As filed with the Securities and Exchange Commission
on September 5, 2023
Registration
No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FreightCar
America, Inc.
(Exact
Name of Registrant as Specified in Its Charter)
| Delaware |
|
25-1837219 |
(State or Other Jurisdiction of
Incorporation or Organization) |
|
(I.R.S. Employer Identification No.) |
125 South Wacker Drive, Suite 1500
Chicago, Illinois 60606
(Address
of Principal Executive Offices)
FreightCar America, Inc. 2022 Long Term Incentive
Plan
Randall Inducement Stock Option Grant
(Full
Title of the Plan)
James R. Meyer
Chief Executive Officer
FreightCar America, Inc.
125 South Wacker Drive, Suite 1500
Chicago, Illinois 60606
(Name
and Address of Agent for Service)
(800) 458-2235
(Telephone Number, Including Area Code, of Agent
for Service)
With a copy to:
Andrew P. Pillsbury, Esq.
Kelley Drye & Warren LLP
333 W. Wacker Drive, 26th Floor
Chicago, Illinois 60606
(312) 857-7070
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ¨ |
Accelerated filer ¨ |
| Non-accelerated filer þ |
Smaller reporting company þ |
| |
Emerging growth company ¨ |
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
FreightCar America, Inc.,
a Delaware corporation (the “Registrant”), shall deliver the document containing the information in Part I of this Registration
Statement on Form S-8 to each participant in the FreightCar America, Inc. 2022 Long Term Incentive Plan and the Inducement Stock Option
Award Agreement by and between the Registrant and Nicholas J. Randall dated as of June 26, 2023, as specified by Rule 428(b)(1) under
the Securities Act of 1933, as amended (the “1933 Act”). Such documents are not being filed with or included in this Registration
Statement (by incorporation by reference or otherwise) in accordance with the rules and regulations of the Securities and Exchange Commission
(the “Commission”). In each case, such document and the documents incorporated by reference into this Registration Statement
pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section
10(a) of the 1933 Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed
by the Registrant with the Commission are incorporated by reference in this Registration Statement:
| · |
the Registrant’s annual report on Form 10-K for the fiscal year ended December 31, 2022, filed with the Commission on March 27, 2023 (File No. 000-51237) (the “Form 10-K”); |
| · |
the Registrant’s quarterly reports on Form 10-Q for the fiscal quarter ended March 31, 2023, filed with the Commission on May 9, 2022, and for the fiscal quarter ended June 30, 2023, filed with the Commission on August 7, 2023 (File No. 000-51237); |
| · |
the Registrant’s current reports on Form 8-K filed with the Commission on February 1, 2023; March 1, 2023; May 15, 2023; May 18, 2023; May 24, 2023 and June 30, 2023 (all File No. 000-51237); |
| · |
the portions of our proxy statement relating to our 2023 annual meeting of stockholders filed with the SEC on April 10, 2023, that were incorporated by reference into the Form 10-K; and |
| · |
the description of the Registrant’s common stock contained in its Registration Statement on Form 8-A, filed with the Commission on April 4, 2005 pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended (the “1934 Act”), including any amendment or report filed for the purpose of updating such description. |
All documents subsequently
filed with the Commission by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act prior to the filing of a post-effective
amendment, which indicates that all securities offered herein have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference herein and to be part hereof from the respective dates of filing of such documents (other
than the portions of such documents, which by statute, by designation in such document or otherwise (including, but not limited to information
disclosed by the Registrant under Items 2.02, 7.01, or 9.01 of any current report on Form 8-K), are not deemed filed with the Commission
or are not regarded to be incorporated herein by reference). Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof or for purposes of the related prospectus
to the extent that a statement contained herein or in any other subsequently filed document that is also incorporated or deemed to be
incorporated herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Registrant is
incorporated under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify any persons who were, are or are threatened to be made, parties to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of
such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation, or
is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding,
provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the
corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that
his or her conduct was unlawful.
Section 145 of the Delaware
General Corporation Law further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee
or agent of another corporation or enterprise, against any liability asserted against him or her and incurred by him or her in any such
capacity, arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify him or
her under Section 145 of the Delaware Corporation Law.
The Registrant’s certificate
of incorporation, as amended, eliminates the personal liability of a director to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liabilities arising: (a) from any breach of the director’s duty of loyalty
to the corporation or its stockholders; (b) from acts or omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (c) under Section 174 of the Delaware General Corporation Law; or (d) from any transaction from which the director derived
an improper personal benefit. In addition, the Registrant’s bylaws provide for indemnification of directors, officers, employees
and agents to the fullest extent permitted by Delaware law and authorize the Registrant to purchase and maintain insurance to protect
itself and any director, officer, employee or agent of the Registrant or another business entity against any expense, liability or loss,
regardless of whether the Registrant would have the power to indemnify such person under the Registrant’s bylaws or Delaware law.
Insofar as indemnification
for liabilities arising under the 1933 Act may be permitted to directors, officers or persons controlling the Registrant pursuant to the
foregoing provisions, the Registrant has been informed that in the opinion of the Commission such indemnification is against public policy
as expressed in the 1933 Act and is therefore unenforceable.
In addition, the Registrant
has purchased director and officer liability insurance for the benefit of such persons.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following documents are
filed as exhibits to this Registration Statement:
Exhibit
Number |
|
Description |
| |
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|
| 4.1 |
|
Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.4 to the Registrant’s Registration Statement on Form S-1 (File No. 333-123384)). |
| |
|
|
| 4.2 |
|
Description of the Registrant’s Securities Registered Pursuant to Section 12 of the 1934 Act (incorporated by reference to Exhibit 4.1 to the Company’s Annual Report on Form 10-K filed with the Commission on March 27, 2023). |
| |
|
|
| 5.1* |
|
Opinion of Kelley Drye & Warren LLP. |
| |
|
|
| 10.1 |
|
FreightCar America, Inc. 2022 Long Term Incentive Plan (incorporated by reference to Appendix A to the Company’s Proxy Statement for the annual meeting of stockholders held on May 1, 2022 filed with the Commission on April 1, 2022 (File No. 000-51237)). |
| |
|
|
| 10.2 |
|
Amendment No. 1 to FreightCar America, Inc. 2022 Long Term Incentive Plan dated as of March 27, 2023 (incorporated by reference to Exhibit 10.15.1 to the Company’s Annual report on Form 10-K for the fiscal year ended December 31, 2021 (File No. 000-51237)). |
| |
|
|
| 10.3 |
|
Amendment No. 2 to the FreightCar America, Inc. 2022 Long Term Incentive Plan dated as of May 11, 2023 (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the Commission on May 15, 2023 (File No. 000-51237)). |
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|
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| 10.4* |
|
Form of Inducement Stock Option Award Agreement between the Company and Nicholas J. Randall. |
| |
|
|
| 23.1* |
|
Consent of Grant Thornton LLP. |
| |
|
|
| 23.2* |
|
Consent of Kelley Drye & Warren LLP (included in Exhibit 5.1). |
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|
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| 24.1* |
|
Powers of attorney (included on the signature page of this Registration Statement). |
| |
|
|
| 107* |
|
Filing Fee Table. |
* Filed herewith.
Item 9. Undertakings.
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the 1933 Act.
(ii) To
reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price
set forth in the “Calculation of Registration Fee” table in the effective Registration Statement.
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement.
Provided, however,
that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the 1934 Act that are incorporated by reference in this Registration Statement.
(2) That,
for the purpose of determining any liability under the 1933 Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(4) That,
for the purpose of determining liability of the Registrant under the 1933 Act to any purchaser in the initial distribution of the securities,
in a primary offering of securities of the Registrant pursuant to this Registration Statement, regardless of the underwriting method used
to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications,
the Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) any preliminary
prospectus or prospectus of the Registrant relating to the offering required to be filed pursuant to Rule 424; (ii) any free writing prospectus
relating to the offering prepared by or on behalf of the Registrant or used or referred to by the Registrant; (iii) the portion of any
other free writing prospectus relating to the offering containing material information about the Registrant or its securities provided
by or on behalf of the Registrant; and (iv) any other communication that is an offer in the offering made by the Registrant to the purchaser.
(b) The
Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the 1934 Act) that is incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in Chicago, Illinois, on September 5, 2023.
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FREIGHTCAR AMERICA, INC. |
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By: |
/s/ James R. Meyer |
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Name: |
James R. Meyer |
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|
Title: |
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each
person whose signature appears below constitutes and appoints each of James R. Meyer and Michael A. Riordan as such person’s true
and lawful attorney-in-fact and agent, with full power of substitution and revocation, for such person and in such person’s name,
place and stead, in any and all capacities to sign any and all amendments (including post-effective amendments) to this Registration Statement,
and to file the same with all exhibits thereto, and the other documents in connection therewith, and any registration statement relating
to any offering made pursuant to this Registration Statement that is to be effective upon filing pursuant to Rule 462(b) under the 1933
Act with the Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and
things requisite and necessary to be done, as fully to all intents and purposes as such person might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the 1933 Act,
this Registration Statement has been signed by the following persons in their capacities on the dates listed below.
| Signature(s) |
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Title(s) |
|
Date |
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| /s/ James R. Meyer |
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President and Chief Executive Officer and Director (Principal Executive Officer) |
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September 5, 2023 |
| James R. Meyer |
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| /s/ Michael A. Riordan |
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Vice President, Finance, Chief Financial Officer and Treasurer (Principal Financial Officer) |
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September 5, 2023 |
| Michael A. Riordan |
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| /s/ Juan Carlos Fuentes Sierra |
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Corporate Controller and Chief Accounting Officer (Principal Accounting Officer) |
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September 5, 2023 |
| Juan Carlos Fuentes Sierra |
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| /s/ William D. Gehl |
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Director |
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September 5, 2023 |
| William D. Gehl |
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| /s/ Elizabeth K. Arnold |
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Director |
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September 5, 2023 |
| Elizabeth K. Arnold |
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| /s/ Jesus Salvador Gil Benavides |
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Director |
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September 5, 2023 |
| Jesus Salvador Gil Benavides |
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| /s/ Rodger L. Boehm |
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Director |
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September 5, 2023 |
| Rodger L. Boehm |
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| /s/ Malcolm F. Moore |
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Director |
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September 5, 2023 |
| Malcolm F. Moore |
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| /s/ Travis D. Kelly |
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Director |
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September 5, 2023 |
| Travis D. Kelly |
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| /s/ José De Nigris Felán |
|
Director |
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September 5, 2023 |
| José De Nigris Felán |
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Exhibit 5.1
 |
Kelley Drye & Warren LLP |
| 3 World Trade Center |
| 175 Greenwich Street |
| New York, NY 10007 |
| |
| Tel: (212) 808-7800 |
| Fax: (212) 808-7897 |
September 5, 2023
FreightCar America, Inc.
125 South Wacker Drive, Suite 1500
Chicago, Illinois 60606
Ladies and Gentlemen:
We are acting as special counsel to FreightCar America,
Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing, on or about the date hereof,
of a registration statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (“Act”),
with the Securities and Exchange Commission (the “Commission”) relating to the registration of (i) 3,562,113 shares (the “Plan
Shares”) of common stock, $0.01 par value per share, of the Company (the “Common Stock”) to be issued pursuant to the
FreightCar America, Inc., 2022 Long Term Incentive Plan, as amended to date (the “Plan”) and (ii) 300,000 shares of Common
Stock (the “Inducement Shares” and, together with the Plan Shares, the “Shares”) to be issued upon exercise of
the stock option awarded to Nicholas J. Randall (the “Option Holder”) pursuant to the Inducement Stock Option Award Agreement
by and between the Company and the Option Holder dated June 26, 2023 (the “Award Agreement”).
In connection with this opinion, we have examined
and relied upon copies certified or otherwise identified to our satisfaction of: (i) the Plan; (ii) the Award Agreement; (iii) the Registration
Statement, together with exhibits and schedules thereto, in the form filed with the Commission; (iv) the Company’s Certificate of
Incorporation, as amended to date; (v) the Company’s Third Amended and Restated By-Laws, as amended to date; and (vi) the records
of corporate proceedings of the Company relating to the Shares, as made available to us by officers of the Company; and have reviewed
such matters of law as we have deemed necessary or appropriate for the purpose of rendering this opinion.
For purposes of this
opinion we have assumed the authenticity of all documents submitted to us as originals, the conformity to originals of all documents
submitted to us as certified or photostatic copies, and the authenticity of the originals of all documents submitted to us as
copies. We have also assumed the legal capacity of all natural persons, the genuineness of all signatures on all documents examined
by us. As to certain factual matters material to the opinion expressed herein, we have relied to the extent we deemed proper upon
representations, warranties and statements as to factual matters of officers and other representatives of the Company. Our opinion
expressed below is subject to the qualification that we express no opinion as to any law other than the General Corporation Law of
the State of Delaware and the federal laws of the United States of America. Without limiting the foregoing, we express no opinion
with respect to the applicability thereto or effect of municipal laws or the rules, regulations or orders of any municipal agencies
within any such state.
September 5, 2023
Based
upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set forth below, it is our opinion
that the Shares to be issued by the Company pursuant to the Plan and the Award Agreement have been duly authorized and, when the Shares
have been duly registered by a registrar for the Shares and issued and paid for in accordance with the terms of the Plan or the Award
Agreement, the Shares will be validly issued, fully paid and non-assessable.
This opinion is limited to the specific issues addressed
herein, and no opinion may be inferred or implied beyond that expressly stated herein. We assume no obligation to revise or supplement
this opinion should the present General Corporation Law of the State of Delaware or the federal laws of the United States of America be
changed by legislative action, judicial decision or otherwise.
We hereby consent to the filing of this letter as
an exhibit to the Registration Statement. In giving such consent, we do not admit that we are in the category of persons whose consent
is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.
This opinion is furnished to you in connection with
the filing of the Registration Statement and is not to be used, circulated, quoted or otherwise relied upon for any other purpose.
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Very truly yours, |
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/s/ Kelley Drye & Warren LLP |
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Kelley Drye & Warren LLP |
| KELLEY DRYE & WARREN LLP | 2 |
Exhibit 10.4
INDUCEMENT STOCK OPTION AWARD AGREEMENT
THIS INDUCEMENT STOCK OPTION
AWARD AGREEMENT (this “Agreement”) is made and entered into as of June 26, 2023 (the “Date of Grant”)
by and between FreightCar America, Inc., a Delaware corporation (the “Company”), and Nicholas J. Randall
(the “Option Holder”).
WHEREAS, pursuant to that
certain employment letter dated May 12, 2023 by and between Company and the Option Holder (“Employment Letter”), the
Company has agreed to grant the Option Holder 300,000 Non-Qualified Stock Options (“Sign-On Options”); and
WHEREAS, the terms and conditions
of the Sign-On Options are to be set forth in a separate award agreement;
NOW, THEREFORE, in consideration
of the premises and mutual covenants contained herein, and for other good and valuable consideration, the Company and the Option Holder
agree as follows:
Definitions.
For purposes of this Agreement,
the following terms shall be defined as set forth below:
(a)
“Affiliate” means a Person that directly or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the Company. For purposes of the preceding sentence, the word “control”
(by itself and as used in the terms “controlling,” “controlled by” and “under common control with”)
means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract, or otherwise.
(b)
“Board” means the Board of Directors of the Company.
(c)
“Change of Control” means and shall be deemed to have occurred if the conditions set
forth in any one of the following paragraphs shall have been satisfied:
(i)
Change in Ownership. A change in the ownership of the Company is deemed to occur on the date
that any one Person, or more than one Person acting as a group (as described below), consummates the acquisition of ownership of stock
of the Company that, together with stock held by such Person or group, constitutes more than fifty percent (50%) of the total fair market
value or total voting power of the stock of the Company. However, if any one Person or more than one Person acting as a group, is considered
to own more than fifty percent (50%) of the total fair market value or total voting power of the stock of the Company, the acquisition
of additional stock by the same Person or Persons is not considered to cause a change in the ownership of the Company. An increase in
the percentage of stock owned by any one Person, or Persons acting as a group, as a result of a transaction in which the Company acquires
its stock in exchange for property will be treated as an acquisition of stock for purposes of this section. This section applies only
when there is a transfer or issuance of stock of the Company and the stock remains outstanding after the transaction.
(ii) Change
in Effective Control. Change in the effective control of the Company occurs on the date that either (A) any one Person, or more
than one Person acting as a group (as described below), consummates the acquisition of (or has acquired during the 12-month period
ending on the date of the most recently consummated acquisition by such Person or Persons) ownership of stock of the Company
possessing thirty-five percent (35%) or more of the total voting power of the stock of the Company; or (B) during any period,
individuals who were directors of the Company on the first day of such period (the “Incumbent Directors”) cease for any
reason to constitute a majority of members of the Board; provided, however, that any individual becoming
a director subsequent to the first day of such period whose election, or nomination by the Board for election by the Company’s
stockholders, was approved by a vote of at least a majority of the Incumbent Directors, shall be considered as though such
individual were an Incumbent Director, but excluding, for the purposes of determining a “majority of the members of the
Board,” any member whose initial assumption of office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of
a person other than the Board (including without limitation any settlement thereof). If any one Person, or more than one Person
acting as a group, is considered to effectively control the Company, the acquisition of additional control of the Company by the
same Person or Persons is not considered to cause a change in the effective control of the Company.
(iii)
Sale of a Substantial Portion of Assets. A change in the ownership of a substantial portion
of the Company’s assets occurs on the date that any one Person or Persons acting as a group consummates the acquisition of (or have
acquired during the 12-month period ending on the date of the most recently consummated acquisition by such Person or Persons) assets
from the Company that have a total gross fair market value equal to or more than forty percent (40%) of the total gross fair market value
of all of the assets of the Company immediately prior to such acquisition or acquisitions. For this purpose, gross fair market value means
the value of the assets of the Company, or the value of the assets being disposed of, determined without regard to any liabilities associated
with such assets. A transfer of assets to an entity that is controlled by the stockholders of the Company immediately after the transfer,
or a transfer of assets by the Company to any of the following, are not considered to be a change in the ownership of a substantial portion
of the Company’s assets for purposes of this paragraph: (A) a stockholder of the Company (immediately before the asset transfer)
in exchange for or with respect to its stock; (B) an entity, fifty percent (50%) or more of the total value or voting power of which is
owned, directly or indirectly, by the Company; (C) a Person, or more than one Person acting as a group, that owns, directly or indirectly,
fifty percent (50%) or more of the total value or voting power of all the outstanding stock of the Company; or (D) an entity, at least
fifty percent (50%) of the total value or voting power of which is owned, directly or indirectly, by a Person described in clause (C).
For purposes of this subparagraph (iii) and except as otherwise provided, a Person’s status is determined immediately after the
transfer of the assets. For example, a transfer to a corporation in which the Company has no ownership interest before the transaction,
but which is a majority-owned subsidiary of the Company after the transaction is not treated as a change in the ownership of the assets
of the Company.
Persons will not
be considered to be acting as a group solely because they purchase or own stock of the Company at the same time, or as a result of
the same public offering. However, Persons will be considered to be acting as a group if they are owners of a corporation that
enters into a merger, consolidation, purchase, or acquisition of stock, or similar business transaction with the Company. If a
Person, including an entity, owns stock in the Company and another corporation that enters into a merger, consolidation, purchase or
acquisition of stock, or similar transaction with the Company, such stockholder is considered to be acting as a group with other
stockholders of the other corporation only with respect to their ownership interest in that corporation prior to the
transaction.
(d)
“Code” means the Internal Revenue Code of 1986, as amended, and any and all rulings and
regulations promulgated thereunder.
(e)
“Committee” means the Compensation Committee of the Board, or such other Board committee
(which may include the entire Board) as may be designated by the Board; provided, however, that, unless otherwise determined by the Board,
the Committee shall consist of two or more directors of the Company, each of whom is a “nonemployee director” within the meaning
of Rule 16b-3 under the Exchange Act, to the extent applicable; provided, further, that the mere fact that the Committee fails to qualify
under the foregoing requirement shall not invalidate this Sign-On Option.
(f)
“Disability” means, in the written opinion of a qualified physician selected by the Company,
the Option Holder is, by reason of any medically determinable physical or mental impairment that can be expected to result in death or
can be expected to last for a continuous period of not less than 12 months, (i) unable to engage in any substantial gainful activity,
or (ii) receiving income replacement benefits for a period of not less than three months under the Company’s disability plan.
(g)
“Exchange Act” means the Securities Exchange Act of 1934.
(h)
“Fair Market Value” means, with respect to Shares or other property, the fair market
value of such Shares or other property determined by such methods or procedures as shall be established from time to time by the Committee
in accordance with the requirements of Code Section 409A. If the Shares are listed on any established stock exchange or a national market
system, unless otherwise determined by the Committee in good faith, the Fair Market Value of Shares shall mean the mean between the high
and low selling prices per Share on the relevant date (or, if the Shares were not traded on that day, the next preceding day that the
Shares were traded) on the principal exchange or market system on which the Shares are traded, as such prices are officially quoted on
such exchange.
(i)
“Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified
and used herein; however, a Person shall not include (i) the Company or any of its Subsidiaries, (ii) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of its Subsidiaries, (iii) an underwriter temporarily holding securities
pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of the stock of the Company.
(j)
“Qualifying Termination” means the Option Holder’s Termination of Service due to
the Option Holder’s death, Disability, termination by the Option Holder for Good Reason or termination by the Company without Cause
that occurs upon or within 24 months following the consummation of a Change of Control.
(k)
“Shares” means common stock, $0.01 par value per share, of the Company, and such other
securities as may be substituted for Shares pursuant to any consolidation, stock or other non-cash dividend, extraordinary cash dividend,
split-up, spin-off, combination or exchange of shares, reorganization or recapitalization or change in capitalization, or any other similar
corporate event with respect to the Company.
(l)
“Subsidiary” means a subsidiary, as such term is defined in Code Section 424(f), of the
Company.
(m)
“Termination of Service” means the termination of the Option Holder’s employment
with the Company, its Subsidiaries, and its Affiliates, as the case may be. If the Option Holder is employed by a Subsidiary or Affiliate
of the Company, they also shall be deemed to incur a Termination of Service if the Subsidiary or Affiliate ceases to be such a Subsidiary
or Affiliate, as the case may be, and the Option Holder does not immediately thereafter become an Employee or director of, or a consultant
to, the Company or another Subsidiary or Affiliate. Subject to the foregoing, the Committee, in its sole discretion, shall determine whether
the Option Holder has experienced a Termination of Service and the effective date of and reason for such Termination of Service, which
determination shall be binding upon the Option Holder.
1.
Grant. The Company hereby grants to the Option Holder the Sign-On Option (the “Option”) to purchase 300,000
Shares. The Option is granted on the Date of Grant and is subject to all of the terms and conditions herein. The Option and any
Shares acquired upon exercise of the Option are subject to the Company’s compensation recoupment (or “clawback”) policy
as in effect from time to time or as required by applicable law, including any retroactive recoupment. The Option is intended to be non-qualified
and is not intended to be an incentive stock option under Code Section 422.
2.
Exercise Price. The exercise price of the Shares subject to the Option shall be $2.73 per Share, which
is the Fair Market Value of a Share on the Date of Grant (the “Exercise Price”).
3.
Term of Option. The Option may be exercised, subject to the recoupment, vesting, forfeiture, and termination of employment
provisions of Sections 1, 4, 5, and 6, only during the period commencing on the Date of Grant and continuing until the close of business
on the tenth anniversary of the Date of Grant (the “Option Period”). At the end of the Option Period, the Option shall
terminate, unless sooner terminated or forfeited, as provided herein.
4.
Earning and Vesting Conditions. The Option Holder’s right to purchase Shares under the Option shall be exercisable
only to the extent that the Option has vested. Subject to Section 9 below, and provided that the Option Holder remains continuously employed
by the Company until the applicable vesting date, the Option shall vest and become exercisable, on the later of: (i) the first date on
which the closing price of one share of the Company’s common stock is equal or greater than 125% of the exercise price; and (ii)
the schedule set forth below:
(a)
34% of the Shares subject to the Option vest on the first anniversary of the Date of Grant;
(b)
an additional 33% of the Shares subject to the Option vest on the second anniversary of the Date
of Grant; and
(c)
the final 33% of the Shares subject to the Option vest on the third anniversary of the Date of Grant.
If the Option Holder incurs
a Termination of Service due to their death, all of the Options shall vest on the date of the Option Holder’s death.
5.
Restrictive Covenants. The provisions of this Section 5 shall apply to this Award.
(a) Covenant
Not to Compete. The Option Holder agrees that, during employment with the Company and for a period of twelve (12) months
after termination, they shall not, without the prior written consent of the Company, accept employment with, join or become
affiliated with any business entity anywhere in North America that is engaged in direct competition with any business of the Company
on the date of their employment termination for which Option Holder worked or had responsibility during his employment.
(b)
Covenant Not to Solicit Customers. The Option Holder agrees that, during employment
with the Company and for a period of twelve (12) months after termination of employment with the Company, they shall not, without the
prior written consent of the Company, directly or indirectly solicit any current customer or prospective customer of the Company or any
of its Subsidiaries, with which they had contact or knowledge of Confidential Information (as defined below) during the last twelve (12)
months of their employment.
(c)
Covenant Not to Solicit Employees. The Option Holder agrees that, during employment
with the Company and for a period of twenty-four (24) months after termination of employment with the Company, they shall not, without
the prior written consent of the Company, directly or indirectly solicit any current employee of the Company or any of its subsidiaries,
or any individual who becomes an employee on or before the date of the Option Holder’s termination of employment from the Company,
to leave such employment.
(d)
Covenant Not to Disclose or Use of Confidential Information. The Option Holder recognizes
that they will have access to confidential information, trade secrets, proprietary methods and other data which are the property of and
integral to the operations and success of the Company (“Confidential Information”) and therefore agrees to be bound
by the provisions of this Section 5(d), which both the Company and the Option Holder agree and acknowledge to be reasonable and to be
necessary to the Company. In recognition of this fact, the Option Holder agrees that the Option Holder will not disclose any Confidential
Information (except (i) information which becomes publicly available without violation of this Agreement, (ii) information which the Option
Holder did not know and should not have known was disclosed to the Option Holder in violation of any other person’s confidentiality
obligation and (iii) disclosure required in connection with any legal process (after giving the Company the opportunity to dispute such
requirement)) to any person, firm, corporation, association or other entity, for any reason or purpose whatsoever, nor shall the Option
Holder make use of any such information for the benefit of any person, firm, corporation or other entity except the Company. The Option
Holder’s obligation to keep all such information confidential shall be in effect during and for a period of twenty-four (24) months
after the termination of the Option Holder’s employment with the Company; provided, however, that the Option Holder
will keep confidential and will not disclose any trade secret or similar information protected under law as intangible property (subject
to the same exceptions set forth in the parenthetical clause above) for so long as such protection under law is extended.
(e)
Forfeitures. In the event that Option Holder materially breaches any of the restrictions
in this Section 5 (which, if such breach is curable, such breach is not cured to the Company’s reasonable satisfaction after the
Company provides Option Holder a reasonable period of time to cure), Option Holder shall forfeit this Option, and the Company shall have
the right to recoup and seek repayment of any cash or stock received upon the exercise of the Option.
(f)
Intellectual Property. Except as defined in this Agreement, all Inventions (as defined
in the Employment Letter) that Option Holder makes, conceives, reduces to practice or develops (in whole or in part, either alone or jointly
with others) during Option Holder’s employment will be the sole property of the Company to the maximum extent permitted by law.
Option Holder agrees 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, Option Holder may petition the
Company for license to make, market or sell a particular Invention.
(g)
Injunction. Option Holder acknowledges that monetary damages will not be an adequate
remedy for the Company in the event of a breach of this Section 5, and that it would be impossible for the Company to measure damages
in the event of such a breach. Therefore, Option Holder agrees that, in addition to other rights and remedies that the Company may have,
the Company is entitled to an injunction preventing Option Holder from any breach of this Section 5, and Option Holder hereby waives any
requirement that the Company post any bond in connection with any such injunction. Option Holder further agrees that injunctive relief
is reasonable and necessary to protect a legitimate, protectable interest of the Company.
(h)
Blue Pencil. If any court determines that the covenants contained in this Section 5,
or any part hereof, are unenforceable because of the duration or geographic scope of such provision, such court shall have the power to
reduce the duration or scope of such provision, as the case may be, to as close to the terms hereof as shall be enforceable and, in its
reduced form, such provision shall then be enforceable.
(i)
Survival. The restrictive covenants and forfeiture provisions contained in this Section
5 shall survive the termination of Option Holder’s employment.
6.
Termination of Service.
(a)
If the Option Holder has a Termination of Service for Cause (as defined in the Company’s Executive
Severance Plan (“ESP”)) during the Option Period, the Option shall immediately terminate and be forfeited.
(b) If,
during the Option Period, the Option Holder experiences a Termination of Service by reason of the Company’s termination of the Option
Holder without Cause, Option Holder’s termination of employment for Good Reason as defined in the ESP (other than a Qualifying Termination)
or Option Holder’s voluntary resignation, the Option shall be exercisable only to the extent that it was exercisable on the date
of the Option Holder’s Termination of Service and shall terminate on the earlier of (i) ninety (90) calendar days following the
date of the Option Holder’s Termination of Service or (ii) the end of the Option Period.
(c)
If, during the Option Period, the Option Holder experiences a Termination of Service by reason of
the Option Holder’s (i) Disability, or (ii) Qualifying Termination, the Option shall be exercisable only to the extent that it was
exercisable on the date of the Option Holder’s Termination of Service and shall terminate on the earlier of (i) one hundred and
eighty (180) calendar days following the date of the Option Holder’s Termination of Service or (ii) the end of the Option Period.
(d)
If, during the Option Period, the Option Holder experiences a Termination of Service by reason of
the Option Holder’s death, the Option shall be fully vested and exercisable on the date of the Option Holder’s death and shall
terminate on the earlier of (i) one hundred and eighty (180) calendar days following the date of the Option Holder’s death, or (ii)
the end of the Option Period.
7.
Exercise of Option. In order to exercise the Option, the Option Holder shall submit to the Secretary of the Company
an instrument in writing specifying the number of Shares in respect of which the Option is being exercised, accompanied by payment, through
cashless exercise or other manner acceptable to the Committee, of the Exercise Price of the Shares in respect of which the Option is being
exercised. Shares shall then be issued by the Company and a Share certificate delivered to the Option Holder or, at the Company’s
option, the Shares may be issued to the Option Holder in uncertificated form, provided, however, that the Company shall not be obligated
to issue any Shares hereunder if the issuance of such Shares would violate the provisions of any applicable law.
8.
Conditions. The Option Holder will not have any of the rights of a shareholder with respect to Shares until the
Company has issued or transferred such Shares to the Option Holder after the exercise of the Option. As a condition to the Company’s
obligation to issue or transfer Shares to the Option Holder after the exercise of the Option, the Option Holder shall have paid in full
for the Shares, subject to Option Holder’s obligations in Section 13, as to which they exercised the Option.
9.
Change of Control. In the event of a Change of Control, the vesting of the Option shall be governed by this Section
9.
(a) Acceleration of
Exercisability and Lapse of Restrictions Upon a Qualifying Termination. Upon the date of the Option Holder’s Qualifying
Termination, the Option shall become fully vested and exercisable at the time of such Qualifying Termination.
(b)
Change of Control Where Awards Assumed or Replaced. In the event of a Change of Control
in which the Company is the surviving entity and any adjustments necessary to preserve the value of the Participants’ outstanding
Awards have been made, or the Company’s successor at the time of the Change of Control irrevocably assumes the Company’s obligations
for this Option or replaces this Option with an award of equal or greater value and having terms and conditions no less favorable to the
Option Holder than those applicable to the Option immediately prior to the Change of Control, there will be no accelerated vesting of
the Option on account of the Change of Control unless the Option Holder experiences a Qualifying Termination.
(c)
Vesting Where Awards Not Assumed or Replaced. In the event of a Change of Control,
unless the Company is the surviving entity and any adjustments necessary to preserve the value of the Option have been made, or the Company’s
successor at the time of the Change of Control irrevocably assumes the Company’s obligations under the Option or replaces the Option
with an award of equal or greater value and having terms and conditions no less favorable to the Option Holder than those applicable to
the Option Holder immediately prior to the Change of Control, the Option shall become fully vested and exercisable at the time of such
Change of Control.
(d)
Certain Covered Transactions. Subject to Sections 9(a) and (c) above, in the event
of a Change of Control that is a merger or consolidation in which the Company is not the surviving corporation or that results in the
acquisition of substantially all the Company’s outstanding Shares by a single Person or entity or by a group of Persons or entities
acting in concert, or in the event of a sale or transfer of all or substantially all of the Company’s assets (a “Covered
Transaction”), the Committee shall have the discretion to provide for the termination of the Option, for no consideration and
without accelerating vesting, as of the effective date of the Covered Transaction; provided, that, the Option will not be so terminated
(without the consent of the Option Holder) prior to the expiration of twenty (20) days following the later of (i) the date on which the
Option became fully exercisable and (ii) the date on which the Option Holder received written notice of the Covered Transaction.
10.
Non-Transferable. The Option may not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed
of, except by will or the laws of descent and distribution (except pursuant to a Beneficiary designation) and shall be exercisable during
the lifetime of the Option Holder only by such Option Holder or their guardian or legal representative; provided, however,
that in no event may this Option be transferred for value (as defined in the General Instructions to Form S-8 of the U.S. Securities and
Exchange Commission). The Option Holder’s rights may not be pledged, mortgaged, hypothecated, or otherwise encumbered, and shall
not be subject to claims of their creditors. Under no circumstances will the Option Holder be permitted to transfer this Option to a third-party
financial institution without prior stockholder approval.
11.
No Obligation to Exercise. Neither the Option Holder nor any permissible transferee is or will be obligated by the
grant of the Option to exercise it.
12.
References. References herein to rights and obligations of the Option Holder shall apply, where appropriate, to the
Option Holder’s legal representative or guardian without regard to whether specific reference to such legal representative or guardian
is contained in a particular provision of this Agreement.
13.
Taxes. The Option Holder shall be responsible for all of Option Holder’s taxes required to be paid under applicable
tax laws with respect to the Option. The Company or any Affiliate is authorized to withhold from any distribution of Shares, or any payroll
or other payment, to the Option Holder, amounts of withholding and other taxes due in connection with the Option. The amount of the withholding
shall not exceed the maximum statutory withholding requirement.
14.
Entire Agreement. This Agreement contains all the understandings between the parties hereto pertaining to the matters
referred to herein, and supersedes all undertakings and agreements, whether oral or in writing, previously entered into by them with respect
thereto. The Option Holder represents that, in executing this Agreement, they do not rely and have not relied upon any representation
or statement not set forth herein made by the Company with regard to the subject matter, bases or effect of this Agreement or otherwise.
15.
Amendment or Modification, Waiver. The Committee may waive any conditions or rights under, amend any terms of, or
amend, alter, suspend, discontinue or terminate, the Option, prospectively or retrospectively; provided, however, that, without the consent
of the Option Holder, no amendment, alteration, suspension, discontinuation or termination of the Option may materially and adversely
affect the rights of the Option Holder under the Option. No waiver by any party hereto of any breach by another party hereto of any condition
or provision of this Agreement to be performed by such other party shall be deemed a waiver of a similar or dissimilar condition or provision
at the same time, any prior time or any subsequent time.
16.
Notices. Any notice to be given hereunder shall be in writing and shall be deemed given hereunder when delivered
personally, sent by courier or telecopy, or registered or certified mail, postage prepaid, return receipt requested, addressed to the
party concerned at the address indicated below or to such other address as such party may subsequently give notice of hereunder in writing:
(a)
To the Option Holder at their last known address as shown on the records of the Company;
(b)
To the Company at:
FreightCar America, Inc.
125 South Wacker Drive
Suite 1500
Chicago, IL 60606
Attention: Head of Human Resources
Any notice delivered personally
or by courier under this Section 16 shall be deemed given on the date delivered and any notice sent by electronic means, telecopy or registered
or certified mail, postage prepaid, return receipt requested, shall be deemed given on the date sent, telecopied, or mailed. Option Holder
hereby consents to receive documents by electronic delivery.
17.
Severability. If any provision of this Agreement or the application of any such provision to any party or circumstances
shall be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent, the remainder of this Agreement
or the application of such provision to such person or circumstances other than those to which it is so determined to be invalid and unenforceable,
shall not be affected thereby, and each provision hereof shall be validated and shall be enforced to the fullest extent permitted by law.
18.
Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware,
without regard to its conflicts of laws principles.
19.
Jurisdiction and Venue. The Company and the Option Holder agree that the jurisdiction and venue for any disputes
arising under, or any action brought to enforce, or otherwise relating to, this Agreement shall be exclusively in the courts in the State
of Illinois, Cook County, including the Federal Courts located therein (should Federal jurisdiction exist), and the Company and the Option
Holder hereby submit and consent to said jurisdiction and venue.
20.
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
21.
No Right to Continued Employment or Service. No action taken under this Agreement shall be construed as giving the
Option Holder the right to be retained in the employ or service of the Company or any of its Subsidiaries or Affiliates, nor shall it
interfere in any way with the right of the Company or any of its Subsidiaries or Affiliates to terminate the Option Holder’s employment
or service at any time subject to the terms of the Offer Letter.
IN WITNESS WHEREOF, the parties
have executed this Agreement as of the date and year set forth above.
| FREIGHTCAR
AMERICA, INC. | |
OPTION
HOLDER |
| | |
|
| | |
|
| By: |
/s/ James R. Meyer | |
/s/
Nicholas J. Randall |
| Name: |
James R. Meyer | |
Name: |
Nicholas J. Randall |
| Title: |
President & CEO | |
Title: |
Chief Operating Officer |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We have issued our report dated March 27, 2023
with respect to the consolidated financial statements of FreightCar America, Inc. included in the Annual Report on Form 10-K for the year
ended December 31, 2022 which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference
of the aforementioned report in this Registration Statement.
/s/ GRANT THORNTON LLP
Chicago, Illinois
September 5, 2023
Exhibit 107
Calculation of Filing Fee Tables
Form
S-8
(Form Type)
FreightCar
America, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| Security Type |
Security Class Title |
Fee
Calculation
Rule (1) |
Amount
Registered (2) |
Proposed
Maximum
Offering Price
Per Unit (3) |
Maximum Aggregate
Offering Price |
Fee Rate |
Amount of
Registration Fee |
| Equity |
Common Stock, $0.01 par value per share |
Other |
3,562,113 |
$2.78505 |
$9,920,662.81 |
.00011020 |
$1,093.26 |
| Equity |
Common Stock, $0.01 par value per share |
Other |
300,000 |
$2.78505 |
$835,515.00 |
.00011020 |
$92.07 |
| Total Offering Amounts |
|
$10,756,177.81 |
|
$1,185.33 |
| Net Fee Due |
|
|
|
$1,185.33 |
(1) Fee calculated in accordance with Rules 457(c)
and (h) under the Securities Act of 1933 (the “Securities Act”).
(2) 3,562,2113 shares of common stock of the Registrant
covered by this Registration Statement are authorized and reserved for issuance under the FreightCar America, Inc. 2022 Long Term Incentive
Plan and 300,000 shares of common stock of the Registrant covered by this Registration Statement are authorized and reserved for issuance
under the inducement stock option granted to Nick Randall. In accordance with Rule 416(a) under the Securities Act of 1933, as amended,
this Registration Statement shall be deemed to cover any additional shares of the Registrant’s common stock that become issuable
under the FreightCar America, Inc. 2022 Long Term Incentive Plan as a result of a stock split, stock dividend or similar adjustment of
the outstanding shares of common stock of the Registrant.
(3) Estimated solely for the purpose of calculating
the registration fee pursuant to Rules 457(c) and (h) under the Securities Act of 1933, as amended. Such computation is based on the average
of the high and low prices of the Registrant’s common stock as reported on the Nasdaq Global Market on August 29, 2023, a date within
five business days of the date of this Registration Statement.
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