AMENDMENT OF EMPLOYMENT AGREEMENT OF THOMAS MCCARTHY
Exhibit 10.4
AMENDMENT OF
EMPLOYMENT AGREEMENT OF XXXXXX XXXXXXXX
EMPLOYMENT AGREEMENT OF XXXXXX XXXXXXXX
This Amendment of Employment Agreement (the “Amendment”) is made and entered into as of the
29th day of December, 2008, by and between Xxxxxx XxXxxxxx (the “Executive”) and
FreightCar America, Inc., a Delaware corporation (the “Company”) (collectively, the “Parties”).
WHEREAS, the Parties entered into an Employment Agreement effective as of June 4, 2007 (the
“Agreement”); and
WHEREAS, the Parties now consider it desirable to amend the terms and conditions of the
Agreement by this Amendment to reflect the requirements of Internal Revenue Code Section 409A and
to clarify the rights of the Parties.
NOW, THEREFORE, in accordance with Section 9(d) of the Agreement and in consideration of the
mutual promises herein made, the sufficiency of which is expressly acknowledged, the Parties agree
as follows:
1. The second paragraph of Section 5(b) of the Agreement is hereby deleted in its entirety and
replaced with the following:
“The Company shall pay the Executive’s Bonus, if any, at the same time as annual
cash bonus payments for such year are made to other participants with respect to
such fiscal year, and in all events within the two and one half (21/2) months
following the end of the fiscal year in which the Bonus is earned. The Bonus is
intended to qualify for the short-term deferral exception to Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”).”
2. The following sentence is hereby added to the end of Section 5(e) of the Agreement:
“All reimbursements of expenses shall be made to the Executive in accordance with
the policies and procedures established by the Company and in all events within the
two and one-half (21/2) months following the end of the year in which the expense is
incurred.”
3. The following Section 6(d) is hereby added to the Agreement:
“For purposes of this Agreement, the Executive’s employment with the Company shall
be deemed to be terminated when the Executive has a “Separation from Service” within
the meaning of Code Section 409A, and references to termination of employment shall
be deemed to refer to a Separation from Service.”
4. The language “within thirty (30) days” is hereby added to Section 7(a) of the Agreement
following the phrase “(or his representative)”.
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5. The following language is hereby deleted in its entirety from Section 7(d)(i) of the
Agreement:
“, provided that, if these payments must be delayed for six months following the
Executive’s termination due to the restrictions of Code Section 409A(a)(2)(A)(i),
the full amount of the missed/delayed payments shall be made on the first day of the
seventh calendar month following the month in which the Executive’s employment
terminates;”
6. The following language is hereby deleted in its entirety from Section 7(d)(ii) of the
Agreement:
“, provided that if the payment must be delayed for six months following the
Executive’s termination due to the restrictions of Code Section 409A(a)(2)(A)(i),
the payment shall be made on the first day of the seventh calendar month following
the month in which the Executive’s employment terminates”
7. The following new Section 10 is hereby added to the Agreement:
“Code Section 409A
(a) The Agreement is intended to comply with Code Section 409A and the
interpretative guidance thereunder, including the exceptions for short-term
deferrals, separation pay arrangements, reimbursements, and in-kind distributions,
and shall be administered accordingly. The Agreement shall be construed and
interpreted with such intent.
(b) Each payment under the Agreement or any Company benefit plan is intended to be
treated as one of a series of separate payments for purposes of Code Section 409A
and Treasury Regulation §1.409A-2(b)(2)(iii) (or any similar or successor
provisions).
(c) To the extent that payments under the Agreement are subject to Code Section 409A
and are on account of a Separation from Service and the Executive is a “Specified
Employee” (as defined below) as of the date of termination, distributions to the
Executive may not be made before the date that is six (6) months after the date of
Separation from Service or, if earlier, the date of the Executive’s death (the “Six
Month Delay Rule”). Payments to which the Executive would otherwise be entitled
during the first six (6) months following the date of termination (the “Six Month
Delay”) will be accumulated and paid on the first day of the seventh month following
the date of termination (or the Executive’s death, if earlier).
(d) During the Six-Month Delay, the Company will pay to the Executive any applicable
payments to the extent any of the following exceptions to the Six-Month Delay Rule
apply:
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| (i) | the short-term deferral rule of Code Section 409A and Treasury Regulation §1.409A-1(b)(4) (or any similar or successor provisions), |
| (ii) | payments permitted under the separation pay exception of Code Section 409A and Treasury Regulation §1.409A-1(b)(9)(iii) (or any similar or successor provisions), and |
| (iii) | payments permitted under the limited payments exception of Code Section 409A and Treasury Regulation §1.409A-1(b)(9)(v)(D) (or any similar or successor provisions), |
provided that the amount paid under this paragraph will count toward, and will not
be in addition to, the total payment amount required to be made to the Executive by
the Company on account of the Separation from Service and any applicable Company
benefit plan.
(e) For purposes of this Agreement, the term “Specified Employee” has the meaning
given to that term in Code Section 409A and Treasury Regulation §1.409A-1(i) (or any
similar or successor provisions).
(f) The Executive agrees that the Company may amend this Agreement to the minimum
extent necessary to satisfy the applicable provisions of Code Section 409A and the
Treasury Regulations or other guidance issued thereunder. The Company cannot
guarantee that the payments and benefits that may be paid or provided pursuant to
this Agreement will satisfy all applicable provisions of Code Section 409A.”
The execution of copies of this Amendment by facsimile or other electronic transmission shall
constitute effective execution and delivery of this Amendment as to the parties and may be used in
lieu of the original Amendment for all purposes. Signatures of the parties transmitted by
facsimile or other electronic transmission shall be deemed to be their original signatures for all
purposes.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the 29th day of
December, 2008.
| FREIGHTCAR AMERICA, INC. | EXECUTIVE | |||||||
By:
|
/s/ XXXXXXXXX XXXXX
President and Chief Executive Officer |
/s/ XXXXXX XXXXXXXX
|
||||||
| Date: December 29, 2008 | Date: December 22, 2008 | |||||||
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