As filed with the Securities and Exchange Commission on May 10, 2000
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________________
U.S. AGGREGATES, INC.
(Exact name of registrant as specified in its charter)
__________________________________
Delaware 57-0990958
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
400 South El Camino Real, Suite 500 94402
San Mateo, California (Zip Code)
(Address of Principal Executive Offices)
U.S. AGGREGATES, INC. 1999 LONG TERM INCENTIVE PLAN
(Full Title of the Plan)
Michael J. Stone
Executive Vice President - Development,
Chief Financial Officer, Treasurer and Secretary
400 South El Camino Real, Suite 500
San Mateo, California 94402
(650) 685-4880
(Name, address including zip code, and telephone number, including area code, of
Agent for Service)
Copy to:
-------
Willard G. Fraumann, P.C.
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum Amount of
Title of securities to be Amount to be offering price per aggregate offering registration
registered registered share price fee
<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share 700,840 shares $ 19.375 (1) $ 13,578,775 $ 3,585
<FN>
(1) Estimated pursuant to Rule 457(h) solely for the purpose of calculating
the amount of the registration fee, based upon the average of the high and low
prices reported for the Shares on the New York Stock Exchange on May 5, 2000.
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10 PROSPECTUS
ITEM 1. PLAN INFORMATION.
The documents containing the information specified in Part I will be
delivered in accordance with Rule 428(b)(1) of the Securities Act of 1933, as
amended ("Securities Act"). Such documents are not required to be, and are not,
filed with the Securities and Exchange Commission ("Commission") either as part
of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424. These documents, and the documents incorporated by
reference in this Registration Statement pursuant to Item 3 of Part II of this
Form S-8, taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in the Section 10(a) Prospectus), other documents
required to be delivered to eligible employees pursuant to Rule 428(b) or
additional information about the U.S. Aggregates, Inc. 1999 Long Term Incentive
Plan (the "Plan") are available without charge by contacting:
Michael J. Stone
Chief Financial Officer
U.S. Aggregates, Inc.
400 South El Camino Real, Suite 500
San Mateo, California 94402
(650) 685-4880
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by U.S. Aggregates, Inc.
(the "Registrant" or the "Corporation") with the Commission, are incorporated in
this Registration Statement by reference:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1999 (Registration No. 001-15217).
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2000 (Registration No. 001-15217).
(c) The description of the Registrant's common stock, par value $.01
per share (the "Common Stock"), as included under the caption "Description of
Capital Stock" in the Prospectus forming a part of the Registrant's Registration
Statement on Form S-1, initially filed with the Commission on May 25, 1999
(Registration No. 333-79209), including exhibits, and as may be subsequently
amended from time to time, which description has been incorporated by reference
in Item 1 of the Registrant's Registration Statement on Form 8-A, filed pursuant
to Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act") on
August 4, 1999 (Registration No. 001-15217).
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be part hereof from the
date of the filing of such documents.
Any statement contained in a document 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. Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Corporation is incorporated under the laws of the State of Delaware.
Section 145 of the General Corporation Law of the State of Delaware ("Section
145") provides that a Delaware corporation may indemnify any persons who are, or
are threatened to be made, parties to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation), by
reason of the fact that such person is or was an officer, director, employee or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation or
enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding, provided such
person acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the corporation's best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his or
her conduct was illegal. A Delaware corporation may indemnify any persons who
are, or are threatened to be made, a party to any threatened, pending or
completed action or suit by or in the right of the corporation by reason of the
fact that such person was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit, provided such
person acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the corporation's best interests except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred
-3-
<PAGE>
to above, the corporation must indemnify him or her against the expenses which
such officer or director has actually and reasonably incurred.
Section 145 further provides that the indemnification provisions of Section
145 shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office. The certificate of incorporation of the Corporation provides that, to
the fullest extent permitted by the General Corporation Law of the State of
Delaware, no director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages arising from a breach of fiduciary duty
owed to the corporation of its stockholders.
Article V of the by-laws of the Corporation provides that any person who
was or is a party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative by reason of the fact that he or she is or was a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, fiduciary or agent of another
corporation or of a partnership, joint venture, trust or other enterprise
including service capacity as a director, officer, employee, fiduciary or agent
or in any other capacity while serving as a director, officer, employee,
fiduciary or agent, shall be indemnified and held harmless by the corporation to
the fullest extent to which it is empowered to do so unless prohibited from
doing so by the General Corporation Law of the State of Delaware, as may be
amended against all expense, liability and loss (including attorneys' fees
actually and reasonably incurred by such person in connection with such
proceeding) and such indemnification shall continue as to an indemnitee who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators, provided that,
such person shall be indemnified only (subject to certain limited exceptions) in
connection with a proceeding initiated by such person only if such proceeding
was authorized by the board of directors of the corporation. The right to
indemnification of such person shall be a contract right and shall include the
right to be paid expenses incurred in defending any proceeding in advance of its
final disposition.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him or her and incurred by him or her in
any such capacity, arising out of his or her status as such, whether or not the
corporation would otherwise have the power to indemnify him or her under Section
145.
Article V of the by-laws of the Corporation further provides that the
Corporation may purchase and maintain insurance on its own behalf and on behalf
of any person who is or was a director, officer, employee, fiduciary or agent of
the Corporation or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against any liability asserted against him or her and
incurred by him or her in any such capacity, whether or not the corporation
would have the power to indemnify such person against such liability under
Article V of its by-laws. All of the directors and officers of the Corporation
are covered by insurance policies maintained and held in effect by the
Corporation against certain liabilities for actions taken in such capacities,
including liabilities under the Securities Act of 1933.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
ITEM 8. EXHIBITS. An Exhibit Index is located at page 7.
<TABLE>
<CAPTION>
Number Description
- ------ -----------
<C> <S>
4.1 Form of certificate representing shares of Common Stock, par value $.01 per share, incorporated by
reference to Exhibit 4.1 of the Corporation Registration Statement on Form S-1 (Registration No.
333-79209).
4.2 Restated Certificate of Incorporation of the Corporation, incorporated by reference to Exhibit 3.1(vi)
of the Corporation's Registration Statement on Form S-1 (Registration No. 333-79209).
4.3 Restated Bylaws of the Corporation, incorporated by reference to Exhibit 3.2(ii) of the Corporation's
Registration Statement on Form S-1 (Registration No. 333-79209).
4.4 U.S. Aggregates, Inc. 1999 Long Term Incentive Plan, incorporated by reference to Exhibit 10.49
of the Corporation's Registration Statement on Form S-1 (Registration No. 333-79209).
-4-
<PAGE>
5.1 Opinion of Kirkland & Ellis with respect to the legality of the shares of the Common Stock being
registered hereby.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Kirkland & Ellis (included in Exhibit 5.1).
24.1 Powers of Attorney of Directors and Officers of the Corporation (included on signature page).
</TABLE>
ITEM 9. UNDERTAKINGS.
(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; (ii) to reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or 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; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) 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 Exchange Act that are incorporated by reference in
the Registration Statement; (2) that, for the purpose of determining any
liability under the Securities Act, 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; and (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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
-5-
<PAGE>
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 San Mateo, State of California, on May 10, 2000.
U.S. AGGREGATES, INC.
By /s/ Michael J. Stone
-------------------------------
Michael J. Stone
Executive Vice President - Development, Chief
Financial Officer, Secretary and Treasurer
POWER OF ATTORNEY
KNOW ALL MEM BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints James A. Harris, Morris L. Bishop, Jr. and
Michael J. Stone and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities which such person serves or may
serve with respect to U.S. Aggregates, Inc., to sign any or all amendments to
this registration statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their,
his or her substitutes, may lawfully do or cause to be done by virtue hereto.
*****
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on May 10, 2000.
Signature Title
- --------- -----
/s/ James A. Harris Chief Executive Officer and Chairman of the Board
- -------------------------- (principal executive officer)
James A. Harris
/s/ Michael J. Stone Executive Vice President, Chief Financial Officer
- -------------------------- and Director
Michael J. Stone (principal financial and accounting officer)
/s/ Morris L. Bishop, Jr. President, Chief Operating Officer and Director
- --------------------------
Morris L. Bishop, Jr.
/s/ Bruce V. Rauner Director
- --------------------------
Bruce V. Rauner
/s/ David A. Donnini Director
- --------------------------
David A. Donnini
/s/ Charles R. Pullin Director
- --------------------------
Charles R. Pullin
/s/ Edward A. Dougherty Director
- --------------------------
Edward A. Dougherty
/s/ Raymond R. Wingard Director
- --------------------------
Raymond R. Wingard
/s/ Franz L. Cristiani Director
- --------------------------
Franz L. Cristiani
-6-
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
<C> <S>
4.1 Form of certificate representing shares of Common Stock, par value $.01 per share, incorporated by
reference to Exhibit 4.1 of the Corporation Registration Statement on Form S-1 (Registration No.
333-79209).
4.2 Restated Certificate of Incorporation of the Corporation, incorporated by reference to Exhibit 3.1(vi)
of the Corporation's Registration Statement on Form S-1 (Registration No. 333-79209).
4.3 Restated Bylaws of the Corporation, incorporated by reference to Exhibit 3.2(ii) of the Corporation's
Registration Statement on Form S-1 (Registration No. 333-79209).
4.4 U.S. Aggregates, Inc. 1999 Long Term Incentive Plan, incorporated by reference to Exhibit 10.49
of the Corporation's Registration Statement on Form S-1 (Registration No. 333-79209).
5.1 Opinion of Kirkland & Ellis with respect to the legality of the shares of the Common Stock being
registered hereby.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Kirkland & Ellis (included in Exhibit 5.1).
24.1 Powers of Attorney of Directors and Officers of the Corporation (included on signature page).
</TABLE>
-7-
<PAGE>
KIRKLAND & ELLIS
PARTNERSHIPS INCLUDING PROFESSIONAL CORPORATIONS
200 East Randolph Drive
Chicago, Illinois 60601 EXHIBIT 5.1
To Call Writer Direct: 312 861-2000 Facsimile:
312 861-2000 312 861-2200
May 10, 2000
U.S. Aggregates, Inc.
400 South Camino Real, Suite 500
San Mateo, California 94402
Re: Registration Statement on Form S-8
--------------------------------------
Ladies and Gentlemen:
We are acting as special counsel to U.S. Aggregates, Inc., a Delaware
corporation (the "Company"), in connection with the proposed registration by the
Company of 700,840 shares (the "Shares") of its Common Stock, par value $0.01
per share (the "Common Stock"), pursuant to a Registration Statement on Form
S-8, filed with the Securities and Exchange Commission (the "Commission") on the
date hereof under the Securities Act of 1933, as amended (the "Act") (such
Registration Statement, as amended or supplemented, is hereinafter referred to
as the "Registration Statement"). The Shares are to be issued by the Company to
certain directors and employees of the Company pursuant to the Company's 1999
Long Term Incentive Plan (the "Plan").
In that connection, we have examined such corporate proceedings, documents,
records and matters of law as we have deemed necessary to enable us to render
this opinion.
For purposes of this opinion, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as copies and the authenticity of the originals of all
documents submitted to us as copies. We have also assumed the legal capacity of
all natural persons, the genuineness of the signatures of persons signing all
documents in connection with which this opinion is rendered, the authority of
such persons signing on behalf of the parties thereto other than the Company and
the due authorization, execution and delivery of all documents by the parties
thereto other than the Company. As to any facts material to the opinions
expressed herein, we have relied upon the statements and representations of
officers and other representations of the Company and others.
Our opinion expressed below is subject to the qualifications that we
express no opinion as to the applicability of, compliance with, or effect of (i)
any bankruptcy, insolvency, reorganization,
<PAGE>
fraudulent transfer, fraudulent conveyance, moratorium or other similar law
affecting the enforcement of creditors' rights generally; (ii) general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law); (iii) public policy considerations which may
limit the rights of parties to obtain certain remedies; and (iv) any laws except
the internal laws of the State of Illinois, the General Corporation Law of the
State of Delaware and the federal law of the United States of America.
Based upon and subject to the foregoing qualifications, assumptions and
limitations and the further limitations set forth below, we hereby advise you
that in our opinion:
(1) The Plan has been duly adopted by the Board of Directors and
approved by the stockholders of the Company.
(2) The Shares are duly authorized and validly reserved for issuance
pursuant to the Plan and, when: (i) the Registration Statement becomes
effective under the Act; (ii) the Shares are issued in accordance with the terms
of the Plan; (iii) the recipient provides the full consideration for such Shares
as required by the terms of the Plan (assuming in each case the consideration
received by the Company is at least equal to $0.01 per share); and (iv)
certificates representing the Shares have been duly executed and delivered on
behalf of the Company and duly countersigned by the Company's transfer
agent/registrar, the Shares will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement. In giving this consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Act or the rules and regulations of the Commission.
We do not find it necessary for the purposes of this opinion, and
accordingly we do not purport to cover herein, the application of the securities
or "Blue Sky" laws of the various states to the issuance and sale of the Shares.
This opinion is limited to the specific issues addressed herein, and no
opinion may be inferred or implied beyond that expressly stated herein. We
assume no obligation to revise or supplement this opinion should the present
laws of the States of Illinois or Delaware or the federal law of the United
States be changed by legislative action, judicial decision or otherwise.
<PAGE>
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose.
Very truly yours,
/s/ Kirkland & Ellis
KIRKLAND & ELLIS
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated February 3, 2000
included in U.S. Aggregates, Inc. and Subsidiaries Form 10-K for the year ended
December 31, 1999 and to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Arthur Andersen LLP
San Francisco, California
May 8, 2000
