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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9/A
(AMENDMENT NO. 2)
SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO
SECTION 14(D)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
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THE LOEWEN GROUP INC.
(Name of Subject Company)
THE LOEWEN GROUP INC.
(Name of Person(s) Filing Statement)
COMMON SHARES, WITHOUT PAR VALUE
(AND ASSOCIATED SHARE PURCHASE RIGHTS)
6.00% CUMULATIVE REDEEMABLE CONVERTIBLE FIRST
PREFERRED SHARES, SERIES C, WITHOUT PAR VALUE
(Title of Class of Securities)
54042L100
54042L407
(CUSIP Number of Class of Securities)
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Peter S. Hyndman
Vice President, Law and Corporate Secretary
The Loewen Group Inc.
4126 Norland Avenue
Burnaby, British Columbia
Canada V5G 3S8
(604)299-9321
(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:
Lyle G. Ganske, Esq.
Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
(216) 586-3939
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This statement amends and supplements the Solicitation/Recommendation
Statement on Schedule 14D-9 (the "Schedule 14D-9") of The Loewen Group Inc., a
corporation incorporated under the laws of British Columbia, Canada (the
"Company"), filed with the Securities and Exchange Commission (the "Commission")
on October 10, 1996, with respect to the proposed exchange offers (the "Second
SCI Proposal") announced on October 2, 1996, and disclosed in a Registration
Statement on Form S-4 (the "Registration Statement") filed with the Commission
on October 3, 1996, by New Service Corporation International, a Delaware
corporation ("New SCI"), and SCI Holdings Canada, Inc. a Company incorporated
under the laws of British Columbia, Canada ("Canadian SCI"), each a wholly owned
subsidiary of Service Corporation International, a Texas Corporation ("SCI").
The proposed exchange offers contemplated by the Second SCI Proposal have not
yet commenced.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Schedule 14D-9.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED.
Item 8 is amended and supplemented hereby by inserting the following
new paragraph after the third paragraph of Item 8(a):
On October 17, 1996, the United States District Court for the Eastern
District of New York denied in all respects a motion by SCI to dismiss, stay or
transfer the Company's action against SCI. A copy of the Company's press
release regarding the District Court's ruling is attached as Exhibit 45 to this
Schedule 14D-9 and is incorporated herein by reference.
Item 8 is amended and supplemented hereby by inserting the following
at the end of the fourth paragraph of Item 8(b):
On October 11, 1996 the Company received a written request for data from the
Commonwealth of Pennsylvania's Office of the Attorney General in connection with
an investigation of the Second SCI Proposal. A copy of the Company's press
release regarding this investigation is included as Exhibit 44 to this Schedule
14D-9 and is incorporated herein by reference.
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ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
Except for Exhibit 44 which is filed herewith, the following Exhibits
were previously filed with the Schedule 14D-9:
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Exhibit 1 -- Letter from L. William Heiligbrodt to Raymond L. Loewen, dated September 17, 1996.
Exhibit 2 -- Letter from L. William Heiligbrodt to Raymond L. Loewen, dated September 18, 1996.
Exhibit 3 -- Letter to Shareholders from Raymond L. Loewen, dated September 24, 1996.
Exhibit 4 -- Letter to L. William Heiligbrodt from Raymond L. Loewen, dated September 24, 1996.
Exhibit 5 -- [Intentionally omitted].
Exhibit 6 -- Press Release issued by Loewen, dated September 17, 1996.
Exhibit 7 -- [Intentionally omitted].
Exhibit 8 -- Press Release issued by Loewen, dated September 24, 1996.
Exhibit 9 -- Press Release issued by Loewen, dated September 27, 1996.
Exhibit 10 -- Press Release issued by Loewen, dated October 1, 1996.
Exhibit 11 -- Press Release issued by SCI, dated October 2, 1996.
Exhibit 12 -- Press Release issued by Loewen, dated October 2, 1996.
Exhibit 13* -- Press Release issued by Loewen, dated October 10, 1996.
Exhibit 14 -- Complaint in KRIM V. BAGNELL, ET AL. (Superior Court of the State of California).
Exhibit 15 -- First Amended Complaint in SERVICE CORPORATION INTERNATIONAL V. THE
LOEWEN GROUP INC. (United States District Court for the Southern District of Texas).
Exhibit 16 -- Complaint in THE LOEWEN GROUP INC. V. SERVICE CORPORATION
INTERNATIONAL, ET AL. (United States District Court for the Eastern District of New York).
Exhibit 17* -- Opinion letter of Smith Barney Inc. to Loewen Board of Directors, dated October 10, 1996.
Exhibit 18* -- Opinion letter of Nesbitt Burns Inc. to Loewen Board of Directors, dated October 10, 1996.
Exhibit 19 -- Pages 15 - 20 and 32 - 34 of The Loewen Group Inc. Proxy Statement, dated April 9, 1996.
Exhibit 20 -- The Loewen Group Inc. Employee Stock Option Plan (United States).
Exhibit 21 -- The Loewen Group Inc. Employee Stock Option Plan (Canada).
Exhibit 22 -- Form of The Loewen Group Inc. Employee Stock Option Plan Agreement (Directors of
Loewen Group International, Inc.).
Exhibit 23 -- Form of The Loewen Group Inc. Employee Stock Option Plan Agreement (Directors of
subsidiaries).
Exhibit 24 -- Form of The Loewen Group Inc. Employee Stock Option Plan Agreement (employees).
Exhibit 25 -- The Loewen Group Inc. Employee Share Purchase Plan (United States).
Exhibit 26 -- The Loewen Group Inc. Employee Share Purchase Plan (Canada).
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Exhibit 27 -- The Loewen Group Inc. 1994 Management Equity Investment Plan.
Exhibit 28 -- Form of The Loewen Group Inc. 1994 Management Equity Investment Plan Investment
Option Agreement.
Exhibit 29 -- The Loewen Group Inc. Supplement to 1994 Management Equity Investment Plan.
Exhibit 30 -- The Loewen Group Inc. Addendum to 1994 Management Equity Investment Plan.
Exhibit 31 -- Form of The Loewen Group Inc. Management Equity Investment Plan Borrowing
Agreement.
Exhibit 32 -- Form of The Loewen Group Inc. Management Equity Investment Plan Executive
Agreement.
Exhibit 33 -- Form of The Loewen Group Inc. Management Equity Investment Plan 1994 Exchangeable
Floating Rate Debenture due July 15, 2001.
Exhibit 34 -- The Loewen Group Inc. 1994 Outside Director Compensation Plan.
Exhibit 35 -- The Loewen Group Inc. Employee Stock Bonus Plan.
Exhibit 36 -- The Loewen Group Inc. Shareholder Protection Rights Plan Agreement and Amendments.
Exhibit 37 -- Employment Agreement with Timothy R. Hogenkamp.
Exhibit 38 -- [Intentionally omitted].
Exhibit 39 -- Form of Indemnification Agreement with Outside Directors.
Exhibit 40 -- Form of Indemnification Agreement with Officers.
Exhibit 41 -- Form of The Loewen Group Inc. Severance Agreement.
Exhibit 42 -- The Loewen Group Inc. Severance Pay Plan.
Exhibit 43* -- Letter to Shareholders from Raymond L. Loewen, dated October 10, 1996.
Exhibit 44 -- Press Release issued by Loewen, dated October 14, 1996.
Exhibit 45 -- Press Release issued by Loewen, dated October 17, 1996.
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* Exhibits distributed to Shareholders.
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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 is true, complete
and correct.
THE LOEWEN GROUP INC.
By: /s/ Peter S. Hyndman
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Name: Peter S. Hyndman
Title: Vice President, Law and
Corporate Secretary
Dated: October 18, 1996
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EXHIBIT 44
PENNSYLVANIA ATTORNEY GENERAL STARTS ANTITRUST PROBE OF SERVICE
CORPORATION'S PROPOSED ACQUISITION OF LOEWEN GROUP
VANCOUVER, October 14, 1996-- The Loewen Group Inc. (NYSE, TSE, ME, LWN)
announced today that the Commonwealth of Pennsylvania's Office of the Attorney
General, has commenced an investigation of the proposed acquisition of Loewen
by Service Corporation International (SCI).
In a letter to The Loewen Group, the Deputy Attorney General,
Antitrust Section indicated concern about the potential anticompetitive impact
the proposed acquisition may have in the Commonwealth of Pennsylvania. The
letter also indicated that the Attorney General's office was "very interested in
coordinating its investigation with any investigation that may be conducted by
the FTC". The Office of the Attorney General has authority under the federal
antitrust laws to review potentially anticompetitive mergers that may affect
Pennsylvania's general economy.
The anti-competitive effects of the proposal are already being
reviewed by the FTC and have prompted regulatory scrutiny in numerous states,
including New York, Florida, Hawaii, Texas, California and Tennessee. In
addition, the Canadian Competition Bureau is investigating the effects of the
proposal under the Canadian Competition Act, and in that respect has made a
request for information from the Company.
Last Thursday, Loewen announced that it had filed an antitrust lawsuit
in the United States District Court for the Eastern District of New York against
SCI and Equity Corporation International, of which SCI owns approximately 40%.
The lawsuit alleges SCI's proposed acquisition would, if successful,
substantially lessen competition in the markets for locally-offered funeral and
cemetery services, "pre-need" funeral services, and the funeral home and
cemetery acquisition markets. The complaint alleges that SCI and Equity
Corporation International are "co-conspirators" in actions that are designed to
eliminate Loewen as a competitive factor.
SOURCE: The Loewen Group Inc.
CONTACT: David A. Laundy of The Loewen Group, Inc. (404) 293-7857
Thomas C. Franco of Broadgate Consultants, Inc. (212) 229-2222
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EXHIBIT 45
Loewen Group Prevails On New York Federal Court Motion
Loewen's Antitrust Lawsuit Against SCI To Proceed
VANCOUVER, October 17, 1996 -- The Loewen Group Inc. (NYSE: LWN; Toronto;
Montreal) announced today that the United States District Court of the Eastern
District of New York has denied in all respects a motion by Service Corporation
International (SCI) to dismiss, stay or transfer Loewen's pending antitrust
action against SCI and Equity Corporation International, of which SCI owns
approximately 40%.
In its ruling in favor of Loewen, United States District Judge Frederic
Block found that Loewen was not precluded from proceeding with its antitrust
lawsuit in New York challenging the proposed business combination of SCI and
Loewen under the Clayton Act and Section 1 of the Sherman Act. In making its
determination, the court found that SCI's Texas declaratory judgment lawsuit was
anticipatory and preemptive which created sufficient special circumstances to
deny SCI's motion seeking to halt Loewen's New York federal antitrust suit.
Loewen's federal antitrust lawsuit alleges SCI's proposed acquisition of
Loewen would, if successful, substantially lessen competition in the markets for
locally-offered funeral and cemetery services, "pre-need" funeral services, and
the funeral home and cemetery acquisition markets.
The anti-competitive effects of the proposal are being reviewed by the FTC
and have prompted regulatory scrutiny in numerous states, including New York,
Florida, Hawaii, Texas, California, Pennsylvania, and Tennessee. In addition,
the Canadian Competition Bureau is investigating the effects of the proposal
under the Canadian Competition Act, and in that respect has made a request for
information from the Company.
CONTACT: David A. Laundy of The Loewen Group Inc., 604-293-7857; or Thomas
C. Franco of Broadgate Consultants, Inc., 212-229-2222
