Form S-8 - Securities to be offered to employees in employee benefit plans

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, 26^th 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

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)).

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).

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.

	FREIGHTCAR AMERICA, INC.

By:	/s/ James R. Meyer
	Name:	James R. Meyer
	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)	Title(s)	Date

/s/ James R. Meyer	President and Chief Executive Officer and Director (Principal Executive Officer)	September 5, 2023
James R. Meyer

/s/ Michael A. Riordan	Vice President, Finance, Chief Financial Officer and Treasurer (Principal Financial Officer)	September 5, 2023
Michael A. Riordan

/s/ Juan Carlos Fuentes Sierra	Corporate Controller and Chief Accounting Officer (Principal Accounting Officer)	September 5, 2023
Juan Carlos Fuentes Sierra

/s/ William D. Gehl	Director	September 5, 2023
William D. Gehl

/s/ Elizabeth K. Arnold	Director	September 5, 2023
Elizabeth K. Arnold

/s/ Jesus Salvador Gil Benavides	Director	September 5, 2023
Jesus Salvador Gil Benavides

/s/ Rodger L. Boehm	Director	September 5, 2023
Rodger L. Boehm

/s/ Malcolm F. Moore	Director	September 5, 2023
Malcolm F. Moore

/s/ Travis D. Kelly	Director	September 5, 2023
Travis D. Kelly

/s/ José De Nigris Felán	Director	September 5, 2023
José De Nigris Felán

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.

	Very truly yours,

	/s/ Kelley Drye & Warren LLP

	Kelley Drye & Warren LLP

KELLEY DRYE & WARREN LLP

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

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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