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As filed with the Securities and Exchange Commission on November 13, 1998
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Dana Corporation
(Exact name of registrant as specified in its charter)
Virginia
(State or other jurisdiction of incorporation or organization)
34-4361040
(I.R.S. Employer Identification No.)
4500 Dorr Street, Toledo, Ohio 43615, Telephone: 419-535-4500
(Address and telephone number of registrant's principal executive offices)
Martin J. Strobel, Secretary
Dana Corporation, 4500 Dorr Street, Toledo, Ohio 43615, Telephone: 419-535-4500
(Name, address and telephone number of agent for service)
Copies to:
Robert L. Kohl, Esq., Rosenman & Colin, LLP
575 Madison Avenue, New York, New York 10022, Telephone: 212-940-8800
Approximate date of commencement of proposed sale to the public: From time to
time after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or 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 interest
reinvestment 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 statement 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. [ ]
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH CLASS
OF SECURITIES PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED OFFERING PRICE (1) REGISTRATION FEE
---------------- ------------------ ----------------
<S> <C> <C>
Common Stock, par value $750,000,000 $208,500.00
$1 per share (including
related Preferred Share
Purchase Rights) and
Debt Securities
</TABLE>
(1) The maximum aggregate offering price of the Common Stock and the Debt
Securities registered hereunder will not exceed $750,000,000. Pursuant
to Rule 457(o) under the Securities Act of 1933, the registration fee
is calculated on the maximum offering price of all securities listed,
and the table does not specify information about the amount to be
registered, the proposed maximum offering price per unit, or the
proposed maximum aggregate offering price for each class.
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
will thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
Pursuant to Rule 429(a) under the Securities Act of 1933, the Prospectus which
constitutes part of this Registration Statement also relates to the Securities
of Registrant registered on Form S-3, Registration Statement No. 333-42239.
<PAGE> 3
SUBJECT TO COMPLETION, DATED NOVEMBER 13, 1998
PROSPECTUS
[Dana Corporation Logo]
DANA CORPORATION
4500 Dorr Street
Toledo, Ohio 43615
(415) 535-4500
$750,000,000
COMMON STOCK
DEBT SECURITIES
We will provide specific terms of these securities in supplements to this
Prospectus. You should read this Prospectus and any supplement carefully before
you invest.
The Common Stock is listed on the New York, Pacific and London Stock Exchanges
under the symbol "DCN."
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
Prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
This Prospectus is dated November ___, 1998
<PAGE> 4
ABOUT THIS PROSPECTUS
This Prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission (the "SEC") utilizing a "shelf"
registration process. Under this shelf process, we may sell any combination of
the securities (the "Securities") described in this Prospectus in one or more
offerings up to a total dollar amount of $750,000,000. This Prospectus provides
you with a general description of the Securities we may offer. Each time we sell
Securities, we will provide a prospectus supplement (each, a "Prospectus
Supplement") that will contain specific information about the terms of that
offering. The Prospectus Supplement may also add, update or change information
contained in this Prospectus. You should read both this Prospectus and any
Prospectus Supplement together with additional information described under the
heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our SEC filings are available to the public over
the Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file at the SEC's Public Reference Rooms in Washington,
D.C., New York, New York and Chicago, Illinois. The Public Reference Room in
Washington, D.C. is located at 450 Fifth Street, N.W. Please call the SEC at
1-800-SEC-0330 for further information on the Public Reference Rooms.
Our common stock is listed on the New York Stock Exchange, 20 Broad
Street, New York, New York 10005; The Pacific Stock Exchange, 301 Pine Street,
San Francisco, California 94104; and The International (London) Stock Exchange,
London EC2N 1HP. Reports, proxy statements and other information concerning our
Company can be reviewed at these exchanges.
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this Prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
until we sell all of the Securities:
- Annual Report on Form 10-K for the year ended December 31,
1997, except for the financial statements for the three years
then ended which are incorporated by reference to the Current
Report on Form 8-K filed on November 10, 1998;
- Quarterly Reports on Form 10-Q for the quarters ended March
31, June 30 (this information has not been restated as a
result of the merger with Echlin Inc. effective as of July 9,
1998) and September 30, 1998;
- Current Reports on Form 8-K, filed May 4, July 9, September 3
(8-K/A), September 18 and November 10, 1998;
- The description of the Company's common stock contained in
Form 8-A, dated on or about July 12, 1946; and
- The description of the Preferred Share Purchase Rights
contained in Form 8-A, dated May 1, 1996.
You may request a copy of these filings at no cost, by writing or telephoning us
at the following address:
Martin J. Strobel
Secretary
Dana Corporation
P.O. Box 1000
Toledo, Ohio 43697
(419) 535-4500
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We have also filed a registration statement on Form S-3 (the
"Registration Statement") with the SEC under the Securities Act of 1933. This
Prospectus does not contain all of the information set forth in the Registration
Statement. You should read the Registration Statement for further information
about the Company and the Securities.
You should rely only on the information incorporated by reference or
provided in this Prospectus or any Prospectus Supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of the Securities in any state where the offer is not permitted. You
should not assume that the information in this Prospectus or any Prospectus
Supplement is accurate as of any date other than the date on the front of those
documents.
THE COMPANY
Dana Corporation (together with its consolidated subsidiaries, the
"Company," "Dana," "we" or "us") was founded in 1904 as the first supplier of
universal joints to the automotive industry. Today, we are an international
leader in the design, manufacture and marketing of a broad range of products for
worldwide vehicular and industrial markets.
In the vehicular market, we sell original equipment ("OE") and
aftermarket components and assemblies for light, medium and heavy trucks, sport
utility vehicles, trailers, vans and automobiles. Our products include
drivetrain components (axles, driveshafts and structural components), engine
parts (gaskets and sealing systems, piston rings, condensers, distributors,
ignition coils, and filtration products), structural components (vehicle frames,
engine cradles and rails), chassis products (steering and suspension
components), brake parts (hydraulic brake master cylinders, new and
remanufactured brake shoes, drums, and disc pads) and other parts primarily
manufactured for OE manufacturers (power steering pumps, coupled hose systems
and heavy duty windshield wiper systems).
In the industrial market, we sell products for off-highway vehicle and
stationary equipment applications, including components for industrial power
transmission products (electrical and mechanical brakes and clutches, drives and
motion control devices) and components for fluid power systems (pumps, cylinders
and control valves).
In addition, through Dana Credit Corporation, we provide leasing and
financial services to selected markets in North America and Europe.
In July 1998, we merged one of our subsidiaries with Echlin Inc.
("Echlin"), another worldwide supplier of automotive products. Before the
merger, we had reported sales of $8.3 billion for 1997. Since we are accounting
for the merger as a pooling of interests, we now report combined 1997 sales of
$11.9 billion. Unless otherwise indicated, the information in this Prospectus
describes the combined entity.
The Echlin merger was one of a series of steps we have taken in the
past two years to focus on and strengthen our core products and businesses.
During that period, we completed strategic acquisitions of operations with
annualized sales of $4.9 billion, including the Clark-Hurth Components assets of
Ingersoll-Rand Company, the Sealed Power Division of SPX Corporation, the heavy
axle and brake business of Eaton Corporation, and Echlin. We also completed
significant restructuring and rationalization, including the sale of our
European distribution operations and other operations not core to our business.
These actions have helped us toward two goals which we have been
pursuing for some time. First, we have increased the portion of our sales
represented by non-highway vehicle OEM production and are closer to a balance
between our sales to vehicle OE manufacturers (now approximately 55%) and our
sales to the distribution, off-highway, service and industrial markets (now
approximately 45%). Second, we have improved the balance between our U.S. and
international sales and now obtain approximately 36% of our sales (including
exports) from customers outside the U.S.
We expect the Echlin merger to support our growth objectives in other
respects as well. With aftermarket brake parts, we believe we have a product
that has above-industry growth prospects because of superior performance
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(due to new technology and materials) and a shorter product life than
traditional brake components. Our leading portfolio of branded products will be
especially important for our entry into emerging international markets. And, we
can now integrate brake system components, vehicle fluid handling systems and
electronic ignition and engine management systems with our drivetrain and engine
systems product lines.
To serve our global markets, we have seven Strategic Business Units
("SBUs") -- Automotive Systems Group, Automotive Aftermarket Group, Engine
Systems Group, Heavy Truck Group, Off-Highway Systems Group, Industrial Group
and Dana Commercial Credit -- and regional administrative organizations in North
America, Europe, South America and Asia/Pacific.
USE OF PROCEEDS
We plan to use the net proceeds from the sale of the Securities for
general corporate purposes, including working capital, capital expenditures,
acquisitions, and the repayment or refinancing of debt. Each time we sell the
Securities, we will provide a Prospectus Supplement that will contain
information about how we intend to use the net proceeds from the sale of the
Securities sold at that time.
RATIO OF EARNINGS TO FIXED CHARGES
The following are our consolidated ratios of earnings to fixed charges for the
periods indicated:
<TABLE>
<CAPTION>
Nine Months
Ended
Year Ended December 31 September 30
------------------------------------------------ ----------------
1993 1994 1995 1996 1997 1997 1998
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Consolidated ratio of earnings to
fixed charges 3.0x 4.4x 4.3x 3.9x 3.1x 3.1x 3.7x
</TABLE>
These ratios were computed by dividing the earnings by the fixed charges. For
this purpose, "earnings" consist of income from continuing operations before
taxes, distributed income of less than 50% owned affiliates, fixed charges
(excluding capitalized interest) and income of majority-owned subsidiaries with
fixed charges, and "fixed charges" consist of interest on indebtedness and that
portion of rental expense (one third) which we believe to be representative of
interest.
DESCRIPTION OF CAPITAL STOCK
The following descriptions of the Company's capital stock do not
purport to be complete and are qualified in their entirety by reference to the
detailed provisions of the Company's Restated Articles of Incorporation and
By-Laws, and, with respect to the Preferred Share Purchase Rights, the Rights
Agreement (as hereafter defined), copies of which previously have been filed by
the Company with the SEC.
COMMON STOCK
Under its Restated Articles of Incorporation, the Company is authorized
to issue 350,000,000 shares of its common stock, $1 par value (the "Common
Stock"). Currently, there are approximately 165,500,000 shares of Common Stock
issued and outstanding and approximately 15,200,000 shares reserved in the
aggregate for issuance under the several employee and director stock plans
maintained by the Company. The Common Stock is listed on the New York, Pacific
and London Stock Exchanges under the symbol "DCN." The shares of Common Stock
currently outstanding are fully paid and non-assessable and any such shares
offered under a Prospectus Supplement, upon issuance against full consideration
therefor, will also be fully paid and non-assessable.
Holders of the Common Stock are entitled to receive dividends out of
funds legally available for payment thereof in such amounts per share as may be
declared by the Company's Board of Directors.
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Holders of the Common Stock are entitled to one vote per share held on
all matters submitted to a vote of the shareholders. The Common Stock is the
only voting class of the Company's capital stock of which shares are currently
issued and outstanding. The shares do not carry cumulative voting rights in
electing directors, which means that, if there is a quorum present or
represented at a meeting at which directors are to be elected, the holders of
more than 50% of the shares voting will elect all of the directors and the
holders of less than 50% of the shares voting will not elect any directors.
Upon any liquidation or dissolution of the Company, voluntary or
involuntary, holders of the Common Stock will receive equal shares of the assets
of the Company which are available for distribution to the holders of Common
Stock after payment of all liabilities of the Company and of any liquidation
preferences granted to holders of the Company's preferred stock.
The Common Stock is not convertible, does not have any sinking fund,
preemptive or other subscription rights, and is not subject to redemption.
PREFERRED STOCK
Under its Restated Articles of Incorporation, the Company is authorized
to issue up to 5,000,000 shares of Preferred Stock, none of which are currently
outstanding. The Company's Board of Directors has the authority to issue any
such Preferred Stock in one or more series; to fix the number of shares of each
series, its particular designation, its liquidation preference, and the rate of
dividends to be paid; and to determine whether dividends will be cumulative,
whether shares of the series will have voting rights and/or be redeemable, and
whether the particular series will be entitled to a sinking fund and/or to
conversion rights. If Preferred Stock is issued, the amount of funds available
for the payment of dividends on the Common Stock will be reduced by any dividend
obligation that the Board may fix for the Preferred Stock. Holders of Preferred
Stock will also have preferential treatment over holders of Common Stock in the
event of liquidation of the Company. In connection with the issuance of
Preferred Stock, the Board may grant voting rights to the holders of Preferred
Stock which may dilute the voting power of the holders of Common Stock.
JUNIOR PREFERRED STOCK AND PREFERRED SHARE PURCHASE RIGHTS
In connection with the Rights Agreement, dated April 25, 1996, between
the Company and Chemical Mellon Shareholder Services, L.L.C., Rights Agent (the
"Rights Agreement"), the Company's Board of Directors authorized the creation of
a Series A Junior Participating Preferred Stock ("Junior Preferred Stock").
The number of shares constituting the series of Junior Preferred Stock
is 1,000,000. Shares of Junior Preferred Stock are issuable only upon the
exercise of Preferred Share Purchase Rights ("Purchase Rights"), in the amount
of one Purchase Right for each share of the Common Stock outstanding on July 25,
1996, or which become outstanding (including the shares of Common Stock offered
under a Prospectus Supplement) after that date but prior to July 25, 2006, or
the date of certain earlier events. Each Purchase Right entitles its holder,
subject to the provisions of the Rights Agreement, until the earlier of July 25,
2006, or the redemption of the Purchase Rights, to buy one 1/1000th of a share
of Junior Preferred Stock at an exercise price of $110, subject to adjustment.
The Purchase Rights are redeemable at a price of $0.01 each at any time prior to
the acquisition by any person or entity of beneficial ownership of 15% or more
of the outstanding Common Stock. If any person (or entity) announces that he (or
it) has acquired beneficial ownership of 15% or more of the Common Stock or
commences, or announces an intention to commence, an offer the consummation of
which would result in his (or its) beneficially owning 15% or more of the Common
Stock, separate certificates for the Purchase Rights will be mailed to the
holders of Common Stock and the Purchase Rights will become exercisable and
transferable apart from the Common Stock.
If the Company is acquired in a merger or similar transaction or if 50%
of its assets or earning power are transferred to another company, in either
case without the approval of the Company's Board of Directors, the holder of
each Purchase Right may purchase a number of shares of the acquiring company's
common stock having a market price equal to twice the current exercise price of
the Purchase Right. If 15% (but less than 50%) of the Common Stock is acquired
by any person or entity, the Company's Board of Directors may exchange each
Purchase Right for one share of Common Stock. In these situations, the Purchase
Rights owned by any person or entity holding 15% or more of the Common Stock
become void and cannot be exercised.
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The Junior Preferred Stock, if issued, will be entitled to a cumulative
preferential quarterly dividend per share equal to the greater of $10 or 100
times the dividend declared on shares of the Common Stock. The Junior Preferred
Stock is redeemable in whole at the Company's option at a cash price per share
of the greater of $100 or 100 times the Current Market Price (as defined in the
Rights Agreement) of the Common Stock. In the event of liquidation, the holders
of the Junior Preferred Stock will be entitled to receive an amount equal to
accrued and unpaid dividends plus an amount per share equal to the greater of
$100 or 100 times the payment made per share to holders of Common Stock. Each
share of Junior Preferred Stock will be entitled to 100 votes, voting together
with the holders of the Common Stock on all matters submitted to the vote of
stockholders. In the event of any merger, consolidation or other transaction in
which Common Stock is exchanged, the holder of each share of Junior Preferred
Stock will be entitled to receive 100 times the amount and type of consideration
paid per share of Common Stock. The rights of the holders of Junior Preferred
Stock as to dividends and liquidations, their voting rights, and their rights in
the event of mergers and consolidations, are protected by customary
anti-dilution provisions.
The Purchase Rights have certain anti-takeover effects. Among other
things, the Purchase Rights may cause substantial dilution to a person or group
that attempts to acquire the Company on terms not approved by the Company's
Board of Directors, except pursuant to an offer conditioned on a substantial
number of Purchase Rights being acquired. The Purchase Rights should not
interfere with any merger or other business combination approved by the
Company's Board of Directors prior to the time that any person or entity has
acquired beneficial ownership of 15% or more of the Common Stock.
VIRGINIA LAW
The Company is a Virginia corporation and is subject to Article 14 (the
"Affiliated Transactions Statute") and Article 14.1 (the "Control Share
Statute") of the Virginia Stock Corporation Act.
Pursuant to the Affiliated Transactions Statute, a Virginia corporation
may not engage in an affiliated transaction with a 10% shareholder and his
affiliates (collectively, the "10% Holder") for three years following the 10%
acquisition unless the transaction is approved by a majority of the
disinterested directors of the corporation and two-thirds of the shares not
owned by the 10% Holder. For purposes of this provision, an affiliated
transaction is defined as one of the following transactions that has not been
approved previously by the corporation's board of directors: a merger, a share
exchange, a sale of assets with a fair market value in excess of 5% of the
corporation's consolidated net worth, a dissolution of the corporation and
certain securities transactions. The 10% Holder may effect the affiliated
transaction after the three-year period only if (1) the transaction is approved
(a) by two-thirds of the shares not owned by the 10% Holder or (b) by a majority
of the disinterested directors or (2) the aggregate consideration to be paid in
such affiliated transaction meets certain fair price criteria. A corporation may
opt out of this provision by amendment to its articles of incorporation or
by-laws approved by the majority of the outstanding shares of stock not owned by
the 10% Holder. The Company has not opted out of this provision.
Pursuant to the Control Share Statute, if a person (the "Acquiring
Person") acquires shares entitled to vote on the election of directors within
one of the ranges set by the statute (20% or more and less than one-third,
one-third or more but less than a majority, or a majority), it automatically
loses the right to vote the shares that fall within such range. The Acquiring
Person can demand a meeting of shareholders to vote on whether the
"disqualified" shares will have voting rights. The voting rights of the
"disqualified" shares can be restored by the affirmative vote of a majority of
"disinterested shares" at such a shareholders meeting. For purposes of the
Control Share Statute, "disinterested shares" include all outstanding shares
except those held by the Acquiring Person and the corporation's officers and
employee-directors. A corporation can opt out of the Control Share Statute by
amendment to its articles or by-laws and the Company has done so.
DESCRIPTION OF DEBT SECURITIES
The following summary sets forth the material terms under which the
Company expects to offer its debt securities in one or more series consisting of
notes, debentures and/or other evidences of indebtedness (the "Debt
Securities"). The terms of the particular Debt Securities offered by any
Prospectus Supplement and the extent to which the following terms apply will be
set forth in the Prospectus Supplement.
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GENERAL
The Debt Securities will be issued under an indenture or indentures and
one or more indenture supplements (collectively, the "Indenture") between the
Company and Citibank, N.A. (the "Trustee"). The terms of the Debt Securities
will include those stated in the Indenture and those made a part thereof by
reference to the Trust Indenture Act of 1939 as in effect on the date of the
Indenture.
The Indenture provides for the issuance of Debt Securities by the
Company in an unlimited amount from time to time in one or more series. The
Indenture does not limit the amount of debt, either secured or unsecured, which
the Company may issue under the Indenture or otherwise.
The Prospectus Supplement relating to the particular Debt Securities
offered thereby will describe the following terms of such Debt Securities: (1)
the title of the Debt Securities; (2) the price (expressed as a percentage of
the aggregate principal amount thereof) at which the Debt Securities will be
issued; (3) any limit upon the aggregate principal amount of the Debt
Securities; (4) the date(s) on which the Debt Securities will mature and any
provisions for extending such date(s); (5) the rate(s) (which may be fixed or
variable) per annum at which the Debt Securities will bear interest (if any), or
the manner in which such rate(s) will be determined; (6) the date(s) from which
any such interest will accrue and on which any such interest will be payable,
and any regular record dates for determining the holders to whom such interest
will be payable; (7) the place(s) where the principal of and any premium and
interest on the Debt Securities will be payable; (8) any obligation or right of
the Company to redeem, repurchase or repay the Debt Securities (in whole or in
part) pursuant to any sinking fund or analogous provisions or at the option of
the holders or the Company, and the price(s) at which, period(s) within which,
and terms upon which the Debt Securities will be redeemed, repurchased or repaid
pursuant to such obligation; (9) the denominations in which the Debt Securities
will be issued (if other than denominations of U.S. $1,000 and any integral
multiple thereof); (10) the currency or composite currency in which payment of
the principal of and any premium and interest on the Debt Securities will be
payable (if other than United States currency); (11) whether the Debt Securities
will be issued in the form of one or more permanent Global Securities and, if
so, the identity of the Depository for the same; (12) the portion of the
principal amount of the Debt Securities which will be payable upon declaration
of the acceleration of the maturity thereof (if other than the principal
amount); (13) any additions to or changes in the covenants or events of default
set forth below which will apply to the Debt Securities; (14) any conversion or
exchange provisions; and (15) any other terms of the Debt Securities (which
terms will be consistent with the applicable Indenture).
Unless otherwise set forth in the Prospectus Supplement, the Debt
Securities will be issued only in fully registered form without coupons, in
denominations of U.S. $1,000 or any integral multiple thereof (or comparable
integral multiples in foreign currency). If the Debt Securities are offered or
payable in any foreign currency, the Prospectus Supplement will set forth
applicable information about the foreign currency units, restrictions,
elections, tax consequences, and any other special information about the Debt
Securities.
If the Debt Securities are issued at a discount from their principal
amount, the Prospectus Supplement will set forth any applicable federal income
tax or other special considerations.
Unless otherwise set forth in the Prospectus Supplement, the principal
of and any premium and interest on the Debt Securities will be payable, and the
exchange and transfer of the Debt Securities will be registerable, at the office
of the Trustee or at any other office or agency maintained by the Company for
such purpose, subject to the limitations of the Indenture. No service charge
will be made for any registration of transfer or exchange of the Debt
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge imposed in connection therewith.
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RANKING
The Company currently intends to issue the Debt Securities as unsecured
and unsubordinated debt ranking pari passu with all other unsecured and
unsubordinated debt of the Company.
If the Company determines to issue any or all of the Debt Securities as
subordinated debt ("Subordinated Debt Securities"), the Prospectus Supplement
relating to such Subordinated Debt Securities will set forth the terms of any
indenture that may apply and the rights of the holders of the Subordinated Debt
Securities.
CONVERSION AND EXCHANGE
If the Debt Securities are convertible into or exchangeable for Common
Stock or Preferred Stock, property or cash, or any combination thereof, the
Prospectus Supplement will set forth the terms of conversion or exchange,
including whether such conversion or exchange is mandatory or at the option of
the holders or of the Company. If applicable, the Prospectus Supplement will
also set forth the factors and time for calculating the number of shares of
Common Stock or Preferred Stock to be received by the holders of the Debt
Securities upon conversion or exchange.
GLOBAL SECURITIES
The Debt Securities may be issued (in whole or part) in the form of one
or more Global Securities that will be deposited with, or on behalf of, a
depository identified in the Prospectus Supplement (the "Depository") and
registered in the name of the Depository or its nominee (the "Nominee").
The specific terms of the depository arrangement with respect to any
series of Debt Securities will be described in the Prospectus Supplement. The
Company anticipates that the following provisions will apply to all depository
arrangements.
Upon the issuance of a Global Security, the Depository or the Nominee
will credit the respective principal amount of the Debt Securities represented
by the Global Security on its book-entry registration and transfer system. Such
accounts will be designated by the underwriters or agents with respect to the
Debt Securities, or by the Company if it is offering and selling the Debt
Securities directly. Ownership of beneficial interests in the Global Security
will be limited to the designated participants and persons that may hold
interests through such participants. Such ownership will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
the Depository or Nominee (with respect to interests of the participants) and
records of the participants (with respect to interests of persons other than the
participants). The laws of some states may require that certain purchasers of
securities take physical delivery of such securities in definitive form (that
is, in the form of certificates registered in their names), and such laws may
impair the ability to transfer beneficial interests in a Global Security.
So long as either the Depository or the Nominee is the registered owner
of the Global Security, it will be considered the sole owner or holder of the
Debt Securities represented by the Global Security for all purposes under the
Indenture governing the Debt Securities. Except as provided below, owners of
beneficial interests in the Global Security will not be entitled to have the
Debt Securities registered in their names, will not receive or be entitled to
receive physical delivery of Debt Securities in definitive form, and will not be
considered the owners or holders thereof under the Indenture governing the Debt
Securities.
The principal of and any premium and interest on the Debt Securities
registered in the name of either the Depository or the Nominee will be paid to
it as the registered owner of the Global Security representing the Debt
Securities. The Company and the Trustee, Paying Agent(s) and Security
Registrar(s) for the Debt Securities will have no responsibility or liability
for any aspect of the records relating to or the payments made on account of
beneficial ownership interests of the Global Security (including the
maintaining, supervising or reviewing of any records relating to such
interests).
The Company expects that the Depository or the Nominee, as applicable,
upon receipt of any payment of the principal of or any premium and interest with
respect to the Debt Securities, will credit the participants' accounts
immediately with payments in amounts proportionate to their respective
beneficial interests in the principal amount
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of the Global Security, as shown on the Depository's or Nominee's records. The
Company also expects that payments by participants to owners of beneficial
interests in the Global Security held through such participants will be governed
by standing instructions and customary practices (as is now the case with
securities held for the accounts of customers registered in "street name") and
will be the responsibility of such participants.
If the Depository is at any time unwilling or unable to continue as
depository and a successor depository is not appointed by the Company within 90
days, the Company will issue the Debt Securities in definitive form in exchange
for the Global Security representing the Debt Securities. Further, if the
Company so specifies with respect to the Debt Securities, an owner of a
beneficial interest in the Global Security representing the Debt Securities may,
on terms acceptable to the Company and the Depository or Nominee, receive the
Debt Securities in definitive form. In such case, the owner of the beneficial
interest in the Global Security will be entitled to physical delivery in
definitive form of Debt Securities equal in principal amount to its beneficial
interest and to have such Debt Securities registered in its name. Such Debt
Securities will be issued in denominations of U.S. $1,000 and integral multiples
thereof, unless otherwise specified by the Company.
COVENANTS
CERTAIN DEFINITIONS
The following terms are defined substantially as in Section 1.01 of the
Indenture.
"Consolidated Net Tangible Assets" means the total assets (less
applicable reserves and other properly deductible items) on the balance sheet of
the Company and its consolidated Subsidiaries for the most recent fiscal
quarter, less (1) all current liabilities and (2) goodwill, trade names,
patents, organization expenses and other like intangibles of the Company and its
Subsidiaries.
"Funded Debt" means indebtedness for borrowed money owed or guaranteed
by the Company or any Restricted Subsidiary, and any other indebtedness which
under generally accepted accounting principles would appear as debt on the
consolidated balance sheet of the Company, maturing by its terms more than 12
months from the date of the determination thereof, including any indebtedness
renewable or extendible at the option of the obligor to a date more than 12
months from the date of determination thereof.
"Material Adverse Effect" means a material adverse effect on the
business, assets, financial condition or results of operations of the Company
and its Subsidiaries, taken as a whole.
"Principal Property" means any real property (including buildings and
other improvements) of the Company or any Restricted Subsidiary, owned currently
or hereafter acquired (other than any pollution control facility, cogeneration
facility or small power production facility), which has a book value in excess
of 2% of Consolidated Net Tangible Assets.
"Restricted Subsidiary" means any Subsidiary of the Company other than
an "Unrestricted Subsidiary." An "Unrestricted Subsidiary" means any Subsidiary
designated as such from time to time by the Board of Directors of the Company.
As of the date of this Prospectus, there are no Unrestricted Subsidiaries.
"Sale and Leaseback Transaction" means any arrangement with any person
or entity providing for the leasing by the Company or any Restricted Subsidiary
of any Principal Property whereby such Principal Property has been or is to be
sold or transferred by the Company or the Restricted Subsidiary to such person
or entity, excluding any such arrangement involving a lease for a term
(including renewal rights) of not more than 36 months.
"Secured Debt" means indebtedness (other than indebtedness among the
Company and Restricted Subsidiaries) for money borrowed, or other indebtedness
on which interest is paid or payable, which is secured by (1) a lien on any
Principal Property of the Company or a Restricted Subsidiary or on the stock or
indebtedness of a Restricted Subsidiary, or (2) any guarantee of indebtedness of
the Company by a Restricted Subsidiary.
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<PAGE> 12
"Subsidiary" means any corporation, partnership or other business
entity of which the Company, or the Company and one or more of its Subsidiaries,
or one or more of the Subsidiaries, directly or indirectly owns more than 50% of
the voting stock.
LIMITATIONS ON LIENS
The Company covenants not to incur or guarantee any Secured Debt
without equally and ratably securing the Debt Securities, and not to permit its
Restricted Subsidiaries to do so.
This covenant is not applicable to (1) Secured Debt existing at the
date of the Indenture; (2) liens on real or personal property acquired,
constructed or improved by the Company or a Restricted Subsidiary after the date
of the Indenture which are created contemporaneously with, or within 12 months
after, the acquisition, construction or improvement to secure all or any part of
the purchase price of such property or the cost of such construction or
improvement; (3) mortgages on property of the Company or a Restricted Subsidiary
created within 12 months of the completion of construction or improvement of any
new plant(s) on such property to secure the cost of such construction or
improvement; (4) liens on property existing at the time the property was
acquired by the Company or any Restricted Subsidiary; (5) liens on the
outstanding shares or indebtedness of a corporation existing at the time such
corporation becomes a Subsidiary; (6) liens on stock (except stock of
Subsidiaries) acquired after the date of the Indenture if the aggregate cost
thereof does not exceed 15% of the Consolidated Net Tangible Assets; (7) liens
securing indebtedness of a successor corporation to the Company to extent
permitted by the Indenture; (8) liens securing indebtedness of a Restricted
Subsidiary at the time it became such; (9) liens securing indebtedness of any
entity outstanding at the time it merged with, or substantially all of its
properties were acquired by, the Company or any Restricted Subsidiary; (10)
liens created, incurred or assumed in connection with an industrial revenue
bond, pollution control bond or similar financing arrangement between the
Company or any Restricted Subsidiary and any federal, state or municipal
government or other governmental body or quasi-governmental agency; (11) liens
in connection with government or other contracts to secure progress or advance
payments; (12) liens in connection with taxes or legal proceedings to the extent
such taxes or legal proceedings are being contested or appealed in good faith or
are incurred for the purpose of obtaining a stay or discharge in the course of
such proceedings; (13) liens consisting of mechanics' or materialmen's or
similar liens incurred in the ordinary course of business and easements, rights
of way, zoning restrictions, restrictions on the use of real property and
defects and irregularities in title thereto; (14) liens made in connection with
or to secure payment of workers' compensation, unemployment insurance, or social
security obligations; (15) liens in connection with the Sale and Leaseback
Transactions which are not subject to the limitations described below under
"Limitations on Sale and Leaseback"; (16) mortgages to secure debt of a
Restricted Subsidiary to the Company or to another Restricted Subsidiary; and
(17) extensions, renewals or replacements of the foregoing permitted liens to
the extent of the original amounts thereof.
In addition, the Company and its Restricted Subsidiaries may have
Secured Debt which would not otherwise be permitted or excepted without equally
and ratably securing the Debt Securities, if the sum of such Secured Debt plus
the aggregate value of Sale and Leaseback Transactions subject to the
limitations described below does not exceed 15% of Consolidated Net Tangible
Assets.
LIMITATIONS ON SALE AND LEASEBACK
The Company covenants not to engage in any Sale and Leaseback
Transactions involving any Principal Property, or to permit any of its
Restricted Subsidiaries which has been in operation for more than 180 days to do
so, unless (1) the Company or such Restricted Subsidiary would be entitled to
incur Secured Debt on such Principal Property equal to the amount realizable
upon such sale or transfer as if such amount were secured by a mortgage, without
equally and ratably securing the Debt Securities; or (2) an amount equal to the
greater of the net proceeds of the sale or the fair value of such Principal
Property is applied within 180 days either to (a) the retirement of indebtedness
of the Company that was Funded Debt at the time it was created or (b) the
purchase of other Principal Property having a value at least equal to the
greater of such amounts; or (3) the Sale and Leaseback Transaction involved an
industrial revenue bond, pollution control bond or other similar financing
arrangement between the Company or any Restricted Subsidiary and any federal,
state or municipal government or other governmental body or agency.
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<PAGE> 13
PAYMENT OF TAXES
The Company covenants to pay, before they become delinquent, (1) all
taxes and other government charges levied on the Company or any Subsidiary or on
the income, profits or property of the Company or any Subsidiary, and (2) all
lawful claims for labor, material and supplies which might become a lien and
have a Material Adverse Effect. However, the Company will not be required to pay
taxes, assessments or charges if the amount, applicability or validity of the
same is being contested in good faith by appropriate proceedings.
EXISTENCE
The Company covenants to do all things necessary to keep its existence,
rights and franchises in full force and effect, and to cause its Subsidiaries to
do the same. However, neither the Company nor any Subsidiary will be required to
preserve any right or franchise (or, in the case of a Subsidiary, its existence)
if the Company determines that the same is no longer desirable in the conduct of
the Company's business and that the loss or termination of the same will not
result in a Material Adverse Effect.
COMPLIANCE WITH LAWS
The Company covenants that it will comply with all applicable federal,
state, local and foreign laws, rules, regulations and ordinances, and will cause
its Subsidiaries to do the same, in each case to the extent that the failure to
so comply would have a Material Adverse Effect.
EVENTS OF DEFAULT
Unless otherwise set forth in the Prospectus Supplement, the following
will be "Events of Default" under the Indenture with respect to the series of
Debt Securities issued thereunder: (1) a default for 30 days in the payment of
any interest on the Debt Securities when due; (2) the failure to pay the
principal of or any premium on the Debt Securities when due; (3) the failure to
deposit any mandatory sinking fund installment with respect to the Debt
Securities when due; (4) the failure to observe or perform any other covenant in
the Indenture applicable to the Debt Securities (other than a covenant included
in the Indenture for the benefit of another series of Debt Securities)
continuing beyond any applicable grace period; (5) certain events of bankruptcy,
insolvency or reorganization; and (6) any other event of default specified in
the Prospectus Supplement.
The Indenture provides that, upon the occurrence of an Event of Default
(after expiration of any applicable grace period), the Trustee or the holders of
25% of the aggregate principal amount of the outstanding Debt Securities of any
series may declare the principal amount of and any accrued but unpaid interest
on such Debt Securities immediately due and payable. After any such acceleration
with respect to the Debt Securities, the holders of a majority of the aggregate
principal amount of the outstanding Debt Securities may rescind and annul such
declaration before a judgment or decree for payment of money has been obtained.
The Indenture provides that within 90 days after the occurrence of an
Event of Default with respect to any series of Debt Securities, the Trustee will
give notice to the holders thereof of all uncured and unwaived defaults known to
it (including events which, after notice or lapse of time or both will become
Events of Default); provided that, except in the case of default in the payment
of the principal of, any premium or interest on, or any mandatory sinking fund
installment on, such Debt Securities, the Trustee will be protected in
withholding such notice if it determines in good faith that withholding the
notice is in the best interest of such holders.
The Indenture provides that the holders of a majority of the aggregate
principal amount of any series of Debt Securities outstanding will have the
right to direct the time, method and place for conducting any proceeding for any
remedy available to the Trustee, or exercising any power or trust conferred on
the Trustee, provided that such direction is in accordance with law and the
provisions of the Indenture.
If an Event of Default occurs and is continuing, the Trustee will
exercise its rights and powers under the Indenture and use the same degree of
skill and care in such exercise as a prudent person would use under the
circumstances in the conduct of his own affairs. Subject thereto, the Trustee
will not be obligated to exercise its rights or powers under the Indenture at
the request of the holders of the Debt Securities unless they have offered the
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<PAGE> 14
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which it may incur in compliance with such request.
Unless otherwise provided in the Indenture, the holders of a majority
of the aggregate principal amount of the outstanding Debt Securities, on behalf
of all holders of such Debt Securities, may waive (1) any past default under the
Indenture (except a default in the payment of the principal of or any premium or
interest on the Debt Securities) or (2) compliance by the Company with certain
restrictive provisions of the Indenture.
Under the Indenture, the Company will be required to furnish annually
to the Trustee a statement about the Company's performance of certain of its
obligations under the Indenture and any default in such performance.
MERGER
The Indenture provides that the Company may consolidate with, or sell,
lease or convey all or substantially all of its assets to, or merge into any
other corporation, without the consent of the holders of the Debt Securities,
provided that (1) the successor corporation is organized and existing under the
laws of the United States or a State thereof and expressly assumes the due and
punctual payment of the principal of and any premium and interest on the Debt
Securities according to their terms and the due and punctual performance and
observance of the covenants and conditions of the Indenture to be performed by
the Company, and (2) after giving effect to the transaction, no Event of Default
will have occurred and be continuing. Except as set forth herein or in any
Prospectus Supplement, the Indenture will not contain any covenants or other
provisions designed to afford the holders of the Debt Securities protection in
the event of a takeover, recapitalization or highly leveraged transaction
involving the Company.
MODIFICATION OF THE INDENTURE
The Company and the Trustee may amend or modify the Indenture from time
to time for administrative convenience or necessity, provided that the changes
do not materially adversely affect the rights of the holders of the Debt
Securities.
Moreover, with the consent of the holders of a majority in aggregate
principal amount of the outstanding Debt Securities, the Company and the Trustee
may amend or modify the Indenture so as to affect the rights of the holders of
the Debt Securities, except that, without the consent of the holder of each Debt
Security affected thereby, no amendment or modification may (1) extend the time
of maturity of the principal of or any installment of interest on the Debt
Securities; (2) reduce the principal of or any premium or rate of interest on
the Debt Securities; or (3) reduce the percentage in principal amount of
outstanding Debt Securities the consent of whose holders is required to waive
compliance with certain provisions of the Indenture or to waive certain events
of default and their consequences.
DISCHARGE AND DEFEASANCE
The Company may satisfy and discharge its obligations under the
Indenture (other than its obligation to pay the principal of and any premium and
interest on the Debt Securities and certain other specified obligations) if it
(1) irrevocably deposits with the Trustee, as trust funds, the amount (in money
or U.S. government obligations maturing as to principal and interest) sufficient
to pay the principal of and any premium and interest on the Debt Securities and
any mandatory sinking fund obligations with respect thereto on the stated
maturity date of such payments or on any redemption date, and (2) complies with
any additional conditions specified to be applicable with respect to the
defeasance of such Debt Securities.
The terms of any series of Debt Securities may also provide for legal
defeasance pursuant to the Indenture. In such case, if the Company (1)
irrevocably deposits money or U.S. government obligations as described above,
(2) makes a request to the Trustee to be discharged from its obligations on such
Debt Securities, and (3) complies with any additional conditions specified to be
applicable with respect to the legal defeasance of such Debt Securities, then
the Company will be deemed to have paid and discharged the entire indebtedness
on all such outstanding Debt Securities under the Indenture and the obligation
of the Company to pay the principal of and any premium and interest on such Debt
Securities shall cease, terminate and be completely discharged and the holders
of the Debt Securities will be entitled only to payment out of the money or U.S.
government obligations deposited with the
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<PAGE> 15
Trustee, unless the Company's obligations are revived and reinstated because the
Trustee is unable to apply such trust fund due to any legal proceeding, order or
judgment.
PLAN OF DISTRIBUTION
The Company may offer the Securities directly to purchasers, to or
through underwriters, through dealers or agents, or through a combination of
such methods.
If underwriters are used in an offering of the Securities, the Company
will execute an underwriting agreement with such underwriters and will set out
the name of each underwriter and the terms of the transaction (including any
underwriting discounts and other terms constituting compensation of the
underwriters and any dealers) in the Prospectus Supplement. If an underwriting
syndicate is used, the managing underwriter(s) will be set forth on the cover of
the Prospectus Supplement. Such Securities will be acquired by the underwriters
for their own accounts and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. Any initial public
offering price and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
If dealers are used in an offering of Securities, the Company will sell
such Securities to the dealers as principals. The dealers then may resell such
Securities to the public at varying prices which they determine at the time of
resale. The names of the dealers and the terms of the transaction will be set
forth in the Prospectus Supplement.
If agents are used in an offering of Securities, the names of the
agents and the terms of the agency will be set forth in the Prospectus
Supplement. Unless otherwise indicated in the Prospectus Supplement, the agents
will act on a best-efforts basis for the period of their appointment.
Dealers and agents named in a Prospectus Supplement may be deemed to be
underwriters (within the meaning of the Securities Act) of the Securities
described therein. Underwriters, dealers and agents, may be entitled to
indemnification by the Company against certain liabilities (including
liabilities under the Securities Act) under underwriting or other agreements
entered into with the Company.
The Company may solicit offers to purchase the Securities from, and
sell the Securities directly to, institutional investors or others who may be
deemed to be underwriters within the meaning of the Securities Act with respect
to any resales thereof. The terms of any such offer will be set forth in the
Prospectus Supplement.
Certain underwriters, dealers or agents and their associates may engage
in transactions with, and perform services for, the Company in the ordinary
course of business, including refinancing of the Company's indebtedness.
If so indicated in the Prospectus Supplement, the Company will
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase the Securities from the
Company pursuant to contracts providing for payment and delivery on a future
date. Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any purchaser
under any such contract will be subject to the condition that the purchase of
the Securities will not, at the time of delivery, be prohibited under the laws
of any jurisdiction to which such purchaser is subject. The underwriters and
such other agents will not have any responsibility for the validity or
performance of such contracts.
To facilitate an offering of a series of Securities, certain persons
participating in the offering may engage in transactions that stabilize,
maintain or otherwise affect the price of the Securities. This may include
over-allotments or short sales of the Securities, which involves the sale by
persons participating in the offering of more Securities than have been sold to
them by the Company. In such circumstances, such persons would cover such
over-allotments or short positions by purchasing in the open market or by
exercising their over-allotment options. In addition, such persons may stabilize
or maintain the price of the Securities by bidding for or purchasing Securities
in the open market or by imposing penalty bids, whereby selling concessions
allowed to dealers participating in any such offering may be reclaimed if
Securities sold by them are repurchased in connection with stabilization
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<PAGE> 16
transactions. The effect of these transactions may be to stabilize or maintain
the market price of the Securities at a level above that which might otherwise
prevail in the open market. Such transactions, if commenced, may be discontinued
at any time.
LEGAL MATTERS
Certain legal matters with respect to the Securities offered hereby
will be passed upon for the Company by Rosenman & Colin, LLP of New York, New
York and Hunton & Williams of Richmond, Virginia. Robert L. Kohl, a member of
Rosenman & Colin, LLP, owns approximately 1,100 shares of the Company's Common
Stock.
Certain legal matters will also be passed upon by Wachtell, Lipton,
Rosen & Katz of New York, counsel for the underwriters, and by such other
counsel for the underwriters or agents as are identified in any Prospectus
Supplement. Wachtell, Lipton, Rosen & Katz performs legal services for the
Company from time to time.
EXPERTS
The financial statements for the three years ended December 31, 1997,
incorporated in this Prospectus by reference to the Current Report on Form 8-K
filed on November 10, 1998, have been so incorporated in reliance upon the
report of PricewaterhouseCoopers LLP, independent accountants, given on the
authority of said firm as experts in auditing and accounting.
14
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following expenses will be paid by the Company:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee $208,500
Accounting Fees and Expenses 50,000
Legal Fees and Expenses 150,000
Trustees' Fees and Expenses 4,000
Rating Agency Fees 210,000
Printing and Engraving Expenses 70,000
--------
Total $692,500
========
</TABLE>
All expenses other than the Commission registration fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the Virginia Stock Corporation Act, in certain circumstances the Company
is authorized to indemnify its directors and officers against liabilities
(including reasonable defense expenses) they may incur in proceedings in which
they are named as parties because of their positions as directors and officers
of the Company.
Pursuant to this authorization, the shareholders have adopted the SIXTH Article
of the Company's Restated Articles of Incorporation. This Article provides that
in any proceeding brought by a shareholder in the right of the Company or on
behalf of the shareholders, no director or officer of the Company shall be
liable for monetary damages exceeding $50,000 with respect to any transaction,
occurrence or course of conduct unless such person engaged in willful misconduct
or a knowing violation of criminal law or of any federal or state securities
law. The Article further provides that the Company shall indemnify any director
or officer who is a party to any proceeding (including a proceeding brought by a
shareholder in behalf of the Company or the Company's shareholders) by reason of
the fact that he or she is or was a director or officer of the Company against
any liability incurred in connection with such proceeding, unless he or she
engaged in willful misconduct or a knowing violation of criminal law. In
addition, the Company will pay or reimburse all reasonable expenses (including
attorneys' fees) incurred by the director or officer in connection with such
proceeding in advance of the disposition of the proceeding if certain conditions
are met. In general, all indemnification will be made in accordance with Section
13.1-701 of the Virginia Stock Corporation Act.
As authorized in the Restated Articles of Incorporation, the Board of Directors
has adopted a By-Law provision under which the Company will indemnify its
directors and officers in comparable manner against liabilities they may incur
when serving at the Company's request as directors, officers, employees or
agents of other corporations or certain other enterprises.
The Company carries primary and excess "Executive Liability and Indemnification"
insurance covering certain liabilities incurred by the directors, elected
officers, and certain appointed officers of the Company in the performance of
their duties. Coverage is either on a direct basis or through reimbursement of
amounts expended by the Company for indemnification of these individuals.
Subject to certain deductibles, the insurers will pay or reimburse all covered
costs incurred up to an annual aggregate of $50 million. Coverage is excluded
for purchases or sales of securities in violation of Section 16 (b) of the
Securities Exchange Act of 1934, deliberately fraudulent or willful violations
of any statute or regulation, illegal personal gain, and certain other acts.
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<PAGE> 18
ITEM 16. EXHIBITS.
The following exhibits are filed with this Registration Statement:
1-A* Form of Underwriting Agreement (Common Stock)
1-B* Form of Underwriting Agreement (Debt Securities)
3-A Restated Articles of Incorporation (incorporated by reference to
Exhibit 3-A to Registrant's Quarterly Report on Form 10-Q for the
quarter ending June 30, 1998)
3-B Restated By-Laws (incorporated by reference to Exhibit 3-B to
Registrant's Quarterly Report on Form 10-Q for the quarter ending June
30, 1998)
4-A Single Denomination Stock Certificate (incorporated by reference to
Exhibit 4-B to Registrant's Form S-3, Registration No. 333-18403, filed
December 20, 1996)
4-B Indenture for Senior Securities between Dana Corporation and Citibank,
N.A., Trustee, dated as of December 15, 1997 (incorporated by reference
to Exhibit 4-B to Registrant's Form S-3, Registration No. 333-42239,
filed December 15, 1997)
4-C Form of Debt Securities (included in Exhibit 4-B)
5* Opinion of Hunton & Williams
12 Computation of Ratio of Earnings to Fixed Charges
23-A Consent of PricewaterhouseCoopers LLP
23-B* Consent of Hunton & Williams (included in Exhibit 5)
24 Power of Attorney
25 Form T-1 Statement of Eligibility Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as Trustee (incorporated by
reference to Exhibit 25 to Registrant's Form S-3, Registration No.
333-42239, filed December 15, 1997).
*To be filed by amendment or as an exhibit to a document to be incorporated by
reference herein.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
provided that, 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
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<PAGE> 19
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 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective
registration statement; and
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in
this Registration Statement or any material change to
such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section
13 or Section 15 (d) of the Securities Exchange Act of 1934
that are incorporated by reference in this Registration
Statement.
(2) That, for the purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment
will be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time will 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.
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 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the Registration Statement will be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time will be deemed to be
the initial bona fide offering thereof.
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.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of
prospectus filed as part of this Registration Statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by the Registrant pursuant to Rule 424(b)(1) or (4)or
497(h) under the Securities Act of 1933 shall be deemed to be
part of this Registration Statement as of the time it was
declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus 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.
The undersigned Registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Act.
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<PAGE> 20
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Toledo, State of Ohio, on November 13, 1998.
DANA CORPORATION (Registrant)
By: /s/ Martin J. Strobel
--------------------------------
Martin J. Strobel
Secretary
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
PRINCIPAL EXECUTIVE OFFICER:
* /s/ S. J. Morcott
- ----------------------------
S. J. Morcott Chairman of the Board November 13, 1998
and Chief Executive Officer
PRINCIPAL FINANCIAL OFFICER:
/s/ J. S. Simpson
- ----------------------------
J. S. Simpson Chief Financial Officer November 13, 1998
PRINCIPAL ACCOUNTING OFFICER:
/s/ C. W. Hinde
- ----------------------------
C. W. Hinde Chief Accounting Officer November 13, 1998
DIRECTORS:
* /s/ B. F. Bailar
- ----------------------------
B. F. Bailar Director November 13, 1998
* /s/ A. C. Baillie
- ----------------------------
A. C. Baillie Director November 13, 1998
* /s/ E. M. Carpenter
- ----------------------------
E. M. Carpenter Director November 13, 1998
* /s/ E. Clark
- ----------------------------
E. Clark Director November 13, 1998
* /s/ G.H. Hiner
- ----------------------------
G. H. Hiner Director November 13, 1998
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<PAGE> 21
/s/ J. M. Magliochetti
- ----------------------------
J. M. Magliochetti Director November 13, 1998
* /s/ M. R. Marks
- ----------------------------
M. R. Marks Director November 13, 1998
* /s/ R. B. Priory
- ----------------------------
R. B. Priory Director November 13, 1998
* /s/ J. D. Stevenson
- ----------------------------
J. D. Stevenson Director November 13, 1998
* /s/ T. B. Sumner, Jr.
- ----------------------------
T. B. Sumner, Jr. Director November 13, 1998
*By: /s/ Martin J. Strobel
-----------------------
Martin J. Strobel
Attorney-in-Fact
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<PAGE> 22
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION PAGE
1-A* Form of Underwriting Agreement (Common Stock)
1-B* Form of Underwriting Agreement (Debt Securities)
3-A Restated Articles of Incorporation (incorporated by reference
to Exhibit 3-A to Registrant's Quarterly Report on Form 10-Q
for the quarter ending June 30, 1998)
3-B Restated By-Laws (incorporated by reference to Exhibit 3-B to
Registrant's Quarterly Report on Form 10-Q for the quarter
ending June 30, 1998)
4-A Single Denomination Stock Certificate (incorporated by
reference to Exhibit 4-B to Registrant's Form S-3,
Registration No. 333-18403, filed December 20, 1996)
4-B Indenture for Senior Securities between Dana Corporation and
Citibank, N.A., Trustee, dated as of December 15, 1997
(incorporated by reference to Exhibit 4-B to Registrant's Form
S-3, Registration No. 333-42239, filed December 15, 1997)
4-C Form of Debt Securities (included in Exhibit 4-B)
5* Opinion of Hunton & Williams
12 Computation of Ratio of Earnings to Fixed Charges II-7
23-A Consent of PricewaterhouseCoopers LLP II-8
23-B* Consent of Hunton & Williams (included in Exhibit 5)
24 Power of Attorney II-9
25 Form T-1 Statement of Eligibility Under the Trust Indenture
Act of 1939 of a Corporation Designated to Act as Trustee
(incorporated by reference to Exhibit 25 to Registrant's Form
S-3, Registration Statement No. 333-42239, filed December 15,
1997)
* To be filed by amendment or as an exhibit to a document to be incorporated by
reference herein.
II-6
<PAGE> 1
Exhibit 12
COMPUTATION OF RATIO OF
EARNINGS TO FIXED CHARGES
(AMOUNTS IN MILLIONS, EXCEPT RATIO DATA)
<TABLE>
<CAPTION>
Nine Months
Ended
Year Ended December 31 September 30
---------------------------------------------- ----------------
1993 1994 1995 1996 1997 1997 1998
------ ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Income before minority interest
and equity in earnings of affiliates $231.9 $355.2 $486.7 $470.3 $310.4 $198.7 $377.8
Income taxes 133.6 214.4 259.1 238.5 293.8 235.6 247.1
Remitted equity of affiliates 14.3 8.5 0.8 0.4 12.9 13.0 17.3
------ ------ ------ ------ ------ ------ ------
379.8 578.1 746.6 709.2 617.1 447.3 642.2
------ ------ ------ ------ ------ ------ ------
Fixed Charges:
Interest expense 156.7 136.9 190.8 203.5 251.4 186.4 211.2
Appropriate portion (1/3) of rentals 29.0 32.3 35.2 38.4 38.6 28.7 29.5
------ ------ ------ ------ ------ ------ ------
185.7 169.2 226.0 241.9 290.0 215.1 240.7
------ ------ ------ ------ ------ ------ ------
Earnings before income taxes,
fixed charges and including
remitted equity of affiliates $565.5 $747.3 $972.6 951.1 $907.1 $662.4 $882.9
====== ====== ====== ====== ====== ====== ======
Ratio of earnings to fixed charges 3.0x 4.4x 4.3x 3.9x 3.1x 3.1x 3.7x
</TABLE>
II-7
<PAGE> 1
Exhibit 23-A
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
January 21, 1998, except for the business combination with Echlin Inc. which is
as of November 6, 1998, relating to the consolidated financial statements of
Dana Corporation which appears in the Current Report on Form 8-K dated November
9, 1998 of Dana Corporation. We also consent to the incorporation by reference
of our report on the Financial Statement Schedule, which appears on page 40 of
such Current Report on Form 8-K. We also consent to the reference to us under
the heading "Experts" in such Prospectus.
PRICEWATERHOUSECOOPERS LLP
Toledo, Ohio
November 12, 1998
II-8
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
The undersigned directors and/or officers of Dana Corporation (the "Company")
hereby appoint Sue A. Griffin, Charles W. Hinde, Southwood J. Morcott, John S.
Simpson, and Martin J. Strobel, and each of them severally, as their true and
lawful attorneys-in-fact, (i) to execute, in their names and capacities as
directors and/or officers of the Company, one or more registration statements on
the appropriate forms (including Forms S-3, 8-A and under Rule 462), and all
exhibits, amendments and supplements thereto, to register the Common Stock and
Debt Securities (and any other securities which may be issuable upon the
exchange, conversion or redemption, if any, of the Debt Securities) of the
Company authorized for issuance pursuant to resolutions approved by the
Company's Board of Directors on July 20, 1998, and (ii) to file, in the name and
on behalf of the Company, such registration statements and any related documents
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act") and/or the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
This Power of Attorney automatically ends as to each appointee upon the
termination of his or her service with Dana.
In witness whereof, the undersigned have executed this instrument on July 20,
1998.
/s/ A. C. Baillie /s/ R. B. Priory
- -------------------------------- --------------------------------
A. C. Baillie R. B. Priory
/s/ B. F. Bailar /s/ J. D. Stevenson
- -------------------------------- --------------------------------
B. F. Bailar J. D. Stevenson
/s/ E. M. Carpenter /s/ T. B. Sumner, Jr.
- -------------------------------- --------------------------------
E. M. Carpenter T. B. Sumner, Jr.
/s/ E. Clark /s/ S. A. Griffin
- -------------------------------- --------------------------------
E. Clark S. A. Griffin
/s/ G. H. Hiner /s/ C. W. Hinde
- -------------------------------- --------------------------------
G. H. Hiner C. W. Hinde
/s/ J. M. Magliochetti /s/ J. S. Simpson
- -------------------------------- --------------------------------
J. M. Magliochetti J. S. Simpson
/s/ M. R. Marks /s/ M. J. Strobel
- -------------------------------- --------------------------------
M. R. Marks M. J. Strobel
/s/ S. J. Morcott
- --------------------------------
S. J. Morcott
II-9
