SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
May 6, 1997
(Date of earliest event reported)
Trinity Industries, Inc.
(Exact name of Registrant as specified in its charter)
Delaware 1-6903 75-0225040
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
2525 Stemmons Freeway
Dallas, Texas 75207-2401
(Address of principal executive offices) (Zip Code)
(214) 589-8592
(Registrant's telephone number, including area code)
<PAGE>
Item 5. Other Events.
On May 6, 1997, the Board of Directors (the "Board") of
Trinity Industries, Inc. (the "Company") adopted amendments to
the Company's By-Laws. The amendments to the By-Laws modify the
By-Laws in several ways: (i) Article II, Section 1 of the By-Laws
was amended to provide that meetings of stockholders may be held
at any place and on such date as designated by the Board; (ii)
Article II, Section 2 of the By-Laws was amended to provide that
(a) notice of a proposed nomination for director or proposal for
other business given by a stockholder must be received by the
Company not less than 60 nor more than 90 days prior to the
anniversary of the preceding year's annual meeting, with certain
limitations and (b) any stockholder giving notice of a proposed
nomination for director or proposal for other business must
provide certain additional information regarding themselves and
certain arrangements or understandings; (iii) Article II, Section
6 of the By-Laws was amended to provide that the chairman of a
meeting of stockholders may adjourn the meeting for a period of
time if no quorum is present, or the Board determines that
adjournment is necessary or appropriate to enable stockholders to
consider fully information which the Board determines has not
been made sufficiently or timely available to stockholders or to
otherwise exercise effectively their voting rights; and (iv)
Article II of the By-Laws was amended to add a new Section 11
which provides that the Board is permitted to fix a record date
with respect to the taking of action by written consent of the
stockholders. The description of the By-Laws contained herein is
not complete and is qualified in its entirety by reference to the
Form of Amendment to the By-Laws and to the By-Laws (as amended),
which are filed as exhibits hereto and which are incorporated
herein by reference.
In addition, on May 6, 1997, the Company and The Bank
of New York (the "Rights Agent") amended the Rights Agreement,
dated April 11, 1989, between the Company and NCNB Texas National
Bank, predecessor to the Rights Agent ("Amendment No. 1").
Amendment No. 1 modifies the Rights Agreement in several areas:
(i) the definition of "Acquiring Person" has been amended to (A)
reduce to 10% the threshold of Beneficial Ownership of Common
Stock resulting in a Person becoming an Acquiring Person and (B)
provide a limited exception therefrom for certain Persons enti-
tled to report ownership (but less than 15%) on SEC Schedule 13G
who either (x) beneficially owned, on May 6, 1997, 10% or more of
the outstanding shares of Common Stock and do not at any time
become the Beneficial Owner of 15% or more of the outstanding
shares of Common Stock or (y) upon request of the Company, certi-
fy that such Persons acquired shares of Common Stock in excess of
9.99% inadvertently and who thereafter do not acquire additional
shares of Common Stock while the Beneficial Owner of 10% or more
of the shares of Common Stock then outstanding and dispose of the
portion of such Common Stock in excess of 9.99%; (ii) Section
11(a)(ii) has been amended to provide that a flip-in event shall
occur upon any Person becoming an Acquiring Person; (iii) Section
13(a) has been amended to provide that the flip-over provision
shall apply whether or not a Stock Acquisition Date has occurred;
(iv) Section 23 has been amended to revise the exception to the
requirement for the concurrence of Continuing Directors in a
redemption, set forth in clause (y) of the proviso to the first
sentence, to apply only to Qualifying Offers (i.e., offers for
all shares determined by a majority of the Continuing Directors
who are not officers of the Registrant to be at a price which is
fair to stockholders and otherwise in the best interests of the
Company and its stockholders); and (v) Section 26 has been
amended to provide that any amendment to the Rights Agreement
following a Stock Acquisition Date or a change (resulting from a
proxy or consent solicitation) in a majority of the Board of
Directors under certain circumstances (unless the solicitation
occurs concurrent with a Qualifying Offer) shall require the
concurrence of Continuing Directors. The description of Amend-
ment No. 1 contained herein is not complete and is qualified in
its entirety by reference to Amendment No. 1 which is filed as an
exhibit hereto and which is incorporated by reference herein.
Capitalized terms not defined herein, will have the meanings
attached to them in the Rights Agreement. The Company has filed
with the Securities and Exchange Commission a Form 8-A/A relating
to the changes in the Company's Preferred Stock Purchase Rights
effected by Amendment No. 1.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
(c) Exhibits.
3.1 By-Laws of the Company, as amended May 6, 1997.
3.2 Form of Amendment to the By-Laws, dated May 6,
1997.
4.1 Amendment No. 1 to the Rights Agreement, dated as
of May 6, 1997, between the Company and the Rights
Agent.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
TRINITY INDUSTRIES, INC.
By: \S\ F. Dean Phelps
Name: F. Dean Phelps
Title: Vice President
May 7, 1997
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
3.1 By-Laws of the Company, as amend-
ed May 6, 1997.
3.2 Form of amendment to the By-Laws
dated May 6, 1997.
4.1 Amendment No. 1 to the Rights
Agreement, dated as of May 6,
1997, between the Company and the
Rights Agent
<PAGE>
As Amended Effective May 6, 1997
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 1. Meetings of the stockholders for any purpose shall
be held at such time and place, either within or without the State
of Delaware, as shall be designated from time to time by the Board
of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. The annual meeting of stockholders shall be held
on such date and at such time as shall be designated from time to
time by the Board of Directors and stated in the notice of the
meeting. 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
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 sixty
days nor more than ninety days prior to the anniversary date of the
immediately preceding annual meeting of stockholders; provided,
however, that in the event that the annual meeting is called for a
date that is not within thirty days before or after such anniversa-
ry date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth day
following the day on which such notice of the date of the annual
meeting was mailed or public disclosure of the date of the annual
meeting was made, whichever first occurs. 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 Regulation 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, (ii) the class and number of shares of capital
stock of the corporation which are beneficially owned by the
stockholder, (iii) a description of all arrangements or understand-
ings between such stockholder and each proposed nominee and any
other person or persons (including their names) pursuant to which
the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or
by proxy at the meeting to nominate the persons named in its notice
and (v) any other information relating to such stockholder that
would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of
proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder.
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.
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 entitled to vote at the
meeting. In addition to any other applicable requirements, for
business to be properly brought before the meeting by a stockhold-
er, the stockholder must have given timely notice thereof 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 sixty days nor more than ninety days prior to the anniversary
date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is
called for a date that is not within thirty days before or after
such anniversary date, notice by the stockholder in order to be
timely must be so received not later than the close of business on
the tenth day following the day on which such notice of the date of
the annual meeting was mailed or such public disclosure of the date
of the annual meeting was made, whichever first occurs. 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, (iv) a description of all
arrangements or understandings between such stockholder and any
other person or persons (including their names) in connection with
the proposal of such business by such stockholder and any material
interest of such stockholder in such business and (v) a representa-
tion that such stockholder intends to appear in person or by proxy
at the annual meeting to bring 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 By-Laws 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, 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 presiding
officer at the meeting or the stockholders present in person or
represented by proxy, shall have the 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 repre-
sented, any business may be transacted which might have been
transacted at the meeting as originally notified. In addition, the
presiding officer at any meeting of stockholders shall have the
power to adjourn the meeting at the request of the Board of
Directors if the Board of Directors determines that adjournment is
necessary or appropriate to enable stockholders to consider fully
information which the Board of Directors determines has not been
made sufficiently or timely available to stockholders or to
otherwise exercise effectively their voting rights.
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 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.
Section 11. Notwithstanding any inconsistent provision which
may be contained in these By-Laws, in order that the corporation
may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the Board of Directors may fix
a record date, which record date shall not precede the date on
which the resolution fixing the record date is adopted by the Board
of Directors, and which date shall not be more than ten days after
the date upon which the resolution fixing the record date is
adopted by the Board of Directors. Any stockholder of record
seeking to have the stockholders authorize or take corporate action
by written consent shall, by written notice to the Secretary,
request the Board of Directors to fix a record date. The Board of
Directors shall promptly, but in all events within ten days after
the date on which such a request is received, adopt a resolution
fixing the record date. If no record date has been fixed by the
Board of Directors within ten days of the date upon which such a
request is received, the record date for determining stockholders
entitled to consent to corporate actin in writing without a
meeting, when no prior action by the Board of Directors is required
by applicable law, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be
taken is delivered to the corporation by delivery to its registered
office in the State of Delaware, its principal place of business,
or any officer or agent of the corporation having custody of the
book in which proceedings of stockholders' meeting are recorded, to
the attention of the Secretary of the corporation. Delivery shall
be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by
applicable law, the record date for determining stockholders
entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which the
Board of Directors adopts the resolution taking such prior action.
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, 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 autho-
rized 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 Direc-
tors, or as shall be specified in a written waiver signed by all of
the directors.
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.
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 equiva-
lent 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 Direc-
tors.
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
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 ap-
pointed, 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 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 corpora-
tion 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 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.
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 threat-
ened, 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 threat-
ened, 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 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 there-
with.
Section 4. Any indemnification under Sections 1 and 2 of this
Article (unless ordered by a court) shall be paid by the corpora-
tion 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 circum-
stances 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 disposi-
tion 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 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 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 indemni-
fication 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 modifica-
tion 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 autho-
rized 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) 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 corpora
tion'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 investiga-
tive, 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 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 certifi-
cate 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, 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 determina-
tion 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 stock-
holders 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.
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.<PAGE>
Form of Amendment of By-Laws
Article II, Section 1 of the By-Laws of the Corporation
is hereby amended to read in its entirety as follows:
1. Meetings of the stockholders for any purpose shall
be held at such time and place, either within or without the
State of Delaware, as shall be designated from time to time by
the Board of Directors and stated in the notice of the meeting or
in a duly executed waiver of notice thereof.
Article II, Section 2 of the By-Laws of the Corporation
is hereby amended to read in its entirety as follows:
Section 2. The annual meeting of stockholders shall be
held on such date and at such time as shall be designated from
time to time by the Board of Directors and stated in the notice
of the meeting. At such meeting, the stockholders entitled to
vote thereat shall elect by a plurality vote a Board of Direc-
tors. 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 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 re-
ceived at, the principal executive offices of the corporation not
less than sixty days nor more than ninety days prior to the
anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the
annual meeting is called for a date that is not within thirty
days before or after such anniversary date, notice by the stock-
holder in order to be timely must be so received not later than
the close of business on the tenth day following the day on which
such notice of the date of the annual meeting was mailed or
public disclosure of the date of the annual meeting was made,
whichever first occurs. Such stockholder's notice to the Secre-
tary 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 re-
quired to be disclosed in solicitations for proxies for election
of directors pursuant to Regulation 14A under the Securities Ex-
change Act of 1934, as amended; and (b) as to the stockholder
giving the notice, (i) the name and record address of the stock-
holder, (ii) the class and number of shares of capital stock of
the corporation which are beneficially owned by the stockholder,
(iii) a description of all arrangements or understandings between
such stockholder and each proposed nominee and any other person
or persons (including their names) pursuant to which the nomina-
tion(s) are to be made by such stockholder, (iv) a representation
that such stockholder intends to appear in person or by proxy at
the meeting to nominate the persons named in its notice and (v)
any other information relating to such stockholder that would be
required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies
for election of directors pursuant to Section 14 of the Exchange
Act and the rules and regulations promulgated thereunder. The
corporation may require any proposed nominee to furnish such
other information as may reasonably be required by the corpora-
tion to determine the eligibility of such proposed nominee to
serve as director of the corporation. No person shall be eligi-
ble for election as a director of the corporation unless nominat-
ed in accordance with the procedures set forth herein.
The Chairman of the meeting shall, if the facts war-
rant, 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.
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
entitled to vote at the meeting. 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 shall be
delivered to, or mailed and received at, the principal executive
offices of the corporation not less than sixty days nor more than
ninety days prior to the anniversary date of the immediately
preceding annual meeting of stockholders; provided, however, that
in the event that the annual meeting is called for a date that is
not within thirty days before or after such anniversary date,
notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth day
following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs. A stock
holder'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 busi-
ness 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, (iv) a descrip-
tion of all arrangements or understandings between such stock-
holder and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder
and any material interest of such stockholder in such business
and (v) a representation that such stockholder intends to appear
in person or by proxy at the annual meeting to bring such busi-
ness before the meeting. Notwithstanding the foregoing provi-
sions 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 By-Laws 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, 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 war-
rant, 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.
Article II, Section 6 of the By-Laws of the Corporation
is hereby amended to read in its entirety as follows:
Section 6. The holders of a majority of the shares
entitled to vote represented in person or by proxy, shall consti-
tute 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 presiding officer at the meeting or the stockholders present
in person or represented by proxy, shall have the power to ad-
journ 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.
In addition, the presiding officer at any meeting of stockholders
shall have the power to adjourn the meeting at the request of the
Board of Directors if the Board of Directors determines that
adjournment is necessary or appropriate to enable stockholders to
consider fully information which the Board of Directors deter-
mines has not been made sufficiently or timely available to
stockholders or to otherwise exercise effectively their voting
rights.
Article II of the By-Laws of the Corporation is hereby
amended to add at the end thereof a new Section 11 which shall
read in its entirety as follows:
Section 11. Notwithstanding any inconsistent provision
which may be contained in these By-Laws, in order that the corpo-
ration may determine the stockholders entitled to consent to
corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not pre-
cede the date on which the resolution fixing the record date is
adopted by the Board of Directors, and which date shall not be
more than ten days after the date upon which the resolution
fixing the record date is adopted by the Board of Directors. Any
stockholder of record seeking to have the stockholders authorize
or take corporate action by written consent shall, by written
notice to the Secretary, request the Board of Directors to fix a
record date. The Board of Directors shall promptly, but in all
events within ten days after the date on which such a request is
received, adopt a resolution fixing the record date. If no
record date has been fixed by the Board of Directors within ten
days of the date upon which such a request is received, the re-
cord date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior
action by the Board of Directors is required by applicable law,
shall be the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered to
the corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or any officer or
agent of the corporation having custody of the book in which
proceedings of stockholders' meetings are recorded, to the
attention of the Secretary of the corporation. Delivery shall be
by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required
by applicable law, the record date for determining stockholders
entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which
the Board of Directors adopts the resolution taking such prior
action.
<PAGE>
AMENDMENT NO. 1
Amendment No. 1, dated as of May 6, 1997, between
Trinity Industries, Inc., a Delaware corporation (the "Company"),
and The Bank of New York (the "Rights Agent").
WHEREAS, the Company and NCNB Texas National Bank,
predecessor to the Rights Agent, have heretofore executed and en-
tered into a Rights Agreement, dated as of April 11, 1989 (the
"Rights Agreement"), setting forth the terms of Preferred Stock
Purchase Rights of the Company (the "Rights"); and
WHEREAS, the Company and the Rights Agent may from time
to time supplement or amend the Rights Agreement pursuant to the
provisions of Section 26 of the Rights Agreement; and
WHEREAS, all acts and things necessary to make this
Amendment No. 1 a valid, legal and binding instrument of the
Company and the Rights Agent have been duly done, performed and
fulfilled, and the execution and delivery hereof by each of the
Company and the Rights Agent have been in all respects duly
authorized by the Company and the Rights Agent, respectively.
NOW, THEREFORE, the Company and the Rights Agent hereby
agree as follows:
1. Pursuant to Section 26 of the Rights Agreement,
Section 1(a) of the Rights Agreement is hereby amended to read in
its entirety as follows:
"(a) "Acquiring Person" shall mean any Person (as such
term is hereinafter defined) who or which, together with all
Affiliates and Associates of such Person, shall be the
Beneficial Owner (as such term is hereinafter defined) of
10% or more of the shares of Common Stock of the Company
then outstanding, but shall not include the Company, any
Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, or any Person
or entity holding shares of Common Stock of the Company for
or pursuant to the terms of any such plan. Notwithstanding
the foregoing, (i) no Person shall become an "Acquiring
Person" solely as the result of an acquisition of shares of
Common Stock by the Company which, by reducing the number of
shares outstanding, increases the proportionate number of
shares beneficially owned by such Person to 10% or more of
the shares of Common Stock of the Company then outstanding;
unless and until such time as such Person shall purchase or
otherwise become (as a result of actions taken by such
Person or its Affiliates or Associates) the Beneficial Owner
of additional shares of Common Stock constituting 1% or more
of the then outstanding shares of Common Stock other than
pursuant to a Qualifying Offer (as defined below) and (ii)
"Acquiring Person" shall not include any Person while such
Person is entitled to report such ownership (but less than
15%) on Schedule 13G under the Exchange Act (as defined
below) (or any comparable or successor report) and does not
state any intention to or reserve the right to change or
influence the control of the Company or engage in any of the
actions specified in Item 4 of Schedule 13D (or any succes-
sor form) under the Exchange Act (as defined below) (other
than the disposition of Common Stock) and either (A) was the
Beneficial Owner on May 6, 1997 of 10% or more of the out-
standing shares of Common Stock and does not at any time
become the Beneficial Owner of 15% or more of the outstand-
ing shares of Common Stock or (B) within 10 Business Days of
being requested by the Company to advise it regarding the
same, certifies to the Company that such Person acquired
shares of Common Stock in excess of 9.99% inadvertently or
without knowledge of the terms of the Rights and who, to-
gether with all Affiliates and Associates, thereafter does
not acquire additional shares of Common Stock while the
Beneficial Owner of 10% or more of the shares of Common
Stock then outstanding and within 10 Business Days of being
requested by the Company to do so disposes of the portion of
such Common Stock in excess of 9.99%; provided, however,
that if the Person requested to so certify fails to do so
within 10 Business Days of the Company's request or such
Person fails to dispose of such Common Stock in excess of
9.99% within 10 Business Days of the Company's request, then
such Person shall become an Acquiring Person immediately
after such 10 Business Day period."
2. Pursuant to Section 26 of the Rights Agreement,
Section 11(a)(ii) of the Rights Agreement is hereby amended to
read in its entirety as follows:
"(ii) In the event any Person shall become an Acquir-
ing Person, unless the event causing the Person to become an
Acquiring Person is a transaction set forth in Section 13(a)
hereof, or is an acquisition of shares of Common Stock
pursuant to a tender offer or an exchange offer for all
outstanding shares of Common Stock at a price and on terms
determined by at least a majority of the Continuing Direc-
tors who are not officers of the Company, after receiving
advice from one or more nationally recognized investment
banking firms, to be (a) at a price which is fair to stock-
holders (taking into account all factors which such members
of the Board deem relevant including, without limitation,
prices which could reasonably be achieved if the Company or
its assets were sold on an orderly basis designed to realize
maximum value) and (b) otherwise in the best interests of
the Company and its stockholders (a "Qualifying Offer"),
then, promptly following the first occurrence of a Section
11(a)(ii) Event, proper provision shall be made so that each
holder of a Right (except as provided below and in Section
7(e) hereof) shall thereafter have the right to receive,
upon exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, in lieu of a
number of one one-hundredths of a share of Preferred Stock,
such number of shares of Common Stock of the Company as
shall equal the result obtained by (x) multiplying the then
current Purchase Price by the then number of one one-hun-
dredths of a share of Preferred Stock for which a Right was
exercisable immediately prior to the first occurrence of a
Section 11(a)(ii) Event, and (y) dividing that product
(which, following such first occurrence, shall thereafter be
referred to as the "Purchase Price" for each Right and for
all purposes of this Agreement) by 50% of the current market
price (determined pursuant to Section 11(d) hereof) per
share of Common Stock on any Trading Day (as defined in
Section 11(d) hereof) occurring within the 12 month period
immediately preceding the date of such first occurrence
(such number of shares, the "Adjustment Shares")."
3. Pursuant to Section 26 of the Rights Agreement,
Section 13(a) of the Rights Agreement is hereby amended by (i)
deleting, following the word "that" in the first line thereof,
the phrase ", following the Stock Acquisition Date" and (ii) by
inserting as a new sentence following the final sentence thereof
the following:
"Notwithstanding anything in this Agreement to the
contrary, if a Section 13 Event shall occur prior
to the Distribution Date, then (i) the Rights
shall survive such Section 13 Event and shall not
as a result thereof be cancelled, terminated or
otherwise cease to exist and (ii) the Distribution
Date shall be deemed to have occurred on the day
immediately prior to the date of such Section 13
Event."
4. Pursuant to Section 26 of the Rights Agreement,
Section 13(d) of the Rights Agreement is hereby amended by delet-
ing the words "tender offer or exchange offer for all outstanding
shares of Common Stock which complies with the provisions of Sec-
tion 11(a)(ii) hereof" and inserting in lieu thereof the term
"Qualifying Offer".
5. Pursuant to Section 26 of the Rights Agreement,
Section 23 of the Rights Agreement is hereby amended by deleting
the words "cash tender pursuant to a Schedule 14D-1 (or any
successor form) filed with the Securities and Exchange Commission
for all outstanding shares of Common Stock not owned by such
person or its Affiliates of Associates" and inserting in lieu
thereof the term "Qualifying Offer".
6. Pursuant to Section 26 of the Rights Agreement,
Section 25 of the Rights Agreement is hereby amended by replacing
the name and address of NCNB Texas National Bank set forth
therein with the following:
"The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Department."
7. Pursuant to Section 26 of the Rights Agreement,
Section 26 of the Rights Agreement is hereby amended (i) by
deleting the parenthetical language in the second sentence
thereof and (ii) by inserting immediately following the second
sentence thereof the following:
"Notwithstanding anything in this Agreement to the
contrary, no amendment, whether before or after
the Distribution Date, shall be made following the
first occurrence of an event specified in clauses
(x) or (y) of the first proviso to Section 23(a)
hereof, unless there are Continuing Directors and
a majority of such Continuing Directors concur in
such amendment."
8. This Amendment No. 1 may be executed in any number
of counterparts and each of such counterparts shall for all
purposes be deemed to be an original and all such counterparts
shall together constitute but one and the same instrument. Terms
not defined herein shall, unless the context otherwise requires,
have the meanings assigned to such terms in the Rights Agreement.
9. The amendments set forth herein are limited
precisely as written and shall not be deemed to be an amendment
to any other provision contained in the Rights Agreement. In all
respects not inconsistent with the terms and provisions of this
Amendment No. 1, the Rights Agreement is hereby ratified and
confirmed. In executing and delivering this Amendment No. 1, the
Rights Agent shall be entitled to all of the privileges and
immunities afforded to the Rights Agent under the terms and
conditions of the Rights Agreement.
10. This Amendment No. 1 shall be deemed to be a
contract made under the laws of the State of Delaware and for all
purposes shall be governed by and construed in accordance with
the laws applicable to contracts made and to be performed entire-
ly within such State.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be duly executed as of the day and year first
above written.
ATTEST: TRINITY INDUSTRIES, INC.
By:\S\ Neil O. Shoop By:\S\ F. Dean Phelps
Name: Neil O. Shoop Name: F. Dean Phelps
Title: Treasurer Title: Vice President
THE BANK OF NEW YORK
By: \S\ James N. Dimino
Name: James N. Dimino
Title: Assistant Vice President
