Exhibit 10.1


 


Execution Copy


 


EQUITY PURCHASE AGREEMENT


 


This Equity Purchase Agreement
(this “Agreement”) is entered into as of October 16, 2020, by and among FreightCar North America, LLC
(f/k/a FCAI Holdings, LLC), a Delaware limited liability company (“Buyer”), Fasemex, Inc. a Texas corporation
(“US Seller”), Fabricaciones y Servicios de México, S.A. de C.V., an entity organized under the
laws of Mexico (“Fasemex Mexico”), and Agben de Mexico, S.A. de C.V., an entity organized under the laws
of Mexico (“Agben” and, together with Fasemex Mexico, “MX Sellers”). US Seller
and MX Sellers are sometimes referred to herein individually as “Seller” and collectively as “Sellers,”
and Buyer and Sellers are sometimes referred to individually as “Party” and collectively as “Parties.”
FreightCar America, Inc., a Delaware corporation (“Parent”), is made party hereto solely for the purposes
of Article V, Section 6.2(e) (subject to the limitations and other provisions of Article VI), and Article
IX. Capitalized terms used and not otherwise defined herein have the meanings set forth in Annex A. Unless otherwise
indicated, Article, Section and Annex references in this Agreement are references to Sections, Articles and Annexes contained in
this Agreement.


 


RECITALS


 


A.       The
JV Companies (as defined below), collectively, carry out the manufacture, assembly, distribution and production of railcars, railcar
parts, or railcar components in the United States of America, Canada and Mexico for commercialization and sale in the Territory
(the “Business”).


 


B.       Parent
presently owns 100% of the membership interests in Buyer.


 


C.       US
Seller presently owns a 50% ownership interest (the “US JV Equity”) in FCA-Fasemex, LLC, a Delaware limited
liability company (the “US JV”).


 


D.       Fasemex
Mexico presently owns a 43% ownership interest and Agben owns a 7% ownership interest (collectively, the “MX JV Equity”
and, together with the US JV Equity, the “JV Equity Interests”) in FCA-Fasemex, S. de R.L. de C.V., an
entity organized under the laws of Mexico (“Production JV”), and FCA-Fasemex Enterprise, S. de R.L. de
C.V., an entity organized under the laws of Mexico (“Services JV,” and, collectively, with the Production
JV, the “MX JV Companies” and, together with the US JV, the “JV Companies”).


 


E.       Buyer
desires to acquire from Sellers all of the JV Equity Interests owned by them and each Seller desires to sell, assign, transfer
and convey to Buyer all of such Seller’s JV Equity Interest, pursuant to the terms and conditions of this Agreement.


 


AGREEMENT


 


Now, therefore, in consideration
of the premises and the representations and warranties and mutual covenants and agreements contained in this Agreement and for
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally
bound, the Parties agree as follows:






     


     


    

Article
I

SALE AND PURCHASE


 


1.1             
Sale and Purchase of JV Equity Interests. Upon the terms and subject to the conditions contained
in this Agreement, at the Closing Sellers shall sell, assign, transfer and convey to Buyer, and Buyer shall purchase and acquire
from Sellers, all of the JV Equity Interests presently owned by Sellers, comprising 50% of the outstanding equity interests of
each of the JV Companies, free and clear of all Liens, in exchange for the delivery by Buyer, in accordance with Section 1.2,
of the aggregate purchase price consisting of (a) $172,500 (the “Closing Cash”), by wire transfer of
immediately available funds within one business day after Closing, and (b) 2,257,234 shares of Parent Common Stock (the “Consideration
Shares”), such Closing Cash and Consideration Shares to be allocated to Sellers in proportion to the agreed relative
fair market value of the respective JV Equity Interest presently held by each Seller as set forth on Section 1.1 of the
Disclosure Schedule.


 


1.2             
Consideration Shares. At the Closing, upon the terms and subject to the conditions set forth in
this Agreement, Buyer shall (at its election) deliver, or cause to be delivered to each Seller, such Seller’s respective
portion of the Consideration Shares by (i) issuance of Consideration Shares in book entry form, or (ii) delivery of an irrevocable
instruction letter to Parent’s transfer agent for the delivery of the Consideration Shares in the manner requested by Sellers.


 


1.3             
Closing. The closing (the “Closing”) of the purchase and sale of the
JV Equity Interest and the other transactions contemplated by this Agreement shall occur on the date hereof, at such time as shall
be determined by the Parties, or on such other date and at such other time determined by the Parties (the “Closing
Date”). Absent another determination of the Parties, the Closing shall take place at 10:00 a.m., Chicago time, at
the offices of Kelley Drye & Warren LLP, 333 W. Wacker, Suite 2600, Chicago, Illinois 60606.


 


1.4             
Closing Deliveries.


 


(a)              
At or prior to Closing, Sellers shall deliver the following to Buyer, unless waived by Buyer:


 


(i)                
Execution of assignments of the JV Equity Interests in such form agreed by the Parties;


 


(ii)             
Resolutions of the boards of managers of each of the JV Companies approving the transactions contemplated in this Agreement
and the Associated Agreements and approval of amended and restated operating agreements (or comparable governing documents) of
each of the JV Companies, each in such form reasonably acceptable to Buyer (the “JV Company Board Resolutions”),
executed by each of the Sellers’ designees on the boards of managers of the JV Companies;


 


(iii)           
Resignations of each of each Seller’s designees on the boards of managers of the JV Companies in such form reasonably
acceptable to Buyer;






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(iv)            
The Investor Rights Agreement, duly executed by each of the Sellers, in such form agreed by the Parties (the “IRA”);


 


(v)              
The Amended and Restated Lease, duly executed by Fasemex Mexico, as landlord thereunder, in such form agreed by the Parties
(the “A/R Lease”); and


 


(vi)            
The Royalty Agreement, duly executed by each of the Sellers, in such form agreed by the Parties (the “Royalty Agreement”);
and


 


(vii)         
Such other agreements or instruments agreed by the Parties.


 


(b)              
At or prior to Closing (except as set forth below), Buyer (or Parent as applicable) shall deliver the following to the Sellers,
unless waived by Seller:


 


(i)                
Evidence of delivery of the Consideration Shares consistent with Section 1.2;


 


(ii)             
The Closing Cash in accordance with the wire instruction furnished by Sellers, within one business day after Closing;


 


(iii)           
The JV Company Board Resolutions executed by each of Buyer’s designees on the boards of managers of the JV Companies;


 


(iv)            
The IRA, duly executed by Parent;


 


(v)              
The Royalty Agreement, duly executed by Parent; and


 


(vi)            
The A/R Lease, duly executed by Projection JV, as tenant; and


 


(vii)         
Such other agreements or instruments agreed by the Parties.


 


1.5             
Purchase Price Allocation; Tax. The Consideration Shares shall be allocated to each of Sellers
in the amounts specified on Section 1.1 of the Disclosure Schedule, which proportions reflect the Parties’ agreement
as to the relative fair market values of the JV Equity Interests of Sellers. Any tax (transfer or otherwise) related to the transfer
of the JV Equity Interests, if any, shall be borne by Sellers.


 


Article
II

REPRESENTATIONS AND WARRANTIES REGARDING EACH SELLER


 


As a material inducement
to Buyer and Parent to enter into this Agreement and to consummate the transactions contemplated by this Agreement, each Seller,
separately, hereby represents and warrants to Buyer, as of the date of this Agreement, as follows:


 


2.1             
Organization and Authority. Each Seller is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, and has the requisite entity power and authority to own, lease and operate
its properties and to conduct its business as now conducted by it. Each Seller has all requisite power and authority to enter into
this Agreement and the Associated Agreements to which it is a party and to perform its obligations hereunder and thereunder. Each
Seller is qualified to do business and is in good standing as a foreign corporation, partnership or other entity, as applicable,
in all jurisdictions in which it conducts its business, except where the failure to be so qualified does not and will not, individually
or in the aggregate, have a Material Adverse Effect on such Seller or the transactions contemplated by this Agreement.






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2.2             
Authorization. The execution, delivery and performance by each Seller of this Agreement and the
Associated Agreements, in each case to which it is a party, and the consummation by each Seller of the transactions contemplated
hereby and thereby have been duly authorized by all necessary action on the part of each Seller. This Agreement and each of the
Associated Agreements have been, in each case to which each Seller is a party, duly executed and delivered by each Seller and constitutes
or, in the case of the Associated Agreements, upon execution thereof by all other appropriate parties will constitute, a valid
and legally binding obligation of each Seller, enforceable against it in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’
rights generally, and general equitable principles (whether considered in a proceeding at equity or at law).


 


2.3             
Consents and Approvals; No Conflicts. Except for any consents or approvals contemplated under this
Agreement, the execution, delivery and performance by each Seller of this Agreement and the Associated Agreements, in each case
to which it is a party, and the consummation by each Seller of the transactions contemplated hereby and thereby will not: (i) conflict
with or result in a breach of any provision of the certificate of formation, operating agreement, certificate of incorporation
or bylaws (or equivalent governing documents) of such Seller, (ii) require any consent, approval, authorization or permit of, or
filing with or notification to, any Governmental Body, (iii) require the consent or approval of any Person (other than a Governmental
Body) or violate or conflict with, or result in a breach of any provision of, constitute a default (or an event which with notice
or lapse of time or both would become a default) or give to any third party any right of termination, cancellation, amendment or
acceleration under, or result in the creation of a Lien on any of the assets of the JV Companies under, any of the terms, conditions
or provisions of any contract or license to which such Seller is a party or by which it or its assets or property are bound, or
(iv) violate or conflict with any order, writ, injunction, decree, statute, rule or regulation applicable to such Seller.


 


2.4             
Ownership. Each Seller has good and marketable title to its respective JV Equity Interests, and
is the sole owner of record and beneficial owner of such JV Equity Interests. Such JV Equity Interests are free and clear of any
Liens. Each Seller has the full and unrestricted right, power, and authority to sell and transfer such JV Equity Interests to Buyer.
Upon delivery of the JV Equity Interests to Buyer and payment by Parent to Sellers of the Consideration Shares therefor, Buyer
will acquire good and marketable title to the JV Equity Interests, free and clear of all Liens. Sellers do not own, or have any
other ownership interest in the JV Companies, beneficial or otherwise, or possess any right entitling Sellers to receive any such
ownership interest in the JV Companies, other than the JV Equity Interests that are being sold to Buyer at the Closing, which in
the aggregate comprise 50% of the outstanding equity interests of the JV Companies, on the terms and subject to the conditions
contemplated by this Agreement.






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2.5             
No Brokers or Finders. No Seller nor any officers, directors, agents, representatives or employees
of, or on behalf of, any Seller, has employed any broker or finder or incurred any other liability for any brokerage fees, commissions
or finders’ fees in connection with transactions contemplated hereby.


 


2.6             
No Pending Proceedings. There is no pending, or to any Seller’s Knowledge threatened, Proceeding
against any Seller or any of its Affiliates that challenges, or seeks to restrain, delay, or prohibit the execution, delivery,
and performance of this Agreement or the Associated Agreements. There is not in effect any order, judgment, or decree of any Governmental
Body against any Seller or any of its Affiliates enjoining, barring, suspending, prohibiting, or otherwise limiting the right of
any Seller to execute and deliver this Agreement and the Associated Agreements to which any Seller will be a party or to perform
its material obligations hereunder or thereunder.


 


2.7             
Legal Matters. There are no Proceedings or Claims pending or, to any Seller’s Knowledge,
threatened against any Seller or any Seller’s JV Equity Interest or other assets or properties, or any Orders outstanding
against any Seller, in each case that would, either individually or in the aggregate, delay, hinder, prevent or otherwise adversely
affect any Seller’s ability to perform any Seller’s obligations under this Agreement and the Associated Agreement to
which any Seller will be a party or to consummate the transactions contemplated hereby or thereby.


 


2.8             
Securities Representations. Each Seller hereby represents and warrants, and undertakes as follows:


 


(a)              
Private Placement. Such Seller is acquiring the Consideration Shares as principal for its own account and not with
a view to or for distributing or reselling such Consideration Shares or any part thereof in violation of the Securities Act or
any applicable state securities law, has no present intention of distributing any of such Consideration Shares in violation of
the Securities Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any
other persons to distribute, or regarding the distribution of, such Consideration Shares in violation of the Securities Act or
any applicable state securities law (this representation and warranty shall not limit such Seller’s right to sell such Consideration
Shares in compliance with applicable US federal and state securities laws).


 


At the time such Seller
was offered the Consideration Shares, it was, and as of the date hereof it is, either: (i) an “accredited investor”
as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualified institutional
buyer” as defined in Rule 144A(a) under the Securities Act.


 


(b)              
Sophisticated Investor. Such Seller, either alone or together with its representatives, has such knowledge, sophistication
and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment
in the Consideration Shares, and has so evaluated the merits and risks of such investment. Such Seller is able to bear the economic
risk of an investment in the Consideration Shares and, at the present time, is able to afford a complete loss of such investment.






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(c)              
Restricted Securities. Each Seller acknowledges that the Consideration Shares are “restricted securities”
that have not been registered under the Securities Act or any applicable state securities law. Each Seller further acknowledges
that, absent an effective registration statement under the Securities Act covering the resale of the Consideration Shares, the
Consideration Shares may only be offered, sold or otherwise transferred (i) to Parent, (ii) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, if applicable, or (iii) pursuant to an exemption from registration under
the Securities Act.


 


(d)              
Access to Information. Each Seller acknowledges that it has had the opportunity to review this Agreement and any
Associated Agreements to which it will be a party (including all exhibits and schedules thereto) and the SEC Documents and has
been afforded (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives
of Buyer and Parent concerning the terms and conditions of the offering to it of the Consideration Shares and the merits and risks
of investing in the Consideration Shares; (ii) access to information about Buyer and Parent and its financial condition, results
of operations, business, properties, management, and prospects sufficient to enable it to evaluate its investment in the Consideration
Shares; and (iii) the opportunity to obtain such additional information that Buyer and Parent possesses or can acquire without
unreasonable effort or expense that was necessary to make an informed investment decision with respect to the investment in the
Consideration Shares.


 


(e)              
General Solicitation. The Consideration Shares are not being purchased by any Seller as a result of any advertisement,
article, notice or other communication regarding the Consideration Shares published in any newspaper, magazine or similar media
or broadcast over television or radio or presented at any seminar or, to such Seller’s Knowledge, any other general solicitation
or general advertisement.


 


2.9             
No Prohibited Transactions. Each Seller has not engaged in any dealings or transactions, directly
or indirectly, (i) in contravention of any United States, Mexico, or to each Seller’s Knowledge, international or other anti-money
laundering regulations or conventions, including, without limitation, the United States Bank Secrecy Act, the United States Money
Laundering Control Act of 1986, the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of
2001, Trading with the Enemy Act (50 U.S.C. §1 et seq., as amended), any foreign asset control regulations of the United States
Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto
(including the International Emergency Economic Powers Act, as amended), the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 and the regulations promulgated thereunder, as
amended, or any order issued with respect to anti-money laundering by the U.S. Department of the Treasury’s Office of Foreign
Assets Control (“OFAC”), or (ii) in contravention of Executive Order No. 13224 issued by the President
of the United States on September 24, 2001 (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit,
Threaten to Commit, or Support Terrorism), as may be amended or supplemented from time to time (“Executive Order 13224”)
or (iii) on behalf of terrorists or terrorist organizations, including those persons or entities that are included on any relevant
lists maintained by the United Nations, North Atlantic Treaty Organization, Organization of Economic Cooperation and Development,
OFAC, Financial Action Task Force, SEC, U.S. Federal Bureau of Investigation, U.S. Central Intelligence Agency, U.S. Internal Revenue
Service, or any country or organization, all as may be amended from time to time. Such Seller is not a Person (i) that is listed
in the Annex to or is otherwise subject to the provisions of Executive Order 13224, (ii) whose name appears on OFAC’s most
current list of “Specifically Designed Nationals and Blocked Persons,” (which list may be published from time to time
in various mediums including, but not limited to, the OFAC website, http:www.treas.gov/ofac/t11sdn.pdf), (iii) who commits, threatens
to commit or supports “terrorism,” as that term is defined in Executive Order 13224, or (iv) who, to such Seller’s
Knowledge, has not been associated with or is otherwise affiliated with any Person listed above.






    	 	6	 



     


    

2.10         
Compliance with Anti-Bribery Laws. Each Seller has not engaged in any dealing or transactions,
directly or indirectly, (i) in contravention of any applicable United States, Mexico, or to each Seller’s Knowledge, international
or other anti-corruption or anti-bribery statutes or regulations, including the Foreign Corrupt Practices Act as administered by
the U.S. Department of Justice and the SEC, or (ii) in contravention of any applicable United States, Mexico, international or
other export controls statutes or regulations, including the U.S. Export Administration Regulations (15 CFR Part 730, et seq.).


 


2.11         
Disclosures. No representation or warranty made by any Seller in this Agreement (including this
Article II) or in any document delivered in connection herewith (including the Disclosure Schedule) contains any untrue
statement of material fact or omits any material fact necessary to make the statements contained herein or therein not misleading.


 


Article
III

REPRESENTATIONS AND WARRANTIES REGARDING THE JV COMPANIES


 


As a material inducement
to Buyer and Parent to enter into this Agreement and to consummate the transactions contemplated by this Agreement, Sellers, separately,
hereby represent and warrant to Buyer and Parent, as of the date of this Agreement, as follows:


 


3.1             
Organization and Authority. To Sellers’ Knowledge, the US JV and the MX JV Companies are
duly organized, validly existing and in good standing under the laws of their jurisdiction of organization, and have the requisite
entity power and authority to own, lease and operate their properties and to conduct their business as now conducted by them. To
Sellers’ Knowledge the US JV and the MX JV Companies are qualified to do business and are in good standing as foreign corporations,
partnerships or other entities, as applicable, in all jurisdictions in which they conducts their business, except where the failure
to be so qualified does not and will not, individually or in the aggregate, have a Material Adverse Effect on the JV Companies
or the transactions contemplated by this Agreement.


 


3.2             
Undisclosed Liabilities. To the Sellers’ Knowledge, the MX JV Companies have no liabilities,
obligations or commitments of any nature whatsoever, asserted or unasserted, known or unknown, absolute or contingent, accrued
or unaccrued, matured or unmatured or otherwise (“Liabilities”), except (a) those which are adequately
reflected or reserved against in the MX JV Companies’ balance sheets as of June 30, 2020, (b) those which have been incurred
in the ordinary course of business consistent with past practice since such date and which are not, individually or in the aggregate,
material in amount, and (c) those which do not and will not, individually or in the aggregate, have a Material Adverse Effect on
the MX JV Companies or the transactions contemplated by this Agreement.






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3.3             
Contracts.


 


(a)              
Section 3.3 of the Disclosure Schedule lists each of the Contracts that are material to any MX JV Company (collectively,
the “Material Contracts”).


 


(b)              
Each Material Contract is valid and binding on the MX JV Company that is party thereto in accordance with its terms and
is in full force and effect. None of the MX JV Companies or, to Sellers’ Knowledge, any other party thereto is in breach
of or default under (or is alleged to be in breach of or default under) in any material respect, or has provided or received any
notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of
time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause
or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct
copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have
been made available to Buyer.


 


3.4             
Compliance with Laws; Permits and Licenses. Except as set forth in Section 3.4 of the Disclosure
Schedule, each of the MX JV Companies is in possession of the franchises, authorizations, accreditations, licenses, permits, certificates,
approvals, clearances, consents, registrations, certificates of authority, Orders or similar rights issued, granted or obtained
by or from any Governmental Body listed in Section 3.4 of the Disclosure Schedule (collectively, “Permits”).
Each of the MX JV Companies is currently in possession of all Permits required under applicable Law, and has complied, and is now
complying, with all Laws applicable to their business, properties or assets, except where any failure has not and will not, individually
or in the aggregate, have a Material Adverse Effect on the MX JV Companies or the transactions contemplated by this Agreement.


 


3.5             
Transactions with Related Persons. Except as set forth in Section 3.5 of the Disclosure
Schedule, or as related to the Parent or any of the Parent’s Affiliates, no officer, director, employee or equityholder of
any MX JV Company or any of their respective Affiliates, and no member of the “immediate family”, as such term is defined
under Rule 16a-1(e) of the Exchange Act of any such person, nor any corporation, partnership, limited liability company or other
entity in which any of such Persons has a direct or indirect interest, has, directly or indirectly:


 


(a)              
any interest (other than as a holder of not more than one percent (1%) of the issued and outstanding securities of a corporation
whose securities are traded on a national securities exchange in which such Person is a passive investor with no involvement in
the management or operations thereof) in any Person engaged in the Business;


 


(b)              
any interest (other than as a holder of not more than one percent (1%) of the issued and outstanding securities of a corporation
whose securities are traded on a national securities exchange in which such Person is a passive investor with no involvement in
the management or operations thereof) in any Person which purchases any goods or services from, or sells or furnishes any goods
or services to, any JV Company;






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(c)              
a beneficial interest in any Contract to which any MX JV Company is a party or by which any MX JV Company or any of their
respective assets or properties may be bound or affected (except, with respect to employees of the MX JV Companies, for written
employment contracts listed in Section 3.5(c) of the Disclosure Schedule); or otherwise receives any rights or benefits
from, or is the beneficiary of any obligations of, any MX JV Company (except, with respect to employees of the MX JV Companies,
for employment-related obligations incurred in the Ordinary Course of Business on arms-length terms that are fair to such JV Company);
or


 


(d)              
any interest or Claim against any of the MX JV Companies or any of their respective assets or properties which could materially
and adversely affect such MX JV Company’s assets or properties or title to or right to use its assets or properties, or to
conduct the Business. No assets or properties (whether tangible or intangible) of any of the Persons described in this subsection
(d) are used by the MX JV Companies in the conduct of the Business except as set forth in Schedule 3.5(d).


 


3.6             
No Unauthorized Actions. No Seller has, and to the Sellers’ Knowledge, no officers, directors,
employees, agents or other representatives of the MX JV Companies has taken any action with respect to the MX JV Companies without
first obtaining the necessary consent in accordance with such MX JV Company’s certificate of formation, operating agreement,
certificate of incorporation, bylaws or corresponding powers of attorney (or equivalent governing documents).


 


3.7             
Condition and Sufficiency of Assets. To the Sellers’ Knowledge, except as set forth in Section
3.7 of the Disclosure Schedule, the furniture, fixtures, vehicles and other items of tangible personal property of the MX JV
Companies are structurally sound, are in good operating condition and repair, and are adequate for the uses to which they are being
put, and none of such furniture, fixtures, vehicles and other items of tangible personal property is in need of maintenance or
repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost. The furniture, fixtures,
vehicles and other items of tangible personal property currently owned or leased by the MX JV Companies are sufficient for the
continued conduct of the MX JV Companies’ business after the Closing in substantially the same manner as conducted prior
to the Closing.


 


3.8             
No Pending Proceedings. There is no pending, or to any Seller’s Knowledge, threatened, Proceeding
against any of the MX JV Companies. There is not in effect any order, judgment, or decree of any Governmental Body against any
of the MX JV Companies.


 


3.9             
Disclosures. No representation or warranty made by any Seller in this Agreement (including this
Article III) or in any document delivered in connection herewith (including the Disclosure Schedule) contains any untrue
statement of material fact or omits any material fact necessary to make the statements contained herein or therein not misleading.


 


3.10         
Disclaimer of Other Representations and Warranties. BUYER ACKNOWLEDGES THAT NONE OF SELLERS OR
ANY OTHER PERSON HAS MADE ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, CONCERNING SELLERS IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, AND BUYER
IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES CONCERNING SELLERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT.






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Article
IV

REPRESENTATIONS AND WARRANTIES REGARDING BUYER


 


As a material inducement
to Sellers to enter into this Agreement and to consummate the transactions contemplated by this Agreement, Buyer hereby represents
and warrants to Sellers, as of the date of this Agreement, as follows:


 


4.1             
Organization and Authority. Buyer is duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization, and has the requisite power and authority to own, lease and operate its properties
and to conduct its business as now conducted by it. Buyer has all requisite power and authority to enter into this Agreement and
the Associated Agreements to which it is a party and to perform its obligations hereunder and thereunder. Buyer is qualified to
do business and is in good standing as a foreign corporation, partnership or other entity, as applicable, in all jurisdictions
in which it conducts its business, except where the failure to be so qualified does not and will not, individually or in the aggregate,
have a Material Adverse Effect on Buyer.


 


4.2             
Authorization. The execution, delivery and performance by Buyer of this Agreement and the Associated
Agreements, in each case to which it is a party, and the consummation by Buyer of the transactions contemplated hereby and thereby
have been duly authorized by all necessary action on the part of Buyer. This Agreement and each of the Associated Agreements have
been, in each case to which it is a party, duly executed and delivered by Buyer and constitutes or, in the case of the Associated
Agreements, upon execution thereof by all other appropriate parties will constitute, a valid and legally binding obligation of
Buyer, enforceable against it in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, and general equitable
principles (whether considered in a proceeding at equity or at law).


 


4.3             
Consents and Approvals; No Conflicts. Except for any consents or approvals contemplated under this
Agreement, the execution, delivery and performance by Buyer of this Agreement and the Associated Agreements, in each case to which
it is a party, and the consummation by Buyer of the transactions contemplated hereby and thereby will not: (i) conflict with or
result in a breach of any provision of the certificate of formation or operating agreement of Buyer, (ii) require any consent,
approval, authorization or permit of, or filing with or notification to, any Governmental Body, (iii) require the consent or approval
of any Person (other than a Governmental Body) or violate or conflict with, or result in a breach of any provision of, constitute
a default (or an event which with notice or lapse of time or both would become a default) or give to any third party any right
of termination, cancellation, amendment or acceleration under, or result in the creation of a Lien on any of the assets attributed
to the JV Companies under, any of the terms, conditions or provisions of any contract or license to which Buyer is a party or by
which it or its assets or property are bound, or (iv) violate or conflict with any order, writ, injunction, decree, statute, rule
or regulation applicable to Buyer.






    	 	10	 



     


    

4.4             
No Brokers or Finders. Neither Buyer nor any of its officers, directors or employees, on behalf
of Buyer, has employed any broker or finder or incurred any other liability for any brokerage fees, commissions or finders’
fees in connection with transactions contemplated hereby.


 


4.5             
No Pending Proceedings. There is no pending, or to Buyer’s Knowledge, threatened, Proceeding
against Buyer or any of its Affiliates that challenges, or seeks to restrain, delay, or prohibit the execution, delivery, and performance
of this Agreement. There is not in effect any order, judgment, or decree of any Governmental Body against Buyer or any of its Affiliates
enjoining, barring, suspending, prohibiting, or otherwise limiting the right of Buyer to execute and deliver this Agreement or
to perform its material obligations hereunder.


 


4.6             
No Prohibited Transactions. Buyer has not engaged in any dealings or transactions, directly or
indirectly, (i) in contravention of any United States, Mexico, or to Buyer’s Knowledge, international or other anti-money
laundering regulations or conventions, including, without limitation, the United States Bank Secrecy Act, the United States Money
Laundering Control Act of 1986, the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of
2001, Trading with the Enemy Act (50 U.S.C. §1 et seq., as amended), any foreign asset control regulations of the United States
Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto
(including the International Emergency Economic Powers Act, as amended), the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 and the regulations promulgated thereunder, as
amended, or any order issued with respect to anti-money laundering by OFAC, or (ii) in contravention of Executive Order No. 13224
or (iii) on behalf of terrorists or terrorist organizations, including those persons or entities that are included on any relevant
lists maintained by the United Nations, North Atlantic Treaty Organization, Organization of Economic Cooperation and Development,
OFAC, Financial Action Task Force, SEC, U.S. Federal Bureau of Investigation, U.S. Central Intelligence Agency, U.S. Internal Revenue
Service, or any country or organization, all as may be amended from time to time. Buyer is not a Person (i) that is listed in the
Annex to or is otherwise subject to the provisions of Executive Order 13224, (ii) whose name appears on OFAC’s most current
list of “Specifically Designed Nationals and Blocked Persons,” (which list may be published from time to time in various
mediums including, but not limited to, the OFAC website, http:www.treas.gov/ofac/t11sdn.pdf), (iii) who commits, threatens to commit
or supports “terrorism,” as that term is defined in Executive Order 13224, or (iv) who, to Buyer’s Knowledge,
has not been associated with or is otherwise affiliated with any Person listed above.


 


4.7             
Compliance with Anti-Bribery Laws. Buyer has not engaged in any dealing or transactions, directly
or indirectly, (i) in contravention of any applicable United States, Mexico, or to Buyer’s Knowledge, international or other
anti-corruption or anti-bribery statutes or regulations, including the Foreign Corrupt Practices Act as administered by the U.S.
Department of Justice and the SEC, or (ii) in contravention of any applicable United States, Mexico, international or other export
controls statutes or regulations, including the U.S. Export Administration Regulations (15 CFR Part 730, et seq.).






    	 	11	 



     


    

4.8             
Disclosure. No representation or warranty made by Buyer in this Agreement (including this Article
IV) or in any document delivered in connection herewith (including the Disclosure Schedule) contains any untrue statement of
material fact or omits any material fact necessary to make the statements contained herein or therein not misleading.


 


4.9             
Disclaimer of Other Representations and Warranties. SELLERS ACKNOWLEDGE THAT NONE OF BUYER OR ANY
OTHER PERSON HAS MADE ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, CONCERNING BUYER IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, AND SELLERS
ARE NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES CONCERNING BUYER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT.


 


Article
V

REPRESENTATIONS AND WARRANTIES REGARDING PARENT


 


As a material inducement
to Sellers to enter into this Agreement and to consummate the transactions contemplated by this Agreement, Parent hereby represents
and warrants to Sellers, as of the date of this Agreement, as follows:


 


5.1             
Issuance of the Consideration Shares. The Consideration Shares are duly authorized and, when issued
and paid for in accordance with this Agreement, will be duly and validly issued, fully paid and nonassessable.


 


5.2             
Capitalization. As of October 16, 2020, without giving effect to the Closing, Parent’s authorized
capital stock consists of 50,000,000 authorized shares of Parent Common Stock, of which 13,277,845 shares are issued and outstanding,
2,500,000 authorized shares of preferred stock, par value of $0.01, of which none are issued and outstanding. The Consideration
Shares represent, in the aggregate, 17% of the issued and outstanding shares of Parent Common Stock immediately prior to Closing.
All of the outstanding shares of capital stock of the Parent have been validly issued and are fully paid and non-assessable.


 


5.3             
Exchange Act Registration; Trading Market. Parent Common Stock is registered pursuant to Section
12(b) of the Exchange Act and is listed on the Trading Market, and other than as disclosed in the SEC Documents, Parent has taken
no action designed to, or likely to have the effect of, terminating the registration of Parent Common Stock under the Exchange
Act or delisting Parent Common Stock from the Trading Market, nor has Parent received any notification that the SEC or the Trading
Market is contemplating terminating such registration or listing.






    	 	12	 



     


    

5.4             
Securities Representations.


 


(a)              
Regulation S.


 


(i)                
Parent is a “reporting issuer” (as defined in Regulation S).


 


(ii)             
Neither Buyer nor Parent, nor any of their affiliates (as defined in Rule 501 under the Securities Act) nor any person acting
on its or their behalf, has engaged in any directed selling efforts (as defined in Regulation S) in the United States in connection
with the offering of the Consideration Shares to MX Sellers and Parent has complied with the offering restriction requirements
of Regulation S.


 


(iii)           
Assuming the accuracy of the representations and warranties of MX Sellers contained in Section 2.8 and their compliance
with their agreements set forth in this Agreement, no registration of the Consideration Shares under the Securities Act is required
for the offer and sale of the Consideration Shares to MX Sellers in the manner contemplated by this Agreement.


 


(b)              
Regulation D.


 


(i)                
Assuming the accuracy of the representations and warranties of US Seller contained in Section 2.8 and its compliance
with its agreements set forth in this Agreement, no registration of the Consideration Shares under the Securities Act is required
for the offer and sale of the Consideration Shares to US Seller in the manner contemplated by this Agreement.


 


(ii)             
None of Parent, its affiliates (as defined in Rule 501(b) of Regulation D promulgated under the Securities Act) or any person
acting on its or their behalf (other than US Seller, as to which no representation or warranty is given) has, directly or indirectly,
made offers or sales of any security or solicited offers to buy any security which is or would be integrated with the sale of the
Consideration Shares in a manner that would require the Consideration Shares to be registered under the Securities Act.


 


(iii)           
None of Parent, its affiliates (as defined in Rule 501(b) of Regulation D under the Securities Act) or any person acting
on its or their behalf (other than US Seller, as to which no representation or warranty is given) has made offers or sales of the
Consideration Shares or solicited offers to buy the Consideration Shares by means of any form of “general solicitation”
or “general advertising” (within the meaning of Regulation D under the Securities Act) or in any manner involving a
public offering within the meaning of Section 4(a)(2) of the Securities Act.


 


5.5             
Organization and Authority. The Parent is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, and has the requisite power and authority to own, lease and operate its properties
and to conduct its business as now conducted by it. The Parent has all requisite power and authority to enter into this Agreement
and the Associated Agreements, if applicable, to which it is a party and to perform its obligations hereunder and thereunder. The
Parent is qualified to do business and is in good standing as a foreign corporation, partnership or other entity, as applicable,
in all jurisdictions in which it conducts its business, except where the failure to be so qualified does not and will not, individually
or in the aggregate, have a Material Adverse Effect on the Parent.






    	 	13	 



     


    

5.6             
Authorization. The execution, delivery and performance by the Parent of this Agreement and the
Associated Agreements, in each case to which it is a party, and the consummation by the Parent of the transactions contemplated
hereby and thereby have been duly authorized by all necessary action on the part of the Parent. This Agreement and each of the
Associated Agreements have been, in each case to which each Seller is a party, duly executed and delivered by the Parent and constitutes
or, in the case of the Associated Agreements, upon execution thereof by all other appropriate parties will constitute, a valid
and legally binding obligation of the Parent, enforceable against it in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’
rights generally, and general equitable principles (whether considered in a proceeding at equity or at law).


 


5.7             
Consents and Approvals; No Conflicts. Except as set forth on Section 5.7 of the Disclosure
Schedule or any consents or approvals contemplated in this Agreement, the execution, delivery and performance by the Parent of
this Agreement and the Associated Agreements, in each case to which it is a party, and the consummation by the Parent of the transactions
contemplated hereby and thereby will not: (i) conflict with or result in a breach of any provision of the certificate of incorporation
or bylaws of the Parent, (ii) require any consent, approval, authorization or permit of, or filing with or notification to, any
Governmental Body, by Parent, (iii) require the consent or approval of any Person (other than a Governmental Body) or violate or
conflict with, or result in a breach of any provision of, constitute a default (or an event which with notice or lapse of time
or both would become a default) or give to any third party any right of termination, cancellation, amendment or acceleration under,
or result in the creation of a Lien on any of the assets attributed to the JV Companies under, any of the terms, conditions or
provisions of any contract or license to which Parent is a party or by which it or its assets or property are bound, or (iv) violate
or conflict with any order, writ, injunction, decree, statute, rule or regulation applicable to the Parent.


 


5.8             
Valid Issuance of Consideration Shares. The Consideration Shares have been duly and validly authorized
and, when issued and paid for pursuant to this Agreement, the Consideration Shares will be validly issued, fully paid and non-assessable,
and the Consideration Shares shall be free and clear of any Liens granted by Parent or its Affiliates.


 


5.9             
Right of First Refusal; Stockholders Agreement; Voting and Registration Rights. Except as described
in the SEC Documents or as provided in federal or state securities laws or the Delaware General Corporation Law, or as contemplated
in this Agreement or the Associated Agreements, there are no provisions of the charter or incorporation documents of Parent, and
no material contracts that may: (a) alter or restrict the voting rights of the Sellers with respect to the Consideration Shares
in their capacity as stockholders of Parent, (b) require the vote of more than a simple majority of the Parent’s issued and
outstanding common stock, voting together as a single class, with respect to any corporate matter to be brought before the holders
of common stock for a vote, or (d) entitle any party to nominate or elect any director of Parent or require any of Parent’s
stockholders to vote for any such nominee or other person as a director of Parent.






    	 	14	 



     


    

5.10         
No General Solicitation. Neither the Parent nor any other Person acting on Parent’s behalf,
has directly or indirectly engaged in any form of general solicitation or general advertising with respect to the Consideration
Shares, nor have any of such Persons made any offers or sales of any security of Parent or solicited any offers to buy any security
of the Parent under circumstances that would require registration of the Consideration Shares under the Securities Act.


 


5.11         
SEC Documents. Parent has timely filed, or cured any defect relating to timely filing, all SEC
Documents since January 1, 2017. None of Parent’s subsidiaries is required to file periodic reports with the SEC pursuant
to the Exchange Act. Each SEC Document (a) as of the time it was filed (or if subsequently amended, when amended), complied in
all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and (b) did not, at the time
it was filed (or if subsequently amended or superseded by an amendment or other SEC Document, then, on the date of such subsequent
filing), contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. All agreements
to which the Parent is a party or to which the property or assets of Parent are subject, which are required to be described in
or filed as exhibits to an SEC report, have been so described or filed.


 


5.12         
Financial Statements. The financial statements of the Company included in the SEC Documents comply
in all material respects with the rules and regulations of the Securities and Exchange Commission with respect thereto as in effect
at the time of filing. Such financial statements have been prepared in accordance with GAAP, except as may be otherwise specified
in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes
required by GAAP, and fairly present in all material respects the financial position of Parent as of and for the dates thereof
and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.


 


5.13         
Absence of Litigation. There is no claim, action, suit, arbitration, investigation or other proceeding
pending against, or to Parent’s Knowledge, threatened against or affecting, Parent, any of its subsidiaries or any of their
respective properties or, to Parent’s Knowledge, any of their respective officers or directors before any Governmental Body,
except for any claim, action, suit, arbitration, investigation or other proceeding that is not expected to have a Material Adverse
Effect on the Parent.


 


5.14         
Taxes. Parent has properly filed all federal, foreign, state, local, and other tax returns and
reports which are required to be filed by them, which returns and reports were properly completed and are true and correct in all
material respects, and all material taxes, interest, and penalties due and owing have been timely paid. There are no outstanding
waivers or invalid extensions of time with respect to the assessment or audit of any tax or tax return of Parent, or claims now
pending or matters under discussion between Parent and any taxing authority in respect of any tax of Parent.


 


5.15         
Employee Matters. Parent has disclosed in the SEC Documents any “employee benefit plan”
subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), which it maintains for employees
and is required to be disclosed in the SEC Documents under applicable Law.






    	 	15	 



     


    

5.16         
Compliance with Laws.  The Parent is in material compliance with the terms of, all franchises,
permits, licenses and other rights and privileges necessary to conduct its present businesses and is in compliance with and has
not violated, in any material respect, (a) any judgments, orders, decrees, injunctions or writs applicable to the Parent, or (b)
any applicable provisions of any laws, statutes, ordinances, rules or regulations applicable to the conduct of its business.


 


5.17         
Absence of Changes. Since the date of the latest SEC Documents and except as contemplated by, or
in connection with, this Agreement and the Associated Agreements, there has not been any Material Adverse Effect or any event or
events that individually or in the aggregate would reasonably be expected to have a Material Adverse Effect on the Parent.


 


5.18         
[Reserved].


 


5.19         
No Prohibited Transactions. The Parent has not engaged in any dealings or transactions, directly
or indirectly, (i) in contravention of any United States, Mexico, or to Parent’s Knowledge, international or other anti-money
laundering regulations or conventions, including, without limitation, the United States Bank Secrecy Act, the United States Money
Laundering Control Act of 1986, the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of
2001, Trading with the Enemy Act (50 U.S.C. §1 et seq., as amended), any foreign asset control regulations of the United States
Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto
(including the International Emergency Economic Powers Act, as amended), the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 and the regulations promulgated thereunder, as
amended, or any order issued with respect to anti-money laundering by OFAC, or (ii) in contravention of Executive Order No. 13224
or (iii) on behalf of terrorists or terrorist organizations, including those persons or entities that are included on any relevant
lists maintained by the United Nations, North Atlantic Treaty Organization, Organization of Economic Cooperation and Development,
OFAC, Financial Action Task Force, SEC, U.S. Federal Bureau of Investigation, U.S. Central Intelligence Agency, U.S. Internal Revenue
Service, or any country or organization, all as may be amended from time to time. Such Seller is not a Person (i) that is listed
in the Annex to or is otherwise subject to the provisions of Executive Order 13224, (ii) whose name appears on OFAC’s most
current list of “Specifically Designed Nationals and Blocked Persons,” (which list may be published from time to time
in various mediums including, but not limited to, the OFAC website, http:www.treas.gov/ofac/t11sdn.pdf), (iii) who commits, threatens
to commit or supports “terrorism,” as that term is defined in Executive Order 13224, or (iv) who, to Parent’s
Knowledge, has not been associated with or is otherwise affiliated with any Person listed above.


 


5.20         
Compliance with Anti-Bribery Laws. The Parent has not engaged in any dealing or transactions, directly
or indirectly, (i) in contravention of any applicable United States, Mexico, or to Parent’s Knowledge, international or other
anti-corruption or anti-bribery statutes or regulations, including the Foreign Corrupt Practices Act as administered by the U.S.
Department of Justice and the SEC, or (ii) in contravention of any applicable United States, Mexico, international or other export
controls statutes or regulations, including the U.S. Export Administration Regulations (15 CFR Part 730, et seq.).






    	 	16	 



     


    

5.21         
No Brokers or Finders. Neither Parent, nor any officers, directors, agents, representatives or
employees of, or on behalf of, Parent, has employed any broker or finder or incurred any other liability for any brokerage fees,
commissions or finders’ fees in connection with transactions contemplated hereby.


 


5.22         
Disclosure. No representation or warranty made by Parent in this Agreement (including this Article
V) or in any document delivered in connection herewith (including the Disclosure Schedule) contains any untrue statement of
material fact or omits any material fact necessary to make the statements contained herein or therein not misleading.


 


5.23         
Disclaimer of Other Representations and Warranties. EACH SELLER ACKNOWLEDGES THAT NONE OF BUYER,
PARENT OR ANY OTHER PERSON HAS MADE ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, CONCERNING BUYER OR PARENT IN CONNECTION
WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS
AGREEMENT, AND SUCH SELLER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES CONCERNING BUYER OR PARENT IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT.


 


Article
VI

INDEMNIFICATION


 


6.1             
Survival of Representations and Warranties. Subject to the limitations and other provisions of
this Agreement, the representations and warranties contained herein shall survive the Closing and shall remain in full force and
effect until the date that is two (2) years from the Closing Date; provided, that the representations and warranties in Sections
2.1, 2.2, 2.4, 2.5, 3.1, 4.1, 4.2, 4.4, 5.1, 5.2, 5.5,
5.6, and 5.8 (collectively, the “Fundamental Representations”) shall survive indefinitely.
All covenants and agreements of the Parties contained herein shall survive the Closing indefinitely or for the period explicitly
specified therein. Notwithstanding the foregoing, any claims asserted in good faith with reasonable specificity (to the extent
known at such time) and in writing by notice from the non-breaching party to the breaching party prior to the expiration date of
the applicable survival period shall not thereafter be barred by the expiration of the relevant representation or warranty and
such claims shall survive until finally resolved.


 


6.2             
Indemnification of the Parties.


 


(a)              
From and after the Closing (but subject to the terms and conditions of this Article VI), each Seller shall indemnify,
defend and hold harmless, Buyer, each of Buyer’s Affiliates (including Parent) and each of its and their respective officers,
directors, managers, members, partners, equityholders, employees, representatives, agents, successors and assigns (collectively,
the “Buyer Indemnitees”) from and against, and pay on behalf of and reimburse each Buyer Indemnitee in
respect of all Losses incurred, suffered, sustained or required to be paid, directly or indirectly, by, or sought to be imposed
upon, any Buyer Indemnitee arising out of, resulting from or relating to:






    	 	17	 



     


    

(i)                
any breach of any representation or warranty of such Seller (but not the other Sellers) set forth in Article II;


 


(ii)             
any breach of any representation or warranty of such Seller (but not the other Sellers) set forth in Article III;


 


(iii)           
the breach of any covenant or agreement made by or to be performed by such Seller (but not the other Sellers) under this
Agreement, other than those set forth in Article VIII which shall be governed by Section 6.2(a)(iv) below; and


 


(iv)            
the nonperformance or breach of any restrictive covenants of such Seller (but not the other Sellers) set forth in Article
VIII.


 


(b)              
Sellers’ liability under Section 6.2(a) shall be subject to the following limitations and conditions:


 


(i)                
Sellers shall only be liable for 50% of any Losses under Section 6.2(a)(ii);


 


(ii)             
Sellers shall be liable under Section 6.2(a)(i) or 6.2(a)(ii) only after the amount of a Loss claimed by Buyer
exceeds $25,000, and then only to the extent of such excess per such particular case (after incorporating the limitation set forth
in Section 6.2(b)(i));


 


(iii)           
Sellers shall be liable under Section 6.2(a)(i) or 6.2(a)(ii) only after the aggregate amount of all Losses
claimed under Section 6.2(a)(i) and 6.2(a)(ii), in the aggregate, exceeds $250,000, and then only to the extent of
such excess (after incorporating the limitations set forth in Section 6.2(b)(i) and 6.2(b)(ii));


 


(iv)            
Fasemex Mexico shall be liable on a joint and several basis with the other Sellers for any Losses under 6.2(a)(ii)
or 6.2(a)(iii);


 


(v)              
Each Seller’s aggregate liability under Section 6.2(a) (after incorporating the other conditions set forth
in this Section 6.2(b)) shall be limited to 50% of the Closing Value of the Consideration Shares allocated such Seller at
Closing under Section 1.1; provided that with respect to Fasemex Mexico, such limitation shall be equal to 50% of the Closing
Value of the Consideration Shares allocated to all Sellers at Closing; and


 


(vi)            
Notwithstanding anything contained in this Section 6.2(b):


 


(A)            
the limitations under Section 6.2(b)(ii), 6.2(b)(iii), and 6.2(b)(v) shall not apply in the case of
any inaccuracy or breach of any Fundamental Representation; provided, that each Seller’s aggregate liability shall
be limited to 100% of the Closing Value of the Consideration Shares allocated such Seller at Closing under Section 1.1;
provided, further, that with respect to Fasemex Mexico, such limitation shall be equal to 100% of the Closing Value
of the Consideration Shares allocated to all Sellers at Closing; and






    	 	18	 



     


    

(B)             
none of the limitations under this Section 6.2(b) shall apply in the case of fraud by the Sellers (as determined
by a court of competent jurisdiction).


 


(c)              
From and after the Closing (but subject to the terms and conditions of this Article VI), Buyer shall indemnify, defend
and hold harmless, each Seller and each of the Sellers’ Affiliates and each of its and their respective officers, directors,
managers, members, partners, equityholders, employees, representatives, agents, successors and assigns (collectively, the “Seller
Indemnitees”) from and against, and pay on behalf of and reimburse each Seller Indemnitee in respect of, all Losses
incurred, suffered, sustained or required to be paid, directly or indirectly, by, or sought to be imposed upon, any Seller Indemnitee
arising out of, resulting from or relating to:


 


(i)                
any breach of any representation or warranty of Buyer set forth in Article IV; and


 


(ii)             
the breach of any covenant or agreement made by or to be performed by Buyer under this Agreement.


 


(d)              
Buyer’s liability under Section 6.2(c) shall be limited as follows:


 


(i)                
Buyer shall be liable under Section 6.2(c)(i) only after the amount of a Loss claimed by any or all Sellers exceeds
$25,000, and then only to the extent of such excess per such particular case;


 


(ii)             
Buyer shall be liable under Section 6.2(c)(i) only after the aggregate amount of all Losses claimed under Section
6.2(c)(i) exceeds $250,000 (after incorporating the limitation set forth in Section 6.2(d)(i)), and then only to the
extent of such excess;


 


(iii)           
Parent shall be liable on a joint and several basis with Buyer for any Losses under 6.2(c)(i) or 6.2(c)(ii);


 


(iv)            
Notwithstanding anything contained in this Section 6.2(d), none of the limitations set forth in this Section 6.2(d)
shall apply to any breach by Buyer of one or more Fundamental Representations.


 


(e)              
From and after the Closing (but subject to the terms and conditions of this Article VI), Parent shall indemnify,
defend and hold harmless each Seller Indemnitee from and against, and pay on behalf of and reimburse each Seller Indemnitee in
respect of, any and all Losses incurred, suffered, sustained or required to be paid, directly or indirectly, by, or sought to be
imposed upon, any Seller Indemnitee arising out of, resulting from or relating to:






    	 	19	 



     


    

(i)                
any breach of any representation or warranty of Parent set forth in Article V; and


 


(ii)             
the breach of any covenant or agreement made by or to be performed by Parent under this Agreement.


 


(f)               
Parent’s liability under Section 6.2(e) shall be limited as follows:


 


(i)                
Parent shall be liable under Section 6.2(e)(i) only after the amount of a Loss claimed by any or all Sellers exceeds
$25,000), and then only to the extent of such excess per such particular case;


 


(ii)             
Parent shall be liable under Section 6.2(e)(i) only after the aggregate amount of all Losses claimed under Section
6.2(e)(i) (after incorporating the limitation set forth in Section 6.2(f)(i) exceeds $250,000), and then only to the
extent of such excess;


 


(iii)           
Notwithstanding the foregoing, none of the limitations set forth in this Section 6.2(f) shall apply to any breach
by Parent of one or more Fundamental Representations.


 


(g)              
In addition to the limitations set forth in Section 6.2(d) and Section 6.2(f), the aggregate liability of
Buyer under Section 6.2(c) and Parent under Section 6.2(e) shall be limited to 50% of the aggregate Closing Value
of the Consideration Shares issued at Closing under Section 1.1, except in the case of a breach of a Fundamental Representation
by Buyer or Parent, in which the aggregate liability of Buyer and Parent shall be limited to 100% of the aggregate Closing Value
of the Consideration Shares issued at Closing. None of the limitations under Section 6.2(d) and Section 6.2(f) shall
apply in the case of fraud by Buyer or Seller (as determined by a court of competent jurisdiction).


 


6.3             
Indemnification Claim Procedure.


 


(a)              
If any Buyer Indemnitee or Seller Indemnitee, as applicable (in the capacity as a Person seeking indemnification under this
Article VI, the “Indemnified Party”), obtains actual knowledge of any matter not involving a Third
Party Claim that the Indemnified Party believes will entitle the Indemnified Party to indemnification from Buyer or any Seller
or Sellers under this Article VI (in the capacity as a Person against whom indemnification is sought under this Article
VI, the “Indemnifying Party”), the Indemnified Party shall promptly thereafter deliver to the Indemnifying
Party a notice thereof (a “Notice of Claim”) describing such matter in reasonable detail and, to the
extent reasonably estimable, the estimated Losses resulting therefrom; provided, however, that any failure to give such notification
on a timely basis or to provide any particular details therein shall not relieve the Indemnifying Party of its obligation to indemnify
any Indemnified Party hereunder except to the extent that such failure to provide, delay in providing or omission of any particular
detail actually and materially prejudices the ability of the Indemnifying Party to defend against such matter.


 


(b)              
The Indemnifying Party shall respond to the Indemnified Party within thirty (30) days following the date that the Notice
of Claim is delivered to pursuant to Section 6.3(a) (the “Response Period”), specifying whether
or not the Indemnifying Party disputes the claim(s) described in the Notice of Claim, describe in reasonable detail the basis for
each such dispute and include reasonable supporting materials (a “Claim Response”). If Indemnifying Party
fails to give a Claim Response within the Response Period, the Indemnifying Party shall be deemed not to dispute the claim(s) described
in the related Notice of Claim. If the Indemnifying Party gives a Claim Response within the Response Period but does not in such
Claim Response dispute all of the claim(s) made in the related Notice of Claim, the Indemnifying Party shall be deemed not to dispute
the undisputed claim(s) described in the related Notice of Claim. If the Indemnifying Party elects not to dispute any claim described
in a Notice of Claim, whether by failing to give a timely Claim Response or otherwise, then the amount of Losses alleged in such
Notice of Claim shall be conclusively deemed to be an obligation of the Indemnifying Party and the Indemnified Party shall be paid
the amount specified in the Notice of Claim as provided in Section 6.5 (it being acknowledged that the amount of any estimated
Losses may be revised by the Indemnified Party from time to time as the same are determined, all of which Losses shall be indemnified
by the Indemnifying Party). If the Indemnifying Party delivers a Claim Response within the Response Period indicating that the
Indemnifying Party disputes one or more of the matters identified in the Notice of Claim, Buyer or Parent, as the case may be,
and the applicable Seller or Sellers (with respect to any claim by the Buyer Indemnitees for indemnification pursuant to Section
6.2(a)) shall promptly meet in good faith to resolve the dispute. If Buyer or Parent, as the case may be, and the Sellers,
as applicable, do not resolve a dispute regarding a claim within thirty (30) days after the delivery of the Claim Response, either
the Indemnifying Party or the Indemnified Party may submit the dispute to a court of competent jurisdiction set forth in Section
9.3(a) for resolution. Upon resolution of such dispute, whether by agreement or by a court of competent jurisdiction, if it
is determined that any indemnification payment is required pursuant to this Article VI such amount shall be paid to the
Indemnified Party as provided in Section 6.5.






    	 	20	 



     


    

6.4             
Procedures Relating to Indemnification for Third Party Claims. With respect to any matter for which
an Indemnified Party is entitled to indemnification from an Indemnifying Party under this Article VI that relates to a Proceeding
or Claim by a third party (a “Third Party Claim”), the Indemnified Party shall provide to the Indemnifying
Party a Notice of Claim relating to such Third Party Claim promptly after receiving written notification of such Proceeding or
Claim; provided, however, that any failure to give such notification on a timely basis shall not relieve the Indemnifying Party
of its obligation to indemnify any Indemnified Party hereunder except to the extent that such failure to provide or delay in providing
actually and materially prejudices the ability of the Indemnifying Party to defend against such Third Party Claim. The Indemnifying
Party will be entitled to participate in the defense of any Third Party Claim that is the subject of a notice given by the Indemnified
Party pursuant to this Section 6.4. In addition, upon written notice given by the Indemnified Party twenty (20) days of
the notice of such Third Party Claim, the Indemnifying Party will have the right to defend the Third Party Claim with counsel of
its choice reasonably satisfactory to the Indemnified Party. In such event, the Indemnified Party may retain separate co-counsel
at the cost of the Indemnifying Party and participate in the defense of the Third Party Claim. Notwithstanding the foregoing, the
Indemnifying Party will not consent to the entry of any judgment or enter into any compromise or settlement with respect to the
Third Party Claim without the prior written consent of the Indemnified Party unless such judgment, compromise or settlement (i)
provides for the payment of money as sole relief for the claimant and (ii) subject to the making of such payment, results in the
full and general release of all Indemnified Parties from all liabilities arising from or relating to the Third Party Claim. The
Indemnifying Party will not be bound by the entry of any judgment consent to, or any compromise or settlement effected, without
its prior written consent. If the Indemnifying Party does not deliver the notice contemplated by this Section 6.4 within
twenty (20) days after the Indemnifying Party has received notice of the Third Party Claim pursuant to this Section 6.4,
the Indemnified Party may defend, and may consent to the entry of any judgment or enter into any compromise or settlement with
respect to, the Third Party Claim, and the Indemnifying Party shall be permitted to participate in such defense at its sole cost
and expense.






    	 	21	 



     


    

6.5             
Payment of Amounts Due. Once a Loss is agreed to by the Indemnifying Party or finally adjudicated
to be payable pursuant to this Article VI, the Indemnifying Party shall satisfy its obligations within five (5) business
days of such final, non-appealable adjudication by wire transfer of immediately available funds. The Parties hereto agree that
should an Indemnifying Party not make full payment of any such obligations within such five (5) business day period, any amount
payable shall accrue interest from and including the date of agreement of the Indemnifying Party or final, non-appealable adjudication
to but excluding the date such payment has been made at a rate equal to the prime rate in effect from time to time (as published
in The Wall Street Journal) plus two (2) percentage points, until paid in full.


 


6.6             
Additional Limitations. Notwithstanding anything contained in this Article VI, in no event
will any Indemnified Party be entitled to recover or make a claim for any amounts in respect of, and in no event will “Losses”
be deemed to include consequential, exemplary or punitive damages, lost profits or revenues, or business interruption. Furthermore,
no Indemnified Party shall be entitled to indemnification or reimbursement under any provisions of this Agreement for any amount
to the extent such party has been indemnified or reimbursed for such amount under any other provision of this Agreement or the
Ancillary Agreements, or to the extent that recovery has already been made under this Agreement or the Ancillary Agreements in
respect of the same subject matter and in the amount of the Loss claimed.


 


6.7             
Exclusive Remedy. Notwithstanding anything to the contrary in this Agreement, the indemnification
rights set forth in this Article VI shall be the sole and exclusive remedies of: (a) the Buyer Indemnitees for any breach
of or inaccuracy in any of the representations and warranties of the Sellers, or any of them, contained in this Agreement; and
(b) the Seller Indemnitees for any breach of or inaccuracy in any of the representations and warranties of Buyer or Parent contained
in this Agreement. For the avoidance of doubt, (y) the limitation set forth in this Section 6.7 shall not apply to (i) any
of the Associated Agreements other than this Agreement, (ii) any breach of this Agreement resulting from fraud, or (iii) any injunctive
or equitable remedies of any Party; and (z) to the extent that any matter is subject to indemnification under alternative provisions
of this Agreement, an Indemnified Party may seek such indemnification under such alternative provisions of this Agreement, but
it may not recover duplicate amounts for its Losses relating to such matter.






    	 	22	 



     


    

Article
VII

OTHER AGREEMENTS AND POST-CLOSING COVENANTS


 


7.1             
Fasemex Mexico Supply Agreement. From and after the Closing, Fasemex Mexico and their Affiliates
shall have the opportunity to bid to supply fabricated steel component parts and other items to the JV Companies and the Parties
shall negotiate in good faith regarding such opportunities.


 


7.2             
Restrictions on Consideration Shares; Legends.


 


(a)              
The Consideration Shares have not been registered under the Securities Act, and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except pursuant to an effective registration or in accordance with
Regulation S, if applicable, or pursuant to another exemption from the registration requirements of the Securities Act. Each Seller
undertakes that it, its affiliates (as defined in Rule 501 under the Securities Act), and any persons acting on its or their behalf
will comply with the restrictions regarding transfers of the Consideration Shares under Rule 144 or another applicable exemption,
with respect to US Seller, or Regulation S, with respect to MX Sellers.


 


(b)              
The Consideration Shares, when issued and delivered pursuant to this Agreement, will be “restricted securities”
as that term is defined in Rule 144 and a restrictive legend or notation in substantially the following form will be placed on
the Consideration Shares:


 


For Consideration
Shares issued to US Seller:


 


“The securities
covered hereby have not been registered under the U.S. Securities Act of 1933, as amended (the “Securities Act”), and
may not be offered or sold except pursuant to an effective registration statement under the Securities Act or pursuant to an available
exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and in accordance with
applicable state securities laws as evidenced by a legal opinion of counsel to the transferor to such effect, the substance of
which shall be reasonably acceptable to the issuer of such securities.”


 


For Consideration
Shares issued to MX Sellers:


 


“The securities
covered hereby have not been registered under the U.S. Securities Act of 1933, as amended (the “Securities Act”), and
may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until six (6) months after the Closing Date, except in either case in accordance with
Regulation S under the Securities Act. No hedging transaction can be conducted with regard to the securities except as permitted
by the Securities Act. Terms used above have the meanings given to them by Regulation S.”


 


7.3             
Further Assurances. From time to time, as and when requested by Buyer, on the one hand, or any
of Sellers, on the other hand, each Party shall execute and deliver, or cause to be executed and delivered, all such documents
and instruments and shall take, or cause to be taken, all such further or other actions as the requesting Party may reasonably
deem necessary or desirable (and at the expense of such requesting Party) to evidence and effectuate the transactions contemplated
by this Agreement.






    	 	23	 



     


    

7.4             
Seller Undertakings. If, after the Closing, any Seller or any Affiliate of such Seller identifies
any tangible or intangible asset, property or right in its possession that is property of the JV Companies, then such Seller shall
convey and deliver, or cause such Affiliate to convey and deliver, such asset, property or right to the appropriate JV Company
(or to such JV Company as Buyer may designate), accompanied by appropriate instruments of transfer, but without any further consideration
being required from Buyer or any of the JV Companies in connection with such conveyance and delivery.


 


7.5             
Release. Except as otherwise set forth in the Termination Agreement, each Party, on its own behalf
and on behalf of its Affiliates and any other Person that may claim by, through or under such Party, and/or any its respective
Affiliates (each, a “Releasing Party”), hereby irrevocably waives, releases and discharges, as of Closing,
each other Party, and their Affiliates (each, a “Released Party”) from any and all Liabilities to such
Releasing Party arising prior to the Closing Date, in each case whether arising under any agreement, instrument or understanding
or otherwise at law or equity (other than the breach of any of the representations and warranties or the performance of any of
the obligations of the Parties arising under this Agreement and the Associated Agreements), and such Releasing Party shall not
seek to recover any amounts in connection therewith or thereunder from any Released Party. Notwithstanding the foregoing, no owner
of any Seller who continues as an employee in the employment of the Parent or an Affiliate from the Closing Date releases or discharges
the Buyer, Parent or any of their Affiliates from (a) any rights to any payments, benefits or reimbursements under such Person’s
employment agreement (to the extent such employment agreement is not terminated or superseded) or any Contract with Buyer, Parent,
or any of their Affiliates; (b) any rights to vested benefits as a participant under any employee benefit plan; and (c) any statutory
claims arising out of or relating to such Persons employment by Buyer or Parent, or any of their Affiliates. For the avoidance
of doubt, nothing in this Section 7.5 shall limit the representations, warranties, covenants or indemnification obligations
of any Party under this Agreement or the Associated Agreements.


 


Article
VIII

RESTRICTIVE COVENANTS


 


8.1             
Confidentiality.


 


(a)              
All disclosures of trade secrets, know-how, financial information, or other information of a type that is known to be, or
that a reasonable person would recognize it to be, confidential made by Buyer or any of its affiliates (as applicable, the “Discloser”)
under or in connection with this Agreement or the Associated Agreements, as well as the terms of this Agreement and all Associated
Agreements (collectively, the “Confidential Information”), shall be received and maintained in confidence
by the recipient (the “Recipient”) and each Recipient shall treat all such Confidential Information as
the confidential property of the Discloser and keep it confidential and secure and protect it from unauthorized use or disclosure
by using at least the same degree of care as Recipient employs to avoid unauthorized use or disclosure of its own Confidential
Information of similar nature, but in no event less than reasonable care. Notwithstanding the foregoing, (1) a Recipient shall
be permitted to disclose any Confidential Information if required by applicable law, provided the Recipient provides the Discloser
reasonable prior opportunity to comment upon such disclosure to the extent permitted by law and agree to cooperate to take reasonable
steps to minimize the extent of any such required disclosure, and (2) Buyer, Parent and their Affiliates may disclose information
to the extent required under law in connection with reports, filings, and other documents filed by its Affiliates (including Parent)
with the SEC or any other securities regulator, or otherwise required under the rules or regulations of The Nasdaq Stock Market
LLC or any other securities exchange or market (each as determined by Buyer or its Affiliates in their sole discretion).






    	 	24	 



     


    

(b)              
The term “Confidential Information” does not include information that (i) was in the public domain prior to
the time it was furnished to Recipient or is at the time of the alleged breach (through no willful or improper action or inaction
by such Recipient) generally available to the public, (ii) was or becomes available to a Recipient on a non-confidential basis
from a source other than Buyer or its Affiliates, provided such other source is not be known by the Recipient to be bound by a
confidentiality obligation, (iii) is lawfully known to a Recipient prior to disclosure of the Confidential Information by Buyer
or its Affiliates or (iv) is independently developed by a Recipient without any use of any Confidential Information.


 


(c)              
Each Recipient’s obligations with respect to the Confidential Information shall continue for a term of three (3) years
following the Closing Date.


 


8.2             
Restrictive Covenants of Sellers. As a material inducement to Buyer and Parent to enter into this
Agreement and to consummate the transactions contemplated by this Agreement, the Sellers hereby agrees as follows:


 


(a)              
Competitive Activities. Each Seller shall not, and shall cause each of such Seller’s Affiliates (other than
the JV Companies and Buyer) to not, at any time during the Restrictive Period, directly or indirectly in any part of the Territory:


 


(i)                
engage in or assist other in engaging in, own, control, manage, or participate in the ownership, control or management of,
or have a material financial interest in, any business engaged in, in whole or in part, the Competitive Activity within the Territory;


 


(ii)             
solicit, or assist in the solicitation of, any person having an office or conducting business anywhere within the Territory
and to which the JV Companies sold goods or provided services in connection with the Business, for the purpose of selling goods
or providing services related to the Competitive Activity or diverting business from the JV Companies; or


 


(iii)           
solicit, or assist in the solicitation of, any person employed or engaged by the Parent or the JV Companies in any capacity
(as an employee, independent contractor or otherwise) to terminate such employment or other engagement, whether or not such employment
or engagement is pursuant to a contract and whether or not such employment or engagement is at will; provided, however, that the
advertisement of job openings and use of employee search firms, newspapers, magazines, the internet and other media not directed
at the foregoing shall not constitute a breach of this Section 8.2(a)(iii).






    	 	25	 



     


    

Except as set forth in
this Section 8.2 or as provided under applicable Law, Parent and Buyer shall not restrict each Seller from engaging in any
other businesses or activities and to receive the income and benefits thereof (and Parent and the JV Companies shall have no interest
therein by reason of this Agreement or the Associated Agreements), regardless of whether such businesses or activities are similar
or competitive to the Parent and/or the JV Companies businesses; provided, that nothing in this paragraph shall limit the fiduciary
duties of any designee or representative of one or more of the Sellers on the board of directors of Parent.


 


(b)              
Authority for Judicial Enforcement and Revision. Each Seller agrees and acknowledges that the scope, duration and
geographical area of the covenants of such Seller set forth in this Section 8.2: are reasonable and necessary to protect
the Parent and Buyer. However, the Parties agree that if a court finds the covenants of the Sellers set forth in this Section
8.2 unenforceable due to restrictions unreasonable in scope, duration, geographical area or remedies, then such court shall
be allowed to reform the covenants of such Seller set forth in this Section 8.2 so that the restrictions herein are reasonable
and this Agreement, and the covenants of such Seller set forth in this Section 8.2, are enforceable.


 


(c)              
Remedies. The Sellers acknowledge that if they violate the terms of this Section 8.2 it would be impossible
to determine with any reasonable accuracy the amount of damages to the Buyer and its Affiliates, which cannot be adequately compensated
in monetary damages. Therefore, Buyer shall have, in addition to, and not in lieu of, any of the other rights and remedies available
hereunder, the right to have the provisions of this Section 8.2 specifically enforced by any court of competent jurisdiction
by way of an injunction or other equitable relief. Buyer shall not be required to post a bond or other security or to prove actual
damages or the inadequacy of monetary damages in connection with its efforts to obtain equitable relief concerning this Section
8.2. The Parties agree that any breach or attempted breach of this Section 8.2 would cause substantial and irreparable
damage which would be adequately compensated for by damages. As a result the Buyer and its Affiliates shall be entitled to injunctive
relief in the Territory in addition to the monetary damages.


 


Article
IX

MISCELLANEOUS


 


9.1             
Notices. Any notice or communication required or permitted to be given be any provisions of this
Agreement, including but not limited to any consents, shall be in writing and shall be deemed to have been given and received by
the Person to whom directed, if properly addressed: (a) when delivered personally to such Person or to an officer or partner of
the Person to which directed, (b) upon confirmation of receipt of transmission by email, or (c) two (2) days after being deposited
with an internationally recognized overnight courier, delivery charges prepaid for delivery the following day. The addresses for
notice are as follows:



    	 	26	 



     


    




	 	If to Buyer or Parent:	
        FreightCar North America, LLC

        c/o FreightCar America, Inc.

        125 South Wacker Drive

        Suite 1500

        Chicago, Illinois 60606

        Attn: Christopher Eppel

        Email: CEppel@freightcar.net

         

	 	with a copy to (which shall not constitute notice):	
        Kelley Drye & Warren LLP

        333 West Wacker Drive, 26th Floor

        Chicago, IL 60606

        Attn: Andrew Pillsbury

        Email: APillsbury@kelleydrye.com

         

	 	If to Sellers or any Seller:	
        c/o Fabricaciones y Servicios de Mexico
        SA de CV.

        Carretera 57 Km 178

        Castaños Coahuila, 25780 Mexico

        Email: jgil@fasemex.com.mx

         

	 	with a copy to (which shall not constitute notice):	
        Romero, Ramos, Quintanilla y Bortoni S.C.

        Lazaro Cardenas 435 Despacho 410

        Colonia Loma Larga, 66266

        San Pedro Garza Garcia, Nuevo Leon, Mexico.

        Attn: Francisco Romero

        Email: fromero@rrqb.mx



 


Any Party may change
its address, email, facsimile number or individual for receiving notice for the purpose of this Section 9.1 by notice to
the other given in the manner set forth above.


 


9.2             
Governing Law. This Agreement shall be governed and controlled as to validity, enforcement, interpretation,
construction, effect and in all other respects by the internal laws of the State of Delaware applicable to contracts made in that
state, without giving effect to any law, provision or rule that would cause the application of the laws of any jurisdiction other
than the State of Delaware.


 


9.3             
Consent to Jurisdiction; Waiver of Jury Trial.


 


(a)              
EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL PROCEEDINGS (IN CONTRACT, IN TORT OR OTHERWISE) ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, ANY RELATIONSHIPS BETWEEN THE PARTIES HEREUNDER AND
ANY DISPUTES WITH RESPECT TO ANY OF THE FOREGOING SHALL BE COMMENCED AND PROSECUTED EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS
LOCATED IN THE CITY OF CHICAGO, COUNTY OF COOK, AND ANY APPELLATE COURT THEREFROM OR THE UNITED STATES FOR THE NORTHERN DISTRICT
OF ILLINOIS AND ANY APPELLATE COURT THEREFROM (COLLECTIVELY, THE “Illinois Courts”). EACH PARTY HERE-BY
IRREVOCABLY AND UNCONDITIONALLY CONSENTS AND SUBMITS, FOR IT-SELF AND ITS ASSETS, TO THE EXCLUSIVE JURISDICTION OF ANY OF THE ILLINOIS
COURTS IN RESPECT OF ANY SUCH PROCEEDING. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO SERVICE OF PROCESS IN THE
MANNER PROVIDED FOR NOTICES IN SECTION 9.1. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.






    	 	27	 



     


    

(b)              
EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT,
THE TRANSACTIONS CONTEMPLATED HEREBY, ANY RELATIONSHIPS BETWEEN THE PARTIES HEREUNDER AND ANY DISPUTES WITH RESPECT TO ANY OF THE
FOREGOING IN ANY OF THE ILLINOIS COURTS. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH PROCEEDING IN ANY OF THE ILLINOIS COURTS. EACH OF THE PARTIES AGREES
THAT A FINAL JUDGMENT IN ANY SUCH PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW.


 


(c)              
EACH PARTY AGREES THAT ANY PROCEEDING (IN CONTRACT, IN TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT,
THE TRANSACTIONS CONTEMPLATED HEREBY, ANY RELATIONSHIPS BETWEEN THE PARTIES HEREUNDER AND ANY DISPUTES WITH RESPECT TO ANY OF THE
FOREGOING WILL INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUCH PROCEEDING.


 


(d)              
EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY PROCEEDING ARISING UNDER OR RELATING TO THIS AGREEMENT,
SEEK TO ENFORCE THE FOREGOING WAIVERS, (ii) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (iii) SUCH
PARTY MAKES SUCH WAIVERS VOLUNTARILY, AND (iv) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATION IN THIS SECTION 9.3(d).


 


(e)              
EACH OF THE PARTIES HERETO WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LAWSUIT, ACTION OR PROCEEDING SEEKING
ENFORCEMENT OF SUCH PARTY’S RIGHTS UNDER THIS AGREEMENT.






    	 	28	 



     


    

9.4             
Further Assurance. In connection with this Agreement and the transactions contemplated hereby,
the Parties shall execute and deliver such further documents, and perform such further acts, as may be necessary or appropriate
to effectuate and perform the provisions of this Agreement and those transactions contemplated hereunder, as reasonably requested
by the other Parties.


 


9.5             
Waivers. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly
set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect
of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character,
and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or
privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise
of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other
right, remedy, power, or privilege.


 


9.6             
Rights and Remedies Cumulative. Except as specifically set forth in this Agreement, the rights
and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any Party shall not preclude or
waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the Parties
may have by law, statute, ordinance or otherwise.


 


9.7             
Severability. If any provision of this Agreement or the application thereof to any Person or circumstance
shall be invalid, illegal or unenforceable to any extent, the remainder of this Agreement and the application thereof shall not
be affected and shall be enforceable to the fullest extent permitted by law.


 


9.8             
Assignment. Except as expressly set forth in this Agreement, no Party may assign or transfer any
of its rights or obligations hereunder without the prior written consent of all of the Parties; provided that Buyer or Parent may
assign any rights or obligations hereunder to an Affiliate of either Buyer or Parent. Any proposed assignment in contravention
of this Section 9.8 shall be null and void.


 


9.9             
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same instrument. A signed copy of this Agreement delivered by facsimile,
email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed
copy of this Agreement.


 


9.10         
Terminology and Construction. All personal pronouns used in this Agreement, whether used in the
masculine, feminine or neuter gender, shall include all other genders; and the singular shall include the plural and vice versa.
Titles of Articles, Sections, Exhibits, and Disclosure Schedule are for convenience only, and neither limit nor amplify the provisions
of this Agreement. Except as specifically provided, references to Articles, Sections, Exhibits, and Disclosure Schedule in this
Agreement refer to Articles, Sections, Exhibits, and Disclosure Schedule to, this Agreement. The use herein of the word “including,”
when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific
items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language
(such as “without limitation,” or “but not limited to,” or words of similar import) is used with reference
thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible
scope of such general statement, term or matter. The word “or” shall mean “and/or” unless the context requires
otherwise. The words “day,” “month,” and “year” mean, respectively, calendar day, calendar
month and calendar year. Any reference to a statute shall include and shall be deemed to be a reference to such statute and to
the regulations made pursuant thereto, and all amendments made thereto and enforced from time to time, and to any statute or regulation
that may be passed which has the effect of supplementing the statute so referred to or the regulations made pursuant thereto. The
Parties agree that the terms and conditions of this Agreement and the Associated Agreements are the result of negotiations between
and among them and that neither this Agreement nor any of the Associated Agreements shall be construed in favor of or against any
Party by reason of the extent to which such Party or its professional advisors participated in the preparation of such agreements.
All references to “$” or “dollar” in this Agreement refer to the currency of the United States.






    	 	29	 



     


    

9.11         
Expenses. Each Party shall be responsible for its own legal, accounting, and other expenses incurred
in connection with the negotiations and transactions contemplated by this Agreement and the Associated Agreements.


 


9.12         
Entire Agreement. This Agreement and each of the Associated Agreements and exhibits and schedules
attached hereto set forth all (and are intended by all Parties hereto to be an integration of all) of the promises, agreements,
conditions, understandings, warranties, and representations among the Parties hereto; and there are no promises, agreements, conditions,
understandings, warranties, or representations, oral or written, expressed or implied, among them other than as set forth herein.
Any amendment to this Agreement must be in writing and will not be effective until it is executed and approved by an authorized
representative of each Party.


 


[signature page follows]


 


 


 


 


 


 


 


 


 


 



    	 	30	 



     


    




The Parties have executed
and delivered this Equity Purchase Agreement as of the date first written above.


 


	 	BUYER:
	 	 
	 	FREIGHTCAR NORTH AMERICA, LLC
	 	 
	 	 
	 	By: /s/ James R. Meyer
	 	Name: James R. Meyer
	 	Title: President
	 	 
	 	 
	 	
	 	For purposes of Article V and Article IX and Section 6.2(e) (subject to the limitations and other provisions of Article VI) only: 
	 	 
	 	PARENT:
	 	 
	 	FREIGHTCAR AMERICA, INC.  
	 	 
	 	 
	 	By: /s/ James R. Meyer
	 	Name: James R. Meyer
	 	Title: President and Chief Executive Officer 





 


 


 



    
	[Signature Page to Equity Purchase Agreement]


 


     


    




	 	SELLERS:
	 	 
	 	  FASEMEX, INC.
	 	 
	 	By: /s/ Jesus S. Gil
	 	Name: Jesus S. Gil
	 	Title: President
	 	 
	 	  FABRICACIONES Y SERVICIOS DE MÉXICO, S.A. DE C.V.
	 	 
	 	By: /s/ Alejandro Gil
	 	Name: Alejandro Gil
	 	Title: Legal Representative
	 	 
	 	  AGBEN DE MEXICO, S.A. DE C.V.
	 	 
	 	By: /s/ Jesus S. Gil
	 	Name: Jesus S. Gil
	 	Title: Owner
	 	 


 


 


 


 






    
	[Signature Page to Equity Purchase Agreement]


 


     


    

EXHIBIT
A


 


DEFINITIONS


 


“Affiliate”
means, with respect to a specified Person, any other Person that directly or indirectly controls, is controlled by, or is under
common control with, the specified Person. For the purposes of this definition, the term “control” means (a) the possession,
directly or indirectly, of the power to vote ten percent (10%) or more of the securities or other equity interests of a Person
having ordinary voting power, (b) the possession, directly or indirectly, of the power to direct or cause the direction of the
management policies of a Person, by contract or otherwise or (c) being a director, officer, executor, trustee or fiduciary (or
their equivalent positions) of a Person or a Person that controls such Person. Notwithstanding the foregoing, the JV Companies
shall not be considered Affiliates of any of the Parties prior to Closing, and upon Closing, the JV Companies shall be deemed Affiliates
of Buyer and Parent.


 


“Agben”
has the meaning set forth in the preamble.


 


“Agreement”
has the meaning set forth in the preamble.


 


“Associated
Agreements” means all documents and certificates referenced herein to which any of the Parties is a party and which
is required to be delivered hereunder, or which is delivered by any Party to another contemporaneously with Closing in connection
with the transactions contemplated hereunder.


 


“Business”
has the meaning set forth in the recitals.


 


“Buyer”
has the meaning set forth in the preamble.


 


“Buyer Indemnitees”
has the meaning set forth in Section 6.2(a).


 


“Buyer’s
Knowledge” means the actual knowledge of James R. Meyer and Christopher J. Eppel, in each case after reasonable inquiry
of their respective direct reports.


 


“Claim”
means any complaint, allegation, charge, petition, appeal, demand, notice, filing or claim of any kind that commences, alleges
a basis to commence or threatens to commence any Proceeding by or before any Governmental Body, or that asserts, alleges a basis
to assert or threatens to assert any right, breach, default, violation, noncompliance, termination, cancellation or other action
or omission that would reasonably be expected to result in a Loss.


 


“Claim Response”
has the meaning set forth in Section 6.3(b).


 


“Closing”
has the meaning set forth in Section 1.3.


 


“Closing Date”
has the meaning set forth in Section 1.3.


 


“Closing Value”
means, with respect to shares of Parent Common Stock, the aggregate value of such shares based on the closing price of the Parent
Common Stock on the Trading Market on the Closing Date (or the next applicable trading day).






    	 	Exhibit A-1	 



     


    

“Common Stock”
has the meaning set forth in Section 5.2.


 


“Competitive
Activities” means the manufacture, assembly, distribution or sales of railcars, railcar parts, or railcar components;
provided, however, that the sale of railcar parts or railcar components by Fasemex Mexico or its Affiliates to certain parties
as mutually agreed from time to time shall not be considered a “Competitive Activity”. For clarity, “Competitive
Activity” includes the assembly or manufacture of any type of railcar.


 


“Confidential
Information” has the meaning set forth in Section 8.1(a).


 


“Consideration
Shares” has the meaning set forth in Section 1.1.


 


“Contracts”
means all contracts, leases, deeds, mortgages, licenses, instruments, notes, commitments, undertakings, indentures, joint ventures
and all other agreements, commitments and legally binding arrangements, whether written or oral.


 


“Discloser”
has the meaning set forth in Section 8.1(a).


 


“Disclosure
Schedule” means the disclosure schedule of Sellers, which is incorporated by reference into and made a part of this
Agreement.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


“Executive
Order 13224” has the meaning set forth in Section 2.9.


 


“Fasemex Mexico”
has the meaning set forth in the preamble.


 


“Fundamental
Representations” has the meaning set forth in Section 6.1.


 


“GAAP”
means generally accepted accounting principles as used in the United States as in effect at the time any applicable financial statements
were or are prepared.


 


“Governmental
Body” means any federal, state, regional, county, city, local, municipal, foreign or other government or quasi-governmental
entity or authority or any department, branch, agency, commission, board, subdivision, bureau, agency, official, political subdivision
or other instrumentality of any of the foregoing, any administrative or regulatory body obtaining authority from any of the foregoing,
and any court, tribunal, judicial or arbitral body, mediation or conciliation or self-regulatory authority.


 


“Indemnified
Party” has the meaning set forth in Section 6.3(a).


 


“Indemnifying
Party” has the meaning set forth in Section 6.3(a).


 


“JV Companies”
has the meaning set forth in the recitals.


 


“JV Equity
Interests” has the meaning set forth in the recitals.


 


“Law”
means any constitutional provision, statute, ordinance, law (including common law), rule, regulation, code, plan, decree, injunction,
judgment, Order, ruling, assessment or writ of any Governmental Body, or any legally binding regulatory policy statement (whether
or not publicly available), binding standard or guidance or policy, binding directive, or decree of any Governmental Body, in each
case as any of the foregoing may be in effect from time to time.






    	 	Exhibit A-2	 



     


    

“Liabilities”
has the meaning set forth in Section 3.2.


 


“Lien”
means any lien (including any tax lien), mortgage, security interest, pledge, deposit, option, infringement, charge, claim, deed
of trust, hypothecation, mortgage, contingent sale, title retention, lease or sublease, building or use restriction, adverse claim,
right or intent, covenant, easement, encroachment, defect, or other matter affecting title, conditional sales agreement, community
property interest, or other encumbrance or restriction (including a restriction on transfer such as a right of first refusal) of
any nature or kind, whether voluntarily or involuntarily incurred, arising by operation of Law, by contract or otherwise, and including
any contract to give any of the foregoing in the future.


 


“Losses”
means any and all liabilities, Proceedings, Claims, losses, demands, assessments, adjustments, awards, judgments, settlement payments,
fines, penalties, taxes, interest, damages, costs, deficiencies, fees, charges and expenses, including any and all reasonable expenses
incurred in connection with investigating, defending or asserting any of the foregoing (including court filing fees, court costs,
arbitration fees or costs, witness fees, and reasonable fees and disbursements of legal counsel, investigators, consultants, expert
witnesses, accountants and other professionals).


 


“Material
Adverse Effect” means any change or effect that has a material and adverse effect on (a) the business, operations,
financial condition, or assets of the applicable company and its wholly-owned subsidiaries taken as a whole, or (b) the ability
of applicable company to perform its obligations under this Agreement.


 


“MX JV Equity”
has the meaning set forth in the recitals.


 


“MX Sellers”
has the meaning set forth in the preamble.


 


“Notice of
Claim” has the meaning set forth in Section 6.3(a).


 


“OFAC”
has the meaning set forth in Section 2.9.


 


“Order”
means any judgment, writ, decree, directive, decision, injunction, ruling, stipulation, award, order (including any consent decree
or cease and desist order) or determination of any kind issued, promulgated or entered by or with any Governmental Body.


 


“Ordinary
Course of Business” means, with respect to any action take or omitted to be taken by the JV Companies or by any JV
Company, as applicable in the context, that: (a) is consistent in nature, scope and magnitude with the past practices of the JV
Companies or such JV Company and is taken in the ordinary course of the normal, day-to-day operations of the JV Companies or such
JV Company; (b) does not require authorization by the board of directors or managers or equityholders of the JV Companies or such
JV Company (or by any Person or group of Persons exercising similar authority) and does not require any other separate or special
authorization of any nature; and (c) is similar in nature, scope and magnitude to actions customarily taken, without any separate
or special authorization, in the ordinary course of the normal, day-to-day operations of other Persons that are engaged in the
Business.






    	 	Exhibit A-3	 



     


    

“Parent”
has the meaning set forth in the recitals.


 


“Parent Common
Stock” means common stock, par value $0.01 per share, of Parent.


 


“Parent’s
Knowledge” means the actual knowledge of James R. Meyer and Christopher J. Eppel, in each case after reasonable inquiry
of their respective direct reports.


 


“Party”
and “Parties” has the meaning set forth in the preamble.


 


“Permits”
has the meaning set forth in Section 3.4.


 


“Person”
means a natural person, a partnership, a corporation, a company, a limited liability company, an association, a joint stock company,
a trust, a joint venture, an unincorporated organization, or other form of business enterprise or a Governmental Body.


 


“Proceeding”
means any suit, action, cause of action (whether at law or in equity), arbitration, audit, hearing, investigation, litigation,
claim, complaint, administrative or similar proceeding (whether civil, criminal, administrative, judicial or investigative, whether
formal or informal, whether public or private) commenced, brought, conducted or heard by or before, or otherwise involving, any
Governmental Body.


 


“Production
JV” has the meaning set forth in the recitals.


 


“Recipient”
has the meaning set forth in Section 8.1(a).


 


“Regulation
S” means Regulation S promulgated under the Securities Act.


 


“Response
Period” has the meaning set forth in Section 6.3(b).


 


“Restrictive
Period” means the period beginning at Closing and ending the later of (a) three (3) years after the Closing Date,
and (b) such time when the Sellers and their Affiliates cease to beneficially own, in the aggregate, 5% (five percent) of the issued
and outstanding shares of Parent Common Stock (after giving effect to any stock splits, combinations or similar transactions).


 


“Rule 144”
means Rule 144 promulgated under the Securities Act.


 


“SEC”
means the U.S. Securities and Exchange Commission.


 


“SEC Documents”
means all reports, schedules, forms, proxy statements, statements and other documents filed or required to be filed by Parent with
the SEC pursuant to the reporting requirements of the Exchange Act (including all exhibits and appendices included therein and
financial statements, notes and schedules thereto and documents incorporated by reference therein) during the three (3) years prior
to the date hereof.


 


“Securities
Act” means the Securities Act of 1933, as amended.






    	 	Exhibit A-4	 



     


    

“Seller”
and “Sellers” each has the meaning set forth in the preamble.


 


“Seller Indemnitees”
has the meaning set forth in Section 6.2(b).


 


“Seller’s
Knowledge” means the actual knowledge of Jesús Gil Benavides, Alejandro Gil Benavides, and Salvador Gil Benavides,
in each case after reasonable inquiry of their respective direct reports.


 


“Territory”
means the United States of America (including Puerto Rico), Canada and Mexico.


 


“Third Party
Claim” has the meaning set forth in Section 6.4.


 


“Trading Market”
means the Nasdaq Global Market.


 


“US JV”
has the meaning set forth in the recitals.


 


“US JV Equity”
has the meaning set forth in the recitals.


 


“US Seller”
has the meaning set forth in the preamble.


 


 




 


 


 


Exhibit A-5