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EXHIBIT 10.1.1
EXECUTIVE SEVERANCE AGREEMENT
AMENDED AND RESTATED
THIS AGREEMENT, dated as of November 7, 2000, between Trinity
Industries, Inc., a Delaware corporation (the "Company") and
____________ (the
"Executive") amends and restates that certain Executive Severance
Agreement
entered into between the Company and the Executive as of
____________.
WITNESSETH
WHEREAS, the Company's Board of Directors has determined that it
is
appropriate to reinforce and encourage the continued attention and
dedication of
members of the Company's management, including the Executive, to
their assigned
duties without distraction in potentially disturbing circumstances
arising from
the possibility of a Change in Control of the Company (as
hereinafter defined);
and
WHEREAS, in consideration for the benefits provided under this
Agreement, the Executive will continue to give his or her attention
and
dedication to his or her duties with the Company; and
WHEREAS, the Company and the Executive wish to amend that
certain
Executive Severance Agreement by and between the Company and the
Executive which
was executed as of the date stated above in order to revise or
clarify certain
provisions to carry out the purposes of such agreement;
NOW, THEREFORE, this Agreement sets forth the severance
compensation
which the Company agrees it will pay to the Executive if the
Executive's
employment with the Company terminates under one of the
circumstances described
herein in connection with a Change in Control of the Company.
1. TERM. This Agreement shall terminate, except to the extent that
any
obligation of the Company hereunder remains unpaid as of such time,
upon the
earliest of:
(i) June 8, 2002; provided, however, that, commencing
on June 8, 2001 and on each anniversary date thereafter (each
such
date, an "Anniversary Date"), the expiration date under this clause
(i)
shall automatically be extended for one additional year unless,
not
later than the December 31 immediately prior to such Anniversary
Date,
either party shall
have given written notice that it does not wish to
extend this Agreement, but in no event shall the expiration date
under
this clause (i) be earlier than the second anniversary of the
Effective
Date of a Change in Control.
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(ii) the termination of the Executive's employment
with the Company based on death, Disability (as defined in Section
3(b)
hereof) or Cause (as defined in Section 3(c) hereof); and
(iii) the voluntary resignation of the Executive for
any reason other than Good Reason (as defined in Section 3(d)).
2.
CHANGE IN CONTROL.
(a) ACCELERATION OF VESTING AND EXTENSION OF EXERCISE RIGHTS OF
EQUITY
COMPENSATION UPON A CHANGE IN CONTROL. In addition to any
provisions concerning
acceleration of vesting in any applicable plan or agreement
relating to
equity-type compensation that may be outstanding between the
Executive and the
Company or any subsidiary of the Company (including, without
limitation, any
stock option agreement, restricted stock agreement, career share
agreement,
bridge share agreement, performance incentive plan agreement, and
performance
unit plan agreement), and notwithstanding any provision to the
contrary in any
such plan or agreement, upon the Effective Date of a Change in
Control all
units, stock options, incentive stock options, performance shares,
performance
awards, and stock appreciation rights then held by the Executive
shall
immediately become 100% vested and exercisable, and the Executive
shall become
100% vested in all career shares, bridge shares, and shares of
restricted stock,
held by or for the benefit of the Executive.
In addition to any provisions concerning extension of exercise
rights
in any applicable plan or agreement relating to equity-type rights
or
compensation that may be outstanding between the Executive and the
Company or
any subsidiary of the Company (including, without limitation, any
stock option
agreement, restricted stock agreement, career share agreement,
bridge share
agreement, performance incentive plan agreement, and performance
unit plan
agreement), and notwithstanding any provision to the contrary in
any such plan
or agreement, upon the Effective Date of a Change in Control the
Executive's
right to exercise any previously unexercised options or other
equity-type rights
shall not terminate until the latest date on which the option or
other right
granted under such agreement would expire under the terms of such
agreement but
for the Executive's termination of employment; with respect to any
incentive
stock option held by the Executive, if not exercised within three
months after
termination of employment, such options shall immediately convert
to
non-qualified stock options.
(b) ACCELERATION OF VESTING OF RETIREMENT AND DEFERRED
COMPENSATION
BENEFITS UPON A CHANGE IN CONTROL. In addition to any provisions
concerning
acceleration of vesting in any applicable plan or agreement
relating to
retirement or deferred compensation-type benefits that may be
outstanding
between the Executive and the Company (including, without
limitation, the
Company's Profit Sharing Plan, Supplemental Profit Sharing Plan,
and Deferred
Compensation Plan and Agreement), and notwithstanding any provision
to the
contrary in any
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such plan or agreement, upon the Effective Date of a Change in
Control all
accounts, interests, rights, and benefits of the Executive in any
such plan or
agreement shall immediately become 100% vested and exercisable;
however, such
acceleration shall not apply to the Company's Pension Plan for
Salaried
Employees.
(c) NO OTHER COMPENSATION PAID PRIOR TO TERMINATION OF
EMPLOYMENT.
Except as provided in paragraphs (a) and (b) of this Section 2, no
compensation
shall be payable or benefits provided under this Agreement unless
and until (x)
there shall have been a Change in Control of the Company, and (y)
the
Executive's employment by the Company is terminated.
(d) DEFINITION OF CHANGE IN CONTROL. For purposes of this
Agreement, a
"Change in Control" of the Company shall be deemed to have occurred
if the event
set forth in any one of the following paragraphs shall have
occurred:
(i) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including
in
the securities beneficially owned by such Person any securities
acquired directly from the Company or its affiliates) representing
30%
or more of the combined voting power of the Company's then
outstanding
securities, excluding any Person who becomes such a Beneficial
Owner in
connection with a transaction described in clause (A) of
paragraph
(iii) below; or
(ii) the following individuals cease for any reason
to constitute a majority of the number of directors then
serving:
individuals who, on July 19, 2000, constitute the board of
directors of
the Company (sometimes hereafter referred to as the "Board") and
any
new director (other than a director whose initial assumption of
office
is
in connection with an actual or threatened election contest,
including but not limited to a consent solicitation, relating to
the
election of directors of the Company) whose appointment or election
by
the Board or nomination for election by the Company's stockholders
was
approved or recommended by a vote of at least two-thirds (2/3) of
the
directors then still in office who either were directors on July
19,
2000 or whose appointment, election or nomination for election
was
previously so approved or recommended; or
(iii) there is consummated a merger or consolidation
of the Company or any direct or indirect subsidiary of the Company
with
any other corporation, other than (A) a merger or consolidation
which
would result in the voting securities of the Company
outstanding
immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted
into
voting securities of the surviving entity or any parent thereof)
at
least 60% of the combined voting power of the securities of the
Company
or such surviving entity or any parent thereof outstanding
immediately
after such merger or consolidation, or (B) a merger or
consolidation
effected to implement a recapitalization of the Company (or
similar
transaction) in which no Person is or becomes the Beneficial
Owner,
directly or indirectly, of securities of the
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Company (not including in the securities Beneficially Owned by
such
Person any securities acquired directly from the Company or its
Affiliates other than in connection with the acquisition by the
Company
or its Affiliates of a business) representing 30% or more of
the
combined voting power of the Company's then outstanding securities;
or
(iv) the stockholders of the Company approve a plan
of complete liquidation or dissolution of the Company, or a sale
or
disposition (whether by reorganization, merger, consolidation,
split-up, spin-off, split-off, combination, subdivision, or
other
similar corporate transaction or event) by the Company of all
or
substantially all of the Company's assets (in one transaction or
a
series of transactions within any period of 24 consecutive
months)
other than a sale or disposition by the Company of all or
substantially
all of the Company's assets to an entity, at least 60% of the
combined
voting power of the voting securities of which are owned by
stockholders of the Company in substantially the same proportions
as
their ownership of the Company immediately prior to such sale.
However,
a sale or disposition by the Company of all or substantially all of
the
Company's assets to an entity (or two or more entities in one
transaction or a series of transactions within any period of 24
consecutive months), at least 60% of the combined voting power of
the
voting securities of which are owned by stockholders of the Company
in
substantially
the same proportions as their ownership of the Company
immediately prior to such sale or disposition shall be considered
a
Change in Control of the Company for purposes of this Agreement if
the
Executive is not offered employment with such entity (or one of
such
entities) on terms comparable to those described in Section
3(g)
hereof. The sale or disposition of a subsidiary or a division of
the
Company, or certain assets of the Company (or of a subsidiary of
the
Company), shall not be a Change in Control unless any such
transaction
or series of related transactions results in a sale or disposition
by
the Company of all or substantially all of the Company's assets
as
provided in subparagraph (iv) above.
For purposes hereof:
"Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated under Section 12 of the Exchange Act.
"Beneficial Owner" shall have the meaning set forth in Rule
13d-3 under the Exchange Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"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
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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.
(e) DEFINITION OF EFFECTIVE DATE OF A CHANGE IN CONTROL. For
purposes
of this Agreement, "Effective Date of a Change in Control" shall
mean the first
to occur of (A) the date on which a Person first becomes the
Beneficial Owner of
30% or more of the combined voting power of the Company's then
outstanding
securities as defined in subparagraph (d)(i) above, or (B) the
effective date of
the election of one or more directors to the Board which results in
the
individuals defined in subparagraph (d)(ii) above ceasing to
constitute a
majority of the number of directors then serving, or (C) the
effective date of
the consummation of a merger or consolidation of the Company or any
direct or
indirect subsidiary of the Company with any other corporation as
defined in
subparagraph (d)(iii) above, or (D) the effective date of a
liquidation or
dissolution of the Company, or a sale or disposition by the Company
of all or
substantially all of the Company's assets, as defined in
subparagraph (d)(iv)
above.
3.
TERMINATION FOLLOWING CHANGE IN CONTROL.
(a) COMPENSATION PAYABLE UPON TERMINATION. If a Change in Control
of
the Company shall have occurred, the Executive shall be entitled to
the
compensation provided in Section 4 hereof upon the termination of
the
Executive's employment with the Company by the Executive or by the
Company
unless such termination is as a result of:
(i) the Executive's death;
(ii) the Executive's Disability (as defined in Section 3(b)
below);
(iii) the Executive's termination by the Company for Cause (as
defined in Section 3(c) below); or
(iv) the Executive's decision to terminate employment other
than for Good Reason (as defined in Section 3(d) below).
Notwithstanding the foregoing provisions of this Section 3, if
the
Executive's employment is terminated by the Company other than for
Cause or
Disability (for purposes of this paragraph, Cause shall include all
of the
events set forth in Section 3(c) hereof and the following:
willfully engaging by
the Executive in continued misconduct which is materially injurious
to the
Company after having been advised in writing of the particular
misconduct deemed
by the Company to be materially injurious to the Company and
instructed in such
writing to cease any further misconduct of a similar nature) prior
to a Change
in Control, and it is reasonably demonstrated that such termination
(i) was at
the request of a third party who has
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taken steps reasonably calculated to effect a Change in Control or
(ii)
otherwise arose in connection with a Change in Control, then for
all purposes of
this Agreement, such termination shall be deemed to have occurred
immediately
following a Change in Control; in addition, if the Executive's
employment is
terminated by the Company other than for Cause (as defined in this
paragraph) or
Disability within 90 days prior to a Change in Control, such
termination shall
conclusively be deemed to have occurred following a Change in
Control. For
further clarification, in the event of a termination of employment
prior to a
Change in Control that is treated as having occurred after a Change
in Control,
the Executive shall not be entitled to benefits under Section 4
hereof if the
Executive voluntarily terminated his or her employment whether or
not for Good
Reason.
(b) DISABILITY. If, as a result of the Executive's incapacity due
to
physical or mental illness, the Executive shall have been absent
from his or her
duties with the Company on a full-time basis for one year and
within thirty days
after written Notice of Termination (as hereinafter defined) is
thereafter given
by the Company, the Executive shall not have returned to the
full-time
performance of the Executive's duties, the Company may terminate
this Agreement
for "DISABILITY."
(c) CAUSE. The Company may terminate the Executive's employment
for
CAUSE. For purposes of this Agreement only, the Company shall have
"Cause" to
terminate the Executive's employment hereunder only on the basis
of:
(i) the willful and continued failure by the Executive to
substantially perform the Executive's duties with the Company
(other
than any such failure resulting from the Executive's incapacity due
to
physical or mental illness and other than in respect of any
duties
inconsistent with, or more burdensome than, the Executive's duties
with
the Company immediately prior to a Change in Control of the
Company);
(ii) misappropriation or embezzlement from the Company or any
other act or acts of dishonesty by the Executive constituting a
felony
that results, or is intended to result, directly or indirectly, in
gain
to or personal enrichment of the Executive at the Company's
expense;
(iii) the conviction of the Executive of a felony involving
the moral turpitude of the Executive; or
(iv) the refusal of the Executive to accept offered employment
after a Change in Control which complies with the terms and
conditions
of Section 3(g) hereof.
For purposes of this Section 3(c), no act or failure to act on the
part of the
Executive shall be considered "willful" unless done, or omitted to
be done, by
the Executive not in good faith and without reasonable belief that
the action or
omission of the Executive was in the best interest of
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the Company. Notwithstanding the foregoing, the Executive shall not
be deemed to
have been terminated for Cause unless and until there shall have
been delivered
to the Executive a copy of a resolution duly adopted by the
affirmative vote of
not less than three-quarters of the entire membership of the Board
at a meeting
of the Board called and held for the purpose (after reasonable
notice to the
Executive and an opportunity for the Executive, together with the
Executive's
counsel, to be heard before the Board), finding that the Executive
was guilty of
conduct set forth in this Section 3(c) and specifying the
particulars thereof in
detail.
(d) GOOD REASON. The Executive may terminate the Executive's
employment
for Good Reason at any time after the Effective Date of a Change in
Control of
the Company. For purposes of this Agreement "GOOD REASON" shall
mean the
occurrence of any of the following unless the Executive has given
his or her
express prior written consent:
(i) a good faith determination by the Executive that there has
been a material adverse change in the Executive's working
conditions or
responsibilities relative to the most favorable working conditions,
and
responsibilities applicable to the Executive during the 12 month
period
prior to the Change in Control (including, but not limited to,
a
significant reduction in the level of support services, staff,
secretarial and other assistance, office space, and
accoutrements);
(ii) the assignment to the Executive by the Company of duties
inconsistent with the Executive's position, duties, and
reporting
responsibilities with the Company immediately prior to a Change
in
Control of the Company (including, but not limited to, a reduction
in
the nature or scope of the Executive's authority, powers,
functions, or
duties), or a change in the Executive's titles or offices as in
effect
immediately prior to a Change in Control of the Company, or any
removal
of the Executive from or any failure to reelect the Executive to
any of
such positions, except in connection with the termination of his or
her
employment for Disability or Cause, or as a result of the
Executive's
death, or
by the Executive other than for Good Reason;
(iii) a reduction by the Company in the Executive's base
salary as in effect on the date hereof or as the same may be
increased
from time to time during the term of this Agreement, or the
Company's
failure to increase (within 12 months of the Executive's last
increase
in base salary) the Executive's base salary after a Change in
Control
of the Company in an amount which at least equals, on a
percentage
basis, the average percentage increase in base salary for all
officers
of the Company effected in the preceding 12 months;
(iv) any action by the Company which would adversely affect
the Executive's participation in or materially reduce the
Executive's
benefits, in the aggregate, under the Benefit Plans, Incentive
Plans,
and Securities Plans; "Benefit Plans" include health and
welfare
benefit plans in which the Executive is participating at the time
of a
Change in
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Control of the Company (including, without limitation, the
Company's pension plans, group life insurance plan, and
medical,
dental, accident
and disability plans); "Incentive Plans" include
incentive compensation plans in which the Executive is
participating at
the time of a Change in Control of the Company (including,
without
limitation, the Company's annual incentive compensation plan and
the
three-year Performance Incentive Pla
