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AMENDMENT NO. 1 TO THE
TRINITY INDUSTRIES, INC.
DIRECTORS' RETIREMENT PLAN
Pursuant to the provisions of Section 12 thereof, the Trinity
Industries, Inc. Directors' Retirement Plan (the "Plan") is hereby amended
effective as of September 10, 1998 in the following respects only:
FIRST: Section 1 of the Plan is hereby amended by adding the following
paragraph to the end thereof:
The preceding provisions of this Section 1 to the contrary
notwithstanding, any former Director who has commenced receiving
monthly payments under this Plan following his retirement or disability
and who has more than one such monthly payment remaining to be paid may
elect in writing on a form acceptable to the Company to waive his right
to continue receiving monthly payments hereunder and in lieu thereof to
receive one lump sum payment in an amount equal to 90% of the present
value of the monthly payments remaining to be paid at the time of such
lump sum payment. The present value shall be determined using the
actuarial assumptions that would be used for calculating lump sum
distributions under the Trinity Industries, Inc. Standard Pension Plan,
and the payment will be made in cash to the former Director no later
than 15 days following receipt of his election by the Company. In the
event that a former Director receives a lump sum payment in accordance
with this provision, no further benefits will be owed to or on account
of such former Director under this Plan and the remaining 10% of the
present value of the monthly payments shall be forfeited.
SECOND: Section 2 of the Plan is hereby amended by adding the following
paragraph to the end thereof:
The preceding provisions of this Section 2 to the contrary
notwithstanding, any beneficiary of a former Director who is receiving
monthly payments under the provisions of this Section 2 and who has
more than one such monthly payment remaining to be paid may elect in
writing on a form acceptable to the Company to waive his right to
continue receiving monthly payments hereunder and in lieu thereof to
receive one lump sum payment in an amount equal to 90% of the present
value of the monthly payments remaining to be paid at the time of such
lump sum payment. The present value shall be determined using the
actuarial assumptions that would be used for calculating lump sum
distributions under the Trinity Industries, Inc. Standard Pension Plan,
and the payment will be made in cash to the beneficiary no later than
15 days following receipt of his election by the Company. In the event
that a beneficiary of a former Director receives a lump sum payment in
accordance with this provision, no further benefits will be owed to
such beneficiary on account of such former Director under this Plan and
the remaining 10% of the present value of the monthly payments shall be
forfeited.
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THIRD: Section 5 of the Plan is hereby amended by restatement in its
entirety to read as follows:
5. Notwithstanding anything herein to the contrary, in the event
of a Change of Control:
(I) The vested percentage referred to in Section 3 of this Plan
shall be 100% for each member of the Board of Directors at
the time of such Change of Control, irrespective of the
number of such Director's years of service.
(II) Any former Director (or beneficiary of a former Director)
who is receiving monthly payments pursuant to Section 1 (or
Section 2 with respect to a beneficiary) and any Director
who ceases to be a member of the Board of Directors on or
after the date of such Change of Control, who elected (or
with respect to a beneficiary, if the former Director
elected) an accelerated Change of Control payment, as
described below, shall receive, in lieu of the monthly
payments that otherwise would be owed to the Director under
this Plan pursuant to Section 1 hereof (or beneficiary
pursuant to Section 2 hereof), either (i) a cash lump sum
payment in an amount equal to the present value of such
monthly payments, or (ii) equal annual cash installments
over five (5), six (6) or seven (7) years in an aggregate
amount which is the actuarial equivalent of such monthly
payments, whichever method was elected by the Director on
the election form. The accelerated Change of Control
payment shall be elected by the Director on a separate
election form for such purpose at the time the Director
initially becomes covered by this Plan or, if later, on or
before July 20, 1999 and shall be irrevocable; provided,
however, that a Director or former Director may make,
revoke or change an accelerated Change of Control
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.
(III) Each member of the Board of Directors at the time of such
Change of Control and each former Director (or beneficiary
of a former Director) who has not yet received the entire
benefit to which he is entitled under this Plan, regardless
of whether an election was made in accordance with the
preceding paragraph (II) and regardless of whether payment
has yet commenced, may elect in writing on a form
acceptable to the Company to waive his right to any future
payment or payments hereunder and in lieu thereof to
receive one lump sum payment in an amount equal to 90% of
the present value of the payments owed with respect to the
Director or former Director under this Plan at the time of
such lump sum payment. In the event that a Director or
former Director (or beneficiary of a former Director)
receives a lump sum payment in accordance with this
provision, no further benefits will be owed to or on
account of such Director or former Director under this Plan
and the
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remaining 10% of the present value of the payments
otherwise owed shall be forfeited.
The amount to be distributed as the lump sum present value or
actuarial equivalent annual installments shall be determined using the actuarial
assumptions that would be used for calculating lump sum distributions or
installment payments, as appropriate, under the Trinity Industries, Inc.
Standard Pension Plan.
A "Change of Control" shall be deemed to have occurred for
purposes of this Plan 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 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
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or its affiliates of a business) representing 30% or more
of the combined voting power of the Company's then
outstanding securities; or
(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 l2b-2
promulgated under Section 12 of the Exchange Act.
"Beneficial Owner" shall have the meaning set forth in Rule
l3d-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 owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company.
FOURTH: Section 12 of the Plan is hereby amended by adding the
following to the end thereof:
Any provision of this Plan to the contrary notwithstanding, no action
taken on or after a Change of Control to amend, modify, freeze 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.
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IN WITNESS WHEREOF, this Amendment has been executed this _____ day of
________________, 1999.
TRINITY INDUSTRIES, INC.
By
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