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As filed with the Securities and Exchange Commission on February 25, 2000
Registration No. 333-30538
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
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 (IRS Employer Identification No.)
incorporation or organization)
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
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interest reinvestment plans, please check the following box. [ ]
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. [ ]
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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 Exhibit
Index on page II-6.
Item 17. Undertakings.
A. Rule 415 Offering
The undersigned registrant hereby undertakes:
To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933.
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.
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.
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
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offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
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 24, 2000.
DANIELSON HOLDING CORPORATION
By: /s/ Martin J. Whitman
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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 24, 2000
- --------------------- Officer and a
Martin J. Whitman Director
/s/ Samuel Zell* Chairman of the February 24, 2000
- ---------------- Board and
Samuel Zell Director
/s/ David M. Barse* President and February 24, 2000
- ------------------- Chief Operating
David M. Barse Officer and a
Director
/s/ Michael T. Carney* Chief Financial February 24, 2000
- --------------------- Officer
Michael T. Carney
/s/ Joseph F. Porrino* Director February 24, 2000
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Joseph F. Porrino
/s/ Frank B. Ryan* Director February 24, 2000
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Frank B. Ryan
/s/ Eugene M. Isenberg* Director February 24, 2000
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Eugene M. Isenberg
/s/ Wallace O. Sellers* Director February 24, 2000
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Wallace O. Sellers
/s/ Stanley J. Gartska* Director February 24, 2000
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Stanley J. Gartska
/s/ William Pate* Director February 24, 2000
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William Pate
*By: /s/ Martin J. Whitman
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Martin J. Whitman
Attorney-in-fact
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EXHIBIT INDEX
Exhibit No. Description Location
5.1 Opinion of Exhibit 5**
Zukerman, Gore &
Brandeis, LLP,
regarding the legality
of securities being
offered
23.1 Consent of KPMG *
LLP
23.2 Consent of Contained within
Zukerman, Gore & Exhibit 5**
Brandeis, LLP
24 Power of Attorney Included in the
signature pages to the
Registration
Statement
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* Previously filed
** Filed herewith
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February 23, 2000
Danielson Holding Corporation
767 Third Avenue
New York, NY 10017
Ladies and Gentlemen:
We have acted as counsel to Danielson Holding Corporation, a Delaware
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission (the "Commission") of a Registration
Statement on Form S-3 (the "Registration Statement"), pursuant to which the
Company is registering under the Securities Act of 1933, as amended, a total of
900,000 previously issued shares (the "Shares") of its common stock, $.10 par
value per share (the "Common Stock"). The Shares are to be sold by certain
shareholders of the Company identified in the Registration Statement (the
"Selling Shareholders"). This opinion is being rendered in connection with the
filing of the Registration Statement.
As such counsel, we have examined and are familiar with the Restated
Certificate of Incorporation and By-laws, as amended, of the Company (each as
amended to date), the minutes of the meetings of the stockholders and directors
of the Company, the corporate stock records of the Company and the Registration
Statement. In addition, we have made such investigations of law and have
examined such certificates of public officials and officers of the Company and
such other documents and records as we have considered necessary for purposes of
this opinion.
We have assumed the genuineness of the signatures on and the
authenticity of all documents submitted to us as originals and the conformity to
original documents submitted to us as certified or photostatic copies. We have
also relied upon the accuracy of the aforementioned certificates of public
officials and, as to matters of fact, of officers of the Company. We have also
relied on Company records and have assumed the accuracy and completeness
thereof.
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Danielson Holding Corporation
February 23, 2000
Page 2
We express no opinion as to the laws of any jurisdiction other than
those of the United States of America and the General Corporation Law of the
State of Delaware.
Based on the foregoing, it is our opinion that the Shares have been
duly authorized and validly issued, fully paid and non-assessable, and no
personal liability attaches or will attach to the holders of such shares by
reason of the ownership thereof.
We understand that you wish to file this opinion as an exhibit to the
Registration Statement, and we hereby consent thereto. We hereby further consent
to the reference to us under the caption "Legal Matters" in the prospectus
included in the Registration Statement.
The opinion expressed herein has been rendered at your request in
connection with the filing of the Registration Statement with the Commission and
may not be relied upon by you in any other manner or for any other purpose and
may not be communicated or published by you to any other person for any purpose
without our prior written approval in each instance. We do not assume any
continuing obligation or responsibility to advise you of any changes in law, or
any change of circumstances of which we become aware, which may affect any of
the opinions or statements contained herein as of the date hereof or to update,
revise or supplement any such opinion or statement herein for any reason
whatsoever.
Very truly yours,
Zukerman Gore & Brandeis, LLP
