Exhibit 10.1
WORTHINGTON INDUSTRIES, INC.
2000 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
1. PURPOSE
The purpose of the Worthington Industries, Inc. 2000 Stock Option Plan
for Non-Employee Directors is to promote the interests of Worthington
Industries, Inc. and its shareholders by (a) increasing the proprietary interest
of Eligible Directors in the growth and performance of the Company by granting
such Eligible Directors options to purchase Common Shares of the Company and (b)
encouraging the Eligible Directors to remain as directors of the Company and put
forth maximum efforts for the success of the Company.
2. DEFINITIONS
As used in the Plan, the following terms shall have the meanings set
forth below:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Change in Control" shall mean the following:
(i) A Change in Control shall have occurred when any
Person (other than (A) the Company or any Subsidiary
of the Company, (B) any employee benefit plan of the
Company or of any Subsidiary of the Company or any
trustee of or fiduciary with respect to any such plan
when acting in such capacity, or (C) any Person who,
on the Effective Date of the Plan, is an Affiliate of
the Company and owning in excess of ten percent (10%)
of the outstanding Common 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, has acquired or obtained the right to
acquire the beneficial ownership of twenty-five
percent (25%) or more of the Common Shares then
outstanding.
(ii) "Acquiring Person" means any Person who or which,
together with all Affiliates and Associates, has
acquired or obtained the right to acquire the
beneficial ownership of twenty-five percent (25%) or
more of the Common Shares then outstanding.
(iii) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Exchange Act.
(iv) "Continuing Director" means any individual who was a
member of the Board on the Effective Date of the Plan
or thereafter elected by the shareholders or
appointed by the Board 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 an individual designated (before
his initial election or appointment as a director) as
a Continuing Director by three-fourths of the Whole
Board, but only if a majority of the Whole Board
shall then consist of Continuing Directors.
(v) "Whole Board" means the total number of directors
which the Company would have if there were no
vacancies.
(c) "Change in Control Exercise Period" shall have the meaning set
forth in paragraph (ii) of Subsection 6(d) of the Plan.
(d) "Change in Control Price Per Common Share" shall mean the
highest price per Common Share (i) paid by the Acquiring
Person in connection with the transaction that results in the
Change in Control; or (ii) paid or offered by the Acquiring
Person, to acquire other Common Shares in excess of one
percent (1%) of the outstanding Common Shares, at any time
after the Change in Control and before the Eligible Director
exercises his/her election under paragraph (ii) of Subsection
6(d).
(e) "Change in Control Spread" shall have the meaning set forth in
paragraph (ii) of Subsection 6(d) of the Plan.
(f) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and any successor provisions
thereto.
(g) "Company" shall mean Worthington Industries, Inc., an Ohio
corporation, together with any successor thereto.
(h) "Common Shares" shall mean the common shares, without par
value, of the Company.
(i) "Director Option" shall mean a Non-Qualified Stock Option
granted to each Eligible Director under the provisions of the
Plan without any action by the Board.
(j) "Director Retirement" shall mean the retirement of an Eligible
Director from service on the Board after having (i) attained
the age of 65 or (ii) served at least nine years as a member
of the Board, unless the Board specifies a shorter period of
required service which shall in no event be fewer than six
years.
(k) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time, and any successor provisions
thereto.
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(l) "Effective Date" shall mean the date of the approval of the
Plan by the Company's shareholders.
(m) "Eligible Director" shall mean, on any date, an individual who
is serving as a member of the Board but shall not include any
individual who is an employee of the Company or of any
Subsidiary or Affiliate of the Company.
(n) The "Fair Market Value" of a Common Share on any relevant date
for purposes of any provision of the Plan shall be the last
reported sales price of a Common Share as shown on the
national securities exchange on which the Company's Common
Shares are then traded, or, if there are no reported sales on
such date, then the last reported sales price on the next
preceding day on which such a sale was transacted.
(o) "For Cause" shall mean removal from office for cause in
accordance with Article SIXTH of the Company's Amended
Articles of Incorporation and the Ohio General Corporation
Law.
(p) "Non-Qualified Stock Option" shall mean a right to purchase
Common Shares from the Company that is granted under the Plan
and is not intended to meet the requirements of Section 422 of
the Code or any successor provision thereto.
(q) "Option Agreement" shall mean any written agreement, contract
or other instrument or document evidencing any Director Option
granted under the Plan.
(r) "Permissible Transferee" shall mean any member of the
immediate family of an Eligible Director, any trust, whether
revocable or irrevocable, solely for the benefit of members of
the Eligible Director's immediate family, or any partnership
or limited liability company whose only partners or members
are members of the Eligible Director's immediate family.
(s) "Person" shall mean any individual, corporation, partnership,
limited liability company, association, joint-stock company,
trust, unincorporated organization, government or political
subdivision thereof or other entity.
(t) "Plan" shall mean the Worthington Industries, Inc. 2000 Stock
Option Plan for Non-Employee Directors, as the same may be
amended from time to time.
(u) "SEC" shall mean the Securities and Exchange Commission or any
successor thereto and shall include the staff thereof.
(v) "Subsidiary" shall mean any corporation which, on the date of
determination, qualified as a subsidiary corporation of the
Company under Section 424(f) of the Code. In addition, the
term "Subsidiary" shall include any trade or business which is
under common control with the Company, as determined under
Section 414(c) of the Code.
(w) "Total Disability" shall be deemed to be the inability, by
reason of a medically determinable physical or mental
impairment, to engage in any substantial gainful activity, for
a period of 180 days after its commencement and such
condition, in
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the opinion of a physician selected by the Company and
reasonably acceptable to the Eligible Director or his/her
legal representative is total and permanent.
3. ADMINISTRATION
(a) The Plan shall be administered by the Board.
(b) The Board shall have full power and authority in its
discretion, subject to and not inconsistent with the express provisions of the
Plan, to administer the Plan and to exercise all the power and authority
specifically granted to the Board under the Plan or necessary or advisable, in
the sole and absolute discretion of the Board, in the administration of the Plan
including, without limitation, the authority to: interpret and construe any
provision of the Plan or any Director Option granted under the Plan; make all
required or appropriate determinations under the Plan or any Director Option
granted under the Plan; adopt, amend and rescind such rules and regulations
relating to the Plan as the Board shall determine in its discretion subject to
the express provisions of the Plan; and make all other determinations deemed by
the Board necessary or advisable for the administration of the Plan.
Notwithstanding the preceding sentence, the Board shall have no discretion with
respect to the selection of members of the Board to receive Director Options,
the number of Common Shares subject to any Director Option, the purchase price
per Common Share under each Director Option or the timing of grants of Director
Options under the Plan.
(c) The interpretation and construction of any provision of the
Plan or any Director Option granted under the Plan and all determinations by the
Board in each case shall be final, binding and conclusive with respect to all
interested parties, unless otherwise determined by the Board. No member of the
Board shall be personally liable for any action, failure to act, determination,
interpretation or construction made in good faith with respect to the Plan or
any Director Option or transaction under the Plan.
(d) Nothing contained in the Plan, nor any Director Option granted
pursuant to the Plan, shall confer upon any Eligible Director any right to
continue as a director of the Company nor limit in any the right of the
shareholders of the Company to remove him/her as a director in accordance with
the Company's Amended Articles of Incorporation and the Ohio General Corporation
Law.
(e) The validity, construction and effect of the Plan and any
rules and regulations relating to the Plan and any Option Agreement evidencing a
Director Option granted under the Plan shall be determined in accordance with
the laws of the State of Ohio.
4. ELIGIBILITY
The class of individuals eligible to receive grants of Director Options
shall be the Eligible Directors.
5. COMMON SHARES SUBJECT TO THE PLAN
Subject to adjustment as provided in Section 7 of the Plan, an
aggregate of 250,000 Common Shares shall be available for issuance under the
Plan. The Common Shares deliverable upon the exercise of Director Options may be
made available from authorized but unissued
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Common Shares or issued Common Shares which have been reacquired by the Company.
If any Director Option granted under the Plan shall terminate for any reason
without having been exercised in full, the Common Shares subject to, but not
delivered under, such Director Option shall be available for issuance under the
Plan.
6. GRANT, TERMS AND CONDITIONS OF DIRECTOR OPTIONS
(a) On the date an Eligible Director is first elected or appointed
to the Board prior to September 25, 2003, such Eligible Director shall be
granted a Director Option to purchase 4,000 Common Shares; provided, however, in
respect of the first election to the Board of Eligible Directors prior to the
Effective Date, such Director Option shall be granted on the Effective Date. On
the date an Eligible Director is first elected or appointed to the Board on or
after September 25, 2003, such Eligible Director shall be granted a Director
Option to purchase 5,000 Common Shares.
(b) On the date on which each annual meeting of the shareholders
of the Company is held in 2001 and in 2002, each Eligible Director who has
served as a director of the Company for more than six months and will continue
to serve as a member of the Board on and after such date, shall receive a grant
of a Director Option to purchase 2,000 Common Shares. On the date on which each
annual meeting of shareholders of the Company is held, beginning with the annual
meeting to be held in 2003, each Eligible Director who served as a director of
the Company for more than six months and will continue to serve as a member of
the Board on and after such date, shall receive a grant of a Director Option to
purchase 4,000 Common Shares.
(c) The Director Options granted shall have the following terms
and conditions:
(i) Purchase Price. The purchase price per Common Share
deliverable upon the exercise of each Director Option shall be 100% of
the Fair Market Value per Common Share on the date the Director Option
is granted.
(ii) Payment. Director Options may be exercised only upon
payment of the purchase price thereof in full. Such payment may be made
in cash, or its equivalent, or, if and to the extent permitted by the
Board, by tendering, either by actual delivery of Common Shares or by
attestation, Common Shares acceptable to the Board or by a combination
of the foregoing, as determined by the Board, provided that the
combined value of all cash and cash equivalents and the Fair Market
Value of any Common Shares so tendered to the Company as of the date of
such tender is at least equal to the purchase price for the Common
Shares underlying the portion of the Director Option being exercised.
The Board may permit an Eligible Director to elect to pay the purchase
price upon the exercise of a Director Option by irrevocably authorizing
a third party to sell Common Shares (or a sufficient number of Common
Shares) acquired upon exercise of the Director Option and remit to the
Company a sufficient portion of the sale proceeds to pay the entire
purchase price and tax withholding resulting from such exercise.
(iii) Vesting and Term of Director Options. Each Director
Option granted pursuant to the Plan shall become vested and fully
exercisable on the first to occur of (A) the first anniversary of the
date of grant or (B) as to any Director Option granted as of
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the date of an annual meeting of shareholders of the Company, the date
on which the next annual meeting of shareholders of the Company is held
following the date of grant, provided that in each case the Eligible
Director who was granted the Director Option is a director of the
Company on the relevant date or the Eligible Director's term as a
director of the Company is ending on the relevant date. Once vested,
each Director Option shall be exercisable until the earlier of ten
years from the date of grant and the expiration of the applicable
period described in paragraph (iv) below.
(iv) Termination of Service as Eligible Director.
(A) Upon termination of an Eligible Director's
service as a director of the Company for any reason other than
death, Director Retirement, Total Disability or For Cause, all
outstanding Director Options held by such Eligible Director,
to the extent then exercisable, shall be exercisable in whole
or in part for a period of one year from the date upon which
the Eligible Director ceases to be a member of the Board,
provided that in no event shall the Director Options be
exercisable beyond the period provided for in paragraph (iii)
of Subsection 6(c) above. Notwithstanding the foregoing, the
Board shall have the right to accelerate the exercisability of
any outstanding Director Option, in its discretion, upon the
termination of an Eligible Director's service on the Board.
(B) If an Eligible Director shall die while
serving as a director of the Company, all outstanding Director
Options held by such Eligible Director (whether or not then
exercisable by their terms) shall become immediately
exercisable in full by the Eligible Director's estate or by
the Person who acquires the right to exercise such Director
Options upon the Eligible Director's death by bequest or
inheritance. Such exercise may occur at any time within three
years after the date of the Eligible Director's death,
provided that in no event shall such Director Options be
exercisable beyond the period provided for in paragraph (iii)
of Subsection 6(c) above.
(C) If an Eligible Director's service as a
director of the Company ceases as a result of the Eligible
Director's becoming Totally Disabled, all outstanding Director
Options held by such Eligible Director (whether or not then
exercisable by their terms) shall become immediately
exercisable in full. Such exercise may occur at any time
within three years after the Eligible Director's service as a
director of the Company has ceased, provided that in no event
shall such Director Options be exercisable beyond the period
provided for in paragraph (iii) of Subsection 6(c) above.
(D) If an Eligible Director's service as a
director of the Company ceases due to a Director Retirement,
all outstanding Director Options held by such Eligible
Director (whether or not then exercisable by their terms)
shall become immediately exercisable in full. Such exercise
may occur at any time within three years after the date of the
Director Retirement, provided that in no event shall such
Director Options be exercisable beyond the period provided for
in paragraph (iii) of Subsection 6(c) above.
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(E) If an Eligible Director's service as a
director of the Company is terminated For Cause, each of the
Director Options of such Eligible Director shall be cancelled
on the date the Eligible Director ceases to be a director of
the Company.
(v) Assignability of Director Options. With the permission
of the Board, an Eligible Director who has been granted a Director
Option under the Plan, may transfer such Director Option to a revocable
inter vivos trust as to which the Eligible Director is the settlor or
may transfer such Director Option to a Permissible Transferee. Any such
transferee shall remain subject to all of the terms and conditions
applicable to such Director Option and subject to the rules and
regulations prescribed by the Board. A Director Option may not be
retransferred by a Permissible Transferee except by will or the laws of
descent and distribution and then only to another Permissible
Transferee. Other than as described above, no Director Option may be
assigned, alienated, pledged, attached, sold or otherwise transferred
or encumbered by an Eligible Director otherwise than by will or the
laws of descent and distribution, or pursuant to a qualified domestic
relations order, and during the lifetime of the Eligible Director to
whom a Director Option is granted, the Director Option may be exercised
only by the Eligible Director or by the Eligible Director's guardian or
legal representative.
(vi) Option Agreement. Each Director Option granted under
the Plan shall be evidenced by an Option Agreement with the Company
which shall contain the terms and provisions set forth in the Plan and
shall otherwise be consistent with the provisions of the Plan.
(d) Change in Control Provisions.
(i) Notwithstanding any other provision of the Plan to the
contrary, but subject to the provisions of paragraph (iv) of this
Subsection 6(d), in the event of a Change in Control, any Director
Options outstanding as of the date such Change in Control is determined
to have occurred, and which are not then exercisable, shall become
fully exercisable.
(ii) Notwithstanding any other provision of the Plan,
during the 60-day period from and after a Change in Control (the
"Change in Control Exercise Period"), if the Board shall determine at,
or at any time after the time of grant, an Eligible Director holding a
Director Option shall have the right, whether or not the Director
Option is fully exercised and in lieu of the payment of the purchase
price for the Common Shares being purchased under the Director Option
and by giving notice to the Company, to elect (within the Change in
Control Exercise Period) to surrender all or part of the Director
Option to the Company and to receive cash, within 30 days of such
notice, in an amount equal to the amount by which the Change in Control
Price per Common Share on the date of such election shall exceed the
purchase price per Common Share under the Director Option (the "Change
in Control Spread") multiplied by the number of Common Shares granted
under the Director Option as to which the right granted under this
paragraph (ii) shall have been exercised; provided, that if the Change
in Control is within six months of the date of grant of a particular
Director Option held by an Eligible Director, no such
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election shall be made by such Eligible Director with respect to such
Director Option prior to six months from the date of grant. However, if
the end of such sixty-day period from and after a Change in Control is
within six months of the date of grant of a Director Option, such
Director Option (unless theretofore exercised) shall be cancelled in
exchange for a cash payment to the Eligible Director, effected on the
day which is six months and one day after the date of grant of such
Director Option, equal to the Change in Control Spread multiplied by
the number of Common Shares granted under the Director Option.
(iii) Notwithstanding any other provision of the Plan, if
any right granted pursuant to the Plan would make a Change in Control
transaction ineligible for pooling-of-interests accounting treatment
under APB No. 16 that (after giving effect to any other actions taken
to cause such transaction to be eligible for such pooling-of-interests
accounting treatment) but for the nature of such grant would otherwise
be eligible for such accounting treatment, the Board shall have the
ability to substitute for the cash payable pursuant to such right
Common Shares with a Fair Market Value equal to the cash that would
have otherwise been payable pursuant thereto.
(iv) The provisions of this Subsection 6(d) shall not apply
(A) if the Board determines at the time of grant that such Section
shall not apply or (B) 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 then in office and acting upon
such matters shall be Continuing Directors.
7. ADJUSTMENT AND CHANGES IN COMMON SHARES
(a) In the event that the outstanding Common Shares shall be
changed into or exchanged for a different kind of shares, other securities or
other property of the Company or of another corporation or for cash (whether by
reason of merger, consolidation, recapitalization, reclassification, split-up,
combination of shares or otherwise) or if the number of Common Shares of the
Company shall be increased through the payment of a share dividend, then unless
such change results in the termination of all outstanding Director Options
granted pursuant to the Plan, there shall be substituted for or added to each
Common Share subject to the Director Option, the number and kind of shares,
other securities or other property and the amount of cash into which each
outstanding Common Share of the Company shall be changed, or for which each such
Common Share shall be exchanged, or to which the holder of each Common Share
shall be entitled, as the case may be. The Director Option shall also be
appropriately amended as to the purchase price and other terms as may be
necessary to reflect the foregoing events. Fractional shares resulting from any
adjustment in the Director Options pursuant to this Section 7 shall be rounded
down to the nearest whole number of shares.
(b) Notice of any adjustment shall be given by the Company to each
holder of a Director Option which shall have been so adjusted, provided that
such adjustment (whether or not such notice is given) shall be effective and
binding for all purposes of the Plan and any Option Agreements issued under the
Plan.
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(c) The grant of Director Options under the Plan shall in no way
affect the right of the Company to adjust, reclassify, reorganize or otherwise
change its capital or business structure or to merge, consolidate, dissolve,
liquidate or sell or transfer all or any part of its business or assets.
8. NO RIGHTS AS SHAREHOLDERS
Neither an Eligible Director nor any holder or beneficiary of any
Director Option shall be, or have any of the rights and privileges of, a
shareholder of the Company in respect of any Common Shares purchasable upon the
exercise of any Director Option, in whole or in part, unless and until ownership
of such Common Shares shall have been recorded in the share transfer books of
the Company. To the extent that the Plan provides for issuance of certificates
to reflect the issuance of Common Shares, the issuance may be effected on a
non-certificated basis, to the extent not prohibited by applicable law or the
applicable rules of any national securities exchange on which the Common Shares
are then listed or traded.
9. PLAN AMENDMENTS
The Board may amend, alter, suspend, discontinue or terminate the Plan
or any portion thereof at any time, in its sole and absolute discretion;
provided that no such amendment, alteration, suspension, discontinuation or
termination shall be made without shareholder approval if such approval is
necessary to comply with any tax or regulatory requirement, including for these
purposes any approval requirement which is a prerequisite for exemptive relief
from Section 16(b) of the Exchange Act for which or with which the Board deems
it necessary or desirable to qualify or comply.
10. TAX WITHHOLDING
The Company shall have the power to withhold, or require an Eligible
Director to remit to the Company, an amount sufficient to satisfy federal, state
and local tax withholding requirements on any Director Option granted under the
Plan, and the Company may withhold payment of cash or issuance of Common Shares
until such requirements are satisfied. The Board may, in its discretion, permit
an Eligible Director to elect, subject to such conditions as the Board shall
impose, (a) to have Common Shares otherwise issuable under the Plan withheld by
the Company or (b) to tender, either by actual delivery of Common Shares or by
attestation, Common Shares acceptable to the Board, in each case having a Fair
Market Value sufficient to satisfy all or part of the Eligible Director's
estimated total federal, state and local tax obligations associated with the
transaction.
11. REQUIREMENTS OF LAW
The granting of Director Options and the issuance of Common Shares upon
exercise of Director Options shall be subject to all applicable laws, rules and
regulations, and to such approval by any governmental agencies or national
securities exchanges as may be required. Notwithstanding the foregoing, no
Common Shares shall be issued under the Plan unless the Company is satisfied
that such issuance will be in compliance with applicable federal and state
securities laws. Certificates for Common Shares delivered under the Plan may be
subject to such stock transfer orders and other restrictions as the Board may
deem advisable under the rules,
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regulations and other requirements of the SEC, any national securities exchange
upon which the Common Shares are then listed or traded, or any applicable
federal or state securities laws. The Board may cause a legend or legends to be
placed on any such certificate to make appropriate reference to such
restrictions.
12. SEVERABILITY
If any provision of the Plan or any Director Option is or becomes or is
deemed to be invalid, illegal or unenforceable in any jurisdiction or as to any
Person or Director Option or would disqualify the Plan or any Director Option
under any law deemed applicable by the Board, such provision shall be construed
or deemed amended to conform to the applicable laws, or if it cannot be
construed or deemed amended without, in the determination of the Board,
materially altering the intent of the Plan or the Director Option, such
provision shall be stricken as to such jurisdiction, Person or Director Option
and the remainder of the Plan and any such Director Options shall remain in full
force and effect.
13. INDEMNIFICATION
Each individual who is or shall have been a member of the Board shall
be indemnified and held harmless by the Company against and from any loss, cost,
liability or expense that may be imposed upon or reasonably incurred by him/her
in connection with or resulting from any claim, action, suit or proceeding to
which he/she may be made a party or in which he/she may be involved by reason of
any action taken or failure to act by the Board under the Plan and against and
from any and all amounts paid by him/her in settlement thereof, with the
Company's approval, or paid by him/her in satisfaction of any judgment in any
such action, suit or proceeding against him/her, provided he/she shall give the
Company an opportunity, at its own expense, to handle and defend the same before
he/she undertakes to handle and defend it on his/her own behalf. The foregoing
right of indemnification shall not be exclusive and shall be independent of any
other rights of indemnification to which such individuals may be entitled under
the Company's Amended Articles of Incorporation or Code of Regulations, by
contract, as a matter of law.
14. EFFECTIVE DATE AND DURATION OF PLAN
The Plan shall become effective on the date of the approval of the Plan
by the Company's shareholders ("Effective Date"). The Plan shall terminate the
day following the tenth annual meeting of shareholders of the Company at which
directors are elected succeeding the Effective Date unless the Plan is
terminated by exhaustion of the Common Shares available for issuance under the
Plan. Director Options outstanding on the date the Plan is terminated shall
continue to have force and effect in accordance with the provisions of the
Option Agreements evidencing such Director Options.
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