SEPARATION AND DISTRIBUTION AGREEMENT by and between TRINITY INDUSTRIES, INC. and ARCOSA, INC. Dated as of [•], 2018

Exhibit 2.1

SEPARATION AND DISTRIBUTION AGREEMENT
   
by and between
   
TRINITY INDUSTRIES, INC.
   
and
   
ARCOSA, INC.
   
Dated as of [•], 2018
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   

TABLE OF CONTENTS

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SCHEDULES

EXHIBITS

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SEPARATION AND DISTRIBUTION AGREEMENT

THIS SEPARATION AND DISTRIBUTION AGREEMENT (this “Agreement”), is entered into as of [•], 2018, by and between Trinity Industries, Inc., a Delaware corporation (“Trinity”), and Arcosa, Inc., a Delaware corporation and a wholly owned subsidiary of Trinity (“Arcosa”) (each a “Party” and together, the “Parties”).

RECITALS

WHEREAS, Trinity, acting through its direct and indirect Subsidiaries, currently conducts a number of businesses, including the Arcosa Business;

WHEREAS, the Board of Directors of Trinity (the “Trinity Board”) has determined that it is appropriate, desirable and in the best interests of Trinity and its stockholders to separate Trinity into two separate, independent, publicly-traded companies: (i) one comprising the Arcosa Business, which shall be owned and conducted directly or indirectly by Arcosa, all of the common stock of which is intended to be distributed to Trinity stockholders, and (ii) one comprising the Trinity Business, which shall continue to be owned and conducted, directly or indirectly, by Trinity;

WHEREAS, in furtherance of the foregoing, the Trinity Board has determined that it is appropriate, desirable and in the best interests of Trinity and its stockholders: (i) for Trinity and its Subsidiaries to enter into a series of transactions whereby Trinity and its Subsidiaries will be reorganized such that (A) Trinity and/or one or more other members of the Trinity Group will own all of the Trinity Assets and assume (or retain) all of the Trinity Liabilities, and (B) Arcosa and/or one or more other members of the Arcosa Group will own all of the Arcosa Assets and assume (or retain) all of the Arcosa Liabilities (the transactions referred to in clauses (A) and (B) being referred to herein as the “Separation”); and (ii) thereafter, on the Distribution Date, for Trinity to distribute to the holders of issued and outstanding shares of common stock of Trinity (the “Trinity Common Stock”) as of the Record Date on a pro rata basis all of the issued and outstanding shares of common stock of Arcosa (the “Arcosa Common Stock”) (such transactions described in this clause (ii), as may be amended or modified from time to time in accordance with the terms and subject to the conditions of this Agreement, the “Distribution”);

WHEREAS, Arcosa has been incorporated for this purpose and has not engaged in activities except in preparation for its corporate reorganization (including activities with respect to the Arcosa Financing Arrangements) and the distribution of its stock;

WHEREAS, Trinity and Arcosa have determined that it is necessary and desirable, at or prior to the Effective Time, to allocate, transfer or assign the Arcosa Assets and Arcosa Liabilities to the Arcosa Group, and to allocate, transfer or assign the Trinity Assets and Trinity Liabilities to the Trinity Group;

WHEREAS, the Parties intend that the Distribution, together with certain related transactions, generally will qualify as tax-free for U.S. federal income tax purposes under Sections 368(a)(1)(D) and 355 of the United States Internal Revenue Code of 1986, as amended (the “Code”), and that this Agreement is intended to be, and is hereby adopted as, a plan of reorganization under Section 368 of the Code to the extent relevant for these transactions; and

WHEREAS, it is appropriate and desirable to set forth the principal corporate transactions required to effect the Separation and to set forth certain other agreements that will, following the Distribution, govern certain matters relating to the Separation and the relationship of Arcosa and Trinity and their respective Affiliates.

NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1   Definitions. As used in this Agreement, the following terms shall have the meanings set forth below:

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specified Person; provided, however, that for purposes of this Agreement, no member of either Group shall be deemed to be an Affiliate of any member of the other Group, including by reason of having common stockholders or one or more directors in common. As used herein, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or other interests, by Contract or otherwise.

Notwithstanding the foregoing, the Arcosa Assets shall in no event include:

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the Trinity Group, including Assets leased, owned or held by Trinity, Arcosa, or any of their respective Affiliates immediately prior to the Effective Time that are used primarily or held for use primarily in the Trinity Business.

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Notwithstanding the foregoing, the Arcosa Liabilities shall in any event not include any Liabilities that are expressly contemplated by this Agreement or any Ancillary Agreement (or the schedules hereto or thereto) as Liabilities to be retained or assumed by any member of the Trinity Group, including any Liabilities set forth on Schedule 1.1(120)(ix), or for which any member of the Trinity Group is liable pursuant to this Agreement or such Ancillary Agreement.

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leases, (iii) obligations secured by any mortgage, pledge (including a negative pledge), Security Interest, encumbrance, lien or charge of any kind existing on any Asset owned or held by any Person, whether or not such Person has assumed or become liable for the obligations secured thereby, (iv) any obligation under any interest rate swap agreement, (v) accounts payable, (vi) reimbursement obligations with respect to surety and performance bonds or letters of credit, and (vii) obligations under direct or indirect guarantees of (including obligations, contingent or otherwise, to assure a creditor against loss in respect of) indebtedness or obligations of the kinds referred to in clauses (i), (ii), (iii), (iv), (v) and (vi) above.

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origin, together with the goodwill symbolized by any of the foregoing (collectively, “Trademarks”); (ii) patents and patent applications, and any and all divisionals, continuations, continuations-in-part, reissues, reexaminations, and extensions thereof, any counterparts claiming priority therefrom, utility models, certificates of invention, certificates of registration, design registrations or patents and similar rights; (iii) rights in inventions, invention disclosures, discoveries and improvements, whether or not patentable; (iv) all copyrights and copyrightable subject matter; (v) trade secrets (including, those trade secrets defined in the Uniform Trade Secrets Act and under corresponding foreign statutory Law and common law), proprietary rights in Information, and rights to limit the use or disclosure of any of the foregoing by any Person; (vi) rights in computer programs (whether in source code, object code, or other form), algorithms, databases, application programming interfaces, compilations and data, technology supporting the foregoing, and all documentation and specifications related to any of the foregoing (collectively, “Software”); (vii) moral rights and rights of attribution and integrity; (viii) all rights in the foregoing and in other similar intangible assets; (ix) all applications and registrations for the foregoing; and (x) all rights and remedies against past, present, and future infringement, misappropriation, or other violation thereof.

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Notwithstanding the foregoing, the Trinity Liabilities shall in no event include any Liabilities (including Liabilities under Arcosa Contracts and Arcosa Liabilities) that are expressly contemplated by this Agreement or any Ancillary Agreement (or the schedules hereto or thereto) as Liabilities to be retained or assumed by any member of the Arcosa Group, including any Liabilities set forth on Schedule 1.1(22)(viii), or for which any member of the Arcosa Group is liable pursuant to this Agreement or such Ancillary Agreement.

Section 1.2   References; Interpretation. References in this Agreement to any gender include references to all genders, and references to the singular include references to the plural and vice versa. Any action to be taken by the board of directors of a Party may be taken by a committee of the board of directors of such Party if properly delegated by the board of directors of a Party to such committee. Unless the context otherwise requires:

Section 1.3   Effective Time. This Agreement shall be effective as of the Effective Time.

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Section 1.4   Other Matters. As described in more detail in, but subject to the terms and conditions of, Section 10.1 and Section 10.2, the Tax Matters Agreement, the Employee Matters Agreement and the Transition Services Agreement will govern Trinity’s and Arcosa’s respective rights, responsibilities and obligations after the Distribution with respect to the matters set forth in such Ancillary Agreement, except as expressly set forth in this Agreement or any other Ancillary Agreement.

ARTICLE II

THE SEPARATION

Section 2.1   General. Subject to the terms and conditions of this Agreement, including Section 4.3 and Section 4.4, the Parties shall use, and shall cause their respective Affiliates to use, their respective commercially reasonable efforts to consummate the transactions contemplated hereby, a portion of which have already been implemented prior to the date hereof. It is the intent of the Parties that prior to consummation of the Distribution, Trinity, Arcosa and their respective Subsidiaries shall be reorganized, to the extent necessary, such that immediately following the consummation of such reorganization, subject to Section 2.6 and the provisions of any Ancillary Agreement, (i) all of Trinity’s and its Subsidiaries’ right, title and interest in and to the Arcosa Assets will be owned or held by a member or members of the Arcosa Group, the Arcosa Business will be conducted by the members of the Arcosa Group and the Arcosa Liabilities will be assumed directly or indirectly by (or retained by) a member of the Arcosa Group; and (ii) all of Trinity’s and its Subsidiaries’ right, title and interest in and to the Trinity Assets will be owned or held by a member or members of the Trinity Group, the Trinity Business will be conducted by the members of the Trinity Group and the Trinity Liabilities will be assumed directly or indirectly by (or retained by) a member of the Trinity Group. Further, it is the intent of the Parties that the direct assumption by Arcosa of Arcosa Liabilities is made in connection with the Separation, including the transfer of the Arcosa Assets to Arcosa.

Section 2.2   The Separation. At or prior to the Effective Time, to the extent not already completed and subject to the terms of the Ancillary Agreements:

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or the Arcosa Group, as the case may be, or any of their past or present respective directors, officers, employees, or agents, (D) which entity is named in any Proceeding associated with any Liability and (E) whether the facts on which they are based occurred prior to, on or after the date hereof;

Section 2.3   Settlement of Intergroup Indebtedness. Each of Trinity or any member of the Trinity Group, on the one hand, and Arcosa or any member of the Arcosa Group, on the other hand, will, repay, defease, capitalize, cancel, forgive, discharge, extinguish, assign, discontinue or otherwise cause to be satisfied, with respect to the other Party, as the case may be, all Intergroup Indebtedness owed or owed by the other Party on or prior to the Distribution, except as otherwise agreed to in good faith by the Parties in writing on or after the date hereof, it being understood and agreed by the Parties that the foregoing shall be subject to Section 2.11.

Section 2.4   Bank Accounts; Cash Balances.

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Group as of the close of business on the date prior to the Distribution Date, of $[•]. All cash held by any member of the Arcosa Group as of the Distribution shall be an Arcosa Asset and all cash held by any member of the Trinity Group as of the Distribution shall be a Trinity Asset.

Section 2.5   Limitation of Liability; Termination of Agreements.

Section 2.6   Delayed Transfer of Assets or Liabilities.

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by their terms or operation of Law cannot be Transferred or assumed; provided, however, that the Parties shall, and shall cause the respective members of their Groups to, cooperate and use commercially reasonable efforts to seek to obtain any necessary Consents or Governmental Approvals for the Transfer of all Assets and assumption of all Liabilities contemplated to be Transferred or assumed pursuant to this Article II.

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Asset, as the case may be, or (ii) grant such mutually agreeable rights with respect to such Asset to permit such continued use, subject to, and consistent with this Agreement, including with respect to assumption of associated Liabilities. In connection with such Transfer, the receiving party shall assume all Liabilities related to such Asset.

Section 2.7   Transfer Documents. In connection with, and in furtherance of, the Transfers of Assets and the acceptance and assumptions of Liabilities contemplated by this Agreement, the Parties shall execute or cause to be executed, at or prior to the Effective Time, or after the Effective Time with respect to Section 2.6, by the appropriate entities, the Transfer Documents necessary to evidence the valid and effective assumption by the applicable Party (or any member of its Group) of its assumed Liabilities, and the valid Transfer to the applicable Party (or any member of its Group) of all rights, titles and interests in and to its accepted Assets, including the transfer of real property with quit claim deeds, as may be appropriate.

Section 2.8   Shared Contracts.

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(ii) Trinity or a member of the Trinity Group. Trinity or a member of the Trinity Group will use commercially reasonable efforts to assign the rights and obligations, but only to the extent relating to the Arcosa Business, under the Shared Contracts which are identified on Schedule 2.8(c)(ii) to Arcosa or a member of the Arcosa Group. The Parties agree to cooperate and provide reasonable assistance prior to the Effective Time and for a period of six (6) months following the Effective Time (with no obligation on the part of either Party to pay any costs or fees with respect to such assistance) in effecting the separation or assignment of such Shared Contracts as described above.

Section 2.9   Further Assurances.

Section 2.10   Novation of Liabilities; Consents.

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be bound by such Contract, license or other obligation that does not constitute a Liability of such other Party and, unless not permitted by Law or the terms thereof, as agent or subcontractor for such Party, the Party or member of such Party’s Group who assumed or retained such Liability as set forth in this Agreement (the “Liable Party”) shall, or shall cause a member of its Group to, pay, perform and discharge fully all the obligations or other Liabilities of such other Party or member of such other Party’s Group thereunder from and after the Effective Time; provided, however, that the other Party shall not be obligated to extend, renew or otherwise cause such Contract, license or other obligation to remain in effect beyond the term in effect as of the Effective Time. The Liable Party shall indemnify and defend each other Party and the members of such other Party’s Group against any and all Liabilities arising in connection therewith; provided, however, that the Liable Party shall have no obligation to indemnify the other Party or any member of such other Party’s Group with respect to any matter to the extent that such other Party has engaged in any knowing violation of Law or fraud in connection therewith. The other Party shall, without further consideration, promptly pay and remit, or cause to be promptly paid or remitted, to the Liable Party or to another member of the Liable Party’s Group, all money, rights and other consideration received by it or any member of its Group in respect of such performance by the Liable Party (unless any such consideration is an Asset of such other Party pursuant to this Agreement). If and when any such Consent, release, substitution or amendment shall be obtained or such agreement, lease, license or other rights or obligations shall otherwise become assignable or able to be novated, the other Party shall promptly assign, or cause to be assigned, all rights, obligations and other Liabilities thereunder of any member of such other Party’s Group to the Liable Party or to another member of the Liable Party’s Group without payment of any further consideration and the Liable Party, or another member of such Liable Party’s Group, without the payment of any further consideration, shall assume such rights and obligations and other Liabilities.

Section 2.11   Guarantees and Letters of Credit.

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Section 2.12   DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.

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or is unavailable for any reason under the Laws of any jurisdiction outside the United States or if, under the Laws of a jurisdiction outside the United States, both Trinity or any member of the Trinity Group, on the one hand, and Arcosa or any member of the Arcosa Group, on the other hand, are jointly or severally liable for any Trinity Liability or any Arcosa Liability, respectively, then, the Parties intend that, notwithstanding any provision to the contrary under the Laws of such foreign jurisdictions, the provisions of this Agreement and the Ancillary Agreements (including the disclaimer of all representations and warranties, allocation of Liabilities among the Parties and their respective Subsidiaries, releases, indemnification and contribution of Liabilities) shall prevail for any and all purposes among the Parties and their respective Subsidiaries.

ARTICLE III

CERTAIN ACTIONS PRIOR TO THE DISTRIBUTION

Section 3.1   Separation. The Parties agree to take, or cause the members of their respective Groups to take, prior to the Distribution, all actions necessary, subject to the terms of this Agreement, to effectuate the Separation as set forth in Article II.

Section 3.2   Certificate of Incorporation; Bylaws. At or prior to the Effective Time, all necessary actions shall be taken to adopt the form of amended and restated certificate of incorporation and amended and restated by-laws filed by Arcosa with the SEC as exhibits to the Registration Statement.

Section 3.3   Directors. At or prior to the Effective Time, Trinity shall take all necessary action to cause the board of directors of Arcosa to consist of the individuals who are identified in the Registration Statement (including the Information Statement) at the Effective Time as being directors of Arcosa.

Section 3.4   Resignations.

Section 3.5   Ancillary Agreements. At or prior to the Effective Time, Trinity and Arcosa shall enter into, and, if applicable, shall cause a member or members of their respective Groups to enter into, the Ancillary Agreements.

Section 3.6   Arcosa Financing Arrangements. Prior to the Distribution Date, Arcosa shall enter into the Arcosa Financing Arrangements, on such terms and conditions as agreed by Trinity (including the amount that shall be borrowed pursuant to the Arcosa Financing Arrangements and the interest rates for such borrowings). Trinity and Arcosa shall participate in the preparation of all materials and presentations as may be reasonably necessary to secure funding pursuant to the Arcosa Financing Arrangements, including rating agency presentations necessary to obtain the requisite ratings needed to secure the financing under any of the Arcosa Financing Arrangements. The Parties agree that Arcosa, and not Trinity, shall be ultimately responsible for all costs and expenses incurred by, and for reimbursement of such costs and expenses to, any member of the Trinity Group or Arcosa Group associated with the Arcosa Financing Arrangements.

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ARTICLE IV

THE DISTRIBUTION

Section 4.1   The Distribution. Subject to the satisfaction or waiver of the conditions, covenants and other terms set forth in this Agreement and the Ancillary Agreements, on or prior to the Distribution Date, in connection with the Separation, including the Transfer of the Arcosa Assets to Arcosa in the Separation whenever made, Arcosa shall issue to Trinity as a stock dividend such number of shares of Arcosa Common Stock (or Trinity and Arcosa shall take or cause to be taken such other appropriate actions to ensure that Trinity has the requisite number of shares of Arcosa Common Stock) as may be requested by Trinity after consultation with Arcosa in order to effect the Distribution, which shares as of the date of issuance shall represent (together with such shares previously held by Trinity) all of the issued and outstanding shares of Arcosa Common Stock. Subject to conditions and other terms in this Article IV, Trinity will cause the Agent on the Distribution Date to make the Distribution, including by crediting the appropriate number of shares of Arcosa Common Stock to book entry accounts for each holder of Arcosa Common Stock or designated transferee or transferees of such holder of Arcosa Common Stock. For stockholders of Trinity who own Trinity Common Stock through a broker or other nominee, their shares of Arcosa Common Stock will be credited to their respective accounts by such broker or nominee. No action by any holder of Trinity Common Stock on the Record Date shall be necessary for such stockholder (or such stockholder’s designated transferee or transferees) to receive the applicable number of shares of Arcosa Common Stock (and, if applicable, cash in lieu of any fractional shares) such stockholder is entitled to in the Distribution.

Section 4.2   Fractional Shares. Trinity stockholders who, after aggregating the number of shares of Arcosa Common Stock (or fractions thereof) to which such stockholder would be entitled on the Record Date, would be entitled to receive a fraction of a share of Arcosa Common Stock in the Distribution, will receive cash in lieu of fractional shares. Fractional shares of Arcosa Common Stock will not be distributed in the Distribution nor credited to book-entry accounts. The Agent shall, as soon as practicable after the Distribution Date (a) determine the number of whole shares and fractional shares of Arcosa Common Stock allocable to each other holder of record or beneficial owner of Trinity Common Stock as of close of business on the Record Date, (b) aggregate all such fractional shares into whole shares and sell the whole shares obtained thereby in open market transactions at then prevailing trading prices on behalf of holders who would otherwise be entitled to fractional share interests, and (c) distribute to each such holder, or for the benefit of each such beneficial owner, such holder’s or owner’s ratable share of the net proceeds of such sale, based upon the average gross selling price per share of Arcosa Common Stock after making appropriate deductions for any amount required to be withheld for United States federal income tax purposes. Arcosa shall bear the cost of brokerage fees and transfer taxes incurred in connection with these sales of fractional shares, which such sales shall occur as soon after the Distribution Date as practicable and as determined by the Agent. None of Trinity, Arcosa or the applicable Agent will guarantee any minimum sale price for the fractional shares of Arcosa Common Stock. Neither Trinity nor Arcosa will pay any interest on the proceeds from the sale of fractional shares. The Agent will have the sole discretion to select the broker-dealers through which to sell the aggregated fractional shares and to determine when, how and at what price to sell such shares. Neither the Agent nor the selected broker-dealers will be Affiliates of Trinity or Arcosa.

Section 4.3   Actions in Connection with Distribution.

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shall prepare and, in accordance with applicable Law, file with the SEC any such documentation that Trinity determines is necessary or desirable to effectuate the Distribution, and Trinity and Arcosa shall each use commercially reasonable efforts to obtain all necessary approvals from the SEC with respect thereto as soon as practicable.

Section 4.4   Sole Discretion of Trinity. Notwithstanding anything to the contrary in this Agreement or any Ancillary Agreement, Trinity shall, in its sole and absolute discretion, determine the Distribution Date and all terms of the Distribution, including the form, structure and terms of any transactions to effect the Distribution and the timing of and conditions to the consummation thereof. In addition, Trinity may, in accordance with Section 10.10, at any time prior to the Distribution Date and from time to time until the completion of the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution, including by accelerating or delaying the timing of the consummation of all or part of the Distribution. None of Arcosa, any other member of the Arcosa Group, any Arcosa Group Employee or any Third Party shall have any right or claim to require the consummation of the Separation or the Distribution, each of which shall be effected at the sole discretion of the Trinity Board.

Section 4.5   Conditions.

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ARTICLE V

COVENANTS

Section 5.1   Legal Names and Other Parties’ Trademark.

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and any applicable services. Any use by any Party or any of such Party’s Affiliates of any of the Other Party Marks as permitted in this Section 5.1 is subject to their compliance with all quality control standards and related requirements and guidelines in effect for the Other Party Marks as of the Effective Time.

Section 5.2   Auditors and Audits; Annual and Quarterly Financial Statements and Accounting.

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Section 5.3   No Restrictions on Corporate Opportunities.

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thereof by reason of the fact that Trinity or any other member of the Trinity Group pursues or acquires such corporate opportunity for itself, directs such corporate opportunity to another person or entity, or does not present such corporate opportunity to Arcosa or any other member of the Arcosa Group.

Section 5.4   Certain Non-Competition Provisions.

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in a Prohibited Business results in Trinity or Arcosa, as the case may be, directly or indirectly owning, investing in, operating, managing, controlling, participating or engaging in a Prohibited Business in breach of Section 5.4(a) at the time of such transaction, the parties to such transaction shall have a period of 365 days from the date of the closing or consummation of such transaction to cure (by divestiture or otherwise, including, for the avoidance of doubt, in the event that such 365-day cure period extends beyond the expiration of the Non-Compete Period) such failure before the parties are deemed to be in breach of this Section 5.4.

ARTICLE VI

SURVIVAL AND INDEMNIFICATION; MUTUAL RELEASES

Section 6.1   Release of Pre-Distribution Claims.

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failed to occur or any conditions existing or alleged to have existed on or before the Distribution, whether or not known as of the Distribution, including in connection with the transactions and all other activities to implement the Separation or the Distribution. Arcosa shall not, and shall not permit any other member of the Arcosa Group to, make any claim or demand, or commence any Proceedings asserting any claim or demand, including any claim for indemnification, against any member of the Trinity Group with respect to any Liabilities released pursuant to this Section 6.1(b).

In addition, nothing contained in Section 6.1(a) shall release any member of the Trinity Group from honoring its existing obligations to indemnify any director, officer or employee of Arcosa who was a director, officer or employee of Trinity or any of its Affiliates at or prior to the Effective Time, to the extent such director, officer or employee is or becomes a named defendant in any Proceeding with respect to which he or she was entitled to such indemnification pursuant to obligations existing prior to the Effective Time; it being understood that if the underlying obligation giving rise to such Proceedings is an Arcosa Liability, Arcosa shall indemnify Trinity for such Liability (including Trinity’s costs to indemnify the director, officer or employee) in accordance with the provisions set forth in this Article VI.

Section 6.2   Indemnification by Trinity. In addition to any other provision of this Agreement or any Ancillary Agreement requiring indemnification, except as otherwise specifically set forth in any provision of this Agreement, and subject to Section 6.11, from and after the Distribution, Trinity will indemnify, defend, release and discharge Arcosa and its Affiliates and their respective current and former directors, officers, employees and agents and each of the heirs, executors, successors and permitted assigns of any of the foregoing (collectively, the “Arcosa Indemnified Parties,” and, together with Trinity Indemnified Parties, the “Indemnified Parties”), from and against any and all Indemnifiable Losses actually suffered or incurred by the Arcosa Indemnified Parties relating to, arising out of or resulting from any of the following items regardless of whether arising from or alleged to arise from

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negligence (whether simple, contributory or gross), recklessness, violation of Law, fraud, misrepresentation or otherwise (without duplication) to the fullest extent permitted by applicable Law:

Section 6.3   Indemnification by Arcosa. In addition to any other provision of this Agreement or any Ancillary Agreement requiring indemnification, except as otherwise specifically set forth in any provision of this Agreement, and subject to Section 6.11, from and after the Distribution, Arcosa shall indemnify, defend, release and discharge Trinity and its Affiliates and their respective current and former directors, officers, employees and agents and each of the heirs, executors, successors and permitted assigns of any of the foregoing (collectively, the “Trinity Indemnified Parties”), from and against any and all Indemnifiable Losses actually suffered or incurred by the Trinity Indemnified Parties relating to, arising out of or resulting from any of the following items regardless of whether arising from or alleged to arise from negligence (whether simple, contributory or gross), recklessness, violation of Law, fraud, misrepresentation or otherwise (without duplication) to the fullest extent permitted by applicable Law:

Section 6.4   Procedures for Indemnification; Third Party Claims.

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to undertake any such defense at its own expense, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent Records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as are reasonably required by the Indemnifying Party. Similarly, if the Indemnified Party is conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all witnesses, pertinent Records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as are reasonably required by the Indemnified Party.

Section 6.5   Indemnification Payments. Indemnification required by this Article VI shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or an Indemnifiable Loss is incurred.

Section 6.6   Survival of Indemnities. The rights and obligations of each of Trinity and Arcosa and their respective Indemnified Parties under this Article VI shall survive (i) the sale or other transfer by any Group of any

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of its Assets or Businesses or the assignment by it of any Liabilities, and (ii) any merger, consolidation, business combination, sale of all or substantially all of the Assets, restructuring, recapitalization, reorganization or similar transaction involving either Party or any of its Subsidiaries.

Section 6.7   Indemnification Obligations Net of Insurance Proceeds and Other Amounts; Contribution.

Section 6.8   Direct Claims. An Indemnified Party shall give the Indemnifying Party notice of any matter that an Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement (other than a Third Party Claim which shall be governed by Section 6.4) within thirty (30) days of such determination, stating the claimed or asserted amount of the Indemnifiable Loss and method of computation thereof, if known, and

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containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed by such Indemnified Party or arises; provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually materially prejudiced as a result of such failure.

Section 6.9   Remedies Cumulative. The remedies provided in this Article VI or elsewhere in this Agreement shall be cumulative and shall not preclude assertion by any Indemnified Party of any other rights or the seeking of any and all other remedies provided for in this Agreement against any Indemnifying Party; provided, however, that the procedures set forth in this Article VI shall be the exclusive procedures governing any indemnity action brought under this Agreement.

Section 6.10   Consequential Damages. EXCEPT AS MAY BE AWARDED TO A THIRD PARTY IN CONNECTION WITH ANY THIRD PARTY CLAIM THAT IS SUBJECT TO THE INDEMNIFICATION OBLIGATIONS IN THIS Article VI, IN NO EVENT SHALL TRINITY, ARCOSA OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR OTHER AGENTS BE LIABLE UNDER THIS AGREEMENT FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE, AND IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR OTHER AGENTS BE LIABLE UNDER THIS AGREEMENT FOR LOST PROFITS, OPPORTUNITY COSTS, DIMINUTION IN VALUE OR DAMAGES BASED UPON A MULTIPLE OF EARNINGS OR SIMILAR FINANCIAL MEASURE, EVEN IF UNDER APPLICABLE LAW SUCH LOST PROFITS, OPPORTUNITY COSTS, DIMINUTION IN VALUE, OR SUCH DAMAGES WOULD NOT BE CONSIDERED CONSEQUENTIAL OR SPECIAL DAMAGES.

Section 6.11   Ancillary Agreements. Notwithstanding anything in this Agreement to the contrary, to the extent any Ancillary Agreement contains any specific, express indemnification obligation or contribution obligation relating to any Trinity Liability, Trinity Asset, Arcosa Liability or Arcosa Asset contributed, assumed, retained, transferred, delivered or conveyed pursuant to such Ancillary Agreement, or relating to any other specific matter, the indemnification obligations contained herein shall not apply to such Trinity Liability, Trinity Asset, Arcosa Liability or Arcosa Asset, or such other specific matter, and instead the indemnification and/or contribution obligations set forth in such Ancillary Agreement shall govern with regard to such Trinity Asset, Trinity Liability, Arcosa Asset or Arcosa Liability or any such other specific matter.

ARTICLE VII

CONFIDENTIALITY; ACCESS TO INFORMATION

Section 7.1   Provision of Corporate Records. Other than in circumstances in which indemnification is sought pursuant to Article VI (in which event the provisions of such Article will govern) and without limiting the applicable provisions of Article VI, and subject to appropriate restrictions for classified, privileged or Confidential Information and subject further to any restrictions or limitations contained in Section 5.2 or elsewhere in this Article VII:

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Section 7.2   Access to Information. Other than in circumstances in which indemnification is sought pursuant to Article VI (in which event the provisions of such Article will govern) and without limiting the applicable provisions of Article VI, and subject to any restrictions or limitations contained in Section 5.2 or elsewhere in this Article VII, from and after the Effective Time, each of Trinity and Arcosa shall afford to the other and its authorized accountants, counsel and other designated representatives reasonable access during normal business hours, subject to appropriate notice and restrictions for classified, privileged or confidential information and to the requirements of any applicable Law, to the personnel, properties, and Information of such Party and its Subsidiaries insofar as such access is reasonably required by the other Party, and only for the duration such access is required, and relates to (a) such other Party or the conduct of its business prior to the Effective Time or (b) any Ancillary Agreement; provided, however, in the event that a Party determines that any such access or the provision of any such information (including information requested under Section 5.2 or Section 7.1) would be commercially detrimental in any material respect, violate any Law or Contract with a Third Party or waive any attorney-client privilege, the work product doctrine or other applicable privilege, the Parties shall take all reasonable measures (and, to the extent applicable, shall use commercially reasonable efforts to obtain the Consent from any Third Party required to make such disclosure without violating a Contract with a Third Party) to permit compliance with such information request in a manner that avoids any such harm, violation or consequence. Each of Trinity and Arcosa shall inform their respective officers, directors, employees, agents, consultants, advisors, authorized accountants, counsel and other designated representatives who have or have access to the other Party’s Confidential Information or other information provided pursuant to Section 5.2 or this Article VII of their obligation to hold such information confidential in accordance with the provisions of this Agreement.

Section 7.3   Witness Services. At all times from and after the Effective Time, each of Trinity and Arcosa shall use its commercially reasonable efforts to make available to the other, upon reasonable written request, its and its Subsidiaries’ officers, directors, employees, consultants, and agents (taking into account the business demands of such individuals) as witnesses to the extent that (a) such Persons may reasonably be required to testify in connection with the prosecution or defense of any Proceeding in which the requesting Party may from time to time be involved (except for claims, demands or Proceedings in which one or more members of one Group is adverse to one or more members of the other Group) and (b) there is no conflict in the Proceeding between the requesting Party and the other Party.

Section 7.4   Cooperation. At all times from and after the Effective Time, except for any Proceeding (or any threatened Proceeding) in which one or more members of one Group is adverse to one or more members of the other Group, or in which there is otherwise a conflict between one or more members of one Group and one or more members of the other Group (each of which shall be governed by such discovery rules as may be applicable thereto), each of Trinity and Arcosa shall cooperate and consult in good faith as reasonably requested in writing by the other Party with respect to the prosecution or defense of any Proceeding (or any audit or any other legal requirement) in which the requesting Party may from time to time be involved, regardless of whether relating to events that took place prior to, on or after the date of Separation or whether relating to this Agreement or any Ancillary Agreement or any of the transactions contemplated hereby or thereby or otherwise. Notwithstanding the foregoing, this Section 7.4 does not require a Party to take any step that would materially interfere, or that it reasonably determines could materially interfere, with its business. The requesting Party agrees to reimburse the other Party for the reasonable out-of-pocket costs, if any, incurred in connection with a request under this Section 7.4.

Section 7.5   Confidentiality.

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any of their respective Subsidiaries are required or compelled to disclose any such Confidential Information by judicial or administrative process or by other requirements of Law or stock exchange rule, (iii) as necessary in order to permit a Party to prepare and disclose its financial statements, or other required disclosures, or (iv) in the event Trinity determines in its sole discretion that disclosure of Confidential Information to a government enforcement agency is in the best interest of Trinity or any member of the Trinity Group; provided, further, that each Party (and members of its Group as necessary) may use, or may permit use of, Confidential Information of the other Party in connection with such first Party performing its obligations, or exercising its rights, under this Agreement or any Ancillary Agreement. Notwithstanding the foregoing, (A) in the event that any demand or request for disclosure of Confidential Information is made pursuant to clause (ii) above, each Party, as applicable, shall promptly notify the other Party of the existence of such request or demand and shall provide the other Party a reasonable opportunity to seek an appropriate protective order or other remedy, which such Parties will cooperate in obtaining, and (B) in the event Trinity determines to disclose Confidential Information to a government enforcement agency pursuant to clause (iv) above, and such Confidential Information to be disclosed relates in whole or in part to Arcosa or any member of the Arcosa Group, then Trinity shall provide Arcosa with reasonable advance written notice prior to such disclosure. In the event that such appropriate protective order or other remedy is not obtained, the Party whose Confidential Information is required to be disclosed shall or shall cause the other applicable Party or Parties to furnish, or cause to be furnished, only that portion of the Confidential Information that is legally required to be disclosed and shall take commercially reasonable steps to ensure that confidential treatment is accorded such portion of such Confidential Information.

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Section 7.6   Privileged Matters.

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Section 7.7   Ownership of Information. Any information owned by one Party or any of its Subsidiaries that is provided to a requesting Party pursuant to this Article VII or Section 5.2 shall be deemed to remain the property of the providing Party. Unless specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any such information.

Section 7.8   Other Agreements. The rights and obligations granted under this Article VII are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange or confidential treatment of information, or privileged matter with respect thereto, set forth in any Ancillary Agreement.

Section 7.9   Compensation for Providing Information. A Party requesting Information pursuant to this Article VII agrees to reimburse the providing Party for the reasonable out-of-pocket expenses, if any, of gathering, copying and otherwise complying with respect to such Information (including any reasonable costs and expenses incurred in any review of Information for purposes of protecting any privilege thereunder or any other restrictions on the disclosure of such Information); provided, however, that each Party shall be responsible for its own attorneys’ fees and expenses incurred in connection therewith.

ARTICLE VIII

DISPUTE RESOLUTION

Section 8.1   Negotiation.

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will not be subject to the resolution procedures set forth in this Article VIII) or otherwise arising out of, or in any way related to this Agreement or any such Ancillary Agreement or the transactions contemplated hereby or thereby, including any claim based on Contract, tort, Law or constitution (but excluding any controversy, dispute or claim arising out of any Contract with a Third Party if such Third Party is a necessary party to such controversy, dispute or claim) (collectively, “Agreement Disputes”), a Party must provide written notice of such Agreement Dispute (“Dispute Notice”). Within thirty (30) days of receipt by a Party of a Dispute Notice, the receiving Party shall submit to the other Party a written response. The Dispute Notice and the response shall each include a statement of the Party’s position, a general summary of the arguments (including relevant facts and circumstances) supporting that position, the name and title of the Party’s representatives who will represent the Party and any other person(s) in negotiation of the Agreement Dispute. The Parties agree to negotiate in good faith to resolve any noticed Agreement Dispute. If the Parties are unable for any reason to resolve an Agreement Dispute within forty-five (45) days from the time of receipt of the response to the Dispute Notice and the forty-five (45) day period is not extended by mutual written consent, then the Chief Executive Officers of the Parties shall enter into negotiations for a reasonable period of time to settle such Agreement Dispute; provided, however, that such reasonable period shall not, unless otherwise agreed by the Parties in writing, exceed sixty (60) days from the 45^th day noted above, if and as extended by mutual agreement of the Parties.

Section 8.2   Mediation. Any Agreement Dispute not resolved pursuant to Section 8.1 shall, at the written request of a Party (a “Mediation Notice”), be submitted to nonbinding mediation in accordance with the then current International Institute for Conflict Prevention and Resolution (“CPR”) Mediation Procedure, except as modified herein. The mediation shall be held in Dallas, Texas. The Parties shall have twenty (20) days from receipt by a Party of a Mediation Notice to agree on a mediator. If no mediator has been agreed upon by the Parties within twenty (20) days of receipt by a party of a Mediation Notice, then a Party may request (on written notice to the other Party), that CPR appoint a mediator in accordance with the CPR Mediation Procedure. All mediation pursuant to this Section 8.2 shall be confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence, and no oral or documentary representations made by the Parties during such mediation shall be admissible for any purpose in any subsequent proceedings. No Party shall disclose or permit the disclosure of any information about the evidence adduced or the documents produced by the other Party in the mediation proceedings or about the existence, contents or results of the mediation without the prior written consent of such other Party, except in the course of a judicial or regulatory proceeding or as may be required by Law or requested by a Governmental Authority or securities exchange. Before making any disclosure permitted by the preceding sentence, the Party intending to make such disclosure shall, to the extent reasonably practicable, give the other Party reasonable written notice of the intended disclosure and afford the other Party a reasonable opportunity to protect its interests.

Section 8.3   Arbitration. If the Agreement Dispute has not been resolved for any reason within sixty (60) days of the appointment of a mediator in accordance with Section 8.2, or within ninety (90) days after receipt by a Party of a Mediation Notice (whichever occurs sooner), or within such longer period as the Parties may agree in writing, then such Agreement Dispute (i) shall, if the amount disputed in good faith is less than $25,000,000, or (ii) may (by mutual written agreement between the Parties) if the amount disputed in good faith is equal to or greater than $25,000,000, be exclusively and finally determined, at the request of any relevant Party, by arbitration (by an arbitral

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tribunal as provided for in Section 8.4) conducted where the Parties agree it would be most convenient, and in the absence of agreement in Dallas, Texas, before and in accordance with the American Arbitration Association (“AAA”) Commercial Arbitration Rules then currently in effect, except as modified herein (the “Rules”).

Section 8.4   Selection of Arbitrators. There shall be three arbitrators. Each Party shall appoint an arbitrator within twenty (20) days of a Party’s receipt of a Party’s demand for arbitration. The two Party-appointed arbitrators shall have twenty (20) days from the appointment of the second arbitrator to agree on a third arbitrator who shall chair the arbitral tribunal. Any arbitrator not timely appointed by the Parties shall be appointed by the AAA in accordance with the listing and ranking method in the Rules, and in any such procedure, each Party shall be given a limited number of strikes, excluding strikes for cause. If any appointed arbitrator declines, resigns, becomes incapacitated, or otherwise refuses or fails to serve or to continue to serve as an arbitrator, the Party or arbitrators entitled to appoint such arbitrator shall promptly appoint a successor. In the event that an arbitrator is objected to, the AAA shall decide whether such objection is valid and whether the challenged arbitrator shall be removed. Any controversy concerning the jurisdiction of the arbitrators, whether the subject matter of an Agreement Dispute is suitable for resolution by arbitration, whether arbitration has been waived, whether an assignee of this Agreement is bound to arbitrate, or as to the interpretation of enforceability of this Article VIII shall be determined by the arbitrators.

Section 8.5   Arbitration Procedures. Any hearing to be conducted shall be held no later than 180 days following appointment of the arbitrators or as soon thereafter as practicable.

Section 8.6   Discovery. The arbitrators, consistent with the expedited nature of arbitration, shall permit limited discovery only of documents directly related to the issues in dispute. There shall be no more than three depositions per party of no more than 8 hours each. Notwithstanding the foregoing, each Party will, upon the written request of the other Party, promptly provide the other with copies of documents on which the producing Party may rely in support of a claim or defense or which are relevant to the issues raised in the Agreement Dispute. All discovery, if any, shall be completed within 90 days following the appointment of the arbitrators or as soon thereafter as practicable. Adherence to formal rules of evidence shall not be required and the arbitrators shall consider any evidence and testimony that the arbitrators determine to be relevant, in accordance with the Rules and procedures that the arbitrators determine to be appropriate. In resolving any Agreement Dispute, the Parties intend that the arbitrators shall apply the substantive Laws of the State of Delaware, without regard to any choice of law principles thereof that would mandate the application of the Laws of another jurisdiction. The Parties intend that the provisions to arbitrate set forth herein be valid, enforceable and irrevocable, and any award rendered by the arbitrators shall be final and binding on the Parties. The Parties agree to comply and cause the members of their applicable Group to comply with any award made in any such arbitration proceedings and agree to enforcement of or entry of judgment upon such award, in any court of competent jurisdiction.

Section 8.7   Confidentiality of Proceedings. Without limiting the provisions of the Rules, unless otherwise agreed in writing by or among the relevant Parties or permitted by this Agreement or as may be required by law or any regulatory authority, the relevant Parties shall keep, and shall cause the members of their applicable Group to keep, confidential all matters relating to the arbitration or the award. The arbitral award shall be confidential; provided, however, that such award may be disclosed (i) to the extent reasonably necessary in any proceeding brought to enforce this agreement to arbitrate or any arbitral award or for entry of a judgment upon the award and (ii) to the extent otherwise required by Law or regulatory authority.

Section 8.8   Pre-Hearing Procedure and Disposition. Nothing contained herein is intended to or shall be construed to prevent any Party, from applying to any court of competent jurisdiction for injunctive or other similar equitable relief in connection with the subject matter of any Agreement Disputes, including to compel a party to arbitrate any Agreement Dispute, to prevent irreparable harm prior to the appointment of the arbitral tribunal or to require witnesses to obey subpoenas issued by the arbitrators. Without prejudice to such equitable remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. The Parties agree to accept and honor any orders relating to interim or provisional remedies that are issued by the arbitrators and agree that any such interim order or remedy may be enforced, as necessary, in any court of competent jurisdiction.

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Section 8.9   Continuity of Service and Performance. During the course of resolving an Agreement Dispute pursuant to the provisions of this Article VIII, the Parties will continue to provide all other services and honor all other commitments under this Agreement and each Ancillary Agreement with respect to all matters not the subject of the Agreement Dispute in arbitration.

Section 8.10   Awards. The arbitrators shall make an award and issue a reasoned opinion in writing setting forth the basis for such award within 30 days following the close of the hearing on the merits, or a soon thereafter as practicable. The arbitrators shall be entitled, if appropriate, to award any remedy in such proceedings that is permitted under this Agreement and applicable Law, including monetary damages, specific performance and other forms of legal and equitable relief. The Parties hereby waive any claim to exemplary, punitive, multiple or similar damages in excess of compensatory damages, attorneys’ fees, costs and expenses of arbitration, except as may be expressly required by statute or as necessary to indemnify a Party for a Third Party Claim and the arbitrators are not empowered to and shall not award such damages. Any final award must provide that the party against whom an award is issued shall comply with the order within a specified period of time, not to exceed 30 days.

Section 8.11   Costs. Provided the amount in dispute is less than $25,000,000, if any Party attempts, unsuccessfully, to prevent an Agreement Dispute from being arbitrated such Party shall reimburse the prevailing party for all costs incurred in compelling arbitration. Except as otherwise may be provided in any Ancillary Agreement, the costs of arbitration pursuant to this Article VIII shall be borne by the non-prevailing Party as determined by the arbitrator.

Section 8.12   Adherence to Time Limits. In accepting appointment, each of the arbitrators shall commit that his or her schedule permits him or her to devote the reasonably necessary time and attention to the arbitration proceedings and to resolving the Agreement Dispute within the time periods set by this Agreement and by the Rules. Any time limits set out in this Article VIII or in the Rules may be modified upon written agreement of the Parties and the arbitrators or by order of the arbitrators for good cause shown. Any failure of the arbitrators to comply with such time limits or to render a final award within the time specified shall not impair the validity of the award or cause the award to be void or voidable, nor shall it be a basis for challenge of the validity or enforceability of the award or of the arbitration proceedings.

ARTICLE IX

INSURANCE

Section 9.1   General Liability Policies to be Maintained by Arcosa. Arcosa agrees and covenants (on its own behalf and on behalf of each other member of the Arcosa Group) that it will procure and maintain at its sole cost and expense, for a period of no less than five (5) years from the Effective Time, annual occurrence-based primary, umbrella and excess liability insurance policies issued by insurers with an A.M. Best Company rating of “A” or better or Lloyds rating equivalent and naming Trinity and its subsidiaries and affiliates, as now or hereafter constituted (the “Trinity Insureds”), as additional insureds (together, the “Arcosa General Liability Policies”). The Arcosa General Liability Policies shall provide such additional insured coverage using ISO Forms CG 20 10 10 01 and CG 20 37 10 01 or substantially similar terms granting additional insured coverage for ongoing and completed operations of the named insured without reference to an extrinsic written agreement. Such primary policies shall provide no less than $2 million in per occurrence and $4 million in aggregate annual limits. If such primary policies are subject to a self-insured retention, as distinct from a deductible, such primary policies shall be subject to a per occurrence self-insured retention of no more than $2 million and an aggregate retention of no more than $4 million without Trinity’s written consent, which consent shall not be unreasonably withheld. Such excess and umbrella policies shall attach immediately above such primary policies and shall provide no less than $100 million in annual limits. The Arcosa General Liability Policies shall otherwise provide coverage with terms and conditions at least as favorable as Trinity’s primary umbrella and excess liability policies in place as of the Effective Time. It is the intention of the Parties that the Arcosa General Liability Policies shall act as primary insurance with respect to any claims asserted against Trinity and/or Arcosa that arise out of the Arcosa Liabilities with an occurrence date after the Effective Time, and the Arcosa General Liability Policies shall expressly provide that they act as primary insurance with respect to any such claims. The Arcosa General Liability Policies shall provide that such policies shall not be canceled without first giving thirty (30) days prior written notice thereof to Trinity. Within thirty (30) days of the Effective Time and annually thereafter, Arcosa will provide Trinity with certificates of insurance evidencing compliance with this Section 9.1 (including evidence of renewal of insurance) signed by authorized representatives of the respective carrier(s). Upon Trinity’s request, Arcosa will provide Trinity reasonable access to all insurance documents for purposes of

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verifying Arcosa’s compliance with this Section 9.1. The Arcosa General Liability Policies shall include full waivers of subrogation in favor of Trinity and its subsidiaries and affiliates and each of their respective officers, directors, agents, servants, and employees. In the event of a claim, occurrence or suit relating to any Trinity Insured and arising out of the Arcosa Liabilities, Arcosa will cooperate with Trinity in the provision of notice and the pursuit of coverage under the Arcosa General Liability Policies.

Section 9.2   General Liability Policies to be Maintained by Trinity. Trinity agrees and covenants (on its own behalf and on behalf of each other member of the Trinity Group) that it will procure and maintain at its sole cost and expense, for a period of no less than five (5) years from the Effective Time, annual occurrence-based primary, umbrella and excess liability insurance policies issued by insurers with an A.M. Best Company credit rating of “A” or better or Lloyds rating equivalent and naming Arcosa and its subsidiaries and affiliates, as now or hereafter constituted (the “Arcosa Insureds”), as additional insureds (together, the “Trinity General Liability Policies”). The Trinity General Liability Policies shall provide such additional insured coverage using ISO Forms CG 20 10 10 01 and CG 20 37 10 01 or substantially similar terms granting additional insured coverage for ongoing and completed operations of the named insured without reference to an extrinsic written agreement. Such primary policies shall provide no less than $2 million in per occurrence and $4 million in aggregate annual limits. If such primary policies are subject to a self-insured retention, as distinct from a deductible, such primary policies shall be subject to a per occurrence self-insured retention of no more than $2 million and an aggregate retention of no more than $4 million without Arcosa’s written consent, which consent shall not be unreasonably withheld. Such excess and umbrella policies shall attach immediately above such primary policies and shall provide no less than $100 million in annual limits. The Trinity General Liability Policies shall otherwise provide coverage with terms and conditions at least as favorable as Trinity’s primary umbrella and excess liability policies in place as of the Effective Time. It is the intention of the Parties that the Trinity General Liability Policies shall act as primary insurance with respect to any claims asserted against Trinity and/or Arcosa that arise out of the Trinity Liabilities with an occurrence date after the Effective Time, and the Trinity General Liability Policies shall expressly provide that they act as primary insurance with respect to any such claims. The Trinity General Liability Policies shall provide that such policies shall not be canceled without first giving thirty (30) days prior written notice thereof to Arcosa. Within thirty (30) days of the Effective Time and annually thereafter, Trinity will provide Arcosa with certificates of insurance evidencing compliance with this Section 9.2 (including evidence of renewal of insurance) signed by authorized representatives of the respective carrier(s). Upon Arcosa’s request, Trinity will provide Arcosa reasonable access to all insurance documents for purposes of verifying Trinity’s compliance with this Section 9.2. The Trinity General Liability Policies shall include full waivers of subrogation in favor of Arcosa and its subsidiaries and affiliates and each of their respective officers, directors, agents, servants, and employees. In the event of a claim, occurrence or suit relating to any Arcosa Insured and arising out of the Trinity Liabilities, Trinity will cooperate with Arcosa in the provision of notice and the pursuit of coverage under the Trinity General Liability Policies.

Section 9.3   Policies and Allocation of Related Rights and Obligations. Arcosa acknowledges and agrees (on its own behalf and on behalf of each other member of the Arcosa Group) that (i) neither Arcosa nor any other member of the Arcosa Group has any rights to or under any insurance policy issued to Trinity after the Effective Time, except as expressly provided in this Article IX and (ii) nothing in this Article IX shall be deemed to constitute (or to reflect) an assignment of any rights to or under any Third Party Shared Policy.

Section 9.4   First-Party Policies. Arcosa agrees and covenants (on its own behalf and on behalf of each other member of the Arcosa Group) that as of the Effective Time it will procure and maintain at its sole cost and expense, for a period of no less than five (5) years from the Effective Time, reasonable and appropriate commercial property policies and related coverages insuring the Arcosa Assets made the subject of this Agreement. The Arcosa Group, whether collectively or individually, shall not be named as an insured, additional insured or loss payee under any first-party commercial property policies issued to Trinity after the Effective Time.

Section 9.5   Claims-Made Liability Policies. Arcosa agrees and covenants (on its own behalf and on behalf of each other member of the Arcosa Group) that as of the Effective Time it will procure and maintain at its sole cost and expense, for a period of no less than five (5) years from the Effective Time, claims-made liability policies reasonable and appropriate to the Arcosa Business, including directors’ and officers’ liability and fiduciary liability policies with commercially reasonable terms and limits. Neither the Arcosa Group, nor the Arcosa Indemnified Parties, whether collectively or individually, shall be named as insured or additional insured for conduct occurring after the Effective Time under any claims-made policy issued to Trinity.

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Section 9.6   Crime/Fidelity Bonds. Arcosa agrees and covenants (on its own behalf and on behalf of each other member of the Arcosa Group) that as of the Effective Time it will procure and maintain at its sole cost and expense, for a period of no less than five (5) years from the Effective Time, commercial crime policies or fidelity bonds reasonable and appropriate to the Arcosa Business. The Arcosa Group shall not be insured under any commercial crime policies or fidelity bonds issued to Trinity after the Effective Time.

Section 9.7   Occurrence Liability Policies. As of the Effective Time, and subject to the requirements of Section 9.1, Arcosa shall procure and maintain primary, umbrella and excess occurrence-based liability policies reasonable and appropriate to the Arcosa Business, including commercial general liability, worker’s compensation, employer’s liability, products liability and automobile liability coverage with commercially reasonable terms and limits. Except as provided in Section 9.2, neither the Arcosa Group, nor the Arcosa Indemnified Parties, whether collectively or individually, shall be named as insured or additional insured under any occurrence-based liability policies issued to Trinity after the Effective Time, including any commercial general liability, worker’s compensation, employer’s liability, products liability and automobile liability policies, whether primary, umbrella or excess.

Section 9.8   Third Party Shared Policies.

Section 9.9   Administration of Claims; Other Matters.

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covered or paid under the Third Party Shared Policies, including as a result of any deductible or self-insured retention under the Third Party Shared Policies, and (ii) related to Arcosa Liabilities. Trinity or any member of the Trinity Group shall not settle any Insured Claim of Arcosa or any member of Arcosa Group under the Third Party Shared Policies without first obtaining the approval of Arcosa or such member of Arcosa Group. Such approval shall not be unreasonably withheld, delayed or conditioned.

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coverage limits under a Third Party Shared Policy have been exceeded or would be exceeded as a result of such Insured Claim; provided, however, that any allocation of Insurance Proceeds shall be made net of any recovery, whenever obtained, from such other responsible third parties.

Section 9.10   Agreement for Waiver of Conflict and Shared Defense. In the event that Insured Claims of more than one of the Parties exist relating to the same events or related events, to the extent reasonably possible, the Parties shall jointly defend and waive any conflict of interest necessary to the conduct of the joint defense. Nothing in this Article IX shall be construed to limit or otherwise alter in any way the obligations of the Parties, including those created by this Agreement, by operation of Law or otherwise.

Section 9.11   Cooperation. The Parties agree to use (and cause the members in their respective Groups to use) their commercially reasonable efforts to cooperate with respect to the various insurance matters contemplated by this Article IX.

Section 9.12   Miscellaneous. Nothing in this Agreement shall be deemed to restrict Arcosa or Trinity, or any members of their respective Groups, from acquiring at its own expense any insurance policy in respect of any Liabilities or covering any period. Except as otherwise provided in this Agreement, from and after the Effective Time, Arcosa and Trinity shall be responsible for obtaining and maintaining their respective insurance programs for their respective risk of loss and such insurance arrangements shall be separate programs apart from each other, and each of Arcosa and Trinity shall be responsible for all aspects of its own such insurance program. Notwithstanding Section 9.1, Arcosa acknowledges and agrees (on its own behalf and on behalf of each other member of the Arcosa Group) that Trinity has provided to Arcosa prior to the Effective Time all information necessary for Arcosa or the appropriate member of the Arcosa Group to obtain such insurance policies and insurance programs as Arcosa or the appropriate member of the Arcosa Group, in its sole judgment and discretion, deems necessary to cover any and all risk of loss related to the Arcosa Business.

ARTICLE X

MISCELLANEOUS

Section 10.1   Complete Agreement. This Agreement, including the exhibits and schedules attached hereto, and the Ancillary Agreements (and the exhibits and schedules thereto) shall constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof and shall supersede all previous negotiations, commitments and writings with respect to such subject matter. In the event of any conflict between the terms and conditions of the body of this Agreement and the terms and conditions of any Schedule, the terms and conditions of such Schedule shall control. Notwithstanding anything to the contrary in this Agreement or any Ancillary Agreement, in the case of any conflict between the provisions of this Agreement and the provisions of any Ancillary Agreement, the provisions of this Agreement shall control; provided, however, except as set forth on Schedule 10.1, that in relation to (a) any matters concerning Taxes, the Tax Matters Agreement shall prevail over this Agreement and any other Ancillary Agreement, (b) any matters governed by the Employee Matters Agreement, the Employee Matters Agreement shall prevail over this Agreement or any other Ancillary Agreement, (c) the provision of support and other services after the Effective Time by the Arcosa Group to the Trinity Group, and vice versa, the Transition Services Agreement shall prevail over this Agreement or any other Ancillary Agreement and (d) any matters governed by the Intellectual Property Matters Agreement, the Intellectual Property Matters Agreement shall prevail over this Agreement or any other Ancillary Agreement. It is the intention of the Parties that the Transfer Documents shall be consistent with the terms of this Agreement and the other Ancillary Agreements. The Parties agree that the Transfer Documents are not intended and shall not be considered in any way to enhance, modify or decrease any of the rights or obligations of Trinity, Arcosa or any member of their respective Groups from those contained in this Agreement and the other Ancillary Agreements.

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Section 10.2   Ancillary Agreements. Notwithstanding anything to the contrary contained in this Agreement, this Agreement is not intended to address, and should not be interpreted to address, the matters specifically and expressly covered by the Ancillary Agreements (excluding the Transfer Documents).

Section 10.3   Counterparts. This Agreement may be executed in more than one counterparts, all of which shall be considered one and the same agreement, and, except as otherwise expressly provided in Section 1.3, shall become effective when one or more such counterparts have been signed by each of the Parties and delivered to the other Parties. Execution of this Agreement or any other documents pursuant to this Agreement by facsimile or other electronic copy of a signature shall be deemed to be, and shall have the same effect as, executed by an original signature.

Section 10.4   Survival of Agreements. Except as otherwise contemplated by this Agreement or any Ancillary Agreement, all covenants and agreements of the Parties contained in this Agreement and each Ancillary Agreement shall survive the Effective Time and remain in full force and effect in accordance with their applicable terms.

Section 10.5   Costs and Expenses; Payment.

Section 10.6   Notices. All notices, requests, claims, demands and other communications under this Agreement and, to the extent applicable and unless otherwise provided therein, under each of the Ancillary Agreements, as between the Parties, shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt unless the day of receipt is not a Business Day, in which case it shall be deemed to have been duly given or made on the next Business Day) by delivery in person, by overnight courier service, by electronic e-mail with receipt confirmed (followed by delivery of an original via overnight courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 10.6):

If to Trinity:

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If to Arcosa:

Section 10.7   Waiver.

Section 10.8   Modification or Amendment. This Agreement may only be amended, modified or supplemented, in whole or in part, in a writing signed on behalf of each of the Parties in the same manner as this Agreement and which makes reference to this Agreement.

Section 10.9   No Assignment; Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their permitted successors and assigns. No Party to this Agreement may assign or delegate, by operation of law or otherwise, all or any portion of its rights, obligations or liabilities under this Agreement without the prior written consent of the other Party to this Agreement, which such Party may withhold in its absolute discretion, except that (x) each Party hereto may assign any or all of its rights and interests hereunder to an Affiliate and (y) each Party may assign any of its obligations hereunder to an Affiliate; provided, however, that such assignment shall not relieve such Party of any of its obligations hereunder unless agreed to by the non-assigning Party, and any attempt to do so shall be ineffective and void ab initio. Subject to the preceding sentence, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties hereto and their respective successors and permitted assigns.

Section 10.10   Termination. Notwithstanding anything to the contrary herein, this Agreement (including Article VI hereof) may be terminated and the Distribution may be amended, modified or abandoned at any time prior to the Effective Time by and in the sole discretion of Trinity without the approval of Arcosa or the stockholders of Trinity. In the event of such termination, this Agreement shall become null and void and no Party, nor any of its officers, directors or employees, shall have any Liability to any other Party or any other Person. After the Effective Time, this Agreement may not be terminated except by an agreement in writing signed by each of the Parties.

Section 10.11   Payment Terms. Except as expressly provided to the contrary in this Agreement or in any Ancillary Agreement, any amount to be paid or reimbursed by any Party (and/or a member of such Party’s Group), on the one hand, to any other Party (and/or a member of such Party’s Group), on the other hand, under this Agreement shall be paid or reimbursed hereunder within twenty (20) Business Days after presentation of an undisputed invoice or a written demand therefor and setting forth, or accompanied by, reasonable documentation or other reasonable explanation supporting such amount.

Section 10.12   No Circumvention. The Parties agree not to directly or indirectly take any actions, act in concert with any Person who takes an action, or cause or allow any member of any such Party’s Group to take any actions (including the failure to take a reasonable action) such that the resulting effect is to materially undermine the effectiveness of any of the provisions of this Agreement or any Ancillary Agreement (including adversely affecting the rights or ability of any Party to successfully pursue indemnification, contribution or payment pursuant to Article VI).

Section 10.13   Subsidiaries. Each of the Parties shall cause (or with respect to an Affiliate that is not a Subsidiary, shall use commercially reasonable efforts to cause) to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Subsidiary or Affiliate of such Party or by any Business Entity that becomes a Subsidiary or Affiliate of such Party on and after the Effective Time. This Agreement is being entered into by Trinity and Arcosa on behalf of themselves and the members of their respective groups (the Trinity Group and the Arcosa Group). This Agreement shall constitute a direct obligation of each such entity and shall be deemed to have been readopted and affirmed on behalf of any Business Entity that

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becomes a Subsidiary or Affiliate of such Party on and after the Effective Time. Either Party shall have the right, by giving notice to the other Party, to require that any Subsidiary of the other Party execute a counterpart to this Agreement to become bound by the provisions of this Agreement applicable to such Subsidiary.

Section 10.14   Third Party Beneficiaries. Except (a) as provided in Article VI relating to Indemnified Parties and (b) as may specifically be provided in any Ancillary Agreement, this Agreement is solely for the benefit of each Party hereto and its respective Affiliates, successors or permitted assigns, and it is not the intention of the Parties to confer third party beneficiary rights upon any other Person, and should not be deemed to confer upon any third party any remedy, claim, liability, reimbursement, Proceedings or other right in excess of those existing without reference to this Agreement.

Section 10.15   Titles and Headings. Titles and headings to Sections and Articles are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.

Section 10.16   Exhibits and Schedules. The exhibits and schedules hereto shall be construed with and be an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein. Nothing in the Exhibits or Schedules constitutes an admission of any liability or obligation of any member of the Trinity Group or the Arcosa Group or any of their respective Affiliates to any third party, nor, with respect to any third party, an admission against the interests of any member of the Trinity Group or the Arcosa Group or any of their respective Affiliates. The inclusion of any item or liability or category of item or liability on any Exhibit or Schedule is made solely for purposes of allocating potential liabilities among the Parties and shall not be deemed as or construed to be an admission that any such liability exists.

Section 10.17   Public Announcements. From and after the Effective Time, Trinity and Arcosa shall consult with each other before issuing, and give each other the opportunity to review and comment upon, that portion of any press release or other public statements that relates to the transactions contemplated by this Agreement or the Ancillary Agreements, and shall not issue any such press release or make any such public statement prior to such consultation, except (a) as may be required by applicable Law, court process or by obligations pursuant to any listing agreement with any national securities exchange or national securities quotation system; (b) for disclosures made that are substantially consistent with disclosure contained in any Distribution Disclosure Document or Pre-Separation Disclosure, or (c) as otherwise set forth on Schedule 10.17.

Section 10.18   Governing Law. This Agreement, and all actions, causes of action, or claims of any kind (whether at law, in equity, in contract, in tort, or otherwise) that may be based upon, arise out of, or relate to this Agreement, or the negotiation, execution, or performance of this Agreement (including any action, cause of action, or claim of any kind based upon, arising out of, or related to any representation or warranty made in, in connection with, or as an inducement to this Agreement) shall be governed by and construed in accordance with the law of the State of Delaware, irrespective of the choice of Laws principles of the State of Delaware, including without limitation Delaware laws relating to applicable statutes of limitations and burdens of proof and available remedies.

Section 10.19   Consent to Jurisdiction. Subject to the provisions of Article VIII, each of the Parties hereto agrees that the appropriate, exclusive and convenient forum for any disputes between any of the Parties hereto arising out of this Agreement or the transactions contemplated hereby shall be brought and determined in the Court of Chancery of the State of Delaware; provided, that if jurisdiction is not then available in the Court of Chancery of the State of Delaware, then any such legal action or proceeding may be brought in any federal court located in the State of Delaware or any other Delaware state court (the “Delaware Courts”). Each of the Parties further agrees that delivery of notice or document by United States registered mail to such Party’s respective address set forth in Section 10.6 shall be effective as to the contents of such notice or document; provided, that service of process or summons for any action, suit or proceeding in the Delaware Courts with respect to any matters to which it has submitted to jurisdiction in this Section 10.19 shall be effective only pursuant to service on a Party’s registered agent for service of process. Each of the Parties irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby in the Delaware Courts, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

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Section 10.20   Specific Performance. The Parties agree that irreparable damage would occur in the event that the provisions of this Agreement were not performed in accordance with their specific terms. Accordingly, it is hereby agreed that the Parties shall be entitled to (i) an injunction or injunctions to enforce specifically the terms and provisions hereof in any arbitration in accordance with Article VIII, (ii) provisional or temporary injunctive relief in accordance therewith in any Delaware Court, and (iii) enforcement of any such award of an arbitral tribunal or a Delaware Court in any court of the United States, or any other any court or tribunal sitting in any state of the United States or in any foreign country that has jurisdiction, this being in addition to any other remedy or relief to which they may be entitled.

Section 10.21   Waiver of Jury Trial. SUBJECT TO Article VIII, EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY JUDICIAL PROCEEDING IN WHICH ANY CLAIM OR COUNTERCLAIM (WHETHER AT LAW, IN EQUITY, IN CONTRACT, IN TORT, OR OTHERWISE) ASSERTED BASED UPON, ARISING FROM, OR RELATED TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT, OR THE COURSE OF DEALING OR RELATIONSHIP BETWEEN THE PARTIES TO THIS AGREEMENT, INCLUDING THE NEGOTIATION, EXECUTION, AND PERFORMANCE OF SUCH AGREEMENT. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND THAT NO PARTY TO THIS AGREEMENT OR ANY ASSIGNEE, SUCCESSOR, OR REPRESENTATIVE OF ANY PARTY SHALL REQUEST A JURY TRIAL IN ANY SUCH PROCEEDING NOR SEEK TO CONSOLIDATE ANY SUCH PROCEEDING WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 10.21.

Section 10.22   Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future Law, the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance here from.

Section 10.23   Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted.

Section 10.24   Authorization. Each of the Parties hereby represents and warrants that it has the power and authority to execute, deliver and perform this Agreement, that this Agreement has been duly authorized by all necessary corporate action on the part of such Party, that this Agreement constitutes a legal, valid and binding obligation of each such Party enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and general equity principles.

Section 10.25   No Duplication; No Double Recovery. Nothing in this Agreement is intended to confer to or impose upon any Party a duplicative right, entitlement, obligation or recovery with respect to any matter arising out of the same facts and circumstances (including with respect to the rights, entitlements, obligations and recoveries that may arise out of one or more of the following Sections: Section 6.1, Section 6.2 and Section 6.3).

Section 10.26   Tax Treatment of Payments. Unless otherwise required by a Final Determination, this Agreement or the Tax Matters Agreement or otherwise agreed to among the Parties, for U.S. federal Tax purposes, any payment made pursuant to this Agreement (other than any payment of interest pursuant to Section 10.11) by: (i) Arcosa to Trinity shall be treated for all Tax purposes as a distribution by Arcosa to Trinity with respect to stock of Arcosa occurring immediately before the Distribution; or (ii) Trinity to Arcosa shall be treated for all Tax purposes as a tax-free contribution by Trinity to Arcosa with respect to its stock occurring immediately before the Distribution; and in each case, no Party shall take any position inconsistent with such treatment. In the event that a Tax Authority asserts that a Party’s treatment of a payment pursuant to this Agreement should be other than as set forth in the preceding sentence, such Party shall use its commercially reasonable efforts to contest such challenge.

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Section 10.27   Cooperation and General Knowledge Transfer. Except as provided in any Ancillary Agreement, during the 180 days following the Effective Time, each Party shall use commercially reasonable efforts to provide (the “Disclosing Party”) the other Party (the “Receiving Party”) with reasonable access to its employees in order to assist the Receiving Party with general institutional knowledge transfer and to reasonably respond to questions. Except as otherwise provided for in any Ancillary Agreement, such access, cooperation, and assistance will be provided as reasonably requested at no cost to the Receiving Party; provided, however, that if a Disclosing Party determines in its sole discretion that the Receiving Party’s requests are unreasonable and/or unduly burdensome, to the level of interfering with the Disclosing Party’s employees primary work duties, then the Disclosing Party may, by written notice, notify the Receiving Party that it intends to charge the Receiving Party for the Disclosing Party’s out-of-pocket expenses related to responding to the unreasonable and overly burdensome request. If the Parties are unable to mutually reach an agreement for the provision of such services to be charged and the amount to be so charged, then the Disclosing Party shall not be required to fulfill or respond to such request. This Section 10.27 is intended to apply to general knowledge regarding the operations and conduct of the Trinity Business and Arcosa Business; provided, however, that notwithstanding anything to the contrary contained in this Section 10.27, this Section 10.27 is not intended to address, and should not be interpreted to address, the matters specifically and expressly covered by the Ancillary Agreements, and the provision of services to be provided pursuant to such services as covered by such Ancillary Agreement shall be controlled by such Ancillary Agreement.

Section 10.28   No Reliance on Other Party. The Parties hereto represent to each other that this Agreement is entered into with full consideration of any and all rights which the Parties hereto may have. The Parties hereto have relied upon their own knowledge and judgment and have conducted such investigations they and their in-house counsel have deemed appropriate regarding this Agreement and the Ancillary Agreements and their rights in connection with this Agreement and the Ancillary Agreements. The Parties hereto are not relying upon any representations or statements made by any other Party, or any such other Party’s employees, agents, representatives or attorneys, regarding this Agreement, except to the extent such representations are expressly set forth or incorporated in this Agreement. The Parties hereto are not relying upon a legal duty, if one exists, on the part of any other Party (or any such other Party’s employees, agents, representatives or attorneys) to disclose any information in connection with the execution of this Agreement or its preparation, it being expressly understood that no Party hereto shall ever assert any failure to disclose information on the part of any other Party as a ground for challenging this Agreement or any provision hereof.

[Signature page follows. The remainder of this page is intentionally left blank.]

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the date first above written.

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