-----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, B8nkC2jwzROcjdl1hp1MSRzmN1vgH/6tzEsZnzcBMNc7fBZcwFbc7rHLcvy/B/nC tPqDGtYHcwqYvBvypDfgcQ== 0000075234-99-000004.txt : 19990422 0000075234-99-000004.hdr.sgml : 19990422 ACCESSION NUMBER: 0000075234-99-000004 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990421 EFFECTIVENESS DATE: 19990421 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OWENS CORNING CENTRAL INDEX KEY: 0000075234 STANDARD INDUSTRIAL CLASSIFICATION: ABRASIVE ASBESTOS & MISC NONMETALLIC MINERAL PRODUCTS [3290] IRS NUMBER: 344323452 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-76715 FILM NUMBER: 99598332 BUSINESS ADDRESS: STREET 1: OWENS CORNING WORLD HEADQUARTERS STREET 2: ONE OWENS CORNING PKWY CITY: TOLEDO STATE: OH ZIP: 43659 BUSINESS PHONE: 4192488000 MAIL ADDRESS: STREET 1: OWENS CORNING WORLD HEADQUARTERS STREET 2: ONE OWENS CORNING PARKWAY CITY: TOLEDO STATE: OH ZIP: 43659 FORMER COMPANY: FORMER CONFORMED NAME: OWENS CORNING FIBERGLAS CORP DATE OF NAME CHANGE: 19920703 S-8 1 As filed with the Securities and Exchange Commission on April 21, 1999. Registration No. 333- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 OWENS CORNING (Exact name of registrant as specified in its charter) Delaware 34-4323452 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) Owens Corning World Headquarters One Owens Corning Parkway 43659 Toledo, Ohio (Zip Code) (Address of Principal Executive Offices) Owens Corning Deferred Compensation Plan (Full title of the plan) Maura J. Abeln, Esq. Senior Vice President, General Counsel and Secretary Owens Corning Owens Corning World Headquarters One Owens Corning Parkway Toledo, OH 43659 (419) 248-8000 (Name, address and telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE Proposed Proposed Title of Maximum Maximum Amount Securities Offering Aggregate of to Be Amount to Be Price per Offering Registration Registered Registered Obligation Price Fee Deferred $30,000,000 100% $30,000,000 $8,340 Compensation Obligations
(1) The Deferred Compensation Obligations are unsecured obligations of Owens Corning to pay deferred compensation in the future in accordance with the Owens Corning Deferred Compensation Plan. The Registration Statement shall become effective upon filing in accordance with Rule 462 under the Securities Act of 1933. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents By Reference. The following documents, filed with the Securities and Exchange Commission (the "Commission") by the Registrant, are hereby incorporated by reference in this Registration Statement: (a) The Registrant's annual report on Form 10-K (File No. 1- 03660) filed with the Commission on March 15, 1999 for the fiscal year ended December 31, 1998; (b) The Registrant's current reports on Form 8-K (File No. 1-03660), filed with the Commission on February 8, 1999 and April 15, 1999; and (c) The information with regard to the Registrant's common stock, par value $.10 per share, contained in the registration statement filed under the Securities Exchange Act of 1934, including any amendment or report filed for the purpose of updating such information. In addition, all documents subsequently filed by the Registrant pursuant to sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities. $30,000,000 of Deferred Compensation Obligations (the "Obligations") are being registered under this Registration Statement to be offered to certain eligible employees of the Registrant pursuant to the Owens Corning Deferred Compensation Plan (the "Plan"). The Obligations are general unsecured obligations of the Registrant to pay deferred compensation in the future in accordance with the terms of the Plan from the general assets of the Registrant, and rank `pari passu' with other unsecured and unsubordinated indebtedness of the Registrant from time to time outstanding. The amount of compensation deferred by each participant ("Participant") in the Plan is determined in accordance with the Plan based upon elections by each Participant. Obligations in an amount equal to each Participant's deferral account under the Plan (consisting of deferred salary and bonus amounts, vested additional cash compensation deferred as directed by the Compensation Committee of the Registrant's Board of Directors, and any investment returns thereon) will be payable in a lump sum upon the death of the Participant or the 10th anniversary of the Participant's termination of employment and, otherwise, as specified by the Participant as a lump sum payment on a date certain, a lump sum payment on the Participant's termination of employment, or payment of up to 10 substantially equal annual installments beginning on a date certain or termination of employment. Amounts credited to a Participant's account under the Plan will be credited with notional investment returns which, in accordance with the Participant's election, will be measured based on Owens Corning common stock or the prime rate of interest determined as of the first business day of each calendar year. Investment returns otherwise payable are subject to forfeiture if a Participant discloses certain types of proprietary information, goes to work for a competitor, or is terminated for `Just Cause'. The Obligations are not subject to anticipation, alienation, sale, transfer, assignment, pledge or encumbrance. Any attempt by any person to transfer or assign benefits under the Plan, other than a claim for benefits by a Participant or his or her beneficiaries, will be null and void. The Registrant's Board of Directors may amend, suspend or terminate the Plan at any time. The Obligations are not convertible into any other security of the Registrant. No trustee has been appointed to take action with respect to the Obligations and each Participant will be responsible for enforcing his or her own rights with respect to the Obligations. The Registrant may establish a `rabbi trust' to serve as a source of funds from which it can satisfy Obligations. Assets of any rabbi trust will be at all times subject to the claims of the Registrant's general creditors. Participants in the Plan will have no rights to any assets held by a rabbi trust, except as general creditors of the Registrant. Item 5. Interests of Named Experts and Counsel. Maura J. Abeln, Esq., who has provided an opinion concerning the legality of the securities to be offered under the Plan, is Senior Vice President, General Counsel and Secretary of the Company. As of February 23, 1999, Ms. Abeln owned beneficially less than 0.1 per cent of the Company's common stock, par value $.10 per share. Item 6. Indemnification of Officers and Directors. A. Reference is made to Section 102(b)(7) of the General Corporation Law of the State of Delaware as to the limitation of personal liability of directors and officers and to Section 145 of the General Corporation Law of the State of Delaware as to indemnification by the Company of its directors and officers. B. Article FOURTEENTH of the Company's Certificate of Incorporation, as amended, provides as follows with respect to the indemnification of the Company's directors and officers and the limitation of personal liability of its directors and officers: FOURTEENTH: The corporation shall indemnify to the full extent authorized or permitted by law any person made, or threatened to be made, a party to any action or proceeding (whether civil or criminal or otherwise) by reason of the fact that he, his testator or intestate, is or was a director or officer of the corporation or by reason of the fact that such director or officer, at the request of the corporation, is or was serving any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, in any capacity. Nothing contained herein shall affect any rights to indemnification to which employees other than directors and officers may be entitled by law. No director of the corporation shall be personally liable to the corporation or its stockholders for monetary damages for any breach of fiduciary duty by such a director as a director. Notwithstanding the foregoing sentence, a director shall be liable to the extent provided by applicable law (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which such director derived an improper personal benefit. No amendment to or repeal of this Article FOURTEENTH shall apply to or have any effect on the liability or alleged liability of any director of the corporation for or with respect to any acts or omissions of such director occurring prior to such amendment. C. Article IX of the Company's By-Laws provides as follows with respect to the indemnification of the Company's directors and officers: The Corporation shall, to the fullest extent permitted by applicable law from time to time in effect (but, in the case of any amendment of such law, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), indemnify any and all persons who may serve or who have served at any time as directors or officers of the Corporation, or who at the request of the Corporation may serve or at any time have served as directors, officers, employees or agents of another corporation (including subsidiaries of the Corporation) or of any partnership, joint venture, trust or other enterprise, and any directors or officers of the Corporation who at the request of the Corporation may serve or at any time have served as agents or fiduciaries of an employee benefit plan of the Corporation or any of its subsidiaries, from and against any and all of the expenses, liabilities or other matters referred to in or covered by law whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent. The Corporation may also indemnify any and all other persons whom it shall have power to indemnify under any applicable law from time to time in effect to the extent permitted by such law. The indemnification provided by this Article IX shall not be deemed exclusive of any other rights to which any person may be entitled under any provision of the Certificate of Incorporation, other By-Law, agreement, vote of stockholders or disinterested directors, or otherwise, both as to action in an official capacity and as to action in another capacity while holding such office, and shall be contract rights and continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. If a claim under this Article IX is not paid in full by the Corporation within sixty days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty days, the director or officer may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the director or officer shall be entitled to be paid also the expense of prosecuting or defending such suit. In (i) any suit brought by the director or officer to enforce a right to indemnification hereunder (but not in a suit brought by the director or officer to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) any suit by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that, the director or officer has not met any applicable standard for indemnification set forth in the Delaware General Corporation Law. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the director or officer is proper in the circumstances because the director or officer has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its Board, independent legal counsel, or its stockholders) that the director or officer has not met such applicable standard of conduct, shall create a presumption that the director or officer has not met the applicable standard of conduct or, in the case of such a suit brought by the director or officer, be a defense to such suit. In any suit brought by the director or officer to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the director or officer is not entitled to be indemnified, or to such advancement of expenses, under this Article IX or otherwise shall be on the Corporation. The indemnification provided in this Article IX shall inure to each person referred to herein, whether or not the person is serving in any of the enumerated capacities at the time such expenses (including attorneys' fees), judgments, fines or amounts paid in settlement are imposed or incurred, and whether or not the claim asserted against him is based on matters which antedate the adoption of this Article IX. None of the provisions of this Article IX shall be construed as a limitation upon the right of the Corporation to exercise its general power to enter into a contract or understanding of indemnity with a director, officer, employee, agent or any other person in any proper case not provided for herein. Each person who shall act or have acted as a director or officer of the Corporation shall be deemed to be doing so in reliance upon such right of indemnification. For purposes of this Article IX, the term "Corporation" shall include constituent corporations referred to in subsection (h) of Section 145 of the General Corporation Law of the State of Delaware (or any similar provision of applicable law at the time in effect). D. The Company has entered into an Indemnity Agreement with each member of the Company's Board of Directors. Each Indemnity Agreement provides, among other things, that in the event the director was, is or becomes a party, witness or other participant in a Claim (as defined in the Indemnity Agreement) by reason of (or arising in part out of) an Indemnifiable Event (as defined in the Indemnity Agreement), the Company is required to indemnify the director to the fullest extent authorized by the Company's By-Laws as in effect on the date of the Indemnification Agreement notwithstanding any subsequent amendment, repeal or modification of such By-Laws, against any and all expenses, judgments, fines, penalties and amounts paid in settlement of such Claim. The Indemnity Agreement requires that the Company advance to the director all expenses relating to Claims and contains an undertaking by the director to reimburse the Company for any such advances that are subsequently determined in a final judicial determination to have been impermissible under applicable law. E. The directors and officers of the Company are covered by insurance policies, maintained by the Company at its expense, insuring the directors and officers against certain liabilities which might be incurred by them in such capacities, including liabilities arising under the Securities Act of 1933. Item 7. Exemption from Registration Claimed. Not Applicable. Item 8. Exhibits. Exhibit Number Exhibit 4 (a) Owens Corning Deferred Compensation Plan (filed herewith). 4 (b) Certificate of Incorporation of Registrant, as amended (incorporated herein by reference to Exhibit (3) to Registrant's quarterly report on Form 10-Q (File No. 1-03660) for the quarter ended March 31, 1997). 4 (c) By-Laws of Registrant, as amended (incorporated herein by reference to Exhibit (3) to Registrant's annual report on Form 10-K (File No. 1-03660) for 1995). 5 Opinion of Maura J. Abeln (filed herewith). 23 (a) Consent of Arthur Andersen LLP, independent public accountants (filed herewith). 23 (b) Consent of Maura J. Abeln is contained in Exhibit 5. 24 Powers of Attorney (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 of the securities registered hereby, 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 this 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 this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in 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 by the Registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this 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. (b) The undersigned Registrant hereby further undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this 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. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8, and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Toledo, State of Ohio, on this 20th day of April, 1999. OWENS CORNING By /s/ GLEN H. HINER Glen H. Hiner, Chairman of the Board and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Glen H. Hiner, Maura J. Abeln, J. Thurston Roach, and Robert C. Lonergan, and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, to this Registration Statement, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said 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, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated: Signatures Title Date Chairman of the Board and Chief Executive /s/ GLEN H. HINER Officer APRIL 19, 1999 Glen H. Hiner (Principal Executive Officer) and Director Senior Vice President /s/ J. THURSTON ROACH and Chief Financial APRIL 16, 1999 J. Thurston Roach Officer (Principal Financial Officer) /s/ STEVEN J. STROBEL Vice President and APRIL 15, 199 Steven J. Strobel Controller /s/ CURTIS H. BARNETTE Director APRIL 5, 1999 Curtis H. Barnette /s/ NORMAN P. BLAKE Director MARCH 31, 1999 Norman P. Blake, Jr. /s/ GASTON CAPERTON Director MARCH 31, 1999 Gaston Caperton /s/ LEONARD S. COLEMAN, JR. Director MARCH 31, 1999 Leonard S. Coleman, Jr. /s/ WILLIAM W. COLVILLE Director APRIL 5, 1999 William W. Colville /s/ JOHN H. DASBURG Director APRIL 5, 1999 John H. Dasburg /s/ LANDON HILLIARD Director MARCH 31, 1999 Landon Hilliard /s/ JON M. HUNTSMAN Director APRIL 5, 1999 Jon M. Huntsman, Jr. /s/ ANN IVERSON Director APRIL 1, 1999 Ann Iverson /s/ W. WALKER LEWIS Director APRIL 5, 1999 W. Walker Lewis /s/ FURMAN C. MOSELEY, JR. Director MARCH 31, 1999 Furman C. Moseley, Jr. /s/ W. ANN REYNOLDS Director APRIL 1, 1999 W. Ann Reynolds
INDEX TO EXHIBITS Exhibit Number Exhibit 4 (a) Owens Corning Deferred Compensation Plan (filed herewith). 4 (b) Certificate of Incorporation of Registrant, as amended (incorporated herein by reference to Exhibit (3) to Registrant's quarterly report on Form 10-Q (File No. 1-03660) for the quarter ended March 31, 1997). 4 (c) By-Laws of Registrant, as amended (incorporated herein by reference to Exhibit (3) to Registrant's annual report on Form 10-K (File No. 1-03660) for 1995). 5 Opinion of Maura J. Abeln (filed herewith). 23 (a) Consent of Arthur Andersen LLP, independent public accountants (filed herewith). 23 (b) Consent of Maura J. Abeln is contained in Exhibit 5. 24 Powers of Attorney (included on signature page).
EX-4 2 EXHIBIT 4 OWENS CORNING DEFERRED COMPENSATION PLAN Effective as of January 1, 1999 ARTICLE I ESTABLISHMENT AND PURPOSE OF THE PLAN 1.1 Establishment of the Plan. Effective as of January 1, 1999, Owens Corning hereby establishes the "Owens Corning Deferred Compensation Plan." 1.2 Purpose of the Plan. The Plan is intended to constitute an unfunded program maintained primarily for the purpose of permitting a select group of management or highly compensated employees to defer compensation in a manner consistent with the requirements of Sections 201(2), 301(a)(3), and 401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). ARTICLE II DEFINITIONS The following words and phrases as used in this Plan have the following meanings: 2.1 Account. The term "Account" means the bookkeeping account established by the Employer for each Eligible Employee to which all deferrals and Investment Returns shall be credited. 2.2 Administrator. The term "Administrator" means the individual described in Section 7.1 who is designated to administer the Plan. 2.3 Affiliated Employer. The term "Affiliated Employer" shall have the same meaning given to such term by the Owens Corning Savings and Profit Sharing Plan. 2.4 Beneficiary. The term "Beneficiary" means the Eligible Employee's beneficiary under the Owens Corning Savings and Profit Sharing Plan. 2.5 Board of Directors. The term "Board of Directors" means the Board of Directors of Owens Corning. 2.6 Code. The term "Code" means the Internal Revenue Code of 1986, as amended. 2.7 Eligible Employee. The term "Eligible Employee" means an individual who meets the requirements of Section 3.1. 2.8 Employer. The term "Employer" means Owens Corning and any other Affiliated Employer that has adopted the Owens Corning Savings and Profit Sharing Plan or has been designated by the Board of Directors. 2.9 Investment Returns. The term "Investment Returns" means the earnings and losses credited to an Eligible Employee's Account in accordance with Section 3.6. 2.10 Plan. The term "Plan" means the "Owens Corning Deferred Compensation Plan" as set forth herein and as amended from time to time. ARTICLE III COMPENSATION DEFERRALS 3.1 Eligible Employees. An individual is an Eligible Employee if he or she is a member of a select group of management or highly compensated employees of an Employer, and he or she -- (1) is an elected officer or appointed officer of Owens Corning, or (2) is a key employee of an Employer and is designated for participation in the Plan by the Compensation Committee of the Board of Directors. 3.2 Deferrals of Cash Compensation. An Eligible Employee may elect, by submitting to the Administrator a properly completed Deferral Election Form (in the form attached hereto as Exhibit A), to defer the receipt of up to 50% of cash salary and up to 100% of bonus compensation earned for services rendered to the Employer during a calendar year. Eligible employees may also be required to defer certain compensation as directed by the Compensation Committee of the Board of Directors, subject to the terms and conditions of the Plan and the underlying grant or award. Thus, Eligible Employees may receive awards of incentive pay that have special deferral terms and conditions that require the deferral of that award (or a portion thereof) for a specified period of time subject to special vesting and forfeiture provisions. 3.3 Timing for Elections. Deferral Election Forms may be submitted on an annual basis, with a properly submitted deferral election becoming effective, to the extent administratively practicable, for compensation earned on or after the January 1 which next follows the acceptance of the Deferral Election Form by the Administrator; provided, however, that within 30 days of first becoming an Eligible Employee, such Eligible Employee may submit a Deferral Election Form and such election shall be effective as soon as administratively practicable. Elections with regard to Investment Returns and the time and manner of payment of deferred amounts are one-time elections with regard to amounts deferred pursuant to a particular Deferral Election Form. A Deferral Election Form shall remain effective until a superseding Deferral Election Form becomes effective. An Eligible Employee may cease voluntary salary deferrals at any time by submitting a properly completed Deferral Election Form to the Administrator, which shall be effective for compensation earned after the effective date of the election. Notwithstanding the foregoing, a Participant may not make deferrals under this Plan during any period for which contributions must be suspended as a condition of the Eligible Employee's receipt of a hardship withdrawal from the Owens Corning Savings and Profit Sharing Plan or any other plan maintained by Owens Corning or an Affiliated Employer that includes a qualified cash or deferred arrangement under Code section 401(k). 3.4 Deferred Compensation Accounts. For the purpose of determining liabilities under the Plan, the Employer shall maintain an Account for each Eligible Employee. An Eligible Employee's Account shall be credited with amounts deferred by the Eligible Employee pursuant to the Plan and any Investment Returns thereon. 3.5 Investment Returns. The Investment Return on an Eligible Employee's Account shall be the amount necessary to increase or decrease the Account to the amount it would have been if it were invested in accordance with this Section. Investment Returns for cash amounts deferred pursuant to Section 3.2 hereof shall be determined as if such amounts were invested, at the Eligible Employee's election pursuant to the Deferral Election Form, in a fund invested in Owens Corning stock or an account bearing interest at an annual effective rate equal to the prime rate of interest quoted in the Wall Street Journal for the first business day of the applicable calendar year. Notwithstanding the foregoing, the Employer shall be under no obligation to make any investments in accordance with the investment election of any Eligible Employee. ARTICLE IV FORFEITURE OF INVESTMENT RETURNS 4.1 Disclosure of Proprietary Information. The Investment Returns otherwise payable (other than net losses) under the terms of this Plan shall be forfeited and the Employer and the Plan shall have no liability for Investment Returns to an Eligible Employee (or his or her Beneficiary) if the Eligible Employee discloses, divulges, publishes or otherwise reveals either directly or through another, to any person, firm or corporation, any knowledge or information concerning any Employer or Affiliated Employer inventions, devices, technical data, strategic plans (business and technical), or financial data (including any data classified as "Secret and Proprietary Information"), which knowledge or information has in any way been disclosed to or acquired by the Eligible Employee during the term of his or her employment with the Employer or an Affiliated Employer. Such knowledge or information shall not include knowledge or information which: (1) is or was in the public domain at the time of its disclosure to the Eligible Employee; or, (2) enters the public domain after the date of disclosure to the Eligible Employee except where such entry is a result of a breach by the Eligible Employee of this Section; or, (3) is disclosed to the Eligible Employee by a third party having a bona fide right to make such disclosure, or is otherwise lawfully obtained from other sources; or, (4) is disclosed to others by the Employer or Affiliated Employer without restriction. 4.2 Direct Competition with the Employer or an Affiliated Employer. The Investment Returns payable under the terms of this Plan (other than net losses) shall be forfeited and the Employer and the Plan shall have no further liability to an Eligible Employee if said Eligible Employee directly or indirectly, in any capacity, performs any compensated service for, is employed by or becomes associated with any firm, corporation or partnership engaged in the manufacture, production or sale of products which compete with products produced or sold by the Employer or an Affiliated Employer. For the purposes of this Plan, products shall be limited to these which are manufactured, produced or sold by the Employer or an Affiliated Employer as described in the Employer's or Affiliated Employer's most recent Annual Report to its stockholders. 4.3 Discharge for Just Cause. The Investment Returns otherwise payable under the terms of this Plan (other than net losses) shall be forfeited and the Employer and the Plan shall have no further liability if the employment of said Eligible Employee by the Employer or Affiliated Employer is terminated or otherwise ceases for "Just Cause". "Just Cause" shall mean discharge or resignation as the direct result of any act or omission which constitutes a misdemeanor or a felony, or which clearly evidences fraud or dishonesty on the part of the Eligible Employee. 4.4 Involuntary Deferrals. For grants or awards of compensation that require deferral in whole or in part as a condition of the grant or award, the vesting and forfeiture provisions established by the Compensation Committee for purposes of such grant or award will apply to such grant or award in addition to the provisions hereof and will result in forfeiture of the award and its Investment Returns unless fully satisfied by the Eligible Employee. ARTICLE V PAYMENT OF ACCOUNT 5.1 Payment to Eligible Employee. An Eligible Employee shall be eligible to receive distribution of vested amounts in his or her Account in the manner specified in his or her Deferral Election Forms. Distribution of an Eligible Employee's Account shall be made in one of the following forms: (1) lump sum payment on a date certain, (2) lump sum payment upon the Eligible Employee's termination of employment, or (3) payment of up to 10 substantially equal annual installments beginning either upon a date certain or as soon as administratively practicable following the date of the Eligible Employee's termination of employment, with annual installments payable on each anniversary of such date; provided, any remaining Account balance upon the tenth anniversary of an Eligible Employee's termination of employment shall be distributed in a lump sum as soon as is administratively practicable thereafter. 5.2 Payment upon Death of Eligible Employee. In the event of the death of the Eligible Employee, the vested balance of the Eligible Employee's Account shall be payable to the Eligible Employee's Beneficiary in a lump sum. 5.3 Form of Payment. All amounts shall be paid in cash. 5.4 Payment in the Event of Unforeseeable Emergency. An Eligible Employee may request a distribution of amounts voluntarily deferred in the event of an unforeseeable emergency, up to but not exceeding the amount reasonably needed to satisfy the emergency. For the purposes of this paragraph, an "unforeseeable emergency" means severe financial hardship to the Eligible Employee resulting from a sudden and unexpected illness or accident of the Eligible Employee or of a dependent, loss of the Eligible Employee's property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Eligible Employee. Notwithstanding the foregoing, payment may not be made to the extent the unforeseeable emergency may be or is relieved by insurance, liquidation of the Eligible Employee's assets (provided such liquidation does not cause severe financial hardship), or by cessation of deferrals under this Plan. Unforeseeable emergencies do not include the need or desire to send a child to college or to purchase a home. Whether an unforeseeable emergency exists shall be determined by the Administrator in his or her sole discretion. The Administrator may require such documentation from the Eligible Employee as the Administrator deems necessary to substantiate a request for distribution due to an unforeseeable emergency. ARTICLE VI NATURE OF INTEREST OF ELIGIBLE EMPLOYEE 6.1 Unsecured General Creditor. The interests of Eligible Employees and Beneficiaries in the Plan shall be that of unsecured general creditors, with no secured or preferential right to any assets of Owens Corning or any Employer, Affiliated Employer, or any other party for payment of benefits under this Plan. Any property held by Owens Corning or any Employer for the purpose of generating the cash flow for benefit payments shall remain its general, unpledged and unrestricted assets. Any Employer's obligation under the Plan shall be an unfunded and unsecured promise to pay benefits in the future. 6.2 Trust Fund. Each Employer shall be responsible for the payment of benefits provided under the Plan to its Eligible Employees. At its discretion, the Employer may establish one or more trusts, with such trustees as the Board of Directors may approve, for the purpose of providing for the payment of such benefits. Any trustee so appointed shall be bonded in a manner satisfactory to the Employer. Whether or not such a trust is irrevocable, its assets shall at all times be subject to the claims of the Employer's general creditors in the event of the Employer's insolvency. To the extent any benefits provided under the Plan are paid from such trust, the Employer shall have no further obligation to pay Plan benefits. Plan benefits not paid from the trust shall remain the obligation of the Employer. 6.3 Change of Control. In the event of a "Change of Control" as defined in the Owens Corning Stock Performance Incentive Plan, Owens Corning (or its successor in interest) shall contribute an amount equal to the value of all Eligible Employees' Accounts under the Plan to an irrevocable trust within 10 days of such Change of Control. The terms of such trust shall be consistent with Internal Revenue Service Revenue Procedure 92- 64 (as modified or superseded by the Internal Revenue Service), and the trustee the shall be an independent third party financial institution. 6.4 No Right to Transfer Interest. Rights to benefits payable under the Plan are not subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, or encumbrance. ARTICLE VII ADMINISTRATION 7.1 Administrator. (a) Except as provided in (b) below, the Plan shall be administered by the Leader, Compensation, at Owens Corning, or by the individual who holds the functional equivalent of such position. (b) The Senior Vice President, Strategic Resources of Owens Corning shall be the Administrator with respect to any matters involving the participation in this Plan of the individual described in (a) above. 7.2 Powers of the Administrator. The Administrator's powers shall include, but shall not be limited to, the power to adopt rules consistent with the Plan; the power to decide all questions relating to the interpretation of the terms and provisions of the Plan; the power to resolve all other questions arising under the Plan (including, without limitation, the power to remedy possible ambiguities, inconsistencies, or omissions by a general rule or particular decision); and the power to designate all or a part of the previously described powers to another employee of Owens Corning. The Administrator shall have full and absolute discretion and authority to exercise each of the foregoing powers. 7.3 Finality of Administrator Determinations. Deter minations by the Administrator and any interpretation, rule, or decision adopted by the Administrator under the Plan or in carrying out or administering the Plan shall be final and binding for all purposes and upon all interested persons, their heirs, and their personal representatives. ARTICLE VIII MISCELLANEOUS 8.1 Amendment, Suspension, and Termination. (a) The Board of Directors shall have the right to amend, suspend, or terminate the Plan at any time. (b) The Vice President of Human Resources of Owens Corning, or the individual who holds the functional equivalent of such position, may adopt minor amendments to the Plan without prior approval of the Board of Directors that (i) are necessary or advisable for purposes of compliance with applicable laws and regulations, (ii) relate to administrative practices, or (iii) have an insubstantial financial effect on Plan benefits and expenses. 8.2 Board of Directors' Power to Delegate Authority. The Board of Directors may, in its discretion, delegate to any person or persons all or any part of the Board's authority and responsibility under the Plan, including, without limitation, the authority to amend the Plan. 8.3 Indemnification. Owens Corning shall indemnify any individual who is a director, officer or employee of an Employer, or his or her heirs and legal representatives, against all liability and reasonable expense, including counsel fees, amounts paid in settlement and amounts of judgments, fines or penalties, incurred or imposed upon him or her in connection with any claim, action, suit or proceeding, whether civil, criminal, administrative or investigative, in connection with his or her duties under the Plan, provided that such act or omission does not constitute gross negligence or willful misconduct. 8.4 No Employment Rights. No provisions of the Plan or any action taken by an Employer, the Board of Directors, or the Administrator shall give any person any right to be retained in the employ of an Employer, and each Employer specifically reserves the right and power to dismiss or discharge any Eligible Employee. 8.5 Incapacity of Recipient. If an Eligible Employee or Beneficiary entitled to a distribution under the Plan is living under guardianship or conservatorship, distributions payable under the terms of the Plan to such recipient shall be paid to the appointed guardian or conservator and such payment shall be a complete discharge of any liability of all Employers. 8.6 Data. Each Eligible Employee and Beneficiary shall furnish the Employer with all proofs of date of death and other proofs necessary for the administration of the Plan, and no Employer shall be liable for the fulfillment of any obligations in any way dependent upon such information unless and until the same shall have been received by the Employer in form satisfactory to it. 8.7 Misstatements. If any relevant fact relating to any person is found to have been misstated, the benefit payable to an Eligible Employee or Beneficiary shall be the benefit which would have been provided on the basis of the correct information. Any excess payments due to such misstatement shall be refunded to the Employer or withheld by it from any further amounts otherwise payable, and any underpayment shall be paid to the Eligible Employee or Beneficiary as soon as administratively practicable. 8.8 Taxes. To the extent required by law, amounts credited under the Plan shall be subject to Federal social security and unemployment taxes during the year the services giving rise to such contributions were performed (or, if later, when the amounts are not subject to a substantial risk of forfeiture). Federal social security and unemployment taxes shall be withheld from current compensation otherwise payable to the Eligible Employee. Each Employer shall withhold from any distributions made pursuant to the Plan such amounts as may be required by Federal, state or local law. 8.9 Applicable Law. The Plan shall be construed and administered under the laws of the State of Ohio, except to the extent that such laws are preempted by ERISA. 8.10 Usage of Terms and Headings. Words in the masculine gender shall include the feminine and the singular shall include the plural, and vice versa, unless qualified by the context. Any headings are included for ease of reference only, and are not to be construed to alter the terms of the Plan. IN WITNESS WHEREOF, Owens Corning has caused this Plan, to be effective as of January 1, 1999, to be executed on its behalf by the undersigned duly authorized officer this 24th day of February, 1999. Owens Corning By Robert C. Lonergan Senior Vice President - Strategic Resources EX-5 3 EXHIBIT 5 April 21, 1999 Owens Corning Owens Corning World Headquarters One Owens Corning Parkway Toledo, Ohio 43659 Re: Owens Corning Deferred Compensation Plan Ladies and Gentlemen: I am Senior Vice President, General Counsel and Secretary of Owens Corning, a Delaware corporation (the "Company"), and I have acted as counsel to the Company in connection with the preparation and filing with the Securities and Exchange Commission under the Securities Act of 1933, as amended, of a Registration Statement on Form S-8 (the "Registration Statement") relating to the registration of $30,000,000 of general unsecured obligations (the "Obligations") of the Company to pay deferred compensation in the future in accordance with the Company's Deferred Compensation Plan (the "Plan"). In so acting, I have supervised other members of the Company's Law Department and outside counsel who have performed work in connection with the transactions contemplated by the Plan. I, or other members of the Company's Law Department or such outside counsel, have examined and relied upon the originals, or copies certified or otherwise identified to our satisfaction, of such corporate records, documents, certificates and other instruments, and have made such other investigations, as in our judgment are necessary or appropriate to enable me to render the opinion expressed below. In such examination, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals (other than documents executed by the Company) and the conformity to original documents of documents submitted to us as certified or photostatic copies and the authenticity of the originals of such copies. We have also assumed the due authorization, execution and delivery of such documents by the parties thereto other than the Company. Based upon our examination as described above, subject to the assumptions and qualifications stated herein, and relying upon statements of fact contained in the documents that we have examined, I am of the opinion that the Obligations being offered under the Plan, when issued in accordance with the provisions of the Plan, will be valid and binding obligations of the Company, enforceable in accordance with their terms, 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. I am a member of the Bar of the State of Florida and have corporate status in the Bar of the State of Ohio and do not hold myself out as an expert on the laws of any other state except the corporate laws of the State of Delaware, and my opinion is limited to the corporate laws of the State of Delaware and the federal laws of the United States. I consent to the use of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ MAURA J. ABELN Maura J. Abeln Senior Vice President, General Counsel and Secretary 1999. EX-23 4 Exhibit 23 (a) CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 25, 1999, included in Owens Corning's annual report on Form 10-K for the year ended December 31, 1998, and to all references to our Firm included in this Registration Statement. /s/ Arthur Andersen LLP Toledo, Ohio April 21, 1999. -----END PRIVACY-ENHANCED MESSAGE-----