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Exhibit 10.5
WORTHINGTON INDUSTRIES, INC.
AMENDED AND RESTATED
2005 DEFERRED COMPENSATION PLAN FOR DIRECTORS
Section 1.
Purpose
Worthington Industries, Inc. 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 is effective as to Directors Fees which
are paid with respect to fees earned on or after January 1,
2005. The Plan is being amended and restated to comply with Code
Section 409A effective as of December 2008.
Section 2.
Definitions
2.1 "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 investment gains or
losses in accordance with the Plan.
2.2 "Beneficiary" shall mean the person
designated by a Participant in accordance with the Plan to receive
payment of any remaining balance in his Account in the event of the
Participant’s death.
2.3 "Board of Directors" shall mean the Board of
Directors of the Company.
2.4 "Code" means the Internal Revenue Code of
1986, as amended.
2.5 "Committee" shall mean the committee
appointed by the Board of Directors 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.
2.6 "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.
2.7 "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 earliest of
(i) the date selected by the Participant in the Election Form,
which date must be at least one year after the end of the Plan Year
with respect to which the payment would otherwise be made,
(ii) the date of the Participant’s death, or
(iii) the date the Participant Separates from Service as a
Director. Notwithstanding the foregoing, in no event shall a
Participant’s Date of Deferral extend beyond the later of his
70th birthday or the date he Separates from Service as a Director.
Unless the Participant elects a different Date of Deferral, his
Date of Deferral shall be the date he Separates from Service as a
Director.
2.8 "Director" shall mean any member of the
Board of Directors of the Company who is not an employee of the
Company.
2.9 "Directors Fees" shall mean fees owed to the
Directors by the Company for their services as Directors including
retainers, board meeting fees, committee meeting fees and other
similar fees, if any.
2.10 "Election Form" means the written form or
other method 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.
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2.11 "401(k) Plan" shall mean the
Worthington Industries Deferred Profit Sharing Plan, as in effect
from time to time.
2.12 "IRS Regulations" shall mean the laws and
regulations adopted by Congress or issued by the U.S. Department of
Treasury or the Internal Revenue Service under the Code.
2.13 "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.
2.14 "Plan" shall mean the "Worthington
Industries, Inc. Amended and Restated 2005 Deferred Compensation
Plan for Directors" as set forth herein, as the same may be amended
from time to time.
2.15 "Plan Year" shall mean the calendar
year.
2.16 "Separates from Service" means a
"separation from service" of a Director within the meaning IRS
Regulations §1.409A-1(h).
2.17 "Unforeseeable Emergency" means a severe
financial hardship to the Participant within the meaning of IRS
Regulations §1.409A-3(i)(3) resulting from (a) an illness
or accident of the Participant or the Participant’s spouse,
Beneficiary, or dependent (as defined in Code Section 152,
without regard to Code Sections 152(b)(1), (b)(2) and (d)(1)(B)),
(b) loss of the Participant’s property due to casualty,
or (c) other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of
the Participant.
2.18 "Valuation Date" shall mean 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.
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. The Company may
hire a third party to maintain all or a part of the Plan’s
books and records.
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
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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.
3.5
Indemnification of Committee
The Company 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
willful misconduct.
Section 4.
Eligibility and Participation
4.1
Eligibility
Each Director is 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 to defer Directors Fees shall cease when he dies or
otherwise ceases to be a Director of the Company.
4.2 Election to
Defer
Any Director who desires to defer the payment of
any portion of his Directors Fees for any Plan Year must complete
and deliver an Election Form to the Committee (in substantially the
form approved by the Committee from time to time) no later than
December 31 of the immediately preceding Plan Year in which
the applicable fee is earned. (Retainers shall be earned commencing
the first day of the fiscal year, the fiscal quarter or other
period as to which they relate. Meeting fees shall be earned by
attendance at the meeting). Notwithstanding the foregoing, and in
the discretion of the Committee, a Participant may elect to defer
any portion of Directors Fees by completing and delivering an
Election Form to the Committee no later than 30 days after the
Participant first becomes eligible to participate in this Plan with
respect to any Directors Fees for which services will be performed
after such election is made. For this purpose, a Participant is
first eligible to participate in this Plan if he is not a
participant in any other arrangement that, along with this Plan,
would be treated as a single nonqualified deferred compensation
plan within the meaning of IRS Regulations
§1.409A-1(c)(2).
Any election made pursuant to this Section 4.2 shall be
irrevocable once such Plan Year begins.
4.3 The Election
Form
A Participant shall designate on an Election
Form (i) the portion of his Directors Fees he desires to
defer, (ii) the Date of Deferral, and (iii) the method of
payment of his Account. Payment of the Account shall be made in
accordance with Section 6. The Participant shall also
designate the investment option selected for his Account on an
Election Form. The elections described in the first sentence of
this Section 4.3 must be made no later than the date described
in Section 4.2.
If a Participant makes no election as to the form of payment,
that Participant’s form of payment shall be a lump sum.
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 fees, for purposes of determining the amounts to be
paid under each election, the Participant shall be treated as if he
had a separate sub-account for Directors Fees deferred pursuant to
the differing elections.
Section 5.
Deferred Compensation Account
5.1 Crediting
Fees
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The Directors Fees which a
Participant elects to defer shall be treated as if they were
set-aside in an Account on the date the Directors Fees would
otherwise have been paid to the Participant.
5.2 Investment
Options – General
Until changed by
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