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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9/A
AMENDMENT NO. 4
TO
SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO
SECTION 14(D)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
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OUTBOARD MARINE CORPORATION
(NAME OF SUBJECT COMPANY)
OUTBOARD MARINE CORPORATION
(NAME OF PERSON(S) FILING STATEMENT)
COMMON STOCK, PAR VALUE $0.15 PER SHARE
(TITLE OF CLASS OF SECURITIES)
690020102
(CUSIP NUMBER OF CLASS OF SECURITIES)
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HARRY W. BOWMAN
CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER
OUTBOARD MARINE CORPORATION
100 SEA HORSE DRIVE
WAUKEGAN, ILLINOIS 60085
(847) 689-6200
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE
NOTICE AND COMMUNICATIONS ON BEHALF OF THE PERSON(S) FILING STATEMENT)
With a copy to:
D. JEFFREY BADDELEY, ESQ.
VICE PRESIDENT, SECRETARY
AND GENERAL COUNSEL
OUTBOARD MARINE CORPORATION
100 SEA HORSE DRIVE
WAUKEGAN, ILLINOIS 60085
(847) 689-6200
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This Amendment No. 4 (this "Amendment") is to the
Solicitation/Recommendation Statement on Schedule 14D-9, as amended (the
"Schedule 14D-9"), that relates to the offer by OMC Acquisition Corp., a
Delaware corporation (the "Offeror") and a wholly-owned subsidiary of Detroit
Diesel Corporation, a Delaware corporation ("DDC"), disclosed in a Tender Offer
Statement on Schedule 14D-1 dated July 15, 1997, as amended (the "Schedule
14D-1"), to purchase 13,842,619 shares of Common Stock, par value $0.15 per
share (the "Shares"), of Outboard Marine Corporation, a Delaware corporation
(the "Company"), at a purchase price of $16.00 per Share, net to the seller in
cash, without interest, upon the terms and subject to the conditions set forth
in the Offeror's Offer to Purchase and in the related Letter of Transmittal each
dated July 15, 1997 (which, together with any amendments or supplements thereto,
collectively constitute the "Offer").
The item numbers and responses thereto below are in accordance with the
requirements of Schedule 14D-9. The information set forth under each item below
is in addition to, and not in lieu of, information previously set forth
thereunder. Capitalized terms used in this Amendment but not defined herein have
the meanings ascribed to them in the Schedule 14D-9.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED.
The Company Board of Directors has taken action to exclude the Greenmarine
Offer and the Greenmarine Merger from the Rights Agreement and the provisions of
Section 203 of the DGCL and Article Eighteenth of the Company's Restated
Certificate of Incorporation. For purposes of allowing Greenmarine to conclude
the Greenmarine Offer by 9:00 a.m., Eastern Daylight Time, on September 12, 1997
(the "Exclusion Period"), the Company Board of Directors amended the Rights
Agreement to render the Rights (as defined in the Rights Agreement), and
approved the Greenmarine Offer and the Greenmarine Merger in all respects to
render Section 203 of the DGCL and Article Eighteenth of the Company's Restated
Certificate of Incorporation, inapplicable to Greenmarine, the Parent and their
affiliates during the Exclusion Period, provided that (i) the Greenmarine Offer
is consummated at a price of $18.00 per Share in cash, net to the seller
thereof, and (ii) the number of Shares purchased by Greenmarine pursuant to the
Greenmarine Offer, together with any other Shares then owned by Greenmarine,
represents not less than 90 percent of the issued and outstanding Shares on that
date.
In taking the foregoing action, the Company Board of Directors addressed
the principal conditions to the Greenmarine Offer that are within the Company's
control and thereby provided the Greenmarine with the opportunity to close the
Greenmarine Offer during the Exclusion Period. However, because the Greenmarine
Offer continues to be subject to a number of conditions that are beyond the
Company's control and because Greenmarine has indicated that it is continuing to
pursue required working capital financing, the Company Board of Directors has
not recommended the Greenmarine Offer and has not changed its recommendation of
the Offer.
In accordance with the Offer and the Agreement and Waiver dated as of
September 8, 1997, among DDC, the Offeror and the Company (the "Agreement and
Waiver"), which is filed herewith as Exhibit 99.7 to the Schedule 14D-9 and
incorporated herein by reference, the Offeror has extended the Offer. The Offer
will now expire at 5:00 p.m., Eastern Daylight Time, on September 15, 1997,
unless extended in accordance with the Offer.
Pursuant to the Agreement and Waiver, DDC waived its right to receive the
Termination Fee. DDC and the Offeror also acknowledged and agreed pursuant to
the Agreement and Waiver that: (i) the Company may take certain actions to
facilitate competing transactions -- including, without limitation, taking
actions necessary to render Section 203 of the DGCL, Article Eighteenth of the
Company's Restated Certificate of Incorporation and the provisions of the Rights
Agreement dated as of April 24, 1996, as amended by Amendment No. 1 dated July
8, 1997 (the "Rights Agreement"), between the Company and First Chicago Trust
Company of New York, inapplicable to such transactions and amending certain
employee bonus, severance and pensions plans -- without breaching the Merger
Agreement, and (ii) the payment of the $7.5 million described below will be in
lieu of any and all damages, costs and expenses for breach of the Merger
Agreement by the Company or against any other party making a competing offer
that the Company facilitates,
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provided that none of the terms and conditions of the Agreement and Waiver will
in any way prevent DDC or the Offeror from bringing any counterclaim or other
legal action in response to any legal action by such other party relating to the
Offer, the Merger, the Merger Agreement or the competing transaction. The
Company paid DDC $7.5 million pursuant to the Agreement and Waiver, which also
provides that, if DDC is required to return such funds for any reason
whatsoever, then the waiver and other provisions described above will be deemed
void ab initio.
The Company Board of Directors determined that, in the circumstances of the
Greenmarine Offer, it was advisable for the administration of the Rights
Agreement that the occurrence of the Distribution Date (as defined in the Rights
Agreement), as it applied to the Greenmarine Offer, be deferred to a later date.
Accordingly, pursuant to a resolution, the Company Board of Directors determined
that, for purposes of the Greenmarine Offer, the Distribution Date would be
extended until (i) 5:00 p.m., Eastern Daylight Time, on September 12, 1997, or
(ii) such other date as may be determined in good faith by the Company Board of
Directors.
On September 9, 1997, the Offeror filed an amendment to the Schedule 14D-1
relating to the extension by the Offeror of the Offer until 5:00 p.m., Eastern
Daylight Time, on September 15, 1997, unless extended in accordance with the
Offer.
On September 9, 1997, the Company issued a press release, which is filed
herewith as Exhibit 99.8 to the Schedule 14D-9 and incorporated herein by
reference, regarding the above-described actions of the Company Board of
Directors with respect to the Rights Agreement and Section 203 of the DGCL and
Article Eighteenth of the Company's Restated Certificate of Incorporation, the
Agreement and Waiver and the above-described extension of the Offer.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Schedule 14D-9/A is true,
complete and correct.
Dated: September 10, 1997 OUTBOARD MARINE CORPORATION
By: /s/ HARRY W. BOWMAN
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Name: Harry W. Bowman
Title: Chairman of the Board,
President and Chief
Executive Officer
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EXHIBIT INDEX
**Exhibit 99.1: Agreement and Plan of Merger dated as of July 8, 1997,
among Detroit Diesel Corporation, OMC Acquisition Corp. and
Outboard Marine Corporation.
**Exhibit 99.2: Severance Agreement dated as of March 31, 1997, between
Harry W. Bowman and the Company.
**Exhibit 99.3: Form of Severance Agreement between Outboard Marine
Corporation and each of George L. Schueppert, Carlisle R.
Davis, Richard H. Medland, Clark J. Vitulli, D. Jeffrey
Baddeley, John D. Flaig and Thomas G. Goodman, providing
for a lump-sum payment of 200% of the sum of Base Pay and
Incentive Pay; and between Outboard Marine Corporation and
each of Peter W. Brown, Miles E. Dean, Hans Lamens, Robert
S. Romano, Peter L. Schelle, Gary F. Swartz, Raymond M.
Cartade, Edgar M. Frandle, Grainger B. McFarlane, Russell
J. VanRens, Paul R. Rabe, Robert F. Young, George L.
Broughton, Paula S. Rummage and Peter J. VanLancker,
provide for a lump-sum payments of 100% of the sum of Base
Pay and Incentive Pay.
**Exhibit 99.4: The form of Amended and Restated Severance Agreement
between Outboard Marine Corporation and each of Jack L.
Feurig, Dennis G. Holmes, Robert J. Moerchen and J.P.
Murphy.
**Exhibit 99.5: Fairness Opinion of Salomon Brothers Inc dated July 8, 1997
(filed as Annex A to this Schedule 14D-9).*
**Exhibit 99.6: Form of letter dated July 15, 1997 to be sent to the
shareholders of Outboard Marine Corporation.*
Exhibit 99.7: Agreement and Waiver dated as of September 8, 1997, among
Detroit Diesel Corporation, Outboard Marine Acquisition
Corp. and Outboard Marine Corporation.
Exhibit 99.8: Press Release issued by Outboard Marine Corporation on
September 9, 1997.
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*Copy sent to shareholders of the Company.
**Previously filed.
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EXHIBIT 99.7
Agreement and Waiver
This Agreement and Waiver is dated as of September 8, 1997, among
Detroit Diesel Corporation, OMC Acquisition Corp. and Outboard Marine
Corporation.
Recitals
A. Purchaser, Merger Sub and the Company are parties to the
Agreement and Plan of Merger dated as of July 8, 1997 (the "Merger Agreement").
Capitalized terms used and not otherwise defined in this Agreement will have
the meanings set forth in the Merger Agreement.
B. Purchaser, Merger Sub and the Company desire to modify the
Merger Agreement upon the terms and conditions set forth in this Amendment.
Therefore the parties agree as follows:
1. Waiver and Acknowledgements. Purchaser hereby waives its
right to receive the fee described in Section 10.2(b) of the Merger Agreement.
Purchaser and Merger Sub hereby acknowledge and agree that: (a) the Company may
take certain actions to facilitate competing transactions--including, without
limitation, taking actions necessary to render Section 203 of the DGCL, Article
Eighteenth of the Company's Restated Certificate of Incorporation and the
provisions of the Rights Agreement dated as of April 24, 1996, as amended by
Amendment No. 1 dated July 8, 1997, between the Company and First Chicago Trust
Company of New York, inapplicable to such transactions, and amending certain
employee bonus, severance and pension plans--without breaching the Merger
Agreement, and (b) the payment of funds described in Section 3 will be in lieu
of any and all damages, costs and expenses for breach of the Merger Agreement
by the Company or against any other party making a competing offer that the
Company facilitates, provided that nothing in this clause (b) will in any way
prevent Purchaser or Merger Sub from bringing any counterclaim or other legal
action in response to any legal action by such other party relating to the
Offer, the Merger, the Merger Agreement or the competing transaction.
2. Extension. Merger Sub will extend the Offer to 5:00 p.m.,
Eastern Daylight Time, on September 15, 1997.
3. Payment. The Company will pay Purchaser $7.5 million by wire
transfer to such account as Purchaser designates no later than 12:00 noon,
Eastern Daylight Time, on September 9, 1997. If Purchaser does not receive
these funds or is required to return such funds for any reason whatsoever, then
the waiver and other provisions in Section 1 will be deemed void ab initio.
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4. Press Release. On September 9, 1997, Purchaser and the
Company will each issue a press release disclosing the terms of this Agreement
and Waiver and indicating that Purchaser, Merger Sub and the Company have
mutually agreed to extend the Offer.
DETROIT DIESEL CORPORATION
By: /s/ Timothy D. Leuliette
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Its: Vice Chairman
OMC ACQUISITION CORP.
By: /s/ Timothy D. Leuliette
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Its: Vice Chairman
OUTBOARD MARINE CORPORATION
By: /s/ Harry W. Bowman
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Its: Chairman of the Board,
President and Chief
Executive Officer
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EXHIBIT 99.8
[OMC NEWS LETTERHEAD]
___________________
Contact:
Marlena C. Cannon
Director, Public Affairs and Communications
(847) 689-5492
FOR IMMEDIATE RELEASE
Stan Main
Director, Investor Relations
(847) 689-5246
Jim Fingeroth/Jason Lynch
Kekst and Company
(212) 521-4800
OMC BOARD OF DIRECTORS TAKES ACTION TO BRING
BIDDING CONTEST TO A CONCLUSION
Waukegan, IL, September 9, 1997 -- Outboard Marine Corporation (NYSE:OM)
("OMC") announced today that its board of directors has taken several actions
intended to bring the current bidding contest for the Company between Detroit
Diesel Corporation ("DDC") and Greenmarine Acquisition Corporation
("Greenmarine") to a conclusion and remove the uncertainty surrounding the
Company's future that has resulted from the contest.
The board took actions to exempt Greenmarine's current $18.00 per share
tender offer from the Company's shareholder rights plan and from certain
provisions of the Company's charter until 9:00 a.m. Eastern Time on September
12, 1997. In addition, the Company and DDC entered into an Agreement and Waiver
pursuant to which DDC agreed to extend its offer until September 15, 1997 at
5:00 p.m. Eastern Time, and DDC agreed
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OMC BOARD OF DIRECTORS TAKES ACTION, ADD ONE
that the Company could take actions designed to facilitate the Greenmarine
offer without causing a breach of the DDC Merger Agreement. In connection with
this Agreement and Waiver, the Company paid DDC a fee of $7.5 million, and DDC
agreed to waive any right to receive the $15.75 million liquidated damages fee
if Greenmarine successfully concludes its offer.
The Company said the board took these actions because the protracted
uncertainty regarding its future is having a damaging effect on the Company's
operating and financial condition. These actions address the principal
conditions to Greenmarine's $18.00 per share tender offer which are within
OMC's control and are intended to provide Greenmarine with the opportunity to
close its tender offer on its current expiration date of Thursday, September
11, 1997.
Greenmarine's tender offer remains subject to conditions and
Greenmarine has indicated it has not resolved its required financing
commitments. In view of this, the board of directors has not changed its
previous recommendation to OMC shareholders that they tender their shares into
the Detroit Diesel Corporation tender offer.
Harry W. Bowman, chairman, president and chief executive officer of
OMC, said, "Shareholders should understand the rationale for the actions taken
by the board. Our top priorities are to obtain the highest possible price for
our shareholders and to bring the bidding process to a close as quickly as
possible. We are concerned that Greenmarine has thus far been unable to close
on its tender offer. Therefore, we have taken actions
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OMC BOARD OF DIRECTORS TAKES ACTION, ADD TWO
that eliminate every impediment that we can control to give Greenmarine a clear
opportunity to close on its offer before DDC's offer expires.
"Meanwhile, there is outstanding a fully financed and unconditional
tender offer for the Company at $16.00 per share from DDC that will expire at
5:00 PM, Eastern Time on Monday, September 15, 1997. We are concerned that DDC
will not extend its offer beyond that date. If the Greenmarine offer is not
consummated, after we have given them this clear opportunity to do so, OMC will
have to act as strongly as possible to end the uncertainty surrounding the
Company's future," Mr. Bowman concluded.
On July 8, 1997 OMC agreed to be acquired by Detroit Diesel Corporation
for $16.00 per share. On August 8, 1997, Greenmarine Acquisition Corporation
announced that it was commencing a tender offer for OMC shares at $18.00 per
share, subject to certain terms and conditions.
Since August 11, 1997, OMC's representatives have been in frequent
discussions with Greenmarine in an attempt to clarify the terms and conditions
of the Greenmarine offer and to try to reach a merger agreement with
Greenmarine. However, to date, no agreement has been reached.
Outboard Marine Corporation is a leading worldwide manufacturer and
marketer of marine engines, boats and accessories.
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