Brunswick Corporation

Text (OCR of the scan at left; may contain errors)

IN THE MATTER OF BRUNSWICK CORPORATION, ET AL.

MODIFYING ORDER IN REGARD TO ALLEGED VIOLATION OF SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT AND SEC. 7 OF THE CLAYTON ACT April, 1982 Doket 9028. Final Ordr, Aug. 198G-Modifying Order, This order modifies the Commision s final order issued on August 14, 1980, 96 C. 151 , by adding Paragaphs IX and X to the order, in accordance with the decision and judgment of the Eighth Circuit Court of Appeals. The new paragaphs: (1) limit Yamaha s liability in this matter solely to violations of Section 5 of the Federal Trade Commission Act; and (2) insures that nothing in the order prevents respondents from imposing upon themselves, their dealers and distributors, vertical restraints in connection with the sale by them for resale in the U.S. of outboard motors. MODIFIED ORDER TO CEASE AND DESIST The Commission having issued a final cease and desist order herein on August 14, 1980, and such order having been modified and Appeals for the Eighthaffrmed by the United States Court of Circuit, and the Supreme Court having denied the petition for certiorari fied by respondents Brunswick Corporation and Mariner Corp.

Now, therefore it is ordered that the aforesaid order to cease and desist be, and hereby is, modified in accordance with the decision and judgment of the Court of Appeals to read as follows: For the purposes of this Order:

a) Brunswick shall mean the Brunswick Corporation, together foreign subsidiarieswith its present and future domestic and affiiates, joint ventures, related corporations (including Mariner Corp.), and corporations controlled by Brunswick Corporation; and all successors to Brunswick Corporation and their domestic and foreign subsidiaries, affiiates, joint ventures and related corporations; and all corporations controlled by the successors of Brunswick Corporation.

b) Yamaha shall mean Yamaha Motor Co., Ltd., together with its present and future domestic and foreign subsidiaries, affiiates, joint ventures, related corporations, and corporations controlled by Yamaha Motor Co., Ltd.; and all successors to Yamaha Motor Co., Ltd. and their domestic and foreign subsidiaries, affliates, joint ventures Modifying Order 99 F.

and related corporations; and all corporations controlled by the successors of Yamaha Motor Co., Ltd.

cJ Mariner shall mean Mariner Corp., together with its present and future domestic and foreign subsidiaries, affiliates, joint ventures, related corporations, and corporations controlled by Mariner Corp.; and all successors to Mariner Corp. and their domestic and foreign subsidiaries, affiliates, joint ventures and related corpora. tions; and all corporations controlled by the successors of Mariner Corp.

It is ordered That within 90 days of the date this Order becomes final, Brunswick and Mariner shall sell to Yamaha, and Yamaha shall buy from Brunswick and Mariner, all capital stock, bonds debentures, and other securities and other interests held by Brunswick and Mariner in Sanshin Kogyo Co., Ltd. C'Sanshin J. The purchase price shall be equal in dollars to the value of the net tangible assets per share, computed and adjusted to the last day of the six month term immediately preceding the date of the sale. II.

It is further ordered That, on or before 90 days from the date this Order becomes final, Brunswick, Yamaha, and Mariner shall rescind in all respects the Joint Venture Agreement, and the agreements attached thereto, entered into on November 21, 1972, and all agreements modifying the Joint Venture Agreement and the agreements attached thereto, shall consider them null and void, and shall cease and desist from observing or enforcing the terms of said agreements.

III.

It is further ordered That from the date this Order becomes final Brunswick and Mariner shall cease any and all representation on the board of directors of Sanshin, cease and desist from taking any steps to nominate. seat, or admit any representatives of Brunswick and Mariner to the board of directors of Sanshin, and cease and desist from exercising any of the rights of a shareholder of Sanshin except the right to receive dividends.

_.

411 Modifying Order IV.

It is further ordered That from the date this Order becomes final neither Brunswick nor Mariner shall enter into, continue to be a party to, or enforce any agreement which in whole or in part prevents a manufacturer, seller, or distributor of outboard motors from manufacturing, sellng, or distributing such motors in the United States, its territories or possessions. It is further ordered That from the date this Order becomes final Yamaha shall not enter into, continue to be a party to, or observe any agreement which in whole or in part prevents Yamaha from manufacturing, selling, or distributing outboard motors in the United States, its territories or possessions. VI.

It is further ordered That Brunswick, Yamaha, and Mariner spall for a period of three years from the date this Order becomes final cease and desist from acquiring, directly or indirectly, through subsidiaries or otherwise, without the prior approval of the Federal Trade Commission, all or any part of the stock or share capital of any concern, corporate or noncorporate, engaged in the production distribution or sale of outboard motors in or for the United States, or capital assets pertaining to such production, distribution or sale of such motors in or for the United States.

VII.

It is further ordered That Brunswick, Yamaha, and Mariner notify the Federal Trade Commission at least 30 days prior to any proposed change in its corporate structure such as dissolution assignment or sale resulting in the emergence of a successor corporation, the creation or dissolution of subsidiaries, or any change in the corporation which may affect compliance obligations arising out of this Order.

VII.

It is further ordered That Brunswick, Yamaha, and Mariner shall within 120 days of the date this Order becomes final, submit in writing to the Federal Trade Commission a verified report setting forth in detail the manner and form in which Brunswick, Yamaha Modifying Order 99 F.

and Mariner each intends to comply or has complied with this Order. Brunswick, Yamaha, and Mariner shall submit such other information as may from time to time be requested by the Commission. IX.

Nothing in this Order or in the opinions of the Commission in this case shall be construed as a finding or conclusion that Yamaha has violated Section 7 of the Clayton Act. All findings and relief against Yamaha are based solely on Section 5 of the Federal Trade Commission Act.

Nothing in this Order, including in particular Paragraphs IV or V hereof, shall prevent either Brunswick, Mariner, or Yamaha respectively, from imposing upon itself, its dealers, or its distributors, ancilary vertical restraints in connection with the sale by it for resale in the United States of outboard motors. 415 Complaint