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     4. The following Section 7(d) is hereby added to the Agreement:“For purposes of this Agreement, the Executive’s employment with the Company shallbe deemed to be terminated when the Executive has a “Separation from Service” withinthe meaning of Code Section 409A, and references to termination of employment shallbe 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 writtennotice 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) ofthe Agreement:“Notwithstanding anything in this Agreement to the contrary, a separation fromservice due to Good Reason must occur, if at all, within two years after the Companyreceives written notice of any one or more of the conditions set forth in thisSection 8(c). The Executive must provide written notice of any one or more of theconditions set forth in this Section 8(c) within 90 days of the initial existence ofthe condition in order for such condition to constitute Good Reason.”     8. The following language is hereby deleted in its entirety from Section 8(d)(ii) of theAgreement:“, provided that, if these payments must be delayed for six months following theExecutive’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 theseventh calendar month following the month in which the Executive terminated”     9. The following language is hereby deleted in its entirety from Section 8(d)(iii) of theAgreement:“, provided that if the first payment must be delayed for six months following theExecutive’s termination due to the restrictions of Code Section 409A(a)(2)(A)(i),the first payments shall be made on the first day of the seventh calendar monthfollowing the month in which the Executive terminates”     10. The following clause is hereby added to Section 8(d)(iv) of the Agreement:“provided further that, to the extent such continued coverage extends beyond theCOBRA continuation period, such coverage will be provided in accordance with therequirements of Code Section 409A and Treasury Regulation §1.409A-3(i)(1)(iv) (orany similar or successor provisions); and”
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     11. The following new Section 11 is hereby added to the Agreement:“Code Section 409A(a) The Agreement is intended to comply with Code Section 409A and theinterpretative guidance thereunder, including the exceptions for short-termdeferrals, separation pay arrangements, reimbursements, and in-kind distributions,and shall be administered accordingly. The Agreement shall be construed andinterpreted with such intent.(b) Each payment under the Agreement or any Company benefit plan is intended to betreated as one of a series of separate payments for purposes of Code Section 409Aand Treasury Regulation §1.409A-2(b)(2)(iii) (or any similar or successorprovisions).(c) To the extent that payments under the Agreement are subject to Code Section 409Aand are on account of a Separation from Service and the Executive is a “SpecifiedEmployee” (as defined below) as of the date of termination, distributions to theExecutive may not be made before the date that is six (6) months after the date ofSeparation from Service or, if earlier, the date of the Executive’s death (the “SixMonth Delay Rule”). Payments to which the Executive would otherwise be entitledduring the first six (6) months following the date of termination (the “Six MonthDelay”) will be accumulated and paid on the first day of the seventh month followingthe date of termination (or the Executive’s death, if earlier).(d) During the Six-Month Delay, the Company will pay to the Executive any applicablepayments to the extent any of the following exceptions to the Six-Month Delay Ruleapply: (i) the short-term deferral rule of Code Section 409A andTreasury Regulation §1.409A-1(b)(4) (or any similar or successorprovisions),  (ii) payments permitted under the separation pay exceptionof Code Section 409A and Treasury Regulation §1.409A-1(b)(9)(iii) (orany similar or successor provisions), and  (iii) payments permitted under the limited paymentsexception of Code Section 409A and Treasury Regulation§1.409A-1(b)(9)(v)(D) (or any similar or successor provisions),provided that the amount paid under this paragraph will count toward, and will notbe in addition to, the total payment amount required to be made to the Executive bythe Company on account of the Separation from Service and any applicable Companybenefit plan.
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(e) For purposes of this Agreement, the term “Specified Employee” has the meaninggiven to that term in Code Section 409A and Treasury Regulation §1.409A-1(i) (or anysimilar or successor provisions).(f) The Executive agrees that the Company may amend this Agreement to the minimumextent necessary to satisfy the applicable provisions of Code Section 409A and theTreasury Regulations or other guidance issued thereunder. The Company cannotguarantee that the payments and benefits that may be paid or provided pursuant tothis Agreement will satisfy all applicable provisions of Code Section 409A.”The execution of copies of this Amendment by facsimile or other electronic transmission shallconstitute effective execution and delivery of this Amendment as to the parties and may be used inlieu of the original Amendment for all purposes. Signatures of the parties transmitted byfacsimile or other electronic transmission shall be deemed to be their original signatures for allpurposes.
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     IN WITNESS WHEREOF, the parties have executed this Amendment as of the 29th day ofDecember, 2008.         **FREIGHTCAR AMERICA, INC.**   **EXECUTIVE**           By:          President and Chief Executive Officer   **Christian Ragot**           Date:   Date:  
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