Exhibit 10.56





Exhibit 10.56




EXECUTION COPY




EMPLOYMENT AGREEMENT




EMPLOYMENT AGREEMENT, dated as of October 19, 2011 (this “Agreement”), between American
Railcar Industries, Inc., a North Dakota corporation (the “Company”) and Mr. Dale C. Davies (the
“Employee”).



1. Employment




	 	(a)	 	Upon the terms and conditions hereinafter set forth, the Company hereby agrees to employ the
Employee and the Employee hereby agrees to become so employed. During the Term of Employment (as
hereinafter defined), the Employee shall be employed in the position of Senior Vice President,
Chief Financial Officer and Treasurer of the Company, reporting to James Cowan, Chief Executive
Officer of the Company and the Board of Directors of the Company (the “Board”), and as an officer
of subsidiaries of the Company as specified and directed by the Board from time to time, and shall
perform such duties, consistent with such status and position, as are specified from time to time
by, and shall serve in such capacities at the pleasure of, the Company and the Board, subject to
the terms hereof.






	 	(b)	 	During the Term of Employment (as hereinafter defined), the Employee shall devote all of his
professional attention, on a full time basis, to the business and affairs of the Company and shall
use his best efforts to advance the best interest of the Company and shall comply with all of the
policies of the Company, including, without limitation, such policies with respect to legal
compliance, conflicts of interest, confidentiality and business ethics as are from time to time in
effect.






	 	(c)	 	During the Term of Employment, the Employee shall not, without the prior written consent of the
Company’s Compensation Committee, directly or indirectly render services to, or otherwise act in a
business or professional capacity on behalf of or for the benefit of, any other “Person” (as
defined below) as an employee, advisor, member of a board or similar governing body, independent
contractor, agent, consultant, representative or otherwise, whether or not compensated. “Person” or
“person”, as used in this Agreement, means any individual, partnership, limited partnership,
corporation, limited liability company, trust, estate, cooperative, association (except
homeowners), organization, proprietorship, firm, joint venture, joint stock company, syndicate,
company, committee, government or governmental subdivision or agency, or other entity.









2. Term




The employment period shall commence as of September 1, 2011 (the “Effective Date”) and shall
continue through September 1, 2014 (the “Expiration Date”) (such period being referred to herein as
the “Term of Employment.”


 


 









 





3. Compensation




For all services to be performed by the Employee under this Agreement, during the Term of
Employment, the Employee shall be compensated in the following manner:




(a) Base Compensation



The Company will pay the Employee a salary (the “Base Salary”) at an annual rate of $275,000 per
full 365-day year. The Base Salary shall be payable in accordance with the normal payroll practice
of the Company. The Base Salary will be reviewed periodically by the Board of Directors as is
customary with other officers. Following such review, the Board of Directors may, at its absolute
and sole discretion, increase (but shall not be required to increase) the Base Salary or other
benefits.




(b) Bonus Compensation



The Company will pay the Employee an annual bonus target for each calendar year of employment
ending on or after December 31, 2011 shall be 50% of Base Salary. Actual bonus paid may be less
than or greater than target based on the achievement of objective performance targets for the
Company to be set by the Board (or a committee thereof) in an annual bonus plan for each calendar
year. The compensation payable as contemplated in the preceding sentence of this section 3(b) is
referred to herein as “Bonus Compensation”. The Bonus Compensation in respect of any calendar
year, if due under the then current bonus Plan, shall be paid in accordance with such plan.




(c) Long-Term Incentive Compensation



The Employee will be eligible to participate in the Company’s Equity Incentive plan (or successor
plan) as may be in effect from time to time in accordance with the terms of such plan.




(d) Taxes



All amounts paid to the Employee under or pursuant to this Agreement, including, without
limitation, the Base Salary and any Bonus or Long-Term Incentive Compensation, if any, any other
compensation or benefits, whether in cash or in kind, shall be subject to normal federal, state
and, if applicable, local or foreign tax withholding and deductions imposed by any one or more
federal, state, local and or foreign governments, or pursuant to any foreign or domestic applicable
law, rule or regulation.



4. Benefits




During the Term of Employment, and in addition to any benefits and perquisites to which the
Employee is otherwise entitled pursuant to this Agreement, the Employee shall be entitled to
receive healthcare, group term life insurance, group long-term disability insurance, 401(k)
participation, vacation, and other similar employee benefits at least equal to those currently or
subsequently received by other senior employees of the Company as such may be provided by the
Company in its sole and absolute discretion from time to time.


 


 









 





5. Termination




This Agreement shall terminate (subject to Section 9(f) below) (Survival Provision) and the Term of
Employment and the employment of Employee hereunder shall end, on the first to occur of any of the
following (each a “Termination Event”):




	 	(a)	 	The Expiration Date;
	 
	 	(b)	 	The: (i) death of the Employee or (ii) determination of the Board, that the
Employee has become physically or mentally incapacitated so as to be unable to perform
the essential functions of Employee’s duties to the Company for (x) 60 consecutive days
or (y) 80 days in any 12-month period, even with reasonable accommodation, (the
“Disability”);
	 
	 	(c)	 	The discharge of the Employee by the Company with or without Cause; or
	 
	 	(d)	 	the voluntary resignation of the Employee, in which case Employee agrees to
provide the Company with not less than 60 days prior written notice of his resignation,
and in any event the Company may, at its option, declare such resignation to be
effective on (x) any day following receipt of such notice, or (y) if such notice is not
received, any day following such resignation.





The Company may discharge the Employee at any time, for any reason or no reason, with or without
Cause. As used herein, “Cause” is defined as the Employee’s: (i) failure to perform substantially
the duties of the Senior Vice President, Chief Financial Officer and Treasurer of the Company
(other than any such failure resulting from incapacity due to Disability), (ii) charged with any
crime other than traffic violations, (iii) engagement in an act of fraud or of willful dishonesty
towards the Company, (iv) material breach of this Agreement, (v) willful misconduct or gross
negligence in the performance of Employee’s duties hereunder, (vi) violation of a federal or state
securities law or regulation, (vii) the use by Employee of a controlled substance without a
prescription or the use of alcohol which impairs Employee’s ability to carry out his duties and
responsibilities, (viii) material violation by the Employee of the Company’s policies and
procedures, or (ix) embezzlement and/or misappropriation of property of the Company or any of its
affiliates. As used herein, “Good Reason” means the occurrence of any one or more of the following
events without the express consent of the Employee: (i) a material breach by Company of its
obligations under this Agreement, (ii) a material diminution in Employee’s position of duties of
Senior Vice President, Chief Financial Officer and Treasurer of the Company as set forth in this
Agreement, (iii) any reduction in Employee’s Base Salary or benefits unless such modification is
part of a general, pro-rata reduction in the compensation for all executive officers of the Company
implemented as a result of financial problems experienced by the Company, or (iv) any relocation of
Employee’s assigned workplace to an area outside of the greater St. Louis metropolitan area. A
Good Reason shall not exist until the Company has first failed to cure such failure or breach
within 60 days of having been given written notice of its existence, and the Company is provided a
period of 45 days during which it may remedy the Good Reason condition. To the extent the Employee
is discharged or resigns, or is otherwise terminated or is deemed terminated, in each case as
provided herein, from his position with the
Company, he shall be and be deemed to have ceased his employment in the same manner with all of the
subsidiaries of the Company.


 


 









 





6. Effect of Termination




In the event of termination of the Employee’s employment hereunder, all rights of the Employee
under this Agreement, including all rights to compensation, shall end and the Employee shall only
be entitled to be paid the amounts set forth in this Section 6 below; provided,
that, the obligations of the Company to make any payment required pursuant to this Section
6 (other than (x) any amounts of the Employee’s Base Salary previously earned and accrued and (y)
in accordance with the Company’s policy, unreimbursed business expenses of the Employee, ((x) and
(y) collectively, the “Accrued Obligations”), but with the exception of the Accrued Obligations
being payable under clause (c) below), is conditioned upon (i) execution and delivery by the
Employee to the Company of a settlement and release agreement in favor of the Company, its
affiliates and their respective officers, directors, employees, agents and equity holders in
respect of the Employee’s employment with the Company and the termination thereof in form
substantially as set forth in Exhibit A, attached hereto, and (ii) such agreement, once executed by
the Employee and delivered to the Company, becomes irrevocable, enforceable and final under the
applicable law.




	 	(a)	 	In the event that the Employee’s employment is terminated for the reason set
forth in Section 5(a) above (i.e., Expiration Date), then, in lieu of any other
payments of any kind (including without limitation, any severance payments), the
Employee shall be entitled to receive, within thirty (30) days following the date on
which the Termination Event in question occurred (the “Clause (a) Termination Date”)
(or, in the case of any Bonus Compensation, as soon as practicable following the
calculation thereof):






	 	(i)	 	the Employee’s Accrued Obligations, due and unpaid to the
Employee from the Company as of the Clause (a) Termination Date; and






	 	(ii)	 	any amounts of Bonus Compensation earned and due in respect of a
completed calendar year, which remains unpaid to the Employee as of the Clause
(a) Termination Date.






	 	(b)	 	In the event that the Employee’s employment is terminated for the reason set
forth in Section 5(b) above (i.e., death or Disability), then, in lieu of any other
payments of any kind (including without limitation, any severance payments), the
Employee shall be entitled to receive, within thirty (30) days following the date on
which the Termination Event in question occurred (the “Clause (b) Termination Date”)
(or, in the case of any Bonus Compensation, as soon as practicable following the
calculation thereof):






	 	(i)	 	the Employee’s Accrued Obligations, due and unpaid to the
Employee from the Company as of the Clause (b) Termination Date;




 


 









 











	 	(ii)	 	any amounts of Bonus Compensation earned and due with respect to
a completed calendar year, which remains unpaid to the Employee as of the Clause
(b) Termination Date; and






	 	(iii)	 	a pro-rated portion of the Bonus Compensation computed as set
forth below.






	 	(c)	 	In the event that the Employee’s employment is terminated due to the discharge
of the Employee by the Company without Cause (which the Company is free to do at any
time in its sole and absolute discretion) or the Employee’s termination of this
Agreement for Good Reason, then, in lieu of any other payments of any kind (including,
without limitation, any severance payments), the Employee shall be entitled to receive,
within thirty (30) days following the date on which the Termination Event in question
occurred (the “Clause (c) or (d) Termination Date”) (other than in the case of (iv),
which shall be paid in accordance with normal payroll practice of the Company or, in
the case of any Bonus Compensation, as soon as practicable following the calculation
thereof):






	 	(i)	 	the Employee’s Accrued Obligations, due and unpaid to the
Employee from the Company as of the Clause (c) or (d) Termination Date;






	 	(ii)	 	any amounts of Bonus Compensation earned and due with respect to
a completed calendar year, which remains unpaid to the Employee as of the Clause
(c) or (d) Termination Date;






	 	(iii)	 	a continuation of Base Salary through the period ending on the
180th day following the Clause (c) or (d) Termination Date, to be
paid on the same schedule as previously paid. In connection herewith, Employee
agrees that if the Company or any of its affiliates are obligated by law or by
contract/policy to pay Employee any severance payment, a termination indemnity,
notice pay or otherwise obligated by law to provide advance notice of
separation, including any notice period that arises under the Worker Adjustment
and Retraining Notification Act (he “WARN Act”), then the payment due under this
Section 6(c)(iv) shall be reduced, on a dollar for dollar basis, by any such
severance pay, termination indemnity, notice, pay or other payments due or
arising under the WARN Act or otherwise, and Employee shall promptly refund to
the Company any amounts to the extent paid by which such payment is so reduced.






	 	(d)	 	In the event of any termination of the Employee’s employment, the Employee
shall be under no obligation to seek other employment, but in the event the Employee
becomes employed during the period specified under clause (iii) of Section 6(c) above,
the Employee shall not be entitled to any further payments and shall return, if
applicable, any amounts paid to the Employee on or after the subsequent employment
date. The Employee shall correctly disclose to the Company all such
remuneration or other benefit, and if there is a written employment agreement in
connection therewith, provide the Company with a copy thereof.




 


 









 











	 	(e)	 	For the purpose of this Section 6, any Bonus Compensation shall be deemed to be
earned and to become due and payable with respect to any calendar year only if the Term
of Employment has continued through December 31, of such year and, with respect to the
amounts, if any, of such Bonus Compensation for any year, shall be determined based
upon the level of attainment of the applicable performance targets for such year. In
the event that, pursuant to the terms of this Section 6, the Employee is entitled to
receive any pro rated Bonus Compensation, such pro ration shall be determined following
December 31 of the calendar year in which the Employee ceases to be employed hereunder,
and shall be paid in accordance with such plan, and shall be calculated by multiplying
the Bonus Compensation that would have been deemed earned and to become due and payable
in accordance with the terms of this Agreement with respect to the calendar year in
which the Employee ceases to be employed hereunder if the Term of Employment had
continued through December 31 of such year as determined based upon the applicable
performance targets for such year, by a fraction, the numerator of which is the number
of days from (and including) January 1 of such year through (and including) the last
day of employment hereunder, and the denominator of which is 365.





7. Non-Disclosure




During the Term of Employment and at all times thereafter, the Employee shall hold in a fiduciary
capacity for the benefit of the Company and each of its affiliates, all secret or confidential
information, knowledge or data, including, without limitation, trade secrets, sources of supplies
and materials, customer lists and their identity, designs, production and design techniques and
methods, identity of investments, identity of contemplated investments, business opportunities,
valuation models and methodologies, processes, technologies, and any other intellectual property
relating to the business of the Company or its affiliates, and their respective businesses, (i)
obtained by the Employee during the Employee’s employment by the Company and any of the
subsidiaries of the Company and (ii) not otherwise in the public domain, (“Confidential
Information”). The Employee also agrees to keep confidential and not to publish, post on his own
or to disclose any personal information regarding any controlling Person of the Company, including
Carl C. Icahn, or any of its or his affiliates and their employees, and any member of the immediate
family of any such Person (and all such personal information shall be deemed “Confidential
Information” for the purposes of this Agreement). The Employee shall not, without the prior
written consent of the Company (acting at the direction of the Board): (i) except to the extent
compelled pursuant to the order of a court or other body having jurisdiction over such matter or
based upon the advice of counsel that such disclosure is legally required, communicate or divulge
any Confidential Information to anyone other than the Company and those designated by the Company;
or (ii) use any Confidential Information for any purpose other than the performance of his duties
pursuant to this Agreement. The Employee will assist the Company or its designee, at the Company’s
expense, in obtaining a protective order, other appropriate remedy or other reliable assurance that
confidential treatment will be accorded any Confidential Information disclosed pursuant to the
terms of this Agreement. Employee agrees not to
disparage the Company, its officers and directors, Mr. Icahn, or Related Parties, or any affiliate
of any of the foregoing, in each case during and/or after his employment hereunder.


 


 









 





All processes, know-how, technologies, trade-secrets information, intellectual property and
inventions (collectively, “Inventions”) conceived, developed, invented, made or found by the
Employee, alone or with others, during the Term of Employment and out of the performance of his
duties and responsibilities hereunder, whether or not patentable and whether or not on the
Company’s or any of its subsidiaries’ time or with the use of the Company’s or any of its
subsidiaries’ facilities or materials, shall be the property of the Company or its respective
subsidiary, as the case may be, and shall be promptly and fully disclosed by the Employee to the
Company. The Employee shall perform all necessary acts (including, without limitations, executing
and delivering any confirmatory assignments, power of attorney, documents, or instruments requested
by the Company or any of its subsidiaries) to vest title to any such Invention in the Company or
the applicable subsidiary and to enable the Company or the applicable subsidiary, at their expense,
to secure and maintain domestic and/or foreign patents or any other rights for such Inventions.



All right, title and interest in all copyrightable material that the Employee shall conceive or
originate individually or jointly or commonly with others, and that arise during the term of his
employment with the Company and out of the performance of his duties and responsibilities under
this Agreement, shall be the property of the Company and are hereby assigned by the Employee to the
Company, along with ownership of any and all copyrights in the copyrightable material. Upon
request and without further compensation therefor, but at no expense to the Employee, the Employee
shall execute any and all papers and perform all other acts necessary to assist the Company to
obtain and register copyrights on such materials in any and all countries. Where applicable, works
of authorship created by the Employee for the Company in performing his duties and responsibilities
hereunder shall be considered “works made for hire,” as defined in the U.S. Copyright Act.



8. Non-Compete and Non-Solicitation





	 	(a)	 	In addition to, and not in limitation of, all of the other terms and provisions
of this Agreement, the Employee agrees that during the Term of Employment, the Employee
will comply with the provisions of Section 1 above.






	 	(b)	 	Except as provided below, for a period of six months following the last day of
employment by the Company (the “Non-Compete Period”), the Employee will not, either
directly or indirectly, as principal, agent, owner, employee, director, partner,
investor, shareholder (other than solely as a holder of not more than 1% of the issued
and outstanding shares of any public corporation), consultant, advisor or otherwise
howsoever own, operate, carry on or engage in the operation of or have any financial
interest in or provide, directly or indirectly, financial assistance to or lend money
to or guarantee the debts or obligations of any Person carrying on or engaged in any
business that is similar to or competitive with the business conducted by the Company
or any of its subsidiaries during or on the date of termination of Employee’s
employment. The business of manufacturing, selling and/or distributing railcars and
railcar parts and other related products shall be and be 




 


 









 







deemed
to be “competitive” with the business conducted by the Company for the purposes hereof. The
Company shall have the right, in its sole discretion, upon written notice to Employee
within seven calendar days of his last day of employment by the Company, to extend
the Non-Compete Period for up to six additional months by paying Employee, as
additional severance pay, $22,917 per month during the extended Non-Compete Period;
provided that the Non-Compete Period shall be one year, and Employee shall
not be entitled to any additional compensation if his employment is terminated on the
Expiration Date, because of death or Disability, for Cause, or voluntary resignation
for Good Reason.




	 	(c)	 	The Employee covenants and agrees with the Company and its subsidiaries that,
during the Term of Employment and for two years following the last day of employment
by the Company, the Employee shall not directly, or indirectly, for himself or for any
other Person:






	 	(i)	 	solicit, interfere with or endeavor to entice away from the
Company or any of its subsidiaries or affiliates, any current or prospective
supplier, customer, client or any Person in the habit of dealing with any of the
foregoing;






	 	(ii)	 	attempt to direct or solicit any current or prospective supplier,
customer or client away from the Company or any of its subsidiaries or
affiliates;






	 	(iii)	 	interfere with, entice away or otherwise attempt to obtain or
induce the withdrawal of any employee of the Company or any of its subsidiaries
or affiliates; or






	 	(iv)	 	advise any Person not to do business with the Company or any of
its subsidiaries or affiliates.





The Employee represents to and agrees with the Company that the enforcement of the restrictions
contained in Section 7 and Section 8 (the Non-Disclosure and Non-Compete and Non-Solicitation
sections respectively) would not be unduly burdensome to the Employee and that such restrictions
are reasonably necessary to protect the legitimate interests of the Company. The Employee agrees
that the remedy of damages for any breach by the Employee of the provisions of either of these
sections may be inadequate and that the Company shall be entitled to injunctive relief, without
posting any bond and Employee agrees not to oppose granting of such relief. This section
constitutes an independent and separable covenant that shall be enforceable notwithstanding any
right or remedy that the Company may have under any other provision of this Agreement or otherwise.


 


 









 





9. Miscellaneous





	 	(a)	 	This Agreement constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all previous written, and all previous or contemporaneous oral
negotiations, understandings, arrangements, and agreements, and may be amended, modified or
changed only by a written instrument executed by the Employee and the Company. No term or condition
of this Agreement shall be deemed to have been waived, except by a statement in writing signed by
the party against whom enforcement of the waiver is sought. Any written waiver shall not be deemed
a continuing waiver unless specifically stated, shall operate only as to the specific term or
condition waived and shall not constitute a waiver of such term or condition for the future or as
to any act other than that specifically waived.






	 	(b)	 	This Agreement and all of the provisions hereof shall inure to the benefit of and be binding
upon the legal representative, heirs, distributees, successors (whether by merger, operation of law
or otherwise) and assigns of the parties hereto; provided, however, that the Employee may not
delegate any of the Employee’s duties hereunder, and may not assign any of the Employee’s rights
hereunder, and any such purported or attempted assignment or delegation shall be null and void and
of no legal effect. In the event the Company assigns this Agreement and its successor assumes the
Company’s obligations hereunder in writing or by operation of law, (i) the Company shall be
released from all of its obligations hereunder, and (ii) all of the references to the Company, and
to the Board, shall be deemed to be references to the Company’s successor and to the governing body
of such successor, respectively. The Company and all of its future or current subsidiaries shall
be and be deemed to be third-party beneficiaries of this Agreement.






	 	(c)	 	This Agreement will be interpreted and the rights of the parties determined in
accordance with the laws of the United States applicable thereto and the internal laws of the State
of New York, without giving effect to the conflict of laws principles thereof. Any unresolved
dispute arising out of this Agreement shall be litigated in any court of competent jurisdiction in
the Borough of Manhattan in New York City; provided that the Company may elect to pursue a court
action to seek injunctive relief in any court of competent jurisdiction to terminate the violation
of its proprietary rights, including but not limited to trade secrets, copyrights or trademarks.
Each party shall pay its own costs and fees in connection with any litigation hereunder.






	 	(d)	 	The Employee covenants and represents that (i) he is not a party to any contract,
commitment, restrictive covenant or agreement, nor is he subject to, or bound by, any order,
judgment, decree, law, statute, ordinance, rule, regulation or other restriction of any kind or
character, which would prevent or restrict him from entering into and performing his obligations
under this Agreement, (ii) he is free to enter into the arrangements contemplated herein, (iii) he
is not subject to any agreement or obligation that would limit his ability to act on behalf of the
Company or any of its subsidiaries, and (iv) his termination of his existing employment, his entry
into the employment contemplated herein and his performance of his duties in respect thereof, will
not violate or conflict with any agreement or obligation to which he is subject. Employee has
delivered to the Company true and complete copies of any currently effective employment agreement,
non-competitive agreement or similar agreement to which Employee is subject.






	 	(e)	 	The Employee acknowledges that he has had the opportunity to get assistance of
legal counsel in reviewing and negotiating this Agreement.






	 	(f)	 	This Agreement and all of its provisions (other than the provisions of Section
5, Section 6, Section 7, Section 8, and Section 9 hereof, which shall survive
termination
of employment and/or termination of this Agreement) shall terminate upon the Employee
ceasing to be an employee of the Company for any reason.




 


 









 











	 	(g)	 	All notices and other communications hereunder shall be in writing; shall be
delivered by hand delivery to the other party or mailed by registered or certified
mail, return receipt requested, postage prepaid or by a nationally recognized courier
service such as Federal Express; shall be deemed delivered upon actual receipt; and
shall be addressed as follows:






If to the Company:




American Railcar Industries, Inc.

100 Clark Street

St. Charles, Missouri 63301

Facsimile: 636.754.3408

Attention: James Cowan, President and Chief Executive Officer




If to the Employee:




At the last known principal residence address reflected in the payroll records of the
Company, or to such other address as either party shall have furnished to the other
in writing in accordance herewith.




	 	(h)	 	In the event of any inconsistency between this Agreement and any other agreement,
plan, program, policy or practice (collectively, “Other Provision”) of the
Company, the terms of this Agreement shall control over such Other Provision. Any
calculation, allocation, expense, estimate or other amount, if any, to be determined
under this Agreement or for the purpose of this Agreement (including all determinations
of eligibility), for any period or portion of a period, and any amount payable or
allocable to Employee under this Agreement for any period or portion of a period, shall
be determined by the Company, whose determination shall be final and binding on all
parties.






	 	(j)	 	Employee shall not issue any press release or otherwise make any public statement or
announcement with respect to the Company or this Agreement, including without
limitation, in connection with the provision of the services hereunder, without the
prior written consent of the Company.






	 	(i)	 	Any termination of Employee’s employment with the Company shall constitute an
automatic resignation of Employee as an officer of the Company and each affiliate of the
Company, and an automatic resignation of Employee, to the extent applicable, from any
and all the board of directors or similar governing body of the Company and its
affiliates, and from the board of directors or similar governing body of any
corporation, limited liability company, or other entity in which the Company or any
affiliate holds an equity interest and with respect to which board or similar governing
body Employee serves as the Company’s or such affiliate’s designee or other
representative.




 


 









 











	 	(j)	 	This Agreement may be executed in two or more counterparts (and by facsimile), each
of which shall be deemed to be an original, and all of which, taken together, shall be
deemed to be one and the same instrument.






	 	(k)	 	Whenever possible, each provision of this Agreement will be interpreted in such
manner as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal, or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability
will not affect any provision in any other jurisdiction, but this Agreement will be
reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or
unenforceable provision had never been contained herein except that any court having
jurisdiction shall have the power to reduce the duration, area, or scope of such invalid,
illegal, or unenforceable provision and, its reduced form, it shall be enforceable. It is
the intent of the Parties that the provisions of this Agreement be enforceable to the
fullest extent permitted by applicable law. The Parties agree that the language of all
parts of this Agreement shall in all cases be construed as a whole, according to its fair
meaning, and not strictly for or against either Party.






	 	(l)	 	If any paragraph or part or subpart of any paragraph in this Agreement or the
application thereof is construed to be overbroad and/or unenforceable, then the court making such
determination shall have the authority to narrow the paragraph or part or subpart of the paragraph
as necessary to make it enforceable and the paragraph or part or subpart of the paragraph shall
then be enforceable in its/their narrowed form. Moreover, each paragraph or part or subpart of each
paragraph in this Agreement is independent of and severable (separate) from each other. In the
event that any paragraph or part or subpart of any paragraph in this Agreement is determined to be
legally invalid or unenforceable by a court and is not modified by a court to be enforceable, the
affected paragraph or part or subpart of such paragraph shall be stricken from this Agreement, and
the remaining paragraphs or parts or subparts of such paragraphs of this Agreement shall remain in
full force and effect.





[Signature Page Follows]


 


 









 





	 	 	 	 	 
	AMERICAN RAILCAR INDUSTRIES, INC.	 	 
	 
	 	 	 	 
	By:

	 	/s/ James Cowan
 

Name: James Cowan
	 	 
	 

	 	Title: President and Chief Executive Officer	 	 
	 
	 	 	 	 
	Date: October 19, 2011	 	 
	 
	 	 	 	 
	EMPLOYEE:	 	 
	 
	 	 	 	 
	By:

	 	/s/ Dale C. Davies
 

Dale C. Davies
	 	 






Date: October 19, 2011




[Signature page to Dale C. Davies Employment Agreement]



 


 









 





[FORM OF RELEASE]

Exhibit A



Confidential



 


 









 





Date




This agreement sets forth the terms and conditions regarding your separation from employment
from American Railcar Industries, Inc. (the “Company”) effective [last day of employment] (the
“Separation Date”).



The terms and conditions set forth in Paragraphs 1 and 2 below will apply regardless of
whether you decide to sign this letter agreement. However, you will not be eligible to receive the
payment set forth in Paragraph 3 below unless you sign and do not revoke this letter agreement.
(See Paragraph 11 below for what it means to revoke this letter agreement.)




	1.	 	Your last day of employment is [date]. You will receive your regular pay as a full-time
employee according to the Company’s regular payroll practices through the Separation Date.
You also will receive a payment in the amount of [$xx.xx], less applicable taxes and payroll
withholdings, for [# of days] days of accrued vacation (less any vacation taken between the
date of this letter and the Separation Date).






	2.	 	Because of your separation from employment, your eligibility for the Company’s employee
benefit plans will end on the Separation Date.






	3.	 	In addition to the above payments, the Company is offering you the opportunity to receive
payments in the amount of $22,917 per month for 180 days less applicable taxes and payroll
withholdings, in exchange for your signing this letter agreement and agreeing to its terms,
including the general release of claims contained in paragraph 7(a). This payment would be
paid in a lump sum within 15 days after this letter agreement becomes effective (as described
in paragraph 11).






	4.	 	You agree to keep confidential and not to publish or post on your own or to disclose to any
third party, including, but not limited to, newspapers, authors, publicists, journalists,
bloggers, gossip columnists, producers, directors, media personalities, and the like, all
confidential information relating to Carl Icahn and his family, the Company and its
affiliates, related, parent, and subsidiary companies, and each of their officers, directors,
employees and clients, learned in the course of your employment with the Company.
Furthermore, you agree not to disparage, or otherwise discuss any information, relating to
Carl Icahn and his family, the Company and its affiliates, related, parent, and subsidiary
companies, and each of their officers, directors, employees, and clients, with any third
party, including, but not limited to, newspapers, authors, publicists, journalists, bloggers,
gossip columnists, producers, directors, media personalities, and the like. You further agree
to keep confidential and not to disclose to any third party all confidential information
relating to the Company and its affiliates, related, parent, or subsidiary companies, and each
of their clients learned in the course of your employment with the Company or any affiliate,
related, parent, or subsidiary company. Confidential Information includes all secret or
confidential information, knowledge or data, including, without limitation, trade secrets,
sources of supplies and materials, customer lists and their identity, customer information,
designs, production and design techniques and methods, identity of investments, identity of
contemplated investments, business opportunities, valuation models and methodologies,
processes, technologies, and any intellectual property relating to the business of the Company
or its affiliates, related, parent, or subsidiary companies and their respective businesses.
In addition, you agree to keep the terms and conditions of this letter agreement confidential,
except that you may disclose the terms and conditions of this letter agreement to your spouse
or significant other, attorneys and
financial and tax advisors. The restrictions in this paragraph are subject to paragraph 14
below.





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	5.	 	This letter agreement is not intended to modify but rather is intended to supplement the
following agreements entered into between you and the Company which remain in full force and
effect; including, but not limited to, the American Railcar Industries, Inc. Policy Statement
on Securities Trades by Company Personnel and the Confidentiality and Non-Disparagement
Agreement and Guidelines. You agree for a period of one year after this letter agreement
becomes effective that you will not directly or indirectly, in any capacity, and will not
assist directly or indirectly, in any capacity, any other individual or entity to (A) hire or
engage in any capacity any employee of the Company (or any individual who was an employee of
the Company within 12 months of the date such hiring or engagement occurs) or solicit or seek
to persuade any employee of the Company to discontinue such employment, (B) solicit or
encourage any customer of the Company or independent contractor providing services to the
Company to terminate or diminish its relationship with them, or (C) seek to persuade any
customer (or any individual who was a customer of the Company within 12 months of the date
such solicitation or encouragement commences or occurs, as the case may be) or prospective
customer of the Company to conduct with anyone else any business or activity that such
customer or prospective customer conducts or could conduct with the Company.






	6.	 	You acknowledge that as of the Separation Date you have returned to the Company any and all
property, tangible or intangible, relating to its business or the business of its parent
companies, subsidiaries, affiliates and related entities, which you possessed or had control
over at any time, including but not limited to Company-provided cell phones, keys,
blackberries, personal computers, credit cards, building access cards, computer equipment,
files, documents and software. You agree that all processes, technologies, and inventions,
including new contributions, improvements, ideas, discoveries, agreements, contracts,
trademarks, or trade names conceived, developed, invented, made, or found by you alone or with
other employees during the period of your employment and out of the performance of your duties
and responsibilities hereunder, whether or not patentable and whether or not on the Company’s
or any of its subsidiaries’ time or with the use of the Company’s or any of its subsidiaries’
facilities or materials, shall be the property of the Company or its respective subsidiary, as
the case may be.






	7.	 	(a) By signing this letter agreement, except as to the claims and rights referred to in
paragraphs 7(b) and 7(c) below, in consideration of the severance payment provided for in
paragraph 3, and other terms of this letter, you voluntarily and knowingly release and forever
discharge the Company, its subsidiaries, parent, affiliates, and related entities, and each of
their employee benefit plans, and each of their shareholders, partners, directors, members,
officers, employees, trustees, administrators and fiduciaries, and each of their successors
and assigns, from any and all claims, demands, causes of action, obligations, damages and
liabilities of whatever kind, in law or equity, by statute or otherwise (all collectively
referred to as “Claims”), that can be waived, whether known or unknown, asserted or
unasserted, arising out of or relating directly or indirectly in any way to your employment or
termination of employment or the terms and conditions of your employment with the Company or
any parent, subsidiary, affiliated, or related entity, including but not limited to (i) Claims
of discrimination, harassment, retaliation, or failure to accommodate under any federal,
state, or local law, without limitation, the Age Discrimination in Employment Act, Title VII
of the Civil Rights Act of 1964, Sections 1981 through 1988 of Title 42 of the United States
Code, the Americans with Disabilities Act, the Equal Pay Act, the Older Workers Benefits
Protection Act, and the Genetic Information Non-Discrimination Act (as any such law was
enacted or amended); (ii) Claims under the Immigration Reform and Control Act; (iii) Claims
under 





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the
Uniformed Services Employment and Reemployment Rights Act; (iv) Claims under the Employee
Retirement Income Security Act of 1974 (excluding claims for vested benefits as set forth in
paragraph 7(b) below); (v) Claims regarding leaves of absence, including, but not limited
to, Claims under the Family and Medical Leave Act; (vi) Claims under the National Labor
Relations Act; (vii) Claims under the Sarbanes-Oxley Act or the Dodd-Frank Act; (viii)
Claims under the New York State Human Rights Law and the New York City Human Rights Law;
Claims under the Missouri Human Rights Act; the Missouri Wage, Hours, and Dismissals Rights
Law; and similar local, state and federal laws; (ix) Claims for breach of contract (express
or implied), retaliation, wrongful discharge, detrimental reliance, invasion of privacy,
defamation, emotional distress or compensatory and/or punitive damages; and (x) Claims for
attorneys’ fees, costs, disbursements and/or the like. By signing below, you also
acknowledge that you cannot benefit monetarily or obtain other personal relief from any
Claims released in this paragraph 7(a) and that you have waived any right to equitable
relief that may have been available to you (including, without limitation, reinstatement)
with respect to any Claim waived in this paragraph 7(a). Your signature below acknowledges
the fact that you are receiving payments you would otherwise not be entitled to, that it is
sufficient consideration for the waiver of Claims herein, and that after the Separation Date
you will not be entitled to receive any other payments or benefits from the Company apart
from the payments and benefits described in this letter agreement.




(b) By signing this letter agreement, you are not releasing claims that arise after you sign
this letter agreement; claims to enforce this letter agreement; claims relating to the
enforceability, meaning, or effect of this letter agreement; claims or rights you may have
to workers’ compensation or unemployment benefits; claims for accrued, vested benefits under
any employee benefit plan of the Company in accordance with the terms of such plans and
applicable law; and/or claims or rights which cannot be waived by private agreement.




(c) Additionally, by signing this letter agreement, you are not waiving your right to file a
charge with, or participate in an investigation conducted by, any governmental agency,
including, without limitation, the United States Equal Employment Opportunity Commission
(EEOC). Nevertheless, as set forth in paragraph 7(a) above, you acknowledge that you cannot
benefit monetarily or obtain damages or equitable relief of any kind from or through any
such charge or any action commenced by a government agency or third party with respect to
claims waived in paragraph 7(a).




	8.	 	This letter agreement contains the entire understanding between you and the Company with
respect to the subject matter hereof, and supersedes any and all prior agreements and
understandings, whether written or oral, between or among you, the Company or any of its
parent companies, subsidiaries, affiliates and related entities (other than the agreements, if
any, referred to in the first sentence of paragraph 5 above).






	9.	 	This letter agreement (a) is governed by the laws of the State of New York applicable to
agreements made and to be performed wholly within such state, and as such will be construed
under and in accordance with the laws of the State of New York without regard to conflicts of
law, and (b) may not be modified unless evidenced by a writing signed by yourself and an
authorized representative of the Company.






	10.	 	Any unresolved dispute arising out of this letter agreement and the general release contained
in paragraph 7 shall be litigated in any court of competent jurisdiction in the Borough of
Manhattan in New York City; provided that the Company may elect to pursue, without having to
post any bond in connection therewith, a court action to seek injunctive relief in any court
of competent jurisdiction to enforce any of its rights hereunder, including, without
limitation, to terminate the violation of any of its proprietary rights, including but not
limited to trade
secrets, copyrights or trademarks as well as the restrictions in paragraph 5. Each party
shall pay its own costs and fees in connection with any litigation hereunder.





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	11.	 	You have 21 days from your receipt of this letter agreement to consider and accept its terms,
but may sign it at any time within the 21 day period up to and including the 21st day after
you receive it. If you decide to sign this letter agreement, you will have seven days to
revoke your decision by sending written notice of revocation to the Company. Such notice must
be postmarked (if by letter) or received (if by email) by the close of business on the
seventh day after you sign this letter agreement. Provided you do not revoke your
decision, this letter agreement will become effective on the eighth day after you sign it. We
encourage you to speak with an attorney before signing this letter agreement.






	12.	 	By signing this letter agreement, you agree that you are signing it voluntarily of your own
free will, that you have had 21 days within which to consider its terms and to consult with an
attorney, and that you understand and agree to its terms.






	13.	 	If any paragraph or part or subpart of any paragraph in this letter agreement or the
application thereof is construed to be overbroad and/or unenforceable, then the court making
such determination shall have the authority to narrow the paragraph or part or subpart of the
paragraph as necessary to make it enforceable and the paragraph or part or subpart of the
paragraph shall then be enforceable in its/their narrowed form. Moreover, each paragraph or
part or subpart of each paragraph in this letter agreement is independent of and severable
(separate) from each other. In the event that any paragraph or part or subpart of any
paragraph in this letter agreement is determined to be legally invalid or unenforceable by a
court and is not modified by a court to be enforceable, the affected paragraph or part or
subpart of such paragraph shall be stricken from the letter agreement, and the remaining
paragraphs or parts or subparts of such paragraphs of this letter agreement shall remain in
full, force and effect.






	14.	 	Nothing in this letter agreement is intended to preclude you from providing truthful
information about your employment or this letter agreement to any government agency or in any
sworn testimony.





Understood and Agreed to by:



	 	 	 
	 

Dale Davies

	 	 






Date executed:                     , 20___ 






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