<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 19, 1996
REGISTRATION NO. 333-08321
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
POST-EFFECTIVE
AMENDMENT NO. 2 ON FORM S-3*
TO FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
TRINITY INDUSTRIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 3743 75-0225040
(STATE OF INCORPORATION) (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
CLASSIFICATION CODE NUMBER ) IDENTIFICATION NO.)
2525 STEMMONS FREEWAY
DALLAS, TEXAS 75207
(214) 631-4420
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
-------------------------
F. DEAN PHELPS
VICE PRESIDENT
TRINITY INDUSTRIES, INC.
2525 STEMMONS FREEWAY
DALLAS, TEXAS 75207
(214) 631-4420
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
Copies to:
CHARLES C. REEDER, ESQ.
LOCKE PURNELL RAIN HARRELL
(A PROFESSIONAL CORPORATION)
2200 ROSS AVENUE, SUITE 2200
DALLAS, TEXAS 75201
(214) 740-8522
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after this Post-Effective Amendment becomes effective.
If the securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act Registration Statement number of the
earlier effective Registration Statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act Registration Statement number of the earlier effective
Registration Statement for the same offering. [ ]
<PAGE> 2
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE OF EACH PROPOSED MAXIMUM PROPOSED AMOUNT OF
CLASS OF SHARES TO BE AMOUNT TO BE AGGREGATE PRICE MAXIMUM AGGREGATE REGISTRATION
REGISTERED (1) REGISTERED PER SHARE OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, par 32,028 $1.17 $37,473 $-0-(2)
value $1.00 per share (including
the attached Preferred Share
Purchase Rights)
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</TABLE>
(1) THIS REGISTRATION STATEMENT RELATES TO (I) THE SHARES OF COMMON STOCK,
PAR VALUE $1.00 PER SHARE ("COMMON STOCK"), OF THE REGISTRANT AND (II)
THE PREFERRED SHARE PURCHASE RIGHTS THAT WILL BE ATTACHED TO AND
REPRESENTED BY THE CERTIFICATES ISSUED FOR THE COMMON STOCK (WHICH
PREFERRED SHARE PURCHASE RIGHTS HAVE NO MARKET VALUE INDEPENDENT OF
THE COMMON STOCK TO WHICH THEY ARE ATTACHED).
(2) FILING FEE PREVIOUSLY PAID IN CONNECTION WITH THE REGISTRATION OF THE
COMMON STOCK UNDER THE FORM S-4 REGISTRATION STATEMENT FILED JULY 17,
1996 ("FORM S-4").
-------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
*FILED AS A POST-EFFECTIVE AMENDMENT ON FORM S-3 TO SUCH FORM S-4
REGISTRATION STATEMENT PURSUANT TO THE PROVISIONS OF RULE 401(E) AND THE
PROCEDURE DESCRIBED THEREIN. SEE "INTRODUCTORY STATEMENT NOT FORMING PART OF
PROSPECTUS."
INTRODUCTORY STATEMENT NOT FORMING PART OF PROSPECTUS
TRINITY INDUSTRIES, INC. (THE "COMPANY") HEREBY AMENDS ITS REGISTRATION
STATEMENT ON FORM S-4 (NO. 333-08321) (THE "FORM S-4"), BY FILING THIS POST-
EFFECTIVE AMENDMENT NO. 2 ON FORM S-3 (THE "POST-EFFECTIVE AMENDMENT") RELATING
TO SHARES OF THE COMMON STOCK, $1.00 PAR VALUE PER SHARE, OF THE COMPANY
("COMPANY COMMON STOCK") THAT MAY BE ISSUED UPON EXERCISE OF OUTSTANDING STOCK
OPTIONS (THE "OPTIONS") BY THE HOLDER(S) THEREOF. THE OPTIONS WERE ISSUED
PURSUANT TO A STOCK OPTION AGREEMENT, DATED AS OF JULY 17, 1995 BY AND BETWEEN
TRANSCISCO INDUSTRIES, INC. ("TRANSCISCO") AND GEORGE A. TEDESCO("TEDESCO").
THE SHARES OF COMPANY COMMON STOCK ISSUABLE UPON EXERCISE OF THE OPTIONS WERE
REGISTERED ON THE FORM S-4.
THE COMPANY AND TRANSCISCO ENTERED INTO AN AGREEMENT AND PLAN OF MERGER,
DATED AS OF JUNE 17, 1996 (THE "MERGER AGREEMENT"), PURSUANT TO WHICH ON
SEPTEMBER 3, 1996 TRINITY Y, INC., A WHOLLY OWNED SUBSIDIARY OF THE COMPANY,
MERGED (THE"MERGER") WITH AND INTO TRANSCISCO, WITH TRANSCISCO AS THE SURVIVING
CORPORATION. IN THE MERGER, EACH OUTSTANDING SHARE OF COMMON STOCK, $.01 PAR
VALUE PER SHARE, OF TRANSCISCO ("TRANSCISCO COMMON STOCK") WAS CONVERTED INTO
THE RIGHT TO RECEIVE 0.1884 OF A SHARE OF COMPANY COMMON STOCK. IN ADDITION,
TRINITY ASSUMED THE OBLIGATIONS OF TRANSCISCO UNDER THE STOCK OPTION AGREEMENT.
AS A RESULT, THE OPTIONS ARE NO LONGER EXERCISABLE FOR SHARES OF TRANSCISCO
COMMON STOCK, BUT INSTEAD, UPON EXERCISE THEREOF, THE HOLDER(S) OF SUCH OPTIONS
WILL BE ENTITLED TO RECEIVE SHARES OF TRINITY COMMON STOCK IN LIEU OF SHARES OF
TRANSCISCO COMMON STOCK. THE SHARES OF COMPANY COMMON STOCK ISSUABLE UPON
EXERCISE OF THE OPTIONS WERE REGISTERED ON THE FORM S-4.
This is the second Post-Effective Amendment to the Form S-4 filed by
Trinity in connection with the merger and relates only to the shares of Company
Common Stock issuable upon exercise of the Options under the Stock Option
Agreement.
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<PAGE> 3
PROSPECTUS
32,028 SHARES
TRINITY INDUSTRIES, INC.
-----------------------------------
COMMON STOCK
($1.00 PAR VALUE PER SHARE)
-------------------------
This Prospectus relates to an aggregate of 32,028 shares (the
"Shares") of the common stock, $1.00 par value per share ("Company Common
Stock"), of Trinity Industries, Inc., a Delaware corporation (the "Company")
which may be issued upon the exercise of outstanding stock options (the
"Options") by the holder(s) thereof. The Options were issued pursuant to a
Stock Option Agreement, dated as of July 17, 1995 (the "Stock Option
Agreement") by and between Transcisco Industries, Inc., a Delaware corporation
("Transcisco") and George A. Tedesco ("Tedesco"). The Company and Transcisco
entered into a Merger Agreement, dated June 17, 1996 (the "Merger Agreement"),
by and among the Company, Trinity Y, a Delaware corporation and a wholly-owned
subsidiary of the Company ("Trinity Y"), and Transcisco, pursuant to which on
September 3, 1996, Trinity Y merged (the "Merger") with and into Transcisco,
with Transcisco as the surviving corporation. In the Merger, each outstanding
share of common stock, $.01 par value per share, of Transcisco ("Transcisco
Common Stock") was converted into the right to receive 0.1884 of a share of
Company Common Stock (together with the attached Preferred Share Purchase
Rights). In addition, the Company assumed the obligations of Transcisco under
the Stock Option Agreement. As a result, the Options are no longer exercisable
for shares of Transcisco Common Stock, but instead, upon exercise thereof, the
holder(s) will be entitled to receive shares of Company Common Stock in lieu of
shares of Transcisco Common Stock. The Merger is more fully described in the
Registration Statement on Form S-4, dated July 17, 1996, as amended by Post-
Effective Amendment No. 1 to such Registration Statement, dated July 19, 1996,
and as further amended by Post-Effective Amendment No. 2 on Form S-3 to such
Registration Statement, dated December 19, 1996.
Shares of Company Common Stock are listed and traded on the New York
Stock Exchange ("NYSE") under the symbol "TRN". On December 13, 1996, the
closing price for the shares of Company Common Stock on the NYSE, as reported
by the NYSE Composite Tape, was $35.25 per share. Prospective purchasers of
Company Common Stock are urged to obtain current information as to market
prices of Company Common Stock.
SEE "RISK FACTORS" ON PAGE 5 HEREOF FOR A DISCUSSION OF CERTAIN
FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF COMPANY COMMON
STOCK OFFERED HEREBY.
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THE SECURITIES TO WHICH THIS PROSPECTUS RELATES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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<PAGE> 4
No person is authorized to give any information or to make any representation
not contained in this Prospectus and, if given or made, such information or
representation should not be relied upon as having been authorized by the
Company or any other person. This Prospectus does not constitute an offer to
sell or the solicitation of an offer to buy nor shall there be any sale of
these securities in any State in which such offer, solicitation or sale would
be unlawful prior to registration or qualification under the securities laws of
any such state. Neither the delivery of this Prospectus nor any distribution
of the securities made under this Prospectus shall, under any circumstances,
create an implication that there has been no change in the affairs of the
Company since the date of this Prospectus.
------------------------------
THE DATE OF THIS PROSPECTUS IS DECEMBER 19, 1996
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<PAGE> 5
AVAILABLE INFORMATION
The Company is subject to the informational reporting requirements of
the Securities Exchange Act of 1934, as amended, (the "Exchange Act") and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's regional offices at Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511 and
Seven World Trade Center, 13th Floor, New York, New York 10048. Copies of such
material can be obtained at prescribed rates from the Public Reference Branch
of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. The Company
Common Stock is listed on the New York Stock Exchange, and copies of such
reports, proxy and information statements and other information may be
inspected at the New York Stock Exchange, 20 Broad Street, New York, New York
10005. Additionally, copies of reports, proxy and information statements and
other information filed with the Commission electronically may be inspected by
accessing the Commission's Internet site at http:\\www.sec.gov.
The Company will provide without charge to each person to whom a copy
of this Prospectus is delivered, including any beneficial owner, upon the
written or oral request of such person, a copy of all documents incorporated by
reference herein (other than exhibits to such documents unless such exhibits
are specifically incorporated by reference into the information that this
Prospectus incorporates). Requests for such documents should be addressed to
F. Dean Phelps, Vice President of the Company, at P.O. Box 568887, Dallas,
Texas 75356-8887; telephone number (214) 631-4420.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents and information heretofore filed by the
Company (File No. 1-6903) with the Commission pursuant to the Exchange Act are
hereby incorporated by reference into this Prospectus:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 1996; provided that only the following sections of the
Company's 1996 Annual Report to Stockholders, incorporated by reference in the
Annual Report on Form 10-K, are incorporated by reference in this Prospectus:
"Corporate Profile" (page 3), "Financial Summary" (page 15), "Management's
Discussion and Analysis of Financial Condition" (pages 16-17), "Report of
Independent Auditors" (page 29) and financial statements and supplementary data
(pages 18-29). Portions of the Company's 1996 Annual Report to Stockholders
not enumerated above are not hereby incorporated.
(2) The Company's Proxy Statement for the Company's 1996 Annual
Meeting of Stockholders; provided that only the following portions of such
Proxy Statement are incorporated by reference in this Prospectus: "Voting
Securities and Stockholders" (pages 2-3), "Election of Directors" (pages 3-4),
and "Executive Compensation and Other Matters" (pages 6-14). Portions of the
Proxy Statement for the Company's 1996 Annual Meeting of Stockholders not
enumerated above are not hereby incorporated.
(3) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended June 30, 1996 and September 30, 1996.
(4) The Company's Current Reports on Form 8-K, filed June 29, 1996
and September 10, 1996.
(5) The description of the Company's Common Stock, and the
attached Preferred Share Purchase Rights, to be offered hereby, contained in
the Company's Registration Statement on Form S-4, dated July 17, 1996
(Registration No. 333-08321), as amended by Post-Effective Amendment No. 1,
dated July 19, 1996.
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<PAGE> 6
(6) All other documents filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act after March 31, 1996 and prior to the date
of the exercise of all of the Options.
(7) All other documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Prospectus and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in the Prospectus and to be part hereof from the date of filing such
documents.
Any statement contained in any document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as
modified or superseded, to constitute a part of this Prospectus.
The Company has filed with the Commission a Registration Statement on
Form S-4, as amended by Post- Effective Amendment No. 1, and further amended by
Post-Effective Amendment No. 2 (herein, together with all amendments and
exhibits thereto, referred to as the "Registration Statement") under the
Securities Act. The Common Stock has been registered by the Company with the
Commission pursuant to the Registration Statement.
This Prospectus contains information concerning the Company but does
not contain all the information set forth in the Registration Statement,
certain parts of which have been omitted in accordance with the rules and
regulations of the Commission. The Registration Statement, including various
exhibits and schedules, may be inspected at the Commission's office in
Washington, D.C. Statements contained in this Prospectus as to the contents of
any contract or other document referred to herein are not necessarily complete,
and in each instance reference is made to the copy of such contract or other
document filed as an exhibit to the Registration Statement, each such statement
being qualified in all respects by such reference.
THE COMPANY
The Company was originally incorporated under the laws of the State of
Texas in 1933. On March 27, 1987, it became a Delaware corporation by merger
into a wholly-owned subsidiary of the same name. Its mailing address is P.O.
Box 568887, Dallas, Texas 75356-8887, its principal executive offices are
located at 2525 Stemmons Freeway, Dallas, Texas 75207, and its telephone number
at such address is (214) 631-4420.
The Company is engaged in the manufacture, marketing and leasing of a
variety of products consisting principally of (i) "Railcars" (i.e., railroad
freight cars), principally tank cars, hopper cars, gondola cars and intermodal
cars and miscellaneous other freight cars; (ii) "Marine Products" such as
boats, barges and various offshore service vessels for ocean and inland
waterway service and military vessels for the United States Government and, to
a limited extent, various size vessels for international transportation
companies; (iii) "Construction Products" such as highway guardrail, beams,
girders and columns used in construction of highway and railway bridges,
highway safety products, passenger loading bridges and conveyor systems for
airports and other people and baggage conveyance requirements, ready mix
concrete production and distribution, and providing raw materials to owners,
contractors and sub-contractors for use in the building and foundation
industry; (iv) "Containers" such as (a) extremely large, heavy pressure vessels
and other heavy welded products, including industrial silencers, desalinators,
evaporators, and gas processing systems, (b) pressure and non-pressure
containers for the storage and transportation of liquefied gases, brewery
products and other liquid and dry products, and (c) heat transfer equipment for
the chemical, petroleum and petrochemical industries; (v) "Metal Components"
such as weld fittings (tees, elbows, reducers, caps, flanges, etc.,) used in
pressure piping systems and container heads (the ends of pressure and non-
pressure containers) for use internally and
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<PAGE> 7
by other manufacturers of containers; and (vi) "Leasing" of its manufactured
railcars and barges to various industries.
Further information concerning the Company is incorporated by
reference herein as and only to the extent set forth on page 3 hereof.
RISK FACTORS
RISKS ASSOCIATED WITH RAILCAR SEGMENT
Revenues derived from the manufacture and sale of railcars and railcar
parts, principally tank cars and freight cars, accounted for approximately 50%,
50% and 41% of the Company's revenues in fiscal years 1996, 1995 and 1994,
respectively. Annual production of railcars on an industry-wide basis has
widely fluctuated over the past two decades. The period from 1980 - 1988 was
negatively impacted by production overcapacity, the United States embargo on
the exportation of grain to the Soviet Union and changes in the tax laws
regarding investment tax credit and depreciation methods and lives. Since that
time, however, the overall use of railroads for freight transportation has
increased, industry overcapacity has been reduced and a large number of
railcars have reached or neared the end of their useful economic lives. These
factors, coupled with relatively strong general economic conditions, have
resulted in increased railcar production industry-wide. There can be no
assurance, however, that such factors and economic conditions will remain
favorable or that significant fluctuations in such factors and conditions will
not occur that may have a material adverse affect on the results of operations
and financial condition of the Company.
The Company markets to three broad categories of customers -
railroads, leasing companies, and end users, other than railroads, of railcars
who are shippers. Many times the economic factors and conditions motivating
one category of customers to acquire railcars may not equally motivate one or
both of the other categories of customers to acquire railcars. This factor
contributes to the limited predictability of railcar order flows. As a result,
there can be no assurance that the Company would not be adversely affected by a
temporary shortage of railcar orders. In addition, due to the large size of
railcar orders, and variations in the mix of car types ordered, the number and
type of railcars produced in any given quarter (as well as the size of the
Company's railcar orders) may fluctuate greatly and, consequently, the
Company's quarterly revenues and income from operations may vary substantially.
The Company's revenues and income from the railcar segment are also subject to
the effects of the capital budgeting patterns of its railcar customers.
RISKS ASSOCIATED WITH MARINE PRODUCTS SEGMENT
The shipbuilding industry is a highly competitive industry. In
general, during the 1990's, the U.S. shipbuilding industry has been
characterized by substantial excess capacity because of the significant decline
in U.S. Navy shipbuilding spending and the difficulties experienced by U.S.
shipbuilders in competing successfully for international commercial projects
against foreign shipyards, many of which are heavily subsidized by their
governments. As a result of these factors, competition by U.S. shipbuilders
for domestic commercial projects has remained intense. Such competition has
resulted in substantial pressure on pricing, contracts for the construction of
vessels are usually awarded on a competitive bid basis. Although the Company
believes customers consider, among other things, the availability and technical
capabilities of equipment and personnel, efficiency, condition of equipment,
safety record and reputation, price competition is currently a primary factor
in determining which qualified shipbuilder is awarded a contract.
RISKS ASSOCIATED WITH CONSTRUCTION PRODUCTS SEGMENT
Demand for the Company's construction products is directly related to
activity in the construction industry and general economic conditions. Various
economic factors beyond the Company's control affect the markets for its
construction products, including the level of new residential, commercial and
infrastructure construction
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<PAGE> 8
activity, which is in turn affected by movement in interest rates, the
availability of short- and long-term financing and the availability of public
funds for infrastructure projects.
ENVIRONMENTAL MATTERS
The Company's subsidiaries are subject to comprehensive and frequently
changing federal, state and local environmental laws and regulations, including
those governing emissions of air pollutants, discharges of wastewater and storm
waters, and the disposal of non-hazardous and hazardous waste. The Company
anticipates that it may incur additional costs in the future to comply with
currently existing laws and regulations, new regulatory requirements arising
from recently enacted statutes, particularly those relating to the Clean Air
Act Amendments of 1990, and any new statutory requirements.
COMPETITION
The Company faces competition in each of its segments and has numerous
competitors, and some competitors in certain segments are larger and have
greater financial resources than the Company. There can be no assurance that
the Company will be able to continue to compete successfully in its markets.
Because the Company competes, in part, on the technical advantages and cost of
its products, significant technical advances by competitors or the achievement
by such competitors of improved operating efficiencies that enable them to
reduce prices could reduce the Company's competitive advantage and, thereby,
adversely affect the Company's business and financial results.
-6-
<PAGE> 9
THE STOCK OPTIONS
Pursuant to the Merger, each share of Transcisco Common Stock issued
and outstanding immediately prior to the Effective Time was converted into,
exchanged for and represented the right to receive 0.1884 of a share of Company
Common Stock (together with the attached Preferred Share Purchase Rights).
Prior to the Merger, the Stock Option Agreement represented the right to
purchase up to 170,000 shares of Transcisco Common Stock at an exercise price
of $0.22 per share. As a result of the Merger, the Stock Option Agreement now
represents the right to purchase up to 32,028 shares of Company Common Stock at
an exercise price of $1.17 per share.
Except for the transactions contemplated pursuant to this Prospectus
or the Merger Agreement, to the best knowledge of the Company, there is not,
and there has not been in the past three years, any material relationship
between the Company and its affiliates, on the one hand, and Tedesco, on the
other.
PLAN OF DISTRIBUTION
The Shares will be offered from time to time to the holder(s) of the
Options upon the exercise of such Options at an exercise price of $1.17 per
share.
USE OF PROCEEDS
The net proceeds to the Company from the issuance of shares of the
Company Common Stock upon the exercise of the Options (approximately $37,473,
assuming the exercise of all the Options) will be used for general corporate
purposes.
LEGAL MATTERS
The legality of the shares of Company Common Stock offered hereby will
be passed upon for the Company by Locke Purnell Rain Harrell (A Professional
Corporation), Dallas, Texas.
EXPERTS
The consolidated financial statements and schedule of the Company and
its subsidiaries, appearing in or incorporated by reference in the Company's
Annual Report on Form 10-K for the fiscal year ended March 31, 1996 have been
audited by Ernst & Young LLP, independent auditors, as set forth in their
reports thereon incorporated by reference elsewhere herein. Such consolidated
financial statements and schedule are incorporated by reference herein in
reliance upon such reports given upon the authority of such firm as experts in
accounting and auditing.
Audited consolidated financial statements and schedules of the Company
to be included in subsequently filed documents will be incorporated herein in
reliance upon the reports of Ernst & Young LLP pertaining to such financial
statements and schedules (to the extent covered by consents filed with the
Securities and Exchange Commission) given upon the authority of such firms as
experts in accounting and auditing.
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<PAGE> 10
================================================================================
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS
PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY SELLING
STOCKHOLDER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, ANY SECURITIES TO ANY PERSON IN ANY
JURISDICTION WHERE SUCH AN OFFER OR SOLICITATION WOULD BE UNLAWFUL. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
TABLE OF CONTENTS
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Page
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Available Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Incorporation of Certain Documents by
Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Stock Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
================================================================================
================================================================================
32,028 SHARES
TRINITY INDUSTRIES, INC.
COMMON STOCK
--------------------
PROSPECTUS
--------------------
December 19, 1996
================================================================================
<PAGE> 11
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all expenses in connection with the
registration of the shares of Company Common Stock being offered hereby. All
amounts are estimates except for the Registration Fee.
<TABLE>
<S> <C>
Registration Fee $ -0-
-----------
Legal Fees and Expenses $ 5,000
----------
Accounting Fees and Expenses $ 1,000
----------
Miscellaneous Expenses $ 1,000
----------
Total $ 7,000
----------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnity directors and officers as well as
other employees and individuals against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (collectively, a "Proceeding"), and other than an action by or in
the right of the corporation (a "derivative action"), if they acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal Proceeding,
had no reason to believe that their conduct was unlawful. With respect to
derivative actions, a standard similar to the foregoing is applicable, except
that indemnification only extends to expenses (including attorneys' fees)
actually and reasonably incurred in connection with the defense or settlement
of such action or suit, and court approval is required before there can be any
indemnification where the person seeking indemnification has been found to be
liable to the corporation. The statute states that it is not to be deemed
exclusive of any other rights that may be granted under any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise.
Under Article VI of the Registrant's Bylaws, the Registrant is to
indemnify each person who is or was or has agreed to become a director,
officer, employee or agent of the Registrant or is or was serving or has agreed
to serve at the request of the Registrant in a similar capacity for another
corporation, partnership, joint venture, trust or other enterprise, to the
fullest extent authorized or permitted (i) by the DGCL or by any other
applicable law or any amendment thereof or (ii) by the Registrant's Certificate
of Incorporation. Article VI of the Registrant's Bylaws further states that
the Registrant will indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed Proceeding (other
than an action by or in the right of the Registrant) by reason of the fact that
he is or was or has agreed to become a director, officer, employee or agent of
the Registrant, or is or was serving or has agreed to serve at the request of
the Registrant as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by
reason of any action alleged to have been taken or omitted in such capacity,
against costs, charges, expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or on
his behalf in connection with such Proceeding and any appeal therefrom, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Registrant, and, with respect to any
criminal Proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any Proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Registrant, and, with respect to any criminal Proceeding, had
reasonable cause to believe that his conduct was unlawful.
II-1
<PAGE> 12
The Registrant will indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Registrant to procure a judgment in its favor by
reason of the fact that he is or was or has agreed to become a director,
officer, employee or agent of the Registrant, or is or was serving or has
agreed to serve at the request of the Registrant as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, against costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection with the defense or settlement of such action or suit and any appeal
therefrom, if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Registrant, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Registrant
unless and only to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of such liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such costs, charges and expenses that the Court of Chancery of
Delaware or such other court shall deem proper.
The indemnification described above (unless ordered by a court) shall
be paid by the Registrant unless a determination is made (i) by the
Registrant's Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such Proceeding, or (ii) if such a quorum is
not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
Registrant's stockholders, that indemnification of the director, officer,
employee or agent is not proper in the circumstances because he has not met the
applicable standard of conduct set forth above.
To the extent that a director, officer, employee or agent of the
Registrant has been successful on the merits or otherwise, including, without
limitation, the dismissal of an action, without prejudice, in defense of any
Proceeding described above, or in defense of any claim, issue or matter
therein, he shall be indemnified against all costs, charges and expenses
(including attorneys' fees) actually and reasonably incurred by him or on his
behalf in connection therewith.
Under the Registrant's Bylaws, the Registrant is to advance expenses
to indemnitees to the fullest extent authorized or permitted (i) by the DGCL or
by any other applicable law or any amendment thereof or (ii) by the
Registrant's Certificate of Incorporation. Article VI of the Registrant's
Bylaws provides that costs, charges and expenses (including attorneys' fees)
incurred by a person seeking indemnification under Article VI of the
Registrant's Bylaws in defending a Proceeding shall be paid by the Registrant
in advance of the final disposition of such Proceeding; provided, however, that
the payment of such costs, charges and expenses incurred by a director or
officer in his capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such person while a director or officer)
in advance of the final disposition of such Proceeding shall be made only upon
receipt of an undertaking by or on behalf of the director or officer to repay
all amounts so advanced in the event that it shall ultimately be determined
that such director or officer is not entitled to be indemnified by the
Registrant. Such costs, charges and expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the
Registrant's Board of Directors deems appropriate. The Registrant's Board of
Directors may, upon approval of such director, officer, employee or agent of
the Registrant, authorize the Registrant's counsel to represent such person in
any Proceeding, whether or not the Registrant is a party to such Proceeding.
The indemnification and advancement of costs, charges and expenses
provided by the Registrant's Bylaws shall not be deemed exclusive of any other
rights to which a person seeking indemnification or advancement of costs,
charges and expenses may be entitled under any law (common or statutory),
agreement, vote of stockholders or disinterested directors or otherwise, both
as to action in his official capacity and as to action in another capacity
while holding office or while employed by or acting as agent for the
Registrant, and shall continue as to a person who has ceased to be a director,
officer, employee or agent as to actions taken while he was such a director,
officer, employee or agent, and shall inure to the
II-2
<PAGE> 13
benefit of the estate, heirs, executors and administrators of such person.
Repeal or modification of Article VI of the Registrant's Bylaws or any repeal
or modification of relevant provisions of the DGCL or any other applicable laws
shall not in any way diminish any rights to indemnification of such director,
officer, employee or agent or the obligations of the corporation arising
thereunder.
Section 102(b) (7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, but excludes specifically liability
for any (i) breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) acts or omissions not in good faith or involving intentional
misconduct or a knowing violation of law, (iii) payments of unlawful dividends
or unlawful stock repurchases or redemptions, or (iv) transactions from which
the director derived an improper personal benefits. The provision does not
limit equitable remedies, such as an injunction or rescission for breach of a
director's fiduciary duty of care.
The Registrant's Certificate of Incorporation contains a provision
eliminating the personal liability of a director from breaches of fiduciary
duty, subject to the exceptions described above.
The Registrant has entered into Indemnity Agreements with all of its
officers and directors that establish contract rights to indemnification
substantially similar to the rights to indemnification provided for in the
Registrant's Bylaws.
The Registrant has in force an officers' and directors' liability
insurance policy insuring, up to specified amounts and with specified
exceptions, directors, and officers and former directors and officers of the
Registrant and its subsidiaries against damages, judgments, settlements and
costs for which they are not indemnified by the Registrant that any such
persons may become legally obligated to pay on account of claims made against
them for any error, misstatement or misleading statement, act or omission, or
neglect or breach of duty committed, attempted or allegedly committed or
attempted by such persons in the discharge of their duties to the Registrant in
their capacities as directors or officers, or any matter claimed against them
solely by reason of their serving in such capacities. The officers' and
directors' liability insurance policy also insures the Registrant, up to
specified amounts and with specified exceptions, against any indemnification
payments made by the Registrant to directors and officers and former directors
and officers.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
**2(a) Stock Option Agreement, dated as of July 17, 1995, by and between
Tedesco and Transcisco.
4(a) Certificate of Incorporation of the Registrant (incorporated by
reference to Exhibit 3.A to the Registrant's Registration Statement
No. 33-10937, filed with the Commission on April 8, 1987).
**4(b) Bylaws of the Registrant.
4(c) Specimen Stock Certificate for Common Stock (incorporated by reference
to Exhibit 3B to Registrant's Registration Statement No. 33-10937,
filed with the Commission on April 8, 1987).
II-3
<PAGE> 14
4(d) Rights Agreement, dated as of April 11, 1989, by and between the
Registrant and NCNB Texas National Bank, as Rights Agent (incorporated
by reference to Exhibit 1 to the Registrant's Registration Statement
on Form 8-A, filed with the Commission on May 2, 1989).
*5 Opinion and Consent of Locke Purnell Rain Harrell (A Professional
Corporation) with respect to the legality of the securities being
registered hereby.
*23(a) Consent of Locke Purnell Rain Harrell (A Professional Corporation)
(contained in its opinion included in Exhibit 5 above).
**23(b) Consent of Ernst & Young LLP.
*24(a) Powers of Attorney.
**24(b) Power of Attorney of John L. Adams.
**24(c) Power of Attorney of Diana Natalicio.
* Previously filed
** Filed Herewith
(b) FINANCIAL STATEMENT SCHEDULES
Not Applicable.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement, and to include
any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment to this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each
filing of any employee benefit plan's annual report pursuant to Section 15(d)
of the Exchange Act) that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities as that time
shall be deemed to the initial bona fide offering thereof.
(5) That, insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
II-4
<PAGE> 15
Exchange Commission, such indemnification is against public policy as expressed
in the act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
(6) That, for purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
II-5
<PAGE> 16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing a Post-Effective Amendment to
Form S-4 on Form S-3 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto, duly authorized, in the
City of Dallas, State of Texas, on December 19, 1996.
TRINITY INDUSTRIES, INC.
By: /s/ F. DEAN PHELPS
--------------------------------
F. DEAN PHELPS
VICE PRESIDENT
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities set forth below on December 19, 1996.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
(a) Principal Executive Officer
/s/ W. RAY WALLACE* Chairman, Chief
------------------------- Executive Officer and
W. Ray Wallace Director
(b) Principal Financial Officer
/s/ JOHN T. SANFORD* Executive Vice President
-------------------------
JOHN T. SANFORD
(c) Principal Accounting Officer
/s/ F. DEAN PHELPS Vice President
-------------------------
F. DEAN PHELPS
</TABLE>
II-6
<PAGE> 17
<TABLE>
<S> <C>
(d) Other Directors
/s/ JOHN L. ADAMS* Director
-------------------------
JOHN L. ADAMS
/s/ DAVID W. BIEGLER* Director
-------------------------
DAVID W. BIEGLER
/s/ BARRY J. GALT* Director
-------------------------
BARRY J. GALT
/s/ CLIFFORD J. GRUM* Director
-------------------------
CLIFFORD J. GRUM
/s/ DEAN P. GUERIN* Director
-------------------------
DEAN P. GUERIN
/s/ JESS T. HAY* Director
-------------------------
JESS T. HAY
/s/ EDMUND M. HOFFMAN* Director
-------------------------
EDMUND M. HOFFMAN
/s/ DIANA NATALICIO* Director
-------------------------
DIANA NATALICIO
/s/ TIMOTHY R. WALLACE* Director
-------------------------
TIMOTHY R. WALLACE
*By:/s/ F. DEAN PHELPS
------------------
F. DEAN PHELPS
ATTORNEY-IN-FACT
</TABLE>
II-7
<PAGE> 18
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------ -------
<S> <C>
2(a) Stock Option Agreement, dated as of July 17, 1995, by and between
Tedesco and Transcisco.
4(b) Bylaws of the Registrant.
23(b) Consent of Ernst & Young LLP.
24(b) Power of Attorney of John L. Adams.
24(c) Power of Attorney of Diana Natalicio.
</TABLE>
<PAGE> 1
TRANSCISCO INDUSTRIES EXHIBIT 2(A)
STOCK OPTION AGREEMENT
1. Grant of Option
For good and valuable consideration, namely, the execution of
the Purchase Agreement dated as of July 17, 1995, for a certain Class F
Creditor's Claim, Transcisco Industries, Inc. (the "Company") hereby grants to
George A. Tedesco (the "Optionee") the irrevocable right and option to purchase
170,000 shares of the Company's common stock (the "Shares") at the price of
$.22 per share (the "Exercise Price Per Share"). The option is granted hereby
subject to the terms and conditions of this Stock Option Agreement.
2. Expiration Date
This option shall expire at the close of business on July 17,
2005 (the "Expiration Date").
3. Exercisability
This option is exercisable in increments of no fewer than
10,000 shares by the Optionee at any time and from time to time following its
grant and prior to the close of business on the Expiration Date using the
Notice of Exercise of Stock Option attached hereto as Exhibit A. The Optionee
shall pay cash for the Shares with respect to which this option is exercised,
unless another form of consideration is acceptable to the Company at the time
of exercise.
4. Rights as Shareholder
Subject to the terms and conditions of this Stock Option
Agreement, the Optionee shall have no rights of a shareholder with respect to
the Shares until the Optionee has exercised this option. With respect to the
Shares as to which the Optionee shall have exercised this Option, the Optionee
shall have all of the rights of a shareholder of the Company from and after the
date that the Optionee delivers payment of the exercise price until such time
as the Optionee disposes of the Shares.
5. Compliance with Laws and Regulations
The issuance and transfer of the Shares hereunder shall be
subject to and conditioned upon compliance by the Company and the Optionee with
all applicable state and federal laws and regulations and with all applicable
requirements of any stock exchange on which the Company's common stock may be
listed at the time of such issuance and transfer.
6. Successors and Assigns
This Stock Option Agreement shall inure to the benefit of the
successors and assigns of the Company. This Stock Option Agreement may not be
sold, assigned or transferred by Optionee (except by operation of law, and
except to the Trustee of a revocable living trust created by the Optionee),
without the prior written consent of the Company, which consent shall not be
unreasonably withheld, delayed or conditioned. Subject to the foregoing, this
Stock Option Agreement shall be binding on the Optionee and the Optionee's
heirs, executors, administrators, successors and assigns.
<PAGE> 2
7. Interpretation
Any dispute regarding the interpretation of this Stock Option
Agreement shall be submitted by the Optionee or by the Company to the Board of
Directors of the Company, which shall review such dispute at its next regular
meeting. The resolution of such a dispute by the Board of Directors shall be
final and binding on the Company and on the Optionee.
8. Governing Law; Severability
This Stock Option Agreement shall be governed by and construed
in accordance with the laws of the State of California, excluding that body of
laws pertaining to conflicts of laws. Should any provision of this Stock
Option Agreement be determined by a court of law to be illegal or
unenforceable, the other provisions shall nevertheless remain effective and
shall remain enforceable.
9. Further Instruments
The parties agree to execute such further instruments and to
take such further action as may be reasonably necessary to carry out the
purposes and intent of this Stock Option Agreement.
10. Entire Agreement
This Stock Option Agreement, together with the Exhibits hereto
constitutes the entire agreement of the parties with respect to the option
granted hereby and supersedes all prior understandings and agreements with
respect thereto.
11. Notices
All notices, requests, demands, and other communications made
in connection with this Stock Option Agreement shall be in writing and shall be
deemed to have been duly given (i) on the date of delivery, if delivered to the
persons identified below, (ii) on the date of receipt by the other party's fax
machine, if transmitted by fax to the persons identified below, or (iii) three
days after mailing, if mailed by certified mail, return receipt requested,
addressed as follows:
If to the Company:
Transcisco Industries, Inc.
Attn: Chief Executive Officer
601 California Street, Suite 1301
San Francisco, CA 94108
Fax No.: (415) 788-0583
with a copy to:
Joseph S. Radovsky, Esq.
Greene, Radovsky, Maloney & Share
Spear Street Tower, Suite 4200
One Market Plaza
San Francisco, CA 94105
Fax No.: (415) 777-4961
2
<PAGE> 3
If to the Optionee:
George A. Tedesco
3851 Little County Road
River Wilderness
Parrish, FL 34219
Fax No.: (813) 778-2744
With a copy to:
James N. Dawe, Esq.
McCabe, Schwartz, Evans, Levy & Dawe
California Plaza
2121 North California Boulevard, Suite 1010
Walnut Creek, CA 94596
Fax No.: (510) 934-1507
IN WITNESS WHEREOF, the Company and George A. Tedesco have executed
this Stock Option Agreement as of July 17, 1995.
TRANSCISCO INDUSTRIES, INC.
By: /s/ STEVEN L. PEASE
----------------------------------
Steven L. Pease
Its President and CEO
OPTIONEE:
/s/ GEORGE A. TEDESCO
-------------------------------------
George A. Tedesco
3
<PAGE> 4
EXHIBIT A
NOTICE OF EXERCISE OF STOCK OPTION
TO: Transcisco Industries, Inc.
FROM: George A. Tedesco
RE: Exercise of Stock Option
Under our Stock Option Agreement dated as of July 17, 1995, I
elect to purchase the following shares of common stock of Transcisco
Industries, Inc. (the "Company"):
Number of shares as to which I am
exercising the option at this time:
------------
Total exercise price: $
------------
Cash payment delivered with this
notice: $
------------
I understand that the shares so purchased may be issued
pursuant to one or more exemptions from registration under state and federal
law; that transfer will be restricted in the absence of registration and
qualification; and, further, that any share certificate issued shall bear a
legend restriction against any transfer in the absence of registration and
qualification, or an exemption therefrom.
I agree to pay to the Company in full the amount of any
federal, state, or local income, employment, or other withholding taxes, in any
form (including all cash) requested by the Company.
Please issue the certificate for the shares purchased as
follows:
------------------------------------------------------------------------
.
- ------------------------------------
Date:
----------------------- -------------------------------------
George A. Tedesco
4
<PAGE> 1
Exhibit 4(b)
As Amended December 12, 1996
BYLAWS
OF
TRINITY INDUSTRIES, INC.
ARTICLE I.
Offices
Section 1. The registered office shall be located in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
within or without the State of Delaware as the Board of Directors may from time
to time determine, or as the business of the corporation may require.
ARTICLE II.
Meetings of Stockholders
Section 12. Meetings of the stockholders shall be held in the City of
Dallas, County of Dallas, State of Texas.
Section 2. The annual meeting of stockholders, commencing in the year
1987, shall be held at 9:30 o'clock in the morning on the third Wednesday in
July of each year, unless such day is a legal holiday, in which case such
meeting shall be held at the specified time on the first day thereafter which
is not a legal holiday.
At such meeting, the stockholders entitled to vote thereat shall elect
by a plurality vote a Board of Directors. Nominations for election to the
Board of Directors shall be made at such meeting only by or at the direction of
the Board of Directors, by a nominating committee or person appointed by the
Board of
<PAGE> 2
Directors, or by a stockholder of the corporation entitled to vote for the
election of directors at the meeting who complies with the notice procedures
set forth in this Section 2. Such nominations, other than those made by or at
the direction of the Board of Directors, shall be made pursuant to timely
notice in writing to the Secretary of the corporation. To be timely, a
stockholder's notice shall be delivered to, or mailed and received at, the
principal executive offices of the corporation not less than fifty (50) days
nor more than seventy-five (75) days prior to the date of the meeting;
provided, however, that in the event that less than sixty-five (65) days'
notice or prior public disclosure of the date of the meeting is given or made
to stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the fifteenth (15th) day following the day
on which such notice of the date of the meeting was mailed or such public
disclosure was made. Such stockholder's notice to the Secretary shall set
forth (a) as to each person whom the stockholder proposes to nominate for
election or re-election as a director, (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or employment of
the person, (iii) the class and number of shares of capital stock of the
corporation which are beneficially owned by the person, and (iv) any other
information relating to the person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to Rule 14a under
the Securities Exchange Act of 1934, as amended; and (b) as to the stockholder
giving the notice, (i) the name and record address of the stockholder and (ii)
the class and number of shares of capital stock of the corporation which are
beneficially owned by the stockholder. The corporation may require any
proposed nominee to furnish such other information as may reasonably be
required by the corporation to determine the eligibility of such proposed
nominee to serve as director of the corporation. No person shall be eligible
for election as a director of the corporation unless nominated in accordance
with the procedures set forth herein.
The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
2
<PAGE> 3
At each annual meeting of the stockholders, only such business shall
be conducted as shall have properly been brought before the meeting. To be
properly before the meeting, the business to be conducted must be specified in
the notice of meeting (or any supplement thereto) given by or at the direction
of the Board of Directors, otherwise properly brought before the meeting by or
at the direction of the Board of Directors, or otherwise properly brought
before the meeting by a stockholder. In addition to any other applicable
requirements, for business to be properly brought before the meeting by a
stockholder, the stockholder must have given timely notice thereof in writing
to the Secretary of the corporation. To be timely, a stockholder's notice must
be delivered to or mailed and received at the principal executive offices of
the corporation not less than fifty (50) days nor more than seventy-five (75)
days prior to the meeting; provided, however, that in the event that less than
sixty-five (65) days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be
timely must be so received not later than the close of business on the
fifteenth (15th) day following the day on which such notice of the date of the
annual meeting was mailed or such public disclosure was made. A stockholder's
notice to the Secretary of the corporation shall set forth as to each matter
that the stockholder proposes to bring before the annual meeting, (i) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (ii) the name
and record address of the stockholder proposing such business, (iii) the class
and number of shares of the corporation which are beneficially owned by the
stockholder, and (iv) any material interest of the stockholder in such
business. Notwithstanding the foregoing provisions of this Section 2, a
stockholder seeking to have a proposal included in the corporation's proxy
statement shall comply with the requirements of Regulation 14A under the
Securities Exchange Act of 1934, as amended (including, but not limited to,
Rule 14a-8 or its successor provision).
Notwithstanding anything in these Bylaws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 2; provided, however,
3
<PAGE> 4
that nothing in this Section 2 shall be deemed to preclude discussion by any
stockholder of any business properly brought before the annual meeting in
accordance with the procedures set forth in this Section 2.
The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that the business sought to be so conducted was not
properly brought before the meeting in accordance with the provisions of this
Section 2, and if he should so determine, he shall so declare to the meeting
and any such business not properly brought before the meeting shall not be
transacted.
Section 3. Special meetings of the stockholders may be called by the
chief executive officer or a majority of the Board of Directors.
Section 4. Written or printed notice stating the place, day and hour
of the meeting and, in the case of a special meeting, the purpose or purposes
for which the meeting is called, shall be given not less than ten (10) nor more
than sixty (60) days before the date of the meeting, either personally or by
mail, by or at the direction of the President, the Secretary, or the officer or
person calling the meeting, to each stockholder of record entitled to vote at
such meeting.
Section 5. Business transacted at any special meeting shall be
confined to the purposes stated in the notice thereof.
Section 6. The holders of a majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at meetings of
stockholders except as otherwise provided by any applicable statute. If,
however, a quorum shall not be present or represented at any meeting of the
stockholders, the stockholders present in person or represented by proxy shall
have power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented.
At such adjourned meeting at which a quorum shall be present or represented,
any business may be transacted which might have been transacted at the meeting
as originally notified.
Section 7. Except as provided in Section 2 hereof with respect to the
election of the Board of Directors, at a meeting at which a quorum is present,
the vote of the holders of a majority of the shares present in person or
represented by proxy at the meeting and entitled to vote shall be the act of
the
4
<PAGE> 5
stockholders' meeting, unless the vote of a greater number is required by law
or the Certificate of Incorporation.
Section 8. Each outstanding share, regardless of class, shall be
entitled to one vote on each matter submitted to a vote at a meeting of
stockholders, except to the extent that the voting rights of the shares of any
class are limited or denied by the Certificate of Incorporation.
Section 9. At any meeting of the stockholders, every stockholder
having the right to vote may vote either in person, or by proxy appointed by an
instrument in writing as to a particular meeting and any adjournment or
adjournments thereof subscribed by such stockholder or by his duly authorized
attorney-in-fact. A proxy shall be revocable unless expressly provided therein
to be irrevocable and unless otherwise provided by law.
Section 10. The officer or agent having charge of the stock transfer
books shall make, at least ten (10) days before each meeting of stockholders, a
complete list of the stockholders entitled to vote at such meeting or any
adjournment thereof, arranged in alphabetical order, with the address of and
number of shares held by each, which list, for a period of ten (10) days prior
to such meeting, shall be kept on file at the registered office of the
corporation, and shall be subject to inspection by any stockholder at any time
during usual business hours. Such list shall also be produced and kept open at
the time and place of the meeting, and shall be subject to the inspection of
any stockholder during the whole time of the meeting. The original stock
transfer books shall be prima facie evidence as to who are the stockholders
entitled to examine such list or transfer book or to vote at any such meeting
of stockholders.
ARTICLE III.
Directors
Section 1. The number of directors of the corporation shall be ten
(10). The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each
director elected shall hold office until his successor is elected and
qualified; provided, any director may be removed at any time, with or without
cause, by the holders of a majority of the shares entitled to vote,
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represented in person or by proxy, at any duly constituted meeting of
stockholders called for the purpose of removing any such director or directors.
Directors need not be residents of the State of Delaware or stockholders of the
corporation.
Section 2. Any vacancy occurring in the Board of Directors may be
filled by the affirmative vote of a majority of the remaining directors though
less than a quorum of the Board of Directors. A director elected to fill a
vacancy shall be elected for the unexpired term of his predecessor in office.
Any newly created directorship(s) resulting from an increase in the authorized
number of directors elected by all stockholders entitled to vote as a single
class shall be filled by the affirmative vote of a majority of the remaining
directors, even though less than a quorum of the proposed Board of Directors.
Section 3. The business and affairs of the corporation shall be
managed by its Board of Directors which may exercise all such powers of the
corporation and do all such lawful acts and things as are not by statute, the
Certificate of Incorporation, or these Bylaws directed or required to be
exercised and done by the stockholders.
Section 4. Meetings of the Board of Directors, regular or special,
may be held either within or without the State of Delaware.
Section 5. The first meeting of each newly elected Board of Directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting, and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of
the stockholders to fix the time and place of such first meeting of the newly
elected Board of Directors, or in the event such meeting is not held at the
time and place so fixed by the stockholders, the meeting may be held at such
time and place as shall be specified in a notice given as hereinafter provided
for special meetings of the Board of Directors, or as shall be specified in a
written waiver signed by all of the directors.
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Section 6. Regular meetings of the Board of Directors may be held at
such time and at such place as shall from time to time be determined by the
Board. Special meetings of the Board of Directors may be called by the
Secretary on the written request of two directors.
Section 7. Written notice of regular meetings of the Board of
Directors shall not be required. Special meetings of the Board of Directors
may be called upon twenty-four (24) hours' notice to each director, or such
shorter period of time as the person calling the meeting deems appropriate in
the circumstances, either personally or by mail, telephone or telegram.
Neither the business to be transacted at, nor the purposes of, any special
meeting of the Board of Directors need be specified in the notice or waiver of
notice of such special meeting.
Section 8. A majority of the directors shall constitute a quorum for
the transaction of business, and the act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors, unless a greater number is required by the Certificate of
Incorporation. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 9. The Board of Directors, by resolution adopted by a
majority of the whole Board, may designate three or more directors to
constitute an executive committee, which committee, unless its authority shall
be otherwise expressly limited by such resolution, shall have and may exercise
all of the authority of the Board of Directors in the business and affairs of
the corporation except where action of the Board of Directors is specified by
statute. Vacancies in the membership of the committee shall be filled by the
Board of Directors at a regular or special meeting of the Board of Directors.
The executive committee shall keep regular minutes of its proceedings and
report the same to the Board when required. The designation of such committee
and the delegation thereto of authority shall not operate to relieve the Board
of Directors, or any member thereof, of any responsibility imposed upon it or
him by law.
ARTICLE IV.
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Notices
Section 1. Except as otherwise provided in these Bylaws, notices to
directors and stockholders shall be in writing, and delivered personally or
mailed to the directors or stockholders at their addresses appearing on the
books of the corporation. If mailed, such notice shall be deemed to be given
when deposited in the United States mail with postage thereon prepaid. Notice
to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given to any
stockholder or director under the provisions of the statutes, the Certificate
of Incorporation or these Bylaws, a waiver thereof in writing, signed by the
person or persons entitled to such notice, whether before or after the time
stated therein, shall be equivalent to the giving of such notice.
Section 3. Attendance of a director at a meeting shall constitute a
waiver of notice of such meeting, except where a director attends a meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
ARTICLE V.
Officers
Section 1. The executive officers of the corporation shall consist of
a President, one or more Vice Presidents, a Secretary and a Treasurer and may
include a Chairman of the Board, one or more Senior Vice Presidents and one or
more Executive Vice Presidents, each of whom shall be elected by the Board of
Directors.
Section 2. The Board of Directors, at its first meeting after each
annual meeting of stockholders, shall choose a President, one or more Vice
Presidents, a Secretary and a Treasurer, none of whom need be a member of the
Board, and may appoint one of their number Chairman of the Board.
Section 3. Such other officers and assistant officers and agents as
may be deemed necessary may be appointed by the chief executive officer of the
corporation, including a Chairman, a President, and one or more Vice Presidents
of the respective Divisions. The President or the Vice Presidents of the
Division
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who, in the order of their seniority, unless otherwise determined by the chief
executive officer of the corporation, shall perform the duties of the Chairman
or President, as the case may be, of the Division in the absence or disability
of the Chairman or President, as the case may be, of that Division. Each
President or Vice President, as the case may be, of a Division shall perform
such other duties and have such other powers as the chief executive officer of
the corporation or the Chairman or President, as the case may be, of that
Division shall prescribe. Division officers shall hold office until their
respective successors shall have been chosen and shall have qualified. Any
Division officer appointed by the chief executive officer may be removed by the
chief executive officer whenever, in his judgment, the best interests of the
corporation will be served thereby. Any vacancy occurring in any office of a
Division by death, resignation, removal or otherwise shall be filled by the
chief executive officer of the corporation.
Section 4. The salaries of all executive officers of the corporation
shall be fixed by the Board of Directors or by a committee of one or more
directors, the members of which shall be selected by the Board of Directors and
which, unless its authority shall be otherwise limited by resolution of the
Board of Directors, shall have the power to fix the salaries of all executive
officers of the corporation.
Section 5. The executive officers of the corporation shall hold
office until their respective successors shall have been chosen and shall have
qualified. Any officer or agent or member of the executive committee elected
or appointed by the Board of Directors may be removed by the Board of Directors
whenever, in its judgment, the best interests of the corporation will be served
thereby, but such removal shall be without prejudice to the contract rights, if
any, of the person so removed. Any vacancy occurring in any executive office
of the corporation by death, resignation, removal or otherwise shall be filled
by the Board of Directors.
Section 6. The Board of Directors may designate whether the Chairman
of the Board, if such an officer shall have been appointed, or the President,
shall be the chief executive officer of the corporation. The officer so
designated as the chief executive officer shall preside at all meetings of the
stockholders and the Board of Directors, and shall have such other powers and
duties as usually pertain to such office or as
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may be delegated by the Board of Directors. The President shall have such
powers and duties as usually pertain to such office, except as the same may be
modified by the Board of Directors. Unless the Board of Directors shall
otherwise delegate such duties, the chief executive officer shall have general
and active management of the business of the corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect.
Section 7. The chief executive officer or his designee shall have the
authority to execute bonds, mortgages and other contracts requiring a seal,
under the seal of the corporation, except where required or permitted by law to
be otherwise signed and executed, and except where the signing and execution
thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the corporation.
Section 8. The Vice Presidents, in the order of their seniority,
unless otherwise determined by the Board of Directors, shall, in the absence or
disability of the President, perform the duties and exercise the powers of the
President. The Vice Presidents shall also have the authority to execute bonds,
mortgages and other contracts requiring a seal, under the seal of the
corporation, except where required or permitted by law to be otherwise signed
and executed, and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent of
the corporation. The Vice Presidents shall perform such other duties and have
such other powers as the Board of Directors or the chief executive officer of
the corporation shall prescribe.
Section 9. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and shall record all the
proceedings of the meetings of the stockholders and of the Board of Directors
in a book to be kept for that purpose and shall perform like duties for the
standing committees, when requested. He shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of
Directors and shall perform such other duties as may be prescribed by the Board
of Directors or the President, under whose supervision he shall be. He shall
keep in safe custody the seal of the corporation, and, when authorized by the
Board of Directors or directed by the
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President or any Vice President, affix the same to any instrument requiring it
and, when so affixed, it shall be attested by his signature or by the signature
of the Treasurer or any Assistant Secretary.
Section 10. The Assistant Secretaries, in the order of their
seniority, unless otherwise determined by the Board of Directors, shall, in the
absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary. They shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
Section 11. The Treasurer shall be the financial officer of the
corporation. He shall have the custody of the corporate funds and securities
and shall deposit all monies and other valuable effects in the name and to the
credit of the corporation in such depositaries as may be designated from time
to time by the Board of Directors. He shall disburse the funds of the
corporation as may be ordered by the Board of Directors, taking proper vouchers
for such disbursements, and shall render to the President and the Board of
Directors at its regular meetings, or when the Board of Directors so requires,
an account of all his transactions as Treasurer. He shall also perform such
other duties as may be assigned to him by the Board of Directors.
Section 12. If required by the Board of Directors, the Treasurer
shall give the corporation a bond in such sum and with such surety or sureties
as shall be satisfactory to the Board of Directors for the faithful performance
of the duties of his office and for the restoration to the corporation, in case
of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession
or under his control belonging to the corporation.
Section 13. The Assistant Treasurers, in the order of their
seniority, unless otherwise determined by the Board of Directors, shall, in the
absence or disability of the Treasurer, perform the duties and exercise the
powers of the Treasurer. They shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
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ARTICLE VI.
Indemnification of Directors and Officers
Section 1. The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation)
by reason of the fact that he is or was or has agreed to become a director,
officer, employee or agent of the corporation, or is or was serving or has
agreed to serve at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, against costs, charges, expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with such action,
suit or proceeding and any appeal therefrom, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was or has agreed to
become a director, officer, employee or agent of the corporation, or is or was
serving or has agreed to serve at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any action alleged to have been
taken or omitted in such capacity, against costs, charges and expenses
(including attorneys' fees) actually and reasonably incurred by him or on his
behalf in connection with the defense or settlement of such action or
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suit and any appeal therefrom, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such costs, charges and
expenses which the Court of Chancery or such other court shall deem proper.
Section 3. Notwithstanding the other provisions of this Article, to
the extent that a director, officer, employee or agent of the corporation has
been successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in defense of any action, suit or
proceeding referred to in Sections 1 and 2 of this Article, or in defense of
any claim, issue or matter therein, he shall be indemnified against all costs,
charges and expenses (including attorneys' fees) actually and reasonably
incurred by him or on his behalf in connection therewith.
Section 4. Any indemnification under Sections 1 and 2 of this Article
(unless ordered by a court) shall be paid by the corporation unless a
determination is made (1) by the Board of Directors by a majority vote of a
quorum consisting of directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (3) by the stockholders, that indemnification of the
director, officer, employee or agent is not proper in the circumstances because
he has not met the applicable standard of conduct set forth in Sections 1 and 2
of this Article.
Section 5. Costs, charges and expenses (including attorneys' fees)
incurred by a person referred to in Sections 1 and 2 of this Article in
defending a civil or criminal action, suit or proceeding shall be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding; provided, however, that the payment of such costs, charges and
expenses incurred by a director or officer in his
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capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer) in
advance of the final disposition of such action, suit or proceeding shall be
made only upon receipt of an undertaking by or on behalf of the director or
officer to repay all amounts so advanced in the event that it shall ultimately
be determined that such director or officer is not entitled to be indemnified
by the corporation as authorized in this Article. Such costs, charges and
expenses incurred by other employees and agents may be so paid upon such terms
and conditions, if any, as the Board of Directors deems appropriate. The Board
of Directors may, in the manner set forth above, and upon approval of such
director, officer, employee or agent of the corporation, authorize the
corporation's counsel to represent such person, in any action, suit or
proceeding, whether or not the corporation is a party to such action, suit or
proceeding.
Section 6. Any indemnification under Sections 1, 2 and 3, or advance
of costs, charges and expenses under Section 5 of this Article, shall be made
promptly, and in any event within 60 days, upon the written request of the
director, officer, employee or agent. The right to indemnification or advances
as granted by this Article shall be enforceable by the director, officer,
employee or agent in any court of competent jurisdiction, if the corporation
denies such request, in whole or in part, or if no disposition thereof is made
within 60 days. Such persons' costs and expenses incurred in connection with
successfully establishing his right to indemnification, in whole or in part, in
any such action shall also be indemnified by the corporation. It shall be a
defense to any such action (other than an action brought to enforce a claim for
the advance of costs, charges and expenses under Section 5 of this Article
where the required undertaking, if any, has been received by the corporation)
that the claimant has not met the standard of conduct set forth in Sections 1
or 2 of this Article, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in Sections 1 or 2 of this Article, nor the fact
that there has been an actual
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determination by the corporation (including its Board of Directors, its
independent legal counsel, and its stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable standard of conduct.
Section 7. The indemnification and advancement of costs, charges and
expenses provided by this Article shall not be deemed exclusive of any other
rights to which a person seeking indemnification or advancement of costs,
charges and expenses may be entitled under any law (common or statutory),
agreement, vote of stockholders or disinterested directors or otherwise, both
as to action in his official capacity and as to action in another capacity
while holding office or while employed by or acting as agent for the
corporation, and shall continue as to a person who has ceased to be a director,
officer, employee or agent as to actions taken while he was such a director,
officer, employee or agent, and shall inure to the benefit of the estate,
heirs, executors and administrators of such person. All rights to
indemnification under this Article shall be deemed to be a contract between the
corporation and each director, officer, employee or agent of the corporation
who serves or served in such capacity at any time while this Article is in
effect. Any repeal or modification of this Article or any repeal or
modification of relevant provisions of the Delaware General Corporation Law or
any other applicable laws shall not in any way diminish any rights to
indemnification of such director, officer, employee or agent or the obligations
of the corporation arising hereunder.
Section 8. In addition to the specific indemnification provided for
herein, the corporation shall indemnify each person who is or was or has agreed
to become a director, officer, employee or agent of the corporation, or is or
was serving or has agreed to serve at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, to the fullest extent authorized or
permitted (i) by the General Corporation Law of Delaware, or any other
applicable law, or by any amendment thereof or other statutory provisions in
effect on the date hereof, or (ii) by the corporation's Certificate of
Incorporation as in effect on the date hereof. The corporation shall also
advance expenses to any of the foregoing individuals to the fullest extent
authorized or permitted (i)
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by the General Corporation Law of Delaware, or any other applicable law, or by
any amendment thereof or other statutory provision in effect on the date
hereof, or (ii) by the corporation's Certificate of Incorporation as in effect
on the date hereof.
Section 9. Notwithstanding the foregoing, the corporation shall have
the power to purchase and maintain insurance on behalf of any person who is or
was or has agreed to become a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him or on his behalf in any such capacity, or arising out of
his status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of this Article.
Section 10. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each director, officer, employee and
agent of the corporation as to costs, charges and expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the corporation, to
the full extent permitted by any applicable portion of this Article that shall
not have been invalidated and to the full extent permitted by applicable law.
ARTICLE VII.
Certificates for Shares
Section 1. The corporation shall deliver certificates representing
all shares to which stockholders are entitled; and such certificates shall be
signed by the President or a Vice President, and the Secretary or an Assistant
Secretary of the corporation, and may be sealed with the seal of the
corporation or a facsimile thereof. No certificate shall be issued for any
share until the consideration therefor has been fully paid. Each certificate
representing shares shall state upon the face thereof that the corporation is
organized under the laws of the State of Delaware, the name of the person to
whom issued, the number and class
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and the designation of the series, if any, which such certificate represents,
and the par value of each share represented by such certificate or a statement
that the shares are without par value.
Section 2. The signatures of the President or Vice President, and the
Secretary or Assistant Secretary, upon a certificate may be facsimiles if the
certificate is countersigned by a transfer agent, or registered by a registrar,
other than the corporation itself or an employee of the corporation. In case
any officer who has signed or whose facsimile signature has been placed upon
such certificate shall have ceased to be such officer before such certificate
is issued, it may be issued by the corporation with the same effect as if he
were such officer at the date of the issuance.
Section 3. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or to give the
corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the corporation with respect to the certificate
alleged to have been lost or destroyed.
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate, and record the transaction upon its books.
Section 5. For the purpose of determining stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or entitled to receive payment of any dividend, or in order to make a
determination of stockholders for any other proper purpose, the Board of
Directors may provide that the stock transfer books shall be closed for a
stated period but not to exceed, in any case,
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sixty (60) days. If the stock transfer books shall be closed for the purpose
of determining stockholders entitled to notice of or to vote at a meeting of
stockholders, such books shall be closed for at least ten (10) days immediately
preceding such meeting. In lieu of closing the stock transfer books, the Board
of Directors may fix in advance a date as the record date for any such
determination of stockholders, such date in any case to be not more than sixty
(60) days, and, in case of a meeting of stockholders, not less than ten (10)
days prior to the date on which the particular action requiring such
determination of stockholders is to be taken. If the stock transfer books are
not closed and no record date is fixed for the determination of stockholders
entitled to notice of or to vote at a meeting of stockholders or any
adjournment thereof, or stockholders entitled to receive payment of a dividend,
or in order to make a determination of stockholders for any other proper
purpose, the close of business on the day next preceding the day on which
notice of the meeting of stockholders is given shall be the record date with
respect to such meeting, and the close of business on the day on which the
Board of Directors adopts a resolution declaring a dividend or with respect to
any other proper purpose, as the case may be, shall be the record date for the
determination of stockholders with respect thereto. When a determination of
stockholders entitled to vote at any meeting of stockholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof, except where the determination has been made through the closing of
stock transfer books and the stated period of closing has expired.
Section 6. The corporation shall be entitled to recognize the
exclusive rights of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State of
Delaware.
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ARTICLE VIII.
General Provisions
Section 1. The Board of Directors may declare and the corporation may
pay dividends on its outstanding shares in cash, property, or its own shares
pursuant to law and subject to the provisions of its Certificate of
Incorporation.
Section 2. The Board of Directors may by resolution create a reserve
or reserves out of earned surplus for any purpose or purposes, and may abolish
any such reserve in the same manner.
Section 3. The Board of Directors must, when requested by the holders
of at least one-third of the outstanding shares of the corporation, present
written reports of the business and financial affairs of the corporation.
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate as provided
in these bylaws.
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the Board of Directors.
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation and may be used by causing it or a facsimile thereof to be
impressed or affixed or in any other manner reproduced.
ARTICLE IX.
Amendments
These Bylaws may be altered, amended or repealed at any regular or
special meeting of, or by the unanimous written consent of, the Board of
Directors.
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EXHIBIT 23(b)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Post-Effective Amendment No. 2 on Form S-3 to the Registration Statement on
Form S-4 and related Prospectus of Trinity Industries, Inc. for the
registration of 32,028 shares of its common stock and to the incorporation by
reference therein of our reports dated May 9, 1996, with respect to the
consolidated financial statements of Trinity Industries, Inc. incorporated by
reference in its Annual Report (Form 10-K) for the year ended March 31, 1996,
and the related financial statement schedule included therein, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
DALLAS, TEXAS
DECEMBER 17, 1996
<PAGE> 1
EXHIBIT 24(b)
POWER OF ATTORNEY
Know all men by these presents, that the person whose signature
appears below constitutes and appoints W. Ray Wallace, John T. Sanford and F.
Dean Phelps, and each of them, his attorneys-in-fact for him in any and all
capacities, to sign the Post-Effective Amendment No. 2 on Form S-3 to the
Registration Statement on Form S-4 for Trinity Industries, Inc., dated on or
after December 18, 1996 (the "Registration Statement") and any and all
amendments (including additional Post-Effective Amendments) to such
Registration Statement, and to file the same, with exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as might or could be done in person, hereby ratifying and confirming
all that each of said attorneys-in-fact and agents, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
/s/ JOHN L. ADAMS Date: December 18, 1996
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John L. Adams
<PAGE> 1
EXHIBIT 24(c)
POWER OF ATTORNEY
Know all men by these presents, that the person whose signature
appears below constitutes and appoints W. Ray Wallace, John T. Sanford and F.
Dean Phelps, and each of them, her attorneys-in-fact for her in any and all
capacities, to sign the Post-Effective Amendment No. 2 on Form S-3 to the
Registration Statement on Form S-4 for Trinity Industries, Inc., dated on or
after December 18, 1996 (the "Registration Statement") and any and all
amendments (including additional Post-Effective Amendments) to such
Registration Statement, and to file the same, with exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as might or could be done in person, hereby ratifying and confirming
all that each of said attorneys-in-fact and agents, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
/s/ DIANA NATALICIO Date: December 18, 1996
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Diana Natalicio
