As filed with the Securities and Exchange Commission on April 21, 1994
Registration No. 33-40136
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-3
TO
S-4 REGISTRATION STATEMENT
under
The Securities Act of 1933
__________________
USG Corporation
(Exact name of registrant as specified in its charter)
Delaware 3275 36-3329400
(State or other jurisdiction of(Primary Standard Industrial(I.R.S. Employer
incorporation or organization)Classification Code Number)Identification No.)
125 South Franklin Street
Chicago, Illinois 60606-4678
(312) 606-4000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
___________________
Arthur G. Leisten, Esq.
Senior Vice President - General Counsel
125 South Franklin Street
Chicago, Illinois 60606-4678
(312) 606-4000
(Name, address and telephone number of agent for service)
________________
Copies to:
Francis J. Gerlits, P.C.
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
________________
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
________________
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment plans,
please check the following box.
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, check the following box. X
________________
<TABLE>
CALCULATION OF REGISTRATION FEE
____________________________________________________________________________________________________________
<CAPTION>
Proposed Proposed Maximum
Title of Each Class of Amount to Maximum Offering Aggregate Offering Amount of
Securites to be Registered be Registered Price Per Share Price Registration Fee
(1) (2)
____________________________________________________________________________________________________________
<S> <C> <C> <C> <C>
Common Stock, par value 2,595,997 $16.14 $41,899,391 n/a
$0.10 per share shares
____________________________________________________________________________________________________________
(1) The 2,595,997 shares of Common Stock (which are issuable upon the exercise of certain warrants)
were originally registered pursuant to Registration Statement No. 33-40136 on Form S-4. This
Post-Effective Amendment No. 1 amends Registration Statement No. 33-40136 to convert Registration
Statement No. 33-40136 from a Registration Statement on Form S-4 to a Registration Statement on
Form S-3.
(2) In connection with Registration Statement No. 33-40136 on Form S-4, a registration fee of
$122,417 has been paid with respect to the 2,595,997 shares of Common Stock and the other
securities registered thereunder.
</TABLE>
____________________
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or a
solicitation of an offer to buy nor shall there be any sale of the securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE>
PROSPECTUS Subject to Completion
Dated April 21, 1994
2,595,997 SHARES
USG CORPORATION
COMMON STOCK
($0.10 Par Value)
This Prospectus relates to the public offering by USG Corporation ("USG"
or the "Corporation") of up to 2,595,997 shares (the "Shares") of the
Corporation's common stock (the "Common Stock"), par value $0.10 per share, to
be issued from time to time continuing until the earlier of (i) May 5, 1998,
or (ii) the date upon which all Warrants (as defined herein) have been
exercised. The Shares are to be issued upon the exercise of warrants (the
"Warrants") issued in the Restructuring (as defined herein) pursuant to a
warrant agreement dated as of May 6, 1993 between the Corporation and Harris
Trust and Savings Bank as the Warrant Agent. See "Plan of Distribution."
Each Warrant entitles the holder (the "Warrantholder") to purchase one share
of Common Stock at a purchase price of $16.14 per share, subject to adjustment
under certain events. The Warrants expire at 4:00 p.m. Chicago time, on May
5, 1998.
If all of the Warrants are exercised, the Corporation will receive
proceeds of $42 million less expenses. However, there is no assurance that
any Warrants will be exercised. If the Corporation does receive any proceeds
from exercises of the Warrants, such proceeds may be received as late as May
5, 1998, the final date the Warrants may be exercised. See "Use of Proceeds."
Warrantholders will not recognize any gain or loss on the purchase of the
Shares for cash upon exercise of the Warrants. However, Warrantholders should
consult their own tax advisors. See "Federal Income Tax Consequences."
The Shares are offered hereby directly to the Warrantholders, and no
discounts, commissions or other compensation will be paid in connection
therewith. The Corporation has agreed to bear certain expenses in connection
with the registration and issuance of the Shares which expenses are estimated
to be approximately $30,000. See "Plan of Distribution."
The Common Stock is traded on the New York Stock Exchange (the "NYSE")
under the symbol "USG." The Warrants are traded on the NYSE under the symbol
"USGwt." Warrantholders are encouraged to obtain current trading price
information.
No person has been authorized to give any information or to make any
representations not contained in this Prospectus in connection with this
offering of the Shares, and if given or made, such information or
representations must not be relied upon as having been authorized by USG.
This Prospectus does not constitute an offer of any securities other than the
Shares to which it relates or an offer to sell or a solicitation of an offer
to buy in any jurisdiction in which such offer or solicitation may not be
legally made.
No action has been or will be taken by the Corporation that would permit
a public offering of the Shares or the circulation or distribution of this
Prospectus or any offering material in relation to the Corporation or the
Shares in any country or jurisdiction other than the United States where
action for that purpose is required.
THE SHARES OFFERED HEREBY INVOLVE CERTAIN RISKS. SEE "RISK FACTORS."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
_________________________
The date of this Prospectus is , 1994.
<PAGE>
AVAILABLE INFORMATION
The Corporation has filed with the Securities and Exchange Commission
(the "Commission" or the "SEC") a Registration Statement (the "Registration
Statement") (which term shall encompass all amendments, exhibits and schedules
thereto) under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Shares being offered hereby. This Prospectus does not
contain all the information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
Commission, and to which reference is hereby made. Such additional
information can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549 and at the following regional offices of the
Commission: Northwestern Atrium Center, 500 W. Madison Street, Suite 1400,
Chicago, Illinois 60661; and Seven World Trade Center, New York, New York
10048. Copies of such material can be obtained by mail from the public
reference section of the Commission at Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549 at prescribed rates. Statements made in this
Prospectus as to the contents of any contract, agreement or other document
referred to are not necessarily complete but such statements are complete in
all material respects for the purposes herein made. With respect to each such
contract, agreement or other document filed as an exhibit to the Registration
Statement, reference is made to the exhibit for a more complete description of
the matter involved, and each such statement shall be deemed qualified in its
entirety by such reference.
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, files periodic reports and other information with the
Commission. Such reports and other information filed with the Commission, as
well as the Registration Statement, can be inspected and copied at the public
reference facilities of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's regional offices located at Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661,
and Seven World Trade Center, New York, New York 10048. Copies of such
material can also be obtained by mail from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. Such reports and other information with respect to the Corporation are
available for inspection at the offices of the New York Stock Exchange, Inc.,
20 Broad Street, New York, New York 10005 and the Chicago Stock Exchange,
Inc., One Financial Place, 440 South LaSalle Street, Chicago, Illinois 60605.
INFORMATION INCORPORATED BY REFERENCE
The Corporation's Annual Report on Form 10-K for the year ended December
31, 1993 and its Quarterly Report on Form 10-Q for the quarter ended March 31,
1994 have been filed by the Corporation with the Commission (File No. 1-8864)
and are specifically incorporated herein by reference. The description of the
capital stock of USG contained in its registration statement on Form 8-A filed
with the Commission on April 16, 1993 is also specifically incorporated herein
by reference.
All documents filed by the Corporation with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this Prospectus and prior to the earlier of (i) May 5, 1998, or (ii) the
date upon which all Warrants have been exercised, shall be deemed to be
incorporated by reference in this Prospectus and to be part of this Prospectus
from the date of the filing of such document. Any statement contained herein
or in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Corporation hereby undertakes to provide without charge to each
person, including a beneficial owner, to whom a copy of this Prospectus has
been delivered, upon the written or oral request of such person, a copy of any
or all of the information filed by it that has been incorporated by reference
in this Prospectus (not including exhibits to the information that is
incorporated by reference herein unless such exhibits are specifically
incorporated by reference in such information). Requests for such information
should be directed to USG Corporation, 125 South Franklin Street, Chicago,
Illinois 60606-4678, Attention: Corporate Secretary (telephone number:
(312) 606-4000).
USG CORPORATION
Through its subsidiaries (the "Subsidiaries"), USG is a leading
manufacturer of building materials in North America which produces a wide
range of products for use in residential and nonresidential construction,
repair and remodeling, as well as products used in certain industrial
processes. United States Gypsum Company ("U.S. Gypsum") is the largest
producer of gypsum wallboard in the United States and accounted for
approximately one-third of total domestic gypsum wallboard sales in 1993. USG
Interiors, Inc. is a leading supplier of interior ceiling, wall and floor
products used primarily in commercial applications. In 1993, USG Interiors,
Inc. was the largest producer of ceiling grid and the second largest producer
of ceiling tile in the United States. L&W Supply Corporation is the largest
distributor of wallboard and related products in the United States and in 1993
distributed approximately 22% of U.S. Gypsum's wallboard production. In
addition to its United States operations, the Corporation's 76% owned
Subsidiary, CGC Inc. is the largest manufacturer of gypsum products in eastern
Canada and the Corporation's USG International unit supplies interior systems
and gypsum wallboard products in Europe, the Pacific and Latin America.
On May 6, 1993, the Corporation completed a comprehensive restructuring
of its debt (the "Restructuring") through implementation of a "prepackaged"
plan of reorganization under the federal bankruptcy laws. The Restructuring
significantly reduced the Corporation's overall interest and debt repayment
obligations and extended the maturities of a substantial portion of its
remaining debt. In the Restructuring, the Corporation (i) converted
approximately $1.4 billion of subordinated debt and accrued interest into
Common Stock and the Warrants, (ii) converted approximately $340 million of
its bank obligations into 10 1/4% Senior Notes due 2002 (the "Senior 2002
Notes"), and (iii) extended the maturities of its remaining bank obligations
and certain public debt. Subsequent to the Restructuring, the Corporation
also completed an exchange offer that converted an additional $138 million of
bank debt into Senior 2002 Notes and reduced scheduled bank debt amortization.
See "Risk Factors."
In February and March 1994, the Corporation completed a public offering
of 7.9 million shares of its Common Stock (the "Equity Offering") yielding net
proceeds of $224 million to the Corporation. The Equity Offering was part of
a larger refinancing plan which also included a $150 million note placement,
the amendment of USG's credit agreement and utilization of $158 million of
cash generated from operations. The refinancing strategy will: (i) reduce the
Corporation's total debt by up to $276 million principal
amount, including a $140 million prepayment of scheduled bank debt
amortization, (ii) obtain an increase in its revolving credit facility by
$70 million, (iii) extend the final maturity of a significant amount of its
remaining debt, (iv) improve its financial and operating flexibility under its
bank credit agreement, and (v) provide an estimated $106 million in funds for
general corporate purposes. Despite the improved financial flexibility
provided by the refinancing plan, the Corporation remains highly leveraged.
Warrantholders should consider carefully the factors set forth under the
caption "Risk Factors", as well as the other information set forth in this
Prospectus prior to deciding whether or not to exercise the Warrants. See
"Risk Factors."
The Corporation's principal executive offices are located at 125 South
Franklin Street, Chicago, Illinois 60606. Its telephone number at that
address is 312-606-4000.
RISK FACTORS
Warrantholders should consider carefully the factors set forth below, as
well as the other information set forth in this Prospectus prior to deciding
whether or not to exercise the Warrants.
High Leverage
The Corporation is highly leveraged. As of December 31, 1993, the
Corporation had $1,531 million principal amount of total debt (which had a
carrying amount of $1,476 million on the Corporation's balance sheet after
deducting unamortized reorganization debt discount of $55 million) and a
deficit in stockholders' equity of $134 million. As adjusted to reflect the
Equity Offering and the debt repayments made or to be made in connection
therewith, the Corporation's total principal amount of debt and stockholders'
equity as of December 31, 1993 would have been $1,255 million and $89 million,
respectively. The Corporation is expected to have a deficit in stockholders'
equity at least during the period from 1993 through 1998 when reorganization
value in excess of identifiable assets ("Excess Reorganization Value") will be
amortized. See "Risk Factors - Recent Losses."
The degree to which the Corporation is leveraged will pose risks to
holders of the Common Stock, including, but not limited to, the following:
(i) a significant portion of the Corporation's cash flow from operations will
be dedicated to the payment of principal and interest on its indebtedness,
thereby reducing the funds available to the Corporation for its operations;
(ii) the Corporation's ability to obtain additional financing in the future
for working capital, capital expenditures, acquisitions, general corporate
purposes or other purposes will be restricted; (iii) certain of the
Corporation's borrowings are and will continue to carry variable rates of
interest, which could result in higher interest expense in the event of an
increase in interest rates; and (iv) certain indebtedness contain financial
and restrictive covenants, the failure to comply with which may result in an
event of default which, if not cured or waived, could have a material adverse
effect on the Corporation. These and other factors could have material
adverse effects on the marketability, price and future value of the Common
Stock.
Liquidity; Reliance on Recovery In Construction-Based Markets
The Corporation believes that cash generated by operations and the
estimated levels of liquidity available to the Corporation will be sufficient
to permit the Corporation to satisfy its debt service requirements and other
capital requirements for the foreseeable future. However, the Corporation is
subject to significant business, economic and competitive uncertainties that
are beyond its control. Therefore, there can be no assurance that the
Corporation's financial resources will be sufficient for the Corporation to
satisfy its debt service obligations and other capital requirements. See
"Risk Factors - Cyclical Business."
Recent Losses
During the period from May 7 through December 31, 1993, the Corporation
reported a net loss of $129 million after the amortization of $113 million of
Excess Reorganization Value. The Corporation expects to report net losses at
least until its Excess Reorganization Value is fully amortized in 1998. Such
amortization will be $170 million per year in 1994 through 1997 and
$57 million in 1998. Although a significant portion of the Corporation's
recent net losses are the result of non-cash items, there can be no assurance
that the Corporation will have net income in the future.
Cyclical Business
The Corporation's business is cyclical in nature and sensitive to
changes in general economic conditions, including, in particular, conditions
in the housing and construction-based markets. These markets are in turn
influenced by a variety of factors beyond the Corporation's control, including
interest rates. As a result of this cyclicality, the Corporation has
experienced and in the future could experience reduced revenues and margins,
which may affect the Corporation's ability to satisfy its debt service
obligations on a timely basis. During 1992, a modest recovery in the
Corporation's markets was evidenced by increases in housing starts and
wallboard pricing and shipments, in addition to improvement in sales of other
construction products over 1991. This recovery continued in 1993. However,
there can be no assurance that the modest recovery which began in 1992 will
continue.
Noncomparability of Historical Financial Information
As a result of the adoption of fresh start accounting upon emergence
from bankruptcy, the Corporation's assets and liabilities were adjusted to
fair values and retained earnings were restated to zero. The historical
financial information presented or incorporated by reference herein should
not, therefore, be viewed as indicative of the Corporation's future financial
performance.
Asbestos Litigation
One of the Corporation's subsidiaries, U.S. Gypsum, is a defendant in
asbestos lawsuits alleging property damage (the "Property Damage Cases") and
personal injury (the "Personal Injury Cases") and seeking compensatory and, in
many cases, punitive damages. This litigation has not had a material effect
on the Corporation's liquidity or earnings. To date, virtually all costs of
the Personal Injury Cases have been paid by insurance. U.S. Gypsum estimates
that it is probable that the Personal Injury Cases pending at December 31,
1993 can be disposed of for an amount between $100 million and $120 million,
virtually all of which is expected to be paid by insurance. U.S. Gypsum is
unable to make a reasonable estimate of the cost of disposing of its pending
Property Damage Cases, some of which are class actions or involve multiple
buildings. Many of U.S. Gypsum's insurance carriers are denying coverage for
the Property Damage Cases, although U.S. Gypsum believes that substantial
coverage exists and the trial court in U.S. Gypsum's insurance coverage action
(the "Coverage Action") against its carriers has so ruled (such ruling has
been appealed).
In view of the limited insurance funding currently available to U.S.
Gypsum for Property Damage Cases resulting from continued resistance by a
number of its insurers to providing coverage, the effect of the asbestos
litigation on the Corporation will depend upon a variety of factors, including
the damages sought in Property Damage Cases that reach trial prior to the
completion of the Coverage Action, U.S. Gypsum's ability to successfully
defend or settle such cases, and the resolution of the Coverage Action. As a
result, management is unable to determine whether an adverse outcome in the
asbestos litigation will have a material adverse effect on the results of
operations or the consolidated financial position of the Corporation. The
Corporation's independent public accountants have also noted this uncertainty
in their report with respect to the financial statements of the Corporation.
Credit Agreement and Other Restrictions
USG's credit agreement (the "Credit Agreement") contains certain
restrictions on the Corporation's operations including, among other things,
limitations on the ability of the Corporation and certain of the Subsidiaries
("Restricted Subsidiaries") to (i) incur additional indebtedness, subject to
certain exceptions, including an exception allowing an aggregate of $50
million of capitalized lease obligations and an aggregate of $75 million of
indebtedness to be incurred by foreign Subsidiaries that are not Restricted
Subsidiaries, (ii) make any investments in excess of $20 million in the
aggregate, subject to certain exceptions, including an exception allowing the
Corporation (subject to certain terms and conditions) to repurchase its public
senior debt with certain proceeds of permitted asset sales, certain proceeds
from the issuance of public equity or debt securities and certain excess cash
flow otherwise payable to the banks under the Credit Agreement, (iii) make
capital expenditures, subject to various exceptions and limitations, or sell
assets outside the ordinary course of business, subject to certain exceptions,
including an exception allowing for sales of up to $20 million in any fiscal
year and $5 million in any single transaction or series of related
transactions, (iv) make certain payments with respect to outstanding stock and
debt, (v) give guarantees, and (vi) effect certain fundamental changes, such
as the sale of all or substantially all of the Corporation's or any Restricted
Subsidiary's assets, or enter into mergers, recapitalizations or other similar
transactions. Although the recent amendments to the Credit Agreement are
designed to increase the Corporation's financial and operating flexibility in
certain regards, the foregoing restrictions nonetheless will continue to limit
the Corporation's ability to respond to opportunities or changes in its
business.
In addition, after January 1, 1995, the Credit Agreement will require
the Corporation to achieve and maintain certain financial ratios and tests.
There can be no assurance that the Corporation will be able to achieve and
maintain compliance with the prescribed financial ratios and tests or other
requirements under the Credit Agreement. Failure to achieve or maintain
compliance with such financial ratios and tests or other requirements under
the Credit Agreement would result in a default that could lead to the
acceleration of the Corporation's obligations under the Credit Agreement. An
acceleration under the Credit Agreement would in turn permit the acceleration
of other indebtedness of the Corporation. The acceleration of any such
indebtedness would result in its becoming immediately due and payable and
could result in the Corporation becoming subject to a proceeding under the
federal bankruptcy laws.
In addition to the restrictions and covenants contained in the Credit
Agreement, the Senior 2002 Notes contain restrictions on the ability of the
Corporation and the Subsidiaries to incur additional indebtedness, to pay
dividends on the Common Stock, to effect certain fundamental changes and to
enter into certain types of transactions.
Restrictions on Common Stock Dividends
The Corporation anticipates that no cash dividends will be paid on the
Common Stock for the foreseeable future. Further, the Corporation's ability
to pay cash dividends on the Common Stock is restricted under a number of the
Corporation's existing agreements. For example, the Senior 2002 Notes
prohibit the payment of cash dividends on the Common Stock subject to certain
limited exceptions and the Credit Agreement prohibits the payment of any cash
dividends on the Common Stock. See "Dividend Policy."
Antitakeover Provisions
The Corporation's Certificate of Incorporation, the Corporation's
Shareholder Rights Plan and the Delaware General Corporation Law contain
provisions that could have the effect of delaying or preventing transactions
that result in a change of control of the Corporation, including transactions
in which stockholders might otherwise receive a substantial premium for their
shares of Common Stock over then current market prices, and may limit the
ability of stockholders to approve transactions that they may deem to be in
their best interests.
Future Distributions or Sales of Common Stock
Water Street Corporation Recovery Fund I, L.P. ("Water Street"),
together with its affiliates Goldman, Sachs & Co. and The Goldman Sachs Group,
L.P, (collectively the "Water Street Entities"), beneficially own 9,630,840
shares of Common Stock (including 116,070 of the Warrants), or approximately
21% of the Common Stock outstanding as of March 22, 1994. Goldman, Sachs &
Co. is the general partner of Water Street. Messrs. Zubrow and Fetzer, who
are directors of the Corporation, are general partners of Goldman, Sachs & Co.
On February 25, 1993, the Corporation entered into a letter agreement
with the Water Street Entities (the "Water Street Agreement"). The Water
Street Agreement, among other things, (i) restricts purchases of Common Stock
by the Water Street Entities; (ii) governs voting by the Water Street Entities
of shares of Common Stock beneficially owned by them; (iii) restricts
transfers by the Water Street Entities of shares of Common Stock to any
person, except for (a) sales consistent with Rule 144 of the Securities Act,
(b) underwritten public offerings, (c) person not known to be 5% holders, (d)
pledgees who agree to be bound by certain provisions of the Water Street
Agreement, (e) in the case of Water Street, distributions to Water Street's
partners in accordance with the governing partnership agreement, (f) pursuant
to certain tender or exchange offers for shares of Common Stock and (g)
pursuant to transactions approved by the Board; (iv) requires that the
Corporation's Shareholder Rights Plan provide temporary exemptions for
ownership of Common Stock by the Water Street Entities; and (v) provides Water
Street with four demand registrations and unlimited piggyback registrations,
subject to certain limitations. During the 120-day period after the effective
date of the Equity Offering (as defined herein), Water Street (and, if it
distributes Common Stock to the partners of Water Street, those partners)
shall not request a demand registration of Common Stock. In addition, during
such 120-day period, Water Street and Goldman, Sachs & Co. shall not sell or
otherwise dispose of any shares of Common Stock or Warrants, except that, at
any time after 90 days after the effective date of the Equity Offering, Water
Street may distribute all or any portion of its shares of Common Stock and
Warrants to the partners in Water Street in accordance with its governing
partnership agreement. In the event of any such distribution by Water Street,
the partners (other than Goldman, Sachs & Co.) would not be subject to the
restriction on selling shares of Common Stock or Warrants during the remainder
of the 120-day period. Except in the case of the Equity Offering, the
Corporation and Water Street have mutual piggyback rights on registrations
initiated by either, generally on a 50-50 basis.
There can be no assurance as to what effect future distributions of
Common Stock by Water Street to its partners or future sales by Water Street
or its partners would have on the trading markets for the Common Stock.
USE OF PROCEEDS
If all of the Warrants are exercised the Corporation will receive
proceeds of $42 million less expenses. However, there is no assurance that
any Warrants will be exercised. If the Corporation does receive any proceeds
from exercises of the Warrants, such proceeds may be received as late as May
5, 1998, the final date the Warrants may be exercised. The Corporation
expects to use any proceeds received in connection with the exercise of the
Warrants for general corporate purposes.
DIVIDEND POLICY
Since July 1988, the Corporation has not declared or paid any cash
dividends on its Common Stock. The Corporation does not presently intend to
pay any dividends in the foreseeable future. In addition, the Corporation's
Credit Agreement and certain other debt instruments currently restrict the
Corporation's ability to pay dividends to common stockholders. Moreover, the
Corporation is prohibited from paying any dividends without surplus earnings
or capital earmarked for this purpose under Delaware corporate law. See "Risk
Factors - Restrictions on Common Stock Dividends."
PLAN OF DISTRIBUTION
The Shares offered hereby are being offered directly by the Corporation
to the Warrantholders in connection with the exercise of the Warrants. The
Warrants may be exercised from time to time continuing until 4:00 p.m. Chicago
time, on May 5, 1998. The Shares are offered directly to the Warrantholders
and no discounts, commissions or other compensation will be paid in connection
therewith. The Corporation has reserved 2,595,997 shares of Common Stock for
issuance upon exercise of the Warrants.
The Corporation has agreed to bear certain expenses in connection with
the registration and issuance of the Shares which expenses are estimated to be
approximately $30,000.
FEDERAL INCOME TAX CONSEQUENCES
Warrantholders will not recognize any gain or loss on the purchase of
Shares for cash upon exercise of the Warrants. The tax basis of the Shares
received will be equal to the tax basis, as adjusted, in the Warrants so
exercised, plus the cash exercise price. The holding period of the Shares
received will not include any period during which the Warrants were held.
While not free from doubt, the holding period for such Shares should commence
upon the day after the exercise of the related Warrants. Warrantholders
should consult their own tax advisors concerning the federal income tax
consequences of the receipt, sale, exchange or other disposition of the
Warrants, and concerning their tax basis in the Warrants. Warrantholders
should also consult their own tax advisors as to the tax treatment arising
from the application of foreign, state or local tax laws and regulations.
LEGAL MATTERS
The validity of the Shares will be passed upon by Kirkland & Ellis,
Chicago, Illinois.
EXPERTS
The consolidated financial statements and supplemental schedules of the
Corporation and the Subsidiaries as presented in its Annual Report on Form 10-
K, incorporated in this prospectus by reference, have been audited by Arthur
Andersen & Co., independent public accountants, as stated in their report
appearing therein and have been so incorporated in reliance upon such report
given upon the authority of that firm as experts in giving said reports.
Reference is made to said reports, which (1) for the Restructured Company,
includes an explanatory paragraph with respect to the asbestos litigation as
discussed in Notes to the Financial Statements - "Litigation" note; and (2)
for the Predecessor Company, includes an explanatory paragraph with respect to
the asbestos litigation as discussed in Notes to the Financial Statements -
"Litigation" note and an explanatory paragraph with respect to the changes in
the methods of accounting for postretirement benefits other than pensions and
accounting for income taxes as discussed in Notes to Financial Statements -
"Cumulative Effect of Changes in Accounting Principles" note.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following are the estimated expenses of the issuance and
distribution of the securities being registered, including fees and expenses
previously incurred by the Corporation, other than any underwriting
compensation.
Item Amount
Legal Fees and Expenses $ 15,000
Accountants' Fees and Expenses 5,000
Miscellaneous Expenses 10,000
Total $ 30,000
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law ("Section 145")
(a) gives Delaware corporations broad powers to indemnify their present and
former directors and officers and those of affiliated corporations against
expenses incurred in the defense of any lawsuit to which they are made parties
by reason of being or having been such directors or officers, subject to
specified conditions and exclusions, (b) gives a director or officer who
successfully defends an action the right to be so indemnified, and
(c) authorizes the corporation to buy directors' and officers' liability
insurance. Such indemnification is not exclusive of any other right to which
those indemnified may be entitled under any bylaw, agreement, vote of
stockholders or otherwise.
A bylaw provides that the Corporation (a) shall indemnify every person
who is or was a director or officer of the Corporation or is or was serving at
the Corporation's request as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise and (b) shall, if the
board of directors so directs, indemnify any person who is or was an employee
or agent of the Corporation or is or was serving at the Corporation's request
as an employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, to the extent, in the manner, and subject to
compliance with the applicable standards of conduct, provided by Section 145
as the same (or any substitute provision therefor) may be in effect from time
to time.
Any such indemnification shall 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.
The Corporation has procured insurance for the purpose of substantially
covering its future potential liability for indemnification under Section 145
as discussed above and certain future potential liability of individual
officers or directors incurred in their capacity as such which is not subject
to indemnification.
The Corporation has entered into Indemnification Agreements with each of
its officers and directors. The Indemnification Agreements provide that the
Corporation shall indemnify and keep indemnified the indemnitee to the fullest
extent authorized by Section 145 as it may be in effect from time to time from
and against any expenses (including expenses of investigation and preparation
and reasonable fees and disbursements of legal counsel, accountants and other
experts), judgments, fines and amounts paid in settlement by the indemnitee in
connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, and
whether or not the cause of action, suit or proceeding incurred before or
after the date of the Indemnification Agreement. The Indemnification
Agreements further provide for advancement of amounts to cover expenses
incurred by the indemnitee in defending any such action, suit or proceeding
subject to an undertaking by the indemnitee to repay any expenses advanced
which it is later determined he or she was not entitled to receive.
Item 16. Exhibits and Financial Statement Schedules
(a) The following is a complete list of Exhibits filed as a part of
this Registration Statement:
See Exhibit Index
Item 17. Undertakings
The 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;
(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.
(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.
(4) 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 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 the initial bona fide
offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed int he Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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 of
whether such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such
issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Chicago,
State of Illinois on April 21, 1994.
USG CORPORATION
By: /s/ Richard H. Fleming
Richard H. Fleming
Vice President and Chief Financial
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on April 21, 1994, by the following
persons in the capacities indicated:
Signature Title
* Chairman of the Board, Chief Executive Officer
Eugene B. Connolly and Director (Principal Executive Officer)
President, Chief Operating Officer and Director
William C. Foote
/s/ Richard H. Fleming Vice President and Chief Financial Officer
Richard H. Fleming (Principal Financial Officer)
/s/ Raymond T. Belz Vice President and Controller
Raymond T. Belz (Principal Accounting Officer)
* Director
Robert L. Barnett
* Director
Keith A. Brown
Director
W.H. Clark
* Director
James C. Cotting
* Director
Lawrence M. Crutcher
* Director
Wade Fetzer III
* Director
David W. Fox
* Director
Philip C. Jackson, Jr.
* Director
Marvin E. Lesser
Director
John B. Schwemm
Director
Judith A. Sprieser
* Director
Alan G. Turner
* Director
Barry L. Zubrow
*By: /s/ Richard H. Fleming
Richard H. Fleming
Attorney-in-fact
<PAGE>
EXHIBIT INDEX
The following documents are the exhibits to this Registration Statement
on Form S-3. For convenient reference, each exhibit is listed according to
the Exhibit Table of Regulation S-K. The page number, if any, listed opposite
an exhibit indicates the page number in the sequential numbering system in the
manually signed original of this Registration Statement on Form S-3 where such
exhibit can be found.
Exhibit
No. Page
3. Articles of incorporation and by-laws:
(a) Restated Certificate of Incorporation of USG Corporation
(incorporated by reference to Exhibit 3.1 of USG
Corporation's Form 8-K, dated May 7, 1993).
(b) Amended and Restated By-Laws of USG Corporation, dated
as of May 12, 1993 (incorporated by reference to Exhibit
3(b) of Amendment No. 1 to USG Corporation's
Registration Statement No. 33-61162 on Form S-1, dated
June 16, 1993).
4. Instruments defining the rights of security holders, including
indentures:
(a) Indenture dated as of October 1, 1986 between USG
Corporation and Harris Trust and Savings Bank, Trustee
(incorporated by reference to Exhibit 4(a) of USG
Corporation's Registration Statement No. 33-9294 on Form
S-3, dated October 7, 1986).
(b) Resolutions dated December 16, 1986 of a Special
Committee created by the Board of Directors of USG
Corporation (incorporated by reference to Exhibit 4(b)
of USG Corporation's 1993 Annual Report on Form 10-K,
filed on February 24, 1994).
(c) Resolutions dated March 5, 1987 of a Special Committee
created by the Board of Directors of USG Corporation
(incorporated by reference to Exhibit 4(c) of USG
Corporation's 1993 Annual Report on Form 10-K, filed on
February 24, 1994).
(d) Resolutions dated March 6, 1987 of a Special Committee
created by the Board of Directors of USG Corporation
(incorporated by reference to Exhibit 4(d) of USG
Corporation's 1993 Annual Report on Form 10-K, filed on
February 24, 1994).
(e) Resolutions dated April 26, 1993 of a Special Committee
created by the Board of Directors of USG Corporation
relating to USG Corporation's 8% Senior Notes due 1995
and 9% Senior Notes due 1998 (incorporated by reference
to Exhibit 4.1 of USG Corporation's Form 8-K, dated
May 7, 1993).
(f) Consent Resolutions adopted by a Special Committee
created by the Board of Directors of USG Corporation
relating to USG Corporation's 9 1/4% Senior Notes due
2001 (incorporated by reference to Exhibit 4(f) of USG
Corporation's Amendment No. 1 to Registration Statement
No. 33-51845 on Form S-1, filed on February 16, 1994).
(g) Consent Resolutions adopted by a Special Committee
created by the Board of Directors of USG Corporation
relating to USG Corporation's 9 1/4% Senior Notes due
2001, Series B (incorporated by reference to
Exhibit 4(g) of USG Corporation's Amendment No. 1 to
Registration Statement No. 33-52433 on Form S-4, filed
on March 21, 1994).
(h) Indenture dated as of April 26, 1993 among USG
Corporation, certain guarantors and State Street Bank
and Trust Company, as Trustees, relating to USG
Corporation's 10 1/4% Senior Notes due 2002 (incorporated
by reference to Exhibit 4.2 of USG Corporation's Form
8-K, dated May 7, 1993).
(i) Indenture dated as of August 10, 1993 among USG
Corporation, certain guarantors and State Street Bank
and Trust Company, as Trustee, relating to USG
Corporation's 10 1/4% Senior Notes due 2002, Series B
(incorporated by reference to Exhibit 4(f) of USG
Corporation's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1993 dated August 12, 1993.
(j) Warrant Agreement dated May 6, 1993 between USG
Corporation and Harris Trust and Savings Bank, as
Warrant Agent, relating to USG Corporation's Warrants
(incorporated by reference to Exhibit 4.3 of USG
Corporation's Form 8-K, dated May 7, 1993).
(k) Form of Warrant Certificate (incorporated by reference
to Exhibit 4(g) of Amendment No. 4 to USG Corporation's
Registration Statement No. 33-40136 on Form S-4, dated
November 12, 1992).
(l) Rights Agreement dated May 6, 1993 between USG
Corporation and Harris Trust and Savings Bank, as Rights
Agent (incorporated by reference to Exhibit 10.1 of USG
Corporation's Form 8-K, dated May 7, 1993).
(m) Form of Common Stock certificate (incorporated by
reference to Exhibit 4.4 to USG Corporation's Form 8-K,
dated May 7, 1993).
The Corporation and certain of its consolidated
subsidiaries are parties to long-term debt instruments
under which the total amount of securities authorized
does not exceed 10% of the total assets of the
Corporation and its subsidiaries on a consolidated
basis. Pursuant to paragraph (b)(4)(iii)(A) of Item 601
of Regulation S-K, the Corporation agrees to furnish a
copy of such instruments to the Securities and Exchange
Commission upon request.
5. Opinions of counsel as to the legality of the securities being
registered.
23. Consents of experts and counsel.
(a) Consent of Arthur Andersen & Co.
(b) Consents of counsel (included in Exhibit 5).
24. Power of attorney.
EXHIBIT 5
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
To call writer direct: Facsimile
(312) 861-2000 (312) 861-2200
April 21, 1994
USG Corporation
125 South Franklin Street
Chicago, Illinois 60606
Ladies and Gentlemen:
We have acted as counsel to USG Corporation, a Delaware
corporation (the "Corporation"), in connection with the
registration of up to 2,595,997 shares (the "Shares") of common
stock, par value $.10 per share, of the Corporation on Post-
Effective Amendment No. 1 on Form S-3 to Registration Statement
No. 33-40136 on Form S-4. Post-Effective Amendment No. 1 on Form
S-3 was filed with the Securities and Exchange Commission (the
"Commission") on April 21, 1994 (such Post-Effective Amendment
No. 1 on Form S-3 together with any exhibits or amendments
thereto, "Post-Effective Amendment No. 1"). The Shares were
originally registered pursuant to Registration Statement No. 33-
40136 on Form S-4. Post-Effective Amendment No. 1 amends
Registration Statement No. 33-40136 to convert Registration
Statement No. 33-40136 from a Registration Statement on Form S-4
to a Registration Statement on Form S-3.
The Shares are to be issued by the Corporation from
time to time upon the exercise of warrants (the "Warrants")
issued pursuant to a plan of reorganization under Title 11 of the
United States Code confirmed by a federal bankruptcy court, and
under a warrant agreement (the "Warrant Agreement") dated as of
May 6, 1993 between the Corporation and Harris Trust and Savings
Bank as the Warrant Agent.
We have examined the Corporation's certificate of
incorporation, bylaws, resolutions of its board of directors and
originals, or copies certified or otherwise identified to our
satisfaction, of such other documents, corporate records and
other instruments as we have deemed necessary for the purpose of
this opinion and such other matters of fact and law which we have
deemed necessary in order to render this opinion.
For the purposes of this opinion, we have assumed the
authenticity of all documents submitted to us as originals, the
conformity to the originals of all documents submitted to us as
copies, and the authenticity of the originals of all documents
submitted to us as copies. We have also assumed the genuineness
of the signatures of persons signing all documents in connection
with which this opinion is rendered, the authority of such
persons signing on behalf of the parties thereto other than the
Corporation, and the due authorization, execution and delivery of
all documents by parties thereto other than the Corporation.
Based upon the foregoing, we are of the opinion that
when, as and if (i) Post-Effective Amendment No. 1 shall have
become effective pursuant to the provisions of the Securities Act
of 1933, as amended, (ii) the Warrants are exercised in
compliance with the terms of the Warrant Agreement, (iii) the
Corporation shall have received the applicable purchase price for
the Shares under the Warrants, (iv) the Shares shall have been
issued in the form and containing the terms described in Post-
Effective Amendment No. 1, the Warrant Agreement, and the
resolutions of the Corporation's Board of Directors (and any
authorized committee thereof), and (v) the Shares will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an
exhibit to Post-Effective Amendment No. 1 and to the reference to
us under the heading entitled "Legal Matters" in the Prospectus
which is part of Post-Effective Amendment No. 1.
We do not find it necessary for purposes of this
opinion, and accordingly do not purport to cover herein, the
application of the securities or "Blue Sky" laws of the various
states to the sale of the Shares. We render no opinion as to the
laws of any jurisdiction other than the internal law of the State
of Illinois and the United States of America and the internal
corporate law of the State of Delaware.
This opinion is being furnished to the addressee in
connection with the filing of Post-Effective Amendment No. 1, and
is not to be used, circulated, quoted or otherwise relied upon
for any other purpose.
Very truly yours,
/s/ KIRKLAND & ELLIS
KIRKLAND & ELLIS
Exhibit 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
January 31, 1994, and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen & Co.
ARTHUR ANDERSEN & CO.
Chicago, Illinois,
April 21, 1994
POWER OF ATTORNEY Exhibit 24
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Richard H. Fleming, John E. Malone and Raymond
T. Belz and each of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for and in his or
her name, place and stead, in any and all capacities, to sign a Registration
Statement on Form S-3 relating to shares of USG Corporation's common stock
issuable in connection with the exercise of outstanding warrants of USG
Corporation, and any or all amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
This power of attorney has been signed as of February 9, 1994 by the
following persons.
/s/ Eugene B. Connolly /s/ David W. Fox
Eugene B. Connolly David W. Fox
Chairman of the Board, Director
Chief Executive Officer,
and Director
/s/ Robert L. Barnett /s/ Philip C. Jackson,
Jr.
Robert L. Barnett Philip C. Jackson, Jr.
Director Director
/s/ Keith A. Brown /s/ Marvin E. Lesser
Keith A. Brown Marvin E. Lesser
Director Director
/s/ James C. Cotting /s/ Alan G. Turner
James C. Cotting Alan G. Turner
Director Director
/s/ Lawrence M. Crutcher /s/ Barry L. Zubrow
Lawrence M. Crutcher Barry L. Zubrow
Director Director
/s/ Wade Fetzer III
Wade Fetzer III
Director
