What changed in this filing

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Item 5. Other Information

2023-08-08 compared with 2023-05-10 · 23 added, 5 removed, 20 unchanged (58% of the section changed)

Other Information

Trading Arrangements

None of the Company’s directors or “officers,” as defined in Rule 16a-1(f) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), adopted , modified, or terminated a “Rule 10b5-1 trading arrangement” or a “non-Rule 10b5-1 trading arrangement,” as each term is defined in Item 408 of Regulation S-K, during the Company’s fiscal quarter ended June 30, 2023.

Amended and Restated Bylaws

On August 7, 2023, the Company’s Board of Directors (the “Board”) approved the Amended and Restated Bylaws, effective as of such date (the “Amended and Restated Bylaws”).

The Amended and Restated Bylaws include certain changes to the procedures by which shareholders may recommend nominees to the Board, among other updates, including to:

• implement certain revisions to the Amended and Restated Bylaws in line with Pennsylvania law, including (i) clarifying the requirements and procedures relating to virtual shareholder meetings and the notice procedures applicable to shareholder meetings, (ii) describing the role and authority of the presiding officer at any meeting of shareholders, (iii) specifying the procedures for a shareholder to authorize a proxy, (iv) clarifying who has the authority to fill vacancies on the Board, and (v) clarifying the indemnification rights of directors, officers and other persons under the Amended and Restated Bylaws;

• address matters relating to Rule 14a-19 (the “Universal Proxy Rule”) under the Exchange Act, including (i) requiring that any shareholder submitting a nomination notice make a representation as to whether such shareholder intends to solicit proxies in support of director nominees other than the Company’s nominees in accordance with the Universal Proxy Rule, and if so, agree in writing that such shareholder will comply with the requirements of the Universal Proxy Rule;

(ii) providing the Company a remedy if a shareholder fails to satisfy the Universal Proxy Rule requirements;

(iii) requiring that a shareholder inform the Company if such shareholder no longer plans to solicit proxies in accordance with the Universal Proxy Rule;

and (iv) requiring shareholders intending to use the Universal Proxy Rule to provide reasonable evidence of the satisfaction of the requirements under the Universal Proxy Rule at least five business days before the meeting upon request by the Company;

• revise and enhance the procedures and disclosure requirements set forth in the advance notice bylaw provisions for director nominations made and business proposals submitted by shareholders (other than proposals submitted pursuant to Rule 14a-8 under the Exchange Act), including (i) requiring additional information, representations, and disclosures regarding proposing shareholders, proposed nominees, proposed business, and other persons related to, and acting in concert with, a shareholder and the shareholder’s solicitation of proxies;

(ii) requiring a shareholder to be present in person to present its nomination or proposal at a shareholder meeting;

(iii) clarifying that shareholders are not entitled to make additional or substitute nominations or proposals after the submission deadline and may only nominate a number of candidates to the Board that does not exceed the number of directors to be elected at such meeting;

(iv) requiring that if requested by the Secretary of the Company, the Board or any committee of the Board proposed nominees make themselves available for interviews by the Board and any committee of the Board within five business days following the date of such request;

and (v) clarifying the authority of the Secretary of the Company, the Board, or any committee of the Board to request additional information or written verification to demonstrate the accuracy of previously-provided information with respect to proposing shareholders, proposed nominees, and proposed business;

• require any shareholders directly or indirectly soliciting proxies from other shareholders to use a proxy card color other than white, with the white proxy card being reserved for exclusive use by the Board;

• provide that, unless the Company consents in writing to the selection of an alternative forum, (i) the state and federal courts sitting in the judicial district of the Commonwealth of Pennsylvania in the county of the Company’s registered office, will be the sole and exclusive forum for any (A) derivative action or proceeding brought on behalf of the Company, (B) action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer or other employee of the Company to the Company or the Company’s shareholders, (C) action asserting a claim arising pursuant to any provision of the Pennsylvania Business Corporation Law, the Company’s articles of incorporation or the Amended and Restated Bylaws, or (D) action asserting a claim governed by the internal affairs doctrine;

and (ii) the federal district courts of the United States of America will be the sole and exclusive forum for any action asserting a claim arising under the Securities Act of 1933, as amended;

• incorporate certain administrative, modernizing, and conforming changes to provide clarification and consistency, including those regarding meetings of the Board and of the shareholders.

The foregoing description of the Amended and Restated Bylaws does not purport to be complete and is qualified in its entirety by reference to the full text of the Amended and Restated Bylaws, which is filed as Exhibit 3.1 to this Quarterly Report on Form 10-Q and incorporated herein by reference.

See Exhibit Index below.

1 unchanged sentence

Exhibit Number Description

*10.1 2023 Executive Annual Incentive Plan.

*10.2 Form of Restricted Stock Award Agreement (2023).

*10.3 Form of Performance Share Unit Award Agreement and Long Term Incentive Performance Share Unit Program (2023-2025).

*3.1 Amended and Restated Bylaws of the Company.

*31.1 Certification of Chief Executive Officer under Section 302 of the Sarbanes-Oxley Act of 2002.

11 unchanged sentences

FOSTER COMPANY

May 10, 2023 By:

August 8, 2023 By:

/s/ William M.

Senior Vice President

Executive Vice President

and Chief Financial Officer

1 unchanged sentence

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-Q

Item 5. Other Information