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EXHIBIT 10.8
SUPPLEMENTAL PROFIT SHARING PLAN FOR EMPLOYEES OF
TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES
AS RESTATED EFFECTIVE JANUARY 1, 2000
ARTICLE I
PURPOSE
TRINITY INDUSTRIES, INC., a corporation organized and existing under
the laws of the State of Delaware (hereinafter, the "Company"), hereby restates
the SUPPLEMENTAL PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC.
AND CERTAIN AFFILIATES (hereinafter, the "Plan"), such restatement to be
effective as of January 1, 2000;
WITNESSETH:
WHEREAS, the Company wishes to promote in certain of its highly
compensated employees and those of its affiliates the strongest interest in the
successful operation of the business and increased efficiency in their work, to
align the financial interests of such employees with those of Company
shareholders and to provide an opportunity for accumulation of funds for their
retirement; and
WHEREAS, it is intended that the Plan be "unfunded" for purposes of the
Employee Retirement Income Security Act of 1974 (hereinafter, "ERISA") and not
be construed to provide income to any participant or beneficiary under the
Internal Revenue Code of 1986 (hereinafter, the "Code") prior to actual receipt
of benefits hereunder;
NOW, THEREFORE, the Company hereby agrees as follows:
ARTICLE II
DEFINITIONS, CONSTRUCTION, AND APPLICABILITY
2.01 Definitions
The following words and phrases, when used herein, unless their context
clearly indicates otherwise, shall have the following respective
meanings:
(a) ACCOUNT: A Participant's Compensation Reduction Contribution
Account, Matching Contribution Account, Additional Matching
Contribution Account and/or Discretionary Contribution
Account, as the case maybe.
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(b) ADDITIONAL MATCHING CONTRIBUTION: Any amount credited by an
Employer for a Plan Year to a Participant pursuant to Section
4.01(c) hereof.
(c) ADDITIONAL MATCHING CONTRIBUTION ACCOUNT: The account
maintained for a Participant on the books of his Employer to
which Additional Matching Contributions and adjustments
related thereto are credited.
(d) AFFILIATE: Any corporation (other than an Employer) which is
included within a controlled group of corporations (as defined
in Code Section 414(b)) which includes an Employer; any trade
or business (other than an Employer), whether or not
incorporated, which is under common control (as defined in
Code Section 414(c)) with an Employer; any organization (other
than an Employer), whether or not incorporated, which is a
member of an affiliated service group (as defined in Code
Section 414(m)) which includes an Employer; and any other
entity required to be aggregated with an Employer pursuant to
regulations under Code Section 414(o).
(e) ANNUAL INCENTIVE COMPENSATION: Any amount payable as an annual
bonus to a Participant pursuant to the Company's incentive pay
program.
(f) AUTHORIZED LEAVE OF ABSENCE: Any absence authorized by an
Employer under the Employer's standard personnel practices
provided that all persons under similar circumstances must be
treated alike in the granting of such Authorized Leaves of
Absence and provided further that the Participant returns
within the period of authorized absence. An absence due to
service in the Armed Forces of the United States shall be
considered an Authorized Leave of Absence provided that the
absence is caused by war or other emergency, or provided that
the Employee is required to serve under the laws of
conscription in time of peace, and further provided that the
Employee returns to employment with the Employer within the
period provided by law.
(g) AWARD COMPENSATION: All items taxable as the Participant's
ordinary income under the Trinity Industries 1993 and 1998
Stock Option and Incentive Plans; provided that Award
Compensation expressly shall not include income or gain
attributable to incentive stock options awarded thereunder.
(h) BASE COMPENSATION: All amounts payable to a Participant which
constitute scheduled items of salary or wages.
(i) BENEFICIARY: A person or persons (natural or otherwise)
designated by a Participant in accordance with the provisions
of Section 6.06 to receive any death benefit which shall be
payable under this Plan.
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(j) CHANGE IN CONTROL: A Change in Control shall be deemed to have
occurred if the event set forth in any one of the following
paragraphs shall have occurred:
(1) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company
(not including in the securities beneficially owned
by such Person any securities acquired directly from
the Company or its affiliates) representing thirty
percent (30%) or more of the combined voting power of
the Company's then outstanding securities, excluding
any Person who becomes such a Beneficial Owner in
connection with a transaction described in clause (i)
of paragraph (3) below; or
(2) the following individuals cease for any reason to
constitute a majority of the number of directors then
serving: individuals who, on May 6, 1997, constitute
the Board and any new director (other than a director
whose initial assumption of office is in connection
with an actual or threatened election contest,
including but not limited to a consent solicitation,
relating to the election of directors of the Company)
whose appointment or election by the Board or
nomination for election by the Company's stockholders
was approved or recommended by a vote of at least
two-thirds (2/3) of the directors then still in
office who either were directors on May 6, 1997, or
whose appointment, election or nomination for
election was previously so approved or recommended;
or
(3) there is consummated a merger or consolidation of the
Company or any direct or indirect subsidiary of the
Company with any other corporation, other than (i) a
merger or consolidation which would result in the
voting securities of the Company outstanding
immediately prior to such merger or consolidation
continuing to represent (either by remaining
outstanding or by being converted into voting
securities of the surviving entity or any parent
thereof) at least sixty percent (60%) of the combined
voting power of the securities of the Company or such
surviving entity or any parent thereof outstanding
immediately after such merger or consolidation, or
(ii) a merger or consolidation effected to implement
a recapitalization of the Company (or similar
transaction) in which no Person is or becomes the
Beneficial Owner, directly or indirectly, of
securities of the Company (not including in the
securities beneficially owned by such Person any
securities acquired directly from the Company or its
Affiliates other than in connection with the
acquisition by the Company or its Affiliates of a
business) representing thirty percent (30%) or more
of the combined voting power of the Company's then
outstanding securities; or
(4) the stockholders of the Company approve a plan of
complete liquidation or dissolution of the Company or
there is consummated an agreement for the sale or
disposition by the Company of all or substantially
all of the Company's assets, other than a sale or
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disposition by the Company of all or substantially
all of the Company's assets to an entity, at least
sixty percent (60%) of the combined voting power of
the voting securities of which are owned by
stockholders of the Company in substantially the same
proportions as their ownership of the Company
immediately prior to such sale.
For purposes of this paragraph:
"Affiliate" shall have the meaning sect forth in Rule
12b-2 promulgated under Section 12 of the Exchange
Act.
"Beneficial Owner" shall have the meaning set forth
in Rule 13d-3 under the Exchange Act.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended from time to time.
"Person" shall have the meaning given in Section
3(a)(9) of the Exchange Act, as modified and used in
Section 13(d) and 14(d) thereof, except that such
term shall not include (i) the Company or any of its
subsidiaries, (ii) a trustee or other fiduciary
holding securities under an employee benefit plan of
the Company or any of its Affiliates, (iii) an
underwriter temporarily holding securities pursuant
to an offering of such securities, or (iv) a
corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the
Company.
(k) CODE: The Internal Revenue Code of 1986, as amended from time
to time.
(1) COMMITTEE OR PLAN COMMITTEE: The persons appointed under the
provisions of Article VIII to administer the Plan.
(m) COMPANY: TRINITY INDUSTRIES, INC., a corporation organized and
existing under the laws of the State of Delaware, or its
successor or successors.
(n) COMPENSATION: Annual Incentive Compensation, Award
Compensation and/or Base Compensation paid to a Participant.
(o) COMPENSATION REDUCTION CONTRIBUTION: An amount credited by an
Employer for the Plan Year to a Participant pursuant to
Section 4.01(a) hereof.
(p) COMPENSATION REDUCTION CONTRIBUTION ACCOUNT: The account
maintained for a Participant on the books of his Employer to
which Compensation Reduction Contributions and adjustments
related thereto are credited.
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(q) DISABILITY: A physical or mental condition which, in the
judgment of the Committee, totally and presumably permanently
prevents a Participant from engaging in any substantial or
gainful employment. Determinations of Disability shall be made
on the basis of standards applied uniformly to all
Participants.
(r) DISCRETIONARY CONTRIBUTIONS: Any amount credited by an
Employer for the Plan Year to a Participant pursuant to
Section 4.01(e) hereof.
(s) DISCRETIONARY CONTRIBUTION ACCOUNT: The account maintained for
a Participant on the books of his Employer to which
Discretionary Contributions and adjustments related thereto
are credited.
(t) EFFECTIVE DATE: Except where otherwise indicated herein,
January 1, 2000, the date on which the provisions of this
amended and restated Plan become effective.
(u) ELAPSED-TIME EMPLOYMENT: With respect to an Employee, the
period beginning on his Employment Commencement Date (or
Reemployment Commencement Date, as the case may be) and ending
on the date of his Severance from Service. Such period shall
be determined without regard to the actual number of Hours of
Employment completed by the Employee during such period.
Except to the extent otherwise permitted by the Committee in
its sole discretion, Elapsed-Time Employment completed with an
Affiliate or a Participating Employer prior to the date on
which such Affiliate or Employer was included within a
controlled group of corporations (as defined in Code Section
414(b)) which includes the Company shall not be recognized
under this Plan.
(v) EMPLOYEE: Any individual on the payroll of an Employer (i)
whose wages from the Employer are subject to withholding for
purposes of Federal income taxes and for purposes of the
Federal Insurance Contributions Act, (ii) who is included
within a "select group of management or highly compensated
employees," as such term is used in Section 401(a)(l) of
ERISA, and (iii) who is designated by the Plan Committee as
eligible to participate in this Plan; provided that, under no
circumstances shall an individual be an eligible Employee
hereunder until the first day of the calendar quarter
immediately following his Employment Commencement Date.
(w) EMPLOYER or PARTICIPATING EMPLOYER: The Company and any
Affiliate of the Company to the extent that an Employee of
such Affiliate is a Participant hereunder.
(x) EMPLOYMENT COMMENCEMENT DATE: The first date on which an
Employee completes an Hour of Employment.
(y) ERISA: Public Law No. 93-406, the Employee Retirement Income
Security Act of 1974, as amended from time to time.
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(z) EXTENDED ABSENCE EMPLOYEE: An Employee who is absent from his
Employer's employment solely because of (i) the Employee's
pregnancy, (ii) the birth of the Employee's child, (iii) the
placement of a child with the Employee in connection with the
adoption of the child by the Employee, or (iv) the care of a
child by the Employee during the period immediately following
such child's birth to, or placement with, the Employee.
(aa) FORFEITURES: The portion of a Participant's Matching
Contribution Account, Additional Matching Contribution Account
and Discretionary Contribution Account, if any, which is
forfeited because of a Severance from Service before full
vesting.
(bb) HOUR OF EMPLOYMENT: Each hour (i) for which an Employee is on
an Authorized Leave of Absence or is directly or indirectly
paid or entitled to payment by his Employer for the
performance of duties or for reasons other than the
performance of duties, or (ii) for which back-pay has been
agreed to by the Employer. Hours of Employment shall be
determined from records maintained by each Employer; provided,
however, that an Employer may elect to determine Hours of
Employment for any classification of Employees which is
reasonable, nondiscriminatory and consistently applied, on the
basis that Hours of Employment include forty-five (45) Hours
of Employment for each week or portion thereof during which an
Employee is credited with one (1) Hour of Employment.
Except to the extent otherwise permitted by the Committee in
its sole discretion, Hours of Employment completed with an
Affiliate or a Participating Employer prior to the date on
which such Affiliate or Employer was included within a
controlled group of corporations (as defined in Code Section
414(b)) which includes the Company shall not be recognized
under this Plan.
(cc) INITIAL EFFECTIVE DATE: July 1, 1990, the date on which the
Prior Plan became effective.
(dd) MATCHING CONTRIBUTION ACCOUNT: The account maintained for a
Participant on the books of his Employer to which Matching
Employer Contributions and adjustments related thereto are
credited.
(ee) MATCHING EMPLOYER CONTRIBUTION: Any amount credited by an
Employer for a Plan Year to a Participant pursuant to Section
4.01(b) hereof.
(ff) PARTICIPANT: An Employee participating in the Plan in
accordance with the provisions of Section 3.01.
(gg) PARTICIPATION: The period commencing on the date on which an
Employee becomes a Participant and ending on the date on which
the Employee incurs a Break in Service (as defined in Section
3.02(d)).
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(hh) PLAN: The SUPPLEMENTAL PROFIT SHARING PLAN FOR EMPLOYEES OF
TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED
EFFECTIVE JANUARY 1,2000, the Plan set forth herein, as
amended from time to time.
(ii) PRIOR PLAN: The SUPPLEMENTAL PROFIT SHARING PLAN FOR EMPLOYEES
OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES, as in
effect prior to the Effective Date.
(jj) REEMPLOYMENT COMMENCEMENT DATE: The first date on which an
Employee completes an Hour of Employment upon his return to
the employment of the Employers after a Break in Service.
(kk) SERVICE: A Participant's period of employment with the
Employers determined in accordance with Section 3.02.
(ll) SEVERANCE FROM SERVICE: With respect to an Employee, the later
of (1) or (2), where--
(1) is the earlier of (i) the date on which he quits, or
is discharged from, the employment of the Employers,
or the date of his retirement or death, or (ii) the
first anniversary of the first date of a period in
which he remains absent from the employment of the
Employers, with or without pay, for any reason other
than one specified in (i), above, such as vacation,
holiday, sickness, Authorized Leave of Absence or
layoff; and
(2) is, in the case of an Extended Absence Employee, the
second anniversary of such Employee's absence.
(mm) STOCK UNIT: A deemed share of Company common stock, more fully
described in Section 5.04 hereof.
(nn) TRUST (or TRUST FUND): The fund known as the TRINITY
INDUSTRIES, INC. SUPPLEMENTAL PROFIT SHARING AND DEFERRED
DIRECTOR FEE TRUST, maintained in accordance with the terms of
the trust agreement, as from time to time amended, which
constitutes a part of this Plan.
(oo) TRUSTEE: The corporation, individual or individuals appointed
to administer the Trust in accordance with the agreement
governing the Trust.
(pp) VALUATION DATE: The last day of each month (or if no Company
stock is traded on such date, the immediately preceding
trading date), and such other dates as the Committee in its
discretion may prescribe.
(qq) YEAR or PLAN YEAR: The twelve (12)-month period ending on
March 31 of each year.
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2.02 Construction
The masculine gender, where appearing in the Plan, shall be deemed to
include the feminine gender, unless the context clearly indicates to
the contrary. The words "hereof," "herein," "hereunder" and other
similar compounds of the word "here" shall mean and refer to the entire
Plan and not to any particular provision or Section.
2.03 Applicability
The provisions of this Plan shall apply only to a Participant who
terminates employment on or after the Effective Date. In the case of a
Participant who terminates employment prior to the Effective Date, the
rights and benefits, if any, of such former Employee shall be
determined in accordance with the provisions of the Prior Plan, as in
effect on the date on which his employment terminated.
ARTICLE III
PARTICIPATION AND SERVICE
3.01 Participation
An Employee who was a Participant under the Prior Plan shall continue
as a Participant under this Plan, to the extent provided hereunder. All
references hereunder to such Participant's "compensation reduction
agreement" shall include his salary reduction agreement executed under
the Prior Plan.
An individual classified as an Employee under Section 2.01(v) hereof
shall become a Participant in this Plan on the first day of (i) the
month on or immediately following such classification or (ii) any of
his taxable years thereafter, provided that, prior to such date, he
shall first have undertaken the actions specified in Section 3.03
hereof.
An active Participant who incurs a Severance from Service and who is
subsequently reemployed by an Employer shall reenter the Plan as an
active Participant on his Reemployment Commencement Date or the first
day of any of his next following taxable years, but only if (i) he
continues to qualify as an Employee within the meaning of Section
2.01(v) hereof and (ii) prior to such date he shall have again
undertaken the actions specified in Section 3.03 hereof. In the event
that a Participant shall cease to qualify as an Employee within the
meaning of Section 2.01(v) hereof, his Participation shall thereupon
cease but he shall continue to accrue Service hereunder during the
period of his continued employment with the Employers.
Any provisions of this Plan to the contrary notwithstanding, effective
on and after the date of a Change in Control, the term "Participant"
shall be limited to those individuals who satisfy the requirements set
forth for participation in this Plan and who were Participants in this
Plan as of the date immediately prior to the date of such Change in
Control.
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3.02 Service
The amount of benefit payable to or on behalf of a Participant shall be
determined on the basis of his period of Service, in accordance with
the following:
(a) In General. Subject to the Break in Service provisions of
paragraph (d) of this Section, an Employee's Service shall
equal the total of his Elapsed-Time Employment. Service shall
be counted in years and completed days.
(b) Transfers from Affiliates. In the event that an Employee who
at any time was employed by an Affiliate either commences
employment with a Participating Employer, or returns to the
employment of a Participating Employer, then, except as
otherwise provided below, such Employee shall receive Service
with respect to the period of his employment with such
Affiliate (to the extent not credited under paragraph (c) of
this Section). In applying the provisions of the preceding
sentence--
(1) except to the extent otherwise permitted by the
Committee in its sole discretion, such Employee shall
not receive Service with respect to any period of
employment with such Affiliate completed prior to the
date on which such Affiliate became an Affiliate;
(2) the amount of such Service shall be determined in
accordance with paragraph (a) of this Section, as if
such Affiliate were a Participating Employer; and
(3) if such Employee incurs a Break in Service (as
defined in paragraph (d) of this Section and
determined as if such Affiliate were a Participating
Employer) prior to his commencement of employment
with the Participating Employer or return to the
employment of the Participating Employer, then the
amount of such Employee's Service attributable to the
period of his employment with such Affiliate shall be
determined in accordance with paragraph (d) of this
Section.
(c) Transfers to Affiliate. In the event that a Participant who at any
time was employed by a Participating Employer either commences
employment with an Affiliate, or returns to the employment of an
Affiliate, then, except as otherwise provided below, such Participant
shall receive Service with respect to the period of his employment with
such Affiliate (to the extent not credited under paragraph (b) of this
Section). In applying the provisions of the preceding sentence--
(1) the amount of such Service shall be determined in
accordance with paragraph (a) of this Section, as if
such Affiliate were a Participating Employer, and
(2) if such Participant incurs a Break in Service (as
defined in paragraph (d) of this Section and
determined as if such Affiliate were a Participating
Employer) prior to his commencement of employment
with the Affiliate or return to the employment of
the Affiliate, then
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the amount of such Participant's Service attributable
to his prior period of employment with the
Participating Employer shall be determined in
accordance with paragraph (d) of this Section.
(d) Break in Service. An Employee who incurs a Severance from
Service and who fails to complete at least one (1) Hour of
Employment during the twelve (12)-month period beginning on
the date of such Severance from Service shall have a Break in
Service. If, during the twelve (12)-month period beginning on
the date of an Employee's Severance from Service, the Employee
shall return to the employment of a Participating Employer by
completing at least one (1) Hour of Employment within such
twelve (12)-month period, then such Employee will not have a
Break in Service and shall receive Service for the period
beginning on the date of his Severance from Service and ending
on the date of his reemployment; provided, however, that in
the case of an Employee who is absent from the employment of
the Participating Employers for a reason specified in Section
2.01(ll)(1)(ii) hereof and who, prior to the first anniversary
of the first date of such absence, incurs a Severance from
Service for a reason specified in Section 2.01(ll)(1)(i)
hereof, such Employee shall receive Service only if he
completes at least one (1) Hour of Employment within the
twelve (12)-month period beginning on the first date of such
absence and shall receive such Service only for the period
beginning on the first day of such absence and ending on the
date of his reemployment. Upon incurring a Break in Service,
an Employee's rights and benefits under the Plan shall be
determined in accordance with his Service at the time of the
Break in Service. For a Participant who, at the time of a
Break in Service, satisfied any requirements of this Plan for
vested benefits, his pre-break Service shall, upon his
Reemployment Commencement Date, be restored in determining his
rights and benefits under the Plan. For an Employee who, at
the time of a Break in Service, had not fulfilled such
requirements, periods of pre-break Service shall, upon his
Reemployment Commencement Date, be restored only if the
consecutive periods of Break in Service were less than the
greater of (i) sixty (60) months or (ii) the total period of
pre-break Service.
(e) Special Rule for Participants After Initial Eligibility Date.
Notwithstanding the preceding provisions of this Section 3.02,
the Elapsed-Time Employment and Service of any Participant who
failed to elect to participate hereunder pursuant to Section
3.03 hereof prior to the date on which he was first eligible
to do so pursuant to Section 3.01 hereof shall be determined
as if his Employment Commencement Date were the later of (i)
the Initial Effective Date or (ii) the date on which he first
completes an Hour of Employment. In addition, in the case of a
Participant who was not employed by an Employer on the Initial
Effective Date but was so employed prior to such date, such
prior period of employment will not, under any circumstances,
be treated as Service unless such Participant elects to
participate hereunder pursuant to such Section 3.03 prior to
the date on which he was first eligible to do so pursuant to
such Section 3.01.
(f) Special Rule for Extended Absence Employees. Notwithstanding
the preceding provisions of this Section 3.02, in the case of
an Extended
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Absence Employee, the period between the first and second
anniversaries of such Employee's absence shall, under no
circumstances, be treated as a period of Service.
3.03 Election to Participate
In order to participate hereunder, an Employee, otherwise eligible to
participate pursuant to Section 3.01 hereof, must, after having
received a written explanation of the terms of and the benefits
provided under the Plan, elect to participate in such Plan on such form
or forms as the Committee may provide and must execute a compensation
reduction agreement described in Section 4.02 hereof. Such election to
participate and execution of a compensation reduction agreement shall
be effected on any date on or prior to the applicable date specified in
such Section 3.01 for the commencement of Participation and, in all
events, prior to the completion of services for which amounts subject
to the compensation reduction agreement would otherwise have been paid
to such Employee.
3.04 Transfer
An Employee who is transferred between Participating Employers shall be
as eligible for Participation and benefits as in the absence of such
transfer.
ARTICLE IV
CONTRIBUTIONS AND FORFEITURES
4.01 Employer Contributions
Employers shall credit Participant accounts in accordance with the
following:
(a) Compensation Reduction Contribution. For each Year, each
Employer shall credit the Compensation Reduction Contribution
Account of each of its Employees participating in the Plan
with an amount agreed to be credited by such Employer pursuant
to a compensation reduction agreement entered into between the
Employer and the Participant for such Year, as provided in
Section 4.02; provided that if such Participant is also a
participant in the Profit Sharing Plan for Employees of
Trinity Industries, Inc. and Certain Affiliates, such
Participant must first have elected to contribute the maximum
permissible salary reduction contribution for the Year to his
salary reduction contribution account under such Profit
Sharing Plan, with such maximum permissible amount to be
determined by reference to all applicable limitations of (i)
Code Section 401, (ii) the provisions of such Profit Sharing
Plan and (iii) other applicable law. Such compensation
reduction agreement shall include a separate deferral election
for each of the following types of Compensation:
(i) Base Compensation;
(ii) Annual Incentive Compensation; and
(iii) Award Compensation.
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(b) Matching Employer Contribution. For each Year, each Employer
shall credit a Matching Employer Contribution amount in the
form of Stock Units to each of its Employees for whom an
amount was credited pursuant to paragraph (a) of this Section
4.01; provided, however, that no such Matching Employer
Contribution shall be credited prior to the date on which such
Employee completes one (1) year of Service. Such Matching
Employer Contribution, when added to the Forfeitures which
have become available for application as of the end of the
Year pursuant to Section 4.03 hereof, shall be equal to a
percentage of that portion of the Participant's Compensation
Reduction Contribution for such Year pursuant to Section 4.02
hereof which does not exceed six percent (6%) of his Base
Compensation plus Annual Incentive Compensation for such Year,
based on his years of Service as follows:
<TABLE>
<CAPTION>
Years of Service Applicable Percentage
---------------- ---------------------
<S> <C>
Less than 1 0%
1 but less than 2 25%
2 but less than 3 30%
3 but less than 4 35%
4 but less than 5 40%
5 or more 50%
</TABLE>
(c) Additional Matching Contribution. For each Year, each Employer
shall credit an additional amount in the form of Stock Units
to each of its Employees for whom an amount was credited
pursuant to paragraph (a) of this Section 4.01, which when
added to the Forfeitures which have become available for
application as of the end of the Year pursuant to Section 4.03
hereof and which have not been applied as provided in
paragraph (b) of this Section, shall be equal to seventeen and
one-half percent (17 1/2%) of that portion of the
Participant's Compensation Reduction Contribution for such
Year pursuant to Section 4.02 hereof which is invested or
deemed invested in Stock Units pursuant to Section 5.02(a)
hereof up to twenty-five percent (25%) of the sum of his Base
Compensation and Annual Incentive Compensation for such Year.
(d) Limitations on Matching Contributions. Except in the case of a
Participant who "retires" (as defined in the Trinity
Industries, Inc. Standard Pension Plan), dies or incurs a
Disability during a Year, no Matching Employer Contributions
shall be credited to a Participant for a Year unless such
Participant is actively employed by an Employer on the last
day of such Year. In addition, no Matching Employer
Contributions or Additional Matching Contributions shall be
credited to Participants for a Year unless the Company's
earnings per share for such Year are sufficient to cover
dividends to stockholders; provided that in no event will a
Matching Employer Contribution or Additional Matching
Contribution be made if the Company's net profits for such
Year are less than Thirty-Three and one-third Cents ($.33-1/3)
per share. In addition, and notwithstanding paragraph (b) of
this Section, the amount of Matching Employer Contribution
credited to a Participant for a Year under this Plan shall be
reduced by the amount of any matching contribution credited to
the
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Participant for such Year under the Profit Sharing Plan for
Employees of Trinity Industries, Inc. and Certain Affiliates.
(e) Discretionary Contributions. In addition to the contributions
described above, for each Year an Employer may, but shall not
be required to, credit the Discretionary Contribution Account
of any one or more Participants in its employ during such Year
with such amounts in the form of Stock Units or otherwise as
the Employer may determine in its sole discretion.
4.02 Participant Compensation Reduction
(a) General. Prior to commencement of Participation hereunder, a
Participant shall have entered into a written compensation
reduction agreement with his Employer. The terms of such
compensation reduction agreement shall provide that the
Participant agrees to accept a reduction in Compensation from
the Employer. In consideration of such agreement, the Employer
will credit the Participant's Compensation Reduction
Contribution Account for each Year with an amount equal to the
total amount by which the Participant's Compensation from the
Employer was reduced during the Year pursuant to the
compensation reduction agreement.
(b) Election Requirements. Compensation reduction agreements shall
be further governed by the following:
(1) A compensation reduction agreement shall specify the
types of Compensation to which it will apply and
shall be effective during the period in which it is
on file with the Participant's Employer, but in no
event shall be effective to (i) reduce Award
Compensation which is attributable to the exercise of
nonqualified stock options, the lapse of all
restrictions on a grant of restricted stock, the
exercise of stock appreciation rights or the payment
of dividend equivalent rights and which is payable
during the six (6) month period immediately following
the date of execution of the agreement; or (ii)
reduce payments of Base Compensation, Annual
Incentive Compensation or other types of Award
Compensation for services completed on or before the
date on which such compensation reduction agreement
is received by the Corporate Benefits department of
the Company.
(2) A compensation reduction agreement shall have been
entered into by a Participant on or prior to
commencement of Participation hereunder and shall
remain in effect until terminated or amended by the
Participant in accordance with the procedures set
forth herein. Any amendment or termination of a
compensation reduction agreement shall not be
effective until the first day of the Participant's
taxable year immediately following the taxable year
of the Participant in which an election so to amend
or terminate is executed by the Participant and his
Employer and must be received by the Corporate
Benefits department of the Company at least fifteen
(15) days prior to the end of the taxable year of
execution. If a Participant
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<PAGE> 14
terminates his compensation reduction agreement as
hereinabove provided, then he may elect to enter into
another compensation reduction agreement to be
effective as of the first day of any of his taxable
years following his taxable year in which such
termination was first effective, provided that
written notice of such election must be received by
the Corporate Benefits department of the Company at
least fifteen (15) days prior to such effective date.
Notwithstanding the preceding provisions of this
subparagraph (2), to the extent that a compensation
reduction agreement reduces Award Compensation
described in subparagraph (1)(i) of this paragraph
(b), such agreement shall at all times be
irrevocable.
4.03 Forfeitures
If, upon a Severance from Service, a Participant is not entitled to a
distribution of the entire balance in his Matching Contribution
Account, Additional Matching Contribution Account and/or Discretionary
Contribution Account, then the amount to which the Participant is not
entitled shall become a Forfeiture and shall be deducted from the
Participant's Accounts at such time. The portion of the Participant's
Accounts which is not a Forfeiture shall continue to be adjusted as
provided in Section 5.03(a) until it is distributed in full. The
Participant shall receive a distribution of the nonforfeitable portion
of his Accounts pursuant to Article VI.
ARTICLE V
ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
5.01 Individual Accounts
The Committee shall create and maintain adequate records to disclose
the interest hereunder of each Participant, Former Participant and
Beneficiary. Such records shall be in the form of individual accounts
and credits and charges shall be made to such accounts in the manner
herein described. When appropriate, a Participant shall have up to four
separate Accounts, a Compensation Reduction Contribution Account, a
Matching Contribution Account, an Additional Matching Contribution
Account, and a Discretionary Contribution Account.
5.02 Investment of Accounts
(a) Participant Election. The Committee shall credit each
Participant's Accounts with earnings or losses according to
the hypothetical investment selections made by the Participant
pursuant to his participation agreement executed pursuant to
Section 3.03 hereof. The Committee shall adopt rules
concerning the manner in which a Participant may elect to
change his hypothetical investment selections; provided that a
Participant shall be permitted to do so no less frequently
than as of the first day of each month; provided further, that
a Participant may not change the hypothetical election which
applies to any portion of his Accounts that is invested or
deemed to be invested in Stock Units. The earnings or losses
attributable to a Participant's Accounts shall be determined
as if the amounts credited to such Accounts
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<PAGE> 15
were actually invested in Stock Units, to the extent required
or elected hereunder, and, to the extent not so required or
elected, in the hypothetical investments selected under the
Participant's participation agreement. In the case of a
Participant receiving installment payments under Article VI
hereof, the Participant's Accounts will continue to receive
allocations of earnings or losses in accordance with this
subsection until his Accounts are paid in full. If a
Participant's participation agreement fails to designate one
or more hypothetical investment selections, the Participant's
Account will be deemed invested in Stock Units, to the extent
required hereunder, and, to the extent not so required, in
the investment option designated as having the least
investment risk.
(b) Investment Options. The Committee shall have sole and absolute
discretion with respect to the number and types of investment
options made available for selection by Participants pursuant
to this Section, the timing of Participant elections and the
method by which adjustments are made. The Committee may in its
sole discretion refuse to recognize Participant elections that
it determines may cause the Participant's Accounts to become
subject to the short-swing profit provisions of Section 16b of
the Securities Exchange Act of 1934 and establish special
election procedures for Participants subject to Section 16 of
such Act. The Committee shall permit Participants to designate
that their investments be treated as invested in (i) Stock
Units or (ii) one or more investment indices; provided that
amounts credited on or after the Effective Date to a
Participant's Matching Contribution Account or Additional
Matching Contribution Account shall at all times be invested
in Stock Units; provided further that Compensation Reduction
Contributions made on or after the Effective Date of Award
Compensation shall at all times be invested in Stock Units.
The designation of investment options by the Committee shall
be for the sole purpose of adjusting Accounts pursuant to this
Section and, except to the extent that investment in Stock
Units is required hereunder, the provisions of this Article V
shall not obligate the Company or any of the Employers to
invest or set aside any assets for the payment of benefits
hereunder; provided, however, that the Company or an Employer
may invest a portion of its general assets in investments,
including investments which are the same as or similar to the
investment indices designated by the Committee and selected by
Participants, but any such investments shall remain part of
the general assets of the Company or such Employer and shall
not be deemed or construed to grant a property interest of any
kind to any Participant, designated Beneficiary or estate. The
Committee shall notify the Participants of the investment
indices available and the procedures for making and changing
elections.
(c) Non-Binding Status of Elections. A Participant's hypothetical
investment selections pursuant to the immediately preceding
paragraph shall be made solely for purposes of crediting
earnings and/or losses to his Accounts under Section 5.03 of
this Plan. The Committee shall not, in any way, be bound to
actually invest any amounts set aside pursuant to Article VII
below to satisfy its obligations under this Plan in accordance
with such selections.
15
<PAGE> 16
5.03 Account Adjustments
The accounts of Participants, Former Participants and Beneficiaries
shall be adjusted in accordance with the following:
(a) Valuation Adjustments. As of each Valuation Date, the amount
credited to a Participant's Accounts as of the preceding
Valuation Date, less any distributions or Forfeitures with
respect to such Accounts since such preceding Valuation Date,
shall be adjusted by reference to the fluctuations in value,
taking into account gain, loss, expenses and other
adjustments, of the investments selected by the Participant
for the investment adjustment of his or her Accounts, with
such adjustments to be made in the manner prescribed by the
Committee. Following such adjustment, the amounts credited to
a Participant's Accounts shall be increased to take into
account additional deferrals and contributions credited to
such Accounts since the preceding Valuation Date.
(b) Compensation Reduction Contributions. The amount credited
pursuant to Section 4.01(a) hereof for a Year as a
Compensation Reduction Contribution shall be allocated to the
Participant's Compensation Reduction Contribution Account as
of the date on which such Compensation Reduction Contribution
would otherwise have been paid to the Participant as
Compensation.
(c) Matching Contributions. Any Stock Units credited to a
Participant by an Employer pursuant to Section 4.01(b) or (c)
during a Year shall be allocated, as the case may be, to the
Participant's Matching Contribution Account or the
Participant's Additional Matching Contribution Account at such
time as may be determined by the Employer in its absolute
discretion, but no earlier than the last day of such Year.
(d) Discretionary Contributions. Any amounts credited to a
Participant by an Employer pursuant to Section 4.01(e) during
a Year shall be allocated to the Participant's Discretionary
Contribution Account at the time determined by the Employer in
its absolute discretion.
5.04 Stock Units
(a) General. For purposes of calculating the number of Stock Units
credited or deemed credited to a Participant's Accounts
pursuant to Section 5.03 (b) or (d), the price of a Stock Unit
shall be equal to one hundred percent (100%) of the closing
price on the New York Stock Exchange of a share of the
Company's common stock on the date on which the Stock Units
are credited or deemed credited to the Participant's Accounts
(or if no shares of the Company's common stock are traded on
such date, on the immediately preceding trading date). For
purposes of calculating the number of Stock Units credited to
a Participant's Accounts pursuant to Section 5.03 (c), the
price of a Stock Unit shall be equal to one hundred percent
(100%) of the average daily closing price on the New York
Stock Exchange of a Share of the Company's common stock for
the Year with respect to which the Stock Units are credited to
the Participant's Accounts,
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<PAGE> 17
provided that for Stock Units credited with respect to the
Year ending March 31, 2000, such average daily closing price
shall be calculated for the period beginning on January 1,
2000 and ending on such March 31, 2000.
(b) Voting Rights. A Participant shall not be entitled to any
voting rights with respect to the Stock Units credited or
deemed credited to his Accounts.
(c) Dividends. To the extent that a dividend is paid on the
Company's common stock, the Committee shall credit to the
Accounts of each Participant whose Accounts are invested or
deemed invested in Stock Units an amount equal to the value of
such dividends. Such amounts shall be credited to the
Participant's Accounts in the form of additional Stock Units
at a price equal to one hundred percent (100%) of the closing
price on the New York Stock Exchange of a share of the
Company's common stock on the date on which such dividend is
paid (or if no shares of the Company's common stock are traded
on such date, on the immediately preceding trading date).
(d) Dilution and Other Adjustments. In the event of any change in
the outstanding shares of common stock of the Company by
reason of any stock dividend, split, spin-off,
recapitalization, merger, consolidation, combination,
extraordinary dividend, exchange of shares or other similar
change, the Committee shall adjust the number or kind of Stock
Units then allocated or deemed allocated to the Participants'
Accounts as follows:
(1) Subject to any required action by stockholders, the
number of Stock Units shall be proportionately
adjusted for any increase or decrease in the number
of issued shares of the Company's common stock
resulting from (i) a subdivision or consolidation of
shares, (ii) the payment of a stock dividend or (iii)
any other increase or decrease in the number of
shares effected without receipt of consideration by
the Company.
(2) In the event of a change in the shares of the
Company's common stock as presently constituted,
which is limited to a change of par value into the
same number of shares with a different par value or
without par value, the shares of the Company's common
stock resulting from any such change shall be deemed
to be the shares of common stock within the meaning
of this Plan.
Any adjustments made by the Committee pursuant to this Section
5.04 shall be final, binding, and conclusive.
Except as hereinbefore provided in this Section 5.04, a
Participant to whose Account Stock Units are allocated shall
have no rights by reason of (i) any subdivision or
consolidation of the Company's stock or securities, (ii) the
payment of any stock dividend or (iii) any other increase or
decrease in the number of shares of stock of any class or by
reason of any dissolution, liquidation, reorganization,
merger, or consolidation or spinoff of assets or stock of
another corporation, and any issuance by the Company of
additional shares of stock (of any class), or securities
17
<PAGE> 18
convertible into shares of stock (of any class), shall not
affect the number of Stock Units allocated to such
Participant's Accounts under this Plan.
ARTICLE VI
DISTRIBUTION OF BENEFITS
6.01 General
Within thirty (30) days following the termination of a Participant's
employment, the Committee (i) shall certify to the Trustee or the
Treasurer of the Employer, as applicable, the total amount of the
allocations to the credit of the Participant on the books of each
Employer by which the Participant was employed at a time when amounts
were credited by such Employer to his Accounts and the Participant's
nonforfeitable interest in such Accounts, and (ii) shall determine
whether the payment of the amounts credited to the Participant's
Accounts under the Plan is to be paid directly by the applicable
Employer, from the Trust Fund, or by a combination of such sources
(except to the extent that the provisions of the Trust specify payment
from the Trust Fund).
6.02 Payments of Benefits
Payment of the nonforfeitable portion of the amounts credited to a
Participant's Accounts shall be made in accordance with the following
provisions:
(a) Death, Disability or Retirement. Payments made with respect to
a Participant's termination of employment on account of death,
Disability or "retirement" (as defined in the Trinity
Industries, Inc. Standard Pension Plan), shall be made in such
form as the Participant may elect from the following
alternatives:
(1) In a lump sum;
(2) In annual periodic payments for a specified number of
years, not in excess of 20, with the first payment to
be made no later than the sixtieth (60th) day
following the date on which the Participant's
termination of employment occurs and subsequent
payments to be made in the same calendar quarter of
each succeeding year, where the payment made during
each year shall be in an amount equal to a fraction
of the Participant's Account balances as of the last
day of the calendar quarter preceding the calendar
quarter in which the payment is made, and where such
fraction for each payment shall be one (1) divided by
the number of payments remaining (including the
current payment), and in which event the unpaid
balance shall continue to be adjusted as provided in
Section 5.03(a) until it is distributed in full; or
(3) In any combination of the methods specified in
subparagraphs (1) or (2) of this paragraph (a).
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<PAGE> 19
Any election pursuant to this paragraph (a) must be made prior
to the date on which such Employee's Participation hereunder
first commences, with all payments to be made in the form of a
lump sum in the absence of a timely election and, except as
expressly provided otherwise in this Plan, shall be
irrevocable; provided, however, that a Participant may change
such election once during any Year, with the new election to
be effective for a distribution arising from termination of
employment of the Participant only if such distribution is to
be made or commence for more than twelve (12) months after the
date of the new election. The Committee shall, as of the last
day of the calendar quarter within which the Participant
terminates employment, certify to the Trustee or the Treasurer
of the Employer, as applicable, the method of payment selected
by the Participant.
(b) Termination of Employment. Payments with respect to a
Participant's termination of employment for reasons other than
death, Disability or "retirement" (as defined in the Trinity
Industries, Inc. Standard Pension Plan) shall be made in the
form of a lump sum.
(c) Prior Plan Elections. Notwithstanding the preceding provisions
of this Section 6.02 and with respect to an Employee who
became a Participant in the Prior Plan before the Effective
Date, such Participant's election with respect to the form of
payment made pursuant to the provisions of the Prior Plan
shall remain in effect unless changed by the Participant in
the manner and to the extent described in paragraph (a) above.
(d) Timing. Payment of amounts credited to a Participant's
Accounts must be made or commence by no later than the
sixtieth (60th) day following the date on which the
Participant's termination of employment occurs.
The Trustee (to the extent provided in the Trust) or the Treasurer of
the Employer, as applicable, shall thereafter make payments of benefits
in the manner and at the times specified above, subject, however, to
all of the other terms and conditions of this Plan and the Trust. This
Plan shall be deemed to authorize the payment of all or any portion of
a Participant's benefits from the Trust Fund to the extent such payment
is required by the provisions of the Trust. Payments shall be made in
cash or, to the extent that any amount to be distributed has been
invested or deemed invested in Stock Units, in common stock of the
Company; provided that any amount invested or deemed invested in
fractional shares shall, in all events, be paid in cash.
6.03 Vesting of Benefits
(a) Death or Disability. If a Participant's termination of
employment is attributable to his death or Disability, he
shall be entitled to the entire amount then credited to his
Accounts.
(b) Termination of Employment. (1) Compensation Reduction
Contribution Account. If a Participant's termination of
employment is not attributable to his death or Disability, he
shall be entitled to the entire amount then credited to his
Compensation Reduction Contribution Account.
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<PAGE> 20
(2) Additional Matching Contribution Account. If a Participant's
termination of employment is not attributable to his death or
Disability, he shall be entitled to amounts credited to his
Additional Matching Contribution Account to the extent that
there have elapsed at least two (2) Plan Years following the
end of the Plan Year for which the Additional Matching
Contribution was made; provided, however, that if the
Participant terminates employment by reason of retirement on
or after age sixty-five (65), the Committee may, in its sole
discretion, authorize a distribution of the entire amount
credited to his Additional Matching Contribution Account;
provided, further, that if such termination of employment
occurs on or after a Change in Control, the Participant shall
be entitled to the entire amount credited to his Additional
Matching Contribution Account.
(3) Other Accounts. If a Participant's termination of employment
is not attributable to his death or Disability, he shall be
entitled to a "vested percentage" of the amounts credited to
his Matching Contribution Account and Discretionary
Contribution Account, if any, based on his years of Service as
follows:
<TABLE>
<CAPTION>
Vested Forfeited
Years of Service Percentage Percentage
----------------- ---------- ----------
<S> <C> <C>
Less than 1 0% 100%
1 but less than 2 20% 80%
2 but less than 3 40% 60%
3 but less than 4 60% 40%
4 but less than 5 80% 20%
5 or more 100% 0%
</TABLE>
; provided, however, that if the Participant terminates
employment by reason of retirement on or after age sixty-five
(65), the Committee may, in its discretion, authorize up to
full vesting of the entire amount credited to such Accounts;
provided, further, that if such termination of employment
occurs on or after a Change in Control, the Participant shall
under all circumstances be entitled to the entire amount
credited to such Accounts. Notwithstanding the preceding
provisions of this subparagraph (3), for amounts credited to a
Participant's Matching Contribution Account and Discretionary
Contribution Account, if any, pursuant to the terms of the
Prior Plan, if the Participant's termination of employment is
attributable to retirement on or after age sixty-five (65), he
shall under all circumstances be entitled to one hundred
percent (100%) of such amounts.
(d) Amount Credited. For purposes of this Section, the amount
credited to a Participant's Accounts at termination of
employment shall include any amounts to be credited pursuant
to Section 4.01 hereof for the Year of termination of
employment but not yet allocated.
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<PAGE> 21
6.04 Death
If a Participant shall die while in the service of an Employer, or
after termination of employment with the Employers and prior to the
complete distribution of all amounts payable to him under the Plan, any
remaining amounts payable to the Participant hereunder shall be payable
to his Beneficiary. The Committee shall cause the Trustee (to the
extent provided in the Trust) or the Treasurer of the Employer, as
applicable, to pay to such Beneficiary all of the amounts then standing
to the credit of the Participant in his Accounts, with such payment to
be made at the time and in the manner specified in Section 6.02 hereof.
6.05 Plan Termination
If the Plan is terminated pursuant to the provisions of Article X
hereof, the Committee shall cause the Trustee or the Treasurer of the
Employer, as applicable, to pay to all Participants all of the amounts
then standing to their credit, with payment to be made at the time and
in the manner specified in Section 6.02 hereof; provided, however, that
if the Plan is terminated on or after a Change in Control, payment
shall be made in the form of a lump sum which shall be paid no later
than sixty (60) days following the date on which the Plan termination
occurs, or, if elected by the Participant at least one full year prior
to the date on which payment otherwise would have been made upon
termination of the Plan, payment may be made in the form of five annual
installments, with the first installment to be made no later than sixty
(60) days following the date on which the termination occurs and the
remaining installments to be paid no later than the last day of
February of the next four successive calendar years. Each installment
shall be in an amount equal to a fraction of the total balance in the
Participant's Accounts as of the end of the immediately preceding
calendar quarter, where the fraction shall be one (1) divided by the
number of installments remaining to be paid (including the current
installment), and where the unpaid balance shall continue to be
adjusted as provided in Section 5.03(a) until it is distributed in
full.
6.06 Designation of Beneficiary
Each Participant from time to time may designate any person or persons
(who may be designated contingently or successively and who may be an
entity other than a natural person) as his Beneficiary or Beneficiaries
to whom his Plan benefits are paid if he dies before receipt of all
such benefits. Each Beneficiary designation shall be on a form
prescribed by the Committee and will be effective only when filed with
the Committee during the Participant's lifetime. Each Beneficiary
designation filed with the Committee will cancel all Beneficiary
designations previously filed with the Committee. The revocation of a
Beneficiary designation, no matter how effected, shall not require the
consent of any designated Beneficiary.
If any Participant fails to designate a Beneficiary in the manner
provided herein, or if the Beneficiary designated by a deceased
Participant dies before him or before complete distribution of the
Participant's benefits, the Committee, in its sole discretion, may
direct the Trustee to distribute such Participant's benefits (or the
balance thereof) to his surviving spouse or to either:
21
<PAGE> 22
(a) any one or more of the next of kin of such Participant, and in
such proportions as the Committee determines; or
(b) the estate of the last to die of such Participant and his
Beneficiary or Beneficiaries.
6.07 In-Service Distributions
No amounts credited to a Participant's Accounts shall be distributed to
or on behalf of the Participant prior to the occurrence of one of the
events specified in the provisions of this Article VI except as
follows:
(a) A distribution may be made to or on behalf of the Participant
to the extent that the Committee, in its sole discretion,
consents to such distribution upon a showing, by the
Participant, of an unforeseeable emergency. For this purpose,
an "unforeseeable emergency" is defined as severe financial
hardship to the Participant resulting from a sudden and
unexpected illness or accident of the Participant or of a
dependent of the Participant, loss of the Participant's
property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events
beyond the control of the Participant. The circumstances that
will constitute an unforeseeable emergency will depend on the
facts of each case, but payment may not be made to the extent
that such hardship is or may be relieved--(i) through
reimbursement or compensation by insurance or otherwise, (ii)
by liquidation of the Participant's assets, to the extent that
the liquidation of such assets would not itself cause severe
financial hardship, or (iii) by cessation of deferrals under
the Plan.
(b) A lump sum distribution may be made to or on behalf of a
Participant at any time, but no more often than once during
any Year, of an amount equal to at least 25% of the
Participant's nonforfeitable Account balances, and in such
proportions from each such Account as the Participant may
request; provided, however, that (i) an amount equal to 10% of
the amount distributed from the Accounts of a Participant
pursuant to this paragraph shall be forfeited in the same
proportion from such Accounts at the time of the distribution
so that the amount distributed to the Participant pursuant to
this paragraph shall never exceed the amount of the
Participant's nonforfeitable Account balances minus the amount
so forfeited, and (ii) the compensation reduction agreement of
any Participant who receives a distribution pursuant to this
paragraph shall be suspended for one full year from the date
of such distribution.
6.08 Designated Distributions
Prior to the beginning of a calendar year, a Participant may elect that
all or any portion of the amount of any Compensation Reduction
Contribution to be credited to the Participant's Compensation Reduction
Contribution Account during such calendar year, be distributed to or on
behalf of the Participant in the form of a lump sum in a subsequent
calendar year designated by the Participant, which subsequent calendar
year shall not be earlier than the third calendar year following the
calendar
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<PAGE> 23
year for which the election is made. The distribution shall be made no
later than March 31 of the designated year. In the event of the
Participant's termination of employment for any reason prior to the
designated year, the election shall be void and of no effect.
ARTICLE VII
NATURE OF PLAN; FUNDING
7.01 No Trust Required
The adoption of this Plan and any setting aside of amounts by the
Employers with which to discharge their obligations hereunder shall not
be deemed to create a trust; legal and equitable title to any funds so
set aside shall remain with the Employers, and any recipient of
benefits hereunder shall have no security or other interest in such
funds. Any and all funds so set aside shall remain subject to the
claims of the general creditors of the Employers, present and future.
This provision shall not require the Employers to set aside any funds,
but the Employers may set aside funds if they choose to do so.
7.02 Funding of Obligation
Section 7.01 above to the contrary notwithstanding, the Employers may
elect to transfer assets to the Trust, the provisions of which shall at
all times require the use of the Trust's assets to satisfy claims of an
Employer's general unsecured creditors in the event of such Employer's
insolvency and direct that no Participant shall at any time have a
prior claim to such assets. The assets of the Trust shall not be deemed
to be assets of this Plan.
ARTICLE VIII
ADMINISTRATION
8.01 Appointment of Committee
The Board of Directors of the Company shall appoint a Plan Committee to
administer, construe and interpret the Plan. Such Committee, or such
successor Committee as may be duly appointed by such Board of
Directors, shall serve at the pleasure of the Board of Directors. All
usual and reasonable expenses of the Committee shall be paid by the
Employers. Decisions of the Committee with respect to any matter
involving the Plan shall be final and binding on the Company, its
shareholders, each Employer and all officers and other executives of
the Employers. For purposes of ERISA, the Committee shall be the Plan
"administrator" with respect to the general administration of the Plan.
8.02 Duties of Committee
The Committee shall maintain complete and adequate records pertaining
to the Plan, including but not limited to Participants' Accounts,
amounts transferred to the Trust, reports from the Trustee and all
other records that shall be necessary or desirable in
23
<PAGE> 24
the proper administration of the Plan. The Committee shall furnish the
Trustee such information as is required to be furnished by the
Committee or the Company pursuant to the Trust. The Committee may
employ such persons or appoint such agents to assist it in the
performance of its duties as it may deem appropriate. If a member of
the Committee is a Participant hereunder, such Committee member shall
be precluded from participation in any decision relative to his
benefits under the Plan.
8.03 Indemnification of Committee
The Company (the "Indemnifying Party") hereby agrees to indemnify and
hold harmless the members of the Committee (the "Indemnified Parties")
against any losses, claims, damages or liabilities to which any of the
Indemnified Parties may become subject to the extent that such losses,
claims, damages or liabilities or actions in respect thereof arise out
of or are based upon any act or omission of the Indemnified Party in
connection with the administration of this Plan (other than any act or
omission of such Indemnified Party constituting gross negligence or
willful misconduct), and will reimburse the Indemnified Party for any
legal or other expenses reasonably incurred by him or her in connection
with investigating or defending against any such loss, claim, damage,
liability or action. Promptly after receipt by the Indemnified Party of
notice of the commencement of any action or proceeding with respect to
any loss, claim, damage or liability against which the Indemnified
Party believes he or she is indemnified, the Indemnified Party shall,
if a claim with respect thereto is to be made against the Indemnifying
Party, notify the Indemnifying Party in writing of the commencement
thereof; provided, however, that the omission so to notify the
Indemnifying Party shall not relieve it from any liability which it may
have to the Indemnified Party to the extent the Indemnifying Party is
not prejudiced by such omission. If any such action or proceeding shall
be brought against the Indemnified Party, and it shall notify the
Indemnifying Party of the commencement thereof, the Indemnifying Party
shall be entitled to participate therein, and, to the extent that it
shall wish, to assume the defense thereof, with counsel reasonably
satisfactory to the Indemnified Party, and, after notice from the
Indemnifying Party to the Indemnified Party of its election to assume
the defense thereof, the Indemnifying Party shall not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred
by the Indemnified Party in connection with the defense thereof other
than reasonable costs of investigation or reasonable expenses of
actions taken at the written request of the Indemnifying Party. The
Indemnifying Party shall not be liable for any compromise or settlement
of any such action or proceeding effected without its consent, which
consent will not be unreasonably withheld.
8.04 Unclaimed Benefits
During the time when a benefit hereunder is payable to any Participant
or Beneficiary, the Committee may, at its own instance, mail by
registered or certified mail to such Participant or Beneficiary, at his
last known address, a written demand for his then address, or for
satisfactory evidence of his continued life, or both. If such
information is not furnished to the Committee within twelve (12) months
from the mailing of such demand, then the Committee may, in its sole
discretion, declare such benefit, or any unpaid portion thereof,
suspended, with the result that such
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unclaimed benefit shall be treated as a Forfeiture for the Year with or
within which such twelve (12)-month period ends, but shall be subject
to restoration through an Employer contribution if the lost Participant
or Beneficiary later files a claim for such benefit.
ARTICLE IX
MISCELLANEOUS
9.01 Nonguarantee of Employment
Nothing contained in this Plan shall be construed as a contract of
employment between any Employer and any Employee, or as a right of any
Employee to be continued in the employment of any Employer, or as a
limitation on the right of an Employer to discharge any of its
Employees, with or without cause.
9.02 Nonalienation of Benefits
Benefits payable under this Plan shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, charge, garnishment, execution, or levy of any kind,
either voluntary or involuntary, prior to actually being received by
the person entitled to the benefit under the terms of the Plan; and any
attempt to anticipate, alienate, sell, transfer, assign, pledge,
encumber, charge or otherwise dispose of any right to benefits payable
hereunder shall be void.
9.03 No Preference
No Participant shall have any preference over the general creditors of
an Employer in the event of such Employer's insolvency.
9.04 Incompetence of Recipient
If the Committee receives evidence satisfactory to it that any person
entitled to receive a payment hereunder is, at the time the benefit is
payable, physically, mentally or legally incompetent to receive such
payment and to give a valid receipt therefor, and that an individual or
institution is then maintaining or has custody of such person and that
no guardian, committee or other representative of the estate of such
person has been duly appointed, the Committee may direct that such
payment be paid to such individual or institution maintaining or having
custody of such person, and the receipt of such individual or
institution shall be valid and a complete discharge for the payment of
such benefit.
9.05 Texas Law to Apply
THIS PLAN SHALL BE CONSTRUED AND ENFORCED UNDER THE LAWS OF THE STATE
OF TEXAS EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL LAW.
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9.06 Claims Procedure/Arbitration
If any person (hereinafter called the "Claimant") feels that he or she
is being denied a benefit to which he or she is entitled under this
Plan, such Claimant may file a written claim for said benefit with the
Committee. Within sixty (60) days following the receipt of such claim
the Committee shall determine and notify the Claimant as to whether he
or she is entitled to such benefit. Such notification shall be in
writing and, if denying the claim for benefit, shall set forth the
specific reason or reasons for the denial, make specific reference to
the pertinent provisions of this Plan, and advise the Claimant that he
or she may, within sixty (60) days following the receipt of such
notice, in writing request to appear before the Committee or its
designated representative for a hearing to review such denial. Any such
hearing shall be scheduled at the mutual convenience of the Committee
or its designated representative and the Claimant, and at any such
hearing the Claimant and/or his or her duly authorized representative
may examine any relevant documents and present evidence and arguments
to support the granting of the benefit being claimed. The final
decision of the Committee with respect to the claim being reviewed
shall be made within sixty (60) days following the hearing thereon, and
the Committee shall in writing notify the Claimant of said final
decision, again specifying the reasons therefor and the pertinent
provisions of this Plan upon which said final decision is based. The
final decision of the Committee shall be conclusive and binding upon
all parties having or claiming to have an interest in the matter being
reviewed.
Any dispute or controversy arising out of, or relating to, the payment
of benefits pursuant to this Plan shall be settled by arbitration in
Dallas, Texas (or, if applicable law requires some other forum, then
such other forum) in accordance with the rules then obtaining of the
American Arbitration Association. The District Court of Dallas County,
Texas or, as the case may be, the United States District Court for the
Northern District of Texas shall have jurisdiction for all purposes in
connection with any such arbitration. Any process or notice of motion
or other application to either of said courts, and any paper in
connection with arbitration, may be served by certified mail, return
receipt requested, or by personal service or in such other manner as
may be permissible under the rules of the applicable court or
arbitration tribunal, provided a reasonable time for appearance is
allowed. Arbitration proceedings must be instituted within one (1) year
after the claimed breach occurred, and the failure to institute
arbitration proceedings within such period shall constitute an absolute
bar to the institution of any proceedings, and a waiver of all claims,
with respect to such breach.
9.07 Reimbursement of Costs
In the event that a dispute arises between a Participant or Beneficiary
and the Company or other Employer with respect to the payment of
benefits hereunder, and attorney's fees, expenses and costs are
incurred by either party in the course of litigation or otherwise, the
party against whom the other party has been successful in such dispute
shall reimburse such other party for the full amount of any such
attorneys' fees, expenses and costs.
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9.08 Acceleration of Payment
In the event that the Internal Revenue Service formally assesses a
deficiency against a Participant on the grounds that an amount credited
to such Participant's Accounts under this Plan is subject to Federal
income tax (the "Reclassified Amount") earlier than the time payment
otherwise would be made to the Participant pursuant to this Plan, then
the Committee shall direct the Employer maintaining such Participant's
Accounts to pay to such Participant and deduct from such Account the
Reclassified Amount.
ARTICLE X
AMENDMENTS OR TERMINATION OF PLAN
The Board of Directors of the Company shall have the power and right from
time to time to modify, amend, supplement, suspend or terminate the Plan as it
applies to each Employer, provided that no such change in the Plan may deprive a
Participant of the amounts allocated to his or her accounts or be retroactive in
effect to the prejudice of any Participant.
Any provision of this Plan to the contrary notwithstanding, no action to
modify, amend, supplement, suspend or terminate the Plan on or after the date of
a Change in Control shall be effective without the consent of a majority of the
Participants in the Plan at the time of such action.
ARTICLE XI
WITHDRAWING EMPLOYERS; TRANSFER TO SUCCESSOR PLAN
11.01 Withdrawing Employers
In the event that a Participating Employer elects to discontinue or
revoke its participation in this Plan:
(a) the Company shall cause to be prepared a new plan (the
"Successor Plan") for the withdrawing Participating Employer,
the terms of which shall be identical to the terms of this
Plan;
(b) the Company shall transfer, deliver and assign any and all
benefit obligations under this Plan which relate to
Participants who are employees of the withdrawing
Participating Employer or its subsidiaries to the Successor
Plan; and
(c) the withdrawing Participating Employer shall be deemed to have
consented to the adoption of the Successor Plan.
For purposes of this provision, the Successor Plan shall treat all
benefit obligations described under (b) above as if they had accrued
due to an individual's service with the withdrawing Participating
Employer. Subsequent to the withdrawing Participating Employer's
adoption of the Successor Plan, and the transfer of benefit obligations
from this Plan to the Successor Plan, Participants whose benefits were
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transferred to the Successor Plan shall not be entitled to receive any
amounts from this Plan which relate to benefit obligations which
accrued prior to the transfer.
11.02 Transfer to Successor Plan
Any provision of this Plan to the contrary notwithstanding, in the
event that:
(a) the employment of a Participant with the Company or other
Participating Employer is terminated in connection with the
sale, spin-off or other disposition of a direct or indirect
subsidiary of the Company or a sale or other disposition of
assets of the Company or the assets of a direct or indirect
subsidiary of the Company (the "Transaction");
(b) in connection with the Transaction, such terminated
Participant becomes employed by the subsidiary that is sold,
spun-off or otherwise disposed of, the purchaser of the
subsidiary or assets or other surviving entity in the
Transaction, as the case may be, or an affiliate thereof, (the
"Successor Employer"); and
(c) in connection with and effective as of or prior to the closing
of the Transaction, the Successor Employer establishes a new
plan, the terms of which are substantially identical to the
terms of this Plan and which treat all benefit obligations
which relate to the Participant (including those transferred
to the Successor Plan pursuant to the provisions of this
Section) as if they had accrued due to the Participant's
service with the Successor Employer (the "Successor Plan"),
and a new rabbi trust, the terms of which are substantially
identical to the terms of the Trust (the "Successor Trust"),
then the Participant shall not be entitled to a distribution of
benefits from this Plan on account of such termination of employment,
and the Company or other Participating Employer which formerly employed
the Participant and which maintains an Account or Accounts for such
Participant under this Plan shall transfer, deliver and assign to the
Successor Plan and Successor Employer as of the date the Participant
becomes employed by the Successor Employer any and all benefit
obligations under this Plan which relate to the Participant, and
effective with and subsequent to the adoption of the Successor Plan by
the Successor Employer and the transfer of the Participant's benefit
obligations from this Plan to the Successor Plan, the Participant whose
benefits were transferred to the Successor Plan shall not be entitled
to receive any amounts from this Plan which relate to benefit
obligations which accrued prior to the transfer. The preceding
provisions to the contrary notwithstanding, the provisions of this
Section 11.02 shall not be effective for Transactions that occur on or
after the date of a Change in Control without the written consent of a
majority of the Participants in the Plan at such time.
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IN TESTIMONY WHEREOF, TRINITY INDUSTRIES, INC. has caused this instrument
to be executed in its name and on its behalf, by the officer thereunto duly
authorized, this 16 day of November, 1999, effective as of January 1, 2000.
TRINITY INDUSTRIES, INC.
By: /s/ MJ LINTNER
--------------------------------------
Title: VP of Human Resources
----------------------------------
ATTEST:
[ILLEGIBLE]
--------------------------
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 16th day of November,
1999, by M.J. Linter of TRINITY INDUSTRIES, INC., a Delaware corporation, on
behalf of said corporation.
[SEAL] /s/ KATHLEEN L. SOUTHMAYD
-----------------------------------------
Notary Public in and for
the State of Texas
My Commission Expires: Printed Name of Notary:
06/24/2003 Kathleen L. Southmayd
-------------------------- -----------------------------------------
