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SUPPLEMENTAL RETIREMENT BENEFIT PLAN
FOR
W. RAY WALLACE
AMENDMENT NO. 1
WHEREAS, the Board of Directors wishes to amend the definition of "Annual
Compensation" to reflect annual earnings based on "earned" incentive
compensation rather than "paid," the definition of "Annual Compensation" shall
become as follows:
"Annual Compensation" shall mean the base, incentive, deferred and
other compensation earned by the Employee for a particular fiscal year, but
shall not include pension, profit sharing or other retirement plan
contributions or benefits, the grant or exercise of stock options, life and
health insurance premiums or benefits, medical reimbursements, reimburse
expenses, deferred incentive not ultimately paid, or any other perquisites.
IN WITNESS WHEREOF, the Company and Employee have executed this Amendment
on this 14th day of September 1995, effective as of the date the original plan
was approved by the Board of Directors of the Company.
TRINITY INDUSTRIES, INC.
By: /s/ JACK CUNNINGHAM
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Jack Cunningham
Vice President
/s/ W. RAY WALLACE
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W. Ray Wallace
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SUPPLEMENTAL RETIREMENT BENEFIT PLAN
FOR W. RAY WALLACE
AMENDMENT NO 2
The Supplemental Retirement Benefit Plan (the "Plan"), effective as of
July 18, 1990 between Trinity Industries, Inc. (the "Company") and W. Ray
Wallace, is hereby amended, effective as of May 6, 1997, as set forth below.
Any term which is not defined below shall have the meaning set forth
for such term in the Plan.
1. Section 4 of the Plan is hereby amended and restated by adding the
following sentence at the end thereof:
Notwithstanding the foregoing or the provisions of Section 5 hereof, in the
event of a Change in Control of the Company (as hereinafter defined), the
actuarial value of his Supplemental Retirement Benefits shall be paid into
a trust immediately following a Change in Control and, upon termination of
employment following a Change in Control, paid in a lump sum to Mr. W. Ray
Wallace within five days following such termination.
2. Section 6 of the Plan is hereby amended and restated to read as
follows:
6.
MATERIAL CHANGES AFFECTING THE COMPANY
In the event of a Change in Control (as hereinafter defined), the
Company shall deposit in trust for Employee with a national bank designated
by Employee that has offices in Dallas, Texas and a capital and surplus of
not less than Twenty-Five Million Dollars, as trustee,
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the actuarial equivalent of the Supplemental Retirement Benefits payable
hereunder, calculated as if such Supplemental Retirement benefits commence
twenty (20) days after the date of such Change in Control. The terms of
the trust shall provide (a) for payments comparable to the payments that
the Company would otherwise pay under this Agreement, (b) shall create a
spendthrift trust and (c) shall otherwise be in form and substance
determined by Employee.
For purposes hereof, a "Change in 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 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 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
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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
(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
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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 owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as their ownership of
stock of the Company.
3. The definition of "Annual Compensation" in Section 8 of the Plan is
hereby amended and restated as follows:
"Annual Compensation" shall mean the base, incentive, deferred and
other compensation earned by the Employee in respect of a particular fiscal
year, but shall not include pension, profit sharing or other retirement
plan contributions or benefits, the grant or exercise of
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stock options, life and health insurance premiums or benefits, medical
reimbursements, reimbursed expenses, or any other perquisites.
IN WITNESS WHEREOF, the Company has caused this Amendment to be
executed by a duly authorized officer of the Company and Executive has executed
this Amendment as of the day and year first above written.
TRINITY INDUSTRIES, INC.
By: /s/ JESS HAY
------------------------------------
/s/ W. RAY WALLACE
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W. RAY WALLACE
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SUPPLEMENTAL RETIREMENT BENEFIT PLAN
FOR W. RAY WALLACE
AMENDMENT NO. 3
The Supplemental Retirement Benefit Plan (the "Plan"), effective as of July
18, 1990 between Trinity Industries, Inc. (the "Company") and W. Ray Wallace, is
hereby amended, effective as of September 10, 1998 as set forth below:
1. The last sentence of Section 4 of the Plan is hereby deleted in its
entirety and replaced by the following:
Notwithstanding the foregoing or the provisions of Section 5 hereof,
in the event of and immediately following a Change in Control of the
Company (as hereinafter defined), the Company shall contribute to the
Trinity Industries, Inc. Supplemental Retirement and Deferred
Compensation Trust an amount equal to the actuarial present value of
Employee's Supplemental Retirement Benefits which shall be credited to
a separate account for Employee pursuant to said Trust. For purposes
of this Section 4 and Section 5 hereof, "actuarial present value"
shall be determined using the 1983 Group Annuity Mortality Table and
the interest rate which would be used by the PBGC as of the first day
of the calendar year in which the determination is being made for
valuing lump sum payments upon a plan termination or a reasonably
determined equivalent thereof if such rate is no longer published.
2. Section 5 of the Plan is hereby amended by adding the following to the
end thereof:
At any time after Employee begins to receive monthly payments under
this Plan, if Employee so requests, 90% of the actuarial present value
of any remaining Supplemental Retirement Benefits to be paid hereunder
shall be paid to Employee in the form of a single lump sum payment in
cash no later than 15 days following receipt of Employee's written
request therefor by the Company. The remaining 10% shall be forfeited
at the time of the distribution.
3. Section 6 of the Plan is hereby amended by deleting the first paragraph
thereof in its entirety.
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4. The Plan is hereby amended by adding the following new Section to the
end thereof:
9.
AMENDMENT AND TERMINATION
This Agreement may be amended or terminated only in a writing signed
by Employee and a duly authorized representative of the Company.
IN WITNESS WHEREOF, the Company has caused this Amendment to be executed
by a duly authorized officer of the Company and Executive has executed this
Amendment on this 21st day of December 1998.
TRINITY INDUSTRIES, INC.
By: /s/ JACK CUNNINGHAM
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Title: Vice President
/s/ W. RAY WALLACE
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W. Ray Wallace