FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
EXHIBIT
2.1
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER
This First Amendment To Agreement and Plan of Merger (the “Amendment”) is
made and entered into on this
13th day of May, 2010, by and among Portec Rail Products, Inc., a West
Virginia corporation (the “Company”), X. X. Xxxxxx Company, a Pennsylvania corporation
(“Parent”), and Xxxxxx Xxxxxx Company, a West Virginia corporation and wholly owned
subsidiary of Parent (“Acquisition Co.”).
INTRODUCTION
A. The Company, Parent and Acquisition Co. have previously entered into an Agreement and Plan
of Merger, dated as of February 16, 2010 (the “Agreement”), whereby it has been agreed that
Acquisition Co. will make a cash tender offer to acquire all of the Company’s outstanding shares of
common stock, $1.00 par value per share, upon the terms and conditions set forth in the Agreement
and the offer documents filed with the Securities and Exchange Commission by Parent and Acquisition
Co.
B. Additionally, the boards of directors of each of the Company, Parent and Acquisition Co.
have approved a merger of Acquisition Co. with and into the Company, with the Company as the
surviving corporation, upon the terms and conditions set forth in the Agreement.
C. Following the execution of the Agreement, the parties received a request for additional
information from the Antitrust Division of the Department of Justice (“DOJ”) under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended.
D. Following discussions with the DOJ, the Company, Parent and Acquisition Co. desire to enter
into a letter agreement with the DOJ related to the timing of certain notices to be made to the DOJ
and the closing of the transactions contemplated by the Agreement (the “Timing Agreement”).
E. Additionally, the parties desire to extend the Drop Dead Date, as such term is defined in
the Agreement, to accommodate the execution of the Timing Agreement.
AGREEMENT
Now, Therefore, in consideration of the foregoing premises hereby made a part of this
Amendment, the mutual covenants and agreements contained herein, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound subject to the satisfaction of the conditions set forth herein,
hereby agree as follows:
1. The Agreement is hereby amended in all respects necessary such that the execution and delivery
of the Timing Agreement by the Company and Parent and the actions taken by the parties pursuant to
the Timing Agreement shall not in any way be deemed to be a breach of the
Agreement or any representation, warranty or covenant contained therein, including, but not limited
to those representations and warranties contained in Section 4.3 of the Agreement.
2. The Drop Dead Date, as defined in Section 8.1(c) of the Agreement is hereby amended such that
the Drop Dead Date shall now mean “the close of business on August 31, 2010”.
3. Parent and Acquisition Co. hereby irrevocably and unconditionally waive the provisions in
Section 5.3(b)(i) of the Agreement for purposes of representatives of the Company contacting
representatives of Ameridan Resources LLC to determine whether Ameridan Resources LLC is
considering a current offer to acquire all or substantially all of the voting securities of the
Company and, if so, the terms of such offer. Nothing herein shall constitute a waiver of any of
the Company’s obligations under the Agreement, including Section 5.3, with respect to any
Alternative Transaction Proposal.
4. Except as specifically amended herein, the Agreement and all other documents, instruments and
agreements executed and/or delivered in connection therewith, shall remain in full force and
effect, and are hereby ratified and confirmed.
5. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns and shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania, without regard to any conflicts of laws principles
thereto that would call for the application of the laws of another jurisdiction.
6. This Amendment may be executed in counterparts, each of which shall be deemed an original and
all of which shall constitute one and the same instrument. Signatures delivered by means of
facsimile, “.pdf” or other electronic transmission shall be valid and binding to the same extent as
the delivery of original signatures.
[Remainder of page intentionally left blank]
2
In Witness Whereof, the parties have caused this First Amendment to Agreement and
Plan of Merger to be executed as of the date first above written.
| COMPANY: PORTEC RAIL PRODUCTS, INC. |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Its: | Chairman of the Board | |||
| PARENT: X. X. XXXXXX COMPANY |
||||
| By: | /s/ Xxxx Xxxxxxxxxxx | |||
| Its: | President and Chief Executive Officer | |||
| ACQUISITION CO.: XXXXXX XXXXXX COMPANY |
||||
| By: | /s/ Xxxx Xxxxxxxxxxx | |||
| Its: | President and Chief Executive Officer | |||
