As filed with the Securities and Exchange Commission on May 26, 2009
Registration No. 333-
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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L.B. FOSTER COMPANY
(Exact name of registrant as specified in its charter)
Pennsylvania 25-1324733
(State of Incorporation) (I.R.S. Employer Identification No.)
415 Holiday Drive, Pittsburgh, Pennsylvania 15220
(Address of principal executive offices) (Zip Code)
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L.B. Foster Company Savings Plan for Bargaining Unit Employees
(Full title of the plan)
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DAVID L. VOLTZ, Esq.
Vice President, General Counsel and Secretary
L.B. Foster Company
415 Holiday Drive
Pittsburgh, Pennsylvania 15220
(Name and address of agent for service)
(412) 928-3431
(Telephone number, including area code, of agent for service)
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Copy to:
MICHAEL M. LYONS, Esq.
Buchanan Ingersoll & Rooney PC
20th Floor, One Oxford Centre
Pittsburgh, Pennsylvania 15219
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Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of "large accelerated filer," "accelerated filer" and "smaller
reporting company" in Rule 12b-2 of the Exchange Act. (Check one):
[ ] Large accelerated filer
[ X ] Accelerated filer
[ ] Non-accelerated filer (Do not check if a smaller reporting company)
[ ] Smaller reporting company
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount maximum maximum
Title of securities to be offering price aggregate Amount of
to be registered registered per share* offering price* registration fee
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Common Stock, $.01 par value 200,000 shs. $30.73 $6,146,000 $343.00
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*Estimated in accordance with Rule 457(c) solely for the purpose of computing
the registration fee, based on the average of the high and low prices for May
20, 2009 as reported in the NASDAQ National Market System. In addition, pursuant
to Rule 416(c) under the Securities Act of 1933, this registration statement
also covers an indeterminate amount of interests to be offered or sold pursuant
to the employee benefit plan described herein.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
L.B. Foster Company is hereinafter referred to as the "Company," and the
Company's L. B. Foster Company Savings Plan for Bargaining Unit Employees is
hereinafter referred to as the "Plan."
Item 3. Incorporation of Documents by Reference.
The documents listed below are incorporated by reference in this
registration statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2008, filed with the Securities and
Exchange Commission ("Commission") under the Securities
Exchange Act of 1934, as amended ("Exchange Act").
(b) The Company's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 2009, and its Current Reports on Form
8-K, filed with the Commission under the Exchange Act on
January 30, March 3, March 25, April 23 and May 8, 2009.
(c) The descriptions of the Company's Common Stock, $.01 par
value, and Common Stock purchase rights contained in the
Company's Registration Statements on Form 8-A, as may from
time to time be amended, filed with the Commission under the
Exchange Act.
All documents filed by the Company or the Plan pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this registration
statement, and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be part thereof from the date of filing of such
documents.
Item 4. Description of Securities.
The Common Stock is registered under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
None
Item 6. Indemnification of Directors and Officers.
Section 6.01 of the Company's By-Laws provides, in part, that the Company
shall, to the fullest extent permitted by Pennsylvania law, indemnify its
officers and directors in connection with any actual, threatened or completed
action, suit or proceeding arising out of their service to the Company or to
another entity at the request of the Company.
The Company's directors and officers currently are covered as insureds
under directors' and officers' liability insurance. Such insurance, subject to
an annual renewal and certain rights of the insurer to terminate, provides an
aggregate maximum of $18 million of coverage for directors and officers of the
Company and its subsidiaries for claims made during the policy period.
Item 7. Exemption From Registration Claimed.
No "restricted" securities will be reoffered or resold.
II-1
Item 8. Exhibits.
The following exhibit is filed herewith as part of this registration
statement:
23.3 Consent of Independent Accounting Firm.
The Company has submitted the Plan and all amendments thereto to the
Internal Revenue Service ("IRS") in a timely manner and has made all changes
required by the IRS in order to qualify the Plan.
Item 9. Undertakings.
The undersigned registrant undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof. The registrant
further undertakes to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering. Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the indemnification provisions
described in Item 6, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Pittsburgh, State of Pennsylvania, on May 26, 2009.
L.B. FOSTER COMPANY
(Registrant and Plan Administrator)
By: /s/ Stan L. Hasselbusch
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Stan L. Hasselbusch
President
Power of Attorney
Each person whose signature appears below hereby constitutes and appoints
Stan L. Hasselbusch and David L. Voltz, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement on Form S-8 and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission under the Securities Act of 1933.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ Stan L. Hasselbusch Director, President and Chief May 26, 2009
- ----------------------------- Executive Officer
Stan L. Hasselbusch
/s/ Lee B. Foster II Director and Chairman of the Board May 21, 2009
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Lee B. Foster II
/s/ G. Thomas McKane Director May 21, 2009
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G. Thomas McKane
/s/ Peter McIlroy II Director May 21, 2009
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Peter McIlroy II
/s/ Diane B. Owen Director May 21, 2009
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Diane B. Owen
/s/ William H. Rackoff Director May 21, 2009
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William H. Rackoff
/s/ Suzanne B. Rowland Director May 21, 2009
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Suzanne B. Rowland
/s/ David J. Russo Senior Vice President and Chief May 21, 2009
- ----------------------------- Financial and Accounting Officer
David J. Russo
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Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the L. B. Foster Company Savings Plan for Bargaining Unit
Employees of our reports dated March 9, 2009, with respect to the consolidated
financial statements and schedule of L. B. Foster Company included in its Annual
Report (Form 10-K) for the year ended December 31, 2008 and the effectiveness of
internal control over financial reporting of L. B. Foster Company, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Pittsburgh, Pennsylvania
May 21, 2009
Exhibit 23.3