Exhibit 10.33
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 officers 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 officers of the Company with respect to
indemnification of such officers.
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 officers 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 officers of public
corporations as a result of the recent and ongoing enactment of
statutes and regulations pertaining to officers’
responsibilities and the increasing risk of lawsuits against
officers 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 as officers of
public corporations generally are more likely to agree to provide
services to corporations that provide for separate indemnification
agreements with their officers 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not be amended or rescinded without the consent of the officer who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 as management of the Company and to enable
such officers to exercise their independent business judgment in
their capacities as officers without being affected by the threat
of exposure to unreasonable personal risk.
G. To induce
Indemnitee to serve and/or continue to serve as an officer 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 an officer 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).
“ Board ” means
the Board of Directors of the Company.
“ 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 an officer of the
Company or is or was serving at the request of the Company as a
director, trustee, officer, employee, agent, fiduciary, partner,
member or manager of another corporation, limited liability
company, partnership, joint venture, trust, employee benefit plan
or other enterprise. 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 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. 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
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 negligence or misconduct
in the performance of Indemnitee’s duty to the Company,
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 ultimately is determined that Indemnitee is not
entitled to be indemnified by 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 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).
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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).
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
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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 Co
