American Railcar Industries, Inc./DE (Form: 8-K, Received: 06/30/2009 16:45:11)

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): June 26, 2009

AMERICAN RAILCAR INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)

North Dakota 000-51728 43-1481791

(State or other Jurisdiction of Incorporation) (Commission File Number) (IRS Employer Identification No.)

100 Clark Street
St. Charles, Missouri
63301

(Address of Principal Executive Offices) (Zip Code)

Registrant’s telephone number, including area code: (636) 940-6000

N/A

(Former name or former address if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01 Entry into a Material Definitive Agreement.

On June 26, 2009, American Railcar Industries, Inc., a Delaware corporation (“ARI Delaware” or the “Company”) entered into an Agreement and Plan of Merger (the “Merger Agreement”) with its wholly owned subsidiary, American Railcar Industries, Inc., a North Dakota corporation (“ARI North Dakota”), pursuant to which the Company agreed to merge with and into ARI North Dakota with ARI North Dakota continuing as the surviving corporation (the “Registrant”) in the merger. The merger was consummated on June 30, 2009. As a result, the Company reincorporated from Delaware to North Dakota (the “Reincorporation”) and the Registrant is a North Dakota corporation. The Reincorporation had previously been approved by the Company’s board of directors and was approved by its shareholders at the Company’s annual meeting of shareholders held on June 10, 2009.

As of June 30, 2009, each outstanding share of ARI Delaware common stock was automatically converted into one share of ARI North Dakota common stock. Each stock certificate representing issued and outstanding shares of ARI Delaware common stock now represents the same number of shares of ARI North Dakota common stock. Accordingly, shareholders do not need to exchange stock certificates as a result of the Reincorporation. The Registrant’s common stock continues to trade on the NASDAQ Global Select Market under the symbol “ARII”. Also, on June 30, 2009, each outstanding option to purchase shares of ARI Delaware’s common stock automatically converted into an option to purchase the same number of shares of ARI North Dakota common stock, with no other changes in the terms and conditions of such options. Similarly, each stock appreciation right that referenced shares of ARI Delaware common stock now references the same number of shares of ARI North Dakota common stock. ARI Delaware’s 2005 Equity Incentive Plan, as amended, and all other employee benefit arrangements are continued by ARI North Dakota upon the terms and subject to the conditions in effect on June 30, 2009.

Other than the change in corporate domicile, the Reincorporation did not result in any change in the business, physical location, management, assets, liabilities or net worth of the Company, nor did it result in any change in location of Company employees, including the Company’s management. The daily business operations of ARI North Dakota are continuing as they were conducted by ARI Delaware prior to the Reincorporation, at the Registrant’s principal executive offices located at 100 Clark Street, Saint Charles, Missouri 63301. The consolidated financial condition and results of operations of ARI North Dakota immediately after consummation of the Reincorporation are the same as those of ARI Delaware immediately prior to the consummation of the Reincorporation. In addition, the directors and executive officers of ARI North Dakota consist of the same persons serving as directors and executive officers of ARI Delaware immediately prior to the consummation of the Reincorporation.

In connection with the Reincorporation, effective June 30, 2009, ARI North Dakota and Wilmington Trust Company, as Trustee, entered into a supplemental indenture (the “Supplemental Indenture”) to the indenture dated February 28, 2007 between ARI Delaware and Wilmington Trust Company, as Trustee (the “Original Indenture”), relating to ARI Delaware’s outstanding 7.5% Senior Notes due 2014 (the “Notes”). The Supplemental Indenture provides that, as of the effective time of the Reincorporation, ARI North Dakota assumed all of ARI Delaware’s obligations under and pursuant to the Original Indenture and the Notes.

The foregoing description of the Reincorporation, the Merger Agreement and the Supplemental Indenture does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement and the Supplemental Indenture, copies of which are filed herewith as Exhibit 2.1 and Exhibit 4.1, respectively, and which are incorporated in their entirety herein by reference. A more detailed description of the Merger Agreement and the effects of the Reincorporation is set forth in Proposal No. 2 of ARI Delaware’s definitive proxy statement on Schedule 14A filed with the Securities and Exchange Commission (the “SEC”) on April 30, 2009 (the “Proxy Reincorporation Disclosure”), which is incorporated in its entirety herein by reference.

Item 3.03 Material Modification to Rights of Security Holders.

As disclosed in Item 1.01 above, effective June 30, 2009, the Company changed its state of incorporation from Delaware to North Dakota pursuant to the Reincorporation. As of that date and pursuant to the terms of the Merger Agreement, the Registrant and the rights of the Registrant’s shareholders became governed by the Registrant’s Amended and Restated Articles of Incorporation and Bylaws. The Registrant’s Amended and Restated Articles of Incorporation and Bylaws are filed herewith as Exhibits 3.1 and 3.2, respectively, and are incorporated herein by reference.

Also on June 30, 2009, the Registrant and the rights of the Registrant’s shareholders became governed by the North Dakota Publicly Traded Corporations Act and, as to matters not addressed by the North Dakota Publicly Traded Corporations Act, the North Dakota Business Corporation Act.

A description of the Registrant’s Amended and Restated Articles of Incorporation and Bylaws, and of the changes to the rights of the Registrant’s shareholders as a result of the Reincorporation, is set forth in the Proxy Reincorporation Disclosure, which is incorporated in its entirety herein by reference.

The information set forth in Item 1.01 above with respect to the Reincorporation, the Merger Agreement and the Supplemental Indenture is incorporated herein in its entirety by reference.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

The information set forth in Items 1.01 and 3.03 above with respect to the Reincorporation, the Merger Agreement, the Amended and Restated Articles of Incorporation and the Bylaws is incorporated herein in its entirety by reference.

Item 9.01 Financial Statements and Exhibits

(d) Exhibits

2.1 Agreement and Plan of Merger by and between American Railcar Industries, Inc. a North Dakota corporation, and American Railcar Industries, Inc., a Delaware corporation

3.1 Amended and Restated Articles of Incorporation of American Railcar Industries, Inc., a North Dakota corporation

3.2 Bylaws of American Railcar Industries, Inc., a North Dakota corporation

4.1 Supplemental Indenture by and between American Railcar Industries, Inc., a North Dakota corporation, and Wilmington Trust Company, as Trustee

4.2 Specimen Common Stock Certificate of American Railcar Industries, Inc., a North Dakota corporation

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.


Date: June 30, 2009	American Railcar Industries, Inc.
	By:	/s/ Dale C. Davies

		Name: Dale C. Davies Title: Senior Vice President, Chief Financial Officer and Treasurer

EXHIBIT INDEX

Exhibit Number Description

2.1 Agreement and Plan of Merger by and between American Railcar Industries, Inc. a North Dakota corporation, and American Railcar Industries, Inc., a Delaware corporation

3.1 Amended and Restated Articles of Incorporation of American Railcar Industries, Inc., a North Dakota corporation

3.2 Bylaws of American Railcar Industries, Inc., a North Dakota corporation

4.1 Supplemental Indenture by and between American Railcar Industries, Inc., a North Dakota corporation, and Wilmington Trust Company, as Trustee

4.2 Specimen Common Stock Certificate of American Railcar Industries, Inc., a North Dakota corporation

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

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.

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;

	ii.		all of the shares of Subsidiary Common Stock held by Parent shall be surrendered and canceled;

	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

	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.

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
	By:	/s/ Dale C. Davies
		Dale C. Davies
		Senior Vice President, Chief Financial Officer and Treasurer


A T T E S T:

/s/ Michael Obertop Secretary


	AMERICAN RAILCAR INDUSTRIES, INC., a North Dakota Corporation
	By:	/s/ Dale C. Davies
		Dale C. Davies
		Treasurer


A T T E S T:

/s/ Michael Obertop Secretary

Exhibit 3.1

AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
AMERICAN RAILCAR INDUSTRIES, INC.

The undersigned, under the provisions and subject to the requirements of the laws of the State of North Dakota (particularly (i) Chapter 10-19.1 of the North Dakota Century Code, generally known as the North Dakota Business Corporation Act, and (ii) Chapter 10-35 of the North Dakota Century Code, generally known as the North Dakota Publicly Traded Corporations Act, and the acts amendatory thereof and supplemental thereto, collectively referred to hereinafter as the “Corporation Laws of the State of North Dakota”), hereby certifies that:

FIRST: The name of the corporation (hereinafter called the “Corporation”) is American Railcar Industries, Inc.

SECOND: The name of the commercial registered agent in the State of North Dakota is CT Corporation System.

THIRD: The effective date of incorporation of the Corporation shall be the date that the Secretary of Sate of the State of North Dakota issues the Corporation’s Certificate of Incorporation.

FOURTH: The Corporation expressly elects to be governed by the North Dakota Publicly Traded Corporations Act.

FIFTH: The total number of shares that the Corporation shall have authority to issue is 51,000,000, consisting of 50,000,000 shares of common stock, all of a par value of one cent ($.01) each (“Common Stock”), and 1,000,000 shares of preferred stock, all of a par value of one cent ($.01) each (“Preferred Stock”). The voting powers, designations, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions thereof, in respect of the classes of stock of the Corporation are as follows:

Preferred Stock

The Preferred Stock of the Corporation may be issued from time to time in one or more series of any number of shares, provided that the aggregate number of shares issued and not canceled in any and all such series shall not exceed the total number of shares of preferred stock hereinabove authorized.

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To the extent not prohibited by §10-35-17 of the North Dakota Publicly Traded Corporations Act, or any successor provision thereto, authority is hereby vested in the Board of Directors from time to time to authorize the issuance of one or more series of preferred stock and, in connection with the creation of such series, to fix by resolution or resolutions providing for the issuance of shares thereof the characteristics of each such series including, without limitation, the following:

	1.		the maximum number of shares to constitute such series, which may subsequently be increased or decreased (but not below the number of shares of that series then outstanding) by resolution of the Board of Directors, the distinctive designation thereof and the stated value thereof if different than the par value thereof;

	2.		whether the shares of such series shall have voting powers, full or limited, or no voting powers, and if any, the terms of such voting powers, except that in no instance may any shares of any series be granted or have cumulative voting rights;

	3.		the dividend rate, if any, on the shares of such series, the conditions and dates upon which such dividends shall be payable, the preference or relation which such dividends shall bear to the dividends payable on any other class or classes or on any other series of capital stock and whether such dividend shall be cumulative or noncumulative;

	4.		whether the shares of such series shall be subject to redemption by the Corporation, and, if made subject to redemption, the times, prices and other terms, limitations, restrictions or conditions of such redemption;

	5.		the relative amounts, and the relative rights or preference, if any, of payment in respect of shares of such series, which the holders of shares of such series shall be entitled to receive upon the liquidation, dissolution or winding-up of the Corporation;

	6.		whether or not the shares of such series shall be subject to the operation of a retirement or sinking fund and, if so, the extent to and manner in which any such retirement or sinking fund shall be applied to the purchase or redemption of the shares of such series for retirement or to other corporate purposes and the terms and provisions relative to the operation thereof;

	7.		whether or not the shares of such series shall be convertible into, or exchangeable for, shares of any other class, classes or series, or other securities, whether or not issued by the Corporation, and if so convertible or exchangeable, the price or prices or the rate or rates of conversion or exchange and the method, if any, of adjusting same;

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	8.		the limitations and restrictions, if any, to be effective while any shares of such series are outstanding upon the payment of dividends or the making of other distributions on, and upon the purchase, redemption or other acquisition by the Corporation of, the Common Stock (as defined below) or any other class or classes of stock of the Corporation ranking junior to the shares of such series either as to dividends or upon liquidation, dissolution or winding-up;

	9.		the conditions or restrictions, if any, upon the creation of indebtedness of the Corporation or upon the issuance of any additional stock (including additional shares of such series or of any other series or of any other class) ranking on a parity with or prior to the shares of such series as to dividends or distributions of assets upon liquidation, dissolution or winding-up; and

	10.		any other preference and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions thereof, as shall not be inconsistent with law, this ARTICLE FIFTH or any resolution of the Board of Directors pursuant hereto.

II.

Common Stock

	A.		To the extent not prohibited by §10-35-17 of the North Dakota Publicly Traded Corporations Act, or any successor provision thereto, Common Stock of the Corporation may be issued from time to time in any number of shares, provided that the aggregate number of shares issued and not canceled shall not exceed the total number of shares of Common Stock hereinabove authorized.

	B.		Unless expressly provided by the Board of Directors of the Corporation in fixing the voting rights of any series of Preferred Stock, the holders of the outstanding shares of Common Stock shall exclusively possess all voting power for the election of directors and for all other purposes, each holder of record of shares of Common Stock being entitled to one vote for each share of such stock standing in his name on the books of the Corporation. No shares of Common Stock shall have cumulative voting rights.

	C.		Subject to the prior rights of the holders of Preferred Stock now or hereafter granted pursuant to this ARTICLE FIFTH, the holders of Common Stock shall be entitled to receive, when and as declared by the Board of Directors, out of funds legally available for that purpose, dividends payable either in cash, stock or otherwise.

	D.		In the event of any liquidation, dissolution or winding-up of the Corporation, either voluntary or involuntary, after payment shall have been made in full to the holders of Preferred Stock of any amounts to which they may be entitled and subject to the rights of the holders of Preferred Stock now or hereafter granted pursuant to this ARTICLE FIFTH, the holders of Common Stock shall be entitled, to the exclusion of the holders of Preferred Stock of any and all series, to share, ratably accordingly to the number of shares of Common Stock held by them, in all remaining assets of the Corporation available for distribution to its shareholders.

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SIXTH: The name and the mailing address of the incorporator is as follows:


NAME		ADDRESS

Dale C. Davies		c/o American Railcar Industries, Inc.,
		100 Clark Street, St. Charles, MO 63301

SEVENTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and of its shareholders or any class thereof, as the case may be, it is further provided that:

1. The business of the Corporation shall be conducted by the officers of the Corporation under the supervision of the Board of Directors.

2. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. No election of directors need be by written ballot.

3. Subject to the limitations set forth in these Amended and Restated Articles of Incorporation, the Board of Directors of the Corporation and the shareholders of the Corporation may adopt, amend or repeal the Bylaws of the Corporation in the manner provided in the Bylaws, in accordance with Section 10-19.1-31 of the North Dakota Business Corporations Act, or any successor provision thereto, and Section 10-35-05 of the North Dakota Publicly Traded Corporations Act, or any successor provision thereto.

4. The Corporation shall not, other than by an amendment to these Amended and Restated Articles of Incorporation duly adopted by the shareholders of the Corporation, adopt or approve any “rights plan,” “poison pill” or other similar plan, agreement or device designed to prevent or make more difficult a hostile takeover of the Corporation by increasing the cost to a potential acquirer of such a takeover either through the issuance of new rights, shares of common stock or preferred stock or any other security or device that may be issued to shareholders of the Corporation other than all shareholders of the Corporation that carry severe redemption provisions, favorable purchase provisions or otherwise.

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EIGHTH: No director shall be personally liable to the Corporation or its shareholders for monetary damages for any breach of fiduciary duty by such director as a director. Notwithstanding the foregoing sentence, a director shall be liable to the extent provided by applicable law (i) for breach of the director’s duty of loyalty to the Corporation or its shareholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) under Section 10-19.1-95 of the North Dakota Business Corporations Act or Section 10-04-17 of the North Dakota Century Code, or any successor provisions thereto, or (iv) for any transaction from which the director derived an improper personal benefit. No amendment to or repeal of this ARTICLE EIGHTH shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal.

NINTH: The Corporation may, to the fullest extent permitted by the Corporation Laws of the State of North Dakota, as the same may be amended and supplemented, indemnify any and all persons whom it shall have power to indemnify thereunder from and against any and all of the expenses, liabilities or other matters referred to or covered therein, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which a person indemnified may be entitled under any Bylaw, agreement, vote of shareholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

TENTH: Provisions Relating to the Founding Shareholders.

1. Founding Shareholders. In anticipation that Carl C. Icahn, entities controlled by him (collectively with Carl C. Icahn, and as further defined below, the “Founding Shareholders”) and the Corporation may engage, directly or indirectly, in the same or similar activities or lines of business and have an interest in the same areas of corporate opportunities, and in recognition of the benefits to be derived by the Corporation through its continued contractual, corporate and business relations with the Founding Shareholders (including potential service of officers, directors, members, shareholders, partners or employees of the Founding Shareholders as officers, directors and employees of the Corporation), the provisions of this ARTICLE TENTH are set forth to regulate, define and guide, to the fullest extent permitted by the Corporation Laws of the State of North Dakota, the conduct of certain affairs of the Corporation as they may involve the Founding Shareholders and their respective officers, directors, members, partners, shareholders and employees and the powers, rights and duties of the Corporation and the Founding Shareholders and their respective officers, directors, members, partners, shareholders and employees in connection therewith. The following provisions shall be applicable to the maximum extent permitted by applicable provisions of North Dakota law.

2. Competition and Corporate Opportunities. None of the Founding Shareholders or any director, officer, member, partner, shareholder or employee of any Founding Shareholder (each, acting in such capacity, a “ Specified Party ”), independently or with others, shall have any duty to refrain from engaging directly or indirectly in the same or similar business activities or lines of business as the Corporation and that might be in direct or indirect competition with the Corporation. In the event that any Founding Shareholder or Specified Party acquires knowledge of a potential transaction or matter that may be a corporate opportunity for any Founding Shareholder or Specified Party, as applicable, and the Corporation, none of the Founding Shareholders or Specified Parties shall have any duty to communicate or offer such corporate opportunity to the Corporation, and any Founding Shareholder and Specified Party shall be entitled to pursue or acquire such corporate opportunity for itself or to direct such corporate opportunity to another person or entity and the Corporation shall have no right in or to such corporate opportunity or to any income or proceeds derived therefrom.

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3. Allocation of Corporate Opportunities.

a. To the maximum extent permitted by applicable North Dakota law, in the event that a director, officer or employee of the Corporation who is also a Founding Shareholder or Specified Party acquires knowledge of a potential transaction or matter that may be a corporate opportunity or otherwise is then exploiting any corporate opportunity, subject to Section 3(b) of this ARTICLE TENTH, the Corporation shall have no interest in such corporate opportunity and no expectation that any corporate opportunity be offered to the Corporation, any such interest or expectation being hereby renounced, so that, as a result of such renunciation, and for the avoidance of doubt, such Founding Shareholder or Specified Party (i) shall have no duty to communicate or present such corporate opportunity to the Corporation, (ii) shall have the right to hold any such corporate opportunity for its own account or to recommend, sell, assign or transfer such corporate opportunity to persons other than the Corporation and (iii) shall not breach any fiduciary duty to the Corporation by reason of the fact that such Founding Shareholder or Specified Party pursues or acquires any such corporate opportunity for itself or directs, sells, assigns or transfers such corporate opportunity to another person or does not communicate information regarding such corporate opportunity to the Corporation.

b. Notwithstanding the provisions of Sections 2 and 3(a) of this ARTICLE TENTH, the Corporation does not renounce any interest or expectation it may have in any corporate opportunity that is offered to any Founding Shareholder or Specified Party, if such opportunity is expressly offered to such Founding Shareholder or Specified Party solely in, and as a direct result of, his or her capacity as a director, officer or employee of the Corporation.

c. No amendment or repeal of this Section 3 of this ARTICLE TENTH shall apply to or have any effect on the liability or alleged liability of any Founding Shareholder or Specified Party for or with respect to any corporate opportunity of which such Founding Shareholder or Specified Party becomes aware prior to such amendment or repeal.

4. Certain Matters Deemed Not Corporate Opportunities. In addition to and notwithstanding the foregoing provisions of this ARTICLE TENTH, a corporate opportunity shall not be deemed to belong to the Corporation, and the Corporation hereby renounces any interest therein, if it is a business opportunity that the Corporation is not financially able, contractually permitted or legally able to undertake, or that is, from its nature, not in the line of the Corporation’s business or is of no practical advantage to it or that is one in which the Corporation has no interest or reasonable expectation.

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5. Certain Definitions . For purposes of this ARTICLE TENTH only, (i) the term “ Corporation ” shall mean the Corporation and all corporations, limited liability companies, partnerships, joint ventures, associations and other entities in which the Corporation beneficially owns (directly or indirectly) fifty percent (50%) or more of the outstanding voting stock, voting power or similar voting interests, except that for purposes of determining those persons who are directors of the Corporation, such term shall mean the Corporation without regard to any other entities in which it may hold an interest, and (ii) the term “ Founding Shareholder ” shall mean a Founding Shareholder and all corporations, limited liability companies, partnerships, joint ventures, associations and other entities (other than the Corporation) in which such Founding Shareholder beneficially owns (directly or indirectly) fifty percent (50%) or more of the outstanding voting stock, voting power or similar interests and shall also include those entities that constitute its corporate members or partners.

6. Expiration of Certain Provisions. Notwithstanding anything in these Amended and Restated Articles of Incorporation to the contrary, the provisions of this ARTICLE TENTH shall expire as to any Specified Party on the date that such person ceases to be a Specified Party. Neither the alteration, amendment, change or repeal of any provision of this ARTICLE TENTH nor the adoption of any provision of these Amended and Restated Articles of Incorporation inconsistent with any provision of this ARTICLE TENTH shall eliminate or reduce the effect of this ARTICLE TENTH in respect of any matter occurring, or any cause of action, suit or claim that, but for this ARTICLE TENTH, would accrue or arise prior to such alteration, amendment, repeal or adoption.

7. Deemed Notice. Any person or entity purchasing or otherwise acquiring any interest in any shares of the Corporation shall be deemed to have notice of and to have consented to the provisions of this ARTICLE TENTH.

ELEVENTH: From time to time any of the provisions of these Amended and Restated Articles of Incorporation may be amended, altered or repealed, and other provisions authorized by the Corporation Laws of the State of North Dakota at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the shareholders of the Corporation by these Amended and Restated Articles of Incorporation are granted subject to the provisions of this ARTICLE ELEVENTH.

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Exhibit 3.2

BYLAWS

AMERICAN RAILCAR INDUSTRIES, INC.

A North Dakota Publicly Traded Corporation


		Adopted: June 30, 2009

		/s/ Michael Obertop Michael Obertop, Secretary

BYLAWS

TABLE OF CONTENTS


ARTICLE I. Shareholders			1
Section 1.1 Annual Meeting			1
Section 1.2 Special Meetings			1
Section 1.3 Notice of Meeting			2
Section 1.4 Quorum			3
Section 1.5 Voting and Proxies			3
Section 1.6 Action at Meeting			3
Section 1.7 Action Without Meeting			3
Section 1.8 Voting of Shares of Certain Holders			3
Section 1.9 Shareholder Lists			4
Section 1.10 Conduct of Meetings			4
Section 1.11 Notice of Shareholder Business at Annual Meeting			5
ARTICLE II. Board of Directors			6
Section 2.1 Powers			6
Section 2.2 Number of Directors; Qualifications			6
Section 2.3 Election of Directors			6
Section 2.4 Vacancies			7
Section 2.5 Change in Size of the Board			7
Section 2.6 Tenure and Resignation			7
Section 2.7 Removal			7
Section 2.8 Meetings			8
Section 2.9 Notice of Meeting			8
Section 2.10 Agenda			8
Section 2.11 Quorum			8
Section 2.12 Action at Meeting			8
Section 2.13 Action Without Meeting			9
Section 2.14 Compensation			9
Section 2.15 Committees			9
ARTICLE III. Officers			9
Section 3.1 Enumeration			9
Section 3.2 Election			9
Section 3.3 Qualification			10
Section 3.4 Tenure			10
Section 3.5 Removal			10
Section 3.6 Resignation			10
Section 3.7 Vacancies			10
Section 3.8 President			10
Section 3.9 Vice President(s)			10
Section 3.10 Treasurer and Assistant Treasurers			10
Section 3.11 Secretary and Assistant Secretaries			11
Section 3.12 Other Powers and Duties			11


ARTICLE IV. Capital Stock			11
Section 4.1 Shares of Stock			11
Section 4.2 Transfers			12
Section 4.3 Record Holders			12
Section 4.4 Record Date			12
Section 4.5 Transfer Agent and Registrar for Shares of Corporation			13
Section 4.6 Loss of Certificates			14
Section 4.7 Restrictions on Transfer			14
Section 4.8 Multiple Classes of Stock			14
ARTICLE V. Distribution and Dividends			14
Section 5.1 Declaration of Distribution and Dividends			14
Section 5.2 Reserves			14
ARTICLE VI. Powers of Officers to Contract with the Corporation			15
ARTICLE VII. Indemnification			15
Section 7.1 Indemnification			15
Section 7.2 Determination Of Indemnification			16
Section 7.3 Right To Indemnification			16
Section 7.4 Advance Of Expenses			16
Section 7.5 Indemnification Not Exclusive			16
Section 7.6 Insurance			17
Section 7.7 Continuity			17
ARTICLE VIII. Miscellaneous Provisions			17
Section 8.1 Articles of Incorporation			17
Section 8.2 Fiscal Year			17
Section 8.3 Corporate Seal			17
Section 8.4 Execution of Instruments			17
Section 8.5 Voting of Securities			17
Section 8.6 Evidence of Authority			17
Section 8.7 Corporate Records			18
Section 8.8 Charitable Contributions			18
Section 8.9 Communications of Notices			18
Section 8.10 Electronic Transmissions			18
ARTICLE IX. Amendments			18
Section 9.1 Amendments by the Board of Directors			18
Section 9.2 Amendments by the Shareholders			18

BYLAWS

AMERICAN RAILCAR INDUSTRIES, INC.

ARTICLE I.
Shareholders

Section 1.1 Annual Meeting .

(a) Unless directors are elected by written consent in lieu of an annual meeting of the shareholders, the annual meeting of the shareholders of the corporation shall be held on such date and at such time and place within or without the State of North Dakota as shall be fixed by the Board of Directors, but in no event shall such annual meeting be held later than one hundred and eighty (180) days following the end of the prior fiscal year of the corporation. The Board may, in its sole discretion, determine that the annual meeting of shareholders shall not be held at any place, but may instead be held solely by means of remote communication as authorized by the North Dakota Business Corporation Act (the “BCA”). The meeting shall be held for the purpose of electing directors and for the transaction of such other business as may properly be brought before the meeting by the Board of Directors or the shareholders. If the day fixed for the annual meeting shall fall on a legal holiday, the meeting shall be held on the next succeeding day not a legal holiday. If the annual meeting is omitted on the day herein provided, a special meeting may be held in place thereof, and any business transacted at such special meeting in lieu of the annual meeting shall have the same effect as if transacted or held at the annual meeting.

(b) The committee of the Board of Directors that has authority to set the compensation of executive officers of the corporation or, if no such committee, the entire Board of Directors (the “Compensation Committee”) must report to the shareholders at each annual meeting on the compensation of the corporation’s executive officers. The shareholders that are entitled to vote for the election of directors of the corporation shall also be entitled to vote, on an advisory basis, at each annual meeting on whether they accept the report of the Compensation Committee.

Section 1.2 Special Meetings . Special meetings of the shareholders, for any purpose or purposes, may be called by the Chairman of the Board, the President of the corporation, two or more directors, or upon the demand of shareholders owning beneficially ten percent (10%) or more of the voting power of all shares entitled to vote on each issue proposed to be considered at such special meeting. Such request shall state the purpose or purposes of the proposed meeting. Special meetings of the shareholders shall be held at such time, date and place within or without the State of North Dakota as may be designated in the notice of such meeting, subject to the provisions of the BCA and the North Dakota Publicly Traded Corporations Act (the “PTCA” and, collectively with the BCA, the “North Dakota Corporation Laws”). The Board may, in its sole discretion, determine that a special meeting of shareholders shall not be held at any place, but may instead be held solely by means of remote communication as authorized by the BCA.

Section 1.3 Notice of Meeting .

(a) A written notice stating the place, if any, date, and hour of each meeting of the shareholders, the means of remote communication, if any, by which shareholders and proxy holders may be deemed present in person and vote at such meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered to each shareholder entitled to vote at such meeting, and to each shareholder who, under the Articles of Incorporation or these Bylaws, is entitled to such notice, by delivering such notice to such person or leaving it at their residence or usual place of business, or by mailing it, postage prepaid, and addressed to such shareholder at his address as it appears upon the books of the corporation, or by giving notice by electronic transmission as permitted by Section 8.10 of these Bylaws, at least ten (10) days and not more than fifty (50) days before the meeting. Such notice and the effective date thereof shall be determined as provided by the North Dakota Corporation Laws. Such notice shall be given by the Secretary, an Assistant Secretary, or any other officer or person designated either by the Secretary or by the person or persons calling the meeting.

The requirement of notice to any shareholder may be waived (i) by a written waiver of notice, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether executed or transmitted before, during or after the meeting by the shareholder or his attorney thereunto duly authorized, and filed with the records of the meeting, (ii) if communication with such shareholder is unlawful, (iii) by attendance at the meeting without, subject to the provisions of the BCA, or (iv) as otherwise permitted by law. A waiver of notice or electronic transmission of any regular or special meeting of the shareholders need not specify the business to be transacted or the purposes of the meeting unless so required by the Articles of Incorporation or these Bylaws.

If a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place, if any, thereof, and the means of remote communications, if any, by which shareholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken, except that, if the adjournment is for more than one hundred twenty (120) days, or if after the adjournment a new record date is fixed for the adjourned meeting, then notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting. At the adjourned meeting, the corporation may transact any business that might have been transacted at the original meeting. Notwithstanding anything to the contrary herein, to be effective any adjournment must comply with the provisions of the PTCA.

(b) In the case of an annual meeting of shareholders, the date of such meeting shall, in accordance with the provisions of the PTCA, be announced by the corporation in the body of a public filing with the Securities and Exchange Commission (the “SEC”) pursuant to Section 13, 14 of 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) (such announcement, the “Public Notice of Meeting”) for a shareholder to be required to provide advance notice of an intention to propose business at such annual meeting.

Section 1.4 Quorum . The holders of a majority of the voting power of the shares entitled to vote on the item of business, or in the case of a class or series entitled to vote as a separate group, a majority of the voting power of the outstanding shares of the class or series, represented in person or by proxy, shall constitute a quorum for the transaction of business at any meeting of the shareholders. Subject to the provisions of Section 1.3 of these Bylaws, any meeting may be adjourned from time to time by a majority of the votes properly cast upon the question, whether or not a quorum is present.

Section 1.5 Voting and Proxies . Shareholders shall have one vote for each share of stock entitled to vote owned by them of record according to the books of the corporation, unless otherwise provided by law or by the Articles of Incorporation. Shareholders may vote either in person or by written proxy, but no proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. Proxies shall be filed with the secretary of the meeting, or of any adjournment thereof. Except as otherwise limited therein or by the terms of the North Dakota Corporation Laws, proxies shall entitle the persons authorized thereby to vote at any adjournment of such meeting. A proxy purporting to be executed by or on behalf of a shareholder shall be deemed valid unless challenged at or prior to its exercise and the burden of proving invalidity shall rest on the challenger. A proxy with respect to stock held in the name of two or more persons shall be valid if executed by one of them unless at or prior to exercise of the proxy the corporation receives a specific written notice to the contrary from any one of them.

Section 1.6 Action at Meeting . When a quorum is present at any meeting, a majority of the votes properly cast upon any question, including without limitation for the election of a director(s), shall decide such question, except where a larger vote is required by law, or the Articles of Incorporation or these Bylaws to the extent not otherwise prohibited by the North Dakota Corporation Laws. Shareholders shall not have any rights to vote cumulatively. No ballot shall be required for any election unless requested by a shareholder present or represented at the meeting and entitled to vote in the election. The shareholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum.

Section 1.7 Action Without Meeting . Any action required or permitted to be taken at any meeting of the shareholders may be taken without a meeting without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the shareholders who own voting power equal to the voting power that would be required to take such action at a meeting of the shareholders at which all shareholders were present and copies are delivered to the corporation and its shareholders in the manner prescribed by law.

Section 1.8 Voting of Shares of Certain Holders . Shares of stock of the corporation standing in the name of another corporation, domestic or foreign, may be voted by such officer, agent, or proxy as the bylaws of such corporation may prescribe, or, in the absence of such provision, as the Board of Directors of such corporation may determine.

Shares of stock of the corporation standing in the name of a deceased person, a minor ward or an incompetent person may be voted by his administrator, executor, court-appointed guardian or conservator without a transfer of such shares into the name of such administrator, executor, court appointed guardian or conservator. Shares of capital stock of the corporation standing in the name of a trustee or fiduciary may be voted by such trustee or fiduciary.

Shares of stock of the corporation standing in the name of a receiver may be voted by such receiver, and shares held by or under the control of a receiver may be voted by such receiver without the transfer thereof into his name if authority to do so is contained in an appropriate order of the court by which such receiver was appointed.

A shareholder whose shares are pledged shall be entitled to vote such shares unless in the transfer by the pledgor on the books of the corporation he expressly empowered the pledgee to vote thereon, in which case only the pledgee or its proxy shall be entitled to vote the shares so transferred.

Shares of its own stock belonging to this corporation shall not be voted, directly or indirectly, at any meeting and shall not be counted in determining the total number of outstanding shares at any given time, but shares of its own stock held by the corporation in a fiduciary capacity may be voted and shall be counted in determining the total number of outstanding shares.

Section 1.9 Shareholder Lists . After a record date for notice of and voting at a meeting has been fixed, the Secretary (or the corporation’s transfer agent or other person authorized by these Bylaws or by law) shall prepare and make available, beginning two (2) business days after notice is given of a shareholder meeting, a complete list of the shareholders entitled to notice and to vote at the meeting, arranged in alphabetical order and showing the address of each shareholder and the number of shares each shareholder is entitled to vote at the meeting. The corporation shall not be required to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any shareholder with voting rights as well as such shareholder’s agent or attorney, for any purpose germane to the meeting for the period beginning two (2) business days after notice is given of a shareholder meeting and continuing through the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting or (ii) during ordinary business hours at the corporation’s principal executive office. In the event that the corporation determines to make the list available on an electronic network, the corporation may take reasonable steps to ensure that such information is available only to shareholders of the Corporation (or their agents or attorneys). If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any shareholder (or his agents or attorneys) who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any shareholder (or his agents or attorneys) during the whole time of the meeting on a reasonably accessible network, and the information required to access such list shall be provided with the notice of the meeting.

Section 1.10 Conduct of Meetings . The Chairman of the Board, who may not also serve as an executive officer of the corporation, or, in his absence, the Vice Chairman of the Board, if any, who may not also serve as an executive officer of the corporation, or the President or other officer designated by the Chairman, shall preside at all regular or special meetings of shareholders. Subject to the North Dakota Corporation Laws, such presiding person shall have the power to set procedural rules, including but not limited to rules respecting the time allotted to shareholders to speak, governing all aspects of the conduct of such meetings.

Section 1.11 Notice of Shareholder Business at Annual Meeting .

(a) At an annual meeting of the shareholders, only such business shall be conducted as shall have been brought before the meeting (i) pursuant to the corporation’s notice of meeting, (ii) by or at the direction of a majority of the members of the Board of Directors, or (iii) by any shareholder of the corporation who is a shareholder of record at the time of giving of notice provided for in paragraph (b) of this Section 1.11, who shall be entitled to vote at such meeting, and who complies with the notice procedures set forth in paragraph (b) of this Section 1.11.

(b) For business to be properly brought before an annual meeting by a shareholder, including, without limitation, the nomination of a person or persons for election to the Board of Directors, pursuant to clause (iii) of paragraph (a) of this Section 1.11, the shareholder must have given timely notice thereof in writing to the Secretary of the corporation at the corporation’s principal place of business. To be timely, a shareholder’s notice must be delivered to or mailed and received at the principal executive offices of the corporation (A) no later than the later of ninety (90) days prior to the first anniversary of the preceding year’s annual meeting or twenty-five (25) days after the date of the Public Notice of Meeting, and (B) no earlier than one hundred twenty (120) days prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the meeting is changed by more than five (5) days from such anniversary date, notice by the shareholder to be timely must be received no later than the later of ninety (90) days prior to the meeting or twenty-five (25) days after the date of the Public Notice of Meeting.

(c) A shareholder’s notice to the Secretary with respect to business to be brought at an annual meeting shall set forth (1) the name of the shareholder or beneficial owner, (2) a statement that the shareholder or beneficial owner is the beneficial owner of one or more shares in the corporation and reasonable evidence of that ownership, and (3) the general nature of the business to be proposed.

(d) If the business to be submitted by a shareholder is the nomination of a person or persons for election to the Board of Directors then such shareholder’s notice must set forth, in addition to items (1) and (2) in the previous paragraph, the number of candidates that the shareholder or beneficial owner intends to nominate.

(e) If a “qualified shareholder,” as defined in paragraph 8 of Section 10-35-02 of the PTCA or any successor provision thereto, provides notice of an intention to nominate one or more candidates for election to the Board of Directors that satisfies paragraphs (b), (c) and (d) of this Section, as applicable, and also includes: (i) the name of the person or the names of the members of the group comprising such qualified shareholder; (ii) a statement that the person or group satisfies the definition of a qualified shareholder under the PTCA and reasonable evidence of the required ownership of shares by the person or group; (iii) a statement that the person or group does not have knowledge that the candidacy or, if elected, board membership of any of its nominees would violate controlling state or federal law or rules other than rules regarding director independence of a national securities exchange or national securities association applicable to the corporation; (iv) the information regarding each nominee that is required to be included in the corporation’s proxy statement by the rules and regulations adopted by the SEC under the Exchange Act; (v) a statement from each nominee that the nominee consents to be named in the corporation’s proxy statement and form of proxy and, if elected, to serve on the Board of Directors of the corporation, for inclusion in the corporation’s proxy statement; and (vi) if desired, a statement not longer than five hundred (500) words (without counting the information required in (i)-(v) above) supplied by the qualified shareholder in support of each nominee (the “Supporting Statement”), the corporation shall include the name of each nominee and the Supporting Statement, if any, in the corporation’s proxy statement and shall make provision for shareholders to vote on each such nominee on the form of proxy solicited on behalf of the corporation.

(f) Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at an annual meeting except in accordance with the procedures set forth in this Section 1.11. The presiding officer of an annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting and in accordance with the procedures prescribed by these Bylaws and, if he should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted, subject to the North Dakota Corporation Laws. Notwithstanding the foregoing provisions of this Section 1.11, shareholders shall also comply with all applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder with respect to matters set forth in this Section 1.11. Whether or not the procedures in these Bylaws are followed, no matter that is not a proper matter for shareholder consideration shall be brought before the meeting. Nothing in this Section 1.11 shall be deemed to affect any rights of shareholders to request inclusion of proposals or nominations in the corporation’s proxy statement pursuant to the applicable rules and regulations promulgated under the Exchange Act.

ARTICLE II.
Board of Directors

Section 2.1 Powers . Except as reserved to the shareholders by law, by the Articles of Incorporation or by these Bylaws, the business of the corporation shall be managed under the direction of the Board of Directors, who shall have and may exercise all of the powers of the corporation. In particular, and without limiting the foregoing, the Board of Directors shall have the power, subject to the PTCA, to issue or reserve for issuance from time to time the whole or any part of the capital stock of the corporation that may be authorized from time to time to such person, for such consideration and upon such terms and conditions as they shall determine, including the granting of options, warrants or conversion or other rights to stock.

Section 2.2 Number of Directors; Qualifications . The Board of Directors shall consist of such number of directors (which shall not be less than three or less than the number of shareholders, if less than three) as shall be fixed initially by the incorporator(s) and thereafter by the Board of Directors from time to time. No director need be a shareholder.

Section 2.3 Election of Directors .

(a) The initial Board of Directors shall be designated in the Articles of Incorporation, or if not so designated, elected by the incorporator(s) at the first meeting thereof. Thereafter, directors shall be elected by the shareholders at their annual meeting or at any special meeting the notice of which specifies the election of directors as an item of business for such meeting.

(b) In any election of directors, each share entitled to vote on the election of directors shall be entitled to vote for or against, or to abstain with respect to, each candidate for election. To be elected, a candidate must receive the affirmative vote of at least a majority of the votes cast for or against the candidate’s election.

(c) The shareholders of the corporation may act by written consent to elect directors, but the consent will be in lieu of the annual meeting of the shareholders only if (i) the election by consent takes effect within the one hundred twenty (120) day period before the anniversary date of the most recent annual meeting; and (ii) the full Board of Directors is elected by the consent.

(d) The Board of Directors shall appoint a Chairman of the Board who shall preside at meetings of the Board of Directors and shall perform such duties and possess such powers as are assigned to him by the Board of Directors. The Chairman of the Board may not serve as an executive officer of the corporation.

Section 2.4 Vacancies . In the case of any vacancy in the Board of Directors from death, resignation, removal, disqualification or other cause, including a vacancy resulting from enlargement of the Board, the election of a director to fill such vacancy shall be by vote of a majority of the directors then in office, whether or not constituting a quorum, or by the shareholders. The director thus elected shall hold office until the election of his successor. Notwithstanding the foregoing, an individual who is not elected under Section 2.3(b) of these Bylaws may not be appointed by the Board of Directors to fill a vacancy on the Board of Directors at any time thereafter, unless the individual is subsequently elected as a director by the shareholders.

Section 2.5 Change in Size of the Board . The number of the Board of Directors may be changed by vote of a majority of the directors then in office, except that the number of directors shall not be changed at a time when (i) the Board of Directors has notice that there will be a contested election of directors at the next regular or special meeting of shareholders; or (ii) the shareholders do not have the right to nominate candidates for election at the next regular meeting of the shareholders under Section 1.11 above.

Section 2.6 Tenure and Resignation . Except as otherwise provided by law, by the Articles of Incorporation or by these Bylaws, directors shall hold office until the earlier of one year or the next annual meeting of shareholders, and thereafter until their successors are chosen and qualified. Any director may resign by delivering or mailing postage prepaid a written resignation to the corporation at its principal office or to the Chairman of the Board, if any, the President, Secretary or Assistant Secretary, if any. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.

Section 2.7 Removal . All or any number of the directors may be removed, with or without cause, at a meeting expressly called for that purpose by a vote of the holders of the majority of the shares then entitled to vote at an election of directors or, in accordance with the North Dakota Corporation Laws, by a majority of the remaining directors.

Section 2.8 Meetings . Regular meetings of the Board of Directors may be held without call or notice at such times and such places within or without the State of North Dakota as the Board may, from time to time, determine, provided that notice of the first regular meeting following any such determination shall be given to directors absent from such determination. A regular meeting of the Board of Directors shall be held without notice immediately after, and at the same place as, the annual meeting of the shareholders or the special meeting of the shareholders held in place of such annual meeting, unless a quorum of the directors is not then present. Special meetings of the Board of Directors may be held at any time and at any place designated in the call of the meeting when called by the Chairman of the Board, the Vice Chairman of the Board, if any, the President, or a majority of the directors. Members of the Board of Directors or any committee elected thereby may participate in a meeting of such Board or committee by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time, and participation by such means shall constitute presence in person at the meeting.

Section 2.9 Notice of Meeting . It shall be sufficient notice to a director to send or give notice (i) by mail at least seventy-two (72) hours before the meeting addressed to such person at his usual or last known business or residence address or (ii) in person, by telephone, facsimile or electronic transmission to the extent provided in Section 2.10 of these Bylaws, at least twenty-four (24) hours before the meeting. Notice shall be given by or upon the direction of the Secretary, or in his absence or unavailability, may be given by or upon the direction of any Assistant Secretary, if any, or by the officer or directors calling the meeting. The requirement of notice to any director may be waived by a written waiver of notice signed by the person entitled to notice or a waiver by electronic transmission by the person entitled to notice, executed or transmitted by such person before or after the meeting or meetings, and filed with the records of the meeting, or by attendance at the meeting without protesting prior thereto or at its commencement the lack of notice. A notice or waiver of notice or any waiver of electronic transmission of a directors’ meeting need not specify the purposes of the meeting.

Section 2.10 Agenda . Any lawful business may be transacted at a meeting of the Board of Directors, notwithstanding the fact that the nature of the business may not have been specified in the notice or waiver of notice of the meeting.

Section 2.11 Quorum . At any meeting of the Board of Directors, a majority of the directors then in office shall constitute a quorum for the transaction of business. Any meeting may be adjourned by a majority of the votes cast upon the question, whether or not a quorum is present, and the meeting may be held as adjourned without further notice.

Section 2.12 Action at Meeting . Any motion adopted by vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, except where a different vote is required by law or by the Articles of Incorporation or these Bylaws. The assent in writing of any director to any vote or action of the directors taken at any meeting, whether or not a quorum was present and whether or not the director had or waived notice of the meeting, shall have the same effect as if the director so assenting was present at such meeting and voted in favor of such vote or action.

Section 2.13 Action Without Meeting . Any action required or permitted to be taken at any meeting of the Board, or any committee thereof, may be taken without a meeting if all of the members of the Board or committee, as the case may be, consent to the action in writing or by electronic transmission and the writing(s) or electronic transmission(s) are filed with the minutes of proceedings of the Board or committee. Such filing shall be in paper form if the minutes are in paper form and shall be in electronic form if the minutes are maintained in electronic form. Such consent shall be treated for all purposes as a vote of the Board or committee, as the case may be, at a meeting.

Section 2.14 Compensation . By resolution of the Board of Directors, each director may either be reimbursed for his expenses, if any, for attending each meeting of the Board of Directors or may be paid a fixed fee for attending each meeting of the Board of Directors, or both. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor.

Section 2.15 Committees . The Board of Directors may, by the affirmative vote of a majority of the directors then in office, appoint an executive committee or other committees consisting of one or more directors and may by vote delegate to any such committee some or all of their powers except those which by law, the Articles of Incorporation or these Bylaws they may not delegate. In the absence or disqualification of a member of a committee, the members of the committee present and not disqualified, whether or not they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in place of the absent or disqualified member. A committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and delegate to such subcommittee any or all of the powers of the committee. Unless the Board of Directors shall otherwise provide, any such committee may make rules for the conduct of its business, but unless otherwise provided by the Board of Directors or such rules, its meetings shall be called, notice given or waived, its business conducted or its action taken as nearly as may be in the same manner as is provided in these Bylaws with respect to meetings or for the conduct of business or the taking of actions by the Board of Directors. The Board of Directors shall have power at any time to fill vacancies in, change the membership of, or discharge any such committee at any time. The Board of Directors shall have power to rescind any action of any committee, but no such rescission shall have retroactive effect.

ARTICLE III.
Officers

Section 3.1 Enumeration . The officers shall consist of a President, a Treasurer, a Secretary and such other officers and agents (including one or more Vice Presidents, Assistant Treasurers and Assistant Secretaries), as the Board of Directors may, in their discretion, determine.

Section 3.2 Election . The President, Treasurer and Secretary shall be elected annually by the directors at their first meeting following the annual meeting of the shareholders or any special meeting held in lieu of the annual meeting. Other officers may be chosen by the directors at such meeting or at any other meeting.

Section 3.3 Qualification . An officer may, but need not, be a director or shareholder. Any two or more offices may be held by the same person. Notwithstanding the foregoing, the Chairman of the Board may not serve as an executive officer of the corporation. Any officer may be required by the directors to give bond for the faithful performance of his duties to the corporation in such amount and with such sureties as the directors may determine. The premiums for such bonds may be paid by the corporation.

Section 3.4 Tenure . Except as otherwise provided by the Articles of Incorporation or these Bylaws, the term of office of each officer shall be for one year or until his successor is elected and qualified or until his earlier resignation or removal.

Section 3.5 Removal . Any officer or agent elected or appointed by the Board of Directors may be removed by the Board of Directors whenever in its judgment the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment of an officer or agent shall not of itself create contract rights.

Section 3.6 Resignation . Any officer may resign by delivering or mailing postage prepaid a written resignation to the corporation at its principal office or to the President, Secretary or Assistant Secretary, if any, and such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some event, but such resignation shall be without prejudice to the contract rights, if any, of the corporation.

Section 3.7 Vacancies . A vacancy in any office arising from any cause may be filled for the unexpired portion of the term by the Board of Directors.

Section 3.8 President . The President shall have general charge and control of the affairs of the corporation subject to the direction of the Board of Directors; sign all certificates of stock of the corporation; perform all duties required by the Bylaws of the corporation, and as may be assigned from time to time by the Board of Directors; and shall make such reports to the Board of Directors and shareholders as may be required. In addition, if no Chairman of the Board is elected by the Board or if the Chairman and Vice Chairman, if any, are unavailable, the President shall perform all the duties required of such officers by these Bylaws.

Section 3.9 Vice President(s) . The Vice President(s), if any, shall have such powers and perform such duties as the Board of Directors may from time to time determine. In the event there is more than one Vice President, the Board of Directors may designate one or more of the Vice Presidents as Executive Vice Presidents, who shall perform such duties as shall be assigned by the Board of Directors.

Section 3.10 Treasurer and Assistant Treasurers . The Treasurer, subject to the direction and under the supervision and control of the Board of Directors, shall have general charge of the financial affairs of the corporation. The Treasurer shall have custody of all funds, securities and valuable papers of the corporation, except as the Board of Directors may otherwise provide. The Treasurer shall keep or cause to be kept full and accurate records of account that shall be the property of the corporation, and which shall be always open to the inspection of each elected officer and director of the corporation. The Treasurer shall deposit or cause to be deposited all funds of the corporation in such depository or depositories as may be authorized by the Board of Directors. The Treasurer shall have the power to endorse for deposit or collection all notes, checks, drafts, and other negotiable instruments payable to the corporation. The Treasurer shall perform such other duties as are incidental to the office, and such other duties as may be assigned by the Board of Directors. Assistant Treasurers, if any, shall have such powers and perform such duties as the Board of Directors may from time to time determine.

Section 3.11 Secretary and Assistant Secretaries . The Secretary shall record, or cause to be recorded, all proceedings of the meetings of the shareholders and directors (including committees thereof) in the book of records of this corporation. The record books shall be open at reasonable times to the inspection of any shareholder, director, or officer. The secretary shall notify the shareholders and directors, when required by law or by these Bylaws, of their respective meetings, sign all certificates of stock of the corporation, make such reports to the Board of Directors and shareholders as may be required and shall perform such other duties as the directors and shareholders may from time to time prescribe. The Secretary shall have the custody and charge of the corporate seal, if any, and shall affix the seal of the corporation to all instruments requiring such seal, and shall certify under the corporate seal the proceedings of the directors and of the shareholders, when required. In the absence of the Secretary at any such meeting, a temporary secretary shall be chosen who shall record the proceedings of the meeting in the aforesaid books. Assistant Secretaries, if any, shall have such powers and perform such duties as the Board of Directors may from time to time designate.

Section 3.12 Other Powers and Duties . Subject to these Bylaws and to such limitations as the Board of Directors may from time to time prescribe, the officers of the corporation shall each have such powers and duties as generally pertain to their respective offices, as well as such powers and duties as from time to time may be conferred by the Board of Directors.

ARTICLE IV.
Capital Stock

Section 4.1 Shares of Stock . The shares of stock of the corporation shall be evidenced by an entry in the stock transfer books of the corporation and shall be represented by a stock certificate, unless and until the Board of Directors of the corporation adopts a resolution permitting shares to be uncertificated. Notwithstanding the adoption of any such resolution providing for uncertificated shares, every holder of shares theretofore represented by certificates and, upon request, every holder of uncertificated shares, shall be entitled to have a certificate representing the number of shares of the capital stock of the corporation owned by such holder in such form as shall, in conformity to law, be prescribed from time to time by the Board of Directors. Certificates shall be consecutively numbered by class, shall be signed by the President or one of the Vice Presidents, and the Secretary or an Assistant Secretary or such other officers designated by the Board of Directors from time to time as permitted by law, shall bear the seal of the corporation, if any, and shall express on its face its number, date of issue, class, the number of shares for which, and the name of the holder to whom, it is issued. The corporate seal and any or all of the signatures of corporation officers may be facsimile if the stock certificate is manually counter-signed by an authorized person on behalf of a transfer agent or registrar other than the corporation or its employee. If an officer, transfer agent or registrar who has signed, or whose facsimile signature has been placed on, a certificate shall have ceased to be such before the certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the time of its issue.

Section 4.2 Transfers . Stock of the corporation shall be transferable in the manner prescribed by applicable law and in these Bylaws. Transfers of stock shall be made on the books of the corporation, and in the case of certificated shares of stock, only by the person named in the certificate or by such person’s attorney lawfully constituted in writing and upon the surrender of the certificate therefor, properly endorsed for transfer and payment of all necessary transfer taxes; or, in the case of uncertificated shares of stock, upon receipt of proper transfer instructions from the registered holder of the shares of by such person’s attorney lawfully constituted in writing, and upon payment of all necessary transfer taxes and compliance with appropriate procedures for transferring shares in uncertificated form; provided, however, that such surrender and endorsement, compliance or payment of taxes shall not be required in any case in which the officers of the corporation shall determine to waive such requirement. With respect to certificated shares of stock, every certificate exchanged, returned or surrendered to the corporation shall be marked “Canceled,” with the date of cancellation, by the Secretary or an Assistant Secretary of the corporation or the transfer agent thereof. No transfer of stock shall be valid as against the corporation for any purpose until it shall have been entered in the stock records of the corporation by an entry showing from and to whom transferred.

Section 4.3 Record Holders . Except as otherwise may be required by law, by the Articles of Incorporation or by these Bylaws, the corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect thereto, regardless of any transfer, pledge or other disposition of such stock, until the shares have been transferred on the books of the corporation in accordance with the requirements of these Bylaws. It shall be the duty of each shareholder to notify the corporation of his post office address.

Section 4.4 Record Date . In order that the corporation may determine the shareholders entitled to: (a) notice of or to vote at any meeting of shareholders or any adjournments thereof, (b) express consent to corporate action in writing without a meeting, (c) receive payment of any dividend or other distribution or allotment of any rights, or (d) exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which date shall not precede the date on which the resolution fixing the record date is adopted by the Board of Directors and which record date: (i) in the case of determination of shareholders entitled to vote at any meeting of the shareholders or adjournment thereof, shall, unless otherwise required by law, not be more than fifty (50) nor less than ten (10) days before the date of such meeting; (ii) in the case of determination of shareholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board; and (iii) in the case of any other action, shall not be more than fifty (50) days prior to such other action.

If no record date is fixed:

	•		the record date for determining shareholders entitled to receive notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held;

	•		the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by law, shall be the day on which the first written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board is required by law shall be at the close of business on the day on which the Board adopts the resolution taking such prior action; and

	•		the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.

Section 4.5 Transfer Agent and Registrar for Shares of Corporation . The Board of Directors may appoint a transfer agent or registrar or both and may require all certificates of stock to bear the signature of either or both. Any transfer agent so appointed shall maintain, among other records, a shareholders’ ledger, setting forth the names and addresses of the holders of all issued shares of stock of the corporation, the number of shares held by each and, in the case of certificated shares of stock, the certificate numbers and the date of issue of any certificates representing such shares. Any registrar so appointed shall maintain, among other records, a share register, setting forth the total number of shares of each class of shares that the corporation is authorized to issue and the total number of shares actually issued. The shareholders’ ledger and the share register are hereby identified as the stock transfer books of the corporation; but as between the shareholders’ ledger and the share register, the names and addresses of shareholders, as they appear on the shareholders’ ledger maintained by the transfer agent shall be the official list of shareholders of record of the corporation. The name and address of each shareholder of record, as they appear upon the shareholders’ ledger, shall be conclusive evidence of who are the shareholders entitled to receive notice of the meetings of shareholders, to vote at such meetings, to examine a complete list of the shareholders entitled to vote at meetings, and to own, enjoy and exercise any other property or rights deriving from such shares against the corporation. Shareholders, but not the corporation, its directors, officers, agents or attorneys, shall be responsible for notifying the transfer agent, in writing, of any changes in their names or addresses from time to time, and failure to do so will relieve the corporation, its other shareholders, directors, officers, agents and attorneys, and its transfer agent and registrar, of liability for failure to direct notices or other documents, or pay over or transfer dividends or other property or rights, to a name or address other than the name and address appearing in the shareholders’ ledger maintained by the transfer agent.

Section 4.6 Loss of Certificates . In case of the loss, destruction or mutilation of a certificate of stock, a replacement certificate may be issued in place thereof upon such terms as the Board of Directors may prescribe, including, in the discretion of the Board of Directors, a requirement of bond and indemnity to the corporation.

Section 4.7 Restrictions on Transfer . Any certificate representing shares of stock that are subject to any restriction on transfer, whether pursuant to law, the Articles of Incorporation, these Bylaws or any agreement to which the corporation is a party, shall have the fact of the restriction noted conspicuously on the certificate and shall also set forth on the face or back of such certificate either the full text of the restriction or a statement that the corporation will furnish a copy of the full text of the restriction to the holder of such certificate upon written request and without charge.

Section 4.8 Multiple Classes of Stock . The amount and classes of the capital stock and the par value, if any, of the shares of the corporation shall be as fixed in the Articles of Incorporation. At all times when there are two or more classes of stock, the several classes of stock shall conform to the description and the terms and have the respective preferences, voting powers, restrictions and qualifications set forth in the Articles of Incorporation and these Bylaws. Any certificate issued when the corporation is authorized to issue more than one class or series of stock shall set forth on its face or back either (i) the full text of the preferences, voting powers, qualifications and special and relative rights of the shares of each class and series authorized to be issued, or (ii) a statement of the existence of such preferences, powers, qualifications and rights and a statement that the corporation will furnish a copy thereof to the holder of such certificate upon written request and without charge.

ARTICLE V.
Distributions and Dividends

Section 5.1 Declaration of Distributions and Dividends . Except as otherwise required by law or by the Articles of Incorporation, the Board of Directors may, in its discretion, subject to and in accordance with the North Dakota Corporation Laws, declare what, if any, distributions or dividends shall be paid or issued. Distributions may be paid in cash or other property and dividends may be issued in shares of the corporation’s stock, provided that the Board of Directors may pay and issue distributions and dividends in any combination thereof. Distributions and dividends shall be payable and/or issuable upon such dates as the Board of Directors may designate. The Board of Directors may authorize a distribution only if it determines that the corporation will be able to pay its debts in the ordinary course of business after making the distribution and the Board of Directors does not know before the distribution is made that the determination was or has become erroneous.

Section 5.2 Reserves . Before the payment of any distribution and before making any distribution of profits, the Board of Directors, from time to time and in its absolute discretion, subject to and in accordance with the North Dakota Corporation Laws, shall have power to set aside out of the surplus or net profits of the corporation such sum or sums as the Board of Directors deems proper and sufficient as a reserve fund to meet contingencies or for such other purpose as the Board of Directors shall deem to be in the best interests of the corporation, and the Board of Directors may modify or abolish any such reserve.

ARTICLE VI.
Powers of Officers to Contract
with the Corporation

Any and all of the directors and officers of the corporation, notwithstanding their official relations to it, may enter into and perform any contract or agreement of any nature between the corporation and themselves, or any and all of the individuals from time to time constituting the Board of Directors of the corporation, or any firm or corporation in which any such director may be interested, directly or indirectly, whether such individual, firm or corporation thus contracting with the corporation shall thereby derive personal or corporate profits or benefits or otherwise; provided, that (i) the material facts of the contract or agreement and as to such person’s interest are fully disclosed or are known to the Board of Directors or a committee thereof and the Board of Directors or committee in good faith authorizes, approves or ratifies the contract or transaction in good faith by a majority of the disinterested directors on the Board of Directors or such committee; (ii) if the material facts of the contract or agreement and as to such person’s interest are fully disclosed or are known to all shareholders, whether or not entitled to vote thereon, and the contract is approved in good faith by (A) a vote of the shareholders holding two-thirds of the voting power of the shares entitled to vote, other than shares held by the interested director(s) or (B) the unanimous affirmative vote of the holder of all outstanding shares, whether or not entitled to vote; (iii) the contract or agreement, and the person asserting the validity of the contract or agreement, is fair and reasonable as to the corporation as of the time it is authorized, approved or ratified; or (iv) as otherwise provided by law. Any director of the corporation who is interested in any transaction as aforesaid may not be counted in determining the existence of a quorum at any meeting of the Board of Directors which shall authorize or ratify any such transaction. This Article shall not be construed to invalidate any contract or other transaction which would otherwise be valid under the common or statutory law applicable thereto.

ARTICLE VII.
Indemnification

Section 7.1 Indemnification . The corporation shall indemnify to the fullest extent authorized or permitted by applicable law any person (his heirs, executors and administrators) who was or is a party or is threatened to be made a party to any threatened, pending or completed civil, criminal, administrative, arbitration, or investigative proceeding, including without limitation a proceeding by or in the right of the corporation, by reason of the fact that such person is or was a director or officer of the corporation or, while serving as a director or officer of the corporation, is or was serving at the request of the corporation as a director or officer or in any other capacity for another corporation, partnership, joint venture, trust or other enterprise, against all expenses (including attorneys’ fees), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such proceeding if, with respect to the acts or omissions of the such person, such person (i) has not been indemnified by another organization, (ii) acted in good faith, (iii) received no improper personal benefit, (iv) with respect to any criminal proceeding, had no reasonable cause to believe the conduct was unlawful, and (v) reasonably believed that the conduct was in the best interest of the corporation (or if, at the corporation’s request, such person served for another organization, reasonably believed that the conduct was not opposed to the best interest of the corporation). The termination of any proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not satisfy the criteria of the preceding sentence.

The corporation may indemnify any person who is or was an employee or agent of the corporation, or any person who is or was serving at the request of the corporation as an employee or agent or in any other capacity of another corporation, partnership, joint venture, trust or other enterprise, in the manner and to the extent that it shall indemnify any director or officer under this Section 7.1.

Section 7.2 Determination Of Indemnification . Any indemnification under Section 7.1 (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 7.1. Such determination shall be made (i) by the Board of Directors by a majority of a quorum, not counting any directors who are at the time parties to the proceeding for determining either a majority or the presence of a quorum, (ii) if a quorum under clause (i) of this Section 7.2 cannot be obtained, by a majority of a committee by a majority of a committee of the Board of Directors, consisting solely of two or more directors not at the time parties to the proceeding, duly designated to act in the matter by a majority of the full Board of Directors, including directors who are parties, (iii) by special legal counsel, or (iv) as otherwise provided by the North Dakota Corporation Laws.

Section 7.3 Right To Indemnification . Notwithstanding the other provisions of this Article VII, to the extent that a director or officer of the corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 7.1, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.

Section 7.4 Advance Of Expenses . Expenses incurred in defending a civil or criminal proceeding may be paid by the corporation on behalf of a director, officer, employee or agent in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Directors in the specific case upon (i) receipt of written affirmation by the person of a good-faith belief that the applicable criteria for indemnification have been satisfied and a written undertaking by the person to repay all amounts so paid or reimbursed by the corporation, if the ultimate determination is that the criteria for indemnification have not been satisfied, and (ii) after a determination that the facts then known to those making the determination would not preclude indemnification.

Section 7.5 Indemnification Not Exclusive . The indemnification provided by this Article VII shall not be deemed exclusive of any other rights to which any person seeking indemnification may be entitled under any law, any agreement, the Articles of Incorporation, any vote of shareholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

Section 7.6 Insurance . The corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against liability under the provisions of this Article VII.

Section 7.7 Continuity . The indemnification and advancement of expenses provided for in this Article VII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent of the corporation and shall inure to the benefit of the heirs, executors and administrators of such a person.

ARTICLE VIII.
Miscellaneous Provisions

Section 8.1 Articles of Incorporation . All references in these Bylaws to the Articles of Incorporation shall be deemed to refer to the Articles of Incorporation of the corporation, as amended and in effect from time to time.

Section 8.2 Fiscal Year . Except as from time to time otherwise provided by the Board of Directors, the fiscal year of the corporation shall end on December 31 of each year.

Section 8.3 Corporate Seal . The Board of Directors shall have the power to adopt and alter the seal of the corporation or to decide that there shall be no seal.

Section 8.4 Execution of Instruments . All deeds, leases, transfers, contracts, bonds, notes, and other obligations authorized to be executed by an officer of the corporation on its behalf shall be signed by the Chairman of the Board of Directors, the Vice Chairman of the Board of Directors, if any, the President, any Vice President, the Treasurer, or any Assistant Treasurer, except as the Board of Directors may generally or in particular cases otherwise determine.

Section 8.5 Voting of Securities . Unless the Board of Directors otherwise provides, the President or the Treasurer may waive notice of and act on behalf of this corporation, or appoint another person or persons to act as proxy or attorney in fact for this corporation with or without discretionary power and/or power of substitution, at any meeting of shareholders or shareholders of any other corporation or organization, any of whose securities are held by this corporation.

Section 8.6 Evidence of Authority . A certificate by the Secretary or any Assistant Secretary as to any action taken by the shareholders, directors or any officer or representative of the corporation shall, as to all persons who rely thereon in good faith, be conclusive evidence of such action. The exercise of any power which by law, by the Articles of Incorporation, or by these Bylaws, or under any vote of the shareholders or the Board of Directors, may be exercised by an officer of the corporation only in the event of absence of another officer or any other contingency shall bind the corporation in favor of anyone relying thereon in good faith, whether or not such absence or contingency existed.

Section 8.7 Corporate Records . The original, or attested copies, of the Articles of Incorporation, these Bylaws, records of all meetings of the incorporators and shareholders, and the stock transfer books shall be kept at an office of the corporation, or at an office of its transfer agent or of the Secretary or of the Assistant Secretary, if any. Said copies and records need not all be kept in the same office. They shall be available at all reasonable times to inspection of any shareholder for any purpose but not to secure a list of shareholders for the purpose of selling said list or copies thereof or for using the same for a purpose other than in the interest of the applicant, as a shareholder, relative to the affairs of the corporation.

Section 8.8 Charitable Contributions . The Board of Directors from time to time may authorize contributions to be made by the corporation in such amounts as it may determine to be reasonable to corporations, trusts, funds or foundations organized and operated exclusively for charitable, scientific or educational purposes, no part of the net earning of which inures to the private benefit of any shareholder or individual.

Section 8.9 Communications of Notices . Any notice required to be given under these Bylaws may be given by (i) delivery in person, (ii) mailing it, postage prepaid, first class, (iii) mailing it by nationally or internationally recognized second day or faster courier service, or (iv) electronic transmission, in each case, to the addressee; provided however that facsimile transmission or electronic transmission may only be used if the addressee has consented to such means.

Section 8.10 Electronic Transmissions . Notwithstanding any reference in these Bylaws to written instruments, all notices, meetings, proxies, consents and other communications contemplated by these Bylaws may be conducted by means of an electronic transmission, to the extent permitted by law, if specifically authorized by the Board of Directors of the corporation.

ARTICLE IX.
Amendments

Section 9.1 Amendments by the Board of Directors . Subject to (i) the provisions of the Articles of Incorporation of the corporation as in effect from time to time and (ii) the rights of shareholders pursuant to Section 9.2 of these Bylaws to propose the adoption, amendment or repeal and/or to adopt, amend, and repeal Bylaws made by the Board of Directors, the Board of Directors may make, adopt, amend, and repeal from time to time these Bylaws and make from time to time new Bylaws of the corporation.

Section 9.2 Amendments by the Shareholders . Subject to the provisions of the Articles of Incorporation of the corporation as in effect from time to time, the shareholders of the corporation may, solely upon the affirmative vote of the holders of the majority of the shares entitled to vote thereon (i) adopt, amend, or repeal Bylaws made by the Board of Directors or (ii) make new Bylaws.

FIRST SUPPLEMENTAL INDENTURE

Exhibit 4.1

FIRST SUPPLEMENTAL INDENTURE, dated as of June 30, 2009 (this “ Supplemental Indenture ”), between AMERICAN RAILCAR INDUSTRIES, INC., a North Dakota corporation, as issuer (the “ Company ”) and Wilmington Trust Company, as trustee under the Indenture referred to below (the “ Trustee ”).

W I T N E S S E T H:

WHEREAS, American Railcar Industries, Inc., a Delaware corporation (“ ARI Delaware ”) has heretofore executed and delivered to the Trustee an indenture dated as of February 28, 2007 (as amended, supplemented or otherwise modified, the “ Indenture ”) providing for the issuance of ARI Delaware’s 7.5% Senior Notes due 2014 (the “ Securities ”), initially in the aggregate principal amount of $275,000,000;

WHEREAS, ARI Delaware has effected a change in its state of incorporation from Delaware to North Dakota through a merger of ARI Delaware with and into its wholly owned subsidiary, the Company (the “ Reincorporation ”) and, as a result of the Reincorporation, the Company has succeeded to all of the properties, rights, liabilities and obligations of ARI Delaware, including ARI Delaware’s obligations under the Indenture and the Securities; and

WHEREAS, this Supplemental Indenture is being entered into pursuant to the terms of Section 5.01(a) of the Indenture and subject to the conditions set forth herein and therein;

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Securities as follows:

SECTION 1. Defined Terms . Capitalized terms used but not defined in this Supplemental Indenture or in the preamble or recitals hereto have the meanings assigned to them in the Indenture. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.

SECTION 2. Assumption by the Company . The Company hereby expressly assumes all of the obligations of ARI Delaware as “the Company” under the Indenture and the Securities and, as a result, as of the date hereof (i) all references in the Indenture to “the Company” shall be read to mean the Company as defined herein and (ii) all references in the Indenture to “Initial Securities,” “Original Securities,” “Exchange Securities” and “Securities”, shall be read to mean “Initial Securities,” “Original Securities,” “Exchange Securities” and “Securities”, as applicable, of the Company, as defined herein.

SECTION 3. Representations and Warranties of the Company .

3.1 No Event of Default . Immediately after giving effect to the Reincorporation (and treating any Indebtedness of ARI Delaware, which as a result of the Reincorporation has become the Indebtedness of the Company, as having been Incurred by the Company at the time of the Reincorporation), no Default or Event of Default had occurred or was continuing.

3.2 State of Incorporation. The Company is duly incorporated under the laws of the State of North Dakota and has elected to be governed by Chapter 10-35 of the North Dakota Century Code (generally known as the North Dakota Publicly Traded Corporations Act).

3.3 Additional Indebtedness . Immediately after giving pro forma effect to the Reincorporation, as if the Reincorporation occurred on April 1, 2008, the Company would have been permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a) of the Indenture.

SECTION 4. Miscellaneous .

4.1 Notices. All notices or other communications to the Company shall be given as provided in Section 13.02 of the Indenture.

4.2 Ratification of Indenture; Supplemental Indenture Part of Indenture . Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby.

4.3 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK .

4.4 Trustee Makes No Representation . The Trustee shall not be responsible in any manner whatsoever for or in respect of and makes no representation as to the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company.

4.5 Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

4.6 Effect of Headings . The Section headings herein are for convenience only and shall not effect the construction thereof.

[signature page to follow]

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.


AMERICAN RAILCAR INDUSTRIES, INC.
By:	/s/ Dale C. Davies
	Name:	Dale C. Davies
	Title:	Senior Vice President, Chief Financial Officer and Treasurer

WILMINGTON TRUST COMPANY, as Trustee
By:	/s/ Michael G. Oller, Jr.
	Name:	Michael G. Oller, Jr.
	Title:	Assistant Vice President

Exhibit 4.2

[FACE OF CERTIFICATE] [LOGO] ARI AMERICAN RAILCAR INDUSTRIES, INC. INCORPORATED UNDER THE LAWS OF THE STATE OF NORTH DAKOTA CUSIP 02916P 10 3 SEE REVERSE FOR CERTAIN DEFINITIONS THIS CERTIFIES that is the owner of FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK OF THE PAR VALUE OF $.01 PER SHARE OF AMERICAN RAILCAR INDUSTRIES, INC. transferable on the books of the Corporation by the holder hereof in person or by duly authorized attorney upon surrender of this certificate properly endorsed. This certificate and the shares represented hereby are issued and shall be held subject to all of the provisions of the Articles of Incorporation of the Corporation and any amendments thereto, to all of which the holder, by acceptance hereof, assents. This certificate is not valid unless countersigned by the Transfer Agent and registered by the Registrar. WITNESS the facsimile seal of the Corporation and the facsimile signatures of its duly authorized officers. Dated: [SEAL] [signature] Secretary [signature] President and Chief Executive Officer Countersigned and Registered: AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC (New York, N.Y.) Transfer Agent Registrar By Authorized Officer

[BACK OF CERTIFICATE] AMERICAN RAILCAR INDUSTRIES, INC. The Corporation will furnish to any shareholders upon request and without charge, a full or summary statement of the designations, preferences, limitations, and relative rights of the shares of each class authorized to be issued and, if the corporation is authorized to issue any preferred or special class or series, the variations in the relative rights and preferences between the shares of each of the series to the extent the relative rights and preferences have been fixed and determined and the authority of the board to fix and determine the relative rights and preferences of subsequent series. The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM — as tenants in common TEN ENT — as tenants by the entireties JT TEN — as joint tenants with right of survivorship and not as _____ tenants in common UNIF GIFT MIN ACT- _____ Custodian _____ (Cust) (Minor) under Uniform Gifts to Minors Act _____ (State) Additional abbreviations may also be used though not in the above list. For value received _____ hereby sell, assign and transfer unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE (PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE) _____ Shares of the capital stock represented by the within Certificate and do hereby irrevocably constitute and appoint _____ Attorney to transfer the said stock on the books of the within named Corporation with full power of substitution in the premises. DATED _____ NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. Signature(s) Guaranteed: _____ THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVING AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15. KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, MUTILATED OR DESTROYED, THE CORPORATION MAY REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE ISSUANCE OF A REPLACEMENT CERTIFICATE.


North Dakota	000-51728	43-1481791
(State or other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)


100 Clark Street St. Charles, Missouri		63301
(Address of Principal Executive Offices)		(Zip Code)