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As filed with the Securities and Exchange Commission on December ___, 1998
Registration No. 2-80094
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 3 TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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WORTHINGTON INDUSTRIES, INC.
(Exact name of Registrant as specified in its charter)
OHIO 31-1189815
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1205 DEARBORN DRIVE, COLUMBUS, OHIO 43085
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(Address of principal executive offices, including zip code)
WORTHINGTON INDUSTRIES, INC. AMENDED 1980 STOCK OPTION PLAN
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(Full title of the plan)
DALE T. BRINKMAN, ESQ.
1205 DEARBORN DRIVE
COLUMBUS, OHIO 43085
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(Name and address of agent for service)
(614) 438-3001
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(Telephone number, including area code, of agent for service)
Index to Exhibits at page 5
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On October 13, 1998, Worthington Industries, Inc., a Delaware
corporation ("Worthington Delaware"), was merged (the "Merger") with and into
Worthington Industries, Inc., an Ohio corporation and a wholly-owned subsidiary
of Worthington Delaware ("Worthington Ohio"). Worthington Ohio was formed as an
Ohio corporation as a vehicle to effect the change of Worthington Delaware's
state of incorporation from Delaware to Ohio through the Merger. The Merger was
approved by the shareholders of Worthington Delaware at the Annual Meeting of
Shareholders held on September 24, 1998.
Each share of common stock, par value $0.01 per share (the
"Worthington Delaware Shares"), of Worthington Delaware was converted into one
common share, without par value (the "Worthington Ohio Common Shares"), of
Worthington Ohio. By virtue of the Merger, Worthington Ohio has succeeded to all
the business, properties, assets and liabilities of Worthington Delaware.
Pursuant to Rule 12g-3(a) under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), the Worthington Ohio Common Shares are deemed to be
registered under the Exchange Act.
Pursuant to Rule 414 promulgated under the Securities Act of
1933, as amended (the "1933 Act"), Worthington Ohio hereby adopts the
Registration Statement on Form S-8 (Registration No. 2-80094) of Worthington
Delaware, related to the registration under the 1933 Act of 1,350,000
Worthington Delaware Shares (prior to adjustment for stock splits) to be offered
under the Worthington Industries, Inc. Amended 1980 Stock Option Plan, as
Worthington Ohio's own Registration Statement on Form S-8 for all purposes of
the 1933 Act and the Exchange Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents and information heretofore filed with
the Securities and Exchange Commission (the "Commission") are hereby
incorporated by reference:
(a) Worthington Delaware's Annual Report on Form 10-K for
the fiscal year ended May 31, 1998, filed pursuant to
the Exchange Act;
(b) Worthington Ohio's Quarterly Report on Form 10-Q for
the fiscal quarter ended August 31, 1998, filed
pursuant to the Exchange Act;
(c) All documents which may be filed by Worthington Ohio
with the Commission pursuant to Sections 13, 14 or
15(d) of the Exchange Act subsequent to the date
hereof and prior to the termination of the offering
contemplated by the Worthington Industries, Inc.
Amended 1980 Stock Option Plan, from the date of
filing of each such document; and
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(d) The description of the Worthington Ohio Common Shares
contained in Worthington Ohio's Quarterly Report on
Form 10-Q for the fiscal quarter ended August 31,
1998.
Any statement contained herein or in a document, all or a
portion of which is incorporated or deemed to be incorporated by reference
herein, shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 6. Indemnification of Directors and Officers.
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Under Section 1701.13(E) of the Ohio Revised Code (the
"OGCL"), directors, officers, employees and agents of Ohio corporations have an
absolute right to indemnification for expenses (including attorneys' fees)
actually and reasonably incurred by them to the extent they are successful in
defense of any action, suit or proceeding, including derivative actions, brought
against them, or in defense of any claim, issue or matter asserted in any such
proceeding. A director, officer, employee or agent is entitled to such
indemnification if such person's success is "on the merits or otherwise".
Directors (but not officers, employees or agents) are entitled to mandatory
payment of expenses by the corporation as they are incurred, in advance of the
final disposition of the action, suit or proceeding, provided the director
agrees to cooperate with the corporation concerning the matter and to repay the
amount advanced if it is proved by clear and convincing evidence that the
director's act or failure to act was done with deliberate intent to cause injury
to the corporation or with reckless disregard for the corporation's best
interests.
Section 1701.13(E) of the OGCL permits a corporation to
indemnify directors, officers, employees or agents of the corporation in
circumstances where indemnification is not mandated by the statute if certain
statutory standards are satisfied. A corporation may grant indemnification in
actions other than derivative actions if the indemnitee has acted in good faith
and in a manner the indemnitee reasonably believed to be in, or not opposed to,
the best interests of the corporation, and with respect to any criminal action
or proceeding, had no reasonable cause to believe the indemnitee's conduct was
unlawful. Such indemnification is permitted against expenses (including
attorneys' fees) as well as judgments, fines and amounts paid in settlement
actually and reasonably incurred by the indemnitee.
An Ohio corporation may also provide indemnification in
derivative actions for attorneys' fees and expenses actually and reasonably
incurred in connection with the defense or settlement of an action if the
officer, director, employee or agent acted in good faith and in a manner such
person reasonably believed to be in, or not opposed to, the best interests of
the corporation. Ohio law does not expressly authorize indemnification against
judgments, fines and amounts paid in settlement of such actions. The corporation
may not indemnify a director, officer, employee or agent in such actions for
attorneys' fees and expenses if such person is
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adjudged to be liable to the corporation for negligence or misconduct in the
performance of such person's duties to the corporation, unless and only to the
extent that a court determines that, despite the adjudication of liability, such
person is fairly and reasonably entitled to indemnity.
Section 1701.13(E) of the OGCL states that the indemnification
provided thereby is not exclusive of any other rights granted to those persons
seeking indemnification under the articles, the regulations, any agreement, a
vote of the shareholders or disinterested directors, or otherwise.
The OGCL grants express power to an Ohio corporation to
purchase and maintain insurance or furnish similar protection, including, but
not limited to, trust funds, letters of credit and self-insurance, for director,
officer, employee or agent liability, regardless of whether that individual is
otherwise eligible for indemnification by the corporation.
The Code of Regulations of Worthington Ohio (the
"Regulations") provides for broader indemnification than specifically afforded
under Section 1701.13(E) of the OGCL. The Regulations provide that Worthington
Ohio must indemnify officers and directors against expenses (including
attorneys' fees, filing fees, court reporters' fees and transcript costs),
judgments, fines and amounts paid in settlement incurred in connection with any
pending, threatened or completed action (whether criminal, civil, administrative
or investigative) by reason of the fact that any such individual is or was a
director, officer, employee, agent or volunteer of Worthington Ohio or is or was
serving at the request of Worthington Ohio as a director, trustee, officer,
employee, member, manager, agent or volunteer of another corporation or other
entity so long as such individual's act or omission was not occasioned by such
individual's intent to cause injury to, or by such individual's reckless
disregard for the best interests of, Worthington Ohio and, with respect to any
criminal matter, such individual had no reasonable cause to believe such
individual's conduct was unlawful. The Regulations forbid Worthington Ohio from
indemnifying an officer or director if such person is adjudged to be liable for
an act or omission occasioned by such person's deliberate intent to cause injury
to, or by such person's reckless disregard for the best interests of,
Worthington Ohio unless and only to the extent a court, in view of all the
circumstances, concludes that such person is fairly and reasonably entitled to
such indemnity as the court deems proper. The Regulations recite a presumption
(which may only be rebutted by clear and convincing evidence) that no act or
omission by a director or officer was occasioned by an intent to cause injury
to, or by a reckless disregard for the best interests of, Worthington Ohio, and
with respect to any criminal matter, that no director or officer had reasonable
cause to believe his or her conduct was unlawful.
The Regulations state that the indemnification provided
thereby is not exclusive of any other rights to which any person seeking
indemnification may be entitled. Additionally, the Regulations provide that
Worthington Ohio may purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee, agent or volunteer of Worthington Ohio,
or who is or was serving another entity at the request of Worthington Ohio,
against any liability asserted against such person and incurred by such person
in such capacity, or arising out of such person's status as such, whether or not
Worthington Ohio would have the obligation or power to indemnify such person
under the Regulations. The Regulations also authorize
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Worthington Ohio to purchase and maintain trust funds, letters of credit or
self-insurance on behalf of any person who is or was a director, officer,
employee, agent or volunteer of Worthington Ohio or who is or has served another
entity at the request of Worthington Ohio.
The Board of Directors of Worthington Ohio has in the past and
may in the future maintain insurance to insure its present or former directors,
officers and employees against liabilities and expenses arising out of any claim
or breach of duty, error, misstatement, misleading statement, omission or other
acts done by reasons of their being such directors, officers or employees of
Worthington Ohio.
Item 8. Exhibits.
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The following exhibits are filed herewith and made a part
hereof:
Exhibit No. Description
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4(a) Amended Articles of Incorporation of Worthington
Industries, Inc. (incorporated by reference to Exhibit
3(a) of Worthington Ohio's Quarterly Report on Form 10-Q
for the fiscal quarter ended August 31, 1998 (File No.
0-4016)).
4(b) Code of Regulations of Worthington Industries, Inc.
(incorporated by reference to Exhibit 3(b) of Worthington
Ohio's Quarterly Report on Form 10-Q for the fiscal
quarter ended August 31, 1998 (File No. 0-4016)).
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Post-Effective Amendment No. 3 to Registration Statement on Form S-8 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Columbus, State of Ohio, on December 15, 1998.
WORTHINGTON INDUSTRIES, INC.
By: /s/ Donal H. Malenick
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Donal H. Malenick, President and Chief
Operating Officer
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Pursuant to the requirements of the Securities Act of 1933,
this Post-Effective Amendment No. 3 to Registration Statement on Form S-8 has
been signed by the following persons in the capacities and on the date
indicated.
<TABLE>
<S> <C> <C>
* * /s/ Donal H. Malenick
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John H. McConnell John P. McConnell Donal H. Malenick
Director, Chairman Emeritus and Director, Chairman of the Board and Director, President and Chief
Founder Chief Executive Officer Operating Officer
/s/ John T. Baldwin /s/ Michael R. Sayre *
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John T. Baldwin Michael R. Sayre Charles D. Minor
Treasurer Corporate Controller Director, Secretary
*
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John B. Blystone Charles R. Carson William S. Dietrich, II
Director Director Director
*
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John F. Havens Peter Karmanos, Jr. Pete A Klisares
Director Director Director
* * *
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Robert B. McCurry Gerald B. Mitchell James Petropoulos
Director Director Director
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Mary Schiavo
Director
</TABLE>
*By: /s/ Donal H. Malenick Date: December 15, 1998
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Donal H. Malenick
Attorney-In-Fact
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