ESTABLISHMENT AND
PURPOSE
On
December 14, 1994, the Board of Directors of L.B. Foster
Company (the “Company”) adopted the L.B. Foster Company
Supplemental Executive Retirement Plan (the “Plan”).
The Plan was effective January 1, 1994.
The Plan is
intended to constitute a “top hat plan” described in
Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA (i.e., a
plan which is unfunded and which is maintained by an employer
primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated employees). More
specifically, the Plan was established to pay supplemental benefits
to certain executive employees who qualify for benefits under the
L.B. Foster Company 401(k) and Profit Sharing Plan (the
“Qualified Plan”). The Plan is unfunded; the Company
will make the Plan benefit payments solely from its general assets
on a current disbursement basis.
The principal
objective of this Plan is to ensure the payment of a competitive
level of benefits in order to attract, retain and motivate selected
executives. This Plan is designed to provide retirement benefits
lost due to Sections 401(a)(17), 402(g), and 401(a)(4) of the
Internal Revenue Code (the “Code”), as well as any
other sections of the Code limiting the amount the Company can
contribute under the Qualified Plan.
The Plan was
previously amended for compliance with the requirements imposed by
Section 409A of the Code, which generally become effective
January 1, 2005. This restatement of the Plan document is
effective January 1, 2009. The Plan is intended to comply with
the requirements of Section 409A of the Code in form and
operation, and shall be interpreted in a manner consistent with
Section 409A of the Code and regulations promulgated under
Section 409A of the Code.
1.1
“Affiliated Company” means any subsidiary or
affiliate of the Company, whether or not such entity has adopted
the Plan, and any other entity which is a member of a controlled
group as defined under the Code.
1.2
“Beneficiary” means the person or persons
designated by a Participant to receive payment of the
Participant’s benefit under this Plan after the
Participant’s death. At any time after commencement of
participation, a Participant may designate a Beneficiary to receive
the benefit from this Plan in the event of the Participant’s
death. A Participant may change his or her designated Beneficiary
at any time. A Participant may designate any person or persons as
Beneficiaries. Unless otherwise provided in the Beneficiary
designation form, each designated Beneficiary shall be entitled to
equal shares of the benefits payable after the Participant’s
death. If a Participant fails to designate a Beneficiary, or if no
designated Beneficiary survives the Participant for a period of
fifteen (15) days, the Participant’s surviving Spouse
shall be the Beneficiary. If the Participant has no surviving
Spouse, or if the surviving Spouse does not survive the Participant
for a period of fifteen (15) days, the estate of the
Participant shall be the Beneficiary.
1.3
“Board of Directors” means the Board of Directors
of the Company.
1.4
“Code” means the Internal Revenue Code of 1986, as
amended, and as it may be further amended from time to
time.
1.5
“Committee” means the Compensation Committee of the
Board of Directors, or any successor committee to which duties
similar to those of the Compensation Committee have been delegated
by the Board of Directors.
1.6
“Company” means the L.B. Foster Company, a
corporation organized and existing under the laws of the
Commonwealth of Pennsylvania, as well as any Affiliated Company
which the Board of Directors has designated as eligible to adopt
the Plan.
1.7
“Compensation” means Compensation as defined in the
Qualified Plan, but subject to the following
adjustments:
(a) Compensation
will not include any compensation paid in the form of shares of
stock of the Company, any amount realized from the exercise of a
stock option, any amount realized when restricted stock held by a
Participant either becomes freely transferable or is no longer
subject to a substantial risk of forfeiture, or any other
compensation based on the value of stock of the Company or
convertible into stock of the Company.
(b) Compensation
will not include any compensation paid under any incentive plan of
the Company under which the amount of the compensation is
determined based on a measuring period in excess of twelve
months.
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1.8
“Disability” means the condition of a Participant
who:
(a) is
unable to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can
be expected to result in death or can be expected to last for a
continuous period of not less than 12 months; or
(b) is,
by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12
months, receiving income replacement benefits for a period of not
less than 3 months under an accident and health plan covering
employees of the Company.
1.9
“Early Retirement Date” means the first day of the
month immediately following the month in which a Participant
attains age 55.
1.10
“Effective Date” means the effective date of this
Plan. The Plan was originally effective January 1, 1994. This
restatement of the Plan is effective January 1,
2009.
1.11
“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended, and as it may be further amended
from to time.
1.12
“Key Employee” means a Participant who is a key
employee as defined in Section 416(i)(1)(A)(i), (ii) or
(iii) of the Code (applied in accordance with the regulations
under that section but disregarding Subsection
416(i)(5)).
1.13
“Normal Retirement Date” means the first day of the
month immediately following the month in which a Participant
attains age 65.
1.14
“Participant” means an employee of the Company who
becomes and remains a Participant as provided in
Article II.
1.15
“Plan” means this Supplemental Executive Retirement
Plan.
1.16
“Plan Administrator” means the
Committee.
1.17
“Plan Sponsor” means the Company.
1.16
“Qualified Plan” means the L.B. Foster Company
401(k) and Profit Sharing Plan, or such other defined contribution
plan meeting the requirements of Section 401(a) of the Code as may
be maintained by the Company and covering Participants in this Plan
from time to time.
1.17
“Separation From Service” means any event which
constitutes a separation from service within the meaning of
Treasury Regulation Section 1.409A-1(h). For this
purpose, a separation from service will be deemed to have occurred
where the facts and circumstances indicate that the Company and the
Participant reasonably anticipated that (a) no further
services would be performed by the Participant for the Company
after a certain date, or (b) the level of bona fide services
the Participant would perform after such date (whether as an
employee or independent contractor) would permanently decrease to a
level less than fifty percent (50%) of
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the average
level of bona services performed (whether as an employee or
independent contractor) over the immediately preceding period of
thirty-six (36) months (or over the full period of services to
the Company if the Participant has been providing services to the
Company for a period of less than 36 months).
1.18
“Spouse” means the lawful spouse of a Participant
at the earlier of the Participant’s date of death or the date
benefits commence to the Participant under the Plan.
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