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FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SEC. 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): March 2, 1999
Dana Corporation
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(Exact name of registrant as specified in its charter)
Virginia 1-1063 34-4361040
- ----------------- ----------------------- ----------------------
(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification No.)
incorporation)
4500 Dorr Street, Toledo, Ohio 43615
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(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code: (419)535-4500
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ITEM 5. OTHER EVENTS
On November 13, 1998, Dana Corporation (the "Company") filed a registration
statement (No. 333-67307) on Form S-3 with the Securities and Exchange
Commission (the "Commission") relating to the public offering pursuant to Rule
415 under the Securities Act of 1933, as amended (the "Act"), of up to an
aggregate of $750,000,000 of securities of the Company (the "Registration
Statement"). Pursuant to Rule 429 of the Act, the prospectus forming a part of
the Registration Statement (the "Prospectus") also covered $250,000,000 of
securities of the Company which were registered in an earlier registration
statement (No. 333-42239) on Form S-3. On December 30, 1998, the
Commission declared the Registration Statement, as amended by Amendment No. 1,
effective.
On February 24, 1999, the Company filed a Preliminary Prospectus Supplement
to the Prospectus relating to the issuance and sale of an aggregate of
$700,000,000 principal amount of Notes.
On March 2, 1999, the Company filed a Prospectus Supplement to the Prospectus
relating to the issuance and sale of 6.25% Notes due March 1, 2004 in the
aggregate principal amount of $250,000,000, 6.50% Notes due March 1, 2009 in the
aggregate principal amount of $350,000,000 and 7.00% Notes due March 1, 2029 in
the aggregate principal amount of $400,000,000.
In connection with the filing of the Prospectus Supplement, the Company is
filing certain exhibits to the Registration Statement as part of this Form 8-K.
See "Item 7, Financial Statements and Exhibits."
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) The following exhibits to the Registration Statement are filed as part of
this report:
Exhibit No. Description
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1-B-1 Terms Agreement among Dana Corporation and BT Alex. Brown
Incorporated, Deutsche Bank Securities Inc., Donaldson,
Lufkin & Jenrette Securities Corporation, First Chicago
Capital Markets, Inc., J.P. Morgan Securities Inc.,
Lehman Brothers Inc., Morgan Stanley & Co. Incorporated,
NationsBanc Montgomery Securities LLC, Salomon Smith Barney
Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated,
as representative for the Underwriters, dated February 26,
1999 (including the incorporated Underwriting Agreement)
2
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<TABLE>
<S> <C>
4-B-1 Second Supplemental Indenture between Dana Corporation, as
Issuer, and Citibank, N.A., Trustee, dated as of
February 26, 1999
4-C-1 Form of 6.25% Notes due March 1, 2004, 6.50% Notes due
March 1, 2009 and 7.00% Notes due March 1, 2029 (included
in Exhibit 4-B-1)
5-A Opinion of Hunton & Williams
23-B-1 Consent of Hunton & Williams (included in Exhibit 5-A)
</TABLE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dana Corporation
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(Registrant)
Date: March 2, 1999 By: /s/ John S. Simpson
-----------------------
John S. Simpson
Chief Financial Officer
3
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EXHIBIT INDEX
Exhibit No. Description
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1-B-1 Terms Agreement among Dana Corporation and BT Alex. Brown
Incorporated, Deutsche Bank Securities Inc., Donaldson,
Lufkin & Jenrette Securities Corporation, First Chicago Capital
Markets, Inc., J.P. Morgan Securities, Inc., Lehman Brothers
Inc., Morgan Stanley & Co. Incorporated, NationsBanc Montgomery
Securities LLC, Salomon Smith Barney Inc. and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, as representative for
the Underwriters, dated February 26,
1999 (including the incorporated Underwriting Agreement)
4-B-1 Second Supplemental Indenture between Dana Corporation, as
Issuer, and Citibank, N.A., Trustee, dated as of
February 26, 1999
4-C-1 Form of 6.25% Notes due March 1, 2004, 6.50% Notes due
March 1, 2009 and 7.00% Notes due March 1, 2029 (included
in Exhibit 4-B-1)
5-A Opinion of Hunton & Williams
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Exhibit 1-B-1
DANA CORPORATION
(a Virginia corporation)
-- -- -- -- -- -- -- --
$250,000,000 6-1/4% Notes due 2004
$350,000,000 6-1/2% Notes due 2009
$400,000,000 7% Notes due 2029
-- -- -- -- -- -- -- --
Terms AGREEMENT
February 26, 1999
DANA CORPORATION
4500 Dorr Street
Toledo, Ohio 43615
Attention: A. Glenn Paton
Vice President
Ladies and Gentlemen:
On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we offer to purchase, on and subject
to the terms and conditions of the Underwriting Agreement in the form attached
as Schedule B hereto (the "Underwriting Agreement"), the following securities
("Securities") on the following terms:
1. NOTES DUE 2004
TITLE: 6-1/4% Notes Due March 1, 2004
PRINCIPAL AMOUNT: $250,000,000
INTEREST: 6-1/4% per annum, from March 3, 1999, payable semiannually
on September 1 and March 1, commencing September 1, 1999, to holders
of record on the preceding August 15 or February 15, as the case may
be.
MATURITY: March 1, 2004
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2
OPTIONAL REDEMPTION: Yes (as described under "Optional Redemption" on
pages S-11 and S-12 of the Preliminary Prospectus Supplement dated
February 24, 1999).
SINKING FUND: None
PURCHASE PRICE: 99.303% of principal amount, settled flat, plus
accrued interest, if any, from March 3, 1999.
EXPECTED REOFFERING PRICE: 99.903% of principal amount, subject to
change by the undersigned.
MAKE WHOLE CALL: Redeemable, in whole or in part from time to time, at
a redemption price equal to the greater of (i) 100% of their Principal
Amount, or (ii) the present value of the Principal Amount and the
remaining scheduled payments of interest on the bonds at the Treasury
Rate plus 10 basis points.
2. NOTES DUE 2009
TITLE: 6-1/2% Notes Due March 1, 2009
PRINCIPAL AMOUNT: $350,000,000
INTEREST: 6-1/2% per annum, from March 3, 1999, payable semiannually
on September 1 and March 1, commencing September 1, 1999, to holders
of record on the preceding August 15 or February 15, as the case may
be.
MATURITY: March 1, 2009
OPTIONAL REDEMPTION: Yes (as described under "Optional Redemption" on
pages S-11 and S-12 of the Preliminary Prospectus Supplement dated
February 24, 1999).
SINKING FUND: None
PURCHASE PRICE: 98.779% of principal amount, settled flat, plus
accrued interest, if any, from March 3, 1999.
EXPECTED REOFFERING PRICE: 99.429% of principal amount, subject to
change by the undersigned.
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3
MAKE WHOLE CALL: Redeemable, in whole or in part from time to time, at
a redemption price equal to the greater of (i) 100% of their Principal
Amount, or (ii) the present value of the Principal Amount and the
remaining scheduled payments of interest on the bonds at the Treasury
Rate plus 15 basis points.
3. NOTES DUE 2029
TITLE: 7% Notes Due March 1, 2029
PRINCIPAL AMOUNT: $400,000,000
INTEREST: 7% per annum, from March 3, 1999, payable semiannually on
September 1 and March 1, commencing September 1, 1999, to holders of
record on the preceding August 15 or February 15, as the case may be.
MATURITY: March 1, 2029
OPTIONAL REDEMPTION: Yes (as described under "Optional Redemption" on
pages S-11 and S-12 of the Preliminary Prospectus Supplement dated
February 24, 1999).
SINKING FUND: None
PURCHASE PRICE: 98.013% of principal amount, settled flat, plus
accrued interest, if any, from March 3, 1999.
EXPECTED REOFFERING PRICE: 98.888% of principal amount, subject to
change by the undersigned.
MAKE WHOLE CALL: Redeemable, in whole or in part from time to time, at
a redemption price equal to the greater of (i) 100% of their Principal
Amount, or (ii) the present value of the Principal Amount and the
remaining scheduled payments of interest on the bonds at the Treasury
Rate plus 25 basis points.
-- -- -- -- -- -- -- --
COUNSEL FOR THE UNDERWRITERS: Wachtell, Lipton, Rosen & Katz
CLOSING: 11:00 a.m. on March 3, 1999, at the offices of
Wachtell, Lipton, Rosen & Katz, New York, New York, with payment to be made by
wire transfer of immediately available funds.
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GLOBAL SECURITY: The Securities will be issued in the form of
global securities to be deposited with a depository designated by the
Representative.
NAME AND ADDRESS OF THE REPRESENTATIVE:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
250 Vesey Street
World Financial Center
New York, New York 10281
The respective principal amounts of the Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated
herein by reference.
* * *
Please signify your acceptance of our offer by signing the
enclosed response to us in the space provided and returning it to us not later
than 5:00 p.m. today.
Very truly yours,
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MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BT ALEX. BROWN INCORPORATED
DEUTSCHE BANK SECURITIES INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
FIRST CHICAGO CAPITAL MARKETS, INC.
J.P. MORGAN SECURITIES INC.
LEHMAN BROTHERS INC.
MORGAN STANLEY & CO. INCORPORATED
NATIONSBANC MONTGOMERY SECURITIES LLC
SALOMON SMITH BARNEY INC.
By MERRILL LYNCH PIERCE, FENNER
& SMITH INCORPORATED, on behalf
of themselves and as the
Representative of the several
Underwriters,
/s/Michael O'Grady
---------------------------
Name:Michael O'Grady
Title:Director
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Schedule A to Terms Agreement
<TABLE>
<CAPTION>
PRINCIPAL PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF AMOUNT OF
UNDERWRITER NOTES DUE 2004 NOTES DUE 2009 NOTES DUE 2029
<S> <C> <C> <C>
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
250 Vesey Street
World Financial Center
New York, New York 10281............................ $ 103,750,000. $ 145,250,000. $ 166,000,000.
BT ALEX. BROWN INCORPORATED
130 Liberty Street
New York, New York 10006............................ 16,250,000. 22,750,000. 26,000,000.
DEUTSCHE BANK SECURITIES INC.
31 West 52nd Street
New York, New York 10019............................ 16,250,000. 22,750,000. 26,000,000.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
277 Park Avenue
New York, New York 10172............................ 16,250,000. 22,750,000. 26,000,000.
FIRST CHICAGO CAPITAL MARKETS, INC.
One First National Plaza
Chicago, Illinois 60670............................. 16,250,000. 22,750,000. 26,000,000.
J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, New York 10260............................ 16,250,000. 22,750,000. 26,000,000.
LEHMAN BROTHERS INC.
3 World Financial Center
New York, New York 10285............................ 16,250,000. 22,750,000. 26,000,000.
MORGAN STANLEY & CO. INCORPORATED
1585 Broadway
New York, New York 10036............................ 16,250,000. 22,750,000. 26,000,000.
NATIONSBANC MONTGOMERY SECURITIES LLC
153 East 53rd Street
New York, New York 10022............................ 16,250,000. 22,750,000. 26,000,000.
SALOMON SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013............................. 16,250,000. 22,750,000. 26,000,000.
TOTAL....................................... $ 250,000,000. $ 350,000,000. $ 400,000,000.
============== ============== ==============
</TABLE>
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Schedule B to Terms Agreement
DANA CORPORATION
(a Virginia corporation)
-- -- -- -- -- -- -- --
UNDERWRITING AGREEMENT
1. Introduction. Dana Corporation, a Virginia corporation
("Company"), proposes to issue and sell from time to time certain of its debt
securities ("Registered Securities") registered under the registration statement
referred to in Section 2(b) and an earlier registration statement (No.
333-42239, the "Initial Registration Statement"). The Registered Securities will
be issued under the Indenture dated as of December 15, 1997 between the Company
and Citibank, N.A. as trustee (as it may be amended or supplemented from time to
time to provide for the issuance of series of the Registered Securities, the
"Indenture"), in one or more series, which series may vary as to interest rates,
maturities, redemption provisions, selling prices and other terms, with such
terms for any particular series of the Registered Securities being determined at
the time of sale. Particular series of the Registered Securities will be sold
pursuant to a Terms Agreement referred to in Section 3 or such other form as may
be agreed to between the Company and such underwriters as may be engaged at such
time by the Company in connection with such particular issuance of Registered
Securities for resale in accordance with terms of such particular offering
determined at the time of sale.
The Registered Securities involved in the offering under the
Terms Agreement dated as of February 26, 1999 are hereinafter referred to as the
"Securities." The firms which agree to purchase the Securities are hereinafter
referred to as the "Underwriters" and the representative of the Underwriters, if
any, specified in a Terms Agreement referred to in Section 3 are hereinafter
referred to as the "Representative"; provided, however, that if the Terms
Agreement does not specify any representative of the Underwriters, the term
"Representatives," as used in this Agreement, shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with each Underwriter that:
(a) The Company is duly incorporated, validly existing and in
good standing under the laws of the Commonwealth of Virginia, with full
corporate power and authority to issue and sell the Securities as
contemplated herein and own its properties and conduct its business as
described in the Prospectus; and the Company is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which it owns or leases substantial properties or in
which the conduct of its business requires such qualification, except
where the failure to be so qualified would not have a material adverse
effect on the Company.
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(b) A registration statement (No. 333-67307), including a
prospectus, relating to the Registered Securities has been filed with
the Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 3, is hereinafter referred to as
the "Registration Statement," and the prospectus included in such
Registration Statement, as supplemented as contemplated by Section 3 to
reflect the terms of the Securities and the terms of offering thereof,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) under the Securities Act of 1933, as amended ("Act"),
including all material incorporated by reference therein is hereinafter
--- referred to as the "Prospectus." For purposes of this Agreement,
the term Registration Statement shall also be deemed to include the
Initial Registration Statement and the prospectus included in such
registration statement, provided however that with respect to the
Initial Registration Statement and the prospectus included in such
registration statement only, notwithstanding anything contained in
herein, the Company makes no representation (and the parties delivering
opinions hereunder shall not opine) as to the inclusion of any untrue
statement of a material fact or omission to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading for any date subsequent to March 11, 1998.
(c) On the effective date, the Registration Statement
conformed in all material respects to the requirements of the Act, the
Trust Indenture Act of 1939, as amended ("Trust Indenture Act"), and
the rules and regulations of the Commission ("Rules and Regulations")
and did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading; and on the date of each
Terms Agreement referred to in Section 3, the Registration Statement
and the Prospectus will conform in all material respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, and neither of such documents will include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, except that the foregoing does not apply to (i)
statements in or omissions from any of such documents based upon
written information furnished to the Company by any Underwriter through
the Representatives, if any, specifically for use therein or (ii) that
part of the Registration Statement that constitutes the Statement or
Eligibility and Qualification (Form T-1) under the Trust Indenture Act.
(d) Except for statements in such documents which do not
constitute part of the Registration Statement or the Prospectus
pursuant to Rule 412 of Regulation C under the Act and after
substituting therefor any statements modifying or superseding such
excluded statements (i) the documents incorporated by reference in the
Registration Statement and the Prospectus, when they became effective
or were filed with the Commission, as the case may be, conformed in all
material respects to the
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requirements of the Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as applicable, and the Rules and
Regulations thereunder, and none of such documents, when they became
effective or were so filed, as the case may be, contained, in the case
of documents which became effective under the Act, an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and, in the case of documents which were filed under the
Exchange Act with the Commission, an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and (ii) any further documents so filed and
incorporated by reference when they become effective or are filed with
the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the Rules and Regulations thereunder and will not
contain, in the case of documents which become effective under the Act,
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and, in the case of documents which are filed
under the Exchange Act with the Commission, an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they are made, not misleading.
(e) The Indenture has been duly authorized by the Company,
will be substantially in the form heretofore delivered to the
Representative and, when duly executed and delivered by the Company and
the Trustee, will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law);
and the Indenture conforms to the description thereof in the
Prospectus.
(f) As of the date hereof, and at the Closing Date (as defined
in Section 3 hereof), the Indenture will be duly qualified under, and
will comply with the requirements of, the Trust Indenture Act.
(g) Upon payment therefor as provided herein, the Securities
will have been duly and validly authorized and (assuming their due
authentication by the Trustee) will have been duly and validly issued
and will be valid outstanding obligations of the Company and
enforceable in accordance with their terms, except as the same may be
limited by insolvency, bankruptcy, reorganization, or other laws
relating to or affecting the enforcement of creditors' rights, and will
be entitled to the benefits of the Indenture.
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(h) The issue and sale of the Securities pursuant to any Terms
Agreement and the compliance by the Company with all of the provisions
of the Securities, the Indenture, the Terms Agreement (including the
provisions of this Agreement) will not conflict with or result in any
breach which would constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of
the property or assets of the Company material to the Company pursuant
to the terms of any indenture, loan agreement or other agreement or
instrument for borrowed money to which the Company is a party or by
which the Company may be bound or to which any of the property or
assets of the Company, material to the Company, is subject, nor will
such action result in any material violation of the provisions of the
charter or the by-laws of the Company or any statute or any order, rule
or regulation applicable to the Company of any court or any Federal,
State or other regulatory authority or other governmental body having
jurisdiction over the Company, and no consent, approval, authorization
or other order of, or filing with, any court or any such regulatory
authority or other governmental body is required for the issue and sale
of the Securities, except as may be required under the Act, the
Exchange Act, the Trust Indenture Act and securities laws of the
various states and other jurisdictions in which the Underwriters will
offer and sell the Securities.
(i) Except as disclosed in the Prospectus, there is no action,
suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against the Company or any
consolidated subsidiary that is required to be disclosed in the
Prospectus or that is reasonably likely to result in any material
adverse change in the liquidity, financial condition, results of
operations or business affairs of the Company and its consolidated
subsidiaries, considered as one enterprise, or that is reasonably
likely to have a material adverse effect on the consummation of the
transactions contemplated by this Agreement.
(j) Subsequent to the date of the most recent financial
statements incorporated into the Registration Statement, there has been
no material adverse change, or any development that is reasonably
likely to have a material adverse change, in the liquidity, financial
condition, results of operations or business affairs of the Company and
its consolidated subsidiaries, considered as one enterprise, except as
set forth in or contemplated by the Prospectus.
3. Purchase and Offering of Securities. The obligation of the
Underwriters to purchase the Securities will be evidenced by an exchange of
telegraphic or other written communications ("Terms Agreement") at the time the
Company determines to sell the Securities. The Terms Agreement will incorporate
by reference the provisions of this Agreement, except as otherwise provided
therein, and will specify the firm or firms which will be Underwriters, the
names of any Representatives, the principal amount to be purchased by each
Underwriter, the purchase price to be paid by the Underwriters and the
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11
terms of the Securities not already specified in the Indenture, including, but
not limited to, interest, maturity, any redemption provision and any sinking
fund requirements. The Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time not later than four
full business days thereafter as the Representatives and the Company agree as
the time for payment and delivery, being herein and in the Terms Agreement
referred to as the "Closing Date"), the place of delivery and payment and any
details of the terms of the offering that should be reflected in the prospectus
supplement relating to the offering of the Securities. The obligations of the
Underwriters to purchase the Securities will be several and not joint. It is
understood that the Underwriters propose to offer the Securities for sale as set
forth in the Prospectus. Unless the Terms Agreement specifies that the
Securities will be issued in the form of a global security to be deposited with
a depository, as contemplated by the Indenture, the securities delivered to the
Underwriters on the Closing Date will be in definitive fully registered form, in
such denominations and registered in such names as the Underwriters may request.
4. Certain Agreements of the Company. The Company agrees with
the several Underwriters that it will furnish to the Representatives one signed
copy of the Registration Statement, including all exhibits, in the form in which
it became effective and of all amendments thereto, and that, in connection with
each offering of Securities:
(a) The Company will advise the Representatives promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representatives a reasonable opportunity
to comment on any such proposed amendment or supplement; and the
Company will also advise the Representatives promptly of the filing of
any such amendment or supplement and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement or of any part thereof and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Company promptly will prepare and file with the
Commission an amendment or supplement which will correct such statement
or omissions or an amendment which will effect such compliance.
(c) As soon as practicable after the date of each Terms
Agreement, the Company will make generally available to its security
holders an earnings statement covering a period of at least 12 months
beginning after the latest of (i) the effective date of the
Registration Statement, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the
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date of such Terms Agreement and (iii) the date of the Company's most
recent Annual Report on Form 10-K filed with the Commission prior to
the date of such Terms Agreement, which will satisfy the provisions of
Section 11(a) of the Act.
(d) The Company will furnish to the Representatives copies of
the Registration Statement, including all exhibits, any related
preliminary prospectus, any related preliminary prospectus supplement,
the Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as are reasonably
requested.
(e) The Company will arrange for the qualification of the
Securities for sale and the determination of their eligibility for
investment under the laws of such U.S. jurisdictions as the
Representatives designate and will continue such qualifications in
effect so long as required for the distribution.
(f) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and will reimburse
the Underwriters for any expenses (including reasonable fees and
disbursements of counsel) incurred by them in connection with
qualification of the Registered Securities for sale and determination
of their eligibility for investment under the laws of such
jurisdictions as the Representatives may designate and the printing of
memoranda relating thereto, and for any fees charged by investment
rating agencies for the rating of the Securities and for expenses
incurred in distributing the Prospectus, any preliminary prospectuses
and any preliminary prospectus supplements to underwriters.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of the Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) As soon as practicable following execution of the Terms
Agreement the Representatives shall have received a letter, dated the
date of delivery thereof, of PricewaterhouseCoopers LLP, covering such
matters as are customary for accountants' "comfort" letters for
underwritten transactions of the type contemplated by the Terms
Agreement substantially identical to the form attached thereto.
(b) No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company or any Underwriter, shall be contemplated
by the Commission.
(c) Subsequent to the execution of the Terms Agreement (i)
there shall not have
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occurred any change, or any development involving a prospective change,
in or affecting particularly the business or properties of the Company
or its subsidiaries which, in the judgment of a majority in interest of
the Underwriters, including any Representatives, materially impairs the
investment quality of the Securities or the Registered Securities; (ii)
trading generally shall not have been suspended or materially limited
on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade; (iii) trading of any
securities of the Company shall not have been suspended on any exchange
or in any over-the-counter market; (iv) there shall not have occurred
any downgrading, nor shall any notice have been given of any intended
or potential downgrading (including, without limitation, any notice of
any placement of the Securities on a credit watch list), in the rating
accorded any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Act; (v) no banking moratorium shall have
been declared by Federal or New York authorities; and (vi) there shall
not have occurred any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress
or any other substantial national or international calamity or
emergency or a material adverse change in general economic, political
or financial conditions (or in international conditions which affect
the U.S. financial markets) if, in the judgment of a majority in
interest of the Underwriters, including any Representatives, the effect
of any such outbreak, escalation, declaration, calamity or emergency or
change in conditions makes it impractical to proceed with completion of
the sale of and payment for the Securities.
(d) The Representatives shall have received the favorable
opinion, dated as of Closing Date, of Martin J. Strobel, Vice President and
General Counsel of the Company, in form and substance reasonably satisfactory to
the Representatives, to the effect that:
(i) The Company is duly incorporated, validly existing and in
good standing under the laws of the Commonwealth of Virginia, with full
corporate power and authority to issue and sell the Securities as
contemplated herein and own its properties and conduct its business as
described in the Prospectus; and the Company is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which it owns or leases substantial properties or in
which the conduct of its business requires such qualification, except
where the failure to be so qualified would not have a material adverse
effect on the Company.
(ii) Upon payment therefor as provided in the Terms Agreement
(including the provisions of this Agreement), the Securities will have
been duly and
<PAGE> 14
14
validly authorized and (assuming their due authentication by the
Trustee) will have been duly and validly issued and will be valid
outstanding obligations of the Company and enforceable in accordance
with their terms, except as the same may be limited by insolvency,
bankruptcy, reorganization, or other laws relating to or affecting the
enforcement of creditors' rights, and will be entitled to the benefits
of the Indenture.
(iii) The issue and sale of the Securities pursuant to the
Terms Agreement and the compliance by the Company with all of the
provisions of the Securities, the Indenture, the Terms Agreement
(including the provisions of this Agreement) will not conflict with or
result in any breach which would constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any of the property or assets of the Company material to the Company
pursuant to the terms of, any indenture, loan agreement or other
agreement or instrument for borrowed money to which the Company is a
party or by which the Company may be bound or to which any of the
property or assets of the Company, material to the Company, is subject,
nor will such action result in any material violation of the provisions
of the charter or the by-laws of the Company or (to his knowledge after
due inquiry) any statute or any order, rule or regulation applicable to
the Company of any court or any Federal, State or other regulatory
authority or other governmental body having jurisdiction over the
Company, and (to his knowledge after due inquiry) no consent, approval,
authorization or other order of, or filing with, any court or any such
regulatory authority or other governmental body is required in
connection with the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) except as may be required
under the Act, the Exchange Act, the Trust Indenture Act and securities
laws of the various states and other jurisdictions in which the
Underwriters will offer and sell the Securities.
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution and
delivery by the Trustee) is a valid and binding agreement of the
Company enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally.
(v) The Terms Agreement (including the provisions of this
Agreement) has been duly authorized, executed and delivered by the
Company.
(vi) The Indenture conforms, and the Securities, when
executed, authenticated, issued and delivered in the manner provided in
the Indenture, will conform, in all material respects to the
descriptions thereof contained in
<PAGE> 15
15
the Prospectus.
(vii) The Registration Statement has become effective under
the Act, and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated; and
(viii) Such counsel does not know of any legal or governmental
proceedings required to be described in the Prospectus which are not
described as required, nor of any contracts or documents of a character
required to be described in the Registration Statement or Prospectus or
to be filed as exhibits to the Registration Statement which are not
described and filed as required.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of the Commonwealth of Virginia, upon
the opinion of Hunton & Williams; (B) as to matters involving the application of
laws of any other jurisdiction other than the State of Ohio or the United
States, to the extent he deems proper and specified in such opinion, upon the
opinion of other counsel of good standing who he believes to be reliable and who
are satisfactory to counsel for the Underwriters; and (C) as to matters of fact,
to the extent he deems proper, on statements, representations and certificates
of responsible officers of the Company and public officials.
In addition, such counsel shall state that he has participated
in conferences with officers and other representatives of the Company and, on
the basis of the foregoing and on his ongoing representation of the Company as
its General Counsel, no facts have come to his attention that lead him to
believe that (i) such Registration Statement, at the time such Registration
Statement became effective, or the Registration Statement, as of the date of the
Terms Agreement, or any amendment or supplement to the Registration Statement or
the Prospectus, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) that the Prospectus, as of its date
and the Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
that he need express no opinion with respect to the financial statements,
schedules and other financial data, or the statistical data referred to in the
letter from PricewaterhouseCoopers to the Representative dated February __,
1999, included or incorporated by reference in the Registration Statement or
Prospectus or with respect to the Form T-1.
(e) The Representatives shall have received the favorable
opinion, dated as of Closing Date, of Rosenman & Colin, counsel to the
Company, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
<PAGE> 16
16
(i) The issue and sale of the Securities pursuant to the Terms
Agreement and the compliance by the Company with all of the provisions
of the Securities, the Indenture and the Terms Agreement (including the
provisions of this Agreement), to our knowledge after due inquiry, will
not conflict with or result in any breach which would constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the property or assets of the Company
material to the Company pursuant to the terms of, any material
indenture, loan agreement or other agreement or instrument for borrowed
money to which the Company is a party or by which the Company may be
bound or to which any of the property or assets of the Company,
material to the Company, is subject, nor will such action result in any
material violation of the provisions of the charter or the by-laws of
the Company or (to such counsel's knowledge after due inquiry) any
statute or any order, rule or regulation applicable to the Company of
any court or any Federal, State or other regulatory authority or other
governmental body having jurisdiction over the Company, and (to such
counsel's knowledge after due inquiry) no consent, approval,
authorization or other order of, or filing with, any court or any such
regulatory authority or other governmental body is required in
connection with the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) except as may be required
under the Act, the Exchange Act, the Trust Indenture Act and securities
laws of the various states and other jurisdictions in which the
Underwriters will offer and sell the Securities.
(ii) The Securities have been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution and
delivery by the Trustee) are valid and binding obligations of the
Company enforceable against the Company in accordance with their terms,
except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally.
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution and
delivery by the Trustee) is a valid and binding agreement of the
Company enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally.
(iv) The Terms Agreement (including the provisions of this
Agreement) has been duly authorized, executed and delivered by the
Company.
(v) The Indenture conforms, and the Securities, when executed,
<PAGE> 17
17
authenticated, issued and delivered in the manner provided in the
Indenture, will conform, in all material respects to the descriptions
thereof contained in the Prospectus.
(vi) The Indenture has been duly qualified under the Trust
Indenture Act.
(vii) The Registration Statement has become effective under
the Act, and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated.
(viii) The Registration Statement as of its effective date,
the Registration Statement and the Prospectus as of the date of the
Terms Agreement, and each amendment or supplement thereto as of their
respective effective or mailing dates (but excluding the financial
statements and schedules and other financial data and the Form T-l
included or incorporated by reference therein, as to which such counsel
need express no opinion) complied as to form in all material respects
with the Act, the Trust Indenture Act and the Rules and Regulations, as
applicable; and
(ix) Such counsel does not know of any legal or governmental
proceedings required to be described in the Prospectus which are not
described as required, nor of any contracts or documents of a character
required to be described in the Registration Statement or Prospectus or
to be filed as exhibits to the Registration Statement which are not
described and filed as required.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of the Commonwealth of Virginia, upon
the opinion of Hunton & Williams, and as to matters involving the application of
the laws of the State of Ohio, upon the opinion of the Vice President and
General Counsel of the Company; (B) as to matters involving the application of
laws of any other jurisdiction other than the State of New York or the United
States, to the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing who they believe to be reliable and
who are satisfactory to counsel for the Underwriters; and (C) as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Company and public officials.
In addition, such counsel shall state that it has participated
in conferences with officers and other representatives of the Company, including
without limitation, inside counsel for the Company, representatives of the
independent public accountants for the Company, and the Underwriters, at which
the contents of the Registration Statement and Prospectus and related manners
were discussed and, on the basis of the foregoing and on its ongoing
representation of the Company, no facts have come to its attention that lead it
to
<PAGE> 18
18
believe that (i) such Registration Statement, at the time such Registration
Statement became effective, or the Registration Statement, as of the date of the
Terms Agreement, or any amendment or supplement to the Registration Statement or
the Prospectus, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) that the Prospectus, as of its date
and the Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
that it need express no opinion with respect to the financial statements,
schedules and other financial data and the statistical data referred to in the
letter from PricewaterhouseCoopers to the Representative referred to in Section
5(a) hereof, included or incorporated by reference in the Registration Statement
or Prospectus or with respect to the Form T-1.
(f) The Representatives shall have received the favorable
opinion, dated as of Closing Date, of Hunton & Williams, Virginia
counsel for the Company, in form and substance reasonably satisfactory
to the Representatives, to the effect that:
(i) The Company is duly incorporated, validly existing and in
good standing under the laws of the Commonwealth of Virginia, with full
corporate power and authority to issue and sell the Securities as
contemplated in the Terms Agreement (including the provisions of this
Agreement) and own its properties and conduct its business as described
in the Prospectus.
(ii) Upon payment therefor as provided in the Terms Agreement
(including the provisions of this Agreement), the Securities will have
been duly and validly authorized and (assuming their due authentication
by the Trustee) will have been duly and validly issued and will be
valid outstanding obligations of the Company and enforceable in
accordance with their terms, except as the same may be limited by
insolvency, bankruptcy, reorganization, or other laws relating to or
affecting the enforcement of creditors' rights, and will be entitled to
the benefits of the Indenture.
(iii) The issue and sale of the Securities pursuant to the
Terms Agreement and the compliance by the Company with all of the
provisions of the Securities, the Indenture, the Terms Agreement
(including the provisions of this Agreement), to such counsel's
knowledge after due inquiry, will not conflict with or result in any
breach which would constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of
the property or assets of the Company material to the Company pursuant
to the terms of, any material indenture, loan agreement or other
agreement or instrument for borrowed money to which the Company is a
party or by which the Company may be bound or to which any of the
property or assets of the Company, material to the Company, is subject,
nor will such action result in any material violation of the provisions
of the
<PAGE> 19
19
charter or the by-laws of the Company or any statute or rule or
regulation applicable to the Company of any Federal or Virginia
regulatory authority or other governmental body having jurisdiction
over the Company or, to such counsel's knowledge after due inquiry, any
order applicable to the Company of any Federal or Virginia regulatory
authority or other governmental body having jurisdiction over the
Company, and no consent, approval, authorization or other order of, or
filing with, any such court or any such regulatory authority or other
governmental body is required in connection with the transactions
contemplated by the Terms Agreement (including the provisions of this
Agreement) except as may be required under the Act, the Exchange Act,
the Trust Indenture Act and securities laws of the Commonwealth of
Virginia.
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution and
delivery by the Trustee) is a valid and binding agreement of the
Company enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally; and
(v) The Terms Agreement (including the provisions of this
Agreement) has been duly authorized, executed and delivered by the
Company.
(g) The Representatives shall have received from counsel for
the Underwriters, to be named in the Terms Agreement, such opinion or
opinions, dated the Closing Date, with respect to the validity of the
Securities, the Registration Statement, the Prospectus and other
related matters as they may require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(h) The Representatives shall have received a certificate,
dated the Closing Date, of any vice-president and a principal financial
or accounting officer of the Company in which such officers, to the
best of their knowledge after reasonable investigation, shall state
that the representations and warranties of the Company in this
Agreement are true and correct, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, that no stop order
suspending the effectiveness of the Registration Statement or of any
part thereof has been issued and no proceedings for that purpose have
been instituted by the Commission and that, subsequent to the date of
the most recent financial statements incorporated into the Registration
Statement, there has been no material adverse change in the business,
financial condition or results of operations of the Company and its
consolidated subsidiaries except as set forth in or contemplated by the
Prospectus.
<PAGE> 20
20
(i) The Representatives shall have received a letter, dated
the Closing Date, of PricewaterhouseCoopers LLP, which reconfirms the
matters set forth in their letter delivered pursuant to subsection (a)
of this Section and covering such matters as are customary for
accountants' "comfort" letters for underwritten transactions of the
type contemplated by the Terms Agreement and in form and substance
reasonably satisfactory to the Representatives.
6. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each
Underwriter (including any Underwriter in its role as qualified independent
underwriter pursuant to the rules of the National Association of Securities
Dealers, Inc.), its officers and employees and each person, if any, who controls
any Underwriter within the meaning of the Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Securities), to which that Underwriter,
officer, employee or controlling person may become subject, under the Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto, (ii) the
omission or alleged omission to state in any preliminary prospectus, the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky application any material fact required to be stated
therein or necessary to make the statements therein not misleading or (iii) any
act or failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Securities or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided that the Company shall not be
liable under this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through its gross
negligence or willful misconduct), and shall reimburse each Underwriter and each
such officer, employee or controlling person promptly upon demand for any legal
or other expenses reasonably incurred by that Underwriter, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary prospectus,
the Registration Statement or the Prospectus, or in any such amendment or
supplement, in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein. The
foregoing indemnity agreement is in addition to any liability which
<PAGE> 21
21
the Company may otherwise have to any Underwriter or to any officer, employee or
controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees, each of its
directors and each person, if any, who controls the Company within the meaning
of the Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under the Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any preliminary prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto, or (B) in
any Blue Sky application or (ii) the omission or alleged omission to state in
any preliminary prospectus, the Registration Statement or the Prospectus, or in
any amendment or supplement thereto, or in any Blue Sky application any material
fact required to be stated therein or necessary to make the statements therein
not misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information concerning such Underwriter
furnished to the Company through the Representatives by or on behalf of that
Underwriter specifically for inclusion therein, and shall reimburse the Company
and any such director, officer or controlling person for any legal or other
expenses reasonably incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which any Underwriter may otherwise have to the Company or any such
director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 6 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 6.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the
<PAGE> 22
22
Representatives shall have the right to employ counsel to represent jointly the
Representatives and those other Underwriters and their respective officers,
employees and controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by the Underwriters
against the Company under this Section 6 if, in the reasonable judgment of the
Representatives, it is advisable for the Representatives and those Underwriters,
officers, employees and controlling persons to be jointly represented by
separate counsel, and in that event the fees and expenses of such separate
counsel shall be paid by the Company. No indemnifying party shall (i) without
the prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld).
(d) If the indemnification provided for in this Section 6
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 6(a) or 6(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters on
the other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Securities purchased hereunder (before deducting
expenses) received by the Company, on the one hand, and the total underwriting
discounts and commissions received by the Underwriters with respect to the
Securities purchased hereunder, on the other hand, bear to the total gross
proceeds from the offering of the Securities hereunder in each case as set forth
in the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
Section 6 were to be determined by
<PAGE> 23
23
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 6
shall be deemed to include, for purposes of this Section 6(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public was offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 6(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company
acknowledges that the statements with respect to the public offering of the
Securities by the Underwriters set forth on the cover page of and the concession
and reallowance figures and table of underwriters (and the principal amounts of
the Securities to be purchased by them) appearing under the caption
"Underwriting" in the Prospectus are correct and constitute the only information
concerning such Underwriters furnished in writing to the Company by or on behalf
of the Underwriters specifically for inclusion in the Registration Statement and
the Prospectus.
7. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Securities under the Terms Agreement
and the aggregate principal amount of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of the Securities, the Representatives may make
arrangements satisfactory to the Company for the purchase of such Securities by
other persons, including any of the Underwriters, but if no such arrangements
are made by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under this Agreement
and the Terms Agreement, to purchase the Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of the Securities with respect to
which such default or defaults occur exceeds 10% of the total principal amount
of the Securities and arrangements satisfactory to the Representatives and the
Company for the purchase of such Securities by other persons are not made within
36 hours after such default, such Terms Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
as provided in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
<PAGE> 24
24
The foregoing obligations and agreements set forth in this
Section will not apply if the Terms Agreement specifies that such obligations
and agreements will not apply.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made by
or on behalf of any Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If the Terms Agreement is
terminated pursuant to Section 7 or if for any reason the purchase of the
Securities by the Underwriters under the Terms Agreement is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 4 and the respective obligations of the Company and the
Underwriters pursuant to Section 6 shall remain in effect. If the purchase of
the Securities by the Underwriters is not consummated because of any failure or
refusal on the part of the Company to comply with the terms or to fulfill any of
the conditions of this Agreement or if for any reason the Company shall be
unable to perform its obligations under this Agreement, the Company will
reimburse the Underwriters for all reasonable out-of-pocket expenses (including
reasonable fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Securities.
9. Notices. All communications hereunder will be in writing.
All communications to the Underwriters will be mailed or delivered via courier
service to Merrill Lynch & Co., Sears Tower Building, Suite 5500, Chicago,
Illinois 60606, Attention of John Pratt, or sent via facsimile to (312) 906-6262
with the original document to follow via courier service or mail. All
communications to the Company will be mailed to P.O. Box 1000, Toledo, Ohio
43697, Attention of General Counsel, delivered via courier service to 4500 Dorr
Street, Toledo, Ohio 43615, Attention of General Counsel, or sent via facsimile
to (419) 535-4544 with the original document to follow via courier service or
mail.
10. Successors. This Agreement will inure to the benefit of
and be binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder.
11. Applicable Law. This Agreement and the Terms Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York.
<PAGE> 25
DANA CORPORATION
February 26, 1999
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BT ALEX. BROWN INCORPORATED
DEUTSCHE BANK SECURITIES INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
FIRST CHICAGO CAPITAL MARKETS, INC.
J.P. MORGAN SECURITIES INC.
LEHMAN BROTHERS INC.
MORGAN STANLEY & CO. INCORPORATED
NATIONSBANC MONTGOMERY SECURITIES LLC
SALOMON SMITH BARNEY INC.
c/o MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
250 Vesey Street
World Financial Center
New York, New York 10281
We accept the offer contained in your letter dated February
26, 1999 relating to $250,000,000 principal amount of our 6-1/4% Notes Due March
1, 2004, $350,000,000 principal amount of our 6-1/2% Notes Due March 1, 2009,
and $400,000,000 principal amount of our 7% Notes Due March 1, 2029. We also
confirm that no stop order suspending the effectiveness of the Registration
Statement or the Initial Registration Statement (as such terms are defined in
the Underwriting Agreement) or of any part thereof has been issued and no
proceedings for that purpose have been instituted or, to the knowledge of the
undersigned, are contemplated by the Securities and Exchange Commission and,
subsequent to the respective dates of the most recent financial statements in
the Prospectus (as defined in the Underwriting Agreement), there has been no
material adverse change in the financial condition or results of operations of
the undersigned and its consolidated subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours,
DANA CORPORATION
By:/s/ A. Glenn Paton
-----------------------
Name: A. Glenn Paton
Title: Vice President
<PAGE> 1
Exhibit 4-B-1
-----------------------------------
SECOND SUPPLEMENTAL INDENTURE
between
DANA CORPORATION, as Issuer,
and
CITIBANK, N.A., Trustee
Dated as of February 26, 1999
--------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms....................................................... 1
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.1. Designation and Principal Amount.......................................... 3
SECTION 2.2. Maturity.................................................................. 3
SECTION 2.3. Form and Payment.......................................................... 4
SECTION 2.4. Interest.................................................................. 5
SECTION 2.5 Defeasance................................................................ 6
ARTICLE III
REDEMPTION OF THE NOTES
SECTION 3.1. Optional Redemption by Company............................................ 6
SECTION 3.2. No Sinking Fund........................................................... 6
ARTICLE IV
EXPENSES
SECTION 4.1. Payment of Expenses....................................................... 6
SECTION 4.2. Payment Upon Resignation or Removal....................................... 6
ARTICLE V
FORM OF NOTES
SECTION 5.1. Form of Notes............................................................. 7
ARTICLE VI
ORIGINAL ISSUE OF NOTES
SECTION 6.1. Original Issue of Notes................................................... 13
</TABLE>
2
<PAGE> 3
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Ratification of Indenture................................................. 13
SECTION 7.2. Trustee Not Responsible for Recitals...................................... 13
SECTION 7.3. Governing Law............................................................. 13
SECTION 7.4. Separability.............................................................. 14
SECTION 7.5. Counterparts.............................................................. 14
</TABLE>
3
<PAGE> 4
SECOND SUPPLEMENTAL INDENTURE, dated as of February 26, 1999
(the "Second Supplemental Indenture"), among Dana Corporation, a corporation
duly organized and existing under the laws of the Commonwealth of Virginia (the
"Company"), and Citibank, N.A., as trustee (the "Trustee"), under the Indenture
dated as of December 15, 1997 among the Company and the Trustee (as supplemented
by the First Supplemental Indenture between Dana Corporation, as Issuer, and
Citibank, N.A., Trustee, Dated as of March 11, 1998, the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of the Company's debt securities,
to be issued from time to time in one or more series as might be determined by
the Company under the Indenture, in an unlimited aggregate principal amount
which may be authenticated and delivered as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of three new series of Securities to be
known as its 6.25% Notes due 2004 (the "2004 Notes"), its 6.50% Notes due 2009
(the "2009 Notes") and its 7.00% Notes due 2029 (the "2029 Notes" and together
with the 2004 Notes and the 2009 Notes, the "Notes"), the form and substance of
such Notes and the terms, provisions and conditions thereof to be set forth as
provided in the Indenture and this Second Supplemental Indenture;
WHEREAS, the Company has requested that the Trustee execute
and deliver this Second Supplemental Indenture; all requirements necessary to
make this Second Supplemental Indenture a valid instrument in accordance with
its terms, and to make the Notes, when executed by the Company and authenticated
and delivered by the Trustee, the legal, valid and binding obligations of the
Company, have been performed; and the execution and delivery of this Second
Supplemental Indenture has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance
of the Notes by the holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Notes and the terms,
provisions and conditions thereof, the Company covenants and agrees with the
Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
<PAGE> 5
(a) A term defined in the Indenture has the same meaning when
used in this Second Supplemental Indenture.
(b) A term defined anywhere in this Second Supplemental
Indenture has the same meaning throughout.
(c) The singular includes the plural and vice versa.
(d) A reference to a Section or Article is to a Section or
Article of this Second Supplemental Indenture.
(e) Headings are for convenience of reference only and do not
affect interpretation.
(f) The following terms have the meanings given to them in
this Section 1.1(f):
"Make-Whole Amount" means, in connection with any redemption
of the Notes, the excess, if any, of (1) the aggregate present values of the
principal being redeemed and the remaining payments of interest thereon from the
Redemption Date to the Maturity Date (excluding interest accrued before the
Redemption Date) discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Reinvestment
Rate (determined on the third Business Day before the notice of redemption is
given) over (2) the aggregate principal amount of the Notes being redeemed.
"Maturity Date" means, for each series of Notes, the
respective date on which the Notes mature and on which the principal is due and
payable together with all accrued and unpaid interest thereon.
"Notes" has the meaning given in the recitals hereto.
"2004 Notes" has the meaning given in the recitals hereto.
"2009 Notes" has the meaning given in the recitals hereto.
"2029 Notes" has the meaning given in the recitals hereto.
"Optional Redemption Price" has the meaning given in Section
3.1.
"Reinvestment Rate", as of any date, means the Treasury Yield
plus (i) 0.10% for the 2004 Notes; (ii) 0.15% for the 2009 Notes; and (iii)
0.25% for the 2029 Notes.
5
<PAGE> 6
"Statistical Release" means the "H.15 (519)" or any successor
publication which is published weekly by the Board of Governors of the Federal
Reserve System and which reports yields on actively traded United States
government securities adjusted to constant maturities.
"Treasury Yield" means, with respect to any redemption, the
rate per annum equal to the yield to maturity as of the date of determination of
United States Treasury securities having a maturity corresponding to the
remaining life to the stated maturity (as of the Redemption Date, rounded to the
nearest month) of the principal of the Notes to be redeemed. The Treasury Yield
on any date will be determined by calculating the arithmetic mean of the yields
published in the Statistical Release issued most recently before the date of
determination under the heading "Week Ending" for "U.S. Government Securities -
- - Treasury Constant Maturities" with a maturity equal to such remaining life. If
no published maturity exactly corresponds to such remaining life, then the
Treasury Yield will be interpolated or extrapolated on a straight-line basis
from the arithmetic mean of the yields for the next shortest and next longest
published maturities. If no Statistical Release is published or the format or
content of the Statistical Release changes so as to preclude a determination of
the Treasury Yield in the manner contemplated as of the date hereof, the Company
shall designate a reasonably comparable index.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.1. Designation and Principal Amount.
The Company hereby authorizes
(i) a series of Securities designated the "6.25% Notes
due 2004", limited in aggregate principal amount to $250,000,000, which amount
shall be as set forth in any written order of the Company for the authentication
and delivery of Securities pursuant to Section 2.04 of the Indenture;
(ii) a series of Securities designated the "6.50% Notes due
2009", limited in aggregate principal amount to $350,000,000, which amount shall
be as set forth in any written order of the Company for the authentication and
delivery of Securities pursuant to Section 2.04 of the Indenture; and
(iii) a series of Securities designated the "7.00% Notes due
2029," limited in aggregate principal amount to
6
<PAGE> 7
$400,000,000, which amount shall be as set forth in any written order of the
Company for the authentication and delivery of Securities pursuant to Section
2.04 of the Indenture.
The Notes are senior unsecured obligations of the Company, ranking pari passu
with all other unsecured and unsubordinated indebtedness of the Company which
may be outstanding from time to time.
SECTION 2.2. Maturity.
(a) The Maturity Date of the 2004 Notes is March 1, 2004.
(b) The Maturity Date of the 2009 Notes is March 1, 2009.
(c) The Maturity Date of the 2029 Notes is March 1, 2029.
SECTION 2.3. Form and Payment.
(a) Each series of Notes shall be issued as one or more Global
Securities in an aggregate principal amount equal to the aggregate principal
amount of all outstanding Notes of such series, to be registered in the name of
the Depositary, or its nominee, and delivered by the Trustee to the Depositary
for crediting to the accounts of the Depositary's participants. Principal,
interest, and Make-Whole Amount, if any, on the Notes will be payable and the
transfer of Notes will be registrable at the office or agency of the Trustee;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the holder of any Note at such address as shall
appear in the Security Register. Notwithstanding the foregoing, the payment of
the principal, Make-Whole Amount, if any, and interest on Notes held by the
Depositary will be made at such place and to such account as may be designated
by the Depositary.
(b) A Global Security may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor Depositary
selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the Depositary notifies the Company that it
is unwilling or unable to continue as Depositary or if at any time the
Depositary is no longer registered or in good standing under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation, and
a successor Depositary is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such condition, as the case
may be, the Company will execute, and, subject to Article II of the Indenture,
the Trustee, upon written notice from the
7
<PAGE> 8
Company, will authenticate and make available for delivery, Notes in definitive
registered form without coupons, in authorized denominations, having
substantially identical terms to and in an aggregate principal amount equal to
the principal amount of the Global Securities in exchange for such Global
Securities. In addition, the Company may at any time determine that the Notes
shall no longer be represented by Global Securities. In such event the Company
will execute, and subject to Section 2.04 of the Indenture, the Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the
Company, will authenticate and deliver Notes in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security in exchange for such
Global Security. Upon the exchange of the Global Securities for such Notes in
definitive registered form without coupons, in authorized denominations, the
Global Securities shall be canceled by the Trustee. Such Notes in definitive
registered form issued in exchange for the Global Securities shall be registered
in such names and in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Notes to the Depositary for
delivery to the Persons in whose names such Notes are so registered.
SECTION 2.4. Interest.
(a) Each 2004 Note will bear interest at the rate of 6.25% per
annum, each 2009 Note will bear interest at the rate of 6.50% per annum and each
2029 Note will bear interest at 7.00% per annum (each, the respective "Coupon
Rate") from the date of issuance until the principal thereof becomes due and
payable. Interest will be payable in arrears on March 1 and September 1 of each
year (each, an "Interest Payment Date") commencing on September 1, 1999, to the
Person in whose name such Note is registered, at the close of business on
February 15 or August 15, as the case may be, next preceding such interest
installment. The Company shall pay interest on any overdue principal and (to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the applicable Coupon Rate plus 1%,
compounded semi-annually.
(b) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for any
period shorter than a full semi-annual period for which interest is computed,
will be computed on the basis of the actual number of days elapsed in such a
period (assuming each full month elapsed in such period consists of 30
8
<PAGE> 9
days). In the event that any date on which interest is payable on the Notes is
not a Business Day, then payment of interest payable on such date will be made
on the next succeeding Business Day (and without any interest or other payment
in respect of any such delay).
SECTION 2.5. Defeasance.
The 2004 Notes, 2009 Notes and the 2029 Notes are each a
Defeasible Series of Securities.
ARTICLE III
REDEMPTION OF THE NOTES
SECTION 3.1. Optional Redemption by Company.
The Company may redeem the Notes, in whole or in part, at any
time or from time to time, at a redemption price equal to 100% of the principal
amount to be redeemed plus any accrued and unpaid interest thereon to the
Redemption Date plus any Make-Whole Amount (the "Optional Redemption Price").
The Optional Redemption Price shall be paid prior to 12:00 noon, New York time,
on the Redemption Date or at such earlier time as the Company determines,
provided that the Company shall deposit with the Trustee an amount sufficient to
pay the Optional Redemption Price by 10:00 a.m., New York time, on the
Redemption Date.
SECTION 3.2. No Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund.
ARTICLE IV
EXPENSES
SECTION 4.1. Payment of Expenses.
In connection with the offering, sale and issuance of the
Notes, the Company, in its capacity as borrower with respect to the Notes, shall
pay all costs and expenses relating to the offering, sale and issuance of the
Notes.
SECTION 4.2. Payment Upon Resignation or Removal.
Upon termination of this Second Supplemental Indenture
9
<PAGE> 10
or the Indenture or the removal or resignation of the Trustee, unless otherwise
stated, the Company shall pay to the Trustee all amounts accrued to the date of
such termination, removal or resignation.
ARTICLE V
FORM OF NOTES
SECTION 5.1. Form of Notes.
Notwithstanding anything to the contrary contained in
Section 2.02(b) of the Indenture, the definitive Notes may be produced in any
manner mutually agreed upon by the Company and the Trustee. The 2004 Notes, the
2009 Notes and the 2029 Notes and the Trustee's certificate of authentication to
be endorsed thereon are to be substantially in the following forms:
[Form of Face of Security]
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to Issuer or its agent for registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
DANA CORPORATION
CUSIP NO. [____]
No.R- $[_____________]
Dana Corporation, a corporation duly organized and existing
under the laws of the Commonwealth of Virginia (hereinafter called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co., or registered assigns, the principal sum of $[$250,000,000]
[$350,000,000]/[$400,000,000] on [March 1, 2004]/[March 1, 2009]/[March 1,
2029], and to pay interest thereon from the date of issuance or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, on March 1 and September 1 in each year, commencing on September 1, 1999,
at the
10
<PAGE> 11
rate of [6.25%]/[6.50%]/[7.00%] per annum, until the principal hereof is paid or
made available for payment. The Company shall pay interest on any overdue
principal and (to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at
[7.25%]/[7.50%]/[8.00%] per annum, compounded semi-annually. The interest
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which will be the
February 15 or August 15 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof will be given to Holders of Securities
of this series not less than 10 calendar days prior to such Special Record Date,
or be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture.
Payment of the principal of (and Make-Whole Amount, if any)
and any such interest on this Security will be made at the office or agency of
the Company maintained for the purpose in New York, New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS SET FORTH
ON THE REVERSE HEREOF. SUCH PROVISIONS WILL FOR ALL PURPOSES HAVE THE SAME
EFFECT AS THOUGH FULLY SET FORTH IN THIS PLACE.
This Security will not be valid or become obligatory for any
purpose until the certificate of authentication herein has been signed manually
by the Trustee under the Indenture referred to on the reverse side hereof.
11
<PAGE> 12
IN WITNESS WHEREOF, THIS INSTRUMENT HAS BEEN DULY EXECUTED IN
ACCORDANCE WITH THE INDENTURE.
DANA CORPORATION
By:_______________________
Attest:
By: _________________
[Form of Reverse of Security]
DANA CORPORATION
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities") issued and to be issued in one
or more series under an Indenture, dated as of December 15, 1997 (herein called
the "Indenture"), between the Company and Citibank, N.A., as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
(including the Second Supplemental Indenture, between the Company and the
Trustee dated as of February 26, 1999 pursuant to which this series of
Securities is issued) reference is hereby made for a statement of the respective
rights, limitations of rights, duties, and immunities thereunder of the Company,
the Trustee, and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof issued pursuant to the Second
Supplemental Indenture and limited in aggregate principal amount to
[$250,000,000]/ [$350,000,000]/[$400,000,000].
The Securities of this series are subject to redemption upon
not less than 30 calendar days' notice by mail, at any time, as a whole or in
part, at the election of the Company, at a Redemption Price equal to 100% of the
principal amount, together in the case of any such redemption with the
Make-Whole Amount (as defined in the Second Supplemental Indenture), if any, and
accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.
12
<PAGE> 13
In the event of redemption of this Security in part only, a
new Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
The Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness evidenced by this Security or (b) certain
restrictive covenants and Events of Default with respect to this Security, in
each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security will be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security will not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request and
13
<PAGE> 14
shall have failed to institute such proceeding for 60 calendar days after
receipt of such notice, request, and offer of indemnity. The foregoing will
apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof or any Make-Whole Amount or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture will alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of, Make-Whole Amount,
if any, and interest on this Security at the times, place, and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registerable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of and any Make- Whole Amount and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and integral multiples thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee, and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security shall be overdue, and
neither the Company, the Trustee, nor any such agent will be affected by notice
to the contrary.
14
<PAGE> 15
All terms used in this Security that are defined in the
Indenture will have the respective meanings assigned to them in the Indenture.
15
<PAGE> 16
[Form of Trustee's Certificate of
Authentication for Securities]
Trustee's Certificate of Authentication
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Citibank, N.A.
as Trustee
Dated: __________ By: ______________________
Authorized Signatory
16
<PAGE> 17
ARTICLE VI
ORIGINAL ISSUE OF NOTES
SECTION 6.1. Original Issue of Notes.
2004 Notes in the aggregate principal amount of $250,000,000,
2009 Notes in the aggregate principal amount of $350,000,000 and 2029 Notes in
the aggregate principal amount of $400,000,000 may, upon execution of this
Second Supplemental Indenture, be executed by the Company and delivered to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver said Notes to or upon the written order of the Company, signed by its
Chairman or any Vice Chairman of the Board of Directors, its President, or any
Vice President and attested by its Treasurer, its Secretary, any Assistant
Secretary or any Assistant Treasurer, without any further action by the Company.
The signature of any of these officers on the written order may be manual or
facsimile.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. No Defaults; Ratification of Indenture.
The Company hereby represents and warrants that it is
not in default in the performance or observance of any of the terms, provisions
or conditions of the Indenture. The Indenture, as supplemented by this Second
Supplemental Indenture, is in all respects ratified and confirmed, and this
Second Supplemental Indenture shall be deemed part of the Indenture in the
manner and to the extent herein and therein provided.
SECTION 7.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not
by the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this Second Supplemental Indenture.
SECTION 7.3. Governing Law.
This Second Supplemental Indenture and each Note shall be
deemed to be a contract made under the internal laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of said
State without regard to conflict
17
<PAGE> 18
of laws principles thereof.
SECTION 7.4. Separability.
In case any one or more of the provisions contained in this
Second Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Second
Supplemental Indenture or of the Notes, but this Second Supplemental Indenture
and the Notes shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
SECTION 7.5. Counterparts.
This Second Supplemental Indenture may be executed in any
number of counterparts each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.
18
<PAGE> 19
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
DANA CORPORATION
By: /s/ A. Glenn Paton
----------------------------------
Name: A. Glenn Paton
Title: Vice President - Treasurer
Attest: /s/ Sue A. Griffin
--------------------------
Title: Assistant Secretary
CITIBANK, N.A.,
as Trustee
By: /s/ F. Mills
------------------------------
Name: F. Mills
Title: Senior Trust Officer
Attest: /s/ Nancy Forte
--------------------
Title: Trust Officer
19
<PAGE> 1
Exhibit 5-A
Hunton & Williams
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, Virginia 23219-4074
File No.: 21422.1
Direct Dial: 788-8200
March 1, 1999
Dana Corporation
P. O. Box 1000
Toledo, Ohio 43697
Gentlemen:
We consent to the filing of this opinion as an exhibit to Registration
Statement No. 333-67307 (the "Registration Statement") relating to Common
Stock, $1 par value (including related preferred share purchase rights), and
Debt Securities (the "Securities") of Dana Corporation (the "Company") with a
maximum aggregate offering price of $750 million and to the reference to us
under "Legal Matters" in the Registration Statement.
We have examined such certificates of the Company's officers and such
evidence of corporate action as we consider relevant as the basis for this
opinion, and are of the opinion that the issuance under the Registration
Statement and under Registration Statement No. 333-42239 of the 2004 notes,
2009 notes and 2029 notes that are descirbed therein and in the Prospectus
Supplement dated February 26, 1999 (the "Notes"), has been duly and validly
authorized by the Board of Directors of the Company, no other corporate action
being necessary, and that when the Notes are issued as provided in the
Registration Statement and the Prospectus Supplement, the Notes will be legally
issued and will be binding obligations of the Company.
Very truly yours,
/s/ Hunton & Williams
