-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, ACVN7r0Xjv9+ORE/BQJ+9HH95dC+IOh8Ygs287ovhDobLLKEkedS844lJDFOrABw j9kJPPFahs2BhjDZbvEGEA== 0001054422-00-000012.txt : 20000511 0001054422-00-000012.hdr.sgml : 20000511 ACCESSION NUMBER: 0001054422-00-000012 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000510 EFFECTIVENESS DATE: 20000510 FILER: COMPANY DATA: COMPANY CONFORMED NAME: U S AGGREGATES INC CENTRAL INDEX KEY: 0001054422 STANDARD INDUSTRIAL CLASSIFICATION: MINING, QUARRYING OF NONMETALLIC MINERALS (NO FUELS) [1400] IRS NUMBER: 570990958 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-36698 FILM NUMBER: 624809 BUSINESS ADDRESS: STREET 1: 400 SOUTH EL CAMINO REAL, SUITE 500 STREET 2: ATTN: CHIEF FINANCIAL OFFICER CITY: SAN MATEO STATE: CA ZIP: 94402 BUSINESS PHONE: 6506854880 S-8 1 As filed with the Securities and Exchange Commission on May 10, 2000 Registration No. 333-_____ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 __________________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 __________________________________ U.S. AGGREGATES, INC. (Exact name of registrant as specified in its charter) __________________________________ Delaware 57-0990958 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 400 South El Camino Real, Suite 500 94402 San Mateo, California (Zip Code) (Address of Principal Executive Offices) U.S. AGGREGATES, INC. 1999 LONG TERM INCENTIVE PLAN (Full Title of the Plan) Michael J. Stone Executive Vice President - Development, Chief Financial Officer, Treasurer and Secretary 400 South El Camino Real, Suite 500 San Mateo, California 94402 (650) 685-4880 (Name, address including zip code, and telephone number, including area code, of Agent for Service) Copy to: ------- Willard G. Fraumann, P.C. Kirkland & Ellis 200 East Randolph Drive Chicago, Illinois 60601 (312) 861-2000
CALCULATION OF REGISTRATION FEE Proposed maximum Proposed maximum Amount of Title of securities to be Amount to be offering price per aggregate offering registration registered registered share price fee Common Stock, par value $0.01 per share 700,840 shares $ 19.375 (1) $ 13,578,775 $ 3,585 (1) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the amount of the registration fee, based upon the average of the high and low prices reported for the Shares on the New York Stock Exchange on May 5, 2000.
PART I INFORMATION REQUIRED IN THE SECTION 10 PROSPECTUS ITEM 1. PLAN INFORMATION. The documents containing the information specified in Part I will be delivered in accordance with Rule 428(b)(1) of the Securities Act of 1933, as amended ("Securities Act"). Such documents are not required to be, and are not, filed with the Securities and Exchange Commission ("Commission") either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents, and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. Upon written or oral request, any of the documents incorporated by reference in Item 3 of Part II of this Registration Statement (which documents are incorporated by reference in the Section 10(a) Prospectus), other documents required to be delivered to eligible employees pursuant to Rule 428(b) or additional information about the U.S. Aggregates, Inc. 1999 Long Term Incentive Plan (the "Plan") are available without charge by contacting: Michael J. Stone Chief Financial Officer U.S. Aggregates, Inc. 400 South El Camino Real, Suite 500 San Mateo, California 94402 (650) 685-4880 -2- PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents, which have been filed by U.S. Aggregates, Inc. (the "Registrant" or the "Corporation") with the Commission, are incorporated in this Registration Statement by reference: (a) The Registrant's Annual Report on Form 10-K for the year ended December 31, 1999 (Registration No. 001-15217). (b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2000 (Registration No. 001-15217). (c) The description of the Registrant's common stock, par value $.01 per share (the "Common Stock"), as included under the caption "Description of Capital Stock" in the Prospectus forming a part of the Registrant's Registration Statement on Form S-1, initially filed with the Commission on May 25, 1999 (Registration No. 333-79209), including exhibits, and as may be subsequently amended from time to time, which description has been incorporated by reference in Item 1 of the Registrant's Registration Statement on Form 8-A, filed pursuant to Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act") on August 4, 1999 (Registration No. 001-15217). All documents subsequently filed by the Registrant 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 hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein 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 document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any 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. The Corporation is incorporated under the laws of the State of Delaware. Section 145 of the General Corporation Law of the State of Delaware ("Section 145") provides that a Delaware corporation may indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation's best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any persons who are, or are threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation's best interests except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred -3- to above, the corporation must indemnify him or her against the expenses which such officer or director has actually and reasonably incurred. Section 145 further provides that the indemnification provisions of Section 145 shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person's official capacity and as to action in another capacity while holding such office. The certificate of incorporation of the Corporation provides that, to the fullest extent permitted by the General Corporation Law of the State of Delaware, no director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages arising from a breach of fiduciary duty owed to the corporation of its stockholders. Article V of the by-laws of the Corporation provides that any person who was or is a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that he or she is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee, fiduciary or agent of another corporation or of a partnership, joint venture, trust or other enterprise including service capacity as a director, officer, employee, fiduciary or agent or in any other capacity while serving as a director, officer, employee, fiduciary or agent, shall be indemnified and held harmless by the corporation to the fullest extent to which it is empowered to do so unless prohibited from doing so by the General Corporation Law of the State of Delaware, as may be amended against all expense, liability and loss (including attorneys' fees actually and reasonably incurred by such person in connection with such proceeding) and such indemnification shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the indemnitee's heirs, executors and administrators, provided that, such person shall be indemnified only (subject to certain limited exceptions) in connection with a proceeding initiated by such person only if such proceeding was authorized by the board of directors of the corporation. The right to indemnification of such person shall be a contract right and shall include the right to be paid expenses incurred in defending any proceeding in advance of its final disposition. Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against him or her and incurred by him or her in any such capacity, arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify him or her under Section 145. Article V of the by-laws of the Corporation further provides that the Corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary or agent of the Corporation or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, whether or not the corporation would have the power to indemnify such person against such liability under Article V of its by-laws. All of the directors and officers of the Corporation are covered by insurance policies maintained and held in effect by the Corporation against certain liabilities for actions taken in such capacities, including liabilities under the Securities Act of 1933. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. An Exhibit Index is located at page 7.
Number Description - ------ ----------- 4.1 Form of certificate representing shares of Common Stock, par value $.01 per share, incorporated by reference to Exhibit 4.1 of the Corporation Registration Statement on Form S-1 (Registration No. 333-79209). 4.2 Restated Certificate of Incorporation of the Corporation, incorporated by reference to Exhibit 3.1(vi) of the Corporation's Registration Statement on Form S-1 (Registration No. 333-79209). 4.3 Restated Bylaws of the Corporation, incorporated by reference to Exhibit 3.2(ii) of the Corporation's Registration Statement on Form S-1 (Registration No. 333-79209). 4.4 U.S. Aggregates, Inc. 1999 Long Term Incentive Plan, incorporated by reference to Exhibit 10.49 of the Corporation's Registration Statement on Form S-1 (Registration No. 333-79209). -4- 5.1 Opinion of Kirkland & Ellis with respect to the legality of the shares of the Common Stock being registered hereby. 23.1 Consent of Arthur Andersen LLP. 23.2 Consent of Kirkland & Ellis (included in Exhibit 5.1). 24.1 Powers of Attorney of Directors and Officers of the Corporation (included on signature page).
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; (ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or 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; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission 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, 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, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue. -5- 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 San Mateo, State of California, on May 10, 2000. U.S. AGGREGATES, INC. By /s/ Michael J. Stone ------------------------------- Michael J. Stone Executive Vice President - Development, Chief Financial Officer, Secretary and Treasurer POWER OF ATTORNEY KNOW ALL MEM BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints James A. Harris, Morris L. Bishop, Jr. and Michael J. Stone and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities which such person serves or may serve with respect to U.S. Aggregates, Inc., to sign any or all amendments to this registration statement, 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 might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their, his or her substitutes, may lawfully do or cause to be done by virtue hereto. ***** Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on May 10, 2000. Signature Title - --------- ----- /s/ James A. Harris Chief Executive Officer and Chairman of the Board - -------------------------- (principal executive officer) James A. Harris /s/ Michael J. Stone Executive Vice President, Chief Financial Officer - -------------------------- and Director Michael J. Stone (principal financial and accounting officer) /s/ Morris L. Bishop, Jr. President, Chief Operating Officer and Director - -------------------------- Morris L. Bishop, Jr. /s/ Bruce V. Rauner Director - -------------------------- Bruce V. Rauner /s/ David A. Donnini Director - -------------------------- David A. Donnini /s/ Charles R. Pullin Director - -------------------------- Charles R. Pullin /s/ Edward A. Dougherty Director - -------------------------- Edward A. Dougherty /s/ Raymond R. Wingard Director - -------------------------- Raymond R. Wingard /s/ Franz L. Cristiani Director - -------------------------- Franz L. Cristiani -6-
EXHIBIT INDEX Exhibit Number Description - ------- ----------- 4.1 Form of certificate representing shares of Common Stock, par value $.01 per share, incorporated by reference to Exhibit 4.1 of the Corporation Registration Statement on Form S-1 (Registration No. 333-79209). 4.2 Restated Certificate of Incorporation of the Corporation, incorporated by reference to Exhibit 3.1(vi) of the Corporation's Registration Statement on Form S-1 (Registration No. 333-79209). 4.3 Restated Bylaws of the Corporation, incorporated by reference to Exhibit 3.2(ii) of the Corporation's Registration Statement on Form S-1 (Registration No. 333-79209). 4.4 U.S. Aggregates, Inc. 1999 Long Term Incentive Plan, incorporated by reference to Exhibit 10.49 of the Corporation's Registration Statement on Form S-1 (Registration No. 333-79209). 5.1 Opinion of Kirkland & Ellis with respect to the legality of the shares of the Common Stock being registered hereby. 23.1 Consent of Arthur Andersen LLP. 23.2 Consent of Kirkland & Ellis (included in Exhibit 5.1). 24.1 Powers of Attorney of Directors and Officers of the Corporation (included on signature page).
-7- EX-5.1 2 OPINION OF KIRKLAND & ELLIS KIRKLAND & ELLIS PARTNERSHIPS INCLUDING PROFESSIONAL CORPORATIONS 200 East Randolph Drive Chicago, Illinois 60601 EXHIBIT 5.1 To Call Writer Direct: 312 861-2000 Facsimile: 312 861-2000 312 861-2200 May 10, 2000 U.S. Aggregates, Inc. 400 South Camino Real, Suite 500 San Mateo, California 94402 Re: Registration Statement on Form S-8 -------------------------------------- Ladies and Gentlemen: We are acting as special counsel to U.S. Aggregates, Inc., a Delaware corporation (the "Company"), in connection with the proposed registration by the Company of 700,840 shares (the "Shares") of its Common Stock, par value $0.01 per share (the "Common Stock"), pursuant to a Registration Statement on Form S-8, filed with the Securities and Exchange Commission (the "Commission") on the date hereof under the Securities Act of 1933, as amended (the "Act") (such Registration Statement, as amended or supplemented, is hereinafter referred to as the "Registration Statement"). The Shares are to be issued by the Company to certain directors and employees of the Company pursuant to the Company's 1999 Long Term Incentive Plan (the "Plan"). In that connection, we have examined such corporate proceedings, documents, records and matters of law as we have deemed necessary to enable us to render this opinion. For 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 legal capacity of all natural persons, 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 Company and the due authorization, execution and delivery of all documents by the parties thereto other than the Company. As to any facts material to the opinions expressed herein, we have relied upon the statements and representations of officers and other representations of the Company and others. Our opinion expressed below is subject to the qualifications that we express no opinion as to the applicability of, compliance with, or effect of (i) any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other similar law affecting the enforcement of creditors' rights generally; (ii) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law); (iii) public policy considerations which may limit the rights of parties to obtain certain remedies; and (iv) any laws except the internal laws of the State of Illinois, the General Corporation Law of the State of Delaware and the federal law of the United States of America. Based upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set forth below, we hereby advise you that in our opinion: (1) The Plan has been duly adopted by the Board of Directors and approved by the stockholders of the Company. (2) The Shares are duly authorized and validly reserved for issuance pursuant to the Plan and, when: (i) the Registration Statement becomes effective under the Act; (ii) the Shares are issued in accordance with the terms of the Plan; (iii) the recipient provides the full consideration for such Shares as required by the terms of the Plan (assuming in each case the consideration received by the Company is at least equal to $0.01 per share); and (iv) certificates representing the Shares have been duly executed and delivered on behalf of the Company and duly countersigned by the Company's transfer agent/registrar, the Shares will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission. We do not find it necessary for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the securities or "Blue Sky" laws of the various states to the issuance and sale of the Shares. This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein. We assume no obligation to revise or supplement this opinion should the present laws of the States of Illinois or Delaware or the federal law of the United States be changed by legislative action, judicial decision or otherwise. This opinion is furnished to you in connection with the filing of the Registration Statement and is not to be used, circulated, quoted or otherwise relied upon for any other purpose. Very truly yours, /s/ Kirkland & Ellis KIRKLAND & ELLIS EX-23.1 3 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANT 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 February 3, 2000 included in U.S. Aggregates, Inc. and Subsidiaries Form 10-K for the year ended December 31, 1999 and to all references to our Firm included in this registration statement. /s/ ARTHUR ANDERSEN LLP Arthur Andersen LLP San Francisco, California May 8, 2000 -----END PRIVACY-ENHANCED MESSAGE-----