EXHIBIT 4.23
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF THE POWERS, DESIGNATIONS,
PREFERENCES AND RIGHTS OF THE
SERIES A CONVERTIBLE PREFERRED STOCK,
PAR VALUE $.01 PER SHARE
OF
OUTBOARD MARINE CORPORATION
_______________________________
(Pursuant to Section 242 of the
General Corporation Law of the State of Delaware)
Outboard Marine Corporation, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), does hereby certify
as follows:
1. The name of the Corporation is Outboard Marine Corporation.
2. The date of filing of the Amended and Restated Certificate of
Incorporation of the Corporation with the Secretary of State was September 30,
1997, and the date of filing of the Certificate of the Powers, Designations,
Preferences and Rights of the Series A Convertible Preferred Stock, Par Value
$.01 Per Share (the "Certificate of Designation"), with the Secretary of State
was January 28, 2000. The Certificate of Designation was amended by the filing
of a Certificate of Amendment with the Secretary of State on May 5, 2000.
3. This Certificate of Amendment amends the Certificate of
Designation, as now in effect, to (i) provide for the issuance of shares of
Series B Convertible Preferred Stock and Series C Convertible Preferred Stock as
Senior Stock and (ii) exempt from the anti-dilution adjustment provisions
contained therein certain specific issuances of Common Stock by the Corporation.
4. Section 2 of the Certificate of Designation as now in effect is
hereby amended to read in its entirety as follows:
2. Rank. The Series A Preferred Stock shall, with respect to
dividend distributions and distributions of assets and rights upon the
liquidation, winding up and dissolution of the Corporation, rank (i) junior
to the outstanding shares of Senior Stock, and (ii) senior to all classes
of common stock of the Corporation (including, without limitation, the
common stock, par value $.01 per share, of the Corporation (the "Common
Stock")) and to each other class or series of capital stock of the
Corporation hereafter created other than the shares of Senior Stock (the
Common Stock and each other class or series of capital stock of the
Corporation other than the Senior Stock are hereinafter collectively
referred to as the "Junior Stock").
5. Section 5(c)(iii) of the Certificate of Designation as now in
effect is hereby amended to read in its entirety as follows:
(iii) Issuance of Common Stock Below Current Market Price or
Conversion Price. If the Corporation shall, at any time or from time to
time, sell or issue shares of Common Stock (regardless of whether
originally issued or from the Corporation's treasury), or rights, options,
warrants or convertible or exchangeable securities containing the right to
subscribe for or purchase shares of Common Stock (excluding (A) shares
issued in any of the transactions described in Section 5(c)(i) or (ii), (B)
shares of Common Stock issued upon the conversion of any shares of Series A
Preferred Stock, (C) Common Stock purchase warrants issued pursuant to the
Purchase Agreement and the shares of Common Stock issued upon the exercise
of such warrants, (D) the Subordinated Notes issued under that certain
Subordinated Note and Warrant Purchase Agreement, dated May 2, 2000, among
the Corporation, Quantum Industrial Partners LDC and Greenlake Holdings III
LLC, and any shares of Series B Preferred Stock issued upon conversion
thereof, (E) shares of Common Stock issued upon the conversion of any
shares of Series B Preferred Stock, (F) Common Stock purchase warrants
issued by the Corporation pursuant to that certain Subordinated Note and
Warrant Purchase Agreement, dated May 2, 2000, among the Corporation,
Quantum Industrial Partners LDC and Greenlake Holdings III LLC and the
shares of Common Stock issuable upon exercise of such warrants, (G) shares
of Series C Preferred Stock issued pursuant to that certain Preferred Stock
and Warrant Purchase Agreement, dated May 31, 2000, among the Corporation,
Quantum Industrial Partners LDC and Greenlake Holdings III LLC, and shares
of Common Stock issued upon the conversion of shares of any shares of
Series C Preferred Stock, (H) Common Stock purchase warrants issued
pursuant to that certain Preferred Stock and Warrant Purchase Agreement,
dated May 31, 2000, among the Corporation, Quantum Industrial Partners LDC
and Greenlake Holdings III LLC, and shares of Common Stock issued upon the
exercise of such warrants, and (I) options issuable pursuant to bona fide
employee benefit plans or arrangements approved or adopted by the
Corporation's Board of Directors, and the shares of Common Stock issuable
on exercise of such options) at a price per share of Common Stock
(determined, in the case of rights, options, warrants or convertible or
exchangeable securities, by dividing (x) the total consideration received
or receivable by the Corporation in consideration of the sale or issuance
of such rights, options, warrants or convertible or exchangeable
securities, plus the total consideration payable to the Corporation upon
exercise or conversion or exchange thereof, by (y) the total number
of shares of Common Stock covered by such rights, options, warrants or
convertible or exchangeable securities) lower than either the Current
Market Price per share of Common Stock or the Conversion Price immediately
prior to such sale or issuance, then the Conversion Price shall be reduced
to the price determined by multiplying the Conversion Price in effect
immediately prior thereto by a fraction, the numerator of which shall be
the sum of (I) the number of shares of Common Stock outstanding immediately
prior to such sale or issuance, plus (II) the quotient obtained by dividing
the aggregate consideration received (determined as provided below) for
such sale or issuance by the Applicable Price, and the denominator of which
shall be the total number of shares of Common Stock outstanding immediately
after such sale or issuance. Such adjustment shall be made successively
whenever such sale or issuance is made. For the purposes of such
adjustments, the shares of Common Stock which the holder of any such
rights, options, warrants, or convertible or exchangeable securities shall
be entitled to subscribe for or purchase shall be deemed to be issued and
outstanding as of the date of such sale or issuance and the consideration
"received" by the Corporation therefor shall be deemed to be the
consideration actually received or receivable by the Corporation (plus any
underwriting discounts or commissions in connection therewith) for such
rights, options, warrants or convertible or exchangeable securities, plus
the consideration stated in such rights, options, warrants or convertible
or exchangeable securities to be payable to the Corporation for the shares
of Common Stock covered thereby. If the Corporation shall sell or issue
shares of Common Stock for a consideration consisting, in whole or in part,
of property other than cash or its equivalent, then in determining the
"price per share of Common Stock" and the "consideration" received or
receivable by or payable to the Corporation for purposes of the first
sentence and the immediately preceding sentence of this Section 5(c)(iii),
the fair value of such property shall be determined in good faith by the
Board of Directors of the Corporation and shall be the value which is
agreed upon by at least 75% of the members thereof or if 75% of the members
of the Board of Directors of the Corporation are unable to agree upon the
value of such consideration, the value thereof shall be determined by an
independent investment bank of nationally recognized stature that is
selected by 75% of the members of the Board of Directors. The determination
of whether any adjustment is required under this Section 5(c)(iii) by
reason of the sale and issuance of rights, options, warrants or convertible
or exchangeable securities and the amount of such adjustment, if any, shall
be made only at the time of such issuance or sale and not at the subsequent
time of issuance or sale of Common Stock upon the exercise or conversion of
such rights, options, warrants or convertible or exchangeable securities.
Upon the expiration of any such options, warrants or rights, the
termination of any such rights to convert or exchange or the expiration of
any options, warrants or rights related to such convertible or exchangeable
securities, the then current Conversion Price, to the extent in any
affected by or computed using such options, warrants, rights or securities
or options or rights related to such securities, shall be recomputed to
reflect the issuance of only the number of shares of Common Stock actually
issued upon the exercise of such options, warrants or rights, upon the
conversion or exchange of such securities or upon the exercise of the
options or rights related to such securities.
6. Section 8 of the Certificate of Designation as now in effect is
hereby amended to read in its entirety as follows:
8. Reissuance of Series A Preferred Stock. Shares of Series A
Preferred Stock that have been issued and reacquired in any manner,
including shares purchased or redeemed or exchanged, shall (upon compliance
with any applicable provisions of the laws of Delaware) have the status of
authorized and unissued shares of preferred stock undesignated as to series
and may be redesignated and reissued as part of any series of preferred
stock (other than Series A Preferred Stock, Series B Preferred Stock or
Series C Preferred Stock).
7. The definition of "Senior Stock" set forth in Section 10 of the
Certificate of Designation as now in effect is hereby amended to read in its
entirety as follows:
"Senior Stock" means the Series B Preferred Stock and Series C
Preferred Stock that may from time to time be outstanding.
8. Section 10 of the Certificate of Designation as now in effect is
hereby further amended to add the following additional defined terms:
"Series C Preferred Stock" means the shares of the Corporation's
Series C Convertible Preferred Stock, par value $.01 per share.
9. Such amendments were duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware and by Section 7(c) of the Certificate of Designation as now in effect.
IN WITNESS WHEREOF, the Corporation has authorized the undersigned to
execute this certificate on this 31st day of May, 2000.
OUTBOARD MARINE CORPORATION
By: /s/ Eric T. Martinez
---------------------------
Name: Eric T. Martinez
Title: Sr. Vice President Finance and Treasurer