As filed with the Securities and Exchange Commission on June 13, 1997.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
------------------------------------
FORM S-8
Registration Statement Under
the Securities Act of 1933
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USG CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 36-3329400
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
125 South Franklin Street
Chicago, Illinois 60606
(Address of Principal Executive Offices)
PART B OF USG CORPORATION SUPPLEMENTAL
RETIREMENT PLAN, AS AMENDED AND RESTATED
(Full Title of the Plan)
Dean H. Goossen Telephone number,
Corporate Secretary including area code,
USG Corporation of agent for service:
125 South Franklin Street (312) 606-4000
Chicago, Illinois 60606
(Name and Address of Agent For Service)
- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Unit Price (1) Fee
- --------------------------------------------------------------------------------
Supplemental Retirement
Plan Obligations (2)(3) $100,000,000 NA $100,000,000 $33,303.03
- --------------------------------------------------------------------------------
(1) Estimated solely for the purposes of determining the registration fee.
(2) The Supplemental Retirement Plan Obligations are unsecured obligations
of USG Corporation to pay deferred compensation in the future in
accordance with the terms of Part B of USG Corporation Supplemental
Retirement Plan, as amended and restated.
(3) Participants in the Plan may elect to have the Obligations treated as
if such amount had been used to purchase USG Corporation Common Stock.
For purposes of this Registration Statement, this investment option is
referred to as a Common Stock Index. The Common Stock Index will accrue
earnings (or losses) on the Obligations based on the performance of USG
Corporation Common Stock. No additional consideration will be paid for
the Common Stock Index.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
----------------------------------------
The following documents are incorporated by reference into
this Registration Statement:
(1) The Annual Report of USG Corporation (the "Company") on Form 10-K for the
fiscal year ended December 31, 1996, which has heretofore been filed by the
Company with the Securities and Exchange Commission (the "Commission") pursuant
to the Securities Exchange Act of 1934, as amended (the "1934 Act").
(2) The Company's Quarterly Report on Form 10-Q for the first
quarterly period ended March 31, 1997, which has heretofore been filed by the
Company with the Commission pursuant to the 1934 Act.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment that indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing of such documents (such documents, and the
documents enumerated above, being hereinafter referred to as "Incorporated
Documents"); provided, however, that the documents enumerated above or
subsequently filed by the registrant pursuant to Section 13(a), 13(c), 14 and
15(d) of the 1934 Act in each year during which the offering made by this
Registration Statement is in effect prior to the filing with the Commission of
the Company's Annual Report on Form 10-K covering such year shall not be
Incorporated Documents or be incorporated by reference in this Registration
Statement or be a part hereof from and after the filing of such Annual Reports.
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.
--------------------------
Part B of USG Corporation Supplemental Retirement Plan, as
Amended and Restated (the "Plan") provides eligible employees ("Participant(s)")
of the Company and its participating subsidiaries ("Employers") with an
opportunity to defer a portion of their compensation and accumulate tax-deferred
earnings thereon. Participants are eligible for specified Employer matching
contributions, based on a certain portion of their deferrals.
Deferrals and Employer matching contributions are credited to
Participants' bookkeeping accounts. Each account is indexed, in accordance with
Participant elections, to one or more of eight investment funds offered to
Participants in the USG Corporation Investment Plan, one of which is a fund that
invests primarily in Common Stock of the Company (the Common Stock Index). Each
account is adjusted to reflect the investment experience of the corresponding
investment fund or funds. This is, however, only a bookkeeping entry and not an
actual purchase of the Company's Common Stock or any of the other investment
funds. To the extent that the dividends are paid on the Company's Common Stock,
a like amount will be added to Participants' account and deemed reinvested in
Common Stock. The Common Stock Index may be deemed to be a "security" under the
Securities Act and, as such, it is being registered on this Form S-8
Registration Statement.
The Obligations registered hereunder cannot be alienated,
sold, transferred, assigned, pledged, attached, garnished, or otherwise
encumbered. Benefits under the Plan including payments under the Obligations
registered hereunder will be made entirely in cash and may be received (i) while
the Participant is employed at an Employer, if the payment is necessary for the
Participant to satisfy a financial hardship; (ii) at retirement in a lump sum or
in monthly payments up to 15 years; or (iii) in a lump sum upon termination of
employment prior to retirement. Upon death, any such benefits not previously
paid out will be paid to a designated beneficiary. Income taxes on deferred
amounts, including earnings thereon, will not be required to be paid until such
benefits are paid to the Participant or his or her beneficiary.
Participants are unsecured general creditors of the Employers
with respect to their Plan benefits, including payments under the Obligations
registered hereunder. Benefits are payable from the Employers' general assets,
and are subject to the risk of corporate insolvency.
The Obligations are not subject to redemption, in whole or in
part, prior to the termination of employment, retirement or death of the
Participant except for hardship withdrawal as provided in the Plan. The
Obligations are not convertible into another security of the Company. The
Obligations will not have the benefit of a negative pledge or any other
affirmative or negative covenant on the part of the Company. No trustee has been
appointed having the authority to take action with respect to the Obligations.
The Company reserves the right to amend or terminate the Plan,
provided that such amendment or termination does not result in any reduction of
a Participant's account balance as of the date of such amendment or termination,
as adjusted for earnings or losses.
The Company has appointed the USG Corporation Pension and
Investment Committee to assist in administering the Plan. The Committee has the
right to interpret the Plan and determine all other matters that might arise
under the terms and conditions of the Plan. Its decisions are final and binding
an all Participants.
Item 5. Interest of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
------------------------------------------
Section 145 of the Delaware General Corporation Law and
Article Tenth of the Certificate of Incorporation of the Company provide for
indemnification of directors and officers for expenses (including reasonable
amounts paid in settlement) incurred in defending actions brought against them.
The Company maintains directors and officers liability
insurance covering all directors and officers of the Company against claims
arising out of the performance of their duties.
Item 7. Exemption from Registration Claimed.
------------------------------------
Not applicable.
Item 8. Exhibits.
---------
Reference is made to the Exhibit Index.
Item 9. Undertakings.
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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 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, as amended (the "Act"), 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) That, for the purposes of determining any liability under
the Act, each filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the 1934 Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the 1934 Act)
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.
(4) 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.
(5) Insofar as indemnification for liabilities arising under
the Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 6 or otherwise, the
registrant has been advised that in the opinion of the 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the undersigned 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 Chicago, State of
Illinois, on the 13th day of June, 1997.
USG CORPORATION
By: /S/ Richard H. Fleming
----------------------
Richard H. Fleming
Senior Vice President and
Chief Financial Officer
Pursuant to the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 13th day of June, 1997.
Signature Title
--------- -----
/s/ William C. Foote
- ----------------------------- Chairman, President and Chief Executive Officer
William C. Foote (Principal Executive Officer)
/s/ Richard H. Fleming
- ----------------------------- Senior 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
W. Douglas Ford*
- ----------------------------- Director
David W. Fox*
- ----------------------------- Director
Philip C. Jackson, Jr.*
- ----------------------------- Director
Marvin E. Lesser*
- ----------------------------- Director
John B. Schwemm*
- ----------------------------- Director
Judith A. Sprieser*
*By: ------------------------
Dean H. Goossen,
Attorney-in-fact
<TABLE>
<PAGE>
EXHIBIT INDEX
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
4.1 The Company's Restated Certificate of Incorporation, as
amended (incorporated herein by reference to Exhibit
3.1 of the Company's Form 8-K, dated May 7, 1993).
4.2 The Company's Amended and Restated By-Laws (incorporated herein by reference to
Exhibit 3(b) of Amendment No. 1 to the Company's Registration Statement No. 33-61162
on Form S-1, dated June 16, 1993).
5* Opinion (including consent) of McDermott, Will & Emery.
15* Letter of Arthur Andersen LLP regarding unaudited interim financial information.
23.1* Consent of Arthur Andersen LLP.
24* Power of Attorney.
*Filed herewith.
</TABLE>
EXHIBIT 5
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June 13, 1997
USG Corporation
125 South Franklin Street
Chicago, Illinois 60606-4678
Re: $100,000,000 Supplemental
Retirement Plan Obligations
---------------------------
Ladies and Gentlemen:
We have acted as counsel for USG Corporation (the "Company") in
connection with the preparation and filing of a Registration Statement on Form
S-8 (the "Registration Statement") for the registration under the Securities Act
of 1933, as amended, of $100,000,000 of Supplemental Retirement Plan Obligations
(the "Plan Obligations"), which may be issued pursuant to Part B of USG
Corporation Supplemental Retirement Plan, as Amended and Restated (the "Plan").
We have examined or considered:
1. A copy of the Company's Restated Certificate
of Incorporation.
2. The By-Laws of the Company.
3. Telephonic confirmation of the Secretary of State
of Delaware, as of a recent date, as to the good standing of
the Company in that state.
4. Copies of resolutions duly adopted by the Board of
Directors of the Company relating to the Plan.
5. A copy of the Plan.
In addition to the examination outlined above, we have conferred with
various officers of the Company and have ascertained or verified, to our
satisfaction, such additional facts as we deemed necessary or appropriate for
the purposes of this opinion.
Based upon the foregoing, we are of the opinion that:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The Plan Obligations when issued and delivered as
contemplated by the Registration Statement and the Plan, will be duly
authorized and will constitute valid and binding obligations of the
Company, except as enforcement thereof may be limited by bankruptcy,
insolvency or other laws of general applicability relating to or
affecting enforcement of creditors' rights or by general principles of
equity.
(c) We understand that the Plan is intended to be an unfunded
Plan maintained primarily for the purpose of providing deferred
compensation for a select group of highly compensated employees. To the
extent that provisions of the Employee Retirement Income Security Act
("ERISA") apply to unfunded plans maintained primarily for the purpose
of providing deferred compensation for a select group of highly
compensated employees, the Plan complies with the requirements of
ERISA.
We hereby consent to all references to our Firm in the Registration
Statement and to the filing of this opinion by the Company as an Exhibit to the
Registration Statement.
Very truly yours,
/s/ Mc Dermott, Will & Emery
----------------------------
McDermott, Will & Emery
EXHIBIT 15
----------
June 13, 1997
USG Corporation
125 South Franklin Street
Chicago, Illinois 60660
We are aware that USG Corporation has incorporated by reference into its Form
S-8 Registration Statement its Form 10-Q for the quarter ended March 31, 1996,
which includes our report dated April 21, 1997, covering the unaudited interim
financial information contained therein. Pursuant to Regulation C of the
Securities Act of 1933, those reports are not considered a part of the
registration statement prepared or certified by our firm or reports prepared or
certified by our firm within the meaning of Sections 7 and 11 of the Act.
Very Truly Yours,
/s/ Arthur Andersen LLP
- -----------------------
Arthur Andersen LLP
EXHIBIT 23.1
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 27, 1997,
included in USG Corporation's Form 10-K for the year ended December 31, 1996,
and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
- ------------------------
ARTHUR ANDERSEN LLP
Chicago, Illinois
June 13, 1997
EXHIBIT 24
----------
Power of Attorney
WHEREAS, USG Corporation, a Delaware corporation, is about to file a
Registration Statement on Form S-8 with the Securities and Exchange Commission
under the Securities Act of 1933 relating to the registration of obligations to
pay deferred compensation under the USG Corporation Supplemental Retirement
Plan-Part B in an amount estimated at $100,000,000 solely for purposes of
calculating the registration fee;
NOW, THEREFORE, BE IT KNOWN, that each of the undersigned directors of
USG Corporation hereby constitutes and appoints William C. Foote, Richard H.
Fleming and Dean H. Goossen his or her true and lawful attorneys in fact, and
each of them with full power to act without the other his or her true and lawful
attorney in fact, and in such director's name, place and stead in any and all
capacities to sign such Registration Statement and any amendments,
post-effective amendments, and supplements so signed with all exhibits thereto
and any and all documents in connection therewith with the Securities and
Exchange Commission, hereby granting unto said attorneys in fact, and to each of
them, full power and authority to do and perform any and all acts and things
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 or any of them may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF the undersigned have hereunto set their hands as of
the 23rd day of May, 1997.
/s/ Robert L. Barnett /s/ Keith A. Brown
- ------------------------- --------------------------
Robert L. Barnett, Keith A. Brown,
Director Director
/s/ W.H. Clark /s/ James C. Cotting
- ------------------------- --------------------------
W. H. Clark, James C. Cotting,
Director Director
/s/ Lawrence M. Crutcher /s/ W. Douglas Ford
- ------------------------- --------------------------
Lawrence M. Crutcher, W. Douglas Ford,
Director Director
/s/ David W. Fox /s/ Philip C. Jackson, Jr.
- ------------------------- --------------------------
David W. Fox, Philip C. Jackson, Jr.,
Director Director
/s/ Marvin E. Lesser /s/ John B. Schwemm
- ------------------------- --------------------------
Marvin E. Lesser, John B. Schwemm,
Director Director
/s/ Judith A. Spreiser
- -------------------------
Judith A. Sprieser,
Director
