future estimated or expected sales, operating results and earnings per share

EX-10.1 2 l11362aexv10w1.htm EX-10.1 Exhibit 10.1

Exhibit 10.1

WORTHINGTON INDUSTRIES, INC.

2005 NON-QUALIFIED

DEFERRED COMPENSATION PLAN

ARTICLE I - INTRODUCTION

1.1	Name and Adoption of Plan.

	Worthington Industries, Inc. (the “Company”) hereby adopts this Worthington Industries 2005 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 purpose of the Plan is 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 effective date of this Plan is January 1, 2005, with initial deferral elections made in December 2004. Bonus Deferrals may be made for Fiscal Quarters beginning on or after March 1, 2005. Base Salary Deferrals may be made for pay periods beginning on or after January 1, 2005. Election to make Deferrals under the Plan may initially be made in December 2004.

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 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, agree to make 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 on or 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 first day of the Plan Year following 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.

	“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 for any Fiscal Quarter that begins prior to the Plan Year for which he has filed 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 40% 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. §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 Fiscal Quarter or pay period 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 of the Participant’s Separation From Service reaches age 62 or (ii) the date of the Participant’s Employee Separation From Service.

	“Deferrals” means Base Salary Deferrals, Bonus Deferrals and Employer Contributors.

	“Directors” means the Board of Directors of the Company.

	“Effective Date” means January 1, 2005.

	“Election Form” means the written agreement(s) or other form(s) or method(s) adopted from time to time for the Plan pursuant to which the Participant designates his Beneficiary; 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. The form of the Election Forms may be established and 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 in effect from time to time.

	“Highest Paid Employees” means those employees as defined in Section 4.16(i) of the Internal Revenue Code, without regard to paragraph 5 thereof (generally being the ten highest paid employees of the Company and the Company’s Subsidiaries considered on a consolidated basis and any officers of the Company earning in excess of $130,000 in annual compensation).

	“IRS Regulations” means the laws and regulations adopted by Congress or issued by the Internal Revenue Services as applicable to non-qualified deferred compensation plans or arrangements.

	“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 2005 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.

	“Separations From Service” means the date a Participant is no longer an employee of either the Company or any Company Subsidiary, such determination to be made consistent with IRS Regulations.

	“Valuation Date” means the date the Accounts in the Plan are adjusted to reflect earnings and losses in accordance with the hypothetical investment directions, as set from time to time by the Committee.

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 which shall be effective for the Plan Year following his selection for Base Salary and Bonus Deferrals. 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 (i) the date the Committee approves his participation or (ii) with respect to Base Salary and Bonus Deferrals as of the beginning of the Plan Year immediately following the date 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 (a) he dies, (b) he otherwise ceases to be an Employee of at least one of the Employers, (c) he 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) 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); provided, however, that any deferral elections effective for the Plan Year in which participation ceases shall remain effective to the extent required by IRS Regulations. The Committee or the Company will notify a Participant who is still an employee 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 an Election Form in such form as may then be prescribed. The Election Form to defer Bonus Compensation must be filed prior to the beginning of the Plan Year containing the first day of the applicable Fiscal Quarter for which the Bonus Compensation would otherwise be paid, and shall be irrevocable once such Plan Year begins. The Election Form to defer Base Salary must be filed prior to the beginning of the Plan Year in which the Base Salary is earned (i.e. the related services are performed), and shall be irrevocable once such Plan Year begins. Under no circumstances may a Participant’s Deferral Election with respect to any amounts earned in a Plan Year be made after the beginning of that Plan Year.

	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; provided that any changes in such limits may not apply to any Plan Year for which deferral elections have become irrevocable.

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.

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 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 in the Account shall continue to be credited with gains and losses based upon the Participant’s hypothetical investment elections, but the Committee may, in its sole discretion, limit the investment options that are available for such Accounts.

	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 continue to be credited with gains and losses based upon the Participant’s hypothetical investment elections, but the Committee may, in its sole discretion, limit the investment options that are available for such Accounts.

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 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

	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.

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.

	The distribution to any person who qualifies as a Highest Paid Employee, which is triggered due to a Separation From Service, shall not begin earlier than the date which is six months after the date of the Separation From Service (or, if earlier, the death of such person).

(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 any such changes to an existing election (a) will only become effective 12 months after such amended Election Form is filed; (b) must be made at least 12 months before the affected distribution otherwise would be made; and (c) must provide for a deferral of at least five years (as explained by IRS Regulations).

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 the form 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	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.

7.4	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 (after applying other available resources as required by IRS Regulations), 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; provided, however, that this provision sentence shall not apply to the

extent it is inconsistent with IRS Regulations. The above notwithstanding, no hardship withdrawal shall be permitted unless it meets the requirements for hardship withdrawals as established by the IRS Regulations.

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.

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 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 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 Plan shall be terminated as to such Employer and the Employees thereof and the Accounts of such Employees shall be paid out as of the date of such Change of Control, 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 X, the following terms shall have the meanings set forth below:

(a) A “Change in Control” with respect to the Company means when either (i) a Person or Group (other than an Excluded Person) acquires ownership of stock of the Company that, together with stock held by such Person or Group, constitutes more than 50% of the total fair market value or total voting power of the stock of the Company; or (ii) any Person or Group (other than an Excluded Person) acquires ownership of stock of the Company possessing 35% or more of the total voting power of the stock of the Company; or (iii) a majority of the members of the Board of Directors of the Company is replaced during any twelve-month period by Directors whose appointment or election is not endorsed by a majority of the members of the Company’s Board of Directors prior to the date that such appointments or elections are made; or (iv) any Person or Group (other than an Excluded Person) acquires (or has acquired) during the twelve-month period ending on the date of the most recent acquisition by such Person or Group, assets from the Company that have a total Gross Market Value equal to or more than 40% of the total Gross Market Value of all of the assets of the Company immediately prior to such acquisition or acquisitions. A “Change in Control” with respect to an Employer means (i) a Change of Control with respect to the Company or (ii) such Employer (other than the Company) is no longer a Company Subsidiary.

The above notwithstanding, no event shall be considered a Change of Control if it would not be a Change of Control Event as defined in IRS Regulations.

(b) “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.

(c) “Excluded Person” means (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 (ii) 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).

(d) “Gross Market Value” means the value of the assets of the Company or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets.

(e) “Group” shall mean more than one Person acting as a “group” as interpreted in accordance with IRS Regulation.

(f) “Person” means any individual, firm, corporation, or other entity.

(g) “Whole Board” means the total number of directors which the Company would have if there were no vacancies.

10.3 Consistency with IRS Regulations: In all cases, the provisions of and definitions used in this Section 10 shall be interpreted in accordance with the provisions of the IRS Regulations.

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. Except as otherwise required by law, no accelerated distribution will be made with respect to a divorce, dissolution or other division of property rights.

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, provided, however, that no termination shall in and of itself cause an acceleration of the distribution of Accounts under the Plan, except as may otherwise be provided specifically in the action terminating the Plan, which action shall take into consideration IRS Regulations. 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”) which is within the jurisdiction of the courts of the United States, and is permitted by IRS Regulation, 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 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.

WORTHINGTON INDUSTRIES, INC.