UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
The
Securities Exchange Act of 1934
Date of
Report (Date of Earliest Event Reported): February 16, 2010
L.B.
Foster Company
(Exact
Name of Registrant as Specified in its Charter)
Pennsylvania
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000-10436
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25-1324733
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(State or Other
Jurisdiction
of
Incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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415 Holiday Drive
Pittsburgh,
Pennsylvania
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15220
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant’s telephone number,
including area code: (412) 928-3417
N/A
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(Former
Name or Former Address, if Changed Since Last
Report)
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Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
¨ Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
þ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01
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Entry
into a Material Definitive
Agreement.
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On
February 16, 2010, L.B. Foster Company, a Pennsylvania corporation (“L.B.
Foster”), Foster Thomas Company, a West Virginia corporation and a wholly-owned
subsidiary of L.B. Foster (“Purchaser”), and Portec Rail Products, Inc., a West
Virginia corporation (“Portec” or the “Company”), entered into an Agreement and
Plan of Merger (the “Merger Agreement”).
Pursuant
to the terms of the Merger Agreement, Purchaser will commence a tender offer
(the “Offer”) for all of the issued and outstanding shares of common stock,
$1.00 par value per share (the “Company Common Stock”), of Portec at a price
equal to $11.71 per share of Company Common Stock (the “Shares”) net to the
seller in cash (the “Per-Share Amount”), without interest (and subject to
applicable withholding taxes). Upon the terms and subject to the conditions set
forth in the Merger Agreement, following a successful completion of the Offer,
Purchaser will be merged with and into Portec with Portec surviving the merger
as a wholly-owned subsidiary of L.B. Foster (the “Merger”). In the Merger, each
Share (other than Shares owned by L.B. Foster, Purchaser, or shareholders, if
any, who have perfected statutory dissenters’ rights under West Virginia law)
will be converted into the right to receive the Per-Share Amount, without
interest (and subject to applicable withholding taxes). The
consummation of the Merger is conditioned upon the receipt of necessary
approvals under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended.
The Offer
is conditioned upon, among other things, there being validly tendered and not
withdrawn prior to the expiration of the Offer that number of Shares, together
with any Shares then owned by L.B. Foster or Purchaser (including Shares subject
to the Tender Agreement, discussed below), that, immediately prior to acceptance
for payment pursuant to the Offer, represents at least sixty-five percent (65%)
of (a) the aggregate number of Shares outstanding immediately prior to
acceptance for payment, plus (b) the aggregate number of Shares issuable upon
the exercise of any option, warrant, other right to acquire capital stock of the
Company or other security exercisable for or convertible into Shares or other
capital stock of the Company, any of which is outstanding immediately prior to
acceptance for payment of Shares pursuant to the Offer (but excluding any Shares
acquired by L.B. Foster or Purchaser pursuant to the Top-Up Option discussed
below). Additional conditions to the Offer are set forth in Annex I to the
Merger Agreement.
Pursuant
to the Merger Agreement, the Company has granted to L.B. Foster and Purchaser an
irrevocable option (the “Top-Up Option”) to purchase at the Per-Share Amount
that certain number of Shares as is necessary for Purchaser to obtain ownership
of at least 90% of the Shares on an as-converted, fully-diluted basis. L.B.
Foster and Purchaser’s right to exercise the Top-Up Option expires upon the
earlier of (i) the fifth (5th)
business day after the later of the expiration date of the Offer and the
expiration of any subsequent offering period or (ii) the termination of the
Merger Agreement in accordance with its terms.
L.B.
Foster, Purchaser and Portec have made customary representations and warranties
in the Merger Agreement and agreed to certain customary covenants, including
covenants regarding operation of the business of Portec and its subsidiaries
prior to the closing and covenants prohibiting Portec from soliciting, or
providing information or entering into discussions concerning, or proposals
relating to alternative business combination transactions, except
in
limited
circumstances relating to unsolicited proposals that are, or could reasonably be
expected to result in, a proposal superior to the transactions contemplated by
the Merger Agreement.
A copy of
the Merger Agreement is attached hereto as Exhibit 2.1 and is incorporated by
reference herein. The foregoing description is only a summary of the
Merger Agreement and does not purport to be complete and is qualified in its
entirety by the Merger Agreement as attached.
Concurrently
with the execution of the Merger Agreement, L.B. Foster also entered into a
Tender and Voting Agreement, dated as of February 16, 2010 (the “Tender
Agreement”), with Purchaser and all of the directors and executive officers of
Portec (the “Shareholders”). As of February 16, 2010, the Shareholders
collectively owned 2,926,186 Shares, (approximately 30.47% of the Shares)
directly or through affiliates. The Shareholders have agreed to tender all of
the Shares that each of them owns, including any Shares which such Shareholder
acquires ownership of after the date of the Tender Agreement and prior to the
termination of the Tender Agreement, to Purchaser in the Offer. Furthermore,
each Shareholder has agreed, at any meeting of the shareholders of Portec, to
vote all Shares (a) in favor of adopting the Merger Agreement and any
transactions contemplated thereby, including the Merger, (b) against any
alternative transaction proposal and (c) against any action that would delay,
prevent or frustrate the Offer and the Merger and the related transactions
contemplated by the Merger Agreement.
A copy of
the form of Tender Agreement is attached hereto as Exhibit 10.1 and is
incorporated by reference herein. The foregoing description is only a
summary of the Tender Agreement and does not purport to be complete and is
qualified in its entirety by the Tender Agreement as attached.
Cautionary Note Regarding the Merger
Agreement
The
Merger Agreement has been included to provide investors with information
regarding its terms. It is not intended to provide any other factual information
about Portec, L.B. Foster or Purchaser. In particular, the
representations and warranties contained in the Merger Agreement were made only
for the purposes of the Merger Agreement as of the specific dates therein, and
were solely for the benefit of the parties to the Merger Agreement. The
representations and warranties contained in the Merger Agreement may be subject
to limitations agreed upon by the parties to the Merger Agreement and are
qualified by information in confidential disclosure schedules provided
by Portec in connection with the signing of the Merger Agreement. These
confidential disclosure schedules contain information that modifies, qualifies
and creates exceptions to the representations and warranties set forth in the
Merger Agreement. Moreover, certain representations and warranties in the Merger
Agreement may be subject to a standard of materiality provided for in the Merger
Agreement and have been used for the purpose of allocating risk
among Portec, L.B. Foster and Purchaser, rather than establishing
matters of fact. Information concerning the subject matter of the
representations and warranties may also change after the date of the Merger
Agreement, which subsequent information may not be fully disclosed in the
parties’ public disclosures. Accordingly, the representations and warranties in
the Merger Agreement may not constitute the actual state of facts
about Portec, L.B. Foster or Purchaser. Investors are not third
party beneficiaries under the Merger Agreement and should not rely on the
representations, warranties and covenants or any descriptions thereof
as
characterizations
of the actual state of facts or conditions of Portec, L.B.
Foster or Purchaser, or any of their respective subsidiaries or
affiliates.
Notice to
Investors
The Offer
for the outstanding Shares of Portec common stock described in this report has
not commenced. This report is neither an offer to purchase nor a solicitation of
an offer to sell securities. At the time the offer is commenced, the Purchaser
will file a tender offer statement on Schedule TO with the U.S. Securities
and Exchange Commission (the “SEC”), and Portec will file a
solicitation/recommendation statement on Schedule 14D-9, with respect to
the Offer. THE TENDER OFFER
STATEMENT (INCLUDING AN OFFER TO PURCHASE, A RELATED LETTER OF TRANSMITTAL AND
OTHER OFFER DOCUMENTS) AND THE SOLICITATION/RECOMMENDATION STATEMENT WILL
CONTAIN IMPORTANT INFORMATION THAT SHOULD BE READ CAREFULLY BEFORE ANY DECISION
IS MADE WITH RESPECT TO THE OFFER. Those materials will be made available
to Portec shareholders at no expense to them. In addition, all of those
materials (and all other offer documents filed with the SEC) will be available
at no charge on the SEC’s website: www.sec.gov. Free
copies of the tender offer (if and when available) and other documents filed
with the SEC can also be obtained by directing a request to L.B. Foster. Requests to L.B. Foster
should be made in writing to Jeff Kondis, Manager, Corporate Marketing, 415
Holiday Drive, Pittsburgh, Pennsylvania 15220 or by email to
[email protected].
Forward-Looking
Statements
This
report contains forward-looking statements that are based on management’s
current expectations, but actual results may differ materially due to various
factors. L.B. Foster cannot guarantee that the Merger will close or that L.B.
Foster will realize anticipated operational efficiencies following the Merger.
All statements other than statements of historical fact are statements that
could be deemed forward-looking statements, including the expected benefits and
costs of the transaction; management plans relating to the transaction; the
expected timing of the completion of the transaction; the ability to complete
the transaction; any statements of the plans, strategies and objectives of
management for future operations, including the execution of integration plans;
any statements of expectation or belief; and any statements of assumptions
underlying any of the foregoing. Risks, uncertainties and assumptions include
the possibility that expected benefits may not materialize as expected; that the
transaction may not be timely completed, if at all; that, prior to the
completion of the transaction, Portec's business may not perform as
expected due to transaction-related uncertainty or other
factors. L.B. Foster’s results may also be affected by such factors
as general economic conditions, sudden and/or sharp declines in steel prices,
adequate funding for infrastructure projects, production delays or problems
encountered at our manufacturing facilities, additional concrete tie defects and
the availability of existing and new piling and rail products. For additional
information about the factors that affect L.B. Foster’s and Portec’s businesses,
please see their latest Forms 10-K and Forms 10-Q. L.B. Foster undertakes no
duty to update forward-looking statements.
Item
7.01 Regulation
FD Disclosure.
On
February 17, 2010, L.B. Foster and Portec issued a joint press release
announcing execution of the Merger Agreement, the text of which is attached
hereto as Exhibit 99.1.
The
information in this Item 7.01, including the exhibit, is furnished and shall not
be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of
1934, or otherwise subject to liabilities under that section, and shall not be
deemed to be incorporated by reference into the filings of L.B. Foster under the
Securities Act of 1933, as amended, regardless of any general incorporation
language in such filings.
Item
9.01 Financial
Statements and Exhibits.
(d) Exhibits.
Exhibit
No. Description
2.1
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Agreement
and Plan of Merger, dated February 16, 2010, by and among L.B. Foster
Company, Foster Thomas Company and Portec Rail Products,
Inc.
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The
following schedules to the Agreement and Plan of Merger have been
omitted:
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Schedule
3.2(b)
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Stock
Option Plan
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Schedule
3.3
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Subsidiaries
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Schedule
3.6
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Non-Contravention
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Schedule
3.8
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SEC
Filings; Adequate Controls
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Schedule
3.9
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Assets
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Schedule
3.10
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Undisclosed
Liabilities
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Schedule
3.11
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Permits
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Schedule
3.12
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Legal
Proceedings
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Schedule
3.13
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Intellectual
Property
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Schedule
3.13(c)
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Intellectual
Property
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Schedule
3.14
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Contracts
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Schedule
3.15
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Employee-Benefit
Plans
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Schedule
3.17
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Taxes
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Schedule
3.18
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Insurance
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Schedule
3.20
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Related
Party and Affiliate Transactions
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Schedule
3.23
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Financial
Advisory Fees
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Schedule
3.25(a)
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Real
Property
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Schedule
3.25(b)
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Leased
Property
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Schedule
3.26
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Environmental
Matters
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Schedule
3.27(c)
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Labor
Matters
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Schedule
5.2
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Payments
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Schedule
9.3
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Knowledge
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L.B.
Foster hereby agrees to furnish a copy of the omitted schedules to the SEC
upon request.
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10.1
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Form
of Tender and Voting Agreement, dated February 16, 2010, by and among L.B.
Foster Company, Foster Thomas Company and the following
persons for the indicated number of shares of Portec Rail
Products, Inc.:
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Shareholder
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Shares
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Philip
E. Cline
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149,451
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Louis
J. Akers Jr.
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5,000
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John
S. Cooper
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19,000
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Shirley
M. Cooper
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38,000
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A.
Michael Perry
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0
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Marshall
T. Reynolds
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1,033,318
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Philip
Todd Shell
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11,000
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Kirby
J. Taylor
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20,500
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Thomas
W. Wright
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178,379
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Neal
W. Scaggs
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242,246
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Gates
Mill Family Partnership
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46,000
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TVI
Corp.
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699,446
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Doug
Reynolds
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413,646
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John
N. Pesarsick
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3,000
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Richard
J. Jarosinski
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17,200
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K.
Papazoglou
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43,000
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H.
Duffy
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7,000
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99.1
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Joint
Press Release issued by L.B. Foster Company and Portec Rail Products, Inc.
dated February 17, 2010.
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Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
L.B.
Foster Company
Date: February
17,
2010 By:
/s/ David J.
Russo
David J. Russo
Senior Vice President,
Chief Financial Officer and
Treasurer
Exhibit
Index
Exhibit
No. Description
2.1
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Agreement
and Plan of Merger, dated February 16, 2010, by and among L.B. Foster
Company, Foster Thomas Company and Portec Rail Products,
Inc.
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10.1
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Form
of Tender and Voting Agreement, dated February 16, 2010, by and among L.B.
Foster Company, Foster Thomas Company and the following
persons for the indicated number of shares of Portec Rail
Products, Inc.:
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Shareholder
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Shares
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Philip
E. Cline
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149,451
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Louis
J. Akers Jr.
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5,000
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John
S. Cooper
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19,000
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Shirley
M. Cooper
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38,000
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A.
Michael Perry
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0
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Marshall
T. Reynolds
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1,033,318
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Philip
Todd Shell
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11,000
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Kirby
J. Taylor
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20,500
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Thomas
W. Wright
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178,379
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Neal
W. Scaggs
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242,246
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Gates
Mill Family Partnership
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46,000
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TVI
Corp.
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699,446
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Doug
Reynolds
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413,646
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John
N. Pesarsick
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3,000
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Richard
J. Jarosinski
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17,200
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K.
Papazoglou
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43,000
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H.
Duffy
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7,000
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99.1
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Joint
Press Release issued by L.B. Foster Company and Portec Rail Products, Inc.
dated February 17, 2010.
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