EXHIBIT 10.9
TRINITY INDUSTRIES, INC.
DEFERRED PLAN FOR DIRECTOR FEES
(as amended)
THIS PLAN, made and executed at Dallas, Texas by Trinity Industries,
Inc., a Delaware corporation (the "Company"), is being established primarily for
the purpose of providing to members of the Board of Directors of the Company the
ability to defer receipt of all or part of their compensation as a Director.
I.
DEFINITIONS
Whenever used herein, the following terms shall have the meaning set
forth below:
(a) "Account" means the separate memorandum account maintained by
the Company for each Director who elects to participate in the
Plan.
(b) "Adjustment Date" means the last day of each calendar quarter
and such other dates as the Administrative Committee in its
discretion may prescribe.
(c) "Administrative Committee" means a committee composed of at
least three individuals appointed by the Compensation
Committee of the Board of Directors of the Company to
administer the adjustment of participant accounts as provided
herein, each of whom shall serve in such office until a
successor is appointed by the Compensation Committee or until
such person's death, resignation or removal by the
Compensation Committee.
(d) "Annual Fee" means the retainer and meeting fees paid to a
Director for services rendered as a member of the Board of
Directors of the Company, including fees for services on a
committee, for the Annual Period.
(e) "Annual Period" means the calendar year.
(f) "Board of Directors" means the Board of Directors of the
Company.
(g) A "Change of Control" shall be deemed to have occurred if the
event set forth in any one of the following paragraphs shall
have occurred:
(I) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company
(not including in the securities beneficially owned
by such Person any securities acquired directly from
the Company or its affiliates) representing 30% or
more of the combined voting power of the Company's
then outstanding securities, excluding any Person who
becomes such a Beneficial Owner in connection with a
transaction described in clause (i) of paragraph
(III) below; or
(II) the following individuals cease for any reason to
constitute a majority of the number of directors then
serving: individuals who, on May 6, 1997, constitute
the Board of Directors and any new director (other
than a director whose initial assumption of office is
in connection with an actual or threatened election
contest, including but not limited to a consent
solicitation, relating to the election of directors
of the Company) whose appointment or election by the
Board of Directors or nomination for election by the
Company's stockholders was approved
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or recommended by a vote of at least two-thirds (2/3)
of the directors then still in office who either were
directors on May 6, 1997, or whose appointment,
election or nomination for election was previously so
approved or recommended; or
(III) there is consummated a merger or consolidation of the
Company or any direct or indirect subsidiary of the
Company with any other corporation, other than (i) a
merger or consolidation which would result in the
voting securities of the Company outstanding
immediately prior to such merger or consolidation
continuing to represent (either by remaining
outstanding or by being converted into voting
securities of the surviving entity or any parent
thereof) at least 60% of the combined voting power of
the securities of the Company or such surviving
entity or any parent thereof outstanding immediately
after such merger or consolidation, or (ii) a merger
or consolidation effected to implement a
recapitalization of the Company (or similar
transaction) in which no Person is or becomes the
Beneficial Owner, directly or indirectly, of
securities of the Company (not including in the
securities Beneficially Owned by such Person any
securities acquired directly from the Company or its
Affiliates other than in connection with the
acquisition by the Company or its affiliates of a
business) representing 30% or more of the combined
voting power of the Company's then outstanding
securities; or
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(IV) the stockholders of the Company approve a plan of
complete liquidation or dissolution of the Company or
there is consummated an agreement for the sale or
disposition by the Company of all or substantially
all of the Company's assets, other than a sale or
disposition by the Company of all or substantially
all of the Company's assets to an entity, at least
60% of the combined voting power of the voting
securities of which are owned by stockholders of the
Company in substantially the same proportions as
their ownership of the Company immediately prior to
such sale.
For purposes hereof:
"Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated under Section 12 of the Exchange Act.
"Beneficial Owner" shall have the meaning set forth in Rule
13d-3 under the Exchange Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"Person" shall have the meaning given in Section 3(a)(9) of
the Exchange Act, as modified and used in Sections 13(d) and
14(d) thereof, except that such term shall not include (i) the
Company or any of its subsidiaries, (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of
the Company or any of its Affiliates, (iii) an underwriter
temporarily holding securities pursuant to an offering of such
securities, or (iv) a corporation
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owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their
ownership of stock of the Company.
(h) "Competitive Business Entity" means any business,
proprietorship, partnership, corporation engaged in business
activities in the same or similar markets in which the
Company, its subsidiaries, and affiliates operate or plan to
operate.
(i) "Director" means a member of the Board of Directors.
(j) "Plan" means the Trinity Industries, Inc. Deferred Plan for
Director Fees as set forth in this instrument and as it may
hereafter be amended from time to time.
(k) "Termination Date" means the date upon which a Director ceases
to be a member of the Board of Directors.
II.
PLAN DESCRIPTION
A Director may elect to defer receipt of all or a specified part of his
or her Annual Fee. The Company will maintain an Account for each participant
into which the deferred portion of the Annual Fee will be credited on the date
the Director would otherwise be entitled to receive such fee. Sums credited to
the Account will accrue an interest equivalent from the date they are credited
at a rate equal to the annual LIBOR rate plus 6 points, as of the first business
day following each Adjustment Date. The accrued interest equivalent shall be
credited to the Account on each Adjustment Date, and shall thereafter be subject
to subsequent accruals of an interest equivalent.
In lieu of having the Account credited with an interest equivalent as
provided in the preceding paragraph, a Director may elect to have the deferred
portion of his or her Annual
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Fee treated as if invested in units of Common Stock of the Company ("Stock
Units"). Stock Units will be deemed to be acquired on the first day of each
quarter for the deferred portion of the Annual Fee credited to the Account in
the prior quarter. Dividend equivalents in the form of additional Stock Units
will be credited to the Account as of the date of payment of cash dividends on
the Company's Common Stock. A Stock Unit shall be deemed to be equal in value to
a share of Common Stock of the Company at the closing price of the Company's
Common Stock on the New York Stock Exchange on the first date of particular
determination, or if the date of determination is not a trading day on the New
York Stock Exchange, on the next succeeding trading day. In case of a split or
other subdivision of the Company's Common Stock, Stock Units will be similarly
deemed to be split or subdivided. At each Adjustment Date, a Participant's
Account that has been credited with Stock Units shall be valued on the basis of
shares of the Company's Common Stock at that date, taking into account any
increase or decrease in the market value of the Company's Common Stock.
A director must affirmatively elect to have the deferred portion of his
or her Annual Fee treated as if invested in Stock Units. Such an election must
be made prior to the first day of the Annual Period and shall apply to the
deferred portion of the Annual Fee for the entire Annual Period. The failure to
timely elect to have the deferred portion of his or her Annual Fee treated as if
invested in Stock Units will be deemed an election to have the deferred portion
of his or her Annual Fee credited with an interest equivalent. Any amounts
previously treated as invested in Stock Units will continue to be so treated as
invested in Stock Units, except that at any time following a Director's
Termination Date, if he or she has not elected to be paid a lump sum, then he or
she may elect, by written notice to the Company, to have the
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Stock Units in his or her Account converted into a dollar value as of the next
Adjustment Date to thereafter accrue an interest equivalent on the value of the
Account.
The amount payable from a participant's Account shall be determined on
the basis of value of the Account as of the Adjustment Date last preceding the
date of payment plus any deferrals credited to and less any distributions made
from such Account since such Adjustment Date. The amount of each payment made
with respect to an Account and any forfeiture amounts applied pursuant to
Article X shall be deducted from the balance of such Account at the time of
payment or forfeiture.
The participant's Account, as determined in accordance with the
preceding paragraph, will be distributed to the participant, in accordance with
the participant's election, either (i) in annual installments not exceeding ten
(10) years or (ii) in a lump sum, with such installments to begin or lump sum
payment to be made, as soon as practicable following the participant's
Termination Date. Any such election by the participant must be made on the
"Election and Agreement to Defer Director's Fees" as described and set forth in
the attachment to this Plan labeled Exhibit "A." Such distribution election must
be made in advance of the performance of services during the Annual Period for
which an election to participate in the Plan is made and shall be irrevocable
unless and until a new "Election and Agreement to Defer Director's Fees" is
completed for a subsequent Annual Period. Upon a participant's Termination Date,
the participant's distribution shall be made in accordance with the distribution
election made on the "Election and Agreement to Defer Director's Fees" for the
Annual Period ending concurrently with or immediately prior to the participant's
Termination Date. If the participant fails to make an election, the
participant's Account will be paid in annual installments over a ten (10) year
period. If the participant is paid in installments, the interest
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equivalent sum will continue to accrue on the undisbursed balance of the Account
and the Stock Units will continue to be credited with dividend equivalents on
the Stock Units remaining in the Account. All distributions will be deemed to be
made pro rata from the interest equivalent balance and from the value of Stock
Units, with the portion of the distribution from Stock Units being treated as if
an equivalent number of Stock Units had been sold (without commission or other
expense) as of the last Adjustment Date in order to make the distribution. The
preceding provisions of this paragraph to the contrary notwithstanding, in the
event that a participant's Termination Date occurs on or after a Change of
Control, the participant's Account will be distributed to the participant either
in a lump sum or in annual installments not exceeding ten (10) years, whichever
is elected by the participant on a separate election form for such purpose,
which election shall be made at the time of the participant's initial election
to participate in the Plan or, if later, on or before July 20, 1999 and shall be
irrevocable; provided, however, that the participant may make, revoke or change
this distribution election subsequent to the initial election with the new
election to be effective only in the event that the new election is made at
least 12 months prior to the date payments under this provision commence.
The Account of a participant who, subsequent to his or her Termination
Date, becomes a proprietor, officer, partner, employee, or otherwise affiliated
with a Competitive Business Entity may, if directed by the Board of Directors in
its sole discretion, be paid immediately in a lump sum the value of his or her
account as of the last Adjustment Date.
Upon the death of a participant, the value of the Account shall be
payable to such beneficiary or beneficiaries as the participant shall have
designated in writing to the Company
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(or to his or her estate if no such beneficiary has been designated) in full as
soon as practicable following the date of his or her death.
III.
ELECTION TO BECOME A PARTICIPANT
A Director desiring to become a participant shall execute an "Election
and Agreement to Defer Director's Fees" as described and set forth in the
attachment to this Plan labeled Exhibit "A". This election shall be made in
advance of the performance of services during the Annual Period for which an
election to participate in this Plan is being made and shall be irrevocable.
IV.
TERMINATION OF ELECTION
Participation in the Plan may not be terminated prior to the end of an
Annual Period and shall be continued unless the participant executes a new
election for the next Annual Period to not participate. All amounts credited to
a participant's Account shall remain in the Account to be distributed or
forfeited in accordance with the provisions of this Plan.
V.
MAINTENANCE OF ACCOUNT
The Company shall maintain an Account on behalf of each participant in
the form and manner prescribed by acceptable accounting standards, and shall
make a report of same in writing within 90 days after the end of Annual Period
to each participant.
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V1.
UNFUNDED PLAN
This Plan shall be unfunded for tax purposes and for purposes of Title
I of the ERISA. Neither the Company nor the Board of Directors shall be deemed
to be a trustee of any amounts to be paid under this Plan. Said amounts shall
continue for all purposes to be a part of the general funds of the Company, and
no person other than the Company shall, by virtue of the provisions of this
Plan, have any interest in such funds. To the extent that any person acquires a
right to receive payments from the Company under this Plan, such right shall be
no greater than the right of any unsecured general creditor of the Company. Any
liability of the Company to any participant with respect to a payment to be made
under this Plan shall be based solely upon any contractual obligations which may
be created by or pursuant to this Plan; no such obligation shall be deemed to be
secured by any pledge or any encumbrance on any property of the Company.
VII.
AMENDMENT AND TERMINATION OF PLAN
The Board of Directors may terminate this Plan at any time. A
termination of the Plan shall be effective at the end of the Annual Period in
which the Directors vote to terminate the Plan. The Board of Directors may amend
this Plan at any time.
Any provision of this Plan to the contrary notwithstanding, no
amendment to or termination of this Plan shall reduce the amounts actually
credited to a participant's Account as of the date of such amendment or
termination, or further defer the dates for the payment of such amounts, without
the consent of the affected participant.
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The preceding provisions of this Article to the contrary
notwithstanding, no action taken on or within two years following a Change of
Control to amend or terminate this Plan shall be effective unless written
consent thereto is obtained from a majority of the participants who were
Directors immediately prior to such Change of Control.
VIII.
EFFECTIVE DATE AND DURATION
This Plan shall become effective as of July 17, 1996, the date of the
next Annual Meeting of Stockholders of the Company. This Plan shall remain in
effect until it is terminated by the Board of Directors in accordance with
Article VII above.
IX.
GOVERNING LAW
This Plan and the rights of all persons under the Plan shall be
construed in accordance with and governed by the laws of the State of Texas,
wherein the principal office of the Company is located.
X.
OPTION TO REQUEST IMMEDIATE PAYOUT
In lieu of any other payments to be made pursuant to this Plan, each
participant shall have the right at any time to elect a lump sum payment in an
amount equal to:
(a) the amount credited to the participant's Account, minus
(b) a forfeiture amount equal to 20% of (a) above; provided,
however, that if the election (i) is made at any time
following a Change of Control, or (ii) is made
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by a participant receiving installment payments under this
Plan, such forfeiture amount shall be determined substituting
10% for 20%.
A participant's election for an immediate payout pursuant to this
Article must be in the form of a written notice provided to the Administrative
Committee. The Administrative Committee shall notify the Company of the election
and the amount so determined shall be paid to the participant no later than 15
days following receipt of notice by the Administrative Committee. Any amount
remaining credited to the participant's Account shall be forfeited at the time
payment is made.
XI.
RESTRAINTS ON ALIENATION
Subject to Article X hereof, no participant or beneficiary of a
participant shall have the right or power to anticipate, by assignment or
otherwise, any future payment to be made under this Plan, or any portion
thereof; nor, in advance of actually receiving the same, shall any participant
or beneficiary have the right or power to sell, transfer, encumber or in anywise
charge same; nor shall any future payment to be made under this Plan, or any
portion of same, be subject to any divorce, execution, garnishment, attachment,
insolvency, bankruptcy or other legal proceeding of any character, or legal
sequestration, levy or sale or in any event or manner be applicable or subject,
voluntarily or involuntarily, to the payment of such participant's or
beneficiary's debts or other obligations.
Adopted, effective as of July 17, 1996, as amended as of September 10,
1998, December 13, 2001, and April 1, 2003.
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