-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JcNHbicxokjZ+nzWwcIm+/IDLKNimwY8kWvgfE8NdhdQ+6Tn4x5SY7sWGINdSGGE mo+nE+a1T9DyhdLgZ/wR+g== 0000099780-97-000006.txt : 19970512 0000099780-97-000006.hdr.sgml : 19970512 ACCESSION NUMBER: 0000099780-97-000006 CONFORMED SUBMISSION TYPE: 8-K/A PUBLIC DOCUMENT COUNT: 1 CONFORMED PERIOD OF REPORT: 19970531 ITEM INFORMATION: Changes in control of registrant FILED AS OF DATE: 19970509 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: TRINITY INDUSTRIES INC CENTRAL INDEX KEY: 0000099780 STANDARD INDUSTRIAL CLASSIFICATION: RAILROAD EQUIPMENT [3743] IRS NUMBER: 750225040 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 8-K/A SEC ACT: 1934 Act SEC FILE NUMBER: 001-06903 FILM NUMBER: 97598731 BUSINESS ADDRESS: STREET 1: 2525 STEMMONS FREEWAY CITY: DALLAS STATE: TX ZIP: 75207-2401 BUSINESS PHONE: 2146314420 FORMER COMPANY: FORMER CONFORMED NAME: TRINITY STEEL CO INC DATE OF NAME CHANGE: 19720407 8-K/A 1 Form 8-A/A SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSU- ANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934 TRINITY INDUSTRIES, INC. (Exact name of Registrant as specified in its charter) Delaware 75-0225040 (State of Incorporation (I.R.S. Employer or Organization) Identification No.) 2525 Stemmons Freeway Dallas, Texas 75207-2401 (Address of principal executive offices)(Zip Code) Securities to be registered pursuant to Section 12(b) of the Act: Title of each Class Name of Each Exchange on Which to be so Registered Each Class is to be Registered Preferred Stock New York Stock Purchase Rights Exchange Securities to be registered pursuant to Section 12(g) of the Act: None (Title of Class) Item 1. Description of Registrant's Securities to be Registered. The description of the Preferred Stock Purchase Rights registered hereby is incorporated by reference to the description contained under the heading "Description of Securities to be Registered" in the Registration Statement Of Certain Classes Of Securities on Form 8-A, filed with the Securities and Exchange Commission (the "Commission") on May 2, 1989. Additionally, on May 6, 1997, Trinity Indus- tries, Inc. (the "Company") amended the terms of the Pre- ferred Stock Purchase Rights by amending the Rights Agreement (the "Rights Agreement") dated April 11, 1989, between the Company and NCNB Texas National Bank, prede- cessor to The Bank of New York ("Amendment No. 1"). Amendment No. 1 modifies the Rights Agreement in several areas: (i) the definition of "Acquiring Person" has been amended to (A) reduce to 10% the threshold of Beneficial Ownership of Common Stock resulting in a Person becoming an Acquiring Person and (B) provide a limited exception therefrom for certain Persons entitled to report owner- ship (but less than 15%) on SEC Schedule 13G who either (x) beneficially owned, on May 6, 1997, 10% or more of the outstanding shares of Common Stock and do not at any time become the Beneficial Owner of 15% or more of the outstanding shares of Common Stock or (y) upon request of the Company, certify that such Persons acquired shares of Common Stock in excess of 9.99% inadvertently and who thereafter do not acquire additional shares of Common Stock while the Beneficial Owner of 10% or more of the shares of Common Stock then outstanding and dispose of the portion of such Common Stock in excess of 9.99%; (ii) Section 11(a)(ii) has been amended to provide that a flip-in event shall occur upon any Person becoming an Acquiring Person; (iii) Section 13(a) has been amended to provide that the flip-over provision shall apply whether or not a Stock Acquisition Date has occurred; (iv) Sec- tion 23 has been amended to revise the exception to the requirement for the concurrence of Continuing Directors in a redemption, set forth in clause (y) of the proviso to the first sentence, to apply only to Qualifying Offers (i.e., offers for all shares determined by a majority of the Continuing Directors who are not officers of the Registrant to be at a price which is fair to stockholders and otherwise in the best interests of the Company and its stockholders); and (v) Section 26 has been amended to provide that any amendment to the Rights Agreement fol- lowing a Stock Acquisition Date or a change (resulting from a proxy or consent solicitation) in a majority of the Board of Directors under certain circumstances (un- less the solicitation occurs concurrent with a Qualifying Offer) shall require the concurrence of Continuing Direc- tors. The description of Amendment No. 1 contained herein is not complete and is qualified in its entirety by reference to Amendment No. 1 which is filed as an exhibit hereto and which is incorporated by reference herein. Capitalized terms not defined herein, will have the meanings attached to them in the Rights Agreement. Item 2. Exhibits 1 Rights Agreement dated as of April 11, 1989, by and between the Company and NCNB Texas National Bank, as Rights Agent (in- corporated by reference to Exhibit 1 to the Company's Registration Statement on Form 8-A, filed with the Commission May 2, 1989). 2 Amendment No. 1 to the Rights Agreement, dated as of May 6, 1997, between the Com- pany and The Bank of New York, as Rights Agent. SIGNATURE Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the Registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized. Date: May 7, 1997 TRINITY INDUSTRIES, INC. (Registrant) By: \S\ F. Dean Phelps Name: F. Dean Phelps Title: Vice President EXHIBIT INDEX Exhibit No. Description Page 1 Rights Agreement dated as of April 11, 1989, by and between the Company and NCNB Texas Na- tional Bank, as Rights Agent, (incorporated by reference to Ex- hibit 1 to the Company's Regis- tration Statement on Form 8-A, filed with the Commission May 2, 1989). 2 Amendment No. 1 to the Rights Agreement, dated as of May 6, 1997, between the Company and The Bank of New York, as Rights Agent. AMENDMENT NO. 1 Amendment No. 1, dated as of May 6, 1997, between Trinity Industries, Inc., a Delaware corporation (the "Company"), and The Bank of New York (the "Rights Agent"). WHEREAS, the Company and NCNB Texas National Bank, predecessor to the Rights Agent, have heretofore executed and entered into a Rights Agreement, dated as of April 11, 1989 (the "Rights Agreement"), setting forth the terms of Preferred Stock Purchase Rights of the Company (the "Rights"); and WHEREAS, the Company and the Rights Agent may from time to time supplement or amend the Rights Agree- ment pursuant to the provisions of Section 26 of the Rights Agreement; and WHEREAS, all acts and things necessary to make this Amendment No. 1 a valid, legal and binding instru- ment of the Company and the Rights Agent have been duly done, performed and fulfilled, and the execution and delivery hereof by each of the Company and the Rights Agent have been in all respects duly authorized by the Company and the Rights Agent, respectively. NOW, THEREFORE, the Company and the Rights Agent hereby agree as follows: 1. Pursuant to Section 26 of the Rights Agreement, Section 1(a) of the Rights Agreement is hereby amended to read in its entirety as follows: "(a) "Acquiring Person" shall mean any Person (as such term is hereinafter defined) who or which, together with all Affiliates and Associates of such Person, shall be the Beneficial Owner (as such term is hereinafter defined) of 10% or more of the shares of Common Stock of the Company then outstanding, but shall not include the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity holding shares of Common Stock of the Company for or pursuant to the terms of any such plan. Notwithstanding the foregoing, (i) no Person shall become an "Acquiring Person" solely as the result of an acquisition of shares of Common Stock by the Company which, by reducing the number of shares outstanding, increases the proportionate number of shares beneficially owned by such Person to 10% or more of the shares of Common Stock of the Company then outstanding; unless and until such time as such Person shall purchase or otherwise become (as a result of actions taken by such Person or its Affil- iates or Associates) the Beneficial Owner of addi- tional shares of Common Stock constituting 1% or more of the then outstanding shares of Common Stock other than pursuant to a Qualifying Offer (as de- fined below) and (ii) "Acquiring Person" shall not include any Person while such Person is entitled to report such ownership (but less than 15%) on Sched- ule 13G under the Exchange Act (as defined below) (or any comparable or successor report) and does not state any intention to or reserve the right to change or influence the control of the Company or engage in any of the actions specified in Item 4 of Schedule 13D (or any successor form) under the Exchange Act (as defined below) (other than the disposition of Common Stock) and either (A) was the Beneficial Owner on May 6, 1997 of 10% or more of the outstanding shares of Common Stock and does not at any time become the Beneficial Owner of 15% or more of the outstanding shares of Common Stock or (B) within 10 Business Days of being requested by the Company to advise it regarding the same, certi- fies to the Company that such Person acquired shares of Common Stock in excess of 9.99% inadvertently or without knowledge of the terms of the Rights and who, together with all Affiliates and Associates, thereafter does not acquire additional shares of Common Stock while the Beneficial Owner of 10% or more of the shares of Common Stock then outstanding and within 10 Business Days of being requested by the Company to do so disposes of the portion of such Common Stock in excess of 9.99%; provided, however, that if the Person requested to so certify fails to do so within 10 Business Days of the Company's request or such Person fails to dispose of such Common Stock in excess of 9.99% within 10 Business Days of the Company's request, then such Person shall become an Acquiring Person immediately after such 10 Business Day period." 2. Pursuant to Section 26 of the Rights Agreement, Section 11(a)(ii) of the Rights Agreement is hereby amended to read in its entirety as follows: "(ii) In the event any Person shall become an Acquiring Person, unless the event causing the Person to become an Acquiring Person is a trans- action set forth in Section 13(a) hereof, or is an acquisition of shares of Common Stock pursuant to a tender offer or an exchange offer for all outstand- ing shares of Common Stock at a price and on terms determined by at least a majority of the Continuing Directors who are not officers of the Company, after receiving advice from one or more nationally recog- nized investment banking firms, to be (a) at a price which is fair to stockholders (taking into account all factors which such members of the Board deem relevant including, without limitation, prices which could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value) and (b) otherwise in the best interests of the Company and its stockholders (a "Qualifying Offer"), then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of a number of one one-hundredths of a share of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of one one-hun- dredths of a share of Preferred Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the "Purchase Price" for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per share of Common Stock on any Trading Day (as defined in Section 11(d) hereof) occurring within the 12 month period immediately preceding the date of such first occurrence (such number of shares, the "Adjustment Shares")." 3. Pursuant to Section 26 of the Rights Agreement, Section 13(a) of the Rights Agreement is hereby amended by (i) deleting, following the word "that" in the first line thereof, the phrase ", following the Stock Acquisition Date" and (ii) by inserting as a new sentence following the final sentence thereof the follow- ing: "Notwithstanding anything in this Agree- ment to the contrary, if a Section 13 Event shall occur prior to the Distribu- tion Date, then (i) the Rights shall sur- vive such Section 13 Event and shall not as a result thereof be cancelled, termi- nated or otherwise cease to exist and (ii) the Distribution Date shall be deemed to have occurred on the day immediately prior to the date of such Section 13 Event." 4. Pursuant to Section 26 of the Rights Agreement, Section 13(d) of the Rights Agreement is hereby amended by deleting the words "tender offer or exchange offer for all outstanding shares of Common Stock which complies with the provisions of Section 11(a)(ii) hereof" and inserting in lieu thereof the term "Qualify- ing Offer". 5. Pursuant to Section 26 of the Rights Agreement, Section 23 of the Rights Agreement is hereby amended by deleting the words "cash tender pursuant to a Schedule 14D-1 (or any successor form) filed with the Securities and Exchange Commission for all outstanding shares of Common Stock not owned by such person or its Affiliates of Associates" and inserting in lieu thereof the term "Qualifying Offer". 6. Pursuant to Section 26 of the Rights Agreement, Section 25 of the Rights Agreement is hereby amended by replacing the name and address of NCNB Texas National Bank set forth therein with the following: "The Bank of New York 101 Barclay Street New York, New York 10286 Attention: Corporate Trust Department." 7. Pursuant to Section 26 of the Rights Agreement, Section 26 of the Rights Agreement is hereby amended (i) by deleting the parenthetical language in the second sentence thereof and (ii) by inserting immediately following the second sentence thereof the following: "Notwithstanding anything in this Agree- ment to the contrary, no amendment, wheth- er before or after the Distribution Date, shall be made following the first occur- rence of an event specified in clauses (x) or (y) of the first proviso to Section 23(a) hereof, unless there are Continuing Directors and a majority of such Continu- ing Directors concur in such amendment." 8. This Amendment No. 1 may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original and all such counterparts shall together constitute but one and the same instrument. Terms not defined herein shall, unless the context otherwise requires, have the meanings assigned to such terms in the Rights Agreement. 9. The amendments set forth herein are limit- ed precisely as written and shall not be deemed to be an amendment to any other provision contained in the Rights Agreement. In all respects not inconsistent with the terms and provisions of this Amendment No. 1, the Rights Agreement is hereby ratified and confirmed. In executing and delivering this Amendment No. 1, the Rights Agent shall be entitled to all of the privileges and immunities afforded to the Rights Agent under the terms and condi- tions of the Rights Agreement. 10. This Amendment No. 1 shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the laws applicable to contracts made and to be performed entirely within such State. IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be duly executed as of the day and year first above written. ATTEST: TRINITY INDUSTRIES, INC. By:\S\ Neil O. Shoop By: \S\ F. Dean Phelps Name: Neil O. Shoop Name: F. Dean Phelps Title: Treasurer Title: Vice President THE BANK OF NEW YORK By: \S\ James N. Dimino Name: James N. Dimino Title: Assistant Vice President -----END PRIVACY-ENHANCED MESSAGE-----