EMPLOYMENT AGREEMENT OF
CHRISTIAN RAGOT
This Amendment of
Employment Agreement (the “Amendment”) is made and
entered into as of the 29 th day of December, 2008, by and between Christian
Ragot (the “Executive”) and FreightCar America, Inc., a
Delaware corporation (the “Company”) (collectively, the
“Parties”).
WHEREAS, the
Parties entered into an Employment Agreement on January 3,
2006 (the “Agreement”); and
WHEREAS, the
Parties now consider it desirable to amend the terms and conditions
of the Agreement by this Amendment to reflect the requirements of
Internal Revenue Code Section 409A and to clarify the rights
of the Parties.
NOW, THEREFORE, in
accordance with Section 10(d) of the Agreement and in consideration
of the mutual promises herein made, the sufficiency of which is
expressly acknowledged, the Parties agree as follows:
1. The second
paragraph of Section 6(b) of the Agreement is hereby deleted in its
entirety and replaced with the following:
“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 (2 1 / 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”).”
2. The
following sentence is hereby added to the end of Section 6(i) of
the Agreement:
“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 (2
1 / 2
) months following the end of the
year in which the expense is incurred.”
3. The
following sentence is hereby added to the end of Section 6(k) of
the Agreement:
“All
reimbursements or payments of expenses shall be made in accordance
with the policies and procedures established by the Company and in
all events within the two and one-half (2 1 / 2
) months following the end of the
year in which the expense is incurred.”
1
4. The
following Section 7(d) is hereby added to the Agreement:
“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.”
5. The
language “in accordance with normal payroll practices”
is hereby added to Section 8(c) of the Agreement following the
phrase “any unreimbursed expenses”.
6. The
language “unless such circumstance is fully corrected within
30 days after written notice thereof,” is hereby added
to Section 8(c) of the Agreement following clause (i).
7. The
following sentence is hereby added to the end of the first
paragraph in Section 8(c) of the Agreement:
“Notwithstanding anything in this
Agreement to the contrary, a separation from service due to Good
Reason must occur, if at all, within two years after the Company
receives written notice of any one or more of the conditions set
forth in this Section 8(c). The Executive must provide written
notice of any one or more of the conditions set forth in this
Section 8(c) within
