FreightCar America, Inc 8-K, filed Oct 15, 2026
FreightCar America, Inc. (RAIL)
About this 8-K
FreightCar America, Inc filed this 8-K on October 15, 2026, reporting on events of October 14, 2026.
FreightCar America, Inc. terminated the rights agreement dated as of August 5, 2026 at the Close of Business on October 14, 2026; the rights expired. It also agreed not to adopt future rights plans with ownership thresholds below 20%. AI summary
Items reported
- Item 1.01: Entered into a material agreement
- Item 1.02: Ended a material agreement
- Item 3.03: Change to shareholders' rights
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 1.01. Entry into a Material Definitive Agreement.
Stockholder Agreement
On October 14, 2026, FreightCar America, Inc., a Delaware corporation (the “Company”), entered into an agreement (the “Stockholder Agreement”) with OC III LVS XII LP, OC III LVS XXVIII LP, and OC III LFE II LP (each on behalf of itself, “Stockholder”). Collectively, Stockholder beneficially owns approximately 48.8% of the Company’s outstanding common stock, par value $0.01 per share (the “Common Stock”), including shares issuable upon exercise of warrants, as reported in its Schedule 13D/A filed with the Securities and Exchange Commission (the “SEC”) on July 2, 2026.
The Stockholder Agreement includes the following material terms:
Termination of the Rights Agreement. The Company agreed to terminate, upon execution of the Stockholder Agreement, its Rights Agreement, dated as of August 5, 2026 (the “Rights Agreement”), between the Company and Computershare Trust Company, N.A., as rights agent (the “Rights Agent”). The terms of the Rights Agreement are described in the Company’s Current Report on Form 8-K filed with the SEC on August 5, 2026. The termination is described in Item 1.02 below.
Limit on Future Rights Plans. The Company agreed not to adopt any stockholder rights plan in which the definition of “Acquiring Person” (or any similar term) includes an ownership threshold of less than 20% of the Common Stock then outstanding.
Board Review of Certain Transfers. Before Stockholder directly or indirectly sells, transfers or assigns any Subject Shares (as defined in the Stockholder Agreement) to a person who is, or would become as a result of the transfer, a “Material Holder,” Stockholder must give the Board written notice describing the number of shares, the price and general terms of the proposed sale, and the identity of the proposed transferee. A “Material Holder” is generally a person that, together with its affiliates and any “group” (as defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of which it is a member, would beneficially own more than 20% of the Company’s outstanding share capital, calculated on a fully diluted basis. The Board may, in its sole discretion and subject to applicable law, approve or reject the proposed transfer in whole or in part, or set conditions to the transfer. If Stockholder does not receive a written disapproval or conditions from the Board within 10 days after delivering its notice, Stockholder may complete the transfer on the terms described in the notice within the following 60 days.
Permitted Transfers. The Board review requirement does not apply to (1) transfers to Stockholder’s affiliates so long as any such affiliate agrees to be bound by the terms of the Stockholder Agreement; (2) sales in an underwritten public offering or through a broker under Rule 144 under the Securities Act of 1933, as amended, if Stockholder does not know, after due inquiry, that any transferee is or will be a Material Holder; or (3) dispositions in connection with (a) a Board-approved binding definitive agreement under which a person or group will acquire more than 50% of the Company’s voting securities or (b) a tender or exchange offer that, if completed, would result in a person or group beneficially owning more than 50% of the Company’s voting securities, if the Company’s Schedule 14D-9 for that offer does not recommend that stockholders reject the offer or state that the Board is considering its response.
Notice of Transfers. Stockholder must notify the Company of any transfer of Subject Shares no later than the date of the transfer. Transfers to affiliates may be reported up to five business days after they occur, and no notice is required for permitted transfers described in clauses (2) and (3) above.
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Term. The Stockholder Agreement will terminate at 11:59 p.m. (Eastern Time) on the earlier of (1) the fourth anniversary of the date of the agreement and (2) the date on which Stockholder, together with its affiliates, no longer beneficially owns more than 20% of the Company’s outstanding share capital, calculated on a fully diluted basis.
The Stockholder Agreement contains customary representations and warranties, including the Company’s representation that, as of the date of the agreement, no Acquiring Person and no Distribution Date (each as defined in the Rights Agreement) existed.
The foregoing description of the Stockholder Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Stockholder Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Amendment and Termination of Rights Agreement
On October 14, 2026, in connection with the Stockholder Agreement, the Company and the Rights Agent entered into an Amendment and Termination of Rights Agreement (the “Amendment”). The information set forth in Item 1.02 of this Current Report on Form 8-K regarding the Amendment is incorporated herein by reference.
Item 1.02. Termination of a Material Definitive Agreement.
On October 14, 2026, as required by the Stockholder Agreement, the Company and the Rights Agent entered into the Amendment. The Amendment amends the Rights Agreement to accelerate its expiration date from July 5, 2027 to the Close of Business (as defined in the Rights Agreement) on October 14, 2026.
The Board approved the Amendment under Section 27 of the Rights Agreement, which permits the Company to amend the Rights Agreement without the approval of the holders of the Rights while the Rights are redeemable. As a result of the Amendment, the Rights expired and the Rights Agreement terminated at the Close of Business on October 14, 2026.
The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment, a copy of which is filed as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 3.03. Material Modification to Rights of Security Holders.
The information set forth in Items 1.01 and 1.02 of this Current Report on Form 8-K is incorporated herein by reference. As a result of the Amendment, effective as of the Close of Business on October 14, 2026, the Preferred Stock Purchase Rights registered under Section 12(b) of the Exchange Act expired and are no longer outstanding, and the holders of Common Stock are no longer entitled to any rights or benefits under the Rights Agreement.
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Item 9.01. Financial Statements and Exhibits.
(d) Exhibits:
| Exhibit Number | Exhibit Description | |
| 4.1 | Amendment and Termination of Rights Agreement, dated as of October 14, 2026, by and between FreightCar America, Inc. and Computershare Trust Company, N.A., as rights agent. | |
| 10.1 | Agreement, dated as of October 14, 2026, by and between FreightCar America, Inc., OC III LVS XII LP, OC III LVS XXVIII LP, and OC III LFE II LP. | |
| 104 | Cover Page Interactive Data File (the cover page XBRL tags are embedded in the Inline XBRL document). |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| FreightCar America, Inc. | ||
| Date: October 15, 2026 | By: | /s/ Nicholas Randall |
| Name: | Nicholas Randall | |
| Title: | President and Chief Executive Officer | |
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Exhibit 4.1
[Execution Version]
AMENDMENT AND TERMINATION OF
RIGHTS AGREEMENT
This Amendment and Termination of Rights Agreement (this “Amendment”), dated as of October 14, 2026, by and between FREIGHTCAR AMERICA, INC., a Delaware corporation (the “Company”), and COMPUTERSHARE TRUST COMPANY, N.A., a federally chartered trust company, as rights agent (the “Rights Agent”), amends that certain Rights Agreement, dated as of August 5, 2026, by and between the Company and the Rights Agent (the “Rights Agreement”). All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Rights Agreement.
WHEREAS, the Board of Directors of the Company has determined that it is desirable to amend the Rights Agreement as set forth herein;
WHEREAS, subject to certain limited exceptions not applicable here, Section 27 of the Rights Agreement provides that, for so long as the Rights are then redeemable, the Company may, and the Rights Agent shall if the Company so directs, supplement or amend the Rights Agreement in any respect without the approval of any holders of the Rights;
WHEREAS, the Company has determined that this Amendment is permitted by Section 27 of the Rights Agreement; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company hereby directs that the Rights Agreement shall be amended as set forth in this Amendment.
NOW THEREFORE, in consideration of the foregoing premises and mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Rights Agent hereby agree as follows:
Section 1. Amendment to Section 7. Clause (i) of Section 7 of the Rights Agreement is hereby amended to read in its entirety as follows:
“(i) the Close of Business on October 14, 2026 (the “Expiration Date”),”.
Section 2. Addition of New Section 38. The Rights Agreement is amended by adding a new Section 38 thereto, which shall read as follows:
“Section 38. Termination. Notwithstanding any provision of this Agreement to the contrary, except for those provisions herein that expressly survive the termination of this Agreement, this Agreement shall terminate and shall have no further force or effect as of the Close of Business on October 14, 2026, and all Rights established hereunder shall automatically expire at such time.”
Section 3. Effective Date; Certification. This Amendment shall be deemed effective as of the date first written above, as if executed on such date. The officer of the Company executing this Amendment hereby certifies to the Rights Agent that the amendments to the Rights Agreement set forth in this Amendment are in compliance with Section 27 of the Rights Agreement and the certification contained in this Section 3 shall constitute the certification required by Section 27 of the Rights Agreement.
Section 4. Governing Law. This Amendment shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the laws of such State applicable to contracts made and to be performed entirely within such State.
Section 5. Counterparts. This Amendment may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. A signature to this Amendment transmitted by facsimile or by e-mail delivery of a “.pdf” format data file shall have the same authority, effect, and enforceability as an original signature.
Section 6. Descriptive Headings. Descriptive headings of the several Sections of this Amendment are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof.
Section 7. No Other Modification. Except as expressly set forth herein, the Rights Agreement shall continue in full force and effect in accordance with the provisions thereof.
[Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed, all as of the day and year first above written.
| FREIGHTCAR AMERICA, INC. |
| By: | /s/ Nick Randall | ||
| Name: | Nick Randall | ||
| Title: | President and Chief Executive Officer | ||
COMPUTERSHARE TRUST COMPANY, N.A., as Rights Agent
| By: | /s/ Patrick Hayes | ||
| Name: | Patrick Hayes | ||
| Title: | Senior Vice President, Client Management | ||
[Signature Page – Amendment and Termination of Rights Agreement]
Exhibit 10.1
Execution Version
AGREEMENT
THIS AGREEMENT (the “Agreement”), dated as of October 14, 2026, is made by and between FreightCar America, Inc., a Delaware corporation (the “Company”), and OC III LVS XII LP, OC III LVS XXVIII LP, and OC III LFE II LP, each on behalf of itself (each such holder of Common Stock, “Stockholder”).
In consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement, intending to be legally bound hereby, agree as follows:
ARTICLE I
Definitions
Section 1.1. Definitions. For purposes of this Agreement, the following terms have the respective meanings set forth below:
(a) “Affiliate” means, with respect to any Person, any Person controlled by, controlling or under common control with, such Person. As used in this definition, “control” (including, with its correlative meanings, “controlling,” “controlled by” and “under common control with”) shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities, by contract or otherwise); provided that, for purposes of this Agreement, the Company and its Subsidiaries shall not be deemed to be Affiliates of Stockholder; provided further, that, other than as used in the definition of “Material Holder” contained herein, any direct or indirect parent of Pacific Investment Management Company LLC (“PIMCO”), and any Affiliate of any such parent (other than PIMCO or any Person directly or indirectly controlled by PIMCO), shall not be deemed an Affiliate of any Stockholder; provided further, that, for purposes of this Agreement, no Person shall be deemed an Affiliate of Stockholder by virtue of a passive ownership interest in such Person held by any investment vehicle managed by PIMCO or its Affiliates without the intention to exercise control.
(b) “Applicable Requirements” means (i) all contractual obligations relating to the business of the Company and its Subsidiaries, and (ii) all Legal Requirements applicable to the business of the Company and its Subsidiaries.
(c) “Certificate of Incorporation” shall mean the Certificate of Amendment of Certificate of Ownership and Merger of FreightCar America, Inc. into FCA Acquisition Corp., dated April 1, 2005, as filed with the Secretary of State of the State of Delaware, as the same may be amended and/or restated from time to time.
(d) “Beneficial ownership,” “beneficial owner” and “beneficially own” shall have the meanings ascribed to such terms in Rule 13d-3 under the Exchange Act.
(e) “Board” shall mean the Board of Directors of the Company.
(f) “Bylaws” shall mean the Company’s Third Amended and Restated Bylaws, effective as of September 28, 2007.
(g) “Common Stock” shall mean the Common Stock, par value $0.01 per share, of the Company.
(h) “Contract” means any written or, subject to the knowledge of the Company, oral contract, agreement, note, bond, indenture, mortgage, guarantee, option, lease, license, commitment or other written instrument, in each case, that is legally binding on the Company or any of its Subsidiaries.
(i) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder.
(j) “Governmental Entity” means any national, state, local, county, parish or municipal government, domestic or foreign, any agency, board, bureau, commission, court, tribunal, subdivision, department or other governmental or regulatory authority or instrumentality or quasi-governmental authority, in each case, that has jurisdiction over the Company or any of its properties, assets or business or any matter relating to the transactions contemplated by this Agreement.
(k) “Legal Requirement” means any federal, state, provincial, local, municipal, foreign, international, multinational or other law, statute, regulation, rule, directive, guidance, convention, ordinance, code, constitution, order, treaty or judgment, or similar provision or Applicable Requirement of any Governmental Entity, in each case in each case applicable to or binding upon the Company or any of its Subsidiaries, or to which the Company or any of its Subsidiaries is subject.
(l) “Material Holder” shall mean any Person who, together with such Person’s Affiliates or other Persons with whom such Person may be acting in concert in such a way as to constitute or has otherwise formed a “group” as defined in the Exchange Act and the rules and regulations thereunder, shall, after giving effect to a transfer of Subject Shares contemplated herein and taking into account any Company shares otherwise held by such Person or its Affiliates or member of such “group,” beneficially own in aggregate of more than 20% of the Company’s outstanding share capital (calculated on a fully diluted basis).
(m) “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, association or other entity or a Governmental Entity.
(n) “SEC” means the Securities and Exchange Commission.
(o) “Stockholder Rights Plan” means the Rights Agreement, dated as of August 5, 2026, between the Company and Computershare Trust Company, N.A.
(p) “Subject Shares” shall mean any Common Stock or any equity interest of, or shares of any class in the share capital (ordinary, preferred or otherwise) of, the Company and any convertible securities, options, warrants and any other type of equity or equity-linked securities convertible, exercisable or exchangeable for any such equity interest or shares of any class in the share capital of the Company beneficially owned by Stockholder or its Affiliates at the time of this Agreement.
(q) “Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association or business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity (other than a corporation), a majority of the profits or losses of such limited liability company, partnership, association or other business entity (as the case may be) is allocated, directly or indirectly, to that Person or one or more Subsidiaries of that Person or a combination thereof, or that Person or one or more Subsidiaries of that Person or a combination thereof controls the general partner, manager, managing member, managing director (or a board comprised of any of the foregoing) of such limited liability company, partnership, association or other business entity. For purposes hereof, references to a “Subsidiary” of any Person shall be given effect only at such times such Person has one or more Subsidiaries, and, unless otherwise indicated, the term “Subsidiary” refers to a Subsidiary of the Company.
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ARTICLE II
Representations and Warranties
Section 2.1. Representations and Warranties of Stockholder. Stockholder hereby represents and warrants to the Company as follows:
(a) Organization. Stockholder is duly organized and is validly existing and in good standing as a limited liability company or limited partnership under the laws of the State of Delaware and has all the requisite power and authority to carry on its business as it is now being conducted, except as would not, individually or in the aggregate, have or reasonably be expected to have a material adverse effect on Stockholder.
(b) Authorization; Enforceability. Stockholder has the full right, power, authority and capacity to enter into this Agreement and any other agreements contemplated hereby, and to perform its obligations hereunder and thereunder. The execution, delivery and performance by Stockholder of this Agreement and any other agreements contemplated hereby, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary and proper actions on the part of Stockholder. This Agreement and any other agreements contemplated hereby have been (or will be) duly executed and delivered by Stockholder and, assuming due authorization, execution and delivery of this Agreement and any other agreements contemplated hereby by the other parties thereto, do constitute valid and binding obligations of Stockholder, enforceable against Stockholder in accordance with their respective terms, except as such may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws affecting creditors’ rights generally and by general equitable principles.
(c) Non-Contravention. The execution, delivery and performance by Stockholder of this Agreement and any other agreements contemplated hereby and the consummation of the other transactions contemplated hereby and thereby: (a) will not conflict with or violate any provision of its limited liability company agreement or limited partnership agreement, as the case may be; (b) will not conflict with or result in any breach of, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give rise to any right of termination, acceleration or cancellation under, any lease, mortgage, license, indenture or any other material agreement to which Stockholder is a party or by which its properties may be bound or affected or result in the creation of any lien or encumbrance upon any property or assets of Stockholder or the suspension, revocation, impairment or forfeiture of any material permit, license, authorization, or approval applicable to Stockholder, its business or operations, or any of its assets or properties, respectively; and (c) will not conflict with or violate any law or regulation applicable to Stockholder.
(d) Agreements, Arrangements or Understandings. Except for any agreements, arrangements or understandings with the Company, neither Stockholder nor any of its Affiliates has an agreement, arrangement or understanding with any Person with respect to the nomination or election of directors by the stockholders of the Company.
Section 2.2. Representations and Warranties of the Company. The Company represents and warrants to Stockholder as follows:
(a) Organization. The Company is duly organized and is validly existing and in good standing as a corporation under the laws of the State of Delaware and has all the requisite power and authority to carry on its business as it is now being conducted, except as would not, individually or in the aggregate, have or reasonably be expected to have a material adverse effect on the Company and its Subsidiaries, taken as a whole (a “Material Adverse Effect”).
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(b) Authorization; Enforceability. The Company has the full right, power, authority and capacity to enter into this Agreement and any other agreements contemplated hereby, and to perform its obligations hereunder and thereunder. The execution, delivery and performance by the Company of this Agreement and any other agreements contemplated hereby, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary and proper actions on the part of the Company. This Agreement and any other agreements contemplated hereby have been (or will be) duly executed and delivered by the Company and, assuming due authorization, execution and delivery of this Agreement and any other agreements contemplated hereby by the other parties thereto, do constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as such may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws affecting creditors’ rights generally and by general equitable principles.
(c) Non-Contravention. The Company’s execution, delivery and performance of and compliance with this Agreement and any other agreements contemplated hereby to which it is a party, and the consummation of the other transactions contemplated hereby and thereby: (a) will not result in any violation of the provisions of its Certificate of Incorporation or Bylaws; (b) will not conflict with or constitute a breach of or a default (or constitute an event which with notice or lapse of time or both would become a default) under or give rise to any right of termination, recapture, acceleration or cancellation under any material Contract of the Company, or result in the creation or imposition of any lien or encumbrance upon any property or assets of the Company or any of its Subsidiaries, or, to the Company’s knowledge, the suspension, revocation, impairment or forfeiture of any material permit, license, authorization, or approval applicable to the Company, its business or operations, or any of its assets or properties; (c) to the Company’s knowledge, will not result in any violation of any Legal Requirement or any judgment, order or decree of any Governmental Entity applicable to the Company or any of its Subsidiaries; and (d) to the Company’s knowledge, will not require the consent, approval, order, or authorization of, or registration, qualification, declaration, or filing with, any Governmental Entity on the part of the Company or any of its Subsidiaries, in the case of each of clauses (b), (c) and (d), other than as would not reasonably be expected to have a Material Adverse Effect.
(d) Stockholder Rights Plan. As of the date hereof, there has been no Acquiring Person (as defined in the Stockholder Rights Plan) and there is no Distribution Date (as defined in the Stockholder Rights Plan).
ARTICLE III
Stockholder Rights Plans
Section 3.1. Termination of Stockholder Rights Plan. Upon execution of this Agreement, the Company shall terminate the Stockholder Rights Plan.
Section 3.2. Future Stockholder Rights Plans. The Company shall not adopt any stockholder rights plan that contains a definition of “Acquiring Person” (or analogous definition) with a share ownership threshold that is less than 20% of the Common Stock of the Company then outstanding.
ARTICLE IV
Restrictions on Transfer by Stockholder
Section 4.1. Transfer Restrictions. Stockholder covenants and agrees that if, at any time prior to the Termination Date, Stockholder (or any Affiliate of Stockholder) proposes to, directly or indirectly, sell, transfer or assign any Subject Shares (the “Sale Shares”), whether in one or in a series of transactions, to any Person who is or by virtue of such sale, transfer or assignment would become a Material Holder (and/or any Affiliate of any such Person), then prior to entering into such proposed transaction, Stockholder shall give to the Board written notice (the “Written Notice”) of its or any such Affiliate’s intention to sell, describing the amount of Sale Shares, the price and the general terms upon which Stockholder or such Affiliate proposes to sell the Sale Shares, and the identity of the transferee or transferees to whom Stockholder or such Affiliate proposes to sell. In such instance, the Board shall be entitled, in its sole and absolute discretion, subject to applicable law, to approve or reject the proposed transaction, in whole or in part, or set conditions to the consummation of the proposed transaction, which conditions may only be waived in the Board’s sole discretion. If, within ten (10) days after the provision of the Written Notice, Stockholder shall not have received a written disapproval from the Board or other communication from the Board setting forth conditions to the consummation of the proposed transaction, Stockholder or such Affiliate shall have sixty (60) days thereafter to complete such transaction upon the terms set forth in the Written Notice.
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Section 4.2. Permitted Transfers. The restrictions set forth in Section 4.1 shall not apply to: (1) a sale, transfer or assignment to any of Stockholder’s Affiliates, so long as any such Affiliate agrees to be bound by the terms of this Agreement; (2) any transaction pursuant an underwritten public offering or through a broker pursuant to Rule 144 under the Securities Act of 1933, as amended, in which Stockholder does not know (after due inquiry (it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including, but not limited to, information in documents filed with the SEC)), that any transferee is or will be a Material Holder; or (3) a disposition by Stockholder in connection with a transaction in which: (a) any Person or group shall have acquired or entered into a binding definitive agreement that has been approved by the Board (or any duly constituted committee thereof) to acquire more than 50% of the voting securities of the Company; or (b) any Person or group shall have commenced a tender or exchange offer which, if consummated, would result in such Person’s acquisition of beneficial ownership of more than 50% of the voting securities of the Company, and in connection therewith, the Company files with the SEC a Schedule 14D-9 with respect to such offer that does not either (i) recommend that the Company’s stockholders reject such offer or (ii) advise the Company’s stockholders that the Board is considering its response to the offer (each of (1), (2), and (3), a “Permitted Transfer”).
ARTICLE V
Further Assurances
Each party shall execute and deliver such additional instruments and other documents and shall take such further actions as may be necessary or appropriate to effectuate, carry out and comply with all of its respective obligations under this Agreement. If reasonably requested by the Company at any time during the term of this Agreement, Stockholder agrees to confirm in writing to the Company the number of Subject Shares as of the latest practicable date.
ARTICLE VI
Termination
Unless earlier terminated by written agreement of the parties, this Agreement shall terminate at 11:59 p.m. (Eastern Time) on the earlier of (i) the four-year anniversary of the date hereof and (ii) the date on which Stockholder (together with its Affiliates) no longer beneficially owns greater than 20% of the outstanding share capital (calculated on a fully diluted basis) of the Company (such date, the “Termination Date”). Any termination of this Agreement as provided herein shall be without prejudice to the rights of any party arising out of the breach by any other party of any provisions of this Agreement that occurred prior to the termination.
ARTICLE VII
Miscellaneous
Section 7.1. Notice of Transfer. Concurrently with, and in no event later than, the date on which Stockholder or any Affiliate sells, assigns, transfers, pledges or otherwise disposes of any Subject Shares (a “Transfer”), Stockholder shall deliver written notice of such Transfer to the Company pursuant to the provisions of this Section 7.1; provided, however, that this Section 7.1 shall not apply to any Permitted Transfer described in clause (2) or (3) of Section 4.2; provided further, however, that with respect to any Permitted Transfer described in clause (1) of Section 4.2, the written notice required by this Section 7.1 may be delivered up to five (5) business days following the date on which such Permitted Transfer occurs. Such notice shall include (i) the name and contact information of the transferee; (ii) the amount of Subject Shares transferred; (iii) the date of the Transfer; (iv) for any Transfer other than a Permitted Transfer, the price per Subject Share and aggregate consideration paid, if any; and (v) a representation that such Transfer complies in all respects with all applicable transfer restrictions set forth in this Agreement. Compliance with this Section 7.1 does not relieve Stockholder of any other obligation under this Agreement.
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Section 7.2. Notices. Any notices or other communications required or permitted hereunder shall be sufficiently given if in writing, addressed as follows:
If to the Company: FreightCar America, Inc.
125 South Wacker Drive
Suite 1500
Chicago, Illinois 60606
Email: [***]
Attention: Michael A. Riordan
With a copy to (which shall not constitute notice):
Winston Taylor LLP
300 N. LaSalle Drive
Chicago, IL 60654
Email: oscar.david@winstontaylor.com
david.sakowitz@winstontaylor.com
Attention: Oscar David, Esq. and David A. Sakowitz, Esq.
If to Stockholder: c/o Pacific Investment Management Company LLC
650 Newport Center Drive
Newport Beach, CA 92660
Email: [***]
[***]
Attention: Chris Neumeyer and Lisa Joseph
With a copy to (which shall not constitute notice):
McDermott Will & Schulte LLP
919 Third Ave.
New York, NY 10022
Email: dcurtiss@mcdermottlaw.com
Attention: David Curtiss
Unless otherwise specified herein, such notices or other communications shall be deemed received (a) in the case of any notice or communication sent other than by mail, on the date actually delivered to such address (evidenced, in the case of delivery by overnight courier, by confirmation of delivery from the overnight courier service making such delivery, and in the case of a telecopy, by receipt of a transmission confirmation form or the addressee’s confirmation of receipt), or (b) in the case of any notice or communication sent by mail, three (3) business days after being sent, if sent by registered or certified mail, with first-class postage prepaid. Each of the parties hereto shall be entitled to specify a different address by giving notice as aforesaid to each of the other parties hereto.
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Section 7.3. Amendments, Waivers, Etc. This Agreement may not be amended, changed, supplemented, waived or otherwise modified or terminated except by an instrument in writing signed by the parties hereto.
Section 7.4. Successors and Assigns. Except as otherwise provided herein, this Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the parties and their respective successors and assigns, including without limitation in the case of any corporate party hereto any corporate successor by merger or otherwise; provided that no party may assign this Agreement without the other parties’ prior written consent.
Section 7.5. Entire Agreement. This Agreement constitutes the entire agreement and understanding among the parties relating to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter. There are no covenants by the parties hereto relating to such subject matter other than those expressly set forth in this Agreement.
Section 7.6. Specific Performance. The parties acknowledge that money damages are not an adequate remedy for violations of this Agreement and that any party may, in its sole discretion, apply to a court of competent jurisdiction for specific performance or injunctive or such other relief as such court may deem just and proper in order to enforce this Agreement or prevent any violation hereof and, to the extent permitted by applicable law, each party waives any objection to the imposition of such relief.
Section 7.7. Remedies Cumulative. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof by any party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such party.
Section 7.8. No Waiver. The failure of any party hereto to exercise any right, power or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon compliance by any other party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver by such party of its right to exercise any such or other right, power or remedy or to demand such compliance.
Section 7.9. No Third-Party Beneficiaries. This Agreement is not intended to be for the benefit of and shall not be enforceable by any Person who or which is not a party hereto, except for Affiliates of Stockholder that own or hold Subject Shares.
Section 7.10. Governing Law. This Agreement shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the laws of such State applicable to contracts to be made and performed entirely within such State, without giving effect to the choice of law or conflict of law principles thereof or of any other jurisdiction.
Section 7.11. Consent to Jurisdiction. Each party to this Agreement, by its execution hereof, hereby (i) irrevocably submits, and agrees to cause each of its Affiliates to submit, to the jurisdiction of the Court of Chancery of the State of Delaware, and in the event that such court shall not have subject matter jurisdiction over the relevant proceeding, then of the United States District Court for the District of Delaware, for the purpose of any action arising out of or based upon this Agreement or relating to the subject matter hereof or the transactions contemplated hereby, (ii) waives, and agrees to cause each of its Affiliates to waive, to the extent not prohibited by applicable law, and agrees not to assert, and agrees not to allow any of its Affiliates to assert, by way of motion, as a defense or otherwise, in any such action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that any such proceeding brought in one of the above-named courts is improper, or that this Agreement or the subject matter hereof may not be enforced in or by such court and (iii) hereby agrees not to commence or to permit any of its Affiliates to commence any action arising out of or based upon this Agreement or relating to the subject matter hereof other than before one of the above-named courts nor to make any motion or take any other action seeking or intending to cause the transfer or removal of any such action to any court other than one of the above-named courts whether on the grounds of inconvenient forum or otherwise. Each party hereby consents to service of process in any such proceeding in any manner permitted by Delaware law, as the case may be, and agrees that service of process by registered or certified mail, return receipt requested, at its address specified pursuant to Section 7.2 above is reasonably calculated to give actual notice.
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Section 7.12. Name, Captions. The name assigned to this Agreement and the section captions used herein are for convenience of reference only and shall not affect the interpretation or construction hereof.
Section 7.13. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one instrument. A signature to this Agreement executed and/or transmitted electronically shall have the same authority, effect and enforceability as an original signature.
Section 7.14. Expenses. Each of the parties hereto shall bear its own expenses (including, without limitation, attorney’s fees) incurred in connection with the negotiation and execution of this Agreement.
Section 7.15. Severability. In the event that any provision hereof would, under applicable law, be invalid or unenforceable in any respect, such provision shall (to the extent permitted under applicable law) be construed by modifying or limiting it so as to be valid and enforceable to the maximum extent compatible with, and possible under, applicable law. The provisions hereof are severable, and in the event any provision hereof should be held invalid or unenforceable in any respect, it shall not invalidate, render unenforceable or otherwise affect any other provision hereof.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have caused this Agreement to be executed as of the date first above written.
| FREIGHTCAR AMERICA, INC. | ||
| By: | /s/ Nick Randall | |
| Name: | Nick Randall | |
| Title: | President and Chief Executive Officer | |
OC III LVS XII LP
By: OC III GP II LLC, its general partner
| By: | /s/ Adam L. Gubner | |
| Name: | Adam L. Gubner | |
| Title: | Authorized Person |
OC III LVS XXVIII LP
By: OC III GP LLC, its general partner
| By: | /s/ Adam L. Gubner | |
| Name: | Adam L. Gubner | |
| Title: | Authorized Person |
OC III LFE II LP
By: OC III GP LLC, its general partner
| By: | /s/ Adam L. Gubner | |
| Name: | Adam L. Gubner | |
| Title: | Authorized Person |