SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit (a) (5) (T)
SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This Second Amendment to Agreement and Plan of Merger (“Second Amendment”) is made and entered into on this 30th day of August, 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 “Merger 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 Merger Agreement and the offer documents filed with the Securities and Exchange
Commission by Parent and Acquisition Co.
B. Following the execution of the Merger 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, and entered into a
First Amendment to the Merger Agreement dated as of May 13, 2010 (the “First Amendment”) in
order to enter into a Timing Agreement with the DOJ and to extend the Drop Dead Date among other
matters.
C. The parties have been unable to obtain federal antitrust clearance and believe that the DOJ
will object to the acquisition of the Company by Parent unless the acquisition is conditioned upon
the divestiture of certain lines of business whose products are manufactured in the Company’s
Huntington, West Virginia plant.
D. In order to close the Offer and complete the Merger, Parent and Acquisition Co. are willing
to agree with DOJ to condition the acquisition of the Company on the divestiture of certain lines
of business whose products are manufactured in the Company’s Huntington, West Virginia plant and
the Company is willing to further extend the Drop Dead Date in exchange for Parent agreeing both to
pay a fee to Company in the event that the Merger Agreement terminates, under certain
circumstances, after the Drop Dead Date and to increase the Per Share Amount.
AGREEMENT
Now, Therefore, in consideration of the foregoing premises hereby made a part of this
Agreement, 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. Defined Terms. Terms not defined herein shall have the meaning ascribed thereto
in the Merger Agreement as amended by the First Amendment.
2. Increase in Per Share Amount. Clause B of the Introduction in the Merger
Agreement is amended by replacing the amount $11.71 with the amount $11.80.
3. Amendment to Definition of Company Material Adverse Effect. Clause (ix) of the
proviso to the definition of Company Material Adverse Effect contained in Section 3.1(a) of the
Merger Agreement is hereby amended in its entirety to read as follows:
“(ix) any Permitted Divestiture (as hereafter defined) or any other divestiture by the
Company pursuant to Section 6.2 of this Agreement.”
4. Amendment to Section 6.5. The last sentence of Section 6.5 of the Merger
Agreement is hereby amended to read in its entirety as follows:
“Except for a Permitted Divestiture (as hereinafter defined), nothing contained in this
Section or in this Agreement shall obligate the Parent or Acquisition Co. to agree to hold
separate or to dispose of any assets or businesses of the Parent and its subsidiaries or of
the Company and its Subsidiaries.”
5. Amendment to Drop Dead Date. The Drop Dead Date, as defined in Section 8.1(c) of
the Merger Agreement is hereby amended such that the Drop Dead Date shall now mean “the close of
business on December 30, 2010. The parties agree, for purposes of clarity, that if the shares are
accepted for payment on or prior to December 31, 2010, the Offer will be considered by both parties
as completed as of December 31, 2010, and the tendering stockholders will be considered to be in
constructive receipt of the Per Share Amount as of December 31, 2010, regardless of whether the
stockholders or the transfer agent have actually received the Per Share Amount.”
6. Amendment to Section 8.3(e) and (h). Section 8.3(e) of the Merger Agreement is hereby
amended by the addition of the following sentence at the end thereof:
“If (u) this Agreement is terminated pursuant to Section 8.1(c), (v) the Minimum
Condition was satisfied as of the expiration of the Offer, (w) no order or decree was
entered by a court of competent jurisdiction after August 30, 2010 which enjoined the Offer
for any length of time in connection with a complaint, action or proceeding brought by one
or more shareholders of Company (including, without limitation, any shareholder derivative
action in the name or on behalf of Company), (x) Company was not at the time of termination
of this Agreement in breach of any representation or warranty of the Company contained in
this Agreement that is reasonably expected to result in a Company Material Adverse Effect or
in material breach of any covenant of the Company contained in this Agreement, (y) no
Company Superior Proposal has occurred, and (z) the Company had reasonably cooperated with
Parent in Parent’s efforts to effectuate a Permitted Divestiture or any other divestiture by
the Company pursuant to Section 6.2 of this Agreement (including taking all steps necessary
to authorize a Permitted Divestiture or any other divestiture by the Company pursuant to
Section 6.2 of this Agreement and, if requested by Parent, entering into an agreement with a
third party buyer to effectuate a
2
Permitted Divestiture or any other divestiture by the Company pursuant to Section 6.2 of
this Agreement and being prepared to consummate the transactions contemplated by such
agreement subject to the proviso set forth in Section 6.2 of this Agreement), then a fee in
immediately available United States Dollars in the amount of two million dollars
($2,000,000.00) shall be paid by the Parent to the Company within two (2) Business Days of
termination.”
Section 8.3(h) of the Merger Agreement is hereby amended by deleting and replacing in its
entirety the introductory phrase “If the Parent fails to pay when due the fee set forth at
Section 8.3(e)” with the phrase “If the Parent fails to pay when due a fee set forth in
Section 8.3(e)”.
7. Amendment to Tender Offer Conditions. Condition (h) of Annex I, Conditions of the
Offer, is hereby amended to read in its entirety as follows:
“(h) any antitrust regulator or body having decided to take, institute, implement or threaten
any action, proceeding, suit, investigation, enquiry or reference, or having required any action to
be taken or otherwise having done anything or having enacted, made or proposed any statute,
regulation, decision, order or change to published practice or there would be outstanding any
statute, regulation, decision or order which would or might:
| 1. | impose any limitation on, or result in a delay in, the ability of Parent or Acquisition Co. directly or indirectly to acquire or hold or to exercise effectively all or any rights of ownership in respect of shares or other securities (or the equivalent) in the Company or its Subsidiaries or on the ability of Parent directly or indirectly to hold or exercise effectively any rights of ownership in respect of shares or other securities (or the equivalent) in, or to exercise management control over, the Company or any of its Subsidiaries, other than in connection with a Permitted Divestiture (as hereafter defined), or | ||
| 2. | require Parent, Company or Acquisition Co. to divest any of their respective assets or businesses in connection with the Offer and the Merger or any of the transactions contemplated by the Agreement other than a Permitted Divestiture;” |
A new sentence is added at the end of the paragraph following condition (j) of Annex I, Conditions
of the Offer, which sentence reads in its entirety as follows:
3
“The term “Permitted Divestiture” shall mean the divestiture upon terms that are usual and
customary with respect to divestitures required by the DOJ, of (i) the Company’s Huntington, West
Virginia facility, (ii) the tangible assets used primarily in connection with the Company’s bonded
insulated rail joints (assemblies and kits), Thermabond insulated
joint kits, polyurethane coat insulated rail joints, end posts,
poly gage and tie plates, fiberglass (CyPly) joint kits, plastic
insulation joint kits and plastic and canvas insulated gage plates, standard joints,
compromise and transition joints, and Weldmate joint bars, and (iii) the Company’s intangible
assets used primarily in connection with, or necessary in the production of, the foregoing
products; but not including the tangible and intangible assets used in
connection with the lubrication and friction management business, the shipping systems division
business, the curv bloc business and the car repair business.
8. Consent to Communication with DOJ. In the event that Parent terminates the Merger
Agreement due to the failure of condition (h), as amended hereby, to be satisfied, Parent consents
to Company engaging in communications with DOJ regarding discussions which had occurred between
Parent and DOJ concerning divestiture of Company’s lines of business.
9. Miscellaneous.
(a) Except as specifically amended herein, the Merger Agreement as amended by the First
Amendment 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.
(b) 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.
(c) 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]
4
In Witness Whereof, the parties have caused this Second 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 | |||||||
