UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
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Westinghouse Air Brake Technologies Corporation
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(Name of Issuer)
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Common Stock, $0.01 Par Value Per Share
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(Title of Class of Securities)
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929740108
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(CUSIP Number)
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Christoph A. Pereira
Vice President, Chief Risk Officer and Chief
Corporate Counsel
General Electric Company
41 Farnsworth Street
Boston, Massachusetts 02210
617-433-2952
With a Copy to
:
William L. Taylor
Michael Kaplan
John B. Meade
Lee Hochbaum
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Telephone: (212) 450-4000
Facsimile: (212) 701-5800
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(Name, Address and Telephone Number of Person
Authorized to
Receive Notices and Communications)
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August 9, 2019
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(Date of Event which Requires Filing of this Statement)
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If the
filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D,
and is filing this schedule because of §§240.13d-1(e), 240.13d-l(f) or 240.13d-l(g), check the following box.
o
Note: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See § 240.13d-7(b) for other parties to whom copies are to be sent.
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*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
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The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
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Schedule
13D
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CUSIP No. 929740108
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Page 2 of 9 Pages
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1
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Names of Reporting Person
General Electric Company
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2
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Check the Appropriate Box if a Member of a Group
(a)
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(b)
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3
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SEC Use Only
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4
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Source of Funds
OO
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5
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Check if Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e)
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o
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6
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Citizenship or Place of Organization
New York
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7
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Sole Voting Power
2,048,515 (1)(2)
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8
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Shared Voting Power
-0-
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9
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Sole Dispositive Power
2,048,515 (1)(2)
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10
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Shared Dispositive Power
-0-
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11
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Aggregate Amount Beneficially Owned by Each Reporting Person
2,048,515 (1)
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12
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares
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13
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Percent of Class Represented by Amount in Row (11)
1.1% (1)
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14
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Type of Reporting Person (See Instructions)
CO
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_______________
(1)
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See Item 5 of this Schedule 13D (as defined below).
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(2)
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As described in further detail in Item 6 of this Schedule 13D (as defined below), General Electric Company is subject to a lock-up until September 6, 2019.
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SCHEDULE 13D
EXPLANATORY NOTE
This Amendment No. 2 (this “
Amendment
No. 2
”) to the Statement of Beneficial Ownership on Schedule 13D (the “
Schedule 13D
”) amends and supplements
the Schedule 13D (the “
Original Schedule 13D
”), as filed with the Securities and Exchange Commission (the “
SEC
”)
on March 7, 2019 by General Electric Company, a corporation incorporated under the laws of the State of New York (“
GE
”
or the “
Reporting Person
”), with respect to shares of common stock, $0.01 par value per share (the “
Common
Stock
”), of Westinghouse Air Brake Technologies Corporation, a Delaware corporation (“
Wabtec
” or the
“
Issuer
”), as amended by Amendment No. 1 (“
Amendment No. 1
”) filed with the SEC on May 7,
2019 (the Original Schedule 13D and Amendment No. 1, collectively, the “
Amended Schedule 13D
”). Except as specifically
provided herein, this Amendment No. 2 does not modify any of the information previously reported in the Amended Schedule 13D. Capitalized
terms used but not defined in this Amendment No. 2 shall have the same meanings ascribed to them in the Amended Schedule 13D. As
set forth below, as a result of the transactions described herein, on August 9, 2019, the Reporting Person ceased to be the beneficial
owner of more than five percent of the Shares. The filing of this Amendment represents the final amendment to the Schedule 13D
and constitutes an exit filing for the Reporting Person.
Item 2. Identity and Background
Schedule I to this Schedule 13D is hereby
amended and restated in its entirety in the form attached hereto, which is incorporated herein by reference.
Item 4. Purpose of Transaction.
The second paragraph of Item 4 is hereby amended and restated
as follows:
In addition to the Merger Agreement and
Separation Agreement, on February 25, 2019, GE, SpinCo, Wabtec and Merger Sub entered into a letter agreement (the “
Letter
Agreement
”) relating to GE’s right to designate up to three individuals (the “
New Board Designees
”)
for appointment to the board of directors of Wabtec (the “
Wabtec Board
”) as contemplated by the Merger Agreement.
Subject to certain withdrawal and confirmation rights of GE, and to Wabtec’s approval right (acting through the Nomination
and Corporate Governance Committee of the Wabtec Board as described below), each as set forth in the Letter Agreement, (i) the
first New Board Designee will be appointed by March 27, 2019, (ii) the second New Board Designee will be appointed by August 25,
2019 and (iii) the third New Board Designee will be appointed by February 25, 2020; provided that GE’s right to designate
a third New Board Designee is conditioned upon GE owning on February 25, 2020 a portion of the Common Stock and/or the Convertible
Preferred Stock it received in the Merger in respect of the SpinCo Class C preferred stock. Each New Board Designee is required
to qualify as an independent director under the rules of the New York Stock Exchange and be reasonably acceptable to the Nomination
and Corporate Governance Committee of the Wabtec Board. Ann Klee was selected as the first New Board Designee and is expected to
join the Wabtec Board in the fourth quarter of 2019. At the direction of GE, (i) one New Board Designee will be assigned to the
class of directors that is up for reelection at the first annual meeting of Wabtec’s stockholders that occurs after the Merger,
(ii) one New Board Designee will be assigned to the class of directors that is up for reelection at the second annual meeting of
Wabtec’s stockholders that occurs after the Merger and (iii) one New Board Designee will be assigned to the class of directors
that is up for reelection at the third annual meeting of Wabtec’s stockholders that occurs after the Merger. Further, if
any New Board Designee becomes a member of the Wabtec Board after the date that is six months prior to the date of Wabtec’s
next annual meeting of stockholders after he or she becomes a member of the Wabtec Board (for such New Board Designee, the “
Next
Stockholders Meeting
”) and prior to the date on which Wabtec commences mailing its proxy statement for such Next Stockholders
Meeting (the “
Next Proxy Mailing Date
”), then such New Board Designee may require Wabtec to (i) nominate such
New Board Designee for election at the Next Stockholders Meeting, (ii) recommend that Wabtec’s stockholders vote in favor
of the election of such New Board Designee and (iii) use no less rigorous efforts to support the election of such New Board Designee
than the efforts used to support each other nominee of the Wabtec Board up for election at the Next Stockholders Meeting. If any
New Board Designee becomes a member of the Wabtec Board after the Next Proxy Mailing Date and prior to the date of the Next Stockholders
Meeting, then such New Board Designee may require Wabtec to cause such New Board
Designee to be re-appointed to the Wabtec Board as of immediately following the Next Stockholders Meeting (and to be re-assigned
to the class of directors that was elected at the Next Stockholders Meeting).
Item
4 is also hereby amended and supplemented by adding the following at the end:
On August 7, 2019, GE entered into an underwriting
agreement (the “
Second Underwriting Agreement
”) with Goldman Sachs & Co. LLC, as representative of the several
underwriters listed in Schedule I thereto (the “
Underwriters
”), relating to an underwritten secondary public
offering by GE of (i) 16,969,692 shares of Common Stock and (ii) 3,515,464 shares of Common Stock issuable upon the conversion
of approximately 1,219.9922 shares of Convertible Preferred Stock (the “
Second Offering
”). Under the terms of
the Second Underwriting Agreement, the Underwriters were granted a 30-day option period to purchase from GE up to an additional
2,048,515 shares of Common Stock.
In the aggregate, the Reporting Person sold
20,485,156 shares of Common Stock comprised of (i) 16,969,692 shares of Common Stock at a price of $70.325 per share, and (ii)
approximately 1,219.9922 shares of Convertible Preferred Stock at a price of $202,644.75058 per share (equal to the product of
(x) $70.325 per share of Common Stock issuable upon conversion of the Convertible Preferred Stock multiplied by (y) the conversion
rate of 2,881.5464), for aggregate net proceeds in the amount of $1,440,618,595.70 before deducting offering expenses. Immediately
following the settlement of the Second Offering, the Reporting Person held 2,048,515 shares of Common Stock. The Second Offering
was made pursuant to an automatic shelf registration statement (333-231125) filed by Wabtec with the Securities and Exchange Commission
on April 30, 2019. The Second Offering closed on August 9, 2019.
In connection with the Second Offering,
pursuant to the Second Underwriting Agreement and subject to specified exceptions, GE agreed for a period of 30 days from August
7, 2019 not to, without the consent of the representatives of the Underwriters, directly or indirectly, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or
warrant for the sale of, or otherwise dispose of or transfer any shares of Common Stock or any securities convertible into or exchangeable
or exercisable for Common Stock (other than the securities to be sold in the Second Offering) (collectively, the “
Lock-Up
Securities
”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or request the
filing of any registration statement of the Issuer in connection therewith, under the Securities Act of 1933, as amended, or (ii)
enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery
of Common Stock or other securities, in cash or otherwise (the “
Underwriters’ Lock-Up
”).
The foregoing description of the Second
Underwriting Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Second
Underwriting Agreement, which is attached hereto as Exhibit 1 and is incorporated herein by reference.
Item 5. Interest in Securities of the Issuer.
Items 5 (a) - (b) are hereby amended and
restated in their entirety as follows:
The information relating to the beneficial
ownership of Common Stock by the Reporting Person set forth in Rows 7 through 13 of the cover page hereto is incorporated by reference.
The Reporting Person is the beneficial owner of 2,048,515 shares of Common Stock. Such shares represent approximately 1.1% of the
shares of outstanding Common Stock. Such percentage is calculated based on a total of 191,670,594 shares of Common Stock (which
is comprised of 188,155,130 outstanding shares of Common Stock as of July 29, 2019 as set forth in the Form 10-Q filed by Westinghouse
Air Brake Technologies Corporation on August 1, 2019, plus the 3,515,464 shares of Common Stock issued on August 9, 2019 upon the
conversion of the 1,219.9922 shares of Convertible Preferred Stock sold in connection with the Second Offering).
To the Reporting Person’s knowledge,
the following persons beneficially own the shares of Common Stock set forth below:
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Sébastien M. Bazin, Director, General Electric Company, holds
0 shares of Common Stock;
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H. Lawrence Culp, Jr., Chief Executive Officer and Director, General
Electric Company, holds 3,213 shares of Common Stock;
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Francisco D’Souza, Director, General Electric Company, holds
813 shares of Common Stock;
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Edward P. Garden, Director, General Electric Company, holds 0 shares
of Common Stock;
1
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Thomas W. Horton, Director, General Electric Company, holds 0 shares
of Common Stock;
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Risa Lavizzo-Mourey, Director, General Electric Company, holds 80
shares of Common Stock;
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Catherine Lesjak, Director, General Electric Company, holds 0 shares
of Common Stock;
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Paula Rosput Reynolds, Director, General Electric Company, holds 84
shares of Common Stock;
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Leslie F. Seidman, Director, General Electric Company, holds 0 shares
of Common Stock;
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James S. Tisch, Director, General Electric Company, holds 19,013 shares
of Common Stock;
2
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L. Kevin Cox, Senior Vice President, Chief Human Resources Officer,
General Electric Company, holds 5 shares of Common Stock;
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Michael J. Holston, Senior Vice President, General Counsel & Secretary,
General Electric Company, holds 0 shares of Common Stock;
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David L. Joyce, Vice Chairman, General Electric Company, holds 3,037
shares of Common Stock;
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Jamie S. Miller, Senior Vice President and Chief Financial Officer,
General Electric Company, holds 0 shares of Common Stock;
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Kieran P. Murphy, Senior Vice President, General Electric Company,
holds 345 shares of Common Stock;
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Jérôme X. Pécresse, Senior Vice President, General
Electric Company, holds 209 shares of Common Stock;
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Russell Stokes, Senior Vice President, General Electric Company, holds
1,030 shares of Common Stock;
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Scott Strazik, Senior Vice President, General Electric Company, holds
565 shares of Common Stock; and
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_____________
1
This number would
include shares of Common Stock, if any, owned by the Trian Entities (as defined below). Trian Fund Management, L.P. (“
Trian
”),
an institutional investment manager, serves as the management company for Trian Partners, L.P., Trian Partners Master Fund, L.P.,
Trian Partners Master Fund (ERISA), L.P., Trian Partners Parallel Fund I, L.P., Trian Partners Strategic Investment Fund II, L.P.,
Trian Partners Strategic Investment Fund-A, L.P., Trian Partners Strategic Investment Fund-N, L.P., Trian Partners Strategic Investment
Fund-D, L.P., Trian Partners Strategic Fund-G II, L.P., Trian Partners Strategic Fund G-III, L.P., Trian Partners Co-Investment
Opportunities Fund, Ltd., Trian SPV (Sub) X, L.P., Trian Partners Strategic Fund-K, L.P. and Trian Partners Strategic Fund-C,
Ltd. (collectively, the “
Trian Entities
”) and as such determines the investment and voting decisions of the
Trian Entities with respect to shares of Common Stock held by them. Mr. Garden is a member of Trian Fund Management GP, LLC, which
is the general partner of Trian, and therefore is in a position to determine the investment and voting decisions made by Trian
on behalf of the Trian Entities. Accordingly, Mr. Garden may be deemed to indirectly beneficially own (as that term is defined
in Rule 13d-3 under the Exchange Act) any shares of Common Stock owned by the Trian Entities, although he would disclaim beneficial
ownership of any such shares for all other purposes.
2
This number consists
of 2,900 shares of Common Stock owned by a Tisch family trust and 16,113 shares of Common Stock owned by Loews Corporation, of
which Mr. Tisch is the CEO, the President, a director and a shareholder. Mr. Tisch disclaims beneficial ownership of the shares
owned by Loews Corporation except to the extent of his pecuniary interest, if any, in those shares.
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Thomas S. Timko, Vice President, Controller & Chief Accounting
Officer, General Electric Company holds 0 shares of Common Stock.
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Item
5 (c) is hereby amended and restated in its entirety as follows:
(c) Except as set forth in this Amendment
No. 2, neither the Reporting Person nor, to the knowledge of the Reporting Person, any of the persons set forth on Schedule I hereto
has effected any transaction in the shares of Common Stock during the past 60 days.
Item 6. Contracts, Arrangements, Understandings
or Relationships with Respect to Securities of the Issuer.
Item
6 is hereby amended and supplemented by adding the following at the end:
Pursuant to the Second Underwriting
Agreement, Wabtec waived the restriction on GE’s ability to sell, transfer or otherwise divest any (i) subject shares, (ii)
preferred shares or (iii) any other securities until November 1, 2019 (as provided for in the Shareholders Agreement, as a result
of the Offering that was consummated in May 2019) and consented to the number of shares sold in the Second Offering exceeding the
Subsequent Tranche Maximum (as defined in the Shareholders Agreement). In connection with the Second Offering, Wabtec also agreed
to waive any other restrictions on GE’s ability to sell, transfer or otherwise divest such shares, and GE has agreed to sell,
transfer or otherwise divest its remaining 2,048,515 shares of Common Stock by December 31, 2019, to the extent the Underwriters
do not exercise their option to purchase such shares in full.
Item 7. Material to be Filed as Exhibits.
Exhibit
Number
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Exhibit Name
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1.
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Underwriting Agreement, dated August 7, 2019, by and among Westinghouse Air Brake Technologies Corporation, General Electric Company and Goldman Sachs & Co. LLC, as representatives of the several underwriters listed in Schedule I thereto (incorporated by reference to Exhibit 1.1 to the Current Report on Form 8-K filed by Westinghouse Air Brake Technologies Corporation on August 9, 2019).
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SIGNATURE
After reasonable inquiry and to the best of my knowledge
and belief, I certify that the information set forth in this statement is true, complete and correct.
August 12, 2019
General Electric Company
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By:
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/s/ Christoph A. Pereira
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Name: Christoph A. Pereira
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Title: Vice President, Chief Risk Officer and Chief Corporate Counsel
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SCHEDULE I
dIRECTORS
AND EXECUTIVE OFFICERS OF
gENERAL eLECTRIC cOMPANY
The following table sets forth certain
information with respect to the directors and executive officers of General Electric Company. The business address of each director
and executive officer of General Electric Company is 41 Farnsworth Street, Boston, Massachusetts 02210.
Name
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Present Principal Occupation or
Employment
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Citizenship
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Sébastien M. Bazin
(Director)
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Chairman and CEO, AccorHotels
Paris, France
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France
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H. Lawrence Culp, Jr.
(Director and Chief Executive Officer)
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Chairman of the Board and Chief Executive Officer, General Electric
Company
Boston, Massachusetts
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United States
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Francisco D’Souza
(Director)
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Vice Chairman, Cognizant Technology
Solutions Corporation
Teaneck, New Jersey
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United States
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Edward P. Garden
(Director)
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Chief Investment Officer and Founding Partner, Trian Fund Management,
L.P.
New York, New York
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United States
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Thomas W. Horton
(Director)
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Partner, Global Infrastructure Partners
New York, New York
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United States
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Risa Lavizzo-Mourey
(Director)
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Professor, University of Pennsylvania
Philadelphia, Pennsylvania
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United States
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Catherine Lesjak
(Director)
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Former Chief Financial Officer, HP
Palo Alto, California
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Canada
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Paula Rosput Reynolds
(Director)
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President and Chief Executive Officer, PreferWest LLC
Seattle, Washington
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United States
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Leslie F. Seidman
(Director)
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Former Chairman, Financial Accounting Standards Board
Norwalk, Connecticut
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United States
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James S. Tisch
(Director)
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President and Chief Executive Officer, Loews Corporation
New York, New York
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United States
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Michael J. Holston
(Senior Vice President, General Counsel & Secretary)
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Senior Vice President, General Counsel & Secretary, General
Electric Company
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United States
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David L. Joyce
(Vice Chairman)
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Vice Chairman, General Electric Company;
President & CEO, GE Aviation
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United States
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L. Kevin Cox
(Senior Vice President, Chief Human Resources Officer)
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Senior Vice President, Chief Human Resources Officer, General
Electric Company
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United States
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Jamie S. Miller
(Senior Vice President, Chief Financial Officer)
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Senior Vice President and Chief Financial Officer,
General Electric Company
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United States
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Kieran P. Murphy
(Senior Vice President)
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Senior Vice President, General Electric Company;
President & CEO, GE Healthcare
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Ireland
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Jérôme X. Pécresse
(Senior Vice President)
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Senior Vice President, General Electric Company;
President & CEO, GE Renewable Energy
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France
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Russell Stokes
(Senior Vice President)
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Senior Vice President, General Electric Company;
President & CEO, GE Power Portfolio
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United States
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Scott Strazik
(Senior Vice President)
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Senior Vice President, General Electric Company;
CEO, GE Gas Power
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United States
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Thomas S. Timko
(Vice President, Controller & Chief Accounting Officer)
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Vice President, Controller & Chief Accounting Officer, General
Electric Company
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United States
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