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 December 12, 2008 (December 9, 2008)
reported) ------------------------------------
L.B. Foster Company
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(Exact name of registrant as specified in its charter)
Pennsylvania 000-10436 25-1324733
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
415 Holiday Drive, Pittsburgh, Pennsylvania 15220
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 412-928-3417
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None
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(Former name or former address, if changed since last report.)
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)
[ ] 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 5.02
On December 9, 2008, Registrant's Board of Director's, upon the prior
recommendation of the Board's Compensation Committee, adopted the L.B. Foster
Company Key Employee Separation Plan (the "Plan"), which is attached hereto and
incorporated herein.
The Company has selected its officers as "Participants" in the plan. The current
Participants include Stan L. Hasselbusch (Chief Executive Officer and
President), David J. Russo (Sr. Vice President and Chief Financial Officer),
Donald L. Foster (Sr. Vice President-Construction Products), John F. Kasel (Sr.
Vice President-Operations), Samuel K. Fisher (Sr. Vice President-Rail Product)
and the Company's other seven elected officers.
In the event a Participant's employment terminates, (subject to certain
exceptions) due to a "Change in Control" of Registrant, each Participant is to
receive the Participant's base salary plus the average of Participant's, annual
cash bonuses paid or due and payable over the prior three calendar years
multiplied by a "Benefit Factor". The Participants' Benefit Factors are:
Benefit Factor
Chief Executive Officer and Sr. Vice Presidents 2
Vice President; Controller 1
Each Participant also shall be paid all amounts otherwise owed to the
Participant, and $15,000 for outplacement services. Medical, dental and vision
insurance shall be maintained for specified durations. A participant shall not
be entitled to these payments and benefits under the Plan unless both (i) a
"Change in Control"(1) has occurred; and (ii) the Participant's employment has
been terminated (involuntarily or for "good reason(2)", but not for "cause(3)").
Certain equity also may become vested upon the occurrence of a "Change in
Control" in accordance with the provisions of the respective equity plans.
All payments generally are to be made within 60 days after the Participant's
employment is terminated in connection with a "Change in Control". Any payment
to a Participant that would constitute an "excess parachute payment" within the
meaning of 280G of the Internal Revenue Code of 1986, as amended, shall cause
the payments to a Participant to be reduced to an amount, expressed in present
value, which maximizes the aggregate present value of the payments, without
causing any payment to be subject to the limitation of deduction under Section
280G.
The Plan may be amended or terminated by the Compensation Committee of the Board
of Directors, or any successor Committee.
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(1) "Change in Control" shall mean the first to occur, of any of the following:
any merger, consolidation or business combination in which the stockholders of
the Registrant immediately prior to the merger, consolidation or business
combination do not own at least a majority of the outstanding equity interests
of the surviving parent entity; the sale of all or substantially all of the
Registrant's assets in a single transaction or a series of related transactions;
the acquisition of beneficial ownership or control (including, without
limitation, power to vote) of a majority of the outstanding common stock of the
Registrant by any person or entity (including a "group" as defined by or under
Section 13(d)(3) of the Securities Exchange Act, but excluding the Registrant,
any trustee or other fiduciary holding securities under an employee benefit plan
of the Registrant, and any corporation owned, directly or indirectly, by the
stockholders of the Registrant in substantially the same proportions as their
ownership of shares); a contested election of directors, as a result of which or
in connection with which the persons who were directors of the Registrant before
such election or their nominees cease to constitute a majority of Registrant's
Board. Upon the occurrence of a Change in Control, no subsequent event or
condition shall constitute a Change in Control for purposes of the Plan with the
result that there can be no more than one Change in Control hereunder.
(2) "Good Reason" shall mean the Participant's Separation from Service by the
Participant as a result of the occurrence, without the Participant's written
consent, of one of the following events: (i) A material reduction in the
Participant's annual Base Pay (unless such reduction relates to an
across-the-board reduction similarly affecting Participant and all or
substantially all other executives of the Registrant and its Affiliates); (ii)
The Registrant makes or causes to be made a material adverse change in the
Participant's position, authority, duties or responsibilities which results in a
significant diminution in the Participant's position, authority, duties or
responsibilities, excluding any change made in connection with (A) a
reassignment to a new job position, or (B) a termination of Participant's
employment with the Registrant for disability, cause, death, or temporarily as a
result of Participant's incapacity or other absence for an extended period; (iv)
A relocation of the Registrant's principal place of business, or of
Participant's own office as assigned to Participant by the Registrant to a
location that increases Participant's normal work commute by more than 50 miles;
or (v) Any other action by the Registrant that constitutes a material breach of
the employment agreement, if any, under which Participant's services are to be
performed. In order for Participant to terminate for good reason, (A) the
Registrant must be notified by Participant in writing within 90 days of the
event constituting Good Reason, (B) the event must remain uncorrected by the
Registrant for 30 days following such notice (the "Notice Period"), and (C) such
termination must occur within 60 days after the expiration of the Notice Period.
(3) "Cause" shall mean that by majority vote, the Board has determined in good
faith that any of the following has occurred: Participant's conduct, by act or
omission, constitutes gross negligence or willful misconduct in the performance
of the duties and services required of Participant; Participant has been
convicted of, or has entered a plea of guilty or nolo contendere to a felony, or
Participant has engaged in fraudulent or criminal activity relating to the scope
of Participant's employment (whether or not prosecuted), Participant's conduct,
by act or omission, constitutes a material violation of the Registrant's Legal
and Ethical Conduct Policy Guide, as amended from time to time; Participant's
conduct, by act or omission, constitutes a continuing or repeated failure to
perform the duties as requested in writing by the Participant's supervisor(s) or
the Board after Participant has been afforded a reasonable opportunity (not to
exceed 30 days) to cure such breach; Participant has committed a felony or
lesser crime involving moral turpitude; or Participant's conduct constitutes a
foreseeable risk that the Registrant and/or its affiliates may be brought into
public disgrace or disrepute in any material respect.
Item 9.01 Exhibits
10.61 Key Employee Separation Plan, effective December 9, 2008.
SIGNATURES
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
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(Registrant)
Date: December 12, 2008
/s/ David J. Russo
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David J. Russo
Senior Vice President
Chief Financial Officer and Treasurer
Exhibit Index
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Exhibit Number Description
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10.61 Key Employee Separation Plan, effective December 9, 2008.