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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. 15)
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 6 Pages
The Exhibit Index is located on Page 4
<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. 15. 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(e) is hereby amended to add the following:
(e) On April 7, 1995, the District Court entered an Agreed Pre-Hearing
Order which outlines certain claims and counterclaims arising in the
Ohio Litigation and scheduled for consideration at a hearing on
April 13-14, 1995. The foregoing description of the Agreed Pre-Hearing
Order is qualified in its entirety by reference to the Agreed Pre-Hearing
Order filed as Exhibit (g)(14) hereto.
On April 11, 1995, the Luxottica Plaintiffs filed a Reply to
Second Amended Counterclaim denying the allegations set forth in the Second
Answer and Amended Counterclaim. The foregoing description of the Reply to
Second Amended Counterclaim is qualified in its entirety by reference to the
Reply to Second Amended Counterclaim filed as Exhibit (g)(15) hereto.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS
Item 11 is hereby amended and supplemented by adding the following exhibits:
(a)(28) --Letter to the Shareholders of The United States Shoe Corporation
dated April 12, 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 April 13, 1995 and
incorporated herein by reference.
(g)(14) --Agreed Pre-Hearing Order entered by the District Court on
April 7, 1995.
(g)(15) --Reply to Second Amended Counterclaim filed by the Luxottica
Plaintiffs on April 11, 1995 in the District Court.
2
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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 13, 1995 By: /s/ Claudio Del Vecchio
..............................
Claudio Del Vecchio
Managing Director
LUXOTTICA ACQUISITION CORP.
Dated: April 13, 1995 By: /s/ Claudio Del Vecchio
..............................
Claudio Del Vecchio
President
3
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EXHIBIT INDEX
<TABLE><CAPTION>
EXHIBIT PAGE
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(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.
4
<PAGE>
<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 .............. *
(a)(28) --Letter to the Shareholders of The United States Shoe Corporation dated
April 12, 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 April 13,
1995 and incorporated herein by reference.
(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.
5
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<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)......................................... *
(g)(13) --Amended 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 to Third Amended
Complaint and Amended Counterclaim of Defendant The United States
Shoe Corporation Against Plantiffs for Preliminary and Permanent
Injunction for Misstatements and Omissions in SEC Filings and
Tender Offer Materials, filed on April 6, 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).................. *
(g)(14) --Agreed Pre-Hearing Order entered by the District Court on April 7, 1995..
(g)(15) --Reply to Second Amended Counterclaim filed by the Luxottica Plaintiffs
on April 11, 1995 in the District Court..................................
</TABLE>
6
Exhibit (g)(14)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LUXOTTICA GROUP, S.p.A., :
et al., :
-- --
:
Plaintiffs, :
:
v. : Civil Action No. C-2-95-244
: Judge Graham
THE UNITED STATES SHOE :
CORPORATION, et al., :
-- --
:
Defendants. :
AGREED PRE-HEARING ORDER
------------------------
This statement of the claims and defenses asserted by Plaintiffs and
Defendants is submitted in accordance with the Court's request. It should be
noted, however, that because of the expedited nature of these proceedings,
discovery has not yet been concluded and depositions have not yet been
completed. Accordingly, while this statement of claims and defenses sets forth
the issues to be presented at the hearing which are known at this time, the
parties request the right to supplement, modify or otherwise alter their
positions set forth herein.
Plaintiffs Luxottica Group S.p.A., Luxottica Acquisition Corp., and
Avant-Garde Optics, Inc. (collectively "Plaintiffs"), and Defendant The United
States Shoe Corporation, hereby agree as follows:
I. U.S. Shoe's motion to dismiss Counts Eleven, Twelve and Thirteen of
Plaintiffs' Third Amended Complaint may be presented to the Court at the hearing
to occur on April 13 and 14, 1995, and Plaintiffs shall file their memorandum in
opposition to such motion with the Court by 5:00 p.m. on April 11, 1995.
<PAGE>
II. U.S. Shoe's motion to dismiss Counts Six, Seven and Eight of
Plaintiffs' Third Amended Complaint will not be presented to the Court at the
hearing to occur on April 13 and 14, 1995, and Plaintiffs shall file their
memorandum in opposition to that portion of the motion with the Court no later
than by 5:00 p.m. on April 21, 1995 (the time within which such memorandum is
due under the local rules).
III. U.S. Shoe's motion for a preliminary and permanent injunction
enjoining Plaintiffs from distributing certain information in their proxy
solicitation in connection with "agent designations" for calling a special
meeting of U.S. Shoe shareholders, filed March 31, 1995 shall be presented to
the Court at the hearing scheduled for April 13 and 14, 1995. U.S. Shoe shall
amend its counterclaim to assert those claims and possibly one additional claim
(the substance of which has been disclosed orally to Plaintiffs' attorneys) by
5:00 p.m. on April 6, 1995.
IV. Plaintiffs and Defendant-counterclaimant U.S. Shoe will submit to the
Court for determination Counts I through VII and IX through XIV of U.S. Shoe's
Second Amended Counterclaim and Count XIV of Plaintiffs' Third Amended Complaint
at the hearing scheduled for April 13 and 14, 1995. Plaintiffs and the U.S.
Shoe Defendants shall file by 5:00 p.m. on April 11, 1995 their pre-hearing
briefs on the issues to be presented at the April 13-14 hearing. State
Defendants' pre-hearing brief in response to Plaintiffs constitutional challenge
to R.C. 1707.041 shall be filed by 5:00 p.m. April 12, 1995.
V. U.S. SHOE'S CLAIMS AND PLAINTIFFS' DEFENSES
1. U.S. SHOE CLAIM. The Schedule 14D-l, the Offer and the proxy
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materials of Luxottica Group S.p.A. and Luxottica Acquisition Corp.
(collectively, "Luxottica")
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violate 15 U.S.C. Sec. 78n(d) and (e) because they fail to disclose the purpose
of Luxottica's Tender Offer. Statements of purpose by Luxottica's Chief
Executive Officer Leonardo Del Vecchio indicate purposes that are not disclosed
in Luxottica's proxy materials and Offer.
PLAINTIFFS' DEFENSE The Tender Offer Statement on Schedule 14D-
-------------------
1 (the Statement) responds fully to Item 5 of the Schedule 14D-l by disclosing
the purpose of the Tender Offer as the acquisition of all of the outstanding
shares of U.S. Shoe (including associated Rights) and the subsequent merger of
the company with a subsidiary of Plaintiffs. In addition, Item 5 discloses
information about the corporate entity effecting the Tender Offer and its parent
company, the source and amount of the funds to be used for the acquisition and
Plaintiffs' plans for U.S. Shoe should the Tender Offer be successful. There is
no requirement that Plaintiffs disclose the business reasons for making the
offer. Plaintiffs have no undisclosed purpose for making the Tender Offer nor
any undisclosed plans for U.S. Shoe.
2. U.S. SHOE CLAIM. Luxottica's Offer, proxy materials and Schedule
---------------
14D-l violate 15 U.S.C. Sec. 78(n)(d) and (e) because they (1) fail to disclose
adequately the identity of the bidder, (2) fail to disclose adequately the
identity of the acquiring persons in the Tender Offer; and (3) fail to state
that Avant-Garde is to acquire the shares purchased pursuant to the Tender
Offer.
PLAINTIFFS' DEFENSE. The Statement responds fully to Item 2 of
-------------------
Schedule l4D-1 by disclosing the identity of the entity on whose behalf the
offer is made as well as the identity of its ultimate corporate parent,
Luxottica Group S.p.A. Similarly, the Statement identifies the entity borrowing
the funds to make the offer as well as its relationship to the same corporate
parent.
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That the borrowing entity is described in the Commitment Letter
as "Newco" rather than by its full corporation name of Luxottica U.S. Holding
Corp. is not material since, as the Statement discloses, Luxottica U.S. Holding
Corp. is newly formed, has minimal assets and no financial history. The bidder,
although described in the Commitment Letter as "Bidco" is prominently identified
as one of the bidders throughout the Statement.
Equally immaterial is the fact that, after the successful
consummation of the offer, the share of U.S. Shoe will be held by another
corporate subsidiary, whose name is not mentioned in the Statement.
3. U.S. SHOE CLAIM. Luxottica's Offer, proxy materials and Schedule
---------------
l4D-1 violates 15 U.S.C. Sec. 78n(d) and (e) because they fail to identify
adequately Leonardo Del Vecchio as a controlling person of the bidder and of
Luxottica.
PLAINTIFFS' DEFENSE. Instruction C to the Schedule 14D-l
--------------------
requires that the information in Items of 2-7 be provided with respect to
officers, directors and controlling persons of a corporation filing a Statement.
All such information has been provided for Mr. Del Vecchio including that he has
been the Chief Executive Officer of the Company since 1961, its Chairman since
1981 and its founder. Those disclosures clearly identify Mr. Del Vecchio as a
controlling person by virtue of his positions. Items 2 through 7 do not require
that, in addition to the foregoing disclosures, Mr. Del Vecchio be designated a
"controlling person" or that his stock ownership (which is reported in other
Luxottica filings with the SEC) be set forth.
4. U.S. SHOE CLAIM. Luxottica's Offer, proxy materials and Schedule
---------------
14D-l violate 15 U.S.C. Sec. 78n(d) and (e) in that they fail to disclose
adequately : (i) the
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<PAGE>
convoluted financial and other relationships among Luxottica related entities
and persons; (ii) the identity of the borrower; (iii) that the Offer is
conditioned upon Luxottica's satisfaction that it has obtained suitable
financing; (iv) that the financing set forth in a commitment letter from Credit
Suisse contains substantial risks that the financing would ever be extended; (v)
the amount of the revolving credit portion of the loan that may be used to
purchase the shares of U.S. Shoe; and (vi) that the financing is subject to the
sole discretion of Credit Suisse. Luxottica has falsely and misleadingly stated
and communicated in its proxy materials and fourth amendment to the Schedule
14D-l that "Credit Suisse is prepared to fund their commitment on the expiration
date of our offer," which when made was March 31, 1995. Luxottica has falsely
and misleadingly claimed that its financing is finalized and has implied
therefore that there is no financial risk that the Tender Offer could be
consummated, whereas in fact there are substantial risks and contingencies
involved with Luxottica's stated financing plans.
PLAINTIFFS' DEFENSE. There is no material element of the loan
-------------------
transaction that is not set forth in detail either in the Statement or in the
Commitment Letter and Term Sheet, which are filed as Exhibit (b)(1) to, and
incorporated by reference in the Statement. Those documents make clear that the
offer is conditioned upon, among other things, (i) sufficient financing, (ii)
the absence of material adverse changes in the business of Plaintiffs, (iii) the
negotiation, execution and delivery of definitive documentation of the loan, and
(iv) the loan being in full compliance with the requirements of the Federal
Reserve Board.
5. U.S. SHOE CLAIM. Luxottica's Offer, proxy materials and Schedule
----------------
14D-l violate 15 U.S.C. Sec.78n(d) and (e) because they state that U.S. Shoe's
agreement with Nine West Group, Inc. "appears to be conditioned on financing."
In fact, the Nine West agreement
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<PAGE>
is not conditioned on financing and does not appear to be conditioned on
financing from a fair reading of published descriptions of the Nine West
agreement.
PLAINTIFFS' DEFENSE. The statement complained of is accurate
-------------------
since, according to its publicly-available financial statements, Nine West
Group, Inc. does not have sufficient unencumbered assets or cash with which to
purchase that footwear division of U.S. Shoe, and unless it obtains financing
for the same it will be unable to complete the acquisition. Further, press
releases of U.S. Shoe and Nine West imply the financing is subject to usual and
customary conditions.
6. U.S. SHOE CLAIM. Luxottica's Offer, proxy materials and Schedule
---------------
14D-l violate 15 U.S.C. Sec. 78n(d) and (e) because they provide inadequate
disclosure of Regulation U of the Federal Reserve Board and its effect on the
proposed Luxottica financing and transaction.
PLAINTIFF'S DEFENSE. Regulation U provides in relevant part that
-------------------
no bank may extend credit secured by margin stock in an amount that exceeds the
"maximum loan value" of the collateral securing the credit. The collateral
securing Plaintiffs' borrowings will be all of the shares of U.S. Shoe purchased
in the Tender Offer; a security interest in all of the assets of Plaintiffs'
United States subsidiaries and a negative pledge on substantially all of
Plaintiffs' assets, including the capital stock of its non-U.S. subsidiaries.
The staff of the Federal Reserve Board has consistently concluded that assets
subject to a negative pledge constitute "collateral securing the credit" for the
purposes of Regulation U.
The maximum loan value of collateral, other than the margin
stock, is defined as "good faith loan value" or an amount which a bank
exercising sound banking
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<PAGE>
judgment would lend to a borrower. The good faith loan value of the collateral
supporting the Credit Suisse loan is far in excess of the required amount.
In addition, U.S. Shoe does not have standing to maintain a
private right of action for violation of the margin regulations. Consequently,
this Court need not decide the merits of any Regulation U argument. Rather, the
only question before the Court is one of adequate disclosure under the Williams
Act. Accordingly, if this Court finds that: (l) there is a good faith dispute as
to any violation of Regulation U, and (2) the existence of that dispute has been
disclosed to the shareholders, U.S. Shoe's claim must be dismissed.
7. U.S. SHOE CLAIM. Luxottica's Offer, proxy materials, Schedule
----------------
14D-l and agent designation solicitation materials contain false statements
Mellon Bank Corporation owns 34.85% of U. S. Shoe. In fact, the percentage
ownership is 10.09%.
PLAINTIFFS' DEFENSE. The description of Mellon Bank
---------------------
Corporation's ownership of U.S. Shoe shares in Plaintiffs' proxy material is
based upon and taken from a description set forth in Amendment No. 3 to the
Schedule 13 G filed by Mellon Bank Corporation on March 8, 1995. The Schedule
13G is a publicly available document and Plaintiffs were entitled to rely on it.
8. U.S. SHOE CLAIM. Luxottica failed to disclose, mail or otherwise
---------------
deliver substantial information and materials to all U.S. Shoe shareholders who
reside in Ohio, as required by the Ohio Take-Over Act, Sec.1707.041, Ohio
Revised Code.
PLAINTIFFS' DEFENSE. Luxottica's conduct, filings and offeree
-------------------
materials pursuant to R.C. Sec. 1707.041 comply with the requirements of Ohio
law.
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<PAGE>
U.S. Shoe lacks standing to assert any violation of R.C. Sec.
1707.041 because the Act does not create a private right of action on behalf of
corporations which are targets of a Tender Offer.
The Ohio Division of Securities, which has reviewed the filings
and disclosures made by Luxottica and has declined to suspend the Tender Offer
or take any other enforcement action, has exclusive jurisdiction to enforce the
Ohio Take-Over Act.
To the extent that the Ohio Take-Over Act requires the provision
of extensive information and mailing of massive materials in addition to those
required by the Williams Act, the provisions of the Ohio Take-Over Act which
U.S. Shoe claims have been violated are unenforceable because they violate the
Commerce Clause and are preempted by the Williams Act.
STATE'S DEFENSE TO U.S. SHOE CLAIM AND LUXOTTICA'S
--------------------------------------------------
CONSTITUTIONAL CHALLENGE TO Sec. 1707.041, OHIO REVISED CODE.
-------------------------------------------------------------
a. U.S. Shoe lacks standing to assert a violation of R.C. 1707.041
because the statute does not create a private right of action. Only
the Ohio Division of Securities and the Ohio Department of Commerce
have the statutory authority to enforce the Ohio Securities Act.
b. The issue of whether R.C. 1707.041 is constitutional is moot since the
Ohio Division of Securities did not suspend Luxottica's tender offer
pursuant to R.C. 1707.041(A)(3).
c. Since only the Ohio Division of Securities and the Ohio Department of
Commerce have the statutory authority to enforce the Ohio Securities
Act, and since
-8-
<PAGE>
enforcement action has not been initiated, the issue of whether R.C.
1707.041 is constitutional, is not ripe for review.
d. To the extent that U.S. Shoe is deemed to have the authority to seek
injunctive relief pursuant to R.C. 1707.041, and to the extent that
this Court determines that the constitutionality of R.C. 1707.41 is
ripe for review and is not a moot issue, the Ohio Takeover Act is
constitutional as it is not violative of the Commerce Clause and is
not pre-empted by the Williams Act.
9. U.S. SHOE CLAIM. In violation of the federal proxy rules,
----------------
Luxottica's agent designation proxy materials contain false and misleading
statements regarding Luxottica's negotiations with U.S. Shoe, including claims
that U.S. Shoe has not negotiated with Luxottica in good faith and that U.S.
Shoe management is stalling and negotiating golden parachutes for themselves
instead of negotiating the best deal for shareholders.
PLAINTIFFS' DEFENSE. Until March 31, 1995 U.S. Shoe refused to
-------------------
enter into a confidentiality agreement without unreasonable and burdensome
conditions. Although a more reasonable confidentiality agreement has since been
signed, U.S. Shoe has failed to provide Plaintiffs with the usual and customary
non-public financial information provided in a negotiated transaction. On
information and belief, Plaintiffs believe U.S. Shoe has provided such
information to other interested parties including Nine West.
10. U.S. SHOE CLAIM. Plaintiffs' agent designation proxy materials
----------------
are misleading because they fail to disclose the recent market price for U.S.
Shoe shares. Instead, Plaintiffs say that U.S. Shoe stock traded at prices as
low as $13.50 in 1994, but omit that the share traded at $24 in the third
quarter of 1994. Plaintiffs state that their $24 per share offer
-9-
<PAGE>
is a substantial premium over recent prices, without disclosing that this
represents no premium at all over a price within several months of the offer.
The materials further fail to disclose that the trading price at the time the
proxy materials were distributed was significant more than the $24 per share
offer.
PLAINTIFFS' DEFENSE. The proxy materials are not misleading
--------------------
since they set forth that "Over the past twelve months, the Shares have traded
as low as $13.50 per share. The offer represents more than a 75% premium over
that price and a 28% premium over the reported closing price for the shares on
March 2, 1995, the day before the offer." The Statement fairly describes the
price range of the stock of U.S. Shoe for the last twelve months. The $24 price
in the third quarter occurred immediately after the announcement by the company
of the sale of the shoe division. The price of the stock declined substantially
when it was announced that that sale had been aborted.
11. U.S. SHOE CLAIM. Luxottica's agent designation form is
-----------------
misleading as to the purposes of the Special Meeting which Luxottica intends to
call through the use of agent designations. Someone signing the form would not
understand that the person was giving unlimited discretion to Luxottica to call
a meeting for purposes not expressly stated in the agent designation proxy
materials.
PLAINTIFFS' DEFENSE. Both the agent designation solicitation and
-------------------
the proxy card required to be completed by the shareholders are unambiguous and
grant to the agent the power to add other matters before the Special Meeting.
Plaintiffs' proxy materials accurately describe the authority of agents
designated by shareholders to call a special meeting under Ohio
-10-
<PAGE>
Law and specifically point out that such agents will have no authority to vote
-- ----
on any matter at the Special Meeting.
---
12. U.S. SHOE CLAIM. Luxottica's agent designation solicitation materials
---------------
state that those persons who can call a special meeting of U.S. Shoe are those
record holders of at least fifty per cent of the common shares as of the date of
a call submitted to U.S. Shoe. Under the Ohio Revised Code, the sufficiency of
a call is determined by fifty per cent of those shareholders "entitled to vote
thereat" - meaning those entitled to vote at the special meeting. Whether fifty
per cent of the shareholders have properly called a special meeting must be
determined as of the record date set for such a meeting. Luxottica's materials
are in this respect false and misleading.
PLAINTIFFS' DEFENSE. U.S. Shoe's claim incorrectly interprets Sec.
--------------------
1701.40 of the Ohio Revised Code and is contrary to the following statement set
forth in the March 10, 1995 letter from James J. Crowe, Esq., general counsel of
U.S. Shoe, to Avant-Garde Optics, Inc.: "There is nothing in the OGCL that
expressly contemplates that a special meeting may be called by persons who are
at any time other than the time of the making of such call the holders of
Shares."
VI. PLAINTIFFS' GENERAL DEFENSE TO ALL CLAIMS
Plaintiffs' Schedule 14D-l and amendments thereto, its Offer to
Purchase and its Proxy Materials do not contain any material misstatements of
fact or omissions in view of the total mix of information which has been made
available to shareholders of U.S. Shoe.
Plaintiffs object to the amendment of Counterclaims by U.S. Shoe to
include Plaintiffs' proxy materials.
-11-
<PAGE>
VII. PLAINTIFFS' CLAIMS AND U.S. SHOE'S DEFENSES
PLAINTIFFS' CLAIM. U.S. Shoe's Schedule 14D-9 violates U.S.C. Sec.
------------------
78n(d) and (e), 17 C.F.R. Sec.240.14d-9, Schedule 14D-9 and the instructions to
Schedule 14D-9 because it fails:
a. To disclose material information concerning U.S. Shoe's proposed
sale of its footwear operations to Nine West Group, Inc., including
the Seller Disclosure Schedule, the after-tax proceeds to be generated
by the transaction and the proposed use of such proceeds to maximize
shareholder value in the near term.
b. To state that a vote of shareholders is required under Ohio law
to approve the Nine West transaction and the sale of other U.S. Shoe
businesses.
c. To disclose, except in conclusory statements that violate Item 4
of Schedule 14D-9, the reasons relied upon by U.S. Shoe's directors as
a basis for recommending that shareholders reject Luxottica's Offer
and to disclose information material to shareholders in evaluating the
directors' recommendation and the reasons therefor.
U.S. SHOE'S DEFENSE. U.S. Shoe's Schedule 14D-9 including all
---------------------
amendments comply fully with the requirements of the SEC. It is not required
that U.S. Shoe attach all schedules of the Nine West Agreement, which itself is
a voluminous document and is provided as part of the 14D-9. It is not required
that there be premature disclosure of the after-tax proceeds of the Nine West
transaction, a figure that has not yet been accurately determined. It is not
required that U.S. Shoe announce prematurely what uses will be made of the
proceeds, which have not yet been obtained.
-12-
<PAGE>
The Nine West transaction does not require shareholder approval. The
Footwear Division of U.S. Shoe is not even half of U.S. Shoe under any measure.
It represents about 25% of the revenues and about a third at most of the assets.
When the law firm currently representing Plaintiffs advised U.S. Shoe and its
Directors in 1989 concerning the validity of a transaction then the subject of
contract to sell the Footwear Division of U.S. Shoe to Merrill Lynch Capital
Partners, that law firm did not even raise as an issue that shareholder approval
might have been required as a condition of the transaction. If this were a
serious issue, it would have been raised then. Shareholder approval of the Nine
West transaction is not required. It would be false and misleading even to
suggest that this is so.
The statements of U.S. Shoe and its Board of Directors concerning the
rejection of the Luxottica $24 per share Offer and its recommendation to
shareholders that they not accept it are properly stated and are not false and
misleading in any respect. Including further information about what might occur
in the future would constitute premature speculative announcement of possible
other future actions or transactions and is not required by law.
VIII. MUTUAL DISCLAIMER
By signing this Order, neither the Plaintiffs nor the U.S. Shoe Defendants
agree to the characterizations of the claims and defenses of the other parties.
IT IS SO ORDERED.
-13-
<PAGE>
/s/ James L. Graham
- -------------------------
James L. Graham, D.J.
Dated: _________________, 1995
/s/ Joseph J. Dehner /s/ Thomas B. Ridgley
by Michael Yarbrough per authority from James Gross
by Michael Yarbrough
- -------------------------- --------------------------
Joseph J. Dehner (0011321) Thomas B. Ridgley (0000910)
Trial Attorney Trial Attorney
FROST & JACOBS VORYS, SATER, SEYMOUR AND PEASE
2500 PNC Center 52 East Gay Street
201 East Fifth Street P.O. Box 1008
Cincinnati, Ohio 45202 Columbus, Ohio 43210-1008
(513) 651-6800 (614) 464-6229
Attorneys for U.S. Shoe Defendants WINSTON & STRAWN
175 Water Street
New York, New York 10038
(212) 269-2500
Attorneys for Plaintiffs
ATTORNEY GENERAL OF OHIO
Betty D. Montgomery
/s/ Daniel A. Malkoff
by Michael Yarbrough
- -----------------------------
Daniel A.Malkoff (0029917)
30 East Broad Street, 26th Floor
Columbus, Ohio 43215-3428
(614) 466-2980
-14-
Exhibit (g)(15)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LUXOTTICA GROUP S.p.A., et al., :
------
Plaintiffs, :
v. : Civil Action No. C2-95-244
THE UNITED STATES SHOE : Judge James L. Graham
CORPORATION, et al.,
------
:
Defendants.
:
PLAINTIFFS' REPLY TO SECOND AMENDED COUNTERCLAIM
OF DEFENDANT THE UNITED STATES SHOE CORPORATION
-----------------------------------------------
Plaintiffs Luxottica Group S.p.A, Avant-Garde
Optics, Inc., and Luxottica Acquisition Corp. (collectively
"Luxottica") reply to the Second Amended Counterclaim of
Defendant The United States Shoe Corporation ("U.S. Shoe") as
follows:
1. Luxottica states that the "Offer",
"Commitment Letter", "14D-1" (including all amendments), and
"Fourth Amendment" (all defined in the Second Amended
Counterclaim) each speaks for itself, and denies all allegations
in the Second Amended Counterclaim not consistent with their
terms.
2. Responding to paragraph 166 of the Second
Amended Counterclaim, Luxottica admits that U.S. Shoe is
asserting Counterclaims, but denies that U.S. Shoe is entitled
to the relief requested. Luxottica denies the remaining
allegations of this paragraph.
3. Responding to paragraph 167 of the Second Amended
Counterclaim, Luxottica admits that the Court has subject matter
jurisdiction over Counts I through VII and X through XIV of the
Second Amended Counterclaim, and that those claims purport to
arise from the federal securities laws, but denies that U.S.
Shoe is entitled to the relief requested under any of those
Counts. Luxottica denies the remaining allegations of this
paragraph.
4. Responding to paragraph 168 of the Second Amended
Counterclaim, Luxottica admits that the Court has subject matter
jurisdiction over Count VIII of the Second Amended Counterclaim,
and that this claim purports to arise under state law, but
denies that U.S. Shoe is entitled to the relief requested, and
further denies that U.S. Shoe has standing to bring Count VIII
insofar as it seeks relief under Ohio Rev. Code Sec. 1707.042.
Luxottica notes that U.S. Shoe has voluntarily dismissed Count
<PAGE>
IX. Luxottica further notes that Count VIII was mooted by the
Court's Order of March 23, 1995. Luxottica denies the remaining
allegations of this paragraph.
5. Luxottica admits the allegations of paragraph 169
of the Second Amended Counterclaim.
6. Luxottica admits the allegations of paragraph 170
of the Second Amended Counterclaim.
7. Luxottica admits the allegations in the first
sentence of paragraph 171 of the Second Amended Counterclaim.
Responding to the second, third, and fourth sentences of this
paragraph, Luxottica states that the Offer to Purchase speaks
for itself, and denies all allegations in those sentences not
consistent with its terms.
8. Luxottica admits the allegations of paragraph 172
of the Second Amended Counterclaim.
9. Responding to paragraph 173 of the Second Amended
Counterclaim, Luxottica states that the 14D-1 (including all
amendments) speaks for itself, and denies all allegations in
this paragraph not consistent with its terms.
10. Responding to paragraph 174 of the Second Amended
Counterclaim, Luxottica states that Schedule 14D-1 speaks for
itself. Luxottica denies the remaining allegations of this
paragraph.
11. Responding to paragraph 175 of the Second Amended
Counterclaim, Luxottica states that the Commitment Letter and
the 14D-1 each speaks for itself, and denies all allegations in
this paragraph not consistent with their terms.
12. Responding to paragraph 176 of the Second Amended
Counterclaim, Luxottica states that the Offer speaks for
itself, and denies all allegations in this paragraph not
consistent with its terms.
13. Responding to paragraph 177 of the Second Amended
Counterclaim, Luxottica states that the Commitment Letter speaks
for itself, and denies all allegations in this paragraph not
consistent with its terms.
14. Responding to paragraph 178 of the Second Amended
Counterclaim, Luxottica states that the Commitment Letter speaks
for itself, and denies all allegations in this paragraph not
consistent with its terms.
15. Responding to paragraph 179 of the Second Amended
Counterclaim, Luxottica states that the Commitment Letter speaks
for itself, and denies all allegations in this paragraph not
consistent with its terms.
<PAGE>
16. Responding to paragraph 180 of the Second Amended
Counterclaim, Luxottica states that the Commitment Letter speaks
for itself, and denies all allegations in this paragraph not
consistent with its terms.
17. Responding to paragraph 181 of the Second Amended
Counterclaim, Luxottica states that the Commitment Letter speaks
for itself, and denies all allegations in this paragraph not
consistent with its terms.
18. Responding to paragraph 182 of the Second Amended
Counterclaim, Luxottica states that the Commitment Letter speaks
for itself, and denies all allegations in this paragraph not
consistent with its terms.
19. Responding to paragraph 183 of the Second Amended
Counterclaim, Luxottica states that the Commitment Letter speaks
for itself, and denies all allegations in this paragraph not
consistent with its terms.
20. Responding to paragraph 184 of the Second Amended
Counterclaim, Luxottica states that the Fourth Amendment speaks
for itself, and denies all allegations in this paragraph not
consistent with its terms.
21. Responding to paragraph 185 of the Second Amended
Counterclaim, Luxottica states that the Fourth Amendment speaks
for itself, and denies all allegations in this paragraph not
consistent with its terms.
22. Luxottica is without knowledge or information
sufficient to form a belief as to the truth of paragraph 186 of
the Second Amended Counterclaim.
23. Luxottica admits the allegations of paragraph 187
of the Second Amended Counterclaim.
24. Luxottica is without knowledge or information
sufficient to form a belief as to the truth of paragraph 188 of
the Second Amended Counterclaim.
25. Responding to the third sentence of paragraph 189
of the Second Amended Counterclaim, Luxottica admits that
LensCrafters purchased approximately $5,524,000 in frames from
Luxottica. Luxottica is without knowledge or information
sufficient to form a belief as to the truth of the remaining
allegations in the first three sentences of this paragraph.
Luxottica denies the remaining allegations of this paragraph.
26. Responding to paragraph 190 of the Second Amended
Counterclaim, Luxottica states that the Del Vecchio Family
controls approximately 71.5% of Luxottica Group S.p.A.
<PAGE>
27. Responding to paragraph 191 of the Second Amended
Counterclaim, Luxottica states that the cited article speaks for
itself. Luxottica denies the remaining allegations of this
paragraph.
28. Responding to paragraph 192 of the Second Amended
Counterclaim, Luxottica states that the cited article speaks for
itself. Luxottica denies the remaining allegations of this
paragraph.
29. Responding to paragraph 193 of the Second Amended
Counterclaim, Luxottica states that the cited article speaks for
itself. Luxottica denies the remaining allegations of this
paragraph.
30. Responding to paragraph 194 of the Second Amended
Counterclaim, Luxottica incorporates the statements in
paragraphs 1 through 29 of this Reply to the Second Amended
Counterclaim.
31. Responding to paragraph 195 of the Second Amended
Counterclaim, Luxottica states that Schedule 14D-1 speaks for
itself. Luxottica denies the remaining allegations of this
paragraph.
32. Luxottica denies the remaining allegations of
paragraph 196 of the Second Amended Counterclaim.
33. Luxottica denies the allegations of paragraph 197
of the Second Amended Counterclaim.
34. Luxottica denies the allegations of paragraph 198
of the Second Amended Counterclaim.
35. Luxottica denies the allegations of paragraph 199
of the Second Amended Counterclaim.
36. Luxottica denies the allegations of paragraph 200
of the Second Amended Counterclaim.
37. Responding to paragraph 201 of the Second Amended
Counterclaim, Luxottica incorporates the statements in
paragraphs 1 through 36 of this Reply to the Second Amended
Counterclaim.
38. Responding to paragraph 202 of the Second Amended
Counterclaim, Luxottica states that Schedule 14D-1 speaks for
itself. Luxottica denies the remaining allegations of this
paragraph.
39. Responding to paragraph 203 of the Second Amended
Counterclaim, Luxottica states that Schedule 14D-1 speaks for
itself. Luxottica denies the remaining allegations of this
paragraph.
<PAGE>
40. Luxottica denies the allegations of paragraph 204
of the Second Amended Counterclaim.
41. Luxottica denies the allegations in the first
sentence of paragraph 205 of the Second Amended Counterclaim.
Responding to the second, third, and fourth sentences of this
paragraph, Luxottica states that the Offer and Commitment Letter
each speaks for itself, and denies all allegations in this
paragraph not consistent with their terms.
42. Responding to paragraph 206 of the Second Amended
Counterclaim, Luxottica states that the Offer and Commitment
Letter each speaks for itself, and denies all allegations in
this paragraph not consistent with their terms.
43. Luxottica denies all allegations of paragraph 207
of the Second Amended Counterclaim.
44. Luxottica denies all allegations of paragraph 208
of the Second Amended Counterclaim.
45. Luxottica denies all allegations of paragraph 209
of the Second Amended Counterclaim.
46. Responding to paragraph 210 of the Second Amended
Counterclaim, Luxottica incorporates the statements in
paragraphs 1 through 45 of this Reply to the Second Amended
Counterclaim.
47. Responding to paragraph 211 of the Second Amended
Counterclaim, Luxottica states that Schedule 14D-1, Item 10(f),
speaks for itself. Luxottica denies the remaining allegations
of this paragraph.
48. Responding to paragraph 212 of the Second Amended
Counterclaim, Luxottica states that Schedule 14D-1, General
Instruction C, speaks for itself. Luxottica denies the
remaining allegations of this paragraph.
49. Luxottica denies all allegations of paragraph
213 of the Second Amended Counterclaim.
50. Luxottica denies all allegations of paragraph 214
of the Second Amended Counterclaim.
51. Luxottica denies all allegations of paragraph 215
of the Second Amended Counterclaim.
52. Responding to paragraph 216 of the Second Amended
Counterclaim, Luxottica incorporates the statements in
paragraphs 1 through 51 of this Reply to the Second Amended
Counterclaim.
<PAGE>
53. Responding to paragraph 217 of the Second Amended
Counterclaim, Luxottica states that Schedule 14D-1, Item 5,
speaks for itself. Luxottica denies the remaining allegations
of this paragraph.
54. Responding to paragraph 218 of the Second Amended
Counterclaim, Luxottica states that the Offer, Commitment
Letter, and Fourth Amendment each speaks for itself, and denies
all allegations in this paragraph not consistent with their
terms.
55. Luxottica denies the allegations of paragraph 219
of the Second Amended Counterclaim.
56. Luxottica denies the allegations of paragraph 220
of the Second Amended Counterclaim.
57. Luxottica denies the allegations of paragraph 221
of the Second Amended Counterclaim.
58. Responding to paragraph 222 of the Second Amended
Counterclaim, Luxottica incorporates the statements in
paragraphs 1 through 57 of this Reply to the Second Amended
Counterclaim.
59. Responding to paragraph 223 of the Second Amended
Counterclaim, Luxottica is without knowledge or information
sufficient to form a belief as to the truth of the last two
clauses of this paragraph. Luxottica further states that the
Fourth Amendment speaks for itself, and denies all allegations
of this paragraph not consistent with its terms.
60. Luxottica denies all allegations of paragraph 224
of the Second Amended Counterclaim.
61. Luxottica denies all allegations of paragraph 225
of the Second Amended Counterclaim.
62. Luxottica denies all allegations of paragraph 226
of the Second Amended Counterclaim.
63. Responding to paragraph 227 of the Second Amended
Counterclaim, Luxottica incorporates the statements in
paragraphs 1 through 62 of this Reply to the Second Amended
Counterclaim.
64. Responding to paragraph 228 of the Second Amended
Counterclaim, Luxottica states that the Offer and Commitment
Letter each speaks for itself, and denies all allegations in
this paragraph not consistent with their terms.
65. Luxottica denies all allegations of paragraph 229
of the Second Amended Counterclaim.
<PAGE>
66. Luxottica denies the allegations of paragraph 230
of the Second Amended Counterclaim.
67. Luxottica denies the allegations of paragraph 231
of the Second Amended Counterclaim.
68. Responding to paragraph 232 of the Second Amended
Counterclaim, Luxottica incorporates the statements in
paragraphs 1 through 67 of this Reply to the Second Amended
Counterclaim.
69. Luxottica admits the allegations of paragraph 233
of the Second Amended Counterclaim.
70. Responding to paragraph 234 of the Second Amended
Counterclaim, Luxottica states that the Schedule III of the
Proxy Statement speaks for itself, and denies all allegations in
this paragraph not consistent with its terms.
71. Luxottica denies the allegations of paragraph 235
of the Second Amended Counterclaim.
72. Luxottica denies the allegations of paragraph 236
of the Second Amended Counterclaim.
73. Luxottica admits the allegations of paragraph 237
of the Second Amended Counterclaim.
74. Responding to paragraph 238 of the Second Amended
Counterclaim, Luxottica states that the Proxy Statement speaks
for itself, and denies all allegations in this paragraph not
consistent with its terms.
75. Responding to paragraph 239 of the Second Amended
Counterclaim, Luxottica states that the Schedule 13G speaks for
itself, and denies all allegations in this paragraph not
consistent with its terms.
76. Responding to paragraph 240 of the Second Amended
Counterclaim, Luxottica states that the Schedule 13G speaks for
itself, and denies all allegations in this paragraph not
consistent with its terms.
77. Luxottica denies the allegations of paragraph 241
of the Second Amended Counterclaim.
78. Luxottica denies the allegations of paragraph 242
of the Second Amended Counterclaim.
79. Luxottica denies the allegations of paragraph 243
of the Second Amended Counterclaim.
80. Luxottica notes that Count VIII of the Second
Amended Counterclaim was mooted by the Court's Order of March
<PAGE>
23, 1995. To the extent any further response to paragraph 244
is required, Luxottica incorporates the statements in paragraphs
1 through 79 of this Reply to the Second Amended Counterclaim.
81. Luxottica notes that Count VIII of the Second
Amended Counterclaim was mooted by the Court's Order of March
23, 1995. To the extent any further response to paragraph 245
is required, Luxottica admits the allegations of this paragraph.
82. Luxottica notes that Count VIII of the Second
Amended Counterclaim was mooted by the Court's Order of March
23, 1995. To the extent any further response to paragraph 246
is required, Luxottica admits the allegations of this paragraph.
83. Luxottica notes that Count VIII of the Second
Amended Counterclaim was mooted by the Court's Order of March
23, 1995. To the extent any further response to paragraph 247
is required, Luxottica denies the allegations of this paragraph.
84. Luxottica notes that Count VIII of the Second
Amended Counterclaim was mooted by the Court's Order of March
23, 1995. To the extent any further response to paragraph 248
is required, Luxottica states that Ohio Revised Code speaks for
itself. Luxottica denies the remaining allegations of this
paragraph.
85. Luxottica notes that Count VIII of the Second
Amended Counterclaim was mooted by the Court's Order of March
23, 1995. To the extent any further response to paragraph 249
is required, Luxottica denies the allegations of this paragraph.
86. Luxottica notes that Count VIII of the Second
Amended Counterclaim was mooted by the Court's Order of March
23, 1995. To the extent any further response to paragraph 250
is required, Luxottica denies the remaining allegations of this
paragraph.
87. Luxottica notes that Count VIII of the Second
Amended Counterclaim was mooted by the Court's Order of March
23, 1995. To the extent any further response to paragraph 251
is required, Luxottica denies the allegations of this paragraph.
88. Luxottica notes that U.S. Shoe has voluntarily
dismissed Count IX of the Second Amended Complaint. To the
extent any further response to paragraph 252 is required,
Luxottica incorporates the statements in paragraphs 1 through 87
of this Reply to the Second Amended Counterclaim.
89. Luxottica notes that U.S. Shoe has voluntarily
dismissed Count IX of the Second Amended Complaint. To the
extent any further response to paragraph 253 is required,
Luxottica states that Ohio Rev. Code Sec. 1707.041 speaks for
itself. Luxottica denies the remaining allegations of this
paragraph.
<PAGE>
90. Luxottica notes that U.S. Shoe has voluntarily
dismissed Count IX of the Second Amended Complaint. To the
extent any further response to paragraph 254 is required,
Luxottica states that Ohio Rev. Code Sec. 1707.041 speaks for
itself. Luxottica denies the remaining allegations of this
paragraph.
91. Luxottica notes that U.S. Shoe has voluntarily
dismissed Count IX of the Second Amended Complaint. To the
extent any further response to paragraph 255 is required,
Luxottica denies the allegations of this paragraph 255.
92. Luxottica notes that U.S. Shoe has voluntarily
dismissed Count IX of the Second Amended Complaint. To the
extent any further response to paragraph 256 is required,
Luxottica denies the allegations of this paragraph.
93. Luxottica notes that U.S. Shoe has voluntarily
dismissed Count IX of the Second Amended Complaint. To the
extent any further response to paragraph 257 is required,
Luxottica denies the allegations of this paragraph.
94. Responding to paragraph 258 of the Second Amended
Counterclaim, Luxottica incorporates the statements in
paragraph 1 through 93 of this Reply to the Second Amended
Counterclaim.
95. Responding to paragraph 259 of the Second Amended
Counterclaim, Luxottica states that 17 C.F.R. Sec. 240.14a-9(a)
speaks for itself. Luxottica denies the remaining allegations
of this paragraph.
96. Luxottica denies the allegations in the first
sentence of paragraph 260 of the Second Amended Counterclaim.
Responding to the second sentence of this paragraph, Luxottica
states that the quoted letter speaks for itself, and denies all
allegations in this paragraph not consistent with its terms.
97. Responding to paragraph 261 of the Second Amended
Counterclaim, Luxottica states that the quoted letter speaks for
itself, and denies all allegations in this paragraph not
consistent with its terms.
98. Luxottica denies the allegations in the first
sentence of paragraph 262 of the Second Amended Counterclaim.
Responding the second sentence of this paragraph, Luxottica
states that the Solicitation Statement speaks for itself, and
denies all allegations in this paragraph not consistent with
their terms.
99. Luxottica denies the allegations of paragraph 263
of the Second Amended Counterclaim.
<PAGE>
100. Luxottica denies the allegations of paragraph 264
of the Second Amended Counterclaim.
101. Luxottica denies the allegations of paragraph 265
of the Second Amended Counterclaim.
102. Responding to paragraph 266 of the Second Amended
Counterclaim, Luxottica incorporates the statements in
paragraphs 1 through 101 of this Reply to the Second Amended
Counterclaim.
103. Luxottica denies all allegations in the first
sentence of paragraph 267 of the Second Amended Counterclaim.
Responding the second and third sentences of this paragraph,
Luxottica states that the Solicitation Statement speaks for
itself, and denies all allegations in this paragraph not
consistent with their terms.
104. Responding to the allegations in the first
sentence of paragraph 268 of the Second Amended Counterclaim,
Luxottica states that the $24 per share trading price in the
quarter ended October 29, 1994 was disclosed in the Offer, that
such $24 per share price was reached shortly after the public
announcement of a proposal by Nine West for a transaction with
U.S. Shoe, and the price declined shortly thereafter when U.S.
Shoe's Board of Directors rejected the proposal, and that other
information about the price of U.S. Shoe shares is publicly
available to the holders of shares, and Luxottica was not
required to include it in the Solicitation Statement.
105. Luxottica denies the allegations of paragraph 269
of the Second Amended Counterclaim.
106. Luxottica denies the allegations of paragraph 270
of the Second Amended Counterclaim.
107. Responding to paragraph 271 of the Second Amended
Counterclaim, Luxottica incorporates the statements in
paragraphs 1 through 106 of this Reply to the Second Amended
Counterclaim.
108. Responding to paragraph 272 of the Second Amended
Counterclaim, Luxottica states that the Schedule III of the
Solicitation Statement speaks for itself, and denies all
allegations in this paragraph not consistent with its terms.
109. Luxottica denies the allegations of paragraph 273
of the Second Amended Counterclaim.
110. Luxottica denies the allegations of paragraph 274
of the Second Amended Counterclaim.
111. Luxottica denies the allegations of paragraph 275
of the Second Amended Counterclaim.
<PAGE>
112. Luxottica denies the allegations of paragraph 276
of the Second Amended Counterclaim.
113. Responding to paragraph 277 of the Second Amended
Counterclaim, Luxottica incorporates the statements in
paragraphs 1 through 112 of this Reply to the Second Amended
Counterclaim.
114. Responding to paragraph 278 of the Second Amended
Counterclaim, Luxottica states that the Agent Designation Form
speaks for itself, and denies all allegations in this paragraph
not consistent with its terms.
115. Responding to the first sentence of paragraph 279
of the Second Amended Counterclaim, Luxottica states that the
Solicitation Statement speaks for itself, and denies all
allegations in this paragraph not consistent with its terms.
Luxottica denies the allegations in the second sentence of this
paragraph.
116. Luxottica denies the allegations of paragraph 280
of the Second Amended Counterclaim.
117. Luxottica denies the allegations of paragraph 280
of the Second Amended Counterclaim.
118. Luxottica denies the allegations of paragraph 282
of the Second Amended Counterclaim.
119. Responding to paragraph 283 of the Second Amended
Counterclaim, Luxottica incorporates the statements in
paragraphs 1 through 118 of this Reply to the Second Amended
Counterclaim.
120. Responding to paragraph 284 of the Second Amended
Counterclaim, Luxottica states that the Solicitation Statement
for Agent Designations speaks for itself, and denies all
allegations in this paragraph not consistent with its terms.
121. Luxottica denies the allegations of paragraph 285
of the Second Amended Counterclaim.
122. Responding to paragraph 286 of the Second Amended
Counterclaim, Luxottica states that the Ohio Rev. Code Sec.
1701.40(A)(3) speaks for itself. Luxottica denies the remaining
allegations of this paragraph.
123. Luxottica denies the allegations of paragraph 287
of the Second Amended Counterclaim to the extent they are
inconsistent with the Ohio Revised Code.
124. Luxottica denies the allegations of paragraph 288
of the Second Amended Counterclaim to the extent they are
inconsistent with the Ohio Revised Code.
<PAGE>
125. Luxottica denies the allegations of paragraph 289
of the Second Amended Counterclaim to the extent they are
inconsistent with the Ohio Revised Code.
126. Luxottica denies the allegations of paragraph 290
of the Second Amended Counterclaim to the extent they are
inconsistent with the Ohio Revised Code.
127. Luxottica denies the allegations of paragraph 291
of the Second Amended Counterclaim to the extent they are
inconsistent with the Ohio Revised Code.
128. Luxottica denies the allegations of paragraph 292
of the Second Amended Counterclaim.
129. Responding to paragraph 293 of the Second Amended
Counterclaim, Luxottica states that the Solicitation Statement
for Agent Designations speaks for itself, and denies all
allegations in this paragraph not consistent with its terms.
130. Luxottica denies the allegations of paragraph 294
of the Second Amended Counterclaim.
131. Luxottica denies the allegations of paragraph 295
of the Second Amended Counterclaim to the extent they are
inconsistent with the Ohio Revised Code.
132. Luxottica denies the allegations of paragraph 296
of the Second Amended Counterclaim.
133. Luxottica denies the allegations of paragraph 297
of the Second Amended Counterclaim.
134. Luxottica denies the allegations of paragraph 298
of the Second Amended Counterclaim.
135. Luxottica denies any allegations not expressly
admitted in paragraph 1 through 134 of this Reply to the Second
Amended Counterclaim.
AFFIRMATIVE DEFENSES
--------------------
First Defense
-------------
(Failure to State a Claim)
136. Second Amended Counterclaim fails to state a
claim, in whole or in part, upon which relief can be granted.
<PAGE>
Second Defense
---------------
(Absence of Standing)
137. U.S. Shoe lacks standing to assert Count VIII
insofar as it seeks relief under Ohio Rev. Code Sec. 1707.042, and
may lack standing to assert one or more of the remaining Counts
of the Second Amended Counterclaim.
Third Defense
-------------
(Unclean Hands/Estoppel)
138. U.S. Shoe is estopped and not entitled to
equitable relief on any Count of the Second Amended
Counterclaim, on the grounds of unclean hands, because U.S. Shoe
has made misstatements and omissions of material fact (including
misstatements and omissions of material fact in their Schedule
14D-9, as described in paragraphs 151 through 158 of Luxottica's
Third Amended Complaint).
Fourth Defense
--------------
(Mootness)
139. U.S. Shoe is not entitled to relief on any Count
of the Second Amended Counterclaim. The increase in the total
mix of information available to investors since the filing of
the Counterclaim, Amended Counterclaim, and Second Amended
Counterclaim has made Counts I through VIII and X through XIV
moot. Luxottica further notes that Count VIII was mooted by the
Court's Order of March 23, 1995.
WHEREFORE, Plaintiffs Luxottica Group S.p.A., Avant-
Garde Optics, Inc., and Luxottica Acquisition Corp. pray that
this Court dismiss the Second Amended Counterclaim of Defendant
The United States Shoe Corporation, and that Plaintiffs be
awarded their costs.
/s/ Thomas B. Ridgley
by Laura G. Kuykendall
--------------------------------
Thomas B. Ridgley (0000910)
Trial Attorney
VORYS, SATER, SEYMOUR AND PEASE
52 East Gay Street
P.O. Box 1008
Columbus, Ohio 43256-1008
(614) 464-6259
Attorneys for Plaintiffs
<PAGE>
OF COUNSEL:
WINSTON & STRAWN
Anthony J. D'Auria
Joseph A. DiBenedetto
255 Water Street
New York, New York 10038
(252) 269-2500
VORYS, SATER, SEYMOUR AND PEASE
Laura G. Kuykendall (0012591)
52 East Gay Street
P.O. Box 1008
Columbus, Ohio 43256-1008
(614) 464-6400
<PAGE>
CERTIFICATE OF SERVICE
----------------------
The undersigned hereby certifies that a copy of the
foregoing Plaintiffs' Reply To Second Amended Counterclaim Of
Defendant The United States Shoe Corporation was served this
11th day of April, 1995, upon:
Joseph J. Dehner, Esq. (via hand delivery)
Frost & Jacobs
2500 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
Daniel Malkoff, Esq. (via hand delivery)
Assistant Attorney General
State Office Tower
26th Floor
Columbus, Ohio 43215
/s/ Laura G. Kuykendall
-------------------------------
Laura G. Kuykendall
