-----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, BR4hRDu6F851+bz0Hnmf52RYBAbkSgMa+4VAfCmeiaPoBV3NWDhDoe5Y7lnzhlqk MuEbOVwCiU/gGg80P7gGNA== 0000950134-04-005887.txt : 20040426 0000950134-04-005887.hdr.sgml : 20040426 20040426162033 ACCESSION NUMBER: 0000950134-04-005887 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 14 FILED AS OF DATE: 20040426 EFFECTIVENESS DATE: 20040426 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: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-114854 FILM NUMBER: 04754421 BUSINESS ADDRESS: STREET 1: 2525 STEMMONS FREEWAY CITY: DALLAS STATE: TX ZIP: 75207-2401 BUSINESS PHONE: 214-631-4420 FORMER COMPANY: FORMER CONFORMED NAME: TRINITY STEEL CO INC DATE OF NAME CHANGE: 19720407 S-8 1 d14719sv8.htm FORM S-8 sv8
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As filed with the Securities and Exchange Commission on April 26, 2004
Registration No. 333-                   

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

TRINITY INDUSTRIES, INC.

(Exact name of registrant as specified in its charter)
     
Delaware
(State or other jurisdiction of
incorporation or organization)
  75-0225040
(I.R.S. Employer
Identification No.)

2525 Stemmons Freeway
Dallas, Texas 75207-2401
(Address, including zip code, of principal executive offices)

PROFIT SHARING PLAN FOR EMPLOYEES OF
TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES
AS RESTATED EFFECTIVE
APRIL 1, 1999

SUPPLEMENTAL PROFIT SHARING PLAN FOR
TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES
AS RESTATED EFFECTIVE
JANUARY 1, 2000

(Full titles of the plans)

Michael G. Fortado
Trinity Industries, Inc.
2525 Stemmons Freeway
Dallas, Texas 75207-2401
(Name and address of agent for service)
(214) 631-4420
(Telephone number, including area code, of agent for service)

With copies to:

Kent Jamison
Locke Liddell & Sapp LLP
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201
(214) 740-8000

CALCULATION OF REGISTRATION FEE

                                 
            Proposed Maximum   Proposed Maximum   Amount of
Title of Securities           Offering Price Per   Aggregate Offering   Registration
to be Registered
   Amount to be Registered(1)
   Share(2)
   Price(2)
   Fee(2)
Common Stock, $1.00 par value(1)(3)
                                
Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999
   500,000 shares(3)(4)   $ 31.68     $ 15,840,000     $ 2,006.93  
 
  
 		    
 		      
 		      
 		  
Supplemental Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective January 1, 2000
   250,000 shares (3)(4)   $ 31.68     $ 7,920,000     $ 1,003.47  
 
  
 		    
 		      
 		      
 		  
Total
   750,000 shares (3)(4)           $ 23,760,000     $ 3,010.40  
 
  
 		    
 		      
 		      
 		  

(1)   The number of shares to be registered under this Registration Statement has been broken down into two subtotals, with 500,000 shares of the common stock, par value $1.00 per share, of Trinity Industries, Inc. being registered for issuance under the Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999, and 250,000 shares of the common stock being registered for issuance under the Supplemental Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective January 1, 2000.

(2)   The offering price per share, aggregate offering price and registration fee with respect to the shares of common stock issuable pursuant to the employee benefit plans described herein have been calculated in accordance with Rule 457(c) and (h) under the Securities Act of 1933, as amended, based on the average of the high and low prices of the Trinity Industries, Inc. common stock on April 21, 2004 as reported in the consolidated reporting system of the New York Stock Exchange.

(3)   In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plans described herein.

(4)   Each share of common stock is accompanied by a preferred stock purchase right pursuant to a Rights Agreement between Trinity Industries, Inc. and the Bank of New York, as Rights Agent.

 

PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
ITEM 8. EXHIBITS
ITEM 9. UNDERTAKINGS
SIGNATURES AND POWER OF ATTORNEY
INDEX TO EXHIBITS
Consent of Ernst & Young LLP
Amendment No. 1 to Profit Sharing Plan
Amendment No. 2 to Profit Sharing Plan
Amendment No. 3 to Profit Sharing Plan
Amendment No. 4 to Profit Sharing Plan
Amendment No. 5 to Profit Sharing Plan
Amendment No. 6 to Profit Sharing Plan
Amendment No. 7 to Profit Sharing Plan
Amendment No. 8 to Profit Sharing Plan
Correcting Amend. to Supplemental Profit Sharing
Amendment No 1 to Supplemental Profit Sharing Plan
Amendment No 2 to Supplemental Profit Sharing Plan
Amendment No 3 to Supplemental Profit Sharing Plan

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     Pursuant to General Instruction E to Form S-8, Trinity Industries, Inc. (“Trinity”) and the Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999 (the “Profit Sharing Plan”) and the Supplemental Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective January 1, 2000 (the “Supplemental Plan”) hereby incorporate by reference the contents of the Registration Statement on Form S-8 as filed with the Securities and Exchange Commission (the “Commission”) on November 16, 1999 (Registration No. 333-91067), including any amendments thereto or filings incorporated therein. This Registration Statement is being filed to register an additional 500,000 shares of Common Stock of Trinity, $1.00 par value per share, for issuance under the Profit Sharing Plan, and an additional 250,000 shares of Common Stock of Trinity for issuance under the Supplemental Plan, in each event with related plan interests, pursuant to the terms of such plans.

PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

     The information specified by Item 1 (Plan Information) and Item 2 (Registration Information and Employee Plan Annual Information) of Part I of Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the introductory Note to Part I of Form S-8.

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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.

     Trinity and the Profit Sharing Plan and the Supplemental Plan hereby incorporate by reference the documents set forth below in this Registration Statement. All documents subsequently filed by Trinity, the Profit Sharing Plan and the Supplemental Plan pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent a statement contained herein or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

  (a)   Trinity’s Annual Report on Form 10-K filed with the Commission for the fiscal year ended December 31, 2003 and the Profit Sharing Plan’s Annual Report on Form 11-K filed with the Commission for the year ended December 31, 2002;
 
  (b)   All other reports filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the reports referred to in (a) above;
 
  (c)   The description of Trinity’s Common Stock, $1.00 par value per share, contained in Trinity’s Registration Statement on Form S-4 dated July 17, 1996 (Registration No. 333-8321), as amended by Post-Effective Amendment No. 1 dated July 19, 1996; and
 
  (d)   The description of rights to purchase Trinity’s Series A Junior Participating Preferred Stock, $1.00 par value per share, contained in Trinity’s Registration Statement on Form 8-A dated April 2, 1999 filed pursuant to Section 12 of the Exchange Act, as amended by filings on August 22, 2001 and October 31, 2001.

ITEM 8. EXHIBITS.

     
EXHIBIT
   DESCRIPTION
4.1
  Specimen Common Stock Certificate of Registrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Form 10-K Annual Report for the fiscal year ended March 31, 1999, filed June 29, 1999).
 
    
23.1*
  Consent of Ernst & Young LLP.

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EXHIBIT
   DESCRIPTION
24.1*
  Power of Attorney (included on the signature pages of this Registration Statement).
 
    
99.1
  Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999 (incorporated by reference to Exhibit 99.1 to the Form S-8 Registration Statement filed by Trinity Industries, Inc. on November 16, 1999).
 
    
99.2*
  Amendment No. 1 to Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999.
 
    
99.3*
  Amendment No. 2 to Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999.
 
    
99.4*
  Amendment No. 3 to Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999.
 
    
99.5*
  Amendment No. 4 to Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999.
 
    
99.6*
  Amendment No. 5 to Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999.
 
    
99.7*
  Amendment No. 6 to Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999.
 
    
99.8*
  Amendment No. 7 to Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999.
 
    
99.9*
  Amendment No. 8 to Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999.
 
    
99.10
  Supplemental Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective January 1, 2000 (incorporated by reference to Exhibit 99.2 to the Form S-8 Registration Statement filed by Trinity Industries, Inc. on November 16, 1999).
 
    
99.11*
  Correcting Amendment to Supplemental Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective January 1, 2000.

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EXHIBIT
   DESCRIPTION
99.12*
  Amendment No. 1 to Supplemental Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective January 1, 2000.
 
    
99.13*
  Amendment No. 2 to Supplemental Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective January 1, 2000.
 
    
99.14*
  Amendment No. 3 to Supplemental Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective January 1, 2000.

*Filed herewith.

Trinity hereby undertakes that it will submit or has submitted the Profit Sharing Plan, and any amendments thereto, to the Internal Revenue Service (the “IRS”) in a timely manner and has made or will make all changes required by the IRS in order to qualify the Profit Sharing Plan under Section 401 of the Internal Revenue Code.

ITEM 9. UNDERTAKINGS.

     (a) Trinity hereby undertakes:

     (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

     (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the “Act”);

     (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement;

     (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by Trinity pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

     (2) That, for the purpose of determining any liability under the Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

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     (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

     (4) That, for purposes of determining any liability under the Act, each filing of Trinity’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

     (5) Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of Trinity pursuant to the foregoing provisions, or otherwise, Trinity has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by Trinity of expenses incurred or paid by a director, officer or controlling person of Trinity in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, Trinity will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

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SIGNATURES AND POWER OF ATTORNEY

     Pursuant to the requirements of the Securities Act of 1933, Trinity certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on this 26th day of April, 2004.

     
  TRINITY INDUSTRIES, INC.
 
    
  By: /s/ Michael G. Fortado
 
 
  Printed: Michael G. Fortado
  Title: Vice President and Corporate Secretary

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POWER OF ATTORNEY

     KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below hereby constitutes and authorizes John L. Adams, Jim S. Ivy and Michael G. Fortado, and each of them, each with full power to act without the other, his true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign any or all amendments to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each of said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person hereby ratifying and confirming that each of said attorneys-in-fact and agents or his substitutes may lawfully do or cause to be done by virtue hereto.

     Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:

         
Name
   Title
   Date
/s/ Timothy R. Wallace
Timothy R. Wallace
  Chairman, President, Chief Executive Officer and Director (Principal Executive Officer)   April 26, 2004
 
        
/s/ Jim S. Ivy
Jim S. Ivy
  Senior Vice President and Chief Financial Officer (Principal Financial Officer)   April 26, 2004
 
        
/s/ Charles Michel
Charles Michel
  Vice President and Controller (Principal Accounting Officer)   April 26, 2004
 
        
/s/ David W. Biegler
  Director   April 26, 2004
 
        
David W. Biegler
        
 
        
/s/ Craig J. Duchossois
  Director   April 26, 2004
 
        
Craig J. Duchossois
        
 
        
/s/ Ronald J. Gafford
  Director   April 26, 2004
 
        
Ronald J. Gafford
        
 
        
/s/ Barry J. Galt
  Director   April 26, 2004
 
        
Barry J. Galt
        
 
        
/s/ Clifford J. Grum
  Director   April 26, 2004
 
        
Clifford J. Grum
        
 
        
/s/ Jess T. Hay
  Director   April 26, 2004
 
        
Jess T. Hay
        
 
        
/s/ Diana S. Natalicio
  Director   April 26, 2004
 
        
Diana S. Natalicio
        

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     Pursuant to the requirements of the Securities Act of 1933, the trustees (or other persons who administer the employee benefit plans) of the Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999 and the Supplemental Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective January 1, 2000 have duly caused this Registration Statement to be signed on their behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on the 26th day of April, 2004.

         
    PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE APRIL 1, 1999
 
        
  By:   Profit Sharing Committee for the Profit Sharing Plan for Employees of Trinity Industries and Certain Affiliates as Restated Effective April 1, 1999
 
        
      By: /s/ Timothy R. Wallace
     
 
      Printed Name: Timothy R. Wallace
      Title: Member, Profit Sharing Committee
 
        
      By: /s/ John L. Adams
     
 
      Printed Name: John L. Adams
      Title: Member, Profit Sharing Committee
 
        
      By: /s/ Andrea F. Cowan
     
 
      Printed Name: Andrea F. Cowan
      Title: Member, Profit Sharing Committee

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    SUPPLEMENTAL PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE JANUARY 1, 2000
 
        
  By:   Plan Committee for the Supplemental Profit Sharing Plan for Employees of Trinity Industries and Certain Affiliates as Restated Effective January 1, 2000
 
        
      By: /s/ Timothy R. Wallace
     
 
      Printed Name: Timothy R. Wallace
      Title: Member, Plan Committee
 
        
      By: /s/ John L. Adams
     
 
      Printed Name: John L. Adams
      Title: Member, Plan Committee
 
        
      By: /s/ Andrea F. Cowan
     
 
      Printed Name: Andrea F. Cowan
      Title: Member, Plan Committee

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INDEX TO EXHIBITS

     
Exhibit Number
   Exhibit
4.1
  Specimen Common Stock Certificate of Registrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Form 10-K Annual Report for the fiscal year ended March 31, 1999, filed June 29, 1999).
 
    
23.1*
  Consent of Ernst & Young LLP.
 
    
24.1*
  Power of Attorney (included on the signature pages of this Registration Statement).
 
    
99.1
  Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999 (incorporated by reference to Exhibit 99.1 to the Form S-8 Registration Statement filed by Trinity Industries, Inc. on November 16, 1999).
 
    
99.2*
  Amendment No. 1 to Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999.
 
    
99.3*
  Amendment No. 2 to Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999.
 
    
99.4*
  Amendment No. 3 to Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999.
 
    
99.5*
  Amendment No. 4 to Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999.
 
    
99.6*
  Amendment No. 5 to Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999.
 
    
99.7*
  Amendment No. 6 to Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999.
 
    
99.8*
  Amendment No. 7 to Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999.
 
    
99.9*
  Amendment No. 8 to Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999.

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Exhibit Number
   Exhibit
99.10
  Supplemental Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective January 1, 2000 (incorporated by reference to Exhibit 99.2 to the Form S-8 Registration Statement filed by Trinity Industries, Inc. on November 16, 1999).
 
    
99.11*
  Correcting Amendment to Supplemental Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective January 1, 2000.
 
    
99.12*
  Amendment No. 1 to Supplemental Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective January 1, 2000.
 
    
99.13*
  Amendment No. 2 to Supplemental Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective January 1, 2000.
 
    
99.14*
  Amendment No. 3 to Supplemental Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective January 1, 2000.

*Filed herewith.

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EX-23.1 2 d14719exv23w1.txt CONSENT OF ERNST & YOUNG LLP Exhibit 23.1 Consent of Independent Auditors We consent to the incorporation by reference in the Registration Statement (Form S-8) of Trinity Industries, Inc. pertaining to the Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999 and the Supplemental Profit Sharing Plan for Trinity Industries, Inc. and Certain Affiliates as Restated Effective January 1, 2000 of our report dated February 20, 2004 with respect to the consolidated financial statements of Trinity Industries, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2003, filed with the Securities and Exchange Commission. /s/ ERNST & YOUNG LLP Dallas, Texas April 21, 2004 EX-99.2 3 d14719exv99w2.txt AMENDMENT NO. 1 TO PROFIT SHARING PLAN EXHIBIT 99.2 AMENDMENT NO. 1 TO PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE WHEREAS, TRINITY INDUSTRIES, INC. (the "Company") has heretofore adopted the PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE APRIL 1, 1999 (the "Plan"); and WHEREAS, pursuant to the provisions of the Plan permitting the Company to amend the Plan from time to time, the Company desires to amend the Plan in certain respects as hereinafter provided: NOW, THEREFORE, effective as of April 1, 1999, the Company does hereby amend the Plan as follows: 1. Section 4.02 is hereby amended by revising the first paragraph thereof to be and read as follows: "Upon commencement of Participation hereunder and in accordance with such procedures as the Committee or Trustee shall prescribe, a Participant shall enter into a salary reduction agreement with his Employer. The terms of such salary reduction agreement shall provide that the Participant agrees to accept a reduction in salary from the Employer equal to any whole percentage of his Compensation per payroll period, with such percentage to be not more than fourteen percent (14%) of such Compensation; provided, however, that for any Year during which the Participant is also a participant in the Supplemental Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates As Restated Effective January 1, 2000, such percentage shall be four percent (4%) of his Compensation per payroll period, or, for the Year ending March 31, 2000, the greater of four percent (4%) or the percentage specified in his salary reduction agreement." 2. Section 6.06 is hereby amended by adding the following new subsection (1) to the end thereof to be and read as follows: "(1) To the extent that a Participant who has an outstanding loan is on an Authorized Leave of Absence, such Participant shall be permitted to make direct payments to repay his loan, the precise manner and frequency of which shall be determined by the Committee in its sole discretion at the time that such Participant's Authorized Leave of Absence commences. In addition, if the Participant's Authorized Leave of Absence is unpaid, the Committee may, in its sole discretion, suspend the Participant's loan payments during a period of not more than twelve (12) months; provided, however, that the Participant's loan must be repaid by the latest date permitted under Code Section 72(p)(2)(B) and the loan payments due after the Authorized Leave of Absence ends (or, if earlier, after the first year of the Authorized Leave of Absence) must not be less than those required under the terms of the original loan. To the extent that a Former Participant who has an outstanding loan on the date of his termination of employment with the Employers is not eligible to receive a distribution from the Plan due to the application of the distribution restrictions of Code Section 401(k)(2)(B)(ii), such Former Participant shall be permitted to repay his loan as if he were still an active Participant hereunder, with the precise manner and frequency of loan payments to be determined by the Committee in its sole discretion at the time that such Former Participant's employment is terminated." IN WITNESS WHEREOF, the Company has caused this instrument to be executed in its name and on its behalf on this 30th day of November, 1999, effective as of April 1, 1999. TRINITY INDUSTRIES, INC. By: /s/ Timothy F. Wallace ------------------------- Title: CEO ATTEST: /s/ Neil O. Shoop THE STATE OF TEXAS ) ) ss. COUNTY OF DALLAS ) This instrument was acknowledged before me on the 30th day of November, 1999, by Timothy F. Wallace, CEO of TRINITY INDUSTRIES, INC., a Delaware corporation, on behalf of said corporation. /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 2 EX-99.3 4 d14719exv99w3.txt AMENDMENT NO. 2 TO PROFIT SHARING PLAN EXHIBIT 99.3 AMENDMENT NO. 2 TO PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE APRIL 1, 1999 WHEREAS, TRINITY INDUSTRIES, INC. (the "Company") has heretofore adopted the PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE APRIL 1, 1999 (the "Plan"); and WHEREAS, pursuant to the provisions of the Plan permitting the Company to amend the Plan from time to time, the Company desires to amend the Plan in certain respects as hereinafter provided: NOW, THEREFORE, effective as of April 1, 1999, the Company does hereby amend Section 6.04 of the Plan by adding at the end thereof the following new paragraph (e): "(e) Special Rule Applicable to Employees Who Have Incurred a Layoff - Notwithstanding the preceding provisions of this Section 6.04, a Participant who has incurred a layoff may, prior to incurring a Severance from Service, elect to receive a distribution of his vested benefits under the Plan. Any such distribution shall be payable in the form of a lump sum." IN WITNESS WHEREOF, the Company has caused this instrument to be executed in its name and on its behalf on this 7th day of July, 2000, effective as of April 1, 2000. TRINITY INDUSTRIES, INC. By: /s/ Timothy R. Wallace ---------------------------------- Title: CEO ATTEST: /s/ Neil O. Shoop - ------------------------- Assistant Secretary THE STATE OF TEXAS ) ) COUNTY OF DALLAS ) This instrument was acknowledged before me on the 7th day of July, 2000, by Timothy R. Wallace, CEO of TRINITY INDUSTRIES, INC., a Delaware corporation, on behalf of said corporation. /s/ Kathleen L. Southmayd --------------------------------- Notary Public in and for the State of Texas My Commission Expires: 06/24/03 Printed Name of Notary: Kathleen L. Southmayd 2 EX-99.4 5 d14719exv99w4.txt AMENDMENT NO. 3 TO PROFIT SHARING PLAN EXHIBIT 99.4 AMENDMENT NO. 3 TO THE PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE APRIL 1, 1999 WHEREAS, TRINITY INDUSTRIES, INC., a Delaware corporation (the "Company"), has heretofore adopted the PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE APRIL 1, 1999 (the "Plan"); and WHEREAS, pursuant to those provisions of the Plan permitting the Company to amend the Plan from time to time, the Company desires to amend the Plan in certain respects; NOW THEREFORE, the Plan is hereby amended as follows: 1. Section 2.01(s) of the Plan is hereby amended to read as follows: "FORFEITURES: The portion of a Participant's Employer Contribution Account which, subject to Section 4.03 of the Plan, is forfeited because of a Severance from Service before full vesting." 2. Section 2.01(u) of the Plan is hereby amended to delete the last sentence in the second paragraph thereof regarding the Employer's ability to make a calendar-year election to determine Highly Compensated Employees. 3. The first paragraph of Section 3.01 of the Plan is hereby amended to read as follows: "Subject to the provisions of Section 3.03 hereof and except for any Employee (i) who is a member of a collective bargaining unit, the recognized representative of which has not agreed to Participation in the Plan by its members, (ii) who is a nonresident alien and receives no earned income (within the meaning of Section 911(d)(2) of the Code) from the Employer which constitutes income from United States sources (within the meaning of Section 861(a)(3) of the Code), (iii) who is a "Leased Employee," (iv) who is classified as a "Project Status Employee," or (v) who is an employee or within a class of employees designated on Appendix I attached hereto, an Employee shall become a Participant in this Plan as follows: (a) Any Employee included under the provisions of the Prior Plan as of January 1, 1999 shall continue to participate in accordance with the provisions of this Plan. (b) The Participation of any Employee who is eligible to become a Participant on or after January 1, 1999, shall commence on the first day of the month immediately following the sixty (60)-day period beginning on his Employment Commencement Date. Effective April 1, 1997, for purposes of the Plan, a "Leased Employee" is an individual who is not an Employee of the Employer and (i) who provides services to the Employer pursuant to an agreement between the Employer and a leasing organization; (ii) who has performed such services for the Employer (or for the Employer and an Affiliate) on a substantially full-time basis for a period of at least one (1) year; and (iii) whose services are performed under the primary direction or control of the Employer. For purposes of the Plan, a "Project Status Employee" is an individual identified by a specified job code who is hired to complete a specific project under specified terms and conditions and whose relationship with the Employer terminates upon completion of the specific project." 4. Section 3.02(b) of the Plan is hereby amended to read as follows: "(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 expressly provided in the Plan, a written addendum thereto or a separate adoption agreement, 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 3.02, 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." 2 5. The sixth paragraph of Section 4.01(b)(2) of the Plan is hereby amended to read as follows: "The Committee may, in its sole discretion, elect to take contributions to a Participant's Salary Reduction Contribution Account into account in computing the Average Contribution Percentage, in the manner and to the extent provided by Treasury Department regulations promulgated under Code Section 401(m). However, in such a case, the Actual Deferral Percentage tests under Section 4.02(e) must still be computed and met separately, and in connection therewith, no aggregation with Matching Employer Contributions shall be permitted. Alternatively, the Employer may, in its sole discretion, elect to make qualified nonelective contributions in the manner and to the extent provided by Treasury Department regulations under Code Section 401(m), that would, in combination with Matching Employer Contributions under the Plan, satisfy the limitation set forth above. In any event, said correction of the discrimination tests described herein shall be made within twelve (12) months of the end of the Year. Qualified nonelective contributions made to a Participant's Account shall at all times remain fully vested and subject to the same distribution restrictions as contributions made pursuant to the Participant's salary reduction agreement." 6. Section 4.03 of the Plan is hereby amended to read as follows: "If, upon a Severance from Service, a Participant is not entitled to a distribution of the entire balance in his Employer Contribution Account, then as of the date on which such Severance from Service occurs, his Account shall be divided into two portions, one representing the nonforfeitable portion, and the other representing the forfeitable portion, of such Account. His Employer Contribution Account shall continue to receive Income allocations pursuant to Section 5.02(a) until the nonforfeitable portion of such Account is distributed. A Forfeiture of the forfeitable portion of the Account will occur upon the earlier of (i) the date on which the Participant receives a full distribution of his vested account balance or (ii) the date on which he incurs five (5) consecutive one (1)-year Breaks in Service. The Participant shall receive a distribution of the nonforfeitable portion of such Account pursuant to Section 6.04. Notwithstanding the foregoing, prior to a Participant's sixty-fifth (65th) birthday, written consent of the Participant is required before commencement of the distribution of any portion of his Account if the present value of the nonforfeitable total interest in his Account is greater than $5,000. As of the end of the Year in which a Forfeiture occurs, and except as otherwise provided below, such Forfeiture shall be applied to reduce the Matching Employer Contributions to the Plan under Section 4.01(b) hereof; provided that, to the extent the Forfeitures available to reduce Matching Employer Contributions for the Year exceed such Matching Employer Contributions and all restoration amounts described below, such excess shall be applied in payment of Trustee fees and other administrative expenses of the Plan and Trust. If the Participant returns to the employ of an Employer before incurring five (5) consecutive one (1)-year Breaks in Service, he shall have the right to repay to the Trust Fund the amount of a prior lump sum payment within the five (5)-year period beginning on his Reemployment Commencement Date. If such repayment is made, then, as of the end of the Year of repayment, the amount of his prior Forfeiture shall be restored and, 3 together with the amount repaid, shall become the beginning balance in his new Employer Contribution Account. Such restoration shall be made first from Forfeitures in the Year in which the Participant returns to the employ of the Employer. To the extent that the Forfeitures available in that Year are insufficient for this purpose, restoration shall be effected by the making of a special Employer contribution for such Year of repayment." 7. Section 5.03(a) of the Plan is hereby amended to read as follows: "(a) Notwithstanding anything contained herein to the contrary, the total additions made to the Salary Reduction Account and Employer Contribution Account of a Participant for any Year shall not exceed the lesser of (1) or (2), where-- (1) is the greater of $30,000 (or such greater amount as permitted under Internal Revenue Service rulings to reflect increases in the cost-of-living); and (2) is 25% of the Participant's total compensation for such Year. For purposes of this Section 5.03, a Participant's "total compensation" includes earned income, wages, salaries, fees for professional service and other amounts received for personal services actually rendered in the course of employment with his Employer (including, but not limited to, commissions paid to salesmen, compensation for services on the basis of a percentage of profits, commissions on insurance premiums, tips, and bonuses) and excluding the following: (i) Employer contributions to a plan of deferred compensation to the extent contributions are not included in the gross income of a Participant for the taxable year in which contributed, or on behalf of a Participant to a simplified employee pension plan under Section 219(b)(7) of the Code, and any distributions from a plan of deferred compensation whether or not includible in the gross income of the Participant when distributed, provided that effective April 1, 1998, a Participant's "total compensation" shall include his Salary Reduction Contributions and contributions to a plan described in Code Section 125 and Section 457; (ii) amounts realized from the exercise of a non-qualified stock option, or when restricted stock (or property) held by a Participant becomes freely transferable or is no longer subject to a substantial risk of forfeiture; (iii) amounts realized from the sale, exchange or other disposition of stock acquired under a qualified stock option; and (iv) other amounts which receive special tax benefits, or contributions made by the Employer (whether or not under a salary reduction agreement) towards the purchase of an annuity contract described in Section 403(b) of the Code (whether or not the contributions are excludible from the gross income of the Participant)." 4 8. Section 5.03(b) of the Plan is hereby amended to read as follows: "(b) If, as a result of the allocation of Forfeitures, a reasonable error in estimating a Participant's `total compensation' causes such Additions to exceed the limitations set forth in paragraph (a), above, such excess shall be deemed to arise solely from Matching Employer Contributions described in Section 4.01(b) hereof and the amount of such contributions constituting the excess shall be treated as a Forfeiture for the Year. In the event that all or any portion of such excess cannot be treated as a Forfeiture for such Year because of the application of paragraph (a), above, the amount which cannot be so treated shall be held in a suspense account until it can be so treated in a subsequent Year, and no further Additions shall be made to Participants' accounts until the amount in such suspense account has been fully disposed of. Notwithstanding any provision to the contrary herein contained, if this Plan terminates during any Year in which such suspense account cannot be disposed of because of the application of paragraph (a), above, the amount in the suspense account shall revert to the Employers." 9. Section 5.03(g) of the Plan is hereby amended to read as follows: "(g) Notwithstanding the foregoing, the combined plan limitations as defined in Code Section 415(e) and described in paragraph (c) above shall not be applied to limitation years beginning after December 31, 1999." 10. Section 5.04(c) of the Plan is hereby amended to read as follows: "(c) Impact on Maximum Benefits--For any Plan Year beginning prior to April 1, 2000 and in which the Plan is a Top-Heavy Plan, Section 5.03 shall be read by substituting the number 1.00 for the number 1.25 wherever it appears therein; provided, however, that where the Plan is not a "Super" Top-Heavy Plan (as defined in Code Section 416(h)(2)(B)), no such substitution shall occur if, for such Plan Year, the minimum allocations determined pursuant to paragraph (b) of this Section are determined by reference to four percent (4%), in lieu of three percent (3%), of total compensation. 11. Section 5.04(d) of the Plan is hereby amended to read as follows: "(d) `Total Compensation' Defined -- The term `total compensation' as used in this Section 5.04 shall have the same meaning as that set forth in Section 2.01(h) hereof." 12. Effective April 1, 1999, Section 6.04(d) of the Plan is hereby amended to read as follows: "(d) Direct Rollovers--Notwithstanding any provision of the Plan to the contrary, the recipient of all or any portion of a Participant's (or Former Participant's) benefits, other than a Beneficiary who is not a surviving spouse, may elect, in the manner prescribed by the Committee, to have any portion of an eligible rollover distribution paid directly to an individual retirement account described in Section 408(a) of the Code, an individual retirement annuity described in Section 408(b) of the Code, an annuity plan described in Section 403(a) of the Code, or a qualified trust described in Section 401(a) of the Code, that will accept the eligible rollover distribution, as specified by the recipient; provided, however, that a recipient who is a surviving 5 spouse may elect a direct rollover to an individual retirement account or individual retirement annuity only. For purposes of this Section 6.04(d) , an "eligible rollover distribution" shall mean any distribution of all or any portion of the balance to the credit of the recipient, except (i) a distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the recipient or the joint lives (or joint life expectancies) of the recipient and the recipient's designated Beneficiary, or for a specified period of ten (10) years or more; (ii) a distribution to the extent such distribution is required under Section 401(a)(9) of the Code; (iii) the portion of any distribution that is not includible in gross income; or (iv) any hardship distribution described in Section 401(k)(2)(B)(i)(IV) of the Code." 13. Section 6.04(e) of the Plan is hereby deleted from the Plan. 14. Section 6.06(b) of the Plan is hereby amended to read as follows: "(b) The period of repayment for any loan shall be arrived at by agreement between the Committee and the borrower, but such period in no event shall exceed five (5) years; provided, however, that such period may exceed five (5) years where the proceeds of the loan are to be used to acquire a dwelling which is to be used within a reasonable time as the principal residence of the Participant. The loan (i) must be in level payments, made not less frequently than quarterly, over the term of the loan, with privilege of prepayment, in whole (but not in part), at any time, and (ii) prior to termination of the borrowing Participant's employment, shall be repaid by payroll deduction. Within the limitations of the immediately preceding sentence, the precise manner and frequency of payments shall be determined by the Committee at the time that the loan is made." 15. Section 6.06(d) of the Plan is hereby amended to read as follows: "(d) Each loan shall bear a rate of interest equal to the interest rate charged by persons in the business of lending money for loans which would be made under similar circumstances. The Committee shall determine such interest rate by applying the provision of the immediately preceding sentence." 16. Section 6.06(e) of the Plan is hereby amended, effective November 1, 2000, to read as follows: "(e) No loan shall be made in an amount less than $1,000. In addition with respect to a Participant, no more than one loan may be outstanding at any time." 6 IN WITNESS WHEREOF, the Company has caused this instrument to be executed in its name and on its behalf on this 16th day of March, 2001, effective as of April 1, 1999. TRINITY INDUSTRIES, INC. By: /s/ M.J. Lintner -------------------------- Title: VP Human Resources ATTEST: /s/ Michael Fortado 7 EX-99.5 6 d14719exv99w5.txt AMENDMENT NO. 4 TO PROFIT SHARING PLAN EXHIBIT 99.5 AMENDMENT NO. 4 TO PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE APRIL 1, 1999 WHEREAS, TRINITY INDUSTRIES, INC. (the "Company") has heretofore adopted the PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE APRIL 1, 1999 (the "Plan"); and WHEREAS, pursuant to the provisions of the Plan permitting the Company to amend the Plan from time to time, the Company desires to amend the Plan in certain respects as hereinafter provided: NOW, THEREFORE, the Company does hereby amend the Plan as follows: Effective March 8, 2001, the third sentence of Article 4.01(c) is hereby amended to add the following at the end of the sentence: ; provided further, the Board of Directors or the Human Resources Committee of the Board of Directors, in its discretion, may elect to waive the earnings requirement. IN WITNESS WHEREOF, the Company has caused this instrument to be executed in its name and on behalf on this 9th day of March, 2001, effective as the dates noted above. TRINITY INDUSTRIES, INC. By: /s/ M.J. Lintner -------------------------- Title: Vice President ATTEST: /s/ Michael Fortado EX-99.6 7 d14719exv99w6.txt AMENDMENT NO. 5 TO PROFIT SHARING PLAN EXHIBIT 99.6 AMENDMENT NO. 5 TO PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE APRIL 1, 1999 WHEREAS, TRINITY INDUSTRIES, INC., a Delaware corporation (the "Company"), has heretofore adopted the PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE APRIL 1, 1999 ("the Plan"); and WHEREAS, pursuant to those provisions of the Plan permitting the Company to amend the Plan from time to time, the Company desires to amend the Plan in certain respects as hereinafter provided; NOW THEREFORE, the Plan is hereby amended as follows: 1. Effective for Plan Years beginning April 1, 2001, section 2.01 is hereby amended by revising paragraph (h) thereof to be and read as follows: "(h) COMPENSATION: The total of all amounts paid to a Participant by the Employer for personal services as reported on the Participant's Federal Income Tax Withholding Statement (Form W-2) plus any salary reduction amounts described in Section 4.02 hereof and any amounts not included in the Participant's gross income pursuant to Section 125 of the Code, plus for Plan Years beginning on and after April 1, 2001, and solely for purposes of applying the limitations described in Section 5.03(a) of the Plan, compensation paid or made available to a Participant that is not includible in the gross income of the Participant by reason of Code Section 132(f)(4), but excluding (i) any other contributions made under this Plan or any other plan of deferred compensation, (ii) tuition reimbursement payments, (iii) moving expense payments, (iv) excess life insurance imputed income, (v) income from nonqualified stock options, (vi) automobile allowance payments, (vii) medical allowance payments, (viii) safe driving bonuses, (ix) employee awards, (x) lodging allowance payments, (xi) tool allowance payments, (xii) road expense reimbursement payments, (xiii) commuting allowance payments, (xiv) meal allowance payments, (xv) third-party sick pay, (xvi) attendance/safety bonuses; (xvii) travel allowances, (xviii) company automobile; (xix) executive perquisites; and (xx) such other similar amounts as the Committee may from time to time exclude in its sole discretion; provided, however, that for purposes of determining benefits hereunder, the total Compensation of a Participant to be taken into account for a given Year shall not exceed $150,000.00 (as automatically increased in accordance with Treasury Department regulations to reflect cost of living adjustments). Notwithstanding the preceding, for purposes of discrimination testing under Sections 401(a)(4), 401(k), 401(m) and 410(b) of the Code, Compensation shall be determined without excluding the items described in clauses (ii) through (iv), (vi) through (xi) and (xiii) through (xix) of this paragraph." 2. Effective January 1, 2002, section 2.01 is hereby amended by revising paragraph (nn) thereof to be and read as follows: "(nn) YEAR or PLAN YEAR: The 12-month period ending on March 31 of each year. Notwithstanding the preceding provisions of this paragraph (nn), effective January 1, 2002 the YEAR or PLAN YEAR shall be the calendar year, from January 1 through December 31." 3. Effective December 31, 2001, section 2.01 is hereby amended by adding at the end thereof the following new paragraph (oo): "(oo) SHORT PLAN YEAR: The period of time from April 1, 2001 through December 31, 2001." 4. Effective October 26, 2001, Article III of the Plan is hereby amended by adding at the end of thereof the following new Section 3.10: "3.10 Special Rules for Employees of Thrall Car Manufacturing Company or Duchussois Industries, Inc. Notwithstanding any provision to the contrary herein contained, the following special rules shall apply with respect to any Employee of Thrall Car Manufacturing Company or Duchussois Industries, Inc. who immediately prior to October 26, 2001 was compensated on a salaried basis and was a participant in, or eligible to participate in, the Thrall Car Manufacturing Company Salaried Employees' Retirement Saving Plan (the `Thrall Plan'): (a) Such Employee shall have been eligible to become a Participant in the Plan on October 26, 2001; and (b) For purposes of determining such Employee's `vested percentage' under Section 6.03(b) hereof, such Employee shall receive credit for Service with respect to periods of employment with Thrall Car Manufacturing Company or Duchussois Industries, Inc. prior to October 26, 2001, as determined in accordance with the Thrall Plan or the Plan, whichever shall provide the greater benefit. 2 Each Employee of Thrall Car Manufacturing Company or Duchussois Industries, Inc. who immediately prior to October 26, 2001 was compensated on a salaried basis and not a participant in, or eligible to participate in, the Thrall Plan shall be eligible to become a Participant in this Plan on the date on which he satisfies the requirements of Section 3.01 hereof, except that such Employee shall be credited with Service with respect to periods of employment with Thrall Car Manufacturing Company or Duchussois Industries, Inc. completed prior to October 26, 2001." 5. Effective December 31, 2001, section 4.01 is hereby amended by revising paragraph (b)(1) thereof to be and read as follows: "(b) Additional Matching Contribution -- (1) In General. For each Year, each Employer shall make an additional contribution on behalf of each of its Employees for whom a contribution was made pursuant to paragraph (a) of this Section 4.01; provided, however, that no such additional contribution shall be made prior to the first day of the calendar quarter following the date on which such Employee completes one (1) year of Service. Such contributions shall equal an amount 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, will be sufficient to credit each such Participant's Employer Contribution Account with an amount equal to a percentage of that portion of the Participant's salary reduction for such Year pursuant to 4.02 hereof which does not exceed six percent (6%) of his Compensation for such Year, based on his years of Service as follows:
Years of Service Applicable Percentage ---------------- --------------------- 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%
For purposes of determining a Participant's additional matching contribution under this paragraph (b)(1), (i) if a Participant's Employment Commencement Date is any date after January 1, 2001 and on or before March 31, 2001, and such Participant is employed by an Employer as of the last day of the Short Plan Year, he shall be credited with a year of Service for such Short Plan Year. Notwithstanding the preceding provisions of this paragraph (b), no portion of a Participant's salary reduction shall be taken into account for purposes of this computation if, prior to the end of such Year, such portion (including any portion constituting a deemed distribution pursuant to Section 6.06(c) hereof) is withdrawn by, or otherwise distributed to, the Participant prior to the Participant's attainment of age fifty-nine and one-half (59-1/2), or if such portion represents one or more contributions pursuant to paragraph (a) of this Section 4.01 made 3 prior to the first day of the calendar quarter following the date on which such Participant completes one (1) year of Service. For any Year, the Employers may decline to make any portion of the contribution specified in this paragraph (b) if the Employers determine that such action is necessary to ensure that the discrimination requirements of Section 401(a)(4) of the Code, as amended, or the discrimination tests of Section 401(m) of the Code, as amended, are satisfied; or, alternatively, in the case of a violation of the discrimination tests of such Section 401(m), the Employers may direct the Trustee to distribute "excess aggregate contributions" (as defined in Section 401(m)(6)(B) of such Code), to the Participants by or on whose behalf such contributions were made by the last day of the following year. All additional matching contributions of the Employers shall be paid to the Trustee and payment shall be made not later than the time prescribed by law for filing the consolidated Federal income tax return of the Employers, including any extensions which have been granted for the filing of such tax return." 6. Effective for Plan Years beginning April 1, 2001, section 5.03 is hereby amended by revising paragraph (a) thereof to be and read as follows: "(a) Notwithstanding anything contained herein to the contrary, the total additions made to the Salary Reduction Account and Employer Contribution Account of a Participant for any Year shall not exceed the lesser of (1) or (2), where -- (1) is the greater of $30,000 (or such greater amount as permitted under Internal Revenue Service rulings to reflect increases in the cost-of-living); and (2) is 25% of the Participant's total compensation for such Year. For purposes of this Section 5.03, a Participant's 'total compensation' includes earned income, wages, salaries, fees for professional service and other amounts received for personal services actually rendered in the course of employment with his Employer (including, but not limited to, commissions paid to salesmen, compensation for services on the basis of a percentage of profits, commissions on insurance premiums, tips, and bonuses) but excluding the following: (i) Employer contributions to a plan of deferred compensation to the extent contributions are not included in the gross income of a Participant for the taxable year in which contributed, or on behalf of a Participant to a simplified employee pension plan under Section 219(b)(7) of the Code, and any distributions from a plan of deferred compensation whether or not includible in the gross income of the Participant when distributed, provided that a Participant's 'total compensation' shall include his Salary Reduction Contributions and compensation paid or made available to the Participant that is not includible in the gross income of the Participant by reason of Code Sections 125, 457, or 132(f)(4); (ii) amounts realized from the exercise of a non-qualified stock option, or when restricted stock (or property) held by a Participant becomes freely transferable or is no longer subject to a substantial risk of forfeiture; (iii) amounts realized from the sale, exchange or other disposition of stock acquired under a qualified stock 4 option; and (iv) other amounts which receive special tax benefits, or contributions made by the Employer (whether or not under a salary reduction agreement) towards the purchase of an annuity contract described in Section 403(b) of the Code (whether or not the contributions are excludible from the gross income of the Participant)." 7. Effective October 26, 2001, Section 6.06 is hereby amended by revising paragraph (e) thereof to be and read as follows: (e) No loan shall be made in an amount less than $1,000. In addition, with respect to a Participant, no more than two loans may be outstanding at any time; provided that, in the case of a Participant who makes a direct transfer to this Plan of eligible rollover amounts pursuant to Code Section 401(a)(31), if such transfer consists of amounts to the credit of such Participant under the Thrall Plan described in Section 3.10 hereof and includes the unpaid balances of any loans made under such Thrall Plan, then, with respect to such Participant, the total number of loans outstanding hereunder shall be the greater of (i) two (2) or (ii) the total number of such transferred loans. 5 IN WITNESS HEREOF, the Company has caused this instrument to be executed in its name and on behalf of this 31 day of December, 2001, effective as the dates noted above. TRINITY INDUSTRIES, INC. By: /s/ Andrea F. Cowan ---------------------------------- Title: Vice President, Shared Services ATTEST: /s/ Michael Fortado EX-99.7 8 d14719exv99w7.txt AMENDMENT NO. 6 TO PROFIT SHARING PLAN EXHIBIT 99.7 AMENDMENT NO. 6 TO THE PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE APRIL 1, 1999 MODEL AMENDMENT FOR EGTRRA AND CERTAIN TREASURY REGULATIONS CONCERNING INTERNAL REVENUE CODE SECTION 401(a)(9) PREAMBLE 1. Adoption and Effective Date of Amendment. This amendment of the Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as Restated Effective April 1, 1999 (the "Plan") is adopted to reflect certain provisions of the Economic Growth and Tax Relief Reconciliation Act of 2001 ("EGTRRA") and certain Treasury Regulations concerning Internal Revenue Code ("Code") Section 401(a)(9). This amendment is intended as good faith compliance with the requirements of EGTRRA and is to be construed in accordance with EGTRRA and guidance issued thereunder. Except as otherwise provided, this amendment shall be effective as of the first day of the first Plan Year beginning after December 31, 2001. 2. Supersession of Inconsistent Provisions. This amendment shall supersede the provisions of the Plan to the extent those provisions are inconsistent with the provisions of this amendment. 3. Defined Terms. Capitalized terms not defined herein are defined in the Plan. SECTION I. LIMITATIONS ON CONTRIBUTIONS 1. Effective Date. This section shall be effective January 1, 2002. 2. Maximum Annual Addition. The annual addition that may be contributed or allocated to a Participant's account under the Plan for any taxable year shall not exceed the lesser of: (a) $40,000, as adjusted for increases in the cost-of-living under Section 415(d) of the Code, or (b) 100 percent of the Participant's compensation, within the meaning of Section 415(c)(3) of the Code, for the taxable year. The compensation limit referred to in (b) shall not apply to any contribution for medical benefits after separation from service (within the meaning of Section 401(h) or Section 419(A)(f)(2) of the Code) which is otherwise treated as an annual addition. -1- SECTION II. INCREASE IN COMPENSATION LIMIT The annual compensation of each Participant taken into account in determining allocations for any taxable year beginning after December 31, 2001, shall not exceed $200,000, as adjusted for cost-of-living increases in accordance with Section 401(a)(17)(B) of the Code. Annual compensation means compensation during the Plan Year or such other consecutive 12-month period over which compensation is otherwise determined under the Plan (the determination period). The cost-of-living adjustment in effect for a calendar year applies to annual compensation for the determination period that begins with or within such calendar year. SECTION III. MODIFICATION OF TOP-HEAVY RULES 1. Effective Date. This section shall apply for purposes of determining whether the Plan is a top-heavy plan under Section 416(g) of the Code for Plan Years beginning after December 31, 2001, and whether the Plan satisfies the minimum benefits requirements of Section 416(c) of the Code for such years. This section amends Section 5.04 of the Plan. 2. Determination of Top-Heavy Status. 2.1 Key Employee. Key employee means any employee or former employee (including any deceased employee) who at any time during the Plan Year that includes the determination date was an officer of the employer having annual compensation greater than $130,000 (as adjusted under Section 416(i)(1) of the Code for Plan Years beginning after December 31, 2002), a 5-percent owner of the employer, or a 1-percent owner of the employer having annual compensation of more than $150,000. For this purpose, annual compensation means compensation within the meaning of Section 415(c)(3) of the Code. The determination of who is a key employee will be made in accordance with Section 416(i)(1) of the Code and the applicable regulations and other guidance of general applicability issued thereunder. 2.2 Determination of Present Values and Amounts. This section 2.2 shall apply for purposes of determining the present values of accrued benefits and the amounts of account balances of employees as of the determination date. 2.2.1 Distributions During Year Ending on the Determination Date. The present values of accrued benefits and the amounts of account balances of an employee as of the determination date shall be increased by the distributions made with respect to the employee under the Plan and any Plan aggregated with the Plan under Section 416(g)(2) of the Code during the 1-year period ending on the determination date. The preceding sentence shall also apply to distributions under a terminated plan which, had it not been terminated, would have been aggregated with the Plan under Section 416(g)(2)(A)(i) of the Code. In the case of a distribution made for a reason other than separation from service, death, or disability, this provision shall be applied by substituting "5-year period" for "1-year period." -2- 2.2.2 Employees Not Performing Services During Year Ending on the Determination Date. The accrued benefits and accounts of any individual who has not performed services for the employer during the 1-year period ending on the determination date shall not be taken into account. 3. Minimum Benefits. 3.1 Matching Contributions. Employer matching contributions shall be taken into account for purposes of satisfying the minimum contribution requirements of Section 416(c)(2) of the Code and the Plan. The preceding sentence shall apply with respect to matching contributions under the Plan or, if the Plan provides that the minimum contribution requirement shall be met in another plan, such other plan. Employer matching contributions that are used to satisfy the minimum contribution requirements shall be treated as matching contributions for purposes of the actual contribution percentage test and other requirements of Section 401(m) of the Code. 3.2 Contributions Under Other Plans. The Employer may provide, in an addendum to this amendment, that the minimum benefit requirement shall be met in another plan (including another plan that consists solely of a cash or deferred arrangement which meets the requirements of Section 401(k)(12) of the Code and matching contributions with respect to which the requirements of Section 401(m)(11) of the Code are met). The addendum should include the name of the other plan, the minimum benefit that will be provided under such other plan, and the employees who will receive the minimum benefit under such other plan. SECTION IV. DIRECT ROLLOVERS OF PLAN DISTRIBUTIONS 1. Effective Date. This section shall apply to distributions made after December 31, 2001. 2. Modification of Definition of Eligible Retirement Plan. For purposes of the direct rollover provisions in Section 6.04(d) of the Plan, an eligible retirement plan shall also mean an annuity contract described in Section 403(b) of the Code and an eligible plan under Section 457(b) of the Code which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into such plan from this Plan. The definition of eligible retirement plan shall also apply in the case of a distribution to a surviving spouse, or to a spouse or former spouse who is the alternate payee under a qualified domestic relation order, as defined in Section 414(p) of the Code. 3. Modification of Definition of Eligible Rollover Distribution to Exclude Hardship Distributions. For purposes of the direct rollover provisions in Section 6.04(d) of the Plan, any amount that is distributed on account of hardship shall not be an eligible rollover distribution and the distributee may not elect to have any portion of such a distribution paid directly to an eligible retirement plan. -3- 4. Modification of Definition of Eligible Rollover Distribution to Include After-tax Employee Contributions. For purposes of the direct rollover provisions in Section 6.04(d) of the Plan, a portion of a distribution shall not fail to be an eligible rollover distribution merely because the portion consists of after-tax employee contributions which are not includible in gross income. However, such portion may be transferred only to an individual retirement account or annuity described in Section 408(a) or (b) of the Code, or to a qualified defined contribution plan described in Section 401(a) or 403(a) of the Code that agrees to separately account for amounts so transferred, including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible. SECTION V. ROLLOVERS FROM OTHER PLANS Effective Date. This section shall be effective January 1, 2002. DIRECT ROLLOVER: The Plan will accept a direct rollover of an eligible rollover distribution from a qualified plan described in Code Section 401(a) or 403(a), excluding after-tax employee contributions. PARTICIPANT ROLLOVER CONTRIBUTIONS FROM OTHER PLANS AND IRAS: The Plan will accept a Participant contribution of an eligible rollover distribution from a qualified plan described in Code Section 401(a) or 403(a) or an individual retirement account described in Code Section 408(a) or an individual retirement annuity described in Code Section 408(b), but only if no amount in such account and no part of the value of such annuity is attributable to any source other than a rollover contribution (as defined in Code Section 402) from an employee's trust described in Code Section 401(a) which is exempt from tax under Code Section 501(a) or from an annuity plan described in Code Section 403(a) (and any earnings on such contribution), and the entire amount received (including property and other money) is contributed (for the benefit of such individual) to the Plan no later than the 60th day on which the individual receives the payment or distribution. The Plan will not accept any rollover contribution to the extent such contribution represents the individual's basis in such account or annuity. SECTION VI. ROLLOVERS DISREGARDED IN INVOLUNTARY CASH-OUTS 1. Applicability and Effective Date. This section shall be effective for distributions after December 31, 2001. 2. Rollovers Disregarded in Determining Value of Account Balance for Involuntary Distributions. For purposes of Section 6.04(c) of the Plan, the value of a Participant's nonforfeitable account balance shall be determined without regard to that portion of the account balance that is attributable to rollover contributions (and earnings allocable thereto) within the meaning of Sections 402(c), 403(a)(4), 403(b)(8), 408(d)(3)(A)(ii), and 457(e)(16) of the Code. If the value of the Participant's nonforfeitable account -4- balance as so determined is $5,000 or less, the Plan shall immediately distribute the Participant's entire nonforfeitable account balance. SECTION VII. REPEAL OF MULTIPLE USE TEST The multiple use test described in Treasury Regulation Section 1.401(m)-2 and the Plan shall not apply for Plan Years beginning after December 31, 2001. SECTION VIII. ELECTIVE DEFERRAL - CONTRIBUTION LIMITATION No Participant shall be permitted to have elective deferrals made under this Plan, or any other qualified plan maintained by the employer during any taxable year, in excess of the dollar limitation contained in Section 402(g) of the Code in effect for such taxable year. SECTION IX. SUSPENSION PERIOD FOLLOWING HARDSHIP DISTRIBUTION. A participant who receives a distribution of elective deferrals after December 31, 2001, on account of hardship shall be prohibited from making elective deferrals and employee contributions under this and all other plans of the employer for six (6) months after receipt of the distribution. SECTION X. DISTRIBUTION UPON SEVERANCE FROM EMPLOYMENT 1. Effective Date. This section shall apply for distributions after December 31, 2001, regardless of when the severance from employment occurred. 2. New Distributable Event. A Participant's elective deferrals, qualified nonelective contributions, qualified matching contributions, and earnings attributable to these contributions shall be distributed on account of the Participant's severance from employment. However, such a distribution shall be subject to the other provisions of the Plan regarding distributions, other than provisions that require a separation from service before such amounts may be distributed. SECTION XI. TREASURY REGULATIONS CONCERNING CODE SECTION 401(a)(9) With respect to distributions under the Plan made for calendar years beginning on or after January 1, 2002, the Plan will apply the minimum distribution requirements of Code Section 401(a)(9) in accordance with regulations under Code Section 401(a)(9) that were proposed on January 17, 2001, notwithstanding any provision of the Plan to the contrary. This amendment shall continue in effect until the end of the last calendar year beginning before the effective date of final regulations under such Code section or such other date as may be specified in guidance published by the Internal Revenue Service. SECTION XII. PLAN LOANS FOR OWNER-EMPLOYEES AND SHAREHOLDER EMPLOYEES Effective for Plan loans made after December 31, 2001, Plan provisions prohibiting loans to any owner-employee or shareholder-employee shall cease to apply. -5- Executed this 17 day of December, 2002. TRINITY INDUSTRIES, INC. By: /s/ Andrea F. Cowan ------------------------------------ Title: Vice President, Shared Services ATTEST: /s/ Michael Fortado STATE OF TEXAS ) ) ss. COUNTY OF DALLAS ) This instrument was acknowledged before me on the 17 day of December, 2002, by Andrea F. Cowan of Trinity Industries, Inc., a Delaware corporation, on behalf of said corporation. /s/ Marsha L. Buchanan ---------------------------------------- Notary Public in and for the State of Texas My Commission Expires: 07/29/2003 -6- EX-99.8 9 d14719exv99w8.txt AMENDMENT NO. 7 TO PROFIT SHARING PLAN EXHIBIT 99.8 AMENDMENT NO. 7 TO THE PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE APRIL 1, 1999 MODEL PLAN AMENDMENT FOR FINAL REGULATIONS RELATING TO INTERNAL REVENUE CODE SECTION 401(a)(9) SECTION 1. GENERAL RULES. 1.1. Effective Date. The provisions of this amendment will apply for purposes of determining required minimum distributions for calendar years beginning with the 2003 calendar year. 1.2. Precedence. The requirements of this amendment will take precedence over any inconsistent provisions of the plan. 1.3. Requirements of Treasury Regulations Incorporated. All distributions required under this amendment will be determined and made in accordance with the Treasury regulations under section 401(a)(9) of the Internal Revenue Code. 1.4. TEFRA Section 242(b)(2) Elections. Notwithstanding the other provisions of this amendment, distributions may be made under a designation made before January 1, 1984, in accordance with section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA) and the provisions of the plan that relate to section 242(b)(2) of TEFRA. SECTION 2. TIME AND MANNER OF DISTRIBUTION. 2.1. Required Beginning Date. The participant's entire interest will be distributed, or begin to be distributed, to the participant no later than the participant's required beginning date. 2.2. Death of Participant Before Distributions Begin. If the participant dies before distributions begin, the participant's entire interest will be distributed, or begin to be distributed, no later than as follows: (a) If the participant's surviving spouse is the participant's sole designated beneficiary, then distributions to the surviving spouse will begin by December 31 of the calendar year immediately following the calendar year in which the participant died, or by December 31 of the calendar year in which the participant would have attained age 70-1/2, if later. (b) If the participant's surviving spouse is not the participant's sole designated beneficiary, then distributions to the designated beneficiary will begin by December 31 of the calendar year immediately following the calendar year in which the participant died. 1 (c) If there is no designated beneficiary as of September 30 of the year following the year of the participant's death, the participant's entire interest will be distributed by December 31 of the calendar year containing the fifth anniversary of the participant's death. (d) If the participant's surviving spouse is the participant's sole designated beneficiary and the surviving spouse dies after the participant but before distributions to the surviving spouse begin, this section 2.2, other than section 2.2(a), will apply as if the surviving spouse were the participant. For purposes of this section 2.2 and section 4, unless section 2.2(d) applies, distributions are considered to begin on the participant's required beginning date. If section 2.2(d) applies, distributions are considered to begin on the date distributions are required to begin to the surviving spouse under section 2.2(a). If distributions under an annuity purchased from an insurance company irrevocably commence to the participant before the participant's required beginning date (or to the participant's surviving spouse before the date distributions are required to begin to the surviving spouse under section 2.2(a)), the date distributions are considered to begin is the date distributions actually commence. 2.3. Forms of Distribution. Unless the participant's interest is distributed in the form of an annuity purchased from an insurance company or in a single sum on or before the required beginning date, as of the first distribution calendar year distributions will be made in accordance with sections 3 and 4 of this amendment. If the participant's interest is distributed in the form of an annuity purchased from an insurance company, distributions thereunder will be made in accordance with the requirements of section 401(a)(9) of the Code and the Treasury regulations. SECTION 3. REQUIRED MINIMUM DISTRIBUTIONS DURING PARTICIPANT'S LIFETIME. 3.1. Amount of Required Minimum Distribution For Each Distribution Calendar Year. During the participant's lifetime, the minimum amount that will be distributed for each distribution calendar year is the lesser of: (a) the quotient obtained by dividing the participant's account balance by the distribution period in the Uniform Lifetime Table set forth in section 1.401(a)(9)-9 of the Treasury regulations, using the participant's age as of the participant's birthday in the distribution calendar year; or (b) if the participant's sole designated beneficiary for the distribution calendar year is the participant's spouse, the quotient obtained by dividing the participant's account balance by the number in the Joint and Last Survivor Table set forth in section 1.401(a)(9)-9 of the Treasury regulations, using the participant's and spouse's attained ages as of the participant's and spouse's birthdays in the distribution calendar year. 2 3.2. Lifetime Required Minimum Distributions Continue Through Year of Participant's Death. Required minimum distributions will be determined under this section 3 beginning with the first distribution calendar year and up to and including the distribution calendar year that includes the participant's date of death. SECTION 4. REQUIRED MINIMUM DISTRIBUTIONS AFTER PARTICIPANT'S DEATH. 4.1. Death On or After Date Distributions Begin. (a) Participant Survived by Designated Beneficiary. If the participant dies on or after the date distributions begin and there is a designated beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year of the participant's death is the quotient obtained by dividing the participant's account balance by the longer of the remaining life expectancy of the participant or the remaining life expectancy of the participant's designated beneficiary, determined as follows: (1) The participant's remaining life expectancy is calculated using the age of the participant in the year of death, reduced by one for each subsequent year. (2) If the participant's surviving spouse is the participant's sole designated beneficiary, the remaining life expectancy of the surviving spouse is calculated for each distribution calendar year after the year of the participant's death using the surviving spouse's age as of the spouse's birthday in that year. For distribution calendar years after the year of the surviving spouse's death, the remaining life expectancy of the surviving spouse is calculated using the age of the surviving spouse as of the spouse's birthday in the calendar year of the spouse's death, reduced by one for each subsequent calendar year. (3) If the participant's surviving spouse is not the participant's sole designated beneficiary, the designated beneficiary's remaining life expectancy is calculated using the age of the beneficiary in the year following the year of the participant's death, reduced by one for each subsequent year. (b) No Designated Beneficiary. If the participant dies on or after the date distributions begin and there is no designated beneficiary as of September 30 of the year after the year of the participant's death, the minimum amount that will be distributed for each distribution calendar year after the year of the participant's death is the quotient obtained by dividing the participant's account balance by the participant's remaining life expectancy calculated using the age of the participant in the year of death, reduced by one for each subsequent year. 3 4.2. Death Before Date Distributions Begin. (a) Participant Survived by Designated Beneficiary. Except as may be elected pursuant to section 4.3(a), if the participant dies before the date distributions begin and there is a designated beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year of the participant's death is the quotient obtained by dividing the participant's account balance by the remaining life expectancy of the participant's designated beneficiary, determined as provided in section 4.1. (b) No Designated Beneficiary. If the participant dies before the date distributions begin and there is no designated beneficiary as of September 30 of the year following the year of the participant's death, distribution of the participant's entire interest will be completed by December 31 of the calendar year containing the fifth anniversary of the participant's death. (c) Death of Surviving Spouse Before Distributions to Surviving Spouse Are Required to Begin. If the participant dies before the date distributions begin, the participant's surviving spouse is the participant's sole designated beneficiary, and the surviving spouse dies before distributions are required to begin to the surviving spouse under section 2.2(a), this section 4.2 will apply as if the surviving spouse were the participant. 4.3 Certain Elections Allowed. (a) Election to Allow Participants or Beneficiaries to Elect 5-Year Rule. Participants or beneficiaries may elect on an individual basis whether the 5-year rule or the life expectancy rule in sections 2.2 and 4.2 of this amendment applies to distributions after the death of a participant who has a designated beneficiary. The election must be made no later than the earlier of September 30 of the calendar year in which distribution would be required to begin under section 2.2 of this amendment, or by September 30 of the calendar year which contains the fifth anniversary of the participant's (or, if applicable, surviving spouse's) death. If neither the participant nor beneficiary makes an election under this paragraph, distributions will be made in accordance with sections 2.2 and 4.2 of this amendment. (b) Election to Allow Designated Beneficiary Receiving Distributions Under 5-Year Rule to Elect Life Expectancy Distributions. A designated beneficiary who is receiving payments under the 5-year rule may make a new election to receive payments under the life expectancy rule until December 31, 2003, provided that all amounts that would have been required to be distributed under the life expectancy rule for all distribution calendar years before 2004 are distributed by the earlier of December 31, 2003 or the end of the 5-year period. 4 SECTION 5. DEFINITIONS. 5.1. Designated beneficiary. The individual who is designated as the beneficiary under section 6.05 of the plan and is the designated beneficiary under section 401(a)(9) of the Internal Revenue Code and section 1.401(a)(9)-1, Q&A-4, of the Treasury regulations. 5.2. Distribution calendar year. A calendar year for which a minimum distribution is required. For distributions beginning before the participant's death, the first distribution calendar year is the calendar year immediately preceding the calendar year which contains the participant's required beginning date. For distributions beginning after the participant's death, the first distribution calendar year is the calendar year in which distributions are required to begin under section 2.2. The required minimum distribution for the participant's first distribution calendar year will be made on or before the participant's required beginning date. The required minimum distribution for other distribution calendar years, including the required minimum distribution for the distribution calendar year in which the participant's required beginning date occurs, will be made on or before December 31 of that distribution calendar year. 5.3. Life expectancy. Life expectancy as computed by use of the Single Life Table in section 1.401(a)(9)-9 of the Treasury regulations. 5.4. Participant's account balance. The account balance as of the last valuation date in the calendar year immediately preceding the distribution calendar year (valuation calendar year) increased by the amount of any contributions made and allocated or forfeitures allocated to the account balance as of dates in the valuation calendar year after the valuation date and decreased by distributions made in the valuation calendar year after the valuation date. The account balance for the valuation calendar year includes any amounts rolled over or transferred to the plan either in the valuation calendar year or in the distribution calendar year if distributed or transferred in the valuation calendar year. 5.5 Required beginning date. The date specified in section 6.01(b) of the plan. 5 IN WITNESS WHEREOF, TRINITY INDUSTRIES, INC. has caused this Amendment No. 6 to the PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE APRIL 1, 1999, to be executed in its name and on its behalf the 17 day of December, 2003, to be effective January 1, 2003. TRINITY INDUSTRIES, INC. By: /s/ Andrea F. Cowan -------------------------- Title: Vice President ATTEST: /s/ Michael Fortado STATE OF TEXAS ) ) ss. COUNTY OF DALLAS ) This instrument was acknowledged before me on the 17 day of December, 2003, by Andrea F. Cowan of Trinity Industries, Inc., a Delaware corporation, on behalf of said corporation. /s/ Marsha L. Buchanan ------------------------------ Notary Public in and for the State of Texas My Commission Expires: 07/29/2007 6 EX-99.9 10 d14719exv99w9.txt AMENDMENT NO. 8 TO PROFIT SHARING PLAN EXHIBIT 99.9 AMENDMENT NO. 8 TO PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE APRIL 1, 1999 WHEREAS, TRINITY INDUSTRIES, INC., a Delaware corporation (the "Company"), has heretofore adopted the PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE APRIL 1, 1999 (the "Plan"); and WHEREAS, pursuant to those provisions of the Plan permitting the Company to amend the Plan from time to time, the Company desires to amend the Plan in certain respects as hereinafter provided; NOW, THEREFORE, the Plan is hereby amended by inserting immediately after Section 3.10 thereof the following new Sections 3.11 and 3.12: "3.11 Special Rules for Employees of Southern Star Concrete, Inc. Notwithstanding any provision to the contrary herein contained, any Employee who immediately prior to January 9, 2004 was employed by Southern Star Concrete, Inc. shall be eligible to become a Participant in the Plan on January 9, 2004." "3.12 Adoption of Special Rules In Connection With Future Acquisitions The Profit Sharing Committee shall have the right, from time to time, to adopt additional special rules governing the Participation of individuals who become Employees by reason of acquisitions by one or more Employers occurring after January 9, 2004; provided that any rules so adopted shall not violate the provisions of Section 401(a)(4) or (5) of the Code or otherwise jeopardize the tax-qualified status of the Plan and Trust; provided further, that such rules shall be set forth in the minutes of the Committee meeting authorizing such adoption and shall be attached to the Plan as a separate Appendix." IN WITNESS HEREOF, the Company has caused this instrument to be executed in its name and on its behalf this 9 day of January, 2004, effective as of January 9, 2004. TRINITY INDUSTRIES, INC. By: Andrea F. Cowan ---------------------------------------- Title: Vice President ATTEST: - ----------------------------- 2 EX-99.11 11 d14719exv99w11.txt CORRECTING AMEND. TO SUPPLEMENTAL PROFIT SHARING EXHIBIT 99.11 CORRECTING AMENDMENT SUPPLEMENTAL PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE JANUARY 1, 2000 WHEREAS, the Supplemental Profit Sharing Plan of Trinity Industries, Inc. and Certain Affiliates was amended and restated effective January 1, 2000; and WHEREAS, it having been determined that Section 6.03(b)(2) as originally worded provided an administrative burden that was not intended. NOW, THEREFORE, Section 6.03(b)(2) of the Supplemental Profit Sharing Plan of Trinity Industries, Inc. and Certain Affiliates as restated effective January 1, 2000 is hereby corrected, ab initio, to read as follows: 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. IN WITNESS WHEREOF, the Company has executed this Correcting Amendment on the 13th day of January, 2000, effective as of January 1, 2000. TRINITY INDUSTRIES, INC. By: /s/ John L. Adams ------------------------------------ Title: Executive Vice President ATTEST: /s/ Michael G. Fortado EX-99.12 12 d14719exv99w12.txt AMENDMENT NO 1 TO SUPPLEMENTAL PROFIT SHARING PLAN EXHIBIT 99.12 AMENDMENT NO. 1 TO SUPPLEMENTAL PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE JANUARY 1, 2000 WHEREAS, TRINITY INDUSTRIES, INC. (the "Company") has heretofore adopted, for the benefit of certain executive and managerial employees, the SUPPLEMENTAL PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES, AS RESTATED EFFECTIVE JANUARY 1, 2000, (the "Plan"); and WHEREAS, pursuant to Article X of the Plan, the Company desires to amend the Plan in certain particulars. NOW, THEREFORE, the Plan is hereby amended in the following respects: Effective March 8, 2001, the second sentence of Article 4.01(d) is amended to add the following to the end of the sentence: ; provided further, the Board of Directors or the Human Resources Committee of the Board of Directors, in its discretion, may elect to waive the earnings requirement. IN WITNESS WHEREOF, the Company has executed this Amendment No 1. on the 9 day of March, 2001, effective as of March 8, 2001. TRINITY INDUSTRIES, INC. By: /s/ M.J. Lintner ------------------------------------ Title: Vice President ATTEST: /s/ Michael Fortado EX-99.13 13 d14719exv99w13.txt AMENDMENT NO 2 TO SUPPLEMENTAL PROFIT SHARING PLAN EXHIBIT 99.13 AMENDMENT NO. 2 TO SUPPLEMENTAL PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE JANUARY 1, 2000 WHEREAS, TRINITY INDUSTRIES, INC., a Delaware corporation (the "Company"), has heretofore adopted the SUPPLEMENTAL PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE JANUARY 1, 2000 ("the Plan") for the benefit of certain executive and managerial employees; and WHEREAS, pursuant to those provisions of the Plan permitting the Company to amend the Plan from time to time, the Company desires to amend the Plan in certain respects as hereinafter provided; NOW THEREFORE, the Plan is hereby amended as follows: 1. Effective January 1, 2002, section 2.01 is hereby amended by revising paragraph (qq) thereof to be and read as follows: "(qq) YEAR or PLAN YEAR: Plan Year means the period beginning on April 1 and ending on the next succeeding March 31. Effective January 1, 2002, Plan Year means the period beginning on each January 1 and ending on the next succeeding December 31." 2. Effective December 31, 2001, section 2.01 is hereby amended by adding at the end thereof the following new paragraph (rr): "(rr) SHORT PLAN YEAR: The period of time from April 1, 2001 through December 31, 2001." 3. Effective December 31, 2001, section 4.01 is hereby amended by revising paragraph (b) thereof to be and read as follows: "(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:
Years of Service Applicable Percentage - ---------------- --------------------- 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%
For purposes of determining a Participant's Matching Employer Contribution under this paragraph (b), if a Participant's Employment Commencement Date is any date on or after January 1, 2001 and on or before March 31, 2001, and such Participant is employed as of the last day of the Short Plan Year, he shall be credited with a year of Service for such Short Plan Year." 2 IN WITNESS HEREOF, the Company has caused this instrument to be executed in its name and on behalf of this 18th day of June, 2002, effective as the dates noted above. TRINITY INDUSTRIES, INC. By: /s/ Andrea F. Cowan ------------------------------------ Title: Vice President ATTEST: /s/ Michael G. Fortado STATE OF TEXAS } } ss. COUNTY OF DALLAS } This instrument was acknowledged before me on the 18th day of June, 2002, by Andrea F. Cowan of TRINITY INDUSTRIES, INC., a Delaware corporation, on behalf of said corporation. /s/ Marsha L. Buchanan ------------------------------ Notary Public in and for the State of Texas My Commission Expires: July 29, 2003 3 EX-99.14 14 d14719exv99w14.txt AMENDMENT NO 3 TO SUPPLEMENTAL PROFIT SHARING PLAN EXHIBIT 99.14 AMENDMENT NO. 3 TO SUPPLEMENTAL PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE JANUARY 1, 2000 WHEREAS, TRINITY INDUSTRIES, INC., a Delaware corporation (the "Company"), has heretofore adopted the SUPPLEMENTAL PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE JANUARY 1, 2000 ("the Plan") for the benefit of certain executive and managerial employees; and WHEREAS, pursuant to those provisions of the Plan permitting the Company to amend the Plan from time to time, the Company desires to amend the Plan in certain respects as hereinafter provided; NOW THEREFORE, the Plan is hereby amended as follows, effective as of January 1, 2004: 1. Section 4.01(b) is hereby amended to be and read as follows: "(b) Matching Employer Contribution. For Plan Years beginning prior to January 1, 2004, 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; effective for Plan Years beginning on and after January 1, 2004, such a Matching Employer Contribution shall be credited in cash; 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:
Years of Service Applicable Percentage - ---------------- --------------------- 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%
For purposes of determining a Participant's Matching Employer Contribution under this paragraph (b), if a Participant's Employment Commencement Date is any date on or after January 1, 2001 and on or before March 31, 2001, and such Participant is employed as of the last day of the Short Plan Year, he shall be credited with a year of Service for such Short Plan Year." 2. Section 4.01(c) is hereby amended to be and read as follows: "(c) Additional Matching Contribution. For Plan Years beginning prior to January 1, 2004, 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. Effective for Plan Years beginning on and after January 1, 2004, this paragraph (c) shall have no further force or effect." In accordance with the last sentence in the revised section 4.01(c) above, references in the Plan to Additional Matching Contributions and Additional Matching Contribution Accounts are applicable to such contributions and accounts prior to January 1, 2004. 3. Section 4.01(e) is hereby amended to be and read as follows: "(e) Discretionary Contributions. For Plan Years beginning prior to January 1, 2004, 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. Effective for Plan Years beginning on and after January 1, 2004, if such amounts are credited, they shall be credited in cash." 2 4. Section 5.02 is hereby amended to be and read as follows: "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. In accordance with certain limitations on investment designations in Section 5.02(b), 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. For Plan Years beginning prior to January 1, 2004, the earnings or losses attributable to a Participant's Accounts shall be determined as if the amounts credited to such Accounts 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. Effective for Plan Years beginning on and after January 1, 2004, the earnings or losses attributable to a Participant's Accounts shall be determined as if the amounts credited to such Accounts were actually invested in Stock Units, to the extent elected hereunder, and, to the extent not so elected or to the extent prohibited hereunder, 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 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 3 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. For Plan Years beginning prior to January 1, 2004, 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. Effective for Plan Years beginning on and after January 1, 2004, amounts contributed to a Participant's Matching Contribution Account and Discretionary Contribution Account shall not be treated as invested in Stock Units. For Plan Years beginning on and after January 1, 2004, amounts credited to a Participant's Matching Contribution Account, Additional Matching Contribution Account, or Discretionary Contribution Account and deemed invested in any media may not be treated as transferred into or out of deemed investments in Stock Units. For Plan Years beginning on and after January 1, 2004, Compensation Reduction Contributions may, at the Participant's election, be treated as invested in Stock Units, either at the time such amounts are initially credited to the Participant's Compensation Reduction Contribution Account or following deemed invested in other media; provided, however, that following deemed investment in Stock Units, such Contributions may not be treated as transferred out of deemed investments 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 deemed investment in Stock Units was required hereunder for Plan Years beginning prior to January 1, 2004, 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 4 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." 5. Section 5.03(c) is hereby amended to be and read as follows: "(c) Matching Contributions. For Plan Years beginning prior to January 1, 2004, 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. Effective for Plan Years beginning on and after January 1, 2004, any amounts credited to a Participant by an Employer pursuant to Section 4.01(b) during a Year shall be allocated to the Participant's 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." 6. Section 5.04(a) is hereby amended to be and read as follows: "(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) and, for Plan Years beginning prior to January 1, 2004, Section 5.03(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 Plan Years beginning prior to January 1, 2004, for purposes of calculating the number of Stock Units credited to a Participant's Accounts as an Employer Matching Contribution or Additional Matching Contribution, 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, 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." 7. Section 5.04 (c) is hereby amended to be and read as follows: "(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. Effective for Plan Years beginning prior to January 1, 2004, such amounts shall be credited to the Participant's Accounts in the form of additional Stock Units at a 5 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). Effective for Plan Years beginning on and after January 1, 2004, such amounts shall be credited to the Participant's Accounts in cash." 8. Section 6.08 is hereby amended to be and read as follows: "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 year for which the election is made. Such an election shall be irrevocable. The distribution shall be made no later than December 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." 6 IN WITNESS WHEREOF, the Company has caused this instrument to be executed in its name and on behalf of this 24th day of February, 2004, effective as of January 1, 2004. TRINITY INDUSTRIES, INC. By: /s/ Andrea F. Cowan -------------------------- Title: Vice President ATTEST: /s/ Michael G. Fortado STATE OF TEXAS ) ) ss. COUNTY OF DALLAS ) This instrument was acknowledged before me on the 24 day of February, 2004, by Andrea F. Cowan of TRINITY INDUSTRIES, INC., a Delaware corporation, on behalf of said corporation. /s/ Marsha L. Buchanan ------------------------------ Notary Public in and for the State of Texas My Commission Expires: 07/29/2007 7 -----END PRIVACY-ENHANCED MESSAGE-----