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Control Share Meeting
Securities and Exchange Commission
Washington, D.C. 20549
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(A)
of the Securities Exchange Act of 1934
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [X]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Section 240.14a-11(c) or
Section 240.14a-12
Acme-Cleveland Corporation
(Name of Registrant as Specified in its Charter)
Danaher Corporation
WEC Acquisition Corporation
(Name of Person(s) Filing Proxy Statement)
--------------------
Payment of Filing Fee (Check the appropriate box):
[ ] $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), or
14a-6(j)(2).
[ ] $500 per each party to the controversy pursuant to Exchange
Act Rule 14a-6(i)(3).
[X] Fee computed on table below per Exchange Act Rules
14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
Common Shares, par value $1 per share ("Common Shares"), and Series A
Convertible Preferred Shares, without par value (the "Preferred
Shares and, together with the Common Shares, the "Shares")
(2) Aggregate number of securities to which transaction
applies: 6,737,786 Shares, consisting of 6,411,578
Common Shares, 161,374 Preferred Shares and 469,834 Shares
issuable upon conversion of Options
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(less 305,000 Shares owned by Parent or any of its affiliates).
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was determined): As
provided by Rule 0-11(c), the filing fee is based upon 1/50th of 1%
of $27, the amount to be paid per Share, multiplied by 6,737,786
Shares.
(4) Proposed maximum aggregate value of transaction:
$181,920,222
(5) Total fee paid: $36,384.04
[X] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid: $36,384.04
(2) Form, Schedule or Registration Statement No.: Schedule
14D-1
(3) Filing Party: WEC Acquisition Corporation and Danaher
Corporation
(4) Date Filed: March 8, 1996
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Preliminary Materials
------------------------------------
These materials were originally filed on March 8, 1996 and are being refiled to
change the EDGAR header information.
------------------------------------
The information included herein is as it is expected to be
when the definitive proxy statement is mailed
to shareholders of Acme-Cleveland Corporation.
This proxy statement will be revised to reflect
actual facts at the time of filing of
the definitive proxy statement.
------------------------
Proxy Statement
of
Danaher Corporation
and
WEC Acquisition Corporation
for the
Special Meeting of Shareholders
Under Section 1701.831
of the Ohio Revised Code
of
Acme-Cleveland Corporation
To Be Held On April __, 1996
This Proxy Statement is furnished by Danaher Corporation ("Parent"), a
Delaware corporation, and by WEC Acquisition Corporation (the "Purchaser"), a
Delaware corporation and a wholly owned subsidiary of Parent, in connection
with their solicitation of proxies to be used for the purposes described
herein at the Special Meeting of Shareholders of Acme-Cleveland Corporation, an
Ohio corporation ("the "Company"), to be held on April __, 1996, and at any
adjournments or postponements thereof (the "Special Meeting"). This Proxy
Statement and the accompanying BLUE Proxy card are first being sent or given
to shareholders on or about March , 1996. The record date for the Special
Meeting is March __, 1996 (the "Record Date"). The principal executive offices
of the Company are located at 30100 Chagrin Boulevard, Suite 100, Pepper Pike,
Ohio 44124-5705.
Parent and the Purchaser are soliciting proxies to authorize, in
accordance with Section 1701.831 (the "Ohio Control Share Acquisition Law") of
the Ohio Revised Code (the "ORC"), the acquisition by Parent or the Purchaser
(or one or more subsidiaries of Parent) of Common Shares, par value $1 per
share, and Series A Convertible Preferred Shares, without par value
(collectively, the "Shares"), of the Company that, when added to all other
Shares in respect of which Parent and the Purchaser may exercise or direct
voting power in the election of the Company's directors, would entitle Parent
and the Purchaser to exercise a majority or more of such voting power.
On March 7, 1996, the Purchaser commenced a tender offer to purchase
(the "Offer") all of the outstanding Shares for $27 net per Share in cash upon
the terms and subject to the conditions set forth in an Offer to Purchase
dated March 7, 1996, as the
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same may be amended from time to time (the "Offer to Purchase"), and the
related Letter of Transmittal (the "Letter of Transmittal").
As more fully described below under "Ohio Control Share Acquisition
Law," the Ohio Control Share Acquisition Law requires shareholder
authorization to be obtained before any person may acquire any interest in
Shares that would entitle such person directly or indirectly to control 20% or
more of the voting power of the Company in the election of its directors. The
Special Meeting of shareholders of the Company has been called by the
Company's Board of Directors pursuant to the Ohio Control Share Acquisition
Law for the purpose of voting on the acquisition (the "Acquisition Proposal")
of outstanding Shares by the Purchaser or Parent (or one or more subsidiaries
of Parent) as contemplated by and in accordance with the terms and conditions
of the Offer to Purchase. The Special Meeting is scheduled to be held on April
__, 1996 at a time and place to be announced by the Company in the notice of
the Special Meeting to be sent by the Company to the Company's shareholders.
SHARES WILL NOT BE ACCEPTED FOR PAYMENT PURSUANT TO THE OFFER UNLESS,
AMONG OTHER THINGS, (I) THE ACQUISITION BY THE PURCHASER OF SHARES PURSUANT TO
THE OFFER IS AUTHORIZED BY THE SHAREHOLDERS OF THE COMPANY AT THE SPECIAL
MEETING OR (II) THE PURCHASER, IN ITS SOLE DISCRETION, IS SATISFIED THAT THE
PROVISIONS OF THE OHIO CONTROL SHARE ACQUISITION LAW ARE INVALID OR
INAPPLICABLE TO SUCH ACQUISITION. ACCORDINGLY, IF YOU WANT THE OPPORTUNITY TO
RECEIVE $27 NET PER SHARE IN CASH PURSUANT TO THE OFFER, YOU SHOULD AUTHORIZE
THE ACQUISITION PROPOSAL.
YOUR VOTE IS IMPORTANT. PLEASE SIGN, DATE AND RETURN THE ACCOMPANYING
BLUE PROXY CARD TODAY. IF YOU WANT THE OPPORTUNITY TO RECEIVE $27 NET PER
SHARE IN CASH PURSUANT TO THE OFFER, WE URGE YOU TO SIGN AND MAIL PROMPTLY THE
ENCLOSED PROXY IN FAVOR OF THE ACQUISITION PROPOSAL.
SHAREHOLDER AUTHORIZATION OF THE ACQUISITION PROPOSAL WILL NOT
REQUIRE YOU TO TENDER YOUR SHARES TO THE PURCHASER. CONSUMMATION OF THE OFFER,
HOWEVER, IS CONDITIONED UPON AUTHORIZATION BY SHAREHOLDERS OF THE COMPANY OF
THE ACQUISITION PROPOSAL TO THE EXTENT REQUIRED BY LAW. ACCORDINGLY, IT IS
IMPORTANT THAT SHAREHOLDERS WHO WISH TO TENDER THEIR SHARES TO THE PURCHASER
PURSUANT TO THE OFFER VOTE FOR THE AUTHORIZATION OF THE ACQUISITION PROPOSAL
ON THE ENCLOSED BLUE PROXY CARD.
Tendering Shares pursuant to the Offer will NOT constitute a vote in
favor of the Acquisition Proposal. Instead you must vote by using the enclosed
BLUE proxy card or by voting in person at the Special Meeting.
If you have any questions about the voting of Shares, the
Offer or the Acquisition Proposal, please call ___________________.
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VOTING AT THE SPECIAL MEETING
At the Special Meeting, shareholders will be asked to authorize the
Acquisition Proposal, which requires (i) the affirmative vote of the holders
of a majority of the Shares present at the Special Meeting in person or by
proxy, (ii) the affirmative vote of the holders of a majority of such Shares
excluding Shares which are "Interested Shares" (as such term is defined below)
and (iii) the presence of a quorum at the Special Meeting. The Ohio Control
Share Acquisition Law provides that a quorum shall be deemed to be present at
the Special Meeting if at least a majority of the Shares, and a majority of
the Shares excluding those that are "Interested Shares," are represented at
such meeting in person or by proxy.
Shareholders of the Company will be asked (i) to approve a resolution
of the Company's shareholders authorizing the Acquisition Proposal and (ii) to
confer authority to the proxies named in the accompanying proxy to initiate
and vote for a proposal to adjourn the Special Meeting to allow the
solicitation of additional votes, if necessary, to authorize the Acquisition
Proposal under the Ohio Control Share Acquisition Law (the "Adjournment
Proposal"). According to the Company's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1995, as of January 25, 1996, there were 6,411,578
Common Shares and 161,374 Preferred Shares outstanding, each of which is
entitled to one vote on the Acquisition Proposal (provided that, as described
herein, votes of Shares which are "Interested Shares" may be excluded for
certain purposes) and the Adjournment Proposal.
A VOTE IN FAVOR OF THE ACQUISITION PROPOSAL WILL NOT REQUIRE THAT YOU
TENDER SHARES IN THE OFFER. IT WILL AFFORD SHAREHOLDERS AN OPPORTUNITY TO
DECIDE FOR THEMSELVES WHETHER TO ACCEPT THE OFFER.
Whether or not you plan to attend the Special Meeting, we urge you to
vote FOR authorization of the Acquisition Proposal and FOR the Adjournment
Proposal by so indicating on the accompanying BLUE proxy card and immediately
mailing it in the enclosed envelope. A shareholder may revoke a proxy at any
time before it is voted by delivering a written notice of revocation or a
later dated proxy for the Special Meeting to Acme-Cleveland Corporation,
30100 Chagrin Boulevard, Suite 100, Pepper Pike, Ohio 44124-5705, (please
send a copy of any revocation to Danaher Corporation, c/o
________________________________). Proxies may also be revoked at the Special
Meeting. Attendance at the Special Meeting will not in and of itself revoke a
proxy. Unless revoked in the manner set forth above, proxies in the form
accompanying this Proxy Statement will be voted at the Special Meeting in
accordance with your
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instructions. In the absence of such instructions, such proxies will be voted
FOR the Acquisition Proposal and FOR the Adjournment Proposal.
Any abstention from voting on a proxy which has not been revoked will
count as a vote withheld (and thus will have the same practical effect as a
"no" vote), and will be included in computing the number of Shares present for
purposes of determining whether a quorum is present at the Special Meeting. If
a broker indicates on a proxy which has not been revoked that it does not have
discretionary authority as to certain Shares to vote on the Acquisition
Proposal or the Adjournment Proposal (a "broker non-vote"), those Shares will
also be considered present for purposes of determining the presence of a
quorum but not entitled to vote with respect to the applicable proposal (and
thus a broker non-vote will also have the same practical effect as a "no" vote
on such proposal).
THE OFFER
On March 7, 1996, the Purchaser commenced the Offer. The purpose of
the Offer is to acquire control of, and the entire equity interest in, the
Company. Parent intends, following the completion of the Offer, to effect a
merger or similar business combination between the Company and the Purchaser
or another subsidiary of Parent at the same price per Share to be paid in the
Offer (the "Proposed Merger"), subject to the terms and conditions described
in the Offer to Purchase. The Offer is subject to certain terms and conditions
described in the Offer to Purchase.
The Schedule 14D-1, which includes the Offer to Purchase and was
filed by the Purchaser and Parent with the Commission on March 7, 1996, and all
amendments thereto may be obtained from the Commission, upon payment of the
Commission's customary charges, by writing to its principal office at 450
Fifth Street, N.W., Judiciary Plaza, Room 1024, Washington, D.C. 20549. Such
material is also available for inspection and copying at the principal office
of the Commission at the address set forth immediately above, at the
Commission's regional offices at Seven World Trade Center, 13th Floor, New
York, New York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661, and at the offices of the New York Stock Exchange, 20
Broad Street, New York, New York 10005. Such material should also be available
on-line through EDGAR.
IF THE ACQUISITION PROPOSAL IS NOT AUTHORIZED BY THE SHAREHOLDERS OF
THE COMPANY AT THE SPECIAL MEETING, THEN SHARES WILL NOT BE ACCEPTED FOR
PAYMENT PURSUANT TO THE OFFER UNLESS THE PURCHASER IS SATISFIED, IN ITS SOLE
DISCRETION, THAT THE PROVISIONS OF THE OHIO CONTROL SHARE ACQUISITION LAW ARE
INVALID
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OR INAPPLICABLE TO THE ACQUISITION BY THE PURCHASER OF SHARES
PURSUANT TO THE OFFER.
BY VOTING IN FAVOR OF THE ACQUISITION PROPOSAL, A SHAREHOLDER IS NOT
REQUIRED TO TENDER SHARES IN THE OFFER AND WOULD NOT BE PROHIBITED FROM LATER
VOTING AGAINST ANY OTHER PROPOSED CONTROL SHARE ACQUISITION OR BUSINESS
COMBINATION INVOLVING THE COMPANY, PARENT OR THE PURCHASER. SHAREHOLDER
AUTHORIZATION OF THE ACQUISITION PROPOSAL WOULD SIMPLY GIVE YOU THE
OPPORTUNITY TO SELL YOUR SHARES TO PURCHASER PURSUANT TO THE OFFER.
OHIO CONTROL SHARE ACQUISITION LAW
The Ohio Control Share Acquisition Law provides that unless the
articles of incorporation or the regulations of an issuing public corporation
provide otherwise, any control share acquisition of such corporation shall be
made only with the prior authorization of the shareholders. An "issuing public
corporation" is a corporation organized for profit under the laws of Ohio,
with 50 or more shareholders, that has its principal place of business,
principal executive offices or substantial assets in Ohio, and as to which
there is no close corporation agreement in existence. The Company is an
issuing public corporation, as so defined.
A "control share acquisition" means the acquisition, directly or
indirectly, by any person of shares of an issuing public corporation that,
when added to all other shares of the issuing public corporation in respect of
which such person may exercise or direct the exercise of voting power, would
entitle such person, immediately after such acquisition, directly or
indirectly, alone or with others, to control any of the following ranges of
voting power of such issuing public corporation in the election of directors:
(a) one-fifth or more but less than one-third of such voting power, (b)
one-third or more but less than a majority of such voting power, or (c) a
majority or more of such voting power. An acquisition of shares of an issuing
public corporation, however, does not constitute a control share acquisition
if, among other things, the acquisition is consummated pursuant to a merger or
consolidation effected in compliance with the ORC if the issuing public
corporation is the surviving or new corporation in the merger or consolidation
or is the acquiring corporation in the combination or majority share
acquisition.
Any person who proposes to make a control share acquisition must
deliver an "acquiring person statement" to the issuing public corporation,
which statement shall include: (a) the identity of the acquiring person, (b) a
statement that the acquiring person statement is given pursuant to the Ohio
Control Share Acquisition Law, (c) the number of shares of the issuing
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public corporation owned, directly or indirectly, by such acquiring person,
(d) the range of voting power in the election of directors under which the
proposed acquisition would, if consummated, fall (i.e., in excess of 20%, 33
1/3% or 50%), (e) a description of the terms of the proposed acquisition and
(f) representations of the acquiring person that the acquisition will not be
contrary to the law and that such acquiring person has the financial capacity
to make the proposed acquisition (including the facts upon which such
representations are based). The Purchaser and Parent delivered an acquiring
person statement (the "Acquiring Person Statement") to the Company on March 7,
1996.
Within ten days of receipt of a qualifying acquiring person
statement, the directors of the issuing public corporation must call a special
shareholders meeting to vote on the proposed acquisition. Unless the acquiring
person otherwise agrees, the meeting must be held within 50 days of receipt of
such statement. However, the acquiring person may, and Parent and the
Purchaser did, request in the Inquiring Persons Statement, that the meeting be
held no sooner than 30 days after the receipt of such statement. The Special
Meeting cannot be held later than certain other special meetings of
shareholders called by the issuing public corporation in compliance with the
ORC after receipt of a qualifying acquiring person statement.
The issuing public corporation is required to send a notice of the
special meeting as promptly as reasonably practicable to all shareholders of
record as of the record date set for such meeting, together with a copy of the
acquiring person statement and a statement of the issuing public corporation,
authorized by its directors, of its position or recommendation, or that it is
taking no position, with respect to the proposed control share acquisition.
The acquiring person may make the proposed control share acquisition
only if, (a) at a meeting at which a quorum is present, a majority of the
voting power entitled to vote in the election of directors represented (in
person or by proxy) at such meeting and a majority of such voting power
excluding "interested shares," authorize the control share acquisition and (b)
such acquisition is consummated, in accordance with the terms so authorized,
within 360 days following such authorization. "Interested Shares" is defined
in the ORC to mean shares as to which any of the following may exercise or
direct the exercise of voting power in the election of directors: (i) an
acquiring person, (ii) an officer of the issuing public corporation elected or
appointed by its directors or (iii) any employee of the issuing public
corporation who is also a director of such corporation. "Interested Shares"
also means shares of the issuing public corporation acquired, directly or
indirectly, by any
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person or group for valuable consideration during the period beginning with
the date of the first public disclosure of a proposed control share
acquisition of the issuing public corporation or any proposed merger,
consolidation or other transaction which would result in a change in control
of the corporation or all or substantially all of its assets, and ending on
the date of any special meeting of the corporation's shareholders held
thereafter pursuant to the Ohio Control Share Acquisition Law for the purpose
of voting on a control share acquisition proposed by an acquiring person, if
either of the following apply: (i) the aggregate consideration paid or
otherwise given by the person who acquired the shares, and any other persons
acting in concert with such person, for all shares exceeds $250,000 or (ii)
the number of shares acquired by the person who acquired the shares, and any
other persons acting in concert with such person, exceeds 1/2 of 1% of the
outstanding shares of the corporation entitled to vote in the election of
directors (the "Interested Shares" described in this sentence are referred to
herein as "Disqualified Shares"). See "Litigation Concerning Disqualified
Shares" below.
Dissenters' rights are not available to shareholders of an issuing
public corporation in connection with the authorization of a control share
acquisition.
THE FOREGOING SUMMARY DOES NOT PURPORT TO BE A COMPLETE STATEMENT OF
THE PROVISIONS OF THE OHIO CONTROL SHARE ACQUISITION LAW AND THE RELATED
PROVISIONS OF THE ORC. THE FOREGOING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO THE OHIO CONTROL SHARE ACQUISITION LAW AND THE ORC.
LITIGATION CONCERNING DISQUALIFIED SHARES
On March 7, 1996, Parent and the Purchaser commenced an action in the
United States District Court for the Southern District of Ohio, Eastern
Division (the "Ohio Federal District Court"), against the Company, the
Commissioner of Securities of the Ohio Division of Securities and the Director
of Commerce of the Ohio Department of Commerce seeking, among other things,
that the Court declare unconstitutional and enjoin application of certain
provisions of the Ohio Control Share Acquisition Law (a) to the extent they are
sought to be applied to impair the voting rights of the Disqualified Shares, as
such provisions may be applied to the Offer and (b) to the extent they prohibit
the purchase or sale of Shares in interstate commerce. In March, 1995, in
Luxottica Group S.p.A. v. The United States Shoe Corporation, the United States
District Court for the Southern District of Ohio, Eastern Division issued an
order declaring invalid the provisions described in (a) above, as they applied
to Luxottica's tender offer for shares of United States Shoe Corporation.
Parent and the Purchaser believe that such ruling should also be applicable to
the Offer.
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OTHER MATTERS
Except as set forth herein, neither Parent nor the Purchaser is aware
of any other substantive matter to be considered at the Special Meeting.
However, if any other matter properly comes before the Special Meeting, the
proxies also confer authority to the persons named in the accompanying proxy
to vote the Shares to which the proxy relates on such matter at their
discretion.
A copy of the Acquiring Person Statement (without attachments)
delivered to the Company by the Purchaser and Parent accompanies this Proxy
Statement. The Acquiring Person Statement and the Offer to Purchase contain
important information and should be read by shareholders before any decision is
made with respect to voting on the Acquisition Proposal.
Only holders of record of Shares as of the close of business on the
Record Date will be entitled to vote. If you are a shareholder of record on
the Record Date, you will retain your voting rights for the Special Meeting
even if you sell such Shares after the Record Date or if you tender such
Shares pursuant to the Offer, whether before or after the Record Date. The
tender of Shares pursuant to the Offer does not constitute the grant to Parent
or the Purchaser of a proxy or any voting rights with respect to the tendered
Shares until such time as such Shares are accepted for payment by the
Purchaser. Accordingly, it is important that you vote the Shares held by you
on the Record Date, or grant a proxy to vote such Shares on the BLUE proxy
card even if you sell such Shares after the Record Date or tender such Shares
pursuant to the Offer.
If any of your Shares are held in the name of a brokerage firm, bank,
bank nominee or other institution on the Record Date, only it can execute a
proxy for such Shares and will do so only upon receipt of your specific
instructions. Accordingly, please contact the person responsible for your
account and instruct that person to execute the BLUE proxy card.
PLEASE SIGN, DATE AND MAIL THE ACCOMPANYING BLUE PROXY CARD PROMPTLY.
NO POSTAGE IS REQUIRED IF MAILED IN THE UNITED STATES. BY SIGNING AND MAILING
THE ACCOMPANYING BLUE PROXY CARD, ANY PROXY PREVIOUSLY SIGNED BY YOU WITH
RESPECT TO THE ACQUISITION PROPOSAL WILL BE AUTOMATICALLY REVOKED.
SOLICITATION OF PROXIES
Proxies may be solicited by mail, telephone or telecopier and in
person. Solicitations may be made by directors, officers, investor relations
personnel and other employees of Parent or the Purchaser, none of whom will
receive additional compensation for such solicitations. Parent has requested
banks, brokerage houses and other custodians, nominees and fiduciaries to
forward all of
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its solicitation materials to the beneficial owners of the Shares they hold of
record. Parent will reimburse these record holders for customary clerical and
mailing expenses incurred by them in forwarding these materials to their
customers.
Parent has retained ______________________________ for
solicitation and advisory services in connection with this
solicitation. __________ will be paid an aggregate fee of
approximately $_______ for acting (a) as proxy solicitor in
connection with (i) this solicitation, (ii) the solicitation of
agent designations to call a special meeting of the Company's
shareholders (the "Other Special Meeting") to, among other
things, remove the Company's incumbent directors and elect
replacement directors, all as further described in the Offer to
Purchase and (iii) the solicitation of proxies for the Other
Special Meeting, if it is called and (b) as Information Agent in
connection with the Offer. _________ may also receive additional
reasonable and customary compensation for providing additional
advisory services in connection with this solicitation and the
other proxy solicitations described in this paragraph. Parent has
also agreed to reimburse __________ for its reasonable
out-of-pocket expenses and to indemnify _________ against certain
liabilities and expenses, including liabilities and expenses
under the federal securities laws. _________ will solicit proxies
from individuals, brokers, bank nominees and other institutional
holders.
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch")
is acting as Dealer Manager in connection with the Offer and as Parent's
exclusive financial advisor with respect to the Proposed Merger. As
compensation for such services, Parent has agreed to pay Merrill Lynch a fee of
$500,000, $400,000 of which fee is payable upon commencement by Parent or one
of its affiliates of a tender offer or exchange offer for securities of the
Company. Parent has also agreed to pay Merrill Lynch a fee of up to $2,000,000
(less any fees theretofore paid) contingent upon consummation of an Acquisition
Transaction. "Acquisition Transaction" has been defined to include (i) any
merger, consolidation, reorganization or other business combination pursuant to
which the business of the Company is combined with that of Parent or one of its
affiliates, (ii) the acquisition, directly or indirectly, by Parent or one of
its affiliates by tender or exchange offer, negotiated purchase or other means
of at least 50% of the then outstanding capital stock of the Company, (iii) the
acquisition, directly or indirectly, by Parent or one of its affiliates of at
least 50% of the assets of, or of any right to all or a substantial portion of
the revenues or income of the Company or (iv) the acquisition, directly or
indirectly, by Parent or one of its affiliates of control of the Company
through a proxy contest or otherwise than through the
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acquisition of the Company's voting capital stock. In addition, Parent has
agreed to reimburse Merrill Lynch for its reasonable out-of-pocket expenses,
including, without limitation, reasonable fees and disbursements of its
counsel, incurred in connection with the Offer and the Proposed Merger or
otherwise arising out of Merrill Lynch's engagement, and has also agreed to
indemnify Merrill Lynch (and certain affiliated persons) against certain
liabilities and expenses, including, without limitation, certain liabilities
under the federal securities laws. Merrill Lynch may from time to time in the
future render various investment banking services to Parent and its
affiliates, for which it is expected it would be paid customary fees.
Merrill Lynch has from time to time rendered, and continues to
render, various investment banking and other advisory services to Parent and
its affiliates for which it is paid its customary fees. In connection with
Merrill Lynch's engagement as financial advisor, Parent anticipates that
certain employees of Merrill Lynch may communicate in person, by telephone or
otherwise with a limited number of institutions, brokers or other persons who
are the Company's shareholders for the purpose of assisting in the solicitation
of proxies for the Special Meeting, as well as for the solicitation of agent
designations to call the Other Special Meeting and proxies for the Other
Special Meeting. Merrill Lynch will not receive any fee for or in connection
with such solicitation activities apart from the fees which it is otherwise
entitled to receive as described above.
The entire expense of soliciting proxies for the Special Meeting is
being borne by Parent or a subsidiary of Parent. Neither Parent nor any such
subsidiary will seek reimbursement for such expenses from the Company. Costs
incidental to these proxies include expenditures for printing, postage, legal
and related expenses and are expected to be approximately $________. Total
costs incurred to date in furtherance of or in connection with these proxies
are approximately $________.
If the Purchaser should terminate, or materially amend the terms of,
the Offer prior to the Special Meeting, Parent or the Purchaser will
disseminate such information regarding such changes to the Company's
shareholders and, in appropriate circumstances, will provide the Company's
shareholders with a reasonable opportunity to revoke their proxies prior to
the Special Meeting.
SHAREHOLDER PROPOSALS
According to the Company's proxy statement relating to its 1996 Annual
Meeting of Shareholders, any notice of a qualified shareholder submitting a
proposal for the 1997 Annual Meeting of Shareholders of the Company must have
been in proper form and must have been received by the Company no later than
October 1, 1996.
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OTHER INFORMATION
Parent is a Delaware corporation which operates a variety of
businesses through two business segments: Tools and Components and
Process/Environmental Controls. The Tools and Components segment is one of the
largest domestic producers and distributors of general purpose mechanics' hand
tools and automotive specialty tools. Other products manufactured by these
companies include tool boxes and storage devices, diesel engine retarders,
wheel service equipment, drill chucks, custom designed headed tools and
components, hardware and components for the power generation and transmission
industries, high quality precision socket screws, fasteners, and high quality
miniature precision parts. The companies in the Process/Environmental segment
produce and sell underground storage tank leak detection systems and
temperature, level and position sensing devices, power switches and controls,
telecommunication line products, power protection products, liquid flow
measuring devices and electronic and mechanical counting and controlling
devices.
Approximately 43.4% of the outstanding common stock of the Parent is
beneficially owned by Steven M. Rales and Mitchell P. Rales. The aggregate
holdings for Steven and Mitchell Rales include shares of Parent common stock
owned by Equity Group Holdings L.L.C. ("EGH") and Equity Group Holdings II
L.L.C. ("EGH II"), of which Steven and Mitchell Rales are the only members,
along with other shares of common stock of Parent which are directly owned by
such individuals. Steven and Mitchell Rales are directors and executive
officers of Parent as well as directors of Purchaser. EGH and EGH II are
principally engaged in the business of investing in the common stock of Parent.
The offices of Steven M. Rales, Mitchell P. Rales, EGH and EGH II are located
at 1250 24th Street, N.W., Suite 800, Washington, D.C. 20037.
The Purchaser is a newly incorporated Delaware corporation and a
wholly owned subsidiary of Parent which to date has not conducted any business
other than in connection with the Offer and the Proposed Merger. The principal
executive offices of Parent and the Purchaser are located at 1250 24th Street,
N.W., Suite 800, Washington, D.C. 20037.
Certain information about the directors and executive officers of
Parent and the Purchaser and certain employees and other representatives of
Parent who may also assist __________ in soliciting proxies is set forth in the
attached Schedule I. Schedule II sets forth certain information relating to
Shares owned by Parent, the Purchaser, and other representatives. Schedule III
sets forth certain information, as made available in public documents,
regarding Shares held by the Company's principal
<PAGE>
shareholders and its management.
THIS PROXY STATEMENT IS NEITHER A REQUEST FOR THE TENDER OF SHARES
NOR AN OFFER WITH RESPECT THERETO. THE PURCHASER'S OFFER IS BEING MADE ONLY BY
MEANS OF THE OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL, AS FILED WITH
THE COMMISSION.
PLEASE INDICATE YOUR SUPPORT OF THE PURCHASER'S OFFER BY COMPLETING,
SIGNING AND DATING THE ENCLOSED BLUE PROXY CARD AND RETURNING IT PROMPTLY TO
DANAHER CORPORATION, C/O ___________________________________________________,
IN THE ENCLOSED ENVELOPE. NO POSTAGE IS NECESSARY IF THE ENVELOPE
IS MAILED IN THE UNITED STATES.
YOUR VOTE IS IMPORTANT! PLEASE SIGN, DATE AND MAIL
THE ACCOMPANYING BLUE PROXY CARD PROMPTLY.
Danaher Corporation
WEC Acquisition Corporation
March 8, 1996
<PAGE>
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS
OF PARENT AND THE PURCHASER
PARENT
Executive officers of the Parent are:
<TABLE>
<CAPTION>
Officer
Name Age Position Since
<S> <C> <C> <C>
Steven M. Rales 44 Chairman of the Board 1984
Mitchell P. Rales 39 Chairman of the Executive 1984
Committee
George M. Sherman 54 Chief Executive Officer, 1990
President and Director
Patrick W. Allender 49 Senior Vice President, 1987
Chief Financial Officer
and Secretary
James H. Ditkoff 50 Vice President - Finance/Tax 1991
Dennis D. Claramunt 50 Vice President and Group 1994
Executive
C. Scott Brannan 37 Vice President Administration 1987
and Controller
John P. Watson 51 Vice President and Group 1993
Executive
H. Lawrence Culp, Jr. 32 Vice President and Group 1995
Executive
Gregory T.H. Davies 48 Vice President and Group 1995
Executive
</TABLE>
Steven M. Rales has served as Chairman of the Board since January
1984. He has been a General Partner, since 1979, in Equity Group Holdings, a
general partnership located in Washington, D.C. with interests in media
operations, publicly traded securities and manufacturing companies.
Mitchell P. Rales has served as a director of Parent since January
1984, President from March 1987 to January 1990 and Executive Vice President
from January 1984 to March 1987. He has been a General Partner of Equity Group
Holdings since 1979.
George M. Sherman has served as President and Chief Executive Officer
and a director of Parent since February 1990.
Patrick W. Allender has served as Chief Financial Officer of Parent
since March 1987.
James H. Ditkoff was appointed Vice President - Finance/Tax in
January 1991. He has served in an executive capacity in finance/tax for Parent
since September 1988.
<PAGE>
Dennis D. Claramunt was appointed Vice President and Group Executive
in 1994. He has served as President of Jacobs Chuck Manufacturing Company for
more than the past five years.
C. Scott Brannan was appointed Vice President - Administration and
Controller of Parent in November, 1987.
John P. Watson was appointed Vice President and Group Executive in
1993. He has served the Parent in an executive capacity since September 1990.
H. Lawrence Culp, Jr. was appointed Vice President and Group Executive in
1995. He has served the Parent in an executive capacity (including President
since 1993) at Veeder-Root Company for more than the past five years.
Gregory T.H. Davies was appointed Vice President and Group Executive
in 1995. He has served as President of Jacobs Vehicle Equipment Company for
more than the past five years.
PURCHASER
Each of the individuals set forth below has been a director or an
executive officer since 1996. Further information regarding each such person
is set forth above:
<TABLE>
<CAPTION>
Name Position
<S> <C>
Steven M. Rales Director
Mitchell P. Rales Director
George M. Sherman President and Director
Patrick W. Allender Vice President and Treasurer
C. Scott Brannan Vice President and Secretary
James H. Ditkoff Vice President
</TABLE>
The following individuals constitute representatives of the Dealer
Manager who may solicit proxies:
William Rifkin Managing Director, Merrill Lynch & Co.
Merrill Lynch & Co.
World Financial Center
North Tower
New York, NY 10281-1330
Paul Stefanick Director, Merrill Lynch & Co.
Merrill Lynch & Co.
World Financial Center
North Tower
New York, NY 10281-1330
Dragoljub Rajkovic Associate, Merrill Lynch & Co.
Merrill Lynch & Co.
World Financial Center
North Tower
New York, NY 10281-1330
<PAGE>
SCHEDULE II
SHARES HELD BY PARENT AND THE PURCHASER
Parent beneficially owns 305,000 Shares of the Company.
In the ordinary course of its business, Merrill Lynch may trade the
securities of the Company for its own account and the accounts of its
customers and, accordingly, may at any time hold a long or short position in
such securities. As of March 6, 1996, Merrill Lynch held a net long position
of less than 1/2 of 1% of the Shares.
<PAGE>
SCHEDULE III
PRINCIPAL SHAREHOLDERS OF THE COMPANY
AND SHAREHOLDINGS OF THE COMPANY'S MANAGEMENT
Set forth below, is information regarding Shares owned by (i) those
persons owning more than 5% of the outstanding Shares and (ii) directors and
executive officers of the Company as a group. Such information is derived from
the Company's proxy statement for its 1996 Annual Meeting of Shareholders and
from a Schedule 13G filed by the State of Wisconsin Investment Board in
February, 1996.
<TABLE>
<CAPTION>
NUMBER OF
SHARES
NAME AND ADDRESS OF BENEFICIALLY PERCENT
BENEFICIAL OWNER OWNED OF CLASS
- - ------------------------------------- -------------- ---------
<S> <C> <C>
Series A Convertible Preferred Shares
Marylou P. Hillyer(1)
74 Stewart Road,
Short Hills, New Jersey 07078 161,374 100%
Common Shares
State of Wisconsin Investment Board
P.O. Box 7842
Madison, Wisconsin 53703 596,800 9.45%
<FN>
- - ------------
(1) Marylou P. Hillyer, as Executrix under the Will of Curtis Hillyer, had sole (1)
voting and investment power with respect to all of the Company's Series A
Convertible Preferred Shares, which are convertible into a total of 161,374
Common Shares, or 2.46% of the Common Shares outstanding following
conversion.
</TABLE>
<TABLE>
<CAPTION>
NUMBER OF
COMMON SHARES
DIRECTOR, NOMINEE, NAMED BENEFICIALLY PERCENT
EXECUTIVE OFFICER, OR GROUP OWNED OF CLASS
- - ---------------------------------- -------------- ---------
<S> <C> <C>
Theodore M. Alfred ................ 8,450 0.13%
Stephen M. DuBrul, Jr. ............ 4,000 0.06%
Hugh B. Jacks ..................... 2,754 0.04%
Gerald C. McDonough ............... 3,881 0.06%
Donald R. Melville ................ 3,500 0.05%
Terry S. Parker ................... 0 0.00%
Paul J. Powers .................... 2,590 0.04%
David L. Swift (1) ................ 233,933 3.65%
Robert M. Taylor .................. 4,170 0.07%
Karl E. Ware ...................... 4,680 0.07%
Earl J. Bellisario (2) ............ 32,561 0.51%
Mark H. Hoffman ................... 0 0.00%
Jon Slaybaugh(3) .................. 7,114 0.11%
James E. Helton(4) ................ 5,644 0.09%
19 present directors and executive
officers including those listed
above(5) ......................... 351,341 5.48%
<FN>
- - ------------
(1) Includes 208,500 Common Shares subject to options that are exercisable
within 60 days of November 30, 1995.
(2) Includes 24,250 Common Shares subject to options that are exercisable
within 60 days of November 30, 1995.
(3) Includes 5,500 Common Shares subject to options that are exercisable
within 60 days of November 30, 1995.
(4) Includes 5,580 Common Shares subject to options that are exercisable
within 60 days of November 30, 1995.
(5) Includes 286,800 Common Shares subject to options that are exercisable
within 60 days of November 30, 1995.
</TABLE>
Except as otherwise noted, the information concerning the Company in
this Proxy Statement has been taken from or is based upon documents and
records on file with the Commission and other publicly available information.
Neither the Purchaser nor Parent takes any responsibility for the accuracy or
completeness of the information contained in such documents and records, or
for any failure by the Company or any other third party to disclose events
that may have occurred and may affect the significance or accuracy of any such
information but which are unknown to the Purchaser and Parent.
<PAGE>
IMPORTANT
Your Proxy is important. No matter how many Shares you own, please
give Parent your Proxy by:
SIGNING the enclosed BLUE proxy card,
DATING the enclosed BLUE proxy card, and
MAILING the enclosed BLUE proxy card TODAY in the envelope provided
(no postage is required if mailed in the United States).
If you have any questions, would like a copy of the Letter of
Transmittal for the Offer to Purchase and related documents, or require any
additional information concerning the Offer, please contact the Information
Agent for the Offer, D.F. King & Co., Inc., 77 Water Street, New York, New York
10005, 1-800-628-8532. If you have any questions or require any additional
information concerning this Proxy Statement, please contact __________________
at the address set forth below. If any of your Shares are held in the name of a
brokerage firm, bank, bank nominee or other institution, only it can vote such
Shares and only upon receipt of your specific instructions. Accordingly, please
contact the person responsible for your account and instruct that person to
execute the BLUE proxy card.
<PAGE>
PROXY
THIS PROXY IS SOLICITED BY DANAHER CORPORATION AND
WEC ACQUISITION CORPORATION FOR THE SPECIAL
MEETING OF SHAREHOLDERS OF ACME-CLEVELAND
CORPORATION TO BE HELD PURSUANT TO SECTION 1701.831
OF THE OHIO REVISED CODE.
The undersigned hereby appoints _________, ___________ and
____________, and each of them, with full power of substitution, the proxies
of the undersigned to vote all of the outstanding Common Shares, par value $1
per share, or Series A Preferred Shares, without par value (collectively,
"Shares"), of Acme-Cleveland Corporation (the "Company") that the undersigned is
entitled to vote at the Special Meeting of Shareholders of the Company to be
held on April __, 1996 pursuant to Section 1701.831 of the Ohio Revised Code
(the "Special Meeting"), or at any adjournment or postponement of the Special
Meeting, on the following matters:
1. Acquisition of Shares of the Company. A resolution of the Company's
shareholders authorizing the acquisition of a majority or more of the
outstanding Shares by WEC Acquisition Corporation or Danaher Corporation (or
one or more subsidiaries of Danaher Corporation) as contemplated by and in
accordance with the terms and conditions of WEC Acquisition Corporation's
Offer to Purchase dated March 7, 1996, as the same may be amended from time
to time.
/ / FOR / / AGAINST / / ABSTAIN
2. Adjournment of Meeting. To initiate and vote for a proposal to
adjourn the Special Meeting to solicit additional votes, if
necessary, to authorize the acquisition of Shares.
/ / FOR / / AGAINST / / ABSTAIN
DANAHER CORPORATION AND WEC ACQUISITION CORPORATION RECOMMEND A
VOTE FOR ITEMS 1 AND 2.
In their discretion, the proxies of the undersigned named above are
authorized to vote upon such other matters as may properly come before the
Special Meeting and any adjournment or postponement thereof.
[Proxy Continued On Reverse]
<PAGE>
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED AS DIRECTED ON THE REVERSE
SIDE. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED FOR THE ACQUISITION OF
SHARES AND FOR THE ADJOURNMENT OF THE SPECIAL MEETING, IF NECESSARY. THE
UNDERSIGNED HEREBY ACKNOWLEDGES RECEIPT OF THE PROXY STATEMENT OF DANAHER
CORPORATION AND WEC ACQUISITION CORPORATION DATED MARCH 7, 1996, SOLICITING
PROXIES FOR THE SPECIAL MEETING.
All previous proxies given by the undersigned to vote at the Special
Meeting or at any adjournment or postponement thereof are hereby revoked.
Dated: ______________________, 1996
-------------------------------------
(Signature)
-------------------------------------
(Signature, if jointly held)
Title:
_____________________________
Please sign exactly as name appears
hereon. When shares are held by
joint tenants, both should sign.
When signing as an attorney,
executor, administrator, trustee
or guardian, give full title as
such. If a corporation, sign in
full corporate name by President
or other authorized officer. If a
partnership, sign in partnership
name by authorized person.
PLEASE COMPLETE, SIGN, DATE AND MAIL PROMPTLY TO DANAHER
CORPORATION, C/O ___________________________________________________
IN THE ENCLOSED ENVELOPE.
ACQUIRING PERSON STATEMENT
Pursuant to Section 1701.831 of
the Ohio Revised Code*
ACME-CLEVELAND CORPORATION
(Name of Issuing Public Corporation)
30100 Chagrin Blvd., Suite 100
Pepper Pike, Ohio 44124
(Address of Principal Executive Offices)
WEC ACQUISITION CORPORATION
AND
DANAHER CORPORATION
(Acquiring Persons)
This Acquiring Person Statement is being delivered to Acme-Cleveland
Corporation, an Ohio corporation (the "Company"), pursuant to Section 1701.831
of the Ohio Revised Code by WEC Acquisition Corporation, a Delaware corporation
("Purchaser") and a wholly owned subsidiary of Danaher Corporation, a Delaware
corporation ("Parent"), and Parent, and relates to the transactions contemplated
by the tender offer by Purchaser to purchase all outstanding common shares, par
value $1 per share ("Common Shares"), and all outstanding Series A Convertible
Preferred Shares, without par value (the "Preferred Shares" and, together with
the Common Shares, the "Shares"), at a price of $27 per Share net to the seller
in cash, upon the terms and subject to the conditions set forth in the Offer to
Purchase dated March 7, 1996 (the "Offer to Purchase"), a copy of which is
attached hereto as Exhibit A and incorporated by reference herein.
ITEM 1. IDENTITY OF THE ACQUIRING PERSON.
The acquiring persons are Purchaser and Parent. The address of the
principal executive offices of Purchaser and Parent are 1250 24th Street, N.W.,
Suite 800, Washington, D.C. 20037.
- - ------------
* Notwithstanding the making and delivery of this Statement, all rights are
reserved (i) to challenge the constitutionality of all or any part of Section
1701.831 and related provisions of the Ohio Revised Code and their application
to the Offer to Purchase and/or (ii) to seek an amendment to the Regulations of
Road providing that Section 1701.831 and related provisions of the Ohio Revised
Code do not apply to control share acquisitions of Shares, including pursuant to
the Offer to Purchase.
<PAGE>
The information set forth in the Introduction and "Certain Information
Concerning Parent and the Purchaser" of the Offer to Purchase is incorporated
herein by reference.
ITEM 2. DELIVERY OF ACQUIRING PERSON STATEMENT.
This Acquiring Person Statement is given pursuant to Section 1701.831 of
the Ohio Revised Code.
Purchaser and Parent hereby request that the special meeting of the
shareholders of the Company, which is required to be called by the directors of
the Company pursuant to division (C) of Section 1701.831 of the Ohio Revised
Code as a result of the delivery of this Acquiring Person Statement, be held no
sooner than thirty (30) days after the Company's receipt of this Acquiring
Person Statement.
ITEM 3. OWNERSHIP OF SHARES BY ACQUIRING PERSON.
Purchaser and Parent directly or indirectly own 305,000 Common Shares
and no Preferred Shares.
ITEM 4. RANGE OF VOTING POWER.
Purchaser and Parent propose to acquire all of the outstanding Shares in
accordance with and as contemplated by the terms of the Offer to Purchase. The
proposed control share acquisition, if consummated, would result in the
acquisition of a majority or more of the voting power as described in
subparagraph (c) of paragraph (Z)(1) of Section 1701.01 of the Ohio Revised
Code.
ITEM 5. TERMS OF THE PROPOSED CONTROL SHARE ACQUISITION.
The information set forth in the Introduction, "Terms of the Offer",
"Source and Amount of Funds", "Background of the Offer", "Purpose of the Offer,
Plans for the Company", and "Certain Conditions of the Offer" of the Offer to
Purchase is incorporated herein by reference.
ITEM 6. REPRESENTATIONS OF LEGALITY; FINANCIAL CAPACITY.
Purchaser and Parent represent that the proposed control share
acquisition will not be contrary to law and that they have the financial
capacity to make such proposed control share acquisition. The information
contained in "Certain Legal Matters" and "Source and Amount of Funds" of the
Offer to Purchase is incorporated herein by reference.
WEC Acquisition Corporation
Dated: March 7, 1996 By: /s/ C. Scott Brannan
------------------------
Name: C. Scott Brannan
Title: Vice President
Administration and
Controller
Danaher Corporation
Dated: March 7, 1996 By: /s/ C. Scott Brannan
------------------------
Name: C. Scott Brannan
Title: Vice President
and Secretary
