EXHIBIT 10.13
AMENDED AND RESTATED
DEFERRED COMPENSATION PLAN AND AGREEMENT
AS OF DECEMBER 12, 2001
THIS PLAN AND AGREEMENT made and entered into as of the 12th day of December
2001, between TRINITY INDUSTRIES, INC., a Delaware Corporation with its
principle office at 0000 Xxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000 (hereinafter
called the "Company") and _______________, an individual (hereinafter called
"Officer");
WITNESSETH:
WHEREAS, Officer is in the employ of the Company and serves in a
capacity which will develop and expand the business of the Company; and
WHEREAS, in recognition of Officer's valued services as an employee
and officer of the Company, and as an inducement to Officer to continue to serve
the Company in the future, the Company desires to provide certain benefits for
Officer and his designated beneficiary through a plan of deferred compensation,
as hereinafter set forth; and
WHEREAS, Officer is willing to remain in the employ of the Company and
to have the Company defer a portion of his annual compensation in order to
provide such benefits, as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the terms,
conditions and covenants hereinafter set forth, The Company and Officer hereby
agree as follows:
1. Deferred Compensation Account. The Company shall establish an
account on the books of the Company in the name of Officer to which will be
accrued deferred compensation in an amount equal to ten percent (10%) of
Officer's combined annual base salary and incentive compensation, payable in the
manner and subject to the conditions hereinafter set forth. Base salary is
defined as that amount specifically approved by the Company as base salary and
excludes other payments such as car allowance, insurance reimbursements, etc.
Incentive compensation shall mean all amounts earned under a specific plan for a
given year whether payable currently or over a period of future years. Credits
to such account will accrue annually, at the rate of ten per cent (10%) of
Officers combined annual base salary and incentive compensation, commencing with
the Officer's hire date, _______________ and, subject to the annual review of
this Plan by the Human Resources Committee of the Board of Directors of the
Company, continuing in like matter for each of the Company's fiscal years
thereafter for so long as Officer shall continue his active, full-time
employment with the Company.
2. Administration of Account. The Company shall have the right to
segregate from the other general assets of the Company the sums which accrue
monthly hereunder as deferred compensation. Officer's deferred compensation
account shall be credited with interest at the prime rate as published by Chase
Bank of Texas, N.A. or its successor until January 1, 2002, at which time
Officer's deferred compensation account shall be credited with interest at the
LIBOR rate plus 6 points as published by the Wall Street Journal. Neither
Officer or his designated
beneficiary shall at any time have any interest in accrued sums which are so
segregated and/or invested and reinvested, and such funds, as they are from time
to time constituted, shall at all times remain assets of the Company subject to
the claims of the general creditors of the Company.
3. Payment of Deferred Compensation. Subject to the conditions
hereinafter set forth, the deferred compensation accrued hereunder and shown to
Officer's credit on the books of the Company shall be payable upon the
termination of the active, full-time employment of Officer for any reason
whatsoever, and shall be paid in such form as Officer may elect from the
following two alternatives:
(i) Payment may be made in annual periodic payments for
specified number of years, not fewer than 1 nor in
excess of 20, with the first payment to be made one
(1) year and one (1) day from the date in which
Officer's termination occurs and subsequent payments
to be made on the same date of each succeeding year,
where the payment made during each year shall be in
an amount equal to a fraction of the amount shown to
Officer's credit on the books of the Company as of
the last day of the month preceding the month in
which the payment is made, and where such fraction
for each payment shall be one (1) divided by the
number of payments remaining (including the current
payment). Notwithstanding the preceding, at any time
prior to receipt of all remaining installments under
this paragraph, Officer (of Officer's beneficiary in
the event of Officer's death) may elect a lump sum
payment in an amount equal to the total amount
remaining shown to Officer's credit on the books of
the Company as of the last day of the month preceding
the month in which the election is made, minus a
forfeiture amount equal to 10% of such total amount.
(ii) Complete payment may be made in a lump sum paid on
the first day of the month following the date of
Officer's termination of employment.
Officer's election pursuant to this paragraph must be made as of the effective
date of this Amendment and Restatement and, except as provided below, shall be
irrevocable. In the absence of an election, payment shall be made in the form of
annual periodic payments over a period of 20 years. Officer may change his or
her distribution election once during any calendar year with the new election to
be effective only in the event that the date of Officer's termination of
employment with the Company is at least 12 months after the date of the new
election. All payments shall be paid to Officer if living, or if not living, to
his designated beneficiary or, upon failure to make such designation or if the
designated beneficiary shall predecease Officer, to Officer's estate.
Notwithstanding the foregoing, in the event that Officer's termination of
employment with the Company occurs on or within two years after a "Change in
Control" of the Company, the amount to the credit of Officer will be distributed
to Officer either in a lump sum or in annual installments not exceeding five (5)
years, whichever is elected by Officer as of the effective date of this
Agreement. In the absence of an election, payment shall be made in a lump sum
within
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five days of termination following a "Change in Control." Officer may change
this election at any time with the new election to be effective only in the
event that the termination of employment with the Company is at least 12 months
after the date of the new election. If installment payments are elected, the
method of distribution shall be similar to the method described for installment
payments under the preceding paragraph.
For purposes hereof, a "Change in Control" of the Company shall be
deemed to have occurred if the event set forth in any one of the
following paragraphs shall have occurred:
(I) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company
(not including in the securities beneficially owned
by such Person any securities acquired directly from
the Company or its affiliates) representing 30% or
more of the combined voting power of the Company's
then outstanding securities, excluding any Person who
becomes such a Beneficial Owner in connection with a
transaction described in clause (i) of paragraph
(III) below; or
(II) the following individuals cease for any reason to
constitute a majority of the number of directors then
serving: individuals who, on the date of the
Agreement, constitute the Board of Directors of the
Company and any new director (other than a director
whose initial assumption of office is in connection
with an actual or threatened election contest,
including but not limited to a consent solicitation,
relating to the election of directors of the Company)
whose appointment or election by the Board of
Directors of the Company or nomination for election
by the Company's stockholders was approved or
recommended by a vote of at least two-thirds (2/3) of
the directors then still in office who either were
directors on the date of the Agreement, or whose
appointment, election or nomination for election was
previously so approved or recommended; or
(III) there is consummated a merger or consolidation of the
Company or any direct or indirect subsidiary of the
Company with any other corporation, other than (i) a
merger or consolidation which would result in the
voting securities of the Company outstanding
immediately prior to such merger or consolidation
continuing to represent (either by remaining
outstanding or by being converted into voting
securities of the surviving entity or any parent
thereof) at least 60% of the combined voting power of
the securities of the Company or such surviving
entity or any parent thereof outstanding immediately
after such merger or consolidation, or (ii) a merger
or consolidation effected to implement a
recapitalization of the Company (or similar
transaction) in which no Person is or becomes the
Beneficial Owner, directly or indirectly, of
securities of the Company (not including in the
securities Beneficially Owned by such person any
securities acquired directly from the Company or its
Affiliates other than in connection with the
acquisition by the Company or its affiliates of a
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business) representing 30% or more of the combined
voting power of the Company's then outstanding
securities; or
(IV) the stockholders of the Company approve a plan of
complete liquidation or dissolution of the Company or
there is consummated an agreement for the sale or
disposition by the Company of all or substantially
all of the Company's assets, other than a sale or
disposition by the Company of all or substantially
all of the Company's assets to an entity, at least
60% of the combined voting power of the voting
securities of which are owned by stockholders of the
Company in substantially the same proportions as
their ownership of the Company immediately prior to
such date.
For purposes hereof:
"Affiliate" shall have the meaning set forth in Rule 12b-2 promulgated
under Section 12 of the Exchange Act.
"Beneficial Owner" shall have the meaning set forth in Rule 13d-3 under
the Exchange Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Person" shall have the meaning given in Section 3(a)(9) of the
Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof,
except that such term shall not include (i) the Company or any of its
subsidiaries, (ii) a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any of its Affiliates,
(iii) an underwriter temporarily holding securities pursuant to an
offering of such securities, or (iv) a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company.
4. Conditions. The payment of deferred compensation to Officer, as
hereinabove provided, shall be subject to the following conditions, the breach
of either of which shall cause the forfeiture of all rights in and to any and
all amounts of deferred compensation remaining unpaid upon the date of any such
breach:
a. Commencing with the date of termination of the active,
full-time employment of Officer and continuing until all payments
hereunder have been made in full, Officer shall not, directly or
indirectly, become or serve as an officer, employee, owner or partner
of any business which competes in a material manner with the Company,
without prior written consent of the Company.
b. Commencing with the date of termination of the active,
full-time employment of Officer and continuing until all payments
hereunder have been made in full, Officer shall be available for
consultation in respect of matters pertaining to the business and
financial affairs of the Company, upon the request of the Company and
at
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such reasonable and convenient times and places and for such
compensation therefor as may be mutually agreed upon.
Notwithstanding the foregoing, the conditions set forth in a. and b. above shall
be of no force and effect from and after the occurrence of a Change in Control
(as defined above).
5. Death. In the event of Officer's death prior to the receipt of any
or all of the installments of deferred compensation, such installments as are
then unpaid shall be paid to the beneficiary or beneficiaries designated in
writing and filed with the Secretary, of the Company by Officer during his
lifetime or, upon failure to make such designation or if such designee or
designees shall have predeceased Officer, then to Officer's estate. Officer
shall have the right to change the beneficiary designation from time to time by
instrument in writing delivered to the Secretary of the Company.
6. Nonassignability. Officer during his lifetime, and his designated
beneficiary or beneficiaries, after his death, shall not be entitled to commute,
encumber, sell or otherwise dispose of his or their rights to receive the
deferred compensation provided for herein, and the right thereto shall be
nonassignable and nontransferable and shall not be subject to execution,
attachment or similar process.
7. Participation in Other Plans. Nothing herein contained shall in any
manner modify, impair or effect the existing or future rights or interests of
Officer to receive any employee benefits to which he is or would otherwise be
entitled, or as a participant in the present or any future incentive bonus plan,
stock option plan or pension or profit sharing plan of the Company.
8. Benefit. This Agreement shall be binding upon and inure to the
benefit of any successor of the Company, including any person, firm, corporation
or other entity which, by merger, consolidation, purchase or otherwise, acquires
all or substantially all of the assets or business of the Company.
9. Amendment or Termination. This Agreement may be amended or
terminated in whole or in part by mutual written agreement of the parties
hereto.
10. Election. Officer hereby elects, pursuant to paragraph 3 hereof, to
receive payment hereunder after termination not following a "Change in Control"
as follows:
[ ] in annual installments (choose from 1 to 20) over a
period of __________ years, or
[ ] in a lump sum
Officer hereby elects, pursuant to paragraph 3 hereof, to receive payment
hereunder after termination within two years following a "Change in Control" as
follows:
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[ ] in annual installments (choose from 1-5) over a period of
_________ years, or
[ ] in a lump sum
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the day and year first hereinabove written.
TRINITY INDUSTRIES, INC.
By:
--------------------------
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Officer
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