FORM OF] AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
[FORM OF]
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”).
(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.
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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.
(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 [ ] shares of Subsidiary Common Stock, 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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voted for the Merger and who shall have, after the taking of such vote, properly demanded
payment for such shares in accordance with Section 351.875 of the MGBCL, shall not
thereafter have any rights as a stockholder except as provided in Section 351.900 et seq. of the
MGBCL.
AMERICAN RAILCAR INDUSTRIES, INC., | ||||||
a Missouri Corporation | ||||||
By: | ||||||
Xxxxx X. Xxxxx, Chief Executive Officer | ||||||
ATTEST: |
||||||
Secretary |
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AMERICAN RAILCAR INDUSTRIES, INC., | ||||||
a Delaware Corporation | ||||||
By: | ||||||
Xxxxx X. Xxxxx, Chief Executive Officer | ||||||
ATTEST: |
||||||
Secretary |
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