-----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, I9a/vpDrdsbkEwtth3rBwRRORzKe2Pzq6IuaCg0Jp5/D+gWIqZRJk/aME5OElpz6 01CgpgEyNe0S6D8D2AceNA== 0000950134-96-006962.txt : 19961220 0000950134-96-006962.hdr.sgml : 19961220 ACCESSION NUMBER: 0000950134-96-006962 CONFORMED SUBMISSION TYPE: POS AM PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19961219 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: TRINITY INDUSTRIES INC CENTRAL INDEX KEY: 0000099780 STANDARD INDUSTRIAL CLASSIFICATION: RAILROAD EQUIPMENT [3743] IRS NUMBER: 750225040 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: POS AM SEC ACT: 1933 Act SEC FILE NUMBER: 333-08321 FILM NUMBER: 96683039 BUSINESS ADDRESS: STREET 1: 2525 STEMMONS FREEWAY CITY: DALLAS STATE: TX ZIP: 75207-2401 BUSINESS PHONE: 2146314420 FORMER COMPANY: FORMER CONFORMED NAME: TRINITY STEEL CO INC DATE OF NAME CHANGE: 19720407 POS AM 1 POST EFFECTIVE AMENDMENT NO.2 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 19, 1996 REGISTRATION NO. 333-08321 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------- POST-EFFECTIVE AMENDMENT NO. 2 ON FORM S-3* TO FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------- TRINITY INDUSTRIES, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 3743 75-0225040 (STATE OF INCORPORATION) (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER CLASSIFICATION CODE NUMBER ) IDENTIFICATION NO.) 2525 STEMMONS FREEWAY DALLAS, TEXAS 75207 (214) 631-4420 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) ------------------------- F. DEAN PHELPS VICE PRESIDENT TRINITY INDUSTRIES, INC. 2525 STEMMONS FREEWAY DALLAS, TEXAS 75207 (214) 631-4420 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) Copies to: CHARLES C. REEDER, ESQ. LOCKE PURNELL RAIN HARRELL (A PROFESSIONAL CORPORATION) 2200 ROSS AVENUE, SUITE 2200 DALLAS, TEXAS 75201 (214) 740-8522 APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after this Post-Effective Amendment becomes effective. If the securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act Registration Statement number of the earlier effective Registration Statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act Registration Statement number of the earlier effective Registration Statement for the same offering. [ ] 2 If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------- TITLE OF EACH PROPOSED MAXIMUM PROPOSED AMOUNT OF CLASS OF SHARES TO BE AMOUNT TO BE AGGREGATE PRICE MAXIMUM AGGREGATE REGISTRATION REGISTERED (1) REGISTERED PER SHARE OFFERING PRICE FEE - ----------------------------------------------------------------------------------------------------------------------- Common Stock, par 32,028 $1.17 $37,473 $-0-(2) value $1.00 per share (including the attached Preferred Share Purchase Rights) - -----------------------------------------------------------------------------------------------------------------------
(1) THIS REGISTRATION STATEMENT RELATES TO (I) THE SHARES OF COMMON STOCK, PAR VALUE $1.00 PER SHARE ("COMMON STOCK"), OF THE REGISTRANT AND (II) THE PREFERRED SHARE PURCHASE RIGHTS THAT WILL BE ATTACHED TO AND REPRESENTED BY THE CERTIFICATES ISSUED FOR THE COMMON STOCK (WHICH PREFERRED SHARE PURCHASE RIGHTS HAVE NO MARKET VALUE INDEPENDENT OF THE COMMON STOCK TO WHICH THEY ARE ATTACHED). (2) FILING FEE PREVIOUSLY PAID IN CONNECTION WITH THE REGISTRATION OF THE COMMON STOCK UNDER THE FORM S-4 REGISTRATION STATEMENT FILED JULY 17, 1996 ("FORM S-4"). ------------------------- THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY DETERMINE. *FILED AS A POST-EFFECTIVE AMENDMENT ON FORM S-3 TO SUCH FORM S-4 REGISTRATION STATEMENT PURSUANT TO THE PROVISIONS OF RULE 401(E) AND THE PROCEDURE DESCRIBED THEREIN. SEE "INTRODUCTORY STATEMENT NOT FORMING PART OF PROSPECTUS." INTRODUCTORY STATEMENT NOT FORMING PART OF PROSPECTUS TRINITY INDUSTRIES, INC. (THE "COMPANY") HEREBY AMENDS ITS REGISTRATION STATEMENT ON FORM S-4 (NO. 333-08321) (THE "FORM S-4"), BY FILING THIS POST- EFFECTIVE AMENDMENT NO. 2 ON FORM S-3 (THE "POST-EFFECTIVE AMENDMENT") RELATING TO SHARES OF THE COMMON STOCK, $1.00 PAR VALUE PER SHARE, OF THE COMPANY ("COMPANY COMMON STOCK") THAT MAY BE ISSUED UPON EXERCISE OF OUTSTANDING STOCK OPTIONS (THE "OPTIONS") BY THE HOLDER(S) THEREOF. THE OPTIONS WERE ISSUED PURSUANT TO A STOCK OPTION AGREEMENT, DATED AS OF JULY 17, 1995 BY AND BETWEEN TRANSCISCO INDUSTRIES, INC. ("TRANSCISCO") AND GEORGE A. TEDESCO("TEDESCO"). THE SHARES OF COMPANY COMMON STOCK ISSUABLE UPON EXERCISE OF THE OPTIONS WERE REGISTERED ON THE FORM S-4. THE COMPANY AND TRANSCISCO ENTERED INTO AN AGREEMENT AND PLAN OF MERGER, DATED AS OF JUNE 17, 1996 (THE "MERGER AGREEMENT"), PURSUANT TO WHICH ON SEPTEMBER 3, 1996 TRINITY Y, INC., A WHOLLY OWNED SUBSIDIARY OF THE COMPANY, MERGED (THE"MERGER") WITH AND INTO TRANSCISCO, WITH TRANSCISCO AS THE SURVIVING CORPORATION. IN THE MERGER, EACH OUTSTANDING SHARE OF COMMON STOCK, $.01 PAR VALUE PER SHARE, OF TRANSCISCO ("TRANSCISCO COMMON STOCK") WAS CONVERTED INTO THE RIGHT TO RECEIVE 0.1884 OF A SHARE OF COMPANY COMMON STOCK. IN ADDITION, TRINITY ASSUMED THE OBLIGATIONS OF TRANSCISCO UNDER THE STOCK OPTION AGREEMENT. AS A RESULT, THE OPTIONS ARE NO LONGER EXERCISABLE FOR SHARES OF TRANSCISCO COMMON STOCK, BUT INSTEAD, UPON EXERCISE THEREOF, THE HOLDER(S) OF SUCH OPTIONS WILL BE ENTITLED TO RECEIVE SHARES OF TRINITY COMMON STOCK IN LIEU OF SHARES OF TRANSCISCO COMMON STOCK. THE SHARES OF COMPANY COMMON STOCK ISSUABLE UPON EXERCISE OF THE OPTIONS WERE REGISTERED ON THE FORM S-4. This is the second Post-Effective Amendment to the Form S-4 filed by Trinity in connection with the merger and relates only to the shares of Company Common Stock issuable upon exercise of the Options under the Stock Option Agreement. - -------------------------------------------------------------------------------- 3 PROSPECTUS 32,028 SHARES TRINITY INDUSTRIES, INC. ----------------------------------- COMMON STOCK ($1.00 PAR VALUE PER SHARE) ------------------------- This Prospectus relates to an aggregate of 32,028 shares (the "Shares") of the common stock, $1.00 par value per share ("Company Common Stock"), of Trinity Industries, Inc., a Delaware corporation (the "Company") which may be issued upon the exercise of outstanding stock options (the "Options") by the holder(s) thereof. The Options were issued pursuant to a Stock Option Agreement, dated as of July 17, 1995 (the "Stock Option Agreement") by and between Transcisco Industries, Inc., a Delaware corporation ("Transcisco") and George A. Tedesco ("Tedesco"). The Company and Transcisco entered into a Merger Agreement, dated June 17, 1996 (the "Merger Agreement"), by and among the Company, Trinity Y, a Delaware corporation and a wholly-owned subsidiary of the Company ("Trinity Y"), and Transcisco, pursuant to which on September 3, 1996, Trinity Y merged (the "Merger") with and into Transcisco, with Transcisco as the surviving corporation. In the Merger, each outstanding share of common stock, $.01 par value per share, of Transcisco ("Transcisco Common Stock") was converted into the right to receive 0.1884 of a share of Company Common Stock (together with the attached Preferred Share Purchase Rights). In addition, the Company assumed the obligations of Transcisco under the Stock Option Agreement. As a result, the Options are no longer exercisable for shares of Transcisco Common Stock, but instead, upon exercise thereof, the holder(s) will be entitled to receive shares of Company Common Stock in lieu of shares of Transcisco Common Stock. The Merger is more fully described in the Registration Statement on Form S-4, dated July 17, 1996, as amended by Post- Effective Amendment No. 1 to such Registration Statement, dated July 19, 1996, and as further amended by Post-Effective Amendment No. 2 on Form S-3 to such Registration Statement, dated December 19, 1996. Shares of Company Common Stock are listed and traded on the New York Stock Exchange ("NYSE") under the symbol "TRN". On December 13, 1996, the closing price for the shares of Company Common Stock on the NYSE, as reported by the NYSE Composite Tape, was $35.25 per share. Prospective purchasers of Company Common Stock are urged to obtain current information as to market prices of Company Common Stock. SEE "RISK FACTORS" ON PAGE 5 HEREOF FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF COMPANY COMMON STOCK OFFERED HEREBY. - -------------------------------------------------------------------------------- THE SECURITIES TO WHICH THIS PROSPECTUS RELATES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. - -------------------------------------------------------------------------------- 4 No person is authorized to give any information or to make any representation not contained in this Prospectus and, if given or made, such information or representation should not be relied upon as having been authorized by the Company or any other person. This Prospectus does not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any State in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state. Neither the delivery of this Prospectus nor any distribution of the securities made under this Prospectus shall, under any circumstances, create an implication that there has been no change in the affairs of the Company since the date of this Prospectus. ------------------------------ THE DATE OF THIS PROSPECTUS IS DECEMBER 19, 1996 -2- 5 AVAILABLE INFORMATION The Company is subject to the informational reporting requirements of the Securities Exchange Act of 1934, as amended, (the "Exchange Act") and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information can be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional offices at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511 and Seven World Trade Center, 13th Floor, New York, New York 10048. Copies of such material can be obtained at prescribed rates from the Public Reference Branch of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. The Company Common Stock is listed on the New York Stock Exchange, and copies of such reports, proxy and information statements and other information may be inspected at the New York Stock Exchange, 20 Broad Street, New York, New York 10005. Additionally, copies of reports, proxy and information statements and other information filed with the Commission electronically may be inspected by accessing the Commission's Internet site at http:\\www.sec.gov. The Company will provide without charge to each person to whom a copy of this Prospectus is delivered, including any beneficial owner, upon the written or oral request of such person, a copy of all documents incorporated by reference herein (other than exhibits to such documents unless such exhibits are specifically incorporated by reference into the information that this Prospectus incorporates). Requests for such documents should be addressed to F. Dean Phelps, Vice President of the Company, at P.O. Box 568887, Dallas, Texas 75356-8887; telephone number (214) 631-4420. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents and information heretofore filed by the Company (File No. 1-6903) with the Commission pursuant to the Exchange Act are hereby incorporated by reference into this Prospectus: (1) The Company's Annual Report on Form 10-K for the fiscal year ended March 31, 1996; provided that only the following sections of the Company's 1996 Annual Report to Stockholders, incorporated by reference in the Annual Report on Form 10-K, are incorporated by reference in this Prospectus: "Corporate Profile" (page 3), "Financial Summary" (page 15), "Management's Discussion and Analysis of Financial Condition" (pages 16-17), "Report of Independent Auditors" (page 29) and financial statements and supplementary data (pages 18-29). Portions of the Company's 1996 Annual Report to Stockholders not enumerated above are not hereby incorporated. (2) The Company's Proxy Statement for the Company's 1996 Annual Meeting of Stockholders; provided that only the following portions of such Proxy Statement are incorporated by reference in this Prospectus: "Voting Securities and Stockholders" (pages 2-3), "Election of Directors" (pages 3-4), and "Executive Compensation and Other Matters" (pages 6-14). Portions of the Proxy Statement for the Company's 1996 Annual Meeting of Stockholders not enumerated above are not hereby incorporated. (3) The Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended June 30, 1996 and September 30, 1996. (4) The Company's Current Reports on Form 8-K, filed June 29, 1996 and September 10, 1996. (5) The description of the Company's Common Stock, and the attached Preferred Share Purchase Rights, to be offered hereby, contained in the Company's Registration Statement on Form S-4, dated July 17, 1996 (Registration No. 333-08321), as amended by Post-Effective Amendment No. 1, dated July 19, 1996. -3- 6 (6) All other documents filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act after March 31, 1996 and prior to the date of the exercise of all of the Options. (7) All other documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Prospectus and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in the Prospectus and to be part hereof from the date of filing such documents. Any statement contained in any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any other subsequently filed document which 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 modified or superseded, to constitute a part of this Prospectus. The Company has filed with the Commission a Registration Statement on Form S-4, as amended by Post- Effective Amendment No. 1, and further amended by Post-Effective Amendment No. 2 (herein, together with all amendments and exhibits thereto, referred to as the "Registration Statement") under the Securities Act. The Common Stock has been registered by the Company with the Commission pursuant to the Registration Statement. This Prospectus contains information concerning the Company but does not contain all the information set forth in the Registration Statement, certain parts of which have been omitted in accordance with the rules and regulations of the Commission. The Registration Statement, including various exhibits and schedules, may be inspected at the Commission's office in Washington, D.C. Statements contained in this Prospectus as to the contents of any contract or other document referred to herein are not necessarily complete, and in each instance reference is made to the copy of such contract or other document filed as an exhibit to the Registration Statement, each such statement being qualified in all respects by such reference. THE COMPANY The Company was originally incorporated under the laws of the State of Texas in 1933. On March 27, 1987, it became a Delaware corporation by merger into a wholly-owned subsidiary of the same name. Its mailing address is P.O. Box 568887, Dallas, Texas 75356-8887, its principal executive offices are located at 2525 Stemmons Freeway, Dallas, Texas 75207, and its telephone number at such address is (214) 631-4420. The Company is engaged in the manufacture, marketing and leasing of a variety of products consisting principally of (i) "Railcars" (i.e., railroad freight cars), principally tank cars, hopper cars, gondola cars and intermodal cars and miscellaneous other freight cars; (ii) "Marine Products" such as boats, barges and various offshore service vessels for ocean and inland waterway service and military vessels for the United States Government and, to a limited extent, various size vessels for international transportation companies; (iii) "Construction Products" such as highway guardrail, beams, girders and columns used in construction of highway and railway bridges, highway safety products, passenger loading bridges and conveyor systems for airports and other people and baggage conveyance requirements, ready mix concrete production and distribution, and providing raw materials to owners, contractors and sub-contractors for use in the building and foundation industry; (iv) "Containers" such as (a) extremely large, heavy pressure vessels and other heavy welded products, including industrial silencers, desalinators, evaporators, and gas processing systems, (b) pressure and non-pressure containers for the storage and transportation of liquefied gases, brewery products and other liquid and dry products, and (c) heat transfer equipment for the chemical, petroleum and petrochemical industries; (v) "Metal Components" such as weld fittings (tees, elbows, reducers, caps, flanges, etc.,) used in pressure piping systems and container heads (the ends of pressure and non- pressure containers) for use internally and -4- 7 by other manufacturers of containers; and (vi) "Leasing" of its manufactured railcars and barges to various industries. Further information concerning the Company is incorporated by reference herein as and only to the extent set forth on page 3 hereof. RISK FACTORS RISKS ASSOCIATED WITH RAILCAR SEGMENT Revenues derived from the manufacture and sale of railcars and railcar parts, principally tank cars and freight cars, accounted for approximately 50%, 50% and 41% of the Company's revenues in fiscal years 1996, 1995 and 1994, respectively. Annual production of railcars on an industry-wide basis has widely fluctuated over the past two decades. The period from 1980 - 1988 was negatively impacted by production overcapacity, the United States embargo on the exportation of grain to the Soviet Union and changes in the tax laws regarding investment tax credit and depreciation methods and lives. Since that time, however, the overall use of railroads for freight transportation has increased, industry overcapacity has been reduced and a large number of railcars have reached or neared the end of their useful economic lives. These factors, coupled with relatively strong general economic conditions, have resulted in increased railcar production industry-wide. There can be no assurance, however, that such factors and economic conditions will remain favorable or that significant fluctuations in such factors and conditions will not occur that may have a material adverse affect on the results of operations and financial condition of the Company. The Company markets to three broad categories of customers - railroads, leasing companies, and end users, other than railroads, of railcars who are shippers. Many times the economic factors and conditions motivating one category of customers to acquire railcars may not equally motivate one or both of the other categories of customers to acquire railcars. This factor contributes to the limited predictability of railcar order flows. As a result, there can be no assurance that the Company would not be adversely affected by a temporary shortage of railcar orders. In addition, due to the large size of railcar orders, and variations in the mix of car types ordered, the number and type of railcars produced in any given quarter (as well as the size of the Company's railcar orders) may fluctuate greatly and, consequently, the Company's quarterly revenues and income from operations may vary substantially. The Company's revenues and income from the railcar segment are also subject to the effects of the capital budgeting patterns of its railcar customers. RISKS ASSOCIATED WITH MARINE PRODUCTS SEGMENT The shipbuilding industry is a highly competitive industry. In general, during the 1990's, the U.S. shipbuilding industry has been characterized by substantial excess capacity because of the significant decline in U.S. Navy shipbuilding spending and the difficulties experienced by U.S. shipbuilders in competing successfully for international commercial projects against foreign shipyards, many of which are heavily subsidized by their governments. As a result of these factors, competition by U.S. shipbuilders for domestic commercial projects has remained intense. Such competition has resulted in substantial pressure on pricing, contracts for the construction of vessels are usually awarded on a competitive bid basis. Although the Company believes customers consider, among other things, the availability and technical capabilities of equipment and personnel, efficiency, condition of equipment, safety record and reputation, price competition is currently a primary factor in determining which qualified shipbuilder is awarded a contract. RISKS ASSOCIATED WITH CONSTRUCTION PRODUCTS SEGMENT Demand for the Company's construction products is directly related to activity in the construction industry and general economic conditions. Various economic factors beyond the Company's control affect the markets for its construction products, including the level of new residential, commercial and infrastructure construction -5- 8 activity, which is in turn affected by movement in interest rates, the availability of short- and long-term financing and the availability of public funds for infrastructure projects. ENVIRONMENTAL MATTERS The Company's subsidiaries are subject to comprehensive and frequently changing federal, state and local environmental laws and regulations, including those governing emissions of air pollutants, discharges of wastewater and storm waters, and the disposal of non-hazardous and hazardous waste. The Company anticipates that it may incur additional costs in the future to comply with currently existing laws and regulations, new regulatory requirements arising from recently enacted statutes, particularly those relating to the Clean Air Act Amendments of 1990, and any new statutory requirements. COMPETITION The Company faces competition in each of its segments and has numerous competitors, and some competitors in certain segments are larger and have greater financial resources than the Company. There can be no assurance that the Company will be able to continue to compete successfully in its markets. Because the Company competes, in part, on the technical advantages and cost of its products, significant technical advances by competitors or the achievement by such competitors of improved operating efficiencies that enable them to reduce prices could reduce the Company's competitive advantage and, thereby, adversely affect the Company's business and financial results. -6- 9 THE STOCK OPTIONS Pursuant to the Merger, each share of Transcisco Common Stock issued and outstanding immediately prior to the Effective Time was converted into, exchanged for and represented the right to receive 0.1884 of a share of Company Common Stock (together with the attached Preferred Share Purchase Rights). Prior to the Merger, the Stock Option Agreement represented the right to purchase up to 170,000 shares of Transcisco Common Stock at an exercise price of $0.22 per share. As a result of the Merger, the Stock Option Agreement now represents the right to purchase up to 32,028 shares of Company Common Stock at an exercise price of $1.17 per share. Except for the transactions contemplated pursuant to this Prospectus or the Merger Agreement, to the best knowledge of the Company, there is not, and there has not been in the past three years, any material relationship between the Company and its affiliates, on the one hand, and Tedesco, on the other. PLAN OF DISTRIBUTION The Shares will be offered from time to time to the holder(s) of the Options upon the exercise of such Options at an exercise price of $1.17 per share. USE OF PROCEEDS The net proceeds to the Company from the issuance of shares of the Company Common Stock upon the exercise of the Options (approximately $37,473, assuming the exercise of all the Options) will be used for general corporate purposes. LEGAL MATTERS The legality of the shares of Company Common Stock offered hereby will be passed upon for the Company by Locke Purnell Rain Harrell (A Professional Corporation), Dallas, Texas. EXPERTS The consolidated financial statements and schedule of the Company and its subsidiaries, appearing in or incorporated by reference in the Company's Annual Report on Form 10-K for the fiscal year ended March 31, 1996 have been audited by Ernst & Young LLP, independent auditors, as set forth in their reports thereon incorporated by reference elsewhere herein. Such consolidated financial statements and schedule are incorporated by reference herein in reliance upon such reports given upon the authority of such firm as experts in accounting and auditing. Audited consolidated financial statements and schedules of the Company to be included in subsequently filed documents will be incorporated herein in reliance upon the reports of Ernst & Young LLP pertaining to such financial statements and schedules (to the extent covered by consents filed with the Securities and Exchange Commission) given upon the authority of such firms as experts in accounting and auditing. -7- 10 ================================================================================ NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY SELLING STOCKHOLDER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, ANY SECURITIES TO ANY PERSON IN ANY JURISDICTION WHERE SUCH AN OFFER OR SOLICITATION WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF. TABLE OF CONTENTS
Page ---- Available Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Incorporation of Certain Documents by Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Stock Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
================================================================================ ================================================================================ 32,028 SHARES TRINITY INDUSTRIES, INC. COMMON STOCK -------------------- PROSPECTUS -------------------- December 19, 1996 ================================================================================ 11 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The following table sets forth all expenses in connection with the registration of the shares of Company Common Stock being offered hereby. All amounts are estimates except for the Registration Fee. Registration Fee $ -0- ----------- Legal Fees and Expenses $ 5,000 ---------- Accounting Fees and Expenses $ 1,000 ---------- Miscellaneous Expenses $ 1,000 ---------- Total $ 7,000 ----------
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law (the "DGCL") provides that a corporation may indemnity directors and officers as well as other employees and individuals against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement in connection with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (collectively, a "Proceeding"), and other than an action by or in the right of the corporation (a "derivative action"), if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal Proceeding, had no reason to believe that their conduct was unlawful. With respect to derivative actions, a standard similar to the foregoing is applicable, except that indemnification only extends to expenses (including attorneys' fees) actually and reasonably incurred in connection with the defense or settlement of such action or suit, and court approval is required before there can be any indemnification where the person seeking indemnification has been found to be liable to the corporation. The statute states that it is not to be deemed exclusive of any other rights that may be granted under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise. Under Article VI of the Registrant's Bylaws, the Registrant is to indemnify each person who is or was or has agreed to become a director, officer, employee or agent of the Registrant or is or was serving or has agreed to serve at the request of the Registrant in a similar capacity for another corporation, partnership, joint venture, trust or other enterprise, to the fullest extent authorized or permitted (i) by the DGCL or by any other applicable law or any amendment thereof or (ii) by the Registrant's Certificate of Incorporation. Article VI of the Registrant's Bylaws further states that the Registrant will indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed Proceeding (other than an action by or in the right of the Registrant) by reason of the fact that he is or was or has agreed to become a director, officer, employee or agent of the Registrant, or is or was serving or has agreed to serve at the request of the Registrant as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against costs, charges, expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or on his behalf in connection with such Proceeding and any appeal therefrom, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Registrant, and, with respect to any criminal Proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Registrant, and, with respect to any criminal Proceeding, had reasonable cause to believe that his conduct was unlawful. II-1 12 The Registrant will indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Registrant to procure a judgment in its favor by reason of the fact that he is or was or has agreed to become a director, officer, employee or agent of the Registrant, or is or was serving or has agreed to serve at the request of the Registrant as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against costs, charges and expenses (including attorneys' fees) actually and reasonably incurred by him or on his behalf in connection with the defense or settlement of such action or suit and any appeal therefrom, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Registrant, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Registrant unless and only to the extent that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of such liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such costs, charges and expenses that the Court of Chancery of Delaware or such other court shall deem proper. The indemnification described above (unless ordered by a court) shall be paid by the Registrant unless a determination is made (i) by the Registrant's Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such Proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the Registrant's stockholders, that indemnification of the director, officer, employee or agent is not proper in the circumstances because he has not met the applicable standard of conduct set forth above. To the extent that a director, officer, employee or agent of the Registrant has been successful on the merits or otherwise, including, without limitation, the dismissal of an action, without prejudice, in defense of any Proceeding described above, or in defense of any claim, issue or matter therein, he shall be indemnified against all costs, charges and expenses (including attorneys' fees) actually and reasonably incurred by him or on his behalf in connection therewith. Under the Registrant's Bylaws, the Registrant is to advance expenses to indemnitees to the fullest extent authorized or permitted (i) by the DGCL or by any other applicable law or any amendment thereof or (ii) by the Registrant's Certificate of Incorporation. Article VI of the Registrant's Bylaws provides that costs, charges and expenses (including attorneys' fees) incurred by a person seeking indemnification under Article VI of the Registrant's Bylaws in defending a Proceeding shall be paid by the Registrant in advance of the final disposition of such Proceeding; provided, however, that the payment of such costs, charges and expenses incurred by a director or officer in his capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer) in advance of the final disposition of such Proceeding shall be made only upon receipt of an undertaking by or on behalf of the director or officer to repay all amounts so advanced in the event that it shall ultimately be determined that such director or officer is not entitled to be indemnified by the Registrant. Such costs, charges and expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Registrant's Board of Directors deems appropriate. The Registrant's Board of Directors may, upon approval of such director, officer, employee or agent of the Registrant, authorize the Registrant's counsel to represent such person in any Proceeding, whether or not the Registrant is a party to such Proceeding. The indemnification and advancement of costs, charges and expenses provided by the Registrant's Bylaws shall not be deemed exclusive of any other rights to which a person seeking indemnification or advancement of costs, charges and expenses may be entitled under any law (common or statutory), agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding office or while employed by or acting as agent for the Registrant, and shall continue as to a person who has ceased to be a director, officer, employee or agent as to actions taken while he was such a director, officer, employee or agent, and shall inure to the II-2 13 benefit of the estate, heirs, executors and administrators of such person. Repeal or modification of Article VI of the Registrant's Bylaws or any repeal or modification of relevant provisions of the DGCL or any other applicable laws shall not in any way diminish any rights to indemnification of such director, officer, employee or agent or the obligations of the corporation arising thereunder. Section 102(b) (7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, but excludes specifically liability for any (i) breach of the director's duty of loyalty to the corporation or its stockholders, (ii) acts or omissions not in good faith or involving intentional misconduct or a knowing violation of law, (iii) payments of unlawful dividends or unlawful stock repurchases or redemptions, or (iv) transactions from which the director derived an improper personal benefits. The provision does not limit equitable remedies, such as an injunction or rescission for breach of a director's fiduciary duty of care. The Registrant's Certificate of Incorporation contains a provision eliminating the personal liability of a director from breaches of fiduciary duty, subject to the exceptions described above. The Registrant has entered into Indemnity Agreements with all of its officers and directors that establish contract rights to indemnification substantially similar to the rights to indemnification provided for in the Registrant's Bylaws. The Registrant has in force an officers' and directors' liability insurance policy insuring, up to specified amounts and with specified exceptions, directors, and officers and former directors and officers of the Registrant and its subsidiaries against damages, judgments, settlements and costs for which they are not indemnified by the Registrant that any such persons may become legally obligated to pay on account of claims made against them for any error, misstatement or misleading statement, act or omission, or neglect or breach of duty committed, attempted or allegedly committed or attempted by such persons in the discharge of their duties to the Registrant in their capacities as directors or officers, or any matter claimed against them solely by reason of their serving in such capacities. The officers' and directors' liability insurance policy also insures the Registrant, up to specified amounts and with specified exceptions, against any indemnification payments made by the Registrant to directors and officers and former directors and officers. ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES. (a) EXHIBITS EXHIBIT NUMBER DESCRIPTION **2(a) Stock Option Agreement, dated as of July 17, 1995, by and between Tedesco and Transcisco. 4(a) Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.A to the Registrant's Registration Statement No. 33-10937, filed with the Commission on April 8, 1987). **4(b) Bylaws of the Registrant. 4(c) Specimen Stock Certificate for Common Stock (incorporated by reference to Exhibit 3B to Registrant's Registration Statement No. 33-10937, filed with the Commission on April 8, 1987). II-3 14 4(d) Rights Agreement, dated as of April 11, 1989, by and between the Registrant and NCNB Texas National Bank, as Rights Agent (incorporated by reference to Exhibit 1 to the Registrant's Registration Statement on Form 8-A, filed with the Commission on May 2, 1989). *5 Opinion and Consent of Locke Purnell Rain Harrell (A Professional Corporation) with respect to the legality of the securities being registered hereby. *23(a) Consent of Locke Purnell Rain Harrell (A Professional Corporation) (contained in its opinion included in Exhibit 5 above). **23(b) Consent of Ernst & Young LLP. *24(a) Powers of Attorney. **24(b) Power of Attorney of John L. Adams. **24(c) Power of Attorney of Diana Natalicio. * Previously filed ** Filed Herewith (b) FINANCIAL STATEMENT SCHEDULES Not Applicable. ITEM 17. UNDERTAKINGS The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement, and 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. (2) That, for the purpose of determining any liability under the Securities Act, each post-effective amendment to 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. (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 Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of any 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 as that time shall be deemed to the initial bona fide offering thereof. (5) That, insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and II-4 15 Exchange Commission, such indemnification is against public policy as expressed in the act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. (6) That, for purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective. II-5 16 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing a Post-Effective Amendment to Form S-4 on Form S-3 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 December 19, 1996. TRINITY INDUSTRIES, INC. By: /s/ F. DEAN PHELPS -------------------------------- F. DEAN PHELPS VICE PRESIDENT POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities set forth below on December 19, 1996.
Signature Title --------- ----- (a) Principal Executive Officer /s/ W. RAY WALLACE* Chairman, Chief ------------------------- Executive Officer and W. Ray Wallace Director (b) Principal Financial Officer /s/ JOHN T. SANFORD* Executive Vice President ------------------------- JOHN T. SANFORD (c) Principal Accounting Officer /s/ F. DEAN PHELPS Vice President ------------------------- F. DEAN PHELPS
II-6 17 (d) Other Directors /s/ JOHN L. ADAMS* Director ------------------------- JOHN L. ADAMS /s/ DAVID W. BIEGLER* Director ------------------------- DAVID W. BIEGLER /s/ BARRY J. GALT* Director ------------------------- BARRY J. GALT /s/ CLIFFORD J. GRUM* Director ------------------------- CLIFFORD J. GRUM /s/ DEAN P. GUERIN* Director ------------------------- DEAN P. GUERIN /s/ JESS T. HAY* Director ------------------------- JESS T. HAY /s/ EDMUND M. HOFFMAN* Director ------------------------- EDMUND M. HOFFMAN /s/ DIANA NATALICIO* Director ------------------------- DIANA NATALICIO /s/ TIMOTHY R. WALLACE* Director ------------------------- TIMOTHY R. WALLACE *By:/s/ F. DEAN PHELPS ------------------ F. DEAN PHELPS ATTORNEY-IN-FACT
II-7 18 INDEX TO EXHIBITS
EXHIBIT NUMBER EXHIBIT - ------ ------- 2(a) Stock Option Agreement, dated as of July 17, 1995, by and between Tedesco and Transcisco. 4(b) Bylaws of the Registrant. 23(b) Consent of Ernst & Young LLP. 24(b) Power of Attorney of John L. Adams. 24(c) Power of Attorney of Diana Natalicio.
EX-2.A 2 STOCK OPTION AGREEMENT 1 TRANSCISCO INDUSTRIES EXHIBIT 2(A) STOCK OPTION AGREEMENT 1. Grant of Option For good and valuable consideration, namely, the execution of the Purchase Agreement dated as of July 17, 1995, for a certain Class F Creditor's Claim, Transcisco Industries, Inc. (the "Company") hereby grants to George A. Tedesco (the "Optionee") the irrevocable right and option to purchase 170,000 shares of the Company's common stock (the "Shares") at the price of $.22 per share (the "Exercise Price Per Share"). The option is granted hereby subject to the terms and conditions of this Stock Option Agreement. 2. Expiration Date This option shall expire at the close of business on July 17, 2005 (the "Expiration Date"). 3. Exercisability This option is exercisable in increments of no fewer than 10,000 shares by the Optionee at any time and from time to time following its grant and prior to the close of business on the Expiration Date using the Notice of Exercise of Stock Option attached hereto as Exhibit A. The Optionee shall pay cash for the Shares with respect to which this option is exercised, unless another form of consideration is acceptable to the Company at the time of exercise. 4. Rights as Shareholder Subject to the terms and conditions of this Stock Option Agreement, the Optionee shall have no rights of a shareholder with respect to the Shares until the Optionee has exercised this option. With respect to the Shares as to which the Optionee shall have exercised this Option, the Optionee shall have all of the rights of a shareholder of the Company from and after the date that the Optionee delivers payment of the exercise price until such time as the Optionee disposes of the Shares. 5. Compliance with Laws and Regulations The issuance and transfer of the Shares hereunder shall be subject to and conditioned upon compliance by the Company and the Optionee with all applicable state and federal laws and regulations and with all applicable requirements of any stock exchange on which the Company's common stock may be listed at the time of such issuance and transfer. 6. Successors and Assigns This Stock Option Agreement shall inure to the benefit of the successors and assigns of the Company. This Stock Option Agreement may not be sold, assigned or transferred by Optionee (except by operation of law, and except to the Trustee of a revocable living trust created by the Optionee), without the prior written consent of the Company, which consent shall not be unreasonably withheld, delayed or conditioned. Subject to the foregoing, this Stock Option Agreement shall be binding on the Optionee and the Optionee's heirs, executors, administrators, successors and assigns. 2 7. Interpretation Any dispute regarding the interpretation of this Stock Option Agreement shall be submitted by the Optionee or by the Company to the Board of Directors of the Company, which shall review such dispute at its next regular meeting. The resolution of such a dispute by the Board of Directors shall be final and binding on the Company and on the Optionee. 8. Governing Law; Severability This Stock Option Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding that body of laws pertaining to conflicts of laws. Should any provision of this Stock Option Agreement be determined by a court of law to be illegal or unenforceable, the other provisions shall nevertheless remain effective and shall remain enforceable. 9. Further Instruments The parties agree to execute such further instruments and to take such further action as may be reasonably necessary to carry out the purposes and intent of this Stock Option Agreement. 10. Entire Agreement This Stock Option Agreement, together with the Exhibits hereto constitutes the entire agreement of the parties with respect to the option granted hereby and supersedes all prior understandings and agreements with respect thereto. 11. Notices All notices, requests, demands, and other communications made in connection with this Stock Option Agreement shall be in writing and shall be deemed to have been duly given (i) on the date of delivery, if delivered to the persons identified below, (ii) on the date of receipt by the other party's fax machine, if transmitted by fax to the persons identified below, or (iii) three days after mailing, if mailed by certified mail, return receipt requested, addressed as follows: If to the Company: Transcisco Industries, Inc. Attn: Chief Executive Officer 601 California Street, Suite 1301 San Francisco, CA 94108 Fax No.: (415) 788-0583 with a copy to: Joseph S. Radovsky, Esq. Greene, Radovsky, Maloney & Share Spear Street Tower, Suite 4200 One Market Plaza San Francisco, CA 94105 Fax No.: (415) 777-4961 2 3 If to the Optionee: George A. Tedesco 3851 Little County Road River Wilderness Parrish, FL 34219 Fax No.: (813) 778-2744 With a copy to: James N. Dawe, Esq. McCabe, Schwartz, Evans, Levy & Dawe California Plaza 2121 North California Boulevard, Suite 1010 Walnut Creek, CA 94596 Fax No.: (510) 934-1507 IN WITNESS WHEREOF, the Company and George A. Tedesco have executed this Stock Option Agreement as of July 17, 1995. TRANSCISCO INDUSTRIES, INC. By: /s/ STEVEN L. PEASE ---------------------------------- Steven L. Pease Its President and CEO OPTIONEE: /s/ GEORGE A. TEDESCO ------------------------------------- George A. Tedesco 3 4 EXHIBIT A NOTICE OF EXERCISE OF STOCK OPTION TO: Transcisco Industries, Inc. FROM: George A. Tedesco RE: Exercise of Stock Option Under our Stock Option Agreement dated as of July 17, 1995, I elect to purchase the following shares of common stock of Transcisco Industries, Inc. (the "Company"): Number of shares as to which I am exercising the option at this time: ------------ Total exercise price: $ ------------ Cash payment delivered with this notice: $ ------------ I understand that the shares so purchased may be issued pursuant to one or more exemptions from registration under state and federal law; that transfer will be restricted in the absence of registration and qualification; and, further, that any share certificate issued shall bear a legend restriction against any transfer in the absence of registration and qualification, or an exemption therefrom. I agree to pay to the Company in full the amount of any federal, state, or local income, employment, or other withholding taxes, in any form (including all cash) requested by the Company. Please issue the certificate for the shares purchased as follows: ------------------------------------------------------------------------ . - ------------------------------------ Date: ----------------------- ------------------------------------- George A. Tedesco 4 EX-4.B 3 BYLAWS OF THE REGISTRANT 1 Exhibit 4(b) As Amended December 12, 1996 BYLAWS OF TRINITY INDUSTRIES, INC. ARTICLE I. Offices Section 1. The registered office shall be located in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places within or without the State of Delaware as the Board of Directors may from time to time determine, or as the business of the corporation may require. ARTICLE II. Meetings of Stockholders Section 12. Meetings of the stockholders shall be held in the City of Dallas, County of Dallas, State of Texas. Section 2. The annual meeting of stockholders, commencing in the year 1987, shall be held at 9:30 o'clock in the morning on the third Wednesday in July of each year, unless such day is a legal holiday, in which case such meeting shall be held at the specified time on the first day thereafter which is not a legal holiday. At such meeting, the stockholders entitled to vote thereat shall elect by a plurality vote a Board of Directors. Nominations for election to the Board of Directors shall be made at such meeting only by or at the direction of the Board of Directors, by a nominating committee or person appointed by the Board of 2 Directors, or by a stockholder of the corporation entitled to vote for the election of directors at the meeting who complies with the notice procedures set forth in this Section 2. Such nominations, other than those made by or at the direction of the Board of Directors, shall be made pursuant to timely notice in writing to the Secretary of the corporation. To be timely, a stockholder's notice shall be delivered to, or mailed and received at, the principal executive offices of the corporation not less than fifty (50) days nor more than seventy-five (75) days prior to the date of the meeting; provided, however, that in the event that less than sixty-five (65) days' notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so received not later than the close of business on the fifteenth (15th) day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made. Such stockholder's notice to the Secretary shall set forth (a) as to each person whom the stockholder proposes to nominate for election or re-election as a director, (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class and number of shares of capital stock of the corporation which are beneficially owned by the person, and (iv) any other information relating to the person that is required to be disclosed in solicitations for proxies for election of directors pursuant to Rule 14a under the Securities Exchange Act of 1934, as amended; and (b) as to the stockholder giving the notice, (i) the name and record address of the stockholder and (ii) the class and number of shares of capital stock of the corporation which are beneficially owned by the stockholder. The corporation may require any proposed nominee to furnish such other information as may reasonably be required by the corporation to determine the eligibility of such proposed nominee to serve as director of the corporation. No person shall be eligible for election as a director of the corporation unless nominated in accordance with the procedures set forth herein. The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. 2 3 At each annual meeting of the stockholders, only such business shall be conducted as shall have properly been brought before the meeting. To be properly before the meeting, the business to be conducted must be specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, otherwise properly brought before the meeting by or at the direction of the Board of Directors, or otherwise properly brought before the meeting by a stockholder. In addition to any other applicable requirements, for business to be properly brought before the meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of the corporation. To be timely, a stockholder's notice must be delivered to or mailed and received at the principal executive offices of the corporation not less than fifty (50) days nor more than seventy-five (75) days prior to the meeting; provided, however, that in the event that less than sixty-five (65) days' notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so received not later than the close of business on the fifteenth (15th) day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure was made. A stockholder's notice to the Secretary of the corporation shall set forth as to each matter that the stockholder proposes to bring before the annual meeting, (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and record address of the stockholder proposing such business, (iii) the class and number of shares of the corporation which are beneficially owned by the stockholder, and (iv) any material interest of the stockholder in such business. Notwithstanding the foregoing provisions of this Section 2, a stockholder seeking to have a proposal included in the corporation's proxy statement shall comply with the requirements of Regulation 14A under the Securities Exchange Act of 1934, as amended (including, but not limited to, Rule 14a-8 or its successor provision). Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at the annual meeting except in accordance with the procedures set forth in this Section 2; provided, however, 3 4 that nothing in this Section 2 shall be deemed to preclude discussion by any stockholder of any business properly brought before the annual meeting in accordance with the procedures set forth in this Section 2. The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that the business sought to be so conducted was not properly brought before the meeting in accordance with the provisions of this Section 2, and if he should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. Section 3. Special meetings of the stockholders may be called by the chief executive officer or a majority of the Board of Directors. Section 4. Written or printed notice stating the place, day and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting, either personally or by mail, by or at the direction of the President, the Secretary, or the officer or person calling the meeting, to each stockholder of record entitled to vote at such meeting. Section 5. Business transacted at any special meeting shall be confined to the purposes stated in the notice thereof. Section 6. The holders of a majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at meetings of stockholders except as otherwise provided by any applicable statute. If, however, a quorum shall not be present or represented at any meeting of the stockholders, the stockholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. Section 7. Except as provided in Section 2 hereof with respect to the election of the Board of Directors, at a meeting at which a quorum is present, the vote of the holders of a majority of the shares present in person or represented by proxy at the meeting and entitled to vote shall be the act of the 4 5 stockholders' meeting, unless the vote of a greater number is required by law or the Certificate of Incorporation. Section 8. Each outstanding share, regardless of class, shall be entitled to one vote on each matter submitted to a vote at a meeting of stockholders, except to the extent that the voting rights of the shares of any class are limited or denied by the Certificate of Incorporation. Section 9. At any meeting of the stockholders, every stockholder having the right to vote may vote either in person, or by proxy appointed by an instrument in writing as to a particular meeting and any adjournment or adjournments thereof subscribed by such stockholder or by his duly authorized attorney-in-fact. A proxy shall be revocable unless expressly provided therein to be irrevocable and unless otherwise provided by law. Section 10. The officer or agent having charge of the stock transfer books shall make, at least ten (10) days before each meeting of stockholders, a complete list of the stockholders entitled to vote at such meeting or any adjournment thereof, arranged in alphabetical order, with the address of and number of shares held by each, which list, for a period of ten (10) days prior to such meeting, shall be kept on file at the registered office of the corporation, and shall be subject to inspection by any stockholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting, and shall be subject to the inspection of any stockholder during the whole time of the meeting. The original stock transfer books shall be prima facie evidence as to who are the stockholders entitled to examine such list or transfer book or to vote at any such meeting of stockholders. ARTICLE III. Directors Section 1. The number of directors of the corporation shall be ten (10). The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified; provided, any director may be removed at any time, with or without cause, by the holders of a majority of the shares entitled to vote, 5 6 represented in person or by proxy, at any duly constituted meeting of stockholders called for the purpose of removing any such director or directors. Directors need not be residents of the State of Delaware or stockholders of the corporation. Section 2. Any vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the Board of Directors. A director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in office. Any newly created directorship(s) resulting from an increase in the authorized number of directors elected by all stockholders entitled to vote as a single class shall be filled by the affirmative vote of a majority of the remaining directors, even though less than a quorum of the proposed Board of Directors. Section 3. The business and affairs of the corporation shall be managed by its Board of Directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute, the Certificate of Incorporation, or these Bylaws directed or required to be exercised and done by the stockholders. Section 4. Meetings of the Board of Directors, regular or special, may be held either within or without the State of Delaware. Section 5. The first meeting of each newly elected Board of Directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting, and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time and place of such first meeting of the newly elected Board of Directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the Board of Directors, or as shall be specified in a written waiver signed by all of the directors. 6 7 Section 6. Regular meetings of the Board of Directors may be held at such time and at such place as shall from time to time be determined by the Board. Special meetings of the Board of Directors may be called by the Secretary on the written request of two directors. Section 7. Written notice of regular meetings of the Board of Directors shall not be required. Special meetings of the Board of Directors may be called upon twenty-four (24) hours' notice to each director, or such shorter period of time as the person calling the meeting deems appropriate in the circumstances, either personally or by mail, telephone or telegram. Neither the business to be transacted at, nor the purposes of, any special meeting of the Board of Directors need be specified in the notice or waiver of notice of such special meeting. Section 8. A majority of the directors shall constitute a quorum for the transaction of business, and the act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless a greater number is required by the Certificate of Incorporation. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. The Board of Directors, by resolution adopted by a majority of the whole Board, may designate three or more directors to constitute an executive committee, which committee, unless its authority shall be otherwise expressly limited by such resolution, shall have and may exercise all of the authority of the Board of Directors in the business and affairs of the corporation except where action of the Board of Directors is specified by statute. Vacancies in the membership of the committee shall be filled by the Board of Directors at a regular or special meeting of the Board of Directors. The executive committee shall keep regular minutes of its proceedings and report the same to the Board when required. The designation of such committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed upon it or him by law. ARTICLE IV. 7 8 Notices Section 1. Except as otherwise provided in these Bylaws, notices to directors and stockholders shall be in writing, and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. If mailed, such notice shall be deemed to be given when deposited in the United States mail with postage thereon prepaid. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given to any stockholder or director under the provisions of the statutes, the Certificate of Incorporation or these Bylaws, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. Section 3. Attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened. ARTICLE V. Officers Section 1. The executive officers of the corporation shall consist of a President, one or more Vice Presidents, a Secretary and a Treasurer and may include a Chairman of the Board, one or more Senior Vice Presidents and one or more Executive Vice Presidents, each of whom shall be elected by the Board of Directors. Section 2. The Board of Directors, at its first meeting after each annual meeting of stockholders, shall choose a President, one or more Vice Presidents, a Secretary and a Treasurer, none of whom need be a member of the Board, and may appoint one of their number Chairman of the Board. Section 3. Such other officers and assistant officers and agents as may be deemed necessary may be appointed by the chief executive officer of the corporation, including a Chairman, a President, and one or more Vice Presidents of the respective Divisions. The President or the Vice Presidents of the Division 8 9 who, in the order of their seniority, unless otherwise determined by the chief executive officer of the corporation, shall perform the duties of the Chairman or President, as the case may be, of the Division in the absence or disability of the Chairman or President, as the case may be, of that Division. Each President or Vice President, as the case may be, of a Division shall perform such other duties and have such other powers as the chief executive officer of the corporation or the Chairman or President, as the case may be, of that Division shall prescribe. Division officers shall hold office until their respective successors shall have been chosen and shall have qualified. Any Division officer appointed by the chief executive officer may be removed by the chief executive officer whenever, in his judgment, the best interests of the corporation will be served thereby. Any vacancy occurring in any office of a Division by death, resignation, removal or otherwise shall be filled by the chief executive officer of the corporation. Section 4. The salaries of all executive officers of the corporation shall be fixed by the Board of Directors or by a committee of one or more directors, the members of which shall be selected by the Board of Directors and which, unless its authority shall be otherwise limited by resolution of the Board of Directors, shall have the power to fix the salaries of all executive officers of the corporation. Section 5. The executive officers of the corporation shall hold office until their respective successors shall have been chosen and shall have qualified. Any officer or agent or member of the executive committee elected or appointed by the Board of Directors may be removed by the Board of Directors whenever, in its judgment, the best interests of the corporation will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Any vacancy occurring in any executive office of the corporation by death, resignation, removal or otherwise shall be filled by the Board of Directors. Section 6. The Board of Directors may designate whether the Chairman of the Board, if such an officer shall have been appointed, or the President, shall be the chief executive officer of the corporation. The officer so designated as the chief executive officer shall preside at all meetings of the stockholders and the Board of Directors, and shall have such other powers and duties as usually pertain to such office or as 9 10 may be delegated by the Board of Directors. The President shall have such powers and duties as usually pertain to such office, except as the same may be modified by the Board of Directors. Unless the Board of Directors shall otherwise delegate such duties, the chief executive officer shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. Section 7. The chief executive officer or his designee shall have the authority to execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed, and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the corporation. Section 8. The Vice Presidents, in the order of their seniority, unless otherwise determined by the Board of Directors, shall, in the absence or disability of the President, perform the duties and exercise the powers of the President. The Vice Presidents shall also have the authority to execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed, and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the corporation. The Vice Presidents shall perform such other duties and have such other powers as the Board of Directors or the chief executive officer of the corporation shall prescribe. Section 9. The Secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and shall record all the proceedings of the meetings of the stockholders and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees, when requested. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors and shall perform such other duties as may be prescribed by the Board of Directors or the President, under whose supervision he shall be. He shall keep in safe custody the seal of the corporation, and, when authorized by the Board of Directors or directed by the 10 11 President or any Vice President, affix the same to any instrument requiring it and, when so affixed, it shall be attested by his signature or by the signature of the Treasurer or any Assistant Secretary. Section 10. The Assistant Secretaries, in the order of their seniority, unless otherwise determined by the Board of Directors, shall, in the absence or disability of the Secretary, perform the duties and exercise the powers of the Secretary. They shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. Section 11. The Treasurer shall be the financial officer of the corporation. He shall have the custody of the corporate funds and securities and shall deposit all monies and other valuable effects in the name and to the credit of the corporation in such depositaries as may be designated from time to time by the Board of Directors. He shall disburse the funds of the corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as Treasurer. He shall also perform such other duties as may be assigned to him by the Board of Directors. Section 12. If required by the Board of Directors, the Treasurer shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 13. The Assistant Treasurers, in the order of their seniority, unless otherwise determined by the Board of Directors, shall, in the absence or disability of the Treasurer, perform the duties and exercise the powers of the Treasurer. They shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. 11 12 ARTICLE VI. Indemnification of Directors and Officers Section 1. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was or has agreed to become a director, officer, employee or agent of the corporation, or is or was serving or has agreed to serve at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against costs, charges, expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or on his behalf in connection with such action, suit or proceeding and any appeal therefrom, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. Section 2. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was or has agreed to become a director, officer, employee or agent of the corporation, or is or was serving or has agreed to serve at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against costs, charges and expenses (including attorneys' fees) actually and reasonably incurred by him or on his behalf in connection with the defense or settlement of such action or 12 13 suit and any appeal therefrom, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of such liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such costs, charges and expenses which the Court of Chancery or such other court shall deem proper. Section 3. Notwithstanding the other provisions of this Article, to the extent that a director, officer, employee or agent of the corporation has been successful on the merits or otherwise, including, without limitation, the dismissal of an action without prejudice, in defense of any action, suit or proceeding referred to in Sections 1 and 2 of this Article, or in defense of any claim, issue or matter therein, he shall be indemnified against all costs, charges and expenses (including attorneys' fees) actually and reasonably incurred by him or on his behalf in connection therewith. Section 4. Any indemnification under Sections 1 and 2 of this Article (unless ordered by a court) shall be paid by the corporation unless a determination is made (1) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the stockholders, that indemnification of the director, officer, employee or agent is not proper in the circumstances because he has not met the applicable standard of conduct set forth in Sections 1 and 2 of this Article. Section 5. Costs, charges and expenses (including attorneys' fees) incurred by a person referred to in Sections 1 and 2 of this Article in defending a civil or criminal action, suit or proceeding shall be paid by the corporation in advance of the final disposition of such action, suit or proceeding; provided, however, that the payment of such costs, charges and expenses incurred by a director or officer in his 13 14 capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer) in advance of the final disposition of such action, suit or proceeding shall be made only upon receipt of an undertaking by or on behalf of the director or officer to repay all amounts so advanced in the event that it shall ultimately be determined that such director or officer is not entitled to be indemnified by the corporation as authorized in this Article. Such costs, charges and expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board of Directors deems appropriate. The Board of Directors may, in the manner set forth above, and upon approval of such director, officer, employee or agent of the corporation, authorize the corporation's counsel to represent such person, in any action, suit or proceeding, whether or not the corporation is a party to such action, suit or proceeding. Section 6. Any indemnification under Sections 1, 2 and 3, or advance of costs, charges and expenses under Section 5 of this Article, shall be made promptly, and in any event within 60 days, upon the written request of the director, officer, employee or agent. The right to indemnification or advances as granted by this Article shall be enforceable by the director, officer, employee or agent in any court of competent jurisdiction, if the corporation denies such request, in whole or in part, or if no disposition thereof is made within 60 days. Such persons' costs and expenses incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such action shall also be indemnified by the corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for the advance of costs, charges and expenses under Section 5 of this Article where the required undertaking, if any, has been received by the corporation) that the claimant has not met the standard of conduct set forth in Sections 1 or 2 of this Article, but the burden of proving such defense shall be on the corporation. Neither the failure of the corporation (including its Board of Directors, its independent legal counsel, and its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in Sections 1 or 2 of this Article, nor the fact that there has been an actual 14 15 determination by the corporation (including its Board of Directors, its independent legal counsel, and its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. Section 7. The indemnification and advancement of costs, charges and expenses provided by this Article shall not be deemed exclusive of any other rights to which a person seeking indemnification or advancement of costs, charges and expenses may be entitled under any law (common or statutory), agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding office or while employed by or acting as agent for the corporation, and shall continue as to a person who has ceased to be a director, officer, employee or agent as to actions taken while he was such a director, officer, employee or agent, and shall inure to the benefit of the estate, heirs, executors and administrators of such person. All rights to indemnification under this Article shall be deemed to be a contract between the corporation and each director, officer, employee or agent of the corporation who serves or served in such capacity at any time while this Article is in effect. Any repeal or modification of this Article or any repeal or modification of relevant provisions of the Delaware General Corporation Law or any other applicable laws shall not in any way diminish any rights to indemnification of such director, officer, employee or agent or the obligations of the corporation arising hereunder. Section 8. In addition to the specific indemnification provided for herein, the corporation shall indemnify each person who is or was or has agreed to become a director, officer, employee or agent of the corporation, or is or was serving or has agreed to serve at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, to the fullest extent authorized or permitted (i) by the General Corporation Law of Delaware, or any other applicable law, or by any amendment thereof or other statutory provisions in effect on the date hereof, or (ii) by the corporation's Certificate of Incorporation as in effect on the date hereof. The corporation shall also advance expenses to any of the foregoing individuals to the fullest extent authorized or permitted (i) 15 16 by the General Corporation Law of Delaware, or any other applicable law, or by any amendment thereof or other statutory provision in effect on the date hereof, or (ii) by the corporation's Certificate of Incorporation as in effect on the date hereof. Section 9. Notwithstanding the foregoing, the corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was or has agreed to become a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him or on his behalf in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of this Article. Section 10. If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each director, officer, employee and agent of the corporation as to costs, charges and expenses (including attorneys' fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including an action by or in the right of the corporation, to the full extent permitted by any applicable portion of this Article that shall not have been invalidated and to the full extent permitted by applicable law. ARTICLE VII. Certificates for Shares Section 1. The corporation shall deliver certificates representing all shares to which stockholders are entitled; and such certificates shall be signed by the President or a Vice President, and the Secretary or an Assistant Secretary of the corporation, and may be sealed with the seal of the corporation or a facsimile thereof. No certificate shall be issued for any share until the consideration therefor has been fully paid. Each certificate representing shares shall state upon the face thereof that the corporation is organized under the laws of the State of Delaware, the name of the person to whom issued, the number and class 16 17 and the designation of the series, if any, which such certificate represents, and the par value of each share represented by such certificate or a statement that the shares are without par value. Section 2. The signatures of the President or Vice President, and the Secretary or Assistant Secretary, upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of the issuance. Section 3. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost or destroyed. Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate, and record the transaction upon its books. Section 5. For the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend, or in order to make a determination of stockholders for any other proper purpose, the Board of Directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, 17 18 sixty (60) days. If the stock transfer books shall be closed for the purpose of determining stockholders entitled to notice of or to vote at a meeting of stockholders, such books shall be closed for at least ten (10) days immediately preceding such meeting. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for any such determination of stockholders, such date in any case to be not more than sixty (60) days, and, in case of a meeting of stockholders, not less than ten (10) days prior to the date on which the particular action requiring such determination of stockholders is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of stockholders entitled to notice of or to vote at a meeting of stockholders or any adjournment thereof, or stockholders entitled to receive payment of a dividend, or in order to make a determination of stockholders for any other proper purpose, the close of business on the day next preceding the day on which notice of the meeting of stockholders is given shall be the record date with respect to such meeting, and the close of business on the day on which the Board of Directors adopts a resolution declaring a dividend or with respect to any other proper purpose, as the case may be, shall be the record date for the determination of stockholders with respect thereto. When a determination of stockholders entitled to vote at any meeting of stockholders has been made as provided in this section, such determination shall apply to any adjournment thereof, except where the determination has been made through the closing of stock transfer books and the stated period of closing has expired. Section 6. The corporation shall be entitled to recognize the exclusive rights of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware. 18 19 ARTICLE VIII. General Provisions Section 1. The Board of Directors may declare and the corporation may pay dividends on its outstanding shares in cash, property, or its own shares pursuant to law and subject to the provisions of its Certificate of Incorporation. Section 2. The Board of Directors may by resolution create a reserve or reserves out of earned surplus for any purpose or purposes, and may abolish any such reserve in the same manner. Section 3. The Board of Directors must, when requested by the holders of at least one-third of the outstanding shares of the corporation, present written reports of the business and financial affairs of the corporation. Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate as provided in these bylaws. Section 5. The fiscal year of the corporation shall be fixed by resolution of the Board of Directors. Section 6. The corporate seal shall have inscribed thereon the name of the corporation and may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced. ARTICLE IX. Amendments These Bylaws may be altered, amended or repealed at any regular or special meeting of, or by the unanimous written consent of, the Board of Directors. 19 EX-23.B 4 CONSENT OF ERNST & YOUNG LLP 1 EXHIBIT 23(b) CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in the Post-Effective Amendment No. 2 on Form S-3 to the Registration Statement on Form S-4 and related Prospectus of Trinity Industries, Inc. for the registration of 32,028 shares of its common stock and to the incorporation by reference therein of our reports dated May 9, 1996, with respect to the consolidated financial statements of Trinity Industries, Inc. incorporated by reference in its Annual Report (Form 10-K) for the year ended March 31, 1996, and the related financial statement schedule included therein, filed with the Securities and Exchange Commission. ERNST & YOUNG LLP DALLAS, TEXAS DECEMBER 17, 1996 EX-24.B 5 POWER OF ATTORNEY OF JOHN L. ADAMS 1 EXHIBIT 24(b) POWER OF ATTORNEY Know all men by these presents, that the person whose signature appears below constitutes and appoints W. Ray Wallace, John T. Sanford and F. Dean Phelps, and each of them, his attorneys-in-fact for him in any and all capacities, to sign the Post-Effective Amendment No. 2 on Form S-3 to the Registration Statement on Form S-4 for Trinity Industries, Inc., dated on or after December 18, 1996 (the "Registration Statement") and any and all amendments (including additional Post-Effective Amendments) to such Registration Statement, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as might or could be done in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his substitute or substitutes, may do or cause to be done by virtue hereof. /s/ JOHN L. ADAMS Date: December 18, 1996 - ----------------- John L. Adams EX-24.C 6 POWER OF ATTORNEY OF DIANA NATALICIO 1 EXHIBIT 24(c) POWER OF ATTORNEY Know all men by these presents, that the person whose signature appears below constitutes and appoints W. Ray Wallace, John T. Sanford and F. Dean Phelps, and each of them, her attorneys-in-fact for her in any and all capacities, to sign the Post-Effective Amendment No. 2 on Form S-3 to the Registration Statement on Form S-4 for Trinity Industries, Inc., dated on or after December 18, 1996 (the "Registration Statement") and any and all amendments (including additional Post-Effective Amendments) to such Registration Statement, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as might or could be done in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his substitute or substitutes, may do or cause to be done by virtue hereof. /s/ DIANA NATALICIO Date: December 18, 1996 - --------------------- Diana Natalicio -----END PRIVACY-ENHANCED MESSAGE-----