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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------
AMENDMENT NO. 3*
TO
SCHEDULE 14D-1
Tender Offer Statement Pursuant to Section 14(d)(1)
of the Securities Exchange Act of 1934
and
SCHEDULE 13D
Under the Securities Exchange Act of 1934
----------------------------
TOTAL CONTROL PRODUCTS, INC.
(Name of Subject Company)
----------------------------
ORION MERGER CORP.
a wholly owned subsidiary of
GE FANUC AUTOMATION NORTH AMERICA, INC.
and
an indirect majority owned subsidiary of
GENERAL ELECTRIC COMPANY
(Bidders)
----------------------------
Common Stock, no par value
(Title of Class of Securities)
----------------------------
89149V106
(CUSIP Number of Class of Securities)
----------------------------
A. E. Knorr, Senior Vice President and General Counsel
GE Fanuc Automation North America, Inc.
P.O. Box 8106
Charlottesville, Virginia 22906
(804) 978-5000
(Name, address and telephone number of persons authorized to
receive notices and communications on behalf of bidders)
Copy to
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
(312) 853-7000
Attention: Dennis V. Osimitz
*Constituting the final amendment
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Orion Merger Corp., an Illinois corporation and a wholly owned subsidiary
of GE Fanuc Automation North America, Inc., a Delaware corporation (the
"Parent"), and an indirect majority owned subsidiary of General Electric
Company, a New York corporation ("General Electric"), Parent and General
Electric, hereby amend and supplement their combined Tender Offer Statement on
Schedule 14D-1 (as amended, the "Schedule 14D-1") and Statement on Schedule 13D,
originally filed on November 30, 1998, with respect to their offer to purchase
all outstanding shares of common stock, no par value (the "Shares"), of Total
Control Products, Inc., an Illinois corporation (the "Company"), at a purchase
price of $11.00 per Share, net to the seller in cash, without interest, upon the
terms and subject to the conditions set forth in the Offer to Purchase, dated
November 30, 1998, and in the related Letter of Transmittal, copies of which
have been filed as Exhibits (a)(1) and (a)(2) to the Schedule 14D-1,
respectively.
Item 6. Interest in Securities of the Subject Company.
(a) and (b): Immediately following the expiration of the Offer, the Offeror
accepted for payment (and thereby purchased) 8,851,668 Shares validly tendered
pursuant to the Offer and not properly withdrawn at or prior to the expiration
of the Offer, including 2,318,530 Shares tendered pursuant to guaranteed
delivery for which timely delivery of all required documents is necessary. The
8,851,668 Shares accepted for payment (and thereby purchased) by the Offeror
represent approximately 98% of the Shares outstanding on January 5, 1999.
Item 11. Material to be Filed as Exhibits.
(a)(12) Press Release issued by Parent on January 6, 1999.
(b)(1) Commitment Letter dated January 4, 1999 between Barclays Bank PLC
and Parent.
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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: January 4, 1999
General Electric Company
By: /s/ Eliza W. Fraser
-----------------------------
Name: Eliza W. Fraser
Title: Associate Corporate Counsel
GE Fanuc Automation North America, Inc.
By: /s/ A. E. Knorr
-----------------------------
Name: A. E. Knorr
Title: Senior Vice President and
General Counsel
Orion Merger Corp.
By: /s/ A. E. Knorr
-----------------------------
Name: A. E. Knorr
Title: Vice President
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[Barclays Capital Letterhead]
222 Broadway
New York, NY 10038
Tel + 1 (212) 412-4000
Exhibit (b)(1)
January 4, 1999
Senior Credit Facilities
------------------------
Commitment Letter
-----------------
GE Fanuc Automation
North America, Inc.
P.O. Box 8106
Charlottesville, North Carolina 22906
Attention: Mr. Larry Pearson
Senior Vice President-Finance
Gentlemen:
You have advised Barclays Bank PLC ("Barclays") that GE Fanuc
Automation North America, Inc., a Delaware corporation (the "Borrower"), through
one of your wholly owned subsidiaries (the "Merger Subsidiary"), has commenced a
cash tender offer (the "Offer") to purchase all of the outstanding shares of
common stock of Total Control Products, Inc. (the "Target") at a purchase price
of $11 per share; following the completion of the offer the Merger Subsidiary
will be merged with and into the Company (all the foregoing, the "Acquisition").
In that connection, you have requested that Barclays agree to structure and
arrange senior credit facilities in an aggregate amount of up to $50,000,000
(the "Facilities") and that Barclays commit to provide the entire principal
amount of the Facilities to serve as administrative agent for the Facilities.
Barclays is pleased to advise you that it is willing to act as
exclusive advisor and arranger for the Facilities.
Furthermore, Barclays is pleased to advise you of its commitment to
provide the entire amount of the Facilities, upon the terms and subject to the
conditions set forth or referred to in this commitment letter (the "Commitment
Letter") and in the Summary of Terms and Conditions attached hereto as Exhibit A
(the "Term Sheet").
It is agreed that Barclays will act as the sole and exclusive
Administrative Agent advisor and arranger for the Facilities, and will, in such
capacities, perform the duties and exercise the authority customarily performed
and exercised by it in such roles. You agree that no other agents, co-agents or
arrangers will be appointed, no other titles will be awarded and no compensation
(other than that expressly contemplated by the Term Sheet and the Fee Letter
referred to below) will be paid in connection with the Facilities unless you and
we shall so agree.
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[BARCLAYS CAPITAL] 2
As consideration for Barclays' commitment hereunder and its agreement to
perform the services described herein, you agree to pay to Barclays the
nonrefundable fees set forth in the Term Sheet and in the Fee Letter dated the
date hereof and delivered herewith (the "Fee Letter").
Barclays' commitment hereunder and its agreement to perform the services
described herein are subject to (a) there not occurring or becoming known to us
any material adverse condition or material adverse change in or affecting the
business, operations, property, condition (financial or otherwise) or
prospects of the Borrower and its subsidiaries, taken as a whole, (b) our not
becoming aware after the date hereof of any information or other matter
affecting the Borrower, the Target or the transactions contemplated hereby which
is inconsistent in a material and adverse manner with any such information or
other matter disclosed to us prior to the date hereof, (c) the negotiation,
execution and delivery on or before the date which is 30 days after the date of
your acceptance of this Commitment Letter of definitive documentation with
respect to the Facilities satisfactory to Barclays and its counsel and (d) the
other conditions set forth or referred to in the Term Sheet. The terms and
conditions of Barclays' commitment hereunder and of the Facilities are not
limited to those set forth herein and in the Term Sheet. Those matters that are
not covered by the provisions hereof and of the Term Sheet are subject to the
approval and agreement of Barclays and the Borrower.
You agree (a) to indemnify and hold harmless Barclays, its affiliates and
their respective officers, directors, employees, advisors, and agents (each, an
"indemnified person") from and against any and all losses, claims, damages and
liabilities to which any such indemnified person may become subject arising out
of or in connection with this Commitment Letter, the Facilities, the use of the
proceeds thereof, the Acquisition or any related transaction or any claim,
litigation, investigation or proceeding relating to any of the foregoing,
regardless of whether any indemnified person is a party thereto, and to
reimburse each indemnified person upon demand for any legal or other expenses
incurred in connection with investigating or defending any of the foregoing,
provided that the foregoing indemnity will not, as to any indemnified person,
apply to losses, claims, damages, liabilities or related expenses to the extent
they are found by a final, non-appealable judgment of a court to arise from the
willful misconduct or gross negligence of such indemnified person, and (b) to
reimburse Barclays and its affiliates on demand for all out-of-pocket expenses
(including due diligence expenses, syndication expenses, travel expenses, and
reasonable fees, charges and disbursements of counsel) incurred in connection
with the Facilities and any related documentation (including this Commitment
Letter, the Term Sheet, the Fee Letter and the definitive financing
documentation) or the administration, amendment, modification or waiver thereof.
No indemnified person shall be liable for any damages arising from the use by
others of Information or other materials obtained through electronic,
telecommunications or other information transmission systems or for any special,
indirect, consequential or punitive damages in connection with the Facilities.
You acknowledge that Barclays and its affiliates (the term "Barclays" being
understood to refer hereinafter in this paragraph to include such affiliates)
may be providing debt financing, equity capital or other services (including
financial advisory services) to other
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[BARCLAYS CAPITAL LOGO] 3
companies in respect of which you may have conflicting interests regarding the
transactions described herein and otherwise. Barclays will not use confidential
information obtained from you by virtue of the transactions contemplated by this
Commitment Letter or their other relationships with you in connection with the
performance by Barclays of services for other companies, and Barclays will not
furnish any such information to other companies. You also acknowledge that
Barclays has no obligation to use in connection with the transactions
contemplated by this Commitment Letter, or to furnish to you, confidential
information obtained from other companies.
This Commitment Letter shall not be assignable by you without the prior
written consent of Barclays (and any purported assignment without such consent
shall be null and void), is intended to be solely for the benefit of the parties
hereto and is not intended to confer any benefits upon, or create any rights in
favor of, any person other than the parties hereto. This Commitment Letter may
not be amended or waived except by an instrument in writing signed by you and
Barclays. This Commitment Letter may be executed in any number of counterparts,
each of which shall be an original, and all of which, when taken together, shall
constitute one agreement. Delivery of an executed signature page of this
Commitment Letter by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof. This Commitment Letter and the Fee
Letter are the only agreements that have been entered into among us with
respect to the Facilities and set forth the entire understanding of the parties
with respect thereto. This Commitment Letter shall be governed by, and construed
in accordance with, the laws of the State of New York.
This Commitment Letter is delivered to you on the understanding that
neither this Commitment Letter, the Term Sheet or the Fee Letter nor any of
their terms or substance shall be disclosed, directly or indirectly, to any
other person except (a) to your officers, agents and advisors who are directly
involved in the consideration of this matter or (b) as may be compelled in a
judicial or administrative proceeding or as otherwise required by law (in which
case you agree to inform us promptly thereof).
The compensation, reimbursement, indemnification and confidentiality
provisions contained herein and in the Fee Letter shall remain in full force and
effect regardless of whether definitive financing documentation shall be
executed and delivered and notwithstanding the termination of this Commitment
Letter or Barclays' commitment hereunder.
If the foregoing correctly sets forth our agreement, please indicate your
acceptance of the terms hereof and of the Term Sheet and the Fee Letter by
returning to us executed counterparts hereof and of the Fee Letter not later
than 5:00 p.m., New York City time, on January 6, 1999. Barclay's commitment and
its other agreements herein will expire at such time in the event Barclays has
not received such executed counterparts in accordance with the immediately
preceding sentence.
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[Barclays Capital Letterhead]
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Barclays is pleased to have been given the opportunity to assist you
in connection with this important financing.
Very truly yours,
BARCLAYS BANK PLC
By: /s/ John Giannone
-----------------
John Giannone
Director
Accepted and agreed to
as of the date first
written above by:
GE Fanuc Automation
North America, Inc.
By: /s/ Larry E. Pearson
--------------------
Larry E. Pearson
Senior Vice President
Finance
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Exhibit A
Term Sheet
January 4, 1999
Summary of Terms and Conditions
Borrower: GE Fanuc Automation North America, Inc. and Subsidiaries.
Amount: $50M.
Guarantors: All present and future majority owned subsidiaries of the
Borrower.
Facility Type: a. $40M Term Loan.
b. $10M Revolver.
Purpose: Acquisition financing and working capital.
Final Maturity: a. Term Loan -- Eighteen months from the date of the
initial drawdown (the "Closing").
b. Revolver -- Two years from Closing.
Amortization: Term Loan: Principal will be due and payable in six equal
consecutive quarterly installments commencing
ninety days from Closing.
Revolver: All outstanding Loans under the Revolver will
be due and payable in full on the Revolver
Final Maturity Date.
Sole Arranger and
Original Lender: Barclays Bank PLC (Barclays) through Barclays Capital, the
investment banking division of Barclays Bank PLC.
Drawdowns: Term Loan: To be fully drawn in three tranches within
sixty days of initial funding.
Revolver: May be borrowed, repaid and reborrowed from
and after the Closing date until the date of
Final Maturity in accordance with the terms of
the definitive credit documentation.
Fees: Commitment Fee: 0.15% per annum on the average daily
unused amount of the revolver, payable
quarterly in arrears from the Closing
date,
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and based on the actual number of
days elapsed in a 365 day year.
Interest Rates: Libor plus 0.30% margin or Barclays U.S. Dollar Base Rate at
the election of the Borrower.
Interest Periods: 1, 2, 3 or 6 month Libor Loans, at the option of the
Borrower.
Interest Payments: All interest will be based on the actual number of days
elapsed in 360 day year for Libor Loans and a 365 day year
for Base Rate Loans (except where based upon the federal
funds rate, in which case a 360-day year will be applicable)
and will be payable: (i) if payable on LIBOR Loans, at the
end of each Interest Period (and, in the case of any 6 month
Interest Period, on the date which is 3 months after the
first day thereof) and (ii) if payable on Base Rate Loans,
monthly in arrears.
Default Rate: The interest rate otherwise in effect plus 2%
Mandatory
Prepayments: To be determined (TBD)
Voluntary
Prepayments: Base Rate Loans may be repaid at any time without penalty,
on one business day's notice. Libor Loans may be repaid
without penalty at the end of an Interest Period. The
Borrower will compensate Barclays and the other Lenders if
applicable, for funding losses in the event LIBOR Loans are
for any reason (including acceleration) prepaid on a day
which is not the last day of the relevant interest period.
Termination
of Commitment: The Borrower may terminate unused commitments under the
Revolver in amounts of at least U.S. $5M and increments of
$1M.
Collateral: None
Conditions
Precedent
To Closing: Usual and customary for a facility of this type satisfactory
to Barclays in all respects.
Conditions
Precedent
To Borrowing: Usual and customary for a facility of this type satisfactory
to Barclays in all respects including but not limited to:
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a) Absence of default or event of default;
b) Accuracy of representations and warranties.
Representations
and Warranties: Usual and customary for a facility of this type, satisfactory
to Barclays in all respects, including but not limited to:
a) no default or event of default;
b) accuracy of financial statements;
c) absence of a material adverse change in Borrower;
d) corporate power and due authorization of the Borrower;
e) validity and enforceability of the Loan Documents;
f) payment of taxes not otherwise being contested;
g) no ERISA plan terminations, material liabilities to the
Pension Benefit Guarantee Corporation (PBGC),
accumulated funding deficiencies or materially unfunded
pension plans;
h) no material litigation not covered by insurance;
i) no material environmental liabilities or other potential
material liabilities, and;
j) solvency.
Affirmative
Covenants: Usual and customary for a facility of this type, satisfactory
to Barclays in all respects, including but not limited to:
a) Delivery of (i) unaudited annual consolidated and
consolidating financial statements to Barclays no
later than 90 days after the close of each fiscal year,
(ii) audited annual consolidated and consolidating
financial statements to Barclays no later than 120 days
after the close of each fiscal year, (iii) unaudited
quarterly consolidated and consolidating financial
statements no later than 45 days after the close of each
fiscal quarter, (iv) an annual monthly budget prior to
commencement of each fiscal year and (v) monthly
statements comparing results to budget and prior year
results;
b) Maintenance of customary insurance coverage;
c) Compliance with laws;
d) Maintenance of businesses and properties; and
e) Notice of defaults, material litigation, the occurrence
of any reportable event and certain other ERISA events.
Negative
Covenants: Usual and customary for a facility of this type, satisfactory
to Barclays in all respects, including but not limited to:
limitations on the incurrence of additional indebtedness or
guarantees; limitations on the creation, incurrence or
sufferance to exist of liens or negative pledges; limitations
on the making of any investments, loans, acquisitions or
advances; limitations on dividends;
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limitations on the sale, lease or other disposal of assets;
limitations on amendments to the Borrower's Certificate of
Incorporation or By-laws; limitations on termination of any
material employee benefit plan which could otherwise result
in a material liability; limitations on transactions among
affiliates which are not arms-length; limitations on
material changes in business or conduct of business;
limitations on significant changes in accounting or
reporting treatments except where required by GAAP;
limitations on leases; and limitations on capital
expenditures.
Financial
Covenants: The definitive credit documentation will include, but shall
not be limited to the following financial covenants:
Minimum Net Worth: TBD
Interest Coverage
Ratio: TBD
Total Debt/EBITDA: TBD (Definition of Total Debt will
include Capital Leases and Letters of
Credit, if any).
Total Debt/Equity: TBD
Maximum
Permitted
Acquisitions: Acquisitions for an aggregate purchase price of up to $60M
over the life of the facility will be permitted subject to:
(i) Barclays having received at least 20 business days prior
notice of Borrower's intention to make such acquisition.
(ii) Barclays (and other Lenders if applicable) having
granted its (their) approval thereof within five days from
receipt of notice (which consent shall not be unreasonably
withheld), for those acquisitions the purchase price of
which is equal to or greater than $5M (it being agreed that
in the event that Barclays does not respond within five
business days of said notice, a non-response will be
considered a deemed consent) and (iii) in every instance,
and without regard to the size of each acquisition, Borrower
will represent and warrant to Barclays in writing that no
Event of Default has occurred immediately prior to or
immediately subsequent to each acquisition.
Events of Default: Usual and customary for a transaction of this type
satisfactory in all respects to Barclays, including but not
limited to:
a) failure to pay principal, interest, commitment fees
when due;
b) failure to pay any other amounts due under the
Facility;
c) breach of representations or warranties;
d) breach of covenants;
e) cross-default to aggregate indebtedness in excess of
$5,000,000;
f) unpaid final judgments in excess of $5,000,000;
g) certain ERISA defaults;
h) "change in control" (to be defined);
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i) certain voluntary bankruptcy events; and
j) certain involuntary bankruptcy events.
Certain of the Events of Default will have customary grace
periods to be agreed upon.
Taxes: All payments by the Borrower shall be made in immediately
available funds free and clear of all present and future
taxes, withholdings, deductions or other charges.
Increased Costs/
Yield Protection: Customary provisions protecting Barclays (and other Lenders
if applicable) in the event of unavailability of funding,
illegality, increased costs, funding losses and capital
adequacy.
Assignments/
Participations: Barclays and any other Lenders shall have the right to sell
or assign all or part of its respective commitments and
obligations with respect to the Facility subject (except for
assignments to an affiliate of a Lender or when an Event of
Default exists) to the approval of the Borrower, which shall
not be unreasonably withheld. Participations may be freely
made provided notice thereof is provided to the Borrower.
Indemnification: The Borrower will indemnify Barclays, its successors and
assigns, against all losses, liabilities, claims damages or
expenses (including any environmental liabilities) which may
arise as a result of the transaction, including but not
limited to, reasonable attorneys' fees and expenses and
settlement costs; provided that no Lender shall be
indemnified for its own gross negligence or willful
misconduct as determined by a court of competent
jurisdiction.
Governing Law: State of New York
Special Counsel
to Barclays: Simpson Thacher & Bartlett
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Exhibit (a)(12)
GE FANUC AUTOMATION NORTH AMERICA, INC. ANNOUNCES COMPLETION OF TENDER OFFER.
Charlottesville, VA, January 6, 1999 -- GE Fanuc Automation North America,
Inc. today announced that its tender offer for all of the outstanding shares of
common stock of Total Control Products, Inc. (Nasdaq Symbol: TCPS) had expired
at 12:00 midnight, New York City time, on Tuesday, January 5, 1999. GE Fanuc was
advised by Norwest Bank Minnesota, N.A., the depositary for the offer, that as
of the expiration of the offer, 8,851,491 shares of Total Control Products
common stock, representing approximately 98% of the outstanding shares of Total
Control Products, were validly tendered, subject in the case of 2,318,353 shares
represented by notices of guaranteed delivery to the physical receipt of
certificates therefor. All conditions to the closing of the purchase of the
shares tendered pursuant to the offer have been satisfied or waived.
The tendered shares were accepted for payment by a GE Fanuc subsidiary as
of the expiration of the offer. It is expected that such GE Fanuc subsidiary
will be merged with and into Total Control Products with each share of Total
Control Products not purchased in the tender offer being converted into the
right to receive $11 in cash.
GE Fanuc Automation North America, Inc. is a global supplier of industrial
controls systems with headquarters in Charlottesville, VA, and is a joint
venture between GE and FANUC, Ltd. Japan. GE Fanuc is part of GE Industrial
Systems, a global manufacturer of products and systems used to distribute,
protect, control and operate electrical equipment for commercial, utility and
industrial applications.
Total Control Products, headquartered in Melrose Park, IL, offers a broad
range of products which are used to define, monitor and maintain the operation,
sequencing and safety of industrial equipment and machinery on the factory
floor. These products range from input/output devices to graphic operator
interfaces to open connect hardware and software for factory-wide control
systems.
