AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 23, 2002
REGISTRATION NO. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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TRINITY INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-0225040
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
---------------
MICHAEL G. FORTADO
TRINITY INDUSTRIES, INC. VICE PRESIDENT AND SECRETARY
2525 STEMMONS FREEWAY 2525 STEMMONS FREEWAY
DALLAS, TEXAS 75207-2401 DALLAS, TEXAS 75207-2401
(214) 631-4420 (214) 631-4420
(Address, including zip code, and telephone number, including area code, (Name, address, including zip code, and telephone number,
of registrant's principal executive offices) including area code, of agent for service)
---------------
Copies of communications to:
W. SCOTT WALLACE
HAYNES AND BOONE, LLP
901 MAIN STREET, SUITE 3100
DALLAS, TEXAS 75202-3789
(214) 651-5000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
At any time and from time to time after this
Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933 other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
=================================================================================================================================
PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED (1) AGGREGATE OFFERING PRICE REGISTRATION FEE
----------------------------------------------------------------------------------- ------------------------ ----------------
Common Stock, par value $1.00 per share (2), Preferred Stock, par value $1.00 per
share, Debt Securities, Common Stock Warrants, Debt Warrants and Depositary Shares.. $150,000,000 (3) $13,800
=================================================================================== ======================== ================
(1) Any securities registered hereunder may be sold separately or as units with
other securities.
(2) Each share is accompanied by a preferred stock purchase right pursuant to a
rights agreement between Trinity Industries, Inc. and the Bank of New York,
as rights agent.
(3) Not specified as to each class of securities to be registered hereunder
pursuant to General Instruction II(D) to Form S-3 under the Securities Act
of 1933.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION--July 23, 2002
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PROSPECTUS
, 2002
[TRINITY INDUSTRIES, INC. LOGO]
TRINITY INDUSTRIES, INC.
$150,000,000 AGGREGATE AMOUNT OF
COMMON STOCK, PREFERRED STOCK, DEBT SECURITIES,
COMMON STOCK WARRANTS, DEBT WARRANTS AND DEPOSITARY SHARES
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TRINITY INDUSTRIES, INC.:
o Our principal product lines include:
o tank and freight railcars and related parts;
o inland dry-cargo and tank barges and related covers;
o highway guardrail and safety products;
o concrete and aggregates;
o weld pipe fittings;
o structural bridge products;
o pressure containers and container heads; and
o leasing and managing railcar fleets.
o Trinity Industries, Inc.
2525 Stemmons Freeway
Dallas, Texas 75207
(214) 631-4420
SYMBOL & MARKET:
o TRN/New York Stock Exchange
THE OFFERING:
o This prospectus allows us to issue and sell shares of our common stock,
preferred stock, debt securities, common stock warrants, debt warrants and
depositary shares over time.
o We are offering to sell up to $150,000,000 of our securities.
o We will provide the specific terms of these securities and also may add,
update or change information contained in this document in supplements to
this prospectus.
o You should read this document and any prospectus supplement carefully
before you invest.
THIS INVESTMENT INVOLVES RISK. SEE "RISK FACTORS" BEGINNING ON PAGE 6.
--------------------------------------------------------------------------------
NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED
OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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TABLE OF CONTENTS
Page
About This Prospectus....................................................3
About Trinity............................................................4
Risk Factors.............................................................6
Special Note Regarding Forward-Looking
Statements.............................................................9
Where to Find More Information..........................................10
Incorporation of Documents by Reference.................................10
Use of Proceeds.........................................................12
Ratio of Earnings to Fixed Charges......................................12
Description of Capital Stock............................................13
Description of Depositary Shares........................................18
Description of Senior Debt Securities and
Subordinated Debt Securities..........................................22
Description of Warrants.................................................28
Plan of Distribution....................................................31
Legal Matters...........................................................33
Experts.................................................................33
You should rely only on the information contained in this prospectus. We
have not authorized anyone to provide you with information different from that
contained in this prospectus. This prospectus is not an offer to sell or a
solicitation of an offer to buy our securities in any jurisdiction where it is
unlawful. The information contained in this prospectus is accurate only as of
the date of this prospectus, regardless of the time of delivery of this
prospectus or of any sale of securities. This preliminary prospectus is subject
to completion prior to any offering of securities.
THIS PROSPECTUS MAY NOT BE USED TO SELL SECURITIES UNLESS ACCOMPANIED BY A
PROSPECTUS SUPPLEMENT.
2
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission using a "shelf" registration process. Under
this shelf process we may sell:
o common stock;
o preferred stock;
o debt securities;
o common stock warrants;
o debt warrants; and
o depositary shares,
either separately or in units, in one or more offerings up to a total dollar
amount of $150,000,000. This prospectus provides you with a general description
of these securities. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information
contained in this prospectus. You should read this prospectus and the applicable
prospectus supplement together with the additional information contained under
the heading "Where You Can Find More Information."
The registration that contains this prospectus (including the exhibits to
the registration statement) contains additional information about us and the
securities offered under this prospectus. That registration statement can be
read at the Securities and Exchange Commission web site or at the Securities and
Exchange Commission and New York Stock Exchange offices mentioned under the
heading "Where You Can Find More Information."
3
ABOUT TRINITY
Trinity is one of the nation's leading diversified industrial companies
providing a variety of high volume, repetitive products and services for the
transportation, industrial and construction sectors of the market place. We
compete in cyclical markets and are continuously looking for opportunities to
improve our competitive positions. Our principal product lines include:
o tank and freight railcars and related parts;
o inland dry-cargo and tank barges and related covers;
o highway guardrail and safety products;
o concrete and aggregates;
o weld pipe fittings;
o structural bridge products;
o pressure containers and container heads; and
o leasing and managing railcar fleets.
Our five principal business groups are set forth below:
TRINITY RAIL GROUP. Our railcar group primarily serves two markets: North
America and Europe. We develop and manufacture a comprehensive selection of
railcars used for transporting a wide variety of liquids, gases and dry cargo.
From tank cars to specialty cars, we produce the widest range of railcars in the
industry and are the largest producer of railcars in North America. We also
manufacture and sell railcar parts, such as auto carrier doors and accessories,
hatch rings, discharge gates, covers, floors, yokes, couplers, axles, hitches,
bogies, center plates and chutes. The parts are ultimately used in manufacturing
and repairing railcars. In addition, we have the ability to maintain, repair and
modify railcars through our repair network.
INLAND BARGE GROUP. We are the largest producer of inland barges in the
United States. We manufacture a variety of dry-cargo barges, such as deck barges
and open and covered hopper barges that transport various commodities, such as
grain, coal and aggregates. We also produce tank barges used to transport liquid
products at high or low temperatures. Our manufacturing facilities are located
along the United States inland river system allowing for rapid delivery to our
customers.
CONSTRUCTION PRODUCTS GROUP. Our construction products group is composed
of highway safety products, concrete and aggregates, beams and girders used in
highway construction and weld pipe fittings. We are one of the largest
manufacturers of roadside safety products in North America. Our products include
highway safety guardrails and patented products such as guardrail end terminals,
crash cushions, and other protective barriers that absorb and dissipate the
force of impact in collisions between vehicles and fixed roadside objects. We
supply ready mix concrete to the industrial, residential and highway
construction businesses and provide aggregates such as crushed stone, sand and
gravel for a variety of uses. In addition, we also supply weld pipe fittings,
such as caps, elbows, return bends, tees, concentric and eccentric reducers and
full and reducing tees.
INDUSTRIAL PRODUCTS GROUP. We are a leading producer of tank containers
and tank heads for pressure vessels. We manufacture our tanks in the United
States, Mexico and Brazil. Our tanks include gas tanks for rural housing,
transport and storage tanks, motor fuel tanks, air receivers and a variety of
cylinders. We market a portion of our industrial products in Mexico under the
brand name of TATSA.
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TRINITY RAILCAR LEASING AND MANAGEMENT SERVICES GROUP. We lease
specialized types of railcars, consisting of both tank cars and freight cars.
Our railcars are leased to industrial companies in the petroleum, chemical,
agricultural, energy and other industries that supply their own railcars to the
railroads.
We originally incorporated in Texas in 1933 as Trinity Industries, Inc.
and reincorporated in Delaware in 1987. Our principal offices are located at
2525 Stemmons Freeway, Dallas, Texas 75207-2401, and our telephone number is
(214) 631-4420. Our Internet web site is at www.trin.net. The information on our
web site does not constitute a part of this prospectus.
5
RISK FACTORS
Investing in our securities will provide you with an interest in, or
obligation of, Trinity. As an investor, you will be subject to risks inherent in
our business. The performance of your investment in Trinity will reflect the
performance of our business relative to, among other things, general economic
and industry conditions, market conditions and competition. The value of your
investment may increase or it may decline and could result in a loss. You should
carefully consider the following factors as well as other information contained
in this prospectus or information incorporated by reference before deciding to
make any investment in Trinity.
RISKS RELATED TO OUR INDUSTRIES
THE CYCLICAL NATURE OF OUR BUSINESS RESULTS IN LOWER REVENUES DURING
ECONOMIC DOWNTURNS.
We operate in cyclical industries. Downturns in overall economic
conditions usually have a significant adverse effect on cyclical industries due
to a decreased demand for new and replacement products. This decreased demand
could result in lower sales volumes, lower prices and/or a loss of profits. In
addition, our acquisition of Thrall Car Manufacturing Company has increased our
exposure to the effects of the cyclical nature of the railcar business. The
railcar industry is presently in a deep down cycle and operating with a minimal
backlog. If this down cycle continues we could experience increased losses and
could make additional plant closures and incur related costs.
OUR MANUFACTURER'S WARRANTIES EXPOSE US TO POTENTIALLY SIGNIFICANT CLAIMS.
We warrant the workmanship and materials of many of our products under
limited warranties. Accordingly, we may be subject to significant warranty
claims in the future such as multiple claims based on one defect repeated
throughout our mass production process or claims for which the cost of repairing
the defective part is highly disproportionate to the original cost of the part.
We have never experienced any material losses attributable to warranty claims,
but the possibility exists for these types of warranty claims to result in
costly product recalls, significant repair costs and damage to our reputation.
WE MAY BE LIABLE FOR PRODUCT LIABILITY CLAIMS THAT EXCEED OUR INSURANCE
COVERAGE.
The nature of our business subjects us to product liability claims,
especially in connection with the repair and manufacture of products that carry
hazardous or volatile materials. We maintain reserves and liability insurance
coverage at levels based upon commercial norms in the industries in which we
operate and our historical claims experience. However, an unusually large
product liability claim or a string of claims based on a failure repeated
throughout our mass production process may exceed our insurance coverage or
result in damage to our reputation.
WE HAVE POTENTIAL EXPOSURE TO ENVIRONMENTAL LIABILITIES, WHICH MAY
INCREASE COSTS AND LOWER PROFITABILITY.
Our operations are subject to extensive and frequently changing federal,
state and local environmental laws and regulations, including those dealing with
air quality and the handling and disposal of waste products, fuel products and
hazardous substances. In particular, we may be required to incur remediation
costs and other related expenses because:
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o some of our manufacturing facilities were constructed and operated
before the adoption of the current environmental laws and the
institution of compliance practices; and
o some of the products that we manufacture are used to transport
hazardous materials.
Furthermore, although we have conducted and intend to conduct appropriate
due diligence with respect to environmental matters in connection with
acquisitions, we may be unable to identify or be indemnified for all potential
environmental liabilities relating to any acquired business. Environmental
liabilities incurred by us, if not covered by adequate insurance or
indemnification, will increase our costs and have a negative impact on our
profitability.
WE COMPETE IN HIGHLY COMPETITIVE INDUSTRIES, WHICH MAY IMPACT OUR
FINANCIAL RESULTS.
We face aggressive competition in all geographic markets and each industry
sector in which we operate. As a result, competition on pricing is often
intense. The effect of this competition could reduce our revenues, limit our
ability to grow, increase pricing pressure on our products, and otherwise affect
our financial results.
RISKS RELATED TO TRINITY
FLUCTUATIONS IN THE SUPPLY OF COMPONENT PARTS USED IN THE PRODUCTION OF
OUR PRODUCTS COULD HAVE A MATERIAL ADVERSE EFFECT ON OUR ABILITY TO
COST-EFFECTIVELY MANUFACTURE AND SELL OUR PRODUCTS.
A significant portion of our business depends on the adequate supply of
numerous specialty components such as brakes, wheels, side frames and bolsters
at competitive prices. We depend on outside suppliers for a significant portion
of our component part needs. While we endeavor to be diligent in our contractual
relationships with our suppliers, a significant decrease in the availability of
specialty components could materially increase our cost of goods sold or prevent
us from manufacturing our products on a timely basis.
RISKS RELATED TO OUR OPERATIONS OUTSIDE OF THE UNITED STATES COULD
ADVERSELY IMPACT OUR OPERATING RESULTS.
Our operations outside of the United States are subject to the risks
associated with cross-border business transactions and activities. Political,
legal, trade or economic changes or instability could limit or curtail our
foreign business activities and operations. Some foreign countries where we
operate have regulatory authorities that regulate railroad safety, railcar
design and railcar component part design, performance and manufacture used on
their railroad systems. If we fail to obtain and maintain certifications of our
railcars and railcar parts within the various foreign countries where we
operate, we may be unable to market and sell our railcars in those countries. In
addition, unexpected changes in regulatory requirements, tariffs and other trade
barriers, more stringent rules relating to labor or the environment, adverse tax
consequences and price exchange controls could limit operations and make the
manufacture and distribution of our products difficult. Furthermore, any
material change in the quotas, regulations or duties on imports imposed by the
U.S. government and agencies or on exports by the overnment of Mexico or its
agencies could affect our ability to export the railcars and liquified petroleum
gas containers that we manufacture in Mexico. The uncertainty of the legal
environment in these and other areas could limit our ability to enforce our
rights effectively.
7
WE MAY INCUR INCREASED COSTS DUE TO FLUCTUATIONS IN INTEREST RATES AND
FOREIGN CURRENCY EXCHANGE RATES.
We are exposed to risks associated with fluctuations in interest rates and
changes in foreign currency exchange rates. We seek to minimize these risks,
when considered appropriate, through the use of currency and interest rate
hedges and similar financial instruments and other activities, although these
measures may not be implemented or effective. Any material and untimely changes
in interest rates or exchange rates could result in significant losses to us.
BECAUSE WE DO NOT HAVE EMPLOYMENT CONTRACTS WITH OUR KEY MANAGEMENT
EMPLOYEES, WE MAY NOT BE ABLE TO RETAIN THEIR SERVICES IN THE FUTURE.
Our success depends on the continued services of our key management
employees, none of whom currently have employment agreements with us. Although
we have historically been successful in retaining the services of our key
management, we may be unable to do so in the future. The loss of the services of
one or more key members of our management team could result in increased costs
associated with attracting and retaining a qualified replacement and could
disrupt our operations and result in a loss of revenues.
ALTHOUGH OUR BUSINESS WAS NOT DIRECTLY IMPACTED BY THE RECENT TERRORIST
ATTACKS AGAINST THE UNITED STATES, THE LONG-TERM EFFECT OF THESE EVENTS, OR THE
DOMESTIC OR FOREIGN RESPONSE TO THEM, COULD NEGATIVELY AFFECT OUR ABILITY TO
OPERATE PROFITABLY IN THE FUTURE.
The terrorist attacks that occurred in the United States on September 11,
2001, the subsequent military response by the United States, other terrorist
attacks and future events occurring in response to or in connection with these
attacks may negatively impact the economy in general. In particular, the
negative impacts of these events may affect the industries in which we operate.
This could result in delays in or cancellations of the purchase of our products
or shortages of raw materials or component parts. Any of these occurrences could
have a significant adverse impact on our operating results, revenues and costs.
8
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements under "Risk Factors" and elsewhere in this
prospectus constitute forward- looking statements. All projections contained in
this prospectus are forward-looking statements. These statements involve known
and unknown risks, uncertainties and other factors that may cause our or our
industry's actual results, levels of activity, performance or achievements to be
materially different from any future results, levels of activity, performance or
achievements expressed or implied by these forward- looking statements.
Forward-looking statements relate to future events or our future financial
performance. In some cases, you can identify forward-looking statements by
terminology like "may," "will," "should," "expect," "plan," "project,"
"anticipate," "intend," "believe," "estimate," "predict," "potential," or
"continue" or the negative of these terms or other comparable terminology. These
statements are only predictions. Actual events or results may differ materially.
In evaluating these statements, you should specifically consider various
factors, including the risks outlined under "Risk Factors." These factors may
cause our actual results to differ materially from any forward-looking
statement.
Potential factors that could cause our actual results of operations to
differ materially from those in the forward-looking statements include:
o market conditions and demand for our products;
o the cyclical nature of both the railcar and barge industries;
o the timing of introduction of new products;
o the timing of customer orders;
o price erosion;
o changes in mix of products sold;
o the extent of utilization of manufacturing capacity;
o availability of supplies and raw materials;
o price competition and other competitive factors;
o technologies;
o steel prices;
o interest rates and capital costs;
o taxes;
o the stability of the governments and political and business
conditions in certain foreign countries, particularly Mexico and
Romania;
o changes in import and export quotas and regulations;
o business conditions in emerging economies; and
o legal, regulatory and environmental issues.
Although we believe that the expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee future results, levels of
activity, performance or achievements. Moreover, neither we nor any other person
assumes responsibility for the accuracy and completeness of these statements. We
are under no duty to update any of the forward-looking statements after the date
of this prospectus to conform these statements to actual results and do not
intend to do so.
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WHERE TO FIND MORE INFORMATION
We are subject to the reporting requirements of the Securities Exchange
Act of 1934, as amended, and file annual, quarterly and current reports, proxy
statements and other information with the SEC. You may read and copy these
reports, proxy statements and other information at the SEC's public reference
facilities at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549.
You can request copies of these documents by writing to the SEC and paying a fee
for the copying cost. Please call the SEC at 1-800- SEC-0330 for more
information about the operation of the public reference facilities. SEC filings
are also available at the SEC's Web site at http://www.sec.gov. Our common stock
is listed on the New York Stock Exchange, and you can read and inspect our
filings at the offices of the New York Stock Exchange at 20 Broad Street, New
York, New York 10005.
This prospectus is only part of a Registration Statement on Form S-3 that
we have filed with the SEC under the Securities Act of 1933, as amended, and
therefore omits information contained in the Registration Statement. We have
also filed exhibits and schedules with the Registration Statement that are not
contained in this prospectus, and you should refer to the applicable exhibit or
schedule for a complete description of any statement referring to any contract
or other document. You may inspect a copy of the Registration Statement,
including the exhibits and schedules, without charge, at the public reference
room or obtain a copy from the SEC upon payment of the fees prescribed by the
SEC.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" information that we file
with them. Incorporation by reference allows us to disclose important
information to you by referring you to those other documents. The information
incorporated by reference is an important part of this prospectus, and
information that we file later with the SEC will automatically update and
supersede this information. We filed a Registration Statement on Form S-3 under
the Securities Act of 1933 with the SEC with respect to the securities being
offered pursuant to this prospectus. This prospectus omits information contained
in the Registration Statement, as permitted by the SEC. You should refer to the
Registration Statement, including the exhibits, for further information about us
and the securities being offered pursuant to this prospectus. Statements in this
prospectus regarding the provisions of documents filed with, or incorporated by
reference in, the Registration Statement are not necessarily complete and each
statement is qualified in all respects by that reference. Copies of all or any
part of the Registration Statement, including the documents incorporated by
reference or the exhibits, may be obtained upon payment of the prescribed rates
at the offices of the SEC listed above. The documents we are incorporating by
reference are:
o Our Transition Report on Form 10-K for the nine months ended
December 31, 2001;
o Our Quarterly Report on Form 10-Q for the quarter ended March 31,
2002;
o Our Current Report on Form 8-K/A, filed December 28, 2001;
o Our Current Report on Form 8-K, filed February 19, 2002;
o Our Current Report on Form 8-K, filed March 7, 2002;
o Our Current Report on Form 8-K, filed March 12, 2002;
o Our Current Report on Form 8-K, filed March 20, 2002;
o Our Current Report on Form 8-K, filed April 30, 2002; and
o All documents filed by us pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended, subsequent
to the date of this prospectus and prior to the
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termination of the effectiveness of the Registration Statement of
which this prospectus is a part.
You can obtain any of the filings incorporated by reference in this
prospectus through us or from the SEC through the SEC's website or at the
address listed above. Documents incorporated by reference are available from us
without charge, excluding any exhibits to those documents that are not
specifically incorporated by reference in those documents. You can request a
copy of the documents incorporated by reference in this prospectus and other
documents and agreements referred to in this prospectus by requesting them in
writing or by telephone from us at the following address:
Trinity Industries, Inc.
2525 Stemmons Freeway
Dallas, Texas 75207-2401
Attention: Michael G. Fortado
Telephone: (214) 631-4420
This prospectus is part of a Registration Statement we filed with the SEC.
You should rely only on the information incorporated by reference in or provided
in this prospectus and the Registration Statement. We have not authorized any
other person to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus is accurate as of any
date other than the date on the front of this document.
11
USE OF PROCEEDS
Except as otherwise provided in the related prospectus supplement, we will
use the net proceeds from the sale of the offered securities for general
corporate purposes. The purposes may include, but are not limited to, the
following:
o repayments or refinancings of debt or other corporate obligations;
o working capital;
o capital expenditures; and
o acquisitions.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our consolidated ratios of earnings to
fixed charges for the periods shown.
Three Months Nine Fiscal Years Ended March 31,
Ended March 31, 2002 Months Ended --------------------------------------------
(unaudited) December 31, 2001 2001 2000 1999 1998
-------------------- ----------------- -------- -------- ------- ------
(a) (a) (a) 12.16x 13.30x 7.51x
The ratio of earnings to fixed charges represents, on a pre-tax basis, the
number of times earnings cover fixed charges. Earnings means the sum of our
pre-tax income and our fixed charges, net of interest capitalized. Fixed charges
consist of interest on indebtedness, amortization of debt issuance costs and
the interest portion of all rentals charged to income.
(a) Earnings were inadequate to cover fixed charges for the three months
ended March 31, 2002, the nine months ended December 31, 2001, and the fiscal
year ended March 31, 2001. The deficiency for these periods was $11.4 million,
$40.5 million, and $116.3 million, respectively.
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DESCRIPTION OF CAPITAL STOCK
GENERAL
This prospectus describes the general terms of our capital stock. For a
more detailed description of these securities, you should read the applicable
provisions of Delaware law and our certificate of incorporation, as amended.
When we offer to sell a particular series of these securities, we will describe
the specific terms of the series in a supplement to this prospectus.
Accordingly, for a description of the terms of any series of securities, you
must refer to both the prospectus supplement relating to that series and the
description of the securities described in this prospectus. A prospectus
supplement may change any of the terms of the securities described in this
prospectus.
Under our certificate of incorporation, the total number of shares of all
classes of stock that we have authority to issue is 101,500,000, consisting of
100,000,000 shares of common stock, par value $1.00 per share, and 1,500,000
shares of preferred stock, no par value per share, of which 1,000,000 shares of
Series A Junior Participating Preferred Stock are authorized.
COMMON STOCK
As of June 30, 2002, we had 45,900,144 shares of common stock outstanding.
As of that date, there were approximately 1,918 holders of record of the
outstanding shares of common stock. The holders of our common stock are entitled
to one vote for each share on all matters voted on by stockholders. The holders
of our common stock possess all voting power, except as otherwise required by
law or provided in any resolution adopted by our board of directors regarding
any series of preferred stock. Subject to any preferential or other rights of
any outstanding series of our preferred stock that may be designated by our
board, the holders of our common stock will be entitled to such dividends as may
be declared from time to time by our board from available funds and upon
liquidation will be entitled to receive pro rata all of our assets available for
distribution to the holders. The common stock has no subscription, redemption,
conversion or preemptive rights. All shares of common stock are fully paid and
nonassessable.
PREFERRED STOCK
As of the date of this prospectus, no shares of preferred stock were
outstanding. Under our certificate of incorporation, our board of directors is
authorized to issue shares of our preferred stock from time to time, in one or
more classes or series, without stockholder approval. Prior to the issuance of
shares of each series of preferred stock other than the already existing Series
A Junior Participating Preferred Stock, the board of directors is required by
the Delaware General Corporation Law and our certificate of incorporation to
adopt resolutions and file a certificate of designation with the Secretary of
State of the State of Delaware. The certificate of designation fixes for each
class or series the designations, powers, preferences, rights, qualifications,
limitations and restrictions, including the following:
o the number of shares constituting each class or series;
o voting rights;
o rights and terms of redemption, including any sinking fund
provisions;
o dividend rights and rates;
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o dissolution;
o terms concerning the distribution of assets;
o conversion or exchange terms;
o redemption prices; and
o liquidation preferences.
All shares of preferred stock offered by this prospectus will, when
issued, be fully paid and nonassessable and will not have any preemptive or
similar rights.
We will describe in a prospectus supplement relating to the class or
series of preferred stock being offered the following terms:
o the title and stated value of the preferred stock;
o the number of shares of the preferred stock offered, the liquidation
preference per share and the offering price of the preferred stock;
o the dividend rate(s), period(s) or payment date(s) or method(s) of
calculation applicable to the preferred stock;
o whether dividends are cumulative or non-cumulative and, if
cumulative, the date from which dividends on the preferred stock
will accumulate;
o the procedures for any auction and remarketing, if any, for the
preferred stock;
o the provisions for a sinking fund, if any, for the preferred stock;
o the provision for redemption, if applicable, of the preferred stock;
o any listing of the preferred stock on any securities exchange;
o the terms and conditions, if applicable, upon which the preferred
stock will be convertible into common stock, including the
conversion price or manner of calculation and conversion period;
o voting rights, if any, of the preferred stock;
o whether interests in the preferred stock will be represented by
depositary shares;
o a discussion of any material or special United States federal income
tax considerations applicable to the preferred stock;
o the relative ranking and preferences of the preferred stock as to
dividend rights and rights upon the liquidation, dissolution or
winding up of our affairs;
o any limitations on issuance of any class or series of preferred
stock ranking senior to or on a parity with the class or series of
preferred stock as to dividend rights and rights upon liquidation,
dissolution or winding up of our affairs; and
o any other specific terms, preferences, rights, limitations or
restrictions of the preferred stock.
RANK
Unless we specify otherwise in the applicable prospectus supplement, the
preferred stock will rank, relating to dividends and upon our liquidation,
dissolution or winding up:
o senior to all classes or series of our common stock and to all of
our equity securities ranking junior to the preferred stock;
o on a parity with all of our equity securities the terms of which
specifically provide that the equity securities rank on a parity
with the preferred stock; and
o junior to all of our equity securities the terms of which
specifically provide that the equity
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securities rank senior to the preferred stock.
The term equity securities does not include convertible debt securities.
STOCKHOLDER RIGHTS PLAN
On March 11, 1999, our board of directors adopted a rights agreement and
declared a dividend of one right for each share of common stock outstanding as
of April 27, 1999. Each right entitles the holder to purchase one one-hundredth
(1/100th) of a share of a new series of our preferred stock designated as
"Series A Junior Participating Preferred Stock" at an exercise price of $200.00.
Rights are only exercisable (under certain circumstances specified in our rights
agreement, as amended) when there has been a distribution of the rights (and
such rights are no longer redeemable by Trinity). A distribution of the rights
would occur upon the earlier of: (i) ten business days following a public
announcement that any person or group has acquired beneficial ownership of 12%
or more of the outstanding shares of common stock, or (ii) ten business days
following the commencement of a tender offer or exchange offer that would result
in any person or group acquiring beneficial ownership of 12% or more of the
outstanding shares of common stock.
The rights will expire at the close of business on April 27, 2009, unless
such date is extended or the rights are earlier redeemed or exchanged by
Trinity. Until a right is exercised, the holder thereof, as such, will have no
rights as a stockholder of Trinity, including, without limitation, no right to
vote or to receive dividends.
If any person or group acquires 12% or more of the Company's outstanding
common stock, the "flip- in" provision of the rights will be triggered and the
rights will entitle each holder of such rights (other than any acquiring person
or group, whose rights will be null and void) to acquire a number of additional
shares of the our common stock having a market value of twice the exercise price
of each right. In the event that we are involved in a merger or other business
combination transaction, each right will entitle its holder to purchase, at the
right's then-current exercise price, a number of shares of the acquiring
company's common stock having a market value at that time of twice the rights'
exercise price.
Any of the provisions of our rights agreement may be amended by our board
of directors prior to the distribution of the rights. After such distribution,
the provisions of our rights agreement may be amended by our board of directors
in order to cure any ambiguity, to make changes which do not adversely affect
the interests of holders of rights or to shorten or lengthen any time period
under our rights agreement. The foregoing notwithstanding, no amendment may be
made at such time as the rights are not redeemable.
The rights agreement is intended to protect shareholders in the event of
an unsolicited attempt to acquire us. The right is transferred automatically
with the transfer of the common stock until separate rights certificates are
distributed upon the occurrence of certain events. The rights agreement could
have the effect of delaying, deferring or preventing a person from acquiring us
or accomplishing a change in control of the board of directors. This description
of the rights agreement is intended as a summary only and is qualified in its
entirety by reference to the rights agreement dated as of March 11, 1999, as
amended, between Trinity and The Bank of New York. To obtain a copy of the
rights agreement, as amended, see the section of this prospectus entitled "Where
You Can Find More Information."
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PROVISIONS OF DELAWARE LAW THAT MAY PREVENT TAKEOVERS
The acquisition of Trinity by means of a tender offer, a proxy contest or
otherwise and the removal of incumbent officers and directors may be more
difficult due to provisions of Delaware law. These provisions are expected to
discourage types of coercive takeover practices and inadequate takeover bids and
to encourage persons seeking to acquire control of Trinity to first negotiate
with us. We believe the increased protection of our potential ability to
negotiate with the proponent of an unfriendly or unsolicited proposal to acquire
or restructure Trinity outweighs the disadvantages of discouraging these
proposals because, among other things, negotiation of these proposals could
result in an improvement of the terms of any of these proposals.
We are subject to the provisions of Section 203 of the Delaware General
Corporation Law. In general, the statute prohibits us from engaging in a
"business combination" with an "interested stockholder" for a period of three
years after the date that the person became an interested stockholder, unless:
o prior to the date that the person became an interested stockholder,
the transaction or business combination that resulted in the person
becoming an interested stockholder is approved by the board of
directors;
o upon consummation of the transaction that resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owns at least 85% of our outstanding voting stock; or
o on or after that date, the business combination is approved by our
board of directors and by the affirmative vote of at least 66 2/3%
of our outstanding voting stock that is not owned by the interested
stockholder.
Generally, a "business combination" includes a merger, asset or stock sale, or
other transaction resulting in a financial benefit to the stockholder. Subject
to specified exceptions, an "interested stockholder" is a person who, together
with that person's affiliates and associates, owns or within the previous three
years, did own 15% or more of our voting stock.
PROVISIONS OF THE CERTIFICATE OF INCORPORATION AND BYLAWS THAT MAY PREVENT
TAKEOVERS
Our certificate of incorporation and bylaws contain provisions that may
delay, defer or prevent a change in control of Trinity and make removal of our
management more difficult.
Our bylaws provide that a stockholder may nominate directors only if the
stockholder delivers written notice to us not less than 60 days or more than 90
days before the first anniversary of the preceding year's annual meeting. If the
date of the annual meeting is advanced more than 30 days before or delayed more
than 30 days after the anniversary of the preceding year's annual meeting, then
we must receive the stockholder's notice not after the later of the sixtieth day
before the annual meeting or the tenth day after the day the public announcement
of the date of the annual meeting is made.
Our bylaws provide that any newly created directorship resulting from an
increase in the number of directors or a vacancy on the board of directors may
be filled only by vote of a majority of the remaining directors then in office,
even if less than a quorum. Directors elected to fill a vacancy or by reason of
an
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increase in the number of directors will hold office until the annual meeting of
stockholders at which the term to which they have been elected expires.
Directors may be removed from office only with or without cause and only by the
affirmative vote of 50% of the then outstanding shares of stock entitled to vote
on the matter.
The foregoing provisions, together with the ability of the board of
directors to issue preferred stock without further stockholder action, may delay
or frustrate the removal of incumbent directors or the completion of
transactions that would be beneficial, in the short term, to our stockholders.
The provisions may also discourage or make more difficult a merger, tender
offer, other business combination or proxy contest, the assumption of control by
a holder of a large block of our securities or the removal of incumbent
management, even if these events would be favorable to the interests of our
stockholders.
The certificate of incorporation and bylaws requires us to indemnify our
directors and officers to the fullest extent permitted by law. In addition, as
permitted by Delaware law, the certificate of incorporation provides that no
director will be liable to us or our stockholders for monetary damages for
breach of fiduciary duties as a director. The effect of this provision is to
restrict our rights and the rights of our stockholders in derivative suits to
recover monetary damages against a director for breach of fiduciary duties as a
director, except that a director will be personally liable for:
o acts or omissions not in good faith for which involve intentional
misconduct or a knowing violation of law;
o the payment of dividends or the redemption or purchase of stock in
violation of Delaware law;
o any breach of the duty of loyalty to Trinity or our stockholders; or
o any transaction from which the director derived an improper personal
benefit.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the common stock is The Bank of New
York.
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DESCRIPTION OF DEPOSITARY SHARES
GENERAL
We may issue depositary shares, each of which will represent a fractional
interest of a share of a particular series of preferred stock, as specified in
the applicable prospectus supplement. We will deposit with a depositary,
referred to as the preferred stock depositary, shares of preferred stock of each
series represented by depositary shares. We will enter into a deposit agreement
with the preferred stock depositary and holders from time to time of the
depositary receipts issued by the preferred stock depositary which evidence the
depositary shares. Subject to the terms of the deposit agreement, each owner of
a depositary receipt will be entitled, in proportion to the holder's fractional
interest in the preferred stock, to all the rights and preferences of the series
of the preferred stock represented by the depositary shares, including dividend,
voting, conversion, redemption and liquidation rights.
Immediately after we issue and deliver the preferred stock to a preferred
stock depositary, we will cause the preferred stock depositary to issue the
depositary receipts on our behalf. You may obtain copies of the applicable form
of deposit agreement and depositary receipt from us upon request. The statements
made in this section relating to the deposit agreement and the depositary
receipts are summaries of the anticipated provisions. These summaries are not
complete and we may modify them in a prospectus supplement. For more detail, we
refer you to the prospectus supplement and to the deposit agreement itself,
which we will file as an exhibit to the registration statement of which this
prospectus forms a part.
DIVIDENDS AND OTHER DISTRIBUTIONS
The preferred stock depositary will distribute all cash dividends or other
cash distributions received relating to the preferred stock to the record
holders of depositary receipts in proportion to the number of the depositary
receipts owned by the holders, subject to the obligations of holders to file
proofs, certificates and other information and to pay certain charges and
expenses to the preferred stock depositary.
In the event of a distribution other than in cash, the preferred stock
depositary will distribute property received by it to the record holders of
depositary receipts in proportion to the number of the depositary receipts owned
by the holders, unless the preferred stock depositary determines that it is not
feasible to make the distribution, in which case the preferred stock depositary
may, with our approval, sell the property and distribute the net proceeds from
the sale to the holders.
No distribution will be made relating to any depositary share that
represents any preferred stock converted into other securities.
WITHDRAWAL OF STOCK
Assuming we have not previously called for redemption or converted into
other securities the related depositary shares, upon surrender of the depositary
receipts at the corporate trust office of the preferred stock depositary, the
holders will be entitled to delivery at that office of the number of whole or
fractional shares of the preferred stock and any money or other property
represented by the depositary
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shares. Holders of depositary receipts will be entitled to receive shares of the
related preferred stock as specified in the applicable prospectus supplement,
but holders of the shares of preferred stock will no longer be entitled to
receive depositary shares.
REDEMPTION OF DEPOSITARY SHARES
Whenever we redeem shares of preferred stock held by the preferred stock
depositary, the preferred stock depositary will concurrently redeem the number
of depositary shares representing shares of the preferred stock so redeemed,
provided we have paid the applicable redemption price for the preferred stock to
be redeemed plus an amount equal to any accrued and unpaid dividends to the date
fixed for redemption. The redemption price per depositary share will be equal to
the corresponding proportion of the redemption price and any other amounts per
share payable relating to the preferred stock. If fewer than all the depositary
shares are to be redeemed, the depositary shares to be redeemed will be selected
pro rata or by any other equitable method determined by us.
From and after the date fixed for redemption:
o all dividends relating to the shares of preferred stock called for
redemption will cease to accrue;
o the depositary shares called for redemption will no longer be deemed
to be outstanding; and
o all rights of the holders of the depositary receipts evidencing the
depositary shares called for redemption will cease, except the right
to receive any moneys payable upon the redemption and any money or
other property to which the holders of the depositary receipts were
entitled upon redemption and surrender to the preferred stock
depositary.
VOTING OF THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the
preferred stock are entitled to vote, the preferred stock depositary will mail
the information contained in the notice of meeting to the record holders of the
depositary receipts. Each record holder of these depositary receipts on the
record date, which will be the same date as the record date for the preferred
stock, will be entitled to instruct the preferred stock depositary as to the
exercise of the voting rights pertaining to the amount of preferred stock
represented by the holder's depositary shares. The preferred stock depositary
will vote the amount of preferred stock represented by the depositary shares in
accordance with the instructions, and we will agree to take all reasonable
action necessary to enable the preferred stock depositary to do so. The
preferred stock depositary will abstain from voting the amount of preferred
stock represented by the depositary shares for which it does not receive
specific instructions from the holders of depositary receipts evidencing the
depositary shares. The preferred stock depositary will not be responsible for
any failure to carry out any instruction to vote, or for the manner or effect of
any vote made, as long as the action or non-action is in good faith and does not
result from the preferred stock depositary's negligence or willful misconduct.
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LIQUIDATION PREFERENCE
In the event that we voluntarily or involuntarily liquidate, dissolve or
wind up, the holders of each depositary receipt will be entitled to the fraction
of the liquidation preference accorded each share of preferred stock represented
by the depositary shares, as set forth in the applicable prospectus supplement.
CONVERSION OF PREFERRED STOCK
The depositary shares will not be convertible into common stock or any of
our other securities or property. Nevertheless, if we so specify in the
applicable prospectus supplement relating to an offering of depositary shares,
holders may surrender depositary receipts to the preferred stock depositary with
written instructions to the preferred stock depositary to instruct us to convert
the preferred stock represented by the depositary shares into whole shares of
common stock, other shares of our preferred stock or other shares of stock. We
have agreed that upon receipt of the instructions and any amounts payable, we
will convert the depositary shares using the same procedures as those provided
for converting preferred stock. If the depositary shares evidenced by a
depositary receipt are to be converted in part only, the preferred stock
depositary will issue a new depositary receipt for any depositary shares not
converted. No fractional shares of common stock will be issued upon conversion,
and if the conversion would result in a fractional share being issued, we will
pay an amount in cash equal to the value of the fractional interest based upon
the closing price of the common stock on the last business day prior to the
conversion.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
We may amend the form of depositary receipt and any provision of the
deposit agreement at any time by agreement between us and the preferred stock
depositary. However, any amendment that materially and adversely alters the
rights of the holders of depositary receipts or that would be materially and
adversely inconsistent with the rights granted to the holders of the related
preferred stock will not be effective unless the holders of at least two-thirds
of the depositary shares evidenced by the depositary receipts then outstanding
approve the amendment. No amendment will impair the right, subject to the
exceptions in the depositary agreement, of any holder of depositary receipts to
surrender any depositary receipt with instructions to deliver to the holder the
related preferred stock and all money and other property, if any, represented by
the depositary receipt, except in order to comply with law. Every holder of an
outstanding depositary receipt at the time any amendment becomes effective will
be deemed, by continuing to hold the receipt, to consent and agree to the
amendment and to be bound by the deposit agreement, as amended.
We may terminate the deposit agreement upon not less than 30 days' prior
written notice to the preferred stock depositary if a majority of each series of
preferred stock affected by the termination consents to the termination. Upon
termination, the preferred stock depositary will deliver or make available to
each holder of depositary receipts, upon surrender of the depositary receipts
held by the holder, the number of whole or fractional shares of preferred stock
represented by the depositary shares evidenced by the depositary receipts
together with any other property held by the preferred stock depositary relating
to the depositary receipt.
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In addition, the deposit agreement will automatically terminate if:
o all outstanding depositary shares have been redeemed;
o there has been a final distribution of the related preferred stock
in connection with our liquidation, dissolution or winding up and
the distribution has been distributed to the holders of depositary
receipts evidencing the depositary shares representing the preferred
stock; or
o each share of the related preferred stock has been converted into
our securities which are not represented by depositary shares.
CHARGES OF PREFERRED STOCK DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the deposit agreement. In addition, we will pay the
fees and expenses of the preferred stock depositary in connection with the
performance of its duties under the deposit agreement. However, holders of
depositary receipts will pay the fees and expenses of the preferred stock
depositary for any duties requested by the holders to be performed that are
outside of those expressly provided for in the deposit agreement.
RESIGNATION AND REMOVAL OF DEPOSITARY
The preferred stock depositary may resign at any time by delivering to us
notice of its election to do so, and we may at any time remove the preferred
stock depositary. Any resignation or removal of the acting preferred stock
depository will take effect upon our appointment of a successor preferred stock
depositary. We must appoint a successor preferred stock depositary within 60
days after delivery of the notice of resignation or removal.
MISCELLANEOUS
The preferred stock depositary will forward to holders of depositary
receipts any reports and communications the preferred stock depositary receives
from us relating to the preferred stock.
We will not be liable, nor will the preferred stock depositary be liable,
if we are prevented from or delayed in, by law or any circumstances beyond our
control, performing our obligations under the deposit agreement. Our obligations
and the obligations of the preferred stock depositary under the deposit
agreement will be limited to performing our duties in good faith and without
negligence or willful misconduct. We will not be obligated, nor will the
preferred stock depositary be obligated, to prosecute or defend any legal
proceeding relating to any depositary receipts, depositary shares or shares of
preferred stock represented by depositary shares unless satisfactory indemnity
is furnished to us. We may rely, and the preferred stock depositary may rely, on
written advice of counsel or accountants, or information provided by persons
presenting shares of preferred stock represented by depositary shares for
deposit, holders of depositary receipts or other persons we believe in good
faith to be competent to give this information, and on documents we believe in
good faith to be genuine and signed by a proper party. In the event the
preferred stock depositary receives conflicting claims, requests or instructions
from holders of depositary receipts, on the one hand, and us, on the other hand,
the preferred stock depositary will be entitled to act on these claims, requests
or instructions received from us.
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DESCRIPTION OF SENIOR DEBT SECURITIES AND
SUBORDINATED DEBT SECURITIES
GENERAL
The debt securities will be our general unsecured obligation and will be
issued as either senior notes or debentures, which are referred to throughout as
the senior debt securities, or subordinated notes or debentures, which are
referred to throughout as the subordinated debt securities, or both. We would
issue our debt securities under one or more separate indentures, in each case
between us and the trustee, and in substantially the form that has been filed as
an exhibit to the registration statement of which this prospectus is a part, but
subject to any future amendments or supplements. We will issue senior debt
securities under a senior indenture and subordinated debt securities under a
subordinated indenture. We refer to the senior indenture and the subordinated
indenture below singularly as the indenture or together as the indentures. We
refer to the senior trustee and the subordinated trustee below individually as a
trustee and together as the trustees.
Set forth below is a summary of all of the material terms of the
indentures. The particular terms of the debt securities we might offer and the
extent to which these general provisions apply will be described in a prospectus
supplement relating to the offered debt securities. We have included the forms
of the indentures under which the offered debt securities will be issued as
exhibits to the registration statement, and you should read the indentures for
provisions that may be important to you.
Unless we provide otherwise in any prospectus supplement, the indentures
do not limit the aggregate principal amount of debt securities that we can
issue. We may issue debt securities in one or more series and in differing
aggregate principal amounts. We may issue debt securities in any currency or
currency unit that we may designate. We may issue debt securities in registered
or global form. The rights of holders of debt securities will be limited to our
assets.
The senior debt securities will rank equally with all of our other
unsubordinated debt, but will be effectively subordinate to the rights of
holders of secured unsubordinated debt to the extent of the value of the
collateral security securing such secured debt. The subordinated debt securities
will have a junior position to all of our senior debt, if any. As of June 30,
2002, we had $230 million in indebtedness outstanding under our $450 million
senior secured bank loan facility. In addition, as of such date, we have
existing guarantees for certain obligations of our subsidiaries in the amount of
approximately $181.2 million. Our obligations under such guarantees rank pari
passu with our senior secured bank loan facility. Any amounts borrowed under our
senior secured bank loan facility would be senior to the subordinated debt
securities and effectively senior to the senior debt. Other than as may be
described in a prospectus supplement, neither indenture will contain any
covenant or provision that affords debt holders protection in the event that we
enter into a highly leveraged transaction in which we borrow a substantial
amount of the monetary requirements for such transaction. These same holders
would not have any right to require us to repurchase the debt securities, in the
event that the credit rating of any debt securities declined as a result of our
involvement in a takeover, recapitalization, similar restructuring or otherwise.
A prospectus supplement will include the terms of any series of debt
securities that we offer. These terms will include some or all of the following:
22
o the title and type of debt securities being offered;
o the total principal amount of debt securities being offered;
o whether the debt securities will be issued in one or more forms of
global securities and whether such global securities are to be
issuable in temporary global form or permanent global form;
o the dates on which the principal of, and premium, if any, on the
offered debt securities is payable;
o the interest rate or the method of determining the interest rate;
o the date from which interest will accrue;
o whether and under what circumstances additional amounts with respect
to the debt securities is payable;
o the interest payment dates;
o the place where the principal, premium and interest is payable;
o any optional redemption periods;
o any sinking fund or other provisions that would obligate us to
repurchase or otherwise redeem the debt securities;
o whether the debt securities will be convertible into shares of
common stock or exchangeable for other of our securities (which
would be required to be registered under the securities act of 1933)
and if so, the terms of conversion or exchange;
o the currency or currencies, if other than U.S. dollars, in which
principal payments or other payments will be payable;
o events causing acceleration of maturity;
o any provisions granting special rights to holders when a specified
event occurs;
o any changes to or additional events of default or covenants;
o any material United States federal income tax consequences and any
special tax implications of ownership and disposition of the debt
securities;
o whether the debt securities will be guaranteed and , if so, the
terms of such guarantee and the circumstances under which the
guarantors may be released; and
o any other terms of the debt securities.
The debt securities will be issued in registered form. There will be no
service charge for any registration, transfer or exchange of debt securities. We
may, however, require payment of an amount that would be sufficient to cover any
tax or other governmental charge we may incur. We may sell debt securities at a
discount or premium (which may be substantial) below or above their stated
principal amount, either bearing no interest or bearing interest at a rate that
may be below the market rate at the time we issue the debt securities.
We will describe any material United States federal income tax
consequences and other special considerations applicable to discounted debt
securities in the prospectus supplement. If we sell any of the offered debt
securities for any foreign currency or currency unit, or if any of the
principal, premium or interest, if any, is payable on any of the offered debt
securities, the restrictions, elections, tax consequences, specific terms and
other information pertaining to the offered debt securities and such foreign
currency or foreign currency unit will be set forth in the prospectus supplement
describing such offered debt securities.
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DENOMINATIONS
We will issue the debt securities in registered form of $1,000 each or
integral multiples thereof.
SUBORDINATION
Under the subordinated indenture, payment of the principal, interest and
any premium on the subordinated debt securities generally will be subordinated
and junior in right of payment to the prior payment in full of all senior
indebtedness. The subordinated indenture defines senior indebtedness to include
all notes or other unsecured evidences of indebtedness, including our guarantees
for money borrowed by us, not expressed to be subordinate or junior in right of
payment to any other of our indebtedness and all extensions of such
indebtedness. The subordinated indenture provides that no payment of principal,
interest and any premium on the subordinated debt securities may be made in the
event:
o of any insolvency, bankruptcy or similar proceeding involving us or
our property;
o we fail to pay the principal, interest, any premium or any other
amounts on any senior indebtedness when due, unless and until the
payment default has been cured or waived or shall no longer exist;
or
o of a default (other than a payment default with respect to the
senior indebtedness) that imposes a payment blockage on the
subordinated debt securities for a maximum of 179 days at any one
time, unless the event of default has been cured or waived or shall
no longer exist.
In the event of any voluntary or involuntary bankruptcy, insolvency,
reorganization or other similar proceeding relating to us, all of our
obligations to holders of senior indebtedness will be entitled to be paid in
full before any payment shall be made on account of the principal of, or
premium, if any, or interest, if any, on the subordinated debt securities of any
series. In the event of any such bankruptcy, insolvency, reorganization or other
similar proceeding, holders of the subordinated debt securities of any series,
together with holders of indebtedness ranking equally with the subordinated debt
securities, shall be entitled, ratably, to be paid amounts that are due to them,
but only from assets remaining after we pay in full the amounts that we owe on
our senior indebtedness. We will make these payments before we make any payment
or other distribution on account of any indebtedness that ranks junior to the
subordinated debt securities. If we are in default on any of our senior
indebtedness or if any such default would occur as a result of certain payments,
then we may not make any payments on the subordinated debt securities or effect
any exchange or retirement of any of the subordinated debt securities unless and
until such default has been cured or waived or otherwise ceases to exist.
No provision contained in the subordinated indenture or the subordinated
debt securities affects our absolute and unconditional obligation to pay when
due, principal of, premium, if any, and interest on the subordinated debt
securities and neither the subordinated indenture nor the subordinated debt
securities prevents the occurrence of any default or event of default under the
subordinated indenture or limits the rights of the subordinated trustee or any
holder of subordinated debt securities, subject to the three preceding
paragraphs, to pursue any other rights or remedies with respect to the
subordinated debt securities. As a result of these subordination provisions, in
the event of the liquidation, bankruptcy, reorganization, insolvency,
receivership or similar proceeding or an assignment for the benefit of our
24
creditors or a marshaling of our assets or liabilities, holders of subordinated
debt securities may receive ratably less than other creditors.
If this prospectus is being delivered in connection with a series of
subordinated debt securities, the accompanying prospectus supplement or the
information incorporated herein by reference will set forth the approximate
amount of senior indebtedness outstanding as of the end of the most recent
fiscal quarter.
EVENTS OF DEFAULT; REMEDIES
The following are defined as events of default under each indenture:
o our failure to pay principal or any premium on any debt security
when due;
o our failure to pay any interest on any debt security when due,
continued for 30 consecutive days;
o our failure to deposit any mandatory sinking fund payment when due,
continued for 30 days;
o our failure to perform any other covenant or warranty in the
indenture that continues for 90 days after written notice;
o certain events of our bankruptcy, insolvency or reorganization; and
o any other event of default as may be specified with respect to debt
securities of such series.
An event of default for a particular series of debt securities does not
necessarily constitute an event of default for any other series of debt
securities. The trustee may withhold notice to the holders of debt securities of
any default (except in the payment of principal or interest) if the trustee
considers withholding of notice to be in the best interest of the holders. If an
event of default occurs, either the trustee or the holders of at least 25% of
the principal amount of the outstanding debt securities may declare the
principal amount of the debt securities of the applicable series to be due and
payable immediately. If this happens, subject to certain conditions, the holders
of a majority of the principal amount of the outstanding debt securities of such
series can void the declaration. These conditions include the requirement that
we have paid or deposited with the trustee a sum sufficient to pay all overdue
principal and interest payments on the series of debt securities subject to the
default. If an event of default occurs due to certain events of bankruptcy,
insolvency or reorganization, the principal amount of the outstanding debt
securities of all series will become immediately due and payable without any
declaration or other act on the part of either trustee or any holder.
Depending on the terms of our indebtedness, an event of default under an
indenture may cause a cross default on our other indebtedness. Other than its
duties in the case of default, a trustee is not obligated to exercise any of its
rights or powers under any indenture at the request, order or direction of any
holder or group of holders unless the holders offer the trustee reasonable
indemnity. If the holders provide reasonable indemnification, the holders of a
majority of the principal amount of any series of debt securities may direct the
time, method and place of conducting any proceeding for any remedy available to
the trustee, or exercising any power conferred upon the trustee for any series
of debt securities. The holders of a majority of the principal amount
outstanding of any series of debt securities may, on behalf of all holders of
such series, waive any past default under the indenture, except in the case of a
payment of principal or interest default. We are required to provide to each
trustee an annual
25
statement reflecting the performance of our obligations under the indenture and
any statement of default, if applicable.
COVENANTS
Under the indentures, we will:
o pay the principal, interest and any premium on the debt securities
when due;
o maintain a place of payment;
o deliver a report to the trustee after the end of each fiscal year
reviewing our obligations under the indentures; and
o deposit sufficient funds with any payment agent on or before the due
date for any principal, interest or any premium.
MODIFICATION OR AMENDMENT OF INDENTURES
Under each indenture, all rights and obligations and the rights of the
holders may be modified or amended with the consent of the holders of a majority
in aggregate principal amount of the outstanding debt securities of all series
affected by the modification or amendment acting as one class. No modification
or amendment may, however, be made without the consent of the holders of any
debt securities if the following provisions are affected:
o change in the stated maturity date of the principal payment or
installment of any principal payment;
o reduction in the principal amount or premium on, or rate of interest
on any of the debt securities;
o reduction in the percentage required for modifications or amendment
to be effective against any holder of any debt securities;
o change in place of payment where any debt security is payable; or
o modification of the subordination provisions in any way adverse to
the security holders.
An amendment that changes or eliminates any covenant or other provision of
either indenture that has expressly been included solely for the benefit of one
or more particular series of debt securities, or that modifies the rights of the
holder of debt securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under such indenture of the
holders of debt securities of any other series.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each indenture generally permits a consolidation or merger between us and
another corporation. Each indenture also permits us to sell all or substantially
all of our property and assets. If this happens, the surviving or acquiring
company will assume all of our responsibilities and liabilities under the
indentures, including the payment of all amounts due on the debt securities and
the performance of the covenants in the indentures. We will only consolidate or
merge with or into any other company or sell all, or substantially all, of our
assets according to the terms and conditions of the indentures. The surviving
26
or acquiring company will be substituted for us in the indentures with the same
effect as if it had been an original party to the indenture. Thereafter, the
successor company may exercise our rights and powers under any indenture, in our
name or in its own name. Any act or proceeding our board of directors or any of
our officers are required or permitted to do may be done by the board of
directors or officers of the successor company. If we sell all or substantially
all of our assets, we shall be released from all our liabilities and obligations
under any indenture and under the debt securities.
DISCHARGE AND DEFEASANCE
We will be discharged from our obligations under the debt securities of
any series at any time if we irrevocably deposit with the trustee enough cash or
U.S. government securities to pay the principal, interest, any premium and any
other sums due through the stated maturity date or redemption date of the debt
securities of the series. In this event, we will be deemed to have paid and
discharged the entire indebtedness on all outstanding debt securities of the
series. Accordingly, our obligations under the applicable indenture and the debt
securities of such series to pay any principal, premium, or interest, if any,
shall cease, terminate and be completely discharged. The holders of any debt
securities shall then only be entitled to payment out of the money or U.S.
government securities deposited with the trustee and such holders of debt
securities of such series will not be entitled to the benefits of the indenture
except as relate to the registration, transfer and exchange of debt securities
and the replacement of lost, stolen or mutilated debt securities.
PAYMENT AND PAYING AGENTS
We will pay the principal, interest and premium on fully registered
securities at designated places. We will pay by check mailed to the person in
whose name the debt securities are registered on the day specified in the
indentures or any prospectus supplement. We will make debt securities payments
in other forms at a place we designate and specify in a prospectus supplement.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Fully registered debt securities may be transferred or exchanged at the
corporate trust office of the trustee or at any other office or agency we
maintain for such purposes without the payment of any service charge except for
any tax or governmental charge. The registered securities must be duly endorsed
or accompanied by a written instrument of transfer, if required by us or the
security registrar. We will describe any procedures for the exchange of debt
securities for other debt securities of the same series in the prospectus
supplement for that offering.
GLOBAL SECURITIES
We may issue the debt securities of a series in whole or in part in the
form of one or more global certificates that will be deposited with a depositary
we identify in a prospectus supplement. We may issue global securities in
registered form and in either temporary or permanent form. Unless and until it
is exchanged in whole or part for the individual debt securities it represents,
the depositary or its nominee may not transfer a global security except as a
whole. The depositary for a global security and its nominee may only transfer
the global security between themselves or their successors. We will make
principal,
27
premium and interest payments on global securities to the depositary or the
nominee it designates as the registered owner for such global securities. The
depositary or its nominee will be responsible for making payments to you and
other holders of interests in the global securities. We and the paying agents
will treat the persons in whose names the global securities are registered as
the owners of such global securities for all purposes. Neither we nor the paying
agents have any direct responsibility or liability for the payment of principal,
premium or interest to owners of beneficial interests in the global securities,
and such liability is that of the depositary or its variance. As a result the
beneficial interest holder may have to rely on the depositary to recover in the
event of default.
DESCRIPTION OF WARRANTS
We may issue warrants, including warrants to purchase common stock or debt
securities registered pursuant to this registration statement and described in
this prospectus. We may issue warrants independently or together with other
securities that may be attached to or separate from the warrants. We will issue
each series of warrants under a separate warrant agreement that will be entered
into between us and a bank or trust company, as warrant agent, and will be
described in the prospectus supplement relating to the particular issue of
warrants. The warrant agent will act solely as our agent in connection with the
warrant of such series and will not assume any obligation or relationship of
agency for or with holders or beneficial owners of warrants. The following
describes certain general terms and provisions of the warrants we may offer. We
will set forth further terms of the warrants and the applicable warrant
agreement in the applicable prospectus supplement.
COMMON STOCK WARRANTS
The applicable prospectus supplement will describe the terms of any
warrants exchangeable for common stock, including:
o the title of such warrants;
o the offering price of such warrants;
o the aggregate number of such warrants;
o the designation and terms of the common stock issued by us
purchasable upon exercise of such warrants;
o if applicable, the designation and terms of the securities with
which such warrants are issued and the number of such warrants
issued with each such security;
o if applicable, the date from and after which such warrants and any
securities issued therewith will be separately transferable;
o the number of shares of common stock issued by us purchasable upon
exercise of the warrants and the price at which such shares may be
purchased upon exercise;
o the date on which the right to exercise such warrants shall commence
and the date on which such right shall expire;
o if applicable, the minimum or maximum amount of such warrants that
may be exercised at any one time;
o the currency, currencies or currency units in which the offering
price, if any, and the exercise price are payable;
28
o if applicable, a discussion of certain United States federal income
tax considerations; and
o the antidilution provisions of the warrants, if any.
DEBT WARRANTS
The applicable prospectus supplement will describe the terms of any debt
warrants, including the following:
o the title of such debt warrants;
o the offering price for such debt warrants;
o the aggregate number of such debt warrants;
o the designation and terms of the debt securities purchasable upon
exercise of such debt warrants;
o if applicable, the designation and terms of the securities with
which such debt warrants are issued and the number of such debt
warrants issued with each security;
o if applicable, the date from and after which such debt warrants and
any securities issued therewith will be separately transferable;
o the principal amount of debt securities purchasable upon exercise of
a debt warrant and the price at which such principal amount of debt
securities may be purchased upon exercise;
o the date on which the right to exercise such debt warrants shall
commence and the date on which such right shall expire;
o if applicable, the minimum or maximum amount of such debt warrants
that may be exercised at any one time;
o whether the debt warrants represented by the debt warrant
certificates or debt securities that may be issued upon exercise of
the debt warrants will be issued in registered form;
o information with respect to book-entry procedures, if any;
o the currency, currencies or currency units in which the offering
price, if any, and the exercise price are payable;
o if applicable, a discussion of certain United States federal income
tax considerations;
o the antidilution provisions of such debt warrants, if any;
o the redemption or call provisions, if any, applicable to such debt
warrant; and
o any additional terms of the debt warrants, including terms,
procedures and limitations relating to the exchange and exercise of
such debt warrants.
EXERCISE OF WARRANTS
Each warrant will entitle the holder of the warrant to purchase for cash
at the exercise price provided in the applicable prospectus supplement the
principal amount of debt securities or shares of common stock being offered.
Holders may exercise warrants at any time up to the close of business on the
expiration date provided in the applicable prospectus supplement. After the
close of business on the expiration date, unexercised warrants are void.
Holders may exercise warrants as described in the prospectus supplement
relating to the warrants being offered. Upon receipt of payment and the warrant
certificate properly completed and duly executed at the corporate trust office
of the warrant agent or any other office indicated in the prospectus
29
supplement, we will, as soon as practicable, forward the debt securities or
shares of common stock purchasable upon the exercise of the warrant. If less
than all of the warrants represented by the warrant certificate are exercised,
we will issue a new warrant certificate for the remaining warrants.
30
PLAN OF DISTRIBUTION
We may sell the securities:
o to or through underwriters or dealers;
o through agents;
o directly to purchasers, including in connection with any potential
settlement of on-going litigation;
o in the over-the-counter market;
o in privately negotiated transactions; or
o through a combination of such methods.
We will describe in a prospectus supplement, the particular terms of the
offering of the securities, including the following:
o the names of any underwriters, dealers, agents or investors who
purchase the securities;
o the purchase price and the proceeds we will receive from the sale;
o any underwriting discounts and other items constituting
underwriters', dealers' or agents' compensation;
o any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers;
o any securities exchanges on which the securities of the series may
be listed;
o the material terms of the distribution, including the amount sold
and the consideration paid; and
o any other information we think is important.
If we use underwriters in the sale, such underwriters will acquire the
securities for their own account. The underwriters may resell the securities in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale.
The securities may be either offered to the public through underwriting
syndicates represented by managing underwriters or by underwriters without a
syndicate. The obligations of the underwriters to purchase the securities will
be subject to certain conditions. The underwriters will be obligated to purchase
all the securities of the series offered if any of the securities are purchased.
The underwriters may change from time to time any initial public offering price
and any discounts or concessions allowed or re-allowed or paid to dealers.
We may sell offered securities through agents designated by us. Any agent
involved in the offer or sale of the securities for which this prospectus is
delivered will be named, and any commissions payable by us to that agent will be
set forth, in the prospectus supplement. Unless indicated in the prospectus
supplement, the agents have agreed to use their reasonable best efforts to
solicit purchases for the period of their appointment.
We also may sell offered securities directly. In this case, no
underwriters or agents would be involved.
31
Underwriters, dealers and agents that participate in the distribution of
the offered securities may be underwriters as defined in the Securities Act, and
any discounts or commissions received by them from us and any profit on the
resale of the offered securities by them may be treated as underwriting
discounts and commissions under the Securities Act. We will identify any
underwriters or agents, and describe their compensation, in a prospectus
supplement.
Certain of any such underwriters and agents, including their associates,
may be customers of, engage in transactions with and perform services for us and
our subsidiaries in the ordinary course of business. One or more of our
affiliates may from time to time act as an agent or underwriter in connection
with the sale of the securities to the extent permitted by applicable law. The
participation of any such affiliate in the offer and sale of the securities will
comply with Rule 2720 of the Conduct Rules of the National Association of
Securities Dealers, Inc. regarding the offer and sale of securities of an
affiliate.
We may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act, or to contribute with respect to payments which the
underwriters, dealers or agents may be required to make. Underwriters, dealers
and agents may engage in transactions with, or perform services for, us or our
subsidiaries in the ordinary course of their businesses.
We may authorize agents or underwriters to solicit offers by certain types
of institutions to purchase securities from us at the public offering price set
forth in the prospectus supplement pursuant to delayed delivery contracts. These
contracts will provide for payment and delivery on a specified date in the
future. The conditions to these contracts and the commissions payable for
solicitation of such contracts will be set forth in the applicable prospectus
supplement.
In order to facilitate the offering of the securities, any underwriters or
agents, as the case may be, involved in the offering of such securities may
engage in transactions that stabilize, maintain or otherwise affect the price of
such securities or any other securities the prices of which may be used to
determine payments on such securities. Specifically, the underwriters or agents,
as the case may be, may overallot in connection with the offering, creating a
short position in such securities for their own account. In addition, to cover
overallotments or to stabilize the price of such securities or any such other
securities, the underwriters or agents, as the case may be, may bid for, and
purchase, such securities or any such other securities in the open market.
Finally, in any offering of such securities through a syndicate of underwriters,
the underwriting syndicate may reclaim selling concessions allotted to an
underwriter or a dealer for distributing such securities in the offering if the
syndicate repurchases previously distributed securities in transactions to cover
syndicate short positions, in stabilization transaction or otherwise. Any of
these activities may stabilize or maintain the market price of the securities
above independent market levels. The underwriters or agents, as the case may be,
are not required to engage in these activities, and may end any of these
activities at any time.
Some or all of the securities may be new issues of securities with no
established trading market. Any underwriter to which securities are sold by us
for public offering and sale may make a market in such securities, but will not
be obligated to do so, and may discontinue any market making at any time
32
without notice. We cannot and will not give any assurances as to the liquidity
of the trading market for any of our securities.
LEGAL MATTERS
The validity of the issuance of the securities offered in this prospectus
will be passed upon for us by our lawyers, Haynes and Boone, LLP, Dallas, Texas.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedules included in our Form 10-K for the nine-month
period ended December 31, 2001, as set forth in their report, which is
incorporated by reference in this prospectus and elsewhere in the registration
statement. Our financial statements and schedules are incorporated by reference
in reliance on Ernst & Young LLP's report, given on their authority as experts
in accounting and auditing.
The financial statements of Thrall Car Manufacturing Company incorporated
by reference in this prospectus, have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto and are incorporated in this prospectus in reliance upon their authority
as experts in accounting and auditing. Arthur Andersen LLP has not consented to
the inclusion of their reports in this prospectus, and we have dispensed with
the requirement to file their consent in reliance upon Rule 437a of the
Securities Act of 1933. Because Arthur Andersen LLP has not consented to the
inclusion of their reports in this prospectus, you will not be able to recover
against Arthur Andersen LLP under Section 11 of the Securities Act of 1933 for
any untrue statements of a material fact contained in the financial statements
audited by Arthur Andersen LLP or any omissions to state a material fact
required to be stated therein.
33
================================================================================
, 2002
[TRINITY INDUSTRIES, INC. LOGO]
TRINITY INDUSTRIES, INC.
$150,000,000 AGGREGATE AMOUNT OF
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
COMMON STOCK WARRANTS
DEBT WARRANTS
DEPOSITARY SHARES
---------------
PROSPECTUS
---------------
--------------------------------------------------------------------------------
We have not authorized any dealer, salesperson or other person to give you
written information other than this prospectus or to make representations as to
matters not stated in this prospectus. You must not rely on unauthorized
information. This prospectus is not an offer to sell these securities or our
solicitation of your offer to buy securities in any jurisdiction where that
would not be permitted or legal. Neither the delivery of this prospectus nor any
sale made hereunder after the date of this prospectus shall create an
implication that the information contained herein or the affairs of Trinity
Industries, Inc. have not changed since the date hereof.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Until __________, 2002 (25 days after the date of this prospectus), all dealers
that effect transactions in these securities, whether or not participating in
this offering, may be required to deliver a prospectus. This is in addition to
the dealer's obligation to deliver a prospectus when acting as an underwriter
and with respect to unsold allotments or subscriptions.
--------------------------------------------------------------------------------
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses and costs payable by
us in connection with the issuance and distribution of the securities to be
registered (other than underwriting discounts and commissions). All of the
amounts shown are estimated except for the Securities and Exchange Commission
registration fee.
Securities and Exchange Commission registration fee.................... $ 13,800
Printing and engraving expenses........................................ 25,000*
Legal fees and expenses................................................ 75,000*
Accounting fees and expenses........................................... 15,000*
Blue sky fees and expenses............................................. 5,000*
Transfer agent's, trustee's, depositary's, warrant agent's, registrar
and rating agency fees and expenses.................................... 80,000*
Miscellaneous expenses................................................. 11,200*
---------
Total........................................................ $ 225,000*
=========
--------------------
* Estimated.
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
(a) Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(collectively, a "Proceeding") (other than an action by or in the right of the
corporation) by reason of the fact that he or she is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if such person acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was
unlawful.
Section 145(b) of the DGCL provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against such expenses
actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted under similar standards,
except that no indemnification may be made in respect of any claim, issue or
matter as to
II-1
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnification for such
expenses which the court shall deem proper.
Further, Section 145(c) of the DGCL provides that, to the extent a
director or officer of a corporation has been successful on the merits or
otherwise in the defense of any action, suit or proceeding referred to above or
in the defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith.
Section 145(f) of the DGCL provides that the statutory provisions on
indemnification are not exclusive of indemnification provided pursuant to, among
other things, the bylaws or indemnification agreements. Our Bylaws contain
provisions regarding the indemnification of directors and officers Trinity.
Article VI of our Bylaws provides for the indemnification of Trinity's officers
and directors to substantially the same extent permitted by the DGCL.
The indemnification described above (unless ordered by a court) shall be
paid by us unless a determination is made that indemnification of the director,
officer, employee or agent is not proper in the circumstances because he has not
met the applicable standard of conduct set forth above. This determination must
be made:
o by the our Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such Proceeding;
o if such a quorum is not obtainable, or, even if obtainable a quorum
of disinterested directors so directs, by independent legal counsel
in a written opinion; or
o by Trinity's stockholders.
Article VI of our Bylaws provides that costs, charges and expenses
(including attorneys' fees) incurred by a person seeking indemnification under
Article VI of our Bylaws in defending a Proceeding shall be paid by us in
advance of the final disposition of such Proceeding; provided, however, that the
payment of such costs, charges and expenses incurred by a director or officer in
his capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer) in
advance of the final disposition of such Proceeding shall be made only upon
receipt of an undertaking by or on behalf of the director or officer to repay
all amounts so advanced in the event that it shall ultimately be determined that
such director or officer is not entitled to be indemnified by us. Such costs,
charges and expenses incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as our Board of Directors deems appropriate.
Our Board of Directors may, upon approval of such director, officer, employee or
agent of Trinity, authorize Trinity's counsel to represent such person in any
Proceeding, whether or not Trinity is a party to such Proceeding.
II-2
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, but excludes specifically liability
for any:
o breach of the director's duty of loyalty to the corporation or its
stockholders;
o acts or omissions not in good faith or involving intentional
misconduct or a knowing violation of law;
o payments of unlawful dividends or unlawful stock repurchases or
redemptions; or
o transactions from which the director derived an improper personal
benefit.
The provision does not limit equitable remedies, such as an injunction or
rescission for breach of a director's fiduciary duty of care.
Our Certificate of Incorporation contains a provision eliminating the
personal liability of a director from breaches of fiduciary duty, subject to the
exceptions described above.
(b) We have entered into indemnity agreements with our directors and
officers that establish contract rights to indemnification substantially similar
to the rights to indemnification provided for in our Bylaws.
ITEM 16. EXHIBITS
EXHIBIT
NUMBER EXHIBIT TITLE
------- -------------
1.1 -- Forms of Underwriting Agreements or Purchase Agreements with
respect to each series of securities registered hereunder and issued
pursuant hereto will be filed by amendment or as an exhibit to a
document to be incorporated by reference herein in connection with
an offering of the offered securities.
4.1 -- Certificate of Incorporation of Trinity, as amended, previously
filed as Exhibit 3.1 to our Transition Report on Form 10-K for the
nine months ended December 31, 2001, and incorporated herein by
reference.
4.2 -- Amended and Restated Bylaws of Trinity, previously filed as
Exhibit 3.2 to our Transition Report on Form 10-K for the nine
months ended December 31, 2001, and incorporated herein by
reference.
4.3 -- Specimen Common Stock Certificate, previously filed as Exhibit
4.1 to our Annual Report on Form 10-K for the fiscal year ended
March 31, 1999, and incorporated herein by reference.
4.4 -- Rights Agreement dated March 11, 1999 by and between Trinity and
the Bank of New York, as Rights Agent, previously filed as Exhibit 1
to our Form 8-A filed April 2, 1999, and incorporated herein by
reference.
II-3
EXHIBIT
NUMBER EXHIBIT TITLE
------- -------------
4.5 -- Amendment No. 1 to the Rights Agreement dated as of August 12,
2001, amending the Rights Agreement dated as of March 11, 1999 by
and between Trinity and the Bank of New York, as Rights Agent,
previously filed as Exhibit 2 to our Form 8-A/A filed August 22,
2001, and incorporated herein by reference.
4.6 -- Amendment No. 2 to the Rights Agreement dated as of October 26,
2001, amending the Rights Agreement dated as of March 11, 1999 by
and between Trinity and the Bank of New York, as Rights Agent, as
amended by Amendment No. 1 to the Rights Agreement, dated August 12,
2001, previously filed as Exhibit 4 to our Form 8-A/A filed October
31, 2001, and incorporated herein by reference.
4.7 -- Form of Registration Rights Agreement by and between Trinity and
Thrall Car Management Company, Inc., previously filed as Exhibit 2.1
to our Current Report on Form 8-K filed August 16, 2001, and
incorporated herein by reference.
4.8 -- Form of Indenture for Senior Debt Securities issued by Trinity
Industries, Inc., filed herewith.
4.9 -- Form of Subordinated Indenture for Subordinated Debt Securities
issued by Trinity Industries, Inc., filed herewith.
4.10 -- Form of Senior Debt Security issued by Trinity Industries, Inc.,
to be filed by amendment or as an exhibit to a document to be
incorporated by reference herein.
4.11 -- Form of Subordinated Debt Security issued by Trinity Industries,
Inc., to be filed by amendment or as an exhibit to a document to be
incorporated by reference herein.
4.12 -- Form of Certificate of Designation for preferred stock, to be
filed by amendment or as an exhibit to a document to be incorporated
by reference herein.
4.13 -- Form of Depositary Agreement for depositary shares, to be filed
by amendment or as an exhibit to a document to be incorporated by
reference herein.
4.14 -- Form of Warrant Agreement, to be filed by amendment or as an
exhibit to a document to be incorporated by reference herein.
4.15 -- Form of Warrant, to be filed by amendment or as an exhibit to a
document to be incorporated by reference herein.
5.1 -- Opinion of Haynes and Boone, LLP, regarding legality of the
securities, filed herewith.
12.1 -- Computation of Ratio of Earnings to Fixed Charges, filed
herewith.
23.1 -- Consent of Ernst & Young LLP, filed herewith.
23.2 -- Consent of Haynes and Boone, LLP, contained in legal opinion
filed as Exhibit 5.1.
24.1 -- Power of Attorney, included on the signature page to this filing.
25.1 -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of the Trustee under the Indenture for Senior
Debt Securities, to be filed by amendment or as an exhibit to a
document to be incorporated by reference herein.
25.2 -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of the Trustee under the Subordinated Indenture
for Subordinated Debt Securities, to be filed by amendment or as an
exhibit to a document to be incorporated by reference herein.
II-4
ITEM 17. UNDERTAKINGS
A. Rule 415 Offering.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fees"
table in the effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the SEC by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
B. Filings Incorporating Subsequent Exchange Act Documents by Reference.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-5
C. Request for Acceleration of Effective Date.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, may be permitted to directors, officers, and controlling persons of
the registrant pursuant to the provisions described in Item 15 or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action suit, or
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
D. Registration Statement Permitted by Rule 430A under the Securities Act of
1933.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act of 1933 shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
E. Qualification of Trustee Under the Trust Indenture Act of 1939.
The undersigned registrant hereby undertakes to file an application for
the purpose of deterimining the eligibility of the trustee to act under
subsection (a) of section 310 of the Trust Indenture Act ("Act") in accordance
with the rules and regulations prescribed by the Commission under section
305(b)(2) of the Act.
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas and State of Texas on the 22nd day of July,
2002.
TRINITY INDUSTRIES, INC.
By: /s/ JOHN L. ADAMS
---------------------------------
John L. Adams
Executive Vice President
POWER OF ATTORNEY
We, the undersigned directors and/or officers of Trinity Industries, Inc.,
hereby severally constitute and appoint Timothy R. Wallace, Chairman, President
and Chief Executive Officer, John L. Adams, Executive Vice President, and Jim S.
Ivy, Senior Vice President and Chief Financial Officer, and each of them
individually, with full powers of substitution and resubstitution, our true and
lawful attorneys, with full powers to them and each of them to sign for us, in
our names and in the capacities indicated below, the registration statement on
Form S-3 filed with the Securities and Exchange Commission, and any or all
amendments to said registration statement, including post-effective amendments,
and any registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, in connection with the registration under
the Securities Act of 1933, as amended, of securities of Trinity Industries,
Inc., and to file or cause to be filed the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission granting unto said attorneys-in-fact and agents the full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the foregoing, as to all intents and purposes as each of
them might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
NAME TITLE DATE
---- ----- ----
Chairman, President and Chief Executive
/s/ TIMOTHY R. WALLACE Officer (Principal Executive Officer); July 22, 2002
------------------------------ Director
Timothy R. Wallace
July 22, 2002
/s/ JIM S. IVY Senior Vice President and Chief Financial
------------------------------ Officer (Principal Financial Officer)
Jim S. Ivy
/s/ CHARLES MICHEL Controller (Principal Accounting Officer) July 22, 2002
------------------------------
Charles Michel
II-7
NAME TITLE DATE
---- ----- ----
/s/ DAVID W. BIEGLER Director July 22, 2002
------------------------------
David W. Biegler
/s/ CRAIG J. DUCHOSSOIS Director July 22, 2002
------------------------------
Craig J. Duchossois
/s/ RONALD J. GAFFORD Director July 22, 2002
------------------------------
Ronald J. Gafford
/s/ BARRY J. GALT Director July 22, 2002
------------------------------
Barry J. Galt
/s/ CLIFFORD J. GRUM Director July 22, 2002
------------------------------
Clifford J. Grum
/s/ JESS T. HAY Director July 22, 2002
------------------------------
Jess T. Hay
/s/ DIANA NATALICIO Director July 22, 2002
------------------------------
Diana Natalicio
/s/ W. RAY WALLACE Director July 22, 2002
------------------------------
W. Ray Wallace
II-8
INDEX TO EXHIBITS
EXHIBIT
NUMBER EXHIBIT TITLE
------- -------------
1.1 -- Forms of Underwriting Agreements or Purchase Agreements with
respect to each series of securities registered hereunder and issued
pursuant hereto will be filed by amendment or as an exhibit to a
document to be incorporated by reference herein in connection with
an offering of the offered securities.
4.1 -- Certificate of Incorporation of Trinity, as amended, previously
filed as Exhibit 3.1 to our Transition Report on Form 10-K for the
nine months ended December 31, 2001, and incorporated herein by
reference.
4.2 -- Amended and Restated Bylaws of Trinity, previously filed as
Exhibit 3.2 to our Transition Report on Form 10-K for the nine
months ended December 31, 2001, and incorporated herein by
reference.
4.3 -- Specimen Common Stock Certificate, previously filed as Exhibit
4.1 to our Annual Report on Form 10-K for the fiscal year ended
March 31, 1999, and incorporated herein by reference.
4.4 -- Rights Agreement dated March 11, 1999 by and between Trinity and
the Bank of New York, as Rights Agent, previously filed as Exhibit 1
to our Form 8-A filed April 2, 1999, and incorporated herein by
reference.
4.5 -- Amendment No. 1 to the Rights Agreement dated as of August 12,
2001, amending the Rights Agreement dated as of March 11, 1999 by
and between Trinity and the Bank of New York, as Rights Agent,
previously filed as Exhibit 2 to our Form 8-A/A filed August 22,
2001, and incorporated herein by reference.
4.6 -- Amendment No. 2 to the Rights Agreement dated as of October 26,
2001, amending the Rights Agreement dated as of March 11, 1999 by
and between Trinity and the Bank of New York, as Rights Agent, as
amended by Amendment No. 1 to the Rights Agreement, dated August 12,
2001, previously filed as Exhibit 4 to our Form 8-A/A filed October
31, 2001, and incorporated herein by reference.
4.7 -- Form of Registration Rights Agreement by and between Trinity and
Thrall Car Management Company, Inc., previously filed as Exhibit 2.1
to our Current Report on Form 8-K filed August 16, 2001, and
incorporated herein by reference.
4.8 -- Form of Indenture for Senior Debt Securities issued by Trinity
Industries, Inc., filed herewith.
4.9 -- Form of Subordinated Indenture for Subordinated Debt Securities
issued by Trinity Industries, Inc., filed herewith.
4.10 -- Form of Senior Debt Security issued by Trinity Industries, Inc.,
to be filed by amendment or as an exhibit to a document to be
incorporated by reference herein.
4.11 -- Form of Subordinated Debt Security issued by Trinity Industries,
Inc., to be filed by amendment or as an exhibit to a document to be
incorporated by reference herein.
4.12 -- Form of Certificate of Designation for preferred stock, to be
filed by amendment or as an exhibit to a document to be incorporated
by reference herein.
4.13 -- Form of Depositary Agreement for depositary shares, to be filed
by amendment or as an exhibit to a document to be incorporated by
reference herein.
EXHIBIT
NUMBER EXHIBIT TITLE
------- -------------
4.14 -- Form of Warrant Agreement, to be filed by amendment or as an
exhibit to a document to be incorporated by reference herein.
4.15 -- Form of Warrant, to be filed by amendment or as an exhibit to a
document to be incorporated by reference herein.
5.1 -- Opinion of Haynes and Boone, LLP, regarding legality of the
securities, filed herewith.
12.1 -- Computation of Ratio of Earnings to Fixed Charges, filed
herewith.
23.1 -- Consent of Ernst & Young LLP, filed herewith.
23.2 -- Consent of Haynes and Boone, LLP, contained in legal opinion
filed as Exhibit 5.1.
24.1 -- Power of Attorney, included on the signature page to this filing.
25.1 -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of the Trustee under the Indenture for Senior
Debt Securities, to be filed by amendment or as an exhibit to a
document to be incorporated by reference herein.
25.2 -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of the Trustee under the Subordinated Indenture
for Subordinated Debt Securities, to be filed by amendment or as an
exhibit to a document to be incorporated by reference herein.