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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 5
TO
SCHEDULE TO
(RULE 14d-100)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
DANA CORPORATION
(Name of Subject Company (Issuer))
DELTA ACQUISITION CORP.
ARVINMERITOR, INC.
(Names of Filing Persons (Offerors))
COMMON STOCK, PAR VALUE $1.00 PER SHARE
(Title of Class of Securities)
23581110
(CUSIP Number of Class of Securities)
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VERNON G. BAKER, II, ESQ.
ARVINMERITOR, INC.
2135 WEST MAPLE ROAD
TROY, MICHIGAN 48084
TELEPHONE: (248) 435-1000
(Name, Address and Telephone Numbers of Person Authorized to Receive Notices and
Communications on Behalf of Filing Persons)
COPIES TO:
DENNIS J. FRIEDMAN, ESQ.
STEVEN P. BUFFONE, ESQ.
GIBSON, DUNN & CRUTCHER LLP
200 PARK AVE.
NEW YORK, NEW YORK 10166
TELEPHONE: (212) 351-4000
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer:
[X] Check the appropriate boxes below to designate any transactions to which the
statement relates:
[X] third-party tender offer subject to Rule 14d-1.
[ ] issuer tender offer subject to Rule 13e-4.
[ ] going-private transaction subject to Rule 13e-3.
[ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results
of the tender offer: [ ]
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SCHEDULE TO
This Amendment No. 5 to the Tender Offer Statement on Schedule TO amends
and supplements the statement originally filed on July 9, 2003 (as amended or
supplemented prior to the date hereof, the "Schedule TO") by ArvinMeritor, Inc.,
an Indiana corporation ("Parent"), and Delta Acquisition Corp., a Virginia
corporation and a wholly owned subsidiary of Parent (the "Purchaser"). The
Schedule TO relates to the offer by the Purchaser to purchase (1) all
outstanding shares ("Shares") of common stock, par value $1.00 per share, of
Dana Corporation, a Virginia corporation (the "Company"), and (2) unless and
until validly redeemed by the board of directors of the Company, the associated
rights to purchase shares of Series A Junior Participating Preferred Stock, no
par value, of the Company (the "Rights") issued pursuant to the Rights
Agreement, dated as of April 25, 1996 (as amended from time to time, the "Rights
Agreement"), by and between the Company and Chemical Mellon Shareholder Services
L.L.C., as Rights Agent, at a price of $15.00 per Share, net to the seller in
cash, without interest, upon the terms and subject to the conditions set forth
in the Offer to Purchase, dated July 9, 2003 (as amended or supplemented prior
to the date hereof, the "Offer to Purchase"), and in the related Letter of
Transmittal. Unless the context otherwise requires, all references to the Shares
shall be deemed to include the associated Rights, and all references to the
Rights shall be deemed to include the benefits that may inure to holders of
Rights pursuant to the Rights Agreement. This Amendment No. 5 to the Schedule TO
is being filed on behalf of the Purchaser and Parent.
Capitalized terms used and not defined herein have the meanings specified
in the Offer to Purchase and the Schedule TO.
The item numbers and responses thereto below are in accordance with the
requirements of Schedule TO.
ITEM 5 PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS, AND AGREEMENTS.
Section 10 of the Offer to Purchase is hereby amended by adding the
following paragraph to the end of such Section:
"On July 28, 2003, Mr. Yost sent a letter to the Committee of Independent
Directors of the Company (the "Committee") formed to consider and evaluate the
Offer, possible strategic alternatives and such other matters as the Committee
may determine. That same day, Parent issued a press release disclosing the
contents of the letter to the Committee, the full text of which is filed as
Exhibit (a)(5)(F) to the Schedule TO and is incorporated herein by reference."
ITEM 11 ADDITIONAL INFORMATION.
The Introduction to the Offer to Purchase is hereby amended by deleting the
ninth paragraph of such Introduction in its entirety and replacing it with the
following:
"In addition, on July 9, 2003, Parent and the Purchaser commenced an action
against the Company in the United States District Court for the Western District
of Virginia seeking a declaratory judgment that their statements and disclosures
in conjunction with the Offer comply with applicable federal law (the "Western
District of Virginia Action"). On July 25, 2003, Parent and the Purchaser
amended their complaint in the Western District of Virginia Action to add a
claim for a declaratory judgment that the Company's statements and disclosures
in response to, or otherwise relating to, the Offer, including, but not limited
to, its Schedule 14D-9, as amended (the "Schedule 14D-9"), contain material
misrepresentations and omissions, and represent fraudulent, deceptive or
manipulative acts on the part of the Company, in violation of Section 14(e) of
the Exchange Act. Parent and the Purchaser's amended complaint also seeks an
order requiring the Company to correct by public means its material
misstatements and omissions, and its fraudulent, deceptive, or manipulative
acts. Finally, Parent and the Purchaser seek in the amended complaint an
injunction prohibiting the Company from further disseminating false and
misleading statements, from making any additional material misstatements or
omissions, and from committing any other fraudulent, deceptive or manipulative
acts that would further harm the Offer."
1
ITEM 12. EXHIBITS
(a)(1)(A) Offer to Purchase, dated July 9, 2003.*
(a)(1)(B) Letter of Transmittal.*
(a)(1)(C) Notice of Guaranteed Delivery.*
(a)(1)(D) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and other Nominees.*
(a)(1)(E) Form of Letter to Clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and other Nominees.*
(a)(1)(F) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.*
(a)(1)(G) Press release issued by ArvinMeritor, Inc., dated July 8,
2003, announcing ArvinMeritor's intention to commence the
Offer.*
(a)(1)(H) Press release issued by ArvinMeritor, Inc., dated July 9,
2003, announcing the commencement of the Offer.*
(a)(1)(I) Summary Advertisement published July 9, 2003.*
(a)(1)(J) Complaint filed by ArvinMeritor, Inc. on July 8, 2003 in the
Circuit Court for the City of Buena Vista, Virginia.*
(a)(1)(K) Complaint filed by ArvinMeritor, Inc. on July 9, 2003 in
United States District Court for the Western District of
Virginia.*
(a)(1)(L) First Amended Complaint filed by ArvinMeritor, Inc. on July
25, 2003 in United States District Court for the Western
District of Virginia.
(a)(5)(A) Press release issued by ArvinMeritor, Inc., dated July 14,
2003, relating to supplemental disclosure requested by the
Ohio Department of Commerce.*
(a)(5)(B) Letter from ArvinMeritor, Inc. dated July 14, 2003, to Dana
shareholders residing in Ohio, as posted on ArvinMeritor's
website.*
(a)(5)(C) Transcript of portions of ArvinMeritor's fiscal year 2003
third-quarter earnings call, held on July 21, 2003, relating
to the Offer.*
(a)(5)(D) Press release issued by ArvinMeritor, Inc. dated July 22,
2003, responding to Dana Corporation's rejection of the
Offer.*
(a)(5)(E) Text of ArvinMeritor, Inc. form of e-mail replies to
investor inquiries and requests relating to the Offer.*
(a)(5)(F) Press release issued by ArvinMeritor, Inc. dated July 28,
2003, discussing correspondence delivered to Dana
Corporation's Committee of Independent Directors
(b) Not applicable.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
(g) Not applicable.
(h) Not applicable.
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* Previously filed
2
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Date: July 28, 2003
DELTA ACQUISITION CORP.
By: /s/ LARRY D. YOST
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Name: Larry D. Yost
Title: Chairman of the Board and
Chief Executive Officer
ARVINMERITOR, INC.
By: /s/ LARRY D. YOST
------------------------------------
Name: Larry D. Yost
Title: Chairman of the Board and
Chief Executive Officer
3
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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(a)(1)(A) Offer to Purchase, dated July 9, 2003.*
(a)(1)(B) Letter of Transmittal.*
(a)(1)(C) Notice of Guaranteed Delivery.*
(a)(1)(D) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and other Nominees.*
(a)(1)(E) Form of Letter to Clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and other Nominees.*
(a)(1)(F) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.*
(a)(1)(G) Press release issued by ArvinMeritor, Inc., dated July 8,
2003, announcing ArvinMeritor's intention to commence the
Offer.*
(a)(1)(H) Press release issued by ArvinMeritor, Inc., dated July 9,
2003, announcing the commencement of the Offer.*
(a)(1)(I) Summary Advertisement published July 9, 2003.*
(a)(1)(J) Complaint filed by ArvinMeritor, Inc. on July 8, 2003 in the
Circuit Court for the City of Buena Vista, Virginia.*
(a)(1)(K) Complaint filed by ArvinMeritor, Inc. on July 9, 2003 in
United States District Court for the Western District of
Virginia.*
(a)(1)(L) First Amended Complaint filed by ArvinMeritor, Inc. on July
25, 2003 in United States District Court for the Western
District of Virginia.
(a)(5)(A) Press release issued by ArvinMeritor, Inc., dated July 14,
2003, relating to supplemental disclosure requested by the
Ohio Department of Commerce.*
(a)(5)(B) Letter from ArvinMeritor, Inc. dated July 14, 2003, to Dana
shareholders residing in Ohio, as posted on ArvinMeritor's
website.*
(a)(5)(C) Transcript of portions of ArvinMeritor's fiscal year 2003
third-quarter earnings call, held on July 21, 2003, relating
to the Offer.*
(a)(5)(D) Press release issued by ArvinMeritor, Inc. dated July 22,
2003, responding to Dana Corporation's rejection of the
Offer.*
(a)(5)(E) Text of ArvinMeritor, Inc. form of e-mail replies to
investor inquiries and requests relating to the Offer.*
(a)(5)(F) Press release issued by ArvinMeritor, Inc. dated July 28,
2003, discussing correspondence delivered to Dana
Corporation's Committee of Independent Directors
(b) Not applicable.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
(g) Not applicable.
(h) Not applicable.
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* Previously filed