sc13d
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
PORTEC RAIL PRODUCTS, INC.
(Name of Issuer)
Common Stock, $1.00 par value
(Title of Class of Securities)
(CUSIP Number)
David Voltz
L.B. Foster Company
415 Holiday Drive
Pittsburgh, Pennsylvania 15220
(412)-928-3417
Copies to:
Lewis U. Davis, Jr., Esq.
Buchanan Ingersoll & Rooney PC
One Oxford Centre
301 Grant Street, 20th Floor
Pittsburgh, PA 15219
(412) 562-8800
(Name, Address and Telephone Number of Person Authorized
to
Receive Notices and Communications)
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of
Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. o
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (the Act) or otherwise
subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however,
see the Notes).
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CUSIP No. |
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736212101 |
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(1) |
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NAMES OF REPORTING PERSONS AND I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
L.B. Foster Company (IRS No. 25-1324733) |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a) o |
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(b) þ |
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(3) |
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SEC USE ONLY |
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(4) |
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SOURCE OF FUNDS |
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WC |
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(5) |
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
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CITIZENSHIP OR PLACE OF ORGANIZATION: |
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Pennsylvania
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(7) |
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SOLE VOTING POWER |
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NUMBER OF |
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182,850 |
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SHARES |
(8) |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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2,926,186* |
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EACH |
(9) |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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182,850 |
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WITH |
(10) |
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SHARED DISPOSITIVE POWER |
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2,926,186* |
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(11) |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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3,109,036 |
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(12) |
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o |
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N/A
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(13) |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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32.4%** |
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(14) |
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TYPE OF REPORTING PERSON (See Instructions) |
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CO |
* Represents the aggregate number of shares of common stock of Portec Rail Products, Inc., a West Virginia corporation (the "Company"), held by certain shareholders of the Company who have entered into a Tender and Voting Agreement, dated as of February 16, 2010, with L.B. Foster Company, a Pennsylvania corporation ("Parent") and Foster Thomas Company, a West Virginia corporation and a wholly-owned subsidiary of Parent ("Purchaser"), described herein. Such number does not include any Company Common Shares issuable upon the exercise of stock options to purchase 34,250 Company Common Shares held by shareholders of the Company, which shares would become subject to the Tender and Voting Agreement if the options were exercised. Parent and Purchaser expressly disclaim beneficial ownership as determined under Rule 13d-3 under the Securities Exchange Act of 1934, as amended, of any of the Company Common Shares (as defined in Item 1 herein) subject to the Tender and Voting Agreement.
** Based on 9,602,029 Company Common Shares outstanding, as represented by the Company in the Merger Agreement (as defined in Item 4 herein).
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CUSIP No. |
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(1) |
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NAMES OF REPORTING PERSONS AND I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Foster Thomas Company |
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(2) |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a) o |
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(b) þ |
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(3) |
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SEC USE ONLY |
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(4) |
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SOURCE OF FUNDS |
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AF |
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(5) |
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
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(6) |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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West Virginia
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(7) |
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SOLE VOTING POWER |
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NUMBER OF |
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-0- |
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SHARES |
(8) |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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2,926,186* |
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EACH |
(9) |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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-0- |
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WITH |
(10) |
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SHARED DISPOSITIVE POWER |
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2,926,186* |
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(11) |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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2,926,186 |
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(12) |
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |
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o
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(13) |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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30.5%** |
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TYPE OF REPORTING PERSON (See Instructions) |
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CO |
* Represents the aggregate number of shares of common stock of the Company held by certain shareholders of the Company who have entered into a Tender and Voting Agreement, dated as of February 16, 2010, with Parent and Purchaser. Such number does not include any Company Common Shares issuable upon the exercise of stock options to purchase 34,250 Company Common Shares held by shareholders of the Company, which shares would become subject to the Tender and Voting Agreement if the options were exercised. Parent and Purchaser expressly disclaim beneficial ownership as determined under Rule 13d-3 under the Securities Exchange Act of 1934, as amended, of any of the Company Common Shares (as defined in Item 1 herein) subject to the Tender and Voting Agreement.
** Based on 9,602,029 Company Common Shares outstanding, as represented by the Company in the Merger Agreement (as defined in Item 4 herein).
TABLE OF CONTENTS
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Item 1. Security and Issuer
This statement on Schedule 13D (this Schedule) relates to shares of common stock of Portec
Rail Products, Inc., a West Virginia corporation (the Company), $1.00 par value per share (the
Company Common Shares). The address and principal office of the Company is 900 Old Freeport
Road, Pittsburgh, PA 15238.
Item 2. Identity and Background.
(a) This Schedule 13D is being filed by L.B. Foster Company, a Pennsylvania corporation
(Parent), for and on behalf of itself and Foster Thomas Company, a West Virginia corporation and
a wholly-owned subsidiary of Parent (Purchaser).
(b) The principal executive offices of each of the Parent and the Purchaser are located at 415
Holiday Drive, Pittsburgh, PA 15220.
(c), (f) Parent is a manufacturer, fabricator and distributor of products and services for the
rail, construction, energy, utility and recreation markets. Purchaser is a newly formed West
Virginia corporation organized in connection with the Offer (as defined in Item 4 herein) and the
Merger (as defined in Item 4 herein) and has not conducted any activities other than in connection
with the Offer and the Merger. Until immediately prior to the time that Purchaser will purchase
Company Common Shares pursuant to the Offer, it is not anticipated that Purchaser will have any
significant assets or liabilities or engage in activities other than those incident to its
formation and capitalization and the transactions contemplated by the Offer and the Merger. All
outstanding shares of capital stock of Purchaser are owned by Parent.
The name, business address, present principal occupation or employment (including the name,
principal business and address of the corporation or other organization in which such employment is
conducted) and citizenship of each director and executive officer of Parent and the Purchaser are
set forth on Annex A hereto and are incorporated by reference herein.
(d), (e) During the past five years, neither Parent, Purchaser nor, to the best of their
knowledge, any person listed on Annex A attached hereto, has (i) been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors), or (ii) been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and as a result of such
proceeding was, or is, subject to a judgment, decree or final order enjoining future violations of,
or prohibiting or mandating activities subject to, federal or state securities laws, or finding any
violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
Neither Parent nor Purchaser has paid any consideration in connection with the execution of
the Merger Agreement or the Tender and Voting Agreement (as defined in Item 4 herein) to the
shareholders that are party to the Tender and Voting Agreement. Neither Parent nor Purchaser
expect to acquire any Company Common Shares pursuant to the Tender and Voting Agreement. Parent
and Purchaser expect to acquire all outstanding Company Common Shares pursuant to the Offer and the
Merger.
Purchaser
estimates that it will need approximately $124.5
million to purchase all of the Company
Common Shares pursuant to the Offer and the Merger, assume or pay off existing Company debt and pay
all related fees and expenses. Parent will provide the Purchaser with sufficient funds to purchase
all Company Common Shares properly tendered in the Offer and provide funding for Merger. The Offer
is not conditioned upon Parents or the Purchasers ability to finance the purchase of the Company
Common Shares pursuant to the Offer. Parent expects to obtain the necessary funds from cash on
hand. Parent does not anticipate a need for any alternative sources of financing for the Offer and
the Merger.
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Item 4. Purpose of the Transaction
On February 16, 2010, the Company, Parent and Purchaser entered into an Agreement and Plan of
Merger (the Merger Agreement). The Merger Agreement provides that Purchaser will offer to
purchase all of the issued and outstanding Company Common Shares (the Offer) at a purchase price
of $11.71 per share, net to the seller, without interest (the Offer Price). Following the
completion of the Offer and the satisfaction or waiver of the conditions to the Merger set forth in
the Merger Agreement, (i) Purchaser will be merged into the Company, under West Virginia law (the
Merger), with the Company being the surviving corporation and a wholly-owned subsidiary of
Parent, (ii) each Company Common Share that is not tendered and accepted pursuant to the Offer
(other than Company Common Shares owned by Parent, Purchaser or the Company or any of their
respective wholly-owned subsidiaries) will be converted into the right to receive in cash an amount
per share equal to the Offer Price, and (iii) each issued and outstanding Company Common Share
owned by Parent, Purchaser or the Company immediately prior to the Merger shall automatically be
cancelled and cease to exist, and no consideration shall be delivered or deliverable therefore.
The Offer, the Merger, and the other transactions contemplated by the Merger Agreement are subject
to the satisfaction or waiver of certain conditions, including the receipt of regulatory approvals,
as set forth in the Merger Agreement. Furthermore, the consummation of the Offer, the Merger and
the other transactions contemplated by the Merger Agreement are subject to the termination
provisions of the Merger Agreement, which may be terminated by either party in accordance with its
terms. A more complete description of the Merger Agreement is contained in Exhibit 1 to this
Schedule, which description is incorporated by reference herein. A copy of the Merger Agreement is
filed as Exhibit 2 to this Schedule and is incorporated by reference herein.
Concurrently with the execution of and in order to induce Parent and Purchaser to enter into
the Merger Agreement, certain shareholders of the Company (the Supporting Shareholders) entered
into the Tender and Voting Agreement with Parent and the Purchaser. Pursuant to the Tender and
Voting Agreement, each Supporting Stockholder has (i) agreed to validly tender and not to withdraw,
pursuant to and in accordance with the terms of the Offer, all shares of the Company which are
beneficially owned by such Supporting Stockholder, (ii) agreed to, at any meeting of the
stockholders of the Company, to vote (or cause to be voted) all such shares, (a) in favor of
adopting the Merger Agreement and any transactions contemplated thereby, (b) against any proposal
relating to any Alternative Transaction Proposal and (c) against any proposal, action or agreement
that would delay, prevent or frustrate the Offer and the related transactions contemplated by the
Merger Agreement and (iii) irrevocably granted Purchaser and any of its designees the Supporting
Stockholders irrevocable proxy to vote all of the Supporting Stockholders shares of the Company
to secure the performance of the duties of such Supporting Stockholder. Additionally, each
Supporting Stockholder has undertaken that such Supporting Stockholder will not offer to transfer,
transfer or consent to any transfer of, any or all of its shares of the Company or other shares
over which he has voting and dispositive power, or any interest therein without the prior written
consent of Purchaser or grant any proxy or power-of-attorney with respect to those shares.
Alternative Transaction Proposal means (i) any tender or exchange offer for the Companys
Common Shares, (ii) any inquiry, proposal or indication of interest (whether binding or
non-binding) to the Company or its directors or executive officers relating to any proposed tender
or exchange offer, proposal for a merger, consolidation or other business combination involving the
Company or any subsidiary of the Company or (iii) any inquiry, proposal or indication of interest
(whether binding or non-binding) to the Company or its directors or executive officers to acquire
in any manner beneficial ownership (as defined under Section 13(d) of the Exchange Act and the
rules and regulations thereunder) of ten percent (10%) or more of the outstanding voting securities
of the Company or ten percent (10%) or more of the aggregate fair market value of the consolidated
assets of the Company and its subsidiaries, other than the transactions contemplated by the Merger
Agreement or the Tender and Voting Agreement.
The Tender and Voting Agreement terminates when and if the Merger Agreement is terminated
without the consummation of the Merger.
A more complete description of the Tender and Voting Agreement is contained in Exhibit 1
attached to this Schedule, which description is incorporated by reference herein. A copy of the
Tender and Voting Agreement is filed as Exhibit 3 to this Schedule and is incorporated by reference
herein.
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The purpose of the transactions described above is for Parent to acquire control of the
Company through the acquisition of all outstanding Company Common Shares. Upon consummation of the
transactions contemplated by the Merger Agreement and Tender and Voting Agreement, the Company will
become a wholly-owned subsidiary of Parent, the Company Common Shares will cease to be freely
traded or listed on Nasdaq or any national securities market, all Company Common Shares will be
de-registered under the Securities Exchange Act of 1934, as amended, and Parent will replace the
existing directors and management with persons selected by Parent, and will make such other changes
in the charter, bylaws, capitalization, management and business of the Company as set forth in the
Merger Agreement and as otherwise deemed necessary or appropriate by Parent. Currently, the
Company pays a dividend to its shareholders. Following the Offer and Merger, the Company does not
expect to continue to pay these dividends in the near future. Except as otherwise set forth in
this Schedule or the Merger Agreement, it is expected that initially, following the Merger, the
business and operations of the Company will be continued by the Company substantially in the same
form as they are currently being conducted. However, in connection with the Offer, Parent and
Purchaser have reviewed and will continue to review various possible business strategies that they
might consider in the event that Purchaser acquires control of the Company, whether pursuant to the
Offer, the Merger or otherwise.
Except as described in this Section 4 or otherwise set forth or incorporated by reference
herein relating to the Offer, the Merger and the transactions contemplated by the Merger Agreement
and the Tender and Voting Agreement, Parent does not have any current plans or proposals that
relate to or would result in (i) the acquisition by any person of additional Company Common Shares
or the disposition of Company Common Shares, (ii) an extraordinary corporate transaction, such as a
merger, reorganization or liquidation involving the Company or any of its subsidiaries, (iii) a
sale or transfer of a material amount of assets of the Company or any of its subsidiaries, (iv) any
change in the present board of directors or management of the Company, including any plans or
proposals to change the number or term of directors or to fill any vacancies on the board, (v) any
material change in the capitalization or dividend policy of the Company, (vi) any other material
change in the Companys corporate structure or business, (vii) any change to the Companys charter,
bylaws, or instruments corresponding thereto, or other actions that may impede the acquisition of
control of the Company, (viii) causing a class of securities of the Company to be delisted from a
national securities exchange or cease to be authorized to be quoted in an inter-dealer quotation
system of a registered national securities association, (ix) a class of Company equity securities
becoming eligible for termination of registration pursuant to Section (g)(4) of the Securities
Exchange Act of 1934, as amended, or (x) any action similar to any of those enumerated above.
The preceding summary of certain provisions of the Merger Agreement and the Tender and Voting
Agreement, copies of which are filed as exhibits hereto, is not intended to be complete and is
qualified in its entirety by reference to the full text of such agreements.
Item 5. Interest in Securities of the Issuer.
(a) - (b) Parent owns and has sole voting and sole dispositive power over 182,850 Company
Common Shares which were acquired more than 60 days prior to the date of the event reported on this
Schedule. As a result of the Merger Agreement and the Tender and Voting Agreement, Parent and
Purchaser, as a group, may be deemed to be the beneficial owner of and to have the shared voting
and shared dispositive power with respect to 2,926,186 Company Common Shares. This aggregate
number represents approximately 32.4% of the Company Common Shares issued and outstanding as of
February 16, 2010 (as represented by the Company in the Merger Agreement). Parent and Purchaser
expressly disclaim beneficial ownership of any and all Company Common Shares which are subject to
the Tender and Voting Agreement, and nothing herein shall be deemed an admission by Parent or
Purchaser as to the beneficial ownership of such shares. A copy of each of the Merger Agreement
and the Tender and Voting Agreement, filed as Exhibits 2 and 3, respectively, to this Schedule are
incorporated by reference herein. The preceding summary of certain provisions of the Merger
Agreement and the Tender and Voting Agreement, copies of which are filed as exhibits hereto, is not
intended to be complete and is qualified in its entirety by reference to the full text of such
agreements.
(c) - (d) Except as described herein, neither Parent and Purchaser nor, to the best of their
knowledge, any other person referred to in Annex A attached hereto, has acquired or disposed of any
Company Common Shares during the past 60 days. Furthermore, Parent and Purchaser know of no other
person to have the right to receive or
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the power to direct the receipt of dividends from, or the proceeds from the sale of, the
securities covered by this Schedule.
(e) N/A
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
The information set forth, or incorporated by reference, in Items 3, 4 and 5 is incorporated
by reference to this Item 6. Except as otherwise described in this Schedule, Parent and Purchaser
and none of the persons named on Annex A has any contracts, arrangements, understandings or
relationships (legal or otherwise) with any persons with respect to any securities of the Company,
including but not limited to the transfer or voting of any securities, finders fees, joint
ventures, loan or option agreements, puts or calls, guarantees of profits, division of profits or
losses, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
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Exhibit 1:
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Summary description of Agreement and Plan of Merger and Form of
Tender and Voting Agreement |
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Exhibit 2:
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Agreement and Plan of Merger, dated as of February 16, 2010,
among L.B. Foster Company, Foster Thomas Company and Portec
Rail Products, Inc. |
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Exhibit 3:
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Form of Tender and Voting Agreement, dated as of February 16,
2010, among L.B. Foster Company, Foster Thomas Company and
certain shareholders of Portec Rail Products, Inc. |
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and correct.
Dated:
February 26, 2010
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L.B. FOSTER COMPANY
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By: |
/s/
Stan L. Hasselbusch |
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Name: |
Stan L. Hasselbusch |
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Title: |
President & CEO |
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FOSTER THOMAS COMPANY
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By: |
/s/
Stan L. Hasselbusch |
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Name: |
Stan L. Hasselbusch |
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Title: |
President & CEO |
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Annex A
DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth the name and present principal occupation or employment of each
director and executive officer of Parent and Purchaser, as well as the name, principal business and
address of such employer, as of February 26, 2010. The principal business address of each person
listed below is c/o L.B. Foster Company, 415 Holiday Drive, Pittsburgh, PA 15220. Each person
listed below is a citizen of the United States.
DIRECTORS OF L.B. FOSTER COMPANY
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Name |
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Principal Occupation |
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Lee B. Foster II
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Mr. Foster is currently the Chairman of L.B. Foster Company. |
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Stan L. Hasselbusch
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Mr. Hasselbusch is Chief Executive Officer and President of
L.B. Foster Company. |
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Peter McIlroy II
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Mr. McIlroy is Chief Executive Officer of Robroy Industries. |
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G. Thomas McKane
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Mr. McKane is retired from his roles as Chairman and Chief
Executive Officer of A.M. Castle & Co. |
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Diane B. Owen
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Ms. Owen is Vice President Corporate Audit of H.J. Heinz
Company. |
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William H. Rackoff
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Mr. Rackoff is President and Chief Executive Officer of
ASKO, Inc. |
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Suzanne B. Rowland
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Mrs. Rowland is Vice President Business Excellence for
Tyco International, Ltd. |
EXECUTIVE OFFICERS OF L.B. FOSTER COMPANY
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Name |
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Principal Occupation |
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Stan L. Hasselbusch
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President and Chief Executive Officer |
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Merry L. Brumbaugh
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Vice President Tubular Products |
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Samuel K. Fisher
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Senior Vice President Rail |
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Donald L. Foster
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Senior Vice President Construction Products |
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Kevin R. Haugh
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Vice President CXT Concrete Products |
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Name |
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Principal Occupation |
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John F. Kasel
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Senior Vice President Operations and Manufacturing |
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Brian H. Kelly
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Vice President Human Resources |
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Gregory W. Lippard
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Vice President Rail Product Sales |
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Linda K. Patterson
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Controller |
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David J. Russo
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Senior Vice President, Chief Financial Officer and Treasurer |
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David R. Sauder
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Vice President Global Business Development |
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David L. Voltz
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Vice President, General Counsel and Secretary |
DIRECTORS AND EXECUTIVE OFFICERS OF FOSTER THOMAS COMPANY
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Name |
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Principal Occupation |
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Stan L. Hasselbusch
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President and Chief Executive Officer of L.B. Foster
Company; Director and President & CEO of Foster Thomas
Company |
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David J. Russo
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Senior Vice President, Chief Financial Officer and
Treasurer of L.B. Foster Company; Director and Senior
Vice President, CFO & Treasurer of Foster Thomas
Company |
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David L. Voltz
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Vice President, General Counsel and Secretary of L.B.
Foster Company; Director and Vice President &
Secretary of Foster Thomas Company |
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David Sauder
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Vice President Global Business Development of L.B.
Foster Company; Vice President of Foster Thomas
Company |
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CUSIP No. |
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736212101 |
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Page |
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11 |
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of |
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11 |
EXHIBIT INDEX
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Exhibit 1:
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Summary description of Agreement and Plan of Merger and Form of
Tender and Voting Agreement |
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Exhibit 2:
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Agreement and Plan of Merger, dated as of February 16, 2010,
among L.B. Foster Company, Foster Thomas Company and Portec
Rail Products, Inc. |
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Exhibit 3:
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Form of Tender and Voting Agreement, dated as of February 16,
2010, among L.B. Foster Company, Foster Thomas Company and
certain shareholders of Portec Rail Products, Inc. |