As filed with the Securities and Exchange Commission on May 4, 1999
Registration No. 333-___________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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TRINITY INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 75-0225040
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2525 Stemmons Freeway
Dallas, Texas 75207-2401
(Address of principal executive offices) (Zip Code)
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Trinity Industries, Inc.
1998 Stock Option and
Incentive Plan
(Full title of the plan)
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Michael G. Fortado
Trinity Industries, Inc.
2525 Stemmons Freeway
Dallas, Texas 75207-2401
(Name and address of agent for service)
(214) 631-4420
(Telephone number, including area code,
of agent for service)
-----------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
-------------------------------
========================================================================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered (1)(2) per share (3)(4) price (3)(4) fee (4)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $1.00 2,000,000 Shares $35.25 $70,500,000 $19,599
par value per share
========================================================================================================================
<FN>
(1) The securities to be registered include an aggregate of 2,000,000 shares
reserved for issuance under the Trinity Industries, Inc. 1998 Stock Option
and Incentive Plan (the "Plan").
(2) Pursuant to Rule 416, this Registration Statement also covers such
additional shares as may hereinafter be offered or issued resulting from
stock splits, stock dividends, recapitalizations or certain other capital
adjustments.
(3) Estimated solely for purpose of calculating the registration fee.
(4) Calculated pursuant to Rule 457(c) and (h). Accordingly, the price per
share of the Common Stock offered hereunder pursuant to the Plan is based
on (i) 2,000,000 shares of Common Stock reserved for issuance under the
Plan, but not subject to outstanding stock options, at a price per share of
$35.25, which is the average of the high and low prices reported on the New
York Stock Exchange in the Common Stock as of April 29, 1999, which is a
date within five business days prior to the date of filing the registration
statement.
</FN>
</TABLE>
<PAGE>
PART I
Information specified in Part I of Form S-8 (Items 1 and 2) will be
sent or given to Plan participants as specified by Rule 428(b)(1) under the
Securities Act of 1933.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Trinity Industries, Inc. (the "Company") hereby incorporates by reference
in this registration statement the following documents previously filed by the
Company with the Securities and Exchange Commission (the "Commission"):
(1) The Company's Annual Report on Form 10-K filed with the Commission
for the fiscal year ended March 31, 1998.
(2) The Company's Quarterly Reports on Form 10-Q filed with the
Commission for the quarters ended June 30, 1998, September 30, 1998 and December
31, 1998.
(3) The Company's Current Reports on Form 8-K filed with the Commission
dated September 22, 1998 and March 31, 1999.
(4) The description of the Company's common stock, $1.00 par value per
share ("Company Common Stock"), contained in the Company's Registration
Statement on Form S-4, dated July 17, 1996 (Registration No. 333-8321), as
amended by Post-Effective Amendment No. 1, dated July 19, 1996.
All documents filed by the registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this Registration
Statement shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
(a) Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may 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
(collectively, a "Proceeding") (other than an action by or in the right of the
corporation) by reason of the fact that he or she is or was 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 or
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if such person acted in good
faith and in a manner he or she 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 or her conduct was
unlawful.
Section 145(b) of the DGCL provides that a corporation may
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 such
person acted in any of the capacities set forth above, against such expenses
actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted under similar standards,
except that no indemnification may 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 or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnification
for such expenses which the court shall deem proper.
Section 145(c) of the DGCL further provides that, to the
extent a director or officer of a corporation has been successful on the merits
or otherwise in the defense of any action, suit or proceeding referred to above
or in the defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith.
II-2
<PAGE>
Section 145(f) of the DGCL provides that the statutory
provisions on indemnification are not exclusive of indemnification provided
pursuant to, among other things, the bylaws or indemnification agreements. The
Bylaws of the Company contain provisions regarding the indemnification of
directors and officers of the Company. Article VI of the Company's Bylaws
provides for the indemnification of the Company's officers and directors to
substantially the same extent permitted by the DGCL.
The indemnification described above (unless ordered by a court) shall
be paid by the Company unless a determination is made (i) by the Company'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 Company'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.
Article VI of the Company's Bylaws provides that costs, charges and
expenses (including attorneys' fees) incurred by a person seeking
indemnification under Article VI of the Company's Bylaws in defending a
Proceeding shall be paid by the Company 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 Company. 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, upon approval of such director, officer, employee or agent of the
Company, authorize the Company's counsel to represent such person in any
Proceeding, whether or not the Company is a party to such Proceeding.
Section 102(b)(7) of the Delaware General Corporation Law 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 benefit. The provision does not limit equitable remedies, such as an
injunction or rescission for breach of a director's fiduciary duty of care.
The Company'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.
(b) The Company has entered into Indemnity Agreements with all of its
directors and officers that establish contract rights to indemnification
substantially similar to the rights to indemnification provided for in the
Company's Bylaws.
Item 7. Exemption from Registration Claimed.
None.
Item 8. Exhibits.
(a) Exhibits.
The following documents are filed as a part of this
registration statement.
II-3
<PAGE>
Exhibit Description of Exhibit
4.1 Specimen Common Stock Certificate of Registrant (incorporated by reference
to Exhibit 3B to Registration Statement No. 33-10937, filed April 8, 1987).
4.2 Trinity Industries, Inc. 1998 Stock Option and Incentive Plan (incorporated
by reference to Annex A to the proxy statement on Schedule 14A of Trinity
Industries, Inc. with respect to the annual meeting of stockholders held
July 17, 1998).
5.1 Opinion of Jenkens & Gilchrist, a Professional Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional Corporation (included in
opinion filed as Exhibit 5.1 hereto)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney (included with signature page of this Registration
Statement)
Item 9. Undertakings.
(a) 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:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13
or Section 15(d) of the 1934 Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
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.
(b) The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of
the 1934 Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the 1934 Act) that is incorporated by reference in
the 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.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 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 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 Act and will be governed
by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8 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 May 3, 1999:
TRINITY INDUSTRIES, INC.
By: /s/ Michael G. Fortado
-----------------------------------------
Michael G. Fortado
Vice President, Secretary/General Counsel
II-5
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below hereby constitutes and appoints Timothy R. Wallace, Jim S. Ivy and
Michael G. Fortado, and each of them, each with full power to act without the
other, his true and lawful attorneys-in-fact and agents, each with full power of
substitution and resubstitution for him and in his name, place and stead, in any
and all capacities, to sign any or all amendments to this Registration
Statement, and to file the same with all exhibits thereto and other documents in
connection therewith, with the Commission, granting unto each of said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person hereby
ratifying and confirming that each of said attorneys-in-fact and agents or his
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates included:
<TABLE>
<CAPTION>
Signature Capacity Date
- --------- -------- ----
<S> <C> <C>
/s/ Timothy R. Wallace Chairman, President,
- --------------------------- Chief Executive Officer May 3. 1999
Tmothy R. Wallace and Director (Principal
Executive Officer)
/s/ Jim S. Ivy Vice President (Principal May 3, 1999
- --------------------------- Financial Officer)
Jim S. Ivy
/s/ John M. Lee Vice President (Principal May 3, 1999
- --------------------------- Accounting Officer)
John M. Lee
/s/ W. Ray Wallace Director May 3, 1999
- ---------------------------
W. Ray Wallace
/s/ David W. Biegler Director May 3, 1999
- ---------------------------
David W. Biegler
/s/ Barry L. Galt Director May 3, 1999
- ---------------------------
Barry L. Galt
/s/ Clifford J. Grum Director May 3, 1999
- ---------------------------
Clifford J. Grum
/s/ Dean P. Guerin Director May 3, 1999
- ---------------------------
Dean P. Guerin
/s/ Jess T. Hay Director May 3, 1999
- ---------------------------
Jess T. Hay
/s/ Edmund M. Hoffman Director May 3, 1999
- ---------------------------
Edmund M. Hoffman
/s/ Diana S. Natalicio Director May 3, 1999
- ---------------------------
Diana S. Natalicio
</TABLE>
II-6
<PAGE>
INDEX TO EXHIBITS
Exhibit Description of Exhibit
4.1 Specimen Common Stock Certificate of Registrant (incorporated by reference
to Exhibit 3B to Registration Statement No. 33-10937, filed April 8, 1987)
4.2 Trinity Industries, Inc. 1998 Stock Option and Incentive Plan (incorporated
by reference to Annex A to the proxy statement on Schedule 14A of Trinity
Industries, Inc. with respect to the annual meeting of stockholders held
July 17, 1998
5.1 Opinion of Jenkens & Gilchrist, a Professional Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional Corporation (included in
opinion filed as Exhibit 5.1 hereto)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney (included with signature page of this Registration
Statement)
EXHIBIT 5.1
[LETTERHEAD OF JENKENS & GILCHRIST]
May 3, 1999
Trinity Industries, Inc.
2525 Stemmons Freeway
Dallas, Texas 75207
Re: Trinity Industries, Inc. - Registration Statement on Form S-8
Gentlemen:
We are counsel to Trinity Industries, Inc., a Delaware corporation (the
"Company"), and have acted as such in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission on or about May 3, 1999, under the
Securities Act of 1933, as amended (the "Securities Act"), relating to 2,000,000
shares (the "Shares") of the $1.00 par value common stock (the "Common Stock")
of the Company that have been or may be issued by the Company pursuant to the
Trinity Industries, Inc. 1998 Stock Option and Incentive Plan between the
Company and the signatories thereto (the "Plan").
You have requested an opinion with respect to certain legal aspects of
the proposed offering. In connection therewith, we have examined and relied upon
the original, or copies identified to our satisfaction, of (1) the Certificate
of Incorporation of the Company and the Bylaws of the Company; (2) minutes and
records of the corporate proceedings of the Company with respect to the
establishment of the Plan, the reservation of 2,000,000 Shares to be issued
pursuant to the Plan and to which the Registration Statement relates, the
issuance of the shares of Common Stock pursuant to the Plan and related matters;
(3) the Registration Statement and exhibits thereto, including the Plan; and (4)
such other documents and instruments as we have deemed necessary for the
expression of opinions herein contained. In making the foregoing examinations,
we have assumed the genuineness of all signatures and the authenticity of all
documents submitted to us as originals, and the conformity to original documents
of all documents submitted to us as certified or photostatic copies. As to
various questions of fact material to this opinion, and as to the content and
form of the Certificate of Incorporation, the Bylaws, minutes, records,
resolutions and other documents or writings of the Company, we have relied, to
the extent deemed reasonably appropriate, upon representations or certificates
of officers or directors of the Company and upon documents, records and
instruments furnished to us by the Company, without independent check or
verification of their accuracy.
Based upon our examination, consideration of, and reliance on the
documents and other matters described above, and assuming that:
<PAGE>
Trinity Industries, Inc.
May 3, 1999
Page 2
(1) the Shares to be sold and issued in the future will be duly issued
and sold in accordance with the terms of the Plan;
(2) the Company maintains an adequate number of authorized but unissued
shares and/or treasury shares available for issuance to those persons who
purchase Shares pursuant to the Plan; and
(3) the consideration for the Shares issued pursuant to the Plan is
actually received by the Company as provided in the Plan and exceeds the par
value of such shares;
then, we are of the opinion that, the Shares issued or sold in accordance with
the terms of the Plan will be duly and validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to references to us included in or made a part of the
Registration Statement. In giving this consent, we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Securities and Exchange
Commission thereunder.
Sincerely,
Jenkens & Gilchrist,
A Professional Corporation
By: /s/ W. Alan Kailer
-------------------------------
W. Alan Kailer,
Authorized Signatory
EXHIBIT 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 to be filed on or about May 4, 1999) pertaining to the Trinity Industries,
Inc. 1998 Stock Option and Incentive Plan of our report dated May 6, 1998, 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, 1998; and the related financial statement schedules included therein
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Dallas, Texas
May 3, 1999
