Trinity Industries, Inc. Underwriting Agreement
Exhibit
1.01
Trinity Industries, Inc.
June 1, 2006
X.X. Xxxxxx Securities Inc.
Banc of America Securities LLC
Wachovia Capital Markets, LLC
For themselves and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
Banc of America Securities LLC
Wachovia Capital Markets, LLC
For themselves and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
c/o
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
and
Wachovia Capital Markets, LLC
000 Xxxx Xxxxxx
Xxx Xxxx XX 00000
000 Xxxx Xxxxxx
Xxx Xxxx XX 00000
Ladies and Gentlemen:
Trinity Industries, Inc. (the “Company”) proposes, subject to the terms and conditions stated
herein, to issue and sell to the several Underwriters listed in Schedule 1 hereto (the
“Underwriters”), for whom you are acting as representatives (the “Representatives”), $450,000,000
principal amount of its 3 7/8% Convertible Subordinated Notes due 2036 (the “Firm Securities”) to
be issued pursuant to the provisions of an Indenture dated as of June 1, 2006 (the “Indenture”)
between the Company and Xxxxx Fargo Bank, National Association, as Trustee (the “Trustee”) and, at
the option of the Underwriters, to cover over-allotments, if any, up to an additional $50,000,000
principal amount of its 3 7/8% Convertible Subordinated Notes due 2036 (the “Option Securities”).
The Firm Securities and the Option Securities are hereinafter collectively referred to as the
“Securities”. The Securities will be convertible into shares (the “Underlying Securities”) of
common stock of the Company, par value $1.00 per share (the “Common Stock”). The Common Stock,
including the Underlying Securities, will have attached thereto rights (the “Rights”) to purchase
Series A Junior Participating Preferred Stock. The Rights are to be issued pursuant to a Rights
Agreement (the “Rights Agreement”) dated as of March 11, 1999 between the Company and American
Stock Transfer and Trust Company, as rights agent, as amended.
1. (a) The Company represents and warrants to, and agrees with the Underwriters that:
(i) An “automatic shelf registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”) on Form S-3 (File No. 333-134596) in respect
of the Securities, the Underlying Securities, and the Rights (collectively, the “Registered
Securities”) has been filed with the Securities and Exchange Commission (the “Commission”);
such registration statement and any post-effective amendment thereto became effective on
filing; and no stop order suspending the effectiveness of such registration statement or any
part thereof has been issued and no proceeding for that purpose or pursuant to Section 8A of
the Act against the Company or related to the offering has been initiated or, to the
Company’s knowledge, threatened by the Commission and no notice of objection of the
Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act or otherwise has been received by the Company as of
the applicable effective date of the Registration Statement and any amendment thereto (each
as defined below) (the prospectus filed as part of such Registration Statement, in the form
in which it has most recently been filed with the Commission on or prior to the date of this
Agreement, is hereinafter called the “Preliminary Prospectus”; the various parts of such
registration statement, including all exhibits thereto but excluding the Form T-1 and
including any prospectus supplement relating to the Registered Securities that is filed with
the Commission and deemed by virtue of Rule 430A, 430B or 430C under the Act to be part of
such registration statement, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the “Registration
Statement”; the form of the final prospectus relating to the Registered Securities, filed
with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, is hereinafter called the “Prospectus”; any reference herein to the Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the
date of such prospectus; any reference to any amendment or supplement to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any post-effective amendment to the Registration Statement, any prospectus
supplement relating to the Registered Securities filed with the Commission pursuant to Rule
424(b) under the Act and any documents filed under the Securities Exchange Act of 1934, as
amended and the rules and regulations of the Commission thereunder (collectively, the
“Exchange Act”), and deemed to be incorporated by reference therein, in each case after the
date of the Registration Statement, the Preliminary Prospectus or the Prospectus, as the
case may be, or “supplement” with respect to documents and any “issuer free writing
prospectus” as defined in Rule 433 under the Act relating to the Registered Securities is
hereinafter called an “Issuer Free Writing Prospectus”;
(ii) No stop order preventing or suspending the use of the Preliminary Prospectus or
any Issuer Free Writing Prospectus has been issued by the Commission, and the Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission thereunder, and did
not contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by the
Underwriters expressly for use therein;
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(iii) For the purposes of this Agreement, the time when sales of the Securities were
first made, (the “Applicable Time”), is 4:35 pm (Eastern time) on the date of this
Agreement. At or prior to the Applicable Time, the Company had prepared the following
information (collectively with the pricing information set forth on Annex A and the press
release set forth on Annex B, the “Time of Sale Information”): a Preliminary Prospectus
dated May 31, 2006. The Time of Sale Information, as of the Applicable Time, did not and as
of the Closing Date and Additional Closing Date, as the case may be, will not include any
untrue statement of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that this representation and warranty shall not apply to
statements or omissions made in the Time of Sale Information in reliance upon and in
conformity with information furnished in writing to the Company by the Underwriters
expressly for use therein. No statement of material fact included in the Prospectus has
been omitted from the Time of Sale Information and no statement of material fact included in
the Time of Sale Information that is required to be included in the Prospectus has been
omitted therefrom;
(iv) Other than the Time of Sale Information and the Prospectus, the Company (including
its agents and representatives, other than the Underwriters in their capacity as such) has
not made, used, prepared, authorized, approved or referred to and will not prepare, make,
use, authorize, approve or refer to any “written communication” (as defined in Rule 405
under the Securities Act) other than any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act.
(v) The documents incorporated by reference in the Registration Statement, the
Prospectus or the Time of Sale Information, when they became effective or were filed with
the Commission, as the case may be, conformed in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; any further documents so filed and
incorporated by reference in the Registration Statement, the Prospectus or the Time of Sale
Information or any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the Underwriters
expressly for use therein; and no such documents were filed with the Commission since the
Commission’s close of business on the business day immediately prior to the date of this
Agreement and prior to the execution of this Agreement;
(vi) The Registration Statement and Preliminary Prospectus conform, and the Prospectus
and any further amendments or supplements to the Registration Statement or the Prospectus
will conform, in all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and do not and will not, as of the applicable
effective date as to each part of the Registration Statement and as of the applicable filing
date as to the Preliminary Prospectus and the Prospectus and any amendment or supplement
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thereto, contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information furnished
in writing to the Company by the Underwriters expressly for use therein;
(vii) The financial statements and the related notes thereto of the Company and its
consolidated subsidiaries included or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus comply in all material respects
with the applicable requirements of the Securities Act and the Exchange Act, as applicable,
and present fairly the financial position of the Company and its subsidiaries as of the
dates indicated and the results of their operations and the changes in their cash flows for
the periods specified; such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis throughout the
periods covered thereby except as otherwise noted in such financial statements, and the
supporting schedules included or incorporated by reference in the Registration Statement
present fairly the information required to be stated therein; and the other financial
information included or incorporated by reference in the Registration Statement, the Time of
Sale Information and the Prospectus has been derived from the accounting records of the
Company and its subsidiaries and presents fairly the information shown thereby;
(viii) Since the date of the most recent financial statements of the Company included
or incorporated by reference in the Registration Statement and the Time of Sale Information,
(A) neither the Company nor any of its Significant Subsidiaries has entered into any
transaction or agreement that is material to the Company and its subsidiaries taken as a
whole or incurred any liability or obligation, direct or contingent, that is material to the
Company and its subsidiaries taken as a whole; (B) neither the Company nor any of its
subsidiaries has sustained any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree of any court, arbitrator or governmental or
regulatory authority that, individually or in aggregate would be reasonably expected to have
a material adverse effect on the general affairs, business, management, liquidity, current
or future financial position, stockholders’ equity, or results of operations of the Company
and its subsidiaries, taken as a whole (a “Material Adverse Effect”); (C) there has not been
any material adverse change, or any development involving a prospective material adverse
change, in or affecting the business, properties, management, financial position,
stockholders’ equity, or results of operations of the Company and its subsidiaries taken as
a whole, (D) there has not been any change in the capital stock (other than pursuant to the
Company’s equity benefit plans or agreements) or long-term debt of the Company or any of its
Significant Subsidiaries, or (E) there has not been any dividend or distribution of any kind
declared, set aside for payment, paid or made by the Company on any class of capital stock;
except in each case as otherwise disclosed in the Preliminary Prospectus;
(ix) The Company (A) has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct its business as described
in the Registration Statement and the Preliminary Prospectus, and (B) has been duly
qualified as a foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties or conducts
any business so as to
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require such qualification except in the case of clause (B) for such failure to be so
qualified or in good standing that would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect; and each Significant Subsidiary of the
Company that is a corporation has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of incorporation; each
Significant Subsidiary of the Company that is a limited liability company has been duly
formed and is validly existing as a limited liability company in good standing under the
laws of its jurisdiction of formation; and each Significant Subsidiary of the Company that
is a limited partnership has been duly formed and is validly existing as a limited
partnership in good standing under the laws of its jurisdiction of formation;
(x) The Company has an authorized capitalization as set forth in the Preliminary
Prospectus and the Prospectus, in each case, under the heading “Capitalization”, and all of
the outstanding shares of capital stock of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable and conform in all material respects to the
description thereof contained in the Registration Statement, the Time of Sale Information
and Prospectus; except as described in or expressly contemplated by the Time of Sale
Information and the Prospectus, there are no outstanding rights (including, without
limitation, pre-emptive rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other equity interest in the
Company or any of its Significant Subsidiaries, or any contract, commitment, agreement,
understanding or arrangement of any kind relating to the issuance of any capital stock of
the Company or any such subsidiary, any such convertible or exchangeable securities or any
such rights, warrants or options; and all of the issued shares of capital stock, all of the
issued membership interests and all of the limited liability partnership interests of each
Significant Subsidiary of the Company have been duly and validly authorized and issued, are,
in the case of shares of capital stock, fully paid and non-assessable and (except for
directors’ qualifying shares and except as set forth in the Preliminary Prospectus) are
owned directly or indirectly by the Company, free and clear of all liens, encumbrances,
equities restrictions on voting or any other claims of any third party;
(xi) The Company has full right, power and authority to execute and deliver this
Agreement, the Securities and the Indenture (collectively, the “Transaction Documents”) and
to perform its obligations hereunder and thereunder; and all action required to be taken for
the due and proper authorization, execution and delivery by it of each of the Transaction
Documents and the consummation by it of the transactions contemplated thereby has been duly
and validly taken;
(xii) This Agreement has been duly authorized, executed and delivered by the Company;
(xiii) The Securities have been duly authorized by the Company and, when executed,
authenticated and delivered as provided for in the Indenture (assuming due authentication by
the Trustee) and paid for will constitute valid and binding obligations of the Company,
enforceable against it in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors’ rights and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
(xiv) The Indenture has been duly authorized by the Company and, when duly executed and
delivered by the Company (assuming the authorization, execution and delivery
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by the Trustee) will be a valid and binding instrument of the Company; enforceable
against it in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’
rights and remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding at law or in equity);
(xv) Each Transaction Document conforms in all material respects to the description
thereof contained in the Registration Statement, the Time of Sale Information and the
Prospectus;
(xvi) Upon issuance and delivery of the Securities in accordance with this Agreement
and the Indenture, the Securities will be convertible at the option of the holder thereof
into shares of the Underlying Securities in accordance the terms of the Securities; the
Underlying Securities reserved for issuance upon conversion of the Securities have been duly
authorized and reserved and, when issued upon conversion of the Securities in accordance
with the terms of the Securities, will be validly issued, fully paid and non-assessable and
free of any lien or adverse claim, will conform in material respects to the descriptions
thereof in the Time of Sale Information and the Prospectus and the issuance of the
Underlying Securities will not be subject to any preemptive or similar rights;
(xvii) The Rights Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and legally binding agreement of the Company enforceable
against the Company in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or
by equitable principles relating to enforceability; and the Rights have been duly authorized
by the Company and, when issued upon issuance of the Underlying Securities, will be validly
issued, and the Series A Junior Participating Preferred Stock has been duly authorized by
the Company and validly reserved for issuance upon the exercise in accordance with the terms
of the Rights Agreement, will be validly issued, fully paid and non-assessable;
(xviii) The issue and sale of the Securities and the issuance by the Company of the
Underlying Securities upon conversion of the Securities and the performance by the Company
of all its obligations under the Securities, the Indenture, the Rights Agreement and this
Agreement, and the consummation of the transactions herein and therein contemplated (A) will
not conflict with or result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, (B) will not result in any
violation of the provisions of the Certificate of Incorporation or By-laws of the Company or
(C) will not result in any violation of any statute or any order, rule or regulation of any
court or arbitrator or governmental agency or body or regulatory authority having
jurisdiction over the Company or any of its subsidiaries or any of their properties, except
in the case of clauses (A) and (C) as would not, individually or in aggregate, reasonably be
expected to have a Material Adverse Effect; and no consent, approval, authorization, order,
registration or qualification of or with any such court or arbitrator or governmental agency
or body or regulatory authority is required for the sale of the Securities or the
consummation by the Company of the transactions contemplated by this Agreement, except (i)
the registration under the Act of the Securities, the Underlying Securities and the Rights,
(ii) qualification of the Indenture under the Trust
6
Indenture Act, (iii) such consents, approvals, authorizations, orders, registrations or
qualifications as may be required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the Underwriters, (iv) any consent,
order, registration, qualification or other action, that is or has been obtained or made on
or prior to the Closing Date;
(xix) Neither the Company nor any of its subsidiaries is (A) in violation of its
Certificate of Incorporation or By-laws or similar organizational documents, (B) in default
in the performance or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its properties may
be bound; except in each case as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect;
(xx) Other than as set forth in the Preliminary Prospectus and the Prospectus, there
are no legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its subsidiaries
is the subject or, to the Company’s knowledge, threatened or contemplated by governmental
authorities or, to the Company’s knowledge, threatened by others which if determined
adversely to the Company or any of its subsidiaries would have, individually or in the
aggregate, a Material Adverse Effect or materially and adversely affect the ability of the
Company to perform its obligations under the Transaction Documents;
(xxi) The Company is not and, after giving effect to the offering and sale of the
Securities, will not be an “investment company”, as such term is defined in the Investment
Company Act of 1940, as amended (the “Investment Company Act”);
(xxii) (A) At each of the time of filing the Registration Statement, the time of the
most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of prospectus), and the time the Company
or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)
under the Act) made any offer relating to the Securities in reliance on the exemption of
Rule 163 under the Act, the Company was a “well-known seasoned issuer” as defined in Rule
405 under the Act; and (B) at the earliest time after the filing of the Registration
Statement that the Company or another offering participant made a bona fide offer (within
the meaning of Rule 164(h)(2) under the Act) of the Securities, the Company was not an
“ineligible issuer” as defined in Rule 405 under the Act. The Company has paid the
registration fee for this offering pursuant to Rule 456 (b) (1) under the Securities Act or
will pay such fees within the time period required by such rule (without giving effect to
the proviso therein) and in any event prior to the Closing Date;
(xxiii) Ernst and Young LLP, who have certified certain financial statements of the
Company and its subsidiaries, and have audited the Company’s internal control over financial
reporting and management’s assessment thereof, are independent public accountants with
respect to the Company and its subsidiaries as required by the Act and the rules and
regulations of the Commission thereunder and the Public Company Accounting Oversight Board
(United States);
(xxiv) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the
7
requirements of the Exchange Act and has been designed by the Company’s principal
executive officer and principal financial officer, or under their supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting
principles, including, but not limited to internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance with management’s
general or specific authorizations; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (C) access to assets is permitted only in
accordance with management’s general or specific authorization; and (D) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The Company’s internal control
over financial reporting is effective, the Company is not aware of any material weaknesses
in its internal control over financial reporting, the Company has not changed the procedures
for its system of internal control over financial reporting since December 31, 2005, and, as
of such date, there were no material weaknesses in its internal control over financial
reporting.
(xxv) Since the date of the latest audited financial statements included or
incorporated by reference in the Preliminary Prospectus, there has been no change in the
Company’s internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over financial
reporting;
(xxvi) The Company maintains disclosure controls and procedures (as such term is
defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the
Exchange Act; such disclosure controls and procedures have been designed to ensure that
material information relating to the Company and its subsidiaries is made known to the
Company’s principal executive officer and principal financial officer by others within those
entities; and such disclosure controls and procedures are effective;
(xxvii) The Company and its subsidiaries have carried out evaluations of the
effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the
Exchange Act;
(xxviii) As of the Closing Date, the Underlying Securities will be listed on the New
York Stock Exchange (the “Exchange”), subject to official notice of issuance;
(xxix) The Company and its subsidiaries have paid all federal, state, local and foreign
taxes and filed all tax returns required to be paid or filed through the date hereof; and
except as otherwise disclosed in the Registration Statement, the Time of Sale Information
and the Prospectus, there is no tax deficiency that has been, or could reasonably be
expected to be, asserted against the Company or any of its subsidiaries or any of their
respective properties or assets except for such failures to pay such taxes, file such tax
returns or deficiencies as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect;
(xxx) The Company and its Significant Subsidiaries have all necessary licenses,
consents, authorizations, approvals, orders, certificates and permits of and from, and have
made all declarations and filings with, all federal, state, local, foreign and other
governmental authorities, all self-regulatory organizations and all courts and other
tribunals, to own, lease, license and use their properties and assets and to conduct their
business in the manner in which it is described or contemplated in the Preliminary
Prospectus, with such exceptions as
8
would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; neither the Company nor any of its subsidiaries has received written notice
of any revocation or modification of any such license, certificate, permit or authorization
or has any reason to believe that any such license, certificate, permit or authorization
will not be renewed in the ordinary course;
(xxxi) There are no contracts, agreements or understandings between the Company or any
of its subsidiaries and any person granting such person the right to require the Company or
any of its subsidiaries to file a registration statement under the Act with respect to any
securities of the Company or any of its subsidiaries or to include any securities of the
Company or any of its subsidiaries with the Securities registered pursuant to the
Registration Statement, except as otherwise disclosed in the Preliminary Prospectus;
(xxxii) Other than as set forth in the Preliminary Prospectus and the Prospectus, the
Company and its subsidiaries (A) are in compliance with any and all applicable federal,
state, local and foreign laws, rules, regulations, requirements, decisions and orders
relating to the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”); (B)
have received and are in compliance with all permits, licenses, certificates or other
authorizations or approvals required of them under applicable Environmental Laws to conduct
their respective businesses; and (C) have not received notice of any actual or potential
liability for the investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants and (D) there are no costs or
liabilities associated with Environmental Laws of or relating to the Company or its
subsidiaries, except in the case of each of (A), (B), (C) and (D) above, for any such
failure to comply, or failure to receive required permits, licenses or approvals, or cost or
liability, as would not, individually or in the aggregate, have a Material Adverse Effect;
(xxxiii) No Significant Subsidiary of the Company is currently prohibited, directly or
indirectly, under any agreement or other instrument to which it is a party or is subject,
from paying any dividends to the Company, from making any other distribution on such
subsidiary’s capital stock, from repaying to the Company any loans or advances to such
subsidiary from the Company or from transferring any of such subsidiary’s properties or
assets to the Company or any other subsidiary of the Company other than such restrictions on
Trinity Rail Leasing Trust II, Trinity Rail Leasing I L.P., Trinity Rail Leasing III, L.P.,
Trinity Rail Leasing IV, L.P. and Trinity Rail Leasing V, L.P.;
(xxxiv) There is and has been no failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such, to comply with any provision
of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection
therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402 related to loans and Sections
302 and 906 related to certifications.
2. The Company agrees with the Underwriters that:
(a) Required Filings. The Company will file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act,
will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the
Securities Act; and will file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as
the delivery of a prospectus is
9
required in connection with the offering or sale of the Securities; and the Company will
furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not
previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time,
on the second business day next succeeding the date of this Agreement in such quantities as the
Representatives may reasonably request. The Company will pay the registration fees for this
offering within the time period required by Rule 456 (b)(i) under the Securities Act prior to the
Closing Date.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the Representatives,
two copies of the signed Registration Statement as originally filed and each amendment thereto, in
each case including all exhibits and consents filed therewith and documents incorporated by
reference therein; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement
as originally filed and each amendment thereto (without exhibits) and (B) during the Prospectus
Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and
supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing
Prospectus as the Representatives may reasonably request. As used herein, the term “Prospectus
Delivery Period” means such period of time after the first date of the public offering of the
Securities as in the opinion of counsel for the Underwriters a prospectus relating to the
Securities is required by law to be delivered (or required to be delivered but for Rule 172 under
the Securities Act) in connection with sales of the Securities by any Underwriter or dealer.
(c) Amendments or Supplements, Issuer Free Writing Prospectuses. Before using, authorizing,
approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any
amendment or supplement to the Registration Statement or the Prospectus, whether before or after
the time that the Registration Statement becomes effective, the Company will furnish to the
Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing
Prospectus, amendment or supplement for review and will not use, authorize, approve, refer to or
file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to
which the Representatives reasonably object.
(d) Notice to the Representatives. The Company will advise the Representatives promptly, and
confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed
or becomes effective; (ii) when any supplement to the Prospectus or any Issuer Free Writing
Prospectus or any amendment to the Prospectus has been filed; (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or supplement to the
Prospectus or the receipt of any comments from the Commission relating to the Registration
Statement or any other request by the Commission for any additional information; (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or
the initiation or, to the Company’s knowledge, threatening of any proceeding for that purpose or
pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event within the
Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale Information or any
Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances existing when the
Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is delivered to
a purchaser, not misleading; and (vi) of the receipt by the Company of any notice of objection of
the Commission to the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the Company of any
notice with respect to any suspension of the qualification of the Securities for offer and sale in
any jurisdiction or the initiation or, to the Company’s knowledge,
10
threatening of any proceeding for such purpose; and the Company will use its best efforts to
prevent the issuance of any such order suspending the effectiveness of the Registration Statement,
preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any
such qualification of the Securities and, if any such order is issued, will use its commercially
reasonable efforts to obtain as soon as possible the withdrawal thereof.
(e) Ongoing Compliance. (1) If during the Prospectus Delivery Period (i) any event shall
occur or condition shall exist as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) upon
the advice of counsel to the Company or the Underwriters, it is necessary to amend or supplement
the Prospectus to comply with law, the Company will promptly notify the Underwriters thereof and
forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the
Underwriters and to such dealers as the Representatives may designate, such amendments or
supplements to the Prospectus as may be necessary so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances existing when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply with law and (2) if
at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a
result of which the Time of Sale Information as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances, not misleading or (ii) upon the advice
of counsel to the Company or the Underwriters, it is necessary to amend or supplement the Time of
Sale Information to comply with law, the Company will promptly notify the Underwriters thereof and
forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent
required) and furnish to the Underwriters and to such dealers as the Representatives may designate,
such amendments or supplements to the Time of Sale Information as may be necessary so that the
statements in the Time of Sale Information as so amended or supplemented will not, in the light of
the circumstances, be misleading or so that the Time of Sale Information will comply with law.
(f) Blue Sky Compliance. The Company will qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request
and will continue such qualifications in effect so long as required for distribution of the
Securities; provided that the Company shall not be required to (i) qualify as a foreign
corporation or other entity or as a dealer in securities in any such jurisdiction where it would
not otherwise be required to so qualify, (ii) file any general consent to service of process in any
such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not
otherwise so subject.
(g) Earning Statement. The Company will make generally available to its security holders and
the Representatives as soon as practicable an earning statement that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering
a period of at least twelve months beginning with the first fiscal quarter of the Company occurring
after the “effective date” (as defined in Rule 158) of the Registration Statement.
(h) Clear Market. For a period of 45 days after the date of the initial public offering of
the Securities, the Company will not, without the prior written consent of the Representatives, (i)
offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock or (ii) enter into
any swap or other agreement
11
that transfers, in whole or in part, any of the economic consequences of ownership of the
Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled
by delivery of Common Stock or such other securities, in cash or otherwise, without the prior
written consent of the Representatives, other than (A) the Securities to be sold hereunder and the
issuance of the Underlying Securities upon conversion thereof, (B) any (i) grant or issuance of any
stock options, restricted stock or other awards, (ii) issuance of shares of Common Stock of the
Company upon the exercise of options granted, (iii) vesting of or removal or lapse of restrictions
on restricted stock or other awards and (iv) deemed acquisitions or transfers upon the cashless
exercise of stock options (whether to cover exercise prices or taxes) or upon the forfeiture or
cancellation of restricted stock to cover tax payments, in each case, under existing employee
benefit plans or agreements, (C) any transfer of shares of Common Stock pursuant to the Company’s
401(k) plan, (D) the filing by the Company of any registration statement with the Commission on
Form S-8 relating to the offering of securities pursuant to the terms of the existing employee
benefit plans or agreements, (E) shares of Common Stock (or options, warrants or convertible
securities in respect thereof) issued in connection with a bona fide merger or acquisition
transaction, provided that the Common Stock (or options, warrants or convertible securities in
respect thereof) so issued is subject to the terms of a duplicative form of the “lock-up agreement”
set forth in Exhibit A attached hereto and (F) the issuance of the Rights pursuant to the Rights
Agreement. Notwithstanding the foregoing, if (1) during the last 17 days of the 45-day restricted
period, the Company issues an earnings release or material news or a material event relating to the
Company becomes publicly known; or (2) prior to the expiration of the 45-day restricted period, the
Company announces that it will release earnings results during the 16-day period beginning on the
last day of the 45-day period, the restrictions imposed by this Agreement shall continue to apply
until the expiration of the 18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities
as described in the Registration Statement, the Time of Sale Information and the Prospectus under
the heading “Use of Proceeds”.
(j) No Stabilization. The Company will not take, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Securities.
(k) Reports. To the extent not available on the Commission’s XXXXX system or the Company’s
website, for a period of two years from the date hereof the Company will furnish to the
Representatives, as soon as they are available, copies of all reports or other communications
(financial or other) furnished to holders of the Securities, and copies of any reports and
financial statements furnished to or filed with the Commission or any national securities exchange
or automatic quotation system.
(l) Record Retention. The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission
in accordance with Rule 433 under the Securities Act.
3. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company) other than
12
(i) a free writing prospectus that contains no “issuer information” (as defined in Rule
433(h)(2) under the Securities Act) that was not included (including through incorporation by
reference) in the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus, (ii)
the pricing term sheet set forth in Annex A, the press release set forth in Annex B or any Issuer
Free Writing Prospectus prepared pursuant to Section 1(a)(iv) or Section 2(c) above, (iii) any free
writing prospectus prepared by such underwriter and approved by the Company in advance in writing
or (iv) customary filings through the Bloomberg system (each such free writing prospectus referred
to in clauses (i), (iii) or (iv), an “Underwriter Free Writing Prospectus”).
(b) It has not and will not distribute any Underwriter Free Writing Prospectus referred to in
clause (a)(i) in a manner reasonably designed to lead to its broad unrestricted dissemination.
(c) It has not and will not, without the prior written consent of the Company, use any free
writing prospectus that contains the final terms of the Securities unless such terms have
previously been included in a free writing prospectus filed with the Commission; provided that
Underwriters may use a term sheet substantially in the form of Annex A hereto without the consent
of the Company.
(d) It will, pursuant to reasonable procedures developed in good faith, retain copies of each
free writing prospectus used or referred to by it, in accordance with Rule 433 under the Securities
Act.
(e) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period).
4. Purchase of the Shares by the Underwriters. (a) The Company agrees to issue and sell the
Firm Securities to the several Underwriters as provided in this Agreement, and each Underwriter, on
the basis of the representations, warranties and agreements set forth herein and subject to the
conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the
respective principal amount of Securities set forth opposite such Underwriter’s name in Schedule 1
hereto at a price equal to 98.125% of the principal amount thereof, plus accrued interest if any,
from June 7, 2006 to the Closing Date (as defined below).
(b) In addition, the Company agrees to issue and sell Option Securities to the several
Underwriters as provided in this Agreement, and the Underwriters, on the basis of the
representations and warranties set forth herein and subject to the conditions set forth herein
shall have the option to purchase, severally and not jointly, from the Company Option Securities at
a price equal to 98.125% of the principal amount of Option Securities purchased by such
Underwriter, plus accrued interest if any, from June 7, 2006 to the Additional Closing Date (as
defined below). If any Option Securities are to be purchased, the principal amount of Option
Securities to be purchased by each Underwriter shall be the principal amount of such Option
Securities which bears the same ratio to the aggregate number of Option Securities being purchased
as the number of Firm Securities set forth opposite the name of such Underwriter in Schedule 1
hereto (or such number increased as set forth in Section 9 hereof) bears to the aggregate number of
Firm Securities being purchased from the Company by the several Underwriters, subject, however, to
such adjustments to maintain the principal amount of Option Securities purchased by each
Underwriter a multiple of $1,000 as the Representatives in their sole discretion shall make.
(c) X.X. Xxxxxx Securities Inc. has agreed to reimburse the Company for certain out of pocket
expenses not to exceed $77,500.
13
(d) The Underwriters may, by not less than 2 nor more than 10 Business Days’ prior written
notice from the Representatives to the Company, exercise the option to purchase the Option
Securities at any time in whole, or from time to time in part. Such notice shall set forth the
aggregate number of Option Securities as to which the option is being exercised and the date and
time when the Option Securities are to be delivered and paid for which may be the same date and
time as the Closing Date (as defined below) but shall not be earlier than the Closing Date nor
after the thirteen day period beginning on, and including, the Closing Date.
(e) The Company understands that the Underwriters intend to make a public offering of the
Securities as soon after the effectiveness of this Agreement as in the judgment of the
Representative is advisable, and initially to offer the Securities on the terms set forth in the
Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell
Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and
sell Securities purchased by it to or through any Underwriter.
(f) Payment for and delivery of the Securities shall be made (i) in the case of the Firm
Securities at the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
at 10:00 A.M., New York City time, on June 7, 2006, or at such other time or place on the same or
such other date, not later than the fifth Business Day thereafter, as the Representatives and the
Company may agree upon in writing (the time and date of such payment and delivery is referred to
herein as the “Closing Date”); or (ii) in the case of the Option Securities, on the date and at the
time and place specified by the Representatives in the written notice of the Underwriters’ election
to purchase such Option Securities (the time and date of such payment and delivery is referred to
herein as the “Additional Closing Date”.)
(g) Payment for the Securities to be purchased on the Closing Date or the Additional Closing
Date, as the case may be, shall be made by wire transfer in immediately available funds to the
account specified by the Company to the Representatives against delivery to the nominee of The
Depositary Trust Company, for the account of the Underwriters, of a global note representing the
Securities purchased on such Closing Date or Additional Closing Date, as the case may be, with any
transfer taxes payable in connection with the sale of the Securities duly paid by the Company. The
global notes will be made available for inspection by the Representatives at the offices of Xxxxx
Xxxx and Xxxxxxxx set forth above not later than 1:00 P.M., New York City time, on the Business Day
prior to the Closing Date or the Additional Closing Date, as the case may be, or at such other time
and place as agreed in writing by the Representatives and the Company.
(h) The Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect to the offering of
Securities contemplated hereby (including in connection with determining the terms of the offering)
and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person.
Additionally, neither the Representatives nor any other Underwriter is advising the Company or any
other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters
14
relating to such transactions will be performed solely for the benefit of the Underwriters and
shall not be on behalf of the Company.
5. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to purchase
the Firm Securities on the Closing Date or the Option Securities on the Additional Closing Date, as
the case may be as provided herein is subject to the performance by the Company of its covenants
and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule
401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened
by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely
filed with the Commission under the Securities Act (in the case of an Issuer Free Writing
Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with
Section 5(a) hereof; and all requests by the Commission for additional information shall have been
complied with to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of the Closing Date or
the Additional Closing Date, as the case may be; and the statements of the Company and its officers
made in any certificates delivered pursuant to this Agreement shall be true and correct on and as
of the Closing Date or the Additional Closing Date, as the case may be.
(c) No Downgrade. Subsequent to the execution and delivery of this Agreement, (i) no
downgrading shall have occurred in the rating accorded any securities or preferred stock of or
guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical
rating organization”, as such term is defined by the Commission for purposes of Rule 436(g)(2)
under the Securities Act and (ii) no such organization shall have publicly announced that it has
under surveillance or review, or has changed its outlook with respect to, its rating of any
securities or preferred stock of or guaranteed by the Company or any of its subsidiaries (other
than an announcement with positive implications of a possible upgrading)
(d) No Material Adverse Change. No event or condition of a type described in Section
1(a)(viii) hereof shall have occurred or shall exist, which event or condition is not described in
the Time of Sale Information (excluding any amendment or supplement thereto) and the Prospectus
(excluding any amendment or supplement thereto) and the effect of which in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the offering, sale or
delivery of the Securities on the Closing Date or the Additional Closing Date, as the case may be,
on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the
Prospectus.
(e) Officer’s Certificate. The Representatives shall have received on and as of the Closing
Date or the Additional Closing Date, as the case may be, a certificate of the chief financial
officer or chief accounting officer of the Company and one additional senior executive officer of
the Company who is satisfactory to the Representatives (i) confirming that, to the knowledge of
such officers, the representations set forth in Sections 1(a)(i), 1(a)(ii), 1(a)(v), and 1(a)(vi)
hereof are true and correct, (ii) confirming that the other representations and warranties of the
Company in this Agreement are true and correct and that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or
prior to such Closing Date and (iii) to the effect set forth in paragraphs (c) above.
15
(f) Comfort Letters. On the date of this Agreement and on the Closing Date or the Additional
Closing Date, as the case may be, Ernst and Young LLP shall have furnished to the Representatives,
at the request of the Company, letters, dated the respective dates of delivery thereof and
addressed to the Underwriters, in form and substance reasonably satisfactory to the
Representatives, containing statements and information of the type customarily included in
accountants’ “comfort letters” to underwriters with respect to the financial statements and certain
financial information contained or incorporated by reference in the Registration Statement, the
Time of Sale Information and the Prospectus; provided, that the letter delivered on the Closing
Date or the Additional Closing Date, as the case may be shall use a “cut-off” date no more than
three business days prior to such Closing Date or such Additional Closing Date, as the case may be.
(g) Xxxxxx and Xxxxx, LLP, counsel for the Company, shall have furnished to the Underwriters
their written opinion, dated the Closing Date or the Additional Closing Date, as the case may be,
in form and substance reasonably satisfactory to the Underwriters and subject to such reasonable
qualifications and limitations set forth therein, and to such effect as reasonably requested by the
Representatives, which opinion shall cover the opinions set forth on Exhibit B.
(h) Xxxxxxxxxxx & Price, LLC, shall have furnished to the Underwriters their written opinion,
dated the Closing Date or the Additional Closing Date, as the case may be, substantially in the
form of Exhibit C.
(i) X. Xxxxx Xxxx, Vice President and Chief Legal Officer of the Company, shall have furnished
to the Underwriters his written opinion, dated the Closing Date or the Additional Closing Date, as
the case may be, in form and substance reasonably satisfactory to the Underwriters and subject to
such reasonable qualifications and limitations set forth therein, and to such effect as reasonably
requested by the Representatives, which opinion shall cover the opinions set forth on Exhibit D.
(j) Opinion of Counsel for the Underwriters. The Representatives shall have received on and
as of the Closing Date or the Additional Closing Date, as the case may be, an opinion of Xxxxx Xxxx
& Xxxxxxxx, counsel for the Underwriters, with respect to such matters as the Representatives may
reasonably request, and such counsel shall have received such documents and information as they may
reasonably request to enable them to pass upon such matters.
(k) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date or the Additional Closing
Date, as the case may be, prevent the issuance or sale of the Securities; and no injunction or
order of any federal, state or foreign court shall have been issued that would, as of the Closing
Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the
Securities.
(l) Good Standing. The Representatives shall have received on and as of the Closing Date or
the Additional Closing Date, as the case may be, satisfactory evidence of the good standing of the
Company in their respective jurisdictions of organization and its good standing as foreign entities
in such other jurisdictions as the Representatives may reasonably request, in each case in writing
or any standard form of telecommunication from the appropriate Governmental Authorities of such
jurisdictions.
(m) Lock-up Agreements. The “lock-up” agreements, each substantially in the form of Exhibit A
hereto, between the Representatives and each director of the Company and each executive officer
specified as an executive officer in Part I of the Company’s Annual Report on Form 10-K for the
fiscal year ended December 31, 2005 relating to sales and certain other dispositions of shares of
16
Stock or certain other securities, delivered to you on or before the date hereof, shall be
full force and effect on the Closing Date or Additional Closing Date, as the case may be.
(n) Additional Documents. On or prior to the Closing Date or the Additional Closing Date, as
the case may be, the Company shall have furnished to the Representatives such further certificates
and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
6. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to make the statements
therein, not misleading, (ii) or any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing
Prospectus or any Time of Sale Information, or caused by any omission or alleged omission to state
therein a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information described as such in
subsection (b) below.
(b) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise
out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the Representatives expressly for use in the
Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any Time of Sale Information, it being understood and agreed upon that the
only such information furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the concession and reallowance figures
appearing in the third paragraph under the caption “Underwriting”, the information contained in the
eleventh and twelfth paragraphs and the third sentence of the thirteenth paragraph under the
caption “Underwriting”.
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect
17
of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under this Section 6 except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under this Section 6. If any
such proceeding shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified
Person, be counsel to the Indemnifying Person) to represent the Indemnified Person in such
proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary or (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid
or reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be designated in writing
by JPMorgan and any such separate firm for the Company, its directors, its officers who signed the
Registration Statement and any control persons of the Company shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person
reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30 days after receipt
by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of which any Indemnified
Person is or could have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from
all liability on claims that are the subject matter of such proceeding and (y) does not include any
statement as to or any admiss
ion of fault, culpability or a failure to act by or on behalf of any
Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other, from the offering of the Securities or (ii) if the
allocation provided
18
by clause (i) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also the relative fault of the
Company, on the one hand, and the Underwriters, on the other, in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company, on the one hand,
and the Underwriters, on the other, shall be deemed to be in the same respective proportions as the
net proceeds (before deducting expenses) received by the Company from the sale of the Securities
and the total underwriting discounts and commissions received by the Underwriters in connection
therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the
aggregate offering price of the Securities. The relative fault of the Company, on the one hand,
and the Underwriters, on the other, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company or by the
Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in
connection with any such action or claim. Notwithstanding the provisions of this Section 6, in no
event shall an Underwriter be required to contribute any amount in excess of the amount by which
the total underwriting discounts and commissions received by such Underwriter with respect to the
offering of the Securities exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section
6 are several in proportion to their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 6 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
7. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
8. Termination. This Agreement may be terminated in the absolute discretion of the
Representatives, by notice to the Company, if after the execution and delivery of this Agreement
and prior to the Closing Date or, in the case of the Option Securities, prior to the Additional
Closing Date (i) trading generally shall have been suspended or materially limited on or by any of
the New York Stock Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade; (ii) trading of any securities issued or guaranteed by the Company shall have been
suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on
commercial banking activities shall have been declared by federal or New York State authorities; or
(iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis, either within or outside the United States, that, in the
judgment of the Representatives, is
19
material and adverse and makes it impracticable or inadvisable to proceed with the offering,
sale or delivery of the Securities on the Closing Date or the Additional Closing Date, as the case
may be, on the terms and in the manner contemplated by this Agreement, the Time of Sale Information
and the Prospectus.
9. Defaulting Underwriter. (a) If, on the Closing Date or the Additional Closing
Date, as the case may be, any Underwriter defaults on its obligation to purchase the Securities
that it has agreed to purchase hereunder on such date, the non-defaulting Underwriters may in their
discretion arrange for the purchase of such Securities by other persons satisfactory to the Company
on the terms contained in this Agreement. If, within 36 hours after any such default by any
Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Securities,
then the Company shall be entitled to a further period of 36 hours within which to procure other
persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms.
If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter,
either the non defaulting Underwriters or the Company may postpone the Closing Date or the
Additional Closing Date, as the case may be, for up to five full business days in order to effect
any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement and the Prospectus or in any other document or arrangement,
and the Company agrees to promptly prepare any amendment or supplement to the Registration
Statement and the Prospectus that effects any such changes. As used in this Agreement, the term
“Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires,
any person not listed in Schedule 1 hereto that, pursuant to this Section 9, purchases Securities
that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate number of Securities that remain unpurchased on the
Closing Date or the Additional Closing Date, as the case may be, does not exceed one-eleventh of
the aggregate number of Securities to be purchased on such date, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the number of Securities that such
Underwriter agreed to purchase hereunder on such date plus such Underwriter’s pro rata share (based
on the number of Securities that such Underwriter agreed to purchase on such date) of the
Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been
made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate number of Securities that remain unpurchased on the
Closing Date or the Additional Closing Date, as the case may be, exceeds one-eleventh of the
aggregate amount of Securities to be purchased on such date, or if the Company shall not exercise
the right described in paragraph (b) above, then this Agreement or, with respect to any Additional
Closing Date, the obligation of the Underwriters to purchase Securities on the Additional Closing
Date, as the case may be, shall terminate without liability on the part of the non-defaulting
Underwriters. Any termination of this Agreement pursuant to this Section 9 shall be without
liability on the part of the Company, except that the Company will continue to be liable for the
payment of expenses as set forth in Section 10 hereof and except that the provisions of Section 6
hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
20
10. Payment of Expenses. (a) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement is terminated, the Company will pay or cause to be paid all costs
and expenses incident to the performance of its obligations hereunder, including without
limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery
of the Securities and any taxes payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration Statement, the
Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the
Prospectus (including all exhibits, amendments and supplements thereto) and the distribution
thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv)
the fees and expenses of the Company’s counsel and independent accountants; (v) the reasonable fees
and expenses incurred in connection with the registration or qualification and determination of
eligibility for investment of the Securities under the laws of such jurisdictions as the
Representatives may designate and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related fees and expenses of counsel for the Underwriters); (vi) the cost
of preparing stock certificates; (vii) the costs and charges of any transfer agent and any
registrar; (viii) all expenses and application fees incurred in connection with any filing with,
and clearance of the offering by, the National Association of Securities Dealers, Inc.; (ix) all
expenses incurred by the Company in connection with any “road show” presentation to potential
investors. Except as otherwise provided herein, the Underwriters will pay all of their own costs
and expenses in connection with the transactions contemplated hereby, including, without
limitation, the fees and expenses of their counsel and transfer taxes, if any, on the resale of the
Securities by them.
(b) If (i) this Agreement is terminated pursuant to Section 8, (ii) the Company for any reason
fails to tender the Securities for delivery to the Underwriters, or (iii) the Underwriters decline
to purchase the Securities for any reason permitted under Section 5 of this Agreement, the Company
agrees to reimburse the Underwriters for all out-of-pocket costs and expenses (including the
reasonable fees and expenses of their counsel) reasonably incurred by the Underwriters in
connection with this Agreement and the offering contemplated hereby.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to in Section 6 hereof. Nothing in this
Agreement is intended or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained herein. No
purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of
such purchase.
12. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this Agreement or made
by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall
remain in full force and effect, regardless of any termination of this Agreement or any
investigation made by or on behalf of the Company or the Underwriters.
13. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in
Rule 405 under the Securities Act; and (d) the term “Significant Subsidiary” has the meaning set
forth in Rule 1-02 of Regulation S-X under the Exchange Act.
21
14. Miscellaneous. (a) Authority of the Representatives. Any action by the
Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters, and any
such action taken by the Representatives shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representatives c/o X.X.
Xxxxxx Securities Inc. 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000), Attention:
Syndicate Desk; Banc of America Securities LLC, 0 Xxxx 00xx Xxxxxx, Xxx Xxxx , XX 00000
(fax: 000-000-0000), Attention: Xxxxxxx Xx; and Wachovia Capital Markets, LLC., 000 Xxxx Xxxxxx,
Xxx Xxxx, XX 00000 (fax: (000) 000-0000), Attention: Syndicate Desk. Notices to the Company shall
be given to it at 0000 Xxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000 (fax: (000) 000-0000; Attention: X.
Xxxxx Xxxx.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to the conflicts of law provisions thereof to the
extent the application of the laws of another jurisdiction would be required thereby.
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
22
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
Very truly yours, | ||||||
TRINITY INDUSTRIES, INC. | ||||||
By: | /s/ Xxxxxxx X. XxXxxxxxx XX | |||||
Name: Xxxxxxx X. XxXxxxxxx XX | ||||||
Title: Senior Vice President and CFO |
Accepted: June 1, 2006
X.X. Xxxxxx Securities Inc.
Banc of America Securities LLC
Wachovia Capital Markets, LLC
For themselves and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
Banc of America Securities LLC
Wachovia Capital Markets, LLC
For themselves and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
X.X. XXXXXX SECURITIES INC.
By
|
/s/ Xxxx X. Xxxxxxxxx | |||
Authorized Signatory | ||||
BANC OF AMERICA SECURITIES LLC | ||||
By
|
/s/ Xxxxx XxXxxxxxx | |||
Authorized Signatory | ||||
WACHOVIA CAPITAL MARKETS, LLC | ||||
By
|
/s/ Xxxx Xxxx | |||
Authorized Signatory |
23
Schedule 1
Underwriter | Principal Amount of Securities | |||
X.X. Xxxxxx Securities Inc. |
$ | 271,200,000 | ||
Banc of America Securities LLC |
$ | 80,000,000 | ||
Wachovia Capital Markets, LLC |
$ | 80,000,000 | ||
Greenwich Capital Markets, Inc |
$ | 8,533,334 | ||
Dresdner Kleinwort Xxxxxxxxxxx Securities LLC |
$ | 4,533,333 | ||
BNP Paribas Securities Corp. |
$ | 4,133,333 | ||
Amegy Bank National Association |
$ | 1,602,000 | ||
Total: |
$ | 450,000,000 |
24
Annex A
Trinity Industries, Inc.
Pricing Term Sheet
25
Annex B
Pricing Press Release
NEWS RELEASE
Investor Contact:
Xxxxx X. Xxxxx, Vice President and Treasurer
Trinity Industries, Inc.
214/589-8412
Investor Contact:
Xxxxx X. Xxxxx, Vice President and Treasurer
Trinity Industries, Inc.
214/589-8412
FOR IMMEDIATE RELEASE
Trinity Industries Prices $450 Million of Convertible Subordinated Notes
DALLAS, TEXAS — June 1, 2006 — Trinity Industries, Inc. (NYSE: TRN) today announced that it
has priced its previously announced offering of $450 million aggregate principal amount of
Convertible Subordinated Notes due 2036 (the “notes”). The Company has granted the underwriters a
13-day option to purchase an additional $50 million of the notes.
The notes will bear interest at a fixed rate equal to 3.875% per annum, payable semi-annually
commencing December 1, 2006. In addition, commencing with the six-month period beginning June 1,
2018, and for each six-month period thereafter, Trinity Industries will pay contingent interest to
holders of the notes under certain circumstances. The notes will be convertible upon occurrence of
specified events. If converted, holders of the notes will receive cash up to the principal amount
of a note and, if the market price of Trinity Industries common stock exceeds the conversion price
in effect on the conversion date, holders will also receive, at the election of Trinity Industries,
additional cash, a number of shares of Trinity Industries common stock or a combination of both.
The notes have an initial conversion price of $78.34 per share of common stock, which is a premium
of 35% over Trinity Industries’ closing stock price of $58.03 on June 1, 2006.
Trinity Industries may redeem all or a portion of the notes for cash at any time on or after
June 1, 2018, at a price equal to 100% of their principal amount, plus accrued and unpaid interest,
including any contingent interest, up to but excluding the redemption date. On June 1, 2018, or
upon the occurrence of a change in control, holders of the notes may require Trinity Industries to
purchase all or a portion of their notes at a price equal to 100% of the principal amount of the
notes submitted for repurchase, plus any accrued and unpaid interest, including any contingent
interest, up to but excluding the repurchase date.
Trinity Industries intends to use the proceeds of this offering to provide additional funds
for general corporate purposes, including the expansion of its railcar leasing business and
possible repayments or repurchases of a portion of its outstanding indebtedness.
X. X. Xxxxxx Securities Inc., Banc of America Securities LLC, and Wachovia Securities are
acting as joint book-running managers.
26
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send to you the prospectus if you request it by
calling toll-free 1-800-294-1322 or you may e-mail a request to xxxxxx.x.xxxx@xxxxxxxx.xxx,
xx.xxxxxxxxxx_xxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx, or xxxxxx.xxxxxxxxx@xxxxxxxx.xxx.
Trinity Industries, Inc., with headquarters in Dallas, Texas, is one of the nation’s leading
diversified industrial companies. Trinity reports five principal business segments: the Rail Group,
the Railcar Leasing and Management Services Group, the Inland Barge Group, the Construction
Products Group, and the Energy Equipment Group.
Some statements in this release, which are not historical facts, are “forward-looking
statements” as defined by the Private Securities Litigation Reform Act of 1995. Forward-looking
statements include statements about Trinity’s estimates, expectations, beliefs, intentions or
strategies for the future, and the assumptions underlying these forward-looking statements. Trinity
uses the words “anticipates,” “believes,” “estimates,” “expects,” “intends,” “forecasts,” “may,”
“will,” “should,” and similar expressions to identify these forward-looking statements.
Forward-looking statements involve risks and uncertainties that could cause actual results to
differ materially from historical experience of our present expectations. For a discussion of such
risks and uncertainties, which could cause actual results to differ from those contained in the
forward looking statements, see “Forward-Looking Statements” in the Company’s Annual Report on Form
10-K for the most recent fiscal year.
27
Exhibit A
FORM OF LOCK-UP AGREEMENT
June __, 2006
X.X. Xxxxxx Securities Inc.
Banc of America Securities LLC
Wachovia Capital Markets, LLC
As Representatives of
the several Underwriters listed in
Schedule I to the Underwriting
Agreement referred to below
Banc of America Securities LLC
Wachovia Capital Markets, LLC
As Representatives of
the several Underwriters listed in
Schedule I to the Underwriting
Agreement referred to below
c/o
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx , XX 00000
0 Xxxx 00xx Xxxxxx
Xxx Xxxx , XX 00000
and
Wachovia Capital Markets, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Trinity Industries, Inc. -— Public Offering
Ladies and Gentlemen:
The undersigned understands that you, as Representatives of the several Underwriters, propose
to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Trinity Industries,
Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public
Offering”) by the several Underwriters named in Schedule I to the Underwriting Agreement (the
“Underwriters”), of 3 7/8% Convertible Subordinated Notes, of the Company (the “Securities”).
Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the
Underwriting Agreement.
28
In consideration of the Underwriters’ agreement to purchase and make the Public Offering of
the Securities, and for other good and valuable consideration receipt of which is hereby
acknowledged, the undersigned hereby agrees that, without the prior written consent of the
Representatives on behalf of the Underwriters, the undersigned will not, during the period ending
45 days after the date of the prospectus relating to the Public Offering (the “Prospectus”), (1)
offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock,
$1.00 per share par value, of the Company (the “Common Stock”) or any securities convertible into
or exercisable or exchangeable for Common Stock (including without limitation, Common Stock which
may be deemed to be beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission and securities which may be issued upon
exercise of a stock option or warrant) or (2) enter into any swap or other agreement that
transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. In addition, the undersigned agrees
that, without the prior written consent of the Representatives on behalf of the Underwriters, it
will not, during the period ending 45 days after the date of the Prospectus, make any demand for or
exercise any right with respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock. Notwithstanding the foregoing,
if (1) during the last 17 days of the 45-day restricted period, the Company issues an earnings
release or material news or a material event relating to the Company becomes publicly available; or
(2) prior to the expiration of the 45-day restricted period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of the 45-day period,
the restrictions imposed by this Letter Agreement shall continue to apply until the expiration of
the 18-day period beginning on the issuance of the earnings release or the occurrence of the
material news or material event. Notwithstanding anything to the contrary in this Letter
Agreement, the undersigned, together with the other persons signing this form of Letter Agreement,
shall be permitted during such restricted period to sell (or transfer economic rights in whole or
in part to, or grant any right, warrant or option with respect to), in aggregate, 1,000,000 shares
of Common Stock (subject to adjustment for stock splits, dividends, combinations of shares or
similar transactions and provided that any shares covered by or transferred pursuant to the
immediately following paragraph shall not be counted towards such 1,000,000 share exception).
The restrictions set forth in the immediately preceding paragraph shall not apply to (a) bona
fide gifts to charitable or nonprofit institutions, (b) dispositions by will or under the laws of
intestacy, (c) dispositions to the immediate family of the undersigned, (d) dispositions to any
trust, partnership or limited liability company for the direct or indirect benefit of the
undersigned and/or the immediate family of the undersigned, (e) dispositions to a spouse, former
spouse, child or other dependent pursuant to a domestic relations order or an order of a court of
competent jurisdiction or (f) dispositions to a nominee or custodian of a person or entity to whom
a disposition or transfer would be permissible under clauses (a) through (e) above; provided that
(i) the transferee agrees in writing with the Underwriters to be bound by the terms of this Letter
Agreement, and (ii) in the case of clauses (b), (c), (d), (e) or (f), no filing by any party
(either transferor or transferee) under Section 16(a) of the Securities Exchange Act of 1934, as
amended, shall be required or shall be made voluntarily in connection with such transfer or
disposition (other than a filing on a Form 5 made after the expiration of the 45-day restricted
period). For purposes of this Letter Agreement, “immediate family” shall mean any relationship by
blood, marriage or adoption, not more remote than first cousin. In addition,
29
notwithstanding the immediately preceding paragraph, if the undersigned is a corporation,
partnership or limited liability company, the corporation, partnership or limited liability company
may transfer the undersigned’s shares of Common Stock to any entity that is an affiliate (as such
term is defined under Rule 405 of the Securities Act of 1933, as amended) of such corporation,
partnership or limited liability company, provided that (i) any such transferee agrees in writing
with the Underwriters to be bound by the terms of this Letter Agreement, and (ii) no filing by any
party (either transferor or transferee) under Section 16(a) of the Securities Exchange Act of 1924,
as amended, shall be required or shall be made voluntarily in connection with such transfer or
disposition (other than a filing on a Form 5 made after the expiration of the 45-day restricted
period). Further, the restrictions set forth in the immediately preceding paragraph shall not
apply to (i) the receipt, exercise, cashless exercise (whether to cover exercise price or taxes),
vesting or forfeiture of, or removal or lapse of restrictions on, any stock option, common stock
issued upon exercise of a stock option, restricted stock or other award pursuant to any existing
employee benefit plan or agreement and (ii) any purchases of Common Stock pursuant to elections
directing the investment of additional funds under the Company’s 401(k) plan.
In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the
registration or transfer of the securities described herein, are hereby authorized to decline to
make any transfer of securities if such transfer would constitute a violation or breach of this
Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Letter Agreement. All authority herein conferred or agreed to be
conferred and any obligations of the undersigned shall be binding upon the successors, assigns,
heirs or personal representatives of the undersigned.
The undersigned understands that, if the Underwriting Agreement does not become effective, or
if the Underwriting Agreement (other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Securities to be sold
thereunder, the undersigned shall be released form all obligations under this Letter Agreement.
The undersigned understands that the Underwriters are entering into the Underwriting Agreement and
proceeding with the Public Offering in reliance upon this Letter Agreement.
This Letter Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to the conflict of laws principles thereof.
Very truly yours, | ||||||
[NAME OF STOCKHOLDER] | ||||||
By: | ||||||
Name: | ||||||
Title: |
30
Exhibit B
[Form of Opinion of Xxxxxx and Xxxxx, LLP]
Xxxxxx and Xxxxx, LLP, counsel for the Company, shall have furnished to the Underwriters their
written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the
Underwriters and subject to such reasonable qualifications and limitations set forth therein, to
the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with corporate power and authority to
own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Preliminary
Prospectus and the Prospectus, in each case, under the heading “Capitalization”; all the
Underlying Securities have been duly and validly authorized and, when duly issued and
delivered in accordance with the terms of the Indenture, will be validly issued and fully
paid and non-assessable; the capital stock of the Company conforms in all material respects
to the description thereof contained in the Registration Statement, the Time of Sale
Information and the Prospectus;
(iii) This Agreement has been duly authorized, executed and delivered by the Company;
(iv) The Indenture has been duly authorized by the Company and (assuming due
authorization, execution and delivery thereof by the Trustee) constitutes a valid and
binding instrument of the Company, enforceable against the Company in accordance with its
terms;
(v) The Securities have been duly authorized by the Company and, when duly executed,
authenticated and delivered as provided for in the Indenture (assuming due authentication by
the Trustee) and paid for as provided in this Agreement will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms;
(vi) Each Transaction Document conforms in all material respects to the description
thereof contained in the Registration Statement, the Time of Sale Information and the
Prospectus;
(vii) No consent, approval, authorization, order, registration or qualification of or
with any court or arbitrator or governmental agency or body or regulatory authority is
required for the execution, delivery and performance of the Company of each Transaction
Document, the issuance and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement and any other Transaction Document, except (i)
the registration under the Act of the Securities, the Underlying Securities and the Rights,
(ii) qualification of the Indenture under the Trust Indenture Act, (iii) such consents,
approvals, authorizations, orders, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters and with the issuance of the Underlying Securities and/or the
Rights, and (iv) any consent, approval, authorization, order, registration, qualification or
other action, that either (A) is or has been obtained or made on or prior to the Closing
Date, or (B) if not obtained or made,
31
would not, individually or in the aggregate, have a material adverse impact on the
rights or remedies available to the Underwriters or any holder of the Securities, Underlying
Securities or Rights, as the case may be.
(viii) The statements set forth in the Prospectus, under the caption “Description of
capital stock” and “Description of notes,” to the extent that they constitute a summary of
the terms of the Securities and the Underlying Securities, fairly summarize the matters
described therein in all material respects;
(ix) The Company is not and, after giving effect to the offering and sale of the
Securities, will not be an “investment company”, as such term is defined in the Investment
Company Act of 1940, as amended (the “Investment Company Act”);
(x) The Registration Statement is an “automatic effective registration statement” as
defined under Rule 405 of the Securities Act that has been filed with the Commission not
earlier than three years prior to the date of this Agreement; the Prospectus was filed with
the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act
specified in such opinion on the date specified therein; and no stop order suspending the
effectiveness of the Registration Statement has been issued, no notice of objection of the
Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company and no
proceeding for that purpose or pursuant to Section 8A of the Securities Act against the
Company or in connection with the offering is pending or, to the knowledge of such counsel,
threatened by the Commission; and
(xi) The Registration Statement, the Preliminary Prospectus and the Prospectus and any
further amendments and supplements thereto made by the Company prior to the Closing Date
(other than (i) the financial statements and related notes and schedules contained or
incorporated by reference therein and (ii) any Tax Matters, statistical or financial data or
information contained or incorporated by reference therein, as to which such counsel need
express no opinion) comply as to form in all material respects with the requirements of the
Act and the rules and regulations thereunder. “Tax Matters” shall mean (a) information
contained under the headings “Material United States federal income tax considerations” and
“Risk Factors—An investment in the notes involves uncertain and potentially adverse tax
risks,” (b) information regarding tax information related to the notes contained under the
heading “Description of notes” and (c) all tax matters and tax information related to the
Securities.
Such counsel shall also state that they have participated in conferences with representatives
of the Company and with representatives of the Company’s independent accountants and counsel at
which conferences the contents of the Registration Statement, the Time of Sale Information, and the
Prospectus and any amendment and supplement thereto and related matters were discussed (it being
understood by the Underwriters that such counsel did not represent the Company with respect to tax
matters relating to the Securities and the offering of the Securities, and the Company was
represented by Xxxxxxxxxxx and Price, LLP with respect to such tax matters) and, although such
counsel is not passing upon and does not assume any responsibility for the accuracy, completeness
or fairness of the Registration Statement, the Time of Sale Information, the Prospectus and any
further amendments and supplements thereto made by the Company prior to the Closing Date or any
statements contained therein, except for those referred to in the opinion in section ___of this
opinion, nothing has come to the attention of such counsel to cause such counsel to believe that
(A) as of its effective date, the Registration Statement or any further amendment thereto made by
the
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Company prior to the Closing Date (other than (i) the financial statements and related notes and
schedules contained or incorporated by reference therein and (ii) any statistical or financial data
or information contained or incorporated by reference therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein not misleading or
(B) that the Time of Sale Information, as of the Applicable Time (other than (i) the financial
statements and related notes and schedules contained or incorporated by reference therein and (ii)
any statistical or financial data or information contained or incorporated by reference therein, as
to which such counsel need express no opinion) contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading (C) that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the Company prior to the Closing
Date (other than (i) the financial statements and related notes and schedules contained or
incorporated by reference therein and (ii) any statistical or financial data or information
contained or incorporated by reference therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading or that, as of the Closing Date, the Prospectus or any further amendment or supplement
thereto made by the Company prior to the Closing Date (other than (i) the financial statements and
related notes and schedules contained or incorporated by reference therein and (ii) any Tax
Matters, statistical or financial data or information contained or incorporated by reference
therein, as to which such counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
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Exhibit C
[Form of Opinion of Xxxxxxxxxxx & Price, LLC]
We have acted as counsel to Trinity Industries, Inc., a Delaware corporation (the “Company”),
in connection with the preparation and filing of a registration statement (Registration No.
333-134596) on Form S-3 (the “Registration Statement”), including a form of prospectus (the
“Prospectus”), for the purpose of registering under the Securities Act of 1933, as amended (the
“Securities Act”), the sale from time to time of (i) up to $500,000,000.00 aggregate principal
amount of the Company’s convertible subordinate Securities due June 1, 2036 (the “Securities”) and
(ii) such indeterminate number of shares of the Company’s common stock, par value $1.00 per share,
as may be issuable upon conversion of the Securities. This opinion and consent is being furnished
in accordance with the requirements of Item 601(b)(8) and 601(b)(23) of Regulation S-K of the
Securities Act.
In delivering this opinion letter, we have reviewed and relied upon: the Registration
Statement and Prospectus. We have also examined, and have relied upon as to matters of fact, in
addition to the documents referred to above, originals, or duplicates or certified or conformed
copies, of such corporate records, agreements, documents and other instruments and certificates or
comparable documents, and we have made such other investigations, as we have deemed relevant and
necessary in connection with the opinion hereinafter set forth. In such examination, we have
assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity
of all documents submitted to us as originals, the conformity to original documents of all
documents submitted to us as duplicates or certified or conformed copies, and the authenticity of
the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations
stated herein and in the Registration Statement, we are of the opinion that the statements set
forth in the Registration Statement under the caption “Material United States federal income tax
considerations,” [and certain other sections relating to tax analysis] to the extent they
constitute summaries of matters of United States federal tax law and regulations or legal
conclusions with respect thereto, fairly summarize the matters described therein in all material
respects.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to
the references to us under the heading “Material United States federal income tax consequences” in
the Prospectus. In giving this consent, we do not admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act.
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Exhibit D
[Form of Opinion of X. Xxxxx Xxxx, Vice President and Chief Legal Officer of the Company]
X. Xxxxx Rice, Vice President and Chief Legal Officer of the Company, shall have furnished to
the Underwriters his written opinion, dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters and subject to such reasonable qualifications and limitations set
forth therein, to the effect that:
(i) Each Significant Subsidiary of the Company has been duly incorporated or formed, as
the case may be, and is validly existing as a corporation, limited liability company or
limited partnership in good standing under the laws of its incorporation or formation, as
the case may be; and all of the issued shares of capital stock, membership interests and
limited partnership interests of each such Significant Subsidiary have been duly and validly
authorized and issued, are, in the case of shares of capital stock or other equity
interests, fully paid and non-assessable, and (except for directors’ qualifying shares and
except as otherwise set forth in the Prospectus) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims (other than pledges
pursuant to the Second Amended and Restated Credit Agreement);
(ii) The Company has full right, power and authority to execute and deliver each of the
Transaction Documents and to perform its obligations thereunder; and all action required to
be taken for the due and proper authorization, execution and delivery by the Company of each
of the Transaction Documents and the consummation by the Company of the transactions
contemplated thereby has been duly and validly taken;
(iii) To such counsel’s knowledge and other than as set forth in the Preliminary
Prospectus and the Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its Significant Subsidiaries is a party or of which any property
of the Company or any of its Significant Subsidiaries is the subject or threatened or
contemplated by governmental authorities or threatened by others which if determined
adversely to the Company or any of its Significant Subsidiaries would have, individually or
in the aggregate, a Material Adverse Effect or materially and adversely affect the ability
of the Company to perform its obligations under the Transaction Documents;
(iv) The issue and sale of the Securities and the issuance by the Company of the
Underlying Securities upon conversion of the Securities and the execution and delivery of
each Transaction Document and the performance by the Company of all its obligations under
the Securities, the Indenture and this Agreement, and the consummation of the transactions
herein and therein contemplated (A) will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to
such counsel to which the Company or any of its Significant Subsidiaries is a party or by
which the Company or any of its Significant Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Significant Subsidiaries is subject, (B)
will not result in any violation of any statute or any order, rule or regulation known to
such counsel of any court or arbitrator or governmental agency or body or regulatory
authority having jurisdiction over the Company or any of its Significant Subsidiaries or any
of their properties and (C) will not result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or formation
35
documents of any such Significant Subsidiary; except in the case of clauses (A) and (B)
above. as would not, individually or in aggregate, reasonably be expected to have a Material
Adverse Effect;
(v) Neither the Company nor any of its Significant Subsidiaries is (A) in violation of
its Certificate of Incorporation or By-laws or similar organizational documents, (B) in
default in the performance or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument known to such counsel to which it is a party or by which it or any
of its properties may be bound or (c) to the knowledge of such counsel, in violation of any
law or statute or any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority; except in each case as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect;
(vi) The documents incorporated by reference in the Preliminary Prospectus, the
Prospectus and the Time of Sale Information or any further amendment or supplement thereto
made by the Company prior to such Closing Date (other than (i) the financial statements and
related notes and schedules contained or incorporated by reference therein and (ii) any Tax
Matters, statistical or other financial data or information contained or incorporated by
reference therein, as to which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder;
(vii) The Registration Statement, the Preliminary Prospectus and the Prospectus and any
further amendments and supplements thereto made by the Company prior to the Closing Date
(other than (i) the financial statements and related notes and schedules contained or
incorporated by reference therein and (ii) any Tax Matters, statistical or financial data or
information contained or incorporated by reference therein, as to which such counsel need
express no opinion) comply as to form in all material respects with the requirements of the
Act and the rules and regulations thereunder; “Tax Matters” shall mean (a) information
contained under the headings “Material United States federal income tax considerations” and
“Risk Factors—An investment in the notes involves uncertain and potentially adverse tax
risks,” (d) information regarding tax information related to the notes contained under the
heading “Description of notes” and (e) all tax matters and tax information related to the
Securities.;
Such counsel shall also state that he has participated in conferences with other
representatives of the Company and with representatives of the Company’s independent accountants
and counsel at which conferences the contents of the Registration Statement, the Time of Sale
Information, and the Prospectus and any amendment and supplement thereto and related matters were
discussed and, although such counsel is not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the Registration Statement, the Time of Sale Information,
the Prospectus and any further amendments and supplements thereto made by the Company prior to the
Closing Date or any statements contained therein, nothing has come to the attention of such counsel
to cause such counsel to believe that, (A) as of its effective date, the Registration Statement or
any further amendment thereto made by the Company prior to the Closing Date (other than (i) the
financial statements and related notes and schedules contained or incorporated by reference therein
and (ii) any financial data or information contained or incorporated by reference therein, as to
which such counsel need express no opinion) contained an untrue
36
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or (B) that the Time of Sale Information,
as of the Applicable Time, (other than (i) the financial statements and related notes and schedules
contained or incorporated by reference therein and (ii) any financial data or information contained
or incorporated by reference therein, as to which such counsel need express no opinion) when
considered together with and as supplemented by the price to the public and number of shares set
forth on the cover page of the Prospectus, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading (C) that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the Company prior to the Closing
Date (other than (i) the financial statements and related notes and schedules contained or
incorporated by reference therein and (ii) any financial data or information contained or
incorporated by reference therein, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading or
that, as of the Closing Date, either the Registration Statement or the Prospectus or any further
amendment or supplement thereto made by the Company prior to the Closing Date (other than (i) the
financial statements and related notes and schedules contained or incorporated by reference therein
and (ii) any Tax Matters or financial data or information contained or incorporated by reference
therein, as to which such counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and such counsel does not
know of any amendment to the Registration Statement required to be filed or of any contracts or
other documents of a character required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus or required to be described in the
Registration Statement or the Prospectus which are not filed or incorporated by reference or
described as required.
37