AGREEMENT AND PLAN OF
MERGER
AGREEMENT AND PLAN
OF MERGER (“ Agreement ”) entered into this
day of
, 2005 between American Railcar Industries, Inc., a Missouri
corporation (“ Parent ”), and American Railcar
Industries, Inc., a Delaware corporation (“ Subsidiary
” and together with Parent, “ Constituent
Corporations ”).
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
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