UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 4)
PORTEC RAIL PRODUCTS, INC.
(Name of Subject Company (issuer))
FOSTER THOMAS COMPANY
(offeror)
a wholly-owned subsidiary of
L.B. FOSTER COMPANY
(parent of offeror)
(Names of Filing Persons (identifying status as offeror, issuer or other person))
Common Stock, $1.00 par value per share
(Title of Class of Securities)
736212101
(CUSIP Number of Class of Securities)
David Voltz
L.B. Foster Company
415 Holiday Drive
Pittsburgh, Pennsylvania 15220
(412)-928-3417
(Name, address, and telephone numbers of person authorized
to receive notices and communications on behalf of filing persons)
with a copy to:
Lewis U. Davis, Jr., Esq.
Buchanan Ingersoll & Rooney PC
One Oxford Centre
301 Grant Street, 20th Floor
Pittsburgh, PA 15219
(412) 562-8800
Calculation of Filing Fee
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Transaction valuation* |
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Amount of Filing Fee** |
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$114,067,450
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$8,133 |
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Estimated for purposes of calculating the amount of the filing fee only, in accordance with Rule
0-11 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The calculation of
the transaction valuation assumes a purchase price of $11.71 per share and the purchase of
9,741,029 shares of Portec common stock, which
is represented by (i) 9,602,029 outstanding shares of common stock; and (ii) 139,000 shares of
common stock that were issuable with respect to all outstanding options, in each case as provided
by Portec, as of the most recent practicable date. |
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The amount of the filing fee was calculated in accordance with Section 14(g)(3) of the Exchange
Act, and equals $71.30 per million dollars of the transaction valuation amount. |
þ Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the
filing with
which the offsetting fee was previously paid. Identify the previous filing by registration
statement number,
or the Form or Schedule and the date of its filing.
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Amount Previously Paid: $8,133
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Filing Party: L.B. Foster Company and Foster Thomas Company |
Form or Registration No.: Schedule TO-T
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Date Filed: February 26, 2010 |
o Check the box if the filing relates solely to preliminary communications made before the
commencement of
a tender offer.
Check the appropriate boxes below to designate any transactions to which the statement relates:
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third-party tender offer subject to Rule 14d-1. |
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issuer tender offer subject to Rule 13e-4. |
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going-private transaction subject to Rule 13e-3. |
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amendment to Schedule 13D under Rule 13d-2. |
Check the following box if the filing is a final amendment reporting the results of the tender
offer: o
TABLE OF CONTENTS
This Amendment No. 4 (“Amendment No. 4”) amends and supplements the Tender Offer Statement on
Schedule TO (as originally filed with the Securities and Exchange Commission on
February 26, 2010 and as amended by Amendment No. 1 thereto filed with the SEC on March 1, 2010,
Amendment No. 2 thereto filed with the SEC on March 3, 2010 and Amendment No. 3 thereto filed with
the SEC on March 8, 2010, the “Schedule TO”) by (i) Foster Thomas Company, a West Virginia
corporation (the “Purchaser”) and a wholly-owned subsidiary of L.B. Foster Company, a Pennsylvania
corporation (“Parent”), and (ii) Parent. The Schedule TO relates to the offer by the Purchaser to
purchase all of the outstanding shares of common stock, par value $1.00 per share (the “Shares”),
of Portec Rail Products, Inc., a West Virginia corporation (“Portec”), at a purchase price of
$11.71 per Share, net to the seller in cash, without interest thereon and less any applicable
withholding or stock transfer taxes, upon the terms and subject to the conditions set forth in the
Offer to Purchase dated February 26, 2010 (which, together with any amendments and supplements
thereto, collectively constitute the “Offer to Purchase”) and in the related Letter of Transmittal,
copies of which are filed with the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively.
Capitalized terms used and not otherwise defined in this Amendment No. 4 have the meanings assigned
to such terms in the Schedule TO or the Offer to Purchase. This Amendment No. 4 is being filed on
behalf of the Purchaser and Parent. Pursuant to General Instruction F to Schedule TO, the
information contained in the Offer to Purchase, including all schedules and annexes thereto, is
hereby expressly incorporated by reference in answers to Items 1 through 11 of the Schedule TO and
is supplemented by the information specifically provided for herein.
Item 11. Additional Information.
Items 5 and 11 of the Schedule TO are amended and supplemented to include the following:
The following paragraph is added to the end of Section 10 — “Background of the Offer; Past
Contacts or Negotiations with Portec” of the Offer to Purchase:
“On March 22, 2010, L.B. Foster and Portec received from the Antitrust Division a request for
additional information and documentary material (the “Second Request”) under the HSR Act
with respect to the Offer and the Merger. L.B. Foster expects to promptly respond to the Second
Request, and to continue to work cooperatively with the Antitrust Division as it conducts its
review of the transaction.”
Item 11 of the Schedule TO is further amended and supplemented to include the following:
The following paragraph is added to the end of Section 15 — “Legal Matters; Required
Regulatory Approvals” — “Federal Antitrust Laws” of the Offer to Purchase:
“On March 22, 2010, L.B. Foster and Portec issued a joint press release announcing that each
of L.B. Foster and Portec had received a formal Second Request for additional information and
documentary material from the Antitrust Division regarding the Offer and Merger. As a result of the
Second Request, the waiting period under the HSR Act during which the Antitrust Division is
permitted to review the proposed transaction has been extended until 11:59 p.m., Eastern Time, on
the 10th day after L.B. Foster’s compliance with the Second Request, or until 11:59 p.m., Eastern
Time, on the next business day following that date, if the 10th day falls on a weekend or federal
holiday. L.B. Foster and Portec expect to promptly respond to the Second Request, and to continue
to work cooperatively with the Antitrust Division as it conducts its review of the proposed
transaction. As a result of the Second Request, L.B. Foster and Purchaser presently intend to
extend the expiration time of the Offer from time to time if the HSR waiting period has not expired
at the then expiration time of the Offer. L.B. Foster and Purchaser do not have the right under the
merger agreement to unilaterally extend the expiration time of the Offer beyond June 15, 2010.”
Item 12. Exhibits.
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Exhibit Name |
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(a)(5)(I) |
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Press Release issued March 22, 2010 |