-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, ETfWrzIW3RAM80KBbzZRNTg2H0jBAFMEGfi6Na/EsZHkYwYWey0KpuWGEP36YOjP 1Yb+YIeqPCOLCcFgEkEdhQ== 0000950137-97-003019.txt : 19970912 0000950137-97-003019.hdr.sgml : 19970912 ACCESSION NUMBER: 0000950137-97-003019 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970910 SROS: NONE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: OUTBOARD MARINE CORP CENTRAL INDEX KEY: 0000075149 STANDARD INDUSTRIAL CLASSIFICATION: ENGINES & TURBINES [3510] IRS NUMBER: 361589715 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 14D9/A SEC ACT: SEC FILE NUMBER: 005-12268 FILM NUMBER: 97677906 BUSINESS ADDRESS: STREET 1: 100 SEA HORSE DR CITY: WAUKEGAN STATE: IL ZIP: 60085 BUSINESS PHONE: 7086896200 MAIL ADDRESS: STREET 1: 100 SEA HORSE DRIVE CITY: WAUKEGAN STATE: IL ZIP: 60085 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: OUTBOARD MARINE CORP CENTRAL INDEX KEY: 0000075149 STANDARD INDUSTRIAL CLASSIFICATION: ENGINES & TURBINES [3510] IRS NUMBER: 361589715 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 14D9/A BUSINESS ADDRESS: STREET 1: 100 SEA HORSE DR CITY: WAUKEGAN STATE: IL ZIP: 60085 BUSINESS PHONE: 7086896200 MAIL ADDRESS: STREET 1: 100 SEA HORSE DRIVE CITY: WAUKEGAN STATE: IL ZIP: 60085 SC 14D9/A 1 AMEND. NO. 2 TO SCHEDULE 14D-9 1 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ SCHEDULE 14D-9/A AMENDMENT NO. 3 TO SCHEDULE 14D-9 SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO SECTION 14(D)(4) OF THE SECURITIES EXCHANGE ACT OF 1934 ------------------------ OUTBOARD MARINE CORPORATION (NAME OF SUBJECT COMPANY) OUTBOARD MARINE CORPORATION (NAME OF PERSON(S) FILING STATEMENT) COMMON STOCK, PAR VALUE $0.15 PER SHARE (TITLE OF CLASS OF SECURITIES) 690020102 (CUSIP NUMBER OF CLASS OF SECURITIES) ------------------------ HARRY W. BOWMAN CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER OUTBOARD MARINE CORPORATION 100 SEA HORSE DRIVE WAUKEGAN, ILLINOIS 60085 (847) 689-6200 (NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICE AND COMMUNICATIONS ON BEHALF OF THE PERSON(S) FILING STATEMENT) With a copy to: D. JEFFREY BADDELEY, ESQ. VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL OUTBOARD MARINE CORPORATION 100 SEA HORSE DRIVE WAUKEGAN, ILLINOIS 60085 (847) 689-6200 ================================================================================ 2 This Amendment No. 3 (this "Amendment") is to the Solicitation/Recommendation Statement on Schedule 14D-9, as amended (the "Schedule 14D-9"), that relates to the offer by Greenmarine Acquisition Corp., a Delaware corporation (the "Offeror") and a wholly-owned subsidiary of Greenmarine Holdings LLC, a Delaware limited liability company (the "Parent"), disclosed in a Tender Offer Statement on Schedule 14D-1 dated August 8, 1997, as amended (the "Greenmarine Schedule 14D-1"), to purchase all outstanding shares of Common Stock, par value $0.15 per share (the "Shares"), of Outboard Marine Corporation, a Delaware corporation (the "Company"), together with (unless and until Greenmarine declares that the Rights Condition, as defined in the Offer defined below, is satisfied) the associated preferred stock purchase rights (the "Rights") issued pursuant to the Rights Agreement, dated as of April 24, 1996, as amended (the "Rights Agreement"), by and between the Company and First Chicago Trust Company of New York, as Rights Agent, at a price of $18.00 per Share (and associated Right), net to the seller in cash, without interest thereon (the "Offer Price"), upon the terms and subject to the conditions set forth in the Offeror's Offer to Purchase and in the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the "Offer"). The item numbers and responses thereto below are in accordance with the requirements of Schedule 14D-9. The information set forth under each item below is in addition to, and not in lieu of, information previously set forth thereunder. Capitalized terms used in this Amendment but not defined herein have the meanings ascribed to them in the Schedule 14D-9. ITEM 4. THE SOLICITATION OR RECOMMENDATION. RECOMMENDATION OF BOARD. Since the Offeror and the Company entered into a Confidentiality Agreement on August 14, 1997 (the "Greenmarine Confidentiality Agreement"), representatives of the Offeror and representatives of the Company have had several meetings and discussions regarding the Offer, the Company's existing indebtedness and capital structure, the refinancing of certain of the Company's existing indebtedness and the terms and conditions of the proposed merger agreement previously delivered by the Offeror to the Company on August 20, 1997. The Company's Board of Directors has taken action to exclude the Offer and the Merger from the Rights Agreement and the provisions of Section 203 of the DGCL and Article Eighteenth of the Company's Restated Certificate of Incorporation. For purposes of allowing the Offeror to conclude the Offer by 9:00 a.m., Eastern Daylight Time, on September 12, 1997 (the "Exclusion Period"), the Company's Board of Directors amended the Rights Agreement to render the Rights, and approved the Offer and the Merger in all respects to render Section 203 of the DGCL and Article Eighteenth of the Company's Restated Certificate of Incorporation, inapplicable to the Offeror, the Parent and their affiliates during the Exclusion Period, provided that (i) the Offer is consummated at a price of $18.00 per Share in cash, net to the seller thereof, and (ii) the number of Shares purchased by the Offeror pursuant to the Offer, together with any other Shares then owned by the Offeror, represents not less than 90 percent of the issued and outstanding Shares on that date. In taking the foregoing action, the Company's Board of Directors addressed the principal conditions to the Offer that are within the Company's control and thereby provided the Offeror with the opportunity to close the Offer during the Exclusion Period. However, because the Offer continues to be subject to a number of conditions that are beyond the Company's control and because the Offeror has indicated that it is continuing to pursue required working capital financing, the Company's Board of Directors has not recommended the Offer and has not changed its recommendation of the DDC Offer. In accordance with the DDC Offer and the Agreement and Waiver dated as of September 8, 1997, among DDC, OMC Acquisition Corp. and the Company (the "Agreement and Waiver"), which is filed herewith as Exhibit 99.6 to the Schedule 14D-9 and incorporated herein by reference, OMC Acquisition Corp. has extended the DDC Offer. The DDC Offer will now expire at 5:00 p.m., Eastern Daylight Time, on September 15, 1997, unless extended in accordance with the DDC Offer. Pursuant to the Agreement and Waiver, DDC waived its right to receive the termination fee of $15.75 million pursuant to Section 10.2(b) of the DDC Merger Agreement. DDC and OMC Acquisition Corp. also acknowledged and agreed pursuant to the Agreement and Waiver that: (i) the Company may take certain actions to facilitate competing transactions -- including, without limitation, taking actions necessary to render Section 203 of the DGCL, Article Eighteenth of the Company's Restated Certificate of Incorporation and the provisions of the Rights Agreement inapplicable to such transactions and amending certain employee bonus, severance and pension plans -- without breaching the DDC Merger Agreement, and (ii) the payment of the $7.5 million described below will be in lieu of any and all damages, costs and expenses for breach of the DDC Merger Agreement by the Company or against any other party making a competing offer that the Company facilitates, provided that none of the terms and conditions of the Agreement and Waiver will in any way prevent DDC or OMC Acquisition Corp. from bringing any counterclaim or other legal action in response to any legal action by such other party relating to the DDC Offer, the DDC Merger, the DDC Merger Agreement or the competing transaction. The Company paid DDC $7.5 million pursuant to the Agreement and Waiver, which also provides that, if DDC is required to return such funds for any reason whatsoever, then the waiver and other provisions described above will be deemed void ab initio. On September 8, 1997, the Offeror filed an Amendment to the Greenmarine Schedule 14D-1 relating to (i) the extension by the Offeror of the Offer until 5:00 p.m., New York City time, on September 11, 1997, unless extended in accordance with the Offer, and (ii) the meetings and discussions that have taken place between representatives of the Offeror and representatives of the Company since the signing of the Greenmarine Confidentiality Agreement on August 14, 1997. On September 9, 1997, the Company issued a press release, which is filed herewith as Exhibit 99.7 to the Schedule 14D-9 and incorporated herein by reference, regarding the above-described actions of the Company's Board of Directors with respect to the Rights Agreement and Section 203 of the DGCL and Article Eighteenth of the Company's Restated Certificate of Incorporation, the Agreement and Waiver and the above-described extension of the DDC Offer. ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED. The Company's Board of Directors determined that, in the circumstances of the Offer, it was advisable for the administration of the Rights Agreement that the occurrence of the Distribution Date (as defined in the Rights Agreement), as it applied to the Offer, be deferred to a later date. Accordingly, pursuant to a resolution, the Company's Board of Directors determined that, for purposes of the Offer, the Distribution Date would be extended until (i) 5:00 p.m., Eastern Daylight Time, on September 12, 1997, or (ii) such other date as may be determined in good faith by the Company's Board of Directors. 1 3 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule 14D-9 is true, complete and correct. Dated: September 10, 1997 OUTBOARD MARINE CORPORATION By: /s/ HARRY W. BOWMAN ----------------------------------------- Name: Harry W. Bowman Title: Chairman of the Board, President and Chief Executive Officer 2 4 EXHIBIT INDEX * Exhibit 99.1: Severance Agreement dated as of March 31, 1997, between Harry W. Bowman and the Company. * Exhibit 99.2: Form of Severance Agreement between Outboard Marine Corporation and each of George L. Schueppert, Carlisle R. Davis, Richard H. Medland, Clark J. Vitulli, D. Jeffrey Baddeley, John D. Flaig and Thomas G. Goodman, providing for a lump-sum payment of 200% of the sum of Base Pay and Incentive Pay; and between Outboard Marine Corporation and each of Peter W. Brown, Miles E. Dean, Hans Lamens, Robert S. Romano, Peter L. Schelle, Gary F. Swartz, Raymond M. Cartade, Edgar M. Frandle, Grainger B. McFarlane, Russell J. VanRens, Paul R. Rabe, Robert F. Young, George L. Broughton, Paula S. Rummage and Peter J. VanLancker, provide for a lump-sum payments of 100% of the sum of Base Pay and Incentive Pay. * Exhibit 99.3: The form of Amended and Restated Severance Agreement between Outboard Marine Corporation and each of Jack L. Feurig, Dennis G. Holmes, Robert J. Moerchen and J.P. Murphy. * Exhibit 99.4: The OMC Executive Equity Incentive Plan * Exhibit 99.5: The OMC 1994 Long-Term Incentive Plan Exhibit 99.6: Agreement and Waiver dated as of September 8, 1997, among Detroit Diesel Corporation, Outboard Marine Acquisition Corp. and Outboard Marine Corporation. Exhibit 99.7: Press Release issued by Outboard Marine Corporation on September 9, 1997.
- --------------- * Previously filed 3 EX-99.6 2 AGREEMENT AND WAIVER DATED 9-8-97 1 EXHIBIT 99.6 Agreement and Waiver This Agreement and Waiver is dated as of September 8, 1997, among Detroit Diesel Corporation, OMC Acquisition Corp. and Outboard Marine Corporation. Recitals A. Purchaser, Merger Sub and the Company are parties to the Agreement and Plan of Merger dated as of July 8, 1997 (the "Merger Agreement"). Capitalized terms used and not otherwise defined in this Agreement will have the meanings set forth in the Merger Agreement. B. Purchaser, Merger Sub and the Company desire to modify the Merger Agreement upon the terms and conditions set forth in this Amendment. Therefore the parties agree as follows: 1. Waiver and Acknowledgements. Purchaser hereby waives its right to receive the fee described in Section 10.2(b) of the Merger Agreement. Purchaser and Merger Sub hereby acknowledge and agree that: (a) the Company may take certain actions to facilitate competing transactions--including, without limitation, taking actions necessary to render Section 203 of the DGCL, Article Eighteenth of the Company's Restated Certificate of Incorporation and the provisions of the Rights Agreement dated as of April 24, 1996, as amended by Amendment No. 1 dated July 8, 1997, between the Company and First Chicago Trust Company of New York, inapplicable to such transactions, and amending certain employee bonus, severance and pension plans--without breaching the Merger Agreement, and (b) the payment of funds described in Section 3 will be in lieu of any and all damages, costs and expenses for breach of the Merger Agreement by the Company or against any other party making a competing offer that the Company facilitates, provided that nothing in this clause (b) will in any way prevent Purchaser or Merger Sub from bringing any counterclaim or other legal action in response to any legal action by such other party relating to the Offer, the Merger, the Merger Agreement or the competing transaction. 2. Extension. Merger Sub will extend the Offer to 5:00 p.m., Eastern Daylight Time, on September 15, 1997. 3. Payment. The Company will pay Purchaser $7.5 million by wire transfer to such account as Purchaser designates no later than 12:00 noon, Eastern Daylight Time, on September 9, 1997. If Purchaser does not receive these funds or is required to return such funds for any reason whatsoever, then the waiver and other provisions in Section 1 will be deemed void ab initio. 2 4. Press Release. On September 9, 1997, Purchaser and the Company will each issue a press release disclosing the terms of this Agreement and Waiver and indicating that Purchaser, Merger Sub and the Company have mutually agreed to extend the Offer. DETROIT DIESEL CORPORATION By: /s/ Timothy D. Leuliette ------------------------------ Its: Vice Chairman OMC ACQUISITION CORP. By: /s/ Timothy D. Leuliette ------------------------------ Its: Vice Chairman OUTBOARD MARINE CORPORATION By: /s/ Harry W. Bowman ------------------------------ Its: Chairman of the Board, President and Chief Executive Officer EX-99.7 3 PRESS RELEASE 1 Exhibit 99.7 [OMC NEWS LETTERHEAD] ___________________ Contact: Marlena C. Cannon Director, Public Affairs and Communications (847) 689-5492 FOR IMMEDIATE RELEASE Stan Main Director, Investor Relations (847) 689-5246 Jim Fingeroth/Jason Lynch Kekst and Company (212) 521-4800 OMC BOARD OF DIRECTORS TAKES ACTION TO BRING BIDDING CONTEST TO A CONCLUSION Waukegan, IL, September 9, 1997 -- Outboard Marine Corporation (NYSE:OM) ("OMC") announced today that its board of directors has taken several actions intended to bring the current bidding contest for the Company between Detroit Diesel Corporation ("DDC") and Greenmarine Acquisition Corporation ("Greenmarine") to a conclusion and remove the uncertainty surrounding the Company's future that has resulted from the contest. The board took actions to exempt Greenmarine's current $18.00 per share tender offer from the Company's shareholder rights plan and from certain provisions of the Company's charter until 9:00 a.m. Eastern Time on September 12, 1997. In addition, the Company and DDC entered into an Agreement and Waiver pursuant to which DDC agreed to extend its offer until September 15, 1997 at 5:00 p.m. Eastern Time, and DDC agreed -MORE- 12 2 OMC BOARD OF DIRECTORS TAKES ACTION, ADD ONE that the Company could take actions designed to facilitate the Greenmarine offer without causing a breach of the DDC Merger Agreement. In connection with this Agreement and Waiver, the Company paid DDC a fee of $7.5 million, and DDC agreed to waive any right to receive the $15.75 million liquidated damages fee if Greenmarine successfully concludes its offer. The Company said the board took these actions because the protracted uncertainty regarding its future is having a damaging effect on the Company's operating and financial condition. These actions address the principal conditions to Greenmarine's $18.00 per share tender offer which are within OMC's control and are intended to provide Greenmarine with the opportunity to close its tender offer on its current expiration date of Thursday, September 11, 1997. Greenmarine's tender offer remains subject to conditions and Greenmarine has indicated it has not resolved its required financing commitments. In view of this, the board of directors has not changed its previous recommendation to OMC shareholders that they tender their shares into the Detroit Diesel Corporation tender offer. Harry W. Bowman, chairman, president and chief executive officer of OMC, said, "Shareholders should understand the rationale for the actions taken by the board. Our top priorities are to obtain the highest possible price for our shareholders and to bring the bidding process to a close as quickly as possible. We are concerned that Greenmarine has thus far been unable to close on its tender offer. Therefore, we have taken actions -MORE- 3 OMC BOARD OF DIRECTORS TAKES ACTION, ADD TWO that eliminate every impediment that we can control to give Greenmarine a clear opportunity to close on its offer before DDC's offer expires. "Meanwhile, there is outstanding a fully financed and unconditional tender offer for the Company at $16.00 per share from DDC that will expire at 5:00 PM, Eastern Time on Monday, September 15, 1997. We are concerned that DDC will not extend its offer beyond that date. If the Greenmarine offer is not consummated, after we have given them this clear opportunity to do so, OMC will have to act as strongly as possible to end the uncertainty surrounding the Company's future," Mr. Bowman concluded. On July 8, 1997 OMC agreed to be acquired by Detroit Diesel Corporation for $16.00 per share. On August 8, 1997, Greenmarine Acquisition Corporation announced that it was commencing a tender offer for OMC shares at $18.00 per share, subject to certain terms and conditions. Since August 11, 1997, OMC's representatives have been in frequent discussions with Greenmarine in an attempt to clarify the terms and conditions of the Greenmarine offer and to try to reach a merger agreement with Greenmarine. However, to date, no agreement has been reached. Outboard Marine Corporation is a leading worldwide manufacturer and marketer of marine engines, boats and accessories. # # # # -----END PRIVACY-ENHANCED MESSAGE-----