tendex101.htm


    
      
         


      

      
         


        
          

        

      

      
         


        
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    Exhibit 10.1


    TENDER
AND VOTING AGREEMENT

     

    This
TENDER AND VOTING AGREEMENT (this “Agreement”) is made
and entered into as of February 16, 2010, by and among L. B. Foster Company, a
Pennsylvania corporation (“Parent”), Foster
Thomas Company, a West Virginia corporation and wholly-owned subsidiary of
Parent (“Acquisition
Co.”), and the individual or entity  identified on Schedule A attached
hereto (the “Shareholder”).

    


    WHEREAS,
simultaneously with the execution of this Agreement, Parent, Acquisition Co. and
Portec Rail Products, Inc., a West Virginia corporation (the “Company”), are
entering into an Agreement and Plan of Merger, dated as of the date hereof (as
the same may be amended or supplemented, the “Merger Agreement”),
which provides, among other things, for the acquisition of the Company by Parent
by means of a cash tender offer (the “Offer”) by
Acquisition Co. for all outstanding shares of common stock, $1.00 par value per
share, of the Company (the “Company Common
Stock”) and for the subsequent merger of Acquisition Co. with and into
the Company with the Company continuing as the surviving entity (the “Merger”);

    


    WHEREAS,
as of the date hereof, the Shareholder is the Beneficial Owner (as defined
below) of the outstanding shares of Company Common Stock set forth opposite the
Shareholder’s name in Schedule A (the
“Owned
Shares”); and

    


    WHEREAS,
as an inducement and a condition to Parent's and Acquisition Co.'s willingness
to enter into the Merger Agreement and incurring the obligations set forth
therein, the Shareholder has agreed to enter into this Agreement;

    


    NOW,
THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein and in
the Merger Agreement, the parties hereto, intending to be legally bound hereby,
agree as follows:

    


    1.    Certain
Definitions.    (a)    Capitalized
terms used but not defined in this Agreement shall have the meanings ascribed to
such terms in the Merger Agreement.  In addition, for purposes of this
Agreement:

     

    “Affiliate” means,
with respect to any specified Person, any Person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, the Person specified.  For purposes of this
Agreement, with respect to the Shareholder, “Affiliate” shall not
include the Company or the Persons that directly, or indirectly through one or
more intermediaries, are controlled by the Company.

     

    “Beneficially Owned”
or “Beneficial
Ownership” with respect to any securities means having both voting power
and investment power (as determined pursuant to Rule 13d-3(a) under the Exchange
Act) over such securities, including pursuant to any agreement, arrangement or
understanding, whether or not in writing.  Without duplicative
counting of the same securities by the same holder, securities Beneficially
Owned by a Person shall include securities Beneficially Owned by all Affiliates
of such Person and all other Persons with whom such Person
would


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    constitute
a “Group” within the meaning of Section 13(d) of the Exchange Act and the rules
promulgated thereunder.

     

    “Beneficial Owner”
with respect to any securities means a Person who has Beneficial Ownership of
such securities.

     

    “Person” means an
individual, corporation, partnership, limited liability company, association,
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.

     

    “Proposed Business
Combination” means the Offer, the Merger and the related transactions
contemplated by the Merger Agreement.

    


    “Transfer” means, with
respect to a security, the sale, transfer, pledge, hypothecation, encumbrance,
assignment, gift or other disposition of such security or the Beneficial
Ownership thereof (other than by operation of law), the offer to make such a
sale, transfer, pledge, hypothecation, encumbrance, assignment, gift or other
disposition, and each option, agreement, arrangement or understanding, whether
or not in writing, to effect any of the foregoing. As a verb, “Transfer” shall have
a correlative meaning.

     

    2.    Tender of
Shares.

     

    (a)           The
Shareholder hereby agrees to validly tender (or cause the record owner of such
shares to validly tender), pursuant to and in accordance with the terms of the
Offer, not later than the 20th business day after commencement of the Offer such
Shareholder’s Owned Shares.  In furtherance of the foregoing, at the
time of such tender, the Shareholder shall: (i) deliver to the depositary
designated in the Offer (the “Depositary”):
(A) a letter of transmittal with respect to the Owned Shares complying with
the terms of the Offer; (B) a certificate or certificates representing such
Owned Shares or an “agent’s message” (or such other evidence, if any, of
transfer as the Depositary may reasonably request) in the case of a book-entry
transfer of any Owned Shares; and (C) all other documents or instruments,
to the extent applicable, in the form required to be delivered by the
shareholders of the Company pursuant to the terms of the Offer; and/or
(ii) cause its broker or such other Person that is the holder of record of
any Owned Shares to tender such Owned Shares pursuant to and in accordance with
the terms of the Offer and within the timeframe specified in the first sentence
of this Section 2(a). The Shareholder shall not withdraw any shares
tendered pursuant to this Section 2(a) unless this Agreement shall have been
terminated in accordance with Section 11 below.

     
 

    (b)           If
the Offer is terminated or withdrawn by Acquisition Co., or the Merger Agreement
is validly terminated prior to the Acceptance Time, Parent and Acquisition Co.
shall promptly return, and shall cause any depository acting on behalf of Parent
and Acquisition Co. to return, all tendered Owned Shares to the registered
holders of the Owned Shares tendered in the Offer.

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    3.    No Disposition of Owned
Shares.  The Shareholder agrees that from and after the date hereof,
except as contemplated by this Agreement, the Shareholder will not (as a
Shareholder, trustee or custodian) (i) Transfer or agree to Transfer any of such
Shareholder’s Owned Shares or any options or warrants or other rights held or
owned by such Shareholder to acquire Company Common Stock (other than any
transfer of an option or warrant to the Company in connection with the exercise
of such option or warrant by such Shareholder) without Parent’s prior written
consent (which consent in the case of a Shareholder which is a natural Person
shall not be unreasonably withheld or delayed in the context of a Transfer to
any member of the immediate family of such Shareholder or to any trust the
Beneficial Ownership of which is held by such Shareholder or the members of such
Shareholder's immediate family, provided in each case that such transferee
agrees, in a form satisfactory to Parent, to be bound by the terms of this
Agreement), or (ii) grant any proxy or power-of-attorney with respect to any
such Owned Shares other than pursuant to this Agreement.

     

    4.    Agreement to Vote;
Dissenter's Rights.    The Shareholder agrees that
(a) at such time as the Company conducts a meeting (including any adjournment
thereof) of or otherwise seeks a vote or consent of its shareholders for the
purpose of approving the Merger Agreement and the transactions contemplated by
the Merger Agreement, including the Merger, such Shareholder will vote, or
provide a consent with respect to, all of such Shareholder's Owned Shares which,
as of the relevant record date, such Shareholder has the power to vote in favor
of approving the Merger Agreement and the transactions contemplated by the
Merger Agreement, including the Merger, and (b) such Shareholder will (at any
meeting of shareholders or in connection with any consent solicitation) vote all
of such Shareholder's Owned Shares which, as of the relevant record date, such
Shareholder has the power to vote, against, and will not consent to, any
Alternative Transaction Proposal with a Person other than Parent and Acquisition
Co. or any action that would or is designed to delay, prevent or frustrate the
Proposed Business Combination.  Without limiting the foregoing, it is
understood that the obligations in this Section 4 shall remain applicable in
respect of each meeting of shareholders of the Company duly called for the
purpose of approving the Merger Agreement and the transactions contemplated
thereby, including the Merger, regardless of the position of the Company’s board
of directors as to the Proposed Business Combination at the time of such
meeting.    The Shareholder hereby irrevocably and
unconditionally waives, and agrees not to assert, exercise or perfect, any and
all rights he, she or it may have as to appraisal, dissent or any similar or
related matter with respect to any of such Shareholder’s Owned Shares that may
arise with respect to the Merger or any of the contemplated transactions,
including under Sections 31D-13-1301 through 31D-13-1331 of the West Virginia
Business Corporation Act.

    


    5.    Irrevocable
Proxy.  The Shareholder hereby revokes (and agrees to cause to
be revoked) all proxies, if any, that it has heretofore granted with respect to
the Owned Shares. The Shareholder hereby irrevocably appoints Parent as
attorney-in-fact and proxy for and on behalf of such Shareholder, until this
Agreement is terminated, for and in the name, place and stead of such
Shareholder, to:

    


    (a)
attend any and all Company Shareholder Meetings;


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (b) vote,
express consent or dissent or issue instructions to the record holder to vote
such Shareholder’s Owned Shares in accordance with the provisions of
Section 4 at any and all Company Shareholder Meetings; and

    


    (c) if
applicable, grant or withhold, or issue instructions to the record holder to
grant or withhold, in accordance with the provisions of Section 4, all
written consents with respect to the Owned Shares at any and all Company
Shareholder Meetings or otherwise.

    


    The
Shareholder hereby affirms that the irrevocable proxy set forth in this
Section is given in connection with, and in consideration of, the execution
of the Merger Agreement by Parent and Acquisition Co., and that such irrevocable
proxy is given to secure the performance of the duties of such Shareholder under
this Agreement.  The Shareholder hereby further affirms that the
irrevocable proxy is coupled with an interest and may under no circumstances be
revoked. The Shareholder hereby ratifies and confirms all actions that such
irrevocable proxyholder may lawfully do or cause to be done by virtue
hereof.  Such irrevocable proxy is executed and intended to be
irrevocable in accordance with the provisions of Section 31D-7-722 of the
West Virginia Business Corporation Act.

    


    6.    Information and
Notice.    The Shareholder: (a) consents to and
authorizes the publication and disclosure by Parent, Acquisition Co. or the
Company, as applicable, of such Shareholder’s identity and holdings of Owned
Shares, the nature of such Shareholder’s commitments, arrangements and
understandings under this Agreement (including, for the avoidance of doubt, the
disclosure of this Agreement) and any other information, in each case, that
Parent, Acquisition Co. or the Company, as applicable, reasonably determines is
required to be disclosed by applicable legal requirements in any press release,
any of the Offer Documents, the Schedule 14D-9 or any other disclosure document
(whether or not filed with the SEC) in connection with the Offer, the Merger and
the other transactions contemplated thereby; and (b) agrees to promptly
give to Parent, Acquisition Co. or the Company, as applicable, any information
it may reasonably require for the preparation of any such disclosure documents.
The Shareholder: (i) represents and warrants that none of the information
provided by or on behalf of such Shareholder pursuant to this Section 6
will, at the time it so provided, contain any untrue statement of material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading; and (ii) agrees to promptly notify Parent,
Acquisition Co. and the Company, as applicable, of any required corrections with
respect to any such information, if and to the extent that any such information
shall have become false or misleading in any material respect. Notwithstanding
the foregoing, Parent, Acquisition Co. and the Company shall use reasonable
efforts to inform the Shareholder of any public disclosure of such information
about the Shareholder prior to making such disclosure public. The Shareholder
shall consult with Parent before issuing any press releases or otherwise making
any public statements with respect to the transactions contemplated hereby and
shall not issue any such press release or make any public statement without the
approval of Parent, except as may be required by applicable legal requirements.
The Shareholder shall notify Parent of any development occurring after the date
hereof that causes, or that would reasonably be expected to cause, any breach of
any of such Shareholder’s representations or warranties in this
Agreement.

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    7.    Additional
Stock.    The Shareholder agrees that any additional
shares of Company Common Stock or securities convertible into Company Common
Stock over which it acquires Beneficial Ownership, whether pursuant to existing
stock option agreements, warrants or otherwise, shall become Owned Shares and be
subject to the provisions of this Agreement.

     

    8.    No
Solicitation.

     

    (a)    Shareholder
will not, in its capacity as a shareholder of the Company, and will use its
reasonable best efforts to ensure that its investment bankers, attorneys,
accountants, agents or other advisors or representatives (the “Shareholder
Representatives”) will not, directly or indirectly, take any action with
respect to any Alternative Transaction Proposal that the Company is prohibited
from taking under Section 5.3 of the Merger Agreement; provided that, in the
event the Company takes permissible action under Section 5.3 of the Merger
Agreement, the  Shareholder will be entitled to participate in all
actions that the Company is or would be entitled to take under Section 5.3 of
the Merger Agreement so long as such actions are taken in compliance with such
Section 5.3.

    


    (b)      Shareholder
will cease and cause to be terminated all existing discussions or negotiations
conducted by Shareholder or at Shareholder's behest with respect to any
Alternative Transaction Proposal (other than with Parent and Acquisition
Co.).

    


     

    9.    Representations, Warranties
and Covenants of the Shareholders.    The Shareholder
hereby represents and warrants to, and agrees with, Parent and Acquisition Co.
as follows:

     

    (a)               If
such Shareholder is not a natural Person, (i) such Shareholder is duly organized
and validly existing under its jurisdiction of formation, (ii) such Shareholder
has full corporate, limited liability company, partnership or trust power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder, and (iii) the execution, delivery and performance by such Shareholder
of this Agreement and the consummation by such Shareholder of the transactions
contemplated hereby have been duly authorized by all necessary corporate,
limited liability company, partnership or trust action on the part of such
Shareholder.  If such Shareholder is a natural Person, he or she (or
the representative or fiduciary signing on his or her behalf, as applicable) has
full legal capacity, right and authority to execute and deliver this Agreement
and to perform his or her obligations hereunder.

     

    (b)               This
Agreement has been duly and validly executed and delivered by such Shareholder
and constitutes a valid, legal and binding agreement of such Shareholder,
enforceable against such Shareholder in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws of general
applicability relating to or affecting creditors’ rights or by general equity
principles.

     

    (c)               Such
Shareholder is the sole Beneficial Owner of such Shareholder’s Owned Shares,
other than those Owned Shares Beneficially Owned by a family trust or child of
such Shareholder. Such Shareholder has the sole right to vote, or cause to be
voted, and to dispose, or cause the disposition, of such Shareholder’s Owned
Shares and there exist no limitations on its


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    ability
to exercise such right. The Shareholder has good and marketable title (which may
include holding in nominee or “street” name) to all of such Shareholder’s Owned
Shares (other than those Owned Shares Beneficially Owned by a family trust or
child of such Shareholder), free and clear of all liens (other than as created
by this Agreement and restrictions on Transfer under applicable securities
laws). The Owned Shares constitute all of the capital stock of the Company
Beneficially Owned by such Shareholder.

     

    (d)               Neither
the execution nor delivery of this Agreement by such Shareholder nor the
Shareholder’s consummation of the transactions contemplated hereby will conflict
with, result in any violation of or constitute a default under (i) any mortgage,
bond, indenture, agreement, instrument or obligation to which such Shareholder
is a party or by which such Shareholder or any of the Owned Shares is bound,
(ii) such Shareholder's constituent documents if the Shareholder is not a
natural person, or (iii) any judgment, decree, order or material law or
regulation of any governmental agency or authority in the United States by which
such Shareholder is bound.

    


    (e)               Such
Shareholder understands and acknowledges that each of Parent and Acquisition Co.
is entering into the Merger Agreement in reliance upon such Shareholder’s
execution, delivery and performance of this Agreement.

     

    10.    Representations and
Warranties of Parent and Acquisition Co.  Parent represents and
warrants to the Shareholder as follows:

    


    (a)           Parent
is a corporation duly organized, validly existing and in good standing under the
laws of the Commonwealth of Pennsylvania with all requisite corporate power and
authority to own, operate and lease its properties, to carry on its business as
now being conducted, and to enter into this Agreement and perform its
obligations hereunder.

    


    (b)           Parent
owns all of the issued and outstanding shares of Acquisition
Co.  Acquisition Co. is a corporation duly organized, validly existing
and in good standing under the laws of the State of West Virginia with all
requisite corporate power to enter into this Agreement and perform its
obligations hereunder.

    


    (c)           Each
of Parent and Acquisition Co. has taken all necessary corporate action to
approve this Agreement and the performance of its obligations
hereunder.  This Agreement has been duly and validly executed and
delivered by each of Parent and Acquisition Co. and constitutes a valid, legal
and binding agreement of each of Parent and Acquisition Co., respectively,
enforceable against each of Parent and Acquisition Co. in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and similar laws of
general applicability relating to or affecting creditors’ rights or by general
equity principles.

    


    (d)           Neither
the execution nor delivery of this Agreement by Parent or Acquisition Co. nor
Parent’s or Acquisition Co.’s consummation of the transactions contemplated
hereby will conflict with, result in any violation of, or constitute a default
under, the Articles of Incorporation or Bylaws of Parent or Acquisition Co. or
any agreement, mortgage, indenture,


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    license,
permit, lease or other instrument material to Parent and its subsidiaries taken
as a whole or any judgment, decree, order, or any material law or regulation of
any governmental agency or authority in the United States by which Parent or any
of its subsidiaries is bound.

    


    11.    Termination.    This
Agreement, and all rights and obligations of the parties hereunder shall
terminate upon the earliest of: (i) the Effective Time of the Merger, (ii) as to
the rights and obligations associated with any Owned Shares under Section 2
hereof, the acceptance for payment of such Owned Shares by Parent or Acquisition
Co. in the Offer, (iii) the termination of this Agreement by written notice from
Parent to the Shareholder, (iv) the termination of the Offer by Parent or
Acquisition Co., or (v) the date upon which the Merger Agreement is terminated
in accordance with its terms without the Merger having been consummated or (vi)
the Merger Agreement shall have been terminated by Company pursuant to Section
8.1(g) or 8.1(h) of the Merger Agreement; provided, however, that:
(A) Section 12(a) and 12(e) shall survive such termination; and
(B) no such termination shall relieve or release the Shareholder, Parent or
Acquisition Co. from any obligations or liabilities arising out of his or its
breach of this Agreement prior to its termination.

     

    12.    Miscellaneous.

     

    (a)    Costs and
Expenses.  Except as otherwise provided in this Agreement, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses.

     

    (b)    
Execution in
Counterparts.  For the convenience of the parties, this
Agreement and any amendments, supplements, waivers and modifications may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
document.

    


    (c)    Assignment.  This
Agreement and all of the provisions hereof shall be binding upon and inure to
the benefit of the parties and their respective successors, personal or legal
representatives, executors, administrators, heirs, distributees, devisees,
legatees and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any party
(whether by operation of law or otherwise), in whole or in part, without the
prior written consent of the other parties; provided, that Parent
or Acquisition Co. may assign any or all rights under this Agreement to any
subsidiary of Parent, and Acquisition Co. may assign any or all rights under
this Agreement to Parent or to another subsidiary of Parent.

     

    (d)    Amendments and
Waivers.  This Agreement may not be amended, changed,
supplemented, or otherwise modified or terminated, except upon the execution and
delivery of a written agreement executed by the parties hereto; provided, that each
of Parent and Acquisition Co. may waive compliance by the Shareholder with any
representation, agreement or condition otherwise required to be complied with by
any other party under this Agreement or release the Shareholder from its
obligations under this Agreement, but any such waiver or release shall be
effective only if in a writing executed by Parent and Acquisition
Co.

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (e)    Notices.   Any
notice or other communication required or permitted to be delivered to any party
under this Agreement shall be in writing and shall be deemed properly delivered,
given and received: (i) if delivered by hand, when delivered; (ii) if
sent via facsimile with confirmation of receipt, when transmitted and receipt is
confirmed; (iii) if sent by electronic mail, telegram, cablegram or other
electronic transmission, upon delivery; (iv) if sent by registered,
certified or first class mail, the third business day after being sent; and
(v) if sent by overnight delivery via a national courier service, one
business day after being sent in each case to the address or facsimile telephone
number set forth beneath the name of such party below (or to such other address
or facsimile telephone number as such party shall have specified in a written
notice given to the other parties hereto):

    


    If
to Parent or

    
      	
               
      

            	
               Acquisition
      Co.:

            	
              L.
      B. Foster Company

            


    

    
      	
               
      

            	
              415
      Holiday Drive

            


    

    
      	
               
      

            	
              Pittsburgh,
      PA 15220

            


    

    
      	
               
      

            	
              Attention:  David
      L. Voltz,

            


    

    
      	
               
      

            	
              Vice
      President and General Counsel

            


    

    
      	
               
      

            	
              fax:  412-928-7891

            


    

    


    
      	
               
      

            	
              With a copy
      to:

            	
              Buchanan
      Ingersoll & Rooney PC

            


    

     

    
      	
               
      

            	
              One
      Oxford Centre

            


    

     

    
      	
               
      

            	
              301
      Grant Street, 20th Floor

            


    

     

    
      	
               
      

            	
              Pittsburgh,
      Pennsylvania 15219

            


    

     

    
      	
               
      

            	
              Attention:  Lewis
      U. Davis, Esq.

            


    

     

    
      	
               
      

            	
              Fax:  (412) 562-1041

            


    

     

    


    


    
      	
               
      

            	
              If to
      Shareholder:

            	
              at
      the address shown on Schedule A
hereto.

            


    

    


    
      	
               
      

            	
              With a copy
      to:

            	
              Luse
      Gorman Pomerenk & Schick, P.C.

            


    

     

    
      	
               
      

            	
              5335
      Wisconsin Ave., N.W.

            


    

     

    
      	
               
      

            	
              Suite
      780

            


    

     

    
      	
               
      

            	
              Washington,
      D.C. 20015

            


    

     

    
      	
               
      

            	
              Attention:
      Alan Schick, Esq.

            


    

     

    
      	
               
      

            	
              Fax:  (202)
      362-2902

            


    

     

     
 

    


    (f)    
Inadequate Remedy at
Law; Specific
Performance.  The Shareholder acknowledges and agrees that in
the event of any breach of this Agreement, Parent would be irreparably and
immediately harmed and could not be made whole by monetary damages. It is
accordingly agreed with respect to any provision of this Agreement that
(i) Shareholder will waive, in any action for specific performance, the
defense of adequacy of a remedy at law, and (ii) Parent shall be entitled, in
addition to any other remedy to which it may be entitled at law or in equity, to
compel specific performance of this Agreement.

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (g)    Cumulative Rights, Powers
and Remedies.  All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance by
any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not constitute
a waiver by such party of its right to exercise any such or other right, power
or remedy or to demand such compliance.

     

    (h)    Entire Agreement; No Third
Party Beneficiaries.  This Agreement, along with the specific
references to the Merger Agreement, constitutes the complete, final and
exclusive agreement among the parties and supersedes any and all prior
agreements and understandings, written or oral, among the parties heretofore
made with respect to the subject matter hereof.  Nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
Person any rights, benefits or remedies of any nature whatsoever under or by
reason of this Agreement.

     

    (i)      Governing Law; Jurisdiction
and Venue. This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Pennsylvania, regardless of any
conflicts-of-law principles (it being understood, however, that with respect to
any matters of corporate law required to be governed by the laws of the State of
West Virginia, such laws shall apply).  In any action between or among
any of the parties arising out of or relating to this Agreement or any of the
transactions contemplated by this Agreement and the Merger
Agreement:  (a) each of the parties irrevocably and
unconditionally consents and submits to the exclusive jurisdiction and venue of
the state and federal courts located in the Western District of the Commonwealth
of Pennsylvania (and agrees not to commence any such action except in such
courts) and irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action brought in such court has been
brought in an inconvenient forum; (b) if any such action is commenced in a
state court, then, subject to applicable Law, no party shall object to the
removal of such action to any federal court located in the Western District of
the Commonwealth of Pennsylvania; and (c) each of the parties irrevocably
consents to service of process by first-class certified mail, return receipt
requested, postage prepaid, to the address at which such party is to receive
notice in accordance with Section 12(e) hereof.  EACH PARTY
ACKNOWLEDGES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY
TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS.
EACH PARTY ACKNOWLEDGES, AGREES AND CERTIFIES THAT: (A) NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD, IN THE EVENT OF LITIGATION, SEEK TO PREVENT OR
DELAY ENFORCEMENT OF EITHER OF SUCH WAIVERS; (B) IT UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS; (C) IT MAKES SUCH WAIVERS
VOLUNTARILY; AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
12(i).

     

    (j)    
Severability.  If
any term, provision, covenant or restriction contained in this Agreement is held
by a court or a federal or state regulatory agency of competent jurisdiction to
be invalid, void or unenforceable under any rule of law in any particular
respect or under any particular circumstances, the remainder of the terms,
provisions and covenants and restrictions contained in this Agreement shall
remain in full force and effect, and shall in no way be affected, impaired or
invalidated.  If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.

    


    (k) Interpretation.  The
section and paragraph captions herein are for convenience of reference only, do
not constitute part of this Agreement and shall not be deemed to limit or
otherwise affect any of the provisions hereof.  The words “include,”
“includes,” and “including” shall be deemed to be followed by “without
limitation” whether or not they are in fact followed by such words or words of
like import.

    


     

    13.    Shareholder
Capacity.  Neither the Shareholder executing this Agreement nor
any partner, member, employee or Affiliate of such Shareholder who is or becomes
during the term hereof a director or officer of the Company makes any agreement
or understanding herein in his or her capacity as such a director or officer,
and this Agreement does not bind any partner, member, employee or Affiliate of
such Shareholder in such person’s capacity as a director or officer of the
Company. The Shareholder executes this Agreement solely in such Shareholder’s
capacity as the owner of record and/or Beneficial Owner of the Owned Shares or
as having the power to vote or dispose of the Owned Shares and nothing herein
(including in Section 4) shall limit or affect any actions taken or omitted to
be taken by such Shareholder, or any partner, member, employee or Affiliate of
such Shareholder, in his or her capacity as an officer or director of the
Company (including, for the avoidance of doubt, any action in the discharge of
fiduciary duties in compliance with Section 5.3 of the Merger Agreement); provided, that
nothing in this Section 13 shall be deemed to permit such Shareholder to take
any action on behalf of the Company that is prohibited by the Merger
Agreement.

     

    14.    Further
Assurances.  From time to time, at Parent’s or Acquisition
Co.’s request and without further consideration, the Shareholder shall execute
and deliver such additional documents and take all such further lawful action as
may be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement.

    


    


    [Remainder
of page intentionally left blank]

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    [Shareholders’
Signature Pages to Shareholder Tender Agreement]

     

    IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.

    


    


    [NAME
OF SHAREHOLDER]

    


    


    By:_________________________________

     

        Name:__________________________

     

        Title:___________________________

     

     
 

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    [Parent’s
and Acquisition Co.‘s Signature Page to Tender and Voting
Agreement]

    


    


    


     

    PARENT:

    


    L.
B. FOSTER COMPANY

    


    


    By: /s/ Stan L.
Hasselbusch

    


    Its:
President and Chief
Executive Officer

     

    


    ACQUISITION
CO.:

    


    FOSTER
THOMAS COMPANY

    


    


    By: /s/ Stan L.
Hasselbusch

    


             Its:
President and Chief
Financial Officer

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    SCHEDULE
A

    


    SHAREHOLDER

    


    
      	
              NAME

            	 
      	
              ADDRESS/FAX
      #

            	 
      	
              NUMBER

              OF
      SHARES

            	 
      	
              PERCENTAGE

              OF
      OWNERSHIP