Form SC 13D/A TRINITY INDUSTRIES INC Filed by: VA Partners I, LLC
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities and Exchange Act of 1934
(Amendment No. 14)
Trinity Industries, Inc.
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(Name of Issuer)
Common Stock
------------------------------------------------
(Title of Class of Securities)
896522109
------------------------------------------------
(CUSIP Number)
Jason Breeding, Esq.
Sonia Muscatine, Esq.
ValueAct Capital
One Letterman Drive, Building D, Fourth Floor
San Francisco, CA 94129
(415) 362-3700
------------------------------------------------
(Name, address and telephone number of Person
Authorized to Receive Notices and Communications)
April 29, 2021
------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box [ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 240.13d-7 for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
This information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
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SCHEDULE 13D
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CUSIP NO. 896522109 Page 2 of 21
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1. NAME OF REPORTING PERSON/S.S. OR I.R.S. INDENTIFICATION NO. OF ABOVE
PERSON (entities only)
ValueAct Capital Master Fund, L.P.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
-----------------------------------------------------------------------------
3. SEC USE ONLY
-----------------------------------------------------------------------------
4. SOURCE OF FUNDS (See Instructions)*
WC*
-----------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
-----------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands
-----------------------------------------------------------------------------
7. SOLE VOTING POWER
0
NUMBER OF ----------------------------------------------------------
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 15,005,855**
OWNED BY EACH ----------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------
10. SHARED DISPOSITIVE POWER
15,005,855**
-----------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,005,855**
-----------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
-----------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.8%
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14. TYPE OF REPORTING PERSON
PN
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*See Item 3
**See Item 2 and 5
SCHEDULE 13D
-------------------------- -------------------------
CUSIP NO. 896522109 Page 3 of 21
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1. NAME OF REPORTING PERSON/S.S. OR I.R.S. INDENTIFICATION NO. OF ABOVE
PERSON (entities only)
VA Partners I, LLC
-----------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
-----------------------------------------------------------------------------
3. SEC USE ONLY
-----------------------------------------------------------------------------
4. SOURCE OF FUNDS*
00*
-----------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
-----------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7. SOLE VOTING POWER
0
NUMBER OF ----------------------------------------------------------
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 15,005,855**
OWNED BY EACH ----------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------
10. SHARED DISPOSITIVE POWER
15,005,855**
-----------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,005,855**
-----------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
-----------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.8%
-----------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
00 (LLC)
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*See Item 3
**See Item 2 and 5
SCHEDULE 13D
-------------------------- -------------------------
CUSIP NO. 896522109 Page 4 of 21
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1. NAME OF REPORTING PERSON/S.S. OR I.R.S. INDENTIFICATION NO. OF ABOVE
PERSON (entities only)
ValueAct Capital Management, L.P.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
-----------------------------------------------------------------------------
3. SEC USE ONLY
-----------------------------------------------------------------------------
4. SOURCE OF FUNDS*
00*
-----------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
-----------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
-----------------------------------------------------------------------------
7. SOLE VOTING POWER
0
NUMBER OF ----------------------------------------------------------
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 15,005,855**
OWNED BY EACH ----------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------
10. SHARED DISPOSITIVE POWER
15,005,855**
-----------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,005,855**
-----------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
-----------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.8%
-----------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
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*See Item 3
**See Item 2 and 5
SCHEDULE 13D
-------------------------- -------------------------
CUSIP NO. 896522109 Page 5 of 21
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1. NAME OF REPORTING PERSON/S.S. OR I.R.S. INDENTIFICATION NO. OF ABOVE
PERSON (entities only)
ValueAct Capital Management, LLC
-----------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
-----------------------------------------------------------------------------
3. SEC USE ONLY
-----------------------------------------------------------------------------
4. SOURCE OF FUNDS*
00*
-----------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
-----------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
-----------------------------------------------------------------------------
7. SOLE VOTING POWER
0
NUMBER OF ----------------------------------------------------------
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 15,005,855**
OWNED BY EACH ----------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------
10. SHARED DISPOSITIVE POWER
15,005,855**
-----------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,005,855**
-----------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
-----------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.8%
-----------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
00 (LLC)
-----------------------------------------------------------------------------
*See Item 3
**See Item 2 and 5
SCHEDULE 13D
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CUSIP NO. 896522109 Page 6 of 21
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1. NAME OF REPORTING PERSON/S.S. OR I.R.S. INDENTIFICATION NO. OF ABOVE
PERSON (entities only)
ValueAct Holdings, L.P.
---------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
-----------------------------------------------------------------------------
3. SEC USE ONLY
---------------------------------------------------------------------------
4. SOURCE OF FUNDS*
00*
-----------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
-----------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
-----------------------------------------------------------------------------
7. SOLE VOTING POWER
0
NUMBER OF ----------------------------------------------------------
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 15,005,855**
OWNED BY EACH ----------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------
10. SHARED DISPOSITIVE POWER
15,005,855**
-----------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,005,855**
-----------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
-----------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.8%
-----------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
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*See Item 3
**See Items 2 and 5
SCHEDULE 13D
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CUSIP NO. 896522109 Page 7 of 21
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1. NAME OF REPORTING PERSON/S.S. OR I.R.S. INDENTIFICATION NO. OF ABOVE
PERSON (entities only)
ValueAct Holdings II, L.P.
---------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
-----------------------------------------------------------------------------
3. SEC USE ONLY
---------------------------------------------------------------------------
4. SOURCE OF FUNDS*
00*
-----------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
-----------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
-----------------------------------------------------------------------------
7. SOLE VOTING POWER
0
NUMBER OF ----------------------------------------------------------
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 15,005,855**
OWNED BY EACH ----------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------
10. SHARED DISPOSITIVE POWER
15,005,855**
-----------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,005,855**
-----------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
-----------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.8%
-----------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
-----------------------------------------------------------------------------
*See Item 3
**See Items 2 and 5
SCHEDULE 13D
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CUSIP NO. 896522109 Page 8 of 21
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1. NAME OF REPORTING PERSON/S.S. OR I.R.S. INDENTIFICATION NO. OF ABOVE
PERSON (entities only)
ValueAct Holdings GP, LLC
---------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
-----------------------------------------------------------------------------
3. SEC USE ONLY
-----------------------------------------------------------------------------
4. SOURCE OF FUNDS*
00*
-----------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
-----------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
-----------------------------------------------------------------------------
7. SOLE VOTING POWER
0
NUMBER OF ----------------------------------------------------------
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 15,005,855**
OWNED BY EACH ----------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------
10. SHARED DISPOSITIVE POWER
15,005,855**
-----------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,005,855**
-----------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
-----------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.8%
-----------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
00 (LLC)
-----------------------------------------------------------------------------
*See Item 3
**See Items 2 and 5
SCHEDULE 13D
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CUSIP NO. 896522109 Page 9 of 21
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This Amendment No. 14 supplements the information set forth in the
Schedule 13D filed by the Reporting Persons with the United States Securities
and Exchange Commission (the "SEC"), as amended from time to time (the
"Schedule 13D"), relating to Common Stock, par value $0.01 (the "Common
Stock"), of Trinity Industries, Inc., a Delaware corporation (the "Issuer").
All capitalized terms contained herein but not otherwise defined shall have
the meanings ascribed to such terms in the Schedule 13D.
The information set forth in response to each separate Item below shall
be deemed to be a response to all Items where such information is relevant.
The Schedule 13D is hereby supplementally amended as follows:
Item 4. Purpose of Transaction
The responses to Items 5 and 6 of the Schedule 13D are incorporated
herein by reference.
On April 29, 2021, the Issuer entered into a Stock Repurchase Agreement
(the "Repurchase Agreement") with ValueAct Master Fund to repurchase
8,100,000 shares of the Issuer's Common Stock, for $27.47 per share for the
aggregate purchase price of $222,507,000 in a privately negotiated
transaction (the "Repurchase Transaction"). Under the Repurchase Agreement,
through September 1, 2021, ValueAct Master Fund will not make any additional
sales of Common Stock without the Issuer?s consent. The Repurchase
Transaction is expected to close on or about April 30, 2021, subject to
customary closing conditions. The foregoing description of the Repurchase
Agreement does not purport to be complete and is qualified in its entirety by
reference to the full text of the Repurchase Agreement, which is incorporated
by reference to Exhibit 2 and is incorporated herein by reference.
Item 5. Interest in Securities of the Issuer
The responses to Items 3, 4 and 6 of this Schedule 13D are incorporated
herein by reference.
(a) and (b). Set forth below is the beneficial ownership of shares of
Common Stock of the Issuer for each person named in Item 2. Shares reported
as beneficially owned by ValueAct Master Fund are also reported as
beneficially owned by (i) ValueAct Management L.P. as the manager of each
such investment partnership, (ii) ValueAct Management LLC, as General
Partner of ValueAct Management L.P., (iii) ValueAct Holdings, as the majority
owner of the membership interests of VA Partners I, (iv) ValueAct Holdings
II, as the sole owner of the limited partnership interests of ValueAct
Management L.P. and the membership interests of ValueAct Management LLC, and
(v) ValueAct Holdings GP, as General Partner of ValueAct Holdings and
ValueAct Holdings II. Shares reported as beneficially owned by ValueAct
Master Fund are also reported as beneficially owned by VA Partners I, as
General Partner of ValueAct Master Fund. VA Partners I, ValueAct Management
L.P., ValueAct Management LLC, ValueAct Holdings, ValueAct Holdings II, and
ValueAct Holdings GP also, directly or indirectly, may own interests in one
or more than one of the partnerships from time to time. Unless otherwise
indicated below, by reason of such relationship ValueAct Master Fund is
SCHEDULE 13D
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CUSIP NO. 896522109 Page 10 of 21
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reported as having shared power to vote or to direct the vote, and shared
power to dispose or direct the disposition of, such shares of Common Stock,
with VA Partners I (only with respect to ValueAct Master Fund), ValueAct
Management L.P., ValueAct Management LLC, ValueAct Holdings, ValueAct
Holdings II, and ValueAct Holdings GP.
As of the date hereof, the Reporting Persons may be deemed to be the
beneficial owner of 15,005,855 shares of Common Stock, representing
approximately 14.8% of the Issuer's outstanding Common Stock. All percentages
set forth in this Schedule 13D are based upon 101,235,696 outstanding shares
of Common Stock, which is based on the Issuer's reported 109,335,696
outstanding shares of Common Stock as of April 20, 2021 as reported in the
Issuer's Form 10-Q for the quarterly period ended March 31, 2021 less the
Common Stock acquired by the Issuer pursuant to the Repurchase Transaction.
(c) Except for the Repurchase Transaction described in Item 4, there
were no transactions with respect to shares of Common Stock effected since
the date of the previous filing to this Schedule 13D by the Reporting
Persons, inclusive of any transactions effected through 4:00 p.m., New York
City time, on April 29, 2021. The disclosure regarding the Repurchase
Transaction in Item 4 is incorporated herein by reference.
(d) and (e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer
The responses to Items 4 and 5 of the Schedule 13D are incorporated
herein by reference.
On April 29, 2021, the Issuer entered into the Repurchase Agreement with
ValueAct Master Fund to repurchase 8,100,000 shares of Common Stock, for
27.47 per share for the aggregate purchase price of $222,507,000 in a
privately negotiated transaction. Under the Repurchase Agreement, through
September 1, 2021, ValueAct Master Fund will not make any additional sales of
Common Stock without the Issuer's consent.
The foregoing description of the Repurchase Agreement does not purport
to be complete and is qualified in its entirety by reference to the full text
of the Repurchase Agreement, which is incorporated by reference to Exhibit 2,
and is incorporated herein by reference.
SCHEDULE 13D
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CUSIP NO. 896522109 Page 11 of 21
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Item 7. Material to Be Filed as Exhibits
(1)Joint Filing Agreement.
(2)Repurchase Agreement, dated April 29, 2021, by and among
ValueAct Master Fund and the Issuer.
SIGNATURE
After reasonable inquiry and to the best of his knowledge and
belief, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below on this Schedule 13D hereby constitutes and appoints Bradley E. Singer,
G. Mason Morfit and Jason B. Breeding, and each of them, with full power to
act without the other, his or its true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him or it and in his
or its name, place and stead, in any and all capacities (until revoked in
writing) to sign any and all amendments to this Schedule 13D, and to file 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, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary fully to all intents and
purposes as he or it might or could do in person, thereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
SCHEDULE 13D
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CUSIP NO. 896522109 Page 12 of 21
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ValueAct Capital Master Fund L.P., by
VA Partners I, LLC, its General Partner
By: /s/ Bradley E. Singer
--------------------------------------
Dated: April 30, 2021 Bradley E. Singer, Chief Operating Officer
VA Partners I, LLC
By: /s/ Bradley E. Singer
--------------------------------------
Dated: April 30, 2021 Bradley E. Singer, Chief Operating Officer
ValueAct Capital Management, L.P., by
ValueAct Capital Management, LLC its
General Partner
By: /s/ Bradley E. Singer
--------------------------------------
Dated: April 30, 2021 Bradley E. Singer, Chief Operating Officer
ValueAct Capital Management, LLC
By: /s/ Bradley E. Singer
--------------------------------------
Dated: April 30, 2021 Bradley E. Singer, Chief Operating Officer
ValueAct Holdings, L.P., by
ValueAct Holdings GP, LLC, its General Partner
By: /s/ Bradley E. Singer
--------------------------------------
Dated: April 30, 2021 Bradley E. Singer, Chief Operating Officer
ValueAct Holdings II, L.P., by ValueAct
Holdings GP, LLC, its General Partner
By: /s/ Bradley E. Singer
--------------------------------------
Dated: April 30, 2021 Bradley E. Singer, Chief Operating Officer
ValueAct Holdings GP, LLC
By: /s/ Bradley E. Singer
--------------------------------------
Dated: April 30, 2021 Bradley E. Singer, Chief Operating Officer
SCHEDULE 13D
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CUSIP NO. 896522109 Page 13 of 21
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Exhibit 2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered into as of
April 29, 2021 by and among Trinity Industries, Inc., a Delaware corporation
(the "Company"), on the one hand, and ValueAct Capital Master Fund, L.P. (the
"Selling Stockholder"), on the other hand.
Recitals
WHEREAS, the Selling Stockholder beneficially owns an aggregate of
23,105,855 shares of the Company's outstanding common stock, par value $0.01
per share (the "Common Stock"), constituting approximately 20.9% of the
outstanding Common Stock; and
WHEREAS, the Selling Stockholder desires to sell to the Company, and the
Company desires to repurchase from the Selling Stockholder, an aggregate of
8,100,000 shares of Common Stock (the "Shares") at a price of $27.47 per
Share, for an aggregate price of $222,507,000 for the Shares (such aggregate
purchase price, the "Purchase Price"), upon the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the undersigned hereby agree as follows:
Agreement
1. Repurchase.
(a) Purchase and Sale. On the date of the Closing (as defined
below), upon the terms and subject to the conditions of this Agreement, the
Company hereby agrees to repurchase from the Selling Stockholder, and the
Selling Stockholder hereby agrees to sell, convey, assign, transfer and
deliver, or cause to be delivered, to the Company, the Shares for an
aggregate purchase price equal to the Purchase Price, free and clear of any
and all mortgages, pledges, encumbrances, liens, security interests, options,
charges, claims, deeds of trust, deeds to secure debt, title retention
agreements, rights of first refusal or offer, limitations on voting rights,
proxies, voting agreements, limitations on transfer or other agreements or
claims of any kind or nature whatsoever (collectively, "Liens").
(b) Closing. Subject to the terms and conditions of this
Agreement and the delivery of the deliverables contemplated by Section 1(c)
of this Agreement, the closing of the sale of the Shares contemplated hereby
(the ?Closing?) will take place on April 30, 2021 at a time and place
mutually agreed by the parties.
(c) Closing Deliveries and Actions.
(i) At the Closing, the Selling Stockholder shall
arrange for an appropriate electronic transfer (including through Deposit and
Withdrawal at Custodian) of the Shares to one or more accounts designated by
the Company, sufficient to convey to the Company good, valid and marketable
SCHEDULE 13D
-------------------------- -------------------------
CUSIP NO. 896522109 Page 14 of 21
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title in and to the Shares, free and clear of any and all Liens.
(ii) At the Closing, the Company shall deliver to the
Selling Stockholder by wire transfer to the account to be designated by the
Selling Stockholder immediately available funds in U.S. dollars in an amount
equal to the Purchase Price.
(d) Conditions of the Selling Stockholder's Obligations at
Closing. The obligation of the Selling Stockholder to sell the Shares is
subject to the fulfillment, on or before the Closing, of each of the
following conditions, unless otherwise waived:
(i) The representations and warranties contained in
Section 3 shall be true and correct in all respects as of the Closing.
(ii) The Company shall have performed and complied with
all covenants, agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by the Company
on or before the Closing.
(iii) There shall be no pending suit, action or
proceeding by any federal, state, local or foreign court, administrative
agency or governmental or regulatory authority or body (each, an "Authority")
to which the Company or any of its properties is subject, seeking to
challenge, restrain, preclude, enjoin or prohibit the transactions
contemplated by this Agreement.
(e) Conditions of the Company?s Obligations at Closing. The
obligation of the Company to purchase the Shares is subject to the
fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
(i) The representations and warranties contained in
Section 2 shall be true and correct in all respects as of the Closing.
(ii) The Selling Stockholder shall have performed and
complied with all covenants, agreements, obligations and conditions contained
in this Agreement that are required to be performed or complied with by the
Selling Stockholder on or before the Closing.
(iii) There shall be no pending suit, action or proceeding
by any Authority to which the Company or any of its properties is subject,
seeking to challenge, restrain, preclude, enjoin or prohibit the transactions
contemplated by this Agreement.
2. Representations of the Company. The Company represents and
warrants to the Selling Stockholder that, as of the date hereof and at the
Closing:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The Company has the full power and authority to execute,
deliver and carry out the terms and provisions of this Agreement and to
SCHEDULE 13D
-------------------------- -------------------------
CUSIP NO. 896522109 Page 15 of 21
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consummate the transactions contemplated hereby, and has taken all necessary
action to authorize the execution, delivery and performance of this
Agreement.
(c) This Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes a legal, valid and
binding obligation of the Company, enforceable in accordance with its terms,
except to the extent that (i) such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors? rights generally and (ii) the remedy of
specific performance and injunctive and other forms of equitable relief may
be subject to certain equitable defenses and to the discretion of the court
before which any proceedings may be brought.
(d) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not conflict with,
result in the breach of any of the terms or conditions of, constitute a
default under or violate, accelerate or permit the acceleration of any other
similar right of any other party under the Amended and Restated Certificate
of Incorporation or Amended and Restated Bylaws of the Company, any law, rule
or regulation or any agreement, lease, mortgage, note, bond, indenture,
license or other document or undertaking to which the Company is a party or
by which the Company or its properties may be bound, nor will such execution,
delivery and consummation violate any order, writ, injunction or decree of
any Authority to which the Company or any of its properties is subject, the
effect of any of which, either individually or in the aggregate, would have,
or reasonably be expected to have, a material adverse effect on the
consolidated financial position, stockholders? equity or results of
operations of the Company and its subsidiaries, taken as a whole, or
materially impact the Company's ability to consummate the transactions
contemplated by this Agreement (a "Material Adverse Effect"); and no consent,
approval, authorization, order, registration or qualification of or with any
such Authority is required for the consummation by the Company of the
transactions contemplated by this Agreement, except such consents, approvals,
authorizations and orders as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(e) The Company acknowledges that it has not relied upon any
express or implied representations or warranties of any nature made by or on
behalf of the Selling Stockholder, whether or not any such representations,
warranties or statements were made in writing or orally, except as expressly
set forth for the benefit of the Company in this Agreement.
3. Representations of the Selling Stockholder. The Selling
Stockholder represents and warrants to the Company that, as of the date
hereof and at the Closing:
(a) The Selling Stockholder is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization.
(b) The Selling Stockholder has the full power and authority to
execute, deliver and carry out the terms and provisions of this Agreement and
consummate the transactions contemplated hereby, and has taken all necessary
action to authorize the execution, delivery and performance of this
Agreement.
SCHEDULE 13D
-------------------------- -------------------------
CUSIP NO. 896522109 Page 16 of 21
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(c) This Agreement has been duly and validly authorized,
executed and delivered by the Selling Stockholder, and constitutes a legal,
valid and binding obligation of the Selling Stockholder, enforceable in
accordance with its terms, except to the extent that (i) such enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors? rights generally and (ii)
the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to certain equitable defenses and to the
discretion of the court before which any proceedings may be brought.
(d) The sale of the Shares to be sold by the Selling Stockholder
hereunder and the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not conflict with,
result in the breach of any of the terms or conditions of, constitute a
default under or violate, accelerate or permit the acceleration of any other
similar right of any other party under the governing organizational documents
of the Selling Stockholder, any law, rule or regulation, or any agreement,
lease, mortgage, note, bond, indenture, license or other document or
undertaking, to which the Selling Stockholder is a party or by which the
Selling Stockholder or its properties may be bound, nor will such execution,
delivery and consummation violate any order, writ, injunction or decree of
any Authority to which the Selling Stockholder or any of its properties is
subject, the effect of any of which, either individually or in the aggregate,
would affect the validity of the Shares to be sold by the Selling Stockholder
or reasonably be expected to materially impact the Selling Stockholder?s
ability to perform its obligations under this Agreement; and no consent,
approval, authorization, order, registration or qualification of or with any
such Authority is required for the performance by the Selling Stockholder of
its obligations under this Agreement and the consummation by the Selling
Stockholder of the transactions contemplated by this Agreement in connection
with the Shares to be sold by the Selling Stockholder hereunder, except such
consents, approvals, authorizations and orders as would not, individually or
in the aggregate, reasonably be expected to have a material adverse effect on
the Selling Stockholder?s ability to consummate the transactions contemplated
by this Agreement.
(e) The transfer of Shares made by the Selling Stockholder at
the Closing will be valid and binding obligations of the Selling Stockholder,
enforceable in accordance with their respective terms, and vest in the
Company good, valid and marketable title to all Shares purchased by the
Company, free and clear of any and all Liens.
(f) The Selling Stockholder is a sophisticated investor and knows
that the Company may have material non-public information concerning the
Company and its condition (financial and otherwise), results of operations,
businesses, properties, plans and prospects and that such information could
be material to the Selling Stockholder's decision to sell the Shares or
otherwise materially adverse to the Selling Stockholder's interests. The
Selling Stockholder acknowledges and agrees that the Company shall have no
obligation to disclose to it any such information and hereby waives and
releases, to the fullest extent permitted by applicable law, any and all
claims and causes of action it has or may have against Company and its
affiliates, officers, partners, directors, employees, agents and
representatives based upon, relating to or arising out of nondisclosure of
such information or the sale of the Shares hereunder.
SCHEDULE 13D
-------------------------- -------------------------
CUSIP NO. 896522109 Page 17 of 21
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(g) The Selling Stockholder has adequate information
concerning the business and financial condition of the Company to make an
informed decision regarding the sale of the Shares and has, independently and
without reliance upon the Company, made its own analysis and decision to sell
the Shares. With respect to legal, tax, accounting, financial and other
considerations involved in the transactions contemplated by this Agreement,
including the sale of the Shares, the Selling Stockholder is not relying on
the Company (or any agent or representative thereof). The Selling Stockholder
has carefully considered and, to the extent it believes such discussion is
necessary, discussed with professional legal, tax, accounting, financial and
other advisors the suitability of the transactions contemplated by this
Agreement, including the sale of the Shares.
4. Additional Covenants.
(a) The Selling Stockholder shall be responsible for the
payment of any stock transfer or similar taxes in connection with the
transaction contemplated by this Agreement.
(b) The Selling Stockholder agrees that, through September 1,
2021, neither it nor any of its affiliates will, without the prior written
consent of the Company, (i) offer, sell, contract to sell, pledge, or
otherwise dispose of (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise)), or establish or increase a put equivalent position or liquidate
or decrease a call equivalent position within the meaning of Section 16 of
the Securities Exchange Act of 1934 and the rules and regulations promulgated
thereunder, any Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock whether now owned or hereafter
acquired by the undersigned or with respect to which the undersigned has or
hereafter acquires the power of disposition (collectively, the "Lock-Up
Securities") or exercise any right with respect to the registration of any of
the Lock-Up Securities, or file or cause to be filed any registration
statement in connection therewith under the Securities Act of 1933 and the
rules and regulations promulgated thereunder, or (ii) enter into any swap or
any other agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the Lock-Up
Securities, whether any such swap or transaction is to be settled by delivery
of Common Stock or other securities, in cash or otherwise. The foregoing
shall not apply to the exercise or settlement of equity-based compensation
awards of the Company granted to Brandon B. Boze under any stock incentive
plan or stock purchase plan of the Company, including the withholding of
shares to satisfy exercise price, tax withholding obligations or both,
provided that the net underlying shares issued thereunder shall be subject to
the restrictions on transfer to the Company set forth in this Section 4(b).
5. Publicity. Each of the Selling Stockholder and the Company agrees
that it shall not, and that it shall cause its affiliates and representatives
not to, (a) publish, release or file any initial press release or other
public statement or announcement relating to the transactions contemplated by
this Agreement (an "Initial Press Release") before providing a copy of such
release, statement or announcement to the other, and (b) after the date
hereof, publish, release or file any future press release or other public
SCHEDULE 13D
-------------------------- -------------------------
CUSIP NO. 896522109 Page 18 of 21
-----------------------------------------------------------------------------
statement or announcement relating to the transactions contemplated by this
Agreement that is materially inconsistent with any such Initial Press
Release; provided, however, that nothing in this Section 5 shall restrict the
ability of the Company to file a Current Report on Form 8-K or periodic
reports on Form 10-Q or 10-K, or the Selling Stockholder to file a Form 4 or
an amendment to its Schedule 13D, in each case relating to the transactions
contemplated by this Agreement, without further review or consent from the
other party.
6. Notices. All notices, requests, claims, demands or other
communications to be given or delivered under or by reason of the provisions
of this Agreement will be in writing and will be deemed to have been given
when delivered personally, mailed by certified or registered mail (return
receipt requested and postage prepaid), sent via a nationally recognized
overnight courier, or sent via email (receipt of which is confirmed) to the
recipient. Such notices, demands and other communications shall be sent as
follows:
If to the Selling Stockholder:
ValueAct Capital Master Fund, L.P.
One Letterman Drive, Building D, Fourth Floor
San Francisco, California 94129
Attention: [Redacted]
Email: [Redacted]
If to the Company:
Trinity Industries, Inc.
14221 N. Dallas Parkway, Suite 1100
Dallas, Texas 75254
Attention: [Redacted]
Email: [Redacted]
With copies to (which shall not constitute notice):
[Redacted]
Attention: [Redacted]
Email: [Redacted]
[Redacted]
Attention: [Redacted]
Email: [Redacted]
or such other address or to the attention of such other person as the
recipient party shall have specified by prior written notice to the sending
party.
7. Miscellaneous.
(a) Survival of Representations and Warranties. All
representations and warranties contained herein or made in writing by any
party in connection herewith shall survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby until
the expiration of the applicable statute of limitations.
(b) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid
SCHEDULE 13D
-------------------------- -------------------------
CUSIP NO. 896522109 Page 19 of 21
-----------------------------------------------------------------------------
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal, or unenforceable in any respect under any applicable law or
rule in any jurisdiction, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
(c) Complete Agreement. This Agreement supersedes all prior
agreements and understandings (whether written or oral) between the Company
and the Selling Stockholder with respect to the subject matter hereof.
(d) Counterparts. This Agreement may be executed by any one or
more of the parties hereto in counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and
the same instrument. This Agreement, and any and all agreements and
instruments executed and delivered in accordance herewith, to the extent
signed and delivered by means of facsimile or other electronic format or
signature (including email, "pdf, " "tif, " "jpg, " DocuSign and Adobe Sign),
shall be treated in all manner and respects and for all purposes as an
original signature and an original agreement or instrument and shall be
considered to have the same legal effect, validity and enforceability as if
it were the original signed version thereof delivered in person.
(e) Further Assurances. Subject to the other terms of this
Agreement, the parties hereto agree to execute and deliver such other
instruments and perform such acts, in addition to the matters herein
specified, as may be reasonably appropriate or necessary, from time to time,
to effectuate the transactions contemplated by this Agreement.
(f) Successors and Assigns. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned, in whole or
in part, by either party without the prior written consent of the other
party. Except as otherwise provided herein, this Agreement shall bind and
inure to the benefit of and be enforceable by the Selling Stockholder and the
Company and their respective successors and assigns.
(g) No Third Party Beneficiaries or Other Rights. This
Agreement is for the sole benefit of the parties and their successors and
permitted assigns and nothing herein express or implied shall give or shall
be construed to confer any legal or equitable rights or remedies to any
person other than the parties to this Agreement and such successors and
permitted assigns.
(h) Governing Law. THIS AGREEMENT AND ANY MATTERS RELATED TO
THIS TRANSACTION SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
THEREOF. The Company and the Selling Stockholder each agrees that any suit or
proceeding arising in respect of this Agreement will be tried exclusively in
the Delaware Court of Chancery in and for New Castle County, but in the event
that such court does not have subject matter jurisdiction, the United States
District Court for the District of Delaware, and the Company and the Selling
Stockholder each agrees to submit to the jurisdiction of, and to venue in,
such courts.
SCHEDULE 13D
-------------------------- -------------------------
CUSIP NO. 896522109 Page 20 of 21
-----------------------------------------------------------------------------
(i) Waiver of Jury Trial. The Company and the Selling
Stockholder each hereby irrevocably waives, to the fullest extent permitted
by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
(j) Mutuality of Drafting. The parties have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement
shall be construed as jointly drafted by the parties, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of
the authorship of any provision of the Agreement.
(k) Remedies. Each of the parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without
posting any bond or deposit) for specific performance or other injunctive
relief in order to enforce, or prevent any violations of, the provisions of
this Agreement.
(l) Amendment and Waiver. No modification of or amendment to
this Agreement shall be effective unless in a writing signed by the parties
to this Agreement, and no waiver of any rights under this Agreement shall be
effective unless in a writing signed by the waiving party.
(m) Expenses. Each of the Company and the Selling Stockholder
shall bear its own costs and expenses in connection with the drafting,
negotiation, execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby.
[Signatures appear on the following page.]
SCHEDULE 13D
-------------------------- -------------------------
CUSIP NO. 896522109 Page 21 of 21
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IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase
Agreement as of the date first written above.
COMPANY:
TRINITY INDUSTRIES, INC.
By:
Name:
Title:
SELLING STOCKHOLDER:
VALUEACT CAPITAL MASTER FUND,L.P., by
VA Partners I, LLC, its General Partner
By:
Name:
Title:
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