As filed with the Securities and Exchange Commission on April 21,
1999.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OWENS CORNING
(Exact name of registrant as specified in its charter)
Delaware 34-4323452
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Owens Corning World Headquarters
One Owens Corning Parkway 43659
Toledo, Ohio (Zip Code)
(Address of Principal Executive Offices)
Owens Corning Deferred Compensation Plan
(Full title of the plan)
Maura J. Abeln, Esq.
Senior Vice President, General Counsel and Secretary
Owens Corning
Owens Corning World Headquarters
One Owens Corning Parkway
Toledo, OH 43659
(419) 248-8000
(Name, address and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
Proposed Proposed
Title of Maximum Maximum Amount
Securities Offering Aggregate of
to Be Amount to Be Price per Offering Registration
Registered Registered Obligation Price Fee
Deferred $30,000,000 100% $30,000,000 $8,340
Compensation
Obligations
</TABLE>
(1) The Deferred Compensation Obligations are unsecured
obligations of Owens Corning to pay deferred compensation
in the future in accordance with the Owens Corning Deferred
Compensation Plan.
The Registration Statement shall become effective upon
filing in accordance with Rule 462 under the Securities Act
of 1933.
<PAGE> PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents By Reference.
The following documents, filed with the Securities and
Exchange Commission (the "Commission") by the Registrant, are
hereby incorporated by reference in this Registration Statement:
(a) The Registrant's annual report on Form 10-K (File No. 1-
03660) filed with the Commission on March 15, 1999 for
the fiscal year ended December 31, 1998;
(b) The Registrant's current reports on Form 8-K (File No.
1-03660), filed with the Commission on February 8, 1999
and April 15, 1999; and
(c) The information with regard to the Registrant's
common stock, par value $.10 per share, contained in
the registration statement filed under the Securities
Exchange Act of 1934, including any amendment or report
filed for the purpose of updating such information.
In addition, all documents subsequently filed by the Registrant
pursuant to sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective
amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of
filing of such documents.
Item 4. Description of Securities.
$30,000,000 of Deferred Compensation Obligations (the
"Obligations") are being registered under this Registration
Statement to be offered to certain eligible employees of the
Registrant pursuant to the Owens Corning Deferred Compensation
Plan (the "Plan"). The Obligations are general unsecured
obligations of the Registrant to pay deferred compensation in the
future in accordance with the terms of the Plan from the general
assets of the Registrant, and rank `pari passu' with other
unsecured and unsubordinated indebtedness of the Registrant from
time to time outstanding.
The amount of compensation deferred by each participant
("Participant") in the Plan is determined in accordance with the
Plan based upon elections by each Participant. Obligations in an
amount equal to each Participant's deferral account under the
Plan (consisting of deferred salary and bonus amounts, vested
additional cash compensation deferred as directed by the
Compensation Committee of the Registrant's Board of Directors,
and any investment returns thereon) will be payable in a lump sum
upon the death of the Participant or the 10th anniversary of the
Participant's termination of employment and, otherwise, as
specified by the Participant as a lump sum payment on a date
certain, a lump sum payment on the Participant's termination of
employment, or payment of up to 10 substantially equal annual
installments beginning on a date certain or termination of
employment.
Amounts credited to a Participant's account under the Plan will
be credited with notional investment returns which, in accordance
with the Participant's election, will be measured based on Owens
Corning common stock or the prime rate of interest determined as
of the first business day of each calendar year. Investment
returns otherwise payable are subject to forfeiture if a
Participant discloses certain types of proprietary information,
goes to work for a competitor, or is terminated for `Just Cause'.
The Obligations are not subject to anticipation, alienation,
sale, transfer, assignment, pledge or encumbrance. Any attempt
by any person to transfer or assign benefits under the Plan,
other than a claim for benefits by a Participant or his or her
beneficiaries, will be null and void. The Registrant's Board of
Directors may amend, suspend or terminate the Plan at any time.
The Obligations are not convertible into any other security of
the Registrant. No trustee has been appointed to take action
with respect to the Obligations and each Participant will be
responsible for enforcing his or her own rights with respect to
the Obligations. The Registrant may establish a `rabbi trust' to
serve as a source of funds from which it can satisfy Obligations.
Assets of any rabbi trust will be at all times subject to the
claims of the Registrant's general creditors. Participants in
the Plan will have no rights to any assets held by a rabbi trust,
except as general creditors of the Registrant.
Item 5. Interests of Named Experts and Counsel.
Maura J. Abeln, Esq., who has provided an opinion concerning
the legality of the securities to be offered under the Plan, is
Senior Vice President, General Counsel and Secretary of the
Company. As of February 23, 1999, Ms. Abeln owned beneficially
less than 0.1 per cent of the Company's common stock, par value
$.10 per share.
Item 6. Indemnification of Officers and Directors.
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:
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, 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, 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 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 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
<TABLE>
<S>
<C> <C>
Exhibit
Number Exhibit
4 (a) Owens Corning Deferred Compensation Plan (filed
herewith).
4 (b) Certificate of Incorporation of Registrant, as
amended (incorporated herein by reference to
Exhibit (3) to Registrant's quarterly report on
Form 10-Q (File No. 1-03660) for the quarter ended
March 31, 1997).
4 (c) By-Laws of Registrant, as amended (incorporated
herein by reference to Exhibit (3) to Registrant's
annual report on Form 10-K (File No. 1-03660) for
1995).
5 Opinion of Maura J. Abeln (filed herewith).
23 (a) Consent of Arthur Andersen LLP, independent public
accountants (filed herewith).
23 (b) Consent of Maura J. Abeln is contained in Exhibit
5.
24 Powers of Attorney (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 of the securities registered hereby, 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 this 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 this
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 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;
(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 by the Registrant pursuant to section 13
or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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) The undersigned Registrant hereby further undertakes
that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual
report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference
in this 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) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 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 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 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 Act and will be governed by the final adjudication of such
issue.
<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 Toledo, State of Ohio, on this 20th day of April,
1999.
OWENS CORNING
By /s/ GLEN H. HINER
Glen H. Hiner, Chairman of the
Board and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Glen H. Hiner,
Maura J. Abeln, J. Thurston Roach, and Robert C. Lonergan, and
each of them, his or her true and lawful attorneys-in-fact and
agents, each with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments, including
post-effective amendments, to this Registration Statement, and to
file the same, with 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, as fully
to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents or his or her substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the date indicated:
<TABLE>
<S>
<C> <C> <C>
Signatures Title Date
Chairman of the Board
and Chief Executive
/s/ GLEN H. HINER Officer APRIL 19, 1999
Glen H. Hiner (Principal Executive
Officer) and Director
Senior Vice President
/s/ J. THURSTON ROACH and Chief Financial APRIL 16, 1999
J. Thurston Roach Officer
(Principal Financial
Officer)
/s/ STEVEN J. STROBEL Vice President and APRIL 15, 199
Steven J. Strobel Controller
/s/ CURTIS H. BARNETTE Director APRIL 5, 1999
Curtis H. Barnette
/s/ NORMAN P. BLAKE Director MARCH 31, 1999
Norman P. Blake, Jr.
/s/ GASTON CAPERTON Director MARCH 31, 1999
Gaston Caperton
/s/ LEONARD S. COLEMAN, JR. Director MARCH 31, 1999
Leonard S. Coleman, Jr.
/s/ WILLIAM W. COLVILLE Director APRIL 5, 1999
William W. Colville
/s/ JOHN H. DASBURG Director APRIL 5, 1999
John H. Dasburg
/s/ LANDON HILLIARD Director MARCH 31, 1999
Landon Hilliard
/s/ JON M. HUNTSMAN Director APRIL 5, 1999
Jon M. Huntsman, Jr.
/s/ ANN IVERSON Director APRIL 1, 1999
Ann Iverson
/s/ W. WALKER LEWIS Director APRIL 5, 1999
W. Walker Lewis
/s/ FURMAN C. MOSELEY, JR. Director MARCH 31, 1999
Furman C. Moseley, Jr.
/s/ W. ANN REYNOLDS Director APRIL 1, 1999
W. Ann Reynolds
</TABLE>
<PAGE>INDEX TO EXHIBITS
<TABLE>
<S>
<C> <C>
Exhibit
Number Exhibit
4 (a) Owens Corning Deferred Compensation Plan (filed
herewith).
4 (b) Certificate of Incorporation of Registrant, as
amended (incorporated herein by reference to
Exhibit (3) to Registrant's quarterly report on
Form 10-Q (File No. 1-03660) for the quarter ended
March 31, 1997).
4 (c) By-Laws of Registrant, as amended (incorporated
herein by reference to Exhibit (3) to Registrant's
annual report on Form 10-K (File No. 1-03660) for
1995).
5 Opinion of Maura J. Abeln (filed herewith).
23 (a) Consent of Arthur Andersen LLP, independent public
accountants (filed herewith).
23 (b) Consent of Maura J. Abeln is contained in Exhibit
5.
24 Powers of Attorney (included on signature page).
</TABLE>
<PAGE>
EXHIBIT 4
OWENS CORNING DEFERRED COMPENSATION PLAN
Effective as of January 1, 1999
ARTICLE I
ESTABLISHMENT AND PURPOSE OF THE PLAN
1.1 Establishment of the Plan. Effective as of January 1,
1999, Owens Corning hereby establishes the "Owens Corning
Deferred Compensation Plan."
1.2 Purpose of the Plan. The Plan is intended to
constitute an unfunded program maintained primarily for the
purpose of permitting a select group of management or highly
compensated employees to defer compensation in a manner
consistent with the requirements of Sections 201(2), 301(a)(3),
and 401(a)(1) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA").
ARTICLE II
DEFINITIONS
The following words and phrases as used in this Plan have
the following meanings:
2.1 Account. The term "Account" means the bookkeeping
account established by the Employer for each Eligible Employee to
which all deferrals and Investment Returns shall be credited.
2.2 Administrator. The term "Administrator" means the
individual described in Section 7.1 who is designated to
administer the Plan.
2.3 Affiliated Employer. The term "Affiliated Employer"
shall have the same meaning given to such term by the Owens
Corning Savings and Profit Sharing Plan.
2.4 Beneficiary. The term "Beneficiary" means the Eligible
Employee's beneficiary under the Owens Corning Savings and Profit
Sharing Plan.
2.5 Board of Directors. The term "Board of Directors"
means the Board of Directors of Owens Corning.
2.6 Code. The term "Code" means the Internal Revenue Code
of 1986, as amended.
2.7 Eligible Employee. The term "Eligible Employee" means
an individual who meets the requirements of Section 3.1.
2.8 Employer. The term "Employer" means Owens Corning and
any other Affiliated Employer that has adopted the Owens Corning
Savings and Profit Sharing Plan or has been designated by the
Board of Directors.
2.9 Investment Returns. The term "Investment Returns" means
the earnings and losses credited to an Eligible Employee's
Account in accordance with Section 3.6.
2.10 Plan. The term "Plan" means the "Owens Corning
Deferred Compensation Plan" as set forth herein and as amended
from time to time.
ARTICLE III
COMPENSATION DEFERRALS
3.1 Eligible Employees. An individual is an Eligible
Employee if he or she is a member of a select group of management
or highly compensated employees of an Employer, and he or she --
(1) is an elected officer or appointed officer of Owens
Corning, or
(2) is a key employee of an Employer and is designated for
participation in the Plan by the Compensation Committee
of the Board of Directors.
3.2 Deferrals of Cash Compensation. An Eligible Employee
may elect, by submitting to the Administrator a properly
completed Deferral Election Form (in the form attached hereto as
Exhibit A), to defer the receipt of up to 50% of cash salary and
up to 100% of bonus compensation earned for services rendered to
the Employer during a calendar year. Eligible employees may also
be required to defer certain compensation as directed by the
Compensation Committee of the Board of Directors, subject to the
terms and conditions of the Plan and the underlying grant or
award. Thus, Eligible Employees may receive awards of incentive
pay that have special deferral terms and conditions that require
the deferral of that award (or a portion thereof) for a specified
period of time subject to special vesting and forfeiture
provisions.
3.3 Timing for Elections. Deferral Election Forms may be
submitted on an annual basis, with a properly submitted deferral
election becoming effective, to the extent administratively
practicable, for compensation earned on or after the January 1
which next follows the acceptance of the Deferral Election Form
by the Administrator; provided, however, that within 30 days of
first becoming an Eligible Employee, such Eligible Employee may
submit a Deferral Election Form and such election shall be
effective as soon as administratively practicable. Elections
with regard to Investment Returns and the time and manner of
payment of deferred amounts are one-time elections with regard to
amounts deferred pursuant to a particular Deferral Election Form.
A Deferral Election Form shall remain effective until a
superseding Deferral Election Form becomes effective. An
Eligible Employee may cease voluntary salary deferrals at any
time by submitting a properly completed Deferral Election Form to
the Administrator, which shall be effective for compensation
earned after the effective date of the election. Notwithstanding
the foregoing, a Participant may not make deferrals under this
Plan during any period for which contributions must be suspended
as a condition of the Eligible Employee's receipt of a hardship
withdrawal from the Owens Corning Savings and Profit Sharing Plan
or any other plan maintained by Owens Corning or an Affiliated
Employer that includes a qualified cash or deferred arrangement
under Code section 401(k).
3.4 Deferred Compensation Accounts. For the purpose of
determining liabilities under the Plan, the Employer shall
maintain an Account for each Eligible Employee. An Eligible
Employee's Account shall be credited with amounts deferred by the
Eligible Employee pursuant to the Plan and any Investment Returns
thereon.
3.5 Investment Returns. The Investment Return on an
Eligible Employee's Account shall be the amount necessary to
increase or decrease the Account to the amount it would have been
if it were invested in accordance with this Section. Investment
Returns for cash amounts deferred pursuant to Section 3.2 hereof
shall be determined as if such amounts were invested, at the
Eligible Employee's election pursuant to the Deferral Election
Form, in a fund invested in Owens Corning stock or an account
bearing interest at an annual effective rate equal to the prime
rate of interest quoted in the Wall Street Journal for the first
business day of the applicable calendar year. Notwithstanding
the foregoing, the Employer shall be under no obligation to make
any investments in accordance with the investment election of any
Eligible Employee.
ARTICLE IV
FORFEITURE OF INVESTMENT RETURNS
4.1 Disclosure of Proprietary Information. The Investment
Returns otherwise payable (other than net losses) under the terms
of this Plan shall be forfeited and the Employer and the Plan
shall have no liability for Investment Returns to an Eligible
Employee (or his or her Beneficiary) if the Eligible Employee
discloses, divulges, publishes or otherwise reveals either
directly or through another, to any person, firm or corporation,
any knowledge or information concerning any Employer or
Affiliated Employer inventions, devices, technical data,
strategic plans (business and technical), or financial data
(including any data classified as "Secret and Proprietary
Information"), which knowledge or information has in any way been
disclosed to or acquired by the Eligible Employee during the term
of his or her employment with the Employer or an Affiliated
Employer. Such knowledge or information shall not include
knowledge or information which:
(1) is or was in the public domain at the time of its
disclosure to the Eligible Employee; or,
(2) enters the public domain after the date of
disclosure to the Eligible Employee except where such
entry is a result of a breach by the Eligible Employee
of this Section; or,
(3) is disclosed to the Eligible Employee by a third
party having a bona fide right to make such disclosure,
or is otherwise lawfully obtained from other sources;
or,
(4) is disclosed to others by the Employer or
Affiliated Employer without restriction.
4.2 Direct Competition with the Employer or an Affiliated
Employer. The Investment Returns payable under the terms of this
Plan (other than net losses) shall be forfeited and the Employer
and the Plan shall have no further liability to an Eligible
Employee if said Eligible Employee directly or indirectly, in any
capacity, performs any compensated service for, is employed by or
becomes associated with any firm, corporation or partnership
engaged in the manufacture, production or sale of products which
compete with products produced or sold by the Employer or an
Affiliated Employer. For the purposes of this Plan, products
shall be limited to these which are manufactured, produced or
sold by the Employer or an Affiliated Employer as described in
the Employer's or Affiliated Employer's most recent Annual Report
to its stockholders.
4.3 Discharge for Just Cause. The Investment Returns
otherwise payable under the terms of this Plan (other than net
losses) shall be forfeited and the Employer and the Plan shall
have no further liability if the employment of said Eligible
Employee by the Employer or Affiliated Employer is terminated or
otherwise ceases for "Just Cause". "Just Cause" shall mean
discharge or resignation as the direct result of any act or
omission which constitutes a misdemeanor or a felony, or which
clearly evidences fraud or dishonesty on the part of the Eligible
Employee.
4.4 Involuntary Deferrals. For grants or awards of
compensation that require deferral in whole or in part as a
condition of the grant or award, the vesting and forfeiture
provisions established by the Compensation Committee for purposes
of such grant or award will apply to such grant or award in
addition to the provisions hereof and will result in forfeiture
of the award and its Investment Returns unless fully satisfied by
the Eligible Employee.
ARTICLE V
PAYMENT OF ACCOUNT
5.1 Payment to Eligible Employee. An Eligible Employee
shall be eligible to receive distribution of vested amounts in
his or her Account in the manner specified in his or her Deferral
Election Forms. Distribution of an Eligible Employee's Account
shall be made in one of the following forms: (1) lump sum payment
on a date certain, (2) lump sum payment upon the Eligible
Employee's termination of employment, or (3) payment of up to 10
substantially equal annual installments beginning either upon a
date certain or as soon as administratively practicable following
the date of the Eligible Employee's termination of employment,
with annual installments payable on each anniversary of such
date; provided, any remaining Account balance upon the tenth
anniversary of an Eligible Employee's termination of employment
shall be distributed in a lump sum as soon as is administratively
practicable thereafter.
5.2 Payment upon Death of Eligible Employee. In the event
of the death of the Eligible Employee, the vested balance of the
Eligible Employee's Account shall be payable to the Eligible
Employee's Beneficiary in a lump sum.
5.3 Form of Payment. All amounts shall be paid in cash.
5.4 Payment in the Event of Unforeseeable Emergency. An
Eligible Employee may request a distribution of amounts
voluntarily deferred in the event of an unforeseeable emergency,
up to but not exceeding the amount reasonably needed to satisfy
the emergency. For the purposes of this paragraph, an
"unforeseeable emergency" means severe financial hardship to the
Eligible Employee resulting from a sudden and unexpected illness
or accident of the Eligible Employee or of a dependent, loss of
the Eligible Employee's property due to casualty, or other
similar extraordinary and unforeseeable circumstances arising as
a result of events beyond the control of the Eligible Employee.
Notwithstanding the foregoing, payment may not be made to the
extent the unforeseeable emergency may be or is relieved by
insurance, liquidation of the Eligible Employee's assets
(provided such liquidation does not cause severe financial
hardship), or by cessation of deferrals under this Plan.
Unforeseeable emergencies do not include the need or desire to
send a child to college or to purchase a home. Whether an
unforeseeable emergency exists shall be determined by the
Administrator in his or her sole discretion. The Administrator
may require such documentation from the Eligible Employee as the
Administrator deems necessary to substantiate a request for
distribution due to an unforeseeable emergency.
ARTICLE VI
NATURE OF INTEREST OF ELIGIBLE EMPLOYEE
6.1 Unsecured General Creditor. The interests of Eligible
Employees and Beneficiaries in the Plan shall be that of
unsecured general creditors, with no secured or preferential
right to any assets of Owens Corning or any Employer, Affiliated
Employer, or any other party for payment of benefits under this
Plan. Any property held by Owens Corning or any Employer for the
purpose of generating the cash flow for benefit payments shall
remain its general, unpledged and unrestricted assets. Any
Employer's obligation under the Plan shall be an unfunded and
unsecured promise to pay benefits in the future.
6.2 Trust Fund. Each Employer shall be responsible for the
payment of benefits provided under the Plan to its Eligible
Employees. At its discretion, the Employer may establish one or
more trusts, with such trustees as the Board of Directors may
approve, for the purpose of providing for the payment of such
benefits. Any trustee so appointed shall be bonded in a manner
satisfactory to the Employer. Whether or not such a trust is
irrevocable, its assets shall at all times be subject to the
claims of the Employer's general creditors in the event of the
Employer's insolvency. To the extent any benefits provided under
the Plan are paid from such trust, the Employer shall have no
further obligation to pay Plan benefits. Plan benefits not paid
from the trust shall remain the obligation of the Employer.
6.3 Change of Control. In the event of a "Change of
Control" as defined in the Owens Corning Stock Performance
Incentive Plan, Owens Corning (or its successor in interest)
shall contribute an amount equal to the value of all Eligible
Employees' Accounts under the Plan to an irrevocable trust within
10 days of such Change of Control. The terms of such trust shall
be consistent with Internal Revenue Service Revenue Procedure 92-
64 (as modified or superseded by the Internal Revenue Service),
and the trustee the shall be an independent third party financial
institution.
6.4 No Right to Transfer Interest. Rights to benefits
payable under the Plan are not subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, or
encumbrance.
ARTICLE VII
ADMINISTRATION
7.1 Administrator. (a) Except as provided in (b) below,
the Plan shall be administered by the Leader, Compensation, at
Owens Corning, or by the individual who holds the functional
equivalent of such position.
(b) The Senior Vice President, Strategic Resources of
Owens Corning shall be the Administrator with respect to any
matters involving the participation in this Plan of the
individual described in (a) above.
7.2 Powers of the Administrator. The Administrator's
powers shall include, but shall not be limited to, the power to
adopt rules consistent with the Plan; the power to decide all
questions relating to the interpretation of the terms and
provisions of the Plan; the power to resolve all other questions
arising under the Plan (including, without limitation, the power
to remedy possible ambiguities, inconsistencies, or omissions by
a general rule or particular decision); and the power to
designate all or a part of the previously described powers to
another employee of Owens Corning. The Administrator shall have
full and absolute discretion and authority to exercise each of
the foregoing powers.
7.3 Finality of Administrator Determinations. Deter
minations by the Administrator and any interpretation, rule, or
decision adopted by the Administrator under the Plan or in
carrying out or administering the Plan shall be final and binding
for all purposes and upon all interested persons, their heirs,
and their personal representatives.
ARTICLE VIII
MISCELLANEOUS
8.1 Amendment, Suspension, and Termination. (a) The
Board of Directors shall have the right to amend, suspend, or
terminate the Plan at any time.
(b) The Vice President of Human Resources of Owens
Corning, or the individual who holds the functional equivalent of
such position, may adopt minor amendments to the Plan without
prior approval of the Board of Directors that (i) are necessary
or advisable for purposes of compliance with applicable laws and
regulations, (ii) relate to administrative practices, or (iii)
have an insubstantial financial effect on Plan benefits and
expenses.
8.2 Board of Directors' Power to Delegate Authority. The
Board of Directors may, in its discretion, delegate to any person
or persons all or any part of the Board's authority and
responsibility under the Plan, including, without limitation, the
authority to amend the Plan.
8.3 Indemnification. Owens Corning shall indemnify any
individual who is a director, officer or employee of an Employer,
or his or her heirs and legal representatives, against all
liability and reasonable expense, including counsel fees, amounts
paid in settlement and amounts of judgments, fines or penalties,
incurred or imposed upon him or her in connection with any claim,
action, suit or proceeding, whether civil, criminal,
administrative or investigative, in connection with his or her
duties under the Plan, provided that such act or omission does
not constitute gross negligence or willful misconduct.
8.4 No Employment Rights. No provisions of the Plan or any
action taken by an Employer, the Board of Directors, or the
Administrator shall give any person any right to be retained in
the employ of an Employer, and each Employer specifically
reserves the right and power to dismiss or discharge any Eligible
Employee.
8.5 Incapacity of Recipient. If an Eligible Employee or
Beneficiary entitled to a distribution under the Plan is living
under guardianship or conservatorship, distributions payable
under the terms of the Plan to such recipient shall be paid to
the appointed guardian or conservator and such payment shall be a
complete discharge of any liability of all Employers.
8.6 Data. Each Eligible Employee and Beneficiary shall
furnish the Employer with all proofs of date of death and other
proofs necessary for the administration of the Plan, and no
Employer shall be liable for the fulfillment of any obligations
in any way dependent upon such information unless and until the
same shall have been received by the Employer in form
satisfactory to it.
8.7 Misstatements. If any relevant fact relating to any
person is found to have been misstated, the benefit payable to an
Eligible Employee or Beneficiary shall be the benefit which would
have been provided on the basis of the correct information. Any
excess payments due to such misstatement shall be refunded to the
Employer or withheld by it from any further amounts otherwise
payable, and any underpayment shall be paid to the Eligible
Employee or Beneficiary as soon as administratively practicable.
8.8 Taxes. To the extent required by law, amounts credited
under the Plan shall be subject to Federal social security and
unemployment taxes during the year the services giving rise to
such contributions were performed (or, if later, when the amounts
are not subject to a substantial risk of forfeiture). Federal
social security and unemployment taxes shall be withheld from
current compensation otherwise payable to the Eligible Employee.
Each Employer shall withhold from any distributions made pursuant
to the Plan such amounts as may be required by Federal, state or
local law.
8.9 Applicable Law. The Plan shall be construed and
administered under the laws of the State of Ohio, except to the
extent that such laws are preempted by ERISA.
8.10 Usage of Terms and Headings. Words in the masculine
gender shall include the feminine and the singular shall include
the plural, and vice versa, unless qualified by the context. Any
headings are included for ease of reference only, and are not to
be construed to alter the terms of the Plan.
IN WITNESS WHEREOF, Owens Corning has caused this Plan, to
be effective as of January 1, 1999, to be executed on its behalf
by the undersigned duly authorized officer this 24th day of
February, 1999.
Owens Corning
By
Robert C. Lonergan
Senior Vice President - Strategic Resources
<PAGE> EXHIBIT 5
April 21, 1999
Owens Corning
Owens Corning World Headquarters
One Owens Corning Parkway
Toledo, Ohio 43659
Re: Owens Corning Deferred Compensation Plan
Ladies and Gentlemen:
I am Senior Vice President, General Counsel and Secretary of
Owens Corning, a Delaware corporation (the "Company"), and I have
acted as counsel to the Company in connection with the
preparation and filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, of a
Registration Statement on Form S-8 (the "Registration Statement")
relating to the registration of $30,000,000 of general unsecured
obligations (the "Obligations") of the Company to pay deferred
compensation in the future in accordance with the Company's
Deferred Compensation Plan (the "Plan").
In so acting, I have supervised other members of the Company's
Law Department and outside counsel who have performed work in
connection with the transactions contemplated by the Plan.
I, or other members of the Company's Law Department or such
outside counsel, have examined and relied upon the originals, or
copies certified or otherwise identified to our satisfaction, of
such corporate records, documents, certificates and other
instruments, and have made such other investigations, as in our
judgment are necessary or appropriate to enable me to render the
opinion expressed below.
In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us
as originals (other than documents executed by the Company) and
the conformity to original documents of documents submitted to us
as certified or photostatic copies and the authenticity of the
originals of such copies. We have also assumed the due
authorization, execution and delivery of such documents by the
parties thereto other than the Company.
Based upon our examination as described above, subject to the
assumptions and qualifications stated herein, and relying upon
statements of fact contained in the documents that we have
examined, I am of the opinion that the Obligations being offered
under the Plan, when issued in accordance with the provisions of
the Plan, will be valid and binding obligations of the Company,
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other laws of
general applicability relating to or affecting enforcement of
creditors' rights or by general principles of equity.
I am a member of the Bar of the State of Florida and have
corporate status in the Bar of the State of Ohio and do not hold
myself out as an expert on the laws of any other state except the
corporate laws of the State of Delaware, and my opinion is
limited to the corporate laws of the State of Delaware and the
federal laws of the United States.
I consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ MAURA J. ABELN
Maura J. Abeln
Senior Vice President, General Counsel and Secretary
1999.
Exhibit 23 (a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form
S-8 of our report dated January 25, 1999, included in Owens
Corning's annual report on Form 10-K for the year ended December
31, 1998, and to all references to our Firm included in this
Registration Statement.
/s/ Arthur Andersen LLP
Toledo, Ohio
April 21, 1999.
