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Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER ("AGREEMENT") entered into this 20th 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 with and 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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Exhibit 2.1
(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 Subsidiary 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 and Sections 253 and 259 of the DGCL, 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 shall be transferred to and vested in the
Subsidiary as the
Surviving Corporation without further act or deed; (ii) the
Subsidiary as the
Surviving Corporation shall continue in existence and retain all of
its assets,
property, leasehold interests, rights and powers as well as all
debts due to it
and all choses in action belonging to it without impairment; and
further, the
title to any real estate, or any interest therein, under the laws
of the State
of Missouri vested in the Subsidiary Corporation shall not revert
or be in any
way impaired by reason of the Merger; and further, the rights of
creditors of
Parent, lessors of property leased by Parent and parties
contracting with Parent
shall not in any manner be impaired by the Merger, and Subsidiary
as the
Surviving Corporation shall remain liable for all of its
liabilities and
obligations existing prior to the Effective Time and shall be
deemed to have
assumed the obligations of Parent existing prior to the Effective
Time to the
same extent as if Subsidiary had itself incurred such obligations;
and further
the aggregate amount of the net assets of the parties which was
available for
the payment of dividends immediately prior to the Merger shall
continue to be
available for the payment of dividends by the Surviving
Corporation.
5. Further
Assurance. If at any time Parent shall consider or be advised
that any acknowledgments or further assurances or assignments in
law or other
similar actions are
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Exhibit 2.1
necessary or desirable to acknowledge, confirm, vest or perfect in
and to the
Surviving Corporation any rights, title or interests of Parent, or
otherwise to
carry out the provisions hereof, Parent and its respective officers
and
directors shall and will execute and deliver any and all such
acknowledgements,
assurances or assignments in law, and do all things necessary or
proper to
acknowledge, confirm, vest or perfect such rights, title or
interests in the
Surviving Corporation, and to otherwise carry out the provisions of
this
Agreement.
6.
Statutory Agent. From and after the Effective Time, until
thereafter
changed as permitted by law, the Secretary of State of the State of
Missouri
shall serve as the statutory agent of the Surviving Corporation
upon whom any
process, notice or demand against either Parent or the Surviving
Corporation may
be served for any prior obligations for so long as any liability
remains
outstanding against Parent or the Surviving Corporation in the
State of
Missouri.
7.
Conversion of Shares.
(a) At the Effective Time, by virtue of the Merger and without
any
action on the part of the holder thereof, (i) each share of Parent
Common Stock
issued and outstanding shall be converted into and be deemed to
become 9,328.083
shares of Subsidiary Common Stock, provided that any fractional
shares to be
issued to each Stockholder of the Corporation pursuant to such
conversion shall
be rounded to the nearest whole number of shares and (ii) each
share of Parent
New Preferred Stock issued and outstanding shall be converted into
and be deemed
to become one share of Subsidiary New Preferred Stock (as defined
in the
Surviving Corporation Certificate of Designations). At such time
prior to the
Effective Time as shall be determined by the Board of Directors of
Parent, each
share of Parent Old Preferred Stock issued and outstanding shall be
redeemed
pursuant to the terms thereof and the Articles of Incorporation of
the Parent.
(b) From and after the Effective Time, (i) each certificate
theretofore representing shares of issued and outstanding Parent
Common Stock
shall, upon surrender to Subsidiary, entitle the holder to receive
in exchange
therefor a certificate or certificates representing the number of
shares of
Subsidiary Common Stock into which the stock theretofore
represented by the
certificate so surrendered shall have been converted in accordance
with the
paragraph above, and (ii) each certificate theretofore representing
shares of
issued and outstanding Parent New Preferred Stock shall, upon
surrender to
Subsidiary, entitle the holder to receive in exchange therefor a
certificate or
certificates representing the number of shares of Subsidiary New
Preferred Stock
into which the stock theretofore represented by the certificate so
surrendered
shall have been converted in accordance with the paragraph
above.
(c) Each share, if any, of capital stock held in Parent's
treasury
at the Effective Time shall automatically be canceled.
(d) At the Effective Time, and pursuant to Section 351.447 of
the
MGBCL and Section 253 of the DGCL, all of the presently issued and
outstanding
shares of Subsidiary Common Stock shall cease to exist as the
Parent Corporation
holds 100% of such shares.
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Exhibit 2.1
8.
Dissenter's Rights. An
