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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 reported) MAY 14, 1998
L.B. FOSTER COMPANY
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 0-1043 25-1324733
(State or other jurisdiction (Commission File No.) (IRS Employer
of incorporation) Identification No.)
415 HOLIDAY DRIVE, PITTSBURGH, PENNSYLVANIA 15220
(Address of principal executive offices) (Zip Code)
Registrant's telephone number,
including area code 412-928-3417
------------------------------------------------------------
(Former name or former address, if changed since last report)
Item 2. Acquisition or Disposition of Assets.
- ------- -------------------------------------
The stockholders of L.B. Foster Company, a Delaware
corporation and herein "the Company", approved the
reincorporation of the Company from Delaware to Pennsylvania on
May 14, 1998. The reincorporation was effected May 14, 1998 by
merging the Company into a wholly owned subsidiary which was
recently formed solely for the purpose of effecting the
reincorporation. The surviving corporation is known as L.B.
Foster Company, a Pennsylvania corporation, and is hereafter
referred to as the "Registrant". Upon consummation of the
merger, each share of Class A Common Stock of the Company, par
value $.01 per share, was automatically converted into one share
of Common Stock of the Registrant, par value $.01 per share.
The merger was consummated under the terms and conditions of
a Plan of Merger pursuant to which the Company ceased to exist
as a Delaware corporation, the stockholders of the Company
became shareholders of Registrant, Registrant succeeded to all
the assets, liabilities, subsidiaries and other properties of
the Company to the full extent provided by law, and the rights
of the shareholders and internal affairs of the Registrant are
governed by the articles of incorporation and bylaws of
Registrant and the Pennsylvania Business Corporation Law of
1988, as amended. As a result of the merger, Registrant has the
same name, business, management, benefit plans, location,
assets, liabilities and net worth as did the Company.
Registrant's Common Stock is deemed registered under Section
12(g) of the Securities Exchange Act of 1934 by operation of
Reg. 240.12g-3(a).
Item 7. Financial Statements and Exhibits
- ------- ---------------------------------
(c) Exhibits
2- Plan of Merger effective May 14, 1998, filed as
Appendix A to the Company's April 17, 1998 Proxy Statement and
incorporated herein by reference.
3A- Registrant's Articles of Incorporation, filed as
Appendix B to the Company's April 17, 1998 Proxy Statement and
incorporated herein by reference.
3B- Registrant's Bylaws, filed herewith.
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
By /s/Roger F. Nejes
-----------------------
Roger F. Nejes
Title: Senior Vice President and
Chief Financial Officer
Date: May 21, 1998
B Y L A W S
OF
L.B. Foster Company
(a Pennsylvania corporation)
...oo0oo...
ARTICLE I
Notice - Waivers - Meetings Generally
Section 1.01 Manner of giving notice.
(a) General rule.--Whenever written notice is required to
be given to any person under the provisions of the Business
Corporation Law or by the articles or these bylaws, it may be
given to the person either personally or by sending a copy
thereof by first class or express mail, postage prepaid, or by
telegram (with messenger service specified), telex or TWX (with
answerback received) or courier service, charges prepaid, or by
facsimile transmission, to the address (or to the telex, TWX or
fax number) of the person appearing on the books of the
corporation or, in the case of directors, supplied by the
director to the corporation for the purpose of notice. If the
notice is sent by mail, telegraph or courier service, it shall
be deemed to have been given to the person entitled thereto when
deposited in the United States mail or with a telegraph office
or courier service for delivery to that person or, in the case
of telex or TWX, when dispatched or, in the case of fax, when
received. A notice of meeting shall specify the place, day and
hour of the meeting and any other information required by any
provision of the Business Corporation Law, the articles or these
bylaws.
(b) Adjourned shareholder meetings.--When a meeting of
shareholders is adjourned, it shall not be necessary to give any
notice of the adjourned meeting or of the business to be
transacted at an adjourned meeting, other than by announcement
at the meeting at which the adjournment is taken, unless the
board fixes a new record date for the adjourned meeting or the
Business Corporation Law, the articles or these bylaws require
notice of the business to be transacted and such notice has not
previously been given.
Section 1.02 Notice of meetings of board of directors.--Notice
of a regular meeting of the board of directors need not be given.
Notice of every special meeting of the board of directors shall
be given to each director by telephone or in writing at least 24
hours (in the case of notice by telephone, telex, TWX or fax)
or 48 hours (in the case of notice by telegraph, courier service
or express mail) or five days (in the case of notice by first class
mail) before the time at which the meeting is to be held. Every
such notice shall state the time and place of the meeting. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the board need be specified in a notice of the meeting.
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Section 1.03 Notice of meetings of shareholders.--Written
notice of every meeting of the shareholders shall be given by,
or at the direction of, the secretary to each shareholder of
record entitled to vote at the meeting at least 20 days prior to
the day named for the meeting. If the secretary neglects or
refuses to give notice of a meeting, the person or persons
calling the meeting may do so. In the case of a special meeting
of shareholders, the notice shall specify the general nature of
the business to be transacted. Notice by mail of any regular or
special meeting of the shareholders may be sent by any class of
postpaid mail.
Section 1.04 Use of conference telephone and similar
equipment.--The board of directors may provide by resolution
with respect to a specific meeting or with respect to a class of
meetings that one or more persons may participate in a meeting
of the board of directors or of the shareholders of the
corporation by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other. Participation
in a meeting pursuant to this section shall constitute presence
in person at the meeting.
ARTICLE II
Shareholders
Section 2.01 Place of meeting.--All meetings of the
shareholders of the corporation shall be held at the registered
office of the corporation unless another place is designated by
the board of directors in the notice of a meeting.
Section 2.02 Annual and Special Meetings.--Annual
meetings of shareholders shall be held at a date, time and place
fixed by the board of directors and stated in the notice of
meeting, to elect a board of directors and to transact such
other business as may properly come before the meeting. Special
meetings of the shareholders may be called by the president for
any purpose and shall be called by the president or secretary if
directed by the board of directors.
Section 2.03 Quorum and adjournment.
(a) General rule.--A meeting of shareholders of the
corporation duly called shall not be organized for the
transaction of business unless a quorum is present. The presence
of shareholders entitled to cast at least a majority of the
votes that all shareholders are entitled to cast on a particular
matter to be acted upon at the meeting shall constitute a quorum
for the purposes of consideration and action on the matter.
Shares of the corporation owned, directly or indirectly, by it
and controlled, directly or indirectly, by the board of
directors of this corporation, as such, shall not be counted in
determining the total number of outstanding shares for quorum
purposes at any given time.
(b) Withdrawal of a quorum.--The shareholders present at
a duly organized meeting can continue to do business until adjournment
notwithstanding the withdrawal of enough shareholders to leave less
than a quorum.
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(c) Adjournments generally.--Any regular or special
meeting of the shareholders, including one at which directors
are to be elected and one which cannot be organized because a
quorum has not attended, may be adjourned for such period and to
such place as the shareholders present and entitled to vote
shall direct.
(d) Electing directors at adjourned meeting.--Those
shareholders entitled to vote who attend a meeting called for
the election of directors that has been previously adjourned for
lack of a quorum, although less than a quorum as fixed in this
section, shall nevertheless constitute a quorum for the purpose
of electing directors.
(e) Other action in absence of quorum.--Those
shareholders entitled to vote who attend a meeting of
shareholders that has been previously adjourned for one or more
periods aggregating at least 15 days because of an absence of a
quorum, although less than a quorum as fixed in this section,
shall nevertheless constitute a quorum for the purpose of acting
upon any matter set forth in the notice of the meeting if the
notice states that those shareholders who attend the adjourned
meeting shall nevertheless constitute a quorum for the purpose
of acting upon the matter.
Section 2.04 Action by shareholders.--Except as otherwise
provided in the Business Corporation Law or the articles or
these bylaws, whenever any corporate action is to be taken by
vote of the shareholders of the corporation, it shall be
authorized upon receiving the affirmative vote of a majority of
the votes cast by all shareholders entitled to vote thereon and,
if any shareholders are entitled to vote thereon as a class,
upon receiving the affirmative vote of a majority of the votes
cast by the shareholders entitled to vote as a class.
Section 2.05 Advance notice of nominations and
proposals.--A nomination of a person for election as a director
or a proposal on any subject that, in either case, is made by a
shareholder shall not be considered at any special or annual
meeting of shareholders unless written notice thereof has been
received by the secretary not less than 90 days in advance of
the meeting or, if later, the seventh calendar day following the
first public announcement of the date of the meeting. The
shareholder making the nomination or proposal shall, upon
request, promptly furnish to the board of directors such
information as the board of directors shall reasonably request
to enable it to evaluate the nominee or proposal and formulate a
recommendation to the shareholders with respect to the nominee
or proposal. For purposes of this Section 2.05, a meeting that
is held pursuant to the adjournment for any reason of a previous
meeting shall be deemed to be the same meeting as the previous
meeting, and the date by which notice must be received pursuant
to this Section 2.05 shall be determined with reference to the
date of the first meeting that was adjourned. If judges of
election have not been appointed for a meeting, the presiding
officer of the meeting may conclusively determine whether a
nomination or proposal has been made in accordance with this
Section 2.05. The procedures of this Section 2.05 shall not be
deemed to create any right on the part of a shareholder to
propose any particular business at a meeting of the shareholders.
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Section 2.06 Organization.--At every meeting of the
shareholders, the chairman of the board, if there be one, or, in
the case of a vacancy in office or absence of the chairman of
the board, one of the following officers present in the order
stated: the vice chairman of the board, if there be one, the
president, the vice presidents in their order of rank and
seniority, or a person chosen by majority vote of the
shareholders present, shall act as chairman of the meeting. The
secretary or, in the absence of the secretary, an assistant
secretary, or, in the absence of the secretary and assistant
secretaries, a person appointed by the chairman of the meeting,
shall act as secretary.
Section 2.07 Proxy expenses.--The corporation shall pay
the reasonable expenses of solicitation of votes, proxies or
consents of shareholders by or on behalf of the board of
directors or its nominees for election to the board, including
solicitation by professional proxy solicitors and otherwise.
Section 2.08 Consent of shareholders in lieu of
meeting.--Any action required or permitted to be taken at a
meeting of the shareholders or of a class of shareholders may be
taken without a meeting only upon the unanimous written consent
of all shareholders who would have been entitled to vote thereon
at a meeting of shareholders called to consider the matter.
ARTICLE III
Board of Directors
Section 3.01 Personal liability of directors.
(a) General rule.--A director shall not be personally
liable, as such, for monetary damages for any action taken, or
any failure to take any action, unless:
(1) the director has breached or failed to perform the
duties of his or her office under 15 Pa.C.S. Subch. 17B; and
(2) the breach or failure to perform constitutes
self-dealing, willful misconduct or recklessness.
(b) Exceptions.--Subsection (a) shall not apply to:
(1) the responsibility or liability of a director
pursuant to any criminal statute, or
(2) the liability of a director for the payment of
taxes pursuant to Federal, State or local law.
Section 3.02 Qualifications and selection of directors.
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(a) Qualifications.--Each director of the corporation
shall be a natural person of full age who need not be a resident
of Pennsylvania or a shareholder of the corporation.
(b) Election of directors.--Except as otherwise provided
in these bylaws, directors of the corporation shall be elected
by the shareholders. In elections for directors, voting need
not be by ballot unless required by vote of the shareholders
before the voting for election of directors begins. The
candidates receiving the highest number of votes from each class
or group of classes, if any, entitled to elect directors
separately up to the number of directors to be elected by the
class or group of classes shall be elected. If at any meeting
of shareholders, directors of more than one class are to be
elected, each class of directors shall be elected in a separate
election.
Section 3.03 Number and term of office.
(a) Number.--The board of directors shall consist of such
number of directors, not less than 1 nor more than 15, as may be
determined from time to time by resolution of the board of
directors.
(b) Term of office.--Each director shall hold office
until the expiration of the term for which he or she was
selected and until a successor has been selected and qualified
or until his or her earlier death, resignation or removal. A
decrease in the number of directors shall not have the effect of
shortening the term of any incumbent director.
(c) Resignation.--Any director may resign at any time
upon written notice to the corporation. The resignation shall be
effective upon receipt thereof by the corporation or at such
subsequent time as shall be specified in the notice of resignation.
Section 3.04 Place of meetings.--Meetings of the board of
directors may be held at such place within or without
Pennsylvania as the board of directors may from time to time
appoint or as may be designated in the notice of the meeting.
Section 3.05 Organization of meetings.--At every meeting
of the board of directors, the chairman of the board, if there
be one, or, in the case of a vacancy in the office or absence of
the chairman of the board, one of the following officers present
in the order stated: the vice chairman of the board, if there be
one, the president, the vice presidents in their order of rank
and seniority, or a person chosen by a majority of the directors
present, shall act as chairman of the meeting. The secretary or,
in the absence of the secretary, an assistant secretary, or, in
the absence of the secretary and the assistant secretaries, any
person appointed by the chairman of the meeting, shall act as secretary.
Section 3.06 Regular meetings.--Regular meetings of the
board of directors shall be held at such time and place as shall
be designated from time to time by resolution of the board of directors.
Section 3.07 Special meetings.--Special meetings of the
board of directors shall be held whenever called by the chairman
or by two or more of the directors.
Page 5
Section 3.08 Quorum of and action by directors.
(a) General rule.--A majority of the directors in office
of the corporation shall be necessary to constitute a quorum for
the transaction of business and the acts of a majority of the
directors present and voting at a meeting at which a quorum is
present shall be the acts of the board of directors.
(b) Action by written consent.--Any action required or
permitted to be taken at a meeting of the directors may be taken
without a meeting if, prior or subsequent to the action, a
consent or consents thereto by all of the directors in office is
filed with the secretary of the corporation.
Section 3.09 Executive and other committees.
(a) Establishment and powers.--The board of directors
may, by resolution adopted by a majority of the directors in
office, establish one or more committees to consist of one or
more directors of the corporation. Any committee, to the extent
provided in the resolution of the board of directors, shall have
and may exercise all of the powers and authority of the board of
directors except that a committee shall not have any power or
authority as to the following:
(1) The submission to shareholders of any action
requiring approval of shareholders under the Business Corporation Law.
(2) The creation or filling of vacancies in the
board of directors.
(3) The adoption, amendment or repeal of these bylaws.
(4) The amendment or repeal of any resolution of
the board that by its terms is amendable or repealable only by the board.
(5) Action on matters committed exclusively by a
resolution of the board of directors to another committee of the board.
(b) Alternate committee members.--The board may designate
one or more directors as alternate members of any committee who
may replace any absent or disqualified member at any meeting of
the committee or for the purposes of any written action by the
committee. In the absence or disqualification of a member and
alternate member or members of a committee, the member or
members thereof present at any meeting and not disqualified from
voting, whether or not constituting a quorum, may unanimously
appoint another director to act at the meeting in the place of
the absent or disqualified member.
(c) Term.--Each committee of the board shall serve at the
pleasure of the board.
Page 6
(d) Committee procedures.--The term "board of directors"
or "board," when used in any provision of these bylaws relating
to the organization or procedures of or the manner of taking
action by the board of directors, shall be construed to include
and refer to any executive or other committee of the board.
Section 3.10 Compensation.--The board of directors shall
have the authority to fix the compensation of directors for
their services as directors and a director may be a salaried
officer of the corporation.
ARTICLE IV
Officers
Section 4.1 Officers generally.
(a) Number, qualifications and designation.--The officers
of the corporation shall be a president, one or more executive,
senior or regular vice presidents, a secretary, a treasurer, a
controller, a general counsel, and such other officers as may be
elected in accordance with the provisions of Section 4.03.
Officers may but need not be directors or shareholders of the
corporation. Each officer shall be a natural person of full
age. The board of directors may elect from among the members of
the board a chairman of the board and a vice chairman of the
board who shall be officers of the corporation. Any number of
offices may be held by the same person.
(b) Resignations.--Any officer may resign at any time
upon written notice to the corporation. The resignation shall be
effective upon receipt thereof by the corporation or at such
subsequent time as may be specified in the notice of resignation.
(c) Bonding.--The corporation may secure the fidelity of
any or all of its officers by bond or otherwise.
Section 4.02 Election and term of office.--The officers
of the corporation, except those elected by delegated authority
pursuant to Section 4.03, shall be elected annually be the board
of directors, and each such officer shall hold office for a term
of one year and until a successor has been selected and
qualified or until his or her earlier death, resignation or removal.
Section 4.03 Subordinate officers, committees and
agents.--The board of directors may from time to time elect such
other officers and appoint such committees, employees or other
agents as the business of the corporation may require, including
one or more assistant secretaries, and one or more assistant
treasurers, each of whom shall hold office for such period, have
such authority, and perform such duties as are provided in these
bylaws or as the board of directors may from time to time
determine. The board of directors may delegate to any officer or
committee the power to elect subordinate officers and to retain
or appoint employees or other agents, or committees thereof and
to prescribe the authority and duties of such subordinate
officers, committees, employees or other agents.
Page 7
Section 4.04 Removal of officers and agents.--Any officer
or agent of the corporation may be removed by the board of
directors with or without cause. The removal shall be without
prejudice to the contract rights, if any, of any person so
removed. Election or appointment of an officer or agent shall
not of itself create contract rights.
Section 4.05 Vacancies.--A vacancy in any office because
of death, resignation, removal, disqualification, or any other
cause, shall be filled by the board of directors or by the
officer or committee to which the power to fill such office has
been delegated pursuant to Section 4.03, as the case may be, and
if the office is one for which these bylaws prescribe a term,
shall be filled for the unexpired portion of the term.
Section 4.06 Authority.--All officers of the corporation,
as between themselves and the corporation, shall have such
authority and perform such duties in the management of the
corporation as may be provided by or pursuant to resolutions or
orders of the board of directors or in the absence of
controlling provisions in the resolutions or orders of the board
of directors, as may be determined by or pursuant to these bylaws.
Section 4.07 The chairman and vice chairman of the
board.--The chairman of the board or, in the absence of the
chairman, the vice chairman of the board, shall preside at all
meetings of the shareholders and of the board of directors and
shall perform such other duties as may from time to time be
requested by the board of directors.
Section 4.08 The president.--The president shall be the
chief executive officer of the corporation and shall have
general supervision over the business and operations of the
corporation, subject however, to the control of the board of
directors. The president shall sign, execute, and acknowledge,
in the name of the corporation, deeds, mortgages, bonds,
contracts or other instruments authorized by the board of
directors, except in cases where the signing and execution
thereof shall be expressly delegated by the board of directors,
or by these bylaws, to some other officer or agent of the
corporation; and, in general, shall perform all duties incident
to the office of president and such other duties as from time to
time may be assigned by the board of directors.
Section 4.09 The vice presidents.--The vice presidents
shall perform the duties of the president in the absence of the
president and such other duties as may from time to time be
assigned to them by the board of directors or the president.
Section 4.10 The secretary.--The secretary or an
assistant secretary shall attend all meetings of the
shareholders and of the board of directors and shall record all
the votes of the shareholders and of the directors and the
minutes of the meetings of the shareholders and of the board of
directors and of committees of the board in a book or books to
be kept for that purpose; shall see that notices are given and
records and reports properly kept and filed by the corporation
as required by law; shall be the custodian of the seal of the
corporation and see that it is affixed to documents executed on
behalf of the corporation under its seal; and, in general, shall perform all
Page 8
duties incident to the office of secretary, and such other
duties as may from time to time be assigned by the board of
directors or the president.
Section 4.11 The treasurer.--The treasurer or an
assistant treasurer shall have or provide for the custody of the
funds or other property of the corporation; shall collect and
receive or provide for the collection and receipt of moneys
earned by or in any manner due to or received by the
corporation; shall deposit all funds in his or her custody as
treasurer in such banks or other places of deposit as the board
of directors may from time to time designate; shall, whenever so
required by the board of directors, render an account showing
all transactions as treasurer and the financial condition of the
corporation; and, in general, shall discharge such other duties
as may from time to time be assigned by the board of directors
or the president.
Section 4.12 Salaries.--The salaries of the officers
elected by the board of directors shall be fixed from time to
time by the board of directors or by such officer as may be
designated by resolution of the board. The salaries or other
compensation of any other officers, employees and other agents
shall be fixed from time to time by the officer or committee to
which the power to elect such officers or to retain or appoint
such employees or other agents has been delegated pursuant to
Section 5.03. No officer shall be prevented from receiving such
salary or other compensation by reason of the fact that the
officer is also a director of the corporation.
ARTICLE V
Shares
Section 5.01 Record holder of shares.--The corporation
shall be entitled to treat the person in whose name any share or
shares of the corporation stand on the books of the corporation
as the absolute owner thereof, and shall not be bound to
recognize any equitable or other claim to, or interest in, such
share or shares on the part of any other person.
Section 5.02 Lost, destroyed or mutilated
certificates.--The holder of any shares of the corporation shall
immediately notify the corporation of any loss, destruction or
mutilation of the certificate therefor, and the board of
directors may, in its discretion, cause a new certificate or
certificates to be issued to the holder, in case of mutilation
of the certificate, upon the surrender of the mutilated
certificate or, in case of loss or destruction of the
certificate, upon satisfactory proof of the loss or destruction
and, if the board of directors shall so determine, the deposit
of a bond in such form and in such sum, and with such surety or
sureties, as it may direct.
ARTICLE VI
Indemnification of Directors, Officers and
Other Authorized Representatives
Section 6.01 General.--To the fullest extent permitted by
Pennsylvania law, the corporation shall, in the case of
directors and/or officers, and may, at the discretion of the Board
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of Directors in the case of employees and/or agents of the
corporation, defend, indemnify and hold harmless any such person
who was or is a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal,
administrative or investigative (including, without limitation,
an action, suit or proceeding by or in the right of the
corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding. The
indemnification provided by, or granted pursuant to, this
Article VI shall, unless otherwise provided when authorized or
ratified in the case of an employee or agent, continue as to a
person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 6.02 Interpretation.--The provisions of this
Article are intended to constitute bylaws authorized by 15
Pa.C.S. 1746.
ARTICLE VII
Miscellaneous
Section 7.01 Fiscal year.--The fiscal year of the
corporation shall fixed by the Board of Directors.
Section 7.02 Amendment of bylaws.
(a) General rule.--Except as provided in this Section
7.02 with respect to this Section 7.02 and Section 2.05, these
bylaws may be amended either (i) by vote of the shareholders at
any duly organized annual or special meeting of shareholders, or
(ii) regardless of whether the shareholders have previously
adopted or approved the bylaw being amended, by action of the
Board of Directors. The shareholders may amend Section 2.05, or
this Section 7.02 only by the affirmative vote of not less than
two-thirds of the votes that all shareholders, voting as a
single class, are entitled to cast thereon.
(b) Notification by shareholders.--The notice of a
meeting of the shareholders that will act on an amendment to
these bylaws shall state that the purpose, or one of the
purposes, of the meeting is to consider an amendment of the
bylaws and there shall be included in, or enclosed with, the
notice a copy of the proposed amendment or a summary of the
changes to be effected thereby.
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