Exhibit 10.32
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement (this
“ Agreement ”) is made as of this
th day of
, 2008, by and between Worthington Industries, Inc., an Ohio
corporation (the “ Company ”), and
, an individual (“ Indemnitee ”).
Recitals
A. The Code
of Regulations (as amended, the “ Regulations ”)
of the Company provide for the indemnification of the directors of
the Company as set forth therein.
B. The
Regulations of the Company and Ohio General Corporation Law, as
amended (the “ OGCL ”), permit agreements
between the Company and the directors of the Company with respect
to indemnification of such directors.
C. In
accordance with the Regulations of the Company and the OGCL, the
Company may purchase and maintain a policy or policies of
directors’ and officers’ liability insurance covering
certain liabilities that may be incurred by its directors in the
performance of their obligations to the Company.
D. The
Company recognizes that capable and qualified individuals are
becoming increasingly reluctant to serve as directors of public
corporations as a result of the recent and ongoing enactment of
statutes and regulations pertaining to directors’
responsibilities and the increasing risk of lawsuits against
directors in the current corporate climate in the United States,
unless such individuals are provided with more certain and secure
protection against exposure to unreasonable personal risk arising
from their service and activities on behalf of a
corporation.
E. The
Company believes that individuals recruited to serve on the boards
of public corporations generally are more likely to agree to
provide services to corporations that provide for separate
indemnification agreements with their directors because, unlike
indemnification provisions contained in the articles of
incorporation or the regulations of a corporation or state
statutory provisions, the indemnification provisions contained in a
separate agreement may not be amended or rescinded without the
consent of the director who is a party to the agreement.
F. The
Company recognizes that it is in the best interests of the Company
and its shareholders to attract and retain capable and qualified
individuals to serve on its Board of Directors (the “
Board ”) and to enable such directors to exercise
their independent business judgment in their capacities as
directors without being affected by the threat of exposure to
unreasonable personal risk.
G. To induce
Indemnitee to serve and/or continue to serve as a director of the
Company, the Company desires Indemnitee to be indemnified and
advanced expenses as set forth herein.
Agreement
In consideration of
Indemnitee’s service as a director of the Company after the
date hereof, the Company and Indemnitee hereby agree as
follows:
1. Certain
Definitions. Capitalized
terms used but not otherwise defined in this Agreement shall have
the meanings set forth below:
“ Affiliate ” has
the meaning ascribed to such term in Rule 12b-2 of the General
Rules and Regulations promulgated under the Exchange Act (or any
successor rule thereto).
“ Change in Control
” shall be deemed to have occurred if either of the following
events occur:
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(a) Other
than as approved in advance by a three-fourths (3/4) vote of
the Whole Board [but only if a majority of the members of the Board
then in office and acting upon such matter shall be Continuing
Directors], a Business Combination (as such term is defined in
Article Seventh of the Company’s Amended Articles of
Incorporation as in effect on the date of this Agreement);
or
(b) During
any period of two consecutive years, individuals who at the
beginning of such period were members of the Board or thereafter
were appointed by the Board or nominated by the Board for election
by the Company’s shareholders by a three-fourths
(3/4) vote of the directors then still in office [but only if
a majority of the members of the Board then in office and acting
upon the matter either were directors at the beginning of the
period or were previously so appointed or elected], cease for any
reason to constitute a majority of the members of the
Board.
“ Continuing Director
” means any individual who was a member of the Board on the
date of this Agreement or thereafter elected by the shareholders of
the Company or appointed by the Board prior to the date as of which
a person becomes a Substantial Shareholder (as such term is defined
in Article Seventh of the Company’s Amended Articles of
Incorporation as in effect on the date of this Agreement) or an
individual designated (before his or her initial election or
appointment as a director) as a Continuing Director by a
three-fourths (3/4) vote of the Whole Board [but only if a
majority of the Whole Board shall then consist of Continuing
Directors].
“ Corporate Status
” means the fact that a person is or was a director of the
Company. A Proceeding shall be deemed to have been brought by
reason of a person’s “Corporate Status” if it is
brought because of the status described in the preceding sentence
or because of any action or inaction on the part of such person in
connection with such status.
“ Disinterested
Director ” means a director of the Company who is not and
was not a party to or threatened with a Proceeding in respect of
which indemnification is sought by Indemnitee.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended (or any
successor thereto).
“ Expenses ”
shall include all reasonable attorneys’ fees, disbursements
and retainers, court costs, transcript costs, fees of experts,
witness fees, travel and deposition costs, duplicating costs,
printing and binding costs, telephone charges, postage, delivery
service fees and all other disbursements or expenses of the types
customarily incurred in connection with (a) prosecuting,
defending, preparing to prosecute or defend, investigating,
settling or appealing a Proceeding (including the cost of any
appeal bond or its equivalent), (b) for purposes of
Section 2.1 only, being prepared to be a witness or otherwise
participating in a Proceeding or (c) enforcing a right under
this Agreement (including any right to indemnification or
advancement of expenses under this Agreement).
“ Independent Counsel
” means an attorney, or a firm having associated with it an
attorney, who neither currently is nor in the past five years has
been retained by or performed services for the Company or any
Subsidiary of the Company or any person to be indemnified by the
Company.
“ Proceeding ”
includes any threatened, pending or completed action, suit,
arbitration or other alternative dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual,
threatened or completed proceeding, whether civil, criminal,
administrative or investigative, in which Indemnitee was, is or
would be involved as a party or otherwise (including, without
limitation, as a witness) by reason of Indemnitee’s Corporate
Status, including one pending on or before the date of this
Agreement, but excluding (a) one initiated by Indemnitee
pursuant to Section 7 of this Agreement to enforce
Indemnitee’s rights under this Agreement unless such action
follows a Change in Control and (b) one in which the only
liability asserted is pursuant to Section 1701.95 of the OGCL.
For purposes of this definition, the term “threatened”
shall be deemed to include, but not be limited to,
Indemnitee’s good faith belief that a claim or other
assertion may lead to initiation of a Proceeding.
“ Reviewing Party
” means the person, persons or entity selected to make the
determination of the entitlement to indemnification pursuant to
Section 5 hereof.
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“ Subsidiary ”
has the meaning ascribed to such term in Rule 12b-2 of the General
Rules and Regulations promulgated under the Exchange Act (or any
successor rule thereto).
“ Whole Board ”
means the total number of directors which the Company would have if
there were no vacancies.
2. Indemnification.
2.1 Proceedings not by or
in Right of Company. The
Company hereby agrees to hold harmless and indemnify Indemnitee to
the greatest extent permitted by Ohio law, including but not
limited to the provisions of the OGCL as such may be amended from
time to time, if Indemnitee was or is a party, witness or other
participant, or is threatened to be made a party, witness or other
participant, to any Proceeding, other than a Proceeding by or in
the right of the Company, against all Expenses, judgments, fines
and amounts paid in settlement actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection with such
Proceeding, if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company and, with respect to any criminal
Proceeding, had no reasonable cause to believe that
Indemnitee’s conduct was unlawful. The termination of any
Proceeding by judgment, order, settlement or conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that Indemnitee did not satisfy the foregoing
standard of conduct to the extent applicable thereto.
2.2 Proceedings by or in
Right of Company. The
Company hereby agrees to hold harmless and indemnify Indemnitee to
the greatest extent permitted by Ohio law, including but not
limited to the provisions of the OGCL as such may be amended from
time to time, if Indemnitee was or is a party or is threatened to
be made a party to any Proceeding by or in the right of the
Company, against all Expenses actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection with the
defense or settlement of such Proceeding, if Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in
or not opposed to the best interests of the Company;
provided , however , that , if applicable law
so provides, no indemnification against such Expenses shall be paid
in respect of (a) any claim, issue or matter asserted in a
Proceeding by or in the right of the Company as to which Indemnitee
shall have been adjudged to be liable to the Company for an act or
omission undertaken by Indemnitee in Indemnitee’s capacity as
a director of the Company with deliberate intent to cause injury to
the Company or with reckless disregard for the best interests of
the Company, or (b) any Proceeding by or in the right of the
Company in which the only liability is asserted pursuant to
Section 1701.95 of the OGCL against Indemnitee, in each case,
unless and only to the extent that the Franklin County Court of
Common Pleas of the State of Ohio or the court of competent
jurisdiction in which such Proceeding is brought shall determine,
upon application of either Indemnitee or the Company, that, despite
the adjudication or assertion of such liability, and in view of all
the circumstances of the case, Indemnitee is fairly and reasonably
entitled to such indemnity as such court shall deem
proper.
2.3 Indemnification for
Expenses of an Indemnitee who is Wholly or Partly
Successful. To the extent
that Indemnitee has been successful on the merits or otherwise in
defense of any Proceeding referred to in Section 2.1 or
Section 2.2 of this Agreement, or in defense of any claim,
issue or matter in such Proceeding, Indemnitee shall be indemnified
against Expenses actually and reasonably incurred by Indemnitee or
on Indemnitee’s behalf in connection with such
Proceeding.
3. Advancement of
Expenses.
3.1 Pre-Disposition
Advancement. The Company
shall advance all Expenses incurred by or on behalf of Indemnitee
in connection with any Proceeding prior to the final disposition of
such Proceeding upon receipt of an undertaking by or on behalf of
Indemnitee in which Indemnitee agrees to do both of the following:
(a) repay such amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that
Indemnitee’s action or failure to act involved an act or
omission undertaken with deliberate intent to cause injury to the
Company or undertaken with reckless disregard for the best
interests of the Company; and (b) reasonably cooperate with
the Company concerning the Proceeding. Any advances and
undertakings to repay pursuant to this Section 3.1 shall not
be secured, shall not bear interest and shall provide that, if
Indemnitee has commenced or thereafter commences legal proceedings
in a court of competent jurisdiction to secure a determination that
Indemnitee should be indemnified under applicable law with respect
to such Proceeding, Indemnitee shall not be
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required to reimburse the Company for any
advancement of Expenses in respect of such Proceeding until a final
judicial determination is made with respect thereto (as to which
all rights of appeal therefrom have been exhausted or
lapsed).
3.2 Request for
Advancement. Any
advancement of Expenses pursuant to Section 3.1 hereof shall
be made within 30 days after the receipt by the Company of a
written statement from Indemnitee requesting such advancement from
time to time and accompanied by or preceded by the undertaking
referred to in Section 3.1 above. Each statement requesting
advancement shall reasonably evidence the Expenses incurred by or
on behalf of Indemnitee in connection with such Proceeding for
which advancement is being sought.
4. Contribution in the
Event of Joint Liability. To the fullest extent authorized or permitted
under applicable law, if the indemnification provided in this
Agreement is not available, for any reason whatsoever, then, in
respect of any Proceeding in which the Company is jointly liable
with Indemnitee (or would be if joined in such Proceeding), the
Company shall contribute to the amount of Expenses, judgments,
fines and amounts paid in settlement actually and reasonably
incurred and paid or payable by Indemnitee in proportion to the
relative benefits received by the Company, on the one hand, and
Indemnitee, on the other hand, from the transaction from which such
Proceeding arose; provided , however , that
the proportion determined on the basis of relative benefit may, to
the extent necessary to conform to applicable law, be further
adjusted by reference to the relative fault of the Company, on the
one hand, and Indemnitee, on the other hand, in connection with the
events that resulted in such Expenses, judgments, fines or
settlement amounts, as well as any other equitable considerations
that applicable law may require to be considered. The relative
fault of the Company, on the one hand, and Indemnitee, on the other
hand, shall be determined by reference to, among other things, the
degree to which their actions were motivated by intent to gain
personal profit or advantage, the degree to which their liability
is primary or secondary, and the degree to which their conduct is
active or passive.
5. Procedures and
Presumptions for Determination of Entitlement to
Indemnification.
5.1 Timing
of Payments. All payments
of Expenses, judgments, fines, amounts paid in settlement and other
amounts by the Company to Indemnitee pursuant to this Agreement
shall be made as soon as practicable after written demand therefor
by Indemnitee is presented to the Company, but in no event later
than (a) 30 days after such demand is presented or
(b) such later date as may be permitted for the determination
of entitlement to indemnification pursuant to Section 5.7
hereof, if applicable; provided , however ,
that advances of Expenses shall be made within the time
period provided in Section 3.2 hereof.
5.2 Request for
Indemnification. Whenever
Indemnitee believes that Indemnitee is entitled to indemnification
pursuant to this Agreement, Indemnitee shall submit to the Company
a written request, including therein or therewith such
documentation and information as is reasonably available to
Indemnitee and is reasonably necessary to determine whether and to
what extent Indemnitee is entitled to indemnification. Indemnitee
shall submit such claim for indemnification within a reasonable
time, not to exceed five years, after any judgment, order,
settlement, dismissal, arbitration award, conviction, acceptance of
a plea of nolo contendere (or its equivalent) or other full or
partial final determination or disposition of the Proceeding (with
the latest date of the occurrence of any such event to be
considered the commencement of the five-year period). The Secretary
of the Company shall, promptly upon receipt of such a request for
indemnification, advise the Board in writing that Indemnitee has
requested indemnification.
5.3 Reviewing
Party. Unless ordered by
a court, upon written request by Indemnitee for indemnification
pursuant to the first sentence of Section 5.2 hereof, to the
extent that Indemnitee’s entitlement to such indemnification
is governed by Section 2.1 or Section 2.2 of this
Agreement, a determination with respect to Indemnitee’s
entitlement thereto shall be made in the specific case as follows:
(a) if a Change in Control shall have occurred, as provided in
Section 12 of this Agreement; and (b) if a Change in
Control shall not have occurred, by one of the following methods:
(i) by a majority vote of a quorum consisting of directors who
are Disinterested Directors; or (ii) if such a quorum of
Disinterested Directors is not available or if a majority vote of a
quorum of Disinterested Directors so directs, in a written opinion
by Independent Counsel (designated for such purpose by the
Board).
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5.4 Determination by
Independent Counsel. If
the determination of entitlement to indemnification is to be made
by Independent Counsel pursuant to Section 5.3 hereof, the
Independent Counsel shall be selected as provided in this
Section 5.4. The Independent Counsel shall be selected by the
Board, and the Company shall promptly give written notice to
Indemnitee advising Indemnitee of the identity of the Independent
Counsel so selected. Indemnitee may, within ten days after such
written notice of selection shall have been given, deliver to the
Company a written objection to such selection; provided ,
however , that such objection may be asserted only on
the ground that the Independent Counsel so selected does not meet
the requirements of “Independent Counsel” as defined in
this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. Absent a proper
and timely objection, the person so selected shall act as
Independent Counsel. If a written objection is made and
substantiated, the Independent Counsel selected may not serve as
Independent Counsel unless and until such objection is withdrawn or
a court has ruled against such objection. If, within 30 days
after submission by Indemnitee of a written request for
indemnification pursuant to Section 5.2 hereof, no Independent
Counsel shall have been selected or an Independent Counsel shall
have been selected but an objection thereto shall have been
properly made and remained unresolved, either the Company or
Indemnitee may petition the Franklin County Court of Common Pleas
of the State of Ohio or other court of competent jurisdiction for
resolution of any objection that shall have been made by Indemnitee
to the selection of Independent Counsel and/or for the appointment
as Independent Counsel of a person selected by the court or such
other person as the court shall designate, and the
