AGREEMENT AND PLAN OF
MERGER
AGREEMENT AND PLAN OF MERGER (“
Agreement ”) entered into this 26th day of June, 2009
by and between American Railcar Industries, Inc., a Delaware
corporation (“ Parent ”), and American Railcar
Industries, Inc., a North Dakota corporation (“
Subsidiary ” and, together with Parent, “
Constituent Corporations ”).
WHEREAS, the authorized capital stock of Parent
consists of: (i) 50,000,000 shares of Common Stock, $.01 par
value per share (“ Parent Common Stock ”),
21,302,296 shares of which are issued and outstanding as of the
date hereof; (ii) 1,000,000 shares of Preferred Stock, $.01
par value per share, no shares of which are issued and outstanding
as of the date hereof.
WHEREAS, the authorized capital stock of
Subsidiary consists of 10,000 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.
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 North Dakota Business Corporation Act (“ NDBCA
”) 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.
Upon the Effective Time, the Articles of
Incorporation of the Surviving Corporation shall be amended and
restated in their entirety as set forth on
Exhibit A attached hereto (the “ New
Articles ”), which New Articles: (i) shall supersede
the original Articles of Incorporation of the Subsidiary, and any
amendments thereto, in all respects; (ii) have been adopted
pursuant to Section 10-19.1-21 of the NDBCA; and (iii) among
other things (X) increase the authorized capital stock of the
Subsidiary to consist of 50,000,000 shares of Subsidiary Common
Stock and 1,000,000 shares of Preferred Stock, $.01 par value per
share, and (Y) provide that the Surviving Corporation shall be
subject to the North Dakota Publicly Traded Corporations
Act.
(b) Upon the Effective Time, the Bylaws of
the Surviving Corporation shall be in the form previously approved
by the board of directors of each of the Constituent Corporations,
which were included in the definitive proxy statement
of Parent filed with the Securities and Exchange Commission on
April 30, 2009 (the “ New Bylaws
”).
(c) Upon the Effective Time, the officers
and directors of the Surviving Corporation shall be those of the
Parent immediately prior to the Effective Time.
3.
Effective Time . The Merger shall become effective, assuming
the prior filing of (i) a Certificate of Ownership and Merger
and/or an executed counterpart of this Agreement with the Office of
the Secretary of State of the State of Delaware and
(ii) Articles of Merger and/or an executed counterpart of this
Agreement with the Office of the Secretary of State of the State of
North Dakota, respectively, on June 30, 2009 (the “
Effective Time ”) (any such Certificate of Ownership
and Merger, Articles of Merger and/or executed counterparts of this
Agreement, collectively, the “ Merger Documents
”).
4.
Effect of Merger . From and after the Effective Time, the
effect of the Merger shall be as provided in Sections 253 and
259 of the DGCL and Sections 10-19.1-100 and 10-19.1-102 of
the NDBCA, including the following: (i) the separate corporate
existence of Parent shall cease and all of its assets, property,
rights and powers as well as all debts due it and all choses in
action belonging to it sha
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