-----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, DbnWQKvUHj2yyPnXoPVieggxJDE731yq5mUENYwAY9yTYk6Cv0B+VpwztbbNyNoR +XU1YXWpJR3wIQ5G+v+ARA== /in/edgar/work/20000725/0000912057-00-033045/0000912057-00-033045.txt : 20000921 0000912057-00-033045.hdr.sgml : 20000921 ACCESSION NUMBER: 0000912057-00-033045 CONFORMED SUBMISSION TYPE: SC TO-T PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20000725 GROUP MEMBERS: FOUR POINTS ACQUISITION INC. GROUP MEMBERS: GENERAL ELECTRIC CO SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: HARMON INDUSTRIES INC CENTRAL INDEX KEY: 0000045635 STANDARD INDUSTRIAL CLASSIFICATION: [3669 ] IRS NUMBER: 440657800 STATE OF INCORPORATION: MO FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T SEC ACT: SEC FILE NUMBER: 005-07115 FILM NUMBER: 678364 BUSINESS ADDRESS: STREET 1: 1600 NE CORONADO DR CITY: BLUE SPRINGS STATE: MO ZIP: 64015-6236 BUSINESS PHONE: 8162293345 MAIL ADDRESS: STREET 1: 1600 NE CORONADO DR CITY: BLUE SPRINGS STATE: MO ZIP: 64015-6236 FORMER COMPANY: FORMER CONFORMED NAME: HARMON ELECTRONICS INC DATE OF NAME CHANGE: 19780823 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GENERAL ELECTRIC CO CENTRAL INDEX KEY: 0000040545 STANDARD INDUSTRIAL CLASSIFICATION: [3600 ] IRS NUMBER: 140689340 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T BUSINESS ADDRESS: STREET 1: 3135 EASTON TURNPIKE STREET 2: - CITY: FAIRFIELD STATE: CT ZIP: 06431 BUSINESS PHONE: 203-373-2211 MAIL ADDRESS: STREET 1: 3135 EASTON TURNPIKE STREET 2: - CITY: FAIRFIELD STATE: CT ZIP: 06431 SC TO-T 1 scto-t.txt SC TO-T - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ SCHEDULE TO TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 --------------------- HARMON INDUSTRIES, INC. (Name of Subject Company (Issuer)) ------------------------------ FOUR POINTS ACQUISITION, INC. GENERAL ELECTRIC COMPANY (Offeror) (Names of Filing Persons (identifying status as offeror, issuer or other person)) Common Stock, Par Value $0.25 Per Share Including Associated Rights (Title of Class of Securities) 413136102 (CUSIP Number of Class of Securities) ROBERT E. HEALING, ESQ. 3135 EASTON TURNPIKE FAIRFIELD, CONNECTICUT 06431-0001 (203) 373-2243 (Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications on Behalf of filing persons) ------------------------------ Copy to: JOHN A. MARZULLI, JR., ESQ. SHEARMAN & STERLING 599 LEXINGTON AVENUE NEW YORK, NEW YORK 10022 (212) 848-4000 CALCULATION OF FILING FEE
TRANSACTION VALUATION* AMOUNT OF FILING FEE** $344,646,930.06................................ $68,929.39
* Estimated solely for the purpose of calculating the registration fee pursuant to Rules 0-11(d) and 0-11(a)(4) under the Securities Exchange Act of 1934, based on the product of (i) $29.28125, the average of the high and low sales prices of Harmon Industries, Inc. common stock on the Nasdaq National Market on July 18, 2000 and (ii) 11,770,226 shares of Harmon Industries, Inc. common stock, the number of shares of Harmon Industries, Inc. common stock outstanding at the close of business on July 14, 2000, assuming the exercise of all options to purchase Harmon Industries, Inc. common stock expected to be outstanding and exercisable prior to the date the offer is expected to be consummated. ** Calculated as 1/50 of 1% of the transaction value. /X/ Check the 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: 90,986.79 Filing Party: General Electric Company Form or Registration No.: S-4 Date Filed: July 25, 2000
Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. Check the appropriate boxes to designate any transactions to which the statement relates: /X/ third-party tender offer subject to Rule 14d-1. / / issuer tender offer subject to Rule 13e-4. / / going-private transaction subject to Rule 13e-3. / / amendment to Schedule 13D under Rule 13d-2. Check the following box if the filing is a final amendment reporting the results of the tender offer: / / - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- This Tender Offer Statement on Schedule TO (this "Schedule TO"), is filed by General Electric Company, a New York corporation ("Parent"), and Four Points Acquisition, Inc., a Missouri corporation ("Acquiror") and a wholly owned subsidiary of Parent. This Schedule TO relates to the offer by Acquiror to exchange a fraction of a share of common stock, par value $0.06 per share (the "Parent Shares"), of Parent for each outstanding share of common stock, par value $0.25 per share (the "Shares"), of Harmon Industries, Inc., a Missouri corporation (the "Company"), including the associated rights to purchase common stock, based on an exchange ratio of $30 divided by the Average Parent Price (as defined below), upon the terms and subject to the conditions set forth in the Prospectus dated July 25, 2000 (the "Prospectus") and in the related Letter of Transmittal, copies of which are attached hereto as Exhibits (a)(1) and (a)(2) (which, together with any amendments or supplements thereto, collectively constitute the "Offer"). The "Average Parent Price" shall mean the average of the daily volume-weighted sales prices per share of the Parent Shares on the New York Stock Exchange, Inc. for each of the ten consecutive trading days ending on the trading day that is two trading days prior to the date on which the Shares are accepted for payment in the Offer. The information set forth in the Prospectus and the related Letter of Transmittal is incorporated herein by reference with respect to Items 1-9 and 11 of this Schedule TO. The Agreement and Plan of Merger, dated as of July 16, 2000, among Parent, Acquiror and the Company, a copy of which is attached as Exhibit (d)(1) hereto, the Stock Option Agreement, dated as of July 16, 2000, between Parent and the Company, a copy of which is filed as Exhibit (d)(2) hereto, and the Support Agreement, dated as of July 16, 2000, among Parent, Acquiror and certain stockholders of Harmon, a copy of which is attached as Exhibit (d)(3) hereto, are incorporated herein by reference with respect to Items 5 and 11 of this Schedule TO. ITEM 12. MATERIAL TO BE FILED AS EXHIBITS. (a)(1) Prospectus dated July 25, 2000 (incorporated by reference from GE's Registration Statement on Form S-4 filed on July 25, 2000). (a)(2) Form of Letter of Transmittal (incorporated by reference to exhibit 99.3 to GE's Registration Statement on Form S-4 filed on July 25, 2000). (a)(3) Form of Notice of Guaranteed Delivery (incorporated by reference to exhibit 99.4 to GE's Registration Statement on Form S-4 filed on July 25, 2000). (a)(4) Form of Letter from Acquiror to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (incorporated by reference to exhibit 99.5 to GE's Registration Statement on Form S-4 filed on July 25, 2000). (a)(5) Form of Letter from Brokers, Dealers, Commercial Banks, Trust Companies and Nominees to Clients (incorporated by reference to exhibit 99.6 to GE's Registration Statement on Form S-4 filed on July 25, 2000). (a)(6) Form of Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (incorporated by reference to exhibit 99.7 to GE's Registration Statement on Form S-4 filed on July 25, 2000). (a)(7) Summary Advertisement as published in THE WALL STREET JOURNAL on July 25, 2000 (incorporated by reference to exhibit 99.8 to GE's Registration Statement on Form S-4 filed on July 25, 2000). (a)(8) Press Release issued by Parent on July 17, 2000 (incorporated by reference to the filing by Parent on Form 425 on July 17, 2000). (b) None.
1 (d)(1) Agreement and Plan of Merger, dated as of July 16, 2000, among Parent, Acquiror and the Company (incorporated by reference to exhibit 2 to GE's Registration Statement on Form S-4 filed on July 25, 2000). (d)(2) Stock Option Agreement, dated as of July 16, 2000, between Parent and the Company (incorporated by reference to exhibit 99.1 to GE's Registration Statement on Form S-4 filed on July 25, 2000). (d)(3) Support Agreement, dated as of July 16, 2000, among Parent and certain stockholders of Harmon (incorporated by reference to exhibit 99.2 to GE's Registration Statement on Form S-4 filed on July 25, 2000). (d)(4) Confidentiality Agreement, dated September 9, 1999 between Parent and the Company. (g) None.
ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3. Not applicable. 2 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: July 25, 2000 FOUR POINTS ACQUISITION, INC. By: /s/ JOHN KRENICKI, JR. ----------------------------------------- Name: John Krenicki, Jr. Title: President
3 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: July 25, 2000 GENERAL ELECTRIC COMPANY By: /s/ ROBERT E. HEALING ----------------------------------------- Name: Robert E. Healing Title: Corporate Counsel
4 EXHIBIT INDEX
EXHIBIT NO. - --------------------- (a)(1) Prospectus dated July 25, 2000 (incorporated by reference from GE's Registration Statement on Form S-4 filed on July 25, 2000). (a)(2) Form of Letter of Transmittal (incorporated by reference to exhibit 99.3 to GE's Registration Statement on Form S-4 filed on July 25, 2000). (a)(3) Form of Notice of Guaranteed Delivery (incorporated by reference to exhibit 99.4 to GE's Registration Statement on Form S-4 filed on July 25, 2000). (a)(4) Form of Letter from Acquiror to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (incorporated by reference to exhibit 99.5 to GE's Registration Statement on Form S-4 filed on July 25, 2000). (a)(5) Form of Letter from Brokers, Dealers, Commercial Banks, Trust Companies and Nominees to Clients (incorporated by reference to exhibit 99.6 to GE's Registration Statement on Form S-4 filed on July 25, 2000). (a)(6) Form of Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (incorporated by reference to exhibit 99.7 to GE's Registration Statement on Form S-4 filed on July 25, 2000). (a)(7) Summary Advertisement as published in THE WALL STREET JOURNAL on July 25, 2000 (incorporated by reference to exhibit 99.8 to GE's Registration Statement on Form S-4 filed on July 25, 2000). (a)(8) Press Release issued by Parent on July 17, 2000 (incorporated by reference to the filing by Parent on Form 425 on July 17, 2000). (b) None. (d)(1) Agreement and Plan of Merger, dated as of July 16, 2000, among Parent, Acquiror and the Company (incorporated by reference to exhibit 2 to GE's Registration Statement on Form S-4 filed on July 25, 2000). (d)(2) Stock Option Agreement, dated as of July 16, 2000, between Parent and the Company (incorporated by reference to exhibit 99.1 to GE's Registration Statement on Form S-4 filed on July 25, 2000). (d)(3) Support Agreement, dated as of July 16, 2000, among Parent and certain stockholders of Harmon (incorporated by reference to exhibit 99.2 to GE's Registration Statement on Form S-4 filed on July 25, 2000). (d)(4) Confidentiality Agreement, dated September 9, 1999 between Parent and the Company. (g) None.
5 EX-99.(D)4 2 ex-99_d4.txt EXHIBIT 99(D)4 EXHIBIT (d)(4) FINAL September 9, 1999 Harmon Industries, Inc, 1600 N.E. Coronado Drive Blue Springs, MO 64014 Ladies and Gentlemen: In connection with our consideration of a possible combination of Harmon Industries, Inc. (the "COMPANY") with GE-Harris Railway Electronics, L.L.C. ("GE HARRIS") or an affiliate of GE Harris, in one or a series of transactions (each, a "TRANSACTION"), we understand that the Company is prepared to furnish (or cause to be furnished) to General Electric Company ("GE") certain confidential, proprietary and material information concerning the business and properties of the Company. All such information, whether furnished directly or indirectly on or before or after the date of this letter (this "AGREEMENT") is collectively referred to in this Agreement as "EVALUATION MATERIAL." We acknowledge that it is imperative that the existence and subject matter of these discussions and all Evaluation Material remain confidential. Accordingly, we agree that we will keep confidential the Evaluation Material (including Notes, as defined below, to the extent derived from the Evaluation Material) and that each of our affiliates and the directors, officers, employees, agents, advisors, and representatives (collectively, "Representatives") of GE and its affiliates to whom Evaluation Material is provided will be advised of the confidential nature of the Evaluation Material and directed to abide by the terms of this Agreement (including, with respect to disclosure of discussions or negotiations between the parties, in accordance with paragraph (c) below). We agree to be responsible for any breach of this Agreement by our affiliates or Representatives. An affiliate of a person means any other person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such person. GE further agrees: (a) not to use any Evaluation Material (including, for the avoidance of doubt, the use of any margin information in connection with supply or other commercial arrangements between the parties), including any notes, summaries, reports, analyses, or other material derived by us, our affiliates, or our Representatives in whole or in part from the Evaluation Material in whatever form maintained (collectively, "NOTES"), in September 9, 1999 Page 2 each case except for the purpose of evaluating a possible Transaction and the terms thereof; (b) to use the same degree of care as with our own confidential information to prevent disclosure of any Evaluation Material except to our affiliates or to our Representatives (but not to News or the financial services businesses of any affiliate of GE to the extent described below), in each case only to the extent necessary to permit them to assist us in making the evaluations referred to in clause (a) above; and (c) except as may be required by law, not to disclose to any person, other than those persons described in clause (b) above, that the Evaluation Material has been made available to us or our affiliates and Representatives or that we are having any discussions or negotiations with the Company with respect thereto. The obligations to keep Evaluation Material confidential and those set forth in paragraph (c) above will not be deemed to be breached by any disclosure by National Broadcasting Company, Inc. or any other GE affiliate in the ordinary course of their business of disseminating news and information (collectively, "NEWS"), PROVIDED that such disclosure does not result from a breach of the obligations of GE or any of its other affiliates or Representatives under this Agreement. The Company may elect at any time by written notice to us to terminate further access to the Evaluation Material. In that case we will promptly return or destroy (with such destruction to be certified to the Company upon request) all Evaluation Material and Notes, without retaining any copy thereof, except that one copy of the Evaluation Material and all Notes may be retained solely in the files of our legal counsel for compliance purposes or for the purpose of defending or maintaining any litigation (including any administrative proceeding) relating to this Agreement. No such termination or return of the Evaluation Material will affect our obligations under this Agreement, all of which will continue in effect. This Agreement shall be inoperative as to particular portions of the Evaluation Material if such information (i) becomes generally available to the public, other than as a result of a disclosure by us, our Representatives, or our affiliates in contravention of this Agreement, (ii) was available to us or our affiliates or Representatives on a non-confidential basis prior to its disclosure to us by the Company or its Representatives, (iii) becomes available to us or our affiliates or Representatives on a non-confidential basis from a source other than the Company or its Representatives who to the best of our knowledge is not subject to a confidentiality agreement with, or other obligation of secrecy to, the Company prohibiting such source to make such disclosure, or (iv) was independently developed by us or our affiliates or Representatives without reference to the Evaluation Material. If we, our affiliates, or our Representatives are requested or required (by subpoena, civil investigative demand, or similar legal process) to make any disclosure prohibited by this Agreement, we agree to provide the Company with prompt notice of each such request, so that the Company may seek an appropriate protective order or waive compliance with the September 9, 1999 Page 3 provisions of this Agreement or both. If after providing the Company with such prompt notice (as provided above) and absent the entry of a protective order or the receipt of a waiver under this Agreement, we, our affiliates, or our Representatives are, on the written advice of counsel, legally compelled to disclose Evaluation Material to avoid liability for legal sanction, we may disclose such information to the extent required without liability under this Agreement. With respect to all Evaluation Material furnished hereunder, we understand and agree that neither the Company nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness thereof or otherwise. Only those representations and warranties that may be made in a definitive written agreement for a Transaction, when, as, and if executed, shall have any legal effect. We agree that without the written consent of the Company, for a period of one year from the date of this Agreement, neither GE Transportation Systems nor GE-Harris (including, for the avoidance of doubt, any subsidiary of GE or GE-Harris that is part of GE's Transportation Systems business) will solicit the employment of or hire any current executive officer of the Company or any current employee of the Company performing an engineering function, so long as such officer or employee is employed by the Company (including any of its affiliates); PROVIDED, HOWEVER, that a solicitation (and any resulting hiring) shall not be deemed a breach of this Agreement if (i) the person who performs such solicitation has no access to the Evaluation Material and (ii) no person who has access to the Evaluation Material has actual advance knowledge of such solicitation; and, PROVIDED FURTHER, HOWEVER, that the prohibitions against solicitation or hiring of an executive or covered employee as provided above shall not be deemed breached if a search was initiated prior to the date of this Agreement or if at any time an executive or covered employee shall initiate a search for employment within GE. "Solicit for employment" and "hire" shall not be deemed to include general solicitations of employment not specifically directed toward employees of the Company or any hiring resulting from such solicitation. We agree that for a period of 18 months following the date of this Agreement, neither GE nor any of its subsidiaries will, except in connection with a Negotiated Transaction (as defined below), directly or indirectly, (i) acquire or agree, or publicly offer, seek or propose, to acquire any voting securities or all or substantially all of the assets of the Company and its subsidiaries or options to acquire such securities or assets or publicly offer, seek or propose, to enter into any merger, consolidation, recapitalization, business combination or similar transaction involving the Company, (ii) publicly seek or propose to influence or control the management or policies of the Company or to obtain representation on the Company's Board of Directors, or solicit or participate in the solicitation of any proxies or consents with respect to the securities of the Company, (iii) enter into any discussions, negotiations, arrangements or understandings, or form or participate in any "group", with any third party, with respect to any of the foregoing, or (iv) except as provided below, make any public announcement with respect to any of the foregoing or take any action that is likely to, in the reasonable judgment of counsel to GE, legally compel the Company to make a public announcement with respect to this Agreement or the foregoing. For purposes of this paragraph, "NEGOTIATED TRANSACTION" shall mean a transaction that has been approved by the Board of Directors of the Company. For the avoidance September 9, 1999 Page 4 of doubt, nothing in this Agreement shall preclude initiation of discussions between the parties regarding a potential Transaction by one of the parties. Notwithstanding the foregoing, nothing in this paragraph shall be construed to limit the activities in the ordinary course of business of the financial services business of any affiliate of GE, including ordinary brokerage, discretionary money management, financial advisory, arbitrage, sales, trading and passive market making activities, so long as (i) GE has established a "Chinese Wall" between individuals working on the Transaction or otherwise reviewing the Evaluation Material and those employees of such financial services businesses involved in such activities, and (ii) such activities are undertaken in accordance with such "Chinese Wall" policies and procedures and applicable law. Notwithstanding any provision of this Agreement, GE and its subsidiaries, or GE and its affiliates and Representatives, as the context requires, will be released from (i) the obligations of the preceding paragraph and (ii) the other obligations under this Agreement, in the case of such other obligations to the extent necessary to comply with any requirements of law in making a competing offer, upon the occurrence of any event that is reasonably likely, in the reasonable judgment of the Company, to lead to a Transfer of Control of the Company. For purposes of this Agreement, "Transfer of Control of the Company" shall mean (x) the sale by the Company of equity securities of, or a merger, consolidation, share exchange or similar transaction involving, the Company, immediately after the consummation of which the shareholders of the Company (as determined immediately prior to the consummation) would hold less than 80% of the equity securities of the surviving entity; PROVIDED that GE and its subsidiaries, affiliates and Representatives, as the case may be, shall not be released from such obligations in the event such transaction is for the purpose of an acquisition by the Company of another entity (or all or substantially all of the assets of such entity) if the shareholders of the Company (as determined immediately prior to the consummation) would hold at least 50% of the equity securities of the surviving entity; (y) the sale or other transfer of all or substantially all of the assets of the Company and its subsidiaries taken as a whole (including in connection with a joint venture or similar transaction); or (z) a tender offer for more than 20% of the outstanding equity securities of the Company and the Board of Directors of the Company endorses the tender offer or fails to utilize the provisions of the Company's Rights Plan to oppose such tender offer. In furtherance of the preceding two paragraphs and for so long as GE remains obligated thereunder, the Company agrees to notify GE promptly, and as soon as practicable but in no event later than 48 hours, after the Company becomes aware of the occurrence of any event that is reasonably likely, in the reasonable judgment of the Company, to lead to a Transfer of Control of the Company, including, but not limited to, commencement by a third party, within the meaning of Rule 14d-2 of the Exchange Act, of an unsolicited tender offer to acquire more than 20% of the outstanding equity interests of the Company or the initiation of a proxy contest, for the purpose of gaining control of the Company, in connection with any special or annual meeting of the Company's shareholders. Notwithstanding the preceding sentence, the Company shall not be obligated to notify GE regarding any such event if after the date of this Agreement, following good faith negotiations, the discussions regarding a potential Transaction have been terminated. September 9, 1999 Page 5 Each party acknowledges that money damages may not be a sufficient remedy for any breach of its obligations under this Agreement. Accordingly, in the event of any such breach or threatened breach, each party, in addition to any other remedy at law or in equity that it may have, shall be entitled to equitable relief, including injunctive relief or specific performance or both. Neither party shall be entitled to any special, consequential, indirect, punitive or exemplary damages, including loss of profits, as a result of any breach of this Agreement, regardless of whether a claim is asserted under contract, tort or other theory, except in the event of a willful breach by the other party, but only to the extent the non-breaching party is able to demonstrate that it has suffered damages as a result of such willful breach. Except as otherwise set forth herein, this Agreement shall (i) be binding upon GE and the Company and our respective affiliates and Representatives, (ii) be governed by and construed in accordance with the laws of the State of New York, and (iii) expire on the second anniversary of the date hereof. If you are in agreement with the foregoing, please sign and return one copy of this letter, which thereupon will constitute our agreement with respect to the subject matter hereof. Very truly yours, GENERAL ELECTRIC COMPANY By: /s/ John G. Rice --------------------------------------- Name: John G. Rice Title: Vice President Agreed: HARMON INDUSTRIES, INC. By: /s/ Robert E. Harmon 9-14-99 --------------------------- Name: Robert E. Harmon Title: Chairman -----END PRIVACY-ENHANCED MESSAGE-----