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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 13
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)
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. 13 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. 13 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 11. ADDITIONAL INFORMATION
The Introduction to the Offer to Purchase is hereby amended by deleting
the tenth paragraph of such Introduction (as previously amended) 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. On August 21, 2003, the Company denied
the material allegations in the amended complaint and brought various
counterclaims against Parent and the Purchaser seeking, among other things, a
declaratory judgment that Parent has violated Sections 14(d) and 14(e) of the
Exchange Act and the rules promulgated thereunder, an order requiring Parent to
file disclosures correcting allegedly materially misleading statements and
omissions and extending the Offer in order to enable the Company's shareholders
to analyze such disclosures, and an order enjoining Parent from pursuing the
Offer. On September 9, 2003, Parent and the Purchaser replied to the Company's
counterclaims by denying the material allegations set forth therein, asserting
affirmative defenses thereto and requesting that the court grant judgment
against such counterclaims and instead grant the relief sought in Parent and the
Purchaser's amended complaint."
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.*
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(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)(1)(M) First Amended Complaint filed by ArvinMeritor, Inc. on August 5,
2003 in the Circuit Court for the City of Buena Vista, Virginia.*
(a)(1)(N) Reply to Dana Counterclaims filed by ArvinMeritor, Inc. on September
9, 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.*
(a)(5)(G) Slides relating to the Offer used by ArvinMeritor, Inc. in a
presentation dated August 7, 2003.*
(a)(5)(H) Complaint filed by Dana Corporation on August 14, 2003 in the Court
of Common Pleas of Lucas County, Ohio.*
(a)(5)(I) Press release issued by ArvinMeritor, Inc. dated August 18, 2003,
responding to Dana Corporation's complaint.*
(a)(5)(J) Press release issued by ArvinMeritor, Inc. dated August 22, 2003,
announcing its filing for HSR approval.*
(a)(5)(K) Press release issued by ArvinMeritor, Inc. dated August 22, 2003,
responding to Dana Corporation's answers and counterclaims to
ArvinMeritor's complaints.*
(a)(5)(L) Press release issued by ArvinMeritor, Inc. dated August 28, 2003,
announcing the extension of the Expiration Date of the Offer.*
(a)(5)(M) Press release issued by ArvinMeritor, Inc. dated September 8,
2003, announcing receipt of second request from the FTC.*
(b) Not applicable.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
(g) Not applicable.
(h) Not applicable.
* Previously filed
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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: September 10, 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
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Name: Larry D. Yost
Title: Chairman of the Board and Chief
Executive Officer
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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)(1)(M) First Amended Complaint filed by ArvinMeritor, Inc. on August 5,
2003 in the Circuit Court for the City of Buena Vista, Virginia.*
(a)(1)(N) Reply to Dana Counterclaims filed by ArvinMeritor, Inc. on September
9, 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.*
(a)(5)(G) Slides relating to the Offer used by ArvinMeritor, Inc. in a
presentation dated August 7, 2003.*
(a)(5)(H) Complaint filed by Dana Corporation on August 14, 2003 in the Court
of Common Pleas of Lucas County, Ohio.*
(a)(5)(I) Press release issued by ArvinMeritor, Inc. dated August 18, 2003,
responding to Dana Corporation's complaint.*
(a)(5)(J) Press release issued by ArvinMeritor, Inc. dated August 22, 2003,
announcing its filing for HSR approval.*
(a)(5)(K) Press release issued by ArvinMeritor, Inc. dated August 22, 2003,
responding to Dana Corporation's answers and counterclaims to
ArvinMeritor's complaints.*
(a)(5)(L) Press release issued by ArvinMeritor, Inc. dated August 28, 2003,
announcing the extension of the Expiration Date of the Offer.*
(a)(5)(M) Press release issued by ArvinMeritor, Inc. dated September 8,
2003, announcing receipt of second request from the FTC.*
(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
(Exhibit attached)