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As filed with the Securities and Exchange Commission on December ___, 1998
Registration No. 33-57981
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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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
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(Address of principal executive offices, including zip code)
WORTHINGTON INDUSTRIES, INC. DEFERRED PROFIT SHARING 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. 33-57981) of Worthington
Delaware, related to the registration under the 1933 Act of 1,500,000
Worthington Delaware Shares and an indeterminate amount of interests to be
offered under the Worthington Industries, Inc. Deferred Profit Sharing Plan (the
"Deferred Profit Sharing 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) The Annual Report on Form 11-K for the fiscal year ended
December 31, 1997 of the Deferred Profit Sharing Plan, filed
pursuant to the Exchange Act;
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(d) All documents which may be filed by Worthington Ohio and the
Deferred Profit Sharing Plan 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 Deferred Profit Sharing Plan, from the
date of filing of each such document; and
(e) 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
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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 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
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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
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. 1 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. 1 to Registration Statement on Form S-8 has been
signed by the following persons in the capacities and on the date indicated.
* * /s/ Donal H. Malenick
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John H. McConnell John P. McConnell Donal H. Malenick
Director, Chairman Emeritus Director, Chairman of the Board and Director, President and Chief
and 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
*By: /s/ Donal H. Malenick Date: December 15, 1998
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Donal H. Malenick
Attorney-In-Fact
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Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this Post-Effective Amendment No. 1 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.
DEFERRED PROFIT SHARING PLAN
By: /s/ Donal H. Malenick
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Donal H. Malenick
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