AMENDMENT NO. 2 TO RIGHTS AGREEMENT
AMENDMENT NO. 2 TO RIGHTS AGREEMENT (this "AMENDMENT") dated as of
October 26, 2001 by and between TRINITY INDUSTRIES, INC., a Delaware corporation
(the "COMPANY"), and THE BANK OF NEW YORK (the "RIGHTS AGENT").
WHEREAS, the Company and the Rights Agent have previously entered into
that certain Rights Agreement, dated as of March 11, 1999, as amended by that
certain Amendment No. 1 to Rights Agreement, dated August 13, 2001 (as amended,
the "AGREEMENT");
WHEREAS, Section 27 (Supplements and Amendments) of the Agreement
provides, in part, that for so long as the Rights (as defined in the Agreement)
are redeemable, the Agreement may be supplemented or amended without the
approval of any holders of certificates representing shares of Common Stock (as
defined in the Agreement);
WHEREAS, the Rights are currently redeemable; and
WHEREAS, the Board of Directors of the Company has entered into an
Agreement and Plan of Merger dated as of August 13, 2001, by and among the
Company, TCMC Acquisition Corp., an Illinois corporation and a wholly owned
subsidiary of the Company, Thrall Car Management Company, Inc., a Delaware
corporation ("NEWCO"), and Thrall Car Manufacturing Company, an Illinois
corporation and wholly owned subsidiary of Newco, and in connection therewith
the Board of Directors of the Company has determined in good faith that the
amendments to the Agreement set forth herein are desirable and, pursuant to
Section 27 (Supplements and Amendments) of the Agreement, has duly authorized
such amendments to the Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
Section 1. Amendment to Section 1 of the Agreement. (a) Section 1 of
the Agreement is hereby amended to add the following definition:
(vv) "Stockholder's Agreement" shall mean the Stockholder's
Agreement dated as of October 26, 2001 among the Company, Newco and
subsequent signatories thereto, as the same may be amended from time to
time.
Section 2. Restatement of the Definition of "Acquiring Person". The
definition of "Acquiring Person" set forth in Section 1(a) of the Agreement is
hereby deleted in its entirety and replaced with the following definition:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner (as such term is hereinafter defined) of 12% or
more of the shares of Common Stock then outstanding, but shall not
include (i) the Company, (ii) any Subsidiary of the Company, (iii) any
employee benefit plan of the Company or of any Subsidiary of the
Company, or any Person or entity organized, appointed or established by
the Company for or pursuant to the terms of any such plan, or (iv) any
Person who becomes an Acquiring Person solely as a result of a
reduction in the number of shares of Common Stock outstanding due to
the repurchase of shares of Common Stock by the Company, unless and
until such Person shall purchase or otherwise become (as a result of
action taken by such Person or its Affiliates or Associates) the
Beneficial Owner of additional shares of Common Stock constituting 1%
or more of the then outstanding shares of Common Stock. Notwithstanding
the foregoing, none of Newco or a Newco Stockholder, or any Affiliate
or Associate of Newco or a Newco Stockholder, or any other Person,
shall be an Acquiring Person while such Person's Beneficial Ownership
of Common Stock is subject to, does not violate, and is in compliance
with, Sections 4 and 5, and, to the extent that it relates to
compliance with Sections 4 and 5, Section 9 of the Stockholder's
Agreement. Notwithstanding the foregoing, if (i) the Board of Directors
of the Company determines in good faith that a Person who would
otherwise be an Acquiring Person, as defined pursuant to the foregoing
provisions of this paragraph, has become such inadvertently (including,
without limitation, because (A) such Person was unaware that it
beneficially owned a percentage of Common Stock that would otherwise
cause such Person to be an Acquiring Person, or (B) such Person was
aware of the extent of its Beneficial Ownership of Common Stock but had
no actual knowledge of the consequences of such Beneficial Ownership
under this Agreement) and without any intention of changing or
influencing control of the Company and (ii) within ten Business Days of
being requested by the Company to advise it regarding the same, such
Person certifies to the Company that such Person acquired shares of
Common Stock in excess of 11.99% inadvertently or without knowledge of
the terms of the Rights and who, together with all Affiliates and
Associates, thereafter does not acquire additional shares of Common
Stock and within ten Business Days of being requested by the Company to
do so disposes of the portion of such Common Stock in excess of 11.99%,
then such Person shall not be deemed to be or to have become an
Acquiring Person for any purposes of this Agreement; provided, however,
that if the Person requested to so certify fails to dispose of such
Common Stock in excess of 11.99% within ten Business Days of the
Company's request, then such Person shall become an Acquiring Person
immediately after such ten Business Day period.
Section 3. Effectiveness. This Amendment shall be effective as of
October 26, 2001, as if executed by both parties on such date. Except as
expressly amended by this Amendment, the Agreement shall remain in full force
and effect, and all references to the Agreement from and after such time shall
be deemed to be references to the Agreement as amended hereby.
Section 4. Governing Law. This Amendment shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes shall
be governed by and construed in accordance with the laws of such state
applicable to contracts made and to be performed entirely within such state;
provided, however, that the rights, duties, responsibilities and obligations of
the Rights Agent shall be governed and construed in accordance with the laws of
the State of New York.
Section 5. Counterparts. This Amendment may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
Section 6. Severability. If any term, provision, covenant or
restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
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Section 7. Descriptive Headings. Descriptive headings of the several
Sections of this Amendment are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions of this
Amendment.
Section 8. Exhibits. Exhibits 2 and 3 to the Agreement are hereby
deemed to be amended in a manner consistent with this Amendment.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2
to Rights Agreement to be duly executed as of the day and year first above
written.
Attest: TRINITY INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------- ------------------------------
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
Vice President, General Counsel Chairman, President & CEO
& Secretary
THE BANK OF NEW YORK
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxx Xxxxxx
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Xxxxxx Xxxxx Xxxxx Xxxxxx
Assistant Vice President Vice President
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