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Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER ("AGREEMENT") entered into this ______ day
of
January, 2006 between American Railcar Industries, Inc., a Missouri
corporation
("PARENT"), and American Railcar Industries, Inc., a Delaware
corporation
("SUBSIDIARY" and together with Parent, "CONSTITUENT
CORPORATIONS").
RECITALS:
WHEREAS,
the authorized capital stock of Parent consists of: (i) 12,000
shares of Common Stock, $.01 par value per share ("PARENT COMMON
STOCK"), 1,195
shares of which are issued and outstanding as of the date hereof;
(ii) 99,000
shares of Preferred Stock, par value $.01 per share ("PARENT OLD
PREFERRED
STOCK"), one share of which is issued and outstanding as of the
date hereof;
(iii) 150,000 shares of Payment-In-Kind Preferred Stock, par value
$.01 per
share, none of which are issued and outstanding as of the date
hereof; and (iv)
500,000 shares of New Preferred Stock, $.01 par value per share
("PARENT NEW
PREFERRED STOCK"), 82,055 shares of which are issued and
outstanding on the date
hereof.
WHEREAS,
the authorized capital stock of Subsidiary consists of: (i)
50,000,000 shares of Common Stock, $.01 par value per share
("SUBSIDIARY COMMON
STOCK"), 100 shares of which are issued and outstanding and held by
Parent as of
the date hereof; and (ii) 1,000,000 shares of Preferred Stock, $.01
par value
per share, none of which are issued and outstanding on the date
hereof
("SUBSIDIARY PREFERRED STOCK").
WHEREAS,
the parties deem it advisable and in the best interests of the
Constituent Corporations and their stockholders that Parent be
merged with and
into Subsidiary (the "MERGER") in accordance with the provisions of
the Missouri
General and Business Corporation Law ("MGBCL") and the Delaware
General
Corporation Law ("DGCL") and desire to state herein the mode of
carrying the
same into effect and certain other details and provisions of the
Merger;
NOW,
THEREFORE, in consideration of the premises and the agreements
herein
contained, the parties agree as follows:
1.
Constituent Corporations and Merger. On the Effective Time, as
defined
in Section 3 below, Parent shall be merged into Subsidiary and
Subsidiary shall
be the surviving corporation (the "SURVIVING CORPORATION").
2.
Surviving Corporation.
(a) The name by which the Surviving Corporation shall be known
is:
American Railcar Industries, Inc.
(b) The corporate purposes of the Surviving Corporation shall be
the
purposes set forth in the Certificate of Incorporation of
Subsidiary.
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(c) The Certificate of Incorporation of the Surviving
Corporation
shall be the Certificate of Incorporation, as supplemented by the
Certificate of
Designations adopted by the Board of Directors of the Subsidiary
and attached
hereto as Exhibit A (the "SURVIVING CORPORATION CERTIFICATE OF
DESIGNATIONS").
(d) The By-Laws of the Surviving Corporation shall be the By-Laws
of
the Subsidiary;
(e) The officers and directors of the Surviving Corporation shall
be
those of the Parent immediately prior to the Effective Time.
3.
Effective Time. Simultaneously with or immediately prior to the
closing
of an initial public offering of shares of Subsidiary Common Stock
pursuant to
an effective registration statement filed with the Securities and
Exchange
Commission under the Securities Act of 1933, as amended, or such
earlier time as
the Boards of Directors of the Parent and Subsidiary shall approve,
(i) a
Certificate of Ownership and Merger and/or an executed counterpart
of this
Agreement, together with the Surviving Corporation Certificate of
Designations,
shall be filed with the Secretary of State of the State of Delaware
pursuant to
the applicable provisions of the DGCL; and (ii) Articles of Merger
shall be
filed with the Secretary of State of the State of Missouri pursuant
to the
applicable provisions of the MGBCL. The Merger shall become
effective when the
Certificate of Ownership and Merger and/or an executed counterpart
of this
Agreement and the Articles of Merger are filed in the Offices of
the Secretary
of State of the State of Delaware and the Secretary of State of the
State of
Missouri, respectively (the "EFFECTIVE TIME").
4. Effect
of Merger. From and after the Effective Time, the effect of the
Merger shall be as provided in Sections 351.447, 351.450 and
351.458 of the
MGBCL
