Exhibit 10.1


 





 


 


November 5,
2020


 


 


Michael
A. Riordan


2123 N Point
Street,


Chicago IL 60647


 


Email Delivery:
michael.a.riordan@gmail.com


 


 


Re: Offer
Letter


 


Dear Mike:


 


We
are extremely pleased to offer you
the position of Corporate Controller /CAO.
The role will be based
at our Corporate Headquarters in Chicago and will
include duties and responsibilities customarily
performed and held by persons holding equivalent positions
in public companies that are
of similar industries and size.
In this position, you will be reporting directly to me
and lead the Accounting Team with significant interface with the Senior Management Team.


 


This
letter ("Letter") sets forth the terms
of your employment. If accepted, your date of employment will be effective on a date acceptable
to both of us. Employment is
contingent upon successfully
passing a background check and pre-employment drug screen.


 


This
Letter and your employment
is for no specific term. Your employment
may be terminated at any time for any
reason (or no reason), subject to the terms of this Letter
below, by the Company or you upon
notice to the Company.


 


1.                 
Salary. Your annual base salary will be $220,000
("Salary") and paid in accordance with
payroll practices applicable to all salaried employees
in Illinois. Your base salary
will be reviewed by the Company annually.


 


2.                   
Annual Incentive. You will be entitled to participate in the company's annual cash incentive plan
as approved by the
Board of Directors applicable to all executives (the "Incentive Plan") and are
eligible to earn an incentive ("Incentive") for
each fiscal year in accordance with the terms of the Incentive Plan. The measurement period for the annual cash incentive plan
runs concurrent with the Company's fiscal calendar which concludes on December 31st
of each year. Your annual Target Bonus will be 40% of base salary
with a maximum equal to 200% of the target (80% total), and a threshold of 20%.
Upon achievement of a target level of performance
set forth in the Incentive Plan, your payout will be payable
in cash as may be determined
under the Incentive Plan .
You will begin participation in this plan in 2021.
In consideration for participation in the Incentive Plan,
you will be required to agree to and comply with the


 



     


    
	 

 


    




restrictive
covenants set forth below in Section 6. This program is reviewed and approved annually at the
sole discretion of the Board
of Directors.


 


3.                 
Long-Term
Incentive ("L TI")
and Other Executive Compensation Plans. You
will be eligible to participate
in all the Company's equity-based and
cash-based long-term incentive and
other executive compensation
plans on a basis no
less favorable than
the other similarly situated employees
at your level. Your
target LTI is 35% of
your base salary
of which 70%
are Restricted Shares
("RSU's") and 30% are Stock
Appreciation Rights (SAR's"). The RSU's have a
three (3) year cliff vest
and the SAR's vest 1/3
per year for three 
consecutive years and are
paid in cash when exercised.
The term of the SAR's
is ten (10) years as
per the 2018 Long Term
Incentive Plan. Any awards
under these plans are
approved at the sole
discretion of the Compensation
Committee of the Board
or the Board. You will be
eligible to participate in
this plan with the next
annual grant, scheduled for
January 2021.


 


4.                  Sign On Award. Upon the effective date
of this Agreement, you will be granted (a)
25,000 SAR's, which will vest 113rd one (1)
year after the grant (date of employment), another
113rd on the second anniversary and the final 113rd of
the grant will vest on the third anniversary date of the Grant Date
as defined in the Stock Appreciation Rights Share Award Agreement and
(b) will be paid a
signing bonus of $25,000, that is not eligible
for 401(k). If you leave
the Company voluntarily prior to twelve (12)
months of employment, this bonus is to be paid back
to the Company in full. You acknowledge and
agree that these Awards are being offered as
additional consideration in return
for your agreement to the covenants set forth
in the Section 6.


 


5.                   Group
Insurance, Retirement Benefits and Vacation. You will also
be eligible to participate in all Company benefit plans, as
outlined in the attached 2020 Salaried Employee Benefit Summary. Specifically, it covers all group insurance and retirement
plans such as medical, dental, life, accidental death and dismemberment, short term and long- term disability, vision and
40l(k) plan. In addition, you remain eligible for ten (10) company paid holidays and four (4) weeks of
vacation, prorated based on the date of your acceptance. And you are
eligible to participate in the 2021 benefits which will be reviewed as part of the coming year's renewal.


 


 6.                  
Restrictive Covenants




 


(a)              
Covenant Not to Compete. You agree that, during employment with the Company and for a period of twelve (12) months
after termination, you shall not, without the prior written consent of the Company, accept employment with, join or become affiliated
with any business entity anywhere in North America that is engaged in direct competition with any business of the Company on the
date of your employment termination for which you worked
or had responsibility during your employment.


 



    	 	 	2



    
	 

 


    




(b)             
Covenant Not to Solicit Customers.
You agree that, during employment with the Company and for a period of twelve (12) months after
termination of employment with the Company, you
shall not, without
the prior written consent of the Company, directly or indirectly solicit any
current customer or prospective
customer of the Company or any of its subsidiaries, with
which you contact or
knowledge of Confidential Information regarding during
the last twelve (12) months of your
employment.


 


(c)              
Covenant Not to Solicit Employees.
You agree that, during employment with the Company
and for a period of twenty-four (24) months after termination of employment with the Company,
you shall not, without the prior written consent of the Company, directly or indirectly solicit any current employee of the Company
or any of its subsidiaries, or any individual who becomes an employee on or before the date of your termination of employment from
the Company, to leave such employment.


 


(d)              Covenant Not to
Disclose or Use of Confidential Information. You recognize
that you will have access to confidential information, trade secrets, proprietary methods and other data which are the
property of and integral to the operations and success of the Company ("Confidential Information") and therefore
agrees to be bound by the provisions of this Section, which both the Company and you agree and acknowledge to be reasonable
and to be necessary to the Company. In recognition of this
fact, you agree that you will not disclose any Confidential Information
(except (i) information which becomes publicly available without violation of
this Agreement, (ii) information which you did
not know and should not have known was disclosed to you in violation of
any other person's confidentiality obligation and (iii) disclosure required in connection
with any legal process (after giving the Company the
opportunity to dispute such requirement)) to any person, firm, corporation, association or other entity, for any reason or
purpose whatsoever, nor shall you make use of any
such information  for the benefit of any person,
firm, corporation or other entity except the Company. Your obligation to keep all such information confidential shall be
in effect during and for a period of twenty-four (24) months after the termination of your employment with the Company; provided,
however, that you will
keep confidential and will not disclose any trade secret or similar
information protected under law as intangible property (subject to the same exceptions set
forth in the parenthetical clause above) for so long as such protection under law is extended.


 


(e)              
Forfeiture of Bonus. In the event that you breach any of the covenants contained
in this Section, in addition to any
other penalties or remedies provided under this Letter
or that may apply under any agreement or law, you agree
to forfeit and repay
the most recent Bonus payment made to you under the Bonus
Plan. Repayment must be reimbursed
within 60 days of the Company notifying
you of the breach. You
acknowledge that the Company shall have the right to recapture and seek repayment of any such Bonus payment made under
this Letter. If you do not make
the required payment and the Company is required to
institute a cause of action to obtain the payment, you
agree that the Company will
be entitled to an award of its costs of litigation, including
reasonable attorneys' fees, and you further agree to reimburse
the Company for all
such costs and attorneys' fees.


 



    	 	 	3



    
	 

 


    




(f)              
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 you, either alone or jointly
with others, during the term of your employment, including during any period prior to the date of this Letter. Except as defined
in this Letter all Inventions that
you make, conceive, reduce to practice or develop (in whole or in part, either alone or jointly with others) during your employment
will be the sole property of the Company to the maximum extent permitted by law.
You agree 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, you may petition the Company
for license to make, market or sell an Invention.


 


(g)             
Remedies. You acknowledge that monetary damages will not be
an adequate remedy for the Company in the event of a breach of this Section, and
that it would be impossible for the Company to measure damages in the event of such a breach.
Therefore, you agree that, in addition to other rights and remedies that
the Company may have, the Company is entitled to injunctive
and other equitable relief preventing you from any breach or threatened breach of this Section, and you hereby waive any requirement
that the Company post any bond in connection with any such injunction. You further agree that injunctive relief is reasonable and
necessary to protect a legitimate, protectible
interest of the Company. You acknowledge that in
the event the Company is required to
institute a cause of action to enforce any
provision of this Letter, in addition to any injunctive
or other relief awarded by the court, the Company
will be entitled to an award of
its costs of litigation, including reasonable attorneys' fees. In addition
to any other penalties or restrictions that may apply under any employment agreement,
state law, or otherwise,
you will also forfeit all of the equity grated under this
Agreement, including Restricted Shares or Stock
Options that have fully vested, and
if you previously sold any of such
vested equity, the
Company shall also
have the right to recover
from you the economic value
of such equity as of
the date that they vested.


 


(h)             
Blue Pencil. If any court determines that the covenants contained in this Section, 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.


 


(i)               
Survival. The restrictive covenants contained in this Section shall survive the termination of your employment.


 


7.                 
Section 409A. Anything in this Agreement to the
contrary notwithstanding, if any payment(s) or benefit(s) under this
Agreement would be subject to the provisions of Section 409A of
the Internal Revenue Code of 1986 (the "Code") at the time they become


 



    	 	 	4



    
	 

 


    




payable
or benefits due you, to the extent required to comply with
Section 409A of the Code any such payments or
benefits will be delayed for six (6) months or such other earliest day on which such payments could be
made or benefits provided
in compliance with Section 409A of the Code and the regulations thereunder (at which point all payments so delayed
will be provided or reimbursed
to you in one lump
sum, without interest, within two and one half months after the date they then become so payable
or due to you).


 


 8.                 
Miscellaneous.




 


(a)              
Entire Agreement.
Except as otherwise contemplated herein, this Letter contains the entire agreement between
you and the Company with respect to the subject matter hereof. No amendment, modification or termination of this Letter may be
made orally but must be made in writing and signed by you and the Company.


 


(b)             
Successors; Assignment. Neither party hereto
may assign any rights or delegate any duties under this Letter without the prior written
consent of the other party; provided, however,
that (a) this Letter will inure to the benefit of and be
binding upon the successors and assigns of the Company upon any sale of all
or substantially all of the Company's stock and/or assets,
or upon any merger, consolidation
or reorganization of the Company with or into any other
corporation, all as though such successors and assigns of the
Company and their respective successors and assigns were the Company ; and
(b) this Letter will inure to the benefit of and be binding upon your
heirs, assigns or designees to the extent of
any payments due to them
hereunder.


 


(c)              
Governing Law and Jurisdiction. This Letter will be governed
by and construed in accordance with the law of the State of Illinois and not its choice of law rules,
applicable to contracts made and to be performed entirely within that State. You agree
that the jurisdiction and venue for any disputes arising under, or any action brought to enforce, or otherwise relating to, this
Letter shall be exclusively in the courts in the State
of Illinois, Cook County including
the Federal Courts located therein (should
Federal jurisdiction exist), and you hereby
submit and consent to said jurisdiction and venue.


 


(d)             
No Set-off or Mitigation. Your rights to payments under this Letter will not be affected
by any set off, counterclaim,
recoupment or other right the Company may have against you or anyone else. You do not need to seek other employment or take any
other action to mitigate any amounts owed to you under this
Letter, and those amounts
will not be reduced if you do obtain other employment.


 


(e)              
Notices. All notices, requests,
demands and other communications under this
Letter must be in writing and will be deemed given (i) when hand delivered, (ii)
on the first business day after the business day sent from within the United
States, if delivered
by  a nationally recognized overnight courier
or (iii) on the third business day after the business day
sent if delivered by registered or certified mail, return
receipt requested, in


 



    	 	 	5



    
	 

 


    




each
case to the following address (or to such other address as may be specified by notice that conforms to this section:


 


The Company,
to:


 


FreightCar
America, Inc. 


125
South Wacker Drive


Suite 1500


Chicago,
Illinois 60606


Attention: General Counsel


 


If to you, to your
last address shown on the payroll records of the Company.


 


(f)               
Counterparts. This Letter may be executed in counterparts,
each of which will constitute an original and all of which,
taken together, will
constitute one and the same instrument.


 


 



    	 	 	6



    
	 

 


    




Mike,
on behalf of FreightCar America, we are very excited by
the prospect of you joining our company . I look forward
to answering any questions you may have.


 


 


Sincerely,


 


FreightCar America, Inc.


 


 


	By:	 	/s/ Christopher J. Eppel	 	November 5, 2020	 
	 	 	Christopher J. Eppel	 	Date	 




 


I have read, understand, and agree to the terms of this letter.



 


	   /s/ Michael Riordan	 	November 5, 2020
	Employee (signature)	 	Date


 


	 	 
	 	 
	   Michael Riordan	 
	Employee (printed name)	 


 


 


cc: David Benson, VP
- Human Resources


 


 


 


 






    	 	 	7



     


    

EXHIBIT A


 


SHARE APPRECIATION RIGHTS AWARD AGREEMENT


 




 


 


 


 


 


 


 


 


 


 


 


 


 


8