TRINITY INDUSTRIES, INC.
SUPPLEMENTAL RETIREMENT PLAN
AS AMENDED AND RESTATED
EFFECTIVE JANUARY 1, 2009
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Page
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2
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1.01 Coordination with Base Plan
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2
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2
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2
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ARTICLE II DEFINITIONS AND
CONSTRUCTION
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3
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3
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5
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ARTICLE III DESIGNATION OF
PARTICIPANTS
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6
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3.01 Eligibility to Participate
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4.01 Calculation of Plan Benefit
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7
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4.02 Time and Form of Plan Payments
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7
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4.03 Distributions Following Plan
Termination
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14
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4.04 Payment Upon Death of
Participant
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15
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ARTICLE VI AMENDMENT AND TERMINATION
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6.03 Rights of Participants
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6.04 Liability of Successor
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ARTICLE VII MISCELLANEOUS
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7.01 Nonguarantee of Employment
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7.02 Nonalienation of Benefits
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7.04 Incompetence of Recipient
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7.06 Acceleration of Payment
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i
TRINITY INDUSTRIES, INC.
SUPPLEMENTAL RETIREMENT PLAN
TRINITY
INDUSTRIES, INC., a corporation organized and existing under the
laws of the State of Delaware (the “Company”), hereby
restates the TRINITY INDUSTRIES, INC. SUPPLEMENTAL RETIREMENT PLAN
(the “Plan”), such restatement to be effective as of
January 1, 2009;
WHEREAS, the
Company has adopted the Plan, effective January 1, 1990, to
provide a supplemental retirement benefit to certain of its highly
compensated employees that approximates the additional retirement
benefit such employees would have received under a Company defined
benefit pension plan, if such pension benefit were determined
without regard to the limitations on compensation and benefits
imposed by the Internal Revenue Code of 1986, as amended from time
to time (the “Code”); and
WHEREAS, it is
intended that the Plan be an “unfunded” deferred
compensation arrangement for a select group of management or highly
compensated personnel for purposes of the Employee Retirement
Income Security Act of 1974, as amended from time to time
(“ERISA”); and
WHEREAS, the Plan
has been operated in good faith compliance with the requirements of
Code Section 409A, as amended by the American Job Creation Act
of 2004, effective January 1, 2005; and
WHEREAS, in
accordance with the transition rules provided under Code
Section 409A, the Company now desires to amend and restate the
Plan, effective January 1, 2009, to meet the applicable
requirements of Code Section 409A, and intends that the Plan
be interpreted and administered in accordance with Code
Section 409A and the final Treasury Regulations and applicable
administrative guidance issued thereunder on and after
January 1, 2005.
NOW, THEREFORE,
the Company hereby agrees as follows:
1
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1.01
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Coordination with Base
Plan
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To
the extent permitted under applicable law, including, but not
limited to, Code Section 409A, the calculation of accrued
benefits under the Plan shall be made in coordination with the Base
Plan. The distribution of such accrued benefits, however, will be
made in accordance with the terms of Article IV of this
Plan.
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1.02
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Duration of Plan
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The
Company hopes and expects to continue the Plan indefinitely, but
reserves the right to amend it or terminate it in any respect and
at any time or from time to time, to the extent provided in
Article VI hereof.
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1.03
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Applicability
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This Plan shall apply only to an
Employee who begins receiving benefits from a Base Plan after
January 1, 1990, as determined by the Committee. The
provisions of this restatement of the Plan shall apply to a
Participant who Separates from Service on or after January 1,
2005. In the case of a Participant who Separates from Service prior
to January 1, 2005, the rights and benefits, if any, of such
former Employee shall be determined in accordance with the
provisions of the Plan as in effect on the date of his Separation
from Service.
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2
Definitions and
Construction
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2.01
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Definitions
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Unless the context otherwise
requires, the terms used herein shall have the meanings set forth
in the remaining sections of this Article II.
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(a)
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Affiliate shall mean any entity affiliated
with the Company under the terms of Code Section 414 that has
adopted a Base Plan for the benefit of its employees.
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(b)
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Amounts Not Subject to Code
Section 409A shall mean the present value of the
amount to which the Participant would have been entitled under the
Plan if he voluntarily Separated from Service without cause on
December 31, 2004, and received a payment of the benefits
available from the Plan on the earliest possible date allowed under
the Plan to receive a payment of benefits following the Separation
from Service, and received the benefits in the form with the
maximum value.
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(c)
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Amounts Subject to Code
Section 409A shall mean the total amount accrued
by the Participant under the Plan, reduced by all Amounts Not
Subject to Code Section 409A.
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(d)
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Base Plan shall mean the defined benefit plan
or plans sponsored by the Company and/or its Affiliates and
qualified under Code Section 401(a), from which the Participant is
entitled to receive benefits.
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(e)
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Beneficial Owner
shall have the meaning
set forth in Rule 13d-3 under the Exchange Act.
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(f)
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Beneficiary shall mean the individual or
individuals entitled to receive benefits payable on behalf of any
Employee under his Base Plan in the event of his death on or after
Retirement.
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(g)
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Board shall mean the Board of Directors of
the Company.
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(h)
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Change in Control
shall have the meaning
set forth in Sections 4.02(a)(5)(iii) and
4.02(b)(5)(ii).
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(i)
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Code shall mean the Internal Revenue Code
of 1986, as amended from time to time.
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(j)
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Committee shall mean the persons appointed
under the provisions of Article V to administer the
Plan.
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(k)
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Company shall mean Trinity Industries, Inc.,
a Delaware corporation, as well as its successor or
successors.
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3
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(l)
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Disability or Disabled shall mean, for
Plan purposes, a determination that the Participant:
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(1)
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Is
unable to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can
be expected to result in death or can be expected to last for a
continuous period of not less than twelve (12) months,
or
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(2)
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Is,
by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than twelve
(12) months, receiving income replacement benefits for a
period of not less than three (3) months under an accident and
health plan sponsored by the Employer.
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Any
determination of Disability shall be made in accordance with the
requirements of Code Section 409A and any guidance issued
thereunder. A Participant will be deemed to be Disabled if
determined to be totally disabled by the Social Security
Administration or under the terms of a Company-sponsored disability
insurance program, provided the terms of such program comply with
Code Section 409A.
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(m)
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Effective Date
of this restatement
shall mean January 1, 2009. The original effective date of the Plan
is January 1, 1990.
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(n)
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Employee shall mean any individual on the
payroll of an Employer (i) whose wages from the Employer are
subject to withholding for purposes of Federal income taxes and for
purposes of the Federal Insurance Contributions Act, (ii) who
is included within a “select group of management or highly
compensated employees,” as such term is used in
Section 401(a)(1) of ERISA, and (iii) who is designated
by the Committee as eligible to participate in the Plan.
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(o)
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Employer shall mean the Company and any
Affiliate of the Company to the extent that an Employee of such
Affiliate is a Participant hereunder.
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(p)
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ERISA shall mean the Employee Retirement
Income Security Act of 1974, as amended from time to
time.
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(q)
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Exchange Act shall mean the Securities Exchange
Act of 1934, as amended from time to time.
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(r)
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Key Employee shall mean:
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(1)
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an
officer of an Employer having annual compensation from the Employer
of more than $130,000 per year, as adjusted from time to time in
accordance with Internal Revenue Service guidelines,
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(2)
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a
five percent (5%) owner of an Employer, or
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(3)
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a
one percent (1%) owner of an Employer having annual compensation
from the Employer of more than $150,000,
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all
as determined in accordance with Code Sections 409A and 416(i)
and applicable Treasury Regulations issued thereunder, provided
stock in the Employer corporation is publicly traded on an
established securities market.
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(s)
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Participant shall mean an Employee who meets the
eligibility requirements as determined by the Committee; provided,
however, that effective on and after the date of a Change in
Control, the term “Participant” shall be limited to
those individuals who satisfy the eligibility requirements and who
were Participants in the Plan as of the date immediately prior to
the date of such Change in Control.
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(t)
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Person shall have the meaning given in
Section 3(a)(9) of the Exchange Act, as modified and used in
Sections 13(d) and 14(d) thereof, except that such term shall not
include (i) the Company or any of its subsidiaries;
(ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its Affiliates;
(iii) an underwriter temporarily holding securities pursuant
to an offering of such securities; or (iv) a corporation
owned, directly or indirectly, by the stockholders of the Company
in substantially the same proportions as their ownership of stock
of the Company.
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(u)
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Plan shall mean the Trinity Industries,
Inc. Supplemental Retirement Plan as set forth in this document, as
this document may be amended from time to time.
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(v)
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Retirement shall mean the date on which an
Employee is eligible to begin receiving benefits from any Base
Plan.
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(w)
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Separation from Service
or Separate from
Service shall mean a termination of employment constituting a
“separation from service” within the meaning of
Treasury Regulation 1.409A-1(h).
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2.02
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Construction
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Masculine pronouns used herein shall
refer to men or women or both and nouns and pronouns when stated in
the singular shall include the plural and when stated in the plural
shall include the singular, wherever appropriate.
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5
Designation of
Participants
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3.01
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Eligibility to
Participate
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The
Committee shall meet as necessary to verify the eligibility of
Participants. Participation will be determined solely by the
Committee, and an Employee will not commence participation in the
Plan until notified by the Committee of both his eligibility and
the terms and benefits of the Plan.
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4.01
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Calculation of Plan
Benefit
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(a)
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Basic Plan Benefit
. Benefits under the
Plan shall be actuarially computed amounts payable to a Participant
or Beneficiary so that the annual payments such Participant or
Beneficiary shall receive from the Plan (as limited by paragraph
(c) below) shall equal the amount of the payments which the
Participant would have received at Retirement under the Base Plan
except for the operation of the limits under Code
Sections 401(a)(17) and 415, as those limits are described by
the Base Plan.
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The
benefit payable under the Plan will be reduced by the amount of
plan benefits actually payable to the Participant or Beneficiary
under the Base Plan upon Retirement.
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(b)
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Determination of
Compensation . If the applicable Base Plan is the
Trinity Industries, Inc. Standard Pension Plan, the
Participant’s “accrued benefit” under such plan
will be determined by taking into account, as
“compensation”, amounts otherwise excluded as a result
of their deferral under the Supplemental Profit Sharing Plan for
Employees of Trinity Industries, Inc. and Certain Affiliates. For
purposes of this paragraph, any compensation deferred is treated as
compensation for benefit calculation purposes under the Plan only
in the year(s) payment would otherwise have been made but for the
deferral.
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In
addition, the annual “compensation” used when
calculating the benefit under Section 4.01 shall include
incentive compensation earned under the Company’s Incentive
Compensation Agreement when such compensation is earned,
irrespective of when such compensation is actually paid. To be
included as “compensation” under Section 4.01,
however, the incentive compensation must ultimately be paid to the
Participant.
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(c)
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Subsequent Reductions Under Base
Plan . The
Plan shall not compensate any Participant or Beneficiary for any
adverse effects to the Participant which result in a reduction of
benefits available from the Base Plan due to changes in the Base
Plan benefit formula, social security laws or other laws and
rules.
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4.02
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Time and Form of Plan
Payments
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(a)
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Amounts Subject to Code
Section 409A
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(1)
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Election of Form of
Distribution . Within thirty (30) days
following receipt of a written explanation of the terms of and the
benefits provided under the Plan, but not later than thirty
(30) days
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following the
first day of the Employer’s taxable year immediately
following the first year during which the Participant accrues a
benefit under this Plan, each Participant must make an irrevocable
election as to the form of payment in a manner that is approved by
the Committee. Such election shall apply to all Amounts Subject to
Code Section 409A. The Participant may elect to receive a
distribution of such amounts in any form available under the terms
of the Base Plan as of the date of his election, and an election of
a form of distribution under this Plan need not be the same as the
Participant’s corresponding election under the Base
Plan.
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(i)
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If
an eligible Employee is participating in the Plan in 2008 and
desires to file or modify a previously-filed election, he must
complete such an election or modification and file it with the
Committee on or before December 31, 2008; provided, however,
that a Participant may not file a modified distribution election in
2008 that has the effect of deferring payment of amounts the
Participant would otherwise receive in 2008 or cause payments to be
made in 2008 that would otherwise be made subsequent to 2008. Such
an election shall not be treated as a change in the form of a
payment under Section 409A(a)(4) of the Code or an
acceleration of a payment under Section 409A(a)(3) of the
Code.
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(ii)
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A
modification of a Participant’s previous election related to
the distribution of Amounts Subject to Code Section 409A may
be filed by a Participant with the Committee provided:
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(A)
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Such modification shall not be
effective for at least twelve (12) months after the date on
which the modification is filed with the Committee;
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(B)
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Other than distributions made on
account of death or Disability, any distributions to which such
modification relates shall be deferred for a period of
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