-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, M404K0YuWZUgj4Y1Cafu8+uiqsMm7ok4+YdZz3e6HZlh2dX4nARGbSbU8mH6q95y HalHq6JrZCob5ENs+qwxJQ== 0000950136-96-000426.txt : 19960606 0000950136-96-000426.hdr.sgml : 19960606 ACCESSION NUMBER: 0000950136-96-000426 CONFORMED SUBMISSION TYPE: SC 14D1/A PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19960605 SROS: NYSE GROUP MEMBERS: DANAHER CORP /DE/ GROUP MEMBERS: WEC ACQUISITION CORPORATION SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ACME CLEVELAND CORP /OH/ CENTRAL INDEX KEY: 0000869676 STANDARD INDUSTRIAL CLASSIFICATION: MACHINE TOOLS, METAL CUTTING TYPES [3541] IRS NUMBER: 341662809 STATE OF INCORPORATION: OH FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 14D1/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-43378 FILM NUMBER: 96577150 BUSINESS ADDRESS: STREET 1: 30100 CHAGRIN BLVD STREET 2: STE 100 CITY: PEPPER PIKE STATE: OH ZIP: 44124-5705 BUSINESS PHONE: 2164325400 FORMER COMPANY: FORMER CONFORMED NAME: ACME CLEVELAND HOLDING COMPANY DATE OF NAME CHANGE: 19600201 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DANAHER CORP /DE/ CENTRAL INDEX KEY: 0000313616 STANDARD INDUSTRIAL CLASSIFICATION: AIR COND & WARM AIR HEATING EQUIP & COMM & INDL REFRIG EQUIP [3585] IRS NUMBER: 591995548 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A BUSINESS ADDRESS: STREET 1: 1250 24TH ST NW STREET 2: SUITE 800 CITY: WASHINGTON STATE: DC ZIP: 20037 BUSINESS PHONE: 2028280850 MAIL ADDRESS: STREET 1: 1250 24TH STREET NW STREET 2: SUITE 800 CITY: WASHINGTON STATE: DC ZIP: 20037 FORMER COMPANY: FORMER CONFORMED NAME: DMG INC DATE OF NAME CHANGE: 19850221 SC 14D1/A 1 AMENDED SCHEDULE 14D-1 - ------------------------------------------------------------------------------ - ------------------------------------------------------------------------------ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------ SCHEDULE 14D-1 (Amendment No. 11) 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 ===============================================================================
TRANSACTION AMOUNT OF VALUATION* FILING FEE - ------------------------------------------------------------------------------- $202,437,720 $40,487.54
=============================================================================== * For purposes of calculating fee only. This amount assumes the purchase at a purchase price of $30 per Share of an aggregate of 6,747,924 Shares, consisting of 6,430,078 Common Shares, 161,374 Preferred Shares and 461,472 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 percent 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: $40,487.54 Filing Party: WEC Acquisition Corporation Danaher Corporation Form or Registration No.: Schedule 14D-1 Date Filed: June 3, 1996 Amendment No. 10 Tender Offer Statement ================================================================================ 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 1. SECURITY AND SUBJECT COMPANY Parent and the Company have entered into an Agreement and Plan of Merger, dated as of May 31, 1996 (the "Merger Agreement"), which provides, among other things, that the price to be paid in the Purchaser's tender offer (the "Offer") be increased to $30 in cash per outstanding Share. The Merger Agreement also provides for a follow-up merger of the Company and the Purchaser at $30 per Share, pursuant to which each outstanding Share (other than Shares owned by Parent or any subsidiary of Parent, Shares held as treasury shares by the Company, and Shares owned by dissenting shareholders who perfect any available dissenters' rights under Ohio law), will be converted into the right to receive $30 per Share in cash. The Offer and the Merger Agreement are more fully described in the Supplement, dated June 5, 1996 (the "Supplement"), to the Purchaser's Offer to Purchase, dated March 7, 1996. A copy of the Supplement is attached hereto as Exhibit (g)(14) and is incorporated herein by reference. The information set forth in the Introduction and Section 1 of the Supplement is incorporated herein by reference. The information set forth in Exhibits (g)(15), (g)(16), (g)(17), (g)(18) and (g)(19) is incorporated herein by reference. ITEM 3. PAST CONTRACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY (b) The information set forth in Section 7 of the Supplement is incorporated herein by reference. ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION (a) The information set forth in Section 6 of the Supplement is incorporated herein by reference. ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER (a) - (c); (e) The information set forth in the Introduction and Section 8 of the Supplement is incorporated herein by reference. ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO THE SUBJECT COMPANY'S SECURITIES. The information set forth in Section 8 of the Supplement is incorporated herein by reference. ITEM 10. ADDITIONAL INFORMATION (a) The information set forth in Section 8 of the Supplement is incorporated herein by reference. (b); (e) The information set forth in Section 10 of the Supplement is incorporated herein by reference. ITEM 11. MATERIAL TO BE FILED AS EXHIBITS (g)(14) Supplement to the Offer to Purchase dated June 5, 1996. (15) Revised Letter of Transmittal. (16) Revised Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees. (17) Revised Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and Other Nominees. (18) Revised Notice of Guaranteed Delivery. (19) Merger Agreement, dated May 31, 1996, among Parent, the Purchaser and the Company. 2 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: June 5, 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 EXHIBIT INDEX
EXHIBIT PAGE NUMBER EXHIBIT NAME NUMBER - ----------- ------------------------------------------------------------------------------------ ---------- (g)(14) Supplement to the Offer to Purchase dated June 5, 1996. (g)(15) Revised Letter of Transmittal. (g)(16) Revised Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees. (g)(17) Revised Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and Other Nominees. (g)(18) Revised Notice of Guaranteed Delivery. (g)(19) Merger Agreement, dated May 31, 1996, among Parent, the Purchaser and the Company.
EX-99.(G)(14) 2 SUPPLEMENT TO OFFER. SUPPLEMENT TO THE OFFER TO PURCHASE WEC ACQUISITION CORPORATION A WHOLLY OWNED SUBSIDIARY OF DANAHER CORPORATION HAS AMENDED ITS OFFER TO INCREASE THE CASH PURCHASE PRICE FOR ALL OUTSTANDING COMMON SHARES (INCLUDING THE ASSOCIATED RIGHTS) AND ALL SERIES A CONVERTIBLE PREFERRED SHARES OF ACME-CLEVELAND CORPORATION TO $30 NET PER SHARE - ------------------------------------------------------------------------------- THE OFFER HAS BEEN EXTENDED AND THE OFFER AND WITHDRAWAL RIGHTS WILL NOW EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON TUESDAY, JULY 2, 1996, UNLESS THE OFFER IS FURTHER EXTENDED. - ------------------------------------------------------------------------------- THE BOARD OF DIRECTORS OF THE COMPANY HAS APPROVED THE OFFER, THE MERGER AND THE OTHER TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT, HAS DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER ARE FAIR TO AND IN THE BEST INTERESTS OF THE COMPANY'S SHAREHOLDERS, AND RECOMMENDS THAT THE SHAREHOLDERS OF THE COMPANY ACCEPT THE OFFER AND TENDER THEIR SHARES. ---------------- The Offer is conditioned on, among other things, (1) there being validly tendered a number of Shares which, when added to the Shares beneficially owned by Parent and any of its affiliates, constitutes at least a majority of the Shares outstanding on a fully diluted basis immediately prior to the expiration of the Offer, and (2) the acquisition of Shares pursuant to the Offer being approved by the shareholders of the Company pursuant to the Ohio Control Share Acquisition Law. See Section 9 of this Supplement. The Offer is not conditioned on the receipt of financing. ---------------- IMPORTANT Any shareholder desiring to tender all or any portion of such shareholder's Shares should either (i) complete and sign the Letter of Transmittal (or a facsimile thereof) in accordance with the instructions in the Letter of Transmittal, have such shareholder's signature thereon guaranteed if required by Instruction 1 to the Letter of Transmittal, mail or deliver the Letter of Transmittal (or such facsimile) and any other required documents to the Depositary and either deliver the certificates for such Shares to the Depositary along with the Letter of Transmittal (or facsimile) or deliver such Shares pursuant to the procedure for book-entry transfer set forth in Section 2 of the Offer to Purchase or (ii) request such shareholder's broker, dealer, commercial bank, trust company or other nominee to effect the transaction for such shareholder. A shareholder having Shares registered in the name of a broker, dealer, commercial bank, trust company or other nominee must contact such broker, dealer, commercial bank, trust company or other nominee if such shareholder desires to tender such Shares. If a shareholder desires to tender Shares and such shareholder's certificates for Shares are not immediately available or the procedures for book-entry transfer cannot be completed on a timely basis, or time will not permit all required documents to reach the Depositary prior to the Expiration Date, such shareholder's tender may be effected by following the procedure for guaranteed delivery set forth in Section 2 of the Offer to Purchase. Questions and requests for assistance may be directed to Merrill Lynch, Pierce, Fenner & Smith Incorporated, the Dealer Manager, or to D.F. King & Co., Inc. the Information Agent, at their respective addresses and telephone numbers set forth on the back cover of this Supplement. Additional copies of this Supplement, the Offer to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery and other related materials may be obtained from the Information Agent or from brokers, dealers, or commercial banks and trust companies. The Dealer Manager for the Offer is: ---------------- MERRILL LYNCH & CO. June 5, 1996 TABLE OF CONTENTS
PAGE -------- Introduction .................................................... 1 1. Amended Terms of the Offer .................................. 2 2. Procedures for Accepting the Offer and Tendering Shares .... 2 3. Price Range of Shares; Dividends ............................ 2 4. Certain Information Concerning the Company .................. 2 5. Certain Information Concerning Parent ....................... 3 6. Source and Amount of Funds .................................. 4 7. Background of the Offer and Contacts with the Company ...... 4 8. Merger Agreement ............................................ 6 9. Certain Conditions of the Offer ............................. 13 10. Certain Legal Matters ....................................... 14 11. Miscellaneous ............................................... 14
To the Holders of Shares of ACME-CLEVELAND CORPORATION: The following information amends and supplements the Offer to Purchase, dated March 7, 1996 (the "Offer to Purchase"), of WEC Acquisition Corporation (the "Purchaser"), a Delaware corporation and a wholly owned subsidiary of Danaher Corporation, a Delaware corporation ("Parent"), pursuant to which the Purchaser is offering to purchase any and all outstanding common shares, $1 par value per share, including the associated rights (the "Rights") issued pursuant to the Rights Agreement, dated as of March 11, 1996, as amended, between the Company (as defined below) and Society National Bank, as Rights Agent (the "Common Shares"), and all outstanding Series A Convertible Preferred Shares, without par value (the "Preferred Shares" and, together with the Common Shares, the "Shares"), of Acme-Cleveland Corporation, an Ohio corporation (the "Company"). The Purchaser has increased the price to be paid in the Offer to $30 per Share, net to the seller in cash without interest thereon (the "Offer Price"), upon the terms and subject to the conditions set forth in this Supplement, the Offer to Purchase and the related Letter of Transmittal (which, as amended from time to time, collectively constitute the "Offer"). This Supplement should be read in conjunction with the Offer to Purchase. Except as otherwise set forth in this Supplement, the terms and conditions previously set forth in the Offer to Purchase remain applicable in all respects to the Offer. Unless the context requires otherwise, terms not defined herein have the meanings ascribed to them in the Offer to Purchase. Parent, the Purchaser and the Company have entered into an Agreement and Plan of Merger dated as of May 31, 1996 (the "Merger Agreement"), which provides for, among other things, an increase in the price per Share to be paid pursuant to the Offer from $27 per Share to $30 per Share, net to the seller in cash, without interest thereon, and the merger of the Purchaser with and into the Company (the "Merger") following the purchase of Shares pursuant to the Offer. In the Merger, each outstanding Share (other than Shares owned by Parent or any subsidiary of Parent, Shares held as treasury shares by the Company, and Shares owned by dissenting shareholders who perfect any available dissenters' rights under Ohio law), will be converted into the right to receive $30 per Share in cash. THE BOARD OF DIRECTORS OF THE COMPANY HAS APPROVED THE OFFER, THE MERGER AND THE OTHER TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT, HAS DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER ARE FAIR TO AND IN THE BEST INTERESTS OF THE COMPANY'S SHAREHOLDERS, AND RECOMMENDS THAT THE SHAREHOLDERS OF THE COMPANY ACCEPT THE OFFER AND TENDER THEIR SHARES. The Offer is conditioned on, among other things, (1) there being validly tendered a number of Shares which, when added to the Shares beneficially owned by Parent and any of its affiliates, constitutes at least a majority of the Shares outstanding on a fully diluted basis immediately prior to the expiration of the Offer (the "Minimum Condition") and (2) the acquisition of Shares pursuant to the Offer being approved by the shareholders of the Company pursuant to the Ohio Control Share Acquisition Law (the "Control Share Condition"). See Section 9 of this Supplement. Shareholders who have previously validly tendered their Shares pursuant to the Offer are not required to take any further action, except as may be required by the guaranteed delivery procedure if such procedure was utilized. If Shares are accepted for payment and paid for by the Purchaser pursuant to the Offer, such shareholders will receive, subject to the conditions of the Offer, the increased cash price of $30 net per Share in cash. See Section 4 of the Offer to Purchase for the procedures for withdrawing Shares tendered pursuant to the Offer. Except as otherwise set forth in this Supplement, the terms and conditions previously set forth in the Offer to Purchase remain applicable in all respects to the Offer. The information set forth herein should be read in conjunction with the Offer to Purchase and, unless the context otherwise requires, terms not defined herein which are defined in the Offer to Purchase have the meanings ascribed to them in the Offer to Purchase. THE OFFER TO PURCHASE, THIS SUPPLEMENT AND THE REVISED LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE OFFER. THE AMENDED OFFER 1. AMENDED TERMS OF THE OFFER. Section 1 of the Offer to Purchase is amended and supplemented as follows: In connection with the Merger Agreement, the price per Share to be paid pursuant to the Offer has been increased from $27 per Share to $30 per Share, net to the seller in cash without interest thereon. Upon the terms and subject to the conditions of the Offer (including, if the Offer is further extended or amended, the terms and conditions of any extension or amendment), the Purchaser will accept for payment and pay the increased purchase price for all of the Shares validly tendered prior to the Expiration Date (as herein defined) and not properly withdrawn in accordance with Section 4 of the Offer to Purchase (including Shares tendered prior to the date of this Supplement). The term "Expiration Date" means 5:00 p.m., New York City time, on Tuesday, July 2, 1996, unless and until the Purchaser, subject to the terms of the Merger Agreement, shall have extended the period of time during which the Offer is open, in which event the term "Expiration Date" shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall expire. See Sections 8 and 9 of this Supplement for a description of the provisions of the Merger Agreement regarding extensions of the Offer and waivers of conditions by the Purchaser. 2. PROCEDURES FOR ACCEPTING THE OFFER AND TENDERING SHARES AND RIGHTS. Section 2 of the Offer to Purchase is amended and supplemented as follows: Tendering shareholders should use the revised GREEN Letter of Transmittal and the revised YELLOW Notice of Guaranteed Delivery included with this Supplement. However, to the extent the revised GREEN Letter of Transmittal or the revised YELLOW Notice of Guaranteed Delivery is not obtainable, tendering shareholders may continue to use the BLUE Letter of Transmittal and the GREY Notice of Guaranteed Delivery that were provided with the Offer to Purchase. Although such BLUE Letter of Transmittal refers only to the Offer to Purchase and indicates that the Offer will expire at 12:00 Midnight, New York City time, on April 3, 1996, shareholders using such document to tender their shares will nevertheless receive $30 net per Share in cash for each Share validly tendered and not properly withdrawn, and accepted for payment pursuant to the Offer, subject to the conditions of the Offer, and will be able to tender their Shares pursuant to the Offer until 5:00 p.m., New York City time, on Tuesday, July 2, 1996 (or such later date to which the Offer may be extended). Procedures for tendering Shares, as modified by the preceding paragraph, are set forth in Section 3 of the Offer to Purchase. 3. PRICE RANGE OF THE SHARES; DIVIDENDS. Section 6 of the Offer to Purchase is amended and supplemented as follows: According to publicly available information, during the quarter ended March 31, 1996 the Company declared a dividend of $.25 per Share. The reported high and low closing sale prices per Share on the NYSE Composite Tape for the fiscal quarter ended March 31, 1996 were $31.25 and $17.25 respectively. The reported high and low closing sale prices per Share on the NYSE Composite Tape for the current fiscal quarter through June 3, 1996 were $31.38 and $29.50 respectively. On May 30, 1996, the last full trading day prior to the execution of the Merger Agreement, the reported closing price on the NYSE Composite Tape was $29.50 per Share. SHAREHOLDERS ARE URGED TO OBTAIN A CURRENT MARKET QUOTATION FOR THE SHARES. 4. CERTAIN INFORMATION CONCERNING THE COMPANY. Section 8 of the Offer to Purchase is amended and supplemented as follows: Set forth below is certain selected consolidated financial information relating to the Company and its subsidiaries excerpted from the information contained in the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1996 (the "Company Form 10-Q"). More comprehensive financial information is included in the Company Form 10-Q, the Offer to Purchase and other documents filed by the Company with the SEC, and the following summary is qualified in its entirety by reference to such information. The Company Form 10-Q and such other documents should be available for inspection and copies thereof should be obtainable in the manner set forth in Section 8 in the Offer to Purchase. 2 ACME-CLEVELAND CORPORATION SELECTED FINANCIAL DATA (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
SIX MONTHS ENDED MARCH 31, ------------------ 1996 1995 -------- -------- Income Statement Data: Net Sales .............................................................. $ 65,744 $ 56,804 Earnings from Continuing Operations .................................... $ 3,760 ($ 1,327) Net Earnings (Loss) .................................................... 20,785 35,068 Earnings (Loss) per Share: Earnings from Continuing Operations ................................... $0.55 ($0.20) Net Earnings (Loss) .................................................... $3.04 $5.26 Balance Sheet Data (at end of period): Total Assets ........................................................... $148,742 $161,849 Working Capital ........................................................ 59,074 59,262 Long-Term Debt ......................................................... 524 1,194 Total Shareholders' Equity ............................................. 107,828 76,980
During the course of the discussions between Parent and the Company, the Company provided Parent with certain information about the Company which is not publicly available. The non-public information included the Company's business plan for 1996. The 1996 business plan includes the following estimated results:(i) net sales billed: $146,000,000; (ii) income from operations: $15,000,000; (iii) net income: $10,250,000; and (iv) net income per share: $1.50. In addition, Parent received preliminary information with respect to the Company's business plan for the years 1997 through 1999. Over this period, the Company would seek to achieve a compound annual growth rate in net sales billed of approximately 16 per cent and a compound annual growth rate in net income of approximately 30 per cent. In the case of 1997, the Company's preliminary estimates for net sales billed, net income from operations, net income and net income per share are $175,000,000, $26,500,000, 15,000,000, and $2.12, respectively. The Company's business plans were prepared solely for internal use and not for publication or with a view to complying with the published guidelines of the Commission regarding projections or with a view to complying with the AICPA Guide for Prospective Financial Statements. The Company's business plans necessarily reflect numerous assumptions with respect to industry performance, general business and economic conditions and other matters, many of which are inherently uncertain or beyond the Company's control. One cannot predict whether the assumptions made in preparing the Company's business plans will be accurate, and actual results may be materially higher or lower than those contained in the plans. The inclusion of this information should not be regarded as an indication that Parent, the Purchaser, the Company, the Dealer Manager or anyone who received this information considered it a reliable predictor of future events, and this information should not be relied on as such. None of Parent, the Purchaser, the Dealer Manager or the Company assumes any responsibility for the validity, reasonableness, accuracy or completeness of the information presented, and the Company has made no representation or warranty, express or implied, to Parent or the Purchaser regarding the business plans or any of the information described above. 5. CERTAIN INFORMATION CONCERNING PARENT. Set forth below is certain selected consolidated financial information relating to the Parent excerpted from the information contained in Parent's Quarterly Report on Form 10-Q for the quarter ended March 31, 1996 (the "Parent Form 10-Q"). More comprehensive financial information is included in the Parent Form 10-Q, the Offer to Purchase and other documents filed by Parent and the Purchaser with the SEC, and the following summary is qualified in its entirety by reference to such information. The Parent Form 10-Q and such other documents should be available for inspection and copies thereof should be obtainable in the manner set forth in Section 9 in the Offer to Purchase. 3 DANAHER CORPORATION SELECTED FINANCIAL DATA (IN THOUSANDS)
THREE MONTHS ENDED MARCH 31, --------------------- 1996 1995 -------- -------- Income Statement Data: Net Revenues ..................................... $ 409,557 $ 335,982 Earnings from Continuing Operations .............. 26,928 21,412 Net Earnings ..................................... 109,739 21,848 Earnings per Share: Earnings from Continuing Operations .............. $0.45 $0.36 Net Earnings ..................................... $1.79 $0.37 Balance Sheet Data (at end of period): Total Assets ..................................... $1,503,480 $1,185,112 Working Capital .................................. 15,266 29,257 Long-Term Debt ................................... 101,680 116,566 Total Shareholders' Equity ....................... 679,778 503,062
In April, 1996, Steven M. Rales and Mitchell P. Rales sold 2 million shares of common stock of Parent in an underwritten public offering, and they currently beneficially own approximately 40% of the outstanding common stock of Parent. 6. SOURCE AND AMOUNT OF FUNDS. Section 10 of the Offer to Purchase is amended and supplemented as follows: As a result of the increase in price per Share to be paid pursuant to the Offer, the Purchaser estimates that approximately $205 million will be required to acquire all of the Shares pursuant to the Offer and the Merger and to pay all related fees and expenses. The Purchaser plans to obtain all funds needed for the Offer and the Merger through a capital contribution from Parent. Parent plans to obtain funds for such capital contribution through its existing Credit Agreement, dated as of September 7, 1990, as amended, among Parent and the banks listed therein. The Credit Agreement is described in Section 10 of the Offer to Purchase. The Offer is not conditioned upon Parent or the Purchaser obtaining financing. See Section 9 of this Supplement. 7. BACKGROUND OF THE OFFER AND CONTACTS WITH THE COMPANY. Section 11 of the Offer to Purchase is amended and supplemented as follows: Following the commencement of the Offer, on March 7, 1996, the Purchaser requested a special meeting of the shareholders of the Company pursuant to the Ohio Control Share Acquisition Law (the "Ohio Control Share Acquisition Meeting"), for the purpose of permitting the shareholders of the Company to authorize the Offer. On March 14, 1996, the Company called the Control Share Acquisition Meeting for April 25, 1996. On March 11, 1996, the Company announced that its Board of Directors had adopted a shareholder rights plan. On March 19, 1996, the Purchaser amended the Offer to condition the Offer on the Rights having been redeemed by the Board of Directors or the Purchaser being satisfied that the Rights had been invalidated or were otherwise inapplicable to the Offer and the then-proposed merger. On March 20, 1996, the Company issued a press release stating that its Board of Directors had determined that the $27 per Share Offer price was inadequate and not in the best interests of the 4 Company and its shareholders. The Board also recommended that the Company's shareholders not tender their shares pursuant to the Offer and vote against the proposed "control share acquisition" at the Control Share Acquisition Meeting. The Company's press release also stated that the Board had directed the Company's management, with the assistance of its advisors, to explore strategic alternatives to optimize shareholder value, including, among other things, a merger or reorganization, a purchase or sale of assets, the acquisition of securities, or a material change in the capitalization or dividend policy of the Company. On April 17, 1996, the Company and Parent entered into agreements providing that (1) the Company would permit Parent to participate in the Company's process for the exploration of strategic alternatives, (2) the Company would provide Parent and the Purchaser with substantially the same information it was providing to others in connection with such process (subject to Parent and the Purchaser's obligation to keep such information confidential), (3) Parent would not alter any of the material terms of the Offer (other than to terminate or extend the Offer) prior to June 30, 1996, (4) Parent and the Company would cause the Control Share Acquisition Meeting to be adjourned on or prior to June 30, 1996, and (5) the parties would seek to adjourn the then-pending injunction hearing regarding the Ohio Control Share Acquisition Law. On April 18, 1996, at the request of Parent and the Company, the court entered an order effectively suspending all proceedings in the then-pending litigation until a time to be determined in the future. On April 24, 1996, Parent began a due diligence review of the Company's business and operations. As part of such review, Parent met with management of the Company and was furnished with certain non-public information. See Section 4 of this Supplement. On April 25, 1996, the Ohio Control Share Acquisition Meeting was adjourned until a time to be determined in the future. On May 24, 1996, Parent sent the following letter to the Company: The Board of Directors Acme-Cleveland Corporation 30100 Chagrin Boulevard, Suite 100 Pepper Pike, Ohio 44124-5705 Attention: Mr. David L. Swift Chairman and Chief Executive Officer Gentlemen: We are pleased to inform you that we are prepared to offer to acquire Acme-Cleveland Corporation at a price of $29 per outstanding share of common and preferred stock. Our proposal is conditioned on the execution of a mutually satisfactory acquisition agreement, approval under relevant provisions of Ohio law and the inapplicability of your shareholders rights plan. Our proposal is not subject to financing or to further due diligence. We believe that this represents a full and fair price and reflects, among other things, our due diligence review of Acme-Cleveland and our discussions with your investment bankers. It has been over two months since you announced that you were actively exploring strategic alternatives to optimize shareholder value. We believe that this has been more than enough time and are disappointed by the lack of a plan to conclude the process. Accordingly, our proposal will expire at 9:00 a.m., New York time, on Tuesday, May 28, 1996 unless you accept it prior to such time. If you do not accept our proposal by such time, we intend to seek to call a special meeting off shareholders for the purpose of replacing the Acme-Cleveland board of directors. If our nominees are elected, we intend to propose and seek to consummate the acquisition of Acme-Cleveland, in connection with our $27 per share tender offer. This price would reflect both the expense of running a proxy contest and the distracting influence of this prolonged process on the company's operations. 5 We would prefer not taking such a drastic step and would not be taking it were it not for the length of time that this process has taken and our belief that, without action on our part, the process might continue indefinitely, which we believe would not be in the best interests of shareholders, employees, customers and suppliers. We and our advisors are ready to meet with you and your advisors at any time to discuss our offer and to answer any questions that you may have. Our objective continues to be to conclude promptly a transaction that is supported by the Acme-Cleveland Board of Directors. Sincerely, George M. Sherman President and CEO On May 28, 1996, the Company rejected Parent's $29 per Share proposal, and shortly thereafter the parties began discussing the possibility of a transaction at $30 per Share. These discussions resulted in a definitive agreement for a $30 per Share transaction, as reflected in the Merger Agreement, which was executed on May 31, 1996. 8. MERGER AGREEMENT. Section 12 of the Offer to Purchase is amended and supplemented as follows: The following is a summary of the Merger Agreement. The summary is qualified in its entirety by reference to the Merger Agreement, which has been filed as an exhibit to the Schedule 14D-1 and is incorporated herein by reference. The Offer. Pursuant to the terms of the Merger Agreement, the Purchaser has agreed to, and Parent has agreed to cause the Purchaser 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; (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 Ohio Control Share Acquisition Meeting. At the Company's request, the Purchaser will, and Parent will cause the Purchaser to, extend the Offer from time to time for up to an aggregate of an additional ten business days following the date of the Ohio Control Share Acquisition 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 Parent and any of its affiliates, would represent at least a majority of the Shares then outstanding on a fully diluted basis. Parent has agreed to effect the amendment to the Offer described in the first sentence of this paragraph will occur no later than five business days after the public announcement of the execution of the Merger Agreement. The Purchaser has also agreed that it will not, and Parent agrees that it will cause the Purchaser 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, the Purchaser 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 the Purchaser 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 the Purchaser 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 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. 6 The Ohio Control Share Acquisition Meeting. In the Merger Agreement, the Company has agreed to reconvene the Ohio Control Share Acquisition Meeting at the earliest possible date, and the Company will not postpone or adjourn the Ohio Control Share Acquisition Meeting (except as a result of the absence of a quorum) without Parent's consent, unless Parent 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 Ohio Control Share Acquisition Meeting is 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 Ohio Control Share Acquisition 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 the Purchaser pursuant to the Offer of that number of Shares which, when aggregated with the Shares owned by Parent 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, the Purchaser will be permitted to designate members of the Board such that the Purchaser 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 the Purchaser 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 the Purchaser'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 the Purchaser (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 the Purchaser's designees to the Board. Furthermore, following the election or appointment of the Purchaser'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 the Purchaser or Parent 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. Parent expects that its nominees to the Board will be Steven M. Rales, Mitchell P. Rales and George M. Sherman. They are 44, 39 and 54 years old, respectively. None of such persons beneficially owns any Shares. See Section 9 of the Offer to Purchase for Shares beneficially owned by Parent and the Purchaser. See Schedule I to the Offer to Purchase for other information regarding such persons. In addition to the information set forth therein, Mr. Sherman is a director of Campbell Soup Company. Disposition of Ohio Litigation. Pursuant to the terms of the Merger Agreement, the Purchaser and Parent 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 States 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, the Purchaser 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 7 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. 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 the Purchaser 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 person 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 the Purchaser 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 a treasury share or owned by Parent or any subsidiary of Parent (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 (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 the Purchaser and Parent, 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 Parent and the Purchaser. Parent and the Purchaser have also made customary representations and warranties in the Merger Agreement, including, without limitation, representations and warranties relating to the following: the organization of Parent and the Purchaser; the authority of each of Parent and the Purchaser to enter into and perform its obligations under the Merger Agreement and carry out the related transactions; required consents and approvals; filings made by Parent with the Commission; Parent's consolidated financial statements; litigation; availability of sufficient funds to consummate the Offer; and documents supplied, filed or distributed by Parent or the Purchaser relating to the Offer. 8 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 Parent, 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 Parent that it has received a Company Acquisition Proposal and advise Parent of the material terms and conditions thereof. 9 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 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 Parent with any and all comments thereon by the Commission's staff, will use all reasonable efforts to discuss with Parent 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 Parent and the Purchaser. In the Merger Agreement, Parent and the Purchaser 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. Parent 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, Parent and the Purchaser 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, Parent and the Purchaser 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, Parent and the Purchaser 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, Parent and the Purchaser have stated in the Merger Agreement their intention that Parent will continue to provide to the former employees of the Company and its subsidiaries who remain as employees of the Surviving 10 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. Parent and the Purchaser will continue to 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, Parent has agreed to vote, or cause to be voted, all Shares beneficially owned by it in favor of the Merger and the Purchaser has agreed to consummate the Merger pursuant to the "short form" merger provisions of the Ohio Revised Code if applicable. Covenants of the Company, Parent and the Purchaser. Pursuant to the Merger Agreement, the Company, Parent, and the Purchaser 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, Parent and the Purchaser 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 Parent and the Purchaser 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 the Purchaser'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, Parent, and the Purchaser; (ii) by either the Company or Parent 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 Parent 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 Parent 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 Parent if the Offer terminates without the purchase of Shares thereunder; (vi) prior to the purchase of Shares by the Purchaser pursuant to the Offer, by Parent if the Board does not publicly recommend in the Schedule 14D-9 or in the proxy material relating to the Ohio Control Share Acquisition 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 Parent; 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 Parent at least five business days notice of the material terms of the Company Acquisition Proposal and has paid the Termination Fee (as defined below). 11 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 Parent, 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 Parent 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 Parent because the Board did not publicly recommended in the Schedule 14D-9 or in the proxy material relating to the Ohio Control Share Acquisition 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 recommendations in any manner adverse to Parent, then the Company has agreed to reimburse Parent and the Purchaser 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 Parent 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 Parent and the Purchaser ("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 Parent and the Purchaser for their Transaction Costs, the Company has agreed to pay to Parent a fee of $6,000,000 (the "Termination Fee"). In the Merger Agreement, Parent and the Purchaser have agreed that if Parent receives a Termination Fee, neither Parent, the Purchaser, 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. 9. CERTAIN CONDITIONS OF THE OFFER. Section 14 of the Offer to Purchase is hereby amended and restated in its entirety as follows: 12 The Purchaser will not be required to accept for payment or, subject to any applicable rules and regulations of the Commission, including Rule 14e-1(c) under the Exchange Act (relating to the Purchaser's obligation to pay for or return tendered Shares after the termination or withdrawal of the Offer), to pay for any Shares not theretofore accepted for payment or paid for pursuant to the Offer, if (i) there are not validly tendered and not properly withdrawn prior to the expiration of the Offer that number of Shares which, when aggregated with the Shares then owned by Parent and any of its affiliates, represents at least a majority of the Shares then outstanding on a fully diluted basis, or (ii) 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: (a) any provision of any 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 the Purchaser or Parent 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 Parent, the Purchaser or any subsidiaries of Parent or all or a material portion of the business and assets of the Company and its subsidiaries, taken as a whole, or Parent 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 the Purchaser, Parent or any subsidiaries of Parent 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 the Purchaser, Parent or any of Parent's subsidiaries on all matters properly presented to the shareholders of the Company, including but not limited to the approval of the Merger Agreement and adoption of the Merger and the right to vote any shares of capital stock of any subsidiaries of the Company (other than immaterial subsidiaries) (each party agreeing to use all reasonable efforts to have any such judgment, injunction, order or decree lifted); (b) any consents, authorizations, orders and approvals of, or filings or registrations with, any governmental commission, board or other regulatory body required in connection with the execution, delivery and performance of the Merger Agreement has not been obtained or made, except (i) for the filings made in connection with the Merger contemplated by Section 1.01(b) of the Merger Agreement and for the filing of any other documents required to be filed after the purchase of 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 a Company Material Adverse Effect or a Parent Material Adverse Effect (each as defined in the Merger Agreement), and would not render the Offer or the Merger illegal or provide a reasonable basis to conclude that the parties or their affiliates or any of their respective directors or officers will be subject to the risk of criminal liability; (c) any Third Party Consents (as defined in the Merger Agreement) have not been obtained, except to the extent that the failure to obtain any Third Party Consents is not likely to have a Company Material Adverse Affect; (d) the Company has failed to perform its obligations 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 the representation and warranty is made as of a specific date, in which case such representation and warranty will be true as of such date), except to the extent that the failure to perform such obligation and the untruth of such representations and warranties is not likely to have, individually or in the aggregate, a Company Material Adverse Affect, and Parent has received a certificate signed by an executive officer and by the chief financial officer of the Company to the foregoing effect; (e) the acquisition of Shares by the Purchaser pursuant to the Offer has not been approved by the Company's shareholders as required by the Control Share Acquisition Law; 13 (f) the Merger Agreement has been terminated in accordance with its terms; and (g) the Company has not obtained the consents referred to in Sections 1.05 and 1.06 of the Merger Agreement. The foregoing conditions are for the sole benefit of the Purchaser and Parent and may be asserted by the Purchaser or may be waived by the Purchaser in whole or in part at any time and from time to time in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights will 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. 10. CERTAIN LEGAL MATTERS. Section 15 of the Offer to Purchase is amended and supplemented as follows: Parent and the Purchaser commenced an action on March 7, 1996, in the Ohio Federal District Court against the Company, the Commissioner of Securities and the Director of Commerce of the Ohio Department of Commerce, seeking, among other things, that the Court declare unconstitutional and enjoin application of certain provisions of the Ohio Control Share Acquisition Law (a) to the extent they were sought to be applied to impair the voting rights of the types of "Interested Shares," as defined in Chapter 1701 of the ORC, as such provisions may be applied to the Offer, and (b) to the extent they prohibited the purchase or sale of Shares in interstate commerce. On March 21, 1996, the Company filed an Answer and Counterclaims in which it alleged, among other things, (i) if and to the extent that Parent and the Purchaser, alone or with others, acquired 10% or more of the voting power of the Company's stock in the election of directors, including by obtaining proxies to elect directors at the Special Meeting, Parent and the Purchaser would become "interested shareholders" subject to the prohibitions and restrictions of the Ohio Business Combination Law, and (ii) Parent and the Purchaser had failed to disclose the material fact that, if and to the extent they became "interested shareholders" under the Ohio Business Combination Law through the acquisition of over 10% of the voting power of the Company in the election of directors by, inter alia, obtaining proxies, they would be prohibited by that law from consummating the Merger for at least three years and thereafter could only consummate such merger if they met further requirements of the Ohio Business Combination Law imposing fair price and super-majority voting standards. The Company requested an order dismissing Parent's and the Purchaser's complaint, injunctive relief and such other relief as the court deemed just and proper. As described in Section 7 hereof, on April 18, 1996 the parties agreed to seek to adjourn the then-pending injunction hearing regarding the Ohio Control Share Acquisition Law. On April 24, 1996, the court entered an order effectively suspending all proceedings in such litigation until an indefinite time to be determined in the future. Pursuant to the terms of the Merger Agreement, the Purchaser and Parent 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 States 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. 11. MISCELLANEOUS. Parent and the Purchaser have filed with the SEC amendments to the Schedule 14D-1 pursuant to Rule 14d-3 under the Exchange Act with respect to the Offer. The Company has filed with the SEC amendments to the Schedule 14D-9 setting forth the Company's recommendation of the Board of Directors with respect to the Offer and other information required to be included pursuant to Rule 14d-9. Amendment No. 5 to the Schedule 14D-9 is being mailed to shareholders of the Company herewith. Such amendments to the Schedule 14D-1 and Schedule 14D-9, including exhibits, which furnish certain additional information with respect to the Offer, may be inspected at, and copies may be obtained from, the same places and in the same manner as set forth in Sections 8 and 9 of the Offer to Purchase (except that they will not be available at the regional offices of the SEC). WEC Acquisition Corporation June 5, 1996 14 Manually signed facsimile copies of the Letter of Transmittal will be accepted. The Letter of Transmittal, certificates for Shares and any other required documents should be sent or delivered by each shareholder of the Company or such shareholder's broker, dealer, commercial bank, trust company or other nominee to the Depositary at one of its addresses set forth below. The Depositary for the Offer is: FIRST CHICAGO TRUST COMPANY OF NEW YORK
By Mail: By Facsimile Transmission: By Hand or Overnight Delivery: P.O. Box 2559 (201) 222-4720 14 Wall Street Suite 4660 or Eighth Floor Jersey City, New Jersey (201) 222-4721 Suite 4680 07303-2559 New York, New York 10005
Confirm Receipt of Notice of Guaranteed Delivery by telephone: (201) 222-4707 Questions and requests for assistance may be directed to the Information Agent or the Dealer Manager at their respective addresses or telephone numbers set forth below. Additional copies of this Supplement, the Offer to Purchase, the Letter of Transmittal and all other tender offer materials may be obtained from the Information Agent as set forth below, and will be furnished promptly at the Purchaser's expense. You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Offer. The Information Agent for the Offer is: D.F. King & Co., Inc. 77 Water Street New York, New York 10005 (212) 269-5550 (Call Collect) or (800) 628-8532 The Dealer Manager for the Offer is: Merrill Lynch & Co. World Financial Center North Tower New York, New York 10281-1305 (212) 236-4565 (Call Collect) EX-99.(G)(15) 3 LETTER OF TRANSMITTAL. LETTER OF TRANSMITTAL TO TENDER COMMON SHARES (INCLUDING THE ASSOCIATED RIGHTS) AND SERIES A CONVERTIBLE PREFERRED SHARES OF ACME-CLEVELAND CORPORATION PURSUANT TO THE OFFER TO PURCHASE DATED MARCH 7, 1996 AND THE SUPPLEMENT THERETO DATED JUNE 5, 1996 BY WEC ACQUISITION CORPORATION A WHOLLY OWNED SUBSIDIARY OF DANAHER CORPORATION - ------------------------------------------------------------------------------- THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON JULY 2, 1996, UNLESS THE OFFER IS EXTENDED. - ------------------------------------------------------------------------------- The Depositary for the Offer is: FIRST CHICAGO TRUST COMPANY OF NEW YORK
By Mail: By Hand: P.O. Box 2559 14 Wall Street Suite 4660-WEC Eighth Floor Jersey City, New Jersey 07303-2559 Suite 4680-WEC New York, New York 10005
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. YOU MUST SIGN THIS LETTER OF TRANSMITTAL WHERE INDICATED BELOW AND COMPLETE THE SUBSTITUTE FORM W-9 PROVIDED BELOW. THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED. This revised Letter of Transmittal or the previously circulated original BLUE Letter of Transmittal is to be completed by shareholders either if certificates evidencing Shares (as defined below) are to be forwarded herewith or if delivery of Shares is to be made by book-entry transfer to the Depositary's account at The Depository Trust Company ("DTC"), the Midwest Securities Trust Company ("MSTC") or the Philadelphia Depository Trust Company ("PDTC") (each a "Book-Entry Transfer Facility" and collectively, the "Book- Entry Transfer Facilities") pursuant to the book-entry transfer procedure described in Section 2 of the Offer to Purchase (as defined below). Delivery of documents to a Book-Entry Transfer Facility does not constitute delivery to the Depositary. Shareholders whose certificates evidencing Shares ("Share Certificates") are not immediately available or who cannot deliver their Share Certificates and all other documents required hereby to the Depositary prior to the Expiration Date (as defined in Section l of the Offer to Purchase) or who cannot complete the procedure for delivery by book-entry transfer on a timely basis and who wish to tender their Shares must do so pursuant to the guaranteed delivery procedure described in Section 2 of the Offer to Purchase. See Instruction 2. [ ] CHECK HERE IF SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO THE DEPOSITARY'S ACCOUNT AT ONE OF THE BOOK-ENTRY TRANSFER FACILITIES AND COMPLETE THE FOLLOWING: Name of Tendering Institution ------------------------------------------------ Check Box of Applicable Book-Entry Transfer Facility: (CHECK ONE) [ ] DTC [ ] MSTC [ ] PDTC Account Number Transaction Code Number ----------------------- ------------------ [ ] CHECK HERE IF SHARES ARE BEING TENDERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING. PLEASE ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY: Name(s) of Registered Holder(s) ----------------------------------------------- Window Ticket No. (if any) ---------------------------------------------------- Date of Execution of Notice of Guaranteed Delivery ---------------------------- Name of Institution which Guaranteed Delivery ---------------------------------
DESCRIPTION OF SHARES TENDERED - ---------------------------------------------------------------------------------------------------- NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) (PLEASE FILL IN, IF BLANK, EXACTLY AS NAMES(S) SHARE CERTIFICATE(S) AND SHARE(S) TENDERED APPEAR(S) ON SHARE CERTIFICATE(S)) (ATTACH ADDITIONAL LIST, IF NECESSARY) - ----------------------------------------------- --------------------------------------------------- TOTAL NUMBER OF SHARE SHARES EVIDENCED NUMBER OF CERTIFICATE BY SHARE SHARES NUMBER(S)* CERTIFICATE(S)* TENDERED** --------------- ----------------- --------------- --------------- ----------------- --------------- --------------- ----------------- --------------- --------------- ----------------- --------------- --------------- ----------------- --------------- TOTAL SHARES - ----------------------------------------------- ---------------------------------------------------
[ ] Check here if tendering Preferred Shares. * Need not be completed by shareholders delivering Shares by book-entry transfer. ** Unless otherwise indicated, it will be assumed that all Shares evidenced by each Share Certificate delivered to the Depositary are being tendered hereby. See Instruction 4. NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ THE INSTRUCTIONS SET FORTH IN THIS LETTER OF TRANSMITTAL CAREFULLY. Ladies and Gentlemen: The undersigned hereby tenders to WEC Acquisition Corporation, a Delaware corporation ("Purchaser") and a wholly owned subsidiary of Danaher Corporation, a Delaware corporation ("Parent"), the above- described common shares, par value $1 per share, including the associated rights (the "Rights") issued pursuant to the Rights Agreement (the "Rights Agreement"), dated as of March 11, 1996, as amended, between the Company and Society National Bank, as Rights Agent (the "Common Shares"), and the above-described Series A Convertible Preferred Shares, without par value (the "Preferred Shares" and, together with the Common Shares, the "Shares"), of Acme-Cleveland Corporation, an Ohio corporation (the "Company"), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated March 7, 1996 (the "Offer to Purchase"), as amended and supplemented by the Supplement thereto dated June 5, 1996 (the "Supplement") and the related Letter of Transmittal (which, as amended from time to time, collectively constitute the "Offer"), receipt of which is hereby acknowledged. The undersigned understands that Purchaser reserves the right to transfer or assign, in whole or from time to time in part, to one or more of its affiliates, the right to purchase all or any portion of the Shares tendered pursuant to the Offer. Subject to, and effective upon, acceptance for payment of the Shares tendered herewith, in accordance with the terms of the Offer (including, if the Offer is extended or amended, the terms and conditions of such extension or amendment), the undersigned hereby sells, assigns and transfers to, or upon the order of, Purchaser all right, title and interest in and to all the Shares that are being tendered hereby and all dividends, distributions (including, without limitation, distributions of additional Shares) and rights declared, paid or distributed in respect of such Shares on or after March 5, 1996 (collectively, "Distributions"), and irrevocably appoints the Depositary the true and lawful agent and attorney-in-fact of the undersigned with respect to such Shares and all Distributions, with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest), to (i) deliver Share Certificates evidencing such Shares and all Distributions, or transfer ownership of such Shares and all Distributions on the account books maintained by a Book-Entry Transfer Facility, together, in either case, with all accompanying evidences of transfer and authenticity, to or upon the order of Purchaser, (ii) present such Shares and all Distributions for transfer on the books of the Company and (iii) receive all benefits and otherwise exercise all rights of beneficial ownership of such Shares and all Distributions, all in accordance with the terms of the Offer. By executing this Letter of Transmittal, the undersigned irrevocably appoints Steven M. Rales, Mitchell P. Rales and Patrick W. Allender of the Purchaser as proxies of the undersigned, each with full power of substitution, to the full extent of the undersigned's rights with respect to the Shares tendered by the undersigned and accepted for payment by the Purchaser (and any and all Distributions). All such proxies shall be considered coupled with an interest in the tendered Shares. This appointment will be effective if, when, and only to the extent that, the Purchaser accepts such Shares for payment pursuant to the Offer. Upon such acceptance for payment, all prior proxies given by the undersigned with respect to such Shares (and such other Shares and securities) will, without further action, be revoked, and no subsequent proxies may be given nor any subsequent written consent executed by the undersigned (and, if given or executed, will not be deemed to be effective) with respect thereto. The designees of the Purchaser named above will, with respect to the Shares and other securities for which the appointment is effective, be empowered to exercise all voting and other rights of the undersigned as they in their sole discretion may deem proper at any annual or special meeting of the shareholders of the Company or any adjournment or postponement thereof, by written consent in lieu of any such meeting or otherwise, and the Purchaser reserves the right to require that, in order for Shares or other securities to be deemed validly tendered, immediately upon the Purchaser's acceptance for payment of such Shares, the Purchaser must be able to exercise full voting rights with respect to such Shares. The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer the Shares tendered hereby and all Distributions, and that when such Shares are accepted for payment by Purchaser, Purchaser will acquire good, marketable and unencumbered title thereto and to all Distributions, free and clear of all liens, restrictions, charges and encumbrances, and that none of such Shares and Distributions will be subject to any adverse claim. The undersigned, upon request, shall execute and deliver all additional documents deemed by the Depositary or Purchaser to be necessary or desirable to complete the sale, assignment and transfer of the Shares tendered hereby and all Distributions. In addition, the undersigned shall remit and transfer promptly to the Depositary for the account of Purchaser all Distributions in respect of the Shares tendered hereby, accompanied by appropriate documentation of transfer, and, pending such remittance and transfer or appropriate assurance thereof, Purchaser shall be entitled to all rights and privileges as owner of each such Distribution and may withhold the entire purchase price of the Shares tendered hereby or deduct from such purchase price, the amount or value of such Distribution as determined by Purchaser in its sole discretion. The Company has executed an amendment to the Rights Agreement that renders the Rights inapplicable to the Offer. Accordingly, neither the Offer nor the Merger will result in Parent or any of its Affiliates or Associates being deemed an Acquiring Person or a Beneficial Owner (as such terms are defined in the Rights Agreement). No authority herein conferred or agreed to be conferred shall be affected by, and all such authority shall survive, the death or incapacity of the undersigned. All obligations of the undersigned hereunder shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned. Except as otherwise stated in the Offer to Purchase, as amended and supplemented by the Supplement, this tender is irrevocable. The undersigned understands that tenders of Shares pursuant to any one of the procedures described in Section 2 of the Offer to Purchase and in the instructions hereto will constitute the undersigned's acceptance of the terms and conditions of the Offer. Purchaser's acceptance of such Shares for payment will constitute a binding agreement between the undersigned and Purchaser upon the terms and subject to the conditions of the Offer, including, without limitation, the undersigned's representation and warranty that the undersigned owns the Shares being tendered. Unless otherwise indicated herein in the box entitled "Special Payment Instructions," please issue the check for the purchase price of all Shares purchased, and return all Share Certificates evidencing Shares not purchased or not tendered, in the name(s) of the registered holder(s) appearing above under "Description of Shares Tendered." Similarly, unless otherwise indicated in the box entitled "Special Delivery Instructions," please mail the check for the purchase price of all Shares purchased and all Share Certificates evidencing Shares not tendered or not purchased (and accompanying documents, as appropriate) to the address(es) of the registered holder(s) appearing above under "Description of Shares Tendered." In the event that the boxes entitled "Special Payment Instructions" and "Special Delivery Instructions" are both completed, please issue the check for the purchase price of all Shares purchased and return all Share Certificates evidencing Shares not purchased or not tendered in the name(s) of, and mail such check and Share Certificates to, the person(s) so indicated. The undersigned recognizes that Purchaser has no obligation, pursuant to the Special Payment Instructions, to transfer any Shares from the name of the registered holder(s) thereof if Purchaser does not purchase any of the Shares tendered hereby. ============================================================================= SPECIAL PAYMENT INSTRUCTIONS (SEE INSTRUCTIONS 1, 5, 6 AND 7) To be completed ONLY if the check for the purchase price of Shares purchased or Share Certificates evidencing Shares not tendered or not purchased are to be issued in the name of someone other than the undersigned. Issue [ ] check [ ] Share Certificate(s) to: Name: ----------------------------------------------------------------------- (Print) Address: -------------------------------------------------------------------- - ----------------------------------------------------------------------------- (Zip Code) - ----------------------------------------------------------------------------- Taxpayer identification or Social Security Number (See Substitute Form W-9 on reverse side) ============================================================================= ============================================================================= SPECIAL DELIVERY INSTRUCTIONS (SEE INSTRUCTIONS 1, 5, 6 AND 7) To be completed ONLY if the check for the purchase price of Shares purchased or Share Certificates evidencing Shares not tendered or not purchased are to be mailed to someone other than the undersigned, or to the undersigned at an address other than that shown under "Description of Shares Tendered." Mail [ ] check [ ] Share Certificate(s) to: Name: ----------------------------------------------------------------------- (Print) Address: -------------------------------------------------------------------- - ----------------------------------------------------------------------------- (Zip Code) ============================================================================= ============================================================================= IMPORTANT SHAREHOLDERS: SIGN HERE (Also Please Complete Substitute Form W-9 Included Herein) X - ----------------------------------------------------------------------------- X - ----------------------------------------------------------------------------- SIGNATURE(S) OF HOLDER(S) Dated:________________ , 1996 (Must be signed by registered holder(s) exactly as name(s) appear(s) on Share Certificates or on a security position listing or by a person(s) authorized to become registered holder(s) by certificates and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, attorney- in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, please provide the following information. See Instruction 5.) Name(s): -------------------------------------------------------------------- - ----------------------------------------------------------------------------- (Please Print) Capacity (full title): ------------------------------------------------------ Address: -------------------------------------------------------------------- - ----------------------------------------------------------------------------- (include Zip Code) Area Code and Telephone No.: ------------------------------------------------ Taxpayer Identification or Social Security No.: ----------------------------- (See Substitute Form W-9 Included Herein) GUARANTEE OF SIGNATURE(S) (If Required--See Instructions 1 and 5) FOR USE BY FINANCIAL INSTITUTIONS ONLY. PLACE MEDALLION GUARANTEE IN SPACE BELOW. ============================================================================= INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER 1. GUARANTEE OF SIGNATURES. All signatures on this Letter of Transmittal must be guaranteed by a firm which is a member of a registered national securities exchange or of the National Association of Securities Dealers, Inc., or by a financial institution (including most commercial banks, savings and loan associations and brokerage houses) that is a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Guarantee Program or the Stock Exchange Medallion Program (an "Eligible Institution"), unless (i) this Letter of Transmittal is signed by the registered holder(s) of the Shares (which term, for purposes of this document, shall include any participant in a Book-Entry Transfer Facility whose name appears on a security position listing as the owner of Shares) tendered hereby and such holder(s) has (have) completed neither the box entitled "Special Payment Instructions" nor the box entitled "Special Delivery Instructions" on the reverse hereof or (ii) such Shares are tendered for the account of an Eligible Institution. See Instruction 5. 2. DELIVERY OF LETTER OF TRANSMITTAL AND SHARE CERTIFICATES. This Letter of Transmittal is to be used either if Share Certificates are to be forwarded herewith or if Shares are to be delivered by book-entry transfer pursuant to the procedure set forth in Section 2 of the Offer to Purchase. Share Certificates evidencing all physically tendered Shares, or a confirmation of a book-entry transfer into the Depositary's account at a Book-Entry Transfer Facility of all Shares delivered by book-entry transfer as well as a properly completed and duly executed Letter of Transmittal (or facsimile thereof) and any other documents required by this Letter of Transmittal, must be received by the Depositary at one of its addresses set forth on the reverse hereof prior to the Expiration Date (as defined in Section l of the Supplement). If Share Certificates are forwarded to the Depositary in multiple deliveries, a properly completed and duly executed Letter of Transmittal must accompany each such delivery. Shareholders whose Share Certificates are not immediately available, who cannot deliver their Share Certificates and all other required documents to the Depositary prior to the Expiration Date or who cannot complete the procedure for delivery by book-entry transfer on a timely basis may tender their Shares pursuant to the guaranteed delivery procedure described in Section 2 of the Offer to Purchase. Pursuant to such procedure: (i) such tender must be made by or through an Eligible Institution; (ii) a properly completed and duly executed Notice of Guaranteed Delivery, substantially in the form made available by Purchaser, must be received by the Depositary prior to the Expiration Date; and (iii) the Share Certificates evidencing all physically delivered Shares in proper form for transfer by delivery, or a confirmation of a book-entry transfer into the Depositary's account at a Book-Entry Transfer Facility of all Shares delivered by book-entry transfer, in each case together with a Letter of Transmittal (or a facsimile thereof), properly completed and duly executed, with any required signature guarantees, and any other documents required by this Letter of Transmittal, must be received by the Depositary within three New York Stock Exchange, Inc. ("NYSE") trading days after the date of execution of such Notice of Guaranteed Delivery, all as described in Section 2 of the Offer to Purchase. THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, SHARE CERTIFICATES AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER FACILITY, IS AT THE OPTION AND RISK OF THE TENDERING SHAREHOLDER, AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY. No alternative, conditional or contingent tenders will be accepted and no fractional Shares will be purchased. By execution of this Letter of Transmittal (or a facsimile hereof), all tendering shareholders waive any right to receive any notice of the acceptance of their Shares for payment. 3. INADEQUATE SPACE. If the space provided herein under "Description of Shares Tendered" is inadequate, the Share Certificate numbers, the number of Shares evidenced by such Share Certificates and the number of Shares tendered should be listed on a separate schedule and attached hereto. 4. PARTIAL TENDERS (NOT APPLICABLE TO SHAREHOLDERS WHO TENDER BY BOOK-ENTRY TRANSFER). If fewer than all the Shares evidenced by any Share Certificate delivered to the Depositary herewith are to be tendered hereby, fill in the number of Shares which are to be tendered in the box entitled "Number of Shares Tendered." In such cases, new Share Certificate(s) evidencing the remainder of the Shares that were evidenced by the Share Certificates delivered to the Depositary herewith will be sent to the person(s) signing this Letter of Transmittal, unless otherwise provided in the box entitled "Special Delivery Instructions" on the reverse hereof, as soon as practicable after the expiration or termination of the Offer. All Shares evidenced by Share Certificates delivered to the Depositary will be deemed to have been tendered unless otherwise indicated. 5. SIGNATURES ON LETTER OF TRANSMITTAL; STOCK POWERS AND ENDORSEMENTS. If this Letter of Transmittal is signed by the registered holder(s) of the Shares tendered hereby, the signature(s) must correspond with the name(s) as written on the face of the Share Certificates evidencing such Shares without alteration, enlargement or any other change whatsoever. If any Share tendered hereby is owned of record by two or more persons, all such persons must sign this Letter of Transmittal. If any of the Shares tendered hereby are registered in the names of different holders, it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations of such Shares. If this Letter of Transmittal is signed by the registered holder(s) of the Shares tendered hereby, no endorsements of Share Certificates or separate stock powers are required, unless payment is to be made to, or Share Certificates evidencing Shares not tendered or not purchased are to be issued in the name of, a person other than the registered holder(s), in which case, the Share Certificate(s) evidencing the Shares tendered hereby must be endorsed or accompanied by appropriate stock powers, in either case signed exactly as the name(s) of the registered holder(s) appear(s) on such Share Certificate(s). Signatures on such Share Certificate(s) and stock powers must be guaranteed by an Eligible Institution. If this Letter of Transmittal is signed by a person other than the registered holder(s) of the Shares tendered hereby, the Share Certificate(s) evidencing the Shares tendered hereby must be endorsed or accompanied by appropriate stock powers, in either case signed exactly as the name(s) of the registered holder(s) appear(s) on such Share Certificate(s). Signatures on such Share Certificate(s) and stock powers must be guaranteed by an Eligible Institution. If this Letter of Transmittal or any Share Certificate or stock power is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, such person should so indicate when signing, and proper evidence satisfactory to Purchaser of such person's authority so to act must be submitted. 6. STOCK TRANSFER TAXES. Except as otherwise provided in this Instruction 6, Purchaser will pay all stock transfer taxes with respect to the sale and transfer of any Shares to it or its order pursuant to the Offer. If, however, payment of the purchase price of any Shares purchased is to be made to, or Share Certificate(s) evidencing Shares not tendered or not purchased are to be issued in the name of, a person other than the registered holder(s), the amount of any stock transfer taxes (whether imposed on the registered holder(s), such other person or otherwise) payable on account of the transfer to such other person will be deducted from the purchase price of such Shares purchased, unless evidence satisfactory to Purchaser of the payment of such taxes, or exemption therefrom, is submitted. Except as provided in this Instruction 6, it will not be necessary for transfer tax stamps to be affixed to the Share Certificates evidencing the Shares tendered hereby. 7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check for the purchase price of any Shares tendered hereby is to be issued, or Share Certificate(s) evidencing Shares not tendered or not purchased are to be issued, in the name of a person other than the person(s) signing this Letter of Transmittal or if such check or any such Share Certificate is to be sent to someone other than the person(s) signing this Letter of Transmittal or to the person(s) signing this Letter of Transmittal but at an address other than that shown in the box entitled "Description of Shares Tendered" on the reverse hereof, the appropriate boxes on the reverse of this Letter of Transmittal must be completed. 8. WAIVER OF CONDITIONS. The conditions to the Offer may be waived by the Purchaser in whole or in part at any time and from time to time in its sole discretion. 9. QUESTIONS AND REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests for assistance may be directed to the Dealer Manager or the Information Agent at their respective addresses or telephone numbers set forth below. Additional copies of the Offer to Purchase, the Supplement, this revised Letter of Transmittal and the revised Notice of Guaranteed Delivery may be obtained from the Information Agent or from brokers, dealers, commercial banks or trust companies. 10. SUBSTITUTE FORM W-9. Each tendering shareholder is required to provide the Depositary with a correct Taxpayer Identification Number ("TIN") on the Substitute Form W-9 which is provided under "Important Tax Information" below, and to certify, under penalties of perjury, that such number is correct and that such shareholder is not subject to backup withholding of federal income tax. If a tendering shareholder has been notified by the Internal Revenue Service that such shareholder is subject to backup withholding, such shareholder must cross out item (2) of the Certification box of the Substitute Form W-9, unless such shareholder has since been notified by the Internal Revenue Service that such shareholder is no longer subject to backup withholding. Failure to provide the information on the Substitute Form W-9 may subject the tendering shareholder to 31% federal income tax withholding on the payment of the purchase price of all Shares purchased from such shareholder. If the tendering shareholder has not been issued a TIN and has applied for one or intends to apply for one in the near future, such shareholder should write "Applied For" in the space provided for the TIN in Part I of the Substitute Form W-9, and sign and date the Substitute Form W-9. If "Applied For" is written in Part l and the Depositary is not provided with a TIN within 60 days, the Depositary will withhold 31% on all payments of the purchase price to such shareholder until a TIN is provided to the Depositary. IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE HEREOF), PROPERLY COMPLETED AND DULY EXECUTED (TOGETHER WITH ANY REQUIRED SIGNATURE GUARANTEES AND SHARE CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED DOCUMENTS) OR A PROPERLY COMPLETED AND DULY EXECUTED NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE DEPOSITARY PRIOR TO THE EXPIRATION DATE (AS DEFINED IN THE OFFER TO PURCHASE). IMPORTANT TAX INFORMATION Under the federal income tax law, a shareholder whose tendered Shares are accepted for payment is required by law to provide the Depositary (as payer) with such shareholder's correct TIN on Substitute Form W-9 below. If such shareholder is an individual, the TIN is such shareholder's social security number. If the Depositary is not provided with the correct TIN, the shareholder may be subject to a $50 penalty imposed by the Internal Revenue Service. In addition, payments that are made to such shareholder with respect to Shares purchased pursuant to the Offer may be subject to backup withholding of 31%. Certain shareholders (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. In order for a foreign individual to qualify as an exempt recipient, such individual must submit a statement, signed under penalties of perjury, attesting to such individual's exempt status. Forms of such statements can be obtained from the Depositary. See the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 for additional instructions. If backup withholding applies, the Depositary is required to withhold 31% of any payments made to the shareholder. Backup withholding is not an additional tax. Rather, the tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund may be obtained from the Internal Revenue Service. PURPOSE OF SUBSTITUTE FORM W-9 To prevent backup withholding on payments that are made to a shareholder with respect to Shares purchased pursuant to the Offer, the shareholder is required to notify the Depositary of such shareholder's correct TIN by completing the form below certifying (a) that the TIN provided on Substitute Form W-9 is correct (or that such shareholder is awaiting a TIN), and (b) that (i) such shareholder has not been notified by the Internal Revenue Service that such shareholder is subject to backup withholding as a result of a failure to report all interest or dividends or (ii) the Internal Revenue Service has notified such shareholder that such shareholder is no longer subject to backup withholding. WHAT NUMBER TO GIVE THE DEPOSITARY The shareholder is required to give the Depositary the social security number or employer identification number of the record holder of the Shares tendered hereby. If the Shares are in more than one name or are not in the name of the actual owner, consult the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 for additional guidance on which number to report. If the tendering shareholder has not been issued a TIN and has applied for a number or intends to apply for a number in the near future, the shareholder should write "Applied For" in the space provided for the TIN in Part I, and sign and date the Substitute Form W-9. If "Applied For" is written in Part I and the Depositary is not provided with a TIN within 60 days, the Depositary will withhold 31% of all payments of the purchase price to such shareholder until a TIN is provided to the Depositary. ALL TENDERING SHAREHOLDERS MUST COMPLETE THE FOLLOWING: PAYER'S NAME: FIRST CHICAGO TRUST COMPANY OF NEW YORK - ------------------------------------------------------------------------------------------------------------------- SUBSTITUTE PART I--Taxpayer Identification Number-- ------------------------------------- Form W-9 For all accounts, enter taxpayer Social Security Number Depart of identification number in the box at right. the Treasury (For most individuals, this is your social Internal Revenue security number. If you do not have a OR __________________________________ Service number, see Obtaining a Number in the Employer Identification enclosed Guidelines.) Certify by signing Number PAYER'S and dating below. Note: If the account is in REQUEST FOR more than one name, see the chart in the TAXPAYER enclosed Guidelines to determine which IDENTIFICATION number to give the payer. NUMBER (If awaiting TIN write (TIN) "Applied For") PART II--For Payees Exempt From Backup Withholding, see the enclosed Guidelines and complete as instructed therein. CERTIFICATION--Under penalties of perjury, I certify that: (1) The number shown on this form is my correct Taxpayer Identification Number (or I am waiting for a number to be issued to me), and (2) I am not subject to backup withholding either because I have not been notified by the Internal Revenue Service (the "IRS") that I am subject to backup withholding as a result of failure to report all interest or dividends, or the IRS has notified me that I am no longer subject to backup withholding. CERTIFICATE INSTRUCTIONS--You must cross out item (2) above if you have been notified by the IRS that you are subject to backup withholding because of underreporting interest or dividends on your tax return. However, if after being notified by the IRS that you were subject to backup withholding you received another notification from the IRS that you are no longer subject to backup withholding, do not cross out item (2). (Also see instructions in the enclosed Guidelines.) ------------------------------------------------------------------------------------------ SIGNATURE ............................................... DATE .................., 1996 - --------------------------------------------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. The Information Agent for the Offer is: D.F. King & Co., Inc. 77 Water Street New York, New York 10005 Call Collect (212) 269-5550 OR CALL TOLL FREE (800) 628-8532 The Dealer Manager for the Offer is: Merrill Lynch & Co. World Financial Center North Tower New York, New York 10281-1305 (212) 236-4565 (Call Collect) June 5, 1996 EX-99.(G)(16) 4 LETTER TO BROKERS SUPPLEMENT TO THE OFFER TO PURCHASE WEC ACQUISITION CORPORATION A WHOLLY OWNED SUBSIDIARY OF DANAHER CORPORATION HAS INCREASED THE PRICE OF ITS OFFER TO PURCHASE FOR CASH ALL OUTSTANDING COMMON SHARES (INCLUDING THE ASSOCIATED RIGHTS) AND SERIES A CONVERTIBLE PREFERRED SHARES OF ACME-CLEVELAND CORPORATION TO $30 NET PER SHARE - ------------------------------------------------------------------------------- THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON JULY 2, 1996, UNLESS THE OFFER IS EXTENDED. - ------------------------------------------------------------------------------- June 5, 1996 To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees: We have been appointed by WEC Acquisition Corporation, a Delaware corporation (the "Purchaser") and a wholly owned subsidiary of Danaher Corporation, a Delaware corporation ("Parent"), to act as Dealer Manager in connection with the Purchaser's offer to purchase all outstanding common shares, par value $1 per share, including the associated rights (the "Rights") issued pursuant to the Rights Agreement (the "Rights Agreement"), dated as of March 11, 1996, as amended, between the Company and Society National Bank, as Rights Agent (the "Common Shares"), and all outstanding Series A Convertible Preferred Shares, without par value (the "Preferred Shares" and, together with the Common Shares, the "Shares"), of Acme-Cleveland Corporation, an Ohio corporation (the "Company"), at a price of $30 per Share, net to the seller in cash, without interest thereon (the "Offer Price"), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated March 7, 1996 (the "Offer to Purchase"), as amended and supplemented by the Supplement thereto dated June 5, 1996 (the "Supplement"), and in the related Letter of Transmittal (which, as amended from time to time, together constitute the "Offer"). The Supplement and the Letter of Transmittal are enclosed herewith. THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING VALIDLY TENDERED A NUMBER OF SHARES WHICH, WHEN ADDED TO THE SHARES BENEFICIALLY OWNED BY PARENT AND ANY OF ITS AFFILIATES, WOULD REPRESENT AT LEAST A MAJORITY OF THE SHARES OUTSTANDING ON A FULLY DILUTED BASIS IMMEDIATELY PRIOR TO THE EXPIRATION OF THE OFFER, AND (2) THE ACQUISITION OF SHARES PURSUANT TO THE OFFER BEING AUTHORIZED BY THE SHAREHOLDERS OF THE COMPANY PURSUANT TO THE OHIO CONTROL SHARE ACQUISITION LAW. SEE SECTION 9 OF THE SUPPLEMENT. THE OFFER IS NOT CONDITIONED ON THE RECEIPT OF FINANCING. Please furnish copies of the enclosed materials to those of your clients for whose accounts you hold Shares registered in your name or in the name of your nominee. The Company has executed an amendment to the Rights Agreement that renders the Rights inapplicable to the Offer. Accordingly, neither the Offer nor the Merger will result in Parent or any of its Affiliates or Associates being deemed an Acquiring Person of a Beneficial Owner (as such terms are defined in the Rights Agreement). For your information and for forwarding to your clients for whom you hold Shares registered in your name or in the name of your nominee, or who hold Shares registered in their own names, we are enclosing the following documents: 1. The Supplement, dated June 5, 1996; 2. The revised green Letter of Transmittal to be used by holders of Shares in accepting the Offer and tendering Shares; 3. The revised yellow Notice of Guaranteed Delivery to be used to accept the Offer if the certificates evidencing such Shares (the "Share Certificates") are not immediately available or time will not permit all required documents to reach the Depositary (as defined in the Offer to Purchase) prior to the Expiration Date (as defined in the Supplement) or the procedure for book-entry transfer cannot be completed on a timely basis; 4. A letter which may be sent to your clients for whose accounts you hold Shares registered in your name or in the name of your nominees, with space provided for obtaining such clients' instructions with regard to the Offer; 5. Guidelines of the Internal Revenue Service for Certification of Taxpayer Identification Number on Substitute Form W-9; 6. A return envelope addressed to the Depositary; and 7. Amendment No. 5, dated June 5, 1996, to the Schedule 14D-9 originally filed on March 20, 1996 by the Company. Upon the terms and subject to the conditions of the Offer (including, if the Offer is extended or amended, the terms and conditions of any such extension or amendment), the Purchaser will purchase, by accepting for payment, and will pay for the Shares validly tendered prior to the Expiration Date promptly after the Expiration Date. For purposes of the Offer, the Purchaser will be deemed to have accepted for payment, and thereby purchased, tendered Shares as, if and when the Purchaser gives oral or written notice to the Depositary of the Purchaser's acceptance of such Shares for payment pursuant to the Offer. In all cases, payment for Shares purchased pursuant to the Offer will be made only after timely receipt by the Depositary of (i) the Share Certificates or timely confirmation of a book-entry transfer of such Shares, if such procedure is available, into the Depositary's account at The Depository Trust Company, the Midwest Securities Trust Company or the Philadelphia Depository Trust Company pursuant to the procedures set forth in Section 2 of the Offer to Purchase, (ii) the Letter of Transmittal (or a facsimile thereof), properly completed and duly executed, with any required signature guarantees, or an Agent's Message (as defined in Section 2 of the Offer to Purchase) and (iii) any other documents required by the Letter of Transmittal. The Purchaser will not pay any fees or commissions to any broker or dealer or any other person (other than the Dealer Manager, the Information Agent and the Depositary as described in Section 16 of the Offer to Purchase) in connection with the solicitation of tenders of Shares pursuant to the Offer. The Purchaser will, however, upon request, reimburse you for customary mailing and handling expenses incurred by you in forwarding the enclosed materials to your clients. The Purchaser will pay any stock transfer taxes incident to the transfer to it of validly tendered Shares, except as otherwise provided in Instruction 6 of the Letter of Transmittal. YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON JULY 2, 1996, UNLESS THE OFFER IS EXTENDED. In order to take advantage of the Offer, a duly executed and properly completed Letter of Transmittal (or a facsimile thereof), with any required signature guarantees and any other required documents, should be sent to the Depositary, and certificates evidencing the tendered Shares should be delivered or such Shares should be tendered by book-entry transfer, all in accordance with the Instructions set forth in the Letter of Transmittal and the Offer to Purchase. If holders of Shares wish to tender Shares, but it is impracticable for them to forward their Share Certificates or other required documents to the Depositary prior to the Expiration Date or to comply with the procedures for book-entry transfer on a timely basis, a tender may be effected by following the guaranteed delivery procedures specified under Section 2 of the Offer to Purchase. 2 Any inquiries you may have with respect to the Offer should be addressed to D.F. King & Co., Inc., the Information Agent, or Merrill Lynch, Pierce, Fenner & Smith Incorporated, the Dealer Manager, at their respective addresses and telephone numbers set forth on the back cover page of the Offer to Purchase. Additional copies of the enclosed materials and the Offer to Purchase may be obtained by calling D.F. King & Co., Inc., the Information Agent, collect at (212) 269-5550 or toll-free at (800) 628-8532, or from brokers, dealers, commercial banks or trust companies. Very truly yours, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY OTHER PERSON AS AN AGENT OF PARENT, THE PURCHASER, THE COMPANY, THE DEPOSITARY, THE INFORMATION AGENT OR THE DEALER MANAGER, OR ANY AFFILIATE OF ANY OF THE FOREGOING, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE DOCUMENTS ENCLOSED, AND THE OFFER TO PURCHASE, AND THE STATEMENTS CONTAINED THEREIN. 3 EX-99.(G)(17) 5 LETTER TO CLIENTS. SUPPLEMENT TO THE OFFER TO PURCHASE WEC ACQUISITION CORPORATION A WHOLLY OWNED SUBSIDIARY OF DANAHER CORPORATION HAS INCREASED THE PRICE OF ITS OFFER TO PURCHASE FOR CASH ALL OUTSTANDING COMMON SHARES (INCLUDING THE ASSOCIATED RIGHTS) AND SERIES A CONVERTIBLE PREFERRED SHARES OF ACME-CLEVELAND CORPORATION TO $30 NET PER SHARE - ------------------------------------------------------------------------------- THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME ON JULY 2, 1996, UNLESS THE OFFER IS EXTENDED. - ------------------------------------------------------------------------------- June 5, 1996 To Our Clients: Enclosed for your consideration is a Supplement, dated June 5, 1996 (the "Supplement"), to the Offer to Purchase, dated March 7, 1996 (the "Offer to Purchase"), and the related Letter of Transmittal (which, as amended from time to time, together constitute the "Offer") in connection with the Offer by WEC Acquisition Corporation, a Delaware corporation (the "Purchaser"), and a wholly owned subsidiary of Danaher Corporation, a Delaware corporation ("Parent"), to purchase all outstanding common shares, par value $1 per share, including the associated rights (the "Rights") issued pursuant to the Rights Agreement (the "Rights Agreement"), dated as of March 11, 1996, as amended, between the Company and Society National Bank, as Rights Agent (the "Common Shares"), and all outstanding Series A Convertible Preferred Shares, without par value (the "Preferred Shares" and, together with the Common Shares, the "Shares"), of Acme-Cleveland Corporation, an Ohio corporation (the "Company"), at a price of $30 per Share, net to the seller in cash, without interest thereon (the "Offer Price"), upon the terms and subject to the conditions set forth in the Offer to Purchase, as amended and supplemented by the Supplement. Shareholders whose certificates evidencing Shares ("Share Certificates") are not immediately available or who cannot deliver their Share Certificates and all other documents required by the Letter of Transmittal to the Depositary prior to the Expiration Date (as defined in the Supplement) or who cannot complete the procedure for delivery by book-entry transfer to the Depositary's account at a Book-Entry Transfer Facility (as defined in Section 2 of the Offer to Purchase) on a timely basis and who wish to tender their Shares must do so pursuant to the guaranteed delivery procedure described in Section 2 of the Offer to Purchase. See Instruction 2 of the Letter of Transmittal. Delivery of documents to a Book-Entry Transfer Facility in accordance with the Book-Entry Transfer Facility's procedures does not constitute delivery to the Depositary. THE MATERIAL IS BEING SENT TO YOU AS THE BENEFICIAL OWNER OF SHARES HELD BY US FOR YOUR ACCOUNT BUT NOT REGISTERED IN YOUR NAME. WE ARE THE HOLDER OF RECORD OF SHARES HELD BY US FOR YOUR ACCOUNT. A TENDER OF SUCH SHARES CAN BE MADE ONLY BY US AS THE HOLDER OF RECORD AND PURSUANT TO YOUR INSTRUCTIONS. THE LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER SHARES HELD BY US FOR YOUR ACCOUNT. We request instructions as to whether you wish to have us tender on your behalf any or all of the Shares held by us for your account, upon the terms and subject to the conditions set forth in the Offer to Purchase, as amended and supplemented by the Supplement. Your attention is invited to the following: 1. The tender price is $30 per Share, net to the seller in cash, without interest thereon. 2. The Offer and withdrawal rights will expire at 5:00 p.m., New York City time, on July 2, 1996, unless the Offer is extended. 3. The Offer is being made for all outstanding Shares. 4. The Offer is conditioned upon, among other things, (1) there being validly tendered a number of Shares which, when added to the Shares beneficially owned by Parent, would represent at least a majority of the Shares outstanding on a fully diluted basis on the date of purchase and (2) the acquisition of Shares pursuant to the Offer being authorized by the shareholders of the Company pursuant to the Ohio Control Share Acquisition Law. See Section 9 of the Supplement. 5. The Offer is not conditioned on the receipt of financing. Tendering shareholders will not be obligated to pay brokerage fees or commissions or, except as set forth in Instruction 6 of the Letter of Transmittal, stock transfer taxes on the purchase of Shares by the Purchaser pursuant to the Offer. The Offer is made solely by the Offer to Purchase, the Supplement and the related Letter of Transmittal. The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction. Neither the Purchaser nor Parent is aware of any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the laws of such jurisdiction. To the extent the Purchaser or Parent becomes aware of any state law that would limit the class of offerees in the Offer, the Purchaser will amend the Offer and, depending on the timing of such amendment, if any, will extend the Offer to provide adequate dissemination of such information to such holders of shares prior to the expiration of the Offer. In any jurisdiction the securities, blue sky or other laws of which require the Offer to be made by a licensed broker or dealer, the Offer is being made on behalf of the Purchaser by the Dealer Manager or one or more registered brokers or dealers licensed under the laws of such jurisdiction. Shareholders who have previously validly tendered and not properly withdrawn their Shares pursuant to the Offer are not required to take any further action, except as may be required by the procedure for guaranteed delivery if such procedure was utilized. If Shares are accepted for payment and paid for by the Purchaser pursuant to the Offer, such shareholders will receive, subject to the conditions of the Offer, the increased price of $30 per Share. If you wish to have us tender any or all of your Shares, please so instruct us by completing, executing and returning to us the instruction form contained in this letter. An envelope in which to return your instructions to us is enclosed. If you authorize the tender of your Shares, all such Shares will be tendered unless otherwise specified on the instruction form contained in this letter. Your instructions should be forwarded to us in ample time to permit us to submit a tender on your behalf prior to the expiration of the Offer. 2 INSTRUCTIONS WITH RESPECT TO THE SUPPLEMENT TO THE OFFER TO PURCHASE FOR CASH ALL OUTSTANDING COMMON SHARES (INCLUDING THE ASSOCIATED RIGHTS) AND SERIES A CONVERTIBLE PREFERRED SHARES OF ACME-CLEVELAND CORPORATION The undersigned acknowledge(s) receipt of your letter dated June 5, 1996, and the Offer to Purchase, dated March 7, 1996, as amended and supplemented by the Supplement thereto, dated June 5, 1996 (the "Supplement"), and the related Letter of Transmittal (which, as amended from time to time, together constitute the "Offer"), in connection with the Offer by WEC Acquisition Corporation, a Delaware corporation (the "Purchaser") and a wholly owned subsidiary of Danaher Corporation, a Delaware corporation ("Parent"), to purchase all outstanding common shares, par value $1 per share, including the associated rights (the "Rights") issued pursuant to the Rights Agreement (the "Rights Agreement"), dated as of March 11, 1996, as amended, between the Company and Society National Bank, as Rights Agent (the "Common Shares"), and all outstanding Series A Convertible Preferred Shares, without par value (the "Preferred Shares" and, together with the Common Shares, the "Shares"), of Acme-Cleveland Corporation, an Ohio corporation (the "Company"), at a price equal to $30 per Share, net to the seller in cash. This will instruct you to tender to the Purchaser the number of Shares indicated below (or, if no number is indicated below, all Shares) held by you for the account of the undersigned, upon the terms and subject to the conditions set forth in the Offer to Purchase, as amended and supplemented by the Supplement. Number of Shares to be Tendered* _____________ Shares Account Number: --------------- Dated:__________________ , 1996 SIGN HERE ------------------------------- ------------------------------- Signature(s) ------------------------------- ------------------------------- Please type or print name(s) ------------------------------- ------------------------------- ------------------------------- Please type or print address(es) here ------------------------------- Area Code and Telephone Number ------------------------------- Taxpayer Identification or Social Security Number(s) - ------------ * Unless otherwise indicated, it will be assumed that all Shares held by us for your account are to be tendered. 3 EX-99.(G)(18) 6 NOTICE OF GUARANTEED DELIVERY NOTICE OF GUARANTEED DELIVERY FOR TENDER OF COMMON SHARES (INCLUDING THE ASSOCIATED RIGHTS) AND SERIES A CONVERTIBLE PREFERRED SHARES OF ACME-CLEVELAND CORPORATION TO WEC ACQUISITION CORPORATION A WHOLLY OWNED SUBSIDIARY OF DANAHER CORPORATION (NOT TO BE USED FOR SIGNATURE GUARANTEES) This Notice of Guaranteed Delivery, or one substantially in the form hereof, must be used to accept the Offer (as defined below) if (i) certificates ("Share Certificates") evidencing common shares, par value $1 per share, including the associated rights (the "Rights") issued pursuant to the Rights Agreement (the "Rights Agreement"), dated as of March 11, 1996, as amended, between the Company and Society National Bank, as Rights Agent (the "Common Shares"), or Series A Convertible Preferred Shares, without par value (the "Preferred Shares" and, together with the Common Shares, the "Shares"), of Acme-Cleveland Corporation, an Ohio corporation (the "Company"), are not immediately available, (ii) time will not permit all required documents to reach First Chicago Trust Company of New York, as Depositary (the "Depositary"), prior to the Expiration Date (as defined in Section 1 of the Supplement referred to below) or (iii) the procedure for book-entry transfer cannot be completed on a timely basis. This Notice of Guaranteed Delivery may be delivered by hand or transmitted by telegram, facsimile transmission or mail to the Depositary. See Section 2 of the Offer to Purchase. THE DEPOSITARY FOR THE OFFER IS: FIRST CHICAGO TRUST COMPANY OF NEW YORK
By Mail: By Facsimile By Hand: P.O. Box 2559 (201) 222-4720 14 Wall Street Suite 4660-WEC or Eighth Floor Jersey City, New Jersey 07303-2559 (201) 222-4721 Suite 4680-WEC New York, New York 10005 Confirm Receipt of Notice of Guaranteed Delivery by telephone: (201) 222-4707
- ----------------------------------------------------------------------------- - ----------------------------------------------------------------------------- DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY. THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER OF TRANSMITTAL. Ladies and Gentlemen: The undersigned hereby tenders to WEC Acquisition Corporation, a Delaware corporation (the "Purchaser") and a wholly owned subsidiary of Danaher Corporation, a Delaware corporation ("Parent"), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated March 7, 1996 (the "Offer to Purchase"), as amended and supplemented by the Supplement thereto dated June 5, 1996 (the "Supplement"), and the related Letter of Transmittal (which, as amended from time to time, together constitute the "Offer"), receipt of each of which is hereby acknowledged, the number of Shares specified below pursuant to the guaranteed delivery procedures described in Section 2 of the Offer to Purchase. [ ] Check here if tendering Preferred Shares Number of Shares: ----------------------------------------------------------- Certificate Nos. (if available): -------------------------------------------- Check ONE box if Shares will be tendered by book-entry transfer: [ ] The Depository Trust Company [ ] Midwest Securities Trust Company [ ] Philadelphia Depository Trust Company Account Number: ------------------------------------------------------------- Dated:___________________ , 1996 Name(s) of Record Holder(s): ------------------------------------------------ ------------------------------------------------ PLEASE PRINT Address(es): ---------------------------------------------------------------- - ----------------------------------------------------------------------------- ZIP CODE Company Area Code and Tel. No.: --------------------------------------------- Area Code and Tel. No.: ----------------------------------------------------- Signature(s): --------------------------------------------------------------- - ----------------------------------------------------------------------------- 2 GUARANTEE (NOT TO BE USED FOR SIGNATURE GUARANTEES) The undersigned, a firm that is a commercial bank, broker, dealer, credit union, savings association or other entity which is a member in good standing of the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Guarantee Program or the Stock Exchange Medallion Program hereby (a) represents that the tender of Shares effected hereby complies with Rule 14e-4 of the Securities Exchange Act of 1934, as amended, and (b) guarantees delivery to the Depositary, at one of its addresses set forth above, of Share Certificates evidencing the Shares tendered hereby in proper form for transfer, or confirmation of book-entry transfer of such Shares into the Depositary's accounts at The Depository Trust Company, the Midwest Securities Trust Company or the Philadelphia Depository Trust Company, in each case with delivery of a properly completed and duly executed Letter of Transmittal (or a facsimile thereof) with any required signature guarantees, or an Agent's Message (as defined in Section 2 of the Offer to Purchase), and any other documents required by the Letter of Transmittal, within three New York Stock Exchange, Inc. trading days after the date of execution of this Notice of Guaranteed Delivery. The Eligible Institution that completes this form must communicate the guarantee to the Depositary and must deliver the Letter of Transmittal and Share Certificates to the Depositary within the time period shown herein. Failure to do so could result in financial loss to such Eligible Institution. - ----------------------------------------------------------------------------- NAME OF FIRM - ----------------------------------------------------------------------------- ADDRESS - ----------------------------------------------------------------------------- ZIP CODE Area Code and Tel. No.: ----------------------------------------------------- - ----------------------------------------------------------------------------- AUTHORIZED SIGNATURE - ----------------------------------------------------------------------------- TITLE Name: ----------------------------------------------------------------------- PLEASE PRINT Date:______________________ , 1996 NOTE: DO NOT SEND SHARE CERTIFICATES WITH THIS NOTICE OF GUARANTEED DELIVERY. SHARE CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL. 3 EX-99.(G)(19) 7 AGREEMENT AND PLAN OF MERGER AGREEMENT AND PLAN OF MERGER DATED AS OF MAY 31, 1996 AMONG ACME-CLEVELAND CORPORATION, DANAHER CORPORATION, AND WEC ACQUISITION CORPORATION TABLE OF CONTENTS ARTICLE I THE TENDER OFFER AND MERGER......................... 1 SECTION 1.01. 831 Meeting; Tender Offer......................... 1 SECTION 1.02. The Merger........................................ 4 SECTION 1.03. Conversion of Shares.............................. 5 SECTION 1.04. Surrender and Payment............................. 5 SECTION 1.05. Company Options................................... 7 SECTION 1.06. Company Performance Plan.......................... 7 ARTICLE II THE SURVIVING CORPORATION; THE PARENT DIRECTORS............ 8 SECTION 2.01. Articles of Incorporation......................... 8 SECTION 2.02. Regulations....................................... 8 SECTION 2.03. Directors and Officers............................ 8 ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY............ 8 SECTION 3.01. Corporate Existence and Power..................... 8 SECTION 3.02. Corporate Authorization........................... 9 SECTION 3.03. Governmental Authorization........................ 9 SECTION 3.04. Non-Contravention................................. 9 SECTION 3.05. Capitalization.................................... 10 SECTION 3.06. Subsidiaries...................................... 11 SECTION 3.07. Company SEC Reports............................... 12 SECTION 3.08. Financial Statements; No Undisclosed Liabilities....................................... 13 SECTION 3.09. Absence of Certain Changes........................ 13 SECTION 3.10. Litigation........................................ 14 SECTION 3.11. ERISA............................................. 14 SECTION 3.12. Taxes............................................. 17 SECTION 3.13. Intellectual Property Rights...................... 18 SECTION 3.14. Environmental Protection.......................... 19 SECTION 3.15. Finders and Investment Bankers.................... 20 SECTION 3.16. Vote Required..................................... 20 SECTION 3.17. Company Rights Agreement.......................... 21 SECTION 3.18. Takeover Statutes................................. 21 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PARENT AND MERGER SUB........................ 22 SECTION 4.01. Corporate Existence and Power..................... 22
i SECTION 4.02. Corporate Authorization........................... 22 SECTION 4.03. Governmental Authorization........................ 23 SECTION 4.04. Non-Contravention................................. 23 SECTION 4.05. Reports........................................... 24 SECTION 4.06. Financial Statements; No Undisclosed Liabilities....................................... 24 SECTION 4.07. Litigation........................................ 25 SECTION 4.08. Vote Required..................................... 25 SECTION 4.09. Availability of Funds............................. 25 ARTICLE V COVENANTS OF THE COMPANY........................ 26 SECTION 5.01. Conduct of the Company............................ 26 SECTION 5.02. Access to Information............................. 27 SECTION 5.03. Other Offers...................................... 28 SECTION 5.04. Notices of Certain Events......................... 28 SECTION 5.05. Merger Meeting; Proxy Statement................... 29 ARTICLE VI COVENANTS OF THE PARENT AND MERGER SUB................... 30 SECTION 6.01. Director, Officer, and Employee Liability......... 30 SECTION 6.02. Employee Benefits................................. 30 ARTICLE VII COVENANTS OF THE PARENT, MERGER SUB, AND THE COMPANY.......... 31 SECTION 7.01. Reasonable Efforts................................ 31 SECTION 7.02. Certain Filings and Consents...................... 31 SECTION 7.03. Public Announcements.............................. 32 SECTION 7.04. State Takeover Laws............................... 32 ARTICLE VIII CONDITIONS TO THE MERGER........................... 32 SECTION 8.01. Conditions to the Obligations of Each Party............................................. 32 SECTION 8.02. Conditions to the Obligations of the Parent and Merger Sub............................. 33 ARTICLE IX TERMINATION................................. 33 SECTION 9.01. Termination....................................... 33 SECTION 9.02. Effect of Termination............................. 34 ARTICLE X MISCELLANEOUS.............................. 34
ii SECTION 10.01. Notices........................................... 34 SECTION 10.02. Survival.......................................... 35 SECTION 10.03. Amendments; No Waivers............................ 35 SECTION 10.04. Fees and Expenses................................. 36 SECTION 10.05. Successors and Assigns............................ 37 SECTION 10.06. Governing Law..................................... 37 SECTION 10.07. Counterparts; Effectiveness....................... 37 SECTION 10.08. Entire Agreement.................................. 37 SECTION 10.09. Headings.......................................... 38 SECTION 10.10. Severability...................................... 38 SECTION 10.11. Specific Performance.............................. 38 INDEX OF DEFINED TERMS ..................................................... 40 LIST OF SCHEDULES ..................................................... 41
iii AGREEMENT AND PLAN OF MERGER THIS AGREEMENT AND PLAN OF MERGER, dated as of May 31, 1996 (this "Agreement"), is made by and between ACME-CLEVELAND CORPORATION, an Ohio corporation (the "Company"), DANAHER CORPORATION, a Delaware corporation (the "Parent"), and WEC ACQUISITION CORPORATION, a Delaware corporation and wholly owned subsidiary of the Parent ("Merger Sub"). In consideration of the respective representations, warranties, and agreements set forth herein, the parties agree as follows: ARTICLE I THE TENDER OFFER AND MERGER SECTION 1.01. 831 Meeting; Tender Offer (a) The Company will reconvene the Special Meeting of Shareholders of the Company (the "831 Meeting") called for the purpose of considering and acting upon a proposed "control share acquisition" of the Company by Merger Sub, which was originally scheduled to be held on April 25, 1996, at the earliest practicable date. The methods for identifying "interested shares," as defined in Section 1701.01(CC)(2) of the Ohio General Corporation Law ("Ohio Law"), and for determining whether the related quorum requirement is met at the 831 Meeting will be substantially as set forth in Schedule 1.01(a) (831 Meeting Procedures). The Company will not postpone or adjourn (other than for the absence of a quorum) the 831 Meeting without the consent of the Parent, unless the Parent so requests. The Company's Board of Directors will recommend that the Company's shareholders approve the proposed "control share acquisition" at the 831 Meeting, unless (i) such recommendation would not be consistent with the fiduciary duties of the Board of Directors under applicable law, as advised by counsel, or (ii) this Agreement is terminated in accordance with Article IX. (b) As promptly as practicable, but in no event later than five business days after the public announcement of the execution of this Agreement, Merger Sub will, and the Parent will cause Merger Sub to, amend and supplement its existing tender offer (as amended, the "Offer") to provide that (i) the price to be paid thereunder for each outstanding Common Share, $1 par value per share, of the Company, including the associated Company Right (as defined in Section 3.05) (together with the Company Right, a "Company Common Share"), and each Series A Convertible Preferred Share, without par value, of the Company (a "Company A Preferred Share"; the Company 1 Common Shares and the Company A Preferred Shares are collectively referred to as "Company Shares") will be $30.00, (ii) the obligations of Merger Sub and the Parent to consummate the Offer and to accept for payment and purchase the Company Shares tendered in the Offer will be subject only to the conditions set forth in Schedule 1.01(b) (Offer Conditions) (the "Offer Conditions"), and (iii) the expiration date of the Offer will be extended until at least 5:00 p.m. on the date of the 831 Meeting. At the Company's request, Merger Sub will, and the Parent will cause Merger Sub to, extend the expiration date of the Offer from time to time for up to an aggregate of an additional ten business days following the date of the 831 Meeting if the condition set forth in clause (1) of the first paragraph of the Offer Conditions is not fulfilled prior to 5:00 p.m. on the date of the 831 Meeting. Merger Sub will not, and the Parent will cause Merger Sub not to, decrease the price payable in the Offer, change the form of consideration payable in the Offer, change the Offer Conditions, impose additional conditions to its obligation to consummate the Offer and to accept for payment and purchase Company Shares tendered in the Offer, or change any other terms of the Offer in a manner adverse to the holders of the Company Shares, except that Merger Sub may extend the expiration date of the Offer to the extent required by applicable law or if the Offer Conditions are not satisfied. (c) As soon as practicable, but in no event later than five business days after the public announcement of the execution of this Agreement, Merger Sub and the Parent will file with the Securities and Exchange Commission (the "SEC") an amendment to its Tender Offer Statement on Schedule 14D-1 (together with all supplements or amendments thereto, and including all exhibits, the "Offer Documents") that reflects the amendment to the Offer contemplated by Section 1.01(b). Merger Sub and the Parent will give the Company and its counsel a reasonable opportunity to review the Offer Documents prior to their being filed with the SEC or disseminated to the Company's shareholders. Merger Sub and the Parent will, promptly after receipt, furnish the Company and its counsel in writing with any comments that Merger Sub, the Parent, or their counsel may receive from the SEC or its staff with respect to the Offer Documents. (d) As promptly as practicable, but in no event later than five business days after the public announcement of the execution of this Agreement, Merger Sub and the Parent will move to withdraw 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, and the Company will move to withdraw its counterclaims in that case, in each case without prejudice. 2 (e) As promptly as practicable, but in no event later than the date on which the amendment to the Offer Documents referred to in Section 1.01(c) is filed with the SEC, the Company will amend its Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 ("Schedule 14D-9") to include a recommendation by the Company's Board of Directors that the Company's shareholders accept the Offer and tender their Company Shares pursuant to the Offer. The Company's Board of Directors has resolved to recommend that the Company's shareholders accept the Offer and tender their Company Shares pursuant to the Offer and has received an opinion from Goldman, Sachs & Co., Inc. ("Goldman Sachs") that the Offer and the Merger, taken as a unitary transaction, are fair. The Company's Board of Directors will not withdraw, modify, or amend its recommendation, unless (i) such recommendation would not be consistent with the fiduciary duties of the Board of Directors under applicable law, as advised by counsel, or (ii) this Agreement is terminated in accordance with Article IX. (f) If requested by the Parent or Merger Sub, the Company will, promptly following the purchase by Merger Sub pursuant to the Offer of that number of Company Shares which, when aggregated with the Company Shares then owned by the Parent and any of its affiliates, represents at least a majority of the Company Shares then outstanding on a fully diluted basis, take all actions necessary to cause persons designated by Merger Sub to become directors of the Company so that the total number of directors so designated equals 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 Company Shares then beneficially owned by Merger Sub or its affiliates bears to the number of Company Shares outstanding at the time of such purchase. In furtherance thereof, the Company will increase the size of its Board of Directors, or use reasonable efforts to secure the resignation of directors, or both as is necessary to permit that number of Merger Sub's designees to be elected to the Company's Board of Directors; provided that, prior to the Effective Time, the Company's Board of Directors will always have at least two members who are not officers, designees, shareholders, or affiliates of Merger Sub ("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's obligations to appoint designees to its Board of Directors will be subject to Section 14(f) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule 14f-1 promulgated thereunder. The Company will promptly take all actions required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.01 and will include in the Schedule 14D-9 such information with respect to the Company and its officers and directors as is required under Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.01. 3 (g) Following the election or appointment of Merger Sub's designees pursuant to Section 1.01(f), any amendment to this Agreement, any termination of this Agreement by the Company, any extension by the Company of the time for the performance of any of the obligations of Merger Sub or the Parent under this Agreement, any recommendation to shareholders or any modification or withdrawal of any such recommendation, or any waiver of any of the Company's rights under this Agreement 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 voluntarily resign. (h) The parties will cooperate with each other, including by furnishing any necessary information and making any filings required by applicable law, to ensure that the matters contemplated by this Section 1.01 are consummated as promptly as practicable. SECTION 1.02. The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time (as defined in Section 1.02(b)), Merger Sub will be merged with and into the Company in accordance with (i) Ohio Law and (ii) the General Corporation Law of the State of Delaware ("Delaware Law"). As a result of this merger (the "Merger"), the separate existence of Merger Sub will cease and the Company will be the surviving corporation (the "Surviving Corporation"). (b) As soon as practicable after satisfaction or, to the extent permitted hereunder, waiver of all conditions to the Merger set forth in Article VIII, the parties will cause (i) a certificate of merger in such form as is required by, and executed in accordance with, Ohio Law to be duly filed with the Secretary of State of the State of Ohio and (ii) a certificate of merger in such form as is required by, and executed in accordance with, Delaware Law to be duly filed with the Secretary of State of the State of Delaware. The Merger will become effective when both certificates of merger are so filed (the "Effective Time"). (c) From and after the Effective Time, the Merger will have the effects specified in Ohio Law and Delaware Law. (d) The closing of the Merger (the "Closing") will take place (i) at the offices of Thompson Hine & Flory P.L.L, 3900 Society Center, 127 Public Square, Cleveland, Ohio 44114-1216, at 10:00 a.m. on the first business day following the date on which the last to be fulfilled or waived of the conditions set forth in Article VIII (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver 4 of those conditions at the Closing) have been satisfied or waived in accordance with this Agreement or (ii) at such other place and time as the parties may agree. SECTION 1.03. Conversion of Shares. At the Effective Time: (a) Each Common Share of Merger Sub (a "Merger Sub Common Share") issued and outstanding immediately prior to the Effective Time will be converted into one Common Share of the Surviving Corporation. (b) Each Company Share issued and outstanding immediately prior to the Effective Time will, except as otherwise provided in Section 1.03(c), be converted, by virtue of the Merger and without any action on the part of the holder thereof, 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 Company Shares, by virtue of the Merger and without any action on the part of the holders thereof, will be canceled and retired and cease to exist, and each holder of a certificate representing any Company Shares immediately prior to the Effective Time (a "Share Certificate") will thereafter cease to have any rights with respect to such Company Shares, except the right to receive the Merger Consideration therefor upon the surrender of the Share Certificate in accordance with Section 1.04 or the right, if any, to receive payment from the Surviving Corporation of the "fair cash value" of such Company Shares as determined in accordance with Section 1701.85 of the Ohio Law. (c) Each outstanding Company Share held by the Company as a treasury share or owned by the Parent or any Subsidiary of the Parent immediately prior to the Effective Time will be canceled, and no payment will be made with respect thereto. SECTION 1.04. Surrender and Payment. (a) Prior to the Effective Time, the Parent will appoint an agent reasonably acceptable to the Company (the "Exchange Agent") for the purpose of exchanging Share Certificates. The Parent will make available to the Exchange Agent funds in amounts and at the times necessary for the payment of the Merger Consideration in accordance with this Section 1.03 (such cash is referred to as the "Exchange Fund"). (b) Promptly after the Effective Time, the Parent will send, or will cause the Exchange Agent to send, to each holder of a Share 5 Certificate a letter of transmittal and instructions for use in surrendering the Share Certificates for payment in accordance with this Section 1.04. Provision also will be made for holders of Share Certificates to procure a letter of transmittal and instructions and deliver such letter of transmittal, together with their Share Certificates, in person immediately after the Effective Time. (c) After the Effective Time, Share Certificates will represent the right, upon surrender thereof to the Exchange Agent, together with a duly executed and properly completed letter of transmittal relating thereto, to receive (i) cash in the amount to which such holder is entitled under Section 1.03 after giving effect to any required tax withholding or (ii) payment from the Surviving Corporation of the "fair cash value" of such Company Shares as determined under Section 1701.85 of the Ohio Law, subject to the conditions set forth therein. No interest will be paid or will accrue on such amount. Share Certificates so surrendered will be canceled. The Company will not settle any claim pursuant to Section 1701.85 without the consent of the Parent. (d) If any cash is to be paid to a Person other than the registered holder of the Shares Certificates surrendered in exchange therefor, it will be a condition to such payment that the Share Certificates so surrendered be properly endorsed or otherwise in proper form for transfer and that the Person requesting such payment pay to the Exchange Agent any transfer or other taxes required as a result of such issuance or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. For purposes of this Agreement, "Person" means an individual, a corporation, a partnership, an association, a trust, or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof. (e) At and after the Effective Time, the stock transfer books of the Company will be closed, and there will be no further registration of transfers of Company Shares outstanding prior to the Effective Time. If, at or after the Effective Time, Share Certificates are presented to the Surviving Corporation, they will be canceled and exchanged in accordance with this Article I. (f) The Parent will attempt to contact (using shareholder lists available to it) and provide the items to which reference is made in paragraph (b) of this Section 1.04 to, all holders of Company Shares entitled to receive the Merger Consideration. Any cash in the Exchange Fund that remain unclaimed by the holders of Company Shares six months after the Effective Time will be returned to the Parent, upon demand, and any such holder who has not surrendered his Company Shares in accordance with this 6 Section 1.04 prior to that time will thereafter look only to the Parent, as a general creditor thereof, to pay the Merger Consideration to which such holder is entitled pursuant to Section 1.03. Notwithstanding the foregoing, the Parent will not be liable to any holder of Company Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat, or similar laws. (g) If any Share Certificate is lost, stolen, or destroyed, upon the making of an affidavit of that fact by the Person claiming such Share Certificate to be lost, stolen, or destroyed and, if required by the Surviving Corporation, the posting by such Person of a bond in such reasonable amount as the Parent may direct as indemnity against any claim that may be made against it with respect to such Share Certificate, the Exchange Agent will pay the cash payable in respect of such Share Certificate pursuant to this Agreement. SECTION 1.05. Company Options. At the earlier of the purchase of Company Shares pursuant to the Offer and the Effective Time, subject to obtaining the consent of the holder thereof, each outstanding option (a "Company Option") to purchase Company Common Shares, whether or not exercisable, granted under employee stock option or incentive plans of the Company (the "Company Option Plans") will be cancelled, and in consideration of such cancellation, will be converted into the right to receive, without interest, an amount in cash equal to the product of (i) the number of Company Common Shares subject to the Company Option and (ii) the excess of (A) the Merger Consideration over (B) the exercise price per share of the option. The Company will use reasonable efforts to obtain, prior to the earlier of the purchase of Company Shares pursuant to the Offer and the Effective Time, the written consent of each holder of a Company Option in respect of such cancellation. SECTION 1.06. Company Performance Plan. At the earlier of the purchase of Company Shares pursuant to the Offer and the Effective Time, subject to obtaining the consent of the holder thereof, each Company Common Share to which an employee of the Company is entitled under the Acme-Cleveland Corporation Performance and Equity Incentive Plan (the "Company Performance Plan") will be cancelled, and in consideration of such cancellation, will be converted into the right to receive, without interest, an amount in cash equal to the Merger Consideration. The Company will use reasonable efforts to obtain, prior to the earlier of the purchase of Company Shares pursuant to the Offer and the Effective Time, the 7 written consent of each holder of a Company Common Share granted under the Company Performance Plan in respect of such cancellation. ARTICLE II THE SURVIVING CORPORATION; THE PARENT DIRECTORS SECTION 2.01. Articles of Incorporation. The articles of incorporation of the Company in effect at the Effective Time will be the articles of incorporation of the Surviving Corporation after the consummation of the Merger until amended in accordance with applicable law. SECTION 2.02. Regulations. The regulations of the Company in effect at the Effective Time will be the regulations of the Surviving Corporation after the consummation of the Merger until amended in accordance with applicable law. SECTION 2.03. Directors and Officers. From and after the Effective Time, until successors are duly elected or appointed and qualified in accordance with applicable law, the directors and officers of Merger Sub at the Effective Time will be the directors and officers of the Surviving Corporation after the consummation of the Merger. ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company represents and warrants to the Parent that: SECTION 3.01. Corporate Existence and Power. The Company is a corporation duly incorporated, validly existing, and in good standing under the laws of the State of Ohio and has all requisite corporate power and authority to own, lease, and operate its properties and to carry on its business as now conducted, except where the failure to do so 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 (as defined in Section 3.06(a)) taken as a whole (a "Company Material Adverse Effect"). The term "Company Material 8 Adverse Effect" will not, however, include any event or change resulting from this Agreement or the transactions contemplated by it. The Company is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where the character of the property owned or leased by it or the nature of its activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified is not likely to have, individually or in the aggregate, a Company Material Adverse Effect. SECTION 3.02. Corporate Authorization. The execution, delivery, and performance by the Company of this Agreement and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement are within the Company's corporate power and authority and, except for any required approval by the Company's shareholders in connection with the consummation of the the Offer or the Merger, have been duly authorized by all necessary corporate action on the part of the Company. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution, and delivery hereof by the Parent and Merger Sub, constitutes a legal, valid, and binding agreement of the Company. SECTION 3.03. Governmental Authorization. The execution, delivery, and performance by the Company of this Agreement and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement do not require any consent, approval, authorization, or permit of, other action by, or filing with, any governmental body, agency, official, or authority other than (i) as set forth on Schedule 3.03 (Company Governmental Authorization), (ii) the filing of appropriate certificates of merger in accordance with Ohio Law and Delaware Law, (iii) compliance with applicable requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act") and the Exchange Act, and (iv) approval by the Company's shareholders of the purchase of Company Shares by Merger Sub pursuant to the Offer in accordance with Section 1701.831 of the Ohio Law, except where the failure of any such action to be taken or filing to be made is not likely to have, individually or in the aggregate, a Company Material Adverse Effect or prevent or materially delay consummation of the Offer or the Merger. SECTION 3.04. Non-Contravention. The execution, delivery, and performance by the Company of this Agreement, the purchase of Company Shares by Merger Sub pursuant to the Offer, and the consummation by the Company of the Merger and the 9 other transactions contemplated by this Agreement do not and will not (i) contravene or conflict with the Articles of Incorporation or Regulations of the Company, (ii) assuming compliance with the matters referred to in Section 3.03, contravene, conflict with, or constitute a violation of any provision of any law, rule, regulation, judgment, injunction, order, or decree binding upon or applicable to the Company or any of its Subsidiaries, (iii) constitute a default, give rise to a right of termination, cancellation, or acceleration of any right or obligation of the Company or any of its Subsidiaries, or give rise to a loss of any benefit to which the Company or any of its Subsidiaries is entitled, under any provision of any agreement or other instrument binding upon the Company or any of its Subsidiaries or under any license, franchise, permit, or other similar authorization held by the Company or any of its Subsidiaries, or (iv) result in the creation or imposition of any Lien on any asset of the Company or any of its Subsidiaries, except as set forth in Schedule 3.04 (Company Liens Created) and except for any occurrences or results referred to in clauses (ii), (iii), and (iv) that are 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 or prevent or delay consummation of the Offer or the Merger. For purposes of this Agreement, "Lien" means, with respect to any asset, any mortgage, lien, pledge, charge, security interest, encumbrance, or other right or interest of another to or in, or adverse claim of any kind in respect of, such asset. SECTION 3.05. Capitalization. (a) The Company has 10,936,285 authorized shares, consisting of 10,000,000 Company Common Shares and 936,285 Serial Preferred Shares without par value of the Company. The authorized classes and series of Serial Preferred Shares without par value of the Company consist of 161,374 Company A Preferred Shares and 100,000 Series B Preferred Shares of the Company ("Company B Preferred Shares"). As of May 30, 1996, (i) 6,430,078 Company Common Shares were issued and outstanding, (ii) 369,800 Company Common Shares were reserved for future issuance upon exercise of outstanding Company Options granted pursuant to the Company Option Plans, (iii) 91,672 Company Common Shares were reserved for issuance under outstanding grants, or available for future grants, under the Company Performance Plan, (iv) 161,374 Company Common Shares were reserved for issuance upon conversion of the Company A Preferred Shares, and (v) 100,000 Company B Preferred Shares were reserved for issuance upon exercise of the rights (the "Company Rights" or, individually, a "Company Right") distributed in connection with the Rights Agreement, dated as of March 11, 1996, between the Company and Society National Bank, as Rights Agent, as amended by the First Amendment to Rights Agreement, dated as of March 20, 1996 (as amended, the "Company Rights Agreement"). As of May 30, 1996, 161,374 10 Company A Preferred Shares were issued and outstanding, and no Company B Preferred Shares were issued and outstanding. Except as described in this Section 3.05 or in Schedule 3.05 (Company Capitalization), as of the date of this Agreement, no shares of capital stock of the Company are reserved for issuance for any other purpose. Each of the issued and outstanding Company Shares is duly authorized, validly issued, and fully paid and nonassessable and has not been issued in violation of (nor are any of the authorized Company Shares subject to) any preemptive or similar rights created by statute, the Articles of Incorporation, or the Regulations of the Company or any agreement to which the Company is a party or is bound. Other than the Company A Preferred Shares, the Company has no outstanding bonds, notes, or other obligations the holders of which have the right to vote with the Company's shareholders on any matter. (b) Except as set forth in paragraph (a) of this Section 3.05 or as set forth on Schedule 3.05, there are no options, warrants, or other rights (including registration rights and conversion rights), agreements, arrangements, or commitments to which the Company is a party relating to the issued or unissued capital stock of the Company or obligating the Company to grant, issue, or sell any shares of the capital stock of the Company or other security of the Company. Except as set forth in Schedule 3.05, there are no obligations, contingent or otherwise, of the Company to repurchase, redeem, or otherwise acquire any Company Shares, other capital stock of the Company, or capital stock or other equity interests of any Subsidiary of the Company. (c) Schedule 3.05 lists, as of the date indicated, (i) the number of Company Options outstanding and the exercise price of each outstanding Company Option and (ii) the number of Company Common Shares that employees of the Company are entitled to receive under the Company Performance Plan. SECTION 3.06. Subsidiaries. (a) Each Subsidiary of the Company is a corporation duly incorporated, validly existing, and in good standing under the laws of jurisdiction of its incorporation or is a partnership duly constituted under its governing law, has all requisite corporate or partnership power and authority to own, lease, and operate its properties and to carry on its business substantially as now conducted, and is duly qualified to do business as a foreign corporation or partnership and is in good standing in each jurisdiction where the character of the property owned or leased by it or the nature of its activities makes such qualification necessary, except where the failure to be so qualified is not likely to have, individually or in the aggregate, a Company Material Adverse Effect. For purposes of this Agreement, "Subsidiary" of any 11 Person means (i) any corporation or other entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are, directly or indirectly, owned by such Person, and (ii) any partnership of which such Person is a general partner. (b) Except as set forth on Schedule 3.06 (Company Subsidiaries), each Subsidiary of the Company is wholly owned by the Company, directly or indirectly, free and clear of any Lien and free and clear of any other limitation or restriction (including any restriction on the right to vote, sell, or otherwise dispose of such capital stock or other ownership interests). Except as set forth on Schedule 3.06, there are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any such Subsidiary of the Company or (ii) options or other rights to acquire from the Company or any of its Subsidiaries, and no other obligation of the Company or any of its Subsidiaries to issue, any capital stock, voting securities, or other ownership interests in, or any securities convertible into or exchangeable for any capital stock, voting securities, or ownership interests in, any such Subsidiary of the Company (the items in clauses (i) and (ii), including capital stock, are collectively referred to as the "Company Subsidiary Securities"). There are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem, or otherwise acquire any outstanding Company Subsidiary Securities. SECTION 3.07. Company SEC Reports. Since September 30, 1992, the Company has filed all forms, reports, statements, and other documents required to be filed with the SEC, including without limitation (i) all Annual Reports on Form 10-K, (ii) all Quarterly Reports on Form 10-Q, (iii) all proxy statements relating to meetings of shareholders (whether annual or special), (iv) all Current Reports on Form 8- K, (v) all Solicitation/Recommendation Statements on Schedule 14D-9, and (vi) all other reports, schedules, registration statements, or other documents required to be filed with the SEC (collectively, the "Company SEC Reports"), except where the failure to file any such forms, reports, statements, or other documents is not likely to have, individually or in the aggregate, a Company Material Adverse Effect. The Company SEC Reports (x) were prepared in all material respects in accordance with the requirements of the Securities Act or the Exchange Act, as the case may be, and (y) did not at the time they were filed contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. 12 SECTION 3.08. Financial Statements; No Undisclosed Liabilities. The audited consolidated financial statements and unaudited consolidated interim financial statements (including the related notes and schedules) of the Company and its consolidated Subsidiaries included or incorporated by reference in the Company SEC Reports (the "Company Financial Statements") were prepared in accordance with generally accepted accounting principles applied on a consistent basis (except as may be indicated in the notes thereto) and fairly present the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and their consolidated results of operations and cash flows for the periods then ended, subject, in the case of any unaudited interim financial statements, to normal year-end adjustments, none of which is likely to have, individually or in the aggregate, a Company Material Adverse Effect. Neither the Company nor its Subsidiaries has any liabilities, whether or not accrued, contingent or otherwise, that are likely to have, individually or in the aggregate, a Company Material Adverse Effect other than liabilities disclosed in the Schedules hereto or in the Company SEC Reports or for which the Company has made adequate reserves as reflected in the Company Financial Statements. SECTION 3.09. Absence of Certain Changes. Except as contemplated hereby or as described in any Company SEC Report filed prior to the date hereof or as disclosed in Schedule 3.09 (Certain Company Changes) to this Agreement, since September 30, 1995, (a) the Company and its Subsidiaries have conducted their business in all material respects in the ordinary course consistent with past practices, (b) there has not been any change or development, or combination of changes or developments, that have had or are likely to have, individually or in the aggregate, a Company Material Adverse Effect, (c) there has not been any declaration, setting aside, or payment of any dividend or other distribution with respect to any shares of capital stock of the Company other than the Company Rights and quarterly dividends on the Company Shares at the rates in effect on the date of this Agreement, or any repurchase, redemption, or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or any of its Subsidiaries, (d) there has not been any amendment of any term of any outstanding security of the Company or any of its Subsidiaries other than with respect to the Company Rights, (e) there has not been any incurrence, assumption, or guarantee by the Company or any of its Subsidiaries of any indebtedness for borrowed money other than in the ordinary course of business and in amounts and on terms consistent with past practices, (f) there has not been any creation or assumption by the Company or any of its Subsidiaries of any Lien on any material asset (including the sale, pledge, or assignment of 13 receivables) other than in the ordinary course of business consistent with past practices, and (g) there has not been any change in any method of accounting or accounting practice by the Company or any of its Subsidiaries, except for any such change required by reason of a concurrent change in generally accepted accounting principles or to conform a Subsidiary's accounting policies and practices to those of the Company. Furthermore, except pursuant to contractual obligations disclosed in any Company SEC Report filed prior to the date hereof, as disclosed in Schedule 3.11, or pursuant to immaterial arrangements with one or more employees or groups of employees, there has not been any (i) grant of any severance or termination pay to any director or executive officer of the Company or any of its Subsidiaries, (ii) entering into of any employment, deferred compensation, or other similar agreement (or any amendment to any such existing agreement) with any director or executive officer of the Company or any of its Subsidiaries, (iii) increase in benefits payable under any existing severance or termination pay policies or employment agreements with any director or executive officer of the Company or any of its Subsidiaries, or (iv) increase in compensation, bonus, or other benefits payable to directors or executive officers of the Company or any of its Subsidiaries. SECTION 3.10. Litigation. Except as disclosed in Schedule 3.10 (Company Litigation), there are no actions, suits, investigations, or proceedings pending or, to the knowledge of the Company, threatened against the Company, any of its Subsidiaries, or any of their respective properties before any court or arbitrator or any governmental body, agency, official, or authority that are likely to have, individually or in the aggregate, a Company Material Adverse Effect. SECTION 3.11. ERISA. (a) As used in this Section 3.11 and in Section 6.08, each of the following terms has the indicated meaning: (i) "Affiliate" of any Person means any other Person that, together with such Person, would be treated as a single employer under Section 414 of the Code. (ii) "Company Employee Plans" means each "employee benefit plan," as defined in Section 3(3) of ERISA that (A) is 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. 14 (iii) "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. (iv) "Company Benefit Arrangement" means each employment, severance, welfare, or other similar contract, arrangement, or policy and each 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. (b) The Company has heretofore made available to the Parent, and agrees that it will as soon as practicable after the date of this Agreement furnish the Parent upon the Parent's request with, copies of all Company Employee Plans (and, if applicable, related trust agreements) and all amendments thereto and the most recent Forms 5500 required to be filed with respect thereto, IRS determination letters, and actuarial reports, in each case to the extent applicable. (c) Schedule 3.11 (Company Employee Plans) identifies each Company Employee Plan that constitutes a "defined benefit plan" as defined in Section 3(35) of ERISA. Except as set forth on Schedule 3.11, no Company Employee Plan constitutes a "multiemployer plan," as defined in Section 3(37) of ERISA, and no Company Employee Plan is maintained in connection with any trust described in Section 501(c)(9) of the Code. Except as set forth on Schedule 3.11, no Company Employee Plan provides retiree medical or life insurance benefits or is subject to Title IV of ERISA. Neither the Company nor any of its affiliates has incurred any liability under Title IV of ERISA, including, without limitation, arising in connection with the termination of, or complete or partial withdrawal from, any plan currently or previously covered by Title IV of ERISA that is likely to have, individually or in the aggregate, a Company Material Adverse Effect, and the Pension Benefit Guarantee Corporation has not instituted proceedings to terminate any such plan nor do any conditions exist that present a material risk of such occurrence. Nothing done or omitted to be done, and no transaction or holding of any asset under or in connection with any Company Employee Plan, has or will make the Company or any of its Subsidiaries or any officer or director of the Company or any of its Subsidiaries subject to any liability under Title I of ERISA or liable for any tax pursuant to Section 4975 of the Code that is likely to have, individually or in the aggregate, a Company Material Adverse Effect. With respect to each Company Employee Plan subject to Title IV of ERISA, the 15 Company has furnished the Parent with the most recent actuarial report showing the present value of accrued benefits under such plan, based upon the actuarial assumptions used for funding purposes with respect to such plan. No Company Employee Plan or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of each such plan ended prior to the date hereof; and all contributions required to be made with respect thereto (whether pursuant to the terms of any ERISA Plan or otherwise) on or prior to the date hereof have been timely made. No Company Employee Plan is a multiemployer plan. (d) Except to the extent it is not likely to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during the period from its adoption to date, and each trust forming a part thereof is exempt from tax pursuant to Section 501(a) of the Code, and (ii) each Company Employee Plan has been maintained in compliance with its terms and with the requirements of all applicable statutes, orders, final rules, and final regulations. (e) Schedule 3.11 lists each Company Benefit Arrangement currently in effect (other than any immaterial arrangement with one or more employees or groups of employees or disclosed in any Company SEC Report filed prior to the date hereof) provided to any director, executive officer, or employee of the Company or any former director, executive officer, or employee of the Company and sets forth each Company Benefit Arrangement (other than any immaterial arrangement with one or more employees or groups of employees or disclosed in any Company SEC Report filed prior to the date hereof) with respect to which benefits will be accelerated or paid as a result of the transactions contemplated by this Agreement. Copies of all written Company Benefit Arrangements (other than any immaterial arrangement with one or more employees or groups of employees) and all amendments thereto have heretofore been made available to the Parent, and will promptly be furnished to the Parent upon the Parent's request after the date of this Agreement. Except to the extent that it is not likely to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Benefit Arrangement has been maintained in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules, and regulations that are applicable to such Company Benefit Arrangement. (f) Except for three employees whose compensation arrangements are disclosed on Schedule 3.11, the Company does not anticipate that any amounts payable under the Company Employee Plans and the 16 Company Benefit Arrangements will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. There are no pending, threatened, or anticipated claims by or on behalf of any Company Employee Plan or Company Benefit Arrangement, by any employee or beneficiary covered under any such plan or arrangement, or otherwise involving any such plan or arrangement, that are likely to have, individually or in the aggregate, a Company Material Adverse Effect. SECTION 3.12. Taxes. Except for matters that are not likely to have, individually or in the aggregate, a Company Material Adverse Effect, (a) the Company and its Subsidiaries have timely filed all Tax Returns required to be filed by them with any taxing authority with respect to Taxes for all periods heretofore ended, taking into account any extension of time to file granted to or obtained on behalf of the Company and its Subsidiaries, (b) all Taxes required to be paid prior to the Effective Time have been duly and timely paid or will be duly and timely paid by the Effective Time, (c) as of the date hereof, no deficiency for any amount of Tax has been asserted or assessed by a taxing authority against the Company or any of its Subsidiaries, except for amounts for which the Company has made an adequate reserve as reflected in the Company Financial Statements, (d) all liability for Taxes of the Company or any of its Subsidiaries that are or will become due or payable with respect to periods covered by the Company Financial Statements have been paid or adequately reserved for on the Company Financial Statements to the extent required by generally accepted accounting principles, (e) the Company and its Subsidiaries are not liable for any Taxes arising out of membership or participation in any consolidated, affiliated, combined, or unitary group in which it or any of its Subsidiaries was at any time a member, (f) there are no liens for Taxes upon the assets of the Company or of any of its Subsidiaries other than for Taxes not yet due and payable, (g) the applicable statute of limitations with respect to the assessment of Taxes of the Company and its Subsidiaries have expired through their taxable years September 30, 1990, and there are no outstanding waivers or comparable consents extending the statute of limitations with respect to any Taxes or Tax Returns of the Company or any of its Subsidiaries, (h) there are no audits, claims, actions, suits, proceedings, or investigations now pending or threatened against or with respect to the Company or any of its Subsidiaries in respect of any Taxes, (i) neither the Company nor any of its Subsidiaries are parties to any agreement providing for the allocation or sharing of Taxes except for intercompany agreements between the Company and one or more of its Subsidiaries and certain agreements providing for the disposition of The Cleveland Twist Drill Company and The National Acme Company, and (j) there has been no change in the method of accounting utilized by the Company or 17 any of its Subsidiaries that would require an adjustment to taxable income under section 481 of the Code. For purposes of this Agreement, "Code" means the Internal Revenue Code of 1986, as amended; "Taxes" or "Tax" means all federal, state, local, and foreign taxes, levies, and other assessments, including without limitation, all income, excise, property, sales, use, value added, transfer, franchise, profits, withholding, payroll, social security, or other taxes including any interest, additions to tax, and penalties applicable thereto; and "Tax Return" means any return, declaration, statement, report, schedule, information return, and other document (including any related or supporting information) with respect to Taxes. SECTION 3.13. Intellectual Property Rights. (a) Schedule 3.13 (Company Intellectual Property Rights) lists each of the following items that are likely to be, individually or in the aggregate, material to the business of the Company and its Subsidiaries: (i) patents and applications therefor, registrations of trademarks (including service marks) and applications therefor, and registrations of copyrights and applications therefor that are owned by the Company or any of its Subsidiaries, (ii) unexpired licenses relating to the Company Intellectual Property Rights (as defined in paragraph (d) of this Section 3.13) that have been granted to or by the Company or any of its Subsidiaries, and (iii) other agreements relating to Intellectual Property Rights. (b) To the Company's knowledge, the Company and its Subsidiaries collectively own and have the right to use, and to license others to use, all of the Company Intellectual Property Rights that are, individually or in the aggregate, material to the conduct of the business of the Company and its Subsidiaries. To the Company's knowledge, such ownership and right to use, and to license others to use, are free and clear of all Liens, security interests, claims, and rights to use of third parties that are likely to be, individually or in the aggregate, material to the business of the Company and its Subsidiaries. (c) Neither the Company nor any of its Subsidiaries has knowledge of any alleged or claimed infringement by any product or process manufactured, used, sold, or under development by or for the Company or its Subsidiaries that, if proven, is likely to have a Company Material Adverse Effect. (d) As used in this Agreement, the term "Intellectual Property Rights" includes patents, patent applications, trademarks, trademark 18 applications, trade names, service marks, service mark applications, copyrights, copyright applications, publication rights, and proprietary computer programs, other computer software (including source codes and object codes), inventions, know how, trade secrets, technology, processes, and formulae. The term "Company Intellectual Property Rights" means all Intellectual Property Rights that are used in the conduct of the business of the Company and its Subsidiaries. SECTION 3.14. Environmental Protection. (a) As used in this Agreement, each of the following terms have the indicated meaning: (i) "Company Real Property" means the real property now owned or leased by the Company or any of its Subsidiaries. (ii) "Environmental Law" means federal, state, local, or foreign laws, statutes, rules, regulations, and ordinances relating to the protection of the environment. (iii) "Hazardous Material" means any hazardous, toxic, or dangerous substance defined as such in (or for purposes of) the Comprehensive Environmental Response, Compensation and Liability Act, as amended ("CERCLA"), or any other Environmental Law. (b) Except as set forth on Schedule 3.14 (Company Environmental Matters) or as is not likely to have, individually or in the aggregate, a Company Material Adverse Effect: (i) The Company and each of its Subsidiaries is and has been in compliance with all applicable Environmental Laws. (ii) The Company has not treated, stored, or disposed of any Hazardous Material on Company Real Property in violation of any applicable Environmental Laws. (iii) Neither the Company nor any of its Subsidiaries has received any written notices, demand letters, or written requests for information from any governmental body, agency, official, or authority or third party indicating that the 19 Company or any of its Subsidiaries is in violation of, or liable to any person under, any Environmental Law. (iv) There are no actions, suits, investigations, or proceedings pending or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries or involving any of the Company Real Property before any court or arbitrator or any governmental body, agency, official, or authority relating to any violation, or alleged violation, of any Environmental Law. (v) There are no underground storage tanks on any Company Real Property. (vi) The Company and its Subsidiaries have all permits required by applicable Environmental Laws and are in substantial compliance with the provisions of all such permits. (vii) Neither the Company nor any of its Subsidiaries has any obligation to any third party with to any property sold or transferred to such third party relating to Environmental Laws or the matters set forth in clauses (i) through (vi) above. (c) Neither the Company nor any of its Subsidiaries has received written notice that any part of the Company Real Property has been or is listed as a site containing Hazardous Material requiring remediation under CERCLA or any other Environmental Law. SECTION 3.15. Finders and Investment Bankers. Except for Goldman Sachs, whose fees will be paid by the Company, there is no investment banker, broker, finder, or other intermediary that has been retained by or is authorized to act on behalf of the Company or any of its Subsidiaries who might be entitled to any fee or commission in connection with the transactions contemplated by this Agreement. SECTION 3.16. Vote Required. The only vote of the holders of any class or series of capital stock of the Company necessary to approve the Merger is the affirmative vote of the holders of a majority of the outstanding Company Shares. 20 SECTION 3.17. Company Rights Agreement. To the Company's Knowledge, (a) none of the Parent nor any of its Affiliates or Associates is an "Acquiring Person" (as defined in the Company Rights Agreement) and (b) there has not been a "Shares Acquisition Date" or "Triggering Event" (as defined in the Company Rights Agreement) under the Company Rights Agreement. The Company has amended the Company Rights Agreement to provide that (i) the execution, delivery, and performance of this Agreement, the purchase of Company Shares pursuant to the Offer, and the consummation of the Merger and other transactions contemplated by this Agreement will not (A) cause the Parent or any of its Affiliates or Associates to become an "Acquiring Person" (as defined in the Company Rights Agreement) or (B) otherwise cause a "Shares Acquisition Date" or "Triggering Event" (as defined in the Company Rights Agreement) to occur and (ii) upon purchase of Company Shares pursuant to the Offer, the Rights (as defined in the Company Rights Agreement) will no longer be exercisable, and the former holders of the Rights will not have any claims or rights thereunder. The Company has filed with the SEC and made available to the Parent a true and correct copy of the Company Rights Agreement, as amended through the date hereof. SECTION 3.18. Takeover Statutes. The Board of Directors of the Company have approved the acquisition of Company Shares by Merger Sub pursuant to the Offer and the Merger for purposes of Chapter 1704 of the Ohio Revised Code. No "fair price," "moratorium," "control share acquisition," or other similar antitakeover statute or provision enacted under Ohio law applicable to the Company (including, without limitation, Section 1701.831 of the Ohio Law and Chapter 1704 of the Ohio Revised Code) is applicable to the Merger or the other transactions contemplated hereby. SECTION 3.19. Information Supplied. None of the information supplied or to be supplied in writing by the Company for inclusion in the Offer Documents will, at the respective times the Offer Documents or any amendments or supplements thereto are filed with the SEC, contains or will contain an untrue statement of a material fact or omits or will omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Schedule 14D-9, at the times the Schedule 14D-9 or any amendments thereto are filed with the SEC, did not and will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements 21 therein, in light of the circumstances under which they were made, not misleading; except that, the foregoing does not apply to the extent that any such untrue statement of a material fact or omission to state a material fact was or is made by the Company in reliance upon and in conformity with written information furnished to the Company by Merger Sub or the Parent specifically for use in the Schedule 14D-9. No proxy solicitation materials distributed by the Company to its shareholders or filed with the SEC in connection with the 831 Meeting or the Merger Meeting, including any amendments or supplements thereto (collectively, the "Proxy Material"), will, at the times the Proxy Material is mailed to the Company's shareholders, contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or, at the time of the meeting of shareholders to which the Proxy Material relates or at the Effective Time, omit to state any material fact necessary to correct any statement that has become false or misleading in any earlier communication with respect to the solicitation of any proxy for such meeting; except that, the foregoing does not apply to the extent that any such untrue statement of a material fact or omission to state a material fact was made by the Company in reliance upon and in conformity with written information furnished to the Company by Merger Sub or the Parent specifically for use in the Proxy Material. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PARENT AND MERGER SUB The Parent and Merger Sub jointly and severally represent and warrant to the Company that: SECTION 4.01. Corporate Existence and Power. The Parent and Merger Sub are corporations duly incorporated, validly existing, and in good standing under the laws of the State of Delaware. SECTION 4.02. Corporate Authorization. The execution, delivery, and performance by the Parent and Merger Sub of this Agreement, the purchase by Merger Sub of Company Shares pursuant to the Offer, and the consummation of the Merger and the other transactions contemplated hereby by the Parent and Merger Sub are within the their corporate power and authority and have been duly authorized by all necessary corporate action on the part of the Parent and Merger Sub. 22 This Agreement has been duly executed and delivered by the Parent and, assuming the due authorization, execution, and delivery thereof by the Company, constitutes a legal, valid, and binding agreement of the Parent and Merger Sub. SECTION 4.03. Governmental Authorization. The execution, delivery, and performance by the Parent and Merger Sub of this Agreement, the purchase of Company Shares by Merger Sub pursuant to the Offer, and the consummation of the Merger and the other transactions contemplated hereby by the Parent and Merger Sub do not require any consent, approval, authorization, or permit of, other action by, or filing with, any governmental body, agency, official, or authority other than (i) as set forth on Schedule 4.03 (Parent Governmental Authorizations), (ii) the filing of appropriate merger documents in accordance with Ohio Law and Delaware Law, (iii) compliance with applicable requirements of the HSR Act and the Exchange Act, and (iv) approval by the Company's shareholders of the purchase of Company Shares by Merger Sub pursuant to the Offer in accordance with Section 1701.831 of the Ohio Law, except where the failure of any such action to be taken or filing to be made 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 Parent and its Subsidiaries taken as a whole (a "Parent Material Adverse Effect") or prevent or delay consummation of the Offer or the Merger. SECTION 4.04. Non-Contravention. The execution, delivery, and performance by the Parent and Merger Sub of this Agreement and the consummation of the Merger and the other transactions contemplated hereby by the Parent and Merger Sub do not and will not (i) contravene or conflict with the charter or by-laws of the Parent or Merger Sub, (ii) assuming compliance with the matters referred to in Section 4.03, contravene, conflict with, or constitute a violation of any provision of any law, rule, regulation, judgment, injunction, order, or decree binding upon or applicable to the Parent or any of its Subsidiaries, (iii) constitute a default, give rise to a right of termination, cancellation, or acceleration of any right or obligation of the Parent or any of its Subsidiaries, or give rise to a loss of any benefit to which the Parent or any of its Subsidiaries is entitled, under any provision of any agreement or other instrument binding upon the Parent or any of its Subsidiaries or any license, franchise, permit, or other similar authorization held by the Parent or any of its Subsidiaries, or (iv) result in the creation or imposition of any Lien on any asset of the Parent or any of its Subsidiaries, except for any occurrences or results referred to in clauses (ii), (iii), and (iv) that are not likely to have, individually or in the aggregate, a Parent 23 Material Adverse Effect or prevent or delay consummation of the Offer or the Merger. SECTION 4.05. Reports. Since December 31, 1992, the Parent has filed all forms, reports, statements, and other documents required to be filed with the SEC, including without limitation (1) all Annual Reports on Form 10-K, (2) all Quarterly Reports on Form 10-Q, (3) all proxy statements relating to meetings of shareholders (whether annual or special), (4) all Current Reports on Form 8- K, (5) all Solicitation/Recommendation Statements on Schedule 14D-9, and (6) all other reports, schedules, registration statements, or other documents required to be filed with the SEC (collectively, the "Parent SEC Reports"), except where the failure to file any such forms, reports, statements, or other documents is not likely to have, individually or in the aggregate, a Parent Material Adverse Effect. The Parent SEC Reports (x) were prepared in all material respects in accordance with the requirements of the Securities Act or the Exchange Act, as the case may be, and (y) did not at the time they were filed contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. SECTION 4.06. Financial Statements; No Undisclosed Liabilities. The audited consolidated financial statements and unaudited consolidated interim financial statements (including the related notes and schedules) of the Parent and its consolidated Subsidiaries included or incorporated by reference in the Parent SEC Reports (the "Parent Financial Statements") were prepared in accordance with generally accepted accounting principles applied on a consistent basis (except as may be indicated in the notes thereto), and fairly present the consolidated financial position of the Parent and its consolidated Subsidiaries as of the dates thereof and their consolidated results of operations and cash flows for the periods then ended, subject, in the case of any unaudited interim financial statements, to normal year-end adjustments, none of which is, individually or in the aggregate, likely to have an the Parent Material Adverse Effect. Neither the Parent nor its Subsidiaries has any liabilities, whether or not accrued, contingent or otherwise, that individually or in the aggregate, are likely to have an the Parent Material Adverse Effect other than liabilities disclosed in the Schedules hereto or in the Parent SEC Reports or for which the Parent has made adequate reserves as reflected in the Parent Financial Statements. 24 SECTION 4.07. Litigation. There are no actions, suits, investigations, or proceedings pending or, to any of its Subsidiaries before any court or arbitrator or any governmental body, agency, official, or authority that seek to restrain or prohibit the consummation of the Offer or the Merger. SECTION 4.08. Vote Required. No vote of the holders of any class or series of capital stock of the Parent is necessary to approve the purchase of Company Shares pursuant to the Offer or the Merger. The Merger has been approved by the affirmative vote of the holder of all of the outstanding Merger Sub Common Shares. SECTION 4.09. Availability of Funds. The Parent and Merger Sub have available to them sufficient funds to enable them to consummate the transactions contemplated by this Agreement. SECTION 4.10. Information Supplied. None of the information supplied or to be supplied in writing by the Parent or Merger Sub for inclusion in the Schedule 14D-9 or the Proxy Material will, at the time the Schedule 14D-9 or any amendments or supplements thereto are filed with the SEC or the Proxy Material is mailed to the Company's shareholders, contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or, in the case of the Proxy Material, at the time of the meeting of shareholders to which the Proxy Material relates or at the Effective Time, omit to state any material fact necessary to correct any statement that has become false or misleading in any earlier communication with respect to the solicitation of any proxy for such meeting. None of the Offer Documents, at the times filed with the SEC or on the date first published, sent, or given to the Company's shareholders, contain or will contain an untrue statement of a material fact or omit or will omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; except that, the foregoing does not apply to the extent that any such untrue statement of a material fact or omission to state a material fact was or is made by the Parent or Merger Sub in reliance upon and in conformity with written 25 information furnished to the Parent or Merger Sub or the Company specifically for use in the Schedule 14D-9. ARTICLE V COVENANTS OF THE COMPANY The Company agrees that: SECTION 5.01. Conduct of the Company. Except as contemplated or permitted by this Agreement or as disclosed on Schedule 5.01 (Company Conduct), or as otherwise approved in writing by the Parent, from the date hereof until the Effective Time, the Company and its Subsidiaries will conduct their businesses in the ordinary course consistent with past practice. Subject to the foregoing exceptions, from the date hereof until the Effective Time: (a) the Company will not adopt or propose any change or amendment in its Articles of Incorporation or Regulations; (b) the Company will not, and will not permit any of its Subsidiaries to, merge, consolidate, or enter into a share exchange with any other Person, acquire any material stock or any material amount of assets of any other Person, sell, lease, license, mortgage, pledge, or otherwise dispose of any material assets, except (i) in the ordinary course consistent with past practice or (ii) transfers between the Company or its wholly owned Subsidiaries; (c) the Company will not declare, set aside, or pay any dividends or make any distributions on the Company Shares, other than normal quarterly dividends at the rates in effect on the date of this Agreement; (d) the Company will not, and will not permit any of its Subsidiaries to, (i) 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 Company Subsidiary Securities, other than the issuance of Company Common Shares upon the exercise of Company Options granted prior to the date hereof or upon conversion of the Company Preferred Shares, (ii) split, combine, or reclassify any Company Shares or Company Subsidiary Securities, (iii) repurchase, redeem, or otherwise acquire any capital stock or other securities of the Company or any Company Subsidiary Securities, or (iv) amend the terms of any outstanding securities; 26 (e) 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; (f) 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 or any director or officer, other than the payment of bonuses not execcding, in the aggregate, $200,000 to officers of the Company in the ordinary course of business consistent with past practices; (g) 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; (h) 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 herein inaccurate in any material respect at, or as of, any time prior to the Effective Time or that would cause any closing condition hereunder not to be satisfied, except as may be required by law; and (i) the Company will not agree to do any of the foregoing. SECTION 5.02. Access to Information. From the date hereof until the Effective Time, the Company will, upon reasonable notice, give the Parent, its counsel, financial advisors, auditors, and other authorized representatives reasonable access during regular business hours to the offices, properties, books, and records of the Company and its Subsidiaries, and will furnish to the Parent, its counsel, financial advisors, auditors, and other authorized representatives such financial and operating data and other information as such Persons may reasonably request, for the purpose of evaluating changes in the financial condition, results of operations, or business of the Company and its Subsidiaries after the date of this Agreement and will instruct the Company's employees, counsel, and financial advisors to cooperate with the Parent in its evaluation. All information provided to, or obtained by, the Parent or Merger Sub in connection with the transactions contemplated hereby will be "Evaluation Material" for purposes of 27 the confidentiality agreement, dated April 17, 1996, between the Parent and the Company. SECTION 5.03. Other Offers. From the date hereof until the termination of this Agreement, the Company 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 Company Acquisition Proposal (as defined below) 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, except 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 of Directors of the Company, 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 the Parent that the Company's Board of Directors has received a Company Acquisition Proposal and advise the Parent of the material terms and conditions thereof. For purposes of this Agreement, "Company Acquisition Proposal" means 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, other than the transactions contemplated by this Agreement. SECTION 5.04. Notices of Certain Events. The Company will promptly notify the Parent of: (i) any notice or other communication from any Person alleging that the consent of any third party is or may be required in connection with the transactions contemplated by this Agreement; (ii) any notice or other communication from any governmental or regulatory agency or authority in connection with the transactions contemplated by this Agreement; (iii) any actions, suits, claims, investigations, or proceedings commenced or, to the knowledge of the Company, threatened against, relating to, or involving or otherwise affecting the Company or any of its Subsidiaries that, if pending on the date of this Agreement, would have been 28 required to have been disclosed pursuant to Section 3.10 or that relate to the consummation of the transactions contemplated by this Agreement; and (iv) any notice of, or other communication relating to, a default, or an event that with notice or lapse of time or both would become a default, under any material agreement that is received by the Company or any of its Subsidiaries subsequent to the date of this Agreement. SECTION 5.05. Merger Meeting; Proxy Statement. (a) The Merger will be consummated as soon as practicable (and in no event later than four months after) the purchase of Company Shares pursuant to the Offer. If Merger Sub is able to do so under Ohio law, it will consummate the Merger pursuant to the "short form" merger provisions of Ohio Law. The Parent will vote, or cause to be voted, all Company Shares beneficially owned by it in favor of the Merger. If required by Ohio Law in order to consummate the Merger, as soon as practicable following the purchase of Company Shares pursuant to the Offer, the Company will take all action necessary in accordance with Ohio Law and with the Company's Articles of Incorporation and Regulations to convene a meeting of its shareholders to approve the Merger and adopt this Merger Agreement (the "Merger Meeting"). The Company's Board of Directors will recommend that the Company's shareholders approve the Merger and adopt this 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 of Directors under applicable law, as advised by counsel, or (ii) this Agreement is terminated in accordance with Article IX. (b) The Company will, if required by law for the consummation of the Merger, prepare and file with the SEC preliminary proxy materials relating to the approval of the Merger and the adoption of this Agreement by the Company's shareholders, will provide the Parent with any and all comments thereon by the SEC's staff, will use all reasonable efforts to discuss with the Parent any proposed changes to such preliminary proxy materials prior to responding to any comments thereon by the SEC's staff, and will file with the SEC revised preliminary proxy materials, if appropriate, and definitive proxy materials in a timely manner as required by the rules and regulations of the SEC. Subject to the last sentence of Section 5.05(a), the Proxy Material relating to the Merger Meeting will include the recommendation of the Company's Board of Directors. 29 ARTICLE VI COVENANTS OF THE PARENT AND MERGER SUB The Parent and Merger Sub agree that: SECTION 6.01. Director, Officer, and Employee Liability. From and after the Effective Time, the Parent and Merger Sub will 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. For at least six years after the Effective Time, the Parent will not take any action or 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. The Parent and Merger Sub will be obligated pursuant to this Section 6.01 to pay for only one firm of counsel for all indemnified parties in each matter that is the subject of indemnification hereunder, unless the use of one counsel for such indemnified parties would present such counsel with a conflict of interest, in which case the Parent and Merger Sub need only pay for separate counsel to the extent necessary to resolve such conflict. SECTION 6.02. Employee Benefits. (a) With respect to benefits arising after the Effective Time, it is the intention of the Parent and Merger Sub that the Parent 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 they are now receiving from the Company and its Subsidiaries, including benefits under the Company Employee Plans and the Company Benefit Arrangements but excluding any equity-based compensation or benefits, at least through December 31, 1996. In any event, the Parent and Merger Sub will continue to provide to such employees, for at least one year after the Effective Time, the same severance benefits as are now provided to them by the Company. (b) With respect to benefits arising on or before the Effective Time, the Parent and Merger Sub acknowledge that they have been given an opportunity to review all of the Company Employee Plans and Company Benefit Arrangements and that they are aware of the cost of providing the benefits and performing the obligations of the Company and its Subsidiaries thereunder. The Parent and Merger Sub jointly and severally agree that they will not, and will cause the Surviving Corporation not to, contest the validity of any of the Company Employee Plans or the Company Benefit 30 Arrangements that are identified or described on Schedule 3.11, that consist of immaterial arrangements with one or more employees or groups of employees, or that have been disclosed in any Company SEC Report filed prior to the date hereof, and that, except as provided in Section 6.02(a) above, they 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 arising on or before the Effective Time under the Company Employee Plans and such Company Benefit Arrangements. The Parent and Merger Sub also jointly and severally agree to reimburse, and will cause the Surviving Corporation to reimburse, such persons who are listed on Schedule 3.11 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 under this Section 6.02(b), except that no such reimbursement will be paid (and any such reimbursement previously made will be refunded) with respect to any particular claim made by a present or former officer or employee if the court determines that the claim was not made in good faith. ARTICLE VII COVENANTS OF THE PARENT, MERGER SUB, AND THE COMPANY The Parent, Merger Sub, and the Company agree that: SECTION 7.01. Reasonable Efforts. Subject to the terms and conditions of this Agreement, each party will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or advisable under applicable laws and regulations to consummate the transactions contemplated by this Agreement as promptly as practicable. SECTION 7.02. Certain Filings and Consents. The Company and the Parent will cooperate with one another (a) in determining whether any action by or in respect of, or filing with, any governmental body, agency, official, or authority is required, or any actions, consents, approvals, or waivers are required to be obtained from parties to any material contracts ("Third Party Consents"), in connection with the consummation of the transactions contemplated by this Agreement and (b) in attempting to take all such actions, to obtain all such consents, approvals, and waivers, and to make all such filings. The Company and the Parent will each promptly file Notification and Report Forms under the HSR Act and will use all reasonable efforts to respond as promptly as practicable to all requests 31 for additional information or documentation received from the Antitrust Division of the United States Department of Justice or the Federal Trade Commission. SECTION 7.03. Public Announcements. The Parent and the Company will consult with each other before issuing any press release or making any public statement with respect to this Agreement and the transactions contemplated hereby and, except as may be required by applicable law or any listing agreement with the NYSE, will not issue any such press release or make any such public statement prior to such consultation. SECTION 7.04. State Takeover Laws. If any "fair price," "moratorium," or "control share acquisition" statute or other similar statute or regulation becomes applicable to the transactions contemplated by this Agreement, the Company, the Parent, and Merger Sub and their respective Boards of Directors will use all reasonable efforts to grant such approvals and take such actions as are necessary so that the transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated hereby and otherwise act to minimize the effects of such statute or regulation on the transactions contemplated hereby. ARTICLE VIII CONDITIONS TO THE MERGER SECTION 8.01. Conditions to the Obligations of Each Party. The obligations of the Company, the Parent, and Merger Sub to consummate the Merger are subject to the satisfaction of the following conditions: (a) if required by applicable law, the Merger has been approved, and this Agreement has been adopted, by the requisite vote of the Company's shareholders; and (b) 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, that has the effect of making the Offer or the Merger illegal or otherwise restrains or prohibits the purchase of Company Shares pursuant to the Offer or the consummation of the Merger is in effect (each party agreeing to use all reasonable efforts, including 32 appeals to higher courts, to have any such judgment, injunction, order, or decree lifted). SECTION 8.02. Conditions to the Obligations of the Parent and Merger Sub. The obligations of the Parent and Merger Sub to consummate the Merger are subject to the satisfaction or waiver of the Offer Conditions and to compliance by the Company with its obligations under Section 1.01(f). ARTICLE IX TERMINATION SECTION 9.01. Termination. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time (notwithstanding any approval of Merger and adoption of this Agreement by the Company's shareholders): (a) by mutual written consent of the Company, the Parent, and Merger Sub; (b) by either the Company or the Parent if the Merger has not been consummated by November 30, 1996, provided that the right to terminate this Agreement under this clause (b) will not be available to any party that, at the time of termination, is in material breach of any of its obligations under this Agreement; (c) by either the Company or the Parent 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; (d) by either the Company or the Parent if the shareholder approvals referred to in Section 8.01(a) have not been obtained at the Merger Meeting; (e) by either the Company or the Parent if the Offer terminates without the purchase of Company Shares thereunder; 33 (f) prior to the purchase of Company Shares by Merger Sub pursuant to the Offer, by the Parent if the Board of Directors of the Company does not publicly recommend in the Schedule 14D-9 or in the Proxy Material relating to the 831 Meeting or the Merger Meeting that the Company's shareholders accept the Offer and tender their Company Shares pursuant to the Offer and approve the Merger and adopt the Merger Agreement, or if the Board of Directors of the Company withdraws, modifies, or changes such recommendation in any manner adverse to the Parent; or (g) by the Company if the Company receives an unsolicited Company Acquisition Proposal that the Board of Directors of the Company 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 transactions contemplated by this Agreement; provided that, the Company has provided the Parent with at least five business days notice of the material terms of such Company Acquisition Proposal and has paid the Termination Fee (as defined in Section 10.04(b)) to the Parent. SECTION 9.02. Effect of Termination. If this Agreement is terminated and the Merger is abandoned pursuant to Section 9.01, no party (or any of its directors or officers) will have any liability or further obligation to any other party except (a) as provided in Section 10.04, (b) that the agreements contained in Section 10.04 and in the last sentence of Section 5.02 will survive the termination hereof, and (c) that nothing herein will relieve any party from liability for any breach of its obligations under this Agreement. ARTICLE X MISCELLANEOUS SECTION 10.01. Notices. All notices, requests, and other communications to any party hereunder will be in writing (including telecopy) and will be given, if to the Parent or Merger Sub, to: Danaher Corporation 1250 24th Street, N.W., Suite 800 Washington, D.C. 20037 34 Attention: President with a copy to: Skadden, Arps, Slate, Meagher & Flom 919 Third Avenue New York, N.Y. 10022 Attention: Morris J. Kramer, Esq. if to the Company, to: Acme-Cleveland Corporation 30100 Chagrin Boulevard, Suite 100 Pepper Pike, OH 44124-5705 Attention: David L. Swift, President and Chief Executive Offier with a copy to: Thompson Hine & Flory P.L.L. 3900 Key Tower 127 Public Square Cleveland, OH 44114-1216 Attention: Donald H. Messinger, Esq. or to such other address or telecopy number as such party may hereafter specify for the purpose by notice to the other parties. Each such notice, request, or other communication will be effective upon receipt. SECTION 10.02. Survival. None of the representations and warranties, agreements, and other provisions contained in this Agreement or in any certificate or other writing delivered pursuant to this Agreement, other than Sections 6.01 and 6.02 and Article I, will survive the Effective Time. SECTION 10.03. Amendments; No Waivers. (a) Subject to the applicable provisions of Ohio Law and Delaware Law, any provision of this Agreement may be amended or waived prior to the Effective Time if, and only if, such amendment or waiver is in 35 writing and signed, in the case of an amendment, by the Company, the Parent, and Merger Sub or, in the case of a waiver, by the party against whom the waiver is to be effective. (b) No failure or delay by any party in exercising any right, power, or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. SECTION 10.04. Fees and Expenses. (a) Subject to paragraph (b) of this Section, all costs and expenses incurred in connection with this Agreement will be paid by the party incurring the costs and expenses, except that the Parent and the Company will each pay one-half of all printing, filing, and mailing costs for the Proxy Statement and all SEC, HSR Act, and other regulatory filing fees. (b) If (i) this Agreement is terminated by the Company pursuant to Section 9.01(g), (ii) any Person publicly makes a Company Acquisition Proposal and thereafter this Agreement is terminated pursuant to Section 9.01(b) or 9.01(d) because the Company's shareholders fail to approve the Merger and adopt this Agreement, or (iii) any Person publicly makes a Company Acquisition Proposal and thereafter this Agreement is terminated pursuant to Section 9.01(f), then the Company will reimburse the Parent and Merger Sub for all of their reasonable documented out-of-pocket expenses and fees other than any expenses incurred in connection with the preparation for, prosecution of, or defense of litigation (subject to a maximum reimbursement obligation of $1,500,000) actually incurred by the Parent in connection with the transactions contemplated by this Agreement prior to the termination of this Agreement, including, without limitation, all fees and expenses of counsel, financial advisors, accountants, and environmental and other experts and consultants to the Parent and Merger Sub ("Transaction Costs"). Notwithstanding the preceding paragraph, if (i) this Agreement is terminated by the Company pursuant to Section 9.01(g), (ii) any Person publicly makes a Company Acquisition Proposal, thereafter this Agreement is terminated pursuant to Section 9.01(b) or 9.01(d) because the Company's shareholders fail to approve the Merger and adopt this Agreement, 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 this Agreement is terminated pursuant to Section 9.01(f), then, in addition to reimbursing the Parent and Merger Sub for their Transaction Costs, the Company will pay to the Parent a fee of $6,000,000 ("Termination Fee"). The Termination Fee will be payable 36 by delivery of immediately available funds at the time of termination, in the case of termination under clause (i) or (iii) of the preceding sentence, or immediately prior to the earlier of the acceptance or the consummation of the Company Acquisition Proposal, in the case of termination under clause (ii). (c) If the Parent receives a Termination Fee, neither the Parent, Merger Sub, nor any of their affiliates will assert or pursue in any manner, directly or indirectly, whether arising in tort, contract, or otherwise, any claim or cause of action (i) against any person submitting a Company Acquisition 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 an Alternative Transaction, including the Company's exercise of its right of termination this Agreement under Section 9. SECTION 10.05. Successors and Assigns. The provisions of this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns, provided that no party may assign, delegate, or otherwise transfer any of its rights or obligations under this Agreement without the consent of the other parties. SECTION 10.06. Governing Law. This Agreement will be construed in accordance with and governed by the law of the State of Ohio without regard to principles of conflict of laws. SECTION 10.07. Counterparts; Effectiveness. This Agreement may be signed in any number of counterparts, each of which will be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement will become effective when each party has received counterparts hereof signed by all of the other parties. SECTION 10.08. Entire Agreement. This Agreement and the confidentiality agreement, dated April 17, 1996, between the Parent and the Company constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements, both written and oral, among the parties with respect to the subject matter of this Agreement. No representation, warranty, 37 or inducement not set forth herein has been made or relied upon by any party. Neither this Agreement nor any provision hereof is intended to confer upon any Person other than the parties any rights or remedies, except that the provisions of Article I are intended for the benefit of the Company's shareholders and holders of Company Options, and the provisions of Sections 6.01 and 6.02 are intended for the benefit of present and former directors, officers, and employees of the Company. SECTION 10.09. Headings. The headings contained in this Agreement are for reference purposes only and will not in any way affect the meaning or interpretation of this Agreement. SECTION 10.10. Severability. If any term or other provision of this Agreement is invalid, illegal, or unenforceable, all other provisions of this Agreement will remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected. SECTION 10.11. Specific Performance. The parties agree that irreparable damage would occur if any of the provisions of this Agreement are not performed in accordance with the terms hereof and that the parties will be entitled to specific performance of the terms hereof in addition to any other remedies at law or in equity. 38 IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. DANAHER CORPORATION By:_________________________ Name: Title: WEC ACQUISITION CORPORATION By:_________________________ Name: Title: ACME-CLEVELAND CORPORATION By:_________________________ Name: Title: 39 INDEX OF DEFINED TERMS Page No. --------- 831 Meeting .............................................................. 1 Affiliate ................................................................ 14 Agreement ................................................................ 1 CERCLA ................................................................... 19 Closing .................................................................. 4 Company .................................................................. 1 Company A Preferred Share................................................. 1 Company Acquisition Proposal.............................................. 28 Company B Preferred Shares................................................ 10 Company Benefit Arrangement............................................... 15 Company Common Share...................................................... 1 Company Employee Plans.................................................... 14 Company Financial Statements.............................................. 13 Company Intellectual Property Rights...................................... 19 Company Material Adverse Effect........................................... 8 Company Option ........................................................... 7 Company Option Plans...................................................... 7 Company Performance Plan.................................................. 7 Company Real Property..................................................... 19 Company Rights ........................................................... 10 Company Rights Agreement.................................................. 10 Company SEC Reports....................................................... 12 Company Shares ........................................................... 2 Company Subsidiary Securities............................................. 12 Delaware Law ............................................................ 4 Effective Time ........................................................... 4 Environmental Law ........................................................ 19 ERISA ................................................................... 15 Exchange Act ............................................................. 3 Exchange Agent ........................................................... 5 Exchange Fund ........................................................... 5 Goldman Sachs ........................................................... 3 Hazardous Material ....................................................... 19 HSR Act ................................................................. 9 Independent Directors..................................................... 3 Intellectual Property Rights.............................................. 18 Lien .................................................................... 10 Merger ................................................................... 4 Merger Consideration...................................................... 5 Merger Meeting .......................................................... 29 Merger Sub ............................................................... 1 40 Merger Sub Common Share .................................................. 5 Offer .................................................................... 1 Offer Conditions ......................................................... 2 Offer Documents .......................................................... 2 Ohio Law ................................................................ 1 Parent ................................................................... 1 Parent Financial Statements............................................... 24 Parent Material Adverse Effect............................................ 23 Parent SEC Reports ....................................................... 24 Person ................................................................... 6 Proxy Material ........................................................... 22 Schedule 14D-9 ........................................................... 3 SEC ...................................................................... 2 Share Certificate ........................................................ 5 Subsidiary ............................................................... 11 Surviving Corporation..................................................... 4 Termination Fee .......................................................... 36 Third Party Consents...................................................... 31 Transaction Costs ........................................................ 36 41 LIST OF SCHEDULES Schedule Designation - -------- ----------- 1.01(a) 831 Meeting Procedures 1.01(b) Offer Conditions 3.03 Company Governmental Authorization 3.04 Company Liens Created 3.05 Company Capitalization 3.06 Company Subsidiaries 3.09 Certain Company Changes 3.10 Company Litigation 3.11 Company Employee Plans 3.13 Company Intellectual Property Rights 3.14 Company Environmental Matters 4.03 Parent Governmental Authorizations 5.01 Company Conduct 42 SCHEDULE 1.01(a) 831 MEETING PROCEDURES 1. CT Corporation Systems, Inc. shall be appointed to serve as the sole Inspector of Elections (the "Inspector of Elections") for the 831 Meeting, subject to Section 1701.50 and other applicable provisions of the Ohio General Corporation Law (the "OGCL") and the further provisions of this Schedule 1.01(a). 2. The Inspector of Elections shall determine the presence of a quorum in accordance with the provisions of Section 1701.831(E)(1) of the OGCL for purposes of each of the two votes of shareholders required by the provision. 3. For purposes of determining the presence of a quorum for the second vote required by Section 1701.831(E)(1), and determining which shares are entitled to participate in that second vote, the Inspector of Elections shall exclude as "interested shares" the following: a. All shares beneficially owned by Danaher, as shown by the last Schedule 14D-1 filed by Danaher with the SEC prior to the 831 Meeting; b. Shares beneficially owned by officers of Acme-Cleveland, as shown in the proxy statement relating to the 831 Meeting; c. Any additional shares known by the Inspector to Elections to have been acquired by Danaher or any officer of Acme-Cleveland after the date of the last Schedule 14D-1 filed by Danaher with the SEC or the date of the proxy statement relating to the 831 meeting, as the case may be. d. For purposes of the definition of "interested shares" set forth in Section 1701.01(CC)(2) of the OGCL, any shares acquired, directly or indirectly, by any person from the holder or holders thereof and any other person acting in concert with such holder or holders, for aggregate consideration in excess of $250,000 during the period beginning on March 7, 1996 and ending on the date of the 831 Meeting and not sold by such holder or holders prior to the date of the 831 Meeting of Shareholders, to the extent that any such 43 "interested shares" are (i) identified by the holder or holders thereof to the Inspector of Elections or (ii) are otherwise determined by the Inspector of Elections to represent "interested shares" on the basis of the record list. 4. The proxy cards used by Acme-Cleveland and Danaher will not contain any certification or otherwise solicit information regarding whether the shares represented by the proxy are "interested shares." 44 SCHEDULE 1.01(b) OFFER CONDITIONS Merger Sub will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating to Merger Sub's obligation to pay for or return tendered shares after the termination or withdrawal of the Offer), to pay for any Company Shares not theretofore accepted for payment or paid for pursuant to the Offer, if (1) there are not validly tendered and not properly withdrawn prior to the expiration of the Offer that number of Company Shares which, when aggregated with the Company Shares then owned by the Parent and any of its affiliates, represents at least a majority of the Company Shares then outstanding on a fully diluted basis or (2) at any time on or after the date of the Merger Agreement and at or before the time that the particular Company Shares are accepted for payment (whether or not any other Company Shares have theretofore been accepted for payment or paid for pursuant to the Offer) any of the following conditions exist: (a) any provision of any 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 Company Shares by Merger Sub or the Parent 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 the Parent, Merger Sub, or any Subsidiaries of the Parent or all or a material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or the Parent 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 Merger Sub, the Parent, or any of Subsidiaries of the Parent effectively to acquire, hold, or exercise full rights of ownership of the Company Shares, including but not limited to the right to vote any Company Shares acquired or owned by Merger Sub, the Parent, or any Subsidiaries of the Parent on all matters properly presented to the shareholders of the Company, including but not limited to the approval of the Merger Agreement and adoption of the Merger and the right to vote any shares of capital stock of any Subsidiaries of the Company (other than immaterial Subsidiaries) (each party agreeing to use all reasonable efforts, including appeals to higher courts, to have any such judgment, injunction, order, or decree lifted); 45 -----END PRIVACY-ENHANCED MESSAGE-----