Plan, to establish and amend rules and
regulations for administration of the Plan, and to take any and all actions
necessary or desirable to effectuate or carry out the Plan.
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 willful
misconduct. 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.
3.2 ACTIONS FINAL.
All actions taken by the Committee under or with respect to the Plan shall be
final and binding on all persons. No member of the Committee shall be liable for
any action taken or determination made in good faith.
3.3 BOOKS AND RECORDS
The books and records to be maintained for the purpose of the Plan shall be
maintained by the officers and employees of the Company at the Company's expense
and subject to the supervision and control of the Committee.
3.4 ACTION BY THE COMMITTEE.
The Committee shall act by a majority of its members at the time in office, and
such action may be taken either by vote at a meeting or in writing. If a
Participant is serving as a member of the Committee, he shall not be entitled to
vote on matters specifically relating to his rights under the Plan; provided,
however, that this provision shall not prevent such person from voting on
matters which, although they may affect his rights, relate to Participants in
general.
Section 4. ELIGIBILITY AND PARTICIPATION
4.1 ELIGIBILITY
Any Director shall be eligible to become a Participant in the Plan. Participants
are those Directors who elect to defer Directors Fees under the Plan. A
Director's eligibility shall cease when he dies or otherwise, ceases to be a
Director of the Company.
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4.2 ELECTION TO DEFER
Any Director who desires to defer the payment of any portion of his Fees for any
Quarter must complete and deliver to the Committee an Election Agreement (in
substantially the form of Exhibit A attached hereto or such other form as
approved by the Committee) prior to the first day of the Quarter the deferral is
to occur. A Director who timely delivers the Election Agreement to the Committee
shall be a Participant. Each Election Agreement is irrevocable on or after the
beginning of the Quarter to which it relates, but may be revoked or changed
prior to the beginning of such Quarter.
4.3 THE ELECTION AGREEMENT
A Participant must designate on the Election Agreement (i) the portion of his
Directors Fees he desires to defer for the Quarter, (ii) the Date of Deferral,
and (iii) the method of payment of his deferred Fees. Payment of the amount
deferred shall be made in accordance with Section 6. The Participant shall also
designate the Investment Option selected for his Account in an Election
Agreement.
4.4 SUB-ACCOUNTS
In the event a Participant makes different elections as to the method of payment
or as to the time for commencement of payments with respect to Directors Fees
deferred for different Quarters, for purposes of determining the amounts to be
paid under each election, the Participant shall be treated as if he had a
separate Deferred Compensation Sub-Account for Directors Fees deferred pursuant
to the differing elections.
Section 5. DEFERRED COMPENSATION ACCOUNT
5.1 CREDITING FEES.
The Directors Fees which a Participant elects to defer shall be treated as if
they were set aside in a Deferred Compensation Account on the date the Directors
Fees would otherwise have been paid to the Participant.
5.2 INVESTMENT OPTIONS - GENERAL.
(a) Until changed by amendment, effective June 1, 2000, the investment
options available under the Plan shall be as follows:
(i) Theoretical FMV Shares ("Theoretical FMV Shares") of Common
Stock of Worthington Industries, Inc. ("Common Shares"); or
(ii) The Fixed Interest Rate.
(b) Theoretical FMV Shares.
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If a Participant elects to have his Deferred Compensation Account invested
in Theoretical FMV Shares, the amount to be invested, as of the date of
investment, shall be divided by the then Fair Market Value of the Common
Shares and the Participant's Deferred Compensation Account shall be
credited with the resulting number of Theoretical FMV Shares. The Deferred
Compensation Account invested in Theoretical FMV Shares shall be credited
with cash dividends on the Theoretical FMV Shares at the time and equal in
amount to the cash dividends which would have been paid on the Theoretical
FMV Shares if the had been issued and outstanding Common Shares on and
after the date credited to the Participant's Account; and at such time the
amount of cash dividends credited to the Participant's Account shall be
divided by the then Fair Market Value of the Common Shares and the
Participant's Deferred Compensation Account shall be credited with the
resulting number of Theoretical FMV Shares.
"Fair Market Value of the Common Shares" shall be the closing price of the
Common Shares as reported in The Wall Street Journal for the last date for
which a closing price is given immediately prior to the date of valuation.
If the Common Shares cease to be publicly traded so that a closing price
is no longer consistently reported in The Wall Street Journal, the
Committee shall select, in its discretion, an appropriate method for
determining the Fair Market Value of the Common Shares.
The number and value of Theoretical FMV Shares in a Participant's Deferred
Compensation Account shall be equitably adjusted from time to time to
reflect stock splits, stock dividends, conversions, or other changes in
the Common Shares resulting from a change in the Company's capital
structure.
(c) Fixed Interest Rate.
If a Participant elects to have his Deferred Compensation Account invested
at the Fixed Interest Rate, his Deferred Compensation Account shall be
invested at the Fixed Interest Rate.
The "Fixed Interest Rate" shall be the rate, for a Plan Year, set by the
Committee no later than the November 30 prior to beginning of the Plan
Year, based upon, as of the determination date, the greater of (i) the
return provided by the Merrill Lynch Ready Asset Trust Market Fund as
published in The Wall Street Journal, plus 200 basis points, or (ii) the
average yield of the one year U.S. Treasury Notes as published in The Wall
Street Journal plus 200 basis points.
For the Plan Year ending December 31, 2000, the Fixed Interest Rate shall
be 8%.
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The above notwithstanding, the Committee may amend the Post Directorship
Rate quarterly based on market conditions.
(d) Rate After Directorship Ceases.
As of the earlier of the Date of Deferral of a Participant or the date the
Participant ceases to be a Director, the investment of his Deferred
Compensation Account shall automatically be converted to the
Post-Directorship Rate regardless of any other election in effect for the
then Participant. In addition, the Post-Directorship Rate shall be applied
to any Deferred Compensation Account which is being paid out in
installments.
The "Post Directorship Rate" shall be the rate, for a Plan Year, set by
the Committee no later than the November 30 prior to beginning of the Plan
Year, based upon, as of the determination date, the greater of (i) the
return provided by the Merrill Lynch Ready Asset Trust Market Fund as
published in The Wall Street Journal; or (ii) the average yield of the one
year U.S. Treasury Notes as published in The Wall Street Journal.
For the Plan Year ending December 31, 2000 the Post-Employment Rate shall
be 6%.
The above notwithstanding, the Committee may amend the Post Directorship
Rate quarterly based on market conditions.
5.3 SELECTION OF INVESTMENT OPTION.
The Participant shall select the Investment Option for his Deferred Compensation
Account in an Election Agreement. The Participant may change the investment
option for his Deferred Compensation Account as of the first day of any Quarter
by filing a new election agreement prior to such Quarter; provided that a
Participant may not change the investment option as to amounts existing in his
Account more often than once every six months. If a Participant does not select
an Investment Option, the Fixed Interest Rate shall apply.
Section 6 PAYMENT OF DEFERRED COMPENSATION.
6.1 GENERAL.
(a) Subject to the provisions of paragraph (b) of this Section, the amount
of the Participant's Deferred Compensation Account shall be paid to the
Participant, within a reasonable time after the Participant's Date of
Deferral, in a lump sum or in a number of approximately equal annual
installments (not more than 12), as designated by the Participant in his
Election Agreement. A participant may, subject to approval by the
Committee, change the designation of the method of payment or his Date of
Deferral by filing an
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amended Election Agreement; provided that such Agreement 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. The above
notwithstanding, the Committee may place such other restrictions on
changes to a Participant's method of payment and Date of Deferral as it
deems appropriate. All Accounts shall bear interest at the
Post-Directorship Rate after the Date of Deferral.
(b) In the event a Participant ceases to be a Director for reasons other
than death or retirement in accordance with the normal policies of the
Company, the Committee may, in its sole discretion, elect to accelerate
the Participant's Date of Deferral to the date he ceases to be a Director,
regardless of when the Participant's Date of Deferral would otherwise
occur. If the Committee accelerates a Participant's Date of Deferral, the
Committee may also require that the amount in his Deferred Compensation
Account be paid in a lump sum or in fewer installments than the
Participant elected.
6.2 DEATH.
(a) In the event of the death of a Participant, the amount of the
Participant's Deferred Compensation Account shall be paid to his
Beneficiary, within a reasonable time after the Participant's death.
(b) Each Participant may name one or more Beneficiaries and may also name
one or more contingent Beneficiaries by making a written designation in
form acceptable to the Committee. A Participant's Beneficiary designation
may be changed at any time prior to his death by execution and delivery of
a new Beneficiary designation form. The Beneficiary designation on file
with the Company at the time of the Participant's death which bears the
latest date shall govern.
(c) Payments to a Beneficiary shall be made in a lump sum or in a number
of approximately equal annual installments (not more than 12) as
designated by the Participant in his Election Agreement. In the case of
the Beneficiary of a Participant who is receiving installment payments at
the time of his death, the number of annual installments may not exceed
the annual installments remaining to be paid to the Participant. The above
notwithstanding, the Committee may, in its sole discretion, elect to
accelerate the payment of the Deferred Compensation Account to a
Beneficiary either by making payment in a lump sum or by decreasing the
number of installments to be paid.
(d) If no Beneficiary has been designated or if no Beneficiary survives
the Participant, the amount in the Deferred Compensation Account shall be
paid in a lump sum to the Participant's estate.
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(e) If the Beneficiary dies after the death of the Participant, any amount
otherwise payable to the Beneficiary shall be paid in a lump sum to the
Beneficiary's estate.
6.3 HARDSHIP.
Upon the application of a Participant in the event of financial hardship
resulting from a need to make extraordinary or emergency expenditures, the
Committee may, in its sole discretion, cause the distribution to such
Participant of an amount not exceeding the requirements of such Participant for
such extraordinary or emergency expenditures. The Committee shall require such
proper proof of financial hardship and such evidence of the requirements of a
Participant for extraordinary or emergency expenditures as it may deem
appropriate and the Committee's determination of financial hardship and of the
requirements of a Participant for extraordinary or emergency expenditures shall
be conclusive.
6.4 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,
the Date of Deferral for each Participant shall be accelerated to the date
of the Change of Control and the Participant's Deferred Compensation
Account shall be paid out as of such date in a lump sum. The provisions of
this Section 6.4 shall not apply to any Change in Control when expressly
provided otherwise by a three-fourths vote of the Whole Board, 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) For purposes of this Section 6.4, the following terms shall have the
meanings set forth below:
(A) A Change in Control shall have occurred with respect to the
Company when any Person (other than (i) the Company or any
wholly-owned Company subsidiary, (ii) any employee benefit plan of the
Company or a wholly-owned Company Subsidiary or any trustee of or
fiduciary with respect to any such plan when acting in such capacity,
or (iii) 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.
(B) "Acquiring Person" means any Person who or which, together with
all Affiliates and Associates, has acquired or obtained the right to
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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
Board of Directors on the Effective Date of the Plan or thereafter
elected by the shareholders or appointed by the Company'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) "Person" means any individual, firm, corporation, or other entity.
(F) "Whole Board" means the total number of directors which the
Company would have if there were no vacancies.
Section 7. AMENDMENTS.
The Board of Directors of the Company may from time to time amend, suspend or
terminate any or all of the provisions of this Plan; provided that no such
amendment, suspension, or termination shall adversely affect in any material
respect any right of any Participant to receive any amount payable pursuant to
the Plan (unless the affected Participant consents in writing to the application
of that amendment) but this provision shall not restrict the authority of the
Board of Directors to change or limit investment options.
Section 8. MISCELLANEOUS PROVISIONS
8.1 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
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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.
8.2 WITHHOLDING.
All deferrals and payments provided for hereunder shall be subject to applicable
withholding and other deductions as shall be required of the Company under any
applicable local, state or federal law.
8.3 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 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.
8.4 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 Company; 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 Company . No such person shall have nor
require any legal or equitable right, interest or claim in or to any property or
assets of any Company.
In the event that, in its discretion, the Company purchases an insurance policy
or policies insuring the life of the Participant(or any other property) to allow
the Company 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
Company 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 8.3, no such policy, policies or other property shall be held in any
trust for a Participant,
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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.
8.5 BINDING EFFECT.
This Plan shall be binding one each Participant and his heirs and legal
representatives and on the Company and its successors and assigns.
8.6 GOVERNING LAWS.
All provisions of the Plan shall be construed in accordance with the laws of
Ohio, except to the extent pre-empted by federal law.
IN WITNESS WHEREOF, the Company has caused the Plan to be executed as of June 1,
2000.
WORTHINGTON INDUSTRIES, INC.
By: /s/ John P. McConnell
Its: Chairman & Chief Executive Officer
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