EXHIBIT 9.1
VOTING AGREEMENT
THIS AGREEMENT is made between the made by and between MODAL LLC, a
Delaware limited liability company, with its principal business address at c/o
Icahn Associates Corp. and Affiliated Companies, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("Purchaser") and the Foundation for a Greater Opportunity, a
Delaware not-for-profit corporation with its principal offices at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Foundation").
WHEREAS, the Foundation owns 460 shares (the "Shares") of the common
stock of American Railcar Industries, Inc. ("ARI"); and
WHEREAS, ARI is a private company that is in the process of registering
an initial public offering of its common stock under the Securities Act of 1933
("Securities Act") with the U.S. Securities Exchange Commission, pursuant to
which it expects to raise in excess of $100 million of new capital (the "IPO);
and
WHEREAS, ARI and the Purchaser are "affiliated companies," as they are
both controlled by Xxxx X. Icahn; and
WHEREAS, the Purchaser desires to acquire all of the Shares, and
consequently the Purchaser has offered to acquire all of the Shares on the terms
set forth in a certain Stock Purchase Agreement between the Purchaser and the
Foundation of even date herewith (the "Stock Purchase Agreement"), and the
Foundation is willing to sell the Shares to the Purchaser for the consideration
and upon the terms and conditions set forth in the Stock Purchase Agreement; and
WHEREAS, as a condition to executing the Stock Purchase Agreement, the
Purchaser desires to obtain the voting power with respect to all such Shares
pending the closing of the purchase of the Shares from the Foundation under the
terms of the Stock Purchase Agreement, and the Foundation is willing to grant
this right to the Purchaser;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and for other good and valuable consideration the
receipt of which is acknowledged, the parties hereto hereby agree as follows:
1) In consideration for Purchaser's execution of the Stock
Purchase Agreement, the Foundation agrees to execute an
Irrevocable Proxy, in the form attached hereto, naming the
Purchaser or its nominee as agent with respect to the voting
of all of the Shares during the term of this Agreement.
2) This Agreement will terminate on the closing of Purchaser's
purchase of the Shares under the Stock Purchase Agreement, or
upon the termination of the Stock Purchase Agreement,
whichever first occurs.
3) This Agreement will be governed by and interpreted in
accordance with the laws of the State of New York, excluding
its conflicts of law principles. In the event that any legal
proceedings are commenced with respect to any matter arising
under this Agreement, the parties specifically consent and
agree that the courts of the State of New York and/or the
Federal Courts located in the State of New York will have
exclusive jurisdiction over each of the parties and over the
subject matter of any such proceedings. Additionally, the
party that loses any such proceeding will pay all costs and
expenses incurred by the other party(s) in connection
therewith, including all attorneys' and other professional
fees and expenses.
IN WITNESS WHEREOF, the parties agree to the terms of this Agreement
and further certify that their respective signatories are duly authorized to
execute this Agreement. This Agreement is effective as of the date on which it
has been signed by both parties, as indicated below.
FOUNDATION FOR MODAL LLC:
A GREATER OPPORTUNITY
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Print Name: XXXXXX X. XXXXXXXX Print Name: Xxxxxx X. Xxxxxxx
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Title: PRESIDENT Title: Vice President
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Date: DEC. 7, 2005 Date: Dec. 8, 2005
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/s/ Xxxxxxxxx X. Xxxxx
XXXXXXXXX X. XXXXX
NOTARY PUBLIC
MY COMMISSION EXPIRES JULY 31, 2006
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PROXY
The undersigned stockholder of AMERICAN RAILCAR INDUSTRIES, INC., a
Missouri corporation (the "Corporation"), does hereby irrevocably constitute and
appoint MODAL LLC ("Purchaser") as its proxy with full power of substitution,
for and on its behalf to attend all meetings of stockholders of the Corporation
and to act, vote and execute consents with respect to all of its shares of
Common Stock of the Corporation identified in Annex 1 hereto (the "Shares"), as
fully and to the same extent as the undersigned stockholder might do itself.
This proxy is irrevocable and is coupled with an interest, having been executed
pursuant to a certain Voting Agreement dated as of DEC 7, 2005 to which the
Purchaser and the undersigned are parties (the "Voting Agreement"). This proxy
shall continue in full force and effect for the term set forth in the Voting
Agreement.
Executed as of DEC 7, 2005.
FOUNDATION FOR A GREATER OPPORTUNITY
By: /s/ Xxxxxx X. Xxxxxxxx
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Print Name: XXXXXX X. XXXXXXXX
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Title: PRESIDENT
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Annex 1
The following shares are subject to this Voting Agreement and
Irrevocable Proxy:
1. 460 shares of AMERICAN RAILCAR INDUSTRIES, INC.
currently held by the Foundation as of the date of
the Voting Agreement; and
2. all voting securities of AMERICAN RAILCAR INDUSTRIES,
INC. that may hereafter be issued to the Foundation
as a result of any stock split, stock dividend, or
distribution or dividend with respect to the number
of shares of common stock of AMERICAN RAILCAR
INDUSTRIES, INC. set forth in paragraph 1 above.
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