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AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT NO. 1 TO RIGHTS AGREEMENT (this "AMENDMENT") dated as of
August 13, 2001 by and between TRINITY INDUSTRIES, INC., a Delaware corporation
(the "COMPANY"), and THE BANK OF NEW YORK (the "RIGHTS AGENT").
WHEREAS, the Company and the Rights Agent have previously entered into
that certain Rights Agreement, dated as of March 11, 1999 (the "AGREEMENT");
WHEREAS, Section 27 (Supplements and Amendments) of the Agreement
provides, in part, that for so long as the Rights (as defined in the Agreement)
are redeemable, the Agreement may be supplemented or amended without the
approval of any holders of certificates representing shares of Common Stock (as
defined in the Agreement);
WHEREAS, the Rights are currently redeemable; and
WHEREAS, the Board of Directors of the Company has approved, and has
authorized the execution and delivery by the Company, of an Agreement and Plan
of Merger dated as of August 13, 2001, by and among the Company, TCMC
Acquisition Corp., an Illinois corporation and a wholly owned subsidiary of the
Company ("MERGER SUB"), Thrall Car Management Company, Inc., a Delaware
corporation ("NEWCO"), and Thrall Car Manufacturing Company, an Illinois
corporation and wholly owned subsidiary of Newco ("THRALL"), and in connection
therewith the Board of Directors of the Company has determined in good faith
that the amendments to the Agreement set forth herein are desirable and,
pursuant to Section 27 (Supplements and Amendments) of the Agreement, has duly
authorized such amendments to the Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
Section 1. Amendment to Section 1 of the Agreement. Section 1 of the
Agreement is hereby amended to add the following definitions:
(pp) "Newco" shall mean Thrall Car Management Company, Inc., a
Delaware corporation.
(qq) "Merger" shall have the meaning set forth in the Merger
Agreement.
(rr) "Merger Agreement" shall mean the Agreement and Plan of
Merger dated as of August 13, 2001, by and among the Company, Merger
Sub, Newco and Thrall, as the same may be amended from time to time in
accordance with its terms.
(ss) "Merger Sub" shall mean TCMC Acquisition Corp., an
Illinois corporation.
(tt) "Newco Stockholder" shall mean a record or Beneficial
Owner of voting securities of Newco.
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(uu) "Thrall" shall mean Thrall Car Manufacturing Company, an
Illinois corporation.
Section 2. Restatement of the Definition of "Acquiring Person". The
definition of "Acquiring Person" set forth in Section 1(a) of the Agreement is
hereby deleted in its entirety and replaced with the following definition:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner (as such term is hereinafter defined) of 12% or
more of the shares of Common Stock then outstanding, but shall not
include (i) the Company, (ii) any Subsidiary of the Company, (iii) any
employee benefit plan of the Company or of any Subsidiary of the
Company, or any Person or entity organized, appointed or established by
the Company for or pursuant to the terms of any such plan, or (iv) any
Person who becomes an Acquiring Person solely as a result of a
reduction in the number of shares of Common Stock outstanding due to
the repurchase of shares of Common Stock by the Company, unless and
until such Person shall purchase or otherwise become (as a result of
action taken by such Person or its Affiliates or Associates) the
Beneficial Owner of additional shares of Common Stock constituting 1%
or more of the then outstanding shares of Common Stock. Notwithstanding
the foregoing, (i) (A) Newco shall only be an Acquiring Person when
Newco, alone or together with all Affiliates and Associates of Newco,
shall be the Beneficial Owner of more than 20% of the shares of Common
Stock then outstanding (after including the shares of Common Stock
acquired, or subject to acquisition by Newco under or pursuant to the
Merger Agreement), and (B) a Newco Stockholder shall only become an
"Acquiring Person" when Newco and the Newco Stockholders, alone or
together with all Affiliates and Associates of Newco and the Newco
Stockholders, shall be the Beneficial Owner of more than 20% of the
Shares of Common Stock then outstanding (after including the shares of
Common Stock acquired, or subject to acquisition by Newco under or
pursuant to the Merger Agreement) and (ii) any Person (including Newco
or a Newco Stockholder) who becomes an Acquiring Person solely as a
result of a reduction in the number of shares of Common Stock
outstanding due to the repurchase of shares of Common Stock by the
Company shall be deemed not to be an Acquiring Person, unless and until
any such Person purchases or otherwise becomes (as a result of action
taken by such Person or its Affiliates or Associates) the Beneficial
Owner of additional shares of Common Stock constituting 1% or more of
the then outstanding shares of Common Stock. Notwithstanding the
foregoing, if (i) the Board of Directors of the Company determines in
good faith that a Person who would otherwise be an Acquiring Person, as
defined pursuant to the foregoing provisions of this paragraph, has
become such inadvertently (including, without limitation, because (A)
such Person was unaware that it beneficially owned a percentage of
Common Stock that would otherwise cause such Person to be an Acquiring
Person, or (B) such Person was aware of the extent of its Beneficial
Ownership of Common Stock but had no actual knowledge of the
consequences of such Beneficial Ownership under this Agreement) and
without any intention of changing or influencing control of the Company
and (ii) within ten Business Days of being requested by the Company to
advise it regarding the same, such Person certifies to the Company that
such Person acquired shares of Common Stock in excess of 11.99%
inadvertently or without knowledge of the terms of the Rights and who,
together with all Affiliates and Associates, thereafter does not
acquire additional shares of Common Stock and within ten Business Days
of being requested by the
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Company to do so disposes of the portion of such Common Stock in excess
of 11.99%, then such Person shall not be deemed to be or to have become
an Acquiring Person for any purposes of this Agreement; provided,
however, that if the Person requested to so certify fails to dispose of
such Common Stock in excess of 11.99% within ten Business Days of the
Company's request, then such Person shall become an Acquiring Person
immediately after such ten Business Day period.
Section 3. Effectiveness. This Amendment shall be effective as of
August 13, 2001, as if executed by both parties on such date. Except as
expressly amended by this Amendment, the Agreement shall remain in full force
and effect, and all references to the Agreement from and after such time shall
be deemed to be references to the Agreement as amended hereby.
Section 4. Governing Law. This Amendment shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes shall
be governed by and construed in accordance with the laws of such state
applicable to contracts made and to be performed entirely within such state.
Section 5. Counterparts. This Amendment may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
Section 6. Severability. If any term, provision, covenant or
restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
Section 7. Descriptive Headings. Descriptive headings of the several
Sections of this Amendment are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions of this
Amendment.
Section 8. Exhibits. Exhibits 2 and 3 to the Agreement are hereby
deemed to be amended in a manner consistent with this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to Rights Agreement to be duly executed as of the day and year first above
written.
Attest: TRINITY INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxx
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Name: Xxxxxxx X. Xxxxxxx Name: Xxxx X. Xxx
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Title: Vice President, General Title: Vice President, Business
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Counsel and Secretary Development
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THE BANK OF NEW YORK
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxx Xxxxxx
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Name: Xxxxxx Xxxxx Name: Xxxxx Xxxxxx
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Title: Assistant Secretary Title: Vice President
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