EXHIBIT 10.1
AGREEMENT
This AGREEMENT (the
“Agreement”) is entered into effective as of
January 25, 2007 (the “Effective Date”), by and
between FreightCar America, Inc., a Delaware corporation (the
“Company”), and Edward J. Whalen (the
“Executive”).
WHEREAS the Board of Directors of
the Company has approved the payment of a Retention Bonus (as
hereinafter defined) to the Executive in consideration of the
Executive’s continued employment with the Company;
NOW, THEREFORE, in consideration of
the mutual promises, covenants, and agreements hereinafter set
forth, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties, intending
to be legally bound, agree as follows:
1. Retention Bonus . The
Company shall award the Executive seven thousand
(7,000) shares of Restricted Stock (the “Retention
Bonus”) under the FreightCar America, Inc. 2005 Long Term
Incentive Plan (the “Plan”) subject to the terms and
conditions set forth in this Agreement and the terms and conditions
of the Plan. The Participant’s Restricted Shares will become
fully vested on April 30, 2008 (the “Retention
Date”), provided the Participant remains in the continuous
employ of the Company through the Retention Date.
2. Reimbursements and
Perquisites . The Company shall maintain its current policies
and procedures applicable to the Executive’s expense
reimbursements and perquisites until the Retention Date.
3. Early Termination
.
(a) If the Company terminates the
Executive’s employment without Cause (as defined below) prior
to the Retention Date, the Company shall pay the Executive the
Retention Bonus on the effective date of such
termination.
(b) If the Executive terminates his
employment for Good Reason (as defined below) prior to the
Retention Date, the Company shall pay the Executive the Retention
Bonus on the effective date of such termination.
(c) If the Company terminates the
Executive’s employment for Cause prior to the Retention Date,
the Executive shall receive no payment under this
Agreement.
(d) If the Executive voluntarily
terminates employment prior to the Retention Date, the Executive
shall receive no payment under this Agreement.
(e) 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 Company 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 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 rea
