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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 14D-9/A
(AMENDMENT NO. 5)
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SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(D)(4)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 5)
ACME-CLEVELAND CORPORATION
(NAME OF SUBJECT COMPANY)
ACME-CLEVELAND CORPORATION
(NAME OF PERSON(S) FILING STATEMENT)
COMMON SHARES, $1 PAR VALUE
(INCLUDING ASSOCIATED PREFERRED SHARE PURCHASE RIGHTS)
SERIES A CONVERTIBLE PREFERRED SHARES, WITHOUT PAR VALUE
(TITLE OF CLASS OF SECURITIES)
004626-10-7
(CUSIP NUMBER OF CLASS OF SECURITIES)
DAVID L. SWIFT
CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER
ACME-CLEVELAND CORPORATION
30100 CHAGRIN BOULEVARD, SUITE 100
PEPPER PIKE, OHIO 44124-5705
TELEPHONE: (216) 595-9090
(NAME, ADDRESS AND TELEPHONE NUMBER
OF PERSON AUTHORIZED TO RECEIVE NOTICE AND
COMMUNICATIONS ON BEHALF OF THE PERSON(S) FILING STATEMENT)
COPY TO:
DONALD H. MESSINGER, ESQ.
THOMPSON HINE & FLORY P.L.L.
3900 KEY CENTER
127 PUBLIC SQUARE
CLEVELAND, OHIO 44114-1216
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This Amendment No. 5 amends and supplements the Solicitation/Recommendation
Statement on Schedule 14D-9 filed on March 20, 1996 and subsequently amended (as
amended to date, the "Schedule 14D-9") by Acme-Cleveland Corporation (the
"Company") in connection with a tender offer (the "Offer") made by WEC
Acquisition Corporation ("WEC"), a Delaware corporation and wholly owned
subsidiary of Danaher Corporation, a Delaware corporation ("Danaher"), to
purchase all outstanding Common Shares and all outstanding Series A Preferred
Shares of the Company upon the terms and subject to the conditions set forth in
the Offer to Purchase for Cash, dated March 7, 1996, as amended and
supplemented, and in the related Letter of Transmittal, as amended and
supplemented, as set forth in this Amendment No. 5. Each of the defined terms
used in this Amendment No. 5 has the meaning given to it in the Schedule 14D-9.
References to Shares include the associated preferred share purchase rights.
ITEM 2. TENDER OFFER OF THE BIDDER.
Item 2 of the Schedule 14D-9 is amended and supplemented by adding at the
end thereof the following:
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of May 31, 1996 (the "Merger Agreement"), by and among the Company, Danaher,
and WEC. The Merger Agreement provides that, subject to the terms and conditions
of the Merger Agreement, as soon as practicable following the expiration of the
Offer, WEC will be merged into the Company (the "Merger"), and each
then-outstanding Share not owned by Danaher, WEC, or any other direct or
indirect subsidiary of Danaher (other than Shares held in the treasury of the
Company and Shares held by dissenting shareholders who perfect their dissenter's
rights, if any, under Ohio law), will be cancelled and retired and be converted
into the right to receive in cash an amount per Share, without interest, equal
to $30.00. A copy of the Merger Agreement is filed as Exhibit 2 hereto and is
incorporated herein by reference.
ITEM 3. IDENTITY AND BACKGROUND.
The first sentence of Item 3(b) of the Schedule 14D-9 is amended and
restated to read as follows: "Certain contracts, agreements, arrangements, and
understandings and actual and potential conflicts of interest between the
Company and its affiliates and certain of its executive officers, directors, and
affiliates are described on page 6 and in pages 11 through 15 of the Company's
Proxy Statement dated December 15, 1995 for its 1996 Annual Meeting of
Shareholders held on January 25, 1996 (the "1996 Proxy Statement")."
Item 3(b) of the Schedule 14D-9 is further amended and supplemented by
adding at the end thereof the following:
At the May 30 Board meeting, the Board authorized the payment of bonuses on
a proportional basis for fiscal year 1996 to officers and corporate office bonus
rated employees of the Company up to an aggregate of $500,000. On May 31st, it
was determined that proportional bonuses would be paid initially in an aggregate
amount of $300,000 to certain officers and corporate office bonus rated
employees. The following executive officers of the Company received these
proportional bonuses in an aggregate amount of $234,000: David L. Swift, Earl J.
Bellisario, Ronald C. Drabik, Kenneth B. Neighbors, Diane O. McDaniel, and Donna
M. Flammang.
At the May 31 Board meeting, the Board exercised its discretion to
accelerate the date on which outstanding options become exercisable under the
Acme-Cleveland Corporation 1985 Employees Stock Option and Stock Appreciation
Rights Plan to the date of the execution of the Merger Agreement. As a result of
this acceleration and the execution of the Merger Agreement, an aggregate of
15,500 options held by the following executive officers of the Company became
exercisable: David L. Swift, Earl J. Bellisario, Diane O. McDaniel, Donna M.
Flammang, and James Helton. In addition, the Board determined at this same
meeting to accelerate the payment of all amounts in the accounts under the
Company's Deferred Compensation Plan to a date no later than sixty days
following the execution of the Merger Agreement. As a result of this
determination by the Board and the execution of the Merger Agreement, the
payment of deferred compensation in the aggregate amount of $296,545.91 was
accelerated for the following executive officers of the Company: Mr. Swift, Mr.
Helton, and Mr. Bellisario. At the May 31 Board meeting, the Board also
exercised its discretion to cause certain restrictions on Common Shares which
were the subject of Restriction
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Agreements dated December 7, 1994 to lapse on the date of the execution of the
Merger Agreement. As a result of this action by the Board and the execution of
the Merger Agreement, restrictions lapsed on 18,583 shares held by the following
executive offficers of the Company: Mr. Swift, Mr. Bellisario, Ms. McDaniel, and
Ms. Flammang.
THE MERGER AGREEMENT
The following is a summary of the Merger Agreement. The summary is
qualified in its entirety by reference to the Merger Agreement, which is
incorporated herein by reference.
The Offer. Pursuant to the terms of the Merger Agreement, WEC has agreed
to, and Danaher has agreed to cause WEC to, amend the Offer (and to amend its
Tender Offer Statement on Schedule 14D-1 to reflect such amendment) (i) to
reflect the increase in the Offer Price to $30.00; (ii) to modify the conditions
of the Offer to conform to the conditions of the Offer provided for in the
Merger Agreement (the "Offer Conditions"), and (iii) to extend the Offer until
at least 5:00 p.m. on the date of the 831 Shareholders Meeting. At the Company's
request, WEC will, and Danaher will cause WEC to, extend the Offer from time to
time for up to an aggregate of an additional ten business days following the
date of the 831 Shareholders Meeting if, prior to 5:00 p.m. on the date of such
meeting, there are not validly tendered and not properly withdrawn that number
of Shares which, when aggregated with the Shares currently owned by Danaher and
any of its affiliates, would represent at least a majority of the Shares then
outstanding on a fully diluted basis. Danaher has agreed to effect the amendment
to the Offer described in the first sentence of this paragraph no later than
five business days after the public announcement of the execution of the Merger
Agreement. WEC has also agreed that it will not, and Danaher agrees that it will
cause WEC not to, (i) decrease the Offer Price, (ii) change the form of
consideration payable in the Offer, (iii) change the Offer Conditions, (iv)
impose additional conditions to its obligation to consummate the Offer and to
accept for payment and purchase Shares tendered in the Offer, or (v) change any
other terms of the Offer in a manner adverse to the holders of Shares.
Notwithstanding the foregoing, WEC may extend the expiration date of the Offer
to the extent required by law or if the Offer Conditions are not satisfied. As
further described below, the obligation of WEC to accept for payment and pay for
Shares tendered pursuant to the Offer will be subject only to the Offer
Conditions, all of which may be waived by WEC in its sole discretion.
Pursuant to the terms of the Merger Agreement, the Company has represented
that the Board has (i) resolved to recommend that the Company's shareholders
accept the Offer and tender their Shares pursuant to the Offer and (ii) received
an opinion from Goldman, Sachs that the $30.00 in cash to be received by the
holders of shares in the Offer and the Merger, taken as a unitary transaction,
is fair to such holders. The Company also agrees to not withdraw, modify, or
amend its recommendation included herein that the Company's shareholders accept
the Offer and tender their Shares pursuant to the Offer, unless (i) such
recommendation would not be consistent with the fiduciary duties of the Board
under applicable law, as advised by counsel, or (ii) the Merger Agreement is
terminated in accordance with its terms.
The Offer Conditions. Notwithstanding any other term of the Offer or the
Merger Agreement, WEC's obligations to accept for payment or, subject to any
applicable rules and regulations of the Securities and Exchange Commission (the
"Commission"), to pay for any Shares not theretofore accepted for payment or
paid for pursuant to the Offer are subject to the Offer Conditions.
Specifically, WEC is not obligated to accept for payment or, subject to any
applicable rules and regulations of the Commission, to pay for any Shares not
theretofore accepted for payment or paid for pursuant to the Offer if there are
not validly tendered and not properly withdrawn prior to the expiration of the
Offer such number of Shares which, when aggregated with the Shares currently
owned by Danaher and any of its affiliates, would represent at least a majority
of the Shares then outstanding on a fully diluted basis. Furthermore, WEC will
not be obligated to accept for payment or, subject to any applicable rules and
regulations of the Commission, to pay for any Shares not theretofore accepted
for payment or paid for pursuant to the Offer if at any time on or after the
date of the Merger Agreement and at or before the time that the particular
Shares are accepted for payment (whether or not any other Shares have
theretofore been accepted for payment or paid for pursuant to the Offer) any of
the following conditions exist:
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(a) any provision of applicable domestic law or regulation or any judgment,
injunction, order, or decree of a court or governmental agency or authority of
competent jurisdiction is in effect that (i) makes the Offer or the Merger
illegal or otherwise, directly or indirectly, prohibits, materially restrains,
or makes materially more costly the making of the Offer, the acceptance for
payment of, payment for, or ownership, directly or indirectly, of some or all of
the Shares by WEC or Danaher or materially delays the Merger, (ii) prohibits or
materially limits the ownership or operation by the Company or any of its
subsidiaries that owns a material portion of the business and assets of the
Company and its subsidiaries, taken as a whole, or by Danaher, WEC, or any
subsidiaries of Danaher of all or a material portion of the business or assets
of the Company and its subsidiaries, taken as a whole, or Danaher and its
subsidiaries, taken as a whole, as a result of the Offer, the Merger, or the
other transactions contemplated by the Merger Agreement, or (iii) imposes
limitations on the ability of WEC, Danaher, or any subsidiaries of Danaher
effectively to acquire, hold, or exercise full rights of ownership of the
Shares, including but not limited to, the right to vote any Shares acquired or
owned by WEC, Danaher, or any subsidiaries of Danaher on all matters properly
presented to the shareholders of the Company, including but not limited to, the
approval of the Merger and adoption of the Merger Agreement and the right to
vote any shares of capital stock of any subsidiaries of the Company (other than
immaterial subsidiaries); provided, however, that each of the Company, Danaher,
and WEC agrees to use all reasonable efforts, including appeals to higher
courts, to have any such judgment, injunction, order, or decree lifted;
(b) any consents, authorizations, orders, and approvals of, or filings or
registrations with, any regulatory body required in connection with the
execution, delivery, and performance of the Merger Agreement have not been
obtained or made, except (i) for certain certificates of merger required to be
filed in connection with the Merger as contemplated by the Merger Agreement and
the filing, of any other documents required to be filed after the purchase of
the Shares pursuant to the Offer and (ii) where the failure to obtain or make
any such consent, authorization, order, approval, filing, or registration is not
likely to have, individually or in the aggregate, a material adverse effect on
the financial condition, results of operations, or business of the Company and
its subsidiaries, taken as a whole, excluding any event or condition resulting
from the Merger Agreement or the transactions contemplated by it (a "Company
Material Adverse Effect"), or a material adverse effect on the financial
condition, results of operations, or business of Danaher and its subsidiaries,
taken as a whole (a "Danaher Material Adverse Effect") and would not render the
Offer or the Merger illegal or provide a reasonable basis to conclude that the
parties to the Merger Agreement or their affiliates or any of their respective
directors or officers will be subject to the risk of criminal liability;
(c) any required action by or in respect of, or filing with, any
governmental body, agency, official, or authority, or any action, consent,
approval, or waiver required to be obtained from any party to any material
contracts (a "Third Party Consent") has not been obtained, except where the
failure to obtain any Third Party Consent is not likely to have, individually or
in the aggregate, a Company Material Adverse Effect;
(d) the Company has failed to perform the obligations to be performed by it
under the Merger Agreement at or prior to such time or any representations and
warranties of the Company contained in the Merger Agreement are not true at such
time as if made at and as of such time (unless made as of a specified date, in
which case such representation or warranty will be true as of such date), except
to the extent that the failure to perform such obligations and the untruth of
such representations and warranties is not likely to have, individually or in
the aggregate, a Company Material Adverse Effect, and Danaher has received a
certificate of an executive officer and the chief financial officer of the
Company to the effect of the foregoing;
(e) the acquisition of Shares by WEC pursuant to the Offer has not been
authorized by the Company's shareholders as required by Section 1701.831 of the
Ohio Revised Code;
(f) the Merger Agreement has been terminated in accordance with its terms;
and
(g) the Company has not obtained the consents of each holder of an option
to purchase Common Shares or of a Common Share granted under the Performance
Plan (as defined below) in respect of the cancellation of such option or Common
Share.
Any of the Offer Conditions may be waived by WEC in whole or in part at any
time and from time and time in the sole discretion of WEC. The failure of WEC at
any time to exercise any of the foregoing rights will
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not be deemed a waiver of any such right and no single or partial exercise of
any such right will preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
The 831 Shareholders Meeting. In the Merger Agreement, the Company has
agreed to reconvene the 831 Shareholders Meeting at the earliest possible date,
and the Company will not postpone or adjourn the 831 Shareholders Meeting
(except as a result of the absence of a quorum) without Danaher's consent,
unless Danaher requests such postponement or adjournment. The methods for
identifying "interested shares" as defined in Section 1701.01(CC) of the Ohio
Revised Code and for determining whether the related quorum requirement is met
at the 831 Shareholders Meeting will be as set forth in the Merger Agreement.
Pursuant to the terms of the Merger Agreement, the Board will recommend that the
Company's shareholders approve the proposed "control share acquisition" at the
831 Shareholders Meeting, unless such recommendation would not be consistent
with the Board's fiduciary duties under applicable law, as advised by counsel,
or the Merger Agreement is terminated in accordance with its terms.
Board Designees. The Merger Agreement provides that, promptly following
the purchase by WEC pursuant to the Offer of that number of Shares which, when
aggregated with the Shares owned by Danaher and any of its affiliates,
represents at least a majority of the Shares then outstanding on a fully diluted
basis and subject to the Company's obligations under Section 14(f) of the
Securities Exchange Act of 1934, as amended (the "'34 Act"), and Rule 14f-1
thereunder, WEC will be permitted to designate members of the Board such that
WEC will have a number of representatives on the Board equal to the product,
rounded up to the next whole number, of (i) the total number of directors of the
Company multiplied by (ii) the percentage that the number of Shares then
beneficially owned by WEC or its affiliates bears to the number of Shares
outstanding at the time of such purchase. The Company has agreed to increase the
size of the Board, or use its reasonable efforts to secure the resignation of
directors, or both, as may be necessary to permit WEC's designees to be elected
or appointed to the Board. Notwithstanding the foregoing, prior to the Effective
Time (as defined herein), the Board will always have at least two members who
are not officers, designees, shareholders, or affiliates of WEC (the
"Independent Directors"). All of the Independent Directors will be individuals
who are currently directors of the Company, except to the extent that such
individuals do not wish to continue as directors or voluntarily resign. The
Company has further agreed to take all actions required pursuant to Section
14(f) of the '34 Act and Rule 14f-1 thereunder in connection with the election
or appointment of WEC's designees to the Board. Furthermore, following the
election or appointment of WEC's designees to the Board, any of the following
will require the concurrence of a majority of the Independent Directors, unless
no individuals who are currently directors of the Company wish to continue as
directors or all such individuals voluntarily resign: (i) any amendment to the
Merger Agreement; (ii) the termination of the Merger Agreement by the Company;
(iii) any extension by the Company of the time for the performance of the
obligations of WEC or Danaher under the Merger Agreement; (iv) any
recommendation to shareholders or any modification or withdrawal of any such
recommendation; or (v) any waiver of any of the Company's rights under the
Agreement.
Disposition of Ohio Litigation. Pursuant to the terms of the Merger
Agreement, WEC and Danaher also have agreed, as promptly as possible but in no
event later than five business days after the public announcement of the
execution of the Merger Agreement, to move to withdraw, without prejudice, their
complaint in the case entitled Danaher Corporation, et al., v. Acme-Cleveland
Corporation, et al., Case No. C2 96-0247, pending in the United State District
Court for the Southern District of Ohio, Eastern Division. The Company has
agreed to move to withdraw, without prejudice, its counterclaims in that case.
The Merger. The Merger Agreement provides that, at the Effective Time, WEC
will be merged with and into the Company in accordance with applicable law. The
Company will be the surviving corporation (the "Surviving Corporation") in the
Merger. As soon as practicable after satisfaction or waiver of all conditions to
the Merger set forth in the Merger Agreement, the parties will cause certain
certificates of merger to be filed in accordance with applicable state law. Upon
filing of both of such certificates, the Merger will become effective (the
"Effective Time").
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Until amended in accordance with applicable law, the articles of
incorporation and regulations of the Company in effect at the Effective Time
will be the articles of incorporation and regulations of the Surviving
Corporation after the consummation of the Merger. Until successors are duly
elected or appointed and qualified, from and after the Effective Time, the
officers and directors of WEC at the Effective Time will be the officers and
directors of the Surviving Corporation after the consummation of the Merger. The
failure to retain the officers of the Company as officers of the Surviving
Corporation will qualify as Good Reason to terminate for purposes of the
Severance Pay Agreements between the Company and certain executive officers of
the Company or of a subsidiary of the Company and the Employment Agreement
between the Company and Mr. Swift, entitling such persons to receive lump sum
payments under such contracts upon such termination.
By virtue of the Merger, at the Effective Time, (i) each then issued and
outstanding Common Share of WEC will be converted into one Common Share of the
Surviving Corporation, (ii) each then issued and outstanding Share, except for
Shares held by the Company as treasury shares or owned by Danaher or any
subsidiary of Danaher (which Shares will be immediately canceled and no payment
will be made with respect thereto) will be converted into the right to receive,
without interest, an amount in cash equal to $30.00 (the "Merger
Consideration"). From and after the Effective Time, all Shares will be canceled
and retired and cease to exist and each holder of a certificate representing any
Shares immediately prior to the Effective Time will thereafter cease to have any
rights with respect to such Shares, except the right to receive the Merger
Consideration or the right, if any, to receive payment from the Surviving
Corporation of the "fair cash value" of such Shares as determined in accordance
with Section 1701.85 of the Ohio Revised Code.
Stock Options and Performance Shares. At the earlier of the purchase of
Shares pursuant to the Offer and the Effective Time, subject to obtaining the
consent of the holder thereof, each outstanding option to purchase Common
Shares, whether or not exercisable, granted under an employee stock option or
incentive plan of the Company will be cancelled and converted into the right to
receive, without interest, an amount in cash equal to the product of (i) the
number of Common Shares subject to the option and (ii) the excess of (a) the
Merger Consideration over (b) the exercise price per share of the option.
At the earlier of the purchase of Shares pursuant to the Offer and the
Effective Time, subject to obtaining the consent of the holder thereof, each
Common Share to which an employee of the Company is entitled under the
Acme-Cleveland Corporation Performance and Equity Incentive Plan (the
"Performance Plan") will be cancelled and will be converted into the right to
receive, without interest, an amount in cash equal to the Merger Consideration.
Representations and Warranties of the Company. In the Merger Agreement,
the Company has made customary representations and warranties to WEC and
Danaher, including, but not limited to, representations and warranties relating
to the following: the organization and qualifications of the Company and its
subsidiaries; the authority of the Company to enter into and perform its
obligations under the Merger Agreement and carry out the related transactions;
required consents and approvals; the capitalization of the Company and its
subsidiaries; filings made by the Company with the Commission; the Company's
consolidated financial statements; the absence of certain changes or
developments since September 30, 1995, including, without limitation, any
changes or developments since that date which would result in a Company Material
Adverse Effect; litigation; employee benefit matters; taxes; intellectual
property rights; environmental matters; state takeover statutes; and documents
supplied, filed, or distributed by the Company relating to the Offer.
Representations and Warranties of Danaher and WEC. Danaher and WEC have
also made customary representations and warranties in the Merger Agreement,
including, without limitation, representations and warranties relating to the
following: the organization of Danaher and WEC; the authority of each of Danaher
and WEC to enter into and perform its obligations under the Merger Agreement and
carry out the related transactions; required consents and approvals; filings
made by Danaher with the Commission; Danaher's consolidated financial
statements; litigation; availability of sufficient funds to consummate the
Offer; and documents supplied, filed, or distributed by Danaher or WEC relating
to the Offer.
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Covenants of the Company. In the Merger Agreement, the Company has agreed
that, except as contemplated or permitted by the Merger Agreement or
specifically disclosed in the schedules thereto, or as otherwise approved in
writing by Danaher, from the date of the Merger Agreement until the Effective
Time, the Company and its subsidiaries will conduct their businesses in the
ordinary course consistent with past practice. The Merger Agreement provides
that from the date of the Merger Agreement until the Effective Time (i) the
Company will not adopt or propose any change or amendment in its articles of
incorporation or regulations; (ii) the Company will not, and will not permit any
of its subsidiaries to, merge, consolidate, or enter into a share exchange with
any other individual, corporation, partnership, association, trust, or other
entity or organization (including a government or political subdivision or any
agency or instrumentality thereof) (a "Person"), sell, lease, license, mortgage,
pledge, or otherwise dispose of any material assets, except (a) in the ordinary
course consistent with past practice or (b) transfers between the Company or its
wholly owned subsidiaries; (iii) the Company will not declare, set aside, or pay
any dividends or make any distributions on the Shares, other than normal
quarterly dividends at the rates in effect on the date of the Merger Agreement;
(iv) the Company will not, and will not permit any of its subsidiaries to, (a)
issue, deliver, sell, encumber, or authorize or propose the issuance, delivery,
sale, or encumbrance of, any capital stock or other securities of the Company or
any capital stock or other securities of its subsidiaries ("Company Subsidiary
Securities"), other than the issuance of Common Shares upon the exercise of
outstanding options to purchase Common Shares granted prior to the date hereof
or upon conversion of the Series A Preferred Shares, (b) split, combine, or
reclassify any Shares or Company Subsidiary Securities, (c) repurchase, redeem,
or otherwise acquire any capital stock or other securities of the Company or any
Company Subsidiary Securities, or (d) amend the terms of any outstanding
securities; (v) the Company will not make any commitment or enter into any
contract or agreement that is likely to be, individually or in the aggregate,
material to the Company and its subsidiaries taken as a whole except in the
ordinary course of business consistent with past practice; (vi) except to the
extent required by law, by existing contract, or by policy currently in effect,
the Company and its Subsidiaries will not increase in any manner the
compensation or fringe benefits of any of its directors or officers, pay any
pension or retirement allowance to any directors or officers, or become a party
to, amend, or commit itself to any pension, retirement, profit-sharing, welfare-
benefit plan, or employment agreement with or for the benefit of any director or
officer, other than the payment of bonuses not exceeding, in the aggregate,
$200,000 to officers of the Company in the ordinary course of business
consistent with past practices; (vii) the Company will not, and will not permit
any of its subsidiaries to, make any tax election or settle or compromise any
material federal, state, local, or foreign tax liability; (viii) the Company
will not take, and will not permit any of its subsidiaries to take, any action
that would make any representation or warranty of the Company contained in the
Merger Agreement inaccurate in any material respect at, or as of, any time prior
to the Effective Time or that would cause any closing condition under the Merger
Agreement not to be satisfied, except as may be required by law; and (ix) the
Company will not agree to do any of the foregoing.
In the Merger Agreement, the Company has further agreed that, from the date
of the Merger Agreement until its termination, it and its subsidiaries will not,
and will use all reasonable efforts to cause their officers, directors,
employees, and agents not to, directly or indirectly, (i) take any action to
solicit or initiate any good faith offer or proposal for a merger or other
business combination involving the Company, the acquisition of the entire equity
interest in the Company, or the acquisition of all or substantially all of the
assets of the Company (a "Company Acquisition Proposal"), other than the
transactions contemplated by the Merger Agreement or (ii) engage in negotiations
or enter into agreements with any Person with respect to a Company Acquisition
Proposal, disclose any nonpublic information relating to the Company or any of
its subsidiaries, or afford access to the properties, books, or records of the
Company or any of its subsidiaries, to any Person; provided, however, that the
Company may engage in negotiations with or disclose such non-public information,
or provide such access to, any Person who has made an unsolicited Company
Acquisition Proposal if the Board, after consultation with outside counsel to
the Company, determines that its fiduciary duties under applicable law require
such actions. In such event, the Company will notify Danaher that it has
received a Company Acquisition Proposal and advise Danaher of the material terms
and conditions thereof.
The Company has further agreed that, if required by the provisions of the
Ohio Revised Code in order to consummate the Merger, it will take all action
necessary in accordance with such law and with the Company's
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articles of incorporation and regulations to convene a meeting of its
shareholders to approve the Merger and adopt the Merger Agreement (the "Merger
Meeting"). The Board will recommend that the Company's shareholders approve the
Merger and adopt the Merger Agreement, and will cause the Company to use all
reasonable efforts to solicit from the shareholders proxies to vote therefor,
unless (i) such recommendation would not be consistent with the fiduciary duties
of the Board under applicable law, as advised by counsel or (ii) the Merger
Agreement is terminated in accordance with its terms. If required by law for the
consummation of the Merger, the Company will prepare and file with the
Commission preliminary proxy materials relating to the approval of the Merger
and the adoption of the Merger Agreement by the Company's shareholders, will
provide Danaher with any and all comments thereon by the Commission's staff,
will use all reasonable efforts to discuss with Danaher any proposed changes to
such preliminary proxy materials prior to responding to any comments thereon by
the Commission's staff, and will file with the Commission revised preliminary
proxy materials, if appropriate, and definitive proxy materials in a timely
manner as required by the rules and regulations of the Commission. Except as
otherwise provided in the preceding sentence, the proxy material relating to the
Merger Meeting will include the recommendation of the Board.
Covenants of Danaher and WEC. In the Merger Agreement, Danaher and WEC
have agreed, from and after the Effective Time, to indemnify, defend, and hold
harmless the present and former directors, officers, and employees of the
Company and its subsidiaries against all losses, claims, damages, and liability
in respect of acts or omissions by them at or prior to the Effective Time.
Danaher will not take any action to terminate or amend the Company's current
directors' and officers' liability insurance in respect of acts or omissions
occurring at or prior to the Effective Time for at least six years after the
Effective Time.
Pursuant to the Merger Agreement, Danaher and WEC have agreed, jointly and
severally, that they will not, and will cause the Surviving Corporation not to,
contest the validity of (i) any employee benefit plan (as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) that is (a) subject to any provision of ERISA and (b) is maintained,
administered, or contributed to by the Company or any affiliate and covers any
employee or former employee of the Company or any affiliate or under which the
Company or any affiliate has any liability (the "Company Employee Plans") or
(ii) any employment, severance, welfare, or other similar contract, arrangement,
or policy, or any plan or arrangement (written or oral) providing for
compensation, benefit, bonus, profit-sharing, stock option, or other stock
related rights or other forms of incentive or deferred compensation that (a) is
not a Company Employee Plan, (b) is entered into, maintained, or contributed to,
as the case may be, by the Company or any of its affiliates, and (c) covers any
employee or former employee or director or former director of the Company or any
of its affiliates (the "Company Benefit Arrangements"), and which Company
Benefit Arrangements are identified in the Merger Agreement, consist of
immaterial arrangements with one or more employees or groups of employees, or
have been disclosed in any report, schedule, registration statement, or other
document required to be filed with the Commission and so filed prior to the date
of the Merger Agreement. Furthermore, Danaher and WEC will, and will cause the
Surviving Corporation to, provide the benefits and perform the obligations of
the Company and its subsidiaries to present or former officers and employees of
the Company or its subsidiaries arising on or before the Effective Time under
the Company Employee Plans and the Company Benefit Arrangements identified
above. In the Merger Agreement, Danaher and WEC also jointly and severally agree
to reimburse, and to cause the Surviving Corporation to reimburse, such present
or former officers and certain employees for the costs, including reasonable
attorneys' fees, of any litigation initiated by, or initiated or threatened
against, any of them in connection with the enforcement of their rights set
forth in the immediately preceding two sentences; provided, however, that no
such reimbursement will be provided (and any such reimbursement previously made
will be refunded) with respect to any claim made by such present or former
officer or employee if the court determines that the claim was not made in good
faith. With respect to benefits arising after the Effective Time, Danaher and
WEC have stated in the Merger Agreement their intention that Danaher will
continue to provide to the former employees of the Company and its subsidiaries
who remain as employees of the Surviving Corporation and its subsidiaries after
the Effective Time each of the benefits which they now receive from the Company
and its subsidiaries at least through December 31, 1996, including benefits
under the Company Employee Plans and the Company Benefit Arrangements, but
excluding any equity-based compensation or benefits. Danaher and WEC will
continue to
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provide to such employees, however, for at least one year after the Effective
Time, the same severance benefits as are now provided to them by the Company.
Pursuant to the Merger Agreement, Danaher has agreed to vote, or cause to
be voted, all Shares beneficially owned by it in favor of the Merger and WEC has
agreed to consummate the Merger pursuant to the "short form" merger provisions
of the Ohio Revised Code if applicable.
Covenants of the Company, Danaher, and WEC. Pursuant to the Merger
Agreement, the Company, Danaher, and WEC have agreed that, if any "fair price",
"moratorium", or "control share acquisition" statute or other similar statute or
regulation becomes applicable to the transactions contemplated by the Merger
Agreement, they will each, along with their respective boards of directors, use
all reasonable efforts to grant such approvals and take such actions as are
necessary so that the transactions contemplated by the Merger Agreement may be
consummated as promptly as practicable on the terms contemplated thereby and
otherwise act to minimize the effects of such statute or regulation on the
transactions contemplated by the Merger Agreement.
Conditions to the Merger. The obligations of the Company, Danaher and WEC
to consummate the Merger are subject to the satisfaction, at or before the
Effective Time, of each of the following conditions: (i) if required by
applicable law, the Merger has been approved, and the Merger Agreement has been
adopted, by the requisite vote of the Company's shareholders; and (ii) no
provision of any applicable domestic law or regulation, and no judgment,
injunction, order, or decree of a court or governmental agency or authority of
competent jurisdiction is in effect that has the effect of making the Offer or
the Merger illegal or otherwise restrains or prohibits the purchase of Shares
pursuant to the Offer or the consummation of the Merger (provided, however, that
each party agrees to use all reasonable efforts, including appeals to higher
courts, to have any such judgment, injunction, order, or decree lifted). The
obligations of Danaher and WEC to consummate the Merger are subject to
satisfaction or waiver of the Offer Conditions and to compliance by the Company
with its obligations set forth in the Merger Agreement related to the election
or appointment of WEC's designees to the Board.
Termination. The Merger Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Time, notwithstanding any prior
approval of the Merger and adoption of the Merger Agreement by the Company's
shareholders, (i) by the mutual written consent of the Company, Danaher, and
WEC; (ii) by either the Company or Danaher if the Merger has not been
consummated by November 30, 1996, provided that such right of termination will
not be available to any party that, at the time of termination, is in material
breach of its obligations under the Merger Agreement; (iii) by either the
Company or Danaher if any applicable domestic law, rule, or regulation makes
consummation of the Merger illegal or if any judgment, injunction, order, or
decree of a court or governmental agency or authority of competent jurisdiction
restrains or prohibits the consummation of the Merger, and such judgment,
injunction, order, or decree has become final and nonappealable; (iv) by either
the Company or Danaher if the requisite vote of the Company's shareholders
approving the Merger and adopting the Merger Agreement has not been obtained at
the meeting of the shareholders called for that purpose, as contemplated by the
Merger Agreement; (v) by either the Company or Danaher if the Offer terminates
without the purchase of Shares thereunder; (vi) prior to the purchase of Shares
by WEC pursuant to the Offer, by Danaher if the Board does not publicly
recommend in the Schedule 14D-9 or in the proxy material relating to the 831
Shareholders Meeting or the Merger Meeting that the Company's shareholders
accept the Offer and tender their Shares pursuant to the Offer and approve the
Merger and adopt the Merger Agreement, or if the Board withdraws, modifies, or
changes such recommendation in any manner adverse to Danaher; or (vii) by the
Company if the Company receives an unsolicited Company Acquisition Proposal that
the Board determines in good faith, after consultation with its legal and
financial advisors, is likely to lead to a merger, acquisition, consolidation,
or similar transaction that is more favorable to the shareholders of the Company
than the Merger, provided the Company has given Danaher at least five business
days notice of the material terms of the Company Acquisition Proposal and has
paid the Termination Fee (as defined below).
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In the event of any such termination of the Merger Agreement and
abandonment of the Merger, no party to the Merger Agreement (or any of its
directors or officers) will have any liability or further obligation to any
other party to the Merger Agreement except (i) as provided in the Merger
Agreement with respect to certain fees and expenses, (ii) for obligations
contained in the Merger Agreement with respect to payment of fees and expenses
and arising out of the applicability of the Confidentiality Agreement between
the Company and Danaher, dated April 17, 1996, to information provided pursuant
to the Merger Agreement, which will survive termination of the Merger Agreement
and abandonment of the Merger, and (iii) for liability for any breach of the
Merger Agreement which will survive such termination.
Fees and Expenses. The Merger Agreement provides that, except as set forth
below, all costs and expenses incurred in connection with the Merger Agreement
will be paid by the party incurring the costs and expenses; provided, however,
the Company and Danaher will each pay one-half of all printing, filing, and
mailing costs for the proxy statement and all filing fees for filings required
by the Commission or the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
and other regulatory filings.
Pursuant to the Merger Agreement, if (i) the Merger Agreement is terminated
by the Company because the Company receives an unsolicited Company Acquisition
Proposal that the Board determines in good faith, after consultation with its
legal and financial advisors, is likely to lead to a merger, acquisition,
consolidation, or similar transaction that is more favorable to the shareholders
of the Company than the Merger, (ii) any Person publicly makes a Company
Acquisition Proposal and thereafter the Merger Agreement is terminated because
the Merger has not been consummated by November 30, 1996 or the Company's
shareholders have failed to approve the Merger and adopt the Merger Agreement,
or (iii) any Person publicly makes a Company Acquisition Proposal and thereafter
the Merger Agreement is terminated by Danaher because the Board did not publicly
recommend in the Schedule 14D-9 or in the proxy material relating to the 831
Shareholders Meeting or the Merger Meeting that the Company's shareholders
accept the Offer and tender their Shares and approve the Merger and adopt the
Merger Agreement, or the Board has withdrawn, modified, or changed such
recommendation in any manner adverse to Danaher, then the Company has agreed to
reimburse Danaher and WEC for all of their reasonable documented out-of-pocket
expenses and fees other than litigation expenses (subject to a maximum
reimbursement obligation of $1,500,000) actually incurred by Danaher in
connection with the transactions contemplated by the Merger Agreement prior to
the termination of the Merger Agreement, including, without limitation, all fees
and expenses of counsel, financial advisors, accountants, and environmental and
other experts and consultants to Danaher and WEC ("Transaction Costs"). If (i)
the Merger Agreement is terminated by the Company as set forth in clause (i) of
the immediately preceding sentence, (ii) any Person publicly makes a Company
Acquisition Proposal, thereafter the Merger Agreement is terminated as set forth
in clause (ii) of the immediately preceding sentence, and within 12 months after
termination, the Company accepts or consummates any Company Acquisition
Proposal, or (iii) any Person publicly makes a Company Acquisition Proposal and
thereafter the Merger Agreement is terminated as set forth in clause (iii) of
the immediately preceding sentence, then, in addition to reimbursing Danaher and
WEC for their Transaction Costs, the Company has agreed to pay to Danaher a fee
of $6,000,000 (the "Termination Fee").
In the Merger Agreement, Danaher and WEC have agreed that if Danaher
receives a Termination Fee, neither Danaher, WEC, nor any of their affiliates
will assert or pursue in any manner, directly or indirectly, any claim or cause
of action (i) against any person submitting a Company Acquisition Proposal or
(ii) against the Company or any of its directors, officers, employees, agents,
or representatives based in whole or in part upon its or their receipt,
consideration, recommendation, or approval of the Company Acquisition Proposal,
including the Company's exercise of its right to terminate the Merger Agreement.
Waiver and Amendment. Subject to applicable law, any provision of the
Merger Agreement may be amended or waived if such amendment or waiver is in
writing and signed, in the case of an amendment, by each of the parties to the
Merger Agreement, and, in the case of a waiver, by the party against whom the
waiver is to be effective.
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ITEM 4. THE SOLICITATION OR RECOMMENDATION.
Item 4(a) of the Schedule 14D-9 is hereby amended to include, at the end of
the subsection captioned "Background," the following:
Following the March 20, 1996, meeting of the Board, and consistent with the
directive of the Board, the Company's management initiated a process for
exploring strategic alternatives to optimize shareholder value, including
identifying potential purchasers and facilitating their review of the Company.
In addition, the Company and the State of Ohio commenced their defense of the
litigation initiated by Danaher and WEC. A hearing on plaintiffs' request for an
injunction took place on April 9, 10, and 11, 1996, and was scheduled to resume
on April 18, 1996.
On April 17, 1996, the Company and Danaher entered into agreements
providing for (1) the receipt by Danaher of non-public information about the
Company, (2) the postponement of the 831 Shareholders Meeting until after June
30, 1996, and the resolution of issues regarding eligibility for voting at the
Special Meeting, and (3) the suspension of the litigation initiated by Danaher
until after June 30, 1996.
The agreements between the Company and Danaher were designed to permit
Danaher to participate in the Company's process on substantially the same basis
as other potential purchasers of the Company, some of whom had theretofore
received non-public information about the Company, interviewed management, and
visited facilities of the Company.
In consideration for being permitted to participate in the process and
being able to receive non-public information regarding the Company, Danaher
agreed that, prior to June 30, 1996, unless the Company requested it to do so in
writing, Danaher would not alter any of the material terms of its Offer (other
than to terminate the Offer or to extend the term of the Offer) or commence a
new tender offer or exchange offer for Shares of the Company. Other potential
purchasers also signed agreements that precluded them from proposing to acquire
the Company for a specified period of time unless the Company requested them to
do so in writing. The Company has stated that one of the purposes of these
agreements was to enable the Company to have sufficient time to evaluate all of
its strategic alternatives to the Offer, while allowing potential purchasers to
have an ample opportunity to review and evaluate the information about the
Company during the period.
On April 24, 1996, Danaher and its representatives visited the Company's
headquarters offices and received the non-public information about the Company
that had been made available to other potential purchasers and interviewed the
Company's management. During the following week, representatives of Danaher
visited facilities of the Company.
During the same and subsequent periods, the Company continued to
communicate with other potential purchasers of the Company. As of May 30, 1996,
the Company and its representatives had communicated with over 75 companies that
had been identified as potential purchasers, of whom approximately two-thirds
reviewed information regarding the Company. Approximately 25 potential
purchasers either entered into confidentiality agreements or were considering
confidentiality agreements as of May 30, 1996. As of that date, however, none of
the potential purchasers had presented a proposal to the Company for the
purchase of the Company.
On May 23, 1996, the Board reviewed in detail the status of the process of
exploring strategic alternatives to the Offer and held discussions with the
Company's financial advisors and legal counsel. Based on these discussions, the
Board determined to continue the Company's process. At that point in time,
Danaher had made no proposal to increase the price of its Offer.
On May 24, 1996, the Board received a letter from Danaher stating that it
was prepared to offer to acquire the Company at a price of $29 per outstanding
Share. A copy of the letter is incorporated herein by reference to Exhibit 1 to
the Schedule 14D-9/A (Amendment No. 3) filed by the Company on May 31, 1996.
According to the letter, Danaher's proposal would expire at 9:00 a.m., New York
time, on May 28, 1996, if the Company did not accept it by that time. Danaher
also stated that, if the Company did not accept the proposal, Danaher would seek
to call a special meeting of the Company's shareholders for the purpose of
replacing the
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Company's Board of Directors and, if its nominees were elected, seek to
consummate the acquisition of the Company pursuant to its $27 per Share Offer.
The Company, after engaging in discussions with Danaher regarding price and
value, advised Danaher that its proposal was neither persuasive nor compelling
and that the Company would continue actively to explore its alternatives.
Subsequently, on May 28, 1996, Danaher informed Acme-Cleveland that it was
prepared to increase its Offer to $30 per Share (the "Increased Offer Price").
During the next three days, the Company's Chairman, financial advisors, and
legal counsel negotiated the principal terms of the Merger Agreement with
representatives of Danaher. The principal issues in these negotiations involved
the Company's insistence that there be no contingencies or uncertainties that
might be likely to prevent the consummation of the proposed transactions and
that the Company be permitted, after payment of the Termination Fee, to
terminate any agreement with Danaher in the event that it receives an
unsolicited written proposal with respect to the acquisition of the Company from
a third party that the Board of Directors determines, in good faith, is likely
to lead to a transaction that is more favorable to the shareholders of the
Company than the acquisition by Danaher. The Company also required contractual
assurance that all outstanding agreements of the Company be honored, including
those pertaining to employee benefit arrangements.
Late in the afternoon on May 29, 1996, and during the early evening on May
30, 1996, the Board met to review the status of the discussions with Danaher and
held further discussions with the Company's financial advisors with respect to
the status of the process and the terms of the proposal by Danaher.
The Board met again on May 31, 1996, to consider the proposal from Danaher
and the negotiated terms of the Merger Agreement. The Board received an oral
presentation from Goldman Sachs, who advised the Board that, in its opinion, as
of such date the $30 in cash to be received by the holders of Shares in the
Offer and the Merger, taken as a unitary transaction, is fair to such holders.
The Board also received a report from the Company's legal counsel with respect
to the terms of the proposed definitive agreement.
After lengthy review and consideration, the Board determined that
acceptance of the Offer at the Increased Offer Price would be in the best
interests of the Company and its shareholders. The Board then acted to amend the
Company's Rights Agreement to provide that it would not apply to the
transactions proposed by Danaher, took certain procedural actions with respect
to the 831 Shareholders Meeting and applicable Ohio statutes, and approved the
Merger Agreement with Danaher and the transactions contemplated thereby.
Item 4(a) of the Schedule 14D-9 is hereby amended to include, at the end of
the subsection captioned "Recommendation," the following:
At the May 31, 1996 meeting, the Board unanimously determined that the
Offer at the Increased Offer Price was fair to, and in the best interests of,
the Company and its shareholders. ACCORDINGLY, THE BOARD UNANIMOUSLY RECOMMENDED
THAT THE COMPANY'S SHAREHOLDERS ACCEPT THE OFFER AT THE INCREASED OFFER PRICE
AND TENDER THEIR SHARES PURSUANT TO THE OFFER AT THE INCREASED OFFER PRICE.
Item 4(b) of the Schedule 14D-9 is amended and supplemented by adding at
the end thereof the following:
In reaching its conclusions and the recommendation described above at its
May 31, 1996 meeting, the Board considered a number of factors, including,
without limitation, the following:
(i) The terms and conditions of the Offer, including the Increased
Offer Price.
(ii) The Board's familiarity with the Company's businesses, assets,
financial condition, and future prospects.
(iii) The strategic direction of the Company and the merits and risks
of that strategic direction and the nature of the industries in which the
Company operates.
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(iv) The strategic alternatives available to the Company, taking into
consideration, among other things, the results of the process undertaken at
the Board's direction by the management of the Company, with the assistance
of Goldman Sachs, the Company's financial advisor, to explore strategic
alternatives to optimize shareholder value that involved, among other
things, contacting entities that the Company and Goldman Sachs reasonably
believed would be interested in entering into a business combination
transaction with the Company and providing certain entities with
information and access to the Company's officials and representatives and
inviting proposals.
(v) The fact that the process of exploring strategic alternatives to
optimize shareholder value undertaken by the Company at the direction of
the Board had, to that point, not resulted in any competing proposals for
the acquisition of the Company and that, under the terms of the Merger
Agreement, the Company would have the right, subject to the Company's
obligation under the Merger Agreement to pay Transaction Costs and the
Termination Fee as provided therein, to (a) engage in negotiations with,
disclose non-public information to, and provide access to its properties,
books, and records to any person who has made a Company Acquisition
Proposal if the Board, after consultation with outside counsel to the
Company, determines that its fiduciary duties require such actions and (b)
terminate the Merger Agreement with Danaher if the Company receives an
unsolicited written proposal with respect to a Company Acquisition Proposal
that the Board determines in good faith, after consultation with its legal
and financial advisors, is likely to lead to an acquisition transaction
that is more favorable to shareholders of the Company than the Merger.
(vi) The views of the Company's management as to the Company's
financial condition and current conditions in the industries in which the
Company's businesses operate and the Company's prospects for future growth
and profitability.
(vii) The oral opinion of Goldman Sachs that based upon certain
considerations and assumptions, as of May 31, 1996, the $30 per share in
cash to be received by shareholders in the Offer and the Merger, taken as a
unitary transaction, is fair to such holders. Goldman Sachs subsequently
confirmed its oral opinion by delivery of its written opinion dated June 5,
1996. The full text of Goldman Sachs' written opinion, dated June 5, 1996,
delivered to the Board which sets forth the assumptions made, procedures
followed, matters considered, and limits of its review, is filed as Exhibit
4 to this Schedule 14D-9 and is incorporated herein by reference. THE TEXT
OF SUCH OPINION SHOULD BE READ IN CONJUNCTION WITH THIS STATEMENT.
In reaching its recommendation, no specific weightings were given by the
Board to any of the foregoing factors, although the Increased Offer Price and
the matters set forth in subparagraphs (iv) and (v) above were significant
factors in reaching its conclusions. Such a determination of specific weightings
would, in the Board's view, be impracticable. In addition, individual members of
the Board may have given various weightings to different factors.
ITEM 6. RECENT TRANSACTIONS AND INTENT WITH RESPECT TO SECURITIES.
Item 6(a) of the Schedule 14D-9 is amended and supplemented by adding at
the end thereof the following:
To the best of the Company's knowledge, no transactions in the Shares have
been effected during the past 60 days by the Company or by any executive
officer, director, affiliate or subsidiary of the Company, other than the
exercise by David L. Swift, Chairman of the Board, President and Chief Executive
Officer and a director of the Company, on March 25, 1996, of a previously
granted option for 13,000 Common Shares at an exercise price of $14.125 per
Common Share and the exercise by Jon Slaybaugh, President of Namco Controls
Corporation, on May 10, 1996 of previously granted options for 2,000, 2,000 and
1,500 Common Shares at exercise prices of $9.750, $5.000 and $6.875 per Common
Share, respectively, and the forfeiture by Mr. Slaybaugh of 2,500 performance
shares previously awarded under the Performance Plan.
Item 6(b) of the Schedule 14D-9 is amended and supplemented by adding at
the end thereof the following:
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To the best of the Company's knowledge, all of the executive officers,
directors, affiliates and subsidiaries of the Company currently intend to
tender, pursuant to the Offer at the Increased Offer Price, all Shares
beneficially owned by them, except for those Shares, if any, held by such
persons which, if tendered, would cause such persons to incur liabilities under
the provisions of Section 16(b) of the Securities Exchange Act of 1934, as
amended. The foregoing does not include any Shares over which, or with respect
to which, any such person acts in a fiduciary or representative capacity or is
subject to the instructions of a third party with respect to such tender.
ITEM 7. CERTAIN NEGOTIATIONS AND TRANSACTIONS BY THE SUBJECT COMPANY.
Item 7(a) of the Schedule 14D-9 is hereby amended and supplemented by
adding at the end thereof the following:
The Company has terminated all existing activities, discussions, or
negotiations with third parties with respect to any proposed Company Acquisition
Proposal. Except for the proposed transactions with Danaher and WEC discussed
herein, the Company is not currently engaged in any negotiation in response to
the Offer which relates to or would result in (i) an extraordinary transaction,
such as a merger or reorganization, involving the Company of any of its
subsidiaries, (ii) a purchase, sale, or transfer of a material amount of assets
by the Company or any of its subsidiaries, (iii) a tender offer for or other
acquisition of securities by or of the Company, or (iv) any material change in
the present capitalization or dividend policy of the Company.
Item 7(b) of the Schedule 14D-9 is hereby amended and supplemented by
adding at the end thereof the following:
Except as set forth in Items 3(b), 4(a), 4(b), and 7(a) herein, there are
no transactions, Board resolutions, agreements in principle, or signed contracts
in response to the Offer which relate to or would result in any of the matters
referred to in paragraph (a) of this Item 7.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED.
Item 8 of the Schedule 14D-9 is hereby amended and supplemented by adding
at the end thereof the following:
Rights Agreement. On May 31, 1996, the Rights Agreement was amended to provide
that the approval, execution, delivery, and performance of the Merger Agreement
and the consummation of the transactions contemplated by it, including the
Offer, will not cause Danaher, WEC, or any of their affiliates or associates to
become an "Acquiring Person" or otherwise cause a "Shares Acquisition Date" or
"Triggering Event" to occur. The Rights Agreement was also amended to provide
that the Rights will expire upon the consummation of the Offer and acceptance
for payment of the Shares tendered pursuant to the Offer.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
(1) Letter to Shareholders of the Company dated June 5, 1996*
(2) The Merger Agreement
(3) Letter from Danaher to the Company's Board of Directors dated May 24,
1996 (incorporated by reference to Exhibit 1 to Schedule 14D-9/A (Amendment No.
3) filed by the Company on May 31, 1996).
(4) Opinion of Goldman, Sachs & Co, dated June 5, 1996*
(5) Page 6 of the 1996 Proxy Statement.
(6) Information Statement Pursuant to Section 14(f) of the Securities
Exchange Act of 1934 and Rule 14f-1 thereunder*
*included in copies mailed to shareholders
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Amendment No. 5 is true, complete
and correct.
ACME-CLEVELAND CORPORATION
By: /s/ DAVID L. SWIFT
--------------------------------------
David L. Swift, Chairman of the Board,
President and Chief Executive Officer
Dated: June 5, 1996
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