LICENSE AGREEMENT
Exhibit 10.3
THIS AGREEMENT, dated as of October 1, 1994, by and between American Railcar
Industries, Inc., a Missouri corporation (“ARI”) and ACF Industries, Incorporated, a New Jersey
corporation (“Licensee”).
W I T N E S S E T H:
WHEREAS, ARI and the Licensee have entered into an Asset Transfer Agreement dated as
of October 1, 1994 (the “Transfer Agreement”), whereby the Licensee has agreed to transfer, and
ARI has agreed to buy, certain assets used by the Licensee in the manufacture of railcar parts and
the repair and refurbishment of railcars, including, without limitation, formulae, patents,
trademarks, trade secrets and other technical knowledge owned by the Licensee which specifically
and exclusively relate to the Business;
WHEREAS, a condition of the transactions
contemplated by the Transfer Agreement is the execution by ARI and the Licensee of this
License Agreement pursuant to which ARI will license back to Licensee the use of the patents,
technical information and procedures and know-how transferred to ARI pursuant to the Transfer
Agreement;
WHEREAS, the Licensee wishes to obtain a license for such technical information and
procedures upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. DEFINITIONS. For the purposes of this License Agreement, the terms set
forth herein shall be defined as follows:
(a) “Licensed Information” shall mean the
formula, patents, trade secrets and other technical
knowledge owned by the Licensee prior to the Effective Date
of the Transfer Agreement and transferred to ARI pursuant to
thereto which have been or could be used by the Licensee .
and/or ARI in the conduct of the Business and which
specifically and exclusively relate to the Business,
including, without limitation, those patents set forth on
Schedule A hereto and incorporated herein by reference.
(b) “Territory” shall mean the world.
All capitalized terms used herein and not otherwise defined shall have the meanings assigned
to them in the Transfer Agreement.
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2. LICENSE. ARI hereby grants to the Licensee
and the Licensee hereby accepts from ARI, in consideration
of the payment by Licensee of $1.00, upon the terms and
conditions herein specified, a non-exclusive license to use
the Licensed Information in the Territory.
3. TERM. This License Agreement shall become
effective on the date first above written and shall remain
in effect in perpetuity.
4. ASSIGNMENT. This Agreement shall not be
assignable by either party without the prior written consent
of the other, other than in connection with the sale of
substantially all of the business in whatever form of ARI or
the Licensee; provided, however, that any such assignment
shall not relieve the parties whereto from any obligations
under this Agreement and that the assigning party shall
remain jointly and severally liable under this Agreement
with its successor.
5. SECRECY. Except as expressly provided in
this Agreement, the Licensee will treat as confidential and
will not, without the prior written approval of ARI, reveal
to any person, firm, association or corporation any of the
Licensed Information or any other information or data
furnished to the Licensee by ARI pursuant to this Agreement.
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ARI and the Licensee and each of them and their respective agents, servants,
employees, attorneys and those acting in privity with each of them acknowledge and agree that none
of them will issue publicity releases as to the making of this Agreement, nor as to the terms and
conditions of this Agreement.
6. ENTIRE AGREEMENT. This License Agreement
constitutes the entire agreement between the parties as to
the Licensed Information and the other matters treated
herein.
7. NOTICES. All notices or other communications hereunder shall be in writing and
shall be made by hand delivery, telex, telecopier or registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
If to ARI, to:
If to the Licensee, to:
ACF Industries, Incorporated
0000 Xxxxx Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
0000 Xxxxx Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
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In each case with a copy to:
Xxxxxx Xxxxxx Butowsky
Xxxxxxx Shalov & Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx
Telecopy: (000) 000-0000
Xxxxxxx Shalov & Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx
Telecopy: (000) 000-0000
or at such other addresses as shall be furnished by the parties by like notice, and such notice or
communication shall be deemed to have been given or made as of the date so delivered, if delivered
personally; when answered back, if telexed; when receipt is acknowledged, if telecopied; and two
calendar days after so mailed, if sent by registered or certified mail.
8. GOVERNING LAW. This License Agreement is subject to and shall be construed and
enforced in accordance with the laws of the State of Missouri.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals and duly
executed this Agreement the day and year first above written.
| ACF Industries, Incorporated |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | President | |||
| American Railcar Industries, Inc. |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
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