<PAGE>
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
SCHEDULE 14D-1
(Amendment No. 3)
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
------------
ACME-CLEVELAND CORPORATION
(Name of Subject Company)
WEC ACQUISITION CORPORATION
DANAHER CORPORATION
(Bidders)
COMMON SHARES, PAR VALUE $1 PER SHARE
(INCLUDING THE ASSOCIATED RIGHTS)
SERIES A CONVERTIBLE PREFERRED SHARES,
WITHOUT PAR VALUE
(Title of Class of Securities)
004626107
(CUSIP Number of Class of Securities)
------------
PATRICK W. ALLENDER
WEC ACQUISITION CORPORATION
C/O DANAHER CORPORATION
1250 24TH STREET, N.W., SUITE 800
WASHINGTON, D.C. 20037
TELEPHONE: (202) 828-0850
(Name, address and telephone number of person authorized
to receive notices and communications on behalf of Bidders)
------------
Copy to:
MORRIS J. KRAMER, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM
919 THIRD AVENUE
NEW YORK, N.Y. 10022
TELEPHONE: (212) 735-3000
CALCULATION OF FILING FEE
===============================================================================
<TABLE>
<CAPTION>
TRANSACTION AMOUNT OF
VALUATION* FILING FEE
- -------------------------------------------------------------------------------
<S> <C>
$181,920,222 $36,384.04
</TABLE>
===============================================================================
* For purposes of calculating fee only. This amount assumes the
purchase at a purchase price of $27 per Share of an aggregate of
6,737,786 Shares, consisting of 6,411,578 Common Shares, 161,374
Preferred Shares and 469,834 Shares issuable upon conversion of
Options (less 305,000 shares owned by Parent or any of its
affiliates). The amount of the filing fee, calculated in accordance
with Regulation 240.0-11 of the Securities Exchange Act of 1934, as
amended, equals 1/50th of one percentum of the value of Shares
purchased.
[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: $36,384.04 Filing Party: WEC Acquisition Corporation
Danaher Corporation
Form or Registration No.: Schedule 14D-1 Date Filed: March 7, 1996
Tender Offer
Statement
================================================================================
<PAGE>
WEC Acquisition Corporation (the "Purchaser"), a Delaware corporation
and a wholly owned subsidiary of Danaher Corporation, a Delaware corporation
("Parent"), and Parent hereby amend and supplement their Tender Offer Statement
on Schedule 14D-1, as heretofore amended (the "Schedule 14D-1"), relating to the
Purchaser's offer to purchase all outstanding common shares, par value $1 per
share (including the associated rights), and all outstanding Series A
Convertible Preferred Shares, without par value (collectively, the "Shares"), of
Acme-Cleveland Corporation, an Ohio corporation (the "Company"). Capitalized
terms used herein and not otherwise defined shall have the meanings set forth in
the Schedule 14D-1 or the Offer to Purchase filed as an exhibit thereto.
Item 10. Additional Information.
As of March 22, 1996, the waiting period imposed by the HSR Act had
expired.
The information set forth in Exhibit (g)(3) is incorporated herein by
reference.
Item 11. Material to be Filed as Exhibits.
(g)(3) Answer and Counterclaims of the Company dated March 21, 1996.
2
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Statement is true, complete and
correct.
Dated: March 25, 1996
WEC ACQUISITION CORPORATION
By: /s/ C. Scott Brannan
-----------------------------------
Name: C. Scott Brannan
Title: Vice President Administration
and Controller
DANAHER CORPORATION
By: /s/ C. Scott Brannan
-----------------------------------
Name: C. Scott Brannan
Title: Vice President and Secretary
3
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER EXHIBIT NAME NUMBER
- ----------- ------------------------------------------------------------------------------------ ----------
<S> <C> <C>
(g)(3) Answer and Counterclaims of the Company dated March 21, 1996.
</TABLE>
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
)
DANAHER CORPORATION, et al., ) Case No. C2-96-0247
)
Plaintiffs, ) Judge James L. Graham
)
v. ) Magistrate Judge Mark R. Abel
)
ACME-CLEVELAND CORPORATION, )
et al., ) ANSWER AND COUNTERCLAIMS
) OF DEFENDANT ACME-CLEVELAND
Defendants. ) CORPORATION
I, ANSWER
Defendant Acme-Cleveland Corporation ("Acme Cleveland") for its Answer
to plaintiffs' Complaint:
FIRST DEFENSE
1. Admits that on March 7, 1996, plaintiffs Danaher Corporation
("Danaher") and its wholly-owned subsidiary, WEC Acquisition Corporation
("WEC"), announced a tender offer for all of the outstanding shares of Acme-
Cleveland at a price of $27 per share, that plaintiffs filed a tender offer
statement (the "Schedule 14D-1") with the SEC pursuant to Section 14(d)(1) of
the Securities Exchange Act of 1934, 15 U.S.C. Section 78n(d)(1), and that
plaintiffs stated therein that they contemplate a second-step merger, and,
except as admitted, denies all other allegations contained in paragraph 1.
2. Admits so much of paragraph 2 of the Complaint as may aver that
plaintiffs seek the relief described in paragraph 2, denies that plaintiffs are
entitled to such relief, and denies all other allegations contained in
paragraph 2.
3. Admits that this Court rendered a decision in Luxottica Group, S.p.A.
v. United States Shoe Corp., No. C2-95-244 (S.D. Ohio Mar. 16, 1995), which
speaks for itself, but denies all other allegations contained in paragraph 3.
4. Denies the allegations contained in paragraph 4.
5. Admits that plaintiffs purport to invoke the jurisdiction of the
Court under the provision cited in paragraph 5.
6. Do not contest the jurisdiction of this Court over the subject matter
of this action.
7. Admits that Danaher is a Delaware corporation with its principal
place of business in Washington, D.C., that it is engaged in various businesses,
and that plaintiff WEC claims to own approximately 305,000 shares of Acme-
Cleveland's common stock, and, except as admitted, denies, for lack of
knowledge, the remaining allegations contained paragraph 7.
8. Admits the allegations contained in paragraph 8.
9. Admits the allegations contained in paragraph 9.
10. Admits that Mark Holderman is an Ohio resident and Commissioner of
the Division of Securities, Department of Commerce of the State of Ohio, and
that the cited Ohio laws speak for themselves.
2
11. Admits that Donna Owens is Director of the Ohio Department of
Commerce and that the jurisdiction of the Department of Commerce is established
by Ohio law, and otherwise denies all other allegations contained in
paragraph 11.
12. Denies, for lack of knowledge, the allegations contained in
paragraph 12.
13. Admits so much of paragraph 13 as may aver that plaintiffs
commenced an all-cash Tender Offer for all shares of Acme-Cleveland common
stock to Acme-Cleveland shareholders throughout the United States and avers
that the conditions to the Tender Offer speak for themselves, and otherwise
denies all other allegations contained in paragraph 13.
14. Admits the allegations contained in paragraph 14.
15. Admits so much of paragraph 15 as may aver that plaintiffs have
filed or will file certain documents with the SEC and the Ohio Securities
Division, and have delivered a purported acquiring person statement to Acme-
Cleveland, but denies the allegations contained in the first sentence of
paragraph 15, denies that plaintiffs' actions have no effect on their several
positions, and denies, for lack of knowledge, all other allegations contained
in paragraph 15.
16. Admits and avers that the "Williams Act" was enacted by Congress
and speaks for itself, but denies all other allegations contained in paragraph
16.
17. Admits and avers that the "Williams Act" speaks for itself, but
denies all other allegations contained in paragraph 17.
3
18. Admits and avers that the "Williams Act" speaks for itself, but
denies all other allegations contained in paragraph 18.
19. Admits and avers that the SEC has promulgated rules and regulations
under the "Williams Act" and that such rules and regulations speak for
themselves, and otherwise denies the allegations contained in paragraph 19.
20. Admits and avers that the Ohio General Assembly enacted the Ohio
Control Share Acquisition Act (the "OCSAA") and that the OCSAA speaks for
itself, but denies all other allegations contained in paragraph 20.
21. Admits and avers that the Ohio General Assembly enacted the OCSAA,
that the Act speaks for itself, and that Acme-Cleveland is an "issuing public
corporation" within the meaning of the OCSAA, but denies all other allegations
contained in paragraph 21.
22. Admits and avers that the OCSAA speaks for itself, that plaintiffs'
Tender Offer is subject to the OCSAA, and that plaintiffs' Tender Offer cannot
be consummated without compliance with the OCSAA, and otherwise denies the
allegations contained in paragraph 22.
23. Admits and avers that the OCSAA speaks for itself, but denies all
other allegations contained in paragraph 23.
24. Admits that plaintiffs' Tender Offer purports to propose a "control
share acquisition" within the meaning of the OCSAA.
4
25. Admits and avers that the OCSAA speaks for itself, that plaintiffs
have delivered to Acme-Cleveland a purported "acquiring person statement," that
the directors of Acme-Cleveland have called a special meeting of shareholders
(the "831 Special Meeting") to vote on the plaintiffs' proposed control share
acquisition, that such meeting was called in compliance with the OCSAA, and
otherwise denies the allegations contained in paragraph 25.
26. Admits and avers that the provisions of the OCSAA governing the
quorum requirements for special meetings of shareholders thereunder speak for
themselves, and otherwise denies all other allegations contained in paragraph
26.
27. Admits and avers that Ohio Rev. Code Section 1701.01(CC) speaks for
itself and was amended in 1990, and otherwise denies the allegations contained
in paragraph 27.
28. Admits and avers that the OCSAA speaks for itself, and otherwise
denies the allegations of paragraph 28.
29. Denies the allegations contained in paragraph 29.
30. Admits and avers that Ohio Rev. Code Section 1701.37 speaks for
itself, and otherwise denies the allegations contained in paragraph 30.
31. Admits and avers that Ohio Rev. Code Sections 1701.01(CC)(2) and
1701.37 and the rules and regulations of the SEC governing disclosure of
information concerning beneficial owners of Acme-Cleveland stock speak for
themselves, and otherwise denies the allegations contained in paragraph 31.
32. Denies the allegations contained in paragraph 32.
5
33. Admits that Section 14 of the Securities Exchange Act applies to
the solicitation of proxies and otherwise denies the allegations contained in
paragraph 33.
34. Denies that the OCSAA conflicts with, or is preempted by, Federal
proxy rules; admits and avers that Section 13 of the Securities Exchange Act,
SEC Rules 14b-1 and 14b-2, and Ohio Rev. Code Section 1701.01(CC)(2) speak for
themselves; and otherwise denies the allegations contained in paragraph 34.
35. Denies the allegations contained in paragraph 35.
36. Admits and avers that the Williams Act and 15 U.S.C. Section
78n(d)(5) speak for themselves, and otherwise denies all other allegations
contained in paragraph 36.
37. Admits and avers that Ohio Rev. Code Section 1701.831(C) speaks for
itself, and otherwise denies the allegations contained in paragraph 37 and,
further answering, specifically denies that there is any requirement to contact
shareholders after the 831 Special Meeting called by the directors of Acme-
Cleveland.
38. Denies the allegations contained in paragraph 38.
39. States that the OCSAA and the laws of other states speak for
themselves, and otherwise denies the allegations contained in paragraph 39.
40. States that the OCSAA and the laws of other states speak for
themselves, and otherwise denies the allegations contained in paragraph 40.
41. Denies the allegations contained in paragraph 41.
6
42. Admits and avers that the Ohio Takeover Act speaks for itself, and
otherwise denies the allegations contained in paragraph 42.
43. Denies the allegations contained in paragraph 43.
44. Denies the allegations contained in paragraph 44.
45. Denies the allegations contained in paragraph 45.
46. Admits and avers that Ohio Rev. Code Section 1707.041 speaks for
itself, and otherwise denies the allegations contained in paragraph 46.
47. Denies the allegations contained in paragraph 47.
48. Denies the allegations contained in paragraph 48.
49. Admits as much of paragraph 49 as may aver that plaintiffs filed a
Schedule 14D-1 containing certain information, denies that the plaintiffs'
Tender Offer is being made in full compliance with Federal laws and regulations
governing tender offers, and otherwise denies the allegations contained in
paragraph 49.
50. Admits that plaintiffs have filed various documents with the Ohio
Securities Division and have delivered a purported acquiring person statement
to Acme-Cleveland, and otherwise denies the allegations contained in paragraph
50.
51. Admits that plaintiffs seek a declaratory judgment but denies that
they are entitled to any such judgment.
Count One
52. Repeats as to the allegations contained in the preceding
paragraphs, the admissions, denials and averments contained in this Answer as
if fully rewritten herein.
7
53. Denies the allegations contained in paragraph 53.
54. Denies the allegations contained in paragraph 54.
55. Denies the allegations contained in paragraph 55.
Count Two
56. Repeats as to the allegations contained in the preceding
paragraphs, the admissions, denials and averments contained in this Answer as
if fully rewritten herein.
57. Denies the allegations contained in paragraph 57.
58. Denies the allegations contained in paragraph 58.
59. Denies the allegations contained in paragraph 59.
Count Three
60. Repeats as to the allegations contained in the preceding
paragraphs, the admissions, denials and averments contained in this Answer as
if fully rewritten herein.
61. Denies the allegations contained in paragraph 61.
62. Admits that shareholders of Acme-Cleveland reside in Ohio and other
States, that plaintiffs' Tender Offer will take place in interstate commerce,
and otherwise denies the allegations contained in paragraph 62.
63. Denies the allegations contained in paragraph 63.
64. Denies the allegations contained in paragraph 64.
Count Four
65. Repeats as to the allegations contained in the preceding
paragraphs, the admissions, denials and averments contained in this Answer as
if fully rewritten herein.
66. Denies the allegations contained in paragraph 66.
67. Denies the allegations contained in paragraph 67.
8
68. Denies the allegations contained in paragraph 68.
Count five
69. Repeats as to the allegations contained in the preceding
paragraphs, the admissions, denials and averments contained in this Answer as
if fully rewritten herein.
70. Denies the allegations contained in paragraph 70.
Count Six
71. Repeats as to the allegations contained in the preceding
paragraphs, the admissions, denials and averments contained in this Answer as
if fully rewritten herein.
72. Denies that plaintiffs are entitled to the relief requested and
requests that the Court deny the relief sought in Count Six in its entirety.
Irreparable Injury
73. Denies the allegations contained in paragraph 73.
74. Denies the allegations contained in paragraph 74.
75. Denies the allegations contained in paragraph 75.
76. Denies the allegations contained in paragraph 76.
77. Denies the allegations contained in paragraph 77.
78. Denies the allegations contained in paragraph 78.
79. Denies each and every allegation contained in plaintiffs' Complaint
not expressly admitted to be true.
SECOND DEFENSE
80. Plaintiffs' Complaint fails to state a claim upon which relief can
be granted.
9
THIRD DEFENSE
81. Plaintiffs are not entitled to any relief to the extent that their
Tender Offer violates applicable law, including, without limitation, State and
Federal laws requiring prompt, full and fair disclosure of all material facts,
which violations bar all of plaintiffs' claims for relief.
FOURTH DEFENSE
82. Plaintiffs are not entitled to the relief they seek because their
claims are not yet ripe for determination.
FIFTH DEFENSE
83. Plaintiffs are estopped by their actions from asserting challenges
to the Ohio Takeover Act and the Ohio Control Share Acquisition Act.
SIXTH DEFENSE
84. Acme-Cleveland expressly reserves the right to add additional
defenses as such defenses are made known during discovery.
SEVENTH DEFENSE
85. Acme-Cleveland is a corporation created by and existing under the
laws of the State of Ohio, which has the exclusive power to regulate the
internal affairs of Acme-Cleveland.
10
II. COUNTERCLAIMS
FIRST COUNTERCLAIM
86. On March 7, 1996, Danaher and WEC initiated an unsolicited tender
offer to purchase all outstanding shares of Acme-Cleveland. The Tender Offer
was commenced at 6:30 a.m. on that day when George Sherman, President and Chief
Executive Officer of Danaher, telephoned David L. Swift, Chairman and Chief
Executive Officer of Acme-Cleveland, at Mr. Swift's home and informed him of
the Tender Offer and the fact that notice thereof had been published that
morning in The New York Times.
87. On March 7, 1996, Danaher and WEC filed a tender offer statement on
Schedule 14D-1 pursuant to Section 14(d)(1) of the Securities Exchange Act of
1934, 15 U.S.C. Section 78n(d)(1), with the SEC (the "Schedule 14D-1"). Danaher
and WEC announced their intention to purchase any or all of Acme-Cleveland's
shares at a cash price of $27.00 per share. Danaher and WEC also announced
their intention to acquire all shares not purchased pursuant to the Tender
Offer through a back-end merger at the same cash price of $27.00 per share.
88. In their Schedule 14D-1, Danaher and WEC state that, as of March 7,
1996, they had begun taking preliminary steps to commence a solicitation of
appointments of designated agents (the "Agent Designations") to call a special
meeting of Acme-Cleveland's shareholders, for the purpose of removing all of
Acme-Cleveland's incumbent directors, reducing the size of the Board from ten
to three, and electing their own nominees at that special meeting. If their
nominee-directors are elected, Danaher
11
and WEC state that they intend to have those nominee-directors amend Acme-
Cleveland's Code of Regulations, so as to preclude the application of the OCSAA
to plaintiffs' Tender Offer.
89. The $27.00 per share price offered in the Tender Offer is below the
twelve-month high trading price of Acme-Cleveland common shares ($28.75). On
the day that the Tender Offer was announced (March 7, 1996), the market price
per share of Acme-Cleveland common stock on the New York Stock Exchange
increased to more than $30.00 per share -- more than $3.00 above the Tender
Offer price -- where it has remained to the date of this Counterclaim.
90. On March 20, 1996, Acme-Cleveland filed a Schedule 14D-9 with the
SEC, in which it informed its shareholders and the investing public that Acme-
Cleveland's Board of Directors had unanimously determined that the Tender Offer
is inadequate and that Acme-Cleveland will actively explore other strategic
alternatives to that inadequate Tender Offer in order to optimize shareholder
value.
91. On March 8, 1996, Danaher and WEC filed with the SEC preliminary
proxy materials in connection with their proposed solicitation of Agent
Designations to call a special meeting of Acme-Cleveland's shareholders,
different from the special meeting required by the OCSAA, to remove all of
Acme-Cleveland's directors and to elect their own director-nominees (the
"Removal/Election Special Meeting"). Those preliminary proxy materials state
(emphasis added):
THE AGENT DESIGNATIONS WILL NOT CONFER
ANY RIGHTS TO VOTE ON MATTERS BROUGHT
12
BEFORE THE [REMOVAL/ELECTION] SPECIAL
MEETING AND NO PROXIES FOR SUCH VOTES
ARE BEING SOLICITED WITH THIS
SOLICITATION STATEMENT. IF THE
[REMOVAL/ELECTION] SPECIAL MEETING IS
CALLED, PARENT AND THE PURCHASER
[DANAHER AND WEC] WILL SEND COMPANY
SHAREHOLDERS ADDITIONAL PROXY MATERIALS
SOLICITING PROXIES TO VOTE ON THE
[REMOVAL/ELECTION] SPECIAL MEETING
PROPOSALS.
92. The Ohio Merger Moratorium Act, Ohio Rev. Code Chapter 1704 (the
"Moratorium Act"), defines an "interested shareholder" to include a person who,
directly or indirectly, beneficially owns, controls, or is entitled to own or
control ten percent or more of the voting power of an "issuing public
corporation" in the election of directors. Ohio Rev. Code Section
1704.01(C)(8). Acme-Cleveland is an "issuing public corporation" for purposes
of the Moratorium Act. Under Ohio Rev. Code Sections 1704.01(C)(1)(a) and (b),
the term "beneficial owner" includes a "person" who, directly or indirectly,
alone or with others, beneficially owns or is entitled to own or acquire
particular shares. Under Ohio Rev. Code Sections 1704.01(C)(4)(c) and (d), the
term "beneficial owner" also includes a person who, with respect to particular
shares, meets the following tests:
(c) The person directly or indirectly, alone or with others,
including affiliates or associates of that person, has the right to vote or
direct the voting of the shares pursuant to a written or unwritten agreement,
arrangement, or understanding;
(d) The person has a written or unwritten agreement,
arrangement, or understanding with another person who is directly or indirectly
a beneficial owner, or whose affiliates or associates are direct or indirect
beneficial owners, of the shares, if the agreement, arrangement, or
understanding is for the purpose of the first person's or the other person's
13
acquiring, holding, disposing of, voting, or directing the voting of the shares
to or for the benefit of the first person.
Once a person becomes an "interested shareholder," the Moratorium Act imposes
material restrictions on the conduct of that "interested shareholder,"
including a three-year prohibition on any mergers, consolidations, combinations
or majority share acquisitions with, or involving, the issuing public
corporation and further restrictions upon any such transaction following the
three-year moratorium.
93. As of March 7, 1996, Danaher and WEC claimed to be the beneficial
owners of 305,000 shares, or approximately 4.3%, of all outstanding shares of
Acme-Cleveland.
94. If and to the extent that Danaher and/or WEC, alone, together,
and/or with others, acquire ten percent or more of the voting power of Acme-
Cleveland stock in the election of directors, including, without limitation, by
obtaining proxies through their planned solicitation of such proxies to elect
directors at the Removal/Election Special Meeting of shareholders, Danaher
and/or WEC will become, and thereafter remain, an "interested shareholder"
subject to the prohibitions and restrictions of the Moratorium Act.
95. Danaher and WEC presumably will contest any applicability of the
Moratorium Act on the basis of their prior statements and regulatory filings.
96. Acme-Cleveland therefore seeks a declaratory judgment that the
Moratorium Act applies in the circumstances described above.
14
97. Further, if and to the extent that Danaher and/or WEC become
"interested shareholders" of Acme-Cleveland under the Moratorium Act, Acme-
Cleveland is entitled to appropriate preliminary and/or permanent injunctive
relief prohibiting Danaher and/or WEC from taking, or attempting to take, any
actions prohibited by the Moratorium Act.
SECOND COUNTERCLAIM
98. Acme-Cleveland repeats and realleges the contents of paragraphs 86
through 97 above as though fully set forth herein.
99. The preliminary proxy materials that Danaher and WEC have filed
with the SEC and that are described in paragraph 93 above are publicly
available and form part of the total mix of information concerning the Tender
Offer.
100. Danaher and WEC, in connection with the Schedule 14D-1,
preliminary proxy materials, and other public statements, have violated Section
14(e) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78n(e), and
Ohio Rev. Code Section 1707.042 by omitting to state material facts necessary
to make the statements made, in the light of the circumstances under which they
were made, not misleading.
101. Danaher and WEC have stated in the Schedule 14D-1 and elsewhere
that they intend to follow the Tender Offer with a second-step merger in which
they would acquire all of the remaining outstanding shares of Acme-Cleveland
for the same $27.00 per share in cash proposed to be paid pursuant to the
15
Tender Offer. They have also stated that they intend to call the
Removal/Election Special Meeting of Acme-Cleveland shareholders to replace all
of Acme-Cleveland's current directors, to reduce the Board from ten to three,
and to solicit proxies for the election of their own director-nominees. They
have failed to disclose the material fact that, if and to the extent that they
become "interested shareholders" under the Moratorium Act through the
acquisition of over ten percent of the voting power of Acme-Cleveland in the
election of directors by, inter alia, obtaining proxies, they will be
prohibited by that Act from consummating their planned second-stage merger for
at least three years and thereafter could only consummate such a merger if they
met further requirements of the Moratorium Act imposing fair price and super-
majority voting standards.
102. The failure to disclose the material facts alleged in paragraph
101 above concerning the effect of the Moratorium Act upon Danaher and WEC's
announced plans is material to the shareholders of Acme-Cleveland and the
investing public. Unless and until their disclosure violations are completely
cured and adequate time is allowed for shareholders and other investors to
consider and act upon the corrective disclosures, these Federal and Ohio
disclosure violations of Danaher and WEC have caused and will continue to cause
material harm to Acme-Cleveland's shareholders and the investing public.
103. Thus, Acme-Cleveland is entitled to appropriate preliminary and
permanent injunctive relief requiring that plaintiffs cure their violations of
Section 14(e) of the
16
Securities Exchange Act of 1934 and Ohio Rev. Code Section 1707.042 and barring
Danaher and WEC from proceeding further with the Tender Offer until they have
disclosed all material facts concerning the Tender Offer and shareholders and
other investors have had adequate time to consider and act upon the corrective
disclosures.
WHEREFORE, Acme-Cleveland Corporation prays that this Court enter an
order:
(a) dismissing all counts of plaintiffs' Complaint with prejudice;
(b) declaring and adjudging that, if and to the extent that plaintiffs
acquire "beneficial ownership" of more than 10% of the voting power of Acme-
Cleveland stock in the election of directors through the purchase or
acquisition of Acme-Cleveland shares, acquisition of proxies for such purpose,
or otherwise, they will become and remain subject to the Moratorium Act;
(c) declaring and adjudging that, if and to the extent that plaintiffs
become "interested shareholders" of Acme-Cleveland within the meaning of the
Moratorium Act, they are preliminarily and permanently enjoined from engaging
in, or attempting to engage in, any transaction prohibited by the Moratorium
Act;
(d) granting such injunctive relief as is appropriate to cure
plaintiffs' material violations of Section 14(e) of the Securities Exchange Act
of 1934 and Ohio Rev. Code Section 1707.042;
17
(e) awarding Acme-Cleveland its coats and reasonable attorneys' fees in
this action; and
(f) granting Acme-Cleveland such additional relief as is just and
proper.
Respectfully submitted,
/s/ John W. Edwards II by J. K. Cogan
-------------------------------------
John W. Edwards II
Ohio Supreme Court No. 0024848
Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
(216) 586-3939
Trial Attorney for Defendant
Acme-Cleveland Corporation
Of Counsel: /s/ J. K. Cogan
-----------------------------
J. Kevin Cogan
Leigh B. Trevor Ohio Supreme Court No. 0009717
Ohio Supreme Court No. 0000088 Todd S. Swatsler
Jones, Day, Reavis & Pogue Ohio Supreme Court No. 0010172
North Point Jones, Day, Reavis & Pogue
901 Lakeside Avenue 1900 Huntington Center
Cleveland, Ohio 44114 41 South High Street
(216) 586-3939 Columbus, Ohio 43215
(614) 469-3200
/s/ William C. Wilkinson by J. K. Cogan
---------------------------------------
William C. Wilkinson
Ohio Supreme Court No. 0033228
John T. Sunderland
Ohio Supreme Court No. 0010497
Thompson, Hine & Flory P.L.L.
10 West Broad Street
Columbus, Ohio 43215
(614) 469-3266
Attorneys for Defendant
Acme-Cleveland Corporation
18
CERTIFICATE OF SERVICE
Copies of the foregoing Answer and Counterclaims of Acme-Cleveland
Corporation were delivered to counsel for Danaher Corporation and WEC
Acquisition Corporation and to counsel for the State of Ohio defendants:
N. Victor Goodman, Esq.
Mark D. Tucker, Esq.
Benesch, Friedlander, Coplan & Aronoff
88 East Broad Street
9th Floor
Columbus, Ohio 43215 [BY MESSENGER]
Robert Weller, Esq.
Mark A. Phillips, Esq.
Benesch, Friedlander, Coplan & Aronoff
2300 BP America Building
200 Public Square
Cleveland, Ohio 44114-2378 [BY FAX]
Daniel A. Malkoff, Esq.
Assistant Attorney General
26th Floor
30 East Broad Street
Columbus, Ohio 43266-0410 [BY MESSENGER]
James M. Tobin, Esq.
Squire, Sanders & Dempsey
1300 Huntington Center
41 South High Street
Columbus, Ohio 43215 [BY MESSENGER]
on this 21st day of March, 1996.
/s/ J. K. Cogan
-------------------------
An Attorney for Defendant
Acme-Cleveland Corporation
