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DIMOND v. RETIREMENT PLAN FOR EMPLES. OF MICHAEL B

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


March 7, 1983

WILLIAM J. DIMOND, Plaintiff,
v.
RETIREMENT PLAN FOR EMPLOYEES OF MICHAEL BAKER CORPORATION AND AFFILIATES, MICHAEL BAKER CORPORATION, AND MICHAEL BAKER III, Defendants

Cohill, J.

The opinion of the court was delivered by: COHILL

BENCH OPINION

I.

 Background

 This case comes before us on a complaint seeking, originally, a request for a Temporary Restraining Order ("TRO") to be followed by a preliminary injunction, restraining and enjoining two of the defendants from proceeding to purchase any shares of stock in Michael Baker Corporation, one of the defendants. Michael Baker stock is traded on the American Stock Exchange.

 The request for the TRO was withdrawn when the defendants agreed to maintain the status quo until the Court conducted a hearing and ruled on the request for a preliminary injunction. We held such a hearing and took testimony on March 3 and 4.

 In accordance with Fed. R. Civ. P. 65(d), we make the following findings:

 Plaintiff, William J. Dimond, is an individual citizen of Allegheny County, Pennsylvania, and a shareholder owning 65,077 shares of Michael Baker Corporation ("the Corporation") common stock. He is a director of the Corporation and a "participant" (as defined in the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. ยง 1002) in the Retirement Plan for Employees ("The Pension Plan") of the Corporation.

  The defendants are the Pension Plan, the Corporation, which is a Pennsylvania Corporation, and Michael Baker III, Chairman and Chief Executive Officer of the Corporation. The business of the Corporation is consulting and civil engineering design services.

 By a letter agreement prepared by company counsel at Mr. Baker's request, the purchase of 250,000 shares of the common stock of the Corporation was arranged. The seller was John C. Clark, a Canadian, who either owned in his own right, or represented owners holding the 250,000 shares.

 II.

 The Agreement

 The Agreement provided in part that "we, on behalf of Michael Baker Corporation, Michael Baker Corporation Pension Trust and Michael Baker III make the following offer . . ." (Plaintiff's Exhibit 6). The letter then went on to outline the terms of the purchase. It was signed by James H. Hardie, counsel for Mr. Baker and the Corporation.

 The letter was dated February 14, 1983. The closing was to be February 24, 1983, but was moved back to March 8, 1983 because of this legal action. The Agreement provided for an immediate purchase on February 24 of 11,230 shares at $9.00 per share as follows: Purchaser Shares to be Purchased Purchase Price Corporation 12,900 $ 116,110 Pension Plan 62,330 560,970 Mr. Baker 36,000 324,000 111,230 $1,001,070

19830307

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