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UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
SCHEDULE TO
(Rule 13e-4)
Tender Offer Statement Under
Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act
of 1934
AMERICAN RAILCAR INDUSTRIES,
INC.
(Name of Subject Company
(Issuer) and Filing Person (Offeror))
Stock Appreciation Rights Issued on April 4, 2007 Having an
Exercise Price Per
Stock Appreciation Right of $29.49 under the American Railcar
Industries, Inc. 2005 Equity
Incentive Plan, which Reference Common Stock, $0.01 par
value per Share
(Title of Class of
Securities)
02916P103
(CUSIP Number of Common Stock
Underlying Class of Securities)
Dale C. Davies
Senior Vice President, Chief Financial Officer and
Treasurer
American Railcar Industries, Inc.
100 Clark Street, St. Charles, MO 63301
Tel: (636) 940-6000
(Name, address and telephone
number of person authorized to receive notices and
communications on behalf of filing persons)
Copies to:
Philip J. Flink, Esquire
James Bedar, Esquire
Brown Rudnick LLP
One Financial Center
Boston, MA 02111
Tel: (617) 856-8200
CALCULATION OF FILING FEE
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Transaction Valuation*
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Amount of Filing Fee**
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$911,889
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$65.02
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* |
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Estimated solely for purposes of calculating the amount of the
filing fee. The calculation of the Transaction Valuation assumes
that all 201,300 stock appreciation rights (SARs) that may be
eligible for exchange in the offer will be tendered pursuant to
this offer. These SARs have an aggregate value of $911,889 as of
April 19, 2010, based on the Black-Scholes valuation model. |
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** |
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The amount of the filing fee, calculated in accordance with
Rule 0-11(b)
of the Securities Exchange Act of 1934, as amended, and Fee Rate
Advisory # 1 for Fiscal Year 2010 issued by the Securities
Exchange Commission on April 30, 2009, equals $71.30 per
$1,000,000 of the aggregate amount of the Transaction Valuation
(or .00007130 of the aggregate Transaction Valuation). The
Transaction Valuation set forth above was calculated for the
sole purpose of determining the filing fee and should not be
used for any other purpose. |
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Check the box if any part of the fee is offset as provided by
Rule 0-11(a)(2) and identify the filing with which the
offsetting fee was previously paid. Identify the previous filing
by registration statement number, or the Form or Schedule and
the date of its filing.
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Amount Previously Paid: Not applicable.
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Filing Party: Not applicable.
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Form or Registration No.: Not applicable.
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Date Filed: Not applicable.
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Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
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Check the appropriate boxes below to designate any transactions
to which the statement relates:
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o
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third-party tender offer subject to
Rule 14d-1.
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þ
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issuer tender offer subject to
Rule 13e-4.
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o
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going-private transaction subject to
Rule 13e-3.
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o
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amendment to Schedule 13D under
Rule 13d-2.
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Check the following box if the filing is a final amendment
reporting the results of the tender
offer: o
If applicable, check the appropriate box(es) below to designate
the appropriate rule provision(s) relied upon:
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o
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Rule 13e-4(i)
(Cross-Border Issuer Tender Offer)
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o
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Rule 14d-1(d)
(Cross-Border Third-Party Tender Offer)
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Item 1.
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Summary
Term Sheet.
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The information set forth under “Summary Term
Sheet — Questions and Answers” in the Offer to
Exchange Certain Outstanding Stock Appreciation Rights for New
Stock Appreciation Rights, dated April 19, 2010 (the
“Exchange Offer”), attached hereto as Exhibit
(a)(1)(A), is incorporated herein by reference.
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Item 2.
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Subject
Company Information.
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(a) Name
and Address.
The issuer is American Railcar Industries, Inc., a North Dakota
corporation (“ARI” or the “Company”).
ARI’s principal executive offices are located at 100 Clark
Street, St. Charles, Missouri 63301 and the telephone number of
its principal executive offices is
(636) 940-6000.
The information set forth under Section 9
(“Information Concerning Us; Financial Information”)
in the Exchange Offer is incorporated herein by reference.
(b) Securities.
This Tender Offer Statement on Schedule TO relates to an
offer by the Company, subject to specified conditions, to
eligible holders to exchange all of their stock appreciation
rights (“SARs”) issued on April 4, 2007 at an
exercise price per SAR of $29.49 (“Eligible SARs”)
pursuant to the Company’s 2005 Equity Incentive Plan, as
amended (the “Plan), for new SARs (“New SARs”).
As of April 19, 2010, there were 201,300 Eligible SARs
outstanding, which reference shares of ARI common stock. This
offer is being made upon the terms and subject to the conditions
set forth in the Exchange Offer and in the related accompanying
Election Form, attached hereto as Exhibit (a)(1)(C).
The Exchange Offer is being made to employees, including named
executive officers (as defined in Item 402(a) of
Regulation S-K),
who hold Eligible SARs (“Eligible Holders”). The offer
is not being made to members of the board of directors of the
Company. To remain Eligible Holders, employees must continue to
be employed by ARI or one of its subsidiaries, and must not have
received nor have given a notice of termination on or prior to
the date that the New SARs are granted.
The information set forth in the Exchange Offer under
“Summary Term Sheet — Questions and
Answers,” Section 1 (“Eligible SARs; Eligible
SARs Holders; Expiration Date of this Exchange Offer”),
Section 5 (“Acceptance of Eligible SARs for Exchange;
Issuance of New SARs”), Section 7 (“Price Range
of Our Common Stock”) and Section 8 (“Source and
Amount of Consideration; Terms of New SARs”) is
incorporated herein by reference.
(c) Trading
Market and Price.
The information set forth in the Exchange Offer under
Section 7 (“Price Range of Our Common Stock”) is
incorporated herein by reference. No trading market exists for
the Eligible SARs.
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Item 3.
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Identity
and Background of Filing Person.
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The information set forth under Item 2(a) above and in the
Exchange Offer under Section 10 (“Interests of
Directors and Executive Officers; Transactions and Arrangements
Concerning Our Securities”) is incorporated herein by
reference. ARI is both the filing person and the subject company.
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Item 4.
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Terms
of the Transaction.
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(a) Material
Terms.
The information set forth in the Exchange Offer under
“Summary Term Sheet — Questions and
Answers,” Section 1 (“Eligible SARs; Eligible
SARs Holders; Expiration Date of this Exchange Offer”),
Section 2 (“Purpose of this Exchange Offer”),
Section 3 (“Procedures for Tendering Eligible
SARs”), Section 4 (“Withdrawal Rights”),
Section 5 (“Acceptance of Eligible SARs for Exchange;
Issuance of New SARs”), Section 6 (“Conditions of
this Exchange Offer”), Section 8 (“Source and
Amount of Consideration; Terms of New SARs”),
Section 11 (“Status of Eligible SARs Acquired by Us in
this Exchange Offer; Accounting Consequences of this Exchange
Offer”), Section 12 (“Legal Matters; Regulatory
Approvals”), Section 13
(“Material United States Tax Consequences”) and
Section 14 (“Extension of Exchange Offer; Termination;
Amendment”) is incorporated herein by reference.
(b) Purchases.
The information set forth in the Exchange Offer under
Section 10 (“Interests of Directors and Executive
Officers; Transactions and Arrangements Concerning Our
Securities”) is incorporated herein by reference.
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Item 5.
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Past
Contacts, Transactions, Negotiations and
Agreements.
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(e) Agreements
Involving the Subject Company’s Securities.
The information set forth in the Exchange Offer under
Section 10 (“Interests of Directors and Executive
Officers; Transactions and Arrangements Concerning Our
Securities”) and in the issuer’s Definitive Proxy
Statement filed with the Securities and Exchange Commission
(“SEC”) on April 30, 2009 is incorporated herein
by reference. The issuer’s 2005 Equity Incentive Plan, as
amended, and the Forms of Stock Appreciation Rights Agreement
attached hereto as Exhibits (d)(1), (d)(2) and (d)(3) also
contain information regarding the subject company and the
subject securities.
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Item 6.
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Purposes
of the Transaction and Plans or Proposals.
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(a) Purposes.
The information set forth in the Exchange Offer under
Section 2 (“Purpose of this Exchange Offer”) is
incorporated herein by reference.
(b) Use
of Securities Acquired.
The information set forth in the Exchange Offer under
Section 5 (“Acceptance of Eligible SARs for Exchange;
Issuance of New SARs”) and Section 11 (“Status of
Eligible SARs Acquired by Us in this Exchange Offer; Accounting
Consequences of this Exchange Offer”) is incorporated
herein by reference.
(c) Plans.
The information set forth in the Exchange Offer under
Section 2 (“Purpose of this Exchange Offer”),
Section 5 (“Acceptance of Eligible SARs for Exchange;
Issuance of New SARs”) and Section 10 (“Interests
of Directors and Executive Officers; Transactions and
Arrangements Concerning Our Securities”) is incorporated
herein by reference.
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Item 7.
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Source
and Amount of Funds or Other Consideration.
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(a) Source
of Funds.
The information set forth in the Exchange Offer under
Section 8 (“Source and Amount of Consideration; Terms
of New SARs”) and Section 15 (“Fees and
Expenses”) is incorporated herein by reference.
(b) Conditions.
The information set forth in the Exchange Offer under
Section 6 (“Conditions of this Exchange Offer”)
is incorporated herein by reference.
(d) Borrowed
Funds.
Not applicable.
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Item 8.
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Interest
in Securities of the Subject Company.
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(a) Securities
Ownership.
The information set forth in the Exchange Offer under
Section 10 (“Interests of Directors and Executive
Officers; Transactions and Arrangements Concerning Our
Securities”) is incorporated herein by reference.
(b) Securities
Transactions.
The information set forth in the Exchange Offer under
Section 10 (“Interests of Directors and Executive
Officers; Transactions and Arrangements Concerning Our
Securities”) is incorporated herein by reference.
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Item 9.
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Persons/Assets,
Retained, Employed, Compensated or Used.
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Not applicable.
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Item 10.
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Financial
Statements.
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(a) Financial
Information.
The information set forth in Item 7, Management’s
Discussion and Analysis of Financial Condition and Results of
Operations, and in Item 8, Financial Statements and
Supplementary Data, in the issuer’s Annual Report on
Form 10-K
for the fiscal year ended December 31, 2009, filed with the
SEC on March 12, 2010, is incorporated herein by reference.
The information contained in the Exchange Offer under
Section 9 (“Information Concerning Us; Financial
Information”) and Section 16 (“Additional
Information”) is incorporated herein by reference.
(b) Pro
Forma Information.
Not applicable.
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Item 11.
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Additional
Information.
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(a) Agreements,
Regulatory Requirements and Legal Proceedings.
The information set forth in the Exchange Offer under
Section 10 (“Interests of Directors and Executive
Officers; Transactions and Arrangements Concerning Our
Securities”) and Section 12 (“Legal Matters;
Regulatory Approvals”) is incorporated herein by reference.
(b) Other
Material Information.
Not applicable.
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(a)(1)(A)
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Offer to Exchange Certain Outstanding Stock Appreciation Rights
for New Stock Appreciation Rights dated April 19, 2010
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(a)(1)(B)
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Cover Letter
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(a)(1)(C)
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Election Form
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(a)(1)(D)
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Notice of Withdrawal
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(d)(1)
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American Railcar Industries, Inc. 2005 Equity Incentive Plan, as
amended, incorporated by reference to Exhibit 10.36 to
ARI’s Quarterly Report on
Form 10-Q
for the quarter ended March 31, 2006 filed with the SEC on
May 15, 2006.
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(d)(2)
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Form of American Railcar Industries, Inc. 2007 Stock
Appreciation Rights Agreement, incorporated by reference to
Exhibit 10.46 to ARI’s Current Report on
Form 8-K
filed with the SEC on April 10, 2007.
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(d)(3)
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Form of American Railcar Industries, Inc. 2010 Stock
Appreciation Rights Agreement
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is
true, complete and correct.
AMERICAN RAILCAR INDUSTRIES, INC.
Name: Dale C. Davies
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Title:
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Senior Vice President, Treasurer and Chief Financial Officer
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Date: April 19, 2010
INDEX TO
EXHIBITS
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Exhibit No.
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Description
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(a)(1)(A)
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Offer to Exchange Certain Outstanding Stock Appreciation Rights
for New Stock Appreciation Rights dated April 19, 2010
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(a)(1)(B)
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Cover Letter
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(a)(1)(C)
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Election Form
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(a)(1)(D)
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Notice of Withdrawal
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(d)(1)
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American Railcar Industries, Inc. 2005 Equity Incentive Plan, as
amended, incorporated by reference to Exhibit 10.36 to
ARI’s Quarterly Report on
Form 10-Q
for the quarter ended March 31, 2006 filed with the SEC on
May 15, 2006.
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(d)(2)
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Form of American Railcar Industries, Inc. 2007 Stock
Appreciation Rights Agreement, incorporated by reference to
Exhibit 10.46 to ARI’s Current Report on
Form 8-K
filed with the SEC on April 10, 2007.
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(d)(3)
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Form of American Railcar Industries, Inc. 2010 Stock
Appreciation Rights Agreement
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