AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 5, 2000
REGISTRATION NO. 333-
UNITED STATES
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.)
One Owens Corning Parkway
Toledo, Ohio 43659
(Address, including zip code, of Principal Executive Offices)
Owens Corning Savings and Profit Sharing 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
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of each class Proposed maximum Proposed maximum
of securities to Amount to be offering price aggregate Amount of
be registered (1) registered per share offering price registration fee
----------------- -------------- ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, (2) (2) $30,000,000 $7,920
par value
$0.10 per share
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminable amount of
interests to be offered pursuant to the employee benefit plan
described herein.
(2) Under the Savings and Profit Sharing Plan, contributions may be
invested, at the employee's option, in common stock of Owens
Corning purchased in the open market or from Owens Corning. The
shares of such common stock upon which the registration fee is
calculated are those shares which may be purchased in the future
at the fair market value thereof on the respective dates of
purchase, with employee contributions totaling $30,000,000. The
number of shares and the purchase price are necessarily
indeterminate at this time.
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 Profit Sharing 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.
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:
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.
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.
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
(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.
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 and the
State of Ohio, on this 5th day of July, 2000.
OWENS CORNING
By: /s/ Glen H. Hiner
--------------------------------
Name: Glen H. Hiner
Title: Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby severally
constitutes and appoints Glen H. Hiner, Michael H. Thaman and Maura
Abeln Smith, and each of them acting singly, as his or her true and
lawful attorney-in-fact and agent, with full and several power of
substitution and resubstitution, to sign for him or her and in his or
her name, place and stead in any and all capacities indicated below,
the registration statement on Form S-8 filed herewith and any and all
pre-effective and post-effective amendments and supplements to the said
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 attorney-in-fact and agent,
full power and authority to do and perform each and every act and thing
requisite and necessary fully to all intents and purposes as he or she
might or could do in person hereby ratifying and confirming all that
said attorney-in-fact and agent, or his or her substitute, 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 below.
Signature Title Date
/s/ Glen H. Hiner Chairman of the Board June 19, 2000
------------------------- and Chief Executive
Glen H. Hiner Officer (Principal Executive
Officer) and Director
/s/ Michael H. Thaman Senior Vice President June 21, 2000
------------------------- and Chief
Michael H. Thaman Financial Officer
(Principal Financial Officer)
/s/ Deyonne F. Epperson Vice President and Controller June 21, 2000
-------------------------
Deyonne F. Epperson
/s/ Curtis H. Barnette Director June 16, 2000
-------------------------
Curtis H. Barnette
/s/ Norman P. Blake, Jr. Director June 20, 2000
-------------------------
Norman P. Blake, Jr.
/s/ Gaston Caperton Director June 19, 2000
-------------------------
Gaston Caperton
/s/ Leonard S. Coleman, Jr. Director June 21, 2000
-------------------------
Leonard S. Coleman, Jr.
/s/ William W. Colville Director June 16, 2000
-------------------------
William W. Colville
/s/ Landon Hilliard Director June 16, 2000
-------------------------
Landon Hilliard
/s/ Ann Iverson Director June 19, 2000
-------------------------
Ann Iverson
Director --
-------------------------
W. Walker Lewis
/s/ Furman C. Moseley, Jr. Director June 19, 2000
-------------------------
Furman C. Moseley, Jr.
/s/ W. Ann Reynolds Director June 19, 2000
-------------------------
W. Ann Reynolds
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 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 5th day of July, 2000
OWENS CORNING SAVINGS AND
PROFIT SHARING PLAN
By: /s/ Steven J. Strobel
-------------------------------
Name: Steven J. Strobel
Title: Chairman, Investment Review
Committee
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).
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 Profit Sharing 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
