As filed with the Securities and Exchange Commission on December 1, 2003
Registration No. 333 - 110631
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------
DREW INDUSTRIES INCORPORATED
(Exact name of registrant as specified in charter)
Delaware 13-3250533
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) 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)
----------
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)
----------
With a copy to:
Harvey F. Milman, Esq.
Phillips Nizer LLP
666 Fifth Avenue
New York, New York 10103
(212) 977-9700
----------
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]
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
Title of Each Class of Securities Proposed Maximum Offering Price Per Amount of Aggregate
to be Registered Amount to be Registered Unit (1)(2) Offering Price (1)(2)
- -------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value
per share 565,000 $25.385 $14,342,525
- -------------------------------------------------------------------------------------------------------
(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 November 14, 2003, as prescribed by Rule 457(c).
----------
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 stockholders 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.
Subject to Completion - Dated December 1, 2003
PROSPECTUS
565,000 SHARES
DREW INDUSTRIES INCORPORATED
COMMON STOCK
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission (the "SEC") utilizing a "shelf" registration
process. Under this shelf process, the selling stockholders may sell from time
to time up to an aggregate of 565,000 shares of common stock of Drew Industries
Incorporated, a Delaware corporation.
The selling stockholders may sell all or any portion of their shares of
common stock in one or more transactions on the American Stock Exchange or in
private, negotiated transactions. The selling stockholders will determine the
prices at which they sell their shares. Drew will not receive any of the
proceeds from the sale of the shares by the selling stockholders. The selling
stockholders will pay, or reimburse Drew for, all registration expenses, and
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 November 28, 2003, the last reported sale price of the common stock on
the American Stock Exchange was $26.94 per share.
THIS INVESTMENT INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING ON PAGE 7.
The shares of Drew common stock may be offered by the selling stockholders
in negotiated transactions or otherwise at market prices prevailing at the time
of sale or at negotiated prices. The selling stockholders may be deemed to be
"underwriters" as defined in the Securities Act of 1933, as amended (the
"Securities Act"). If any broker-dealers are used by the selling stockholders,
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 stockholders may be deemed to be underwriting commissions.
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.
----------
Neither 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 ____________________, 2003.
TABLE OF CONTENTS
Page
Where You Can Find More Information............................................3
Special Note Regarding Forward-Looking Statements..............................5
The Company....................................................................6
Risk Factors...................................................................7
Use Of Proceeds................................................................9
Description Of Common Stock...................................................10
Selling Stockholders..........................................................11
Plan Of Distribution..........................................................13
Validity Of Securities........................................................14
Experts.......................................................................15
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 its
consolidated subsidiaries.
2
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 (SEC File No. 001-13646) with the SEC:
o Annual Report on Form 10-K for the fiscal year ended December 31,
2002, filed with the SEC on March 28, 2003;
o Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
2003, filed with the SEC on May 9, 2003;
o Quarterly Report on Form 10-Q for the fiscal quarter ended June 30,
2003, filed with the SEC on August 12, 2003;
o Quarterly Report on Form 10-Q for the fiscal quarter ended September
30, 2003, filed with the SEC on November 10, 2003;
o Current Report on Form 8-K announcing the time of the Company's
conference call and webcast to announce Year-End and Fourth Quarter
results for 2002, filed with the SEC on February 5, 2003;
o Current Report on Form 8-K announcing Year-End and Fourth Quarter
results for 2002, filed with the SEC on February 11, 2003;
o Current Report on Form 8-K announcing results for the First Quarter
of 2003, filed with the SEC on April 24, 2003;
o Current Report on Form 8-K announcing the election of David A. Reed
as a director of Drew Industries Incorporated, filed with the SEC on
May 5, 2003;
o Current Report on Form 8-K announcing a presentation at the Red Chip
Partners San Francisco Investors Conference 2003, filed with the SEC
on June 3, 2003;
o Current Report on Form 8-K announcing high marks for corporate
governance policies from one of the nation's leading governance
advocates, filed with the SEC on July 14, 2003;
3
o Current Report on Form 8-K announcing the time of the Company's
conference call and webcast to announce Six-Month and Second Quarter
2003 results, and the acquisition of LTM Manufacturing, LLC, filed
with the SEC on July 21, 2003;
o Current Report on Form 8-K announcing results for the Second Quarter
of 2003, filed with the SEC on July 24, 2003;
o Current Report on Form 8-K announcing the Company's receipt of "The
People's Choice Award," filed with the SEC on October 2, 2003;
o Current Report on Form 8-K announcing acquisition of ET&T Frames,
Inc., filed with the SEC on October 7, 2003;
o Current Report on Form 8-K announcing the time of the Company's
conference call and webcast to announce Nine-Month and Third Quarter
results, filed with the SEC on October 20, 2003;
o Current Report on Form 8-K announcing results for Third Quarter of
2003, filed with the SEC on October 27, 2003; and
o Current Report on Form 8-K announcing that the Company filed an
application to transfer its stock listing to the New York Stock
Exchange from the American Stock Exchange, filed with the SEC on
November 24, 2003.
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:
Joseph S. Giordano III, Treasurer
Drew Industries Incorporated
200 Mamaroneck Avenue
White Plains, New York 10601
(914) 428-9098
4
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 recreational vehicles and manufactured
homes;
o pricing pressures due to competition;
o raw material costs, particularly vinyl, aluminum, steel, glass, and
ABS resin;
o availability of retail and wholesale financing for manufactured
homes;
o availability and costs of labor;
o inventory levels of retailers and manufacturers;
o levels of repossessed homes;
o interest rates;
o the effect of adverse weather conditions on retail sales; and
o the financial condition of our customers.
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.
5
THE COMPANY
We were incorporated under the laws of Delaware on March 20, 1984, and we
are the successor to Drew National Corporation, which was incorporated under the
laws of Delaware in 1962. Our Company's principal executive and administrative
offices are located at 200 Mamaroneck Avenue, White Plains, New York 10601;
telephone number (914) 428-9098. Our Common Stock 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.
Our wholly-owned active subsidiaries are Kinro, Inc. and its subsidiaries
("Kinro") and Lippert Components, Inc. and its subsidiaries ("LCI"). Through our
wholly-owned subsidiaries, we supply a broad array of components for
recreational vehicles and manufactured homes.
We have two reportable operating segments, the recreational vehicle
products segment (the "RV segment") and the manufactured housing products
segment (the "MH segment"). The RV segment, which accounted for 62 percent of
our consolidated net sales for the nine months ended September 30, 2003 and 53
percent of our annual consolidated net sales for 2002, manufactures a variety of
products used in the production of recreational vehicles, including windows,
doors, chassis, chassis parts, and chassis slide out mechanisms and related
power units. The MH segment, which accounted for 38 percent of our consolidated
net sales for the nine months ended September 30, 2003 and 47 percent of our
annual consolidated net sales for 2002, manufactures a variety of components
used in the construction of manufactured homes, and to a lesser extent, modular
housing and office units, including vinyl and aluminum windows and screens,
chassis, chassis parts and thermo-formed bath and shower units. Several of our
customers produce both manufactured homes and recreational vehicles, and we
supply products having similar characteristics for use in both these lines of
business. We currently operate 41 manufacturing facilities located throughout
the United States and one in Canada.
We have approximately 3,000 employees. Our manufactured housing products
are sold by 15 sales personnel, working exclusively for us, to major builders of
manufactured homes, and our recreational vehicles products are sold by 5 sales
personnel, working exclusively for us, to major manufacturers of recreational
vehicles.
Recent Event
On November 24, 2003, we filed an application to transfer our stock
listing to the New York Stock Exchange ("NYSE") from the American Stock Exchange
("AMEX"). We expect to begin trading on the NYSE under the stock ticker symbol
"DW" on December 11, 2003. Concurrent with the NYSE listing, our shares will be
withdrawn from the AMEX. Our stock will continue to trade on the AMEX until the
transfer date.
We believe that our listing on the NYSE will allow us greater exposure to
the investment community, while also providing a more liquid trading environment
for our stockholders.
6
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
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 depend upon general economic
conditions, interest rates, consumer confidence, demographic changes, and other
factors beyond our control.
7
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
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
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
Our primary raw materials are vinyl, aluminum, steel, 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 we have 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
8
the form of price increases, increased labor costs could adversely impact our
financial condition and operating results.
USE OF PROCEEDS
The selling stockholders will receive all of the proceeds from the sale of
the shares of Drew common stock offered by this prospectus. We will not receive
any of the proceeds from the sale of the shares by the selling stockholders.
9
DESCRIPTION OF COMMON STOCK
Our authorized capital stock is 20,000,000 shares of common stock, $0.01
par value. At November 28, 2003, 10,176,803 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 stockholders 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.
10
SELLING STOCKHOLDERS
The following table sets forth the selling stockholders' name, number of
shares beneficially owned (including options) and percent of outstanding shares
as of November 28, 2003.
Beneficial Ownership Estimated Beneficial
Prior to Offering Ownership After Offering
-------------------------- -------------------------
Percent of Number of Percent of
Name of Selling Number of Outstanding Shares Number of Outstanding
Stockholder Shares Shares Offered(1) Shares Shares
- --------------- ------------ ----------- ---------- --------- -----------
L. Douglas
Lippert (2) 1,225,163(3) 11.9% 500,000(4) 725,163 7.0%
David L
Webster (5)(6) 272,840(7) 2.6% 50,000 222,840 2.2%
Harvey F
Milman (5)(8)(9) 18,900 0.2% 15,000 3,900 --
- ----------
(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) Mr. Lippert was President and Chief Executive Officer of Lippert
Components Inc., a subsidiary of our Company, from 1997 to February 5, 2003, and
has been a director of our Company since 1997. On February 5, 2003, Jason D.
Lippert was appointed President and Chief Executive Officer of Lippert
Components, Inc. and L. Douglas Lippert continues as Chairman. 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.
(3) Includes 384,848 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, 100,000 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 common stock 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 membership in the
"group" is disclaimed and 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 and November 2003, Mr. Lippert was granted options
pursuant to our Stock Option Plan to purchase, respectively, 50,000 shares of
Common Stock at $9.3125 per share and 5,000 shares of
11
Common Stock at $25.56 per share. Although no part of such options has been
exercised, all shares subject to such options are included in the above table as
beneficially owned.
(4) Includes 100,000 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.
(5) Pursuant to Rules 13-1 (f)(1)-(2) of Regulation 13-D of the General
Rules and Regulations under the Securities Exchange Act, on May 31, 1989, the
persons indicated, together with certain other persons, jointly filed a single
Schedule 13-D Statement (as amended) with respect to the common stock 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 membership in a "group" is disclaimed and neither the
fact of the filing nor anything contained therein shall be deemed to be an
admission by such persons that a "group" exists.
(6) Mr. Webster is Chairman, President and Chief Executive Officer of
Kinro, Inc., a subsidiary of our Company, and has been a Director of our Company
since 1984.
(7) In November 1999 and November 2003, Mr. Webster was granted options
pursuant to our Stock Option Plan to purchase, respectively, 50,000 shares of
Common Stock at $9.3125 per share and 15,000 shares of Common Stock at $25.56
per share. Although no part of such options has been exercised, all shares
subject to such option are included in the above table as beneficially owned.
(8) Mr. Milman is a partner of Phillips Nizer LLP and has served as our
Company's general counsel and assistant secretary since 1969. Phillips Nizer LLP
will pass upon the validity of our Company's common stock offered by this
prospectus.
(9) These shares were purchased in 1997 in a private transaction. A
portion of the proceeds received by Mr. Milman from the sale of these shares
will be used to pay all principal and interest due under a promissory note given
by Mr. Milman to Edward W. Rose, III, Chairman of our Board of Directors, who
made a loan to Mr. Milman in an amount equal to the purchase price for the
shares. The balance of the proceeds will be retained by Mr. Milman.
We prepared this table based on the information supplied to us by the
selling stockholders, and we have not sought to verify such information. Because
the selling stockholders may offer all or some of their shares of Drew common
stock from time to time, we can only estimate the number of shares of Drew
common stock that will be held by the selling stockholders upon the termination
of any particular offering by each such selling stockholder by assuming that all
the shares offered under this prospectus are sold. See "Plan of Distribution."
12
PLAN OF DISTRIBUTION
The selling stockholders intend 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 stockholders sell 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 stockholders 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 transactions, 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, any
selling stockholder may enter into hedging transactions with broker-dealers or
others, which may in turn engage in short sales of
13
the Drew common stock in the course of hedging the positions they assume. Any
selling stockholder may loan or pledge Drew common stock to broker-dealers or
others that in turn may sell such securities. Any 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. Any 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 stockholders 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 stockholders 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 stockholders
have advised us that they have 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 transactions 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 stockholders 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 stockholders 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.
The selling stockholders will pay all expenses of this shelf registration
statement, including 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 and our general counsel and assistant
secretary since 1969, beneficially owns 18,900 shares of Drew common stock, and
is offering 15,000 of his shares for sale under this prospectus.
14
EXPERTS
The consolidated financial statements and financial statement schedule of
Drew as of December 31, 2002 and 2001, and for each of the years in the
three-year period ended December 31, 2002, have been incorporated by reference
herein in reliance upon the report of KPMG LLP, independent accountants,
incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing. The report of KPMG LLP refers to Drew's adoption of
SFAS No. 142, "Goodwill and Other Intangible Assets" as of January 1, 2002.
PROSPECTUS
You may rely on the information contained in this prospectus. We have 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.
______________, 2003
15
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 in
connection with the registration of the offering of the shares. All amounts
shown are estimates except for the SEC registration fee. The selling
stockholders will pay all costs and expenses of registration and selling the
shares, including all underwriting discounts and selling commissions, all fees
and disbursements of its counsel and registrant's 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 .......................... $ 1,161
Accounting Fees and Expenses .................. 10,000
Legal Fees and Expenses ....................... 5,000
Miscellaneous Expenses ........................ 10,000
-------
Total ......................................... $26,161
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).
- ----------
* 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 December 1, 2003.
DREW INDUSTRIES INCORPORATED
By /s/ Leigh J. Abrams
----------------------------------
Leigh J. Abrams, President and
Chief Executive Officer
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 Chief Executive December 1, 2003
----------------------------------- Officer (Principal Executive Officer)
Leigh J. Abrams
/s/ Fredric M. Zinn Executive Vice President and Chief December 1, 2003
----------------------------------- Financial Officer (Principal
Fredric M. Zinn Financial and Accounting Officer)
/s/ Edward W. Rose, III* Chairman of the Board December 1, 2003
----------------------------------- and Director
Edward W. Rose, III
/s/ David L. Webster* Director December 1, 2003
-----------------------------------
David L. Webster
/s/ L. Douglas Lippert* Director December 1, 2003
-----------------------------------
L. Douglas Lippert
/s/ James F. Gero* Director December 1, 2003
-----------------------------------
James F. Gero
/s/ Gene H. Bishop* Director December 1, 2003
-----------------------------------
Gene H. Bishop
/s/ Frederick B. Hegi, Jr.* Director December 1, 2003
-----------------------------------
Frederick B. Hegi, Jr.
/s/ David A. Reed* Director December 1, 2003
-----------------------------------
David A. Reed
/s/ *Leigh J. Abrams
-----------------------------------
Leigh J. Abrams
Attorney-in-fact
ii
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