As filed with the Securities and Exchange Commission on April 10, 2002
Registration No. 333-_____
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DANIELSON HOLDING CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 95-6021257
(State of Incorporation) (I.R.S. Employer Identification No.)
--------------------------
767 Third Avenue, 5th Floor
New York, New York 10017-2023
(212) 888 - 0347
(Address of Principal Executive Offices) (Zip Code)
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1995 Stock and Incentive Plan
(as amended effective December 12, 2000)
(Full Title of the Plan)
--------------------------
David M. Barse
President and Chief Operating Officer
Danielson Holding Corporation
767 Third Avenue, 5th Floor
New York, New York 10017-2023
(212) 888-0347
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
-------------------------
With Copies To:
Vincent J. Pisano, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
(212) 735-3000
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CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share Price Fee
-------------------------------------- --------------------- --------------------- ------------------------ ---------------------
Common stock, par value $0.10 per
share: Shares subject to outstanding
options under the 1995 Stock and
Incentive Plan (the "Plan")........... 1,713,500 $4.67 $8,002,045.00 $736.19 (1)
-------------------------------------- --------------------- --------------------- ------------------------ ---------------------
Common stock, par value $0.10 per
share: Shares available for future grants
under the Plan........................ 815,400 $7.48 $6,099,192.00 $561.13 (2)
-------------------------------------- --------------------- --------------------- ------------------------ ---------------------
Common stock, par value $0.10 per
share: Shares issued under the Plan.. 11,100 $7.48 $83,028.00 $7.64 (2)
-------------------------------------- --------------------- --------------------- ------------------------ ---------------------
Total................................. 2,540,000 N/A $14,184,265.00 $1,304.96
====================================== ===================== ===================== ======================== =====================
(1) Computed in accordance with Rule 457(h) under the Securities Act of
1933, as amended (the "Securities Act"). Such computation is based on the
weighted average exercise price of $4.67 per share covering 1,713,500
outstanding options.
(2) The estimated exercise price of $7.48 per share was computed in
accordance with Rule 457(c) under the Securities Act by averaging the high
and low sales prices of Danielson Holding Corporation common stock as
reported by the American Stock Exchange on April 9, 2002.
EXPLANATORY NOTE
Danielson Holding Corporation ("Danielson Holding" or the
"Company") has prepared this registration statement in accordance with the
requirements of Form S-8 under the Securities Act of 1933, as amended (the
"Securities Act"), to register shares of its common stock, par value $0.10
per share (the "Common Stock"), issuable pursuant to the 1995 Stock and
Incentive Plan (the "Plan") of the Company.
This registration statement on Form S-8 also includes a prospectus
prepared in accordance with Instruction C of Form S-8, in accordance with
the requirements of Part I of Form S-3, and may be used for reofferings and
resales on a continuous or delayed basis in the future of up to an
aggregate of 1,088,600 shares that constitute "control securities" and/or
"restricted securities" which have been issued prior to or issuable after
the filing of this registration statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The Company will send or give the documents containing the
information specified in Part I of Form S-8 to employees as specified by
the Securities and Exchange Commission Rule 428(b)(1) under the Securities
Act. The Company does not need to file these documents with the Securities
and Exchange Commission either as part of this registration statement or as
prospectuses or prospectus supplements under Rule 424 of the Securities Act.
REOFFER PROSPECTUS
1,088,600 SHARES OF COMMON STOCK
OF DANIELSON HOLDING CORPORATION
The shares of common stock, par value $0.10 per share of Danielson
Holding Corporation (the "Common Stock") offered hereby will be sold from
time to time by certain stockholders of Danielson Holding Corporation
("Danielson Holding" or the "Company") described under the caption "Selling
Stockholders" in this prospectus. The selling stockholders are current or
former employees, officers and directors of our Company or independent
contractors who acquired the shares of Common Stock as compensation for
services performed for the Company (the "Selling Stockholders").
The sales may occur in transactions in the over-the-counter market
(quoted on the American Stock Exchange) at prevailing market prices or in
negotiated transactions. We will not receive proceeds from any of these
sales. We are paying the expenses incurred in registering the shares, but
all selling and other expenses incurred by each of the Selling Stockholders
will be borne by that Selling Stockholder.
The shares of Common Stock are "control securities" and/or
"restricted securities" under the Securities Act of 1933, as amended (the
"Securities Act") before their sale under this prospectus. This prospectus
has been prepared for the purpose of registering the shares under the
Securities Act to allow for future sales by the Selling Stockholders, on a
continuous or delayed basis, to the public without restriction. Each
Selling Stockholder may be deemed to be an "underwriter" within the meaning
of the Securities Act. Any commissions received by a broker or dealer in
connection with resales of the shares may be deemed to be underwriting
commissions or discounts under the Securities Act.
Our Common Stock is traded on the American Stock Exchange under
the symbol "DHC." On April 9, 2002, the last reported sale price of the
Common Stock, as reported on the American Stock Exchange, was $7.54 per
share.
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Investing in the Common Stock involves risk. For more information,
please see "Risk Factors" beginning on page 6.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
DETERMINED WHETHER THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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April 10, 2002
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TABLE OF CONTENTS
Page
AVAILABLE INFORMATION........................................................3
INCORPORATED DOCUMENTS.......................................................4
THE COMPANY..................................................................5
RISK FACTORS.................................................................6
POTENTIAL ACQUISITION........................................................9
NOTE REGARDING FORWARD-LOOKING STATEMENTS...................................11
USE OF PROCEEDS.............................................................11
SELLING STOCKHOLDERS........................................................12
PLAN OF DISTRIBUTION........................................................13
LEGAL MATTERS...............................................................14
EXPERTS ...................................................................14
AVAILABLE INFORMATION
The Company is subject to the informational reporting requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and
files reports, proxy statements and other information with the Securities
and Exchange Commission (the "Commission"). These reports, proxy statements
and other information can be inspected and copied at the Public Reference
Room of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549 and
at the Commission's regional offices at 500 West Madison Street, Suite
1400, Chicago, IL 60661-2511 and 233 Broadway, New York, NY 10279, at
prescribed rates. The Commission maintains a website that contains reports,
proxy and information statements and other information regarding
registrants, including the Company, that file electronically with the
Commission. The address of this website is "http://www.sec.gov." In
addition, you may obtain information from the Public Reference Room by
calling the Commission at 1-800-SEC-0330. In addition, our Common Stock is
quoted on the American Stock Exchange. Reports, proxy statements,
informational statements and other information concerning the Company can
be inspected at the offices of the American Stock Exchange at 86 Trinity
Place, New York, NY 10006.
The Company intends to furnish its stockholders with annual
reports containing additional financial statements and a report thereon by
independent certified public accountants.
Investing in the Common Stock involves risk. For more information,
please see "Risk Factors" beginning on page 6.
A copy of any document incorporated by reference in this
registration statement of which this prospectus forms a part but which is
not delivered with this prospectus will be provided by the Company without
charge to any person to whom this prospectus has been delivered upon the
oral or written request of that person. Requests should be directed to
Danielson Holding Corporation, 767 Third Avenue, New York, New York 10017.
Our telephone number at that location is (212) 888-0347.
You should only rely on the information incorporated by reference
or provided in this prospectus or any supplement. The Company has not
authorized anyone else to provide you with different information. The
Common Stock is not being offered in any state where the offer is not
permitted. You should not assume that the information in this prospectus or
any supplement is accurate as of any date other than the date on the front
of this prospectus.
INCORPORATED DOCUMENTS
The Commission allows us to "incorporate by reference" information
into this prospectus, which means that we can disclose important
information to you by referring you to another document filed separately
with the Commission. The information incorporated by reference is deemed to
be part of this prospectus, except for any information superseded by
information in this prospectus.
The Company's (i) latest Annual Report for the fiscal year ended
December 31, 2001 on Form 10-K filed with the Commission on April 1, 2002,
(ii) the Company's Current Reports on Form 8-K filed with the Commission on
March 1, 2002 and March 27, 2002, and (ii) the Company's statement on Form
8-A for registration of securities filed with the Commission on November
19, 1990 are incorporated herein by reference. In addition, all documents
subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, as amended, prior to the filing of a
post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof
from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this prospectus.
THE COMPANY
The Company is a holding company incorporated in Delaware, having
separate subsidiaries offering a variety of insurance products. It is Danielson
Holding's intention to grow by developing business partnerships and making
strategic acquisitions. As part of Danielson Holding's ongoing corporate
strategy, Danielson Holding has continued to seek acquisition opportunities
which will both complement its existing operations and enable Danielson
Holding to earn an attractive return on investment.
The largest subsidiary of Danielson Holding is its indirectly
wholly-owned California insurance company, National American Insurance
Company of California (together with its subsidiaries, "NAICC"). NAICC is a
California corporation currently engaged in writing private passenger
automobile insurance in California and commercial automobile insurance in
certain western states, primarily California. Prior to the fourth quarter
of 2001, NAICC had also been engaged in writing non-standard private
passenger automobile insurance in certain western states outside of
California, preferred private passenger automobile insurance and workers'
compensation insurance. NAICC is a second tier subsidiary of DHC. Prior to
2001, NAICC's immediate parent corporation was KCP Holding Company ("KCP"),
which was wholly-owned by Mission American Insurance Company ("MAIC"),
which was wholly-owned by Danielson Holding. In April 2001, MAIC and KCP
were merged into Danielson Indemnity Company ("DIND"). DIND is wholly-owned
by Danielson Holding.
Danielson Holding had cash and investments at the holding company
level of $29.9 million at December 31, 2001. Total liabilities of Danielson
Holding at the same date were $6.6 million.
Danielson Holding expects to report, as of the close of its 2001
tax year, aggregate consolidated net operating tax loss carryforwards
("NOLs") for Federal income tax purposes of approximately $745 million.
These losses will expire over the course of the next 18 years unless
utilized prior thereto. See Note 8 to our financial statements for the year
ended December 31, 2001, incorporated in this prospectus by reference from
our Annual Report for the fiscal year ended December 31, 2001 on Form 10-K.
Our principal executive offices are located at 767 Third Avenue,
New York, New York 10017, and our telephone number is (212) 888-0347.
RISK FACTORS
This offering involves risk. You should carefully consider the
risks described below and the other information in this prospectus before
deciding to invest in the shares of Common Stock.
Risks Related to Our Business
Although We Currently Rely on Cash and Short Term Investments to Meet Our
Liquidity Needs, We May Experience Liquidity Constraints in the Future
Which Could Restrain Our Growth or Reduce Profitability.
Historically, we have not experienced major liquidity constraints,
but, as discussed below, revenues are affected by numerous factors and a
decrease in those revenues can create cash flow issues. In such event, we
may rely on dividends and tax sharing payments from our subsidiaries. These
dividends and tax sharing payments may not be available because, among
other things:
o In some cases, our subsidiaries must first receive
regulatory approval before paying us dividends.
o There are business and regulatory considerations that
affect our subsidiaries, including the impact of
dividends on surplus which could affect a subsidiary's
insurance ratings, its competitive position, the amount
of premiums that it can write and its risk-based capital
requirements.
o There may be a prolonged material decline in an insurance
subsidiary's profits or materially adverse insurance
regulatory developments.
Our Business Plan Is to Continue to Grow But Our Limited Financial
Resources and the Constraints on Our Ability to Issue Additional Stock May
Impede Our Growth.
Although we have sought to grow through entering into strategic
partnerships or making acquisitions, we have limited financial resources.
Our limited financial resources and constraints on our ability to issue
additional stock or otherwise raise capital to finance transactions may
prevent us from successfully consummating any future transactions. Due to
our limited financial resources and constraints on our ability to raise
capital, we have been unable to participate in larger transactions in the
past, and believe that our financial constraints will continue to govern
the types of transactions we are able to entertain and consummate.
Our Insurance Business Is Affected by Many Factors Outside of Our Control
Such As Weather Conditions and Economic Activity That Could Reduce Demand
for Our Products or Cause Increases in Claims.
Our business is concentrated primarily in the Western United
States. If this area experiences an economic downturn, there could be fewer
car sales, less demand for automobile insurance and lower policy amounts in
addition to increased workers' compensation claims. Severe adverse weather
conditions could also adversely affect our business. These factors,
together with competitive pricing, could result in increases in our loss
ratios and fluctuations in our underwriting results and net income.
We Are Subject to Insurance Laws and Regulations Which Could Restrict Our
Operations and Reduce Our Financial Flexibility.
The states in which we transact business have passed insurance
laws and regulations. The agencies established pursuant to these state laws
have broad administrative and supervisory powers which can impact our
insurance business including:
o the granting and revocation of licenses to transact
insurance business regulation of trade practices
o establishment of guaranty associations
o licensing of agents
o approval of policy forms
o premium rate filing requirements
o reserve requirements
o the form and content of required regulatory financial
statements
o periodic examinations of insurers' records
o capital and surplus requirements and the maximum
concentrations of certain classes of investments
These laws, in general, also require approval of the particular
insurance regulators prior to certain actions by the insurance companies,
including the payment of dividends in excess of statutory limitations and
certain transactions and continuing service arrangements with affiliates.
The laws of most states provide for the filing of premium rate schedules
and other information with the insurance commissioner of a particular
state, either directly or through rating organizations. The insurance
commissioner of each state generally has powers to disapprove such filings
or make changes to the rates if they are found to be excessive, inadequate
or unfairly discriminatory. The determination of rates is based on various
factors, including loss and loss adjustment expense experience. The failure
to obtain, or delay in obtaining, the required approvals could result in a
decline in revenues of our insurance subsidiaries. We are also required by
insurance regulators to maintain certain minimum amounts of capital.
We Face Intense Competition in the Insurance Business That Could Impair Our
Ability to Grow and Achieve Profitability.
We compete both with large national writers and with smaller
regional companies in each state in which we operate. Some of these
competitors are larger and have greater financial resources than us. Some
of these competitors in the workers' compensation line of business have,
from time to time, decreased their prices significantly to gain market
share. There can be no assurance that we will be able to successfully
compete in these markets and generate sufficient premium volume at
attractive prices to be profitable. Our ability to grow depends on our
ability to expand in the states in which we already do business and to
expand into other states where our competitors operate.
If Currently Established Provisions for Unpaid Losses and Loss Adjustment
Expenses ("LAE") Prove Inadequate in Light of Subsequent Actual Experience,
It Will Be Necessary to Increase Provisions for Unpaid Losses.
We are required to estimate liability for losses and LAE. Our
insurance subsidiaries establish provisions to cover their estimated
liability for losses and LAE with respect to both reported and unreported
claims as of the end of each accounting period. By their nature, these
provisions for unpaid losses and LAE do not represent an exact calculation
of liabilities. Rather, they are estimates involving management's
projections as to the ultimate settlement and administration of claims.
These expectations are, in turn, based on, among other things:
o facts and circumstances known at the time
o predictions of future events
o estimates of future trends in the severity and frequency
of claims
o judicial theories of liability
o inflation
Our insurance subsidiaries regularly review their respective
reserve techniques and reserve positions and believe that adequate
provision has been made for their respective unpaid losses and LAE. We
cannot ensure that currently established provisions for unpaid loses and
LAE will prove adequate in light of subsequent actual experience. Future
earnings could be adversely impacted should future loss development require
increases in provisions for unpaid losses and LAE previously established
for prior periods.
We Can Not Be Certain that the Net Operating Loss Carryforwards ("NOL")
Will Continue to Be Available to Offset Our Tax Liability.
We currently expect to report, as of the close of our 2001 tax
year, an NOL of approximately $745 million for federal income tax purposes.
The NOL expires in various amounts beginning on December 31, 2001 through
December 31, 2019, if it is not used. The Internal Revenue Service ("IRS")
has not audited any of our tax returns for the years in which the losses
giving rise to the NOL were reported nor has it otherwise challenged our
use of the NOL carryforwards. If we were to undergo an "ownership change"
as such term is used in Section 382 of the Internal Revenue Code, the use
of our NOL would be severely limited. We will be treated as having had an
"ownership change" if there is a more than 50% increase in stock ownership
during a 3-year "testing period" by "5% stockholders." For this purpose,
stock ownership is measured by value, and does not include so-called
"straight preferred" stock.
Our Certificate of Incorporation contains stock transfer
restrictions which were designed to help us preserve the NOL by avoiding an
ownership change. The transfer restrictions were implemented in 1990, and
we expect that they will remain in-force as long as the NOL is available to
us. We cannot be certain, however, that these restrictions will prevent an
ownership change.
Risks Related to Our Securities
If the Exercise of Your Stock Options Would Result in the Risk of Your
Becoming a 5% Stockholder, We Have the Right to Limit the Exercise of these
Stock Options.
Our common stock is subject to transfer restrictions which forbid
any stockholder from becoming a 5% stockholder. If the exercise of your
stock options would result in a risk of your becoming a 5% stockholder,
your exercise may be automatically reduced so that your common stock
ownership would be less than 5%. We may also limit the exercise of stock
options by holders who possess 5% or more of our outstanding common stock.
Provisions in Our Certificate of Incorporation That Limit Ownership and
Transferability of Our Stock May Entrench Current Management and the
Current Stockholders.
We are required to issue, in our name, as escrow agent,
certificates representing shares of common stock that are beneficially
owned by holders of 5% or more of our stock. In addition, when we receive
the written request from a 5% stockholder to transfer their shares, we may
refuse such request upon the advice of our tax counsel that such transfer
would create an unreasonable risk of an "ownership change." In no
circumstances may anyone acquire 5% or more of our stock without our
consent.
The Market for Our Shares Has Been Historically Illiquid Which May Affect
Your Ability to Sell Your Shares.
The volume of trading in our stock has historically been low.
Having a market for shares without substantial liquidity can adversely
affect the price of the stock at a time an investor might want to sell his
shares.
POTENTIAL ACQUISITION
On March 15, 2002, we and American Commercial Lines LLC ("ACL")
executed a definitive recapitalization agreement for our acquisition of
ACL. ACL is an integrated marine transportation and service company
operating approximately 5,100 barges and 200 towboats on the inland
waterways of North and South America. ACL transports more than 70 million
tons of freight annually. Additionally, ACL operates marine construction,
repair and service facilities and river terminals.
The holders of more than two thirds of ACL's outstanding senior
notes, substantially all the indirect preferred and common members of ACL
and the management of ACL have agreed to support the recapitalization plan.
ACL's senior lenders have executed forbearance agreements pending the
negotiation and execution of definitive documentation relating to the
amendment and restatement of ACL's senior secured credit facility.
Under the terms of the recapitalization agreement, we will acquire
100% of the membership interests of American Commercial Lines Holdings LLC,
ACL's parent holding company. ACL's present indirect preferred equity
holders (that are not members of ACL management) will receive $7.0 million
in cash. ACL's management will receive approximately $1.7 million of
restricted common stock of Danielson Holding. In addition, we will deliver
$25.0 million in cash, which will be used to reduce borrowings under ACL's
senior credit facility, and approximately $58.5 million of ACL's
outstanding senior notes to ACL Holdings in connection with the
transaction. The recapitalization is expected to close in the second
quarter of 2002.
The transaction will result in a reduction of ACL's senior secured
bank debt by $25.0 million. In addition, the parties will seek to
restructure ACL's 10 1/4% senior notes due 2008 through an exchange
offer and consent solicitation. Upon the successful completion of the
exchange offer and consent solicitation, up to approximately $236.5 million
of ACL's outstanding senior notes (all notes held by parties other than us)
will be exchanged for $120.0 million of new 11 1/4% cash pay senior notes
due January 1, 2008 and approximately $116.5 million of new 12% pay-in-kind
senior subordinated notes due July 1, 2008. ACL will also issue additional
new cash pay senior notes in an aggregate principal amount (not to exceed
$20.0 million) equal to the accrued and unpaid interest on its outstanding
senior notes, other than those held by us, and to the extent that such
accrued and unpaid interest exceeds $20.0 million, additional pay-in-kind
senior subordinated notes in an amount equal to such excess would be issued
in full satisfaction of such accrued and unpaid interest.
In connection with these transactions, we expect to effect a $42
million rights offering to our existing security holders, the proceeds of
which will be used to fund our cash contribution for the recapitalization
and for general corporate purposes. Consummation of the recapitalization
agreement is not conditioned on the successful completion of the rights
offering. Under the terms of the rights offering, holders of our common
stock will be entitled to purchase additional shares of common stock, at a
subscription price of $5.00 per share, up to such holders' pro rata share
of the rights offering. Our March 18th press release regarding these
transactions did not constitute notice of the commencement of the rights
offering. Further information regarding the terms and conditions for the
expected rights offering will be announced prior to the commencement of the
rights offering.
The recapitalization agreement provides that the exchange offer
and consent solicitation will be made in reliance on a registration
exemption provided by Section 3(a)(9) under the Securities Act of 1933,
conditioned on the minimum participation of 95% of the outstanding
principal amount of ACL's outstanding senior notes, as to which noteholders
holding more than two thirds of the outstanding principal amount of such
notes have agreed to tender. In the event that the exchange offer and
consent solicitation is not consummated by June 15, 2002, the
recapitalization agreement provides for the implementation of the
recapitalization through a voluntary prepackaged bankruptcy plan under
Chapter 11 of the Bankruptcy Code, as to which noteholders holding more
than two thirds of the outstanding principal amount of ACL's outstanding
senior notes have agreed to accept.
We have filed a copy of the press release referenced above along
with a copy of the recapitalization agreement in our Current Report on Form
8-K filed with the Commission on March 27, 2002.
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in
this prospectus contain forward-looking statements. These forward-looking
statements are based on our current expectations, estimates and projections
about our industry, management's beliefs and certain assumptions made by
us. Words such as "anticipates," "expects," "intends," "plans," "believes,"
"seeks," "estimates" and variations of these words or similar expressions
are intended to identify forward-looking statements. These statements are
not guarantees of future performance and are subject to certain risks,
uncertainties and assumptions that are difficult to predict. Therefore, our
actual results could differ materially from those expressed or forecasted
in any forward-looking statements as a result of a variety of factors,
including those set forth in "Risk Factors" above and elsewhere in, or
incorporated by reference into, this prospectus. We have no intention to
update any forward-looking statements except and to the extent required by
law.
USE OF PROCEEDS
Danielson Holding will not receive any proceeds from the sale of
shares which may be sold pursuant to this reoffer prospectus for the
respective accounts of the Selling Stockholders. All such proceeds, net of
brokerage commissions, if any, will be received by the Selling
Stockholders. See "Selling Stockholders" and "Plan of Distribution."
SELLING STOCKHOLDERS
The 1,088,600 shares of Common Stock of Danielson Holding to which
this prospectus relates are being registered for reoffers and resales by
our present and former employees, officers and directors and independent
contractors named below, who acquired the shares of Common Stock pursuant
to our "employee benefit plan" as that term is defined in Rule 405 of
Regulation C under the Securities Act. The Selling Stockholders may resell
all, a portion or none of such shares of Common Stock from time to time.
The inclusion in the table of the individuals named therein shall
not be deemed to be an admission that any such individuals are "affiliates"
of the Company.
Number of
Shares to Be
Number of Number of Beneficially
Shares Shares That Owned if All
Name of Selling Beneficially May Be Offered Shares Offered
Stockholder Title Owned(1) Hereby(2) Hereby Are Sold
----------------------- ---------------- ------------ -------------- ---------------
David M. Barse President, Chief 350,000 350,000 0
Operating Officer
and Director
Joseph F. Porrino Director 86,667 86,667 0
Frank B. Ryan Director 86,667 86,667 0
Eugene M. Isenberg Director 106,782 86,666 20,116
Wallace O. Sellers Director 80,000 80,000 0
Stanley J. Garstka Director 80,000 80,000 0
William Pate Director 22,800 22,800 0
Michael T. Carney Chief Financial 195,000 195,000 0
Officer and Treasurer
W. James Hall General Counsel 20,000 20,000 0
and Secretary
Bill Scarfia Former Employee 1,800 1,800 0
Karen Hall Former Employee 1,800 1,800 0
Carlee Harmonson Former Employee 1,000 1,000 0
Constance Martes Former Employee 1,500 1,500 0
Dan McCormick Former Employee 5,000 5,000 0
Mike Lehman Independent 20,000
Contractor
Brian Selmo Independent 5,000 5,000 0
Contractor
Don Liebentritt Independent 40,000 10,000 30,000
Contractor
Jeff Klein Independent 1,200 1,200 0
Contractor
Mark Radzik Independent 27,000 10,000 17,000
Contractor
Nils Larsen Independent 4,000 4,000 0
Contractor
Joe Paolucci Independent 4,000 2,000 2,000
Contractor
Jim Bunegar Independent 2,500 2,500 0
Contractor
Philip Tinkler Independent 5,000 5,000 0
Contractor
George Touras Independent 5,000 2,500 0
Contractor
(1) As of March 25, 2002, the number of shares owned by listed
individuals includes restricted stock and options to purchase
shares of Common Stock under our employee benefit plans, whether
or not exercisable as of, or within sixty days of, the date of
this prospectus as well as shares of Common Stock beneficially
owned by the Selling Stockholders. As of March 25, 2002, there
were 19,510,898 shares of Common Stock outstanding.
(2) Includes options to purchase shares of our Common Stock issued to
the Selling Stockholders under the Plan, whether or not
exercisable as of, or within sixty days of, the date of this
Prospectus. For non-affiliates, options to purchase shares of our
Common Stock issued under the Plan are excluded.
PLAN OF DISTRIBUTION
Each Selling Stockholder may sell his or her shares of Common
Stock for value from time to time under this prospectus in one or more
transactions on the American Stock Exchange, in negotiated transactions or
in a combination of such methods of sale, at market prices prevailing at
the time of sale, at prices related to such prevailing market prices or at
prices otherwise negotiated. The Selling Stockholders may effect such
transactions by selling the shares of Common Stock to or through
broker-dealers, and such broker-dealers may receive compensation in the
form of underwriting discounts, concessions or commissions from the Selling
Stockholders and/or the purchasers of the shares of Common Stock for whom
such broker-dealers may act as agent (which compensation may be less than
or in excess of customary commissions).
Each Selling Stockholder and any broker-dealer that participates
in the distribution of the shares of Common Stock may be deemed to be an
"underwriter" within the meaning of Section 2(11) of the Securities Act,
and any commissions received by them and any profit on the resale of the
shares sold by them may be deemed to be underwriting discounts and
commissions under the Securities Act. All selling and other expenses
incurred by the Selling Stockholders will be borne by the Selling
Stockholders. We will pay all other expenses in connection with this
offering and will not receive any proceeds from sales of any shares of
Common Stock by the Selling Stockholders.
In order to comply with certain state securities laws, if
applicable, the shares may be sold in such jurisdictions only through
registered or licensed brokers or dealers. In certain states, the shares
may not be sold unless the shares have been registered or qualified for
sale in such state or an exemption from registration or qualification is
available and is complied with. Sales of shares must also be made by the
Selling Stockholders in compliance with all other applicable state
securities laws and regulations.
In addition to any shares of Common Stock sold hereunder, the
Selling Stockholders may sell shares of Common Stock in compliance with all
of the requirements of Rule 144. Notwithstanding the foregoing, the amount
of securities to be reoffered or resold by means of this prospectus, by
each person, may not exceed, during any three-month period, the amount
specified in Rule 144(e). There is no assurance that the Selling
Stockholders will sell all or any portion of the shares of Common Stock
offered hereby.
Danielson Holding will pay all expenses of the registration of the
shares and will not receive any proceeds from the sale of any shares by the
Selling Stockholders.
Danielson Holding has notified the Selling Stockholders of the
need to deliver a copy of this prospectus in connection with any sale of
the shares.
LEGAL MATTERS
The validity of the shares of Common Stock which are originally
offered under the Registration Statement of which this prospectus forms a
part will be passed upon for Danielson Holding by W. James Hall, General
Counsel of Danielson Holding.
EXPERTS
The financial statements of the Company for the year ended
December 31, 2001, incorporated in this prospectus by reference from the
Company's Annual Report for the fiscal year ended December 31, 2001 on Form
10-K , have been audited by KPMG LLP, independent auditors, as stated in
their report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the registrant, Danielson Holding
Corporation, a Delaware corporation, pursuant to the Exchange Act of 1934,
as amended (the "Exchange Act"), are incorporated by reference in this
registration statement:
(1) The registrant's latest Annual Report for the fiscal year
ended December 31, 2001, on Form 10-K filed with the Commission on April 1,
2002;
(2) The registrant's Current Reports on Form 8-K filed with the
Commission on March 1, 2002 and March 27, 2002; and
(3) The registrant's statement on Form 8-A filed with the
Commission on November 19, 1990.
All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be a
part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes
of this registration statement to the extent that a statement contained
herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145(a) of the General Corporation Law of the State of
Delaware ("Delaware Corporation Law") provides, in general, that a
corporation shall have the power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the corporation), because the person is or was a director or officer of the
corporation. Such indemnity may be against expenses (including attorneys'
fees), judgment, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action, suit or
proceeding, if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation and if, with respect to any criminal action or proceeding, the
person did not have reasonable cause to believe the person's conduct was
unlawful.
Section 145(b) of the Delaware Corporation Law provides, in
general, that a corporation shall have the power to indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor because the person is or was
a director or officer of the corporation, against any expenses (including
attorneys' fees) actually and reasonably incurred by the person in
connection with the defense or settlement of such action or suit if the
person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation.
Section 145(g) of the Delaware Corporation Law provides, in
general, that a corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director or officer of
the corporation against any liability asserted against the person in any
such capacity, or arising out of the person's status as such, whether or
not the corporation would have the power to indemnify the person against
such liability under the provisions of the law.
Item 7. Exemption from Registration Claimed.
The securities that are to be reoffered or resold pursuant to this
registration statement were issued to employees of the registrant pursuant
to employee benefit plans maintained by the registrant in transactions that
were exempt from the registration requirements of the Securities Act
pursuant to Section 4(2) thereto and/or Rule 701 thereunder.
Item 8. Exhibits.
Exhibit No. Description of Exhibit
----------- ----------------------
4.1 Form of certificate representing shares of
Common Stock (incorporated by reference as
Exhibit 28 to the Company's Registration
Statement on Form 8- B filed with the
Commission on August 3, 1992).
5.1 Opinion of W. James Hall, General Counsel of Danielson Holding
Corporation.+
10.1 1995 Stock and Incentive Plan (as amended
effective December 12, 2000) (incorporated by
reference as Appendix B to the Company's Proxy
Statement on Schedule 14A filed on August 2, 2001).
23.1 Consent of KPMG LLP.+
23.2 Consent of W. James Hall, General Counsel of Danielson Holding
Corporation (included in Exhibit 5.1).+
24.1 Power of Attorney (included on the signature page hereto).+
-------------------
+ Filed herewith
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
o To file, during any period in which offers or sales are
being made, a post-effective amendment to this
registration statement:
o To include any prospectus required by Section 10(a)(3) of
the Securities Act;
o To reflect in the prospectus any facts or events arising
after the effective date of the registration statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would
not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent
no more than 20 percent change in the maximum aggregate
offering price set froth in the "Calculation of
Registration Fee" table in the effective registration
statement; and
o To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1) and (a)(2) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the registration
statement.
o That, for the purpose of determining any liability under
the Securities Act, each post-effective amendment shall
be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
o To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
o That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed
to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
o Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors,
officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the
Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by
a director, officer or controlling person of the
registrant in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or
controlling person in connection with the securities
being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by
it is against public policy as expressed in the
Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement has been signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of
New York, on this 10th day of April, 2002.
Danielson Holding Corporation
By: /s/ Martin J. Whitman
--------------------------------
Martin J. Whitman
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Martin J. Whitman, David
M. Barse, and W. James Hall, and each of them, his true and lawful
attorney-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite or necessary to be done in and about
the premises, as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said attorneys-in- fact
and agents or any of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof. This power of attorney
may be executed in counterparts.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on this 10th day of April, 2002.
Name Title Date
---- ----- ----
/s/ Martin J. Whitman Chief Executive Officer April 10, 2002
-------------------------------------- and Director
Martin J. Whitman
/s/ David M. Barse President, Chief Operating April 10, 2002
-------------------------------------- Officer and Director
David M. Barse
/s/ Michael T. Carney Chief Financial Officer April 10, 2002
-------------------------------------- and Treasurer
Michael T. Carney
/s/ Samuel Zell Chairman of the Board April 10, 2002
-------------------------------------- of Directors
Samuel Zell
/s/ Joseph F. Porrino Director April 10, 2002
--------------------------------------
Joseph F. Porrino
/s/ Frank B. Ryan Director April 10, 2002
--------------------------------------
Frank B. Ryan
/s/ Eugene M. Isenberg Director April 10, 2002
--------------------------------------
Eugene M. Isenberg
/s/ Wallace O. Sellers Director April 10, 2002
--------------------------------------
Wallace O. Sellers
/s/ Stanley J. Garstka Director April 10, 2002
--------------------------------------
Stanley J. Garstka
/s/ William Pate Director April 10, 2002
--------------------------------------
William Pate
/s/ Loren Suter Director April 10, 2002
--------------------------------------
Loren Suter
EXHIBIT INDEX
Exhibit No. Description of Exhibit
----------- ----------------------
4.1 Form of certificate representing shares of
Common Stock (incorporated by reference as
Exhibit 28 to the Company's Registration
Statement on Form 8- B filed with the
Commission on August 3, 1992).
5.1 Opinion of W. James Hall, General Counsel of Danielson
Holding Corporation.+
10.1 1995 Stock and Incentive Plan (as amended
effective December 12, 2000) (incorporated by
reference as Appendix B to the Company's Proxy
Statement on Schedule 14A filed on August 2, 2001).
23.1 Consent of KPMG LLP.+
23.2 Consent of W. James Hall, General Counsel of Danielson
Holding Corporation (included in Exhibit 5.1).+
24.1 Power of Attorney (included on the signature page hereto).+
-------------------
+ Filed herewith.