EMPLOYMENT AGREEMENT
Exhibit 10.1
THIS AGREEMENT (the “Agreement”) is entered into by and between FreightCar America, Inc., a
Delaware corporation (the “Company”), and Xxxxxxxxxxx X. Xxxxx (the “Executive”), effective as of
January 14, 2009 (the “Effective Date”).
WHEREAS, the Executive and the Company have reached agreement concerning the terms and
conditions of his employment and wish to formalize that agreement;
NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions stated in this
Agreement, the Executive and the Company agree as follows:
1. Employment, Position and Duties. The Company shall employ the Executive, and the
Executive hereby agrees to serve the Company, as its Vice President, Finance, Chief Financial
Officer and Treasurer, and the Executive shall have such responsibilities, duties and authority as
are customarily associated with such office. The Executive also hereby agrees to serve as an
officer of such of the Company’s subsidiaries (if any) as the Company’s Chief Executive Officer
shall reasonably request.
2. Term. The employment of the Executive by the Company pursuant to this Agreement
will commence as of the Effective Date and will terminate three (3) years thereafter; provided,
however, that this Agreement shall remain in effect from year to year thereafter unless, not less
than ninety (90) days prior to the then termination of the term of this Agreement, either the
Executive or the Company shall deliver to the other written notice of his or its intention not to
continue in effect this Agreement, in which case this Agreement shall terminate as of December 31
of the year in which such notice is given (the “Term”); and provided further that, if a Change in
Control (as defined below) shall have occurred during the Term, this Agreement shall continue in
effect and the Term shall be extended until at least the second anniversary of such Change in
Control.
3. Duties. During the Term:
(a) The Executive shall report to the Company’s Chief Executive Officer.
(b) The Executive will devote substantially all his full working time and best
efforts, talents, knowledge and experience to serving the Company. However, the Executive
may devote reasonable working time to activities such as supervision of personal
investments and activities involving professional, charitable, educational, religious and
similar types of activities, speaking engagements and membership on other boards of
directors, provided that such activities do not interfere in any substantial way with the
business of the Company; and provided further, that the Executive may not serve on the
board of directors of any other for-profit company without the prior written approval
of the Board or of a Board committee to which such approval shall have been delegated.
The time involved in such activities shall not be treated as vacation time. The Executive
shall be entitled to keep any amounts paid to him in connection with such activities (e.g.,
director fees and honoraria).
(c) The Executive will perform his duties diligently and competently and shall act in
conformity with the Company’s written and oral policies and within the limits, budgets and
business plans set by the Board. The Executive will at all times during the Term adhere to
and obey all of the rules and regulations in effect from time to time relating to the
conduct of executives of the Company. Except as provided in (b) above, the Executive shall
not engage in consulting work or any trade or business for his own account or for or on
behalf of any other person, firm or company that competes, conflicts or interferes with the
performance of his duties hereunder in any way.
4. Place of Performance. In connection with the Executive’s employment by the
Company, the Executive shall be based at the Company’s offices in Chicago, Illinois, except for
required travel on the Company’s business.
5. Compensation and Related Matters. As compensation and consideration for the
performance by the Executive of the Executive’s duties, responsibilities and covenants pursuant to
this Agreement, the Company agrees to pay the Executive and the Executive agrees to accept in full
payment for such performance the amounts and benefits set forth below:
(a) Salary. Commencing as of the Effective Date, the Company shall pay to the
Executive an annual base salary (“Base Salary”) of three hundred and fifty thousand dollars
($350,000). Thereafter, the Board, or such committee of the Board as is responsible for
setting the compensation of senior executive officers, shall review the Executive’s Base
Salary annually in January of each year, in light of competitive data, the Company’s
performance, and the Executive’s performance, and determine whether to increase the
Executive’s Base Salary on a prospective basis. The first review shall be in January 2010.
Such adjusted annual salary then shall become the Executive’s “Base Salary” for purposes
of this Agreement. The Executive’s annual Base Salary shall not be reduced at any time,
including after any increase, without the Executive’s consent. The Company shall pay the
Executive’s Base Salary according to payroll practices in effect for all senior executive
officers of the Company.
(b) Annual Bonus. The Executive will be eligible for an annual cash bonus
(the “Bonus”) in accordance with the provisions of the Company’s annual bonus plan as then
in effect (“Bonus Plan”), based on performance, and calculated as a percentage of the
Executive’s Base Salary. Initially, the Executive will participate in the Bonus Plan at
the Group A, forty percent (40%) of Base Salary target level. In any plan adopted by the
Company to replace the current Bonus Plan, the Executive’s participation will have a
potential payout at least equal to his potential payout under the current Bonus Plan.
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The Company shall pay the Executive’s Bonus, if any, at the same time as annual cash
bonus payments for such year are made to other participants with respect to such fiscal
year, and in all events within the two and one half (21/2) months following the end of the
fiscal year in which the Bonus is earned. The Bonus is intended to qualify for the
short-term deferral exception to Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”).
(c) Equity Compensation. On the Effective Date, the Company shall award the
Executive ten thousand (10,000) shares of Restricted Stock in accordance with and subject
to the terms of the FreightCar America, Inc. 2005 Long Term Incentive Plan (the “2005
LTIP”), vesting in three annual installments beginning on the first anniversary of the
Effective Date, of 3333, 3333, and 3334 shares respectively. This Restricted Stock award
would become fully vested upon a Change in Control. During the Term the Executive shall be
eligible for future awards under the 2005 LTIP or any similar or successor plan, in the
sole discretion of the Board.
(d) Make Whole Agreement. It is anticipated that as a result of the
Executive’s terminating his employment with The Xxxxxxx Companies (“Xxxxxxx”), Xxxxxxx may
not pay the Executive a bonus for the 2008 calendar year under Xxxxxxx’x annual incentive
bonus plan (the “Xxxxxxx Bonus”). Within thirty (30) days following the date as of which
Xxxxxxx makes bonus payments in respect of 2008 to participants under such plan, the
Executive will notify the Company’s Chief Executive Officer whether Xxxxxxx has paid him
the Xxxxxxx Bonus, provided that the Company’s Chief Executive Officer must receive such
notification by December 31, 2009. Subject to the preceding sentence, if the Executive
provides a reasonable written certification to the Company that, as a result of his
terminating his employment with Xxxxxxx, Xxxxxxx did not pay him the Xxxxxxx Bonus,
together with his best good-faith estimate of the amount of the forgone Xxxxxxx Bonus, then
the Company will pay such amount to the Executive within sixty (60) days of receiving such
written certification. The Company’s obligation under the foregoing provision shall,
however, be subject to the following:
(i) upon the Company’s request, the Executive will provide the Company with such
supporting documentation as the Company may reasonably request concerning the
aforementioned matters;
(ii) the maximum total amount the Company shall pay to the Executive under this
Section 5(d) shall not in any event exceed sixty thousand dollars ($60,000); and
(iii) if the Executive voluntarily terminates his employment with the Company
before December 31, 2009, other than for Good Reason, then the Executive will repay
to the Company the full amount of the forgone Xxxxxxx Bonus which was so paid by the
Company.
(e) Relocation. The Company will reimburse the Executive’s reasonable moving
expenses in relocating to the Chicago, Illinois metropolitan
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area. Until the Executive relocates, the Company will pay or reimburse commuting
expenses between the Executive’s home in Ohio and the Company’s offices in Chicago,
Illinois. Pursuant to this Section 5(e), the Company will also provide such other
relocation-related benefits as have been separately discussed with the Executive, including
without limitation reasonable assistance in marketing the Executive’s current residence in
Ohio and reimbursement of the reasonable expenses of the Executive and his family for:
(i) shipment of reasonable and customary household goods, with up to thirty (30) days
storage, from Ohio to the Chicago metropolitan area, (ii) shipment of up to two automobiles
from Ohio to the Chicago metropolitan area, (iii) round trip air fare, lodging, meals and
related expenses for up to two pre-move home-finding trips for the Executive and his
spouse, (iv) closing costs on the purchase of the new residence, and (vi) one-way air
transportation for the Executive and his family from Ohio to Chicago. If the Executive
voluntarily terminates his employment with the Company, other than for Good Reason, then
the Executive will reimburse the Company for the following portion of the expenses incurred
by the Company under this Section 5(e) (the “Relocation Expenses”): (A) if the termination
occurs on or prior to December 31, 2009, the total amount of the Relocation Expenses, (B)
if the termination occurs after December 31, 2009 but before December 31, 2010, an amount
equal to the total Relocation Expenses multiplied by a fraction, the numerator of which is
the number of days remaining in calendar year 2010 as of the date of such termination and
the denominator of which is 365, and (C) if the termination occurs on or after December 31,
2010, no reimbursement of Relocation Expenses shall be due from the Executive. All
reimbursements of expenses pursuant to this Section 5(e) shall be made to the Executive in
accordance with the policies and procedures established by the Company, provided that to
the extent any reimbursements are subject to Code Section 409A, such reimbursements will be
made in accordance with Treasury Regulation § 1.409A-3(i)(1)(iv) (or any similar or
successor provisions).
(f) Automobile Allowance. During his employment hereunder, the Company shall
make payments to the Executive of five hundred dollars ($500.00) per month to defray costs
associated with the Executive’s automobile.
(g) Other Benefits. The Executive shall be entitled to participate in or
receive benefits under any employee benefit plan, arrangement or perquisite made available
by the Company at any time during his employment hereunder to its executive employees
(collectively the “Benefit Plans”), including without limitation each retirement, 401(k)
and profit sharing plan, group life insurance and accident plan, medical and dental
insurance plan, and disability plan, subject to and on a basis consistent with the terms,
conditions and overall administration of such plans and arrangements. The Company reserves
the right to make changes to any plan, arrangement or perquisite in which the Executive
participates, including termination of any such plan or arrangement, in its sole
discretion, if such changes do not result in a proportionately greater reduction in
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the rights of or benefits to the Executive as compared with other executives of the
Company or if such changes are required by law or are technical changes.
(h) Expenses. The Executive shall be entitled to receive an advance or prompt
reimbursement for all reasonable travel and entertainment expenses or other out-of-pocket
business expenses incurred by the Executive during the Term in fulfilling the Executive’s
duties and responsibilities under this Agreement, including all expenses of travel and
living expenses while away from home on business or at the request and in the service of
the Company, provided that such expenses are incurred and accounted for in accordance with
the policies and procedures established by the Company. All reimbursements of expenses
shall be made to the Executive in accordance with the policies and procedures established
by the Company and in all events within the two and one-half (21/2) months following the end
of the year in which the expense is incurred.
(i) Vacation. During his employment hereunder, the Executive shall be
entitled to paid vacations in each calendar year, determined in accordance with the
Company’s vacation policy but not less than four weeks per year. The Executive shall also
be entitled to all paid holidays and personal days given by the Company to its executive
employees.
6. Termination. The Company, upon action by the Board, may terminate the Executive’s
employment hereunder under the following circumstances:
(a) Death. The Executive’s employment hereunder shall terminate upon his
death.
(b) Disability. The Company may terminate the Executive’s employment
hereunder in the event of the Executive’s Disability. For purposes of this Agreement,
“Disability” shall mean, in the written opinion of a qualified physician selected by the
Company, the Executive is, by reason of any medically determinable physical or mental
impairment that can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, (i) unable to engage in any substantial
gainful activity, or (ii) receiving income replacement benefits for a period of not less
than 3 months under the Company’s disability plan.
(c) Cause. The Company may terminate the Executive’s employment hereunder for
Cause. For purposes of this Agreement, the Company shall have “Cause” to terminate the
Executive’s employment hereunder upon the Executive’s (i) willful and continued failure
substantially to perform his material duties with Company (other than due to Disability),
or the commission of any activities constituting a material violation or material breach of
any federal, state or local law or regulation applicable to the activities of Company, in
each case, after notice thereof from the Board to the Executive and (where possible) a
reasonable opportunity for the Executive to cease and cure such failure, breach or
violation in all respects, (ii) fraud, breach of fiduciary
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duty, dishonesty, misappropriation or other act that causes material damage to the
Company’s property or business, (iii) repeated absences from work such that the Executive
is unable to perform his employment or other duties in all material respects, other than
due to Disability or a condition that with the passage of time would become a Disability,
(iv) admission or conviction of, or plea of nolo contendere to, any crime that, in the
reasonable judgment of the Board, adversely affects the Company’s reputation or the
Executive’s ability to carry out the obligations of his employment, (v) failure to
reasonably cooperate with the Company in any internal investigation or administrative,
regulatory or judicial proceeding, after notice thereof from the Board to the Executive and
a reasonable opportunity for the Executive to cure such non-cooperation or, (vi) act or
omission in violation or disregard of the Company’s policies, including but not limited to
the harassment and discrimination policies and Standards of Conduct of the Company then in
effect, in such a manner as to cause significant loss, damage or injury to the property,
reputation or employees of the Company. In addition, the Executive’s employment shall be
deemed to have terminated for Cause if, after the Executive’s employment has terminated,
facts and circumstances are discovered that would have justified a termination for Cause.
For purposes of this Agreement, no act or failure to act on the Executive’s part shall be
considered “willful” unless it is done, or omitted to be done, by him in bad faith or
without reasonable belief that his action or omission was in the best interests of the
Company. Any act or failure to act based upon authority given pursuant to a resolution
duly adopted by the Board or based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, in good faith and in the best
interests of the Company.
(d) For purposes of this Agreement, the Executive’s employment with the Company shall
be deemed to be terminated when the Executive has a “Separation from Service” within the
meaning of Code Section 409A, and references to termination of employment shall be deemed
to refer to a Separation from Service.
7. Compensation Upon Termination, Death or During Disability.
(a) Termination for any Reason. If the Executive’s employment terminates for
any reason, the Company shall pay to him (or his representative) within thirty (30) days
(i) the Executive’s earned but unpaid Base Salary through the date of termination, (ii) any
annual incentive plan bonus, or other form of incentive compensation, for which the
performance measurement period has ended and the payment amount earned, but which is unpaid
at the time of termination, (iii) any accrued but unpaid vacation, (iv) any amounts payable
under any of the Company’s employee benefit plans in accordance with the terms of those
plans, except as may be required under Code Section 401(a)(13), and (v) unreimbursed
business expenses incurred by the Executive on the Company’s behalf under Section 5(h).
(b) Death or Disability. If the Executive’s employment is terminated due to
his death or Disability, the Company shall pay the Executive the benefits
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and amounts under Section 7(a), including life or long-term disability insurance
benefits, and the Company shall, thereafter, have no further obligations to the Executive
under this Agreement.
(c) Cause or By Executive Other than for Good Reason. If the Executive’s
employment is terminated by the Company for Cause or by the Executive for other than Good
Reason, the Company shall pay the Executive the benefits and amounts under Section 7(a),
and the Company shall, thereafter, have no further obligations to the Executive under this
Agreement. For purposes of this Agreement, “Good Reason” shall mean, without the
Executive’s written consent, the occurrence of any of the following conditions: (i) a
Change in Control pursuant to which the buyer does not either assume this Agreement or
otherwise agree to employ the Executive at or after the acquisition date on terms
substantially comparable in the aggregate to this Agreement, or (ii) unless such condition
is fully corrected within 60 days after written notice thereof, the Company (A) permanently
and materially diminishes the Executive’s authority, duties, or responsibilities, including
without limitation reporting responsibilities, (B) materially reduces the Executive’s
overall compensation, including Base Salary, Bonus opportunity and equity award
participation, (C) requires the Executive to relocate his principal business office to a
location not within 50 miles of the Company’s principal business office located in the
Chicago, Illinois metropolitan area, or (D) materially breaches the terms of this
Agreement. Notwithstanding anything in this Agreement to the contrary, a separation from
service due to Good Reason must occur, if at all, within 120 days after the Company
receives written notice of any one or more of the conditions set forth in this Section
7(c). The Executive must provide the Company with written notice of any one or more of the
conditions set forth in this Section 7(c) within 90 days of the initial existence of the
condition in order for such condition to constitute Good Reason under this Agreement.
For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred
if the conditions set forth in any one of the following paragraphs shall have been
satisfied:
(i) any Person is or becomes the Beneficial Owner, directly or indirectly, of
securities of the Company (not including any securities beneficially owned by such
Person that were acquired directly from the Company or its affiliates) representing
fifty percent (50%) or more of the combined voting power of the Company’s then
outstanding securities; or
(ii) the shareholders of the Company approve a merger or consolidation of the
Company with any other corporation and such shareholder approval results in
consummation of said merger or consolidation, other than (A) a merger or
consolidation that would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining outstanding
or by being converted into voting securities of the surviving entity), in
combination with the ownership of any trustee or other fiduciary holding
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securities under an employee benefit plan of the Company, at least sixty
percent (60%) of the combined voting power of the voting securities of the Company
or such surviving entity outstanding immediately after such merger or
consolidation, or (B) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no Person
acquires more than fifty percent (50%) of the combined voting power of the
Company’s then outstanding securities; or
(iii) the shareholders of the Company approve a plan of complete liquidation
of the Company or an agreement for the sale or disposition by the Company of all or
substantially all the Company’s assets and such shareholder approval results in
consummation of said liquidation, sale or disposition.
For purposes of this Agreement, “Beneficial Owner” shall have the meaning
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”). For purposes of this Agreement, “Person” shall have the meaning
given in Section 3(a)(9) of the Exchange Act, as modified and used herein; however,
a Person shall not include (A) the Company or any of its subsidiaries, (B) a
trustee or other fiduciary holding securities under an employee benefit plan of the
Company or any of its subsidiaries, (C) an underwriter temporarily holding
securities pursuant to an offering of such securities, or (D) a corporation owned,
directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company.
(d) By Company Without Cause or By Executive for Good Reason. If the Company
terminates the Executive’s employment without Cause, or the Executive terminates his
employment for Good Reason, then the Company shall provide the following payments and
benefits, in addition to the payments and benefits under Section 7(a):
(i) The Company shall pay the Executive’s Base Salary for twelve (12) months
following the date of termination; provided that, notwithstanding anything in this
paragraph 7(d)(i) to the contrary, if the Executive terminates his employment for
Good Reason due to a Change in Control, the Company shall pay the Executive’s Base
Salary for twenty-four (24) months following the date of termination;
(ii) The Company shall make a payment to the Executive, equal to the
Executive’s target level Bonus under the Bonus Plan, for the year of termination,
with the payment made on the first March 15 following the year of the Executive’s
termination; provided that, notwithstanding anything in this paragraph 7(d)(ii) to
the contrary, if the Executive terminates his employment for Good Reason due to a
Change in Control, the Company shall pay the Executive the bonus payment amount
referred to in this paragraph multiplied by two (2);
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(iii) The Company shall make available continued participation in the
Company’s group health benefit plan to the Executive, and such members of his
family who participated in the group health plan at the time of the Executive’s
termination, for a period of twelve (12) months at the same costs and coverage
levels and under the same general terms and provisions of such plan as apply to
active employees after the Executive’s termination; provided that, notwithstanding
anything in this paragraph 7(d)(iii) to the contrary, if the Executive terminates
his employment for Good Reason due to a Change in Control, the period referred to
in this paragraph shall be extended to twenty-four (24) months; and provided
further that, to the extent such continued coverage extends beyond the COBRA
continuation period, such coverage will be provided in accordance with the
requirements of Code Section 409A and Treasury Regulation §1.409A-3(i)(1)(iv) (or
any similar or successor provisions); and
(iv) No payments or benefits provided to the Executive hereunder shall be
reduced by any amount the Executive may earn or receive from employment with
another employer or from any other source.
(e) The obligations of the Company to make payments and provide benefits under this
Section 7 shall survive the termination of this Agreement.
8. Restrictive Covenants
(a) Confidential Information. The Executive understands that the Company
possesses and will possess Confidential Information that is important to its business. The
Company devotes significant financial, human and other resources to the development of its
products, its customer base and the general goodwill associated with its business and the
Company diligently maintains the secrecy and confidentiality of its Confidential
Information. For purposes of this Agreement, “Confidential Information” is information
that was or will be developed, created, or discovered by or on behalf of the Company, or
that became or will become known by, or was or is conveyed to the Company, which has
commercial value in the Company’s business. Confidential Information is sufficiently secret
to derive economic value from its not being generally known to other persons. Confidential
Information also includes any and all financial, technical, commercial or other information
concerning the business and affairs of the Company that is confidential and proprietary to
the Company, including without limitation, (i) information relating to the Company’s past
and existing customers and vendors and development of prospective customers and vendors,
including without limitation specific customer product requirements, pricing arrangements,
payments terms, customer lists and other similar information; (ii) inventions, designs,
methods, discoveries, works of authorship, creations, improvements or ideas developed or
otherwise produced, acquired or used by the Company; (iii) the Company’s proprietary
programs, processes or software, consisting of but not limited to, computer programs in
source or object code and
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all related documentation and training materials, including all upgrades, updates,
improvements, derivatives and modifications thereof and including programs and
documentation in incomplete stages of design or research and development; (iv) the subject
matter of the Company’s patents, design patents, copyrights, trade secrets, trademarks,
service marks, trade names, trade dress, manuals, operating instructions, training
materials, and other industrial property, including such information in incomplete stages
of design or research and development; and (v) other confidential and proprietary
information or documents relating to the Company’s products, business and marketing plans
and techniques, sales and distribution networks and any other information or documents
which the Company reasonably regards as being confidential.
The Executive understands that the Company possesses or will possess “Company
Materials” that are important to its business. For purposes of this Agreement, “Company
Materials” are documents or other media or tangible items that contain or embody
Confidential Information or any other information concerning the business, operations or
future/strategic plans of the Company, whether such documents have been prepared by the
Executive or by others. In consideration of the Executive’s employment by the Company, the
compensation received by the Executive from the Company, and the Company’s agreement to
give the Executive access to certain Confidential Information, the Executive agrees as
follows:
(i) All Confidential Information and trade secret rights, and other
intellectual property and rights (collectively “Rights”) in connection therewith
will be the sole property of the Company. At all times, both during the
Executive’s employment by the Company and after its termination for any reason, the
Executive will keep in confidence and trust and will not use or disclose any
Confidential Information or anything relating to it without the prior written
consent of a then current officer of the Company except as may be necessary and
appropriate in the ordinary course of performing Executive’s duties to the Company.
(ii) All Company Materials will be the sole property of the Company. The
Executive agrees that during the Executive’s employment by the Company, the
Executive will not remove any Company Materials from the business premises of the
Company or deliver any Company Materials to any person or entity outside the
Company, except as the Executive is required to do so in connection with performing
the duties of his employment. The Executive further agrees that, immediately upon
the termination of the Executive’s employment by the Executive or by the Company
for any reason, or during the Executive’s employment if so requested by the
Company, the Executive will return all Company Materials, apparatus, equipment and
other physical property, or any reproduction of such property, excepting only the
Executive’s copy of this Agreement.
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(b) Noncompetition and Nonsolicitation. While employed by the Company and for
a period of twelve (12) consecutive months thereafter, the Executive will not, directly or
indirectly:
(i) Contact, solicit, interfere with, or divert, or induce or attempt to
contact, solicit, interfere with or divert, any of the Company’s customers;
(ii) Participate or engage in (as an owner, partner, employee, officer,
director, independent contractor, consultant, advisor or in any other capacity
calling for the rendition of services, advice, or acts of management, operation or
control) any business engaged in the manufacture of railcars in North America; and
(iii) Solicit or induce or attempt to solicit or induce, by or for himself, or
as the agent of another, or through others as an agent in any way, any person who
is employed by the Company for the purpose of encouraging that employee to join the
Executive as a partner, agent, employee or otherwise in any business activity which
is competitive with the Company.
(c) Forfeitures. In the event that the Executive materially breaches any of
the restrictions in this Section 8, he shall forfeit all of the applicable payments and
benefits under this Agreement, including but not limited to such payments and benefits
pursuant to Section 7, and the Company shall have the right to recapture and seek repayment
of any such applicable payments and benefits under this Agreement.
(d) Intellectual Property. “Inventions” includes all improvements,
inventions, designs, formulas, works of authorship, trade secrets, technology, computer
programs, compositions, ideas, processes, techniques, know-how and data, whether or not
patentable, made or conceived or reduced to practice or developed by the Executive, either
alone or jointly with others, during the term of the Executive’s employment, including
during any period prior to the date of this Agreement. Except as defined in this
Agreement, all Inventions that the Executive makes, conceives, reduces to practice or
develops (in whole or in part, either alone or jointly with others) during his employment
will be the sole property of the Company to the maximum extent permitted by law. The
Executive agrees to assign such Inventions and all Rights in them to the Company.
Exemptions from this agreement to assign may be authorized in those circumstances where the
mission of the Company is better served by such action, provided that overriding
obligations to other parties are met and such exemptions are not inconsistent with other
Company policies. Further, the Executive may petition the Company for license to make,
market or sell a particular Invention.
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(e) Injunction. The Executive acknowledges that monetary damages will not be
an adequate remedy for the Company in the event of a breach of this Section 8, and that it
would be impossible for the Company to measure damages in the event of such a breach.
Therefore, the Executive agrees that, in addition to other rights and remedies that the
Company may have, the Company is entitled to an injunction preventing the Executive from
any breach of this Section 8, and the Executive hereby waives any requirement that the
Company post any bond in connection with any such injunction. The Executive further agrees
that injunctive relief is reasonable and necessary to protect a legitimate, protectible
interest of the Company.
(f) Blue Pencil. If any court determines that the covenants contained in this
Section 8, or any part hereof, are unenforceable because of the duration or geographic
scope of such provision, such court shall have the power to reduce the duration or scope of
such provision, as the case may be, to as close to the terms hereof as shall be enforceable
and, in its reduced form, such provision shall then be enforceable.
(g) Survival. The restrictive covenants contained in this Section 8 shall
survive the termination of this Agreement.
9. Code Section 409A.
(a) This Agreement is intended to comply with Code Section 409A and the
interpretative guidance thereunder, including the exceptions for short-term
deferrals, separation pay arrangements, reimbursements, and in-kind distributions,
and shall be administered accordingly. This Agreement shall be construed and
interpreted with such intent.
(b) Each payment under this Agreement or any Company benefit plan is intended
to be treated as one of a series of separate payments for purposes of Code Section
409A and Treasury Regulation §1.409A-2(b)(2)(iii) (or any similar or successor
provisions).
(c) To the extent that payments under this Agreement are subject to Code
Section 409A and are on account of a Separation from Service and the Executive is
a “Specified Employee” (as defined below) as of the date of termination,
distributions to the Executive may not be made before the date that is six (6)
months after the date of Separation from Service or, if earlier, the date of the
Executive’s death (the “Six Month Delay Rule”). Payments to which the Executive
would otherwise be entitled during the first six (6) months following the date of
termination (the “Six Month Delay”) will be accumulated and paid on the first day
of the seventh month following the date of termination (or the Executive’s death,
if earlier).
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(d) During the Six-Month Delay, the Company will pay to the Executive any
applicable payments to the extent any of the following exceptions to the Six-Month
Delay Rule apply:
| (i) | the short-term deferral rule of Code Section 409A and Treasury Regulation §1.409A-1(b)(4) (or any similar or successor provisions), | ||
| (ii) | payments permitted under the separation pay exception of Code Section 409A and Treasury Regulation §1.409A-1(b)(9)(iii) (or any similar or successor provisions), and | ||
| (iii) | payments permitted under the limited payments exception of Code Section 409A and Treasury Regulation §1.409A-1(b)(9)(v)(D) (or any similar or successor provisions), |
provided that the amount paid under this paragraph will count toward, and will not
be in addition to, the total payment amount required to be made to the Executive
by the Company on account of the Separation from Service and any applicable
Company benefit plan.
(e) For purposes of this Agreement, the term “Specified Employee” has the
meaning given to that term in Code Section 409A and Treasury Regulation
§1.409A-1(i) (or any similar or successor provisions).
(f) The Executive agrees that the Company may amend this Agreement to the
minimum extent necessary to satisfy the applicable provisions of Code Section 409A
and the Treasury Regulations or other guidance issued thereunder. The Company
cannot guarantee that the payments and benefits that may be paid or provided
pursuant to this Agreement will satisfy all applicable provisions of Code Section
409A.
10. Miscellaneous.
(a) Representations of the Executive. The Executive represents and warrants
to the Company that this Agreement when executed by the Executive will not conflict with
any other agreement or obligation of the Executive and that the Executive is not bound by
any agreement with any third party which would prohibit the Executive from his involvement
with the Company or result in any liability to the Executive or to the Company.
(b) Binding Agreement. This Agreement and all rights of the Executive
hereunder shall inure to the benefit of and be enforceable by the Executive’s personal or
legal representatives, executors, administrators, successors, heirs, distributees, devisees
and legatees. If the Executive should die while any amounts would still be payable to him
hereunder if he had continued to live, all such amounts, unless otherwise provided herein,
shall be paid in
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accordance with the terms of this Agreement to the Executive’s devisee, legatee, or
other designee or, if there be no such designee, to the Executive’s estate.
(c) Notice. Notices, demands and all other communications provided for in
this Agreement shall be in writing and shall be deemed to have been duly given when
delivered, if delivered personally, or (unless otherwise specified) mailed by United States
certified or registered mail, return receipt requested, postage prepaid, and when received
if delivered otherwise, addressed as follows:
If to the Executive:
Xxxxxxxxxxx X. Xxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
0000 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
If to the Company:
c/o FreightCar America, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: President and Chief Executive Officer
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: President and Chief Executive Officer
or to such other address as any party may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective only upon
receipt.
(d) Amendments, Waivers, Governing Law, Validity, Counterparts and Entire
Agreement. No provision of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing, signed by the Executive and
such officers of the Company as may be specifically designated by the Board. No waiver by
either party hereto (the Company on one hand, and the Executive, on the other hand) at any
time of any breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or subsequent
time. The validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the State of Illinois without regard to its conflicts of law
principles. The invalidity or enforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument. This Agreement sets forth the entire
agreement of the parties hereto in respect of the subject matter contained herein and
supersedes all other agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer, employee or
representative of any party
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hereto; and any prior agreement of the parties hereto with respect to the subject
matter contained herein is hereby terminated and canceled.
(e) Injunctive Relief. The Executive agrees that in addition to any other
remedy provided at law or in equity or in this Agreement, the Company shall be entitled to
a temporary restraining order and both preliminary and permanent injunctions restraining
the Executive from violating any provision of Section 8 of this Agreement.
(f) Dispute Resolution. In the event of any dispute or claim relating to or
arising out of this Agreement, the Executive and the Company agree that all such disputes
shall be fully and finally resolved by binding arbitration conducted by the American
Arbitration Association (“AAA”) in Chicago, Illinois in accordance with the AAA’s National
Rules for the Resolution of Employment Disputes, provided, however, that this arbitration
provision shall not apply to, and the Company shall be free to seek, injunctive or other
equitable relief with respect to any actual or threatened breach or violation by the
Executive of his obligations under Section 8 hereof in any court having appropriate
jurisdiction. The Executive acknowledges that by accepting this arbitration provision he
is waiving any right to a jury trial in the event of a covered dispute. The arbitrator
may, but is not required to, order that the prevailing party shall be entitled to recover
from the losing party its attorneys’ fees and costs incurred in any arbitration arising out
of this Agreement. The Company and the Executive agree that the jurisdiction and venue for
any disputes arising under, or any action brought to enforce (or otherwise relating to),
Section 8 of this Agreement shall be exclusively in the courts in the State of Illinois,
Xxxx County, including the Federal Courts located therein (should Federal jurisdiction
exist), and the Company and the Executive hereby submit and consent to said jurisdiction
and venue.
(g) Withholding. All payments made to the Executive pursuant to this
Agreement shall be subject to applicable withholding taxes, if any, and any amount so
withheld shall be deemed to have been paid to the Executive for purposes of amounts due to
the Executive under this Agreement.
(h) Removal from any Boards and Positions. If the Executive’s employment is
terminated for any reason under this Agreement, he shall be deemed to resign (i) if a
member, from the Board or board of directors of any affiliate or any other board to which
he has been appointed or nominated by or on behalf of the Company and (ii) from any
position with the Company or any affiliate, including, but not limited to, as an officer of
the Company or any of its affiliates.
(i) Insurance; Indemnification. During the Term and through at least the
fifth anniversary of the Executive’s termination of employment from the Company, the
Company agrees to maintain the Executive as an insured party on all directors’ and
officers’ insurance maintained by the Company for the benefit of its directors and officers
on at least the same basis as all other covered
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individuals and to indemnify the Executive to the maximum extent permitted under
applicable law.
(j) Voluntary Agreement. The Executive and the Company represent and agree
that each has reviewed all aspects of this Agreement, has carefully read and fully
understands all provisions of this Agreement, and is voluntarily entering into this
Agreement. Each party represents and agrees that such party has had the opportunity to
review any and all aspects of this Agreement with the legal, tax and other advisor and
advisors of such party’s choice before executing this Agreement, and have been fully
advised as to the same. This Agreement has been fully and freely negotiated by the parties
hereto, shall be considered as having been drafted jointly by the parties hereto, and shall
be interpreted and construed as if so drafted, without construction in favor of or against
any party on account of its or his participation in the drafting hereof.
(k) Counterparts. The parties may execute this Agreement in one or more
counterparts, all of which together shall constitute but one Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date and year
written by the Executive below.
| FREIGHTCAR AMERICA, INC. | ||||||
| By: | ||||||
| President and Chief Executive Officer | ||||||
| Date: | ||||||
| XXXXXXXXXXX X. XXXXX | ||||||
| Date: | ||||||
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