FreightCar America, Inc. (Form: 8-K, Received: 08/27/2010 09:29:46)

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): August 27, 2010

FREIGHTCAR AMERICA, INC.

(Exact name of Registrant as specified in its charter)


Delaware	000-51237	25-1837219
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification Number)


Two North Riverside Plaza, Suite 1250
Chicago, Illinois		60606
(Address of principal executive offices)		(Zip Code)

(800) 458-2235
(Registrant’s telephone number, including area code)

N/A
(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:


o		Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)


o		Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)


o		Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))


o		Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Section 5 — Corporate Governance and Management

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

On August 27, 2010, FreightCar America, Inc. (the “Company”) announced that its Board of Directors (the “Board”) has appointed Joseph E. McNeely as Vice President, Finance, Chief Financial Officer and Treasurer, effective on September 13, 2010.

Mr. McNeely, 46, has 25 years of experience in finance and accounting, the last 14 years of which have been in the railcar industry. He most recently served as Vice President of Mitsui Rail Capital, LLC (“Mitsui”), a subsidiary of Mitsui and Co., Ltd. that is engaged in the leasing of rail equipment. From 2007 to 2010, Mr. McNeely’s responsibilities at Mitsui included business development, sales management and organizational management. Prior to that, from 2001 to 2007, Mr. McNeely served as Vice President Finance of GATX Rail, a subsidiary of GATX Corporation that was engaged in the leasing, operation and management of rail assets. During his time at GATX Rail, Mr. McNeely was the primary financial officer for the division and his role included all aspects of financial management, including accounting, financial reporting and compliance and strategic planning.

Mr. McNeely succeeds Christopher L. Nagel, who had served as Vice President, Finance, Chief Financial Officer and Treasurer since January 14, 2009 and left the Company by mutual consent.

In connection with Mr. McNeely’s appointment, the Company and Mr. McNeely entered into a letter agreement regarding Terms of Employment (the “Agreement”) dated August 27, 2010 and effective September 13, 2010 (the “Effective Date”). A description of the material terms of the Agreement is set forth below, which description is qualified in its entirety by reference to the Agreement attached hereto as Exhibit 10.1.

(1) Term: Mr. McNeely’s employment with the Company is not for a specified term and there is no specified term for the Agreement.

(2) Base Salary: The Company will pay Mr. McNeely an initial base salary of $265,000, which is subject to annual review by the Company.

(3) Bonus: Mr. McNeely will be entitled to participate in the Company’s annual cash incentive plan applicable to senior executives (the “Bonus Plan”) and to earn a bonus (“Bonus”) for each fiscal year of the Company ending during his employment beginning in fiscal year 2011 and a pro-rated bonus for fiscal year 2010. His target Bonus is 50% of his base salary, upon achievement of a target level of performance set forth in the Bonus Plan, and is payable within 2.5 months after the end of the relevant fiscal year. His maximum Bonus may be as much as 75% of his base salary.

(4) Long-Term Incentive and Other Executive Compensation Plans: Mr. McNeely will be eligible to participate in all of the Company’s equity-based and cash-based long-term

incentive and other executive and deferred compensation plans on a basis no less favorable than other similarly situated executives.

(5) Sign-On Award: On the Effective Date, the Company will award Mr. McNeely 2,500 shares of restricted stock in accordance with and subject to the terms of the Company’s 2005 Long Term Incentive Plan, vesting in three equal annual installments beginning on the first anniversary of the Effective Date. This restricted stock award would become fully vested upon a change in control.

(6) Other Amounts: Mr. McNeely will be entitled to participate in each of the Company’s employee retirement, savings, welfare and fringe benefit plans, and perquisites, offered to its senior executives. He will be entitled to seven days of paid vacation during the remainder of 2010 and at least four weeks of paid annual vacation beginning in 2011, and reimbursement by the Company for all business expenses (including entertainment) incurred in connection with his duties.

(7) Make-Whole Agreement: If Mitsui does not pay Mr. McNeely an annual incentive bonus for the 2010 calendar year (the “Mitsui Bonus”), the Company, within 60 days of its receipt of a certification from Mr. McNeely that Mitsui’s failure to pay the Mitsui Bonus was a result of Mr. McNeely’s termination of his employment, will pay Mr. McNeely an amount equal to the lesser of the Mitsui Bonus or $50,000. If, subsequent to the receipt of such amount, Mr. McNeely voluntarily terminates his employment with the Company before September 13, 2011, other than for Good Reason (as defined in the Agreement), he must repay such amount to the Company.

(8) Termination Payments: Pursuant to the Agreement, Mr. McNeely’s employment may be terminated by the Company or Mr. McNeely upon notice to the other party. Upon a termination of Mr. McNeely’s employment for any reason, he will be entitled to (i) accrued base salary and accrued and unused vacation through the date of termination, (ii) any earned and unpaid prior fiscal year bonus and (iii) any accrued and vested benefits and unreimbursed expenses incurred and unpaid on the date of termination. In addition, Mr. McNeely will be a participant in the Company’s Executive Severance Plan, which sets forth Mr. McNeely’s benefits upon termination of employment or a change in control. Under this plan, upon involuntary termination of employment without “cause” or termination of employment for “good reason,” Mr. McNeely would be entitled to continuation of base salary for a period of 12 months, an amount equal to the average of the annual bonuses paid to him for the last two full years, and continuation of certain health benefits for a period of 12 months.

Section 9—Financial Statements and Exhibits

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

Exhibit 10.1		Letter agreement regarding Terms of Employment dated August 27, 2010 by and between FreightCar America, Inc. and Joseph E. McNeely.

Exhibit 99.1		Press Release of FreightCar America, Inc. dated August 27, 2010.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.


	FreightCar America, Inc.
Date: August 27, 2010	By:	/s/ Laurence M. Trusdell
		Name:	Laurence M. Trusdell
		Title:	General Counsel and Corporate Secretary

EXHIBIT INDEX


Exhibit Number		Description
Exhibit 10.1		Letter agreement regarding Terms of Employment dated August 27, 2010 by and between FreightCar America, Inc. and Joseph E. McNeely.

Exhibit 99.1		Press Release of FreightCar America, Inc. dated August 27, 2010.

Exhibit 10.1

August 27, 2010

Joseph E. McNeely
2409 Rivendell Drive
New Lenox, Illinois 60451

Re: Terms of Employment

Dear Joe:

This letter agreement (“ letter ”) sets forth the terms of your employment with FreightCar America, Inc. (the “ Company ”). Commencing September 13, 2010, you will be employed as the Company’s Vice President, Finance, Chief Financial Officer and Treasurer, based at the Company’s offices in Chicago, Illinois, and reporting to the Company’s President and Chief Executive Officer. You will have all of the duties and responsibilities commensurate with such position under the Company’s by-laws and consistent with the duties and responsibilities of chief financial officers of similar businesses as the Company. During your employment, you will devote your full-time business attention to the Company and will use your best efforts to discharge your responsibilities. You may, however, engage in civic and charitable activities, provided that these activities do not interfere with your duties to the Company.

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

1. Salary . Beginning September 13, 2010, you will receive an annual base salary in the amount of $265,000 (“ Salary ”), paid in accordance with payroll practices applicable to senior executives. Your Salary will be reviewed by the Company annually and may be increased (not decreased without your written consent) in the Company’s discretion.

2. Bonus . You will be entitled to participate in the Company’s annual cash incentive plan applicable to senior executives (the “ Bonus Plan ”) and to earn a bonus (“ Bonus ”) for each fiscal year of the Company ending during your employment. The measurement period for the Bonus Plan is concurrent with the Company’s fiscal year, concluding on December 31 ^st of each year. Your target Bonus is 50% of your Salary, upon achievement of a target level of performance set forth in the Bonus Plan, payable in cash or securities of the Company, as may be determined under the Bonus Plan, within two and one-half months after the end of the fiscal year to which it relates. Your maximum Bonus, to the extent earned under the Bonus Plan, may be as much as 75% of your Salary. If there are Bonus payments under the Bonus Plan in respect of the 2010 fiscal year, then you will be eligible for consideration for a partial Bonus payment for 2010 prorated to align with your base salary earnings from your September 13, 2010 start date through December 31, 2010.

Two North Riverside Plaza
Suite 1250
Chicago, IL 60606 USA

312.928.0850
Fax 312.928.0890
www.freightcaramerica.com

3. Long-Term Incentive and Other Executive Compensation Plans . You will be eligible to participate in all of the Company’s equity-based and cash-based long-term incentive and other executive and deferred compensation plans on a basis no less favorable than other similarly situated executives. Any awards under these plans may be made from time to time in the sole discretion of the Compensation Committee of the Company’s Board of Directors or the Board of Directors.

4. Sign-On Award . On September 13, 2010, you will be granted 2,500 restricted shares of Company common stock under the Company’s 2005 Long Term Incentive Plan, having such terms and conditions as are set forth in the restricted share award agreement attached to this letter as Exhibit A.

5. Make Whole Agreement . It is anticipated that as a result of your terminating your employment with Mitsui Rail Capital (“Mitsui”), Mitsui may not pay you a bonus for the 2010 calendar year under Mitsui’s annual incentive bonus plan (the “Mitsui Bonus”). Within thirty (30) days following the date as of which Mitsui makes bonus payments with respect to 2010 to participants under such plan, you will notify the Company’s President and Chief Executive Officer whether Mitsui has paid you the Mitsui Bonus, provided that the Company’s President and Chief Executive Officer must receive such notification by May 1, 2010. Subject to the preceding sentence, if you provide a reasonable written certification to the Company that, as a result of your terminating your employment with Mitsui, Mitsui did not pay you the Mitsui Bonus, together with your best good-faith estimate of the amount of the forgone Mitsui Bonus, then the Company will pay such amount to you within sixty (60) days of receiving such written certification. The Company’s obligation under the foregoing provision shall, however, be subject to the following:

(a) upon the Company’s request, you will provide the Company with such supporting documentation as the Company may reasonably request concerning the aforementioned matters;

(b) the maximum total amount the Company will pay you under this Section 5 will not in any event exceed $50,000; and

(c) if you voluntarily terminate your employment with the Company before September 13, 2011, other than for Good Reason (as defined in the Executive Severance Plan referenced below), then you will repay to the Company the full amount of the forgone Mitsui Bonus which was so paid by the Company.

6. Benefits; Business Expenses . During your employment, you will be entitled to participate in each of the Company’s employee retirement, savings, welfare and fringe benefit plans, and perquisites, offered to its senior executives, as in effect from time to time.

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You will be entitled to paid annual vacation on a basis that is at least as favorable as that provided to other similarly situated executives of the Company, but not less than four (4) weeks per year, earned in accordance with applicable Company policy. On a special exception basis, as of your start date the Company will provide you with seven (7) paid vacation days for your use during the remainder of 2010 (which days will be forfeited to the extent you have not used them by December 31, 2010). You will be reimbursed for all business, including entertainment, expenses incurred by you in connection with your duties, subject to the Company’s policy for substantiating such expenses.

7. Termination . Upon a termination of your employment for any reason, you will be entitled to (i) your accrued Salary and accrued and unused vacation through the date of termination, (ii) your prior fiscal year bonus, to the extent earned and unpaid, and (iii) any accrued and vested benefits and unreimbursed expenses incurred and unpaid on the date of termination in accordance with Section 6. You will also participate in and be entitled to benefits under the Company’s Executive Severance Plan as then in effect, subject to your prior written acknowledgement and acceptance of the terms and conditions of that plan. A copy of the Executive Severance Plan as currently in effect is attached as Exhibit B to this letter.

8. Restrictive Covenants

(a) Confidential Information . You understand that the Company possesses and will possess Confidential Information that is important to its business. The Company devotes significant financial, human and other resources to the development of its products, its customer base and the general goodwill associated with its business and the Company diligently maintains the secrecy and confidentiality of its Confidential Information. For this purpose, “Confidential Information” is information that was or will be developed, created, or discovered by or on behalf of the Company, or that became or will become known by, or was or is conveyed to the Company, which has commercial value in the Company’s business. Confidential Information is sufficiently secret to derive economic value from its not being generally known to other persons. Confidential Information also includes any and all financial, technical, commercial or other information concerning the business and affairs of the Company that is confidential and proprietary to the Company, including without limitation, (i) information relating to the Company’s past and existing customers and vendors and development of prospective customers and vendors, including without limitation specific customer product requirements, pricing arrangements, payment terms, customer lists and other similar information; (ii) inventions, designs, methods, discoveries, works of authorship, creations, improvements or ideas developed or otherwise produced, acquired or used by the Company; (iii) the Company’s proprietary programs, processes or software, consisting of but not limited to, computer programs in source or object code and all related documentation and training materials, including all upgrades, updates, improvements, derivatives and modifications thereof and including programs and documentation in incomplete stages of design or research and development; (iv) the subject matter of the Company’s patents, design patents, copyrights, trade secrets, trademarks, service marks, trade names, trade dress,

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manuals, operating instructions, training materials, and other industrial property, including such information in incomplete stages of design or research and development; and (v) other confidential and proprietary information or documents relating to the Company’s products, business and marketing plans and techniques, sales and distribution networks and any other information or documents which the Company reasonably regards as being confidential.

You understand that the Company possesses or will possess “Company Materials” that are important to its business. For this purpose, “Company Materials” are documents or other media or tangible items that contain or embody Confidential Information or any other information concerning the business, operations or future/strategic plans of the Company, whether such documents have been prepared by you or by others. In consideration of your employment by the Company, the compensation received by you from the Company, and the Company’s agreement to give you access to certain Confidential Information, you agree as follows:

(i) All Confidential Information and trade secret rights, and other intellectual property and rights (collectively “ Rights ”) in connection therewith will be the sole property of the Company. At all times, both during your employment by the Company and after its termination for any reason, you will keep in confidence and trust and will not use or disclose any Confidential Information or anything relating to it without the prior written consent of a then current officer of the Company except as may be necessary and appropriate in the ordinary course of performing your duties to the Company.

(ii) All Company Materials will be the sole property of the Company. You agree that during your employment by the Company, you will not remove any Company Materials from the business premises of the Company or deliver any Company Materials to any person or entity outside the Company, except as you are required to do so in connection with performing the duties of your employment. You further agree that, immediately upon the termination of your employment by you or by the Company for any reason, or during your employment if so requested by the Company, you will return all Company Materials, apparatus, equipment and other physical property, or any reproduction of such property.

(b) Noncompetition and Non-solicitation . While employed by the Company and for a period of twelve (12) consecutive months thereafter, you will not, directly or indirectly:

(i) Contact, solicit, interfere with, or divert, or induce or attempt to contact, solicit, interfere with or divert, any of the Company’s customers;

(ii) Participate or engage in (as an owner, partner, employee, officer, director, independent contractor, consultant, advisor or in any other capacity

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calling for the rendition of services, advice, or acts of management, operation or control) any business engaged in the manufacture of railcars in North America; and

(iii) Solicit or induce or attempt to solicit or induce, by or for yourself, or as the agent of another, or through others as an agent in any way, any person who is employed by the Company for the purpose of encouraging that employee to join you as a partner, agent, employee or otherwise in any business activity which is competitive with the Company.

(c) Forfeitures . In the event that you materially breach any of the restrictions in this Section 8, you shall forfeit all of the applicable payments and benefits described in this letter, and the Company shall have the right to recapture and seek repayment of any such applicable payments and benefits under this letter.

(d) Intellectual Property . “Inventions” includes all improvements, inventions, designs, formulas, works of authorship, trade secrets, technology, computer programs, compositions, ideas, processes, techniques, know-how and data, whether or not patentable, made or conceived or reduced to practice or developed by you, either alone or jointly with others, during the term of your employment, including during any period prior to the date of this letter. Except as defined in this letter, all Inventions that you make, conceive, reduce to practice or develop (in whole or in part, either alone or jointly with others) during your employment will be the sole property of the Company to the maximum extent permitted by law. You agree to assign such Inventions and all Rights in them to the Company. Exemptions from this agreement to assign may be authorized in those circumstances where the mission of the Company is better served by such action, provided that overriding obligations to other parties are met and such exemptions are not inconsistent with other Company policies. Further, you may petition the Company for license to make, market or sell a particular Invention.

(e) Injunction . You acknowledge that monetary damages will not be an adequate remedy for the Company in the event of a breach of this Section 8, and that it would be impossible for the Company to measure damages in the event of such a breach. Therefore, you agree that, in addition to other rights and remedies that the Company may have, the Company is entitled to an injunction preventing you from any breach of this Section 8, and you hereby waive any requirement that the Company post any bond in connection with any such injunction. You further agree that injunctive relief is reasonable and necessary to protect a legitimate, protectable interest of the Company.

(f) Blue Pencil . If any court determines that the covenants contained in this Section 8, or any part hereof, are unenforceable because of the duration or geographic scope of such provision, such court shall have the power to reduce the duration or scope of such provision, as the case may be, to as close to the terms hereof as shall be enforceable and, in its reduced form, such provision shall then be enforceable.

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(g) Survival . The restrictive covenants contained in this Section 8 shall survive the termination of your employment.

9. Section 409A . Anything in this letter to the contrary notwithstanding, if any payment(s) or benefit(s) under this letter would be subject to the provisions of Section 409A of the Internal Revenue Code of 1986 (the “ Code ”) at the time they become payable or benefits due you, to the extent required to comply with Section 409A of the Code any such payments or benefits will be delayed for six (6) months or such other earliest day on which such payments could be made or benefits provided in compliance with Section 409A of the Code and the regulations thereunder (at which point all payments so delayed will be provided or reimbursed to you in one lump sum, without interest, within two and one-half months after the date they then become so payable or due to you).

10. Miscellaneous .

(a) Entire Agreement . Except as otherwise contemplated herein, this letter (including Exhibits A and B) contains the entire agreement between you and the Company with respect to the subject matter hereof. No amendment, modification or termination of this letter may be made orally, but must be made in writing and signed by you and the Company. In the event of any inconsistency between this letter (including Exhibits A and B) and any plan, program, practice or agreement of or with the Company and you, this letter (including Exhibits A and B) shall control.

(b) Survival . The provisions of Section 8 shall survive any termination of your employment.

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

(d) Governing Law . This letter will be governed by and construed in accordance with the law of the State of Illinois, and not its choice of law rules, applicable to contracts made and to be performed entirely within that State.

(e) No Set-off or Mitigation . Your rights to payments under this letter will not be affected by any set-off, counterclaim, recoupment or other right the Company

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may have against you or anyone else. You do not need to seek other employment or take any other action to mitigate any amounts owed to you under this letter, and those amounts will not be reduced if you do obtain other employment.

(f) Notices . All notices, requests, demands and other communications under this letter must be in writing and will be deemed given (i) when hand-delivered, (ii) on the first business day after the business day sent from within the United States, if delivered by a nationally recognized overnight courier or (iii) on the third business day after the business day sent if delivered by registered or certified mail, return receipt requested, in each case to the following address (or to such other address as may be specified by notice that conforms to this Section 10(f)):

If to the Company, to:

FreightCar America, Inc.
Two North Riverside Plaza
Suite 1250
Chicago, Illinois 60606
Attention: Secretary

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

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

Very truly yours,

FreightCar America, Inc.



	By:
		Senior Vice President, Human Resources

Accepted and agreed:



	Joseph E. McNeely

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EXHIBIT A

RESTRICTED SHARE AWARD AGREEMENT

(See following pages.)

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EXHIBIT B

EXECUTIVE SEVERANCE PLAN

(See following pages.)

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Exhibit 99.1



*News Release*

2 North Riverside Plaza, Suite 1250 • Chicago IL 60606 • 800-458-2235 • www.freightcaramerica.com

FOR RELEASE August 27, 2010

FreightCar America appoints Joseph E. McNeely as Chief Financial Officer

Christopher L. Nagel has left the Company to pursue new opportunities

CHICAGO — August 27, 2010 — FreightCar America, Inc. (NASDAQ: RAIL) today announced that its Board of Directors has appointed Joseph (Joe) E. McNeely as Chief Financial Officer, effective September 13, 2010. McNeely succeeds Christopher L. Nagel, who has left the Company by mutual consent to pursue new opportunities.

McNeely, 45, has 25 years experience in finance and accounting, and has spent the last 10 years in the railcar industry. He has established relationships with many of FreightCar America’s valued partners and most recently served as Vice President at Mitsui Rail Capital, LLC, a subsidiary of Mitsui and Company. While working for Mitsui, McNeely focused his efforts on business development and improving asset utilization. Previously, he held positions at GATX Corporation, including Vice President Finance for GATX Rail and Vice President Finance and IT for GATX Terminals Corporation.

“Joe will be a great complement to our executive team, as his financial and industry experience will help guide the Company through a period of economic and industry challenges as we position the Company for recovery,” said Ed Whalen, President and Chief Executive Officer of FreightCar America. “We are confident that Joe’s experience, as well as the experience of our broader leadership team, will provide a solid foundation for optimizing FreightCar America’s future performance and help guide the Company’s strategic long-term growth.”

Whalen concluded, “I would like to thank Chris for his contributions to the Company, and wish him well as he pursues new opportunities.”

About FreightCar America, Inc.

FreightCar America, Inc. manufactures railroad freight cars, with particular expertise in coal-carrying railcars. In addition to coal cars, FreightCar America designs and builds bulk commodity cars, flat cars, mill gondola cars, intermodal cars, coil steel cars and motor vehicle carriers. It is headquartered in Chicago, Illinois and has manufacturing facilities in Danville, Illinois and Roanoke, Virginia. More information about FreightCar America is available on its website at www.freightcaramerica.com.

Forward-Looking Statements

This press release contains statements that are “forward-looking statements” as defined under the Private Securities Litigation Reform Act of 1995. Forward-looking statements represent our estimates and assumptions only as of the date of this press release. Our actual results may differ materially from the results described in or anticipated by our forward-looking statements due to certain risks and uncertainties. These potential risks and uncertainties include, among other things: the cyclical nature of our business; adverse economic and market conditions; fluctuating costs of raw materials, including steel and aluminum, and delays in the delivery of raw materials; our ability to maintain relationships with our suppliers of railcar components; our reliance upon a small number of customers that represent a large percentage of our sales; the variable purchase patterns of our customers and the timing of completion, delivery and acceptance of customer orders; the highly competitive nature of our industry; the risk of lack

of acceptance of our new railcar offerings by our customers; and the additional risk factors described in our filings with the Securities and Exchange Commission. We expressly disclaim any duty to provide updates to any forward-looking statements made in this press release, whether as a result of new information, future events or otherwise.

Media and Investor Contact

Laurence M. Trusdell
General Counsel & Corporate Secretary
(312) 928-0884

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