AGREEMENT AND PLAN OF MERGER
Exhibit
2.1
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”).
RECITALS:
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 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 Delaware 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. From time to time, as and when required by the Surviving Corporation
or by its successors or assigns, there shall be executed and delivered on behalf of Parent such
deeds and other instruments, and there shall be taken or caused to be taken by it all such further
and other action, as shall be appropriate, advisable or necessary in order to vest, perfect or
conform, of record or otherwise, in the Surviving Corporation, the title to and possession of all
property, interests, assets, rights, privileges, immunities, powers, franchises and authority of
the Parent, and otherwise to carry out the purposes of this Agreement, and the officers and
directors of the Surviving Corporation are fully authorized, in the name and on behalf of the
Parent or otherwise, to take any and all such action and to execute and deliver any and all such
deeds and other instruments.
6. Statutory Agent. From and after the Effective Time, until thereafter changed as
permitted by law, the Secretary of State of the State of Delaware shall serve as the statutory
agent of the Non-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 Delaware.
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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 one share of
Subsidiary Common Stock; |
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ii. | all of the shares of Subsidiary Common Stock held
by Parent shall be surrendered and canceled; |
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iii. | the Surviving Corporation shall assume and continue
Parent’s 2005 Equity Incentive Plan, as amended, and all other employee
benefit plans of Parent, and (A) each outstanding and unexercised option
or other right to purchase or receive or security convertible into Parent
Common Stock shall be assumed by the Surviving Corporation and shall
become an option or right to purchase or receive or a security
convertible into Subsidiary Common Stock on the basis of one share of
Subsidiary Common Stock for each share of Parent Common Stock issuable
pursuant to any such option, right to purchase or convertible security,
on the same terms and conditions and at an exercise price per share equal
to the exercise price applicable to any such Parent option, stock
purchase right or convertible security and (B) each stock appreciation
right shall be assumed by the Surviving Corporation and shall reference
the same number of shares of Subsidiary Common Stock as such stock
appreciation right referenced shares of Parent Common Stock prior to the
Merger; and |
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iv. | the holders of shares of Parent Common Stock shall
have no further claims of any kind or nature. |
(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 paragraphs above.
(c) Each share, if any, of capital stock held in Parent’s treasury at the Effective Time shall
automatically be canceled.
8. Abandonment. This Agreement may be terminated and the Merger abandoned by the
mutual consent of the Boards of Directors of Parent and Subsidiary at any time (i) prior to the
filing date(s) of the Merger Documents with the Secretaries of State of the States of Delaware and
North Dakota, as applicable, whether or not at the time of such termination and abandonment this
Agreement has been adopted by the stockholders of Parent, or (ii) following the filing of the
Merger Documents with the Secretaries of State of the States of Delaware and North Dakota, as
applicable, but prior to the Effective Time, whether or not at the time of such termination and
abandonment this Agreement has been adopted by the stockholders of Parent.
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute
this Agreement and Plan of Merger effective as of the date first above written.
AMERICAN RAILCAR INDUSTRIES, INC., a Delaware Corporation |
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By: | /s/ Xxxx X. Xxxxxx | |||
Xxxx X. Xxxxxx | ||||
Senior Vice President, Chief Financial Officer and Treasurer |
A T T E S T: |
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/s/ Xxxxxxx Xxxxxxx
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AMERICAN RAILCAR INDUSTRIES, INC., a North Dakota Corporation |
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By: | /s/ Xxxx X. Xxxxxx | |||
Xxxx X. Xxxxxx | ||||
Treasurer |
A T T E S T: |
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/s/ Xxxxxxx Xxxxxxx
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