================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------------
Schedule 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(d)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 7)
---------------------
DANA CORPORATION
(Name of Subject Company)
---------------------
DANA CORPORATION
(Name of Person(s) Filing Statement)
Common Stock, Par Value $1.00 Per Share
(including the Associated Series A Junior
Participating Preferred Stock Purchase Rights)
(Title of Class of Securities)
235811 10 6
(CUSIP Number of Class of Securities)
---------------------
Michael L. DeBacker, Esq.
Vice President, General Counsel and Secretary
Dana Corporation
4500 Dorr Street
Toledo, Ohio 43615
(419) 535-4500
(Name, Address and Telephone Number of Person Authorized to Receive Notice and
Communications on Behalf of the Person(s) Filing Statement)
---------------------
With copies to:
Adam O. Emmerich, Esq.
David C. Karp, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
(212) 403-1000
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
The purpose of this amendment is to amend and supplement Items
8 and 9 in the Solicitation/ Recommendation Statement on Schedule 14D-9
previously filed by Dana Corporation, a Virginia corporation, on July 22, 2003,
as thereafter amended, and to add additional Exhibits and revise the Exhibit
Index accordingly.
Item 8. Additional Information to be Furnished.
--------------------------------------
Item 8 is hereby amended by adding the following paragraphs to
the end of such Section:
Arvin Meritor and the Offeror were granted leave to amend their
complaint in the State Action by order of the court dated as of August
4, 2003.
On August 1, 2003, the United States District Court for the Western
District of Virginia dismissed without prejudice pursuant to the
plaintiff's request for voluntary dismissal the purported derivative
action purportedly filed by Roger Ryan, on behalf of himself and all
others similarly situated. A copy of the court order is attached hereto
as Exhibit (a)(15) and is hereby incorporated herein by reference. The
foregoing description is qualified in its entirety by reference to
Exhibit (a)(15).
On August 14, 2003, the Company initiated an action in the Court of
Common Pleas of Lucas County, Ohio, against ArvinMeritor, Inc. and
Delta Acquisition Corp. A copy of the Company's complaint is attached
hereto as Exhibit (a)(16) and is hereby incorporated herein by
reference. The foregoing description is qualified in its entirety by
reference to Exhibit (a)(16).
Item 9. Exhibits.
--------
Exhibit No. Description
- ------------- -------------------------------------------------------------
(a) (15) Order of the United States District Court for the Western
District of Virginia, dated August 1, 2003, dismissing action
purportedly filed by Roger Ryan, on behalf of himself and all
others similarly situated, on July 15, 2003
(a) (16) Complaint filed by Dana Corporation on August 14, 2003 in the
Court of Common Pleas of Lucas County, Ohio
(a) (17) Information posted on the Dana Corporation website on
August 14, 2003 regarding a telephone number for inquiries
about the Offer
SIGNATURE
After due inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete and
correct.
DANA CORPORATION
By: /s/ Joseph M. Magliochetti
------------------------------
Joseph M. Magliochetti
Chairman of the Board and
Chief Executive Officer
Dated: August 15, 2003
-2-
INDEX OF EXHIBITS
Exhibit No. Description
- ------------ -------------------------------------------------------------
(a) (15) Order of the United States District Court for the Western
District of Virginia, dated August 1, 2003, dismissing action
purportedly filed by Roger Ryan, on behalf of himself and all
others similarly situated, on July 15, 2003
(a) (16) Complaint filed by Dana Corporation on August 14, 2003 in the
Court of Common Pleas of Lucas County, Ohio
(a) (17) Information posted on the Dana Corporation website on
August 14, 2003 regarding a telephone number for inquiries
about the Offer
-3-
Exhibit (a)(15)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Lynchburg Division
- -----------------------------------------x
:
ROGER RYAN, On Behalf of Himself And :
All others Similarly Situated, :
:
Plaintiff, :
:
vs. : C.A. No. 6:03cv00051
DANA CORPORATION; BENJAMIN F. : ORDER GRANTING DISMISSAL
BAILAR; A. CHARLES BAILLIE; :
EDMUND M. CARPENTER; ERIC :
CLARK; CHERYL W. GRISE; GLEN H. HINER; :
JAMES P. KELLY; JOSEPH M. MAGLOICHETTI; :
MARILYN R. MARKS; RICHARD B. PRIORY; and :
FERNANDO M. SENEROS, :
:
Defendants. :
:
:
- -----------------------------------------x
ORDER GRANTING DISMISSAL
------------------------
IT IS HEREBY ORDERED AND DECREED, this 1st day of August, 2003, that the
above captioned matter is dismissed without prejudice pursuant to the
plaintiff's request for voluntary dismissal pursuant to Rule 41(a)(2) of the
Federal Rules of Civil Procedure.
/s/ Norma I. Moon
------------------------------
United States District Judge
Exhibit (a)(16)
IN THE COURT OF COMMON PLEAS
LUCAS COUNTY, OHIO
DANA CORPORATION, ) Civil Action No.
a Virginia corporation
4500 Dorr Street ) JUDGE _________________
Toledo, Ohio 43615
Plaintiff, )
COMPLAINT WITH JURY
v. ) DEMAND ENDORSED HEREON
ARVINMERITOR, INC., ) Cary Rodman Cooper (0013062)
an Indiana corporation Richard S. Walinski (0013054)
2135 West Maple Road ) Joseph P. Thacker (13039)
Troy, Michigan 48084 COOPER & WALINSKI L.P.A.
) 900 Adams Street
And Toledo, Ohio 43624
) Phone: (419) 241-1200
DELTA ACQUISITION CORP. Fax: (419) 242-5675
a Virginia corporation )
2135 West Maple Road WACHTELL, LIPTON, ROSEN & KATZ
Troy, Michigan 48084 ) 51 West 52nd Street
New York, New York 10019
Defendants. ) Phone: (212) 403-1000
Fax: (212) 403-2000
Attorneys for Plaintiff
* * * * * *
NATURE OF THE ACTION
1. This action arises out of ArvinMeritor's unlawful scheme to commence and
pursue a hostile takeover attempt of Dana at an inadequate price through the use
of confidential information about Dana. This information consists of non-public,
highly valuable data about Dana's financial condition, business operations, and
future plans and prospects. ArvinMeritor has used this information in violation
of explicit contractual commitments that it made to Dana in 2001 when the two
companies pursued a joint venture arrangement. This misuse of information is not
only a violation of express contractual provisions and the common law, but also
violates all notions of business ethics and fair dealing.
2. Founded in 1904 and headquartered in Toledo, Ohio, Dana is one of the
world's largest automotive supply companies. Dana supplies automotive
components, modules, and systems to a wide variety of vehicle manufacturers and
their related aftermarkets.
3. ArvinMeritor is an Indiana company headquartered in Troy, Michigan. On
July 9, 2003, ArvinMeritor, through its wholly owned subsidiary Delta
Acquisition Corp., launched a hostile tender offer against Dana, one of its main
competitors, in an attempt to take control of Dana and to force Dana to merge
with ArvinMeritor. ArvinMeritor has publicly stated that, should it succeed in
its takeover attempt, it will attempt to save money through approximately $200
million in "synergies," or cost savings, likely including layoffs and plant
closings.
2
4. In 2001, ArvinMeritor entered into confidential discussions with Dana
looking toward the possibility of a joint venture with respect to the two
companies' aftermarket businesses. In connection with those discussions,
ArvinMeritor signed a confidentiality agreement that allowed it to use Dana's
confidential information "solely for the purpose of analyzing the feasibility
and desirability of entering into the proposed business relationship." On the
basis of this and other contractual undertakings, Dana provided ArvinMeritor
with substantial confidential information. Through the commencement of its
tender offer on July 9, 2003, ArvinMeritor violated the confidentiality
agreement by, among other things, relying on confidential information that it
had received from Dana in connection with the formulation and pursuit of its
hostile bid.
5. ArvinMeritor's Chairman and Chief Executive Officer Larry Yost admitted
ArvinMeritor's use of this information -- indeed, boasted of it -- in a
conference call with Wall Street analysts on July 8, 2003. Yost told the
analysts that, "[s]tarting in the spring of 2001, we had extensive discussions
with Dana about a transaction that would have combined our respective
aftermarket businesses. [While] those discussions, ultimately, never reached
closure, they convinced us that there was a lot to be gained by combining our
two businesses" (emphasis added). Yost thus sought to convince the analysts of
the credibility of ArvinMeritor's offer by conceding that the information Dana
provided about itself in 2001 -- information provided under strict
confidentiality restrictions -- had been critical in the decision-making process
to proceed with the offer to acquire Dana.
6. As a result of ArvinMeritor's improper actions, which are set forth in
greater detail below, Dana brings this action to enforce the contractual rights
and common law duties that ArvinMeritor owes to Dana and to bar ArvinMeritor
from pursuing an unsolicited tender
3
offer for Dana's shares based on the confidential information that ArvinMeritor
has obtained from Dana.
PARTIES
7. Plaintiff Dana has its headquarters and principal place of business in
Toledo, Lucas County, Ohio, and is incorporated under the laws of Virginia. Dana
is one of the world's largest suppliers of components, modules, and systems to a
wide variety of vehicle manufacturers and their related aftermarkets. Dana
operates hundreds of factories and facilities in over 30 countries and employs
approximately 60,000 people worldwide, approximately 3,000 of them in the State
of Ohio.
8. Defendant ArvinMeritor is an Indiana corporation based in Troy,
Michigan. ArvinMeritor is a global supplier of components, modules, and systems
to vehicle manufacturers and their related aftermarkets. ArvinMeritor is a
direct competitor of Dana's. ArvinMeritor transacts business within Ohio by
reason of its regular business activities, and through its activities connected
with its tender offer, including ArvinMeritor's attempts to initiate a merger
transaction with a company headquartered within Ohio and ArvinMeritor's attempt
to convince Ohio residents who are shareholders of Dana, including residents of
Lucas County, to tender their Dana shares to ArvinMeritor's agent and wholly
owned subsidiary, Delta Acquisition Corp.
9. Defendant Delta Acquisition Corp. ("Delta") is a wholly owned subsidiary
of ArvinMeritor incorporated under the laws of Virginia. According to its public
filings, Delta was formed for the purpose of making the tender offer for Dana
stock and carries on no other business. Delta is the agent of ArvinMeritor in
connection with ArvinMeritor's proposed hostile takeover of Dana. Delta
transacts business within Ohio through its activities
4
connected with its tender offer. These activities include Delta's attempt to
convince Ohio residents who are shareholders of Dana, including residents of
Lucas County, to tender their Dana shares to Delta.
10. ArvinMeritor and Delta are collectively referred to hereafter as "the
ArvinMeritor Entities."
THE 2001 NEGOTIATIONS BETWEEN ARVINMERITOR AND DANA DURING WHICH
ARVINMERITOR WAS PROVIDED WITH CONFIDENTIAL INFORMATION ABOUT DANA
11. In the spring of 2001, ArvinMeritor approached Dana and expressed
interest in pursuing a joint venture combining ArvinMeritor's and Dana's
aftermarket businesses, i.e., the sale of automotive parts and supplies to
companies other than the original vehicle manufacturers, such as NAPA, Autozone,
or Pep Boys. Before entering into any discussions on the subject, Dana wanted to
make sure that information that it provided to ArvinMeritor as part of any
negotiations with respect to ArvinMeritor's proposal would remain confidential,
as would the fact that such negotiations were taking place at all. Dana also
wanted to make sure that ArvinMeritor -- one of Dana's main rivals -- did not
use the confidential information for any purpose other than determining whether
to pursue the joint venture.
12. In order to satisfy these concerns with respect to confidentiality
generally and especially with respect to providing a major business rival access
to sensitive, confidential information, Dana and ArvinMeritor entered into a
confidentiality agreement to govern the exchange of confidential information
that might take place as part of any discussions about ArvinMeritor's proposed
joint venture.
13. On or about March 27, 2001, Dana provided ArvinMeritor with a
confidentiality agreement that Joseph Magliochetti, Dana's Chairman and Chief
Executive
5
Officer, had already executed on behalf of Dana. Larry Yost, ArvinMeritor's
Chairman and Chief Executive Officer, executed the confidentiality agreement
(the "Confidentiality Agreement") on March 30, 2001 on behalf of ArvinMeritor. A
copy of the Confidentiality Agreement is attached hereto as Exhibit A.
14. Under the terms of the Confidentiality Agreement, both Dana and
ArvinMeritor agreed, among other things:
a. "to use the other's Confidential Information solely for the
purpose of analyzing the feasibility and desirability of entering
into the proposed business relationship [i.e., the joint
venture]";
b. "to limit disclosure of such Confidential Information only to
persons [within ArvinMeritor (and to external advisors)] who are
directly involved in such analysis [of the joint venture] and
have agreed to be subject to the terms of [the Confidentiality
Agreement]";
c. "not [to] disclose such Confidential Information to or discuss
the same with any third party (other than [external advisors
directly involved in analysis of the proposed joint venture])
without the express prior written permission of the other"; and
d. unless counsel has opined that disclosure is required by law,
"not [to] disclose to any third party without the other party's
express consent in writing, the fact that the parties [Dana and
ArvinMeritor] are participating in a study or exploration of a
business relationship or the fact that the parties have exchanged
Confidential Information."
15. ArvinMeritor and Dana agreed that the Confidentiality Agreement is to
"be construed in accordance with and governed by the laws of the State of Ohio."
16. For several months after the execution of the Confidentiality
Agreement, ArvinMeritor and Dana, in combination with their respective financial
advisors, conducted extensive negotiations and due diligence concerning a
potential joint venture transaction. As part of these negotiations and the due
diligence -- and pursuant to the Confidentiality Agreement -- Dana provided
ArvinMeritor with substantial non-public information
6
concerning Dana, its financial condition, its business operations, its future
prospects and plans, and its potential liabilities. This non-public information
included, among other things, detailed breakdowns of Dana's finances and
expected future growth. It included non-public information concerning the
business strategies of a number of Dana's important business areas. Dana also
provided ArvinMeritor with confidential information concerning its customer base
- -- which information is of critical importance in the automotive parts supply
business. As part of their discussions concerning the potential joint venture,
the two companies also analyzed, based on confidential information that they had
exchanged, the financial implications of combining certain of the two companies'
operations and businesses.
17. Numerous members of ArvinMeritor's senior management were given access
to this confidential information and were involved in the process of reviewing
and analyzing this material. These members of senior management included
ArvinMeritor's Chief Financial Officer, Controller, General Counsel, Treasurer,
several Senior Vice Presidents, and Director of Corporate Development and
Strategy.
18. After extensive discussions, Dana and ArvinMeritor were unable to reach
an agreement to form a joint venture and, in late summer 2001, the discussions
terminated.
19. As recognized in the Confidentiality Agreement, it was understood and
agreed at all times that ArvinMeritor was being entrusted with confidential
information about Dana solely by reason of its agreement to maintain its
confidentiality and to use it only for the purpose of determining the
feasibility and desirability of the proposed joint venture (and negotiating the
terms of any such joint venture). Moreover, as alleged above, the
Confidentiality Agreement mandated that neither Dana nor ArvinMeritor could
publicly
7
disclose the existence of the negotiations or that the two companies had
exchanged confidential information.
ARVINMERITOR VIOLATES ITS CONFIDENTIALITY AGREEMENT
WITH DANA, AS WELL AS ITS COMMON LAW DUTIES, AND
MAKES A TENDER OFFER BASED ON NON-PUBLIC INFORMATION
20. On June 4, 2003, Larry Yost, Chairman and Chief Executive Officer of
ArvinMeritor, telephoned Dana's Chairman and Chief Executive Officer Joseph
Magliochetti. Yost informed Magliochetti that ArvinMeritor was interested in
purchasing Dana for $14.00 per share in cash. Yost followed up his call the same
day by sending a letter to Magliochetti setting forth ArvinMeritor's proposal.
21. After discussing the proposal with its financial and legal advisors and
after extensive deliberations, Dana's Board of Directors decided that Dana was
not for sale and authorized Magliochetti to report the Board's decision to
ArvinMeritor. Magliochetti did so through a telephone call to Yost. Magliochetti
followed up his phone call to Yost with a letter memorializing Dana's position.
22. On or about June 16, 2003, Yost sent Dana's Board of Directors a second
letter, which substantially repeated the substance of the first letter. After
further deliberations and discussions with its financial and legal advisors,
Dana's Board of Directors decided again that Dana should not enter into
discussions with ArvinMeritor. The Board of Directors again authorized
Magliochetti to report the Board's decision to ArvinMeritor, which he did in a
June 19, 2003 letter to Yost.
23. On July 8, 2003, ArvinMeritor publicly announced its intention to
commence an unsolicited tender offer for Dana. The next day, the ArvinMeritor
Entities commenced the
8
announced tender offer. Pursuant to the offer, the ArvinMeritor Entities are
seeking to purchase all outstanding shares of Dana's common stock for $15.00
each.
24. The ArvinMeritor Entities have stated that their goal through this
tender offer is to acquire control of Dana. The ArvinMeritor Entities have
sought to buttress the attractiveness of their offer to ArvinMeritor's own
shareholders -- that is, to explain why the bid is good for ArvinMeritor, and to
help ArvinMeritor obtain financing (which it currently does not have) -- by
saying they expect to achieve approximately $200 million in "synergies," or cost
savings, in the proposed combined company (presumably through means including
layoffs and reductions in facilities).
25. On July 22, 2003, after a number of meetings and deliberations about
ArvinMeritor's tender offer, the Dana Board determined that the offer is
inadequate from a financial point of view and is not in the best interests of
either Dana or its shareholders.
26. As Yost expressly admitted during his July 8, 2003 conference call with
analysts concerning ArvinMeritor's tender offer, the "extensive discussions" in
2001, during which the two companies exchanged substantial amounts of
confidential information, "convinced us that there was a lot to be gained by
combining our two businesses." In other words, based in whole or in part on what
they learned from Dana, confidentially, in 2001, Yost and ArvinMeritor
management assessed Dana as a merger partner and take-over target and then
determined that ArvinMeritor should pursue its offer. In order to obtain the
support ArvinMeritor needs from its own shareholders and financing sources to
pursue its bid, Yost publicly discussed ArvinMeritor's assessment of information
received from Dana and sought to provide reassurance in his July 8 statements
that the $15 offer was credible and a good deal from ArvinMeritor's perspective.
Thus, Yost explicitly referred to the joint venture
9
discussions -- in which confidential information was provided by Dana -- in
order to gain support from the investment community by signaling that
ArvinMeritor had not determined to make its offer or set a price for such offer
solely on the basis of public information, but that indeed ArvinMeritor had the
inside story on Dana. ArvinMeritor's use of Dana's confidential information to
decide to pursue Dana was expressly prohibited by the Confidentiality Agreement,
as well as by principles of common law, and Yost's statement referring to the
2001 negotiations was itself a violation of the agreement.
27. Moreover, many of the ArvinMeritor recipients of the confidential
information about Dana were undoubtedly involved in ArvinMeritor's decision to
pursue a takeover of Dana and the manner in which -- and the price at which --
such takeover should be pursued. Even without Yost's concession that
ArvinMeritor did in fact use confidential information as a basis for forming
ArvinMeritor's takeover plans, it is not plausible that, in pursuing
ArvinMeritor's hostile takeover attempt, these various members of ArvinMeritor's
senior management could eliminate from their minds all knowledge about Dana that
they gained from having access to Dana's confidential information. Further, it
is likely that ArvinMeritor personnel or advisors who were not participants in
the joint venture discussions have now been made privy, directly or indirectly,
to Dana confidential information in connection with the decision to commence the
tender offer and how to pursue it, again in violation of the Confidentiality
Agreement.
28. In addition, the Confidentiality Agreement barred ArvinMeritor (absent
a legal opinion from its counsel) from revealing: (a) the existence of the joint
venture negotiations; and (b) that it had received confidential information from
Dana. Nevertheless, in its tender offer disclosure materials that have been
filed with the Securities and Exchange Commission,
10
publicly reported, and distributed to Dana shareholders, ArvinMeritor stated
that, "[i]n the spring of 2001, Parent [ArvinMeritor] approached the Company
[Dana] to express Parent's interest in pursuing a joint venture combining
Parent's and the Company's respective aftermarket businesses. For the next
several months, Parent and the Company and their respective financial and legal
advisors conducted extensive negotiations and due diligence with respect to such
potential joint venture."
29. As noted above, in addition to violating the contractual terms of the
Confidentiality Agreement, ArvinMeritor, by virtue of the foregoing conduct, has
also violated the common law duties that it owed to Dana as a result of entering
into the joint venture discussions and receiving Dana's confidential
information. At all material times, Delta knew that ArvinMeritor had obtained
Dana's confidential information and was misusing that confidential information.
30. The Confidentiality Agreement specifically provides that, insofar as
ArvinMeritor does business through affiliates, such affiliates are subject to
the terms of the Confidentiality Agreement "as though they were a party to it."
Accordingly, Delta, an affiliate of ArvinMeritor and the agent and
instrumentality through which ArvinMeritor has made its tender offer, is bound
by the terms of the Confidentiality Agreement. By reason of its active
participation in the conduct set forth above, Delta has violated the
Confidentiality Agreement.
IRREPARABLE HARM
31. As a result of the aforementioned unlawful actions of the ArvinMeritor
Entities, Dana and its shareholders have suffered substantial and irreparable
harm and are continuing to suffer such harm. If the ArvinMeritor Entities are
permitted to pursue and
11
consummate their hostile tender offer on the basis of the improper conduct
described herein, Dana and its shareholders will be irreparably harmed because
Dana's own internal, non-public confidential information will have been
misappropriated and will be used, directly or indirectly, for purposes other
than those authorized by Dana and its Board of Directors. In particular, such
information will be used opportunistically by the ArvinMeritor Entities in an
ongoing effort to seize control of Dana, which effort has been forever tainted
by the ArvinMeritor Entities' reliance on misappropriated, confidential
information.
FIRST CLAIM FOR RELIEF
(Breach of Contract)
32. Dana repeats and re-alleges the allegations of Paragraphs 1 through 31
as if fully set forth herein.
33. On March 30, 2001, Dana and ArvinMeritor entered into a contract, the
Confidentiality Agreement, under which ArvinMeritor promised, among other
things: (a) to use the confidential information that Dana provided to it solely
for the purpose of determining the feasibility and desirability of entering into
a joint venture with Dana; (b) only to reveal the confidential information to
personnel and advisors directly involved in analyzing the proposed joint venture
and who have agreed to be bound by the Confidentiality Agreement; and (c),
unless required by law as reflected in an opinion of counsel, not to disclose
the existence of the negotiations with Dana concerning the possible joint
venture or that Dana and ArvinMeritor had exchanged confidential information.
Dana would not have provided any confidential information to a competitor such
as ArvinMeritor without that competitor committing -- as ArvinMeritor did -- not
to use the information for any purpose other than that for which it had been
provided, which was to investigate the possible joint venture that
12
ArvinMeritor has proposed. Delta, as an affiliate of ArvinMeritor, is bound by
the terms of the Confidentiality Agreement.
34. Through the various actions described above, the ArvinMeritor Entities
violated the Confidentiality Agreement.
35. As a result the actions of the ArvinMeritor Entities and their breaches
of the Confidentiality Agreement, Dana and its shareholders have suffered and
are continuing to suffer harm.
36. Dana has no adequate remedy at law.
37. Dana is entitled to an injunction preliminarily and permanently barring
the ArvinMeritor Entities from further violation of the Confidentiality
Agreement and from pursuing or consummating its tender offer.
SECOND CLAIM FOR RELIEF
(BREACH OF OHIO'S TRADE SECRETS ACT O.R.C. SS. 1333.61 ET SEQ.)
38. Dana repeats and re-alleges the allegations of Paragraphs 1 through 37
as if fully set forth herein.
39. Dana provided ArvinMeritor with substantial confidential information.
Dana provided the confidential information in reliance on the promises that
ArvinMeritor had made in the Confidentiality Agreement.
40. The confidential information that Dana provided to ArvinMeritor
included business information, plans, financial information, and customer
information that derives independent economic value, actual and potential, from
not being generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from its disclosure or
use.
13
41. At all times material herein, Dana attempted to keep the confidential
information secret, and its efforts were reasonable under the circumstances.
Dana would not have provided the confidential information to ArvinMeritor
without the legal and equitable protections that ArvinMeritor promised.
42. The confidential information Dana provided to ArvinMeritor pursuant to
the Confidentiality Agreement constituted "trade secrets" within the meaning of
O.R.C. ss. 1333.61(D).
43. The ArvinMeritor Entities' use of Dana's trade secrets for a purpose
other than analyzing the feasibility and desirability of entering into the
business relationship proposed in 2001 constitutes a misappropriation of Dana's
trade secrets within the meanings of O.R.C. ss. 1333.61(B).
44. The ArvinMeritor Entities were aware, when they used the confidential
information about Dana in launching their hostile tender offer, that they were
not permitted to do so under the terms of the Confidentiality Agreement or under
common law. The ArvinMeritor Entities nevertheless used the confidential
information to pursue their hostile tender offer.
45. As a result of the actions of the ArvinMeritor Entities and their
violation of Ohio's Trade Secrets Act, Dana and its shareholders have suffered
and are continuing to suffer material harm.
46. Dana has no adequate remedy at law.
47. Dana is entitled to an injunction preliminarily and permanently barring
the ArvinMeritor Entities from further use of Dana's trade secrets and from
pursuing or consummating their tender offer.
14
THIRD CLAIM FOR RELIEF
(BREACH OF CONFIDENTIAL AND/OR FIDUCIARY DUTY)
48. Dana repeats and re-alleges the allegations of Paragraphs 1 through 47
as if fully set forth herein.
49. By entering into the joint venture discussions and by seeking and being
entrusted with Dana's confidential information, ArvinMeritor entered into a
relationship of trust and confidence with Dana and undertook a confidential
and/or fiduciary relationship with Dana with respect to such confidential
information. By virtue of this relationship, ArvinMeritor owed Dana a duty to
use its confidential information solely for the purpose of determining the
feasibility and desirability of the joint venture and for no other reason.
50. By using Dana's confidential information in order to determine to
pursue a tender offer for Dana, and to aid in determining how to price that
tender offer, ArvinMeritor has violated, and continues to violate, its duties to
Dana. Delta, by its active participation in ArvinMeritor's misconduct, aided and
abetted this breach of duty.
51. As a result of ArvinMeritor's actions and its breach of its duties to
Dana, and Delta's active participation therein, Dana and its shareholders have
been materially harmed. Moreover, Dana and its shareholders will continue to be
materially harmed so long as such misconductcontinues.
52. Dana has no adequate remedy at law.
53. Dana is entitled to an injunction preliminarily and permanently barring
the ArvinMeritor Entities from pursuing or consummating its tender offer.
15
PRAYER FOR RELIEF
WHEREFORE, Dana seeks judgment as follows:
a. Declaring that the ArvinMeritor Entities have materially breached
their contractual obligations under the Confidentiality Agreement;
b. Declaring that the ArvinMeritor Entities have violated the Ohio
Trade Secrets Act;
c. Declaring that ArvinMeritor has violated its common law duties by
its misuse and misappropriation of Dana's confidential information and that
Delta has aided and abetted these violations;
d. Preliminarily and permanently enjoining the ArvinMeritor Entities
from pursuing or consummating any tender offer for Dana's shares, or taking any
other steps to acquire shares of Dana through the direct or indirect use of
Dana's confidential information;
e. Awarding Dana consequential damages, including its costs and
disbursements incurred in connection with the ArvinMeritor Entities' tender
offer, including reasonable attorneys' and financial advisor fees, which Dana
would not have been forced to incur if the ArvinMeritor Entities had not
improperly commenced its tender offer in violation of common law and contractual
duties, and treble damages as permitted under the Ohio Trade Secrets Act;
f. Retaining jurisdiction to ensure that the ArvinMeritor Entities
comply fully with the Court's orders;
g. Awarding Dana its costs of suit, including reasonable attorneys'
fees; and
h. Granting Dana such other and further relief as the Court may deem
just and proper.
Cooper & Walinski, LPA
Attorneys for Plaintiff
By: /s/ Joseph P. Thacker
------------------------------------
Joseph P. Thacker (13039)
OF COUNSEL:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Phone: (212) 403-1000
Fax: (212) 403-2000
DEMAND FOR JURY TRIAL
The plaintiff hereby demands a trial by jury on all matters so
triable.
/s/ Joseph P. Thacker
-----------------------------------
Joseph P. Thacker (13039)
Exhibit (a)(17) DANA ESTABLISHES GLOBAL INFORMATION & ASSISTANCE HOTLINE Dana has established a global information and assistance telephone hotline for inquiries about the company's response to ArvinMeritor's tender offer. The hotline is staffed by Dana's information agent, D.F. King & Co., Inc., and is able to provide assistance to callers in five languages: English, French, German, Italian, and Spanish. From within the United States, callers may reach D.F. King by dialing the toll-free number: 1-800-901-0068. If you are calling from outside the U.S., please dial through an international operator and ask that your call be placed "collect" to: 1-718-361-4108. The hotline is operational from 8 a.m. to 9 p.m., EDT, Monday through Friday (except holidays).