Exhibit 2.1
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
This
Amendment No. 1 to Agreement and Plan of Merger (this “
Amendment ”) is made and entered into as of
November 4, 2007, by and among URS Corporation, a Delaware
corporation (the “ Parent ”), Elk Merger
Corporation, a Delaware corporation and wholly owned subsidiary of
Parent (“ Merger Sub ”), Bear Merger Sub, Inc.,
a Delaware corporation and wholly owned subsidiary of Parent
(“ Second Merger Sub ”), and Washington Group
International, Inc., a Delaware corporation (the “
Company ”).
RECITALS
WHEREAS , Parent, Merger Sub, Second Merger Sub and the
Company are parties to an Agreement and Plan of Merger, dated as of
May 27, 2007 (the “ Merger Agreement
”);
WHEREAS , pursuant to Section 8.11 of the Merger
Agreement, Parent, Merger Sub, Second Merger Sub and the Company
desire to amend the Merger Agreement as provided in this
Amendment;
WHEREAS , the board of directors of each of Parent, Merger
Sub, Second Merger Sub and the Company has determined that this
Amendment is advisable, fair to and in the best interests of their
respective stockholders; and
WHEREAS , simultaneous with the execution of this Amendment,
Parent, the Company and Dennis R. Washington, a holder of options
to purchase shares of Common Stock of the Company (“
DRW ”), have entered into an Option Exercise and
Transaction Support Agreement (the “ Option/Support
Agreement ”) and Parent has required that the
Option/Support Agreement be entered into as a condition to entering
into this Amendment.
NOW, THEREFORE , in consideration of the premises, and of
the representations, warranties, covenants and agreements contained
in this Amendment and the Agreement, Parent, Merger Sub, Second
Merger Sub and the Company agree as follows:
Section 1. Amendments to Merger Consideration
Provisions.
(a) Section 2.1(a)
of the Merger Agreement is hereby amended and restated in its
entirety as follows:
(a)
Subject to this Article II , each share of common
stock, par value $0.01 per share, of the Company (“
Company Common Stock ”) issued and outstanding
immediately prior to the Effective Time (other than the Cancelled
Shares and except for any Dissenting Shares) shall, by virtue of
this Agreement and without any action on the part of the holder
thereof, be converted into and shall thereafter represent the right
to receive the following consideration (collectively, the “
Merger Consideration ”):
(i)
Each (A) share of Company Common Stock with respect to which
an election to receive a combination of stock and cash has been
effectively made and not revoked pursuant to
Section 2.9(a) and (B) No Election Share (as that
term is defined in Section 2.9(a) hereof) (each such
share described in the preceding clauses (A) and (B), a
“ Mixed Election Share ”) shall be converted
into the right to receive the combination (which combination shall
hereinafter be referred to as the “ Per Share Mixed
Consideration ”) of (x) $43.80 in cash (the “
Per Share Cash Amount ”) and (y) 0.90 of a share
of validly issued, fully paid and non-assessable shares of common
stock, par value $0.01 per share, of Parent (the “ Parent
Common Stock ”), subject to adjustment in accordance with
Section 2.1(c) (the “ Mixed Election Stock Exchange
Ratio ”).
(ii)
Each share of Company Common Stock with respect to which an
election to receive cash has been effectively made and not revoked
pursuant to Section 2.9(a) (each, a “ Cash Election
Share ”) shall be converted (provided that the Available
Cash Election Amount (as defined below) equals or exceeds the Cash
Election Amount (as defined below)) into the right to receive an
amount in cash, without interest (such amount in cash being the
“ Per Share Cash Election Consideration ”),
equal to the sum of (A) the Per Share Cash Amount and
(B) an amount in cash equal to the product of (1) the
Mixed Election Stock Exchange Ratio and (2) the volume
weighted average trading price of Parent Common Stock during the
five (5) consecutive trading days ending on the trading day
that is one day prior to the date of the Company Stockholder
Meeting at which Company Stockholder Approval is received,
calculated utilizing “VWAP” in the Bloomberg function
VAP (the “ Average Parent Stock Price ”);
provided , however , if (X) the product of the
number of Cash Election Shares and the Per Share Cash Election
Consideration (such product being the “ Cash Election
Amount ”) exceeds (Y) (1) the product of the Per
Share Cash Amount and the total number of shares of Company Common
Stock (other than the Cancelled Shares and any shares that are
Dissenting Shares as of the Election Deadline) issued and
outstanding immediately prior to the Effective Time minus (2) the
product of the number of Mixed Election Shares and the Per Share
Cash Amount (such difference being the “ Available Cash
Election Amount ”), then each Cash Election Share shall
be converted into a right to receive (A) an amount in cash,
without interest, equal to the product of (1) the Per Share
Cash Election Consideration and (2) a fraction, the numerator
of which shall be the Available Cash Election Amount and the
denominator of which shall be the Cash Election Amount (such
fraction being the “ Cash Fraction ”) and
(B) a number of validly issued, fully paid and non-assessable
shares of Parent Common Stock equal to the product of (1) the
Exchange Ratio (as defined below) and (2) one minus the Cash
Fraction.
(iii)
Each share of Company Common Stock with respect to which an
election to receive stock consideration has been effectively made
and not revoked pursuant to Section 2.9(a) (each, a
“ Stock Election Share ”) shall be converted
(provided that the Cash Election Amount equals or exceeds the
Available Cash Election Amount) into the right to receive a number
of shares (such number of shares being the “ Exchange
Ratio ”) of validly issued, fully paid and non-assessable
shares of
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Parent Common
Stock, subject to adjustment in accordance with Section
2.1(c) (such Exchange Ratio, together with any cash in lieu of
fractional shares of Parent Common Stock to be paid pursuant to
Section 2.3 , the “ Per Share Stock
Consideration ”), equal to the sum of (A) the Mixed
Election Stock Exchange Ratio and (B) (1) the Per Share Cash
Amount divided by (2) the Average Parent Stock Price;
provided , however , if the Available Cash Election
Amount exceeds the Cash Election Amount (such excess being the
“ Available Cash Excess ”), then each Stock
Election Share shall be converted into the right to receive
(X) an amount in cash, without interest, equal to the
Available Cash Excess divided by the number of Stock Election
Shares and (Y) a number of validly issued, fully paid and
non-assessable shares of Parent Common Stock equal to the product
of (1) the Exchange Ratio and (2) a fraction, the
numerator of which shall be the Per Share Cash Election
Consideration minus the amount calculated in clause (X) of
this proviso and the denominator of which shall be the Per Share
Cash Election Consideration.
(b)
Section 2.1(c) of the Merger Agreement is hereby amended and
restated in its entirety as follows:
(c)
If at any time during the period between the date of this Agreement
and the Effective Time, any change in the outstanding shares of
capital stock of Parent or the Company shall occur by reason of any
reclassification, recapitalization, stock split or combination,
exchange or readjustment of shares, or any stock dividend thereon
with a record date during such period, the Merger Consideration,
the Per Share Cash Amount, the Mixed Election Stock Exchange Ratio,
the Exchange Ratio and any number or amount contained in this
Agreement which is based on the price of Parent Common Stock or
Company Common Stock or the number of shares of Parent Common Stock
or Company Common Stock, as the case may be, shall be equitably
adjusted to reflect such reclassification, recapitalization, stock
split or combination, exchange or readjustment of shares, or stock
dividend thereon.
(c)
Section 2.2(a) of the Merger Agreement is hereby amended and
restated in its entirety as follows:
(a)
Prior to the Effective Time, Parent shall appoint a bank or trust
company designated by Parent and reasonably acceptable to the
Company (the “ Exchange Agent ”) and shall cause
to be deposited with the Exchange Agent, in trust for the benefit
of the holders of Company Common Stock and Company Options,
certificates representing the shares of Parent Common Stock and an
amount of cash in U.S. dollars sufficient to be issued and paid
pursuant to Sections 2.1 , 2.3 and 2.6(a),
payable, in the case of Company Common Stock, upon due surrender of
the Certificates (or effective affidavits of loss in lieu thereof)
or non-certificated Company Common Stock represented by book-entry
(“ Book-Entry Shares ”) and payable, in the case
of Company Options, in accordance with Section 2.6(a) ,
and in each case pursuant to the provisions of this Article
II . Following the Effective Time, Parent agrees to make
available to the Exchange Agent, from time to time as needed, cash
in U.S. dollars sufficient to pay any dividends and other
distributions pursuant to Section 2.2(f) . Any cash and
certificates representing Parent Common Stock deposited with the
Exchange Agent (including the amount of any dividends or other
distributions payable with respect thereto and such cash
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in lieu of
fractional shares to be paid pursuant to Section 2.3 )
shall be referred to in this Agreement as the “ Exchange
Fund .” The Exchange Agent shall, pursuant to irrevocable
instructions, deliver the Merger Consideration contemplated to be
issued pursuant to Section 2.1 and the Option
Consideration contemplated to be issued pursuant to
Section 2.6(a) out of the Exchange Fund. Except as
contemplated by Section 2.3 , the Exchange Fund shall
not be used for any other purpose. As soon as reasonably
practicable after the Effective Time and in any event not later
than the second business day following the Effective Time, Parent
will cause the Exchange Agent to send to each holder of record of
shares of Company Common Stock whose Company Common Stock was
converted into the Merger Consideration pursuant to
Section 2.1 (other than any holder which has previously
and properly surrendered all of its Certificates to the Exchange
Agent in accordance with Section 2.9(a) (each, an
“ Electing Stockholder ”)), (i) a letter of
transmittal for use in such exchange (which shall specify that the
delivery shall be effected, and risk of loss and title shall pass,
only upon proper delivery of the Certificates (or effective
affidavits of loss in lieu thereof) or Book-Entry Shares to the
Exchange Agent) in such form as Parent and the Company may
reasonably agree, for use in effecting delivery of shares of
Company Common Stock to the Exchange Agent, and (ii) instructions
for use in effecting the surrender of Certificates (or effective
affidavits of loss in lieu thereof) or Book-Entry Shares in
exchange for the Merger Consideration. Exchange of any Book-Entry
Shares shall be effected in accordance with Parent’s
customary procedures with respect to securities represented by book
entry.
(d)
Section 2.2(b) of the Merger Agreement is hereby amended and
restated in its entirety as follows:
(b)
Each holder of shares of Company Common Stock that have been
converted into a right to receive the Merger Consideration, upon
(A) with respect to any Electing Stockholder, completion of
the calculations required by Section 2.1(a) and
(B) with respect to any holder of shares of Company Common
Stock, surrender to the Exchange Agent of a Certificate (or
effective affidavits of loss in lieu thereof) or Book-Entry Shares
to the Exchange Agent, together with a properly completed letter of
transmittal, duly executed and completed in accordance with the
instructions thereto, and such other documents as may reasonably be
required by the Exchange Agent, will be entitled to receive in
exchange therefor (x) one or more shares of Parent Common
Stock (which shall be in non-certificated book-entry form unless a
physical certificate is requested) representing, in the aggregate,
the whole number of shares of Parent Common Stock, if any, that
such holder has the right to receive pursuant to
Section 2.1 (after taking into account all shares of
Company Common Stock then held by such holder) and/or (y) a
check in the amount equal to the cash portion of the Merger
Consideration that such holder has the right to receive pursuant to
Section 2.1 and this Article II , including
cash payable in lieu of fractional shares pursuant to
Section 2.3 and dividends and other distributions
pursuant to Section 2.2(f) (less any required Tax
withholding). Each holder of cancelled Company Options that have
been converted into a right to receive the Option Consideration
will be entitled to receive in exchange therefor (x) one or
more shares of Parent Common Stock (which shall be in
non-certificated book-entry form unless a physical certificate is
requested) representing, in the aggregate, the whole number of
shares of Parent Common Stock, if any, that such holder has the
right to receive pursuant to Section 2.6(a) and/or
(y) a check in the amount equal to the cash portion of the
Option Consideration that
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such holder has
the right to receive pursuant to Section 2.6(a) and
this Article II , including cash payable in lieu of
fractional shares pursuant to Section 2.3 and dividends
and other distributions pursuant to Section 2.2(f)
(less any required Tax withholding). No interest shall be paid or
accrued on any Merger Consideration or Option Consideration, cash
in lieu of fractional shares or on any unpaid dividends and
distributions payable to holders of Certificates or Company
Options. Until so surrendered, each such Certificate shall, after
the Effective Time, represent for all purposes only the right to
receive such Merger Consideration.
(e)
Section 2.2(e) of the Merger Agreement is hereby amended and
restated in its entirety as follows:
(e)
Any portion of the Exchange Fund that remains unclaimed by the
holders of shares of Company Common Stock or holders of cancelled
Company Options eighteen (18) months after the Effective Time
shall be returned to Parent, upon demand. Any holder of shares of
Company Common Stock who has not exchanged his shares of Company
Common Stock for the Merger Consideration in accordance with this
Section 2.2 and any holder of cancelled Company Options
who has not received the Option Consideration in accordance with
Section 2.6(a) prior to that time shall thereafter look only
to Parent for delivery of the Merger Consideration or Option
Consideration in respect of such holder’s shares or options.
Notwithstanding the foregoing, neither Parent, Merger Sub, the
Company nor the First Surviving Corporation shall be liable to any
holder of shares for any Merger Consideration or Option
Consideration delivered to a public official pursuant to applicable
abandoned property laws. Any Merger Consideration or Option
Consideration remaining unclaimed by holders of shares of Company
Common Stock or holders of cancelled Company Options immediately
prior to such time as such amounts would otherwise escheat to or
become property of any Governmental Authority shall, to the extent
permitted by Applicable Law, become property of Parent free and
clear of any claims or interest of any Person previously entitled
thereto.
(f)
The ultimate sentence in Section 2.2(f) of the Merger
Agreement is hereby amended and restated in its entirety as
follows:
For purposes of
dividends or other distributions in respect of shares of Parent
Common Stock, all shares of Parent Common Stock to be issued
pursuant to the First Merger (the “ Stock Issuance
”) shall be entitled to dividends pursuant to the immediately
preceding sentence as if issued and outstanding as of the Effective
Time and all shares of Parent Common Stock to be issued pursuant to
Section 2.6(a) shall be entitled to dividends as if
issued and outstanding as of the Effective Time.
(g)
Section 2.2(h) of the Merger Agreement is hereby amended and
restated in its entirety as follows:
(h)
All Merger Consideration or Option Consideration issued and paid
upon conversion of the Company Common Stock or the Company Options,
respectively, in accordance with the terms of this Agreement
(including any cash paid pursuant to Section 2.3 ),
shall be deemed to have been issued and paid in full satisfaction
of all rights pertaining to such Company Common Stock or Company
Options, respectively.
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(h)
Section 2.3 of the Merger Agreement is hereby amended and
restated in its entirety as follows:
2.3
Fractional Shares.
(a)
No fractional shares of Parent Common Stock shall be issued in the
First Merger or pursuant to Section 2.6(a) , but in
lieu thereof each holder of shares of Company Common Stock and each
holder of Company Options otherwise entitled to a fractional share
of Parent Common Stock will be entitled to receive, from the
Exchange Agent in accordance with the provisions of this
Section 2.3 , a cash payment in lieu of such fractional
shares of Parent Common Stock representing such holder’s
proportionate interest, if any, in the proceeds from the sale by
the Exchange Agent (reduced by any fees of the Exchange Agent
attributable to such sale) in one or more transactions of shares of
Parent Common Stock equal to the excess of (i) the aggregate
number of shares of Parent Common Stock to be delivered to the
Exchange Agent by Parent pursuant to Section 2.2(a)
over (ii) the aggregate number of whole shares of Parent
Common Stock to be distributed to the holders of Company Common
Stock and Company Options pursuant to Section 2.2(b)
and Section 2.6(a) (such excess being, the “ Excess
Shares ”). The parties acknowledge that payment of the
cash consideration in lieu of issuing fractional shares was not
separately bargained-for consideration but merely represents a
mechanical rounding off for purposes of avoiding the expense and
inconvenience to Parent that would otherwise be caused by the
issuance of fractional shares. As soon as practicable after the
Effective Time, the Exchange Agent, as agent for the holders that
would otherwise receive fractional shares, shall sell the Excess
Shares at then prevailing prices on the New York Stock Exchange
(“ NYSE ”) in the manner provided in the
following paragraph.
(b)
The sale of the Excess Shares by the Exchange
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