EXHIBIT (C)(5)
SHAREHOLDER AGREEMENT
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SHAREHOLDER AGREEMENT (this "Agreement"), dated as of November 22,
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1998, among GE Fanuc Automation North America, Inc., a Delaware corporation
("Parent"), Orion Merger Corp., an Illinois corporation and a wholly owned
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subsidiary of Parent ("Sub"), and the undersigned shareholder (the
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"Shareholder") of Total Control Products, Inc., an Illinois corporation (the
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"Company").
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WHEREAS, Parent, Sub and the Company, propose to enter into an
Agreement and Plan of Merger dated as of even date herewith (as the same may be
amended or supplemented, the "Merger Agreement") to provide for the making of
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a cash tender offer (as such offer may be amended from time to time, the
"Offer") by Sub for any and all Common Shares, no par value, of the Company (the
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"Common Stock") at the Offer Price (as defined in the Merger Agreement) and the
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merger of the Company and Sub (the "Merger");
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WHEREAS, the Shareholder legally and/or beneficially owns that number
of shares of Common Stock appearing on the signature page hereof (such shares,
as they may be adjusted by any stock dividend, stock split, recapitalization,
combination or exchange of shares, merger, consolidation, reorganization or
other change or transaction of or by the Company (each, an "Adjustment Event")
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being referred to herein as the "Subject Shares"); and
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WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Sub have requested that the Shareholder enter into this
Agreement;
NOW, THEREFORE, to induce Parent and Sub to enter into, and in
consideration of their entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein, the parties agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. The
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Shareholder hereby represents and warrants to Parent and Sub as follows:
(a) Authority. The Shareholder has all requisite power and authority
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to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by the Shareholder and constitutes a valid and binding obligation
of the Shareholder enforceable in accordance with its terms. The execution
and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof will
not, conflict with, or result in any violation of, or default (with or
without
notice or lapse of time or both) under any provision of, any trust
agreement, loan or credit agreement, note, bond, mortgage, indenture, lease
or other agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to the Shareholder or to the Shareholder's property
or assets. Except for the expiration or termination of the waiting period
under the HSR Act and informational filings with the SEC, no consent,
approval, order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other governmental
authority or instrumentality, domestic, foreign or supranational, is
required by or with respect to the Shareholder in connection with the
execution and delivery of this Agreement or the consummation by the
Shareholder of the transactions contemplated hereby.
(b) The Shares. The Shareholder has good and marketable title to the
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Subject Shares, free and clear of any claims, liens, encumbrances and
security interests whatsoever. The Shareholder owns no shares of Common
Stock other than the Subject Shares.
2. REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB.
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(a) Authority. Parent and Sub hereby represent and warrant to the
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Shareholder that each of Parent and Sub has all requisite corporate power
and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement by Parent and Sub, and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary corporate
action on the part of Parent and Sub. This Agreement has been duly
executed and delivered by Parent and Sub and constitutes a valid and
binding obligation of Parent and Sub enforceable in accordance with its
terms.
3. COVENANTS OF THE SHAREHOLDER. The Shareholder agrees as follows:
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(a) At any meeting of shareholders of the Company called to vote upon
the Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval with
respect to the Merger and the Merger Agreement is sought, the Shareholder
shall vote (or cause to be voted) the Subject Shares in favor of the
Merger, the approval of the Merger Agreement and the approval of the terms
thereof and each of the other transactions contemplated by the Merger
Agreement, provided that the terms of the Merger Agreement shall not have
been amended to adversely affect the Shareholder.
(b) At any meeting of shareholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Shareholder's vote, consent or other approval is sought, the Shareholder
shall vote (or cause to be voted) the Subject Shares against (i) any merger
agreement or merger (other than the Merger Agreement and the
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Merger), consolidation, combination, sale of substantial assets,
reorganization, recapitalization, dissolution, liquidation or winding up of
or by the Company or any other Takeover Proposal or (ii) any amendment of
the Company's articles of incorporation or by-laws or other proposal or
transaction involving the Company or any of its subsidiaries, which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify the Merger, the Merger Agreement or any of
the other transactions contemplated by the Merger Agreement.
(c) The Shareholder agrees not to (i) sell, transfer, pledge, assign
or otherwise dispose of, or enter into any contract, option or other
arrangement (including any profit sharing arrangement) with respect to the
sale, transfer, pledge, assignment or other disposition of, the Subject
Shares to any person other than Sub or Sub's designee or (ii) enter into
any voting arrangement, whether by proxy, voting agreement or otherwise, in
connection, directly or indirectly, with any Takeover Proposal.
(d) The Shareholder shall not, nor shall the Shareholder permit any
investment banker, attorney or other adviser or representative of the
Shareholder to, (i) directly or indirectly solicit, initiate or encourage
the submission of, any Takeover Proposal or (ii) directly or indirectly
participate in any discussions or negotiations regarding, or furnish to any
person any information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes, or
may reasonably be expected to lead to, any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, the
Shareholder shall tender pursuant to the Offer, and not withdraw, all of
the Subject Shares.
4. FURTHER ASSURANCES. The Shareholder will, from time to time,
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execute and deliver, or cause to be executed and delivered, such additional or
further transfers, assignments, endorsements, consents and other instruments as
Parent or Sub may reasonably request for the purpose of effectively carrying out
the transactions contemplated by this Agreement.
5. ASSIGNMENT. Neither this Agreement nor any of the rights,
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interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties, except that Sub may
assign, in its sole discretion, any or all of its rights, interests and
obligations hereunder to Parent or to any direct or indirect wholly owned
subsidiary of Parent. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns and, in the case of the Shareholder, the
heirs, executors and administrators of the Shareholder.
6. TERMINATION. Except as provided otherwise herein, this Agreement
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shall terminate upon the earlier of (i) the Effective Time (as defined in the
Merger Agreement) and (ii) the termination of the Merger Agreement in accordance
with its terms; provided, however, that this Agreement will not terminate until
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120 days after termination pursuant to clause (ii) immediately above if (A) the
Merger Agreement is terminated by Parent or Sub pursuant to
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Section 8.1(d) thereof, (B) the Merger Agreement is terminated by the Company
pursuant to Section 8.1(e) thereof or (C) unless the Company has terminated the
Merger Agreement pursuant to Section 8.1(f) or Section 8.1(g) thereof, prior to
the termination, a Takeover Proposal (as defined in the Merger Agreement) shall
have been commenced or the Company shall have entered into an agreement with
respect to, approved or recommended or taken any action to facilitate, a
Takeover Proposal.
7. GENERAL PROVISIONS.
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(a) Expenses. Each party hereto shall pay its own expenses incurred
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in connection with this Agreement, except as specified in the Merger
Agreement.
(b) Specific Performance. The parties hereto agree that irreparable
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damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall
be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in
any court of the United States or any state thereof having jurisdiction,
this being in addition to any other remedy to which they are entitled at
law or in equity. Each party hereby irrevocably submits to the exclusive
jurisdiction of the United States District Court for the Northern District
of Illinois in any action, suit or proceeding arising in connection with
this Agreement, and agrees that any such action, suit or proceeding shall
be brought only in such courts (and waives any objection based on forum non
conveniens or any other objection to venue therein). Each party hereto
waives any right to a trial by jury in connection with any such action,
suit or proceeding.
(c) Notice. All notices, requests, demands and other communications
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hereunder shall be deemed to have been duly given and made if in writing
and if served by personal delivery upon the party for whom it is intended
or if sent by telex or telecopier (and also confirmed in writing) to the
person at the address set forth below, or such other address as may be
designated in writing hereafter, in the same manner, by such person:
(i) if to Parent or Sub, to:
GE Fanuc Automation North America, Inc.
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Attention: President and CEO
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
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for overnight courier deliveries, to:
GE Fanuc Automation North America, Inc.
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Attention: Senior Vice President and General Counsel
with copies to:
GE Fanuc Automation North America, Inc.
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Attention: Senior Vice President and General Counsel
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and
Sidley & Austin
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Facsimile No.: 312- 853-7036
(ii) if to the Shareholder, to:
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Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
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Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
(d) Parties in Interest. This Agreement shall inure to the benefit
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of and be binding upon the parties named herein and their respective
successors and assigns. Nothing in this Agreement, expressed or implied, is
intended to confer upon any Person
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other than Parent, Sub or the Shareholder, or their permitted successors or
assigns, any rights or remedies under or by reason of this Agreement.
(e) Entire Agreement; Amendments. This Agreement contains the entire
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agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings, oral or written, with respect to such transactions. This
Agreement may not be changed, amended or modified orally, but only by an
agreement in writing signed by the party against whom any waiver, change,
amendment, modification or discharge may be sought.
(f) Headings. The section headings herein are for convenience only
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and shall not affect the construction of this Agreement.
(g) Counterparts. This Agreement may be executed in one or more
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counterparts, each of which, when executed, shall be deemed to be an
original and all of which together shall constitute one and the same
document.
(h) Governing Law. Except to the extent that the laws of the State of
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Illinois are mandatorily applicable to the Merger, this Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof.
(i) Capitalized Terms. Capitalized terms not otherwise defined in
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this Agreement shall have the meanings set forth in the Merger Agreement.
(j) Severability. If any term or other provision of this Agreement is
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invalid, illegal or incapable of being enforced by any rule of law, or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic and
legal substance of the transactions contemplated hereby are not affected in
any manner materially adverse to any party. Upon such determination that
any term or other provision is invalid, illegal or incapable of being
enforced, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated by this Agreement may be consummated as originally
contemplated to the fullest extent possible.
8. NO LIMITATIONS ON ACTIONS OF THE SHAREHOLDER AS A DIRECTOR.
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Notwithstanding anything to the contrary in this Agreement, nothing in this
Agreement is intended or shall be construed to require the Shareholder to take
or in any way limit any action that the Shareholder may take to discharge the
Shareholder's fiduciary duties as a director of the Company.
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IN WITNESS WHEREOF, each of Parent, Sub and the Shareholder has caused
this Agreement to be signed by its officer thereunto duly authorized and the
Shareholder has signed this Agreement, all as of the date first written above.
GE FANUC AUTOMATION NORTH
AMERICA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and CEO
ORION MERGER CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
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SHAREHOLDER
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Number of shares of Common Stock owned by the
Shareholder on the date hereof:
1,728,721
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