-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TWPbcJRZA6T3SYgNHh3veTu+lvCinQNOQU/znPcK+EyBBYkD36bOfpbPfHIy3Cm9 zcCjch5LrSL8JaEv4CxEAw== 0000910647-03-000362.txt : 20031022 0000910647-03-000362.hdr.sgml : 20031022 20031022173214 ACCESSION NUMBER: 0000910647-03-000362 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20031022 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: WESTERBEKE CORP CENTRAL INDEX KEY: 0000796502 STANDARD INDUSTRIAL CLASSIFICATION: MOTORS & GENERATORS [3621] IRS NUMBER: 041925880 STATE OF INCORPORATION: DE FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-37856 FILM NUMBER: 03952692 BUSINESS ADDRESS: STREET 1: AVON INDUSTRIAL PARK STREET 2: 41 LEDIN DRIVE CITY: AVON STATE: MA ZIP: 02322 BUSINESS PHONE: 5085887700 MAIL ADDRESS: STREET 1: AVON INDUSTRIAL PARK CITY: AVON STATE: MA ZIP: 02322 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: WESTERBEKE JOHN H CENTRAL INDEX KEY: 0000942096 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O WESTERBEKE CORPORATION STREET 2: AVON INDUSTRIAL PARK CITY: AVON STATE: MA ZIP: 02322 BUSINESS PHONE: 508-588-7700 MAIL ADDRESS: STREET 1: AVON INDUSTRIAL PARK STREET 2: C/O WESTERBEKE CORPORATION CITY: AVON STATE: MA ZIP: 02322 SC 13D/A 1 west13d4.txt AMENDMENT NO. 4 TO SCHEDULE 13D --------------------------- OMB APPROVAL --------------------------- OMB Number: 3235-0145 Expires: December 31, 2005 Estimated Average Burden hours per response 11 --------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 4)* WESTERBEKE CORPORATION - --------------------------------------------------------------------------- (Name of Issuer) COMMON STOCK - --------------------------------------------------------------------------- (Title of Class of Securities) 957547102 - --------------------------------------------------------------------------- (CUSIP Number) - --------------------------------------------------------------------------- John H. Westerbeke, Jr. Copy to: and Westerbeke Acquisition Corporation Pepe & Hazard LLP Myles Standish Industrial Park Goodwin Square 150 John Hancock Road Hartford, CT 06103 Taunton, MA 02780 (860) 522-5175 (508) 823-7677 Ext. 501 Attn: Walter W. Simmers - --------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) October 6, 2003 - --------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [ ] Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent. The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 2 of 5 CUSIP No. 957547102 - --------------------------------------------------------------------------- 1. Names of Reporting Persons. John H. Westerbeke, Jr. I.R.S. Identification Nos. of above persons (entities only). - --------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) [x] (b) [ ] - --------------------------------------------------------------------------- 3. SEC Use Only - --------------------------------------------------------------------------- 4. Source of Funds (See Instructions) PF - --------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or (e) - --------------------------------------------------------------------------- 6. Citizenship or Place of Organization U.S.A - --------------------------------------------------------------------------- Number of 7. Sole Voting Power 0 Shares Bene- ------------------------------------------------ ficially by 8. Shared Voting Power 1,098,250 Owned by Each ------------------------------------------------ Reporting 9. Sole Dispositive Power 0 Person With ------------------------------------------------ 10. Shared Dispositive Power 1,098,250 - --------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 1,098,250 - --------------------------------------------------------------------------- 12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) - --------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 56.2% - --------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) IN 3 of 5 CUSIP No. 957547102 - --------------------------------------------------------------------------- 1. Names of Reporting Persons. Westerbeke Acquisition Corporation I.R.S. Identification Nos. of above persons (entities only). (Applied for) - --------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) [x] (b) [ ] - --------------------------------------------------------------------------- 3. SEC Use Only - --------------------------------------------------------------------------- 4. Source of Funds (See Instructions) 00 - --------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or (e) - - --------------------------------------------------------------------------- 6. Citizenship or Place of Organization Delaware - --------------------------------------------------------------------------- Number of 7. Sole Voting Power 0 Shares Bene- ------------------------------------------------ ficially by 8. Shared Voting Power 1,098,250 Owned by Each ------------------------------------------------ Reporting 9. Sole Dispositive Power 0 Person With ------------------------------------------------ 10. Shared Dispositive Power 1,098,250 - --------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 1,098,250 - --------------------------------------------------------------------------- 12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [x] - --------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 56.2% - --------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) CO - --------------------------------------------------------------------------- 4 of 5 The Statement on Schedule 13D, dated May 12, 2003 as amended on June 4, 2003, July 16, 2003, and August 1, 2003 filed by John H. Westerbeke, Jr. and Westerbeke Acquisition Corporation ("Acquisition") is hereby further amended by this Amendment No. 4 to reflect (i) the opposition of Mr. Westerbeke and Acquisition to the most recent proposal of Valley Detroit Diesel Allison to acquire the outstanding shares of Common Stock of Westerbeke Corporation (the "Company"); (ii) the position of Mr. Westerbeke and Acquisition regarding an increase in the price to be paid under the Agreement and Plan of Merger between Acquisition and the Company (the "Merger Agreement") for shares of Common Stock held by persons other than Acquisition, the Company and persons exercising their dissenters' rights; and (iii) the position of Mr. Westerbeke and Acquisition regarding an extension of the October 31, 2003 date set forth in Section 9.01(c) of the Merger Agreement after which either party may terminate the merger if the merger has not been consummated; all as expressed to the special committee of the board of directors of the Company. This Amendment No. 4 is being filed by both Mr. Westerbeke and Acquisition. Item 4. Purpose of Transaction Item 4 is hereby amended by adding the following language: Mr. Westerbeke and Acquisition understand that, pursuant to a letter dated September 26, 2003, the special committee received a further offer from Valley Detroit Diesel Allison ("VDDA") to acquire the outstanding shares of Common Stock of the Company on the terms and conditions set forth in that letter. (See Exhibit 8). The special committee approached Mr. Westerbeke and Acquisition on October 6, 2003 with respect to that offer and other matters related to the proposed merger of Acquisition and the Company. In response to questions from the special committee, Mr. Westerbeke stated that he and Acquisition: (i) would not sell the shares of Common Stock held by Acquisition and beneficially owned by Mr. Westerbeke (through Acquisition) pursuant to the VDDA offer; (ii) would not agree to an increase in the $3.00 per share price to be paid under the Merger Agreement for shares of Common Stock held by persons other than Acquisition, the Company and persons exercising their dissenters' rights; and (iii) had not decided at that time whether to extend the October 31, 2003 date set forth in Section 9.01(c) of the Merger Agreement (after which either party may terminate the Merger Agreement if the merger has not been consummated). Subsequent to that discussion, Mr. Westerbeke and Acquisition learned that the special committee had proposed to VDDA that VDDA remove the 90% tender condition in the VDDA September 26, 2003 letter proposal and/or offer to purchase the shares of Common Stock beneficially held by stockholders other than Mr. Westerbeke (through Acquisition). Mr. Westerbeke was not consulted by the special committee regarding its proposals to VDDA and neither he nor Acquisition has taken a position regarding such proposals. Item 7. Materials to be filed as Exhibits. 8. Letter of Valley Detroit Diesel Allison, dated September 26, 2003. 5 of 5 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief I certify that the information set forth in this statement is true, complete and correct. WESTERBEKE ACQUISITION CORPORATION By: /s/ John H. Westerbeke, Jr. 10/22/03 ------------------------------------- John H. Westerbeke, Jr. (Date) Its President /s/ John H. Westerbeke, Jr. 10/22/03 ------------------------------------- John H. Westerbeke, Jr. (Date) EX-8 3 westd4x8.txt EXHIBIT 8 Exhibit 8 Valley Detroit Diesel Allison 425 South Hacienda Boulevard, City of Industry, California 91745 (626) 333-1243 FAX (626) 369-7096 FEDERAL EXPRESS - --------------- September 26, 2003 James W. Storey Chair of the Special Committee of the Board of Directors Westerbeke Corporation Three Saddle Ridge Road Dover, Mass. 02030 RE: New and Increased Offer by Valley Detroit Diesel Allison ("VDDA") to Purchase the Stock of Westerbeke Corporation Dear Mr. Storey: We understand that the special committee of the board of directors of Westerbeke Corporation (the "Special Committee") has again recommended the acceptance of Westerbeke Acquisition Corporation's ("WAC") May 2, 2003 offer of $3.00 per share and is the basis for the September 19, 2003 preliminary proxy filing with the Securities and Exchange Commission ("SEC"). The appraisal contained in that preliminary proxy filing, and a stated basis for your Special Committee's most recent recommendation, contains poor comparables and is out of date. This appraisal was prepared in April 2003, before Montgomery made its offer at $3.50 per share and before VDDA made the following three proposals: (1) to purchase WTBK's assets at $3.45 per share, (2) to purchase WTBK's assets at $3.60 per share and (3) to purchase the shares of WTBK at $3.70 per share. We respectfully submit that an appraisal that does not consider contemporaneous, unsolicited offers from unrelated and willing buyers for the shares being valued ignores the very definition of fair market value. Therefore, it is VDDA's recommendation that the April appraisal filed with the preliminary proxy, and upon which your Special Committee relied, be updated for the reasons referred to above and for the information contained in this proposal. The price contained in WAC's pending offer from May 2, 2003 is approximately $1.5 million below the terms set forth in this new and increased offer by VDDA. The duty of the Special Committee is to recommend the best and fair offer. How will the marketplace, the public, the other shareholders and the SEC interpret a recommendation by the Special Committee calling for the acceptance of an offer that is obviously inferior? Distributor for: DETROIT DIESEL CORPORATION DEUTZ CORPORATION ELECTRO-MOTIVE & ALLISON TRANSMISSION, DIVISIONS OF GENERAL MOTORS CORPORATION Valley James W. Storey New and Increased Offer to Purchase Stock of Westerbeke September 26, 2003 Page 2 Valley Detroit Diesel Allison ("VDDA or we") is, therefore, proposing to the Special Committee a new offer to purchase at least ninety (90%) percent of the outstanding stock of WTBK, on the terms and conditions set forth in this letter. The terms of the proposal set forth in this letter are conditioned upon the assets and liabilities of WTBK being substantially consistent with the assets and liabilities disclosed on WTBK's third quarter financial statement set forth in the Form 10Q dated as of July 26, 2003. Upon acceptance of our offer by the Special Committee, we would require a reasonable period with which to complete our due diligence review of WTBK's business, assets and liabilities. 1. VDDA will pay WTBK the sum of $3.75 in cash at closing multiplied by the number of shares of WTBK common stock tendered. As noted, VDDA's obligation to close the transaction would be conditioned on the tender of at least 90% of the outstanding shares. 2. VDDA's proposed offer is based on the total of WTBK's liabilities being substantially as stated on WTBK's balance sheet, in the approximate amount of $6.5 million (based on WTBK's third quarter 2003 Form 10Q dated as of July 26, 2003). 3. WTBK would retain through the closing all of the assets on the WTBK balance sheet and all of WTBK's off-balance sheet assets and intangibles, including but not limited to intellectual property, service marks, trademarks, patents, copyrights, as well as any rights, claims and choses in action. The assets will be held at all times by WTBK free and clear of all secured and unsecured debts, mortgages, pledges, liens, charges, security interests, encumbrances and obligations of any kind or nature whatsoever. 4. WTBK will agree, if so requested by VDDA, to join VDDA in an election under Section 338(h)(10) of the Internal Revenue Code and if necessary any analogous state tax provision. 5. Our offer is conditioned on the approval of this proposal by the Special Committee and the unanimous approval of WTBK's non-employee members of the board of directors. 6. Once our proposal receives the approval of the Special Committee and the non-employee directors, VDDA would prepare and file the appropriate filings with the SEC for the purchase of the shares. 7. We will conduct our due diligence as quickly as possible. We request immediate access to WTBK to obtain (a) interviews with key employees, management and WTBK advisors, (b) an accounting and records due diligence, and (c) customary legal and environmental review. Valley James W. Storey New and Increased Offer to Purchase Stock of Westerbeke September 26, 2003 Page 3 8. We will enter into a standard form non-disclosure agreement in a form acceptable to WTBK's counsel prior to commencing our due diligence review. 9. The terms of this proposal will not be changed, and is subject to the agreement of the Special Committee and WTBK's non-employee directors to the foregoing terms, the successful completion of our due diligence review and the tender of the requisite number of shares. 10. We are ready to perform financially and are willing to provide you with substantiation upon request. 11. Based on the terms outlined in this letter, upon the tender of the requisite number of shares, the parties will proceed to negotiate a mutually satisfactory stock purchase agreement (the "Definitive Agreement"). The Definitive Agreement will contain terms, conditions, representations, warranties, covenants and non-competition provisions customary and appropriate for the type of transaction contemplated. 12. Between the date of this letter and the closing date of the Definitive Agreement, WTBK will have conducted its business and affairs only in the ordinary and usual course, will not have engaged in any activity or entered into any transaction outside of the ordinary and usual course of business and will not have increased the compensation of any director or officer or of any other employee, contractor or other person or entity. Prior to the Closing Date, WTBK shall preserve and keep intact its business organization, to keep available to WTBK the services of its present employees and contractors, including its officers, and to preserve for VDDA the good will of the contractors, customers, suppliers, creditors and others having business relations with WTBK. In particular, WTBK will not transfer or sell any of its assets other than retail sales in the ordinary course of business. 13. This letter states VDDA's proposal to the Special Committee and is not itself a tender offer, which is conditioned on the approvals of the Special Committee and WTBK's non-employee directors. This letter does not set forth all of the matters upon which agreement must be reached in order for the proposed transaction to be consummated. Our terms, as set forth above, offer several collateral benefits for the WTBK shareholders, including (a) higher net proceeds to the WTBK shareholders, (b) the lowering of costs associated with the acquisition, (c) the elimination of potential liabilities and (d) improvement of (rather than harming) the defendant's position in the lawsuit arising from the terms of Westerbeke Acquisition Corporation's ("WAC") offer to acquire the shares of WTBK. We believe our offer will result in a substantially greater economic benefit to all of the shareholders of WTBK without exposing them to any higher risk or detriment. In addition we strongly believe that VDDA brings significant resources and collateral benefits to the operations Valley James W. Storey New and Increased Offer to Purchase Stock of Westerbeke September 26, 2003 Page 4 of WTBK including its employees. It is VDDA's intent to restore the operations of WTBK to profitability through the utilization of its existing plant. The Agreement and Plan of Merger obligates your committee to recommend to the shareholders the "Superior Acquisition Proposal". Our proposal is demonstrably better than the offer from WAC and it will "provide greater value to the Company's stockholders than the transaction contemplated by the Agreement and Plan of Merger." Our proposal provides 25.00% greater value or approximately $1.5 million more than the transaction contemplated by the current Agreement and Plan of Merger. We are ready, willing and able to consummate the proposal set forth in this letter. We urge your committee to discharge its duty in good faith to obtain the fair price for WTBK's assets and accept our superior acquisition proposal. We would like to afford you a reasonable opportunity to consider our proposal. We therefore will hold this offer open through 3 P.M. (EDT)/12 P.M. (PDT) on Tuesday October 14, 2003 for you to let us know your response to this proposal for VDDA to offer to acquire the stock of WTBK. Very truly yours, VALLEY DETROIT DIESEL ALLISON By: /s/ Michael P. Barnett -------------------------------- Michael P. Barnett President Accepted and Agreed to: WESTERBEKE CORPORATION By: _________________________ Date: _______________________ -----END PRIVACY-ENHANCED MESSAGE-----