As filed with the Securities and Exchange Commission on July 7, 2000
Registration No. 333-40824
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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.)
One Owens Corning Parkway
Toledo, Ohio 43659
(Address, including zip code, of Principal Executive Offices)
Owens Corning Savings and Security Plan
(Full title of the plan)
Maura Abeln Smith
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)
Copies of all communications to:
Ronald C. Barusch, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, DC 20005-2111
(202) 371-7000
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by the Registrant with
the Securities and Exchange Commission pursuant to the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable,
are incorporated by reference herein and shall be deemed to be a part hereof:
1. The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999.
2. The description of the Registrant's Capital Stock contained in the
registration statement filed pursuant to Section 12 of the Exchange
Act, including any amendment or report filed for the purpose of
updating such description.
3. All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since December 31, 1999.
4. The latest annual report of the Registrant's Savings and Security Plan
pursuant to Section 15(d) of the Exchange Act.
All documents, filed with the Commission pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and made a part hereof
from their respective dates of filing (such documents, and the documents
enumerated above, being hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this registration statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document 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 this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
<PAGE>
Item 6. 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 a corporation of its directors and
officers. Delaware law provides that a corporation may eliminate or limit the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director: (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) for wilful or negligent payments
of unlawful dividends or unlawful stock repurchases or redemptions; or (iv) for
any transaction from which the director derived an improper personal benefit.
Delaware law also provides that a corporation may indemnify its directors,
officers, employees or agents against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by them in connection with any action, suit or proceeding brought by third
parties to which they may be made parties by reason of their being or having
been directors, officers, employees or agents, and shall so indemnify directors
and officers only if they acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation, and
with respect to any criminal action or proceeding, had no reasonable cause to
believe their conduct was unlawful.
B. Article FOURTEENTH of our Certificate of Incorporation, as
amended, provides as follows with respect to the indemnification of our
directors and officers and the limitation of personal liability of our 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 our By-Laws provides as follows with respect to the
indemnification of our directors and officers and of certain other persons:
<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, independent legal counsel or 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 of Directors, independent legal counsel or
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.
<PAGE>
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. We have entered into an Indemnity Agreement with each member of our
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), we are required to indemnify the director to the fullest extent
authorized by our 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
we advance to the director all expenses relating to Claims and contains an
undertaking by the director to reimburse us for any such advances that are
subsequently determined in a final judicial determination to have been
impermissible under applicable law.
E. Our directors and officers are covered by insurance policies,
maintained by us at our 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.
<PAGE>
Item 8. Exhibits.
See Exhibit Index on page II-11.
Item 9. Undertakings.
*(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act 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 Rule 242(b) if, in the
aggregate, the changes in volume and price represent no
more than 20 percent 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
the registration statement or any material change to
such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section 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 Exchange
Act 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; and
<PAGE>
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering;
*(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act 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 (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.
*(h) 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.
* Paragraph references correspond to those of Regulation S-K, Item 512.
<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
Post-Effective Amendment No. 1 to the Form S-8 registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Toledo and the State of Ohio, on this 7th day of July, 2000.
OWENS CORNING
By: /s/ Glen H. Hiner
-----------------------------------
Name: Glen H. Hiner
Title: Chairman of the Board and
Chief Executive Officer
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated below.
Signature Title
/s/ Glen H. Hiner Chairman of the Board and Chief
------------------------------- Executive Officer (Principal
Glen H. Hiner Executive Officer) and Director
/s/ Michael H. Thaman Senior Vice President and Chief
-------------------------------- Financial Officer
Michael H. Thaman (Principal Financial Officer)
/s/ Deyonne F. Epperson Vice President and Controller
-------------------------------
Deyonne F. Epperson
* Director
-------------------------------
Curtis H. Barnette
* Director
-------------------------------
Norman P. Blake, Jr.
* Director
-------------------------------
Gaston Caperton
* Director
-------------------------------
Leonard S. Coleman, Jr.
* Director
-------------------------------
William W. Colville
* Director
-------------------------------
Landon Hilliard
* Director
-------------------------------
Ann Iverson
<PAGE>
Director
-------------------------------
W. Walker Lewis
* Director
-------------------------------
Furman C. Moseley, Jr.
* Director
-------------------------------
W. Ann Reynolds
* By: /s/ Glen H. Hiner
-------------------------------
Glen H. Hiner
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this Post-Effective Amendment No. 1 to the Form S-8 registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Toledo and the State of Ohio, on this 7th day of
July, 2000.
OWENS CORNING SAVINGS AND
SECURITY PLAN
By: /s/ Steven J. Strobel
-----------------------------------
Name: Steven J. Strobel
Title: Chairman, Investment Review
Committee
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
23 Consent of Arthur Andersen LLP, independent public
accountants.
*24 Power of Attorney (set forth on the signature page hereof).
* Previously filed.
<PAGE>
EXHIBIT 23
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 reports dated
January 24, 2000, included in Owens Corning's Form 10-K for the year ended
December 31, 1999, and April 28, 2000, included in the Owens Corning Savings and
Security Plan's Form 11-K for the plan year ended December 30, 1999, and to all
references to our Firm included in this Registration Statement.
/s/ Arthur Andersen LLP
----------------------------------
Arthur Andersen LLP
Toledo, Ohio
June 28, 2000
