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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(D)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 13)
THE UNITED STATES SHOE CORPORATION
(Name of Subject Company)
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LUXOTTICA GROUP S.p.A.
LUXOTTICA ACQUISITION CORP.
(Bidders)
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COMMON SHARES, WITHOUT PAR VALUE
(INCLUDING THE ASSOCIATED PREFERENCE SHARE PURCHASE RIGHTS)
(Title of Class of Securities)
912605102
(CUSIP Number of Class of Securities)
CLAUDIO DEL VECCHIO
44 HARBOR PARK DRIVE
PORT WASHINGTON, NEW YORK 11050
(516) 484-3800
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications on Behalf of Bidders)
WITH A COPY TO:
JONATHAN GOLDSTEIN
WINSTON & STRAWN
175 WATER STREET
NEW YORK, NEW YORK 10038
(212) 269-2500
CALCULATION OF FILING FEE
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TRANSACTION VALUATION* $1,201,654,248
AMOUNT OF FILING FEE** $240,330.85
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* Pursuant to, and as provided by, Rule 0-11(d), this amount is based upon the
purchase of 50,068,927 Common Shares of the Subject Company and the
associated Rights at $24.00 cash per share, which is equal to the sum of (i)
the number of Shares outstanding as reported in the Quarterly Report on Form
10-Q of the Subject Company for the quarter ended October 29, 1994 and (ii)
the number of Shares subject to outstanding options as reported in the Annual
Report on Form 10-K of the Subject Company for the fiscal year ended January
29, 1994.
** 1/50 of 1% of Transaction Valuation.
X Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and
identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form or
Schedule and the date of its filing.
Amount Previously Paid: $240,330.85
Form or Registration No.: Schedule 14D-1
Filing Party: Luxottica Group S.p.A.; Luxottica Acquisition Corp.
Date Filed: March 3, 1995
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Page 1 of 16 Pages
The Exhibit Index is located on Page 14
<PAGE>
Luxottica Group S.p.A. and Luxottica Acquisition Corp. hereby amend and
supplement their Tender Offer Statement on Schedule 14D-1, filed on March 3,
1995 (as amended, the "Schedule 14D-1"), with respect to the Offer to Purchase
all of the outstanding Common Shares, without par value, of The United States
Shoe Corporation, including the associated preference share purchase rights, as
set forth in this Amendment No. 13. Unless otherwise indicated, all capitalized
terms used but not defined herein shall have the meanings assigned to such terms
in the Schedule 14D-1.
ITEM 10. ADDITIONAL INFORMATION
Item 10 is hereby amended to add the following:
(e) On March 30, 1995, the Company and the other
defendants in the Ohio Litigation filed with the District Court an
Answer and Amended Counterclaim (the "Answer and Amended
Counterclaim") denying the material allegations in the Third
Amended Complaint filed by the Luxottica Plaintiffs (the "Third
Amended Complaint") and alleging, among other things, that the
Schedule 14D-1, the Offer to Purchase, and the definitive Proxy
Statement dated March 21, 1995 of Parent and the Purchaser for
the Section 831 Meeting (the "831 Proxy Statement") contain false
and misleading statements and fail to make required disclosures
in violation of the Exchange Act and the Ohio Take-Over Act, which
violations purportedly require preliminary and permanent injunctive
relief restraining consummation of the Tender Offer or any other
transaction to gain control of the Company.
Count I of the Answer and Amended Counterclaim alleges
that the Schedule 14D-1 and the Offer to Purchase fail to disclose
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<PAGE>
as alleged purposes of the Offer, Parent's intention to cause
Lenscrafters, Inc., a wholly owned subsidiary of the Company, to
shift its sourcing of merchandise from the Far East to European
suppliers (including Parent), and an attempt on Parent's part to
prevent Lenscrafters, Inc. from obtaining a certain market share in
North America. The Company apparently makes these assertions on
the basis of statements attributed by the press to Leonardo Del
Vecchio, the Chairman of the Board and Chief Executive Officer of
Parent. The Luxottica Plaintiffs intend to deny that the Schedule
14D-1 and Offer to Purchase are false or misleading, and believe
that the Purpose of the Tender Offer, as well as their Plans and
Proposals, are fully and adequately set forth in those documents.
As the Schedule 14D-1 and Offer to Purchase disclose, once the
Tender Offer is consummated and the Proposed Merger between the
Company and another direct or indirect wholly owned subsidiary of
Parent occurs, Parent will control the entire equity interest in
the Company, and it and the Purchaser will conduct a detailed
review of the Company's assets and business operations to determine
what, if any, changes would be desirable in light of the
circumstances which then exist.
Count II of the Answer and Amended Counterclaim alleges
that the Schedule 14D-1 and the Offer to Purchase fail to
adequately disclose the corporate organization of Parent and its
subsidiaries, including the Purchaser, and that Avant-Garde Optics,
3
<PAGE>
Inc. may acquire certain Shares purchased by the Purchaser pursuant
to the Offer. The Luxottica Plaintiffs intend to deny that the
Schedule 14D-1 and the Offer fail to disclose any material facts
regarding the Tender Offer structure. Luxottica U.S. Holdings
Corp., an indirect wholly owned subsidiary of Parent, is the
Borrower under the Commitment Letter, which refers to it as "Newco
1". Luxottica Acquisition Corp. is referred to as "Bidder" in the
Commitment Letter. Luxottica U.S. Holdings Corp. will invest as
capital in Avant-Garde Optics, Inc. the proceeds of the Facility
necessary to fund Luxottica Acquisition Corp.'s acquisition of the
Shares and the Proposed Merger. Avant-Garde Optics, Inc., which is
currently a direct wholly owned subsidiary of Parent, will invest
as capital in Luxottica Acquisition Corp. an amount equal to the
entire proceeds received by it from Luxottica U.S. Holdings Corp.
Upon consummation of the Proposed Merger between Luxottica Acquisition Corp.
and the Company, the surviving corporation will be a wholly owned subsidiary
of Avante-Garde Optics, Inc.
Count III of the Answer and Amended Counterclaim alleges that the
Schedule 14D-1 fails to disclose the identity of Mr. Leonardo Del Vecchio,
the Chairman of the Board and Chief Executive Officer of Parent, as a
"controlling person" of Parent within the meaning of the Exchange Act. The
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Luxottica Plaintiffs intend to deny that the Schedule 14D-1 and the Offer to
Purchase fail to disclose any material information regarding Mr. Del Vecchio,
who together with other members of the Del Vecchio family, owns approximately
71.5% of Parent's stock. Mr. Del Vecchio founded Parent in 1961, and has served
as its Chief Executive Officer since that time. He has served as Chairman of
its Board of Directors since 1981. All of the information concerning
"controlling persons" which is required to be disclosed by the Exchange Act is
in fact disclosed in the Schedule 14D-1 with respect to Mr. Del Vecchio, as
well as the other Directors and Officers identified in Schedule I to the
Offer to Purchase.
Count IV of the Answer and Amended Counterclaim alleges, among other
things, that the Schedule 14D-1 and the Offer to Purchase fail to disclose
material facts pertaining to the proposed financing of the Offer, including
the identity of the actual borrower under the Facility, the risk that the
Financing contemplated by the Facility may be challenged for noncompliance with
the margin regulations promulgated by the Board of Governors of the Federal
Reserve System (the "Board of Governors"), the amount of funds that may be
borrowed under the Revolving Credit Facility to purchase Shares, and the
fact that the documentation evidencing the Facility is subject to the approval
of Credit Suisse. The Luxottica Plaintiffs intend to deny that the Schedule
14D-1 and the Offer to Purchase fail to disclose any material facts pertaining
to the financing of the Tender Offer. As noted above, Luxottica U.S. Holdings
Corp., a newly formed Delaware corporation, will be the Borrower under the
Facility. The Luxottica Plaintiffs believe the Facility is and will be in
5
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full compliance with the margin regulations promulgated by the Board of
Governors, and thus, there is no "risk" of non-compliance. The Borrower will
borrow under the Facility sufficient funds to finance the Tender Offer, as set
forth in the Offer to Purchase. The fact that the Commitment Letter is subject
to customary conditions, including the negotiation, execution and delivery
of definitive documentation, clearly requiring the execution, and thus the
approval, thereof by Credit Suisse, is also fully disclosed in the Schedule
14D-1 and the Offer to Purchase.
Count IV also alleges that the Fourth Amendment to the Schedule 14D-1
falsely states that "Credit Suisse is prepared to fund their commitment on the
expiration date of our offer ...." The Luxottica Plaintiffs intend to deny that
the Fourth Amendment was false or misleading with respect to the Credit Suisse
Commitment. The quoted statement was contained in a letter dated
March 16, 1995 from Claudio Del Vecchio, Managing Director of Luxottica Group,
to Bannus Hudson, Chief Executive Officer of the Company, in response to the
Company's press release rejecting the Tender Offer. That press release described
the Offer as being subject to "significant conditions". The Company's Count IV
quotes Mr. Del Vecchio's statement out of context. The full text of Section 1
of Mr. Del Vecchio's letter is as follows:
1. Your characterization of our offer as conditional is ironic
and misleading. One of the conditions you refer to in your press
release is the financing condition. As you must know by reviewing the
Credit Suisse commitment letter which has been publicly filed, our
offer is fully underwritten by Credit Suisse. Credit Suisse is
prepared to fund their commitment on the expiration date of our offer.
Credit Suisse is prepared to meet with you and explain the nature of
its commitment if you desire. We also note with interest that,
although you have rejected our fully underwritten offer, you have
entered into an agreement with Nine West which appears to be
conditioned on financing.
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The only other conditions we have in our offer which you might
find objectionable are solely within the control of your Board
to satisfy. All you have to do is enter into negotiations with us
and approve a transaction containing mutually agreeable terms, and
our offer would no longer be subject to the conditions you find
objectionable.
The March 16, 1995 letter points out that Credit Suisse has agreed to underwrite
100% of the Facility and that its Commitment is therefore not conditioned on the
participation of other lenders. The letter also refers specifically to the
Commitment Letter, which contains specified conditions, and which was filed as
an Exhibit to the Schedule 14D-1, and offers, in addition, to have Credit
Suisse meet with Mr. Hudson to "explain the nature of its commitment". Neither
the Company, nor Mr. Hudson have accepted this invitation.
Count V of the Answer and Amended Counterclaim alleges
that the Fourth Amendment to the Schedule 14D-1 erroneously
indicates that the Company's agreement with Nine West regarding the disposition
of the Company's footwear division "appears to be conditioned on financing".
The Luxottica Plaintiffs intend to deny that they have made any material
misstatements regarding the Company's agreement with Nine West. The quoted
statement that financing "appears to be a condition to the agreement's
consummation, was based on press reports that "[f]inancing for the
transaction has been committed to by Citibank and Merrill Lynch",
and that "[t]he [purchase] agreement is subject to customary
closing conditions", as well as a review of Nine West's current
7
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financial statements, which do not reflect sufficient cash to
consummate the purchase absent financing by a third party. Confirming the
reliance by the Luxottica Plaintiff's on such press
reports and review, an additional press report was issued on April
4, 1995, quoting Richard White, the Chief Financial Officer of Nine
West, who was discussing Nine West's financing for the acquisition
of the Company's footwear division, as follows: "We already have
the bank commitments with Citibank and Merrill Lynch Credit Corp."
"We're working with the banks to finish up the syndication, and we
hope to close by June 1st but not before." Since
the filing of the Fourth Amendment to the Schedule 14D-1, the
Luxottica Plaintiffs have had an opportunity to review the written
agreement between the Company and Nine West for the sale of the
footwear division. (A copy of that agreement was filed as an
Exhibit to the Company's Schedule 14D-9). That agreement does not
contain as a condition precedent to Nine West's obligation to
close its receipt of sufficient financing to consummate the
purchase; nor does it contain any representation by Nine West that
it has financing to consummate the purchase. Nevertheless, as confirmed
by the April 4, 1995 press report referred to above, it
is apparent that Nine West will require financing or some other
infusion of cash in order to consummate the purchase of the Company's
Footwear division.
8
<PAGE>
Count VI of the Answer and Amended Counterclaim alleges
that the Schedule 14D-1 and the Offer to Purchase fail to disclose
that the Facility is subject to, and does not satisfy, the requirements
of Regulation U of the Board of Governors that limit the amount of credit
allowable for the purchaser of "margin stock", and that future changes in
value of the Italian lire may profoundly affect the valuation of
Parent's non-stock assets and the Borrower's ability to comply with
the Regulations of the Board of Governors. The Luxottica Plaintiffs
intend to deny that the Facility is in any way violative of Regulation
U, and believe that any borrowings thereunder will comply fully with the
applicable margin requirements. It is a condition precedent to the
Facility that all loans thereunder be in full compliance with
Regulation U. The Commission and the United States Justice
Department possess enforcement power with respect to Regulation U,
and if the Facility did violate its terms, the federal government could
among other remedies, seek to restrain the consummation of the
Offer and Facility. The Schedule 14D-1 and the Offer to Purchase do
not contain any material false or misleading statements or non-
disclosures with respect to Regulation U. Further, the Luxottica
Plaintiffs do not believe that fluctuations in the Italian lire
will have any material impact upon the valuation of the collateral
under the Commitment Letter for purposes of Regulation U, and to
suggest otherwise could be false and misleading.
Count VII of the Answer and Amended Counterclaim alleges that
Schedule III to the 831 Proxy Statement
9
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("Schedule III"), contains a false and misleading description of the Company's
common shares owned by Mellon Bank Corporation ("Mellon") and its subsidiaries.
In particular, the Company alleges that the manner by which the Luxottica
Plaintiffs described these common shares could lead an investor to reasonably
conclude that Mellon and its subsidiaries own 16,158,000 (34.85%), rather than
4,678,000 (10.09%), of the Company's common shares, which the Company asserted
in its definitive Proxy Statement were the correct number of shares and
percentages.
The Luxottica Plaintiffs intend to deny that Schedule III is false and
misleading. The designation "c/o Mellon Bank" specifically appears after the
three Mellon subsidiaries mentioned in Schedule III. Moreover, to the extent
that Schedule III could be read to suggest that Mellon and its subsidiaries own
more than 10.09% of the Company's common shares, the Luxottica Plaintiffs relied
in good faith on a description of the common shares set forth in Amendment No. 3
to a schedule 13G Statement ("Schedule 13G") filed by Mellon on March 8, 1995.
The Schedule 13G is a publicly filed document and was the sole source of the
Luxottica Plaintiffs' information, which, as stated in Schedule III, was derived
from the Schedule 13G.
Count VIII alleges that the Luxottica Plaintiffs improperly established
record dates for special meetings of the Company's shareholders and for the
execution of "Agent Designations." On March 23, 1995, the District Court issued
an order (the "March 23 Order") permanently enjoining the Luxottica Plaintiffs
from making any public statement, including any direct statement to shareholders
of the Company, representing that such parties have the ability to set either
10
<PAGE>
alone, separately or in conjunction with one another and Claudio and Debra Del
Vecchio, any record date in connection with any meeting of the shareholders of
the Company or any record date for soliciting consents or agent designations for
the purpose of calling any special meeting of the Company's shareholders. The
foregoing description of the March 23 Order is qualified in its entirety by
reference to the March 23 Order filed as Exhibit (g)(9) to the Schedule 14D-1.
Parent and Purchaser have issued their 831 Proxy Statement and Agent Designation
Solicitation Statement, neither of which violate the March 23 Order.
Count IX alleges that Parent and the Purchaser have failed to mail or
deliver to the Company's shareholders certain information required to be
disclosed pursuant to the Ohio Take-Over Act. The Luxottica Plaintiffs intend
to deny that Parent and the Purchaser have failed to disclose to the Company's
shareholders any information which is required to be disclosed under the
aforesaid Act, and believe that the Offer and their Form 041 Filing comply fully
with such Act. The Ohio Division of Securities reviewed that Form 041 Filing,
including the Offer to Purchase, and took no action to suspend the Offer on the
ground that all of the information specified in the Ohio Take-Over Act had not
been provided by Parent and the Purchaser, or that the materials provided to
offerees, as defined in the Ohio Take-Over Act, did not provide full disclosure
of all material information concerning the Offer.
The foregoing description of the Answer and Amended Counterclaim is
qualified in its entirety by reference to the Answer and Amended Counterclaim
filed as Exhibit (g)(12) hereto.
11
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ITEM 11. MATERIAL TO BE FILED AS EXHIBITS
Item 11 is hereby amended and supplemented by adding the following exhibit:
<TABLE>
<S> <C>
(g)(12) --Answer of Defendants The United States Shoe Corporation, Joseph H. Anderer,
Philip E. Beekman, Gilbert Hahn, Jr., Roger L. Howe, Bannus B. Hudson, Lorrence
Kellar, Albert M. Kronick, Thomas Laco, Charles S. Mechem, Jr., John L. Roy and
Phyllis S. Sewell, and Amended Counterclaim of Defendant The United States Shoe
Corporation Against Plantiffs for Preliminary and Permanent Injunction for False
and Misleading Statements in SEC Filings and Tender Offer Materials, filed on
March 30, 1995 by The United States Shoe Corporation and Named Defendants in the
United States District Court for the Southern District of Ohio, Eastern Division,
in the action entitled Luxottica Group S.p.A., et al. v. The United States Shoe
Corporation, et al. (C-2-95-244)
</TABLE>
12
<PAGE>
SIGNATURES
After due inquiry and to the best of my knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
LUXOTTICA GROUP S.P.A.
Dated: April 5, 1995 By: /s/ Claudio Del Vecchio
..............................
Claudio Del Vecchio
Managing Director
LUXOTTICA ACQUISITION CORP.
Dated: April 5, 1995 By: /s/ Claudio Del Vecchio
..............................
Claudio Del Vecchio
President
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EXHIBIT INDEX
<TABLE><CAPTION>
EXHIBIT PAGE
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<S> <C> <C>
(a)(1) --Offer to Purchase, dated March 3, 1995.................................... *
(a)(2) --Letter of Transmittal..................................................... *
(a)(3) --Notice of Guaranteed Delivery............................................. *
(a)(4) --Letter from the Dealer Manager to Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees........................................ *
(a)(5) --Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.............................................. *
(a)(6) --Guidelines for Certification of Taxpayer Identification Number on
Substitute
Form W-9.................................................................. *
(a)(7) --Summary Advertisement as published in The Wall Street Journal on March 3,
1995........................................................................ *
(a)(8) --Text of Press Release issued by Parent, dated March 3, 1995............... *
(a)(9) --Preliminary Proxy Statement dated March 6, 1995 of Luxottica Group S.p.A.
and Luxottica Acquisition Corp. for the Special Meeting of Shareholders
under Section 1701.831 of the Ohio Revised Code of The United States Shoe
Corporation, together with the form of Proxy relating thereto, as filed
with the Securities and Exchange Commission on March 6, 1995 and
incorporated herein by reference.
(a)(10) --Preliminary Solicitation Statement dated March 7, 1995 of Luxottica Group
S.p.A. and Luxottica Acquisition Corp. to call a Special Meeting of
Shareholders of The United States Shoe Corporation, together with the form
of Appointment of Designated Agents relating thereto, as filed with the
Securities and Exchange Commission on March 7, 1995 and incorporated
herein by reference.
(a)(11) --Text of Press Release issued by Parent, dated March 9, 1995............... *
(a)(12) --Acquiring Person Statement of Parent and the Purchaser, dated March 3,
1995, pursuant to Section 1701.831 of the Ohio Revised Code, filed with
the Securities and Exchange Commission March 10, 1995 as definitive
additional material pursuant to Section 14(a) of the Securities Exchange
Act of 1934, as amended, and incorporated herein by reference.
(a)(13) --Text of Press Release issued by Parent, dated March 10, 1995.............. *
(a)(14) --Text of Press Release issued by Parent, dated March 10, 1995.............. *
(a)(15) --Text of Press Release issued by Parent, dated March 14, 1995.............. *
(a)(16) --Text of Press Release issued by Parent, dated March 16, 1995.............. *
(a)(17) --Text of Press Release issued by Parent, dated March 17, 1995.............. *
(a)(18) --Text of Press Release issued by Parent, dated March 20, 1995.............. *
(a)(19) --Text of Press Release issued by Parent, dated March 21, 1995.............. *
(a)(20) --Definitive Proxy Statement dated March 21, 1995 of Luxottica Group S.p.A.
and Luxottica Acquisition Corp. for the Special Meeting of Shareholders
under Section 1701.831 of the Ohio Revised Code of The United States Shoe
Corporation, together with the form of proxy relating thereto, as filed
with the Securities and Exchange Commission on March 21, 1995 and
incorporated herein by reference.
(a)(21) --Text of Press Release issued by Parent, dated March 24, 1995.............. *
</TABLE>
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* Previously filed.
14
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<TABLE><CAPTION>
EXHIBIT PAGE
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<S> <C> <C>
(a)(22) --Text of Press Release issued by Parent, dated March 30, 1995.............. *
(a)(23) --Text of Press Release issued by Parent, dated March 30, 1995.............. *
(a)(24) --Letter to the Shareholders of The United States Shoe Corporation dated
March 28, 1995, to accompany the Definitive Proxy Statement dated March
25, 1995 of Luxottica Group S.p.A. and Luxottica Acquisition Corp. for the
Special Meeting of Shareholders under Section 1701.831 of the Ohio Revised
Code, as filed with the Securities and Exchange Commission on March 29,
1995 and incorporated herein by reference.
(a)(25) --Text of Press Release issued by Parent, dated March 31, 1995.............. *
(a)(26) --Text of Press Release issued by Parent, dated April 2, 1995............... *
(a)(27) --Text of Press Release issued by Parent, dated April 4, 1995 .............. *
(b)(1) --Commitment Letter, dated March 2, 1995, from Credit Suisse................ *
(c)(1) --Proposed Confidentiality Agreement among Parent, the Purchaser and
the Company dated March 30, 1995 delivered by Parent's Counsel to
the Company on March 31, 1995............................................. *
(c)(2) --Executed Confidentiality Agreement among Parent, the Purchaser
and the Company dated March 31, 1995 ..................................... *
(g)(1) --Complaint Seeking Declaratory and Injunctive Relief filed in the United
States District Court for the Southern District of Ohio, Eastern Division,
on March 3, 1995, relating to the Ohio Take-Over Act, the Preference Share
Purchase Rights and the impairment of the voting rights of certain Shares
under Sections 1701.01(CC)(2) and 1701.831 of the Ohio Revised Code....... *
(g)(2) --First Amended Verified Complaint seeking Declaratory and Injunctive Relief
filed by Luxottica Group S.p.A., Luxottica Acquisition Corp. and
Avant-Garde Optics, Inc. in the United States District Court for the
Southern District of Ohio, Eastern Division, on March 6, 1995, relating to
the Ohio Take-Over Act, the Preference Share Purchase Rights and the
impairment of the voting rights of certain Shares under Sections
1701.01(CC)(2) and 1701.831 of the Ohio Revised Code........................ *
(g)(3) --Motion for Leave to File a Second Amended Complaint filed on March 10,
1995 by Luxottica Group S.p.A., Luxottica Acquisition Corp. and
Avant-Garde Optics, Inc. in the United States District Court for the
Southern District of Ohio, Eastern Division, in the action entitled
Luxottica Group S.p.A., et al. v. The United States Shoe Corporation, et
al. (C-2-95-244)............................................................ *
(g)(4) --Second Amended Verified Complaint seeking Declaratory and Injunctive
Relief filed by Luxottica Group S.p.A., Luxottica Acquisition Corp. and
Avant-Garde Optics, Inc. in the United States District Court for the
Southern District of Ohio, Eastern Division, on March 10, 1995, relating
to the Ohio Take-Over Act, the Preference Share Purchase Rights and the
impairment of the voting rights of certain Shares under Sections
1701.01(CC)(2) and 1701.831 of the Ohio Revised Code...................... *
(g)(5) --Motion of Plaintiff Avant-Garde Optics, Inc. for a Hearing and Order to
Show Cause filed on March 10, 1995 by Avant-Garde Optics, Inc. in the
United States District Court for the Southern District of Ohio, Eastern
Division, in the action entitled Luxottica Group S.p.A., et al. v. The
United States Shoe Corporation, et al. (C-2-95-244)....................... *
(g)(6) --Opinion and Order issued on March 16, 1995 by the United States District
Court for the Southern District of Ohio, Eastern Division, in the action
entitled Luxottica Group S.p.A., et al. v. The United States Shoe
Corporation, et al. (C-2-95-244)............................................ *
(g)(7) --Answer of Defendants The United States Shoe Corporation, Joseph H.
Anderer, Philip E. Beekman, Gilbert Hahn, Jr., Roger L. Howe, Bannus B.
Hudson, Lorrence Kellar, Albert M. Kronick, Thomas Laco, Charles S.
Mechem, Jr., John L. Roy and Phyllis S. Sewell, and Counterclaim of
Defendant The United States Shoe Corporation Against Plantiffs for
Preliminary and Permanent Injunction for False and Misleading Statements
in SEC Filings and Tender Offer Materials, filed on March 22, 1995 by The
United States Shoe Corporation and Named Defendants in the United States
District Court for the Southern District of Ohio, Eastern Division, in the
action entitled Luxottica Group S.p.A., et al. v. The United States Shoe
Corporation, et al. (C-2-95-244)............................................ *
</TABLE>
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* Previously filed.
15
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT PAGE
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<S> <C> <C>
(g)(8) --Order issued on March 22, 1995 by the United States District Court for the
Southern District of Ohio, Eastern Division, in the action entitled
Luxottica Group S.p.A., et al. v. The United States Shoe Corporation, et
al. (C-2-95-244)............................................................ *
(g)(9) --Order issued on March 23, 1995 by the United States District Court for the
Southern District of Ohio, Eastern Division, in the action entitled
Luxottica Group S.p.A., et al.v. The United States Shoe Corporation, et
al. (C-2-95-244)............................................................ *
(g)(10) --Order issued on March 23, 1995 by the United States District Court for the
Southern District of Ohio, Eastern Division, in the action entitled
Luxottica Group S.p.A., et al.v. The United States Shoe Corporation, et
al. (C-2-95-244)............................................................ *
(g)(11) --Motion for Leave to File a Third Amended Complaint filed on March 24, 1995
by Luxottica Group S.p.A., Luxottica Acquisition Corp. and Avant-Garde
Optics, Inc. in the United States District Court for the Southern District
of Ohio, Eastern Division, in the action entitled Luxottica Group S.p.A.,
et al. v. The United States Shoe Corporation, et al. (C-2-95-244)......... *
(g)(12) --Answer of Defendants The United States Shoe Corporation, Joseph H.
Anderer, Philip E. Beekman, Gilbert Hahn, Jr., Roger L. Howe, Bannus B.
Hudson, Lorrence Kellar, Albert M. Kronick, Thomas Laco, Charles S.
Mechem, Jr., John L. Roy and Phyllis S. Sewell, and Amended Counterclaim
of Defendant The United States Shoe Corporation Against Plantiffs for
Preliminary and Permanent Injunction for False and Misleading Statements
in SEC Filings and Tender Offer Materials, filed on March 30, 1995 by The
United States Shoe Corporation and Named Defendants in the United States
District Court for the Southern District of Ohio, Eastern Division, in the
action entitled Luxottica Group S.p.A., et al. v. The United States Shoe
Corporation, et al. (C-2-95-244).........................................
</TABLE>
16
Exhibit (g)(12)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Luxottica Group S.p.A., et al., : Civil Action C2-95-244
:
Plaintiffs, : Judge Graham
:
vs. : ANSWER OF DEFENDANTS THE
: UNITED STATES SHOE
The United States Shoe : CORPORATION, JOSEPH H.
Corporation, et al., : ANDERER, PHILIP E. BEEKMAN,
: GILBERT HAHN, JR., ROGER
Defendants, : L. HOWE, BANNUS B. HUDSON,
: LORRENCE KELLAR, ALBERT M.
: KRONICK, THOMAS LACO,
: CHARLES S. MECHEM, JR.,
: JOHN L. ROY AND PHYLLIS S.
: SEWELL, AND COUNTERCLAIM
: OF DEFENDANT THE UNITED
: STATES SHOE CORPORATION
: AGAINST PLAINTIFFS FOR
: PRELIMINARY AND PERMANENT
: INJUNCTION FOR FALSE AND
: MISLEADING STATEMENTS IN
: SEC FILINGS AND TENDER
: OFFER MATERIALS
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FIRST DEFENSE
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1. The following is an Answer to the Third Amended
Complaint filed by Plaintiffs Luxottica Group S.p.A.
("Luxottica"), Luxottica Acquisition Corp. ("Luxottica
Acquisition") and Avant Garde Optics, Inc. (Avant-Garde") by
Defendants The United States Shoe Corporation ("U. S. Shoe"),
Joseph H. Anderer, Philip E. Beekman, Gilbert Hahn, Jr., Roger L.
Howe, Bannus B. Hudson, Lorrence Kellar, Albert M. Kronick, Thomas
Laco, Charles S. Mechem, Jr., John L. Roy and Phyllis S. Sewell
(together, "U.S. Shoe Defendants"), and Amended Counterclaims by
U. S. Shoe against Plaintiffs for violations of the federal
securities laws applicable to tender offers. The
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Counterclaim is stated beginning on page seventeen.
2. The U. S. Shoe Defendants admit so much of paragraph one
of the Third Amended Complaint ("Complaint") of Luxottica Group
S.p.A (Luxottica"), Luxottica Acquisition Corp. ("Luxottica
Acquisition") and Avant-Garde Optics, Inc. ("Avant-Garde")
(Luxottica, Luxottica Acquisition and Avant-Garde are referred to
together as "Plaintiffs") as may aver that Plaintiffs seek the
relief described in paragraph one, deny that Plaintiffs are
entitled to such relief and deny all other averments of paragraph
one of the Complaint.
3. The U. S. Shoe Defendants admit so much of paragraph two
of the Complaint as may aver that Plaintiffs seek the relief
described in paragraph two, deny that Plaintiffs are entitled to
such relief and deny all other averments of paragraph two of the
Complaint.
4. The U. S. Shoe Defendants are without knowledge or
information sufficient to form a belief as to the averments of
paragraph three of the Complaint.
5. The U. S. Shoe Defendants are without knowledge or
information sufficient to form a belief as to the first sentence
and the first clause of the second sentence of paragraph four of
the Complaint. The U. S. Shoe Defendants admit so much of the
second clause of the second sentence of paragraph four as may aver
that Avant-Garde is a shareholder of U. S. Shoe, and are without
knowledge or information sufficient to form a belief as to all
other averments of the second clause. The U. S. Shoe Defendants
admit the averments of the third sentence of paragraph four of the
Complaint.
6. The U. S. Shoe Defendants admit the averments of
paragraph five of the Complaint.
7. The U. S. Shoe Defendants admit the averments of
paragraph six of the
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Complaint.
8. The U. S. Shoe Defendants admit the averments of the
first sentence of paragraph seven of the Complaint. In answer to
the remaining averments of paragraph seven, the U. S. Shoe
Defendants say the Ohio Revised Code speaks for itself, and deny
all other averments of paragraph seven of the Complaint.
9. The U. S. Shoe Defendants admit the averments of
paragraph eight of the Complaint.
10. The U. S. Shoe Defendants admit the averments of
paragraph nine of the Complaint.
11. The U. S. Shoe Defendants admit so much of paragraph ten
as may aver that Plaintiffs made certain averments under the
Constitution, laws and regulations of the United States, deny that
Plaintiffs are entitled to relief under the Constitution, laws or
regulations of the United States, and deny all other averments of
paragraph ten of the Complaint.
12. In answer to paragraph eleven, the U. S. Shoe Defendants
admit that this Court has subject matter jurisdiction over certain
of Plaintiffs averments pursuant to 28 U.S.C. Sec. 1331 (federal
question), and deny all other averments of paragraph eleven of the
Complaint.
13. The U. S. Shoe Defendants admit so much of paragraph
twelve as avers that venue is proper in this judicial district
pursuant to 28 U.S.C. Sec. 1391(b) and (c), and that venue in this
division is proper pursuant to Rule 3.3(c) of the S.D. Ohio L.R as
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to Counts One and Two of the Complaint, and deny all other
averments of paragraph twelve of the Complaint.
14. The U. S. Shoe Defendants deny the averments of
paragraph thirteen of the Complaint.
15. The U. S. Shoe Defendants admit the averments of
paragraph fourteen of the Complaint, except that Luxottica's
stated motivation for seeking non-public information is denied
16. The U. S. Shoe Defendants are without knowledge or
information sufficient to form a belief as to the averments of
paragraph fifteen of the Complaint.
17. The U. S. Shoe Defendants admit so much of paragraph
sixteen as may aver that Plaintiffs commenced, on March 3, 1995, a
tender offer (the "Tender Offer") for all of the outstanding
common shares of U. S. Shoe at a price of $24 per share, and are
without knowledge or information sufficient to form a belief as to
all other averments of paragraph sixteen of the Complaint.
18. The U. S. Shoe Defendants admit the averments of the
first, second and fifth sentences of paragraph seventeen. The U.S.
Shoe Defendants deny the averments of the third and fourth
sentences of paragraph seventeen. The U. S. Shoe Defendants are
without knowledge or information sufficient to form a belief as to
all other averments of paragraph seventeen of the Complaint.
19. The U. S. Shoe Defendants deny the averments of the
first sentence of paragraph eighteen. The U. S. Shoe Defendants
admit the averments of the second sentence of paragraph eighteen,
except the U S. Shoe Defendants deny that the Offer to Purchase
sets forth the
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material terms of the Tender Offer. The U. S. Shoe Defendants
admit so much of the third and fourth sentences of paragraph
eighteen as may aver that Plaintiffs are filing certain documents
with the Division, and have delivered an Acquiring Person
Statement to U. S. Shoe, and are without knowledge or information
sufficient to form a belief as to all other averments of the third
and fourth sentences of paragraph eighteen of the Complaint.
20. In answer to paragraph nineteen, the U. S. Shoe
Defendants say the Williams Act and rules promulgated thereunder
speak for themselves, and deny all other averments of paragraph
nineteen of the Complaint.
21. In answer to paragraph twenty, the U. S. Shoe Defendants
say the Williams Act and rules promulgated thereunder speak for
themselves, and deny all other averments of paragraph twenty of
the Complaint.
22. In answer to paragraph twenty-one, the U. S. Shoe
Defendants say the Williams Act and rules promulgated thereunder
speak for themselves, and deny all other averments of paragraph
twenty-one of the Complaint.
23. In answer to paragraph twenty-two, the U. S. Shoe
Defendants say the Williams Act and rules promulgated thereunder
speak for themselves, and deny all other averments of paragraph
twenty-two of the Complaint.
24. In answer to paragraph twenty-three, the U. S. Shoe
Defendants say the Williams Act and rules promulgated thereunder
speak for themselves, and deny all other averments of paragraph
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twenty-three of the Complaint.
25. In answer to paragraph twenty-four, the U. S. Shoe
Defendants say the Ohio Takeover Act speaks for itself, and deny
all other averments of paragraph twenty-four of the Complaint.
26. In answer to paragraph twenty-five, the U. S. Shoe
Defendants say the Ohio Takeover Act speaks for itself, and deny
all other averments of paragraph twenty-five of the Complaint.
27. In answer to paragraph twenty-six, the U. S. Shoe
Defendants say the Ohio Takeover Act speaks for itself, and deny
all other averments of paragraph twenty-six of the Complaint.
28. The U. S. Shoe Defendants deny the averments of
paragraph twenty-seven of the Complaint.
29. In answer to paragraph twenty-eight, the U. S. Shoe
Defendants say the Ohio Takeover Act speaks for itself, and deny
all other averments of paragraph twenty-eight of the Complaint.
30. In answer to paragraph twenty-nine, the U. S. Shoe
Defendants say the Ohio Takeover Act speaks for itself, and deny
all other averments of paragraph twenty-nine of the Complaint.
31. In answer to paragraph thirty, the U. S. Shoe Defendants
say the Ohio Takeover Act speaks for itself, and deny all other
averments of paragraph thirty of the Complaint.
32. The U. S. Shoe Defendants deny the averments of paragraph
thirty-one of the Complaint.
33. In answer to paragraph thirty-two, the U. S. Shoe
Defendants say the Ohio Control Share Acquisition Act speaks for
itself, and deny all other averments of paragraph thirty-two of
the
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Complaint.
34. In answer to paragraph thirty-three, the U. S. Shoe
Defendants say the Ohio Control Share Acquisition Act speaks for
itself, and deny all other averments of paragraph thirty-three of
the Complaint.
35. In answer to paragraph thirty-four, the U. S. Shoe
Defendants say the Ohio Control Share Acquisition Act speaks for
itself, and deny all other averments of paragraph thirty-four of
the Complaint.
36. The U. S. Shoe Defendants deny the averments of
paragraph thirty-five of the Complaint.
37. In answer to paragraph thirty-six, the U. S. Shoe
Defendants say Ohio Rev. Code Sec. 1701.01(CC)(2) speaks for itself,
and no further answer is required.
38. The U. S. Shoe Defendants deny the averments of
paragraph thirty-seven of the Complaint.
39. The U. S. Shoe Defendants admit the averments of the
first, second and third sentences of paragraph thirty-eight, and
are without knowledge or information sufficient to form a belief
as to the averments of the fourth and fifth sentences of paragraph
thirty-eight. The U. S. Shoe Defendants deny all other averments
of paragraph thirty-eight of the Complaint.
40. In answer to paragraph thirty-nine, the U. S. Shoe
Defendants say the Exchange Act and regulations promulgated
thereunder speak for themselves, and deny all other averments of
paragraph thirty-nine of the Complaint.
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41. In answer to paragraph forty, the U. S. Shoe Defendants
say the Exchange Act and regulations promulgated thereunder speak
for themselves, and deny all other averments of paragraph forty of
the Complaint.
42. The U. S. Shoe Defendants deny the averments of
paragraph forty-one of the Complaint.
43. In answer to paragraph forty-two, the U. S. Shoe
Defendants say the Williams Act and the regulations thereunder
speak for themselves, admit that U. S. Shoe and Luxottica
Acquisition are subject to the Williams Act, and deny all other
averments of paragraph forty-two of the Complaint.
44. The U. S. Shoe Defendants deny the averments of
paragraph forty-three of the Complaint.
45. In answer to paragraph forty-four, the U. S. Shoe
Defendants say the Ohio Revised Code speaks for itself, and deny
all other averments of paragraph forty-four.
46. The U. S. Shoe Defendants admit so much of paragraph
forty-five as may aver that U. S. Shoe adopted a plan providing
for the issuance of Preference Shares Purchase Rights (the
"Rights") on March 31, 1986, implemented such rights on April 14,
1986, and deny all other averments of paragraph forty-five of the
Complaint.
47. The U. S. Shoe Defendants admit so much of paragraph
forty-six as may aver that on March 23, 1988, U. S. Shoe amended
the Preference Shares Purchase Rights Agreement (the "Rights
Agreement"), say that U.S. Shoe further amended the Rights
Agreement on June 1, 1993, and deny all other averments of
paragraph forty-six
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of the Complaint.
48. In answer to paragraph forty-seven, the U. S. Shoe
Defendants say that the Rights Agreement, as amended, speaks for
itself, and deny all other averments of paragraph forty-seven.
49. In answer to paragraph forty-eight, the U. S. Shoe
Defendants say that the Rights Agreement, as amended, speaks for
itself, and deny all other averments of paragraph forty-eight.
50. The U. S. Shoe Defendants admit the averments of the
first sentence of paragraph forty-nine, and is without knowledge
or information sufficient to form a belief as to all other
averments of paragraph forty-nine of the Complaint.
51. In answer to paragraph fifty, the U. S. Shoe Defendants
say that the Rights Agreement, as amended, speaks for itself, and
deny all other averments of paragraph fifty of the Complaint.
52. In answer to paragraph fifty-one, the U. S. Shoe
Defendants say that the Rights Agreement, as amended, speaks for
itself, and deny all other averments of paragraph fifty-one of the
Complaint.
53. In answer to paragraph fifty-two, the U. S. Shoe
Defendants say that the Rights Agreement, as amended, speaks for
itself, and deny all other averments of paragraph fifty-two of the
Complaint.
54. In answer to paragraph fifty-three, the U. S. Shoe
Defendants say that the Rights Agreement, as amended, speaks for
itself, and deny all other averments of paragraph fifty-three of
the Complaint.
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55. In answer to paragraph fifty-four, the U. S. Shoe
Defendants say that the Rights Agreement, as amended, speaks for
itself, and deny all other averments of paragraph fifty-four of
the Complaint.
56. In answer to paragraph fifty-five, the U. S. Shoe
Defendants say that the Rights Agreement, as amended, speaks for
itself, and deny all other averments of paragraph fifty-five of
the Complaint.
57. In answer to paragraph fifty-six, the U. S. Shoe
Defendants say that the Rights Agreement, as amended, speaks for
itself, and deny all other averments of paragraph fifty-six of the
Complaint.
58. In answer to paragraph fifty-seven, the U. S. Shoe
Defendants say that the Rights Agreement, as amended, speaks for
itself, and deny all other averments of paragraph fifty-seven of
the Complaint.
59. In answer to paragraph fifty-eight, the U. S. Shoe
Defendants say that the Rights Agreement, as amended, speaks for
itself, and deny all other averments of paragraph fifty-eight of
the Complaint.
60. The U. S. Shoe Defendants deny the averments of
paragraph fifty-nine of the Complaint.
61. In answer to paragraph sixty, the U. S. Shoe Defendants
say that the Rights Agreement, as amended, speaks for itself, and
deny all other averments of paragraph sixty of the Complaint.
62. The U. S. Shoe Defendants deny the averments of
paragraph
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sixty-one of the Complaint.
63. The U. S. Shoe Defendants admit the averments of the
first three sentences of paragraph sixty-two, and deny all other
averments of paragraph sixty-two of the Complaint.
64. In answer to paragraph sixty-three, the U. S. Shoe
Defendants say that the Rights speak for themselves, and deny all
other averments of paragraph sixty-three of the Complaint.
65. In answer to paragraph sixty-four, the U. S. Shoe
Defendants say that the Rights Agreement, as amended, speaks for
itself, and deny all other averments of paragraph sixty-four of
the Complaint.
66. The U. S. Shoe Defendants deny the averments of
paragraph sixty-five of the Complaint.
67. In answer to paragraph sixty-six, the U. S. Shoe
Defendants say the Rights Agreement speaks for itself, and deny
all other averments of paragraph sixty-six of the Complaint.
68. The U. S. Shoe Defendants deny the averments of
paragraph sixty-seven of the Complaint.
69. The U. S. Shoe Defendants incorporate their Answer and
Defenses to the averments of paragraph sixty-eight of the
Complaint.
70. In answer to paragraph sixty-nine of the Complaint, the
U. S. Shoe Defendants say the United States Constitution speaks
for itself, and deny all other averments of paragraph sixty-nine.
71. The U. S. Shoe Defendants admit the averments of
paragraph seventy of the Complaint.
72. The U. S. Shoe Defendants deny the averments of
paragraph
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seventy-one of the Complaint.
73. The U. S. Shoe Defendants deny the averments of
paragraph seventy-two of the Complaint.
74. The U. S. Shoe Defendants deny the averments of
paragraph seventy-three of the Complaint.
75. The U. S. Shoe Defendants incorporate their Answer and
Defenses to the averments of paragraph seventy-four of the
Complaint.
76. In answer to paragraph seventy-five, the U. S. Shoe
Defendants say the United States Constitution speaks for itself,
and deny all other averments of paragraph seventy-five of the
Complaint.
77. The U. S. Shoe Defendants deny the averments of
paragraph seventy-six of the Complaint.
78. The U. S. Shoe Defendants deny the averments of
paragraph seventy-seven of the Complaint.
79. The U. S. Shoe Defendants deny the averments of
paragraph seventy-eight of the Complaint.
80. The U. S. Shoe Defendants incorporate their Answer and
Defenses to the averments of paragraph seventy-nine of the
Complaint.
81. The U. S. Shoe Defendants deny the averments of
paragraph eighty of the Complaint.
82. The U. S. Shoe Defendants deny the averments of
paragraph eighty-one of the Complaint.
83. The U. S. Shoe Defendants incorporate their Answer and
Defenses to the averments of paragraph eighty-two of the
Complaint.
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84. The U. S. Shoe Defendants deny the averments of
paragraph eighty-three of the Complaint.
85. The U. S. Shoe Defendants deny the averments of
paragraph eighty-four of the Complaint.
86. The U. S. Shoe Defendants deny the averments of
paragraph eighty-five of the Complaint.
87. The U. S. Shoe Defendants incorporate their Answer and
Defenses to the averments of paragraph eighty-six of the
Complaint.
88. In answer to paragraph eighty-seven of the Complaint,
the U. S. Shoe Defendants say its Amended Articles of
Incorporation speak for themselves, and deny all other averments
of paragraph eighty-seven of the Complaint.
89. The U. S. Shoe Defendants admit so much of paragraph
eighty-eight as may aver that the shares are a property right of
the shareholders, and deny all other averments of paragraph
eighty-eight of the Complaint.
90. The U. S. Shoe Defendants deny the averments of
paragraph eighty-nine of the Complaint.
91. In answer to paragraph ninety, the U. S. Shoe Defendants
say the United States Constitution and the Ohio Constitution speak
for themselves, and deny all other averments of paragraph ninety
of the Complaint.
92. The U. S. Shoe Defendants deny the averments of
paragraph ninety-one of the Complaint.
93. The U. S. Shoe Defendants deny the averments of
paragraph ninety-two of the Complaint.
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94. The U. S. Shoe Defendants incorporate their Answer and
Defenses to the averments of paragraph ninety-three of the
Complaint.
95. In answer to paragraph ninety-four, the U. S. Shoe
Defendants say the Rights Agreement, as amended, speaks for
itself, and deny all other averments of paragraph ninety-four.
96. The U. S. Shoe Defendants admit the first clause of
paragraph ninety-five, and deny all other averments of paragraph
ninety-five of the Complaint.
97. The U. S. Shoe Defendants admit the first clause of
paragraph ninety-six, and deny all other averments of paragraph
ninety-six of the Complaint.
98. The U. S. Shoe Defendants deny the averments of
paragraph ninety-seven of the Complaint.
99. The U. S. Shoe Defendants deny the averments of
paragraph ninety-eight of the Complaint.
100. The U. S. Shoe Defendants incorporate their Answer and
Defenses to the averments of paragraph ninety-nine of the
Complaint.
101. The U. S. Shoe Defendants deny the averments of
paragraph 100 of the Complaint.
102. The U. S. Shoe Defendants deny the averments of
paragraph 101 of the Complaint.
103. The U. S. Shoe Defendants admit so much of paragraph 102
as may aver that its Board of Directors has not redeemed the
Rights, and are without knowledge or information sufficient to
form a belief as to all other averments of paragraph 102 of the
Complaint.
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104. The U. S. Shoe Defendants deny the averments of
paragraph 103 of the Complaint.
105. The U. S. Shoe Defendants deny the averments of
paragraph 104 of the Complaint.
106. The U. S. Shoe Defendants incorporate their Answer and
Defenses to the averments of paragraph 105 of the Complaint.
107. In answer to paragraph 106, the U. S. Shoe Defendants
say the Rights Agreement, as amended, speaks for itself, and deny
all other averments of paragraph 106 of the Complaint.
108. The U. S. Shoe Defendants deny the averments of
paragraph 107 of the Complaint.
109. The U. S. Shoe Defendants admit the averments of
paragraph 108 of the Complaint.
110. The U. S. Shoe Defendants deny the averments of
paragraph 109 of The Complaint.
111. The U. S. Shoe Defendants deny the averments of
paragraph 110 of the Complaint.
112. The U. S. Shoe Defendants incorporate their Answer and
Defenses to the averments of paragraph 111 of the Complaint.
113. The U. S. Shoe Defendants admit the averments of
paragraph 112 of the Complaint, at least as of March 16, 1995
114. In answer to paragraph 113, the U. S. Shoe Defendants
admit that Avant-Garde delivered a letter dated March 7, 1995, to
U. S. Shoe, say that the letter speaks for itself, and deny all
other averments of paragraph 113 of the Complaint.
115. The U. S. Shoe Defendants admit that U. S. Shoe sent a
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letter to Avant-Garde dated March 10, 1995, say that the letter
speaks for itself, and deny all other averments of paragraph 114
of the Complaint.
116. The U. S. Shoe Defendants deny the averments of
paragraph 115 of the Complaint.
117. The U. S. Shoe Defendants deny the averments of
paragraph 116 of the Complaint.
118. In answer to paragraph 117, the U. S. Shoe Defendants
say the written request that Luxottica and Luxottica Acquisition
delivered to U. S. Shoe attached as Exhibit B to the Complaint
speaks for itself, and deny all other averments of paragraph 117.
119. In answer to paragraph 118, the U. S. Shoe Defendants
say that Luxottica Group, Luxottica Acquisition, Avant-Garde and
certain other shareholders submitted a written request to U. S.
Shoe, attached as Exhibit C to the Complaint, say such written
request speaks for itself, and deny all other averments of
paragraph 118 of the Complaint.
120. The U. S. Shoe Defendants admit the averments of
paragraph 119 of the Complaint, and say that later that same day,
March 10, 1995, the directors of U. S. Shoe fixed the close of
business on March 21, 1995, as the record date for the 831 Special
Meeting.
121. The U. S. Shoe Defendants deny the averments of
paragraph 120 of the Complaint.
122. In answer to paragraph 121, the U. S. Shoe Defendants
admit that Plaintiffs seek a declaration by the Court, and deny
all other averments of paragraph 121.
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123. The U.S. Shoe Defendants deny the averments of paragraph 122 of the
Complaint.
124. The U.S. Shoe Defendants incorporate their Answer and Defenses to
the averments of paragraph 123 of the Complaint.
125. The U.S. Shoe Defendants admit so much of the first sentence of
paragraph 124 as may aver that in December, 1994 and January, 1995, Luxottica
and its financial advisors gave certain indications to U.S. Shoe and its
financial advisor that Luxottica Group was interested in conducting certain
discussions of Luxottica's interest to purchase U.S. Shoe and in particular
the Optical Group and deny all other averments of the first sentence of
paragraph 124. The U.S. Shoe Defendants admit the averments of the second
sentence of paragraph 124 of the Complaint.
126. The U.S. Shoe Defendants are without knowledge or information
sufficient to form a belief as to the averments of the first clause of the
first sentence of paragraph 125, and admit the averments of the second clause.
The U.S. Shoe Defendants deny the averments of the second sentence of
paragraph 125 of the Complaint and incorporate in response the material set
forth in U.S. Shoe's Schedule 14D-9, filed with the Securities and Exchange
Commission, as amended by the First and Second Amendments thereto, copes of
which are attached as Exhibits A, B and C (herein collectively referred to as
the "14D-9.")
127. The U.S. Shoe Defendants admit so much of paragraph 126 as may aver
that U.S. Shoe issued certain press releases, say that the press releases
speak for themselves, incorporate the 14D-9, and deny all other averments of
paragraph 126 of the Complaint.
128. The U.S. Shoe Defendants admit so much of the first sentence of
paragraph 127 as may aver that U.S. Shoe issued certain press releases, say
said press releases speak for themselves, incorporate the 14D-9, and deny all
other averments of the first sentence of paragraph 127. The U.S. Shoe
Defendants deny the averments of the second sentence of paragraph 127 of the
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Complaint.
129. The U.S. Shoe Defendants deny the averments of paragraph 128 of the
Complaint.
130. In answer to paragraph 129, the U.S. Shoe Defendants say that Ohio
Rev. Code Sec. 1701.59 speaks for itself, and deny all other averments of
paragraph 129 of the Complaint.
131. The U.S. Shoe Defendants admit the averments of paragraph 130 of the
Complaint.
132. The U.S. Shoe Defendants admit the averments of paragraph 131 of the
Complaint.
133. The U.S. Shoe Defendants admit the averments of paragraph 132 of the
Complaint.
134. The U.S. Shoe Defendants admit the averments of paragraph 133 of the
Complaint.
135. The U.S. Shoe Defendants admit the averments of paragraph 134 of the
Complaint.
136. The U.S. Shoe Defendants deny the averments of paragraph 135 of the
Complaint.
137. The U.S. Shoe Defendants deny the averments of paragraph 136 of the
Complaint.
138. The U.S. Shoe Defendants incorporate their Answer and Defenses to
the averments of paragraph 137 of the Complaint.
139. In answer to paragraph 138, the U.S. Shoe Defendants say Ohio R.C.
Sec. 1701.76 speaks for itself, and deny all other averments of paragraph 138
of the Complaint.
140. The U.S. Shoe Defendants deny the averments of paragraph 139 of the
Complaint.
141. The U.S. Shoe Defendants deny the averments of paragraph 140 of the
Complaint.
142. The U.S. Shoe Defendants admit the averments of paragraph 141 of the
Complaint, except that certain "corporate proceedings" may be necessary to
close the transaction.
143. The U.S. Shoe Defendants deny the averments of paragraph 142 of the
Complaint.
144. The U.S. Shoe Defendants deny the averments of paragraph 143 of the
Complaint.
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145. The U.S. Shoe Defendants incorporate their Answer and Defenses to
the averments of paragraph 144 of the Complaint.
146. The U.S. Shoe Defendants admit that the quoted section of the
averments of paragraph 145 of the Complaint correctly recite a portion of the
Article Third of U.S. Shoe's Articles of Incorporation, and incorporate the
entire Article Third as a full and correct recitation of what it contains.
147. In answer to paragraph 146, the U.S. Shoe Defendants say Ohio Rev.
Code Sec.Sec. 1701.69(B)(3) and 1701.71(B)(7) speak for themselves, and deny
all other averments of paragraph 146 of the Complaint.
148. The U.S. Shoe Defendants deny the averments of paragraph 147 of the
Complaint.
149. The U.S. Shoe Defendants admit the averments of paragraph 148 of the
Complaint, except that certain "corporate proceedings" may be necessary to
close the transaction.
150. The U.S. Shoe Defendants deny the averments of paragraph 149 of the
Complaint.
151. The U.S. Shoe Defendants deny the averments of paragraph 150 of the
Complaint.
152. The U.S. Shoe Defendants incorporate their Answer and Defenses to
the averments of paragraph 151 of the Complaint.
153. The U.S. Shoe Defendants admit the averments of the first
sentence of paragraph 152, say that the Williams Act and the rules and
regulations promulgated thereunder speak for themselves, incorporate the
14D-9, and deny all other averments of paragraph 152 of the Complaint.
154. In answer to paragraph 153, the U.S. Shoe Defendants say that the
Williams Act and the rules and regulations promulgated thereunder speak for
themselves, and deny all other averments
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of paragraph 153 of the Complaint.
155. In answer to paragraph 154, the U.S. Shoe Defendants say that the
Williams Act and the rules and regulations promulgated thereunder speak for
themselves, and deny all other averments of paragraph 154 of the Complaint.
156. The U.S. Shoe Defendants incorporate in response the 14D-9 and deny
all other or inconsistent averments of paragraph 155 of the Complaint.
157. The U.S. Shoe Defendants deny the averments of paragraph 156 of the
Complaint.
158. The U.S. Shoe Defendants deny the averments of paragraph 157 of the
Complaint.
159. The U.S. Shoe Defendants deny the averments of paragraph 158 of the
Complaint.
160. The U.S. Shoe Defendants deny the averments of paragraph 159 of the
Complaint.
161. The U.S. Shoe Defendants deny the averments of paragraph 160 of the
Complaint.
162. The U.S. Shoe Defendants deny all other averments not specifically
admitted herein.
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SECOND DEFENSE
--------------
163. Plaintiffs are not entitled to equitable relief, on the grounds of
unclean hands, because Luxottica and Luxottica Acquisition have made
misstatements and omissions of material fact in the Offer and their Schedule
14D-1, as describe below.
THIRD DEFENSE
-------------
164. Plaintiffs, or one or more of them, may lack standing to assert
claims.
FOURTH DEFENSE
--------------
165. The Complaint fails to state a claim, in whole or in part, upon
which relief may be granted.
COUNTERCLAIMS OF U.S. SHOE
--------------------------
JURISDICTION
------------
166. U.S. Shoe asserts the following Counterclaims against Plaintiffs.
As detailed below, the Plaintiffs are violating the disclosure requirements of
the federal securities laws that apply to tender offers and should be
enjoined from continuing the Luxottica tender offer until full and fair
disclosure is made to the investing public, as required by the federal
securities laws and the Ohio Take-Over Act.
167. This Court has subject matter jurisdiction over Counts I through
VIII of U.S. Shoe's Counterclaim pursuant to the provisions of Section 27 of
the Securities Exchange Act of 1934 ("Exchange Act") 15 U.S.C. Sec. 78aa, and
28 U.S.C. Sec. 1331 (a). These claims arise under
21
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Sec.Sec. 14(d) and (e) of the Exchange Act, 15 U.S.C. Sec. 78n, and the rules
and regulations promulgated thereunder.
168. This Court has subject matter jurisdiction over Counts VIII and IX
of U. S. Shoe's Counterclaim for violations of Ohio Rev. Code Sec.Sec.
1707.041 and 1707.042 pursuant to the principles of pendant jurisdiction.
169. Venue for U. S. Shoe's Counterclaim is proper in this judicial
district because Plaintiffs conduct business in this district, and the claims
stated herein arose in this district.
170. The acts of Plaintiffs alleged herein occurred in and have a
substantial effect on interstate commerce.
FACTS COMMON TO ALL COUNTERCLAIMS
---------------------------------
171. On or about March 3, 1995 Luxottica and Luxottica Acquisition, an
indirect wholly-owned Delaware subsidiary of Luxottica, commenced a takeover
bid (the "Tender Offer") for all the issued and outstanding common shares of
U. S. Shoe (the "Shares"). The Tender Offer is described in an Offer to
Purchase dated March 3, 1995 (the "Offer"). If consummated, the Tender Offer
will result in the acquisition of U. S. Shoe by Luxottica, Luxottica
Acquisition, or some subsidiary or affiliate of one or both of them. Shares
are currently being tendered and, by its terms, the Tender Offer will expire
at 12:00 midnight, EST, March 30, 1995.
172. The Shares are a class of equity securities registered on the New
York and Pacific Stock Exchanges.
173. Luxottica and Luxottica Acquisition have filed a Schedule 14D-1, as
amended, (the "14D-1"), under Section 14(d) of the Exchange Act, with the
Securities and Exchange Commission ("SEC") with respect to the Tender Offer.
The 14D-1 contains, among other
22
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exhibits, the Offer, purportedly setting forth the material terms of the
Tender Offer.
174. 17 CFR Sec. 240.14d-100 (Schedule 14D-1) requires Luxottica and
Luxottica Acquisition to disclose certain information, which the SEC has
determined to be material.
175. By letter dated March 2, 1995 (such letter, including the
accompanying term sheet (the "Term Sheet"), is referred to as the "Commitment
Letter"), Credit Suisse's New York branch ("Credit Suisse") issued a
"commitment" to an unidentified "Borrower" to provide, subject to the terms
and conditions set forth in the Commitment Letter, a term loan facility in
the amount of US$1.0 billion (the "Term Loan Facility") and a revolving
credit facility in the amount of US$450 million (the "Revolving Credit
Facility", which together are referred to collectively as the "Credit
Facility").
176. The Offer indicates that after the purchase of the Shares under the
Tender Offer, Luxottica Acquisition will effect a merger pursuant to which
Luxottica Acquisition will be merged with and into U. S. Shoe (the "Merger")
and, as a result of the Merger, U. S. Shoe will become an indirect
wholly-owned subsidiary of Luxottica.
177. The Commitment Letter indicates that the "Borrower" for purposes of
the Commitment Letter, and the borrower under the Credit Facility, will be
another newly-formed indirect wholly-owned Delaware subsidiary of Luxottica
(the "Borrower").
178. The Commitment Letter indicates that the Borrower will make a cash
contribution of the loan proceeds under the Term Loan Facility to Avant-
Garde, an operating company based in Port Washington, New York, and an
existing direct wholly-owned subsidiary of Luxottica, which will in turn
contribute such amount as a cash contribution to Luxottica Acquisition.
179. The Commitment Letter indicates that the loans under the Credit
Facility will be
23
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used to finance the acquisition of the Shares pursuant to the Tender Offer.
The Term Sheet indicates that only the loans under the Term Loan Facility
(the "Term Loans") are to be utilized by Luxottica Acquisition to finance the
Tender Offer and the Merger and to pay fees and expenses in connection
therewith.
180. The Term Sheet indicates that the loans under the Revolving Credit
Facility are to be utilized:
"for the Borrower's and its subsidiaries'
general corporate and working capital
requirements, provided that a portion (to be
determined), and only such portion, of the
Revolving Credit Facility may be utilized for
the same purposes as the Term Loans and to
refinance no more than $140 million of
existing indebtedness of [U. S. Shoe] after
giving effect to the Merger."
181. The Commitment Letter indicates that all amounts owing
under the Credit Facility (and all obligations under the
guarantees referred to below) will be secured by pledges of the
capital stock of the Borrower and its subsidiary Avant-Garde, as
well as by "all capital stock and notes owned by the Borrower and
its subsidiaries (including all shares purchased in the Tender
Offer and all shares of Capital Stock of Target [U. S. Shoe]
after the merger)."
182. The Commitment Letter indicates that the Credit
Facility will be guaranteed by Luxottica, Luxottica S.p.A. and La
Meccanoptica Leonardo S.p.A., which are subsidiaries of
Luxottica, by all subsidiaries of the Borrower and by all other
U.S. subsidiaries of Luxottica. The Commitment Letter also
indicates that the collateral security for the Credit Facility
will
24
<PAGE>
include all notes and capital stock owned by all other U.S.
subsidiaries of Luxottica and security interests in substantially
all other assets owned by the Borrower and its subsidiaries and
by all other U.S. subsidiaries of Luxottica. Finally, the
Commitment Letter indicates that the Credit Facility will also be
secured by a negative pledge of substantially all assets of
Luxottica and its subsidiaries, including the capital stock of
Luxottica's non-U.S. subsidiaries.
183. By its terms, the Commitment Letter is made contingent
upon the fulfillment of a number of conditions, including that
all loans and other financing to the Borrower shall be in full
compliance with all requirements of Regulations G, T, U, and X
(together "the Board Regulations") of the Board of Governors of
the Federal Reserve System (the "Board").
184. In Amendment No. 4 to the 14D-1 ("Fourth Amendment")
filed by Luxottica and Luxottica Acquisition on March 16, 1995,
Luxottica and Luxottica Acquisition state: "Credit Suisse is
prepared to fund their commitment on the expiration date of our
offer." This statement contradicts the terms and conditions
stated in the Commitment Letter, because certain of such terms
and conditions could not be met as of March 16, 1995, as
described below.
185. In the Fourth Amendment, Luxottica and Luxottica
Acquisition state that U. S. Shoe's agreement for the sale of the
Footwear Group to Nine West Group, Inc. ("Nine West") "appears to
be conditioned on financing."
186. U. S. Shoe's agreement with Nine West is not
conditioned on financing.
187. Luxottica manufactures and sells eyeglass frames
worldwide. Upon information and belief, in 1994, Luxottica sold
approximately $504 million of eyeglass frames(12.8 million pairs)
worldwide. Upon information and belief, approximately 40% of
Luxottica's sales of eyeglass frames are made in the United
States. Luxottica sells eyeglass frames primarily to
25
<PAGE>
independent eyeglass vendors and also to chains such as Sunglass
Hut, Pearle and Vision Works.
188. Through its LensCrafters subsidiary, U. S. Shoe
operates the largest chain of optical superstore retail outlets
in the United States and Canada, with 530 outlets in the United
States and 59 outlets in Canada.
189. In fiscal 1994, LensCrafters purchased eyeglass frames
from approximately thirty-three frame manufacturers.
Traditionally, LensCrafters has purchased a relatively modest
volume of frames from Luxottica. For instance, in 1994
LensCrafters purchased approximately $5,524,000 in frames from
Luxottica, represeting approximately 7% of U. S. Shoe's total
fiscal 1994 eyeglass frame purchases. Upon information and
belief, Luxottica has initiated its acquisition as set forth
below in order to force LensCrafters to purchase frames from
Luxottica, which frames LensCrafters would otherwise purchase
from competitors of Luxottica.
190. Upon information and belief, Leonardo Del Vecchio, an
Italian citizen ("Mr. Del Vecchio"), owns 36% of Luxottica
directly. Upon information and belief, he controls the voting
rights to Luxottica's shares held by La Leonardo Finanziaria, an
Italian company ("Finanziaria"), which owns approximately 35% of
Luxottica. Upon information and belief, he controls an aggregate
of approximately 71% of Luxottica's shares.
191. Upon information and belief, Mr. Del Vecchio is quoted
as stating that one of the reasons for the Tender Offer was that
LensCrafters was sourcing a considerable amount of merchandise
from the Far East, thereby indicating that Mr. Del Vecchio
intends to shift LensCrafters purchasing toward European
suppliers, including Luxottica. (Financial Times, March 10,
---------------
1995).
192. Upon information and belief, Mr. Del Vecchio is quoted
as stating that another purpose of the Tender Offer is defensive,
in an attempt to prevent LensCrafters and Pearle Vision from
attaining a 50% North American market share. (Financial Times,
---------------
March 10, 1995).
26
<PAGE>
193. Upon information and belief, the Italian press has
reported that Mr. Del Vecchio, the wealthiest taxpayer in Italy,
is personally worth two trillion lira (about $1.2 billion dollars).
(Il Mondo, January 23, 1995.)
--------
COUNT I
Violation of Sec.14 of the Exchange Act - Purpose of Tender Offer
-----------------------------------------------------------------
194. U. S. Shoe incorporates by reference each allegation
contained above as if restated in full herein.
195. Schedule 14D-l, Item 5, requires Luxottica and Luxottica
Acquisition to disclose the purpose of the Tender Offer.
196. As stated above, Mr. Del Vecchio, who is a controlling
person of Luxottica and Luxottica Acquisition, has stated to the
foreign press purposes for the Tender Offer that are not disclosed
in the Offer or the l4D- 1.
197. The 14D-l is materially misleading regarding the purpose
of the Tender Offer, because it does not disclose the true
purposes for the Tender Offer.
198. The 14D-l violates Sec.Sec.14 (d) and (e) of the Exchange
Act, 15 U. S. C. Sec. 78 n, and the rules and regulations
promulgated thereunder.
199. U.S. Shoe will suffer irreparable injury unless Plaintiffs'
violations described above are enjoined.
200. U.S. Shoe does not have a adequate remedy at law for
Plaintiffs' violations described above.
COUNT II
Violation of Sec.14 of the Exchange Act - Tender Offer Structure
----------------------------------------------------------------
201. U. S. Shoe incorporates by reference each allegation
contained above as if restated in full herein.
202. Schedule 14D-l requires identification of the "Bidder"
on whose behalf a tender offer is made.
203. Schedule 14D-l defines "Bidder" as "any person or entity
on whose behalf a tender offer is made."
27
<PAGE>
204. In view of Luxottica's complicated corporate structure,
the reference in the Offer to Luxottica Acquisition as an
"indirect" wholly-owned subsidiary of Luxottica is inadequate
disclosure of the identity of the Bidder, because it fails to
identify any other persons or entities in the chain of ownership
and/or control of Luxottica and Luxottica Acquisition.
205. The Offer fails to provide adequate disclosure of the
identity of the acquiring persons or entities in the Tender Offer,
and therefore fails to disclose adequately the identity of the
Bidder. The Offer describes Luxottica Acquisition as ". . . an
indirect wholly-owned subsidiary of Luxottica Group, S.p.A."
According to the Commitment Letter, however, "a newly-formed
indirect wholly-owned subsidiary of Luxottica Group S.p.A.
("Luxottica Group"), which subsidiary ("Newco 1") shall be
incorporated under the laws of Delaware, intends to acquire,
through another newly-formed indirect wholly-owned Delaware
subsidiary of Luxottica Group ("Bidco"), the issued and
outstanding, shares of common stock . . . . [of U. S. Shoe].
Neither the identity nor the existence of "Newco 1" is disclosed
in the Offer.
206. The Commitment Letter indicates that Avant-Garde is to
acquire the Shares purchased pursuant to the Tender Offer by
Luxottica Acquisition. The Offer fails to disclose this material
fact.
207. The Offer violates Sec.Sec.14 (d) and (e) of the Exchange
Act, 15 U. S. C. Sec. 78 n, and the rules and regulations
promulgated thereunder.
208. U.S. Shoe will suffer irreparable injury unless Plaintiffs'
violations described above are enjoined.
209. U.S. Shoe does not have a adequate remedy at law for
Plaintiffs' violations described above.
28
<PAGE>
COUNT III
---------
Violation of Sec.14 of the Exchange Act - Control of Bidder
--------------------------------------------------------
210. U. S. Shoe incorporates by reference each allegation
contained above as if restated in full herein.
211. Schedule 14D-l, Item 10(f), requires Luxottica and
Luxortica Acquisition to disclose "[s]uch additional information,
if any, [as] may be necessary to make the required statements, in
the light of the circumstances under which they were made, not
materially misleading."
212. Schedule 14D-1, General Instruction C, requires
Luxottica and Luxottica Acquisition to provide information
regarding "each person controlling such corporation." Luxottica
has failed to disclose the identity of Mr. Del Vecchio (and
perhaps other persons), and material information about him, as a
controlling person of Luxottica in violation of Schedule 14D-l.
213. The 14D-l violates Sec. Sec. 14 (d) and (e) of the
Exchange Act, 15 U. S. C. Sec. 78 n, and the rules and
regulations promulgated thereunder.
214. U.S. Shoe will suffer irreparable injury unless Plaintiffs'
violations described above are enjoined.
215. U.S. Shoe does not have a adequate remedy at law for
Plaintiffs' violations described above.
COUNT IV
Violation of Sec.14 of the Exchange Act - Description of Financing
---------------------------------------------------------------
216. U. S. Shoe incorporates by reference each allegation
contained above as if restated in full herein.
217. Schedule 14D-1, Item 5, requires Luxottica to describe
the financing of the Tender Offer.
218. The 14D-1 fails to meet the requirements of Schedule
14D-l and is misleading, because it fails to disclose material
facts
29
<PAGE>
pertaining to the financing of the Tender Offer in, among others,
the following respects:
(a) The convoluted financial and other relationships
among the undisclosed Borrower, Avant-Garde, Luxottica and
Luxottica Acquisition, as described above, are not disclosed
in the Offer itself. Upon information and belief, such
relationships have no purpose other than to mask the fact
that the Credit Facility is being extended for the purpose of
purchasing "margin stock" in violation of the Board
Regulations.
(b) The identity of the actual Borrower of the Credit
Suisse financing is never identified in the Offer, in
violation of Item 4(b)(1) of Schedule 14D-1. The Offer is
misleading, because it implies that the Borrower is actually
Luxortica Acquisition Corp., rather than "Newco 1" or some
other Luxottica subsidiary.
(c) The Offer states that the ". . . Offer is
conditioned upon the Purchaser being satisfied . . . that the
Purchaser [Luxottica Acquisition] has obtained sufficient
financing to enable it to consummate the Offer. . . .", and
directs the reader to Section 9 for a description of the
financing. The Offer is again conditioned at Sections 9 and
14 upon sufficient financing being obtained by Luxottica
Acquisition.
(d) The Commitment Letter contradicts the Offer, as
described above.
(e) The Terms and Conditions in "Condition Precedent to
30
<PAGE>
the Closing Date," Section A (xiv), states that all loans
under the Credit Facility must be in full compliance with all
requirements of the Board Regulations before the financing
may be completed, but such limitation is not explicitly
stated in the Offer, which fails to disclose adequately the
risk that the financing may be challenged for noncompliance
with the Board Regulations, as described below.
(f) The Offer fails to disclose how much of the
Revolving Credit Facility may be used to purchase the Shares.
(g) The Commitment Letter indicates that the financing
is subject to Credit Suisse's approval of key loan
documentation in its sole discretion. The Offer does not
adequately disclose that the financing is subject to the sole
discretion of Credit Suisse.
(j) The Fourth Amendment falsely states that "Credit
Suisse is prepared to fund their commitment on the expiration
date of our offer. . . .", whereas the commitment of Credit
Suisse is subject to terms and conditions that could not
possibly be satisfied as of March 16, 1995.
219. The 14D-1 violates Sec. Sec. 14 (d) and (e) of the
Exchange Act, 15 U. S. C. Sec. 78 n, and the rules and
regulations promulgated thereunder.
220. U.S. Shoe will suffer irreparable injury unless Plaintiffs'
violations described above are enjoined.
221. U.S. Shoe does not have a adequate remedy at law for
Plaintiffs' violations described above.
COUNT V
Violation Sec. 14 of Exchange Act - Misstatement About
---------------------------------------------------
U. S. Shoe's Agreement
----------------------
222. U. S. Shoe incorporates by reference each allegation
31
<PAGE>
contained above as if restated in full herein.
223. The Fourth Amendment falsely states that U. S. Shoe's
agreement with Nine West "appears to be conditioned on financing .
. ", whereas in truth and in fact, it is not conditioned on
financing.
224. The 14D-1 violates Sec. Sec. 14 (d) and (e) of the
Exchange Act, 15 U. S. C. Sec. 78 n, and the rules and regulations
promulgated thereunder.
225. U.S. Shoe will suffer irreparable injury unless Plaintiffs'
violations described above are enjoined.
226. U.S. Shoe does not have a adequate remedy at law for
Plaintiffs' violations described above.
COUNT VI
Violation of Sec. 14 of Exchange Act - Regulation U
------------------------------------------------
227. U. S. Shoe incorporates by reference each allegation
contained above as if restated in full herein.
228. The 14D-1 and the Offer contain untrue statements of
material fact and omit to state material facts necessary to make
statements made, in light of the circumstances in which they were
made, not misleading, in violation of Section 14(d) of the
Exchange Act as follows:
(a) The Offer fails to disclose a violation of the Board
Regulations, which prohibit any bank from extending any
"purpose credit" to Luxottica Acquisition for the purchase of
U. S. Shoe Shares, on the terms described in the Commitment
Letter.
(b) The Offer fails to disclose that the financing
institution providing purpose credit as defined by the Board
Regulations is a branch of a foreign bank located within the
United States.
32
<PAGE>
(c) The Offer fails to disclose that the Credit
Facility to be used to purchase the Shares is credit for the
"purpose, whether immediate, incidental or ultimate, of
buying or carrying margin stock" and therefore subject to the
requirements of the Board Regulations.
(d) The Offer fails to disclose that all credit
extended by a bank for the purpose of purchasing "any equity
security registered or having unlisted trading privileges on
a national securities exchange," which includes the Shares,
must conform to the requirements of the Board Regulations
limiting the amount of credit available for the purchase of
such "margin stock."
(e) The Offer fails to disclose that, as a loan subject
to the Board Regulations, the Credit Facility must meet
certain collateralization requirements, including but
not limited to the requirement that Credit Suisse may
not make the Credit Facility available to the Borrower
for the purpose of acquiring the Shares in reliance upon
more than fifty percent (50%) of the value of the Shares
as collateral for the loan.
(f) The Offer fails to disclose that there appears to
be insufficient value in the nonstock collateral securing the
$1.450 billion loan for Credit Suisse to make available to
the Borrower all or a portion of the Credit Facility without
violating the Board Regulations.
(g) The Offer fails to disclose the possible effect of
33
<PAGE>
future changes in value of the Italian lira on valuation of
Luxottica's nonstock assets and the Borrower's ability to
comply with the Board Regulations.
229. The 14D-1 violates Sec.Sec.14 (d) and (e) of the Exchange
Act, 15 U. S. C. Sec. 78 n, and the rules and regulations
promulgated thereunder.
230. U.S. Shoe will suffer irreparable injury unless Plaintiffs'
violations described above are enjoined.
231. U.S. Shoe does not have a adequate remedy at law for
Plaintiffs' violations described above.
COUNT VII
232. U.S. Shoe incorporates by reference each allegation
contained above as if restated in full herein.
233. On or about March 21, 1995, Luxottica and Luxottica
Acquisition filed proxy materials including a definitive a Proxy Statement
with the Securities and Exchange commission pursuant to Sec. 14(A) of the
Exchange Act (the "Proxy Statement").
234. In Schedule III of the Proxy Statement, Luxottica and
Luxottica Acquisition state that Mellon Bank Corporation is the owner of
4,678,000 common shares of U.S. Shoe, representing 10.09% of all the
outstanding common shares, that Boston Group Holdings, c/o Mellon Bank
Corporation, is the owner of 4,307,000 common shares, representing 9.29% of
all the outstanding common shares, that The Boston Company, Inc., c/o Mellon
Bank Corporation, is the owner of 4,307,000 common shares, representing 9.29%
of all the outstanding common shares, and that The Boston Company Asset
Management, Inc., c/o Mellon Bank Corporation, is the owner of 2,866,000
common shares, representing 6.18% of all the outstanding common shares.
235. From the statement described above, a reasonable investor
could reasonably conclude that Mellon Bank Corporation and its subsidiaries
own 16,158,000 common shares, representing 34.85% of the common shares, and
that Mellon Bank Corporation and its subsidiaries therefore have the power to
control the acceptance or rejection of the Tender Offer.
236. The common share ownership of Mellon Bank Corporation and
its subsidiaries is a material fact.
237. In the Proxy Statement, Luxottica and Luxottica Acquisition
attribute the information about the share ownership of Mellon Bank Corporation
and its subsidiaries reported in the Proxy Statement to Amendment No. 3 to a
Form 13G filed by Mellon Bank Corporation on March 8, 1995 (the "Schedule
13G").
238. The 13G reports that the total common shares owned by Mellon
Bank Corporation and its subsidiaries is 4,676,000 representing 10.09% of all
the outstanding common shares.
239. In Item 4 "Ownership" of the Schedule 13G, it is stated:
The amount beneficially owned includes, where appropriate securities not
outstanding which are subject to options, warrants, rights or conversion
privileges that are exercisable within 60 days. The filing of this
Schedule 13G shall not be construed as an admission that Mellon Bank
Corporation, or its direct or indirect subsidiaries, including Mellon
34
<PAGE>
Bank, N.A., are for the purposes of Section 13(d) or 13(g) of the Act,
the beneficial owners of any securities covered by this Schedule 13G.
240. In Item 6 of the 13G, it is stated:
All of the securities are beneficially owned by Mellon Bank or its
direct and indirect subsidiaries in their various fiduciary capacities.
As a result, another entity in every instance is entitled to dividends
or proceeds of sale. The number of individual accounts holding an
interest of 5% or more is 0.
241. The description of the common share ownership of Mellon Bank
Corporation and its subsidiaries in the Proxy Statement is false and
misleading, in violation of Sec. 14(e) of the Exchange Act, and the rules and
regulations promulgated thereunder.
242. U.S. Shoe will suffer irreparable injury unless Plaintiffs'
violations described above are enjoined.
243. U.S. Shoe does not have a adequate remedy at law for Plaintiffs'
violations described above.
COUNT VIII
244. U.S. Shoe incorporates by reference each allegation contained above
as if restated in full herein.
245. On or about March 10, 1995, Luxottica issued a press release
announcing that it and certain shareholders of U.S. Shoe had set March 17,
1995 as the record date for a special meeting of U.S. Shoe shareholders under
Ohio's Control Share Acquisition Act and the record date for the call by
certain U.S. Shoe shareholders of a special meeting to remove all of the
incumbent U.S. Shoe directors.
246. On or about March 14, 1995, Luxottica announced that it had
rescinded the record dates set for March 17, 1995, and was setting record
dates for both meetings as of March 21, 1995. Luxottica further announced
that March 21 would be the record date for determining U.S. Shoe shareholders
entitled to execute "Agent Designations" for the call of the second special
meeting to oust the board of directors.
247. The right to set record dates is reserved to the Board of Directors
of U.S. Shoe under the Ohio Revised Code, and Plaintiffs have no power to set
any record date for any special meeting of U.S. Shoe.
248. The Ohio Revised Code does not provide for the setting of any record
date for the execution of "Agent Designations" for the purpose of calling
special meetings of U.S. Shoe shareholders.
249. Luxottica's public announcements that it has established record
dates for special meetings of U.S. Shoe shareholders and for the execution of
"Agent Designations" are false and misleading statements of material fact,
intended to mislead and confuse shareholders of U.S. Shoe. These public
announcements violate Ohio Rev. Code Sec. 1707.042 and Sec. 14(e) of the
Exchange Act, 15 U.S.C. Sec. 78n, and the rules and regulations promulgated
thereunder.
250. U.S. Shoe will suffer irreparable injury unless Plaintiffs'
violations described above are enjoined.
251. U.S. Shoe does not have a adequate remedy at law for Plaintiffs'
violations described above.
35
<PAGE>
COUNT IX
Violations of Ohio Rev. Code Sec. 1707.041
---------------------------------------
252. U. S. Shoe incorporates by reference each allegation
contained above as if restated in fall herein.
253. Ohio Rev. Code Sec. 1707.041 in substance requires that
Luxottica and Luxottica Acquisition send or deliver to all
offerees in Ohio a statement of any plans or proposals they may
have to liquidate U. S. Shoe, sell its assets, effect a merger or
consolidation of it, establish, terminate, convert, or amend
employee benefit plans, close any plant or facility of U. S. Shoe
or any of its subsidiaries or affiliates, change or reduce the
work force of U. S. Shoe or any of its subsidiaries or affiliates,
or make any other major changes to its business structure,
management or personnel, or policies of employment.
36
<PAGE>
254. Ohio Rev. Code Sec. 1707.041 also requires that Luxottica
and Luxottica Acquisition send or deliver to all offerees in Ohio
complete information on the organization and operations of
Luxottica and Luxottica Acquisition, including a description of
each class of their stock and of their long term debt, financial
statements for the current period and for the three most recent
annual accounting periods, a brief description of the location and
general character of the principal physical properties of
Luxottica and Luxottica Acquisition and their subsidiaries, a
description of pending legal proceedings other than routine
litigation to which Luxottica or Luxottica Acquisition are parties
or of which any of their property is the subject, a brief
description of the business done and projected by Luxottica and
Luxottica and their subsidiaries and the general development of
such business over the last three years, the names of all
directors and executive officers together with biographical
summaries of each for the preceding three years to date, and the
approximate amount of any material interest, direct or indirect,
of any of the directors or officers in any material transactions
during the past three years, or in any proposed transactions, to
which Luxottica or Luxottica Acquisition or any of their
subsidiaries are parties.
255. Luxottica and Luxottica Acquisition have violated the
provisions of Ohio Rev. Code Sec. 1707.041 described above, and have
not mailed or delivered the required information to shareholders of
U. S. Shoe in Ohio.
256. U.S. Shoe will suffer irreparable injury unless Plaintiffs'
violations described above are enjoined.
257. U.S. Shoe does not have a adequate remedy at law for
Plaintiffs' violations described above.
WHEREFORE, Defendants demand judgment that the Complaint be
37
<PAGE>
dismissed, at Plaintiffs' costs, and for all other relief, legal
and equitable, to which they are entitled.
On its Counterclaim, U. S. Shoe demands judgment:
I That the acquisition of the Shares by Luxottica
and/or Luxottica Acquisition be judged to be in
violation of Sec.14(d)-(e) of the Securities
Exchange Act of 1934, as amended, Regulation 14D of
the Securities and Exchange Commission under
Sec.Sec.14(d)-(e), and Ohio Rev. Code Sec.1707.041
and 1707.042;
II That Plaintiffs and all other persons acting for or
on their behalf be preliminarily and permanently
enjoined from consummating the Tender Offer or any
other transaction to gain control of U. S. Shoe
and/or the effect of which would be to merge,
consolidate or in any other way combine the
business of U. S. Shoe with those of Plaintiffs,
until such time as Plaintiffs have complied with
Sec.Sec.14(d) and (e) of the Exchange Act, 15 U.S.C.
Sec. 78n, and the rules and regulations promulgated
thereunder and Ohio Rev. Code Sec. Sec. 1701.041 and
1707.042;
III That Plaintiffs and all other persons acting for or
on their behalf be ordered to cease and desist from
violating the Exchange Act and Ohio Rev. Code Sec.
Sec. 1701.041 and 1707.042 and to withdraw the false
and misleading Offer, Form 14D-1 and Form 041;
and
IV For all other relief, legal and equitable, to which
it is entitled.
38
<PAGE>
------------------------------
Joseph J. Dehner (0011321)
Trial Attorney for U. S. Shoe
Defendants
2500 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
(513) 651-6800
39
<PAGE>
OF COUNSEL:
Michael Yarbrough
Curtis A. Hansen
FROST & JACOBS
One Columbus
10 West Broad Street
Columbus, Ohio 43215-3467
(614) 464-1211
Frederick J. McGavran
Grant S. Cowan
D. Scott Gurney
Adam P. Hall
FROST & JACOBS
2500 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
(513) 651-6800
CERTIFICATE OF SERVICE
----------------------
This is to certify that a copy of the foregoing has been sent
by hand delivery to Thomas B. Ridgley, Esq., Vorys, Sater, Seymour
and Pease, 52 East Gay Street, Columbus, Ohio 43216-1008 and
Daniel A. Malkoff, Assistant Attorney General, 26th Floor, 30 East
Broad Street, Columbus, Ohio 43266-0410 on this ____ day of March,
1995.
----------------------------
40
