EXHIBIT (d)(2)
PLAN OF MERGER
PLAN OF MERGER ("Plan of Merger") by and between Ironbridge Acquisition
Corp, a Pennsylvania corporation ("Purchaser"), and Pitt-Des Moines, Inc., a
Pennsylvania corporation (the "Company").
RECITALS
WHEREAS, Ironbridge Holding LLC, a Delaware limited liability company
and sole shareholder of Purchaser ("Ironbridge"), Purchaser and the Company have
entered into a Merger Agreement, dated as of February 1, 2002 (the "Merger
Agreement"); and
WHEREAS, the parties intend that Purchaser merge with and into the
Company (the "Merger") in accordance with the provisions of the Pennsylvania
Business Corporation Law of 1988, as amended (the "BCL"); and
WHEREAS, the Board of Directors of Purchaser has approved and adopted,
and deems advisable and in the best interests of its shareholder, this Plan of
Merger and the transactions contemplated hereby pursuant to Section 1922 of the
BCL on ___________, 2002 and the sole shareholder of Purchaser approved and
adopted this Plan of Merger pursuant to Section 1924(a) of the BCL on
___________, 2002; and
WHEREAS, the Board of Directors of the Company has approved this Plan
of Merger pursuant to Section 2539(1) of the BCL; and
WHEREAS, the Board of Directors of Purchaser, on behalf of Purchaser in
its capacity as the owner of at least 80% of the outstanding shares of each
class of the Company, has approved and adopted this Plan of Merger on behalf of
PDM pursuant to Section 1924(b) of the BCL.
WHEREAS, any terms not defined in this Plan of Merger shall have the
meanings set forth in the Merger Agreement.
NOW THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, and
intending to be legally bound, Purchaser and the Company agree as follows:
1. The Merger.
At the Effective Time, upon the terms and subject to the conditions set
forth in this Plan of Merger and the Merger Agreement and in accordance with the
BCL, Purchaser shall be merged with and into the Company, the separate existence
of Purchaser shall cease, and the Company shall continue as the surviving
corporation (the "Surviving Corporation"). The Merger shall have the effects as
provided by Section 1929 of the BCL and other applicable law.
2. Effective Time.
The Merger shall become effective at such time (the "Effective Time")
as the Articles of Merger are duly filed in the Department of State of the
Commonwealth of Pennsylvania in accordance with the BCL (the "Merger Filing").
3. Articles and By-laws of Surviving Corporation.
The Articles of Incorporation of Purchaser as in effect immediately
prior to the Effective Time shall be the Articles of Incorporation of the
Surviving Corporation, except that the name of the Surviving Corporation
initially shall be "Pitt-Des Moines, Inc.", and thereafter such Articles of
Incorporation may be amended in accordance with their terms and as provided in
the BCL; provided, however, that Parent, Purchaser and the Company agree that
(a) no later than the 30th day after the Effective Time, the Articles of
Incorporation of the Surviving Corporation shall be amended to change the name
of the Surviving Corporation to a name that does not include the words "Pitt-Des
Moines" or the initials "PDM" or any similar words or letters, (b) for a period
of 180 days after such time as the name of the Surviving Corporation is so
amended, the Surviving Corporation shall have the right to use the words
"Pitt-Des Moines" and the initials "PDM" as its tradename, but only for the
purposes of managing the remaining assets of the Surviving Corporation and
identifying itself as the appropriate business entity in dealing with third
parties to facilitate the sale of any of such assets and not for any other
purpose, including, without limitation, use of "Pitt-Des Moines" or "PDM" as a
trademark for the purpose of marketing or promoting any product or service, and
(c) notwithstanding anything to the contrary in the foregoing, any subsidiary of
the Surviving Corporation may continue to use the initials "PDM" in its
corporate name or in any tradename in the conduct of its business for a period
of one year from the Effective Time.
The By-laws of Purchaser as in effect immediately prior to the
Effective Time shall be the By-laws of the Surviving Corporation, and thereafter
may be amended in accordance with their terms and as provided by the Articles of
Incorporation of the Surviving Corporation and the BCL.
4. Directors and Officers of Surviving Corporation.
The directors of Purchaser immediately prior to the Effective Time
shall be the initial directors of the Surviving Corporation, each to hold office
in accordance with the Articles of Incorporation and By-laws of the Surviving
Corporation.
Except as otherwise agreed, the officers of Purchaser in office
immediately prior to the Effective Time shall be the officers of the Surviving
Corporation, to serve in accordance with the By-laws of the Surviving
Corporation until their respective successors are duly elected or appointed and
qualified. Prior to the Effective Time, the officers of the Company shall have
tendered their respective resignations, which such resignations shall be
expressly conditional upon the consummation of the Merger and shall take effect
automatically as of the Effective Time, without any further act of the Surviving
Corporation.
5. Conversion of Company Shares in the Merger.
At the Effective Time, by virtue of the Merger and without any action
on the part of any holder of any capital stock of the Company:
(A) each issued and outstanding share of common stock, no par value, of
the Company (individually a "Share" and collectively the "Shares")
which is issued and outstanding immediately prior to the Effective
Time other than Shares held by Ironbridge or any subsidiary of
Ironbridge or held in treasury by the Company or any subsidiary of
the Company, subject to the provisions hereof, shall be
automatically canceled and extinguished and converted automatically
into the right to receive an amount equal to $33.90 per Share in
cash (the "Merger Consideration") payable, without interest, to the
holder of such Share, upon surrender, in the manner provided below,
of the certificate that formerly evidenced such Share; and
(B) each Share owned by Ironbridge or any subsidiary of Ironbridge or
held in treasury by the Company or any subsidiary of the Company
immediately prior to the Effective Time shall be canceled and shall
cease to exist from and after the Effective Time.
6. Conversion of Purchaser Shares.
At the Effective Time, by virtue of the Merger and without any action
on the part of Ironbridge as the sole shareholder of Purchaser, each issued and
outstanding share of common stock, par value $0.01 per share, of Purchaser
("Purchaser Common Stock") shall be converted into one share of common stock, no
par value per share, of the Surviving Corporation.
7. Exchange of Certificates.
(A) From and after the Effective Time, each holder of an outstanding
certificate that immediately prior to the Effective Time
represented Shares shall be entitled to receive in exchange
therefor, upon surrender thereof to the Exchange Agent, the Merger
Consideration to which such holder is entitled pursuant to this
Plan of Merger. Notwithstanding any other provision of this Plan of
Merger, without regard to when such certificates representing
Shares are surrendered for exchange as provided herein, no interest
shall be paid on any payment of the Merger Consideration.
(B) If any Merger Consideration is to be issued in a name other than
that in which the certificate for Shares surrendered in exchange
therefor is registered, it shall be a condition of such exchange
that the person requesting such exchange shall (i) deliver the
certificate representing such Shares to the Exchange Agent properly
endorsed or accompanied by appropriate stock powers and otherwise
in proper form for transfer and (ii) pay any transfer or other
taxes required by reason of the issuance of such Merger
Consideration in a name other than that of the registered holder of
the certificate surrendered, or shall establish to the satisfaction
of Ironbridge that such tax has been paid or is not applicable.
(C) Promptly after the Effective Time, the Exchange Agent shall mail to
each holder of record of a certificate or certificates that
immediately prior to the Effective Time represented outstanding
Shares (the "Company Certificates") (i) a form letter of
transmittal (which shall specify that delivery shall be effected,
and risk of loss and title to the Company Certificates shall pass,
only upon actual delivery of the Company Certificates to the
Exchange Agent) and (ii) instructions for use in effecting the
surrender of the Company Certificates in exchange for the
applicable Merger Consideration. Upon surrender of Company
Certificates for cancellation to the Exchange Agent, together with
a duly executed letter of transmittal and such other documents as
the Exchange Agent shall reasonably require, the holder of such
Company Certificates shall be entitled to receive in exchange
therefor the applicable Merger Consideration into which the Shares
theretofore represented by the Company Certificates so surrendered
shall have been converted pursuant to the provisions of this Plan
of Merger, and the Company Certificates so surrendered shall
forthwith be canceled. Notwithstanding the foregoing, neither the
Exchange Agent nor any party hereto shall be liable to a holder of
Shares for Merger Consideration delivered to a public official
pursuant to applicable abandoned property, escheat or similar laws.
(D) Promptly following the date which is nine months after the
Effective Date, the Exchange Agent shall deliver to Ironbridge all
cash, certificates and other documents in its possession relating
to the transactions described in this
Agreement, and the Exchange Agent's duties shall terminate.
Thereafter, each holder of a Company Certificate may surrender such
Company Certificate to the Surviving Corporation and (subject to
applicable abandoned property, escheat and similar laws) receive in
exchange therefor the Merger Consideration, without any interest
thereon. Notwithstanding the foregoing, none of the Exchange Agent,
Ironbridge, Purchaser, the Company or the Surviving Corporation
shall be liable to a holder of Shares for any Merger Consideration
delivered to a public official pursuant to applicable abandoned
property, escheat and similar laws.
(E) In the event any Company Certificate shall have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the
person claiming such Company Certificate to be lost, stolen or
destroyed, the Surviving Corporation shall issue in exchange for
such lost, stolen or destroyed Company Certificate the Merger
Consideration deliverable in respect thereof determined in
accordance with this Plan of Merger. When authorizing such payment
in exchange therefor, the Board of Directors of the Surviving
Corporation may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or
destroyed Company Certificate to give the Surviving Corporation a
bond in such sum as it may direct or otherwise give such indemnity
as it may reasonably direct as protection against any adverse claim
that may be made against the Surviving Corporation with respect to
the Company Certificate alleged to have been lost, stolen or
destroyed.
(F) Notwithstanding any provision of this Agreement to the contrary,
any Shares held by a holder who has demanded and perfected his
right for payment of the fair value of such Shares in accordance
with Subchapter D of Chapter 15 of the BCL and who, as of the
Effective Time, has neither effectively withdrawn nor lost such
right to payment, shall not be converted into or represent a right
to receive the Merger Consideration but the holder thereof shall
only be entitled to such rights as are granted by the BCL.
(G) Notwithstanding the provisions of the immediately preceding
subsection (F), if any holder of Shares who demands payment of the
fair value of such Shares under the BCL shall effectively withdraw
or lose (through failure to perfect or otherwise) his right to
appraisal rights, then, as of the later of the Effective Time or
the occurrence of such event, such holder's Shares shall
automatically be converted into and represent only the right to
receive the Merger Consideration as provided in this Plan of
Merger, without interest thereon, upon surrender of the certificate
or certificates representing such Shares.
(H) The Company shall give Parent (i) prompt notice of any written
notice of dissent, written demands for payment of the fair value of
any Shares, withdrawals of such demands, and any other instruments
served pursuant to the BCL and received by
the Company and (ii) the opportunity to direct all negotiations and
proceedings with respect to demands for payment of the fair value under
the BCL. The Company shall not, except with the prior written consent
of Parent, voluntarily make any payment with respect to any demands for
payment of the fair value of any Shares or offer to settle any such
demands.
8. Closing of the Company's Transfer Books.
At and after the Effective Time, holders of Shares shall cease to have
any rights as shareholders of the Company, except for the right to receive the
applicable Merger Consideration pursuant to this Plan of Merger or, if
applicable, the fair value of such Shares pursuant to Section 7(F) hereof. At
the Effective Time, the stock transfer books of the Company shall be closed and
no transfer of Shares which were outstanding immediately prior to the Effective
Time shall thereafter be made.
9. Treatment of Stock Options.
The Company shall cause, immediately prior to the Effective Time, each
then outstanding option to purchase Shares theretofore granted under any stock
option plan or agreement in effect with respect to Shares to either be exercised
(whether or not such option is vested or immediately exercisable) or to be
extinguished by virtue of the Merger if it has not been exercised prior to the
Merger. The Company may provide for the "cashless" exercise of options by
advancing the funds necessary for the exercise to be repaid out of the Merger
Consideration.
10. Multiple Counterparts; Titles.
For the convenience of the parties hereto and to facilitate the
required filing of documents, any number of counterparts of this Plan of Merger
may be executed, and each such counterpart shall be deemed to be an original
instrument.
The titles of the Sections of this Plan of Merger are inserted for
convenience of reference and shall not affect the meaning of the terms hereof.
11. Termination.
This Plan of Merger will terminate upon, and be of no further force or
effect following, any termination of the Merger Agreement in accordance with its
terms. This Plan of Merger may be terminated by an agreement in writing executed
by all parties hereto.
12. Amendments.
Prior to the Effective Time, the Board of Directors of Purchaser may
amend this Plan of Merger.
