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Filed with the Securities and Exchange Commission on December 21, 2000.
Registration No. 333-________.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WORTHINGTON INDUSTRIES, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Ohio 31-1189815
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1205 DEARBORN DRIVE, COLUMBUS, OHIO 43085
(Address of Principal Executive Offices) (Zip Code)
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WORTHINGTON INDUSTRIES, INC.
2000 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
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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)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title Of Amount To Proposed Proposed Maximum Amount Of
Securities To Be Be Maximum Offering Aggregate Offering Registration
Registered Registered Price Per Share(1) Price(1) Fee
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<S> <C> <C> <C> <C>
common shares, $9.00/28,000
no par value 250,000 $7.59375/222,000 $1,937,812.50 $512.00
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(1) Estimated solely for the purpose of calculating the registration
fee; pursuant to Rules 457(c) and 457(h) promulgated under the Securities Act of
1933 and computed on the basis: (a) $9.00 per share for 28,000 of the common
shares to be registered, which is the price at which options to purchase these
common shares may be exercised; and (b) $7.59375 per share for 222,000 of the
common shares to be registered, which is the average of the high and low sales
prices of the common stock as reported on the New York Stock Exchange on
December 19, 2000.
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents and information heretofore filed by Worthington
Industries, Inc. ("Registrant") with the Securities and Exchange Commission (the
"Commission") are hereby incorporated by reference:
(a) Registrant's Annual Report on Form 10-K for the fiscal year
ended May 31, 2000;
(b) Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended August 31, 2000;
(c) Registrant's Form 8-K filed October 19, 2000;
(d) The description of the Common Shares of Registrant contained in
Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended August 31, 1998; and
(e) Any definitive proxy statement or information statement filed
pursuant to Section 14 of the Securities Exchange Act of 1934,
as amended (the "1934 Act"), and all documents which may be
filed with the Commission pursuant to Sections 13, 14 or 15(d)
of the 1934 Act subsequent to the date hereof and prior to the
completion of the offering contemplated by the Worthington
Industries, Inc. 2000 Stock Option Plan for Non-Employee
Directors, shall also be deemed to be incorporated herein by
reference and to be made a part hereof from the date of filing
of such documents.
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 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Dale T. Brinkman is Vice President-Administration, General Counsel and
Secretary of the Registrant and is an employee and not eligible to participate
in the Worthington Industries, Inc. 2000 Stock Option Plan for Non-Employee
Directors. As of November 30, 2000, Mr. Brinkman owned 38,755 common shares of
the Registrant and held options to purchase 58,000 additional shares at various
exercise prices.
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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 in a court of competent jurisdiction
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 adjudged to be liable 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, but in view of all the circumstances of the case, 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
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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 Registrant (the "Regulations") provides
for broader indemnification than specifically afforded under Section 1701.13(E)
of the OGCL. The Regulations provide that Registrant 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 Registrant or is or was serving at the request of Registrant 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, Registrant and, with
respect to any criminal matter, such individual had no reasonable cause to
believe such individual's conduct was unlawful. The Regulations forbid
Registrant 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, Registrant 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, Registrant, 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 Registrant may
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee, agent or volunteer of Registrant, or who is or was
serving another entity at the request of Registrant, 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 Registrant would
have the obligation or power to indemnify such person under the Regulations. The
Regulations also authorize Registrant 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 Registrant or who is or has
served another entity at the request of Registrant.
The Board of Directors of Registrant 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
Registrant.
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Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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(a) Exhibits. The following exhibits are filed herewith and made a
part hereof:
5 Opinion of Dale T. Brinkman, General Counsel of the Company, as
to the validity of the securities being registered.
10 Worthington Industries, Inc. 2000 Stock Option Plan for
Non-Employee Directors (incorporated by reference to Exhibit
10(g) of the Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended August 31, 2000.
23(a) Consent of Independent Auditors.
23(b) Consent of Counsel (included in Exhibit 5)
24 Powers of Attorney
Item 9. Undertakings.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
provided, however, that the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) of this section do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
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(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6 of this
Part II, or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Columbus, State of Ohio, on December 21, 2000.
WORTHINGTON INDUSTRIES, INC.
By: /s/ John T. Baldwin
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John T. Baldwin
Vice President, Chief Financial Officer
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Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
* * *
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John P. McConnell John H. McConnell John S. Christie, Director,
Director, Chairman, Chief Director, Chairman President, Chief Operating
Executive Office Emeritus Officer
/s/John T. Baldwin * *
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John T. Baldwin John B. Blystone William S. Dietrich, II
Vice President-Finance, Director Director
Chief Financial Officer and
Principal Accounting
Officer
* * *
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Michael J. Endres Peter Karmanos, Jr. Robert B. McCurry
Director Director Director
* * *
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Gerald B. Mitchell Sidney A. Ribeau Mary Schiavo
Director Director Director
*By: /s/John T. Baldwin Date: December 21, 2000
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John T. Baldwin,
Attorney-In-Fact
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