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As filed with the Securities and Exchange Commission on February 16, 2000
Registration No. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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DANIELSON HOLDING CORPORATION
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(Exact Name of Registrant as Specified in Charter)
Delaware 95-6021257
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(State or other jurisdiction of incorporation or (IRS Employer
organization) Identification No.)
767 Third Avenue, New York, New York, 10017 (212) 888-0347
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(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
David M. Barse
President and Chief Operating Officer
Danielson Holding Corporation
767 Third Avenue
New York, New York, 10017
(212) 888-0347
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With a copy to:
Ian M. Kirschner, Esq.
General Counsel and Secretary
Danielson Holding Corporation
767 Third Avenue
New York, New York, 10017
(212) 888-0347
Approximate date of commencement of proposed sale to public: As soon as
practicable after effective date of the registration statement.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
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If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
investment retirement plans, check the following box. [x ]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration number of the earlier effective registration
statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
Calculation of Registration Fee
<TABLE>
<CAPTION>
Title of each Amount to be Proposed Proposed Amount of
class of securities registered maximum maximum registration fee
to be registered offering price aggregate
per unit (1) offering price
<S> <C> <C> <C> <C>
Common Stock, 900,000 $5.25 $4,725,000 $1247.40
$.10 par value
</TABLE>
(1) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(c) based on the average of the high and low prices of
Danielson Holding Corporation's common stock on the American Stock Exchange on
February 14, 2000.
The registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
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PRELIMINARY PROSPECTUS
The information contained in this prospectus is not complete and may be changed.
Danielson may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This prospectus is not
an offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to completion, dated February 16, 2000
DANIELSON HOLDING CORPORATION
900,000 Shares of Common Stock
This prospectus relates to the public offering of 900,000 shares of our common
stock which is held by the selling stockholders listed beginning on page 6. The
selling stockholders may offer their shares of common stock through public or
private transactions, on or off the American Stock Exchange, at prevailing
market prices, or at privately negotiated prices. We will not receive any of the
proceeds from the sale of the shares, and the sale of these shares is not being
underwritten.
Our common stock is listed on the American Stock Exchange under the symbol
"DHC." On February 14, 2000, the last reported sale price for the common stock
was $5.25 per share.
You should carefully consider the risk factors beginning on page 1 of this
prospectus before purchasing any of the shares offered by this prospectus.
IN ORDER TO AVOID AN "OWNERSHIP CHANGE" FOR FEDERAL TAX PURPOSES, OUR
CERTIFICATE OF INCORPORATION PROHIBITS ANY PERSON FROM BECOMING A BENEFICIAL
OWNER OF 5% OR MORE OF OUR OUTSTANDING COMMON STOCK, EXCEPT UNDER LIMITED
CIRCUMSTANCES. CONSEQUENTLY, NO PERSON MAY ACQUIRE SHARES OF COMMON STOCK FROM
THE SELLING STOCKHOLDERS IF, AFTER GIVING EFFECT TO THAT ACQUISITION, THE PERSON
WOULD BENEFICIALLY OWN, EITHER DIRECTLY OR INDIRECTLY, 5% OR MORE OF THE
COMPANY'S SHARES OF COMMON STOCK.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES, OR DETERMINED IF
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
In this prospectus, "we," "us" and "our" refer to Danielson Holding Corporation
and our subsidiaries, unless the context specifically indicates otherwise.
The date of this prospectus is February 16, 2000.
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Table of Contents
Page
The Company....................................................................1
Risk Factors...................................................................1
Subsequent Event...............................................................4
Where You Can Find More Information............................................4
Forward-Looking Statements.....................................................5
Use Of Proceeds................................................................5
Selling Stockholders...........................................................6
Plan of Distribution...........................................................7
Legal Matters..................................................................9
Experts ......................................................................9
INFORMATION NOT REQUIRED IN PROSPECTUS......................................II-1
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THE COMPANY
We are a holding company incorporated in Delaware. We offer a variety of
insurance products through our subsidiaries. Our largest subsidiary is National
American Insurance Company of California. NAICC and its subsidiaries write
workers' compensation, non-standard private passenger and commercial automobile
insurance in the western United States, primarily California. We believe that
through NAICC we can achieve underwriting success through refinement of various
risk profiles. This helps us divide the non-standard market into more defined
segments, which enables us to price our products more precisely.
We are seeking to build stockholder value while maintaining a strong
capital structure. We are also seeking to grow by developing business
partnerships and making strategic acquisitions, including acquisitions that will
both complement our existing operations and enable us to earn an attractive
return on our investment.
As of December 31, 1999, we have a consolidated federal net operating loss
carryforward, commonly referred to as an NOL, of approximately $1.1 billion. The
NOL will expire in various amounts, if not used, between 2000 and 2012. The NOL
is currently fully reserved (that is, valued at $0) on our financial statements
in accordance with applicable accounting rules. It will remain fully reserved
unless our estimates of our future taxable income during the NOL carryforward
period are increased. There is no guarantee that we will be able to increase
such estimates.
Our principal executive offices are located at 767 Third Avenue, New York,
New York, 10017. Our telephone number at that address is (212) 888-0347.
RISK FACTORS
Before purchasing the shares offered by this prospectus, you should
carefully consider the risks described below, in addition to the other
information presented in this prospectus or incorporated by reference into this
prospectus. Some or all of the following risks could seriously harm our
business, financial condition or results of operations. In such case, the
trading price of our common stock could decline and you may lose all or part of
your investment.
PROVISIONS IN OUR CERTIFICATE OF INCORPORATION THAT LIMIT OWNERSHIP AND
TRANSFERABILITY OF OUR STOCK MAY ENTRENCH CURRENT MANAGEMENT AND THE CURRENT
STOCKHOLDERS. We are required to issue, in our name, as escrow agent,
certificates representing shares of common stock that are beneficially owned by
holders of 5% or more of our stock. In addition, when we receive the written
request from a 5% Stockholder to transfer their shares, we may refuse such
request upon the advice of our tax counsel that such transfer would create an
unreasonable risk of an "ownership change ". In no circumstances may anyone
acquire 5% or more of our stock without our consent.
ALTHOUGH WE CURRENTLY RELY ON CASH AND SHORT TERM INVESTMENTS TO MEET OUR
LIQUIDITY NEEDS, WE MAY EXPERIENCE LIQUIDITY CONSTRAINTS IN THE FUTURE. In such
event, we may rely on dividends and tax sharing payments from our subsidiaries.
These dividends and tax sharing payments may not be available because, among
other things:
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o In some cases, our subsidiaries must first receive regulatory approval
before paying us dividends.
o There are business and regulatory considerations that affect our
subsidiaries, including the impact of dividends on surplus which could
affect a subsidiary's insurance ratings, its competitive position, the
amount of premiums that it can write and its risk-based capital
requirements.
o There may be a prolonged material decline in an insurance subsidiary's
profits or materially adverse insurance regulatory developments.
WE CANNOT BE CERTAIN THAT OUR BUSINESS PLAN WILL BE ACHIEVED. Although we
have sought to grow through entering into strategic partnerships or making
acquisitions, we have limited financial resources and there are constraints on
our ability to issue additional stock or otherwise raise capital to finance
transactions. This may prevent us from successfully consummating any future
transactions.
OUR INSURANCE BUSINESS IS AFFECTED BY MANY FACTORS OUTSIDE OF OUR CONTROL
SUCH AS WEATHER CONDITIONS AND ECONOMIC ACTIVITY THAT CAN CAUSE FLUCTUATIONS IN
THE RESULTS OF OUR OPERATIONS. Our business is concentrated primarily in the
Western United States. If this area experiences an economic downturn, there
could be fewer car sales, less demand for automobile insurance and lower policy
amounts in addition to increased workers' compensation claims. Severe adverse
weather conditions could also adversely affect our business. These factors,
together with competitive pricing, could result in increases in our loss ratios
and fluctuations in our underwriting results and net income.
WE COMPETE BOTH WITH LARGE NATIONAL WRITERS AND WITH SMALLER REGIONAL
COMPANIES IN EACH STATE IN WHICH WE OPERATE. Some of these competitors are
larger and have greater financial resources than us. Some of these competitors
in the workers' compensation line of business have, from time to time, decreased
their prices significantly to gain market share. Our ability to grow depends on
our ability to expand in the states in which we already do business and to
expand into other states.
WE ARE SUBJECT TO INSURANCE LAWS AND REGULATIONS ESTABLISHED BY THE STATES
IN WHICH WE TRANSACT BUSINESS. The agencies established pursuant to these state
laws have broad administrative and supervisory powers which can impact our
insurance business including:
o the granting and revocation of licenses to transact insurance business
o regulation of trade practices
o establishment of guaranty associations
o licensing of agents
o approval of policy forms
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o premium rate filing requirements
o reserve requirements
o the form and content of required regulatory financial statements
o periodic examinations of insurers' records
o capital and surplus requirements and the maximum concentrations of
certain classes of investments
These laws, in general, also require approval of the particular insurance
regulators prior to certain actions by the insurance companies, including the
payment of dividends in excess of statutory limitations and certain transactions
and continuing service arrangements with affiliates. The laws of most states
provide for the filing of premium rate schedules and other information with the
insurance commissioner of a particular state, either directly or through rating
organizations. The insurance commissioner of each state generally has powers to
disapprove such filings or make changes to the rates if they are found to be
excessive, inadequate or unfairly discriminatory. The determination of rates is
based on various factors, including loss and loss adjustment expense experience.
The failure to obtain, or delay in obtaining, the required approvals could have
an adverse impact on the operations of our insurance subsidiaries. We are also
required by insurance regulators to maintain certain minimum amounts of capital.
WE ARE REQUIRED TO ESTIMATE LIABILITY FOR LOSSES AND LOSS ADJUSTMENT
EXPENSES. Our insurance subsidiaries establish provisions to cover their
estimated liability for losses and loss adjustment expenses ("LAE") with respect
to both reported and unreported claims as of the end of each accounting period.
By their nature, these provisions for unpaid losses and LAE do not represent an
exact calculation of liabilities. Rather, they are estimates involving
management's projections as to the ultimate settlement and administration of
claims. These expectations are, in turn, based on, among other things:
o facts and circumstances known at the time
o predictions of future events
o estimates of future trends in the severity and frequency of claims
o judicial theories of liability
o inflation
Our insurance subsidiaries regularly review their respective reserve
techniques and reserve positions and believe that adequate provision has been
made for their respective unpaid losses and LAE. We cannot insure that currently
established provisions for unpaid losses and LAE will prove adequate in light of
subsequent actual experience. Future earnings could be adversely impacted should
future loss development require increases in provisions for unpaid losses and
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LAE previously established for prior periods.
THE VOLUME OF TRADING IN OUR STOCK HAS HISTORICALLY BEEN LOW. Having a
market for shares without substantial liquidity can adversely affect the price
of the stock at a time an investor might want to sell his shares.
WE CAN NOT BE CERTAIN THAT THE NOL WILL CONTINUE TO BE AVAILABLE TO OFFSET
OUR TAX LIABILITY. We believe, based in part upon the views of our tax advisors,
that our NOL calculations are reasonable and that it is reasonable to conclude
that some or all of our NOL would be available to offset our future federal
taxable income, if any. The Internal Revenue Service ("IRS") has not examined
our tax returns for the years in which the losses giving rise to the NOL were
reported. The IRS may attempt to challenge the amount or availability of the NOL
in the event of a future tax audit. If the IRS disallows all or a portion of the
NOL, the disallowance, if sustained by the courts, could have an adverse impact
on our financial condition. In addition, if were to undergo an "ownership
change" as such term is used in Section 382 of the Internal Revenue Code, the
use of our NOL would be severely limited. Our Certificate of Incorporation
contains stock transfer restrictions which were designed to help us preserve the
NOL by avoiding an ownership change. We cannot be certain, however, that these
restrictions will prevent an ownership change.
SUBSEQUENT EVENT
In January 1999, NAICC (and its subsidiaries) entered into a workers'
compensation reinsurance agreement with Reliance Insurance Company. The
reinsurance agreement was to be effective from January 1,1999 through December
31, 2000, and covered workers' compensation losses in excess of $10,000 per
claim, with a maximum loss per claim of $18,000. In December 1999, NAICC entered
into an agreement to rescind the reinsurance agreement in exchange for a payment
of $8,000,000 plus the return of all net premiums remitted to Reliance Insurance
during the term of the agreement.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any document we file with the Commission at the Commission's public reference
room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the
Commission at 1-800-SEC-0330 for further information on the public reference
room. Our Commission filings are also available to the public at the
Commission's web site at http://www.sec.gov.
The common shares are traded on the American Stock Exchange. Material filed
by us can be inspected at the offices of the American Stock Exchange at 86
Trinity Place, New York, NY 10006.
The Commission allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to you by
referring you to those
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documents. The information incorporated by reference is considered to be part of
this prospectus, and information that we file later with the Commission will
automatically update and supersede this information. We incorporate by reference
the documents listed below and any future filings we will make with the
Commission under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act prior to the termination of the offerings described in this prospectus:
1. Annual Report on Form 10-K for the fiscal year ended December 31, 1998 (SEC
file number 001-06732 and filing date of March 30, 1999);
2. Quarterly Report on Form 10-Q, for the quarterly period ended March 31,
1999 (SEC file number 001-06732 and filing date of May 17, 1999);
3. Quarterly Report on Form 10-Q, for the quarterly period ended June 30, 1999
(SEC file number 001-06732 and filing date of August 13, 1999);
4. Quarterly Report on Form 10-Q/A for the quarterly period ended June 30,
1999 (SEC file number 001-06732 and filing date of August 18, 1999);
5. Quarterly Report on Form 10-Q, for the quarterly period ended September 30,
1999 (SEC file number 001-06732 and filing date of November 15, 1999);
6. Proxy Statement on Schedule 14A for the 1999 Annual Meeting (SEC file
number 001- 06732 and filing date of June 1, 1999);
7. Current Report on Form 8-K dated April 14, 1999 (SEC file number 001-06732
and filing date of May 26, 1999);
8. Current Report on Form 8-K/A dated April 14, 1999 (SEC file number
001-06732 and filing date of May 26, 1999).
You may request a copy of these filings, at no cost, by writing or
telephoning as follows: Danielson Holding Corporation, 767 Third Avenue, New
York, New York, 10017 (212) 888-0347, Attention: Ian M. Kirschner, Esq.
This prospectus is part of a registration statement on Form S-3 we filed
with the SEC under the Securities Act. You should rely only on the information
or representations provided in this prospectus. We have authorized no one to
provide you with different information. We are not making an offer of these
securities in any state where the offer is not permitted. You should not assume
that the information in this prospectus is accurate as of any date other than
the date on the front of the document.
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in this
prospectus contain forward-looking statements. These forward-looking statements
are based on our current expectations, estimates and projections about our
industry, management's beliefs and certain
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assumptions made by us. Words such as "anticipates," "expects," "intends,"
"plans," "believes," "seeks," "estimates" and variations of these words or
similar expressions are intended to identify forward-looking statements. These
statements are not guarantees of future performance and are subject to certain
risks, uncertainties and assumptions that are difficult to predict. Therefore,
our actual results could differ materially from those expressed or forecasted in
any forward-looking statements as a result of a variety of factors, including
those set forth in "Risk Factors" above and elsewhere in, or incorporated by
reference into, this prospectus. We undertake no obligation to update publicly
any forward-looking statements for any reason, even if new information becomes
available or other events occur in the future.
USE OF PROCEEDS
The selling stockholders received all of their shares of common stock in a
private placement that closed in December 1999. Each selling stockholder also
received registration rights when they purchased their shares. In connection
with these registration rights, we are required to use our best efforts to keep
the registration statement effective for no more than two years subsequent to
the last date the shares were subscribed for and sold.
The selling stockholders are offering all of the shares of common stock
covered by this prospectus. We received gross proceeds of $4,162,500, and net
proceeds of $4,108,500 as a result of the private placement pursuant to which
the selling stockholders purchased their shares. The $54,000 difference between
gross and net proceeds is a result of brokerage fees paid to an affiliated
broker-dealer as more fully described in "Plan of Distribution," on page 7
below. We will not receive any proceeds from the sale of the shares by the
selling stockholders.
SELLING STOCKHOLDERS
The following table sets forth the number of shares owned by each of the
selling stockholders. All information contained in the table below is based upon
their beneficial ownership as of February 11, 1999. We are not able to estimate
the amount of shares that will be held by the selling stockholders after the
completion of this offering because the selling stockholders may offer all or
some of their shares and because there currently are no agreements, arrangements
or understandings with respect to the sale of any of their shares. The following
table assumes that all of the shares being registered will be sold. The selling
stockholders are not making any representation that any shares covered by the
prospectus will be offered for sale. The selling stockholders reserve the right
to accept or reject, in whole or in part, any proposed sale of shares.
Number of Shares
Registered for Sale Number of Shares
Name of Selling Stockholder Hereby Beneficially Owned
Bedford Oak Advisors, LLC 150,000 300,000
Terry Diamond Trust 75,000 75,000
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<TABLE>
<S> <C> <C>
The Diamond Family Foundation 25,000 25,000
Bernard Osher, Trustee, Bernard Osher 50,000 50,000
Trust U/T/D 3/8/88
Jerome Blank 50,000 50,000
Rod Dammeyer 80,000 80,000
William Pate(1) 20,000 20,000
5 BF Partners 5,000 5,000
Mr. Harvey Becker 10,000 41,281
Homestead Ltd. 50,000 50,000
George E. Crapple 10,000 10,000
Michael G. Jesselson 12/18/80 Trust 50,000 50,000
October 1983 Grandchildren Trust 100,000 100,000
Martin S. Kimmel 50,000 100,000(2)
Adam P. Kimmell Minority Trust II 50,000 50,000
Milton Cooper 25,000 25,000
Robert Wueste 10,000 15,000
Long Meadow Holdings LP 90,000 450,000
Total 900,000 1,496,281
</TABLE>
(1) William Pate is also one of our directors
(2) Includes 50,000 shares owned by Adam P. Kimmell Minority Trust II of which
Mr. Kimmell is trustee.
Each of the selling stockholders will own less than 1% of our common stock,
either directly or beneficially, after the offering.
PLAN OF DISTRIBUTION
We are registering the common stock on behalf of the selling stockholders.
As used in this prospectus, the term "selling stockholders" includes pledgees,
transferees or other successors-in- interest selling shares received from the
selling stockholders as pledgor, borrower or in connection with other
non-sale-related transfers after the date of this prospectus. This prospectus
may also be used by transferees of the selling stockholders, including
broker-dealers or other transferees who borrow or purchase the shares to settle
or close out short sales of shares of common stock. The selling stockholders
will act independently of us in making decisions with respect to the timing,
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manner, and size of each sale or non-sale related transfer. We will not receive
any of the proceeds of this offering.
We paid MJ Whitman Inc. $54,000 in commissions for placing the common stock
with certain selling shareholders. MJ Whitman Inc. is a registered
broker-dealer. All of our executive officers are also executive officers and
indirect owners of MJ Whitman Inc.
The selling stockholders are offering shares of common stock that they
received in the private placement. This prospectus covers their resale of up to
900,000 shares of common stock.
The selling stockholders may sell their shares of common stock directly to
purchasers from time to time. Alternatively, they may from time to time offer
the common stock to or through underwriters, broker/dealers or agents, who may
receive compensation in the form of underwriting discounts, concessions or
commissions from the selling stockholders or the purchasers of such securities
for whom they may act as agents. The selling stockholders and any underwriters,
broker/dealers or agents that participate in the distribution of common stock
may be deemed to be "underwriters" within the meaning of the Securities Act and
any profit on the sale of such securities and any discounts, commissions,
concessions or other compensation received by any such underwriter,
broker/dealer or agent may be deemed to be underwriting discounts and
commissions under the Securities Act.
The common stock may be sold from time to time in one or more transactions
at fixed prices, at prevailing market prices at the time of sale, at varying
prices determined at the time of sale or at negotiated prices. The sale of the
common stock may be effected by means of one or more of the following
transactions (which may involve crosses or block transactions):
o on any national securities exchange, such as the AMEX, or quotation
service on which the common stock may be listed or quoted at the time
of sale,
o in the over-the-counter market,
o in transactions otherwise than on such exchanges or services or in the
over-the- counter market
o through the purchase and sale of over-the-counter options.
In connection with sales of the common stock or otherwise, the selling
stockholders may enter into hedging transactions with broker/dealers, which may
in turn engage in short sales of the common stock in the course of hedging the
positions they assume. The selling stockholders may also sell common stock short
and deliver common stock to close out such short positions, or loan or pledge
common stock to broker/dealers that in turn may sell such securities.
At the time a particular offering of the common stock is made, a prospectus
supplement, if required, will be distributed which will set forth the aggregate
amount of common stock being offered and the terms of the offering, including
the name or names of any underwriters, broker/dealers or agents, any discounts,
commissions and other terms constituting compensation
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from the selling stockholders and any discounts, commissions or concessions
allowed or reallowed or paid to broker/dealers.
To comply with the securities laws of certain jurisdictions, if applicable,
the common stock will be offered or sold in such jurisdictions only through
registered or licensed brokers or dealers.
The selling stockholders will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, which provisions may
limit the timing of purchases and sales of any of the common stock by the
selling stockholders. The foregoing may affect the marketability of such
securities.
Our certificate of incorporation prohibits any person from becoming a
beneficial owner of 5% or more of our outstanding common stock. This restriction
may significantly limit the marketability of our common stock as fewer investors
will be able to acquire it than if the restriction did not exist.
Pursuant to the Purchase Agreement with the selling stockholders, all
expenses of the registration of the common stock will be paid by us, including,
without limitation, the SEC filing fees; provided, however, that the selling
stockholders will pay all underwriting discounts and selling commissions, if
any. The selling stockholders will be indemnified by us against certain civil
liabilities, including certain liabilities under the Securities Act, or will be
entitled to contribution in connection therewith. We will be indemnified by the
selling stockholders severally against certain civil liabilities, including
certain liabilities under the Securities Act, or will be entitled to
contribution in connection therewith.
LEGAL MATTERS
The validity of the Securities offered hereby is being passed upon by
Zukerman Gore and Brandeis, LLP. As of the date of this prospectus, certain
members of Zukerman Gore & Brandeis, LLP who have worked on substantive
matters for us or our subsidiaries will own an aggregate of 7,000 shares of
common stock.
EXPERTS
KPMG LLP, independent auditors, have audited our consolidated financial
statements included in our Annual Report on Form 10-K for the year ended
December 31, 1998, as set forth in their reports, which are incorporated by
reference in this prospectus and elsewhere in the registration statement. Our
financial statements are incorporated by reference in reliance on KPMG LLP's
reports, given on their authority as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following sets forth the expenses in connection with the issuance and
distribution of the securities being registered, other than underwriting
discounts and commissions. All such expenses shall be borne by Danielson Holding
Corporation. All amounts set forth below are estimates, other than the SEC
registration fee.
SEC Registration Fee...................................................$1,247.40
American Stock Exchange additional listing fee.........................$17,500
Accounting Fees........................................................$8,000
Legal Fees and Expenses................................................$10,000
Miscellaneous..........................................................$8,252.60
TOTAL..................................................................$45,000
Item 15. Indemnification of Directors and Officers.
Section 145(a) of the General Corporation Law of the State of Delaware
("Delaware Corporation Law") provides, in general, that a corporation shall have
the power to indemnify any person who was or is a party or is threatened to be
made a party 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 the corporation), because the person is or was a director
or officer of the corporation. Such indemnity may be against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action, suit or
proceeding, if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation and if, with respect to any criminal action or proceeding, the
person did not have reasonable cause to believe the person's conduct was
unlawful.
Section 145(b) of the Delaware Corporation Law provides, in general, that a
corporation shall have the power to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor because the person is or was a director or officer of the corporation,
against any expenses (including attorneys' fees) actually and reasonably
incurred by the person in connection with the defense or settlement of such
action or suit if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation.
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Section 145(g) of the Delaware Corporation Law provides, in general, that a
corporation shall have the power to purchase and maintain insurance on behalf of
any person who is or was a director or officer of the corporation against any
liability asserted against the person in any such capacity, or arising out of
the person's status as such, whether or not the corporation would have the power
to indemnify the person against such liability under the provisions of the law.
Item 16. Exhibits.
The Exhibits to this registration statement are listed in the Index to
Exhibits on page II-7.
Item 17. Undertakings.
A. Rule 415 Offering
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:
a. To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933.
b. To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. 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.
c. 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;
provided, however, that paragraphs (1)(a) and (1)(b) do not apply if the
registration statement is on Form S-3 or Form S-8, and 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 the registration statement.
2. That, for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the
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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. Filings Incorporating Subsequent Exchange Act Documents by Reference
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 pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange 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.
C. Request for Acceleration of Effective Date
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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in City of New York, State of New York,
on February 11, 2000.
DANIELSON HOLDING CORPORATION
By: /s/ Martin J. Whitman
---------------------
Martin J. Whitman
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears
below constitutes and appoints David M. Barse and Martin J. Whitman and each of
them or either 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, to sign any and all amendments (including
post-effective amendments) to this registration statement (and any other
registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933) and to file the same
with all exhibits thereto, and all 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 might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
This power of attorney may be executed in counterparts. 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 dates indicated in
one or more counterparts.
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Signature Title Date
/s/ Martin J. Whitman Chief Executive February 11, 2000
- ---------------------
Martin J. Whitman Officer and a
Director
/s/ Samuel Zell Chairman of the February 11, 2000
- ---------------
Samuel Zell Board and Director
/s/ David M. Barse President and Chief February 11, 2000
- ------------------
David M. Barse Operating Officer
and a Director
/s/ Michael T. Carney Chief Financial February 11, 2000
- ---------------------
Michael T. Carney Officer
/s/ Joseph F. Porrino Director February 11, 2000
- ---------------------
Joseph F. Porrino
/s/ Frank B. Ryan Director February 11, 2000
- -----------------
Frank B. Ryan
/s/ Eugene M. Isenberg Director February 11, 2000
- ----------------------
Eugene M. Isenberg
/s/ Wallace O. Sellers Director February 11, 2000
- ----------------------
Wallace O. Sellers
/s/ Stanley J. Gartska Director February 11, 2000
- ----------------------
Stanley J. Gartska
/s/ William Pate Director February 11, 2000
- ----------------
William Pate
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EXHIBIT INDEX
Exhibit No. Description Location
5.1 Opinion of *
Zukerman, Gore &
Brandeis, LLP,
regarding the legality
of securities being
offered
23.1 Consent of KPMG Exhibit 23
LLP
23.2 Consent of *
Zukerman, Gore &
Brandeis, LLP
24 Power of Attorney Included in the
signature pages to the
Registration
Statement
- -------------
* To be filed by
amendment.
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INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Danielson Holding Corporation:
We consent to the use of our reports incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
New York, New York
February 15, 2000
