EXHIBIT 10.1
AMENDMENT NO. 3 TO
SUPPLEMENTAL PROFIT SHARING PLAN FOR EMPLOYEES OF
TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS
RESTATED EFFECTIVE JANUARY 1, 2000
WHEREAS, TRINITY INDUSTRIES, INC., a Delaware corporation (the "Company"),
has heretofore adopted the SUPPLEMENTAL PROFIT SHARING PLAN FOR EMPLOYEES OF
TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE JANUARY 1,
2000 ("the Plan") for the benefit of certain executive and managerial employees;
and
WHEREAS, pursuant to those provisions of the Plan permitting the Company
to amend the Plan from time to time, the Company desires to amend the Plan in
certain respects as hereinafter provided;
NOW THEREFORE, the Plan is hereby amended as follows, effective as of
January 1, 2004:
1. Section 4.01(b) is hereby amended to be and read as follows:
"(b) Matching Employer Contribution. For Plan Years beginning prior
to January 1, 2004, for each Year, each Employer shall credit
a Matching Employer Contribution amount in the form of Stock
Units to each of its Employees for whom an amount was credited
pursuant to paragraph (a) of this Section 4.01; effective for
Plan Years beginning on and after January 1, 2004, such a
Matching Employer Contribution shall be credited in cash;
provided, however, that no such Matching Employer Contribution
shall be credited prior to the date on which such Employee
completes one (1) year of Service. Such Matching Employer
Contribution, when added to the Forfeitures which have become
available for application as of the end of the Year pursuant
to Section 4.03 hereof, shall be equal to a percentage of that
portion of the Participant's Compensation Reduction
Contribution for such Year pursuant to Section 4.02 hereof
which does not exceed six percent (6%) of his Base
Compensation plus Annual Incentive Compensation for such Year,
based on his years of Service as follows:
Years of Service Applicable Percentage
- ----------------- ---------------------
Less than 1 0%
1 but less than 2 25%
2 but less than 3 30%
3 but less than 4 35%
4 but less than 5 40%
5 or more 50%
For purposes of determining a Participant's Matching Employer
Contribution under this paragraph (b), if a Participant's
Employment Commencement Date is any date on or after January
1, 2001 and on or before March 31, 2001, and such Participant
is employed as of the last day of the Short Plan Year, he
shall be credited with a year of Service for such Short Plan
Year."
2. Section 4.01(c) is hereby amended to be and read as follows:
"(c) Additional Matching Contribution. For Plan Years beginning
prior to January 1, 2004, for each Year, each Employer shall
credit an additional amount in the form of Stock Units to each
of its Employees for whom an amount was credited pursuant to
paragraph (a) of this Section 4.01, which when added to the
Forfeitures which have become available for application as of
the end of the Year pursuant to Section 4.03 hereof and which
have not been applied as provided in paragraph (b) of this
Section, shall be equal to seventeen and one-half percent
(17-1/2%) of that portion of the Participant's Compensation
Reduction Contribution for such Year pursuant to Section 4.02
hereof which is invested or deemed invested in Stock Units
pursuant to Section 5.02(a) hereof up to twenty-five percent
(25%) of the sum of his Base Compensation and Annual Incentive
Compensation for such Year. Effective for Plan Years beginning
on and after January 1, 2004, this paragraph (c) shall have no
further force or effect."
In accordance with the last sentence in the revised section 4.01(c) above,
references in the Plan to Additional Matching Contributions and Additional
Matching Contribution Accounts are applicable to such contributions and accounts
prior to January 1, 2004.
3. Section 4.01(e) is hereby amended to be and read as follows:
"(e) Discretionary Contributions. For Plan Years beginning prior to
January 1, 2004, in addition to the contributions described
above, for each Year an Employer may, but shall not be
required to, credit the Discretionary
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Contribution Account of any one or more Participants in its
employ during such Year with such amounts in the form of Stock
Units or otherwise as the Employer may determine in its sole
discretion. Effective for Plan Years beginning on and after
January 1, 2004, if such amounts are credited, they shall be
credited in cash."
4. Section 5.02 is hereby amended to be and read as follows:
"5.02 Investment of Accounts
(a) Participant Election. The Committee shall credit each
Participant's Accounts with earnings or losses according to
the hypothetical investment selections made by the Participant
pursuant to his participation agreement executed pursuant to
Section 3.03 hereof. In accordance with certain limitations on
investment designations in Section 5.02(b), the Committee
shall adopt rules concerning the manner in which a Participant
may elect to change his hypothetical investment selections,
provided that a Participant shall be permitted to do so no
less frequently than as of the first day of each month.
For Plan Years beginning prior to January 1, 2004, the
earnings or losses attributable to a Participant's Accounts
shall be determined as if the amounts credited to such
Accounts were actually invested in Stock Units, to the extent
required or elected hereunder, and, to the extent not so
required or elected, in the hypothetical investments selected
under the Participant's participation agreement. In the case
of a Participant receiving installment payments under Article
VI hereof, the Participant's Accounts will continue to receive
allocations of earnings or losses in accordance with this
subsection until his Accounts are paid in full. If a
Participant's participation agreement fails to designate one
or more hypothetical investment selections, the Participant's
Account will be deemed invested in Stock Units, to the extent
required hereunder, and, to the extent not so required, in the
investment option designated as having the least investment
risk.
Effective for Plan Years beginning on and after January 1,
2004, the earnings or losses attributable to a Participant's
Accounts shall be determined as if the amounts credited to
such Accounts were actually invested in Stock Units, to the
extent elected hereunder, and, to the extent not so elected or
to the extent prohibited hereunder, in the hypothetical
investments selected under the Participant's participation
agreement. In the case of a Participant receiving installment
payments under Article VI hereof, the Participant's Accounts
will continue to receive allocations of earnings or losses in
accordance with this subsection until his Accounts are paid in
full. If a Participant's participation agreement fails to
designate one or more hypothetical investment selections, the
Participant's Account will be deemed invested in the
investment option designated as having the least investment
risk.
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(b) Investment Options. The Committee shall have sole and absolute
discretion with respect to the number and types of investment
options made available for selection by Participants pursuant
to this Section, the timing of Participant elections and the
method by which adjustments are made. The Committee may in its
sole discretion refuse to recognize Participant elections that
it determines may cause the Participant's Accounts to become
subject to the short-swing profit provisions of Section 16b of
the Securities Exchange Act of 1934 and establish special
election procedures for Participants subject to Section 16 of
such Act.
For Plan Years beginning prior to January 1, 2004, the
Committee shall permit Participants to designate that their
investments be treated as invested in (i) Stock Units or (ii)
one or more investment indices; provided that amounts credited
on or after the Effective Date to a Participant's Matching
Contribution Account or Additional Matching Contribution
Account shall at all times be invested in Stock Units;
provided further that Compensation Reduction Contributions
made on or after the Effective Date of Award Compensation
shall at all times be invested in Stock Units.
Effective for Plan Years beginning on and after January 1,
2004, amounts credited to a Participant's Matching
Contribution Account and Discretionary Contribution Account
shall at no time be treated as invested in Stock Units. For
Plan Years beginning on and after January 1, 2004,
Compensation Reduction Contributions may, at the Participant's
election, be treated as invested in Stock Units, provided
however, that following deemed investment in any media, such
Contributions may not be treated as transferred into or out of
deemed investments in Stock Units. For Plan Years beginning on
and after January 1, 2004, a Participant may not designate
that amounts credited to his Matching Contribution Account,
Additional Matching Contribution Account, Discretionary
Contribution Account, or Compensation Reduction Contribution
Account and deemed invested in any media be treated as
transferred into or out of deemed investments in Stock Units.
The designation of investment options by the Committee shall
be for the sole purpose of adjusting Accounts pursuant to this
Section, and except to the extent that deemed investment in
Stock Units was required hereunder for Plan Years beginning
prior to January 1, 2004, the provisions of this Article V
shall not obligate the Company or any of the Employers to
invest or set aside any assets for the payment of benefits
hereunder; provided, however, that the Company or an Employer
may invest a portion of its general assets in investments,
including investments which are the same as or similar to the
investment indices designated by the Committee and selected by
Participants, but any such investments shall remain part of
the general assets of the Company or such Employer and shall
not be deemed or construed to grant a property interest of any
kind to any Participant, designated Beneficiary or estate. The
Committee shall
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notify the Participants of the investment indices available
and the procedures for making and changing elections.
(c) Non-Binding Status of Elections. A Participant's hypothetical
investment selections pursuant to the immediately preceding
paragraph shall be made solely for purposes of crediting
earnings and/or losses to his Accounts under Section 5.03 of
this Plan. The Committee shall not, in any way, be bound to
actually invest any amounts set aside pursuant to Article VII
below to satisfy its obligations under this Plan in accordance
with such selections."
5. Section 5.03(c) is hereby amended to be and read as follows:
"(c) Matching Contributions. For Plan Years beginning prior to
January 1, 2004, any Stock Units credited to a Participant by
an Employer pursuant to Section 4.01(b) or (c) during a Year
shall be allocated, as the case may be, to the Participant's
Matching Contribution Account or the Participant's Additional
Matching Contribution Account at such time as may be
determined by the Employer in its absolute discretion, but no
earlier than the last day of such Year.
Effective for Plan Years beginning on and after January 1,
2004, any amounts credited to a Participant by an Employer
pursuant to Section 4.01(b) during a Year shall be allocated
to the Participant's Matching Contribution Account at such
time as may be determined by the Employer in its absolute
discretion, but no earlier than the last day of such Year."
6. Section 5.04(a) is hereby amended to be and read as follows:
"(a) General. For purposes of calculating the number of Stock Units
credited or deemed credited to a Participant's Accounts
pursuant to Section 5.03(b) and, for Plan Years beginning
prior to January 1, 2004, Section 5.03(d), the price of a
Stock Unit shall be equal to one hundred percent (100%) of the
closing price on the New York Stock Exchange of a share of the
Company's common stock on the date on which the Stock Units
are credited or deemed credited to the Participant's Accounts
(or if no shares of the Company's common stock are traded on
such date, on the immediately preceding trading date). For
Plan Years beginning prior to January 1, 2004, for purposes of
calculating the number of Stock Units credited to a
Participant's Accounts as an Employer Matching Contribution or
Additional Matching Contribution, the price of a Stock Unit
shall be equal to one hundred percent (100%) of the average
daily closing price on the New York Stock Exchange of a Share
of the Company's common stock for the Year with respect to
which the Stock Units are credited to the Participant's
Accounts, provided that for Stock Units credited with respect
to the Year ending March 31, 2000, such average daily closing
price shall be calculated
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for the period beginning on January 1, 2000 and ending on such
March 31, 2000."
7. Section 5.04 (c) is hereby amended to be and read as follows:
"(c) Dividends. To the extent that a dividend is paid on the
Company's common stock, the Committee shall credit to the
Accounts of each Participant whose Accounts are invested or
deemed invested in Stock Units an amount equal to the value of
such dividends. Effective for Plan Years beginning prior to
January 1, 2004, such amounts shall be credited to the
Participant's Accounts in the form of additional Stock Units
at a price equal to one hundred percent (100%) of the closing
price on the New York Stock Exchange of a share of the
Company's common stock on the date on which such dividend is
paid (or if no shares of the Company's common stock are traded
on such date, on the immediately preceding trading date).
Effective for Plan Years beginning on and after January 1,
2004, such amounts shall be credited to the Participant's
Accounts in cash."
8. Section 6.08 is hereby amended to be and read as follows:
"6.08 Designated Distributions
Prior to the beginning of a calendar year, a Participant may elect
that all or any portion of the amount of any Compensation Reduction
Contribution to be credited to the Participant's Compensation
Reduction Contribution Account during such calendar year, be
distributed to or on behalf of the Participant in the form of a lump
sum in a subsequent calendar year designated by the Participant,
which subsequent calendar year shall not be earlier than the third
calendar year following the calendar year for which the election is
made. Such an election shall be irrevocable. The distribution shall
be made no later than December 31 of the designated year. In the
event of the Participant's termination of employment for any reason
prior to the designated year, the election shall be void and of no
effect."
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IN WITNESS WHEREOF, the Company has caused this instrument to be executed
in its name and on behalf of this ____day of _______________, 2004, effective as
of January 1, 2004.
TRINITY INDUSTRIES, INC.
By: ___________________________________
Title: ________________________________
ATTEST:
_________________________
STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
This instrument was acknowledged before me on the ___________ day of
______________________________ , 2004, by ______________________________________
of TRINITY INDUSTRIES, INC., a Delaware corporation, on behalf of said
corporation.
________________________________________________
Notary Public in and for the
State of Texas
My Commission Expires:
_______________________________
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