<PAGE>
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
---------------------
SCHEDULE 14D-1
Tender Offer Statement Pursuant to Section 14(d)(1)
of the Securities Exchange Act of 1934
(Amendment No. 4)
OUTBOARD MARINE CORPORATION
(Name of Subject Company)
GREENMARINE ACQUISITION CORP.
A Wholly-Owned Subsidiary of
GREENMARINE HOLDINGS LLC
(Bidders)
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 7)
Greenlake Holdings LLC
Alfred D. Kingsley
Gary K. Duberstein
and
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 4)
<TABLE>
<S> <C> <C>
Greenmarine Holdings LLC QIH Management Investor, L.P. Stanley F. Druckenmiller
Greenmarine Acquisition Corp. QIH Management, Inc. Quasar International Fund N.V.
Quantum Industrial Holdings Ltd. Soros Fund Management LLC Quasar International Partners C.V.
Quantum Industrial Partners LDC George Soros Quasar Strategic Partners LDC
</TABLE>
Common Stock, $.15 Par Value
----------------------------
(Title of Class of Securities)
690020102
-------------------------------------
(CUSIP Number of Class of Securities)
Gary K. Duberstein, Esq.
GREENMARINE ACQUISITION CORP.
277 Park Avenue, 27th Floor
New York, New York 10172
(212) 350-5100
---------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications on Behalf of Bidder)
Copies to:
David E. Zeltner, Esq. Patrick J. Dooley, Esq.
WEIL, GOTSHAL & MANGES LLP AKIN, GUMP, STRAUSS, HAUER & FELD LLP
767 Fifth Avenue 590 Madison Avenue
New York, New York 10153 New York, New York 10022
(212) 310-8000 (212) 872-1000
CALCULATION OF FILING FEE
- ------------------------------------------------------------------------------
Transaction
Valuation $327,995,352* Amount of Filing Fee $65,600**
- ------------------------------------------------------------------------------
/X/ Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the form
or schedule and the date of its filing.
Amount previously paid: $65,600 Filing Party: Greenmarine Acquisition Corp.
------- -----------------------------
Form or registration no.: 14D-1 Date filed: August 8, 1997
----- ---------------
- ------------
* Pursuant to, and as provided by, Rule 0-11(d), and for the purpose of
calculating filing fees only, this amount assumes the purchase at $18.00
cash per share of 18,221,964 shares of the common stock of the Subject
Company, par value $0.15 per share ("Shares"), which is equal to the total
number of Shares outstanding as reported in the Quarterly Report on Form
10-Q of Outboard Marine Corporation for the quarter ended June 30, 1997,
less 2,000,000 Shares owned beneficially by Bidders and their affiliates.
** 1/50 of 1% of Transaction Valuation.
==============================================================================
<PAGE>
_______________________________________________________________________________
CUSIP No. 690020102 14D-1 Page __ of __ Pages
_______________________________________________________________________________
1. NAME OF REPORTING PERSONS
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
GREENLAKE HOLDINGS LLC
______________________________________________________________________________
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
______________________________________________________________________________
3. SEC USE ONLY
______________________________________________________________________________
4. SOURCE OF FUNDS OO
______________________________________________________________________________
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(E) OR 2(F) [ ]
______________________________________________________________________________
6. CITIZENSHIP OR PLACE OR ORGANIZATION Delaware
_______________________________________________________________________________
| |
NUMBER OF | 7. | SOLE VOTING POWER 0
SHARES | |
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8. | SHARED VOTING POWER 2,000,000
REPORTING | |
PERSON WITH |_____|________________________________________________________
| |
| 9. | SOLE DISPOSITIVE POWER 0
| |
|_____|________________________________________________________
| |
| 10. | SHARED DISPOSITIVE POWER 2,000,000
| |
_______________|_____|_________________________________________________________
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 2,000,000
______________________________________________________________________________
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
______________________________________________________________________________
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN
ROW (11) 9.9%
______________________________________________________________________________
14. TYPE OF REPORTING PERSON OO
______________________________________________________________________________
2
<PAGE>
_______________________________________________________________________________
CUSIP No. 690020102 14D-1 Page __ of __ Pages
_______________________________________________________________________________
1. NAME OF REPORTING PERSONS
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
ALFRED D. KINGSLEY
______________________________________________________________________________
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
______________________________________________________________________________
3. SEC USE ONLY
______________________________________________________________________________
4. SOURCE OF FUNDS OO
______________________________________________________________________________
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(E) OR 2(F) [ ]
______________________________________________________________________________
6. CITIZENSHIP OR PLACE OR ORGANIZATION United States
_______________________________________________________________________________
| |
NUMBER OF | 7. | SOLE VOTING POWER 0
SHARES | |
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8. | SHARED VOTING POWER 2,000,000
REPORTING | |
PERSON WITH |_____|________________________________________________________
| |
| 9. | SOLE DISPOSITIVE POWER 0
| |
|_____|________________________________________________________
| |
| 10. | SHARED DISPOSITIVE POWER 2,000,000
| |
_______________|_____|_________________________________________________________
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 2,000,000
______________________________________________________________________________
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
______________________________________________________________________________
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN
ROW (11) 9.9%
______________________________________________________________________________
14. TYPE OF REPORTING PERSON IN
______________________________________________________________________________
3
<PAGE>
_______________________________________________________________________________
CUSIP No. 690020102 14D-1 Page __ of __ Pages
_______________________________________________________________________________
1. NAME OF REPORTING PERSONS
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
GARY K. DUBERSTEIN
______________________________________________________________________________
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
______________________________________________________________________________
3. SEC USE ONLY
______________________________________________________________________________
4. SOURCE OF FUNDS OO
______________________________________________________________________________
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(E) OR 2(F) [ ]
______________________________________________________________________________
6. CITIZENSHIP OR PLACE OR ORGANIZATION United States
_______________________________________________________________________________
| |
NUMBER OF | 7. | SOLE VOTING POWER 0
SHARES | |
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8. | SHARED VOTING POWER 2,000,000
REPORTING | |
PERSON WITH |_____|________________________________________________________
| |
| 9. | SOLE DISPOSITIVE POWER 0
| |
|_____|________________________________________________________
| |
| 10. | SHARED DISPOSI`IVE POWER 2,000,000
| |
_______________|_____|_________________________________________________________
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 2,000,000
______________________________________________________________________________
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
______________________________________________________________________________
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN
ROW (11) 9.9%
______________________________________________________________________________
14. TYPE OF REPORTING PERSON IN
______________________________________________________________________________
4
<PAGE>
_______________________________________________________________________________
CUSIP No. 690020102 14D-1 Page __ of __ Pages
_______________________________________________________________________________
1. NAME OF REPORTING PERSONS
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
GREENMARINE HOLDINGS LLC
13-3960749
______________________________________________________________________________
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
______________________________________________________________________________
3. SEC USE ONLY
______________________________________________________________________________
4. SOURCE OF FUNDS AF
______________________________________________________________________________
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(E) OR 2(F) [ ]
______________________________________________________________________________
6. CITIZENSHIP OR PLACE OR ORGANIZATION Delaware
_______________________________________________________________________________
| |
NUMBER OF | 7. | SOLE VOTING POWER 0
SHARES | |
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8. | SHARED VOTING POWER 0
REPORTING | |
PERSON WITH |_____|________________________________________________________
| |
| 9. | SOLE DISPOSITIVE POWER 0
| |
|_____|________________________________________________________
| |
| 10. | SHARED DISPOSITIVE POWER 0
| |
_______________|_____|_________________________________________________________
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 0
______________________________________________________________________________
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
______________________________________________________________________________
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN
ROW (11) 0
______________________________________________________________________________
14. TYPE OF REPORTING PERSON OO
______________________________________________________________________________
5
<PAGE>
_______________________________________________________________________________
CUSIP No. 690020102 14D-1 Page __ of __ Pages
_______________________________________________________________________________
1. NAME OF REPORTING PERSONS
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
GREENMARINE ACQUISITION CORP. 13-3960743
______________________________________________________________________________
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
______________________________________________________________________________
3. SEC USE ONLY
______________________________________________________________________________
4. SOURCE OF FUNDS OO, BF
______________________________________________________________________________
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(E) OR 2(F) [ ]
______________________________________________________________________________
6. CITIZENSHIP OR PLACE OR ORGANIZATION Delaware
_______________________________________________________________________________
| |
NUMBER OF | 7. | SOLE VOTING POWER 0
SHARES | |
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8. | SHARED VOTING POWER 0
REPORTING | |
PERSON WITH |_____|________________________________________________________
| |
| 9. | SOLE DISPOSITIVE POWER 0
| |
|_____|________________________________________________________
| |
| 10. | SHARED DISPOSITIVE POWER 0
| |
_______________|_____|_________________________________________________________
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 0
______________________________________________________________________________
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
______________________________________________________________________________
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN
ROW (11) 0
______________________________________________________________________________
14. TYPE OF REPORTING PERSON CO
______________________________________________________________________________
6
<PAGE>
_______________________________________________________________________________
CUSIP No. 690020102 14D-1 Page __ of __ Pages
_______________________________________________________________________________
1. NAME OF REPORTING PERSONS
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
QUANTUM INDUSTRIAL HOLDINGS LTD.
______________________________________________________________________________
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
______________________________________________________________________________
3. SEC USE ONLY
______________________________________________________________________________
4. SOURCE OF FUNDS OO
______________________________________________________________________________
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(E) OR 2(F) [ ]
______________________________________________________________________________
6. CITIZENSHIP OR PLACE OR ORGANIZATION British Virgin Islands
_______________________________________________________________________________
| |
NUMBER OF | 7. | SOLE VOTING POWER 0
SHARES | |
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8. | SHARED VOTING POWER 0
REPORTING | |
PERSON WITH |_____|________________________________________________________
| |
| 9. | SOLE DISPOSITIVE POWER 0
| |
|_____|________________________________________________________
| |
| 10. | SHARED DISPOSITIVE POWER 0
| |
_______________|_____|_________________________________________________________
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 0
______________________________________________________________________________
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
______________________________________________________________________________
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN
ROW (11) 0
______________________________________________________________________________
14. TYPE OF REPORTING PERSON CO
______________________________________________________________________________
7
<PAGE>
_______________________________________________________________________________
CUSIP No. 690020102 14D-1 Page __ of __ Pages
_______________________________________________________________________________
1. NAME OF REPORTING PERSONS
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
QUANTUM INDUSTRIAL PARTNERS LDC
______________________________________________________________________________
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
______________________________________________________________________________
3. SEC USE ONLY
______________________________________________________________________________
4. SOURCE OF FUNDS WC
______________________________________________________________________________
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(E) OR 2(F) [ ]
______________________________________________________________________________
6. CITIZENSHIP OR PLACE OR ORGANIZATION Cayman Islands
_______________________________________________________________________________
| |
NUMBER OF | 7. | SOLE VOTING POWER 0
SHARES | |
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8. | SHARED VOTING POWER 0
REPORTING | |
PERSON WITH |_____|________________________________________________________
| |
| 9. | SOLE DISPOSITIVE POWER 0
| |
|_____|________________________________________________________
| |
| 10. | SHARED DISPOSITIVE POWER 0
| |
_______________|_____|_________________________________________________________
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 0
______________________________________________________________________________
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
______________________________________________________________________________
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN
ROW (11) 0
______________________________________________________________________________
14. TYPE OF REPORTING PERSON OO; IV
______________________________________________________________________________
8
<PAGE>
_______________________________________________________________________________
CUSIP No. 690020102 14D-1 Page __ of __ Pages
_______________________________________________________________________________
1. NAME OF REPORTING PERSONS
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
QIH MANAGEMENT INVESTOR, L.P.
______________________________________________________________________________
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
______________________________________________________________________________
3. SEC USE ONLY
______________________________________________________________________________
4. SOURCE OF FUNDS OO
______________________________________________________________________________
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(E) OR 2(F) [ ]
______________________________________________________________________________
6. CITIZENSHIP OR PLACE OR ORGANIZATION Delaware
_______________________________________________________________________________
| |
NUMBER OF | 7. | SOLE VOTING POWER 0
SHARES | |
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8. | SHARED VOTING POWER 0
REPORTING | |
PERSON WITH |_____|________________________________________________________
| |
| 9. | SOLE DISPOSITIVE POWER 0
| |
|_____|________________________________________________________
| |
| 10. | SHARED DISPOSITIVE POWER 0
| |
_______________|_____|_________________________________________________________
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 0
______________________________________________________________________________
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
______________________________________________________________________________
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN
ROW (11) 0
______________________________________________________________________________
14. TYPE OF REPORTING PERSON PN; IA
______________________________________________________________________________
9
<PAGE>
_______________________________________________________________________________
CUSIP No. 690020102 14D-1 Page __ of __ Pages
_______________________________________________________________________________
1. NAME OF REPORTING PERSONS
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
QIH MANAGEMENT, INC.
______________________________________________________________________________
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
______________________________________________________________________________
3. SEC USE ONLY
______________________________________________________________________________
4. SOURCE OF FUNDS OO
______________________________________________________________________________
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(E) OR 2(F) [ ]
______________________________________________________________________________
6. CITIZENSHIP OR PLACE OR ORGANIZATION Delaware
_______________________________________________________________________________
| |
NUMBER OF | 7. | SOLE VOTING POWER 0
SHARES | |
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8. | SHARED VOTING POWER 0
REPORTING | |
PERSON WITH |_____|________________________________________________________
| |
| 9. | SOLE DISPOSITIVE POWER 0
| |
|_____|________________________________________________________
| |
| 10. | SHARED DISPOSITIVE POWER 0
| |
_______________|_____|_________________________________________________________
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 0
______________________________________________________________________________
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
______________________________________________________________________________
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN
ROW (11) 0
______________________________________________________________________________
14. TYPE OF REPORTING PERSON CO
______________________________________________________________________________
10
<PAGE>
_______________________________________________________________________________
CUSIP No. 690020102 14D-1 Page __ of __ Pages
_______________________________________________________________________________
1. NAME OF REPORTING PERSONS
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
SOROS FUND MANAGEMENT LLC
______________________________________________________________________________
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
______________________________________________________________________________
3. SEC USE ONLY
______________________________________________________________________________
4. SOURCE OF FUNDS OO
______________________________________________________________________________
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(E) OR 2(F) [ ]
______________________________________________________________________________
6. CITIZENSHIP OR PLACE OR ORGANIZATION Delaware
_______________________________________________________________________________
| |
NUMBER OF | 7. | SOLE VOTING POWER 0
SHARES | |
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8. | SHARED VOTING POWER 0
REPORTING | |
PERSON WITH |_____|________________________________________________________
| |
| 9. | SOLE DISPOSITIVE POWER 0
| |
|_____|________________________________________________________
| |
| 10. | SHARED DISPOSITIVE POWER 0
| |
_______________|_____|_________________________________________________________
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 0
______________________________________________________________________________
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
______________________________________________________________________________
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN
ROW (11) 0
______________________________________________________________________________
14. TYPE OF REPORTING PERSON OO; IA
______________________________________________________________________________
11
<PAGE>
_______________________________________________________________________________
CUSIP No. 690020102 14D-1 Page __ of __ Pages
_______________________________________________________________________________
1. NAME OF REPORTING PERSONS
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
MR. GEORGE SOROS
______________________________________________________________________________
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
______________________________________________________________________________
3. SEC USE ONLY
______________________________________________________________________________
4. SOURCE OF FUNDS OO
______________________________________________________________________________
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(E) OR 2(F) [ ]
______________________________________________________________________________
6. CITIZENSHIP OR PLACE OR ORGANIZATION United States
_______________________________________________________________________________
| |
NUMBER OF | 7. | SOLE VOTING POWER 0
SHARES | |
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8. | SHARED VOTING POWER 0
REPORTING | |
PERSON WITH |_____|________________________________________________________
| |
| 9. | SOLE DISPOSITIVE POWER 0
| |
|_____|________________________________________________________
| |
| 10. | SHARED DISPOSITIVE POWER 0
| |
_______________|_____|_________________________________________________________
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 0
______________________________________________________________________________
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
______________________________________________________________________________
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN
ROW (11) 0
______________________________________________________________________________
14. TYPE OF REPORTING PERSON IA
______________________________________________________________________________
12
<PAGE>
_______________________________________________________________________________
CUSIP No. 690020102 14D-1 Page __ of __ Pages
_______________________________________________________________________________
1. NAME OF REPORTING PERSONS
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
MR. STANLEY F. DRUCKENMILLER
______________________________________________________________________________
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
______________________________________________________________________________
3. SEC USE ONLY
______________________________________________________________________________
4. SOURCE OF FUNDS OO
______________________________________________________________________________
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(E) OR 2(F) [ ]
______________________________________________________________________________
6. CITIZENSHIP OR PLACE OR ORGANIZATION United States
_______________________________________________________________________________
| |
NUMBER OF | 7. | SOLE VOTING POWER 0
SHARES | |
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8. | SHARED VOTING POWER 0
REPORTING | |
PERSON WITH |_____|________________________________________________________
| |
| 9. | SOLE DISPOSITIVE POWER 0
| |
|_____|________________________________________________________
| |
| 10. | SHARED DISPOSITIVE POWER 0
| |
_______________|_____|_________________________________________________________
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 0
______________________________________________________________________________
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
______________________________________________________________________________
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN
ROW (11) 0
______________________________________________________________________________
14. TYPE OF REPORTING PERSON IA
______________________________________________________________________________
13
<PAGE>
_______________________________________________________________________________
CUSIP No. 690020102 14D-1 Page __ of __ Pages
_______________________________________________________________________________
1. NAME OF REPORTING PERSONS
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
QUASAR INTERNATIONAL FUND N.V.
______________________________________________________________________________
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
______________________________________________________________________________
3. SEC USE ONLY
______________________________________________________________________________
4. SOURCE OF FUNDS OO
______________________________________________________________________________
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(E) OR 2(F) [ ]
______________________________________________________________________________
6. CITIZENSHIP OR PLACE OR ORGANIZATION Netherlands Antilles
_______________________________________________________________________________
| |
NUMBER OF | 7. | SOLE VOTING POWER 0
SHARES | |
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8. | SHARED VOTING POWER 0
REPORTING | |
PERSON WITH |_____|________________________________________________________
| |
| 9. | SOLE DISPOSITIVE POWER 0
| |
|_____|________________________________________________________
| |
| 10. | SHARED DISPOSITIVE POWER 0
| |
_______________|_____|_________________________________________________________
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 0
______________________________________________________________________________
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
______________________________________________________________________________
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN
ROW (11) 0
______________________________________________________________________________
14. TYPE OF REPORTING PERSON CO
______________________________________________________________________________
14
<PAGE>
_______________________________________________________________________________
CUSIP No. 690020102 14D-1 Page __ of __ Pages
_______________________________________________________________________________
1. NAME OF REPORTING PERSONS
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
QUASAR INTERNATIONAL PARTNERS C.V.
______________________________________________________________________________
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
______________________________________________________________________________
3. SEC USE ONLY
______________________________________________________________________________
4. SOURCE OF FUNDS OO
______________________________________________________________________________
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(E) OR 2(F) [ ]
______________________________________________________________________________
6. CITIZENSHIP OR PLACE OR ORGANIZATION Netherlands Antilles
_______________________________________________________________________________
| |
NUMBER OF | 7. | SOLE VOTING POWER 0
SHARES | |
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8. | SHARED VOTING POWER 0
REPORTING | |
PERSON WITH |_____|________________________________________________________
| |
| 9. | SOLE DISPOSITIVE POWER 0
| |
|_____|________________________________________________________
| |
| 10. | SHARED DISPOSITIVE POWER 0
| |
_______________|_____|_________________________________________________________
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 0
______________________________________________________________________________
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
______________________________________________________________________________
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN
ROW (11) 0
______________________________________________________________________________
14. TYPE OF REPORTING PERSON PN
______________________________________________________________________________
15
<PAGE>
_______________________________________________________________________________
CUSIP No. 690020102 14D-1 Page __ of __ Pages
_______________________________________________________________________________
1. NAME OF REPORTING PERSONS
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
QUASAR STRATEGIC PARTNERS LDC
______________________________________________________________________________
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
______________________________________________________________________________
3. SEC USE ONLY
______________________________________________________________________________
4. SOURCE OF FUNDS AF
______________________________________________________________________________
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(E) OR 2(F) [ ]
______________________________________________________________________________
6. CITIZENSHIP OR PLACE OR ORGANIZATION Cayman Islands
_______________________________________________________________________________
| |
NUMBER OF | 7. | SOLE VOTING POWER 0
SHARES | |
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8. | SHARED VOTING POWER 0
REPORTING | |
PERSON WITH |_____|________________________________________________________
| |
| 9. | SOLE DISPOSITIVE POWER 0
| |
|_____|________________________________________________________
| |
| 10. | SHARED DISPOSITIVE POWER 0
| |
_______________|_____|_________________________________________________________
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY
EACH REPORTING PERSON 0
______________________________________________________________________________
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
______________________________________________________________________________
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN
ROW (11) 0
______________________________________________________________________________
14. TYPE OF REPORTING PERSON OO; IV
______________________________________________________________________________
16
<PAGE>
This Amendment No. 4 amends and supplements the Tender Offer Statement on
Schedule 14D-1 originally filed with the Securities and Exchange Commission on
August 8, 1997 (as heretofore amended, the "Schedule 14D-1") relating to the
offer by Greenmarine Acquisition Corp., a Delaware corporation (the "Purchaser")
and a wholly owned subsidiary of Greenmarine Holdings LLC, a Delaware limited
liability company ("Parent"), the members of which are Quasar Strategic Partners
LDC, a Cayman Islands limited duration company ("QSP"), Quantum Industrial
Partners LDC, a Cayman Islands limited duration company ("QIP"), and Greenlake
Holdings LLC, a Delaware limited liability company ("Greenlake"), to purchase
all outstanding shares of common stock, $0.15 par value per share (the
"Shares"), of Outboard Marine Corporation, a Delaware corporation (the
"Company"), including 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 purchase price of
$18.00 per Share (and associated Right), net to the seller in cash, without
interest, upon the terms and subject to the conditions set forth in the
Purchaser's Offer to Purchase and in the related Letter of Transmittal each
dated August 8, 1997 (which together constitute the "Offer"). This Amendment
also constitutes Amendment No. 7 to the Statement on Schedule 13D previously
filed by Greenlake, Alfred D. Kingsley and Gary K. Duberstein. Messrs. Kingsley
and Duberstein and Greenlake collectively constitute the "Greenlake Group". In
addition, this Amendment constitutes Amendment No. 4 to the Statement on
Schedule 13D previously filed by Parent, Purchaser, QSP, QIP, Quantum Industrial
Holdings Ltd., a British Virgin Islands corporation, QIH Management Investor,
L.P., a Delaware limited partnership, QIH Management Inc., a Delaware
corporation, Soros Fund Management LLC, a Delaware limited liability company,
Quasar International Fund N.V., a Netherlands Antilles limited liability
corporation, Quasar International Partners C.V., a Netherlands Antilles limited
partnership, George Soros and Stanley F. Druckenmiller, who may be deemed to be
part of a group, for purposes of Schedule 13D, with the Greenlake Group by
virtue of the contractual arrangements relating to the formation of Parent and
Purchaser and the Offer, as more fully described or incorporated by reference
into this Schedule 14D-1; however, none of such persons affirms the existence of
any such group. The item numbers and responses thereto below are in accordance
with the requirements of Schedule 14D-1. Capitalized terms used and not defined
herein have the meanings assigned to them in the Schedule 14D-1.
Information relating to members of the Greenlake Group in the Schedule
14D-1 and the related Offer to Purchase has been provided by Greenlake Holdings
LLC. Information relating to persons other than the Greenlake Group in the
Schedule 14D-1 and the related Offer to Purchase has been provided individually
by such person.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT
COMPANY.
ITEM 5. PURPOSE OF TENDER OFFER AND PLANS OR PROPOSALS OF THE
BIDDER.
On September 10, 1997, Alfred D. Kingsley, CEO and President of the
Purchaser, sent a letter to Harry W. Bowman, Chairman of the Board and CEO of
the Company, the full text of which is filed herewith as Exhibit (g)(5). On
September 10, 1997, the Purchaser also delivered to the Company and its counsel
a revised draft of the Proposed Merger Agreement, a copy of which is filed
herewith as Exhibit (c)(3).
17
<PAGE>
ITEM 10. ADDITIONAL INFORMATION.
On September 10, 1997, the Purchaser issued a press release, the full text
of which is filed herewith as Exhibit (a)(10).
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<S> <C>
(a)(1) Offer to Purchase, dated August 8, 1997*
(a)(2) Letter of Transmittal*
(a)(3) Letter from Greenmarine Acquisition Corp. to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees*
(a)(4) Letter from Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees to Clients*
(a)(5) Notice of Guaranteed Delivery*
(a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9*
(a)(7) Summary Announcement, dated August 8, 1997*
(a)(8) Press Release issued by Greenmarine Acquisition Corp. on August 7, 1997*
(a)(9) Press Release issued by Greenmarine Acquisition Corp. on September 8, 1997*
(a)(10) Press Release issued by Greenmarine Acquisition Corp. on September 10, 1997
(b)(1) Financing Commitment Letter, dated August 7, 1997, among Greenmarine Acquisition Corp and
American Financial Group, Inc.*
(b)(2) Credit Agreement by and among Greenmarine Acquisition Corp., as Borrower, and American
Annuity Group, Inc. and Great American Insurance Company, as Lenders, dated August 13, 1997*
(c)(1) Operating Agreement of Greenmarine Holdings LLC dated August 7, 1997 by and among the
Members signatory thereto*
(c)(2) Joint Filing Agreement, dated August 20, 1997*
(c)(3) Draft of Proposed Agreement and Plan of Merger among Greenmarine Holdings LLC,
Greenmarine Acquisition Corp. and Outboard Marine Corporation
(g)(1) Complaint filed in the Court of Chancery for the State of Delaware in and for New Castle County,
dated August 8, 1997, captioned Greenmarine Acquisition Corp. v. Outboard Marine Corporation et
al., C.A. No. 15864NC*
(g)(2) Letter dated August 11, 1997 from Alfred D. Kingsley to the Board of Directors of the Company*
(g)(3) Letter dated August 12, 1997 from Harry W. Bowman to Alfred D. Kingsley*
(g)(4) Letter dated August 12, 1997 from Alfred D. Kingsley to Harry W. Bowman*
(g)(5) Letter dated September 10, 1997 from Alfred D. Kingsley to Harry W. Bowman
</TABLE>
- ------------
*Previously filed.
18
<PAGE>
SIGNATURE
After due inquiry and to the best of its knowledge and belief, each of the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Dated: September 10, 1997 GREENLAKE HOLDINGS LLC
By: /s/ Gary K. Duberstein
-------------------------------
Gary K. Duberstein
Member
/s/ Alfred D. Kingsley
-------------------------------------
Alfred D. Kingsley
/s/ Gary K. Duberstein
-------------------------------------
Gary K. Duberstein
GREENMARINE HOLDINGS LLC
By: /s/ Gary K. Duberstein
-------------------------------
Gary K. Duberstein
Title: Member
GREENMARINE ACQUISITION CORP.
By: /s/ Gary K. Duberstein
-------------------------------
Gary K. Duberstein
Title: Vice-President
QUANTUM INDUSTRIAL HOLDINGS LTD.
By: /s/ Michael C. Neus
-------------------------------
Michael C. Neus
Attorney-in-Fact
QUANTUM INDUSTRIAL PARTNERS LDC
By: /s/ Michael C. Neus
-------------------------------
Michael C. Neus
Attorney-in-Fact
QIH MANAGEMENT INVESTOR, L.P.
By: QIH Management, Inc.,
its General Partner
By: /s/ Michael C. Neus
-------------------------------
Michael C. Neus
Vice President
19
<PAGE>
QIH MANAGEMENT, INC.
By:/s/ Michael C. Neus
-------------------------------
Michael C. Neus
Vice President
SOROS FUND MANAGEMENT LLC
By:/s/ Michael C. Neus
-------------------------------
Michael C. Neus
Assistant General Counsel
GEORGE SOROS
By:/s/ Michael C. Neus
-------------------------------
Michael C. Neus
Attorney-in-Fact
STANLEY F. DRUCKENMILLER
By:/s/ Michael C. Neus
-------------------------------
Michael C. Neus
Attorney-in-Fact
QUASAR INTERNATIONAL FUND N.V.
By:/s/ Michael C. Neus
-------------------------------
Michael C. Neus
Attorney-in-Fact
QUASAR INTERNATIONAL PARTNERS C.V.
By:/s/ Michael C. Neus
-------------------------------
Michael C. Neus
Attorney-in-Fact
QUASAR STRATEGIC PARTNERS LDC
By:/s/ Michael C. Neus
-------------------------------
Michael C. Neus
Attorney-in-Fact
20
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description Page No.
- --------- ----------- ---------
<S> <C> <C>
(a)(1) Offer to Purchase, dated August 8, 1997*
(a)(2) Letter of Transmittal*
(a)(3) Letter from Greenmarine Acquisition Corp. to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees*
(a)(4) Letter from Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees to Clients*
(a)(5) Notice of Guaranteed Delivery*
(a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9*
(a)(7) Summary Announcement, dated August 8, 1997*
(a)(8) Press Release issued by Greenmarine Acquisition Corp. on August 7, 1997*
(a)(9) Press Release issued by Greenmarine Acquisition Corp. on September 8, 1997*
(a)(10) Press Release issued by Greenmarine Acquisition Corp. on September 10, 1997
(b)(1) Financing Commitment Letter, dated August 7, 1997, among Greenmarine Acquisition Corp and
American Financial Group, Inc.*
(b)(2) Credit Agreement by and among Greenmarine Acquisition Corp., as Borrower, and American
Annuity Group, Inc. and Great American Insurance Company, as Lenders, dated August 13, 1997*
(c)(1) Operating Agreement of Greenmarine Holdings LLC dated August 7, 1997 by and among the
Members signatory thereto*
(c)(2) Joint Filing Agreement, dated August 20, 1997*
(c)(3) Draft of Proposed Agreement and Plan of Merger among Greenmarine Holdings LLC,
Greenmarine Acquisition Corp. and Outboard Marine Corporation
(g)(1) Complaint filed in the Court of Chancery for the State of Delaware in and for New Castle County,
dated August 8, 1997, captioned Greenmarine Acquisition Corp. v. Outboard Marine Corporation et
al., C.A. No. 15864NC*
(g)(2) Letter dated August 11, 1997 from Alfred D. Kingsley to the Board of Directors of the Company*
(g)(3) Letter dated August 12, 1997 from Harry W. Bowman to Alfred D. Kingsley*
(g)(4) Letter dated August 12, 1997 from Alfred D. Kingsley to Harry W. Bowman*
(g)(5) Letter dated September 10, 1997 from Alfred D. Kingsley to Harry W. Bowman
</TABLE>
- ------------
* Previously filed.
<PAGE>
Exhibit (a)(10)
Contact: Charles Garske
Georgeson & Company Inc.
(212) 440-9916
GREENMARINE RESPONDS TO OUTBOARD MARINE
(New York, NY, September 10, 1997) Greenmarine Acquisition Corp., a wholly-owned
subsidiary of Greenmarine Holdings LLC, today sent the following letter to Harry
W. Bowman, Chairman of the Board, President and Chief Executive Officer of
Outboard Marine Corporation:
Mr. Harry W. Bowman
Chairman of the Board,
President and Chief Executive Officer
Outboard Marine Corporation
100 Sea Horse Drive
Waukegan, Illinois
Dear Mr. Bowman:
We appreciated the announcement yesterday by the
Board that it will eliminate all impediments to the closing of our
tender offer. We must now document in a customary fashion the steps you
say will be taken. To that end, we are enclosing a revised Merger
Agreement which reflects such steps and provides for an $18 per share
cash tender offer with no financing or refinancing conditions.
--
Specifically, the Merger Agreement documents and
confirms the actions that your representatives indicated would be
taken, including to render inapplicable various anti-takeover
provisions, to amend certain employee benefit plans and to avoid a
possible default under OMC's existing revolving credit agreement.
The Merger Agreement also provides that OMC's Board
of Directors will take certain further actions that are entirely within
its control to eliminate an additional $6 million of payments under
certain
1
<PAGE>
employee benefit plans based solely on a change in control (but not to
eliminate or reduce benefits under such plans that are based on ---
performance). A multiple of such amount will still be payable to
executives and key employees under "golden parachutes" and other plans.
Please note that we intend to make adequate provision for employees and
believe that incentive plans can and should be in place.
We are ready to proceed.
Very truly yours,
/s/ Alfred D. Kingsley
Greenmarine previously announced an all cash tender offer for all outstanding
shares of common stock of Outboard Marine Corporation (NYSE: OM) at $18.00 net
per share. Further details are available in the tender offer documents on file
with the Securities and Exchange Commission.
* * *
<PAGE>
Exhibit (c)(3)
Draft (9/10/97)
AGREEMENT AND PLAN OF MERGER
AMONG
GREENMARINE HOLDINGS LLC,
GREENMARINE ACQUISITION CORP.
AND
OUTBOARD MARINE CORPORATION
DATED AS OF SEPTEMBER __, 1997
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE 1 THE OFFER............................................. 2
1.1. THE OFFER............................................. 2
1.2. ACTIONS BY PURCHASER AND MERGER SUB................... 3
1.3. ACTIONS BY THE COMPANY................................ 4
1.4. DIRECTORS............................................. 6
ARTICLE 2 THE MERGER............................................ 7
2.1. THE MERGER............................................ 7
2.2. THE CLOSING........................................... 7
2.3. EFFECTIVE TIME........................................ 7
ARTICLE 3 CERTIFICATE OF INCORPORATION AND BYLAWS
OF THE SURVIVING CORPORATION.......................... 7
3.1. CERTIFICATE OF INCORPORATION.......................... 7
3.2. BYLAWS................................................ 8
ARTICLE 4 DIRECTORS AND OFFICERS OF THE SURVIVING
CORPORATION........................................... 8
4.1. DIRECTORS............................................. 8
4.2. OFFICERS.............................................. 8
ARTICLE 5 EFFECT OF THE MERGER ON SECURITIES
OF MERGER SUB AND THE COMPANY......................... 8
5.1. MERGER SUB STOCK...................................... 8
5.2. COMPANY SECURITIES.................................... 8
5.3. EXCHANGE OF CERTIFICATES REPRESENTING
COMMON STOCK..........................................10
5.4. ADJUSTMENT OF MERGER CONSIDERATION....................11
5.5. DISSENTING COMPANY STOCKHOLDERS.......................12
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF THE COMPANY.........12
6.1. EXISTENCE; GOOD STANDING; CORPORATE
AUTHORITY.............................................12
6.2. AUTHORIZATION, VALIDITY AND EFFECT OF
AGREEMENTS............................................13
6.3. COMPLIANCE WITH LAWS..................................13
6.4. CAPITALIZATION........................................14
6.5. SUBSIDIARIES..........................................16
6.6. NO VIOLATION..........................................16
6.7. COMPANY REPORTS; OFFER DOCUMENTS......................17
6.8. ABSENCE OF CERTAIN CHANGES............................20
6.9. TAXES.................................................20
6.10. LITIGATION............................................21
6.11. EMPLOYEE BENEFIT PLANS................................21
i
<PAGE>
6.12. EMPLOYMENT RELATIONS AND AGREEMENTS...................24
6.13. CONTRACTS.............................................26
6.14. ENVIRONMENTAL LAWS AND REGULATIONS....................27
6.15. BROKERS...............................................28
6.16. OPINION OF FINANCIAL ADVISOR..........................28
6.17. NO RESTRICTIONS ON THE OFFER OR THE MERGER............28
6.18. INTELLECTUAL PROPERTY.................................28
6.19. TERMINATION OF DDC MERGER AGREEMENT...................29
6.20. RIGHTS AGREEMENT......................................29
ARTICLE 7 REPRESENTATIONS AND WARRANTIES
OF PURCHASER AND MERGER SUB...........................30
7.1. EXISTENCE; GOOD STANDING; CORPORATE
AUTHORITY.............................................30
7.2. AUTHORIZATION, VALIDITY AND EFFECT OF
AGREEMENTS............................................30
7.3. OFFER DOCUMENTS.......................................31
7.4. NO VIOLATION..........................................32
7.5. FINANCING.............................................32
7.6. BUSINESS OF PURCHASER AND MERGER SUB..................32
7.7. COMPLIANCE WITH LAWS..................................33
7.8. CAPITALIZATION........................................33
7.9. LITIGATION............................................34
7.10. CONTRACTS.............................................34
ARTICLE 8 COVENANTS.............................................34
8.1. NO SOLICITATION.......................................34
8.2. INTERIM OPERATIONS OF THE COMPANY.....................36
8.3. INTERIM OPERATIONS OF PURCHASER AND
MERGER SUB............................................38
8.4. COMPANY STOCKHOLDER APPROVAL; PROXY
STATEMENT.............................................39
8.5. FILINGS; OTHER ACTION.................................40
8.6. PUBLICITY.............................................41
8.7. FURTHER ACTION........................................41
8.8. EMPLOYEE BENEFIT PLANS; OTHER EMPLOYEE
MATTERS...............................................41
8.9. INSURANCE; INDEMNITY..................................42
8.10. REAL PROPERTY TRANSFER TAXES..........................44
8.11. RIGHTS AGREEMENT......................................44
8.12. TERMINATION OF REVOLVING CREDIT AGREEMENT.............44
8.13. ACCESS ...............................................44
8.14. BY-LAWS AMENDMENT.....................................45
ARTICLE 9 CONDITIONS............................................45
9.1. CONDITIONS TO EACH PARTY'S OBLIGATION TO
EFFECT THE MERGER.....................................45
9.2. CONDITIONS TO MERGER SUB'S AND PURCHASER'S
OBLIGATIONS TO EFFECT THE MERGER......................45
ii
<PAGE>
ARTICLE 10 TERMINATION; AMENDMENT; WAIVER........................46
10.1. TERMINATION...........................................46
10.2. EFFECT OF TERMINATION.................................47
10.3. AMENDMENT.............................................48
10.4. EXTENSION; WAIVER.....................................49
ARTICLE 11 GENERAL PROVISIONS....................................49
11.1. NONSURVIVAL OF REPRESENTATIONS AND
WARRANTIES............................................49
11.2. NOTICES...............................................49
11.3. ASSIGNMENT; BINDING EFFECT............................51
11.4. ENTIRE AGREEMENT......................................51
11.5. FEES AND EXPENSES.....................................52
11.6. GOVERNING LAW.........................................52
11.7. HEADINGS..............................................52
11.8. INTERPRETATION........................................52
11.9. SEVERABILITY..........................................52
11.10. ENFORCEMENT OF AGREEMENT..............................53
11.11. COUNTERPARTS..........................................53
11.12. OBLIGATION OF PURCHASER...............................53
11.13. CERTAIN DEFINITIONS...................................53
EXHIBIT A Conditions of the Offer
EXHIBIT B Amendment to Rights Agreement
EXHIBIT 8.12 (a) Amendment to Revolving Credit Agreement
EXHIBIT 8.12 (b) Amendment to Rutherford County,
Tennessee IRBs
ANNEX 1.4 New Directors
iii
<PAGE>
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of September
[ ], 1997, among Greenmarine Holdings LLC, a Delaware limited liability company
("Purchaser"), Greenmarine Acquisition Corp., a Delaware corporation and
wholly-owned subsidiary of Purchaser ("Merger Sub"), and Outboard Marine
Corporation, a Delaware corporation (the "Company").
RECITALS
WHEREAS, Merger Sub has outstanding an offer (the "Existing Offer", and
as amended pursuant to this Agreement, the "Offer") to purchase all of the
issued and outstanding shares of common stock, par value $0.15 per share
("Common Stock"), of the Company, together with 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 of Common Stock (and the associated Right), net to the
seller in cash, without interest thereon, upon the terms and subject to the
conditions set forth in the Offer to Purchase, dated August 8, 1997 (the "Offer
to Purchase"), and the related Letter of Transmittal (the "Letter of
Transmittal");
WHEREAS, the Board of Directors of the Company has (i) determined that
the consideration to be paid for each share of Common Stock in the Offer and in
the Merger (as defined herein) is fair to and in the best interests of the
stockholders of the Company, (ii) approved this Agreement and the transactions
contemplated hereby and (iii) resolved to recommend acceptance of the Offer and
the Merger and approval of this Agreement by the stockholders of the Company;
WHEREAS, the Management Committee and Board of Directors of Purchaser
and the Company, respectively, each have determined that it is in the best
interests of their respective companies and members or stockholders, as the case
may be, for Purchaser to acquire the Company upon the terms and subject to the
conditions set forth herein; and
WHEREAS, the parties hereto desire to make certain representations,
warranties, covenants and agreements in connection herewith;
<PAGE>
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE 1
THE OFFER
1.1. THE OFFER.
(a) Subject to the provisions of this Agreement and this Agreement
not having been terminated in accordance with Article 10 hereof, Merger Sub
shall amend the Existing Offer as soon as practicable after the date hereof to
(i) modify the conditions of the Existing Offer to conform to the conditions and
events set forth in Exhibit A hereto and no others and (ii) make such other
amendments as are required to conform the Existing Offer to this Agreement, it
being understood that except for the foregoing amendments or as otherwise
provided herein, the Offer shall be on the same terms and conditions as the
Existing Offer. The obligation of Merger Sub to accept for payment, and pay for,
any shares of Common Stock tendered pursuant to the Offer shall be subject to
the conditions set forth in Exhibit A hereto and to the terms and conditions of
this Agreement.
(b) Merger Sub expressly reserves the right to modify the terms,
and waive any condition, of the Offer except that, without the prior written
consent of the Company, Merger Sub shall not (i) waive the Minimum Condition (as
defined in Exhibit A), (ii) reduce the number of shares of Common Stock subject
to the Offer, (iii) reduce the price per share of Common Stock to be paid
pursuant to the Offer, (iv) change the form of consideration payable in the
Offer, (v) amend or modify any term or condition of the Offer (including the
conditions set forth in Exhibit A) in any manner adverse to the holders of
Common Stock or (vi) impose additional conditions to the Offer other than such
conditions required by applicable Law (as hereinafter defined). Notwithstanding
the foregoing, so long as this Agreement is in effect, Merger Sub may, without
the consent of the Company, extend the Offer (i) if at the then scheduled
expiration date of the Offer any of the conditions to Merger Sub's obligation to
accept for payment and pay for shares of Common Stock shall not be satisfied or
waived, until such time as such conditions are satisfied or waived; (ii) for any
period required by any rule, regulation, interpretation or position of the
Securities and Exchange
2
<PAGE>
Commission (the "SEC") or the staff applicable to the Offer; and (iii) up to 10
days following the satisfaction of all of the conditions in Exhibit A; provided,
however, that in no event shall Purchaser extend the Offer for more than 20 days
in the aggregate without the consent of the Company. Subject to the terms and
conditions of the Offer and this Agreement, Merger Sub shall accept for payment
and pay for, in accordance with the terms of the Offer, all shares of Common
Stock to the extent validly tendered and not withdrawn pursuant to the Offer as
soon as practicable after the expiration of the Offer.
1.2. ACTIONS BY PURCHASER AND MERGER SUB. As soon as practicable
after the date hereof, but, in any event within three business days, Purchaser
and Merger Sub shall amend their Tender Offer Statement on Schedule 14D-1 with
respect to the Existing Offer (as amended, the "Schedule 14D-1"), and shall file
such amendment with the SEC. The Schedule 14D-1 shall contain a supplement to
the Offer to Purchase and a revised form of the Letter of Transmittal and any
other ancillary documents pursuant to which the Offer shall be made (the
Schedule 14D-1 and the documents therein pursuant to which the Offer will be
made, together with any supplements or amendments thereto, the "Offer
Documents"). The Company and its counsel shall be given a reasonable opportunity
to review and comment upon the Offer Documents prior to the filing thereof with
the SEC. The Offer Documents shall comply as to form in all material respects
with the requirements of the Exchange Act, and, on the date filed with the SEC
and on the date first published, sent or given to the Company's stockholders,
the Offer Documents shall not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that no representation is made by
Purchaser or Merger Sub with respect to information supplied in writing by the
Company specifically for inclusion in the Offer Documents. Each of Purchaser,
Merger Sub and the Company agrees promptly to correct any information provided
by it for use in the Offer Documents if and to the extent such information shall
have become false or misleading in any material respect, and each of Purchaser,
Merger Sub and the Company further agrees to take all steps necessary to cause
the Offer Documents as so corrected to be filed with the SEC and to be
disseminated to holders of shares of Common Stock, in each case as and to the
extent required by applicable federal securities laws. Purchaser and Merger Sub
agree to provide the Company and its counsel in writing with any comments
Purchaser, Merger Sub or their counsel may receive from the SEC or its staff
3
<PAGE>
with respect to the Offer Documents promptly after receipt of such comments.
1.3. ACTIONS BY THE COMPANY.
(a) The Company hereby approves of and consents to the Offer and
represents and warrants that the Board of Directors of the Company (the "Board
of Directors" or the "Board") at a meeting duly called and held has duly adopted
resolutions (i) approving this Agreement, the Offer and the Merger (as
hereinafter defined), determining that the Merger is advisable and that the
terms of the Offer and Merger are fair to, and in the best interests of, the
Company's stockholders and recommending that the Company's stockholders accept
the Offer and approve the Merger and this Agreement, and (ii) taking all action
necessary to render Section 203 of the Delaware General Corporation Law (the
"DGCL"), Article Eighteenth of the Company's Restated Certificate of
Incorporation and the provisions of the Rights Agreement inapplicable to the
Offer, the Merger, this Agreement and any of the transactions contemplated
hereby. The Company further represents and warrants that the Board of Directors
has received the written opinion of Salomon Brothers Inc (the "Financial
Advisor") that the proposed consideration to be received by the holders of
shares of Common Stock pursuant to the Offer and the Merger is fair to such
holders from a financial point of view (the "Fairness Opinion"). The Company
hereby represents and warrants that it has been authorized by the Financial
Advisor to permit the inclusion of the Fairness Opinion, and, subject to the
reasonable approval of the Financial Advisor, the inclusion of references to
such Fairness Opinion, in the Proxy Statement (as hereinafter defined). The
Company has been advised by each of its directors and executive officers that
each such person intends to tender all shares of Common Stock owned by such
person pursuant to the Offer, except to the extent of any restrictions created
by Section 16(b) of the Exchange Act. If the Board of Directors determines,
based on the advice of counsel, that its fiduciary duties require it to
withdraw, modify or amend its recommendations described above, such withdrawal,
amendment or modification shall not constitute a breach of this Agreement but
shall have the effects specified herein.
(b) On the date the Offer Documents are filed with the SEC, the
Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from
time to time, the "Schedule 14D-9") containing the recommendations described in
the first sentence of Section 1.3(a) (subject to the last sentence of Section
1.3(a)) and shall
4
<PAGE>
mail the Schedule 14D-9 to the stockholders of the Company. To the extent
practicable, the Company shall cooperate with Purchaser in mailing or otherwise
disseminating the Schedule 14D-9 with the appropriate Offer Documents to the
Company's stockholders. Purchaser and its counsel shall be given a reasonable
opportunity to review and comment upon the Schedule 14D-9 prior to the filing
thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material
respects with the requirements of the Exchange Act and, on the date filed with
the SEC and on the date first published, sent or given to the Company's
stockholders, shall not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that no representation is made by the
Company with respect to information supplied by Purchaser or Merger Sub for
inclusion in the Schedule 14D-9. Each of the Company, Purchaser and Merger Sub
agrees promptly to correct any information provided by it for use in the
Schedule 14D-9 if and to the extent such information shall have become false or
misleading in any material respect, and the Company further agrees to take all
steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the
SEC and to be disseminated to the holders of shares of Common Stock, in each
case as and to the extent required by applicable federal securities laws. The
Company agrees to provide Purchaser and Merger Sub and their counsel in writing
with any comments the Company or its counsel may receive from the SEC or its
staff with respect to the Schedule 14D-9 promptly after the receipt of such
comments.
(c) In connection with the Offer, the Company shall cause its
transfer agent to assist Merger Sub in compiling mailing labels containing the
names and addresses of the record holders of Common Stock as of a recent date
and of those persons becoming record holders subsequent to such date, and to
furnish copies of other information in the Company's possession or control
regarding the beneficial owners of Common Stock, and shall furnish to Merger Sub
such information and assistance (including updated lists of stockholders,
security position listings and computer files) as Merger Sub may reasonably
request in communicating the Offer to the Company's stockholders. Subject to the
requirements of law, and except for such steps as are necessary to disseminate
the Offer Documents and any other documents necessary to consummate the Offer
and the Merger, Purchaser and Merger Sub and each of their affiliates and
associates shall hold in confidence the information contained in any of such
labels, lists and files, shall use such information only in connection with the
Offer and the
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Merger, and, if this Agreement is terminated, shall promptly deliver to the
Company all copies of such information then in their possession or under their
control.
(d) Subject to the terms and conditions of this Agreement, if there
shall occur a change in law or in a binding judicial interpretation of existing
law which would, in the absence of action by the Company or the Board, prevent
Merger Sub, were it to acquire a specified percentage of the shares of Common
Stock then outstanding, from approving and adopting this Agreement by its
affirmative vote as the holder of 67% of the issued and outstanding shares of
Common Stock and without the affirmative vote of any other stockholder, the
Company will use its best efforts to promptly take or cause such action to be
taken, or, at the election of Purchaser prior to consummation of the Offer, this
Agreement shall terminate.
1.4. DIRECTORS.
(a) Promptly upon the purchase by Merger Sub, pursuant to the
Offer, of a number of shares of Common Stock that, when added to the number of
shares of Common Stock beneficially owned by Merger Sub and Purchaser,
represents at least 67% of the outstanding shares of Common Stock on a
fully-diluted basis and from time to time thereafter, the parties shall, subject
to the provisions of Section 14(f) of the Exchange Act and Rule 14f-1 under the
Exchange Act, promptly use all reasonable efforts necessary to cause the persons
listed on Annex 1.4 to comprise the entire Board of Directors of the Company.
The date on which such persons first comprise the Company's Board of Directors
is referred to as the "Control Date".
(b) From and after the Control Date and prior to the Effective Time
and as long as there is at least one director who is designated as a "Continuing
Director" on Schedule 1.4 (a "Continuing Director" and, collectively, the
"Continuing Directors"), if requested by a majority of the Continuing Directors,
all other directors shall abstain from acting upon, and the approval of a
majority of the Continuing Directors shall be required to authorize, any
termination of this Agreement requiring action by the Board of Directors of the
Company, any extension of time for the performance of any obligation or other
act of the Parent or Merger Sub under this Agreement and any waiver of
compliance with any provision of this Agreement for the benefit of the Company.
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ARTICLE 2
THE MERGER
2.1. THE MERGER. Subject to the terms and conditions of this
Agreement, at the Effective Time, Merger Sub shall be merged with and into the
Company in accordance with this Agreement and the applicable provisions of the
General Corporation Law of the State of delaware (the "DGCL"), and the separate
corporate existence of Merger Sub shall thereupon cease (the "Merger"). The
Company shall be the surviving corporation in the Merger (sometimes hereinafter
referred to as the "Surviving Corporation"). The Merger shall have the effects
specified in the DGCL.
2.2. THE CLOSING. Subject to the terms and conditions of this
Agreement, the closing of the Merger (the "Closing") shall take place at the
offices of Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New York, at
10:00 a.m., New York City time, on the earliest practicable date following the
satisfaction (or waiver, if permissible) of the conditions set forth in Article
9 hereof. The date on which the Closing occurs is hereinafter referred to as the
"Closing Date."
2.3. EFFECTIVE TIME. If all of the conditions to the Merger set
forth in Article 9 hereof shall have been fulfilled or waived in accordance
herewith and this Agreement shall not have been terminated as provided in
Article 10 hereof, the parties hereto shall cause a certificate of merger or
other appropriate documents (in any such case, the "Certificate of Merger")
executed in accordance with the relevant provisions of the DGCL and shall make
all other filings or recordings under the DGCL. The Merger shall become
effective at the time of filing of the Certificate of Merger with the Secretary
of State of the State of Delaware in accordance with the DGCL, or at such later
time which the parties hereto shall have agreed upon and designated in such
filing as the effective time of the Merger (the "Effective Time").
ARTICLE 3
CERTIFICATE OF INCORPORATION AND BYLAWS
OF THE SURVIVING CORPORATION
3.1. CERTIFICATE OF INCORPORATION. The Certificate of Incorporation
of Merger Sub in effect immediately prior to the Effective Time shall be the
Certificate of Incorporation of the Surviving Corporation, until duly
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amended in accordance with applicable law and the terms thereof.
3.2. BYLAWS. The Bylaws of Merger Sub in effect immediately prior
to the Effective Time shall be the Bylaws of the Surviving Corporation, until
duly amended in accordance with applicable law, the terms thereof and the
Surviving Corporation's Certificate of Incorporation.
ARTICLE 4
DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION
4.1. DIRECTORS. The directors of Merger Sub immediately prior to
the Effective Time shall be the directors of the Surviving Corporation as of the
Effective Time and until their successors are duly appointed or elected in
accordance with applicable law and the Surviving Corporation's Certificate of
Incorporation and Bylaws.
4.2. OFFICERS. The officers of the Company immediately prior to the
Effective Time shall be the officers of the Surviving Corporation as of the
Effective Time and until their successors are duly appointed or elected in
accordance with applicable law and the Surviving Corporation's Certificate of
Incorporation and Bylaws.
ARTICLE 5
EFFECT OF THE MERGER ON SECURITIES
OF MERGER SUB AND THE COMPANY
5.1. MERGER SUB STOCK. At the Effective Time, each share of common
stock, $0.01 par value per share, of Merger Sub outstanding immediately prior to
the Effective Time shall be converted into and exchanged for one validly issued,
fully paid and non-assessable share of Common Stock.
5.2. COMPANY SECURITIES.
(a) At the Effective Time, each share of Common Stock issued and
outstanding immediately prior to the Effective Time (other than shares of Common
Stock held in the treasury of the Company, all of which shall be cancelled and
shall cease to exist, shares of Common Stock held by Purchaser or Merger Sub and
shares of Dissenting Common Stock (as defined in Section 5.5 hereof)) (the
"Exchanged Common Shares") shall, by virtue of the Merger and without
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any action on the part of the holder thereof, be converted into the right to
receive a cash payment equal to $18.00 per share (the "Merger Consideration").
(b) As a result of the Merger and without any action on the part of
the holder thereof, at the Effective Time, all issued and outstanding shares of
Common Stock shall cease to be outstanding and shall be cancelled and retired
and shall cease to exist, and each holder of shares of Common Stock (other than
Merger Sub, Purchaser and the Company) shall thereafter cease to have any rights
with respect to such shares of Common Stock, except the right to receive,
without interest, the Merger Consideration in accordance with Section 5.3 upon
the surrender of a certificate (each, a "Certificate") or Certificates
representing such shares of Common Stock.
(c) Each share of Common Stock issued and held in the treasury of
the Company at the Effective Time shall, by virtue of the Merger, be cancelled
and retired and shall cease to exist without payment of any consideration
therefor.
(d) The Company shall use reasonable efforts to ensure that all
outstanding stock options (individually, an "Option" and, collectively, the
"Options") and phantom restricted stock awards (individually, a "Phantom
Restricted Stock Award" and, collectively, the "Phantom Restricted Stock
Awards") granted prior to January 1, 1996 under any plan, program or arrangement
of the Company (collectively, the "Incentive Equity Plans") that are outstanding
immediately prior to the Effective Time shall be acquired by the Company at the
Effective Time for cash payments by the Company as follows:
(i) With respect to Options, an amount equal to
(A) the excess, if any, of (1) $18.00 over (2) the exercise price per share of
Common Stock subject to the Option, multiplied by (B) the number of shares of
Common Stock for which the Option shall not have theretofore been exercised;
provided, however, that with respect to any person subject to Section 16(a) of
the Exchange Act, any such amount shall be paid as soon as practicable after the
first date payment can be made to any such person without liability to such
person under Section 16(b) of the Exchange Act; and
(ii) With respect to Phantom Restricted Stock
Awards made prior to January 1, 1996, an amount equal to (A)(I) the number of
Phantom Restricted Stock Awards covered by the award multiplied by (II) $18.00
plus (B) the cash
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value of dividend equivalents credited to the Phantom Restricted Stock Awards
covered by the award.
All amounts payable pursuant to this Section 5.2(d) shall be subject to any
required withholding of taxes and shall be paid without interest thereon.
5.3. EXCHANGE OF CERTIFICATES REPRESENTING COMMON STOCK.
(a) Prior to the Effective Time, Purchaser shall appoint a
commercial bank or trust company having net capital of not less than $200
million, or such other party reasonably satisfactory to the Company, to act as
paying agent hereunder for payment of the Merger Consideration upon surrender of
Certificates (the "Paying Agent"). Purchaser shall cause the Surviving
Corporation to provide the Paying Agent with cash in amounts necessary to pay
for all the shares of Common Stock pursuant to Section 5.2(a) and, in connection
with the Options and Phantom Restricted Stock Awards, pursuant to Section
5.2(d), as and when such amounts are needed by the Paying Agent. Such amounts
shall hereinafter be referred to as the "Exchange Fund."
(b) Promptly after the Effective Time, Purchaser shall cause the
Paying Agent to mail to each holder of record of shares of Common Stock (i) a
letter of transmittal which shall specify that delivery shall be effected, and
risk of loss and title to such Certificates shall pass, only upon delivery of
the Certificates to the Paying Agent and which letter shall be in such form and
have such other provisions as Purchaser may reasonably specify and (ii)
instructions for effecting the surrender of such Certificates in exchange for
the Merger Consideration. Upon surrender of a Certificate to the Paying Agent
together with such letter of transmittal, duly executed and completed in
accordance with the instructions thereto, and such other documents as may
reasonably be required by the Paying Agent, the holder of such Certificate shall
promptly receive in exchange therefor the Merger Consideration payable with
respect to the shares of Common Stock represented by such Certificate pursuant
to this Agreement and the shares represented by the Certificates so surrendered
shall forthwith be cancelled. No interest will be paid or will accrue on the
cash payable upon surrender of any Certificate. In the event of a transfer of
ownership of Common Stock which is not registered in the transfer records of the
Company, payment may be made with respect to such Common Stock to such a
transferee if the Certificate representing such shares of Common Stock is
presented to the Paying Agent, accompanied by all documents reasonably required
to evidence
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and effect such transfer and to evidence that any applicable stock transfer
taxes have been paid.
(c) At or after the Effective Time, there shall be no transfers on
the stock transfer books of the Company of the shares of Common Stock which were
outstanding immediately prior to the Effective Time. If, after the Effective
Time, Certificates are presented to the Surviving Corporation, they shall be
cancelled and exchanged as provided in this Article 5.
(d) Any portion of the Exchange Fund (including the proceeds of any
interest and other income received by the Paying Agent in respect of all such
funds) that remains unclaimed by the former stockholders of the Company one year
after the Effective Time shall be delivered to the Surviving Corporation. Any
former stockholders of the Company who have not theretofore complied with this
Article 5 shall thereafter look only to the Surviving Corporation for payment of
any Merger Consideration that may be payable in respect of each share of Common
Stock such stockholder holds as determined pursuant to this Agreement, without
any interest thereon.
(e) None of Purchaser, the Company, the Surviving Corporation, the
Paying Agent or any other person shall be liable to any former holder of shares
of Common Stock for any amount properly delivered to a public official pursuant
to applicable abandoned property, escheat or similar laws.
(f) If any Certificate shall have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the person claiming such
Certificate to be lost, stolen or destroyed and, if required by the Surviving
Corporation, the posting by such person of a bond in such reasonable amount as
the Surviving Corporation may direct as indemnity against any claim that may be
made against it with respect to such Certificate, the Paying Agent will issue in
exchange for such lost, stolen or destroyed Certificate the Merger Consideration
payable in respect thereof pursuant to this Agreement.
(g) Except as otherwise provided herein, Purchaser shall pay all
charges and expenses, including those of the Paying Agent, in connection with
the exchange of the Merger Consideration for Certificates.
5.4. ADJUSTMENT OF MERGER CONSIDERATION. If, subsequent to the date
of this Agreement but prior to the Effective Time, the outstanding shares of
Common Stock shall have been changed into a different number of shares or a
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different class as a result of a stock split, reverse stock split, stock
dividend, distribution (other than normal cash dividends as provided in this
Agreement), subdivision, reclassification, split, combination, exchange,
recapitalization or other similar transaction, the Merger Consideration shall be
appropriately adjusted.
5.5. DISSENTING COMPANY STOCKHOLDERS. Notwithstanding any provision
of this Agreement to the contrary, if required by the DGCL but only to the
extent required thereby, shares of Common Stock which are issued and outstanding
immediately prior to the Effective Time and which are held by holders of such
shares of Common Stock who have properly exercised appraisal rights with respect
thereto in accordance with Section 262 of the DGCL (the "Dissenting Common
Stock") will not be exchangeable for the right to receive the Merger
Consideration, and holders of such shares of Dissenting Common Stock will be
entitled to receive payment of the appraised value of such shares of Common
Stock in accordance with the provisions of such Section 262 unless and until
such holders fail to perfect or effectively withdraw or lose their rights to
appraisal and payment under the DGCL. If, after the Effective Time, any such
holder fails to perfect or effectively withdraws or loses such right, such
shares of Common Stock will thereupon be treated as if they had been converted
into and to have become exchangeable for, at the Effective Time, the right to
receive the Merger Consideration, without any interest thereon. The Company will
give Purchaser notice of any demands received by the Company for appraisals of
shares of Common Stock. The Company shall not, except with the prior written
consent of Purchaser, make any payment with respect to any demands for appraisal
or settle any such demands.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the corresponding sections of the disclosure
letter, dated the date hereof, delivered by the Company to Purchaser (the
"Disclosure Letter"), the Company hereby represents and warrants to Purchaser
and Merger Sub as follows:
6.1. EXISTENCE; GOOD STANDING; CORPORATE AUTHORITY. Each of the
Company and its Subsidiaries is (i) a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and (ii) is duly licensed or qualified to do business as a foreign
corporation and is in good standing under the laws
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of any other state of the United States or the laws of any foreign jurisdiction,
if applicable, in which the character of the properties owned or leased by it or
in which the transaction of its business makes such qualification necessary,
except where the failure to be so qualified or to be in good standing would not
have a material adverse effect on the business, results of operations or
financial condition of the Company and its Subsidiaries, taken as a whole or on
the ability of the Company to consummate the transactions contemplated by this
Agreement (a "Material Adverse Effect"). Each of the Company and its
Subsidiaries has all requisite corporate power and authority to own, operate and
lease its properties and carry on its business as now conducted except where the
failure to have such power and authority would not have a Material Adverse
Effect. The Company has heretofore made available to Purchaser true and correct
copies of the Restated Certificate of Incorporation and Bylaws of the Company
and each of its Subsidiaries as currently in effect.
6.2. AUTHORIZATION, VALIDITY AND EFFECT OF AGREEMENTS. The Company
has the requisite corporate power and authority to execute and deliver this
Agreement and all agreements and documents contemplated hereby or executed in
connection herewith (the "Ancillary Documents") and subject, if required with
respect to the consummation of the Merger, to the approval of holders of the
Common Stock, to consummate the transactions contemplated hereby and thereby.
The execution and delivery of this Agreement and the Ancillary Documents by the
Company and the consummation by the Company of the transactions contemplated
hereby and thereby have been duly and validly authorized by the Board of
Directors, and no other corporate proceedings on the part of the Company are
necessary to authorize this Agreement and the Ancillary Documents or to
consummate the transactions contemplated hereby and thereby (other than the
approval of this Agreement and the Merger by the holders of the Common Stock).
This Agreement has been, and any Ancillary Document at the time of execution
will have been, duly and validly executed and delivered by the Company, and
(assuming this Agreement and such Ancillary Documents each constitutes a valid
and binding obligation of Purchaser and Merger Sub) constitutes and will
constitute the valid and binding obligations of the Company, and the Agreement
is enforceable in accordance with its terms (subject to the approval of this
Agreement and the Merger by the holders of the Common Stock).
6.3. COMPLIANCE WITH LAWS. Except as set forth in Section 6.3 of
the Disclosure Letter, neither the Company nor any of its Subsidiaries is in
violation of, and the
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consummation of the transactions contemplated by this Agreement will not result
in any violation of, any foreign, federal, state or local law, statute,
ordinance, rule, regulation, order, judgment, ruling or decree ("Laws") of any
foreign, federal, state or local judicial, legislative, executive,
administrative or regulatory body or authority or any court, arbitration, board
or tribunal ("Governmental Entity") applicable to the Company or any of its
Subsidiaries or any of their respective properties or assets, except for
violations which would not have a Material Adverse Effect, which compliance
includes, but is not limited to, the possession by the Company and its
Subsidiaries of all licenses, permits and other governmental authorizations
required under applicable Laws and compliance with the terms and conditions
thereof (collectively, "Permits"), except where the failure of the Company or
its Subsidiaries to possess such licenses, permits and authorizations, or comply
with the terms and conditions thereof, would not, individually or in the
aggregate, have a Material Adverse Effect. The completion of the transactions
contemplated by this Agreement will not result in the lapse or termination of
any Permits, other than such lapse or termination which would not have a
Material Adverse Effect.
6.4. CAPITALIZATION . (a) The authorized capital stock of the
Company consists of 90,000,000 shares of Common Stock and 3,000,000 shares of
preferred stock, $10.00 par value ("Preferred Stock"). As of August 31, 1997,
(a) [20,221,964] shares of Common Stock were issued and outstanding, (b) Options
to purchase an aggregate of [1,426,725] shares of Common Stock were outstanding,
(c) 129,716 shares of Common Stock were held by the Company in its treasury, and
(d) no shares of capital stock of the Company were held by the Company's
Subsidiaries. The Company has no outstanding bonds, debentures, notes or other
obligations entitling the holders thereof to vote (or which are convertible into
or exercisable for securities having the right to vote) with the stockholders of
the Company on any matter. Since August 31, 1997, the Company (i) has not issued
any shares of Common Stock, other than upon the exercise of Options, or
Preferred Stock, (ii) has granted no Options to purchase shares of Common Stock
under the Incentive Equity Plans and (iii) has not split, combined, converted or
reclassified any of its shares of capital stock. All issued and outstanding
shares of Common Stock are duly authorized, validly issued, fully paid,
nonassessable and free of preemptive rights. Except as set forth in this Section
6.4 or in Section 6.4(a) of the Disclosure Letter, there are no other shares of
capital stock or voting securities of the Company, and no existing options,
warrants, calls, subscriptions, convertible
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securities, or other rights, agreements or commitments which obligate the
Company or any of its Subsidiaries to issue, transfer or sell any shares of
capital stock of, or equity interests in, the Company or any of its
Subsidiaries. Section 6.4(a) of the Disclosure Letter sets forth a complete and
accurate list, as of the date hereof, with respect to (i) those persons to whom
Options, performance share or unit awards (individually, a "Performance Share
Award" and, collectively, the "Performance Share Awards") and Phantom Restricted
Stock Awards were granted or awarded, as the case may be, the date of grant or
award, as the case may be, the number of shares of Common Stock for which each
such Option, Performance Share Award or Phantom Restricted Stock Award is
exercisable or covered, as the case may be, the respective dates upon which each
such Option, Performance Share Award or Phantom Restricted Stock Award vests,
becomes exercisable and expires, as applicable, and the exercise price of each
such Option or the cash value of each such Performance Share Award or Phantom
Restricted Stock Award, as the case may be. Except as provided under the
Incentive Equity Plans, there are no equity equivalents, interests in the
ownership or earnings of the Company or its Subsidiaries, or similar rights
authorized, issued or outstanding similar to those under Incentive Equity Plans.
Except as set forth in Section 6.4(a) of the Disclosure Letter, there are no
outstanding obligations of the Company or any Subsidiaries to repurchase, redeem
or otherwise acquire any shares of capital stock of the Company and there are no
performance awards outstanding under the Incentive Equity Plan or any other
outstanding stock-related awards. There are no voting trusts or other agreements
or understandings to which the Company or any of its Subsidiaries or, to the
knowledge of the Company, any of the Company's directors or executive officers
is a party with respect to the voting of capital stock of the Company or any of
its Subsidiaries.
(b) Section 6.4(b) of the Disclosure Letter
sets forth a complete and accurate list of all debt outstanding under the Third
Amendment and Restated Revolving Credit Agreement, dated as of April 30, 1997,
among the Company, the Banks named therein, The First National Bank of Chicago,
as Agent, and Bank of America Illinois, as co-Agent (as amended or modified, the
"Revolving Credit Agreement"), and any other instrument, including, without
limitation, letters of credit, indentures, debentures, industrial revenue bonds
or notes, evidencing the Company's and its Subsidiaries' outstanding
indebtedness or guarantees or similar obligations related to borrowed money.
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6.5. SUBSIDIARIES. Except as set forth in Section 6.5 of the
Disclosure Letter, (i) the Company owns, directly or indirectly through a
Subsidiary, all of the outstanding shares of capital stock (or other ownership
interests having by their terms ordinary voting power to elect directors or
others performing similar functions with respect to such Subsidiary) of each of
the Company's Subsidiaries (except for director qualifying and similar shares),
and (ii) each of the outstanding shares of capital stock (or other ownership
interests having by their terms ordinary voting power to elect directors or
others performing similar functions with respect to such Subsidiary) of each of
the Company's Subsidiaries is duly authorized, validly issued, fully paid and
nonassessable, and (except for director qualifying and similar shares) is owned,
directly or indirectly, by the Company free and clear of all liens, pledges,
security interests, claims or other encumbrances ("Encumbrances").
6.6. NO VIOLATION. (a) Except as set forth in Section 6.6(a) of
the Disclosure Letter, neither the execution and delivery by the Company of this
Agreement or any of the Ancillary Documents nor the consummation by the Company
of the transactions contemplated hereby or thereby will: (i) violate, conflict
with or result in a breach of any provisions of the Restated Certificate of
Incorporation or Bylaws of the Company or comparable governing instruments of
any of its Subsidiaries; (ii) violate, conflict with, result in a breach of any
provision of, constitute a default (or an event which, with notice or lapse of
time or both, would constitute a default) under, result in the termination or in
a right of termination of, accelerate the performance required by or benefit
obtainable under, result in the triggering of any payment, penalty or other
obligations pursuant to, result in the creation of any Encumbrance upon any of
the properties of the Company or its Subsidiaries under, or result in there
being declared void, voidable, or without further binding effect, any of the
terms, conditions or provisions of, any note, bond, mortgage, indenture or other
obligation for or relating to borrowed money, or lease, contract or other
contract, instrument or obligation to which the Company or any of its
Subsidiaries is a party, or by which the Company or any of its Subsidiaries or
any of their respective properties is bound (each, a "Contract" and,
collectively, "Contracts"); (iii) require any consent, approval or authorization
of, license, permit or waiver by, or declaration, filing or registration
(collectively, "Consents") with, any Governmental Entity, including any such
Consent under the Laws of any foreign jurisdiction, other than (x) the filings
provided for in Section 2.3 and the filings required under the Exchange Act and
the
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Securities Act of 1933, as amended (the "Securities Act"), and (y) any Consents
required or permitted to be obtained pursuant to the Laws of any foreign
jurisdiction relating to antitrust matters or competition ("Foreign Antitrust
Laws") (collectively, "Other Antitrust Filings and Consents," and, together with
the other filings described in clauses (x) and (y) above, "Regulatory Filings"),
except for those Consents the failure of which to obtain or make would not,
individually or in the aggregate, have a Material Adverse Effect; or (iv)
violate any Laws applicable to the Company or any of its Subsidiaries, except
for violations which would not, individually or in the aggregate, have a
Material Adverse Effect.
(b) Assuming that a default (or an event
which, with notice or lapse of time or both, would constitute a default) has not
occurred and is continuing under the Revolving Credit Agreement, or that the
Revolving Credit Agreement has been terminated and is of no other force or
effect, except as disclosed in Section 6.6(b) of the Disclosure Letter, the
consummation of the Offer and/or the Merger will not violate, conflict with,
result in a breach of any provision of, constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default) under, result
in the termination or in a right of termination of, accelerate the performance
required by or benefit obtainable under, result in the triggering of any
payment, penalty or other obligation pursuant to, any note, bond, mortgage,
indenture or other obligation for or relating to borrowed money to which the
Company or any of its Subsidiaries is a party, or by which the Company or any of
its Subsidiaries or any of their respective properties is bound.
6.7. COMPANY REPORTS; OFFER DOCUMENTS.
(a) The Company has delivered or otherwise made available to
Purchaser each registration statement, report, proxy statement or information
statement (as defined under the Exchange Act) filed by it since September 30,
1994, each in the form (including exhibits and any amendments thereto) filed
with the SEC (collectively, the "Company Reports"). As of their respective
dates, the Company Reports (i) complied as to form in all material respects with
the applicable requirements of the Securities Act, the Exchange Act, and the
rules and regulations thereunder and (ii) did not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements made therein, taken as a whole and
in the light of the circumstances under which they were made, not misleading.
Each of the consolidated balance
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sheets of the Company included in or incorporated by reference into the Company
Reports (including the related notes and schedules) is true and complete in all
material respects and fairly presents the consolidated financial position of the
Company and its Subsidiaries as of its respective date, and each of the
consolidated statements of income, retained earnings and cash flows of the
Company included in or incorporated by reference into the Company Reports
(including any related notes and schedules) is true and complete in all material
respects and fairly presents the results of operations, retained earnings or
cash flows, as the case may be, of the Company and its Subsidiaries for the
periods set forth therein in accordance with United States generally accepted
accounting principles, consistently applied during the periods involved, except
as may be noted therein. Except (i) as disclosed in the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1997, or the Company's
audited financial statements included in the Company's Annual Report on Form
10-K for the year ended September 30, 1996, (ii) for liabilities and obligations
arising in the ordinary course of business since June 30, 1997, (iii) for the
Company's payment of $7,500,000 to Detroit Diesel Corporation ("DDC"), in
accordance with the Agreement and Waiver dated as of September 8, 1997 among
DDC, Outboard Marine Acquisition Corp. and the Company (the "DDC Waiver Fee"),
(iv) for the Company's delivery of $13,856,611 to The Northern Trust Company, as
Trustee, in accordance with that certain Amended and Restated Trust Agreement,
dated June 26, 1989 (as amended from time to time to the date hereof, the "Rabbi
Trust"), by and between the Company and The Northern Trust Company and (v) for
liabilities or obligations that would not constitute a Material Adverse Effect,
neither the Company nor its Subsidiaries has any material liabilities or
obligations of any nature (whether accrued, absolute, contingent or otherwise)
that would be required to be reflected on, or reserved against in, a balance
sheet of the Company or in the notes thereto, prepared in accordance with
generally accepted accounting principles consistently applied. The Company has
heretofore made available or promptly will make available to Purchaser a
complete and correct copy of any amendments or modifications, which have not yet
been filed with the SEC, to agreements, documents or other instruments which
previously have been filed by the Company with the SEC as exhibits to the
Company Reports.
(b) None of the Schedule 14D-9, any information statement filed by
the Company in connection with the Offer (the "Information Statement"), any
schedule required to be filed by the Company with the SEC and any amendment or
supplement thereto, at the respective times such documents
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are filed with the SEC or first published, sent or given to the Company's
stockholders, will contain any untrue statement of a material fact or will omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which
they are made, not misleading except that no representation is made by the
Company with respect to information supplied by Purchaser or Merger Sub for
inclusion in the Schedule 14D-9 or Information Statement or any amendment or
supplement thereto. None of the information supplied or to be supplied by the
Company expressly for inclusion or incorporation by reference in the Offer
Documents will, at the date of filing with the SEC or first publication contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If, at any time prior to the Effective Time, the Company shall
obtain knowledge of any facts with respect to itself, any of its officers and
directors or any of its Subsidiaries that would require the supplement or
amendment to any of the foregoing documents in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or to comply with applicable Laws, such amendment or supplement
shall be promptly filed with the SEC and, as required by Law, disseminated to
the stockholders of the Company, and in the event Purchaser shall advise the
Company as to its obtaining knowledge of any facts that would make it necessary
to supplement or amend any of the foregoing documents, the Company shall
promptly amend or supplement such document as required and distribute the same
to its stockholders.
(c) None of the information supplied or to be supplied by the
Company for inclusion or incorporation by reference in the proxy statement on
Schedule 14A to be delivered to holders of Common Stock in connection with the
approval of the Merger (such proxy statement, and all amendments and supplements
thereto, the "Proxy Statement") will, at the date of mailing to stockholders and
at the times of the meetings of stockholders to be held in connection with the
Merger, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The Proxy Statement (except for such portions thereof that
relate only to Purchaser) will comply as to form in all material respects with
the requirements of the Exchange Act.
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6.8. ABSENCE OF CERTAIN CHANGES. Except as set forth in the Company
Reports or Section 6.8 of the Disclosure Letter, during the period from
September 30, 1996 through the date of this Agreement, the Company and its
Subsidiaries have conducted their business in the ordinary course of such
business consistent with past practices, and there have not been (i) any events
or states of fact which individually, or in the aggregate, would have a Material
Adverse Effect; (ii) any declaration, setting aside or payment of any dividend
or other distribution with respect to its capital stock other than the regular
quarterly dividend declared and paid in the first three quarters of fiscal 1997;
(iii) any repurchase, redemption or any other acquisition by the Company or its
Subsidiaries of any outstanding shares of capital stock or other securities of,
or other ownership interests in, the Company or its Subsidiaries; (iv) any
material change in accounting principles, practices or methods; (v) any entry
into any employment or severance agreement with, or any material increase in the
rate or terms (including, without limitation, any acceleration of the right to
receive payment) of compensation payable or to become payable by the Company or
any of its Subsidiaries to, their respective directors, officers or employees,
except for increases occurring in the ordinary course of business in accordance
with their customary practices and employment agreements entered into in the
ordinary course of business; (vi) any material increase in the rate or terms
(including, without limitation, any acceleration of the right to receive
payment) of any bonus, insurance, pension or other employee benefit plan or
arrangement covering any such directors, officers or employees, except increases
occurring in the ordinary course of business in accordance with its customary
practices; (vii) any revaluation by the Company or any of its Subsidiaries of
any material amount of their assets, taken as a whole, including, without
limitation, write-downs of inventory or write-offs of accounts receivable other
than in the ordinary course of business consistent with past practices; (viii)
any amendment or change to the Restated Certificate of Incorporation or Bylaws
of the Company or comparable governing instruments of any of its Subsidiaries;
and (ix) any amendment, modification or change to, or any request to amend,
modify or change, any agreement, instrument or other document relating to any
joint venture to which the Company or any of its Subsidiaries is a party, or any
request to terminate any such joint venture.
6.9. TAXES. Except as set forth in Section 6.9 of the Disclosure
Letter, the Company and each of its Subsidiaries have timely filed all material
Tax Returns required to be filed by any of them. All such Tax Returns
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are true, correct and complete, except for such instances, if any, which would
not, individually or in the aggregate, have a Material Adverse Effect. All Taxes
of the Company and its Subsidiaries which are (i) shown as due on such Returns,
(ii) otherwise due and payable or (iii) claimed or asserted by any taxing
authority to be due, have been paid, except for those Taxes being contested in
good faith and for which adequate reserves have been established in the
financial statements included in the Company Reports in accordance with
generally accepted accounting principles, consistently applied. There are no
proposed or, to the knowledge of the Company, threatened Tax claims or
assessments which, if upheld, would, individually or in the aggregate, have a
Material Adverse Effect. Except as set forth in Section 6.9 of the Disclosure
Letter, the Company and each Subsidiary have withheld and paid over to the
relevant taxing authority all Taxes required to have been withheld and paid in
connection with payments to employees, independent contractors, creditors,
stockholders or other third parties, except where the failure to withhold and
pay would not, individually or in the aggregate, have a Material Adverse Effect.
For purposes of this Agreement, (a) "Tax" (and, with correlative meaning,
"Taxes") means any federal, state, local or foreign income, gross receipts,
property, sales, use, license, excise, franchise, employment, payroll, premium,
withholding, alternative or added minimum, ad valorem, transfer or excise tax,
or any other tax, custom, duty, governmental fee or other like assessment or
charge of any kind whatsoever, together with any interest or penalty, imposed by
any Governmental Entity, and (b) "Tax Return" means any return, report or
similar statement required to be filed with respect to any Tax (including any
attached schedules), including, without limitation, any information return,
claim for refund, amended return or declaration of estimated Tax.
6.10. LITIGATION. As of the date of this Agreement, except as
disclosed in Section 6.10 of the Disclosure Letter, there are no actions, suits,
or proceedings pending against the Company or its Subsidiaries or, to the
knowledge of the Company, threatened against the Company or its Subsidiaries at
law or in equity, or before or by any federal or state commission, board,
bureau, agency, instrumentality or any arbitrator or arbitration, tribunal,
that, if decided adversely, individually or in the aggregate would have a
Material Adverse Effect.
6.11. EMPLOYEE BENEFIT PLANS.
(a) Except as disclosed in Section 6.11(a) of the
Disclosure Letter, the Company has complied with and
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performed all contractual obligations and all obligations under applicable
federal, state, and local laws, rules and regulations (domestic and foreign)
required to be performed by it under or with respect to any of the Company
Benefit Plans (as hereinafter defined) or any related trust agreement or
insurance contract, other than where the failure to so comply or perform will
not have a Material Adverse Effect. All contributions and other payments
required to be made by the Company to any Company Benefit Plan or Multi-Employer
Plan (as hereinafter defined), prior to the date hereof have been made, other
than where the failure to so contribute or make payments will not have a
Material Adverse Effect. Except as disclosed in Section 6.11(a) of the
Disclosure Letter, there is no claim, dispute, grievance, charge, complaint,
restraining or injunctive order, litigation, or proceeding pending, or, to the
Company's knowledge, threatened (other than routine claims for benefits) against
or relating to any Company Benefit Plan or against the assets of any Company
Benefit Plan, which will have, individually or in the aggregate, a Material
Adverse Effect.
(b) Neither the Company nor its Subsidiaries has incurred, nor has
any event occurred which has imposed or is reasonably likely to impose, upon the
Company any withdrawal liability (partial or complete) in respect of any
multi-employer plan (within the meaning of Section 3(37) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") ("Multi-Employer
Plan"), which withdrawal liability has not been satisfied or discharged in full
or which, either individually or in the aggregate, will cause a Material Adverse
Effect.
(c) (i) "Plan" means any bonus, incentive compensation, deferred
compensation, pension, profit sharing, retirement, stock purchase, stock option,
stock ownership, stock appreciation rights, phantom stock, leave of absence,
layoff, vacation, day or dependent care, legal services, cafeteria, life
insurance, severance, separation or other employee benefit plan, practice,
policy or arrangement of any kind, including, but not limited to, any "employee
benefit plan" within the meaning of Section 3(3) of ERISA and (ii) "Company
Benefit Plan" means any Plan, other than a Multi-Employer Plan, established by
the Company or as to which the Company has any obligation or liability
(contingent or otherwise).
(d) Section 6.11(d) of the Disclosure Letter sets forth a complete
and correct list of all Company Benefit Plans and Multi-Employer Plans as to
which the Company has any obligation or liability (contingent or otherwise).
With
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respect to each Company Benefit Plan, a complete and correct copy of each of the
following documents (if applicable) has been provided to Merger Sub: (i) the
most recent plan document, and related trust documents, and all amendments
thereto; (ii) the most recent summary plan description, and all related
summaries of material modifications thereto; (iii) the most recent Form 5500
(including schedules and attachments); (iv) the most recent Internal Revenue
Service determination letter; (v) the most recent actuarial reports (including
for purposes of Financial Accounting Standards Board report no. 87, 106 and 112)
and (vi) each written, individual severance or other compensation agreement, and
all amendments thereto. With respect to each Company Benefit Plan which is not
set forth in a plan document, a complete and correct written description of such
Company Benefit Plan has been provided to the Merger Sub.
(e) Except as set forth in Section 6.11(e) of the Disclosure
Letter, (i) the Internal Revenue Service has determined that the Company Benefit
Plans and their related trusts intended to qualify under Sections 401 and 501(a)
of the Code, respectively, so qualify and (ii) any voluntary employee benefit
association which provides benefits to current or former employees of the
Company and is intended to be tax-exempt under Section 501(c)(9) of the Code and
has received a letter of recognition of tax-exempt status from the Internal
Revenue Service.
(f) Except as set forth in Section 6.11(f) of the Disclosure
Letter, the Company does not maintain or have an obligation to contribute to
retiree life or retiree health plans which provide for continuing benefits or
coverage for current or former officers, directors or employees of the Company
or any of its Subsidiaries except (i) as may be required under Part 6 of Title I
of ERISA) and at the sole expense of the participant or the participant's
beneficiary or (ii) a medical expense reimbursement account plan pursuant to
Section 125 of the Code.
(g) Except as set forth in Section 6.11(g) of the Disclosure Letter
or in connection with equity compensation, neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby will
(i) result in any payment becoming due to any employee (current, former or
retired) of Company, (ii) increase any benefits under any Company Benefit Plan
or (iii) result in the acceleration of the time of payment of, vesting of or
other rights with respect to any such benefits.
(h) The amount required to be contributed to The Northern Trust
Company pursuant to the Rabbi Trust is
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<PAGE>
$13,856,611 and such amount has been contributed as of the date hereof.
(i) The amount required to be contributed to one or more rabbi
trusts, including without limitation, the Rabbi Trust, to cover legal expenses
pursuant to the employment and severance agreements set forth in Section 6.12(b)
of the Disclosure Letter does not exceed $1 million in the aggregate for all
such agreements.
(j) The Board of Directors has heretofore amended the Company's
1994 Long-Term Incentive Plan and the Company's Equity Retention Incentive Plan
to delete the change of control provisions in each such plan. The Company has
delivered a true and complete copy of such amendments to Merger Sub and
Purchaser.
(k) The Company has heretofore amended, subject to Section 4044(d)
of ERISA, both the Outboard Marine Corporation Employees Pension Plan ("Pension
Plan") and the Outboard Marine Corporation Retirement Plan ("Retirement Plan")
to (i) delete all provisions therein relating to a Change in Control, including
but not limited to Section 9.3(d) and (e), Section 10.1(f) and the final
paragraph of Section 10.5 therein and all references to such sections. The
Company has delivered a true and complete copy of such amendments to Merger Sub
and Purchaser.
(l) The Board of Directors has heretofore amended the Company's
Executive Bonus Plan, effective prior to any Change in Control (as defined in
such plan), to delete all provisions relating to a Change in Control, including
but not limited to Section IX thereof, such that no amounts shall be payable
under such plan upon or on account of a Change in Control. The Company had
delivered a true and complete copy of such amendment to Merger Sub and
Purchaser.
6.12. EMPLOYMENT RELATIONS AND AGREEMENTS. (a) Except as disclosed
in Section 6.12(a) of the Disclosure Letter or as would not constitute a
Material Adverse Effect, as of the date of this Agreement, (i) no unfair labor
practice complaint against the Company or any of its Subsidiaries is pending
before the National Labor Relations Board; (ii) there is no, and has not been
during the last three years, any labor strike, slowdown or stoppage actually
pending which may interfere with the business activities of the Company or its
Subsidiaries; (iii) no arbitration proceeding arising out of or under any
collective bargaining agreement is pending and no claim therefore has been
asserted; and (iv) no collective bargaining agreement is
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currently being negotiated by the Company or any of its Subsidiaries.
(b) Except as disclosed in Section 6.12(b) of the Disclosure
Letter, to the knowledge of the Company, neither the Company nor its
Subsidiaries has any employment or severance agreement with any other person.
Section 6.12(b) of the Disclosure Letter sets forth the correct amount of
severance and other payments required to be made under each of the severance
agreements set forth in such section of the Disclosure Letter upon a termination
without Cause (as defined in such agreements) as of September 8, 1997, assuming
the amendments to employee compensation and benefit plans described in Section
6.11 were made prior to such date and assuming a Change in Control (as defined
in such agreements) occurred and the employees covered by such agreements were
terminated on such date, and the Company has obtained a written acknowledgement
and agreement, in a form satisfactory to Purchaser, properly signed by each of
H.W. Bowman, G.L. Schueppert, C.R. Davis, R.H. Medland, C.J. Vitulli, D.J.
Baddeley and J.D. Flaig as to the correctness of such amounts and the amount
required to be deposited in a rabbi trust for the payment of legal expenses in
connection with the severance agreements.
(c) There are no work stoppages or any actual or, to the Company's
knowledge, threatened termination or modification of the business relationships
of the Company or any of its Subsidiaries with any of their customers or
suppliers, that would have a Material Adverse Effect, except to the extent
commencing after the public announcement of, and arising out of or relating to,
the transactions contemplated hereby.
(d) Except as set forth in Section 6.12(d) of the Disclosure
Letter, the Company is not a party to any labor or collective bargaining
agreement, and no employee of the Company in such capacity is represented by any
labor organization. Within the preceding three years, there have been no
representation or certification proceedings, or petitions seeking a
representation proceeding, pending or, to the knowledge of the Company,
threatened in writing to be brought or filed with the National Labor Relations
Board or any other labor relations tribunal or authority.
(e) There are no strikes, work stoppages, slowdowns, lockouts,
material arbitrations or material grievances or other material labor disputes
pending or threatened in writing against or involving the Company. There are no
unfair labor practice charges, grievances or complaints pending or, to the
knowledge of Company, threatened in
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writing by or on behalf of any employee or group of employees of the Company
which, if individually or collectively resolved against the Company, would have
a Material Adverse Effect.
(f) There are no complaints, charges or claims against the Company
pending or, to the knowledge of the Company, threatened to be brought or filed
with any governmental authority, arbitrator or court based on, arising out of,
in connection with, or otherwise relating to the employment or termination of
employment of any individual by the Company, except for such, individually or in
the aggregate, as would not have a Material Adverse Effect.
(g) The Company is in material compliance with all laws,
regulations and orders relating to the employment of labor, including all such
laws, regulations and orders relating to wages, hours, WARN, collective
bargaining, discrimination, civil rights, safety and health, workers'
compensation and the collection and payment of withholding and/or social
security taxes and any similar tax, except for any such non-compliance that,
individually or in the aggregate, would not have a Material Adverse Effect.
6.13. CONTRACTS. Except as set forth in the Company Reports or
disclosed in Section 6.13 of the Disclosure Letter, neither the Company nor its
Subsidiaries is a party to or bound by (i) any "material contract" (as such term
is defined in Item 601(b)(10) of Regulation S-K of the SEC), or (ii) any
non-competition agreement or other agreement which purports to limit in any
material respect the manner in which, or the location in which, all or any
material portion of the business of the Company and its Subsidiaries is
conducted (all contracts of the type described in clauses (i) and (ii) being
referred to herein as "Material Contracts"). Each Material Contract is valid and
binding on the Company (or, to the extent a Subsidiary of the Company is a
party, such Subsidiary) and is in full force and effect, and the Company and
each of its Subsidiaries have in all material respects performed all obligations
required to be performed by them to date under each Material Contract, except
where noncompliance, individually or in the aggregate, would not have a Material
Adverse Effect. The Company does not know of, and has not received notice of,
any violation or default under (nor, to the knowledge of the Company, does there
exist any condition which with the passage of time or the giving of notice or
both would result in such a violation or default under) any Material Contract,
which default would have a Material Adverse Effect.
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6.14. ENVIRONMENTAL LAWS AND REGULATIONS. (a) As of the date of
this Agreement, except as disclosed in Section 6.14(a) of the Company Reports or
the Disclosure Letter, (i) neither the Company nor any of its Subsidiaries has
received written notice of, or, to the knowledge of the Company, is the subject
of, any action, cause of action, claim, investigation, demand or notice by any
person or entity alleging liability under or non-compliance with any Law
relating to pollution or protection of human health or the environment
(including without limitation ambient air, surface water, ground water, land
surface or surface strata) (an "Environmental Claim") that individually or in
the aggregate would have a Material Adverse Effect; and (ii) to the knowledge of
the Company, there are no circumstances that are reasonably likely to prevent or
interfere with such material compliance in the future.
(b) As of the date of this Agreement, except as disclosed in the
Company Reports or in Section 6.14(b) of the Disclosure Letter, there are no
Environmental Claims which individually or in the aggregate would have a
Material Adverse Effect that are pending or, to the knowledge of the Company,
threatened against the Company or any of its Subsidiaries or, to the knowledge
of the Company, against any person or entity whose liability for any
Environmental Claim the Company or any of its Subsidiaries has or may have
retained or assumed either contractually or by operation of law.
(c) As of the date of this Agreement, except as disclosed in the
Company Reports or in Section 6.14(c) of the Disclosure Letter, there has been
no spill, discharge, leak, emission, injection, disposal, escape, dumping or
release of any kind by the Company or its Subsidiaries on, beneath or above the
real property owned by the Company or any of its Subsidiaries, or the real
property leased, used, or in which any other interest is maintained by the
Company and its Subsidiaries at the Effective Time or, to the knowledge of the
Company, previously owned by, used by or leased to the Company or any Subsidiary
(collectively, the "Property") or into the environment surrounding the Property
of any pollutants, contaminants, hazardous substances, hazardous chemicals,
toxic substances, hazardous wastes, infectious wastes, radioactive materials,
petroleum (including crude oil or any fraction thereof), asbestos fibers or
solid wastes (collectively, "Hazardous Materials"), including but not limited to
those defined in any Law and all regulations promulgated under each and all
amendments thereof, or any other federal, state or local environmental law,
ordinance, regulations, rule or order,
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except such of the foregoing occurrences as do not have a Material Adverse
Effect.
6.15. BROKERS. The Company has not entered into any contract,
arrangement or understanding with any person or firm which may result in the
obligation of Purchaser or the Company to pay any finder's fees, brokerage or
agent's commissions or other like payments in connection with the negotiations
leading to this Agreement or the consummation of the transactions contemplated
hereby, except that the Company has retained the Financial Advisor and Merrill
Lynch Pierce Fenner & Smith Incorporated, the arrangements with which have been
disclosed in writing to Purchaser prior to the date hereof.
6.16. OPINION OF FINANCIAL ADVISOR. The Company has received the
opinion of the Financial Advisor, to the effect that, as of the date hereof, the
Merger Consideration to be received by the holders of Common Stock pursuant to
the Offer and the Merger is fair to such stockholders from a financial point of
view.
6.17. NO RESTRICTIONS ON THE OFFER OR THE MERGER. No provision of
the Restated Certificate of Incorporation or Bylaws of the Company or any
comparable governing instruments of its Subsidiaries (i) imposes restrictions
materially adversely affecting (or materially delaying) the consummation of the
Offer or the Merger or (ii) would, as a result of the Offer, the Merger, the
transactions contemplated hereby or the acquisitions of securities of the
Company or the Surviving Corporation by Purchaser or Merger Sub (A) restrict or
impair the ability of Purchaser to vote, or otherwise to exercise the rights of
a stockholder with respect to, securities of the Company or the Surviving
Corporation and their Subsidiaries that may be acquired or controlled by
Purchaser or (B) entitle any person, entity, or group to acquire securities of
the Company or the Surviving Corporation on a basis not available to Purchaser.
Except as set forth in the Disclosure Letter, the Company is not a party to any
plan or agreement pursuant to which payments are required or acceleration of
benefits are required to be paid to any employee or former employee of the
Company upon a "change in control" of the Company as a result of the
consummation of the transactions contemplated hereby. The approval and adoption
of the Merger requires the affirmative vote of two-thirds of the outstanding
shares of Common Stock.
6.18. INTELLECTUAL PROPERTY. Each of the Company and its
Subsidiaries is the owner of, or a licensee under a valid license for, all items
of intellectual property that
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are material to its business. Except as disclosed in Section 6.18 of the
Disclosure Letter or as would not result in a Material Adverse Effect, there are
no claims pending or, to the knowledge of the Company or any of its
Subsidiaries, threatened challenging that the Company or any of its Subsidiaries
is in violation of the intellectual property rights of any third party nor, to
the Company's knowledge, are there any infringements by others of any of the
rights owned by or licensed to the Company or any of its Subsidiaries.
6.19. TERMINATION OF DDC MERGER AGREEMENT. The Agreement and Plan
of Merger, dated as of July 8, 1997 (as amended or modified, the "DDC Merger
Agreement"), among DDC, OMC Acquisition Corp. and the Company has been
terminated and is of no further force or effect, except for the provisions of
Sections 1.3(c) (with respect to confidentiality) and 8.5 and Article 11 of the
DDC Merger Agreement, which expressly survive the termination of the DDC Merger
Agreement pursuant to Section 10.2(a) of the DDC Merger Agreement. In connection
with the payment of the DDC Waiver Fee, the Company has obtained an
unconditional release from DDC pursuant to which DDC has released the Company,
Merger Sub and Purchaser and their respective affiliates, directors, managers,
officers, agents, employees, members or shareholders from any and all claims,
damages, expenses or other liabilities arising from or relating to, directly or
indirectly, the termination of the DDC Merger Agreement. The Company has
delivered to Purchaser a true and correct copy of such release.
6.20. RIGHTS AGREEMENT. The Company has heretofore provided Parent
with a complete and correct copy of the Rights Agreement, including all
amendments and exhibits thereto. The amendment to the Rights Agreement attached
hereto as Exhibit B has been duly authorized by the Board Directors and has been
duly executed by the Company, and, accordingly, the execution of this Agreement,
the announcement or making of the Existing Offer or the Offer, the acquisition
of Common Stock pursuant to the Offer and the Merger and the other transactions
contemplated by this Agreement will not cause the Rights to become exercisable
or result in either Parent or Merger Sub or any of their affiliates being
considered to be an "Acquiring Person" (as defined in the Rights Agreement) or
the occurrence of a "Distribution Date" (as defined in the Rights Agreement).
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ARTICLE 7
REPRESENTATIONS AND WARRANTIES
OF PURCHASER AND MERGER SUB
Except as set forth in the corresponding sections of the disclosure
letter, dated the date hereof, delivered by Purchaser to the Company (the
"Purchaser Disclosure Letter"), Purchaser and Merger Sub hereby represent and
warrant to the Company as follows:
7.1. EXISTENCE; GOOD STANDING; CORPORATE AUTHORITY. Purchaser is a
limited liability company duly formed, validly existing and in good standing
under the laws of Delaware. Merger Sub is a corporation duly incorporated,
validly existing and in good standing under the laws of Delaware. Each of
Purchaser and Merger Sub has all requisite limited liability company or
corporate power and authority, as the case may be, to carry on its business as
now conducted, except where the failure to have such power and authority would
not have a materially adverse effect on the ability of Purchaser or Merger Sub
to consummate the transactions contemplated by this Agreement (a "Purchaser
Material Adverse Effect").
7.2. AUTHORIZATION, VALIDITY AND EFFECT OF AGREEMENTS. Each of
Purchaser and Merger Sub has the requisite limited liability company or
corporate power and authority, as the case may be, to execute and deliver this
Agreement and the Ancillary Documents and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this Agreement
and the Ancillary Documents and the consummation by Purchaser and Merger Sub of
the transactions contemplated hereby and thereby have been duly and validly
authorized by the Management Committee and Board of Directors of Purchaser and
Merger Sub, respectively, and by Purchaser as the sole stockholder of Merger Sub
and no other corporate proceedings on the part of Purchaser or Merger Sub are
necessary to authorize this Agreement and the Ancillary Documents or to
consummate the transactions contemplated hereby and thereby. This Agreement has
been, and any Ancillary Documents at the time of execution will have been, duly
and validly executed and delivered by Purchaser and Merger Sub, and (assuming
this Agreement and such Ancillary Documents each constitutes a valid and binding
obligation of the Company) constitutes and will constitute the valid and binding
obligations of each of Purchaser and Merger Sub, and the Agreement is
enforceable in accordance with its terms.
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7.3. OFFER DOCUMENTS.
(a) None of the Offer Documents, any schedule required to be filed
by Purchaser or Merger Sub with the SEC or any amendment or supplement thereto
will contain, at the respective times such documents are filed with the SEC or
first published, sent or given to the Company's stockholders, any untrue
statement of a material fact or will omit to state any material fact required to
be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading, except
that no representation is made by Purchaser or Merger Sub with respect to
information supplied by the Company specifically for inclusion in the Offer
Documents or the Information Statement, any schedule required to be filed with
the SEC or any amendment or supplement thereto. None of the information supplied
or to be supplied by Purchaser or Merger Sub for inclusion or incorporation by
reference in the Schedule 14D-9 will, at the date of filing with the SEC or
first publication, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. If at any time prior to the Effective Time either
Purchaser or Merger Sub shall obtain knowledge of any facts with respect to
itself, any of its members or officers and directors, as the case may be, or any
of its Subsidiaries that would require the supplement or amendment to any of the
foregoing documents in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or to comply with
applicable Laws, such amendment or supplement shall be promptly filed with the
SEC and, as required by Law, disseminated to the stockholders of the Company,
and in the event the Company shall advise Purchaser or Merger Sub as to its
obtaining knowledge of any facts that would make it necessary to supplement or
amend any of the foregoing documents, Purchaser or Merger Sub shall promptly
amend or supplement such document as required and distribute the same to the
stockholders of the Company.
(b) None of the information supplied or to be supplied by Purchaser
for inclusion or incorporation by reference in the Proxy Statement will, at the
date of mailing to stockholders and at the times of the meetings of stockholders
to be held in connection with the Merger, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not
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misleading. The Proxy Statement (except for such portions thereof that relate
only to the Company) will comply as to form in all material respects with the
requirements of the Exchange Act.
7.4. NO VIOLATION. Neither the execution and delivery of this
Agreement or any of the Ancillary Documents by Purchaser and Merger Sub nor the
consummation by them of the transactions contemplated hereby or thereby will (i)
violate, conflict with or result in any breach of any provision of Purchaser's
Operating Agreement or the Certificate of Incorporation or Bylaws of Merger Sub;
(ii) violate, conflict with, result in a breach of any provision of, constitute
a default (or an event which, with notice or lapse of time or both, would
constitute a default) under, result in the termination or in a right of
termination of, accelerate the performance required by or benefit obtainable
under, result in the triggering of any payment or other obligations pursuant to,
result in the creation of any Encumbrance upon any of the properties of
Purchaser or Merger Sub under, or result in there being declared void, voidable,
or without further binding effect, any Contract to which Purchaser or Merger Sub
is a party, or by which Purchaser or Merger Sub or any of their respective
properties is bound, except for any such breach, default or right with respect
to which requisite waivers or consents have been, or prior to the Effective Time
will be, obtained or any of the foregoing matters which would not have a
Purchaser Material Adverse Effect; (iii) other than the Regulatory Filings,
require any Consent of any Governmental Entity, the lack of which would have a
Purchaser Material Adverse Effect; or (iv) violate any Laws applicable to
Purchaser or the Merger Sub or any of their respective assets, except for
violations which would not, individually or in the aggregate, have a Purchaser
Material Adverse Effect.
7.5. FINANCING. On the date hereof, Purchaser and Merger Sub have
access to funds sufficient to consummate the Offer and the Merger on the terms
contemplated hereby. The source and any commitments related thereto are set
forth in Section 7.5 of the Purchaser Disclosure Letter. At the consummation of
the Offer and at the Effective Time, Purchaser and Merger Sub will have funds
available to it sufficient to consummate the Offer and the Merger on the terms
contemplated hereby.
7.6. BUSINESS OF PURCHASER AND MERGER SUB. Each of Purchaser and
Merger Sub was formed solely for the purpose of engaging in the Offer, the
Merger and the transactions
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contemplated hereby. Except for obligations or liabilities incurred in
connection with its organization or incorporation and the transactions
contemplated by the Offer and hereby, including in connection with obtaining the
necessary financing to consummate the Offer and the Merger, neither Purchaser
nor Merger Sub has incurred any obligations or liabilities or engaged in any
business or activities of any type or kind whatsoever or entered into any
agreements or arrangements with any Person.
7.7. COMPLIANCE WITH LAWS. Except as set forth in Section 7.7 of
the Purchaser Disclosure Letter, Purchaser is not in violation of, and the
consummation of the transactions contemplated by this Agreement will not result
in any violation of, any Laws of any Governmental Entity applicable to Purchaser
or Merger Sub or any of their respective properties or assets, except for
violations which would not have a Purchaser Material Adverse Effect, which
compliance includes, but is not limited to, the possession by the Purchaser and
Merger Sub of all Permits and compliance with the terms and conditions thereof,
except where the failure of Purchaser or Merger Sub to possess such licenses,
permits and authorizations, or comply with the terms and conditions thereof,
would not, individually or in the aggregate, have a Purchaser Material Adverse
Effect. The completion of the transactions contemplated by this Agreement will
not result in the lapse or termination of any Permits, other than such lapse or
termination which would not have a Purchaser Material Adverse Effect.
7.8. CAPITALIZATION. Pursuant to Purchaser's Operating Agreement,
on the Initial Capital Contribution Date (as defined in the Operating Agreement,
a copy of which has been provided to the Company), (i) each of Quasar Strategic
Partners LDC ("QSP") and Quantum Industrial Partners LDC ("QIP") will contribute
to Purchaser the amount of $96,250,000 for a percentage interest in Purchaser of
34.75%, and (ii) Greenlake Holdings LLC ("Greenlake") will contribute to
Purchaser $48,500,000 and 2 million shares of Common Stock for a percentage
interest of 30.5% of Purchaser. As of the date hereof, Purchaser is under no
obligation to accept additional capital contributions or to sell additional
membership interests and has not agreed to sell any additional membership
interests. Except as set forth in this Section 7.8, in the Purchaser Disclosure
Letter or as described in Purchaser's Operating Agreement, there are no other
voting securities of Purchaser, and no existing options, warrants, calls,
subscriptions, convertible securities, or other rights, agreements or
commitments which obligate Purchaser or Merger Sub to issue, transfer or sell
any membership interests in Purchaser or
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shares of capital stock of, or equity interests in Merger Sub. All of the issued
and outstanding shares of common stock of Merger Sub are validly issued, fully
paid and nonassessable and are owned by Purchaser. Except as set forth in
Section 7.8 of the Purchaser Disclosure Letter or as described in Purchaser's
Operating Agreement, there are no outstanding obligations of Purchaser or Merger
Sub to repurchase, redeem or otherwise acquire any membership interests in
Purchaser. Except as set forth in Section 7.8 of the Purchaser Disclosure Letter
or as described in Purchaser's Operating Agreement, there are no voting trusts
or other agreements or understandings to which Purchaser or Merger Sub or, to
the knowledge of Purchaser, any of Purchaser's managers is a party with respect
to the voting of membership interests or capital stock of Purchaser or Merger
Sub, respectively.
7.9. LITIGATION. Except as disclosed in Section 7.9 of the
Purchaser Disclosure Letter, there are no actions, suits, or proceedings pending
against Purchaser or Merger Sub or, to the knowledge of the Purchaser,
threatened against the Purchaser or Merger Sub at law or in equity, or before or
by any federal or state commission, board, bureau, agency, instrumentality or
any arbitrator or arbitration, tribunal, that, if decided adversely,
individually or in the aggregate, is reasonably expected to prevent or
materially delay the consummation of the transactions contemplated hereby.
7.10. CONTRACTS. Except as disclosed in the Purchaser Disclosure
Letter, neither Purchaser nor Merger Sub is a party to or bound by any Material
Contract.
ARTICLE 8
COVENANTS
8.1. NO SOLICITATION. From and after the date of this Agreement and
prior to the Effective Time, except as provided below, the Company agrees (a)
that neither the Company nor its Subsidiaries shall, and the Company shall
direct and use its best efforts to cause its officers, directors, employees,
agents and representatives (including, without limitation, any investment
banker, attorney, or accountant retained by it or any of its Subsidiaries) not
to, initiate, solicit or encourage, directly or indirectly, any inquiries or the
making or implementation of any proposal or offer (including without limitation,
any proposal or offer to its stockholders) with respect to a
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merger, acquisition, consolidation or similar transaction involving, or any
purchase of all or any significant portion of the assets or any equity
securities of, the Company or any of its Subsidiaries (any such proposal or
offer being hereinafter referred to as an "Alternative Proposal") or engage in
any negotiations concerning, or provide any confidential information or data to,
or have any discussions with, any person relating to an Alternative Proposal, or
otherwise facilitate any effort or attempt to make or implement an Alternative
Proposal; (b) that it will immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties (including
DDC) conducted heretofore with respect to any of the foregoing and will take the
necessary steps to inform the individuals or entities referred to above of the
obligations undertaken in this Section 8.1; and (c) that it will notify
Purchaser promptly if any such inquiries or proposals are received by, any such
information is requested from, or any such negotiations or discussions are
sought to be initiated or continued with it, including the identity of the other
party and the terms of its proposal; provided however, that nothing contained in
this Section 8.1 shall prohibit the Board of Directors of the Company from (i)
furnishing information to or entering into discussions or negotiations with, any
person or entity that makes an unsolicited bona fide proposal in writing, to
acquire the Company pursuant to a merger, consolidation, share exchange,
purchase of a substantial portion of the assets, business combination or other
similar transaction, if, and only to the extent that, (A) the Board of Directors
determines in good faith, and after consultation with outside counsel and the
Financial Advisor, that such action is required for the Board of Directors to
comply with its fiduciary duties to stockholders imposed by law, (B) prior to
furnishing such information to, or entering into discussions or negotiations
with, such person or entity, the Company provides written notice to Purchaser to
the effect that it is furnishing information to, or entering into discussions or
negotiations with, such person or entity, and (C) the Company keeps Purchaser
informed of the status (not the terms) of any such discussions or negotiations;
and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under
the Exchange Act with regard to an Alternative Proposal. Subject to Article 10
hereof, nothing in this Section 8.1 shall (x) permit the Company to terminate
this Agreement, (y) permit the Company to enter into any agreement with respect
to an Alternative Proposal during the term of this Agreement, or (z) affect any
other obligation of any party under this Agreement. The Company shall enter into
a confidentiality agreement with any third party that it is permitted to provide
confidential information to in
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accordance with this Section 8.1, on terms which shall not be more favorable to,
or less restrictive on, such third party as the terms applicable to Purchaser
set forth in the letter agreement, dated as of August 14, 1997, between the
Company and Merger Sub (the "Confidentiality Agreement") relating to the
confidential treatment of Evaluation Material (as defined therein).
8.2. INTERIM OPERATIONS OF THE COMPANY.
(a) From the date of this Agreement to the Effective Time, unless
Merger Sub or Purchaser has consented in writing thereto or unless otherwise
contemplated or required by this Agreement, the Company shall, and shall cause
each of its Subsidiaries to, (i) conduct its operations according to its usual,
regular and ordinary course of business consistent with past practice; (ii) use
its reasonable efforts to preserve intact its business organizations and
goodwill, maintain in effect all existing qualifications, licenses, permits,
approvals and other authorizations referred to in Section 6.3 hereof (other than
those the lapse of which would not have, individually or in the aggregate, a
Material Adverse Effect), keep available the services of its officers and
employees and maintain satisfactory relationships with those persons having
business relationships with them; (iii) make no significant change in the nature
or scope of the authorities, powers, functions, responsibilities or duties of
any officers and employees covered by an employment or severance agreement in
effect as of the date hereof; (iv) promptly upon the discovery thereof notify
Purchaser of the existence of any breach of any representation or warranty of
the Company contained herein (or, in the case of any representation or warranty
that makes no reference to Material Adverse Effect, any breach of such
representation or warranty in any material respect) or the occurrence of any
event that would cause any representation or warranty of the Company contained
herein no longer to be true and correct (or, in the case of any representation
or warranty that makes no reference to Material Adverse Effect, to be no longer
be true and correct in any material respect); and (v) promptly deliver to
Purchaser true and correct copies of any report, statement or schedule filed
with the SEC subsequent to the date of this Agreement.
(b) From and after the date of this Agreement to the Effective
Time, except as contemplated or permitted by this Agreement or as set forth in
Section 8.2(b) of the Disclosure Letter, unless Purchaser has consented in
writing thereto, the Company shall not, and shall not permit any of its
Subsidiaries to, (i) amend its Restated Certificate of
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Incorporation or Bylaws or comparable governing instruments or the Rights
Agreement; (ii) authorize for issuance, issue, sell, pledge or register for
issuance or sale any shares of its capital stock or other ownership interest in
the Company (other than issuances of Common Stock in respect of any exercise of
Options outstanding on the date hereof) or any of the Subsidiaries, or any
securities convertible into or exchangeable for any such shares or ownership
interest, or any rights (other than rights related to shares of Common Stock
issued upon the exercise of Options, which entitle the holders of shares of
Common Stock to purchase shares of Series A Junior Participating Preferred Stock
upon the occurrence of certain events), warrants or options to acquire or with
respect to any such shares of capital stock, ownership interest, or convertible
or exchangeable securities; or accelerate any right to convert or exchange or
acquire any securities of the Company (other than Options pursuant to Section
5.2(d)) or any of its Subsidiaries for any such shares or ownership interest;
(iii) effect any stock split or conversion of any of its capital stock or
otherwise change its capitalization as it exists on the date hereof, other than
as set forth in this Agreement; (iv) except as contemplated by this Agreement,
directly or indirectly redeem, purchase or otherwise acquire any shares of its
capital stock or capital stock of any of its Subsidiaries, or declare, pay or
set aside any dividend or other distribution (whether in cash, stock or property
or any combination thereof) in respect of its capital stock, other than
dividends or distributions to the Company or a Subsidiary wholly-owned by the
Company; (v) sell, lease, mortgage, pledge or otherwise dispose of or encumber
any of its assets (including capital stock of Subsidiaries), except in the
ordinary course of business consistent with past practice; (vi) acquire by
merger, purchase or any other manner, any material business or entity or
otherwise acquire any assets that are material to the Company and its
Subsidiaries taken as a whole, except for purchases of inventory, supplies or
capital equipment in the ordinary course of business consistent with past
practice; (vii) incur or assume any long-term or short-term debt, including,
without limitation, additional debt under existing credit facilities or other
debt instruments, or become obligated, directly or indirectly, under any
guarantee or other instrument for borrowed money; (viii) assume, guarantee or
otherwise become liable or responsible (whether directly, contingently or
otherwise) for the obligations of any other person except wholly-owned
Subsidiaries of the Company; (ix) make or forgive any loans, advances or capital
contributions to, or investments in, any other Person; (x) waive or amend any
term or condition of any confidentiality or "standstill" agreement to which the
Company is a party; (xi) enter into
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any employment, severance, consulting or salary continuation agreements with any
newly hired employees other than in the ordinary course of business consistent
with past practice or enter into any of the foregoing with any existing
officers, directors or employees or grant any increases in compensation or
benefits to employees, other than increases in the ordinary course of business
consistent with past practice; (xii) enter into, adopt, amend in any material
respect or terminate any employee benefit plan or arrangement (other than the
termination of the Company's non-employee director equity compensation plan and
the termination of the Company's employee stock purchase plan); (xiii) enter
into, amend in any material respect or terminate any employment agreement or
severance agreement entered into between the Company and its executive officers
or waive any material right of the Company thereunder; (xiv) make any material
changes in the type or amount of their insurance coverage or permit any material
insurance policy naming the Company or any Subsidiary as a beneficiary or a loss
payee to be cancelled or terminated other than in the ordinary course of
business consistent with past practice; (xv) make any tax election or, except as
may be required by law or generally acceptable accounting principles, change any
material accounting principles or practices used by the Company or its
Subsidiaries; (xvi) take, or fail to take, any action to cause the Common Stock
to be delisted from the New York Stock Exchange prior to the completion of the
Offer or the Merger; (xvii) settle or compromise any claims or litigation
involving payments by the Company or any of its Subsidiaries of more than
$250,000 in any single instance or related instances, or that otherwise are
material; (xviii) enter into any intellectual property license pursuant to which
the Company licenses any of its intellectual property or sublicenses any of its
intellectual property; (xix) enter into any lease or amend any lease of real
property involving the payment by the Company of $250,000 or more; (xx) make any
cash expenditure other than in the ordinary course of business consistent with
past practice and in an amount immaterial to the Company and Subsidiaries taken
as a whole; or (xxi) agree in writing or otherwise to take any of the foregoing
actions.
8.3. INTERIM OPERATIONS OF PURCHASER AND MERGER SUB. From the date
of this Agreement to the Effective Time, unless the Company has consented in
writing thereto, neither Purchaser nor Merger Sub shall conduct any business
other than in connection with the consummation of the Offer, the Merger and the
transactions contemplated hereby, including with respect to obtaining the
financing necessary to consummate such transactions.
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8.4. COMPANY STOCKHOLDER APPROVAL; PROXY STATEMENT.
(a) The Company, through its Board of Directors, shall (i) call a
meeting of its stockholders (the "Stockholders Meeting") for the purpose of
voting upon the Merger, (ii) hold the Stockholders Meeting as soon as
practicable following the purchase of shares of Common Stock pursuant to the
Offer, and (iii) subject to the fiduciary duties of the Board of Directors under
applicable law as advised by outside counsel of the Company, recommend to its
stockholders the approval of the Merger. The Company shall use reasonable
efforts to solicit from stockholders of the Company proxies in favor of the
Merger and shall take all other actions reasonably requested by Purchaser to
secure the vote of stockholders required by the DGCL to effect the Merger. The
record date for the Stockholders Meeting shall be a date subsequent to the date
Purchaser or Merger Sub becomes a record holder of Common Stock purchased
pursuant to the Offer.
(b) As soon as practicable following the date of this Agreement,
Purchaser, Merger Sub and the Company shall prepare and file the Proxy Statement
with the SEC. The Company shall mail the Proxy Statement to its stockholders as
promptly as practicable after the date hereof.
(c) The Company represents and warrants that the Proxy Statement
will comply as to form in all material respects with the Exchange Act and, at
the respective times filed with the SEC and distributed to stockholders of the
Company, will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representation or warranty as to any information included in the Proxy Statement
which was provided by Purchaser or Merger Sub. Purchaser represents and warrants
that none of the information supplied by Purchaser or Merger Sub for inclusion
in the Proxy Statement will, at the respective times filed with the SEC and
distributed to stockholders of the Company, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) Subject to clause (iii) of Section 8.4(a) hereof, the Company
shall use its reasonable efforts to obtain the necessary approvals by its
stockholders of the
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Merger, this Agreement and the transactions contemplated hereby.
(e) Purchaser agrees to cause all shares of Common Stock purchased
by Merger Sub pursuant to the Offer and all other shares of Common Stock owned
by Purchaser, Merger Sub or any other affiliate of Purchaser to be voted in
favor of the approval of the Merger.
(f) Except as required by law, no amendment or supplement to the
Proxy Statement shall be made by the Company or Purchaser without the approval
of the other party (which shall not be unreasonably withheld). Each party shall
advise the other party, promptly after it receives notice thereof, of any
request by the SEC for amendment of the Proxy Statement or comments thereon and
responses thereto or requests by the SEC for additional information.
8.5. FILINGS; OTHER ACTION. Subject to the terms and conditions
herein provided, the Company, Purchaser and Merger Sub shall: (a) cooperate and
consult with one another in (i) determining which Regulatory Filings are
required or, in the case of Other Antitrust Filings and Consents, permitted to
be made prior to the Effective Time with, and which Consents are required or, in
the case of Other Antitrust Filings and Consents, permitted to be obtained prior
to the Effective Time from Governmental Entities or other third parties in
connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, and all Consents required
to transfer to the Company any Permits or registrations held on behalf of the
Company or any of its Subsidiaries by or in the name of distributors, brokers or
sales agents; (ii) preparing all Regulatory Filings and all other filings,
submissions and presentations required or prudent to obtain all Consents,
including by providing to the other parties drafts of such material reasonably
in advance of the anticipated filing or submission dates; and (iii) timely
making all such Regulatory Filings and timely seeking all such Consents; and (b)
use their respective reasonable efforts to take, or cause to be taken, all other
action and do, or cause to be done, all other things necessary, proper or
appropriate to consummate and make effective the transactions contemplated by
this Agreement. Each of Purchaser and the Company shall use its best efforts to
contest any proceeding seeking a preliminary injunction or other legal
impediment to, and to resolve any objections as may be asserted by any
Governmental Entity with respect to, the Offer or the Merger under Foreign
Antitrust Laws. If, at any time after the Effective Time, any further action is
necessary or desirable to carry out the purpose of this
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Agreement, the proper officers and directors of Purchaser and the Surviving
Corporation shall take all such necessary action.
8.6. PUBLICITY. The initial press release relating to this
Agreement shall be a joint press release and thereafter the Company and
Purchaser shall, subject to their respective legal obligations (including the
requirements of the New York Stock Exchange and other similar regulating
bodies), use reasonable efforts to agree upon the text of any press release
before issuing such press release or otherwise making public statements with
respect to the transactions contemplated hereby and in making any filings with
any Governmental Entity or with any securities exchange with respect thereto.
8.7. FURTHER ACTION. Each party hereto shall, subject to the
fulfillment at or before the Effective Time of each of the conditions of
performance set forth herein or the waiver thereof, perform such further acts
and execute such documents as may be reasonably required to complete the
transactions contemplated hereby.
8.8. EMPLOYEE BENEFIT PLANS; OTHER EMPLOYEE MATTERS. (a) Subject to
subsection (b) below, from and after the Effective Time, the Surviving
Corporation and its respective Subsidiaries will honor, in accordance with their
terms and this Agreement, all existing employment and severance agreements
between the Company or any of its Subsidiaries and any current or former
officer, director, consultant or employee of the Company or any of its
Subsidiaries to the extent in effect on the date hereof and all benefits or
other amounts earned or accrued to the extent vested or which become vested
pursuant to the terms of such agreements and this Agreement through the
Effective Time under all employee benefit plans of the Company and any of its
Subsidiaries, in each case to the extent in effect on the date hereof.
(b) Subject to Section 6.12(b), the Company shall use its best
efforts to obtain a written acknowledgement and agreement, in a form
satisfactory to Purchaser, properly signed by each of the employees covered by a
severance agreement set forth in Section 6.12(b) of the Disclosure Schedule
(other than H.W. Bowman, G.L. Schueppert, C.R. Davis, R.H. Medland, C.J.
Vitulli, D.J. Baddeley and J.D. Flaig, each of whom have signed such an
acknowledgement and agreement) as to the correctness of the amount of severance
and other payments required to be made under each such employees' severance
agreement and the amount to be
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deposited in a rabbi trust for payment of legal expenses in connection with such
severance agreements.
8.9. INSURANCE; INDEMNITY. (a) Purchaser will cause the Surviving
Corporation to maintain in effect for not less than six-years from the Effective
Time the Company's current directors and officers insurance policy (the "Current
Policy") covering the current and all former directors, officers and similar
persons of the Company and its Subsidiaries with respect to acts or failures to
act prior to the Effective Time. If such insurance is not obtainable or
maintainable at an annual cost per covered year not in excess of three times the
annual premium paid by the Company for the Current Policy (the "Cap"), then
Purchaser will cause the Surviving Corporation to purchase policies providing at
least the same coverage as the Current Policy and containing terms and
conditions no less advantageous to the current and former directors, officers
and similar persons of the Company and its Subsidiaries than the Current Policy
with respect to acts or failures to act prior to the Effective Time; provided,
however, that Purchaser and the Surviving Corporation shall not be required to
obtain policies providing such coverage except to the extent that such coverage
can be provided at an annual cost of no greater than the Cap; and, if equivalent
coverage cannot be obtained, or can be obtained only by paying an annual premium
in excess of the Cap, Purchaser or the Surviving Corporation shall only be
required to obtain as much coverage as can be obtained by paying an annual
premium equal to the Cap.
(b) Purchaser shall cause the Surviving Corporation to keep in
effect in its Bylaws provisions for a period of not less than six years after
the Effective Time (or, in the case of matters occurring prior to the Effective
Time which have not been resolved prior to the sixth anniversary of the
Effective Time, until such matters are finally resolved) which provide for
exculpation of director and officer liability and indemnification (and
advancement of expenses related thereto) of the past and present officers and
directors of the Company and its Subsidiaries to the fullest extent permitted by
the DGCL which provisions shall not be amended except as required by applicable
law or except to make changes permitted by law that would enhance the rights of
past or present officers and directors to indemnification or advancement of
expenses.
(c) If the Merger shall have been consummated, the Surviving
Corporation shall, to the fullest extent permitted under applicable law,
indemnify and hold harmless Purchaser and any person or entity who was a member,
shareholder,
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officer, director or affiliate of Purchaser prior to the Effective Time against
any losses, claims, damages, liabilities, costs or expenses (including
attorneys' fees), judgements, fines, penalties and amounts paid in settlement
(collectively, "Losses") in connection with any claim, action, suit, proceeding,
arbitration, investigation or audit (collectively "Litigation") arising out of
or pertaining to any of the transactions contemplated by this Agreement or the
Ancillary Documents.
(d) If, after the Effective Time, the Surviving Corporation or any
of its successors or assigns (i) consolidates with or merges into any other
person and shall not be the continuing or surviving corporation or entity of
such consolidation or merger or (ii) transfers all or substantially all its
properties and assets to any person, then, in each such case, the Surviving
Corporation shall use commercially reasonable efforts to cause that the
successor or assign of the Surviving Corporation to assume all the obligations
set forth in this Section 8.9. The provisions of this Section 8.9 are intended
for the benefit of and shall be enforceable by each person who is now or has
been at any time prior to the date of this Agreement, or who becomes prior to
the Effective Time, an officer, director or similar person of the Company or any
of its Subsidiaries.
(e) Any Indemnified Party will promptly notify the Surviving
Corporation of any claim, action, suit, proceeding or investigation for which
such party may seek indemnification under this Section. If any Litigation
described in paragraph (d) of this Section 8.9 (each, an "Action") arises or
occurs, the Surviving Corporation shall control the defense of such Action with
counsel selected by the Surviving Corporation, which counsel shall be reasonably
acceptable to the party seeking indemnification pursuant to paragraph (d) of
this Section 8.9 (each, an "Indemnified Party"), provided that the Indemnified
Party shall be permitted to participate in the defense of such Action through
counsel selected by the Indemnified Party, at the Indemnified Party's expense.
Notwithstanding the foregoing, if, upon written advice of counsel, there is any
actual or potential conflict between the Surviving Corporation and any
Indemnified Party or there are additional defenses available to any Indemnified
Party, such Indemnified Party shall be permitted to participate in the defense
of such Action with counsel selected by the Indemnified Party, at the Surviving
Corporation's expense; provided, however, that the Surviving Corporation shall
not be obligated to pay the reasonable fees and expenses of more than one
counsel for all Indemnified Parties in any single Action except to the extent
that two or more of such Indemnified Parties have
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conflicting interests in the outcome of such Action. the Surviving Corporation
shall not be liable for any settlement effected without its written consent,
which consent shall not unreasonably be withheld.
8.10. REAL PROPERTY TRANSFER TAXES. Any liability for real property
transfer taxes, real property gains taxes or similar taxes imposed with respect
to the property of the Company by any state, local or foreign taxing authority
with respect to the Offer and the Merger shall be paid or caused to be paid by
Surviving Corporation.
8.11. RIGHTS AGREEMENT. Except as otherwise provided in Section
6.20 hereof, the Company shall not redeem the Rights or amend the Rights
Agreement (other than to delay the Distribution Date (as defined therein) or to
render the Rights inapplicable to the Offer and the Merger) or terminate the
Rights Agreement prior to the Effective Time unless required to do so by order
of a court of competent jurisdiction.
8.12. TERMINATION OF REVOLVING CREDIT AGREEMENT. The Revolving
Credit Agreement and the documents relating to the Rutherford County, Tennessee
industrial revenue bonds issued on behalf of the Company shall be amended by the
execution and delivery of amendments thereto in the forms of Exhibits 8.12(a)
and 8.12(b) hereto. Upon not less than two Business Days prior written notice
from Purchaser or Merger Sub to the Company, the Company shall take all action
as shall be necessary to cause the Revolving Credit Agreement to be terminated
on or prior to the Effective Time.
8.13. ACCESS. Between the date of this Agreement and the Effective
Time, the Company will (i) give Parent, Merger Sub and their authorized
representatives reasonable access to (A) all plants, offices, warehouses,
distribution centers and other facilities, (B) representatives of the Company's
financing sources and (C) all books and records of it and its subsidiaries, (ii)
permit Parent, Merger Sub and their authorized representatives to make such
inspections as they may require and (iii) cause its officers and those of its
subsidiaries to furnish Parent, Merger Sub and their authorized representatives
with such financial and operating data and other information with respect to the
business and properties of the Company and its subsidiaries as Parent, Merger
Sub and their authorized representative may from time to time reasonably
request. All information and access obtained by Purchaser, Merger Sub and their
authorized representatives pursuant to this Section 8.13 shall be subject to the
terms and conditions of the Confidentiality Agreement.
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8.14. BY-LAWS AMENDMENT. As promptly as practicable following the
date of this Agreement, but in no event later than five business days after the
date hereof, the Board of Directors shall take all action necessary to amend
Article II, Section 9 of the Company's By-laws to permit action required or
permitted to be taken by the Company's stockholders to be effected by written
consent of such stockholders in accordance with Section 228 of the DGCL.
ARTICLE 9
CONDITIONS
9.1. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER.
The respective obligation of each party to effect the Merger shall be subject to
the satisfaction or waiver, where permissible, prior to the Effective Time, of
the following conditions:
(a) If approval of this Agreement and the Merger by the holders of
Common Stock is required by applicable law, this Agreement and the Merger shall
have been approved by the requisite vote of such holders.
(b) There shall not have been issued any injunction or issued or
enacted any Law which prohibits or has the effect of prohibiting the
consummation of the Merger or makes such consummation illegal; provided,
however, that each of the parties shall have used its best efforts to prevent
the entry of any injunction or other order and to appeal as promptly as possible
any injunction or other order that may be entered.
9.2. CONDITIONS TO MERGER SUB'S AND PURCHASER'S OBLIGATIONS TO
EFFECT THE MERGER. The obligations of Merger Sub and Purchaser to effect the
Merger shall be subject to the satisfaction or waiver, where permissible, prior
the Effective Time, of the following conditions:
(a) The representations and warranties of the Company contained in
this Agreement shall be true and correct on the date hereof and (except to the
extent such representations and warranties speak as of an earlier date) shall
also be true and correct on and as of the date on which the Offer is
consummated, except for changes expressly contemplated by this Agreement, with
the same force and effect as if made on and as of such date.
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(b) The Company shall have performed or complied in all material
respects with all agreements, conditions and covenants resolved by this
Agreement to be performed or complied with by the Company on or before the
Effective Time.
ARTICLE 10
TERMINATION; AMENDMENT; WAIVER
10.1. TERMINATION. This Agreement may be terminated and the Merger
contemplated hereby may be abandoned at any time prior to the Effective Time
notwithstanding approval thereof by the stockholders of the Company:
(a) by mutual written consent of the Company and Purchaser duly
authorized by its Board of Directors and Management Committee, respectively;
(b) by the Company, if Merger Sub shall have failed to
appropriately modify the Existing Offer in order to commence the Offer
contemplated hereby within five business days after the date of this Agreement;
(c) by the Company, if Purchaser or Merger Sub materially breach
any of their respective representations or warranties or covenants contained in
this Agreement and, with respect to any such breach that can be remedied, the
breach is not remedied within five business days after the Company has furnished
Purchaser or Merger Sub with written notice of such failure;
(d) by Purchaser or the Company:
(i) if the Effective Time shall not have occurred on or
before January 31, 1998 (provided that the right to terminate this Agreement
pursuant to this clause (i) shall not be available to any party whose failure to
fulfill any obligation under this Agreement has been the cause of or resulted in
the failure of the Effective Time to occur on or before such date);
(ii) if there shall be any statute, law, rule or
regulation that makes consummation of the Offer or the Merger illegal or
prohibited or if any court of competent jurisdiction or other Governmental
Entity shall have issued an order, judgment, decree or ruling, or taken any
other action restraining, enjoining or otherwise prohibiting the Offer or the
Merger and such order, judgment, decree, ruling
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or other action shall have become final and non-appealable; or
(iii) if the Offer terminates or expires on account of
the failure of any condition specified in Exhibit A without Merger Sub having
purchased any shares of Common Stock thereunder (provided that the right to
terminate this Agreement pursuant to this clause (iii) shall not be available to
any party whose failure to fulfill any obligation under this Agreement has been
the cause of or resulted in the failure of any such condition); or
(e) by the Company, at any time prior to the acceptance for payment
of shares of Common Stock by Merger Sub pursuant to the Offer, if there is an
Alternative Proposal which the Board of Directors in good faith determines
represents a superior transaction for the stockholders of the Company as
compared to the Offer and the Merger, and the Board of Directors determines,
after consultation with outside counsel and the Financial Advisor, that it is
required by its fiduciary duties to the Company's stockholders imposed by law to
terminate this Agreement and the Company pays to Purchaser any amounts owed
under Section 10.2(b) below; provided, however, that the right to terminate this
Agreement pursuant to this Section 10.1(e) shall not be available (i) if such
Alternative Proposal shall result from a breach in any material respect of the
Company's obligations under Section 8.1 or (ii) if the Company has not provided
Purchaser and Merger Sub with at least two business days' prior written notice
of its intent to so terminate this Agreement together with a summary of the
material terms and conditions of the Alternative Proposal; and
(f) by Purchaser, if the Board of Directors of the Company shall
have failed to recommend, or shall have withdrawn, modified or amended in any
manner adverse to Purchaser or Merger Sub, its approval or recommendation of the
Offer or the Merger, or shall have recommended acceptance of any Alternative
Proposal.
10.2. EFFECT OF TERMINATION.
(a) Subject to this Section 10.2, if this Agreement is terminated
and the Merger is abandoned pursuant to Section 10.1, this Agreement, except for
the provisions of Sections 1.2(b) (with respect to confidentiality), 8.6 and
Article 11 hereof, shall terminate, without any liability on the part of any
party or their respective directors, officers, stockholders or members. Nothing
herein shall relieve any party to this Agreement of liability for breach
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of this Agreement or prejudice the ability of the non-breaching party to seek
damages from any other party for any breach of this Agreement including, without
limitation, attorneys' fees and the right to pursue any remedy at law or in
equity.
(b) In the event (i) the Board of Directors shall publicly modify
or amend its recommendation of the Offer or the Merger in a manner adverse to
Purchaser or shall withdraw its recommendation of the Offer or shall recommend
any Alternative Proposal, or shall resolve to do any of the foregoing, or (ii)
at any time prior to the termination of this Agreement any person (other than
Purchaser or any of its affiliates) shall publicly announce any Alternative
Proposal and, at any time on or prior to one year after the date of this
Agreement, shall become the beneficial owner of 33% or more of the outstanding
shares of Common Stock or shall consummate an Alternative Proposal, then in any
such event the Company shall promptly, but in no event later than two business
days after the first of such events to occur, reimburse Purchaser for all costs
and expenses (including, without limitation, all fees and expenses of Purchaser
and Merger Sub and their prospective lenders' legal counsel, accountants,
experts and consultants, any bank or other commitment fees or finder's fees
relating to Purchaser's and Merger Sub's financing arrangements with respect to
the consummation of the Offer and the Merger, and all fees and expenses of the
information agent and depositary (including fees and out-of-pocket expenses of
its counsel) engaged by Parent and/or Merger Sub in connection with the Offer)
incurred by Purchaser and Merger Sub in connection with the Existing Offer, the
Offer, the Merger and other transactions contemplated by this Agreement up to a
maximum amount of $6 million, including, without limitation, in connection with
the preparation, printing, filing, publication and delivery of the Offer
Documents, the negotiation, preparation, execution and performance of this
agreement and any Agreement pursuant to which financing was to be provided to
Purchaser and Merger Sub in connection with the Existing Offer, the Offer and
the Merger, and the due diligence investigation of the Company.
10.3. AMENDMENT. To the extent permitted by applicable law, this
Agreement may be amended by action taken by or on behalf of the Board of
Directors and Management Committee of the Company and Purchaser, respectively,
at any time before or after adoption of this Agreement by the stockholders of
the Company but, after any such stockholder approval, no amendment shall be made
which decreases the Merger Consideration or which adversely affects the rights
of the Company's stockholders hereunder without the approval
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of such stockholders. This Agreement may not be amended except by an instrument
in writing signed on behalf of all of the parties.
10.4. EXTENSION; WAIVER. At any time prior to the Effective Time,
the parties hereto, by action taken by or on behalf of the Board of Directors
and Management Committee of the Company (subject to Section 1.4) and Purchaser,
respectively, may (i) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties contained herein by any other
applicable party or in any document, certificate or writing delivered pursuant
hereto by any other applicable party or (iii) waive compliance with any of the
agreements or conditions contained herein, except after any adoption of this
Agreement by the stockholders of the Company, for any waiver which has the
effect of decreasing the Merger Consideration or which adversely affects the
rights of the Company's stockholders hereunder without approval of such
stockholders. Any agreement on the part of any party to any such extension or
waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party.
ARTICLE 11
GENERAL PROVISIONS
11.1. NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive the Effective Time.
11.2. NOTICES. Any notice required to be given hereunder shall be
sufficient if in writing, and sent by facsimile transmission (with a
confirmatory copy sent by overnight courier), by courier service (with proof of
service), hand delivery or certified or registered mail (return receipt
requested and first-class postage prepaid), addressed as follows:
If to Purchaser or Merger Sub, to:
Greenmarine Holdings LLC
c/o Greenway Partners, L.P.
277 Park Avenue, 27th Floor
New York, New York 10172
Facsimile: (212) 350-5253
Attention: Gary K. Duberstein
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and
Soros Fund Management LLC
888 Seventh Avenue, Suite 3300
New York, New York 10106
Facsimile: (212) 399-0569
Attention: Ron Hiram
with copies to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Facsimile: (212) 310-8007
Attention: David E. Zeltner
and
Akin, Gump, Strauss, Hauer
& Feld, L.L.P.
590 Madison Avenue
New York, New York 10022
Facsimile: (212) 872-1002
Attention: Patrick J. Dooley
If to the Company (prior to the Effective Time), to:
Outboard Marine Corporation
100 Sea Horse Drive
Waukegan, Illinois 60085
Facsimile: (847) 689-6006
Attention: Harry W. Bowman
with a copy to:
Jones, Day, Reavis & Pogue
77 West Wacker Drive
Chicago, Illinois 60601-1692
Facsimile: (312) 782-8585
Attention: William P. Ritchie
If to the Surviving Corporation, to:
Outboard Marine Corporation
100 Sea Horse Drive
Waukegan, Illinois 60085
Facsimile: (847) 689-6006
Attention: President
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with a copy to:
Greenmarine Holdings LLC
c/o Greenway Partners, L.P.
277 Park Avenue, 27th Floor
New York, New York 10172
Facsimile: (212) 350-5253
Attention: Gary K. Duberstein
or to such other address as any party shall specify by written notice so given,
and such notice shall be deemed to have been delivered as of the date so
telecommunicated, personally delivered or mailed.
11.3. ASSIGNMENT; BINDING EFFECT. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties; provided, however, that either Purchaser
or Merger Sub (or both) may assign its rights hereunder to a wholly-owned
subsidiary but nothing shall relieve the assignor from its obligations
hereunder. Subject to the preceding sentence, this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns. Notwithstanding anything contained in this Agreement to
the contrary, except for the provisions of Sections 8.8 and 8.9 hereof, nothing
in this Agreement, expressed or implied, is intended to confer on any person
other than the parties hereto or their respective heirs, successors, executors,
administrators and assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
11.4. ENTIRE AGREEMENT. This Agreement, the Confidentiality Agreement,
the Disclosure Letter, the Purchaser Disclosure Letter, the Exhibits, the
Ancillary Documents and any other documents delivered by the parties in
connection herewith constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings among the parties with respect thereto.
11.5. FEES AND EXPENSES. Except as provided in Section 10.2(b) hereof,
if the Offer and/or Merger is not consummated, all costs and expenses incurred
in connection with the Offer and the Merger, and the negotiation, preparation
and execution of this Agreement and the transactions contemplated hereby, shall
be paid by the party incurring such costs and expenses. If the Merger is
consummated, the
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Surviving Corporation shall reimburse Parent and Merger Sub for all costs and
expenses incurred in connection with the Offer and the Merger, and the
negotiation, preparation and execution of this Agreement and the consummation of
the transactions contemplated hereby, including, without limitation, those costs
and expenses set forth in Section 10.2(b) hereof without regard to the $6
million limitation contained therein.
11.6. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware. Each of the Company,
Purchaser and Merger Sub hereby irrevocably and unconditionally consents to
submit to the exclusive jurisdiction of the Court of Chancery for the State of
Delaware and of the United States District Court for the District of Delaware
(the "Delaware Courts") for any litigation arising out of or relating to this
Agreement and the transactions contemplated hereby (and agrees not to commence
any litigation relating thereto except in such courts), waives any objection to
the laying of venue of any such litigation in the Delaware Courts and agrees not
to plead or claim in any Delaware Court that such litigation brought therein has
been brought in an inconvenient forum.
11.7. HEADINGS. Headings of the Articles and Sections of this Agreement
are for the convenience of the parties only, and shall be given no substantive
or interpretive effect whatsoever.
11.8. INTERPRETATION. In this Agreement, unless the context otherwise
requires, words describing the singular number shall include the plural and vice
versa, and words denoting any gender shall include all genders and words
denoting natural persons shall include corporations and partnerships and vice
versa. Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation." As used in this Agreement, the words "Subsidiary," "affiliate" and
"associate" shall have the meanings ascribed thereto in Rule 12b-2 under the
Exchange Act.
11.9. SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the
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provision shall be interpreted to be only so broad as is enforceable.
11.10. ENFORCEMENT OF AGREEMENT. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any Delaware Court, this
being in addition to any other remedy to which they are entitled at law or in
equity. The prevailing party in any judicial action shall be entitled to receive
from the other party reimbursement for the prevailing party's reasonable
attorney's fees and disbursements, and court costs.
11.11. COUNTERPARTS. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument. Each counterpart may consist of a number of copies
hereof each signed by less than all, but together signed by all, of the parties
hereto.
11.12. OBLIGATION OF PURCHASER. Whenever this Agreement requires Merger
Sub to take any action, such requirement shall be deemed to include an
undertaking on the part of Purchaser to cause Merger Sub to take such action.
11.13. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms shall have the meanings ascribed to them below:
(a) "BENEFICIAL OWNER" with respect to any securities means a person
that would be a beneficial owner pursuant to Rule 13d-3 promulgated under the
Exchange Act.
(b) "BUSINESS DAY" means any day other than a Saturday, Sunday, or
federal holiday, and consists of the time period from 12:01 a.m. through 12:00
midnight, New York City time.
(c) "PERSON" means a natural person, company, corporation, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization or other entity.
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IN WITNESS WHEREOF, the parties have executed this Agreement and caused
the same to be duly delivered on their behalf on the day and year first written
above.
OUTBOARD MARINE CORPORATION
By:_________________________________
Name: Harry W. Bowman
Title: Chairman of the Board,
President and Chief
Executive Officer
GREENMARINE HOLDINGS LLC
By:_________________________________
Name: Alfred D. Kingsley
Title: President and Chief
Executive Officer
GREENMARINE ACQUISITION CORP.
By:_________________________________
Name: Gary K. Duberstein
Title: Vice President
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Exhibit A
CONDITIONS OF THE OFFER
Notwithstanding any other term of the Offer or the Agreement and Plan
of Merger (the "Merger Agreement"), Merger Sub shall not be required to accept
for payment or pay for, subject to any applicable rules and regulations of the
SEC, including Rule 14e-1(c) of the Exchange Act, any shares of Common Stock not
theretofore accepted for payment or paid for and may terminate or amend the
Offer as to such shares of Common Stock unless (i) there shall have been validly
tendered and not withdrawn prior to the expiration of the Offer that number of
shares of Common Stock which, when added to the number of shares of Common Stock
beneficially owned by Merger Sub and Purchaser, would represent at least 67% of
the outstanding shares of Common Stock on a fully diluted basis (collectively,
the "Minimum Condition"), and (ii) approvals required by law to be obtained
prior to the consummation of the Offer under any Foreign Antitrust Laws to the
purchase of shares of Common Stock pursuant to the Offer shall have been
obtained. Furthermore, notwithstanding any other term of the Offer or the Merger
Agreement, Merger Sub shall not be required to accept for payment or, subject as
aforesaid, to pay for any shares of Common Stock not theretofore accepted for
payment or paid for, and may terminate or amend the Offer if at any time on or
after the date of the Merger Agreement and prior to the expiration of the Offer,
any of the following conditions exist or shall occur and remain in effect:
(a) (i) a court of competent jurisdiction or other Governmental Entity
shall have issued an order, judgment, decree or ruling on the merits in
connection with an action, suit or proceeding brought by any Governmental Entity
or person which (1) restrains or prohibits the acquisition by Purchaser of
shares of Common Stock pursuant to the Offer, or the making or consummation of
the Offer or the Merger, (2) makes the purchase of or payment for some or all of
the shares of Common Stock pursuant to the Offer or the Merger illegal, (3)
imposes material limitations on the ability of Purchaser (or any of its
affiliates) to acquire or hold, or to require Purchaser or any of its affiliates
or Subsidiaries to dispose of or hold separate, any material portion of the
assets or the business of Purchaser and its affiliates taken as a whole or the
Company and its Subsidiaries taken as a whole, or (4) imposes material
limitations on the ability of Purchaser (or its affiliates) to exercise full
rights of ownership of the shares of Common Stock purchased by it, including,
without limitation, the right to vote the shares purchased by it on all matters
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properly presented to the stockholders of the Company, or (ii) there shall have
been instituted and pending any action or proceeding by any Governmental Entity
which, in the opinion of Purchaser's counsel (assuming, for purposes of such
opinion only, the validity of the allegations) has a reasonable likelihood of
success on the merits, and which (1) seeks to challenge the acquisition by
Purchaser of shares of Common Stock pursuant to the Offer, restrain, prohibit or
delay the making or consummation of the Offer or the Merger, or obtain any
material damages in connection therewith, (2) seeks to make the purchase of or
payment for some or all of the shares of Common Stock pursuant to the Offer or
the Merger illegal, (3) seeks to impose material limitations on the ability of
Purchaser (or any of its affiliates) effectively to acquire or hold, or to
require Purchaser or the Company or any of their respective affiliates or
subsidiaries to dispose of or hold separate, any material portion of the assets
or the business of Purchaser and its affiliates taken as a whole or the Company
and its subsidiaries taken as a whole, or (4) seeks to impose material
limitations on the ability of Purchaser (or its affiliates) to exercise full
rights of ownership of the shares of Common Stock purchased by it, including,
without limitation, the right to vote the shares purchased by it on all matters
properly presented to the stockholders of the Company; or
(b) there shall have occurred (i) any general suspension of trading in,
or limitation on prices for, securities on any national securities exchange or
in the over-the-counter market in the United States, (ii) the declaration of a
banking moratorium or any suspension of payments in respect of banks in the
United States, (iii) the commencement of a war, armed hostilities or other
international or national calamity directly or indirectly involving the United
States, or (iv) any limitation (whether or not mandatory) by any governmental or
regulatory authority on, or any other event which has a material adverse effect
on the extension of credit by banks or other lending institutions in the United
States; or
(c) there shall have been promulgated, enacted, entered, enforced or
deemed applicable to the Offer or the Merger, by any Governmental Entity, any
Law or there shall have been issued any injunction resulting in any of the
consequences referred to in subsection (a) above; or
(d) the Merger Agreement shall have been terminated in accordance with
its terms; or
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(e)(i) the representations and warranties made by the Company in the
Merger Agreement shall not be true and correct as of the date of consummation of
the Offer as though made on and as of that date (other than representations and
warranties made as of a specified date) except for any breach or breaches which,
in the aggregate, would not have a Material Adverse Effect or (ii) the Company
shall have breached or failed to comply in any material respect with any of its
obligations under this Agreement and, with respect to any such failure that can
be remedied, the failure is not remedied within 20 business days after Purchaser
has furnished the Company with written notice of such failure; or
(f) during the period from the date of this Agreement through the
expiration of the Offer, the Company and its Subsidiaries have not conducted
their business in the ordinary course of such business consistent with past
practices, or there has been any event or state of fact which would have a
Material Adverse Effect; or
(g) the Board of Directors shall have modified or amended its
recommendation of the Offer or the Merger in any manner adverse to Purchaser or
Merger Sub or shall have withdrawn its recommendation of the Offer or the Merger
or shall have recommended acceptance of any Alternative Proposal or shall have
resolved to do any of the foregoing.
Subject to Section 1.1(b) of the Merger Agreement, the foregoing
conditions (a) through (g) are for the sole benefit of Purchaser and Merger Sub
and may be asserted by Purchaser regardless of the circumstances giving rise to
any such condition and may be waived by Purchaser, in whole or in part, at any
time and from time to time, in the sole discretion of Purchaser. The failure by
Purchaser at any time to exercise any of the foregoing rights will not be deemed
a waiver of any right, the waiver of such right with respect to any particular
facts or circumstances shall not be deemed a waiver with respect to any other
facts or circumstances, and each right will be deemed an ongoing right which may
be asserted at any time and from time to time.
Should the Offer be terminated pursuant to the foregoing provisions,
all tendered shares of Common Stock not theretofore accepted for payment shall
forthwith be returned by the depositary to the tendering stockholders.
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EXHIBIT B
AMENDMENTS TO RIGHTS AGREEMENT
OUTBOARD MARINE CORPORATION
100 Sea Horse Drive
Waukegan, Illinois 60085
September __, 1997
First Chicago Trust Company of New York
525 Washington Boulevard, Suite 4660
Jersey City, New Jersey 07310
Attn: President
Re: Amendment No. 3 to Rights Agreement
Ladies and Gentlemen:
Pursuant to Section 27 of the Rights Agreement, dated as of
April 24, 1996, by and between Outboard Marine Corporation (the "Company") and
First Chicago Trust Company of New York (as amended, the "Rights Agreement"),
the Company, by resolution adopted by its Board of Directors, hereby amends the
Rights Agreement as follows (with additions shown in bold type and deleted
material with a line drawn through):
1. Section 1(g) of the Rights Agreement is hereby amended by
deleting subsection (gg) thereof in its entirety and in place thereof inserting
the following:
"(gg) "Merger Agreement" means the Agreement and Plan of
Merger, dated as of September __, 1997, by and among Greenmarine Holdings LLC, a
Delaware limited liability company (the "Purchaser"), Greenmarine Acquisition
Corp., a Delaware corporation (the "Merger Sub") and the Company."
2. Section 1 of the Rights Agreement is hereby amended by
deleting the last paragraph of that Section and in place thereof inserting the
following to be the last paragraph of that Section:
"Notwithstanding anything in this Agreement to the contrary,
none of Purchaser, Merger Sub, any of their Affiliates or Associates or any of
their permitted assignees or transferees shall be deemed an Acquiring Person and
none
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of a Distribution Date, a Stock Acquisition Date, a Section 11(a)(ii) Event, or
a Section 13 Event shall be deemed to occur or to have occurred, in each such
case, by reason of the approval, execution or delivery of the Merger Agreement,
the announcement or completion of the Offer (as defined in the Merger
Agreement), or the Merger (as defined in the Merger Agreement), or the
consummation of the other transactions contemplated by the Merger Agreement."
3. Section 7(a) of the Rights Agreement is hereby amended by
deleting the remainder of the sentence commencing with the phrase "at or prior"
and inserting in place thereof the following:
"at or prior to the earliest of (i) the close of business on June 23,
2006 (the "Final Expiration Date"), (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof, or (iii) the time at which such
rights are exchanged pursuant to Section 24 hereof, or (iv) immediately prior to
the Effective Time of the Merger (each as defined in the Merger Agreement) (the
earliest of (i), (ii), (iii), or (iv) being herein referred to as the
"Expiration Date")."
4. The Rights Agreement shall not otherwise be supplemented or
amended by virtue of this Amendment, but shall remain in full force and effect.
5. Capitalized terms used without other definition in this
Amendment No. 3 to the Rights Agreement shall be used as defined in the Rights
Agreement.
6. This Amendment No. 3 to Rights Agreement shall be deemed to
be a contract made under the laws of the State of Delaware and for all purposes
shall be governed by and construed in accordance with the laws of the State of
Delaware applicable to contracts to be made and performed entirely within the
State of Delaware.
7. This Amendment No. 3 to Rights Agreement may be executed in
any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
8. This Amendment No. 3 to Rights Agreement shall be effective
as of, and immediately prior to, the execution and delivery of the Merger
Agreement, and all references to the Rights Agreement shall, from and after such
time, be
5
<PAGE>
deemed to be references to the Rights Agreement as amended hereby.
9. Exhibit B to the Rights Agreement shall be amended in a
manner consistent with this Amendment No. 3 to Rights Agreement.
Very truly yours,
OUTBOARD MARINE CORPORATION
By:________________________
Name: Harry W. Bowman
Title: Chairman of the
Board, President and
Chief Executive
Officer
Accepted and agreed to as of the effective time specified above:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By:__________________________________
Name:
Title:
6
<PAGE>
ANNEX 1.4
NEW DIRECTORS
[to be supplied: names of 6 directors;
4 designees of Merger Sub
and 2 continuing directors]
7
<PAGE>
Exhibit (g)(5)
GREENMARINE ACQUISITION CORP.
277 Park Avenue, 27th Floor
New York, New York 10172
September 10, 1997
By Telecopy
- -----------
Mr. Harry W. Bowman
Chairman of the Board,
President and Chief Executive Officer
Outboard Marine Corporation
100 Sea Horse Drive
Waukegan, Illinois
Dear Mr. Bowman:
We appreciated the announcement yesterday by the Board that it
will eliminate all impediments to the closing of our tender offer. We must now
document in a customary fashion the steps you say will be taken. To that end, we
are enclosing a revised Merger Agreement which reflects such steps and provides
for an $18 per share cash tender offer with no financing or refinancing
conditions.
Specifically, the Merger Agreement documents and confirms the
actions that your representatives indicated would be taken, including to render
inapplicable various anti-takeover provisions, to amend certain employee benefit
plans and to avoid a possible default under OMC's existing revolving credit
agreement.
The Merger Agreement also provides that OMC's Board of
Directors will take certain further actions that are entirely within its control
to eliminate an additional $6 million of payments under certain employee benefit
plans based solely on a change in control (but not to eliminate or reduce
benefits under such plans that are based on performance). A multiple of such
amount will still be payable to executives and key employees under "golden
parachutes" and other plans. Please note that we intend to make adequate
provision for employees and believe that incentive plans can and should be in
place.
We are ready to proceed.
Very truly yours,
/s/ Alfred D. Kingsley
--------------------------
Alfred D. Kingsley
