<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 16, 1998
REGISTRATION NO. 333-47961
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------
OWENS CORNING
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 34-4323452
(I.R.S EMPLOYER IDENTIFICATION NO.)
(STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION)
ONE OWENS CORNING PARKWAY
TOLEDO, OHIO 43659
(419) 248-8000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
PRINCIPAL EXECUTIVE OFFICES)
---------------
MAURA J. ABELN, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
OWENS CORNING
ONE OWENS CORNING PARKWAY
TOLEDO, OHIO 43659
(419) 248-8000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE OF REGISTRANT)
---------------
PLEASE SEND COPIES OF ALL COMMUNICATIONS TO:
DANIELLE CARBONE
SHEARMAN & STERLING
599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
(212) 848-4000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective depending upon
market conditions and other factors.
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If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the
following box: [_]
If any of the securities being registered on this Form are being offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<S> <C> <C> <C> <C>
TITLE OF EACH
CLASS OF SE- PROPOSED MAXIMUM
CURITIES AGGREGATE
TO BE REGIS- AMOUNT OFFERING PRICE MAXIMUM AMOUNT OF
TERED TO BE REGISTERED PER UNIT(1) OFFERING REGISTRATION FEE
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Debt Securi-
ties........ $1,000,000,000 100% $1,000,000,000 $295,000
</TABLE>
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(1) Estimated for the sole purpose of computing the registration fee pursuant
to Rule 457 of the General Rules and Regulations under the Securities Act
of 1933. Or, if any Debt Securities are issued at an original issue
discount, such greater principal amount as shall result in proceeds to the
Registrant of $1,000,000,000.
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
BECOMES EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion dated April 16, 1998
U.S. $1,000,000,000
OWENS CORNING
DEBT SECURITIES
-----------
Owens Corning (the "Company") may from time to time offer its unsecured debt
securities consisting of notes, debentures or other evidences of indebtedness
(the "Debt Securities") which may be issued in one or more series or issuances
and will be limited to U.S. $1,000,000,000 aggregate public offering price (or
such greater amount if issued at an original issue discount, as shall result in
aggregate proceeds of U.S. $1,000,000,000). Certain specific terms of the
particular series of Debt Securities in respect of which this Prospectus is
being delivered are set forth in the accompanying Prospectus Supplement (the
"Prospectus Supplement"), including the specific designation, the aggregate
principal amount, the denomination, the maturity, the premium, if any, the
interest rate (which may be fixed, floating or adjustable rate), if any, the
method of calculating payment of interest, if any, the place or places where
principal of, and premium, if any, and interest, if any, on, such Debt
Securities will be payable, any terms of redemption at the option of the
Company or of the holder, any sinking fund provisions, the initial public
offering price and other specific terms. Unless otherwise specified in a
Prospectus Supplement, the Debt Securities, when issued, will be unsecured and
will rank equally with all other unsecured and unsubordinated indebtedness of
the Company.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------
The Company may sell the Debt Securities to or through underwriters, through
dealers or agents, directly to purchasers or through a combination of such
methods. See "Plan of Distribution". The accompanying Prospectus Supplement
sets forth the names of any underwriters, dealers or agents, if any, involved
in the sale of the Debt Securities in respect of which this Prospectus is being
delivered and any applicable fee, commission or discount arrangements with
them.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF DEBT SECURITIES UNLESS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
-----------
The date of this Prospectus is April , 1998.
<PAGE>
No dealer, salesperson or other person has been authorized to give any
information or make any representations, other than those contained or
incorporated by reference in this Prospectus and the applicable Prospectus
Supplement, and if given or made such information or representations must not
be relied upon as having been authorized by the Company or any agent,
underwriter or dealer. This Prospectus and the applicable Prospectus
Supplement do not constitute an offer of any securities other than those to
which they relate, or an offer to sell or a solicitation of an offer to buy
those to which they relate in any jurisdiction to any person to whom it is
unlawful to make such offer or solicitation in such jurisdiction. The delivery
of this Prospectus and/or the applicable Prospectus Supplement at any time
does not imply that the information herein or therein is correct as of any
time subsequent to its date.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company with the Commission can
be inspected and copied at the public reference facilities of the Commission
at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
regional offices of the Commission located at 7 World Trade Center, 13th
Floor, Suite 1300, New York, New York 10048 and Suite 1400, Citicorp Center,
14th Floor, 500 West Madison Street, Chicago, Illinois 60661. Copies of such
material can also be obtained at prescribed rates by writing to the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549. The Commission also maintains a site on the world wide web at
http://www.sec.gov that contains reports, proxy and information statements and
other information filed electronically by the Company. In addition, such
reports, proxy statements and other information may be inspected at the
offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005, upon which the common stock of the Company is traded.
This Prospectus constitutes a part of a registration statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Company with the Commission under the Securities Act
of 1933, as amended (the "Securities Act"). This Prospectus and any
accompanying Prospectus Supplement do not contain all of the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information with respect to the Company and the Debt Securities offered
hereby, reference is made to the Registration Statement and the exhibits and
the financial statements, notes and schedules filed as a part thereof or
incorporated by reference therein, which may be inspected at the public
reference facilities of the Commission, at the addresses set forth above.
Statements made in this Prospectus and any Prospectus Supplement concerning
the contents of any documents referred to herein are not necessarily complete,
and in each instance are qualified in all respects by reference to the copy of
such document filed as an exhibit to the Registration Statement or otherwise
filed with the Commission.
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<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following document filed by the Company with the Commission pursuant to
the Exchange Act is incorporated herein by reference:
(1) the Company's Annual Report on Form 10-K (File No. 1-3660) for the
fiscal year ended December 31, 1997, filed on March 13, 1998 (the "1997 Form
10-K").
(2) the Company's Current Reports on Form 8-K, filed on January 9, 1998 and
on April 16, 1998.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof
and prior to the termination of the offering of the Debt Securities shall
hereby be deemed to be incorporated by reference into this Prospectus and to
be a part of this Prospectus from the date of filing of such documents. 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 Prospectus to the extent
that any statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein or
in any accompanying Prospectus Supplement modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of the Registration
Statement or this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents described above and incorporated by reference
herein (not including the exhibits to such documents, unless such exhibits are
specifically incorporated by reference in such documents). Written or
telephone requests should be directed to: Owens Corning, One Owens Corning
Parkway, Toledo, Ohio 43659, Attention: Secretary's Office (telephone: (419)
248-8000).
3
<PAGE>
THE COMPANY
Owens Corning, a global company incorporated in Delaware in 1938, serves
consumers and industrial customers with high-performance glass composites and
building materials systems. These products are used in industries such as home
improvement, new construction, transportation, marine, aerospace, energy,
appliance, packaging and electronics. Many of these products are marketed
under the trademark FIBERGLAS(R) and/or the color PINK trademark. The Company
operates in two industry segments--Building Materials and Composite Materials.
Owens Corning acquired Fibreboard Corporation and AmeriMark Building Products,
Inc. in 1997, making Owens Corning the leader in the U.S. vinyl siding, siding
accessories and cast stone markets, as well as providing the Company with a
large network of company-owned specialty distribution centers. These
operations are included in the Building Materials segment. The Company also
has affiliate companies in a number of countries.
The Company's principal executive offices are located at Owens Corning World
Headquarters, Toledo, Ohio 43659, and its telephone number is (419) 248-8000.
Unless the context indicates otherwise, references in this Prospectus to the
"Company" include Owens Corning and its consolidated subsidiaries.
USE OF PROCEEDS
Except as set forth in a Prospectus Supplement, the Company intends to use
the net proceeds from the sale of the Debt Securities for general corporate
purposes, including, without limitation, working capital, capital
expenditures, investments in or loans to subsidiaries, repurchases or
redemptions of the Company's outstanding debt securities or other reductions
of the Company's outstanding borrowings, possible future business
acquisitions, the satisfaction of other obligations or for such other purposes
as may be specified in the applicable Prospectus Supplement.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an Indenture (as amended or
supplemented from time to time, the "Indenture") between the Company and The
Bank of New York, as Trustee (the "Trustee"), a copy of which is filed as an
exhibit to the Registration Statement. The statements herein relating to the
Debt Securities and the following summaries of certain provisions of the
Indenture do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, all the provisions of the Indenture,
including the definitions therein of certain terms, and the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"). Wherever particular
sections or defined terms of the Indenture are referred to in this section or
in a Prospectus Supplement, such sections or defined terms are incorporated
herein or therein by reference.
The following sets forth certain general terms and provisions of the Debt
Securities offered hereby. The particular terms of the Debt Securities offered
by any Prospectus Supplement (the "Offered Debt Securities") will be described
in the Prospectus Supplement relating to such Offered Debt Securities (the
"Applicable Prospectus Supplement").
CERTAIN DEFINITIONS
"Attributable Debt" will be defined to mean the total net amount of rent
(discounted at the rate of 12% per annum compounded semiannually) required to
be paid under a lease during the remaining term of such lease.
"Consolidated Net Tangible Assets" will be defined as the aggregate amount
of assets after deducting therefrom (a) all current liabilities (excluding any
thereof constituting Funded Debt by reason of being renewable or extendable)
and (b) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles, all as set forth on the most
recent balance sheet of the Company and its consolidated subsidiaries and
computed in accordance with generally accepted accounting principles.
"Debt" will be defined as notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed.
4
<PAGE>
"Funded Debt" will be defined as all indebtedness for money borrowed, or
evidenced by a bond, debenture, note or similar instrument or agreement
whether or not for money borrowed, having a maturity of more than 12 months
from the date as of which the amount thereof is to be determined or having a
maturity of less than 12 months but by its terms being renewable or extendable
beyond 12 months from such date at the option of the borrower.
"Mortgage" will be defined as any pledge, mortgage or other lien.
"Principal Property" will be defined as any facility (together with the land
upon which it is erected and fixtures comprising a part thereof) used
primarily for manufacturing, processing or warehousing, located in the United
States, and having a gross book value as of the date of determination thereof
in excess of 1% of Consolidated Net Tangible Assets, other than any such
facility or portion thereof (i) which is financed by means of industrial
revenue bonds or (ii) which, in the opinion of the Board of Directors of the
Company, is not of material importance to the total business conducted by the
Company and its Subsidiaries as an entirety.
"Restricted Subsidiary" will be defined as a Subsidiary of the Company which
owns any Principal Property.
"Subsidiary" will be defined as a corporation at least a majority of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company and/or one or more Subsidiaries of the Company.
GENERAL
The Indenture does not limit the amount of Debt Securities that may be
issued thereunder and Debt Securities may be issued thereunder from time to
time in one or more series. The Debt Securities will be unsecured and
unsubordinated obligations of the Company and will rank equally and ratably
with other unsecured and unsubordinated obligations of the Company.
Unless otherwise indicated in the Applicable Prospectus Supplement,
principal of, premium, if any, and interest on the Debt Securities will be
payable, and the transfer of Debt Securities will be registrable, at the
office or agency to be maintained by the Company in The City of New York and
at any other office or agency maintained by the Company for such purpose.
(Sections 301, 305 and 1002) The Debt Securities will be issued only in fully
registered form without coupons and, unless otherwise indicated in the
Applicable Prospectus Supplement, in denominations of $1,000 or integral
multiples thereof. (Section 302) No service charge will be made for any
registration of transfer or exchange of the Debt Securities, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
change imposed in connection therewith. (Section 305)
The Applicable Prospectus Supplement will describe the terms of the Offered
Debt Securities, including: (1) the title of the Offered Debt Securities; (2)
any limit on the aggregate principal amount of the Offered Debt Securities;
(3) the person or entity to whom any interest on the Offered Debt Securities
shall be payable, if other than the person or entity in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, (4) the date or dates
on which the principal of and premium, if any, on the Offered Debt Securities
is payable or the method of determination thereof; (5) the rate or rates at
which the Offered Debt Securities shall bear interest, if any, the date or
dates from which any such interest shall accrue or the method by which such
date or dates shall be determined, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record Date for interest
payable on any Interest Payment Date; (6) the place or places where the
principal of, premium, if any, and interest on the Offered Debt Securities
shall be payable; (7) the period or periods within which, the price or prices
at which, the currency or currencies (including currency units) in which and
the other terms and conditions upon which the Offered Debt Securities may be
redeemed, in whole or in part, at the option of the Company, (8) the
obligation, if any, of the Company to redeem or purchase the Offered Debt
Securities pursuant to any sinking fund or analogous provisions or at the
option of a holder thereof and the period or periods within which, the price
or prices at which
5
<PAGE>
and the other terms and conditions upon which the Offered Debt Securities
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation; (9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which the Offered Debt Securities shall
be issuable; (10) the currency, currencies or currency units in which payment
of the principal of and any premium and interest on any Offered Debt
Securities shall be payable if other than the currency of the United States of
America; (11) if the amount of payments of principal of or any premium or
interest on any Offered Debt Securities may be determined with reference to an
index, formula or other method, the index, formula or other method by which
such amounts shall be determined; (12) if the principal of or any premium or
interest on any Offered Debt Securities is to be payable, at the election of
the Company or a holder thereof, in one or more currencies or currency units
other than that or those in which the Debt Securities are stated to be
payable, the currency, currencies or currency units in which payment of the
principal of and any premium and interest on the Offered Debt Securities as to
which such election is made shall be payable, and the periods within which and
the other terms and conditions upon which such election is to be made; (13) if
other than the principal amount thereof, the portion of the principal amount
of the Offered Debt Securities which shall be payable upon declaration of
acceleration of the maturity thereof or the method by which such portion may
be determined; (14) the applicability of the provisions described under "--
Defeasance of Offered Debt Securities or Certain Covenants in Certain
Circumstances"; (15) if the Offered Debt Securities will be issuable only in
the form of a Book Entry Security as described under "--Book Entry Debt
Securities", the Depositary or its nominee with respect to the Offered Debt
Securities and the circumstances under which the Book Entry Security may be
registered for transfer or exchange or authenticated and delivered in the name
of a person or entity other than the Depositary or its nominee; and (16) any
other terms of the Offered Debt Securities. The Company does not intend to
issue these Debt Securities in any currency other than U.S. dollars. (Section
301)
Debt Securities may be sold at a substantial discount below their stated
principal amount, bearing no interest or interest at a rate which at the time
of issuance is below market rates. Material U.S. federal income tax
consequences and special considerations applicable to any such Debt Securities
will be described in the Applicable Prospectus Supplement.
If any index is used to determine the amount of payments of principal of,
premium, if any, or interest, if any, on any series of Debt Securities,
material U.S. federal income tax, accounting and other considerations
applicable thereto will be described in the Applicable Prospectus Supplement.
BOOK ENTRY DEBT SECURITIES
The following description of Book Entry Securities will apply to any series
of Debt Securities except as otherwise provided in the Prospectus Supplement
relating thereto.
The Debt Securities of a series may be issued in the form of one or more
Book Entry Securities that will be deposited with or on behalf of a
Depositary, which will be a clearing agent registered under the Exchange Act.
Book Entry Securities will be registered in the name of the Depositary or a
nominee of the Depositary, will be deposited with such Depositary or nominee
or a custodian therefor and will bear a legend regarding the restrictions on
exchanges and registration of transfer thereof and any such other matters as
may be provided for pursuant to the Indenture. Unless and until it is
exchanged in whole or in part for Debt Securities in definitive certificated
form, a Book Entry Security may not be transferred or exchanged except as a
whole by the Depositary for such Book Entry Security to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor
Depositary, or except in the circumstances described in the Applicable
Prospectus Supplement. (Section 305)
Upon the issuance of any Book Entry Security, and the deposit of such Book
Entry Security with or on behalf of the Depositary for such Book Entry
Security, the Depositary will credit on its book-entry registration
6
<PAGE>
and transfer system the respective principal amounts of the Debt Securities
represented by such Book Entry Security to the accounts of institutions
("Participants") that have accounts with the Depositary. The accounts to be
credited will be designated by the underwriters or agents engaging in the
distribution of such Debt Securities or by the Company, if such Debt
Securities are offered and sold directly by the Company. Ownership of
beneficial interests in a Book Entry Security will be limited to Participants
or persons that may hold interests through Participants. Ownership of
beneficial interests in a Book Entry Security will be shown on, and the
transfer of that ownership will be effected only through, records maintained
by the Depositary for such Book Entry Security or by its nominee. Ownership of
beneficial interests in such Book Entry Security by persons who hold through
Participants will be shown on, and the transfer of such beneficial interests
within such Participants will be effected only through, records maintained by
such Participants. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of such securities in
definitive form. Such laws may impair the ability to transfer beneficial
interests in such a Book Entry Security.
So long as the Depositary for a Book Entry Security, or its nominee, is the
owner of such Book Entry Security, such Depositary or such nominee, as the
case may be, will be considered the sole owner or holder of the Debt Security
represented by such Book Entry Security for all purposes under the Indenture.
Accordingly, each person owning a beneficial interest in such Book Entry
Security must rely on the procedures of the Depositary and, if such person is
not a Participant, on the procedures of the Participant through which such
person owns its interest, to exercise any rights of a holder under such
Indenture. The Company understands that under existing industry practices, if
it requests any action of holders or if an owner of a beneficial interest in a
Book Entry Security desires to give or take any instruction or action which a
holder is entitled to give or take under the Indenture, the Depositary would
authorize the Participants holding the relevant beneficial interests to give
or take such instruction or action, and such Participants would authorize
beneficial owners owning through such Participants to give or take such
instruction or action or would otherwise act upon the instructions of
beneficial owners holding through them.
Unless otherwise specified in the Applicable Prospectus Supplement, payments
with respect to principal, premium, if any, and interest, if any, on the Debt
Securities represented by a Book Entry Security registered in the name of the
Depositary or its nominee will be made to such Depositary or its nominee, as
the case may be, as the registered owner of such Book Entry Security. The
Company expects that the Depositary for any Debt Securities represented by a
Book Entry Security, upon receipt of any payment of principal or interest in
respect of such Book Entry Security, will credit immediately Participants'
accounts with payments in amounts proportionate to their respective beneficial
interests in the Book Entry Security as shown on the records of the
Depositary. The Company also expects that payments by Participants to owners
of beneficial interests in such Book Entry Security held through such
Participants will be governed by standing instructions and customary
practices, as is now the case with securities in bearer form held for the
accounts of customers or registered in "street name", and will be the
responsibility of such Participants. None of the Company, the Trustee or any
agent of the Company or the Trustee shall have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial interests in any Book Entry Security, or for maintaining,
supervising or reviewing any records relating to such beneficial interests.
A Book Entry Security shall be exchangeable for Debt Securities in
certificated registered form, of like tenor and of an equal aggregate
principal amount, only if (a) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such Book Entry Security or
if at any time the Depositary ceases to be a clearing agency registered under
the Exchange Act, (b) the Company in its sole discretion determines that such
Book Entry Security shall be exchangeable for Debt Securities in certificated
registered form or (c) there shall have occurred and be continuing an Event of
Default with respect to the Debt Securities. Any Book Entry Security that is
exchangeable pursuant to the preceding sentence shall be exchangeable for Debt
Securities registered in the name or names of such person or persons as the
Depositary shall instruct the Trustee. It is expected that such instructions
may be based upon directions received by the Depositary from its participants
with respect to ownership of beneficial interests in such Book Entry Security.
7
<PAGE>
CERTAIN COVENANTS OF THE COMPANY
Restrictions on Secured Debt
If subsequent to the date of the initial issuance of the Debt Securities of
any series, the Company or any Subsidiary shall incur, issue, assume or
guarantee any Debt secured by a Mortgage on any Principal Property owned by
the Company or any Restricted Subsidiary or on any shares of stock or Debt of
any Restricted Subsidiary, the Company will secure, or cause such Subsidiary
to secure, such Debt Securities equally and ratably with (or prior to) such
secured Debt, unless after giving effect thereto the aggregate amount of all
such Debt so secured together with all Attributable Debt in respect of sale
and leaseback transactions involving Principal Properties owned by the Company
or a Restricted Subsidiary and otherwise prohibited by the Indenture would not
exceed 10% of the Consolidated Net Tangible Assets. This restriction will not
apply to, and therefore the following shall be excluded in computing secured
Debt for the purpose of such restriction: Debt secured by (a) Mortgages on
property of, or on any shares of stock or Debt of, any corporation existing at
the time such corporation becomes a Restricted Subsidiary, (b) Mortgages in
favor of the Company or any Restricted Subsidiary, (c) Mortgages in favor of
the United States of America, or any agency, department or other
instrumentality thereof, to secure progress, advance or other payments
pursuant to any contract or provision of any statute, (d) Mortgages on
property, shares of stock or Debt existing at the time of acquisition thereof
(including acquisition through merger or consolidation) and purchase money
Mortgages and construction cost Mortgages (including those incurred within 120
days following the purchase or completion of the property in question) and (e)
any extension, renewal or replacement of any Mortgage referred to in the
foregoing clauses (a) through (d) inclusive. The Indenture will not restrict
the incurring of unsecured Debt by the Company or its Subsidiaries.
Restrictions on Sales and Leasebacks
Neither the Company nor any Restricted Subsidiary may enter into any sale
and leaseback transaction involving any Principal Property owned by the
Company or any Restricted Subsidiary, the acquisition of which, or completion
of construction and commencement of full operation of which, has occurred more
than 120 days prior to such sale and leaseback transaction, unless (a) the
Company or such Restricted Subsidiary could create Debt secured by a Mortgage
on such property in accordance with the immediately preceding paragraph in an
amount equal to the Attributable Debt with respect to the sale and leaseback
transaction without equally and ratably securing the Outstanding Debt
Securities or (b) the Company, within 120 days after the sale or transfer of
such property, applies to the retirement of its Funded Debt an amount equal to
the greater of (i) the net proceeds of the sale of the Principal Property sold
and leased back pursuant to such arrangement or (ii) the fair market value of
the Principal Property so sold and leased back, subject to credits for certain
voluntary retirements of Funded Debt. This restriction will not apply to any
sale and leaseback transaction (a) between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries or (b) involving a lease for a
period of three years or less.
Unless otherwise indicated in the Applicable Prospectus Supplement, the
Indenture does not contain covenants specifically designed to protect holders
of Debt Securities in the event of a highly leveraged transaction,
restructuring, change in control, merger or similar transaction involving the
Company that may adversely affect holders of Debt Securities.
EVENTS OF DEFAULT
Any one of the following events will constitute an Event of Default under
the Indenture with respect to Debt Securities of any series: (a) failure to
pay any interest on any Debt Security of that series when due, continued for
30 days; (b) failure to pay principal of or any premium on any Debt Security
of that series when due; (c) failure to deposit any sinking fund payment, when
due, in respect of any Debt Security of that series; (d) failure to perform,
or breach of, any covenant or warranty of the Company in the Indenture with
respect to Debt Securities of that series continued for 60 days after written
notice as provided in the Indenture; (e) certain
8
<PAGE>
events of bankruptcy, insolvency or reorganization of the Company; or (f) any
other Event of Default provided with respect to Debt Securities of that
series. (Section 501)
If any Event of Default with respect to the Debt Securities of any series at
the time outstanding occurs and is continuing, either the Trustee or the
holders of at least 25% in aggregate principal amount of the Outstanding Debt
Securities of that series may declare the principal amount (or, if the Debt
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms thereof) of all the
Debt Securities of that series to be due and payable immediately. At any time
after a declaration of acceleration with respect to Debt Securities of any
series has been made, but before a judgment or decree based on acceleration
has been obtained, the holders of a majority in aggregate principal amount of
Outstanding Debt Securities of that series may, under certain circumstances,
rescind and annul such acceleration. (Section 502)
Reference is made to the Applicable Prospectus Supplement relating to any
series of Offered Debt Securities that are Original Issue Discount Securities
for the particular provisions relating to acceleration of the Stated Maturity
of a portion of the principal amount of such series of Original Issue Discount
Debt Securities upon the occurrence of an Event of Default and the
continuation thereof.
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under
no obligation to exercise any of its rights or powers under the Indenture at
the request or direction of any of the holders of Debt Securities, unless such
holders shall have offered to the Trustee reasonable indemnity. (Section 603)
Subject to such provisions for the indemnification of the Trustee and to
certain other conditions, the holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of any series will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Debt Securities of that series. (Section 512)
No holder of any series of Debt Securities will have any right to institute
any proceeding with respect to the Indenture or for any remedy thereunder,
unless such holder shall have previously given to the Trustee written notice
of a continuing Event of Default and unless the holders of at least 25% in
principal amount of the Outstanding Debt Securities of that series shall have
made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of that series a direction inconsistent with such
request and shall have failed to institute such proceeding within 60 days.
(Section 507) However, such limitations do not apply to a suit instituted by a
holder of a Debt Security for enforcement of payment of the principal of and
premium, if any, or interest on such Debt Security on or after the respective
due dates expressed in such Debt Security. (Section 508)
The Company is required to furnish to the Trustee annually a statement as to
the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance. (Section 1004)
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company and
the Trustee without the consent of the holders of any of the Debt Securities
in order (i) to evidence the succession of another entity to the Company and
the assumption of the covenants and obligations of the Company under the Debt
Securities and the Indenture by such successor to the Company; (ii) to add to
the covenants of the Company for the benefit of the holders of all or any
series of Debt Securities or surrender any right or power conferred on the
Company by the Indenture; (iii) to add additional Events of Default with
respect to any series of Debt Securities; (iv) to add to or change any
provisions to such extent as necessary to facilitate the issuance of Debt
Securities in bearer form or to facilitate the issuance of Book Entry
Securities; (v) to add to, change or eliminate any provision
9
<PAGE>
affecting only Debt Securities not yet issued; (vi) to secure the Debt
Securities; (vii) to establish the form or terms of Debt Securities of any
series; (viii) to evidence and provide for successor Trustees or to add or
change any provisions to such extent as necessary to provide for or facilitate
the appointment of a separate Trustee or Trustees for specific series of Debt
Securities; (ix) to permit payment in respect of Debt Securities in bearer
form in the United States to the extent allowed by law; (x) to cure any
ambiguity, to correct or supplement any mistaken or inconsistent provisions or
to make any other provisions with respect to matters or questions arising
under the Indenture, provided that any such action (other than in respect of a
mistaken provision) does not adversely affect in any material respect the
interests of any holder of Debt Securities of any series then outstanding.
(Section 901)
Modifications and amendments of the Indenture also may be made by the
Company and the Trustee with the consent of the holders of not less than a
majority in aggregate principal amount of the Outstanding Debt Securities of
each series issued under the Indenture and affected by the modification or
amendments; provided, however, that no such modification or amendment may,
without the consent of the Holders of all Debt Securities affected thereby,
(i) change the Stated Maturity of the principal amount of, or any installment
of principal of or interest on, any Debt Security; (ii) reduce the principal
amount of, or the premium, if any, or (except as otherwise provided in the
Applicable Prospectus Supplement) interest on, any Debt Security (including in
the case of an Original Issue Discount Security the amount payable upon
acceleration of the maturity thereof); (iii) change the place or currency of
payment of principal of, premium, if any, or interest on any Debt Security;
(iv) impair the right to institute suit for the enforcement of any payment on
any Debt Security on or after the Stated Maturity thereof (or in the case of
redemption, on or after the Redemption Date); or (v) reduce the percentage in
principal amount of Outstanding Debt Securities of any series, the consent of
whose holders is required for modification or amendment of the Indenture or
for waiver of compliance with certain provisions of the Indenture or for
waiver of certain defaults. (Section 902)
The holders of at least a majority in aggregate principal amount of the
Outstanding Debt Securities of any series may, on behalf of all holders of
Debt Securities of that series, waive compliance by the Company with certain
restrictive provisions of the Indenture. (Section 1010) The holders of not
less than a majority in aggregate principal amount of the Outstanding Debt
Securities of any series may, on behalf of all holders of Debt Securities of
that series, waive any past default under the Indenture, except a default in
the payment of principal, premium or interest or in respect of a covenant or
provision of the Indenture that cannot be modified or amended without the
consent of the holder of each Outstanding Debt Security of such series
affected thereby. (Section 513)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge with or into any other entity
or transfer or lease its assets substantially as an entirety to any entity,
unless (i) either the Company is the continuing corporation, or any successor
or purchaser is a corporation, partnership or trust organized under the laws
of the United States of America, any State thereof or the District of
Columbia, and any such successor or purchaser expressly assumes the Company's
obligations on the Debt Securities under a supplemental indenture, (ii)
immediately after giving effect to the transaction, no Event of Default, and
no event which, after notice or lapse of time or both, would become an Event
of Default, shall have occurred and be continuing, (iii) if properties or
assets of the Company become subject to a Mortgage not permitted by the
Indenture, the Company or such successor entity, as the case may be, takes
such steps as shall be necessary effectively to secure the Debt Securities
equally and ratably with (or prior to) all Debt secured thereby, and (iv) if a
supplemental indenture is to be executed in connection with such
consolidation, merger, transfer or lease, the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel stating compliance
with these provisions. (Section 801)
DEFEASANCE OF OFFERED DEBT SECURITIES OR CERTAIN COVENANTS IN CERTAIN
CIRCUMSTANCES
Defeasance and Discharge
The Indenture provides that the terms of any series of Debt Securities may
provide that the Company, at the Company's option, will be discharged from any
and all obligations in respect of the Debt Securities of such series
10
<PAGE>
(except for certain obligations to register the transfer or exchange of Debt
Securities of such series, to replace stolen, lost or mutilated Debt
Securities of such series, to maintain paying agencies and to hold moneys for
payment in trust) upon the deposit with the Trustee, in trust, of money and/or
U.S. Government Obligations which, through the payment of interest and
principal thereof in accordance with their terms, will provide money in an
amount sufficient to pay any installment of principal (and premium, if any)
and interest on, and any mandatory sinking fund payments in respect of, the
Debt Securities of such series on the stated maturity of such payments in
accordance with the terms of the Indenture and such Debt Securities. Such
discharge may only occur if, among other things, the Company has delivered to
the Trustee an opinion of counsel to the effect that the Company has received
from, or there has been published by, the United States Internal Revenue
Service a ruling, or there has been a change in tax law, in either case to the
effect that such discharge will not be deemed, or result in, a taxable event
with respect to holders of the Debt Securities of such series. (Sections 1302
and 1304)
Defeasance of Certain Covenants
The Indenture provides that the terms of any series of Debt Securities may
provide the Company with the option to omit to comply with certain restrictive
covenants described in this Prospectus under "--Certain Covenants of the
Company--Restrictions on Secured Debt", "--Certain Covenants of the Company--
Restrictions on Sales and Leasebacks" and "--Consolidation, Merger and Sale of
Assets". The Company, in order to exercise such option, will be required to
deposit with the Trustee money and/or U.S. Government Obligations which,
through the payment of interest and principal thereof in accordance with their
terms, will provide money in an amount sufficient to pay principal (and
premium, if any) and interest on, and any mandatory sinking fund payments in
respect of, the Debt Securities of such series on the stated maturity of such
payments in accordance with the terms of the Indenture and such Debt
Securities. The Company will also be required to deliver to the Trustee an
opinion of counsel to the effect that the deposit and related covenant
defeasance will not cause the holder of the Debt Securities of such series to
recognize income, gain or loss for federal income tax purposes. (Sections 1303
and 1304)
In the event the Company exercises this option and the Debt Securities of
such series are declared due and payable because of the occurrence of any
Event of Default, the amount of money and U.S. Government Obligations on
deposit with the Trustee will be sufficient to pay amounts due on the Debt
Securities of such series at the time of their stated maturity but may not be
sufficient to pay amounts due on the Debt Securities of such series at the
time of the acceleration resulting from such Event of Default. However, the
Company shall remain liable for such payments.
The Applicable Prospectus Supplement will state if any defeasance provision
will apply to the Offered Debt Securities.
CONCERNING THE TRUSTEE
The Bank of New York, a New York banking corporation, is the Trustee under
the Indenture and is also trustee under several other indentures with the
Company. The Company maintains banking and other business relationships in the
ordinary course of business with The Bank of New York. Pursuant to the
provisions of the Trust Indenture Act, upon the occurrence of certain events,
The Bank of New York may be deemed to have a conflicting interest, by virtue
of its acting as the Trustee under the Indenture, the several other indentures
and its other business relationships with the Company, thereby requiring it to
resign and be replaced by a successor trustee under any or all of the
Indenture or the several other indentures.
The Trustee may resign at any time or may be removed by the holders of at
least a majority in aggregate principal amount of the Outstanding Debt
Securities. If the Trustee resigns, is removed or becomes incapable of acting
as Trustee or if a vacancy occurs in the office of the Trustee for any cause,
a successor Trustee shall be appointed in accordance with the provisions of
the Indenture.
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<PAGE>
PLAN OF DISTRIBUTION
Any of the Debt Securities being offered hereby may be sold in any one or
more of the following ways from time to time: (i) through agents; (ii) to or
through underwriters; (iii) through dealers; and (iv) directly by the Company
to purchasers.
The distribution of the Debt Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
Offers to purchase Debt Securities may be solicited by agents designated by
the Company from time to time. Any such agent involved in the offer or sale of
the Debt Securities in respect of which this Prospectus is delivered will be
named, and any commissions payable by the Company to such agent will be set
forth, in the Applicable Prospectus Supplement. Unless otherwise indicated in
such Prospectus Supplement, any such agent will be acting on a reasonable best
efforts basis for the period of its appointment. Any such agent may be deemed
to be an underwriter, as that term is defined in the Securities Act, of the
Debt Securities so offered and sold.
If Debt Securities are sold by means of an underwritten offering, the
Company will execute an underwriting agreement with an underwriter or
underwriters at the time an agreement for such sale is reached, and the names
of the specific managing underwriter or underwriters, as well as any other
underwriters, the respective amounts underwritten and the terms of the
transaction, including commissions, discounts and any other compensation of
the underwriters and dealers, if any, will be set forth in the Applicable
Prospectus Supplement which will be used by the underwriters to make resales
of the Debt Securities in respect of which this Prospectus is being delivered
to the public. If underwriters are utilized in the sale of any Debt Securities
in respect of which this Prospectus is being delivered, such Debt Securities
will be acquired by the underwriters for their own account and may be resold
from time to time in one or more transactions, including negotiated
transactions, at fixed public offering prices or at varying prices determined
by the underwriters at the time of sale. Debt Securities may be offered to the
public either through underwriting syndicates represented by managing
underwriters or directly by one or more underwriters. If any underwriter or
underwriters are utilized in the sale of Debt Securities, unless otherwise
indicated in the Applicable Prospectus Supplement, the underwriting agreement
will provide that the obligations of the underwriters are subject to certain
conditions precedent and that the underwriters with respect to a sale of such
Debt Securities will be obligated to purchase all such Debt Securities if any
are purchased.
If a dealer is utilized in the sale of the Debt Securities in respect of
which this Prospectus is delivered, the Company will sell such Debt Securities
to the dealer as principal. The dealer may then resell such Debt Securities to
the public at varying prices to be determined by such dealer at the time of
resale. Any such dealer may be deemed to be an underwriter, as such term is
defined in the Securities Act, of the Debt Securities so offered and sold. The
name of the dealer and the terms of the transaction will be set forth in the
Prospectus Supplement relating thereto.
Offers to purchase Debt Securities may be solicited directly by the Company
and the sale thereof may be made by the Company directly to institutional
investors or others, who may be deemed to be underwriters within the meaning
of the Securities Act with respect to any resale thereof. The terms of any
such sales will be described in the Prospectus Supplement relating thereto.
If so indicated in the Applicable Prospectus Supplement, the Company may
authorize agents and underwriters to solicit offers by certain institutions to
purchase Debt Securities from the Company at the public offering price set
forth in the Applicable Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on the date or dates stated in
the Applicable Prospectus Supplement. Such delayed delivery contracts will be
subject to only those conditions set forth in the Applicable Prospectus
Supplement. A commission indicated in the Applicable Prospectus Supplement
will be paid to underwriters and agents soliciting purchases of Debt
Securities pursuant to delayed delivery contracts accepted by the Company.
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<PAGE>
Agents, underwriters and dealers may be entitled under relevant agreements
with the Company to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments which such agents, underwriters and
dealers may be required to make in respect thereof.
Each series of Debt Securities will be a new issue and will have no
established trading market. The Company may elect to list any series of Debt
Securities on an exchange but, unless otherwise specified in the Applicable
Prospectus Supplement, the Company shall not be obligated to do so. No
assurance can be given as to the liquidity of the trading market for any of
the Debt Securities.
Agents, underwriters and dealers may be customers of, engage in transactions
with, or perform services for, the Company and its subsidiaries in the
ordinary course of business.
LEGAL OPINIONS
Unless otherwise specified in a Prospectus Supplement relating to particular
Debt Securities, the validity of the Debt Securities offered hereby, will be
passed upon for the Company by Shearman & Sterling, New York, New York. The
validity of the Debt Securities offered hereby will be passed upon for the
underwriters, dealers or agents, if any, by counsel to be named in the
Applicable Prospectus Supplement.
EXPERTS
The financial statements and schedule incorporated in this Prospectus by
reference to the 1997 Form 10-K have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their report with respect
thereto, and are incorporated in this Prospectus by reference in reliance upon
the authority of said firm as experts in giving said reports.
The consolidated financial statements of the Company included in any
subsequent Annual Report of the Company on Form 10-K and incorporated by
reference in this Prospectus will have been examined by the independent public
accountants whose report thereon appears in such Annual Report. Such
consolidated financial statements of the Company shall be deemed to be
incorporated herein from the date of filing of the applicable report on Form-
10K in reliance on the reports of such independent public accountants, given
on the authority of such firm as experts in auditing and accounting.
13
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses (other than underwriting
discounts and commissions) expected to be incurred in connection with the
issuance and distribution of the securities being registered. Except for the
Securities and Exchange Commission filing fee, all amounts shown are
estimates:
<TABLE>
<S> <C>
Registration Fee................................................ $295,000
Rating Agency Fees.............................................. 500,000
Accountants' Fees and Expenses.................................. 100,000
Counsel's Fees and Expenses..................................... 50,000
Blue Sky Fees and Expenses (including counsel's fees)........... 5,000
Printing and Engraving Expenses................................. 100,000
Fees and Expenses of Trustees................................... 60,000
Miscellaneous................................................... 5,000
---------
Total........................................................... 1,115,000
=========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
A. Reference is made to Section 102(b)(7) of the General Corporation Law of
the State of Delaware as to the limitation of personal liability of directors
and officers and to Section 145 of the General Corporation Law of the State of
Delaware as to indemnification by the Company of its directors and officers.
B. Article FOURTEENTH of the Company's Certificate of Incorporation, as
amended, provides as follows with respect to the indemnification of the
Company's directors and officers and the limitation of personal liability of
its directors and officers:
FOURTEENTH: The corporation shall indemnify to the full extent authorized
or permitted by law any person made, or threatened to be made, a party to
any action or proceeding (whether civil or criminal or otherwise) by reason
of the fact that he, his testator or intestate, is or was a director or
officer of the corporation or by reason of the fact that such director or
officer, at the request of the corporation, is or was serving any other
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, in any capacity. Nothing contained herein shall affect
any rights to indemnification to which employees other than directors and
officers may be entitled by law. No director of the corporation shall be
personally liable to the corporation or its stockholders for monetary
damages for any breach of fiduciary duty by such a director as a director.
Notwithstanding the foregoing sentence, a director shall be liable to the
extent provided by applicable law (i) for any breach of the director's duty
of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) pursuant to Section 174 of the Delaware
General Corporation Law, or (iv) for any transaction from which such
director derived an improper personal benefit. No amendment to or repeal of
this Article FOURTEENTH shall apply to or have any effect on the liability
or alleged liability of any director of the corporation for or with respect
to any acts or omissions of such director occurring prior to such
amendment.
C. Article IX of the Company's By-laws provides as follows with respect to
the indemnification of the Company's directors and officers and of certain
other persons:
II-1
<PAGE>
ARTICLE IX
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation shall, to the fullest extent permitted by applicable law
from time to time in effect (but, in the case of any amendment of such law,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than such law permitted the Corporation to
provide prior to such amendment), indemnify any and all persons who may
serve or who have served at any time as directors or officers of the
Corporation, or who at the request of the Corporation may serve or at any
time have served as directors, officers, employees or agents of another
corporation (including subsidiaries of the Corporation) or of any
partnership, joint venture, trust or other enterprise, and any directors or
officers of the Corporation who at the request of the Corporation may serve
or at any time have served as agents or fiduciaries of an employee benefit
plan of the Corporation or any of its subsidiaries, from and against any
and all of the expenses, liabilities or other matters referred to in or
covered by law whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent. The
Corporation may also indemnify any and all other persons whom it shall have
power to indemnify under any applicable law from time to time in effect to
the extent permitted by such law. The indemnification provided by this
Article IX shall not be deemed exclusive of any other rights to which any
person may be entitled under any provision of the Certificate of
Incorporation, other By-Law, agreement, vote of stockholders or
disinterested directors, or otherwise, both as to action in an official
capacity and as to action in another capacity while holding such office,
and shall be contract rights and continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such a person.
If a claim under this Article IX is not paid in full by the Corporation
within sixty days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses,
in which case the applicable period shall be twenty days, the director or
officer may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part
in any such suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the
director or officer shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (i) any suit brought by the director
or officer to enforce a right to indemnification hereunder (but not in a
suit brought by the director or officer to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) any suit by
the Corporation to recover an advancement of expenses pursuant to the terms
of an undertaking, the Corporation shall be entitled to recover such
expenses upon a final adjudication that, the director or officer has not
met any applicable standard for indemnification set forth in the Delaware
General Corporation Law. Neither the failure of the Corporation (including
its Board of Directors, its independent legal counsel, or its stockholders)
to have made a determination prior to the commencement of such suit that
indemnification of the director or officer is proper in the circumstances
because the director or officer has met the applicable standard of conduct
set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board, its independent
legal counsel, or its stockholders) that the director or officer has not
met such applicable standard of conduct, shall create a presumption that
the director or officer has not met the applicable standard of conduct or,
in the case of such a suit brought by the director or officer, be a defense
to such suit. In any suit brought by the director or officer to enforce a
right to indemnification or to an advancement of expenses hereunder, or by
the Corporation to recover an advancement of expenses pursuant to the terms
of an undertaking, the burden of proving that the director or officer is
not entitled to be indemnified, or to such advancement of expenses, under
this Article IX or otherwise shall be on the Corporation.
The indemnification provided in this Article IX shall inure to each
person referred to herein, whether or not the person is serving in any of
the enumerated capacities at the time such expenses (including attorneys'
fees), judgments, fines or amounts paid in settlement are imposed or
incurred, and whether or not the claim asserted against him is based on
matters which antedate the adoption of this Article IX. None of
II-2
<PAGE>
the provisions of this Article IX shall be construed as a limitation upon
the right of the Corporation to exercise its general power to enter into a
contract or understanding of indemnity with a director, officer, employee,
agent or any other person in any proper case not provided for herein. Each
person who shall act or have acted as a director or officer of the
Corporation shall be deemed to be doing so in reliance upon such right of
indemnification.
For purposes of this Article IX, the term "Corporation" shall include
constituent corporations referred to in subsection (h) of Section 145 of
the General Corporation Law of the State of Delaware (or any similar
provision of applicable law at the time in effect).
D. The Company has entered into an Indemnity Agreement with each member of
the Company's Board of Directors. Each Indemnity Agreement provides, among
other things, that in the event the director was, is or becomes a party,
witness or other participant in a Claim (as defined in the Indemnity
Agreement) by reason of (or arising in part out of) an Indemnifiable Event (as
defined in the Indemnity Agreement), the Company is required to indemnify the
director to the fullest extent authorized by the Company's By-Laws as in
effect on the date of the Indemnification Agreement notwithstanding any
subsequent amendment, repeal or modification of such By-Laws, against any and
all expenses, judgments, fines, penalties and amounts paid in settlement of
such Claim. The Indemnity Agreement requires that the Company advance to the
director all expenses relating to Claims and contains an undertaking by the
director to reimburse the Company for any such advances that are subsequently
determined in a final judicial determination to have been impermissible under
applicable law.
E. The directors and officers of the Company are covered by insurance
policies, maintained by the Company at its expense, insuring the directors and
officers against certain liabilities which might be incurred by them in such
capacities, including liabilities arising under the Securities Act of 1933.
ITEM 16. EXHIBITS.
The following Exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
- ------- -------
<S> <C>
1.1 Form of Debt Security Underwriting Agreement.**
4.1 Certificate of Incorporation of the Company, as amended (incorporated by reference
to Exhibit 3 to the Company's Quarterly Report on Form 10-Q (File No. 1-3660) for
the quarter ended March 31, 1997).
4.2 By-laws of the Company, as amended (incorporated by reference to Exhibit 3 to the
Company's annual report on Form 10-K (File No. 1-3660) for the fiscal year ended
December 31, 1995).
4.5.1 Indenture dated as of May 5, 1997 between Owens Corning and The Bank of New York,
as Trustee.*
4.5.2 Form of Debt Securities.**
5.1 Opinion of Shearman & Sterling as to the legality of the Debt Securities being
registered.
12.1 Computation of Ratio of Earnings to Fixed Charges.*
23.1 Consent of Arthur Andersen LLP, independent public accountants.
23.2 Consent of Shearman & Sterling (included in Exhibit 5.1).
24 Powers of Attorney.*
25.1 Form T-1 Statement of Eligibility of Trustee under the Indenture.*
</TABLE>
- --------
* Previously filed.
** The form or forms of Underwriting Agreement and Debt Securities with
respect to the offering of Debt Securities will be filed as an exhibit to a
report on Form 8-K and incorporated herein by reference.
II-3
<PAGE>
ITEM 17. UNDERTAKINGS.
(A) RULE 415 OFFERING.
The undersigned Registrants hereby undertake:
(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 of 1933;
(ii)To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the 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.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant
to the Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table
in the effective registration statement; and
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) of this section do
not apply if the registration statement is on Form S-3, Form S-8 or Form F-
3, and 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 Company pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(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) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE.
The undersigned Registrants hereby further undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the registration
statement 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.
(C) POLICY REGARDING INDEMNIFICATION.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrants pursuant to the foregoing provisions, or otherwise, the
Registrants have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by any
Registrant of expenses incurred or paid by a director, officer or controlling
person of a 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, such 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 Act
and will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, OWENS CORNING
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT NO. 2
TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF TOLEDO, STATE OF OHIO, ON APRIL 16,
1998.
Owens Corning
By: /s/ Michael I. Miller
_____________________________________
MICHAEL I. MILLER
VICE PRESIDENT AND TREASURER
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement has been signed by the following persons
in the capacities and on the dates indicated:
SIGNATURE TITLE DATE
--------- ----- ----
<TABLE>
<S> <C> <C>
* Chairman of the Board, Chief April 16, 1998
____________________________________ Executive Officer and
(GLEN H. HINER) Director (principal
executive officer)
* Senior Vice President and April 16, 1998
____________________________________ Chief Financial Officer
(DOMENICO CECERE) (principal financial
officer)
* Vice President and April 16, 1998
____________________________________ Controller
(STEVEN J. STROBEL)
* Director April 16, 1998
____________________________________
(NORMAN P. BLAKE, JR.)
Director
____________________________________
(GASTON CAPERTON)
* Director April 16, 1998
____________________________________
(LEONARD S. COLEMAN, JR.)
</TABLE>
II-5
<PAGE>
SIGNATURE TITLE DATE
<TABLE>
<S> <C> <C>
Director
____________________________________
(WILLIAM W. COLVILLE)
* Director April 16, 1998
____________________________________
(JOHN H. DASBURG)
* Director April 16, 1998
____________________________________
(LANDON HILLIARD)
* Director April 16, 1998
____________________________________
(SIR TREVOR HOLDSWORTH)
* Director April 16, 1998
____________________________________
(JON M. HUNTSMAN, JR.)
* Director April 16, 1998
____________________________________
(ANN IVERSON)
* Director April 16, 1998
____________________________________
(W. WALKER LEWIS)
* Director April 16, 1998
____________________________________
(FURMAN C. MOSELEY, JR.)
* Director April 16, 1998
____________________________________
(W. ANN REYNOLDS)
</TABLE>
/s/ Michael I. Miller
*By__________________________________
Michael I. Miller
Attorney-in-Fact
II-6
<PAGE>
INDEX TO EXHIBITS
The following Exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
- ------- -------
<S> <C>
1.1 Form of Debt Security Underwriting Agreement.**
4.1 Certificate of Incorporation of the Company, as amended (incorporated by reference
to Exhibit 3 to the Company's Quarterly Report on Form 10-Q (File No. 1-3660) for
the quarter ended March 31, 1997).
4.2 By-laws of the Company, as amended (incorporated by reference to Exhibit 3 to the
Company's annual report on Form 10-K (File No. 1-3660) for the fiscal year ended
December 31, 1995).
4.5.1 Indenture dated as of May 5, 1997 between Owens Corning and The Bank of New York,
as Trustee.*
4.5.2 Form of Debt Securities.**
5.1 Opinion of Shearman & Sterling as to the legality of the Debt Securities being
registered.
12.1 Computation of Ratio of Earnings to Fixed Charges.*
23.1 Consent of Arthur Andersen LLP, independent public accountants.
23.2 Consent of Shearman & Sterling (included in Exhibit 5.1.1).
24 Powers of Attorney.*
25.1 Form T-1 Statement of Eligibility of Trustee under the Indenture.*
</TABLE>
- --------
* Previously filed.
** The form or forms of Underwriting Agreement and Debt Securities with
respect to the offering of Debt Securities will be filed as an exhibit to a
report on Form 8-K and incorporated herein by reference.
<PAGE>
[LETTERHEAD OF SHEARMAN & STERLING APPEARS HERE]
April 16, 1998
To the Board of Directors
of Owens Corning
Ladies and Gentlemen:
We are acting as counsel for Owens Corning (the "Company") in
connection with the Registration Statement on Form S-3 (as amended, the
"Registration Statement") being filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the offering from time to time, as set forth in
the prospectus (the "Prospectus") contained in the Registration Statement and as
to be set forth in one or more supplements to the Prospectus (each such
supplement, a "Prospectus Supplement"), of the Company's unsecured debt
securities (the "Debt Securities"), consisting of notes and/or debentures with
an aggregate issue price of up to $1,000,000,000.
The Debt Securities will be issued in one or more series and are
unsecured and unsubordinated obligations of the Company issued pursuant to an
Indenture dated as of May 5, 1997 (the "Indenture") between the Company and The
Bank of New York, trustee (the "Trustee").
We are familiar with the corporate proceedings of the Company to date
with respect to the proposed issuance and sale of the Debt Securities, including
resolutions of the Board of Directors of the Company authorizing the Indenture
and the issuance, offering and sale of the Debt Securities, and we have examined
such corporate records of the Company and such other documents and certificates
as we have deemed necessary as a basis for the opinions hereinafter expressed.
Based on the foregoing, and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that:
<PAGE>
2
(i) The Indenture has been duly authorized, executed and delivered
by the Company and assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and legally binding instrument of the Company
enforceable against the Company in accordance with its terms.
(ii) The Debt Securities have been duly authorized and, when the
final terms thereof have been duly established and approved and when duly
executed by the Company and authenticated by the Trustee in accordance with the
Indenture and delivered to and paid for by the purchasers thereof, will
constitute valid and legally binding obligations of the Company entitled to the
benefits of the Indenture.
The opinions set forth above are subject, as to enforcement, to (i)
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws relating
to or affecting the enforcement of creditors' rights generally and (ii) general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Opinions" in the Prospectus. In giving this consent, we do not thereby concede
that we come within the category of persons whose consent is required by the
Securities Act or the General Rules and Regulations promulgated thereunder.
Very truly yours,
SHEARMAN & STERLING
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement File No. 333-47961, as amended, of our
report dated January 27, 1998, included in Owens Corning's Form 10-K for the
year ended December 31, 1997, and to all references to our Firm included in this
Registration Statement.
Arthur Andersen LLP
Toledo, Ohio
April 14, 1998
