As filed with the Securities and Exchange Commission on August 28,September 9, 2002
Registration No. 333 - ____98831
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Amendment No 1 to
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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DREW INDUSTRIES INCORPORATED
(Exact name of registrant as specified in charter)
Delaware 13-3250533
(State or other jurisdiction of 13-3250533(I.R.S. Employer
incorporation or organization) (I.R.S. Employer Identification No.)
200 Mamaroneck Avenue
White Plains, New York 10601
(914) 428-9098
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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Leigh J. Abrams
President and Chief Executive Officer
Drew Industries Incorporated
200 Mamaroneck Avenue
White Plains, New York 10601
(914) 428-9098
(name and address, including zip code and telephone number,
including area code of agent for service)
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With a copy to:
Harvey F. Milman, Esq.
Phillips Nizer LLP
666 Fifth Avenue
New York, New York 10103
(212) 977-9700
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: |_|
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933 (the "Securities Act"), other than securities offered only in connection
with dividend or interest reinvestment plans, please check the following box:
|X|[X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act, please check the following box. |_|
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------
Proposed Maximum Offering Proposed Maximum
Title of Each Class of Amount to be Price Per Amount of Aggregate
Securities to be Registered Registered Unit (1)(2) Offering Price (1)(2)
- ------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 850,000 $15.96 $13,566,000
per share
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(1) Used only for purpose of calculating the amount of the registration fee.
(2) The registration fee is based upon the average of the high and low prices
of the shares of Common Stock as reported on the American Stock Exchange
on August 23, 2002, as prescribed by Rule 457(c).
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment that specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The information in this prospectus is not complete and may be changed. The
selling stockholder may not sell these securities until the registration
statement filed with the Securities and Exchange Commission relating to these
securities is effective. This prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these securities in any
state where the offer or sale is not permitted.
2
Subject to Completion - Dated August 28,September 9, 2002
PROSPECTUS
850,000 SHARES
DREW INDUSTRIES INCORPORATED
COMMON STOCK
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, the
selling stockholder may sell from time to time up to an aggregate of 850,000
shares of common stock of Drew Industries Incorporated, a Delaware corporation.
The selling stockholder acquired his Drew shares in connection with the
acquisition by Drew of Lippert Components Inc., in 1997.
The selling stockholder may sell all or any portion of his shares of
common stock in one or more transactions on the American Stock Exchange or in
private, negotiated transactions. The selling stockholder will determine the
prices at which he sells his shares. Drew will not receive any of the proceeds
from the sale of the shares by the selling stockholder, but we will pay all
registration expenses. The selling stockholder will pay all selling expenses,
including all underwriting discounts and selling commissions.
The common stock is listed on the American Stock Exchange under the symbol
"DW." On August 26,September 5, 2002, the last reported sale price of the common stock on
the American Stock Exchange was $16.25$15.85 per share.
THIS INVESTMENT INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING ON PAGE 6.
The shares of Drew common stock may be offered by the selling stockholder
in negotiated transactions or otherwise at market prices prevailing at the time
of sale or at negotiated prices. The selling stockholder may be deemed to be an
"underwriter" as defined in the Securities Act of 1933, as amended (the
"Securities Act"). If any broker-dealers are used by the selling stockholder,
any commissions paid to broker-dealers and, if broker-dealers purchase any
shares as principals, any profits received by such broker-dealers on the resale
of shares of Drew common stock may be deemed to be underwriting discounts or
commissions under the Securities Act. In addition, any profits realized by the
selling stockholder may be deemed to be underwriting commissions.
The selling stockholder has advised us that he has entered into an
arrangement with Jones & Associates, Inc. ("Jones"), an NASD registered
broker-dealer, to place the shares, on a best efforts basis, in one or more
block transaction in which Jones would receive its usual and customary
commission of five cents per share. Jones may be deemed to be an "underwriter"
in connection with such transactions and the commissions that it receives may be
deemed to be underwriting discounts and commissions under the Securities Act.
This prospectus does not constitute an offer to sell, or a solicitation of
an offer to buy, any of the securities offered hereby by any person in any
jurisdiction in which it is unlawful for such person to make such an offering or
solicitation.
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1
Neither the Securities and Exchange Commission (the "SEC") nor any state
securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
The date of this prospectus is _______, 2002.
2
TABLE OF CONTENTS
Page
Where You Can Find More Information............................................3Information...........................................4
Special Note Regarding Forward-Looking Statements..............................4Statements.............................5
The Company....................................................................5Company...................................................................6
Risk Factors...................................................................6Factors..................................................................7
Use Of Proceeds................................................................8Proceeds...............................................................9
Description Of Common Stock....................................................9Stock..................................................10
Selling Stockholder...........................................................10Stockholder..........................................................11
Plan Of Distribution..........................................................11Distribution.........................................................12
Validity Of Securities........................................................12
Experts.......................................................................12Securities.......................................................13
Experts......................................................................14
You should rely only on the information contained or incorporated by
reference in this prospectus. Drew has not authorized anyone to provide you with
different information. You should not assume that the information contained in
this prospectus is accurate as of any date other than the date on the front of
this prospectus.
As used in this prospectus, unless the context requires otherwise: "we," "us,"
"our", the "Company" and "Drew" means Drew Industries Incorporated and/or its
predecessors and consolidated subsidiaries.
23
WHERE YOU CAN FIND MORE INFORMATION
Drew files annual, quarterly and current reports, proxy statements and
other information with the SEC. Drew's SEC filings are available to the public
over the Internet at the SEC's web site at http://www.sec.gov. You may also read
and copy any document Drew files at the SEC's public reference facility in
Washington, D.C. at the following address:
o 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549.
Please call the SEC at 1-800-SEC-0330 for further information on the
public reference facilities.
Reports, proxy statements and other information concerning us can also be
inspected and copied at the offices of the American Stock Exchange at 86 Trinity
Place, New York, NY 10006.
We have elected to incorporate by reference into this prospectus the
following documents (including the documents incorporated by reference therein)
filed by Drew with the SEC:
o Annual Report on Form 10-K for the fiscal year ended December 31,
2001, filed with the SEC on March 27, 2002;
o Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
2002, filed with the SEC on May 15, 2002;
and
o Quarterly Report on Form 10-Q for the fiscal quarter ended June 30,
2002, filed with the SEC on August 9, 2002; and
o Current Report on Form 8-K filed with the SEC on August 29, 2002.
Any statement made in a document incorporated by reference or deemed
incorporated herein by reference is deemed to be modified or superseded for
purposes of this prospectus if a statement contained in this prospectus or in
any other subsequently filed document which also is incorporated or deemed
incorporated by reference herein modifies or supersedes that 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. We also incorporate by
reference all documents filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") after the date of this
prospectus and prior to the termination of this offering.
You may request a copy of these filings, in most cases without exhibits,
at no cost by writing or telephoning us at the following address:
Harvey J. Kaplan, Treasurer
200 Mamaroneck Avenue
White Plains, New York 10601
(914) 428-9098
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SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference contain
certain "forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995 with respect to financial condition,
results of operations, business strategies, operating efficiencies or synergies,
competitive position, growth opportunities for existing products, plans and
objectives of management, markets for Drew common stock and other matters.
Statements in this prospectus, including those incorporated by reference, that
are not historical facts are "forward-looking statements" for the purpose of the
safe harbor provided by Section 21E of the Exchange Act and Section 27A of the
Securities Act. Forward-looking statements, including, without limitation, those
relating to our future business prospects, revenues and income, wherever they
occur in this prospectus, are necessarily estimates reflecting the best judgment
of our senior management and involve a number of risks and uncertainties that
could cause actual results to differ materially from those suggested by
forward-looking statements. You should consider forward-looking statements,
therefore, in light of various important factors, including those set forth in
this prospectus. Important factors that could cause actual results to differ
materially from estimates or projections contained in the forward-looking
statements include, without limitation:
o the effect of national and regional economic conditions and consumer
confidence on the sale of manufactured homes and RV's;
o pricing pressures due to competition;
o raw material costs, particularly aluminum, vinyl, steel, glass, ABS
resin and tires;
o availability of retail and wholesale financing for manufactured
homes;
o availability and costs of labor;
o inventory levels of retailers and manufacturers;
o interest rates; and
o the effect of adverse weather conditions on retail sales.
Words such as "estimate," "project," "plan," "intend," "expect," "believe"
and similar expressions are intended to identify forward-looking statements. You
will find these forward-looking statements at various places throughout this
prospectus and the documents incorporated by reference, including any
amendments. You are cautioned not to place undue reliance on these
forward-looking statements, which speak only as of the date they were made. We
do not undertake any obligation to publicly update or release any revisions to
these forward-looking statements to reflect events or circumstances after the
date of this prospectus or to reflect the occurrence of unanticipated events.
45
THE COMPANY
Drew was incorporated under the laws of Delaware on March 20, 1984, and is
the successor to Drew National Corporation, which was incorporated under the
laws of Delaware in 1962. The Company's principal executive and administrative
offices are located at 200 Mamaroneck Avenue, White Plains, New York 10601;
telephone number (914) 428-9098. The Common Stock of the Company is traded on
the American Stock Exchange (symbol: DW). Our website is www.drewindustries.com.
The information contained on our website is not incorporated by reference in the
prospectus.
Drew has two operating segments: the manufactured housing products segment
(the "MH Segment") and the recreational vehicle products segment (the "RV
Segment"). Drew's wholly-owned subsidiaries, Kinro, Inc. ("Kinro") and Lippert
Components, Inc. ("Lippert"), have operations in both the MH Segment and the RV
Segment, while Lippert's subsidiaries, Lippert Tire & Axle, Inc. ("LTA") and
Coil Clip, Inc. ("Coil Clip"), operate entirely within the MH Segment.
Kinro manufactures and markets aluminum and vinyl windows and
thermo-formed bath and shower units for manufactured homes, and aluminum windows
and doors for recreational vehicles. Lippert manufactures and markets steel
chassis and steel chassis parts and galvanized roofing for manufactured homes,
and manufactures and markets steel chassis and steel chassis parts for
recreational vehicles. LTA manufactures and markets new axles, and refurbishes
and distributes used axles, and distributes new and refurbished tires, for
manufactured homes. Coil Clip produces coil steel and sheet steel components,
certain of which are supplied to Lippert. Several of Drew's customers produce
both manufactured homes and recreational vehicles, and Drew supplies products
having similar characteristics for use in both these lines of business. Drew
currently operates 41 manufacturing facilities in 18 states and one in Canada.
Drew has approximately 2,900 employees. Drew's manufactured housing
products are sold by 19 sales personnel, working exclusively for the Company, to
major builders of manufactured homes, and Drew's recreational vehicles products
are sold by 6 sales personnel, working exclusively for Drew, to major
manufacturers of recreational vehicles.
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RISK FACTORS
Industry Risk Factors
Continued reductions in the availability of financing for manufactured
homes and increases in the costs of this financing could limit the ability
of consumers to purchase manufactured homes, resulting in reduced demand
for our products.
Frequently, manufactured homes are purchased and the land on which
they are placed is leased. Loans used to finance the purchase of manufactured
homes without land have shorter terms and higher interest rates, and may be more
difficult to obtain than loans for site-built homes. The availability of loans
for manufactured homes has been limited because several lenders have curtailed
or discontinued these loans. In addition, many lending institutions have
increased interest rates and raised credit standards. The availability, cost and
terms of these loans are also dependent on economic conditions, lending
practices of financial institutions, governmental policies, and other factors
which are beyond our control. Continued reductions in the availability of
financing for manufactured homes and increases in the costs of this financing
could limit the ability of consumers to purchase manufactured homes, resulting
in reduced demand for our products.
Reductions in the availability of wholesale financing may prevent
retailers from carrying an adequate inventory of homes, which could reduce
demand for our products.
Retailers of manufactured homes generally finance their purchases of
inventory with financing provided by lending institutions. In the last few
years, several lenders have curtailed or discontinued these loans. Reductions in
the availability of wholesale financing may prevent retailers from carrying an
adequate inventory of homes, which could reduce demand for our products.
Excess inventories by retailers and manufacturers could cause a decline in
the demand for our products.
Retailers and manufacturers of recreational vehicles and
manufactured homes may carry excess inventory, as they periodically have in the
past. When excess inventory is sold, the manufacturers of recreational vehicles
and manufactured homes may reduce production of new vehicles and homes, which
could cause a decline in demand for our products.
High levels of repossessions of manufactured homes could cause
manufacturers to reduce production of new manufactured homes, resulting in
reduced demand for our products
Lower credit standards by lenders several years ago, and recent
economic conditions have caused an increase in the number of manufactured homes
repossessed by lenders. Repossessed homes are resold by lenders, often at
substantially reduced prices, which reduces the demand for new manufactured
homes. Continued, or increased, levels of repossessions could cause
manufacturers to reduce production of new manufactured homes, resulting in
reduced demand for our products.
Business cycles may cause substantial fluctuations in our operating
results
Both the manufactured housing and recreational vehicle industries
are impacted by business cycles and this may cause substantial fluctuations in
our operating results. Business cycles may
67
depend upon general economic conditions, interest rates, consumer confidence,
demographic changes, and other factors beyond Drew's control.
Changes in zoning regulations for manufactured homes could lead to reduced
demand for our products
Manufactured housing communities and individual home placements are
subject to local zoning regulations. In the past, there has been resistance by
local property owners to zoning ordinances allowing the location of manufactured
homes in areas comprised of conventional residences. Continued resistance to
these zoning ordinances could have an adverse impact on sales of manufactured
homes, which could reduce demand for our products.
Gasoline shortages, or higher prices for gasoline could lead to reduced
demand for our products
Increases in the price of gasoline, or anticipation of potential
fuel shortages, adversely effect consumer demand for recreational vehicles,
which could reduce demand for our products.
The financial condition of several of our significant customers could
adversely impact our financial condition and operating results
The financial condition of several of our significant customers has
been adversely impacted by a decline in production in the manufactured housing
industry. Continued or increased financial difficulties of our significant
customers could result in reduced demand for our products and losses due to the
inability to collect accounts receivable.
Company-specific risk factors
Competitive pressures could reduce demand for our products
We have several competitors. Competitors may lower prices or develop
product improvements which could reduce demand for our products.
Increases in raw material costs could adversely impact our financial
condition and operating results
Drew's primary raw materials are steel, aluminum, vinyl, glass and
ABS resin. Costs of these raw materials fluctuate. Because competition may limit
the amount of increases in raw material costs that can be passed through to
customers in the form of price increases, this could adversely impact our
financial condition and operating results.
Increases in labor rates or the availability of labor could adversely
impact our financial condition and operating results
Certain geographic regions in which Drew has manufacturing
facilities have very low unemployment rates. This could result in shortages of
qualified employees and increased labor costs. Because competition may limit the
amount of labor increases that can be passed through to customers in the form of
price increases, increased labor costs could adversely impact our financial
condition and operating results.
78
USE OF PROCEEDS
The selling stockholder will receive all of the proceeds from the sale of
the Drew common stock offered by this prospectus. Drew will not receive any of
the proceeds from the sale of the shares by the selling stockholder.
89
DESCRIPTION OF COMMON STOCK
Drew's authorized capital stock is 20,000,000 shares of common stock,
$0.01 par value. At August 23, 2002, 9,827,363 shares of common stock were
outstanding. In addition to the summary of our common stock that follows, we
encourage you to review our Restated Certificate of Incorporation, as amended,
and Bylaws, which we have filed with the SEC.
Holders of our common stock are entitled to one vote for each share held
of record on all matters on which stockholders are generally entitled to vote.
The vote of the holders of a majority of the stock represented at a meeting at
which a quorum is present is generally required to take stockholder action,
unless a greater vote is required by law. Directors are elected by a plurality
of the votes cast at any election and there is no cumulative voting of shares.
Holders of common stock have no preemptive rights. Subject to applicable
laws, holders of common stock are entitled to such dividends as may be declared
by our board of directors. The common stock is not entitled to any sinking fund,
redemption or conversion provisions. Upon our dissolution, liquidation or
winding up, the holders of our common stock are entitled to share ratably in our
net assets remaining after the payment of all creditors. The outstanding shares
of common stock are duly authorized, validly issued, fully paid and
nonassessable.
910
SELLING STOCKHOLDER
The following table sets forth the selling stockholder's name, number
of shares beneficially owned and percent of outstanding shares.shares as of August 23,
2002.
Number of Shares
Number of Shares Percent of Registered for Sale
Name of Selling Stockholder Beneficially Owned Outstanding Shares Hereby (1)
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L. Douglas Lippert 2,028,434 (2) 18.8% (3) 850,000 (4)
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(1) This prospectus will also cover any additional shares of common stock
which become issuable in connection with the shares registered for sale hereby
by reason of any stock dividend, stock split, merger, consolidation,
recapitalization or other similar transaction effected without the receipt of
consideration that results in an increase in the number of outstanding shares of
common stock.
(2) Includes 574,119 shares held by Mr. Lippert as Trustee for trusts for
the benefit of members of Mr. Lippert's immediate family, over which Mr. Lippert
has sole voting and dispositive power. Although Mr. Lippert disclaims any
pecuniary interest in such shares, 230,000 of such shares are offered under this
prospectus on behalf of the beneficiaries of two of such trusts. Pursuant to
Rules 13-1(f)(1)-(2) of Regulation 13-D of the General Rules and Regulations
under the Exchange Act, on October 17, 1997, Mr. Lippert, together with certain
other persons, jointly filed a single Schedule 13-D Statement (as amended) with
respect to the securities listed in the foregoing table. Such persons made the
single, joint filing because they may be deemed to constitute a "group" within
the meaning of Section 13(d)(3) of the Exchange Act, although neither the fact
of the filing nor anything contained therein shall be deemed to be an admission
by such persons that a group exists. In November 1999, Mr. Lippert was granted
an option pursuant to Drew's Stock Option Plan to purchase 50,000 shares of
Common Stock at $9.3125 per share. Although no part of such option has been
exercised, all shares subject to such option are included in the above table as
beneficially owned.
(3) 10.9% following completion of this offering.
(4) Includes 230,000 shares offered on behalf of the beneficiaries of two
trusts for the benefit of members of Mr. Lippert's family, of which Mr. Lippert
is Trustee. Mr. Lippert disclaims any pecuniary interest in the proceeds from
the sale of such shares.
Mr. Lippert has been a director of Drew since 1997. He has been President
and Chief Executive Officer of Lippert Components Inc., a Drew subsidiary, since
1997. Mr. Lippert acquired the shares that he is offering under this prospectus
from us in 1997 as part of the purchase price for our acquisition of Lippert
Components, Inc.
We prepared this table based on the information supplied to us by the
selling stockholder, and we have not sought to verify such information.
Because the selling stockholder may offer all or some of his shares of
Drew common stock from time to time, we cannot estimate the number of shares of
Drew common stock that will be held by the selling stockholder upon the
termination of any particular offering by such selling stockholder. See "Plan of
Distribution."
1011
PLAN OF DISTRIBUTION
The selling stockholder intends to distribute the shares of Drew common
stock from time to time only as follows (if at all):
o to or through underwriters, brokers or dealers;
o directly in privately negotiated transactions to one or more other
purchasers;
o through agents on a best-efforts basis; or
o otherwise through a combination of any such methods of sale.
If the selling stockholder sells the shares of Drew common stock through
underwriters, dealers, brokers or agents, such underwriters, dealers, brokers or
agents may receive compensation in the form of discounts, concessions or
commissions from the selling stockholder and/or the purchasers of the shares of
Drew common stock.
The shares of Drew common stock may be sold from time to time:
o in one or more transactions at a fixed price or prices, which may be
changed;
o at market prices prevailing at the time of sale;
o at prices related to such prevailing market prices;
o at varying prices determined at the time of sale; or
o at negotiated prices.
Such sales may be effected in transactions:
o on any national securities exchange or quotation service on which
Drew common stock may be listed or quoted at the time of sale;
o in the over-the-counter market;
o in block transactions in which the broker or dealer so engaged will
attempt to sell the shares of Drew common stock as agent but may
position and resell a portion of the block as principal to
facilitate the transaction, or in crosses, in which the same broker
acts as an agent on both sides of the trade;
o in transactions otherwise than on such exchanges or services or in
the over-the-counter market;
o through the writing of options; or
o through other types of transactions.
In connection with sales of the Drew common stock or otherwise, the
selling stockholder may enter into hedging transactions with brokers-dealers or
others, which may in turn engage in short sales of
1112
the Drew common stock in the course of hedging the positions they assume. The
selling stockholder may loan or pledge Drew common stock to brokers-dealers or
others that in turn may sell such securities. The selling stockholder may pledge
or grant a security interest in some or all of the Drew common stock owned by
him and, if he defaults in the performance of his secured obligations, the
pledgees or secured parties may offer and sell the Drew common stock from time
to time pursuant to this prospectus. The selling stockholder also may transfer
and donate shares of Drew common stock in other circumstances, in which case the
transferees, donees, pledgees or other successors in interest will be the
selling stockholder for purposes of the prospectus. In addition, any shares of
Drew common stock covered by this prospectus that qualify for sale pursuant to
Rule 144, Rule 144A or any other available exemption from registration under the
Securities Act may be sold under Rule 144, Rule 144A or such other available
exemption.
At the time a particular offering of shares of Drew common stock is made,
a prospectus supplement, if required, will be distributed, which will set forth
the number of shares of Drew common stock being offered and the terms of the
offering, including the name or names of any underwriters, dealers, brokers or
agents, if any, and any discounts, commissions or concessions allowed or
reallowed to be paid to brokers or dealers.
The selling stockholder and any underwriters, dealers, brokers or agents
who participate in the distribution of the shares of Drew common stock may be
deemed to be "underwriters" within the meaning of the Securities Act, and any
profits on the sale of the shares of Drew common stock by them and any
discounts, commissions or concessions received by any such underwriters,
dealers, brokers or agents may be deemed to be underwriting discounts and
commissions under the Securities Act.
Without limiting the generality of the foregoing, the selling stockholder
has advised us that he has entered into an arrangement with Jones & Associates,
Inc. ("Jones"), an NASD registered broker-dealer, to place the shares, on a best
efforts basis, in one or more block transaction in which Jones would receive its
usual and customary commission of five cents per share. Jones may be deemed to
be an "underwriter" in connection with such transactions and the commissions
that it receives may be deemed to be underwriting discounts and commissions
under the Securities Act.
The selling stockholder and any other person participating in such
distribution will be subject to applicable provisions of the Exchange Act and
the rules and regulations thereunder, including, without limitation, Regulation
M, which may limit the timing of purchases and sales of the shares of Drew
common stock by the selling stockholder and any other such person. Furthermore,
Regulation M under the Exchange Act may restrict the ability of any person
engaged in a distribution of the shares of Drew common stock to engage in
market-making activities with respect to the shares of Drew common stock being
distributed for a period of up to five business days prior to the commencement
of such distribution. All of the foregoing may affect the marketability of the
shares of Drew common stock and the ability of any person or entity to engage in
market-making activities with respect to the shares of Drew common stock.
Drew will pay all expenses of the shelf registration statement, except
that the selling stockholder will pay any broker's commission, agency fee or
underwriter's discount or commission.
VALIDITY OF SECURITIES
The validity of the securities offered by this prospectus will be passed
upon by Phillips Nizer LLP, New York, New York. As of the date hereof, Harvey F.
Milman, a partner of Phillips Nizer LLP, beneficially owned 26,900 shares of
Drew common stock.
13
EXPERTS
The consolidated financial statements and financial statement schedule of
Drew as of December 31, 2001 and 2000, and for each of the years in the
three-year period ended December 31, 2001, have been incorporated by reference
in this prospectus in reliance upon the report of KPMG LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
12
PROSPECTUS
You may rely on the information contained in this prospectus. Drew has not
authorized anyone to provide information different from that contained in this
prospectus. Neither the delivery of this prospectus nor sale of ordinary shares
means that information contained in this prospectus is correct after the date of
this prospectus. This prospectus is not an offer to sell or a solicitation of an
offer to buy these ordinary shares in any circumstances under which the offer or
solicitation is unlawful.
________, 2002
1314
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses payable by us in
connection with the registration of the offering of the shares. All amounts
shown are estimates except for the SEC registration fee. The selling stockholder
will pay all costs and expenses of selling its shares, including all
underwriting discounts and selling commissions, all fees and disbursements of
its counsel and all "road show" and other marketing expenses incurred by the
registrant or any underwriters which are not otherwise paid by such
underwriters.
SEC Registration
Fee....................Fee.................................. $ 1,248.07
Accounting Fees and Expenses............Expenses......... 10,000.00
Legal Fees and
Expenses.................Expenses............................. 5,000.00
Miscellaneous
Expenses..................Expenses............................. 12,000.00
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Total...................................Total................................ $28,248.07
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law empowers a domestic
corporation to indemnify any of its officers, directors, employees or agents
against expenses, including reasonable attorney's fees, judgments, fines and
amounts paid in settlement which were actually and reasonably incurred by such
person in connection with any action, suit or similar proceeding brought against
them because of their status as officers, directors, employees or agents of the
registrant if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
registrant and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the subject conduct was unlawful. If the claim was
brought against any such person by or in the right of the registrant, the
registrant may indemnify such person for such expenses if such person acted in
good faith and in a manner reasonably believed by such person to be in or not
opposed to the best interests of the registrant, except no indemnity shall be
paid if such person shall be adjudged to be liable for negligence or misconduct
unless a court of competent jurisdiction, upon application, nevertheless permits
such indemnity (to all or part of such expenses) in view of all the
circumstances.
The registrant's Restated Certificate of Incorporation, as amended,
provides that the registrant may indemnify its officers, directors, employees or
agents to the full extent permitted by Section 145 of the Delaware General
Corporation Law. In addition, the Restated Certificate of Incorporation, as
amended, provides that no director of the registrant shall be liable to the
registrant or its stockholders for monetary damages for breach of fiduciary duty
as a director, except for liability (i) for any breach of the director's duty of
loyalty to the registrant or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
registrant, pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
II-1
ITEM 16. EXHIBITS
EXHIBIT NO. DESCRIPTION
- --------------------- -----------
5.1* Opinion of Phillips Nizer, LLP
23.1* Consent of KPMG LLP
23.2* Consent of Phillips Nizer LLP (included in opinion filed as
Exhibit 5.1).
24.1* Power of Attorney (included in signature page).
- ---------------
*Filed herewith.----------
* Previously filed.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective amendment to
this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of 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 this 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 forth in the "Calculation of
Registration Fee" table in this registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that the undertaking set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, each such post-effective amendment
shall be deemed to be a new registration
II-2
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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as
amended, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
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 Act and will be governed by the final
adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of White Plains, State of New York, on August 27,September 6,
2002.
DREW INDUSTRIES INCORPORATED
By /s/ Leigh J. Abrams
------------------------------------------------------------------------
Leigh J. Abrams, President
i
POWER OF ATTORNEY
Each person whose signature appears below appoints Leigh J. Abrams and
Fredric M. Zinn and each of them, any of whom may act without the joinder of the
other, as his or her true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) of and supplements to this Registration
Statement on Form S-3, and to file the same, with all exhibits thereto, and all
other documents in connection, therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done, as fully to all intents and purposes as he might or would do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agents or any of them or their or his or her substitute and substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Leigh J. Abrams Director, President and September 6, 2002
----------------------------- Chief Executive August 27, 2002
------------------------------------------ Officer
Leigh J. Abrams (Principal Executive Officer)
Leigh J. Abrams
/s/ Fredric M. Zinn Executive Vice President and Chief August 27,September 6, 2002
----------------------------------------------------------------------- Chief Financial Officer
(Principal Financial
Fredric M. Zinn (Principal Financial
and Accounting Officer)
/s/ Edward W. Rose, IIIIII* Chairman of the Board August 27,September 6, 2002
----------------------------------------------------------------------- And Director
Edward W. Rose, III
/s/ David L. Webster August 27, 2002
------------------------------------------Webster*
-----------------------------
David L. Webster Director September 6, 2002
/s/ L. Douglas Lippert August 27, 2002
------------------------------------------Lippert*
-----------------------------
L. Douglas Lippert Director September 6, 2002
/s/ James F. Gero August 27, 2002
------------------------------------------Gero*
-----------------------------
James F. Gero Director September 6, 2002
/s/ Gene H. Bishop August 27, 2002
------------------------------------------Bishop*
-----------------------------
Gene H. Bishop Director September 6, 2002
/s/ Frederick B. Hegi, Jr. August 27, 2002
------------------------------------------*
-----------------------------
Frederick B. Hegi, Jr. Director September 6, 2002
*/s/ Fredric M. Zinn
-----------------------------
Fredric M. Zinn
Attorney-in-fact
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- --------------------- -----------
5.1 Opinion of Phillips Nizer, LLP
23.1 Consent of KPMG LLP
23.2 Consent of Phillips Nizer LLP (included in opinion filed as
Exhibit 5.1).
24.1 Power of Attorney (included in signature page).
iii