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As filed with the Securities and Exchange Commission on December __, 1996
Registration No. 333-____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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DURA AUTOMOTIVE SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 38-2961431
(State of incorporation) (I.R.S. Employer
Identification No.)
4508 IDS Center, Minneapolis, Minnesota 55402
(Address of principal executive offices)
------------------------
DURA AUTOMOTIVE SYSTEMS, INC. 1996 KEY EMPLOYEE STOCK OPTION PLAN
DURA AUTOMOTIVE SYSTEMS, INC. INDEPENDENT DIRECTOR STOCK OPTION PLAN
DURA AUTOMOTIVE SYSTEMS, INC. EMPLOYEE STOCK DISCOUNT PURCHASE PLAN
DURA AUTOMOTIVE SYSTEMS, INC. NON-QUALIFIED DEFERRED COMPENSATION PLAN
(Full title of the plans)
------------------------
David R. Bovee
Vice President and CFO
2791 Research Drive
Rochester Hills, Michigan 48309
(810) 299-7500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
H. Kurt von Moltke
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60610
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<TABLE>
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CALCULATION OF REGISTRATION FEE
===================================================================================================================
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered registered (1) price per share aggregate offering price registration
fee
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common 108,134 (4) $14.50 (3) $ 1,567,943 (3) $ 541.00 (3)
Stock, par value 491,866 (5) $25.62 (2) $ 12,601,606 (2) $4,345.38 (2)
$0.01 per share l00,000 (6) $25.62 (2) $ 2,562,000 (2) $ 883.44 (2)
500,000 (7) $25.62 (2) $ 12,810,000 (2) $4,417.24 (2)
$1,000,000 (8) N/A $ 1,000,000 (9) $ 345.00 (9)
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this registration
statement also covers an indeterminate amount of interests in the plans to
be offered or sold pursuant to the terms described thereon.
(2) Reflects the average of the high and low prices on the NASDAQ on December
6, 1996 pursuant to Rule 457(h). Estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(h) and (c).
(3) Based on number of shares issued pursuant to stock option agreements where
the exercise price is fixed and determined pursuant to Rule 457(h) solely
for the purpose of calculating the amount of registration fee.
(4) Shares reserved for issuance pursuant to options previously granted under
the 1996 Key Employee Stock Option Plan.
(5) Additional shares reserved for issuance pursuant to the 1996 Key Employee
Stock Option Plan.
(6) Shares reserved for issuance pursuant to the Independent Director Stock
Option Plan.
(7) Shares reserved for issuance pursuant to the Employee Stock Discount
Purchase Plan.
(8) Amount of compensation identified and registered for deferral pursuant to
the Non-Qualified Deferred Compensation Plan.
(9) Based on the amount of compensation identified and registered for deferral
pursuant to Rule 457(h) solely for the purpose of calculating the amount
of registration fee.
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PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Dura Automotive Systems, Inc. (the
"Company") with the Securities and Exchange Commission and information
contained therein are incorporated herein by reference:
1. The Company's prospectus filed pursuant to Rule 424(b)(4) on August
15, 1996.
2. The Company's description of its Class A Common Stock contained in
the Registration Statement on Form S-1 (Reg. No. 333-06601), as
amended when declared effective on August 14, 1996.
All documents subsequently filed by the Company 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 the registration statement and to be
part thereof from the date of filing such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Officers and Directors.
The Company 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 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 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 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
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another corporation or enterprise. The indemnity may include expenses (including
attorney's 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 reasonably believed to be in or not
opposed to the corporation's best interest 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 to above, the
corporation must indemnify him against the expenses which such officer or
director has actually and reasonably incurred.
The Company's Amended and Restated Certificate of Incorporation and Amended
and Restated By-laws provide for the indemnification of directors and officers
of the Company to the fullest extent permitted by the General Corporation Law of
the State of Delaware.
In that regard, the Amended and Restated By-laws of the Company provide
that the Company shall indemnify 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 a person of whom he is the legal representative, is or
was a director or officer of the Company, or is or was serving at the request of
the Company as a director, officer, employee, fiduciary, or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses, liabilities and losses (including attorneys' fees actually and
reasonably incurred in connection with such proceeding); provided that the
Company shall indemnify any such person seeking indemnification in connection
with a proceeding initiated by such person only if such proceeding was
authorized by the Board of Directors of the Company.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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<CAPTION>
<S> <C> <C>
4.1 1996 Key Employee Stock Option Plan. Incorporated by reference to Exhibit 10.27 to
the Registrant's Registration Statement filed
on Form S-1 dated August 14, 1996.
4.2 Independent Director Stock Option Plan. Incorporated by reference to Exhibit 10.28 to
the Registrant's Registration Statement filed
on Form S-1 dated August 14, 1996.
4.3 Employee Stock Discount Purchase Plan. Incorporated by reference to Exhibit 10.29 to
the Registrant's Registration Statement filed
on Form S-1 dated August 14, 1996.
4.4 Non-Qualified Deferred Compensation Plan.
5.1 Opinion of Kirkland & Ellis with respect
to the validity of the securities being
registered.
</TABLE>
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<PAGE>
23.1 Consent of Arthur Andersen LLP, Minneapolis, Minnesota.
23.2 Consent of Arthur Andersen LLP, Kansas City, Missouri.
23.3 Consent of Kirkland & Ellis (included in their opinion filed as
Exhibit 5.1).
Item 9. Undertakings.
1. The undersigned registrant hereby undertakes (a) 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; (b) that, for the purpose of
determining any liability under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof; and (c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report on Form 10-K pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to section l5(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. 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,
offficer 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and have duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, and in the capacity indicated, in the City of Rochester Hills, State
of Michigan, on the 11th day of December, 1996.
DURA AUTOMOTIVE SYSTEMS, INC.
By: /s/ David R. Bovee
----------------------------
Name: David R. Bovee
Title: Vice President and Chief
Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Karl F. Storrie, S.A. Johnson and David R. Bovee
and each of them, his true and lawful attorneys-infact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any or all amendments (including post-
effective 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 or his substitute or subtitutes, may lawfully
do or cause to be done by virtue hereof.
* * * * *
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement and power of attorney have been signed by the following
persons in the capacities and on the dates indicated:
Signature Capacity Date
--------- -------- ----
\s\ Karl F. Storrie President, Chief Executive December 11, 1996
- ----------------------- Officer and Director (principal
Karl F. Storrie executive officer)
\s\ David R. Bovee Vice President and Chief December 11, 1996
- ----------------------- Fianancial Officer (Principal
David R. Bovee financial and accounting officer)
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<S> <C> <C>
/s/ S.A. Johnson Chairman of the Board and December 11, 1996
- -------------------------- Director
S.A. Johnson
/s/ Robert R. Hibbs Vice President and Director December 11, 1996
- --------------------------
Robert R. Hibbs
/s/ Neil Anderson Director December 11, 1996
- --------------------------
Neil Anderson
/s/ William H. Clement Director December 11, 1996
- --------------------------
William H. Clement
/s/ James O'Loughlin Director December 11, 1996
- --------------------------
James O'Loughlin
/s/ William L. Orscheln Director December 11, 1996
- --------------------------
William L. Orscheln
/s/ Eric J. Rosen Director December 11, 1996
- --------------------------
Eric J. Rosen
/s/ Barbara A. Westhues Director December 11, 1996
- --------------------------
Barbara A. Westhues
/s/ Robert E. Brooker, Jr. Director December 11, 1996
- --------------------------
Robert E. Brooker, Jr.
</TABLE>
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<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description Sequentially Numbered Pages
- ------- ----------------------------------- ----------------------------------
<S> <C> <C>
4.1 1996 Key Employee Stock Option Plan Incorporated by reference to
Exhibit 10.27 to the Registrant's
Registration Statement filed on
Form S-1 dated August 14, 1996
4.2 Independent Director Stock Option Plan Incorporated by reference to
Exhibit 10.28 to the Registrant's
Registration Statement filed on
Form S-1 dated August 14, 1996
4.3 Employee Stock Discount Purchase Plan Incorporated by reference to
Exhibit 10.29 to the Registrant's
Registration Statement filed on
Form S-1 dated August 14, 1996
4.4 Non-Qualified Deferred Compensation Plan
5.1 Opinion of Kirkland & Ellis with respect to the
validity of the securities being registered
23.1 Consent of Arthur Andersen LLP, Minneapolis,
Minnesota
23.2 Consent of Arthur Andersen LLP, Kansas City,
Missouri
23.3 Consent of Kirkland & Ellis (included in their
opinion filed as Exhibit 5.1)
24.1 Powers of Attorney (included on the signature
page of this Registration Statement
</TABLE>
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EXHIBIT 4.4
DURA AUTOMOTIVE SYSTEMS, INC.
NON-QUALIFIED PLAN
1. Name and Purpose. The name of this plan is the DURA Automotive
Systems, Inc. Non-Qualified Plan (the "Plan"). The purpose of the Plan is to
permit each key employee of the DURA Automotive Systems, Inc. (the "Company"),
any subsidiary thereof (a "Subsidiary"), and its parent corporation, Hidden
Creek, Inc. (the "Parent Company"), who is designated by the Pension Committee
of the Company (in either case, a "Participant") to elect to defer all or a
portion of his or her compensation from the Company until such Participant
ceases to be an Employee or is no longer designated by the Pension Committee
of the Company as being eligible to participate in the Plan. The Plan is
intended to be a "a plan which is unfunded and is maintained by an employer
primarily for the purpose of providing deferred compensation for a select
group of management or highly compensated employees" within the meaning of
Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and shall be interpreted and
administered to the extent possible in a manner consistent with that intent.
2. Right to Defer. For the 1996 fiscal year of the Company ("Plan
Year"), each Participant may elect to defer payment of up to 80% of such
Participant's [compensation] for the month of December, 1996 otherwise payable
for services rendered in such month and 100% of the portion of any bonus amount
paid to employees of the Parent Company which represents payment for services
rendered in December, 1996.
For 1997 and subsequent Plan Years, each Participant may elect to
defer up to:
. 80% of compensation,
. 100% of any annual bonus, and
. 100% of any pension plan make-up contribution.
3. Deferral Elections. A Participant's election to defer payments
hereunder (a "Deferral Election") shall be in writing and shall be deemed to
have been made upon receipt and acceptance by the Company. In order to be
effective hereunder, a Deferral Election for any Plan Year must be made not
later than December 31 of the preceding Plan Year and shall specify the time
and method of payment pursuant to Section 5(a) and 5(c) below applicable to the
amount(s) deferred thereunder.
Nonwithstanding the foregoing, (a) any Deferral Election for Plan
Year 1996 may be made no later than November 27, 1996 and (b) a person who
becomes a Participant during a Plan Year may make Deferral Elections with
respect to compensation to be earned during the remainder of such Plan Year
after such election or before the thirtieth (30th) day after the date he or
she becomes a Participant. A Deferral Election made for a Plan Year may not be
revised after the last date on which it could have been made except that any
Deferral Election made with respect to a Participant's
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compensation may be revoked in its entirety by the Participant at any time
by filing a written notice of revocation with the Company, but only as to
compensation which has not yet been earned and which is payable after receipt
and acceptance by the Company of such revocation.
4. Accounts: Crediting Earnings & Losses.
(a) All amounts deferred by a Participant under this Plan shall be
credited by the Company or Subsidiary, whichever is the employer of the
Participant, to a book account (a "Deferred Compensation Account") in the name
of such Participant as of the dates such amounts would have been paid to the
Participant but for his or her Deferral Election.
(b) The Company shall, from time to time and in its sole
discretion, select one or more investment vehicles (which may, but need not be,
comparable to investment vehicles offered as investment options under the DURA
Automotive Systems, Inc. Employees 401(k) Savings Plan) to be made available as
the measuring standards for crediting earnings or losses to each Participant's
Deferred Compensation Account. A Participant may select from such investment
vehicles in a manner established by the Company, the investment vehicle or
vehicles to apply to his or her Account and may change such selections, all in
accordance with such rules as the Company may establish. The earnings or losses
to be credited to the Participant's Account under this Section 4(b) for any
period shall be equivalent to the amount of earnings or losses which would have
been credited to the Account if the Account had actually been invested in such
investment vehicles during such period in the manner selected by the
Participant.
(c) Notwithstanding the foregoing, the Committee may change the
method for crediting earnings or losses to Accounts under (b) by written notice
to each Participant (including former Participants, if any, who then have a
Deferred Compensation Account which would be affected by such change), which
notice shall specify the new method for crediting earnings or losses to be used
under (b), the effective date of such change and the Deferred Compensation
Account(s) to which such new method shall apply.
5. Time and Method of Payment.
(a) Amounts standing to the credit of each Account within a
Participant's Deferred Compensation Account shall be paid, or commence to be
paid, once the Participant ceases to be an employee of the Company, its
Subsidiaries or the Parent Company for any reason whatsoever, as directed by the
Participant on the Participant's initial Deferral Election.
(b) All amounts credited to each Participant's Deferred
Compensation Account shall be distributed in cash and shall be made by the
Company, the Subsidiary or Parent Company which credited such amounts to the
Participant's Deferred Compensation Account.
(c) All amounts credited to a Participant's Deferred Compensation
Account shall be paid in either a single lump sum or in annual installments over
a period of three years, as the
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Participant has specified in his or her initial Deferral Election(s); however,
in the case of a "Change in Control" of the Company, the Company shall make a
single lump sum payment of the amount standing to the credit of the Participant.
In the case of installment payments, (i) interest on any Account shall continue
to be credited in accordance with Section 4 during the payment period, and (ii)
the amount of each payment shall be equal to the amount credited to the Deferred
Compensation Account divided by the number of annual payments remaining to be
made, including the current payment. [A "Change in Control" of the Company shall
mean the purchase or other acquisition by any person, entity or group of
persons, within the meaning of section 13(d) or 14(d) of the Securities Exchange
Act of 1934 (the "Act"), or any comparable successor provisions, of beneficial
ownership (within the meaning of Rule 13d-1 promulgated under the Act) of 30
percent or more of either the outstanding shares of common stock or the combined
voting power of the Company's then outstanding voting securities entitled to
vote generally, or the approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, with respect to which
persons who were stockholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter own more
than 50 percent of the combined voting power entitled to vote generally, in the
election of directors of the reorganized, merger or consolidated Company's then
outstanding securities, or a liquidation or dissolution of the Company or of the
sale of all or substantially all of the Company's assets.]
(d) All amounts credited to a Participant's Deferred Compensation
Account shall be paid as they become due to the Participant if then living. All
amounts credited to a Participant's Deferred Compensation Account at the time of
his or her death shall be paid pursuant to Section 6.
(e) Notwithstanding any provision hereof to the contrary, a
Participant may from time to time request, in such manner as may be satisfactory
to the Company, that the Company authorize an emergency payment to such
Participant. Any such distribution shall be for the sole purpose of enabling
such Participant to meet his immediate and heavy financial needs arising as a
result of a sudden and unexpected personal injury, sickness, disability,
substantial damage to real or personal property, or other unforeseen and
extraordinary emergency of such Participant or a member of his immediate family.
Children's educational expenses and the purchase or improvement of a residence
are specifically excluded as events deemed to constitute an emergency for
purposes of this Section 5(e). If an emergency payment is authorized, the
Company shall distribute to such Participant, within a reasonable time, an
amount determined by the Company to be sufficient to alleviate the financial
hardship, but not in excess of the Participant's Deferred Compensation Account
balances as of such date and such account shall be charged with the amount paid
therefrom as of the date of payment. In determining the amount to be
distributed, the Company may take into account amounts reasonably available from
other resources of the Participant.
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(f) If a Participant is required to pay federal (or state) income
tax on all or any portion of the amount credited to his Deferred Compensation
Account prior to the time it is actually received or made available, such
portion of his Deferred Compensation Account shall be paid to him under the Plan
upon written request.
6. Payments after Death. Each Participant may designate, from time to
time, a beneficiary or beneficiaries (who may be named contingently or
successively) to whom any amounts which remain credited to the Participant's
Deferred Compensation Account at the time of his or her death shall be paid. All
such amounts shall be paid in a single lump Sum in accordance with Section
5(b) as soon as practicable after such Participant's death. Each such
designation shall revoke all prior designations by the same Participant, except
to the extent otherwise specifically noted, shall be in a form prescribed by the
Company, and shall be effective only when filed by the Participant in writing
with the Company during his or her lifetime. Any amounts which remain credited
to a Participant's Deferred Compensation Account at the time of his or her
death which are not payable to a designated beneficiary shall be paid to the
estate of such Participant in a single lump sum in accordance with Section 5(b)
as soon as practicable after the death of such Participant.
7. Claims Procedure. In the event any person is denied benefits by
the Pension Committee, such person shall be notified in writing within ninety
(90) days (or one hundred eighty (180) days if special circumstances require an
extension of time) after receipt of this claim by the Committee of:
(a) the specific reason(s) for the denial;
(b) specific references to pertinent Plan provisions on which the
denial is based;
(c) a description of any additional material or information
necessary for the claimant to perfect his or her claim, and the reason why such
material or information is necessary; and
(d) the procedure for submitting his or her claim for review.
After the denial of the claim, the claimant shall be entitled to review
pertinent documents and to submit to the Committee in writing any issues to
comments the claimant may have regarding his or her claim for benefits under the
Plan.
If the claimant cannot settle his or her dispute with a
representative of the Committee, the claimant may request a review of his or her
claim by the Committee. Such requests must be made by the claimant in writing
within sixty (60) days after receipt of notice that his or her claim has been
rejected and may include a request that he or she be granted a hearing before
the Committee; in which case, if the Committee shall deem appropriate, such
hearing shall be held as soon as practicable thereafter. The Committee shall
advise the claimant in writing of the disposition of his or her appeal within
sixty (60) days after the request for a review of the claim is first received by
the Committee (or
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within one hundred twenty (120) days if a review with a hearing is requested)
and shall give specific references to the pertinent Plan provisions on which the
decision is based.
8. No Funding Required.
(a) Nothing in this Plan will be construed to create a trust or to
obligate the Company, any Subsidiary, the Parent Company or any other person to
segregate a fund, purchase an insurance contract, or in any other way to fund
currently the future payment of any benefits hereunder, nor will anything herein
be construed to give any Participant or any other person rights to any specific
assets of the Company, any Subsidiary, the Parent Company or of any other
person. Except as provided in 8(b) below, any benefits which become payable
hereunder shall be paid from the general assets of the Company, Subsidiary, or
Parent Company, whichever is applicable, in accordance with the terms hereof.
(b) The Company in its sole discretion may establish a grantor or
other trust of which it is treated as the owner under Subpart E of Subchapter J,
Chapter l of the Internal Revenue Code of 1986, as amended, to provide for the
payment of benefits hereunder, subject to such other terms and conditions as the
Company may deem necessary or advisable to ensure (i) that benefits are not
includible, by reason of the establishment or funding of the grantor trust, in
the income of trust beneficiaries prior to actual distribution and (ii) that the
existence of the grantor trust does not cause the Plan or any other arrangement
to be considered "funded" for purposes of Title I of ERISA.
9. Plan Administration and Interpretation. The Company shall have
complete control over the administration of the Plan and complete control and
authority to determine, in its sole discretion, the rights and benefits and all
claims, demands and actions arising out of the provisions of the Plan of any
Participant, beneficiary, or other person having or claiming to have any
interest under the Plan and the Company's determinations shall be conclusive and
binding on all such parties. The Company shall be deemed to be the Plan
Administrator with the responsibility for complying with any reporting and
disclosure requirements of ERISA. The rights of the Company hereunder shall be
exercised by the Pension Committee of the Company.
10. Non-Assignable. Amounts payable under this Plan shall not be
subject to alienation, assignment, garnishment, execution or levy of any kind,
and any attempt to cause any such amount to be so subjected shall be null, void
and of no effect and shall not be recognized by the Company, its Subsidiaries,
or the Parent Company.
11. Termination and Modification. The Company may terminate this Plan
by written notice to each Participant participating therein. A termination of
the Plan shall have no effect other than to eliminate the right of each
Participant to defer further compensation. The Company may also modify the Plan
provided that such modification does not have the effect of reducing the amount
in any
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Participant's Deferred Compensation Account. The Company shall notify each
Participant of any modification to the Plan.
12. Parties. The terms of this Plan shall be binding upon the Company,
its Subsidiaries, the Parent Company and their successors or assigns and each
Participant participating herein and his or her beneficiaries, heirs, executors
and administrators.
13. Liability of Company. Subject to its obligation to pay the amount
credited to the Participant's Deferred Compensation Account at the time
distribution is called for by the payment option in effect, none of the Company,
its Subsidiaries, the Parent Company nor any person acting in behalf of the
Company, its Subsidiaries or the Parent Company shall be liable to any
Participant or any other person for any act performed or the failure to perform
any act with respect to the Plan.
14. Notices. Notices, elections or designations by a Participant to
the Company hereunder shall be addressed to the Company to the attention of the
Corporate Vice President of Human Resources or his or her designee. Notices by
the Company to a Participant shall be addressed to the Participant at his or her
most recent home address as reflected in the records of the Company.
15. Unsecured General Creditors. No Participant or his or her legal
representative or any beneficiary designated by him or her shall have any
right, other than the right of any unsecured general creditor, against the
Company, any Subsidiary or the Parent Company with respect to the Deferred
Compensation Account of such Participant established hereunder.
16. Effective Date. This Plan shall be effective as of December 1,
1996, and shall continue in existence thereafter until terminated pursuant to
Section l0.
17. Governing Law. This Plan shall be construed and enforced in
accordance with, and governed by, the laws of Michigan.
6
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF KIRKLAND & ELLIS]
December 11, 1996
Dura Automotive Systems, Inc.
4508 IDS Center
Minneapolis, Minnesota 55402
Re: Dura Automotive Systems, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
We are acting as special counsel to Dura Automotive Systems, Inc., a
Delaware corporation (the "Company"), in connection with the proposed
registration by the Company of 1,200,000 shares of the Company's Class A Common
Stock par value $.01 per share (the "Class A Common Stock"), 700,000 such shares
of which are issuable upon exercise of stock options granted under the 1996 Key
Employee Stock Option Plan and the Independent Director Stock Option Plan
(collectively, the "Option Plans") and 500,000 such shares of which are issuable
under the Employee Stock Discount Purchase Plan pursuant to a registration
statement on Form S-8 filed with the Securities and Exchange Commission (the
"Commission") 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").
In connection with the foregoing, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary for the
purposes of this opinion, including the following: (a) the Amended and Restated
Certificate of Incorporation of the Company; (b) the Amended and Restated By-
laws of the Company; (c) resolutions adopted by the Board of Directors of the
Company on August 5, 1996 with respect to the Option Plans and the issuance of
the Class A Common Stock under such plans; (d) resolutions adopted by the
stockholders of the Company on August 6, 1996 with respect to the Option Plans;
(e) the Option Plans; (f) the Employee Stock Discount Purchase Plan; and (g) the
Registration Statement and exhibits thereto. With respect to matters of fact
necessary to the rendering of the opinions contained herein, we have obtained or
been furnished with, and have relied upon, such certificates and assurances from
officers and representatives of the Company and such public officials as we
deemed necessary or appropriate.
[LETTERHEAD OF KIRKLAND & ELLIS]
<PAGE>
KIRKLAND & ELLIS
Dura Automotive Systems, Inc.
December 11, 1996
Page 2
In rendering the opinions expressed below, we have assumed, with your
permission and without independent verification, that the signatures of persons
signing all documents in connection with which this opinion is rendered are
genuine and authorized (other than that of the Company), all documents submitted
to us as originals or duplicate originals are authentic, all documents submitted
to us as copies, whether certified or not, conform to authentic original
documents, all parties (other than the Company) to the documents reviewed by us
have full power and authority to execute, to deliver and to perform their
obligations under such documents and under the documents required or permitted
to be delivered and performed thereunder, and all such documents have been duly
authorized by all necessary action, have been duly executed by such parties, and
have been duly delivered by such parties.
Our opinions expressed below are 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), and
(iii) public policy considerations which may limit the rights of parties to
obtain certain remedies.
Based upon and subject to the foregoing qualifications, assumptions
and limitations and the further limitations set forth below we are of the
opinion that:
1. Each share of Class A Common Stock registered under the
Registration Statement and issuable under the Option Plans will be validly
issued, fully paid and non-assessable, if and when the following conditions are
satisfied:
a. the Registration Statement becomes effective;
b. the appropriate officers of the Company have taken all
necessary action to fix and approve the terms of the options;
c. the option under which such share is issued was granted
in accordance with the terms of the Option Plans;
<PAGE>
KIRKLAND & ELLIS
Dura Automotive Systems, Inc.
December 11, 1996
Page 3
d. such option is exercised in accordance with its terms and
the terms of the Option Plans;
e. the purchaser pays the full consideration for such share as
required by such option; and
f. the Company takes the actions necessary to cause delivery
of a valid certificate representing such share.
2. Each share of Class A Common Stock registered under the
Registration Statement and issuable under the Employee Stock Discount Purchase
Plan will be validly issued, fully paid and non-assessable, if and when the
following conditions are satisfied:
a. the Registration Statement becomes effective;
b. such share is issued and sold in accordance with the terms of
the Employee Stock Discount Purchase Plan;
c. the purchaser pays the full consideration for such share as
required by the terms of the Employee Stock Discount Purchase Plan;
and
d. the Company takes the actions necessary to cause delivery of a
valid certificate representing such share.
This opinion is limited to the specific issues addressed herein, and
no opinion may be inferred or implied beyond that expressly stated herein. We
are admitted to practice law in the State of Illinois and we express no opinions
as to matters under or involving any laws other than the laws of the State of
Illinois, the federal laws of the United States of America and the General
Corporation Law of the State of Delaware. 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.
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
<PAGE>
KIRKLAND & ELLIS
Dura Automotive Systems, Inc.
December 11, 1996
Page 4
of persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission.
This opinion is furnished to you in connection with the filing of the
Registration Statement, is solely for your benefit and is not to be used,
circulated, quoted or otherwise relied upon by any other person, or by you for
any other purpose, without our prior written consent.
Very truly yours,
/s/ Kirkland & Ellis
KIRKLAND & ELLIS
<PAGE>
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 26, 1996
(except for the matters discussed in Notes 20 and 11 for which the date is
August 9, 1996) included in Dura Automotive Systems, Inc. Form S-1 Registration
Statement No. 333-06601 and to all references to our Firm included in this
Registration Statement.
/s/ Arthur Andersen LLP
---------------------------
Arthur Andersen LLP
Minneapolis, Minnesota
December 11, 1996
<PAGE>
EXHIBIT 23.2
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 May 20, 1996
included in Dura Automotive Systems, Inc. Form S-1 Registration Statement No.
333-06601 and to all references to our Firm included in this Registration
Statement.
/s/ Arthur Andersen LLP
---------------------------
Arthur Andersen LLP
Kansas City, Missouri
December 11, 1996
