AMENDMENT OF
EMPLOYMENT AGREEMENT OF NICHOLAS J.
MATTHEWS
This Amendment of
Employment Agreement (the “Amendment”) is made and
entered into as of the 29 th day of December, 2008, by and between Nicholas
J. Matthews (the “Executive”) and FreightCar America,
Inc., a Delaware corporation (the “Company”)
(collectively, the “Parties”).
WHEREAS, the
Parties entered into an Employment Agreement effective as of
January 10, 2008 (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 9(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 5(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 5(h) 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 Section 6(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.”
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4. The
language “within thirty (30) days” is hereby added
to Section 7(a) of the Agreement following the phrase “(or
his representative)”.
5. The
following language is hereby deleted in its entirety from
Section 7(d)(i) of the Agreement:
“provided
that, if any payments under this paragraph must be delayed for six
months following the Executive’s termination due to the
restrictions of Code Section 409A(a)(2)(A)(i), the full amount of
the missed/delayed payments shall be made on the first day of the
seventh calendar month following the month in
