Exhibit 10.1
May 12, 2023
Nick J. Randall
40 Timber Ridge Dr
Chagrin Falls, Ohio 44022
Re: Terms of Employment
Dear Nick:
This letter agreement (“Letter”) sets forth the terms of your employment with FreightCar America, Inc. (the “Company”). Commencing June 26, 2023 (the “Effective Date”), you will be employed as the Company’s Chief Operating Officer, reporting to the Company’s Chief Executive Officer. This Letter also sets forth terms of employment with the Company that will apply in the event you are appointed to the position of Chief Executive Officer, reporting to the Company’s Board of Directors. For the avoidance of doubt, however, nothing in this Letter is intended to provide any promise or other guarantee of appointment to the position of Chief Executive Officer, and any terms of this Letter that apply to the position of Chief Executive Officer will be void and have no effect if you are not appointed to such position.
You will have all the duties and responsibilities commensurate with the duties and responsibilities of Chief Operating Officers of similar businesses to the Company. During your employment, you will devote your full-time business attention to the Company and will use your best efforts to discharge your responsibilities. You may, however, engage in civic and charitable activities and, with the prior consent of the Company’s Board of Directors, serve on corporate boards, provided that these activities do not interfere with your duties to the Company.
To begin employment with the Company, you must successfully complete all required employment documentation, a post-offer drug screening, background check and reference checks. This Letter and your employment are for no specific term. Your employment with the Company will be “at will,” meaning that either you or the Company may terminate your employment at any time and for any reason, with or without Cause, as defined in the FreightCar America, Inc. Executive Severance Plan as separately provided to you (the “Executive Severance Plan”), subject to the terms of this Letter below, by the Company or you upon notice to the other such party. Although your job duties, title, compensation and benefits, as well as the Company’s personnel policies and procedures, may change from time to time, the “at will” nature of your employment may only be changed in an express written agreement signed by the Company’s Board of Directors (or a designee of the Company’s Board of Directors).
Compensation and Benefits for Position of Chief Operating Officer
The awards described in this Paragraph 3 will be subject to the specific terms of the award documents for each grant.
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The Following Paragraphs 5, 6, 7 & 8 Shall Only Apply If You Are Appointed To The Position Of Chief Executive Officer By The Company’s Board Of Directors.
As of the New Effective Date, all other benefits not specifically described in Paragraphs 5, 6, 7, and 8 of this Letter shall remain unchanged. For the avoidance of doubt, no additional Sign-On award will be provided upon appointment, if appointed, to Chief Executive Officer.
Additional Benefits and Considerations
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In addition, the Executive Severance Plan provides that on a “qualifying retirement”, your outstanding equity awards will (i) remain exercisable until the earlier of their original expiration date or the 10-year anniversary of their grant date, or (ii) continue to vest as if you had remained in continuous service through each applicable vesting date or, for awards subject to performance-vesting, through the performance period, with any performance goal or metric vesting only based upon the achievement of the same. To qualify for this benefit, you must meet certain age and service requirements set forth in the Executive Severance Plan and provide timely notice of your intent to retire at least 6 months prior to your retirement date.
Your eligibility for benefits under the Executive Severance Plan and the amount of such benefits will be determined pursuant to the provisions of the Executive Severance Plan. The form of written acknowledgment and acceptance of the terms and conditions of the Executive Severance Plan shall be separately provided to you.
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You understand that the Company possesses or will possess Company Materials (as defined below) that are important to its business. For this purpose, “Company Materials” are documents or other media, in their electronic or tangible form, or items that contain or embody Confidential Information or any other information, regardless of form, concerning the business, operations or future/strategic plans of the Company, whether such documents have been prepared by you or by others.
You understand that the nature of your position gives you access to and knowledge of Confidential Information and Company Information and places you in a position of trust and confidence with the Company. In consideration of your employment by the Company, the compensation received by you from the Company, and the Company’s agreement to give you access to certain Confidential Information, you agree as follows:
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Notwithstanding anything else contained or referenced herein, nothing in this Letter shall limit or impede your right (with or without prior notice to the Company) to (i) raise in good faith or participate in an investigation regarding any potential violation of law or regulation with any governmental or regulatory agency, including the Securities and Exchange Commission, or (ii) make any disclosure protected by law under the whistleblower provisions of any state or federal statutes or regulations. However, any disclosure of Confidential Information made to any governmental or regulatory agency will be limited to Confidential Information that is reasonably related to the alleged violation and specifically requested by the investigating agency. You will make any such disclosure(s) only to such parties authorized to investigate the potential violation.
Notwithstanding anything else contained or referenced herein, you will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that: (A) is made: (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (2) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.
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If to the Company, to:
FreightCar America, Inc.
125 South Wacker Avenue, Suite 1500
Chicago, Illinois 60606
Attention: Corporate Secretary
If to you, to your last address shown on the payroll records of the Company.
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Very truly yours,
FreightCar America, Inc.
By: /s/ James R. Meyer
President and Chief Executive Officer
Accepted and agreed: /s/ Nick J. Randall
Nick J. Randall
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