CERTIFICATE OF AMENDMENT

 

TO

 

CERTIFICATE OF INCORPORATION

 

OF

 

TRINITY INDUSTRIES, INC.

 

 

Pursuant to the provisions of Section 242 of the General Corporation

Law of Delaware, the undersigned hereby certifies the following amendment

to the Certificate of Incorporation, as amended, of TRINITY INDUSTRIES, INC.

(the "Company") has been duly adopted in accordance with the provisions of

Section 242, to-wit:

 

 

This Certificate of Amendment to the Certificate of Incorporation, as

amended, amends the first paragraph of Article IV of the Certificate of

Incorporation, as amended, for the Company, as heretofore amended, supplemented

and restated, by deleting the first paragraph of Article IV thereof and

substituting in lieu thereof a new paragraph, which shall read in its entirety

as follows:

 

"ARTICLE IV.

------------

 

Authorized Capital Stock

------------------------

 

The total number of shares of stock which the corporation shall have

authority to issue is Two Hundred and One Million and Five Hundred Thousand

(201,500,000) shares, of which One Million Five Hundred Thousand (1,500,000)

shares shall be voting Preferred Stock without par value and Two Hundred Million

(200,000,000) shares shall be Common Stock with a par value of One Dollar

($1.00) per share."

 

IN WITNESS WHEREOF, this Certificate of Amendment to the Certificate of

Incorporation, as amended, has been executed by a duly authorized officer of the

Company this 23rd day of May, 2007.

 

 

TRINITY INDUSTRIES, INC.

 

 

By: /s/ Paul M. Jolas

----------------------------------------

Paul M. Jolas

Deputy General Counsel -- Corporate and

Transactions, and Corporate Secretary

 

 

 

 


 

 

 

 

 

 

 

PAGE 1

 

STATE OF DELAWARE

 

OFFICE OF THE SECRETARY OF STATE

 

 

----------

 

 

I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO

HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF

AMENDMENT OF "TRINITY INDUSTRIES, INC.", FILED IN THIS OFFICE ON THE EIGHTEENTH

DAY OF DECEMBER, A.D. 1987, AT 10 O'CLOCK A.M.

 

 

 

/s/ EDWARD J. FREEL

-----------------------------------

Edward J. Freel, Secretary of State

 

[SEAL]

 

2098029 8100 AUTHENTICATION: 0779754

 

001549195 DATE: 11-08-00

 

 

 

 

 


 

 

[STAMP]

 

CERTIFICATE TO FIRST AMENDMENT

 

TO

 

CERTIFICATE OF INCORPORATION

 

OF

 

TRINITY INDUSTRIES, INC.

 

 

Pursuant to the provisions of Section 242 of the General Corporation

Law of Delaware, the undersigned hereby certify that the following amendment to

the Certificate of Incorporation of TRINITY INDUSTRIES, INC. (the "Company") has

been duly adopted in accordance with the provisions of Section 242, to-wit:

 

Article XI is added to the Certificate of Incorporation of the Company

to read in its entirety as follows:

 

ARTICLE XI

 

No director of the corporation shall be personally liable to the

corporation or its stockholders for monetary damages for breach of fiduciary

duty as a director, except for liability (i) for any breach of the director's

duty of loyalty to the corporation or its stockholders, (ii) for acts or

omissions not in good faith or which involve intentional misconduct or a knowing

violation of law, (iii) under Section 174 of the Delaware General Corporation

Law, or (iv) for any transaction from which the director derived an improper

personal benefit. Any repeal or modification of the foregoing provisions of this

Article XI by the stockholders of the corporation shall not adversely affect any

right or protection of a director of the corporation existing at the time of

such repeal or modification.

 

IN WITNESS WHEREOF, the undersigned have executed this document as of

December 15th, 1987.

 

TRINITY INDUSTRIES, INC.

 

By: /s/ F. DEAN PHELPS, JR.

-------------------------------------

F. Dean Phelps, Jr.

Vice President

 

ATTEST:

 

/s/ J. J. FRENCH, JR.

-------------------------------

J. J. French, Jr.

Secretary

 

 

 

 


 

 

PAGE 1

 

STATE OF DELAWARE

 

OFFICE OF THE SECRETARY OF STATE

 

----------

 

I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO

HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF

AMENDMENT OF "TRINITY INDUSTRIES, INC.", FILED IN THIS OFFICE ON THE SIXTH DAY

OF AUGUST, A.D. 1993, AT 1:30 O'CLOCK P.M.

 

 

 

 

/s/ EDWARD J. FREEL

-----------------------------------

Edward J. Freel, Secretary of State

 

[SEAL]

 

2098029 8100 AUTHENTICATION: 0779755

 

001549195 DATE: 11-08-00

 

 

 

 

 


 

 

[STAMP]

 

SECOND AMENDMENT

 

TO

 

CERTIFICATE OF INCORPORATION

 

OF

 

TRINITY INDUSTRIES, INC.

 

 

Pursuant to the provisions of Section 242 of the General Corporation

Law of Delaware, the undersigned hereby certify the following amendment to the

Certificate of Incorporation of TRINITY INDUSTRIES, INC. (the "Company") has

been duly adopted in accordance with the provisions of Sections 242, to-wit:

 

Article IV of the Company's Certificate of Incorporation is amended to

increase the authorized number of shares of stock that the Company shall have

authority to issue from Forty One Million Five Hundred Thousand (41,500,000)

shares to One Hundred One Million Five Hundred Thousand (101,500,000) shares

and the authorized number of shares of Common Stock from Forty Million

(40,000,000) shares to One Hundred Million (100,000,000) shares by substituting

the following in lieu of the existing Article IV of the Certificate of

Incorporation so that Article IV as amended shall read in its entirety as

follows:

 

"ARTICLE IV.

 

Authorized Capital Stock

 

The total number of shares of stock which the corporation

shall have authority to issue is One Hundred and One Million Five

Hundred Thousand (101,500,000) shares, of which One Million Five

Hundred Thousand (1,500,000) shares shall be voting Preferred Stock

without par value and One Hundred Million (100,000,000) shares shall be

Common Stock with a par value of One Dollar ($1.00) per share.

 

The following is a statement of the designations and the

powers, preferences and rights, and the qualifications, limitations or

restrictions thereof in respect of the shares of Preferred Stock and

Common Stock of the corporation and of the authority expressly granted

hereby to the Board of Directors of the corporation to fix by

resolution or resolutions any of such designations and powers,

preferences and rights, and qualifications, limitations and

restrictions thereof that may be desired but which shall not be fixed

by this Certificate of Incorporation.

 

 

 

 

 

 


 

 

A. Preferred Stock. The following is a statement of the

designations and the powers, preferences and rights, and the

qualifications, limitations or restrictions thereof in respect of the

shares of Preferred Stock.

 

1. Voting Rights of Preferred Stock. In addition to

such voting rights as may from time to time be required by the laws of

Delaware, the holders of Preferred Stock shall vote at such times as

holders of Common Stock may vote and in a like manner, one vote for

each share of stock held, and all shares of the corporation shall be

voted as a single class, except where specifically required by law to

vote separately.

 

2. Provisions Regarding Issuance. The Preferred Stock

may be issued from time to time in one or more series and in such

amounts and for such consideration as may be determined by the Board of

Directors. The designations, powers, preferences, and relative

participating, optional, conversion and other special rights, and the

qualifications, limitations or restrictions thereof, of the Preferred

Stock, and as between the series of the Preferred Stock, shall be as

are fixed herein and, to the extent not fixed herein, shall be such,

not inconsistent with the provisions of this Article IV, as may be

fixed by the Board of Directors, authority so to do being hereby

expressly granted, and stated in a resolution or resolutions adopted by

the Board of Directors providing for the issue of such series (herein

called "Directors' Resolution"). The Directors' Resolution as to any

series shall (a) designate the series, (b) fix the dividend rate of

such series, the payment dates for dividends on shares of such series

and, if the Board of Directors deems it advisable to cause dividends to

be cumulative, the date or dates, or the method of determining the date

or dates, from which dividends on shares of such series shall be

cumulative, (c) fix the amount or amounts payable on shares of such

series upon voluntary liquidation, dissolution or winding up, (d) state

the price or prices at which, and the terms and conditions on which,

the shares of such series may be redeemed at the option of the

corporation; and such Directors' Resolution may, in a manner not

inconsistent with the provisions of this Article IV, (i) limit the

number of shares of such series which may be issued, (ii) provide for a

sinking fund for the purchase or redemption of shares of such series

and determine the terms and conditions governing the operation of any

such fund, (iii) impose conditions or restrictions upon the creation of

indebtedness or upon

 

 

 

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the issue of any additional stock (including additional shares of such

series or of any other series or of any other class) ranking on a

parity with or prior to the shares of such series as to dividends or

distribution of assets on liquidation, dissolution or winding up, (iv)

impose conditions or restrictions upon the payment of dividends upon,

or the making of other distributions to, or the redemption or

acquisition of, shares of such series, or shares of junior stock

theretofore issued, or any shares of any class of stock thereafter to

be issued, or any shares of Preferred Stock theretofore issued ranking

inferior to such series (as to dividends or distribution of assets on

liquidation, dissolution or winding up) to the extent that the terms of

such shares theretofore issued do not expressly prohibit the imposition

of such conditions or restrictions, or any shares of Preferred Stock

theretofore issued ranking prior to or on a parity with such series (as

to dividends or distribution of assets on liquidation, dissolution or

winding up) to the extent that the terms of such shares theretofore

issued expressly permit the imposition of such conditions or

restrictions, (v) grant rights of conversion or exchange of shares of

such series into or for shares of junior stock, and (vi) grant such

other special rights as shall not be inconsistent with the provisions

of this Article IV. The term "junior stock," as used in this Article

IV, shall mean shares of capital stock of the corporation ranking

junior to Preferred Stock as to dividends and distribution of assets on

liquidation, dissolution or winding up.

 

3. General Provisions. Subject to such further

conditions or restrictions as may be imposed in any Directors'

Resolution, so long as any shares of the Preferred Stock are

outstanding, in no event shall any dividends whatsoever, whether in

cash, stock or otherwise, be paid or declared, or any distribution be

made, on any junior stock, nor shall any shares of junior stock (other

than junior stock acquired in exchange for or out of the proceeds of

the issue of other junior stock or out of contributions to the capital

of the corporation) be purchased, redeemed, retired or otherwise

acquired for a valuable consideration by the corporation:

 

(1) unless all dividends on the Preferred Stock for

all past dividend periods shall have been paid or declared and

a sum sufficient for the payment thereof set apart, and the

full dividend thereon for the then current dividend period

shall have been paid or declared, and

 

 

 

-3-

 

 

 


 

 

(2) unless, as to each series of Preferred Stock for

which a sinking fund shall have been provided in the

Directors' Resolution providing for the issuance of such

series, the corporation shall have set aside the sum or sums

required to be set aside by such Directors' Resolution, to be

applied in the manner specified therein.

 

Subject to such conditions or restrictions as may be imposed

in any Directors' Resolution, the corporation at the option of the

Board of Directors may redeem in whole or in part the Preferred Stock

of such series which by its terms is redeemable, at the time or times

and on the terms and conditions fixed by the Directors' Resolution as

to such series in accordance with the terms applicable to such

Preferred Stock.

 

Any moneys set aside by the corporation and unclaimed at the

end of six years from the date fixed for redemption shall revert to the

general funds of the corporation.

 

So long as any shares of the Preferred Stock are outstanding,

the corporation shall not amend, alter or repeal any of the provisions

of this Article IV so as to affect adversely the rights, powers or

preferences of the Preferred Stock or of the holders thereof, nor shall

any consent or vote otherwise effective under said Article be effective

with respect to the rights, powers or preferences of such Preferred

Stock or be binding upon the holders of such Preferred Stock, without

the consent of the holders of at least two-thirds (2/3) of the number

of all outstanding shares of the Preferred Stock (and such further

consent of that proportion of the holders of the shares of any one or

more particular series, if any, as may be required by the Directors'

Resolution or Resolutions providing for the issuance of such one or

more particular series), given in person or by proxy, by vote at a

meeting called for that purpose.

 

So long as shares of a particular series of Preferred Stock

are outstanding, the corporation shall not amend, alter or repeal any

provision of the Directors' Resolution providing for the issuance of

such series so as to affect adversely the rights, powers or preferences

of the shares of such series or of the holders thereof, without the

consent of the holders of at lease two-thirds (2/3) of the number of

outstanding shares of said series, given in person or by proxy, by vote

at a meeting called for that purpose.

 

 

 

-4-

 

 

 

 


 

 

In the event of any liquidation, dissolution or winding up of

the corporation, then, before any distribution or payment shall be made

to the holder of any junior stock, the holders of the Preferred Stock

of each series shall be entitled to be paid, in the event of a

voluntary or involuntary liquidation, dissolution or winding up, such

preferential amounts as may be fixed for such series in the Directors'

Resolution providing for the issuance thereof. After such payment shall

have been made in full to the holders of the Preferred Stock, the

remaining assets and funds of the corporation shall be distributed

among the holders of junior stock according to their respective rights.

In the event that the assets of the corporation available for

distribution to holders of Preferred Stock shall not be sufficient to

make the payments herein required to be made in full, such assets shall

be distributed to the holders of the respective shares of Preferred

Stock in accordance with such priorities, if any, as between the

various series of Preferred Stock as may be specified in any Directors'

Resolution.

 

Preferred Stock redeemed or otherwise retired by the

corporation assumes the status of authorized but unissued Preferred

Stock and may thereafter, subject to the provisions of any Directors'

Resolution providing for the issue of any particular series of

Preferred Stock, be reissued in the same manner as authorized but

unissued Preferred Stock.

 

B. Common Stock.

 

1. Dividends. Subject to the prior rights and

preferences of the Preferred Stock, and subject to the provisions and

on the conditions set forth in the foregoing paragraph A of this

Article IV, or in any Directors' Resolution providing for the issue of

a series of Preferred Stock, such dividends (payable in cash, stock or

otherwise) as may be determined by the Board of Directors may be

declared and paid on the Common Stock from time to time out of any

funds legally available therefor.

 

2. Voting. Except as otherwise required by law, each

share of Common Stock shall have one vote, in person or by proxy, for

each share thereof held, and all shares of the corporation, including

shares of Preferred Stock shall be voted as a single class except where

specifically required by law to vote separately.

 

 

 

-5-

 

 

 


 

 

3. Distribution. After payment shall have been made

in full to the holders of the Preferred Stock in the event of any

liquidation, dissolution or winding up of the affairs of the

corporation, the remaining assets and funds of the corporation shall be

distributed among the holders of the Common Stock according to their

respective shares.

 

C. Pre-emptive Rights. No holder of any stock of the

corporation shall be entitled as a matter of right to purchase or

subscribe for any part of any stock of the corporation, authorized by

this Article IV, or of any additional stock of any class to be issued

by reason of any increase of the authorized stock of the corporation,

or of any bonds, certificates of indebtedness, debentures or other

securities convertible into stock of the corporation, but any stock

authorized by this Article IV or any such additional authorized issue

of new stock or of securities convertible into stock may be issued and

disposed of by the Board of Directors to such persons, firms,

corporations or associations for such consideration and upon such terms

and in such manner as the Board of Directors may in their discretion

determine without offering any thereof on the same terms or on any

terms to the stockholders then of record or to any class of

stockholders.

 

D. Miscellaneous. The corporation shall be entitled to treat

the person in whose name any share, right or option is registered as

the owner thereof for all purposes and shall not he bound to recognize

any equitable or other claim to or interest in such share, right or

option on the part of any other person, whether or not the corporation

shall have notice thereof, save as may be expressly provided by the

laws of the State of Delaware.

 

A Director shall be fully protected in relying in good faith

upon the books of account of the corporation or statements prepared by

any of its officials as to the value and amount of the assets,

liabilities and/or net profits of the corporation, or any other facts

pertinent to the existence and amount of surplus or other funds from

which dividends might properly be declared and paid.

 

Without action by the stockholders, the shares of stock may be

issued by the corporation from time to time for such consideration (not

less than the par value thereof if such stock has a par value) as may

be fixed from time to time by the Board of Directors, and any and

 

 

 

-6-

 

 

 


 

 

all such shares so issued, the full consideration for which has been paid

or delivered, shall be deemed fully paid stock and not liable to any

further call or assessment thereon, and the holder of such shares shall not

be liable for any further call or assessment thereon, or for any other

payment thereof."

 

IN WITNESS WHEREOF, the undersigned have executed this document as of

August 5, 1993.

 

TRINITY INDUSTRIES, INC.

 

 

 

By: /s/ F. DEAN PHELPS, JR.

------------------------------------

F. Dean Phelps, Jr.

Vice President

 

 

ATTEST:

 

 

/s/ J. J. FRENCH, JR.

---------------------------------------

J. J. French, Jr., Secretary

 

 

 

 

 

-7-

 

 

 


 

 

CERTIFICATE OF INCORPORATION

 

OF

 

TRINITY INDUSTRIES, INC.

 

 

ARTICLE I.

 

Name

 

The name of the corporation is Trinity Industries, Inc.

 

ARTICLE II.

 

Registered Office and Agent

 

The address of its registered office in the State of Delaware is

Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County

of New Castle. The name of its registered agent at such address is The

Corporation Trust Company.

 

ARTICLE III.

 

Purpose

 

The purposes for which the corporation is organized are as follows:

 

1. To design and manufacture products of every description fabricated

in the various grades of ferrous and non-ferrous metals and their alloys, and to

buy, sell and otherwise deal therein.

 

2. To construct, build, manufacture, maintain, overhaul, repair and

erect structures of every kind and description manufactured of various grades of

ferrous and non-ferrous metals and their alloys, and to contract for the

construction and erection of such structures.

 

 

 

 

3. To manufacture, buy, sell, procure, distribute, market, exchange,

import, export and in any other manner deal in or deal with (as principal, agent

or otherwise) steel pressure vessels, refinery equipment, oil field supplies,

poles and other products fabricated of various grades of ferrous and non-ferrous

metals and their alloys, as well as materials, parts, instruments, devices and

any other equipment, tools, parts, components and supplies.

 

4. To acquire by purchase, lease or otherwise erect, maintain, operate,

lease, mortgage and otherwise deal in and deal with buildings, warehouses,

storehouses, manufacturing plants, factories, machine shops and any other

structures and equipment necessary, useful or desirable for the conduct of the

business of the corporation.

 

5. To manufacture, purchase or otherwise acquire and to hold, own,

mortgage or otherwise lien, pledge, lease, sell, assign, exchange, transfer or

in any manner dispose of, and to invest, deal and trade in and with goods, wares

and merchandise and personal property of any and every class or description

within or without the State of Delaware.

 

6. To acquire the good will, rights and property and to undertake the

whole or any part of the assets and liabilities of any person, firm, association

or corporation; to pay for the same in cash, the stock of the corporation, bonds

or otherwise; to hold or in any manner to dispose of the whole or any part of

the property so purchased; to conduct in any lawful manner the whole

 

 

-2-

 

 


 

 

 

or any part of any business so acquired, and to exercise all the powers

necessary or convenient in and about the conduct and management of such

business.

 

7. To purchase or otherwise acquire, apply for, register, hold, use,

sell or in any manner dispose of, and to grant licenses or other rights in, and

in any manner deal with, patents, inventions, improvements, processes, formulas,

trademarks, trade names, rights and licenses secured under letters patent,

copyrights or otherwise.

 

8. To enter into, make and perform contracts of every kind for any

lawful purpose, with any person, firm, association or corporation, town, city,

county, body politic, state, territory, government or colony or dependency

thereof.

 

9. To render general and special services and advice, and to do all

things as may be necessary or convenient in carrying out any or all of the

foregoing purposes.

 

10. To engage in any lawful act or activity for which corporations may

be organized under the General Corporation Law of Delaware.

 

11. The objects and purposes specified herein shall be regarded as

independent objects and purposes and, except where otherwise expressed, shall in

no way be limited nor restricted by reference to or inference from the terms of

any other clause or paragraph of this Certificate of Incorporation.

 

12. The foregoing shall be construed both as objects and powers, and

the enumeration thereof shall not be held to limit or

 

 

 

-3-

 

 

 


 

 

restrict in any manner the general powers conferred on the corporation by the

laws of the State of Delaware.

 

ARTICLE IV.

 

Authorized Capital Stock

 

The total number of shares of stock which the corporation shall have

authority to issue is Forty-One Million Five Hundred Thousand (41,500,000)

shares, of which One Million Five Hundred Thousand (1,500,000) shares shall be

voting Preferred Stock without par value and Forty Million (40,000,000) shares

shall be Common Stock with a par value of One Dollar ($1.00) per share.

 

The following is a statement of the designations and the powers,

preferences and rights, and the qualifications, limitations or restrictions

thereof in respect of the shares of Preferred Stock and Common Stock of the

corporation and of the authority expressly granted hereby to the Board of

Directors of the corporation to fix by resolution or resolutions any of such

destinations and powers, preferences and rights, and qualifications, limitations

and restrictions thereof that may be desired but which shall not be fixed by

this Certificate of Incorporation.

 

A. Preferred Stock. The following is a statement of the designations

and the powers, preferences and rights, and the qualifications, limitations or

restrictions thereof in respect of the shares of Preferred Stock.

 

 

 

-4-

 

 

 


 

 

1. Voting Rights of Preferred Stock. In addition to such

voting rights as may from time to time be required by the laws of Delaware, the

holders of Preferred Stock shall vote at such times as holders of Common Stock

may vote and in a like manner, one vote for each share of stock held, and all

shares of the corporation shall be voted as a single class, except where

specifically required by law to vote separately.

 

2. Provisions Regarding Issuance. The Preferred Stock may be

issued from time to time in one or more series and in such amounts and for such

consideration as may be determined by the Board of Directors. The designations,

powers, preferences, and relative participating, optional, conversion and other

special rights, and the qualifications, limitations or restrictions thereof, of

the Preferred Stock, and as between the series of the Preferred Stock, shall be

as are fixed herein and, to the extent not fixed herein, shall be such, not

inconsistent with the provisions of this Article IV, as may be fixed by the

Board of Directors, authority so to do being hereby expressly granted, and

stated in a resolution or resolutions adopted by the Board of Directors

providing for the issue of such series (herein called "Directors' Resolution").

The Directors' Resolution as to any series shall (a) designate the series, (b)

fix the dividend rate of such series, the payment dates for dividends on shares

of such series and, if the Board of Directors deems it advisable to cause

dividends to be cumulative, the date or dates, or the method of determining the

date or dates, from which dividends on shares of such series shall be

cumulative, (c) fix the amount or amounts

 

 

 

-5-

 

 

 


 

 

payable on shares of such series upon voluntary liquidation, dissolution or

winding up, (d) state the price or prices at which, and the terms and conditions

on which, the shares of such series may be redeemed at the option of the

corporation; and such Directors' Resolution may, in a manner not inconsistent

with the provisions of this Article IV, (i) limit the number of shares of such

series which may be issued, (ii) provide for a sinking fund for the purchase or

redemption of shares of such series and determine the terms and conditions

governing the operation of any such fund, (iii) impose conditions or

restrictions upon the creation of indebtedness or upon the issue of any

additional stock (including additional shares of such series or of any other

series or of any other class) ranking on a parity with or prior to the shares of

such series as to dividends or distribution of assets on liquidation,

dissolution or winding up, (iv) impose conditions or restrictions upon the

payment of dividends upon, or the making of other distributions to, or the

redemption or acquisition of, shares of such series, or shares of junior stock

theretofore issued, or any shares of any class of stock thereafter to be issued,

or any shares of Preferred Stock theretofore issued ranking inferior to such

series (as to dividends or distribution of assets on liquidation, dissolution or

winding up) to the extent that the terms of such shares theretofore issued do

not expressly prohibit the imposition of such conditions or restrictions, or any

shares of Preferred Stock theretofore issued ranking prior to or on a parity

with such series (as to dividends or distribution of

 

 

 

-6-

 

 

 


 

 

assets on liquidation, dissolution or winding up) to the extent that the terms

of such shares theretofore issued expressly permit the imposition of such

conditions or restrictions, (v) grant rights of conversion or exchange of shares

of such series into or for shares of junior stock, and (vi) grant such other

special rights as shall not be inconsistent with the provisions of this Article

IV. The term "junior stock," as used in this Article IV, shall mean shares of

capital stock of the corporation ranking junior to Preferred Stock as to

dividends and distribution of assets on liquidation, dissolution or winding up.

 

3. General Provisions. Subject to such further conditions or

restrictions as may be imposed in any Directors' Resolution, so long as any

shares of the Preferred Stock are outstanding, in no event shall any dividends

whatsoever, whether in cash, stock or otherwise, be paid or declared, or any

distribution be made, on any junior stock, nor shall any shares of junior stock

(other than junior stock acquired in exchange for or out of the proceeds of the

issue of other junior stock or out of contributions to the capital of the

corporation) be purchased, redeemed, retired or otherwise acquired for a

valuable consideration by the corporation:

 

(1) unless all dividends on the Preferred Stock for

all past dividend periods shall have been paid or declared and

a sum sufficient for the payment thereof set apart, and the

full dividend thereon for the then current dividend period

shall have been paid or declared, and

 

 

 

-7-

 

 

 


 

 

(2) unless, as to each series of Preferred Stock for

which a sinking fund shall have been provided in the

Directors' Resolution providing for the issuance of such

series, the corporation shall have set aside the sum or sums

required to be set aside by such Directors' Resolution, to be

applied in the manner specified therein.

 

Subject to such conditions or restrictions as may be imposed

in any Directors' Resolution, the corporation at the option of the Board of

Directors may redeem in whole or in part the Preferred Stock of such series

which by its terms is redeemable, at the time or times and on the terms and

conditions fixed by the Directors' Resolution as to such series in accordance

with the terms applicable to such Preferred Stock.

 

Any moneys set aside by the corporation and unclaimed at the

end of six years from the date fixed for redemption shall revert to the general

funds of the corporation.

 

So long as any shares of the Preferred Stock are outstanding,

the corporation shall not amend, alter or repeal any of the provisions of this

Article IV so as to affect adversely the rights, powers or preferences of the

Preferred Stock or of the holders thereof, nor shall any consent or vote

otherwise effective under said Article be effective with respect to the rights,

powers or preferences of such Preferred Stock or be binding upon the holders of

such Preferred Stock, without the consent of the holders of at least two-thirds

(2/3) of the number of all outstanding shares of the Preferred Stock (and such

further consent of that proportion of the holders of the shares of any one

 

 

 

-8-

 

 

 


 

 

or more particular series, if any, as may be required by the Directors'

Resolution or Resolutions providing for the issuance of such one or more

particular series), given in person or by proxy, by vote at a meeting called for

that purpose.

 

So long as shares of a particular series of Preferred Stock

are outstanding, the corporation shall not amend, alter or repeal any provision

of the Directors' Resolution providing for the issuance of such series so as to

affect adversely the rights, powers or preferences of the shares of such series

or of the holders thereof, without the consent of the holders of at least

two-thirds (2/3) of the number of outstanding shares of said series, given in

person or by proxy, by vote at a meeting called for that purpose.

 

In the event of any liquidation, dissolution or winding up of

the corporation, then, before any distribution or payment shall be made to the

holder of any junior stock, the holders of the Preferred Stock of each series

shall be entitled to be paid, in the event of a voluntary or involuntary

liquidation, dissolution or winding up, such preferential amounts as may be

fixed for such series in the Directors' Resolution providing for the issuance

thereof. After such payment shall have been made in full to the holders of the

Preferred Stock, the remaining assets and funds of the corporation shall be

distributed among the holders of junior stock according to their respective

rights. In the event that the assets of the corporation available for

distribution to holders of Preferred Stock shall not be sufficient

 

 

 

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to make the payments herein required to be made in full, such assets shall be

distributed to the holders of the respective shares of Preferred Stock in

accordance with such priorities, if any, as between the various series of

Preferred Stock as may be specified in any Directors' Resolution.

 

Preferred Stock redeemed or otherwise retired by the

corporation assumes the status of authorized but unissued Preferred Stock and

may thereafter, subject to the provisions of any Directors' Resolution providing

for the issue of any particular series of Preferred Stock, be reissued in the

same manner as authorized but unissued Preferred Stock.

 

B. Common Stock.

 

1. Dividends. Subject to the prior rights and preferences of

the Preferred Stock, and subject to the provisions and on the conditions set

forth in the foregoing paragraph A of this Article IV, or in any Directors'

Resolution providing for the issue of a series of Preferred Stock, such

dividends (payable in cash, stock or otherwise) as may be determined by the

Board of Directors may be declared and paid on the Common Stock from time to

time out of any funds legally available therefor.

 

2. Voting. Except as otherwise required by law, each share of

Common Stock shall have one vote, in person or by proxy, for each share thereof

held, and all shares of the corporation, including shares of Preferred Stock

shall be voted as a single class except where specifically required by law to

vote separately.

 

 

 

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3. Distribution. After payment shall have been made in full to

the holders of the Preferred Stock in the event of any liquidation, dissolution

or winding up of the affairs of the corporation, the remaining assets and funds

of the corporation shall be distributed among the holders of the Common Stock

according to their respective shares.

 

C. Pre-emptive Rights. No holder of any stock of the corporation shall

be entitled as a matter of right to purchase or subscribe for any part of any

stock of the corporation, authorized by this Article IV, or of any additional

stock of any class to be issued by reason of any increase of the authorized

stock of the corporation, or of any bonds, certificates of indebtedness,

debentures or other securities convertible into stock of the corporation, but

any stock authorized by this Article IV or any such additional authorized issue

of new stock or of securities convertible into stock may be issued and disposed

of by the Board of Directors to such persons, firms, corporations or

associations for such consideration and upon such terms and in such manner as

the Board of Directors may in their discretion determine without offering any

thereof on the same terms or on any terms to the stockholders then of record or

to any class of stockholders.

 

D. Miscellaneous. The corporation shall be entitled to treat the person

in whose name any share, right or option is registered as the owner thereof for

all purposes and shall not be bound to recognize any equitable or other claim to

or interest in such share, right or option on the part of any other person,

 

 

 

-11-

 

 

 


 

 

whether or not the corporation shall have notice thereof, save as may be

expressly provided by the laws of the State of Delaware.

 

A Director shall be fully protected in relying in good faith upon the

books of account of the corporation or statements prepared by any of its

officials as to the value and amount of the assets, liabilities and/or net

profits of the corporation, or any other facts pertinent to the existence and

amount of surplus or other funds from which dividends might properly be declared

and paid.

 

Without action by the stockholders, the shares of stock may be issued

by the corporation from time to time for such consideration (not less than the

par value thereof if such stock has a par value) as may be fixed from time to

time by the Board of Directors, and any and all such shares so issued, the full

consideration for which has been paid or delivered, shall be deemed fully paid

stock and not liable to any further call or assessment thereon, and the holder

of such shares shall not be liable for any further call or assessment thereon,

or for any other payment thereof.

 

ARTICLE V.

 

Sole Incorporator

 

The name and mailing address of the sole incorporator is:

 

J. J. French, Jr.

3600 RepublicBank Dallas Tower

Dallas, Texas 75201-3989

 

 

 

-12-

 

 

 


 

 

ARTICLE VI.

 

Directors

 

The number of Directors constituting the initial Board of Directors is

seven (7); however, hereafter the Bylaws of the corporation shall fix the number

at not less than five (5), nor more than twelve (12). The name and mailing

address of each initial Director who is to serve as a Director until the first

annual meeting of the stockholders or until a successor is elected and qualified

are as follows:

 

 

Name Address

---- -------

 

 

W. Ray Wallace P.O. Box 10587

Dallas, Texas 75207

 

Alfred J. Gamble P.O. Box 310

Montgomery, Alabama 36195-2201

 

Dean P. Guerin 2001 Bryan Tower, 23rd floor

Dallas, Texas 75201

 

Jess T. Hay 2001 Bryan Tower, Suite 3600

Dallas, Texas 75201

 

Edmund M. Hoffman 1999 Bryan Street, Suite 3300

Dallas, Texas 75201

 

Ray J. Pulley P.O. Box 576

Brownsboro, Texas 75756

 

Thomas A. Rose, Jr. 403 South Akard

Dallas, Texas 75202

 

ARTICLE VII.

 

Duration

 

The corporation is to have perpetual existence.

 

 

 

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ARTICLE VIII.

 

Powers of the Board of Directors

 

In furtherance and not in limitation of the powers conferred by the

laws of the State of Delaware, the Board of Directors of the corporation is

expressly authorized:

 

1. To make, alter, amend and repeal the Bylaws;

 

2. To set apart out of any of the funds of the corporation available

for dividends a reserve or reserves for any proper purpose and to alter or

abolish any such reserve;

 

3. To authorize and cause to be executed mortgages and liens upon the

property and franchises of the corporation; and

 

4. To designate, by resolution passed by a majority of the whole Board,

three or more directors to constitute an Executive Committee, which committee,

unless its authority shall be otherwise expressly limited by such resolution,

shall have and may exercise all of the authority of the Board of Directors in

the business and affairs of the corporation except where action of the Board of

Directors is specified by statute or other applicable law; provided, the

designation of such committee and the delegation thereto of authority shall not

operate to relieve the Board of Directors, or any member thereof, of any

responsibility imposed upon it or him by law.

 

To the extent that any of the foregoing powers conflict with any

applicable statute of the State of Delaware now or hereafter in effect, such

statute, to the extent of such conflict, shall be controlling.

 

 

 

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ARTICLE IX.

 

Amendments

 

The corporation reserves the right to amend, alter, change or repeal

any provision contained in this Certificate of Incorporation, in the manner now

or hereafter prescribed by law, and all rights conferred upon officers,

directors, and stockholders herein are granted subject to this reservation.

 

ARTICLE X.

 

Compromise or Arrangement with Creditors

 

Whenever a compromise or arrangement is proposed between the

corporation and its creditors or any class of them and/or between the

corporation and its stockholders or any class of them, any court of equitable

jurisdiction within the State of Delaware may, on the application in a summary

way of the corporation or of any creditor or stockholder thereof or on the

application of any receiver or receivers appointed for the corporation under the

provisions of section 291 of Title 8 of the Delaware Code or on the application

of trustees in dissolution or of any receiver or receivers appointed for the

corporation under the provisions of section 279 of Title 8 of the Delaware Code

order a meeting of the creditors or class of creditors, and/or of the

stockholders or class of stockholders of the corporation, as the case may be, to

be summoned in such manner as the said court directs. If a majority in number

representing three-fourths in value of the creditors or class of creditors,

and/or of the stockholders or

 

 

 

-15-

 

 

 


 

 

class of stockholders of the corporation, as the case may be, agree to any

compromise or arrangement and to any reorganization of this corporation as

consequence of such compromise or arrangement, the said compromise or

arrangement and the said reorganization shall, if sanctioned by the court to

which the said application has been made, be binding on all the creditors or

class of creditors, and/or on all the stockholders or class of stockholders, of

the corporation, as the case may be, and also on the corporation.

 

THE UNDERSIGNED, being the sole incorporator hereinbefore named, for

the purpose of forming a corporation pursuant to the General Corporation Law of

the State of Delaware, does make this Certificate, hereby declaring and

certifying that this is my act and deed and the facts herein stated are true,

and accordingly I have hereunto set my hand this 1st day of August, 1986.

 

 

/s/ J. J. FRENCH, JR.

--------------------------------

J. J. French, Jr.

 

 

 

 

 

-16-

 

 

 


 

 

THE STATE OF TEXAS )

)

COUNTY OF DALLAS )

 

BEFORE ME, the undersigned authority, on this day personally appeared

J. J. French, Jr., known to me to be the person whose name is subscribed to the

foregoing instrument, and being by me first duly sworn, declared to me that the

statements therein contained are true and correct and that he executed the same

as his act and deed for purposes and consideration therein expressed.

 

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 1st day of August,

1986.

 

 

/s/ KELLY SMITH

--------------------------------

Notary Public in and for

The State of Texas

 

[SEAL]

 

My Commission Expires:

 

1-24-89 KELLY SMITH

--------------------------- --------------------------------

Printed Name of Notary

 

 

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PAGE 1

 

 

 

STATE OF DELAWARE

 

OFFICE OF THE SECRETARY OF STATE

 

--------------------------------

 

 

 

I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY

CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF

INCORPORATION OF "TRINITY INDUSTRIES, INC.", FILED IN THIS OFFICE ON THE FOURTH

DAY OF AUGUST, A.D. 1986, AT 3 O'CLOCK P.M.

 

 

 

 

 

 

 

 

 

 

 

/S/ EDWARD J. FREEL

[SEAL] -----------------------------------

Edward J. Freel, Secretary of State

 

 

2098029 8100 AUTHENTICATION: 0779753

 

001549195 DATE: 11-08-00

 

 

[As Filed: 02-21-2013]