EXHIBIT 10.19
TRITON PCS HOLDINGS, INC.
AMENDED AND RESTATED COMMON STOCK TRUST AGREEMENT
FOR MANAGEMENT EMPLOYEES AND INDEPENDENT DIRECTORS
This Amended and Restated Common Stock Trust Agreement for Management
Employees and Independent Directors ("Trust Agreement") is made this 26th day of
June 1998, by and between Triton PCS Holdings, Inc., a Delaware corporation
(the "Company"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the "Trustee"):
WHEREAS, pursuant to that certain Common Stock Trust Agreement for
Management Employees (the "Original Trust Agreement") dated February 4, 1998 by
and between the Company and Trustee, the parties created a Trust ("Trust")
pursuant to which the Company deposited with the Trustee shares of the Company's
common stock to be held by the Trustee, subject to the claims of the Company's
creditors in the event of the Company's "insolvency," as herein defined, until
distributed from the Trust;
WHEREAS, it was the intention of the parties to create and maintain a
reserve of common stock, and that such Trust constitute an unfunded arrangement
maintained for the purpose of providing ownership in the Company for a select
group of management employees ("Management Employees"); and
WHEREAS, in addition to the Management Employees, the parties desire to
also provide ownership in the Company for those persons that the Company desires
to attract and retain to serve as Independent Directors pursuant to and in
accordance with the terms of the Company's Independent Director Stock Award Plan
effective as of February 4, 1998; and
WHEREAS, it is the intention of the parties to amend and restate the
Original Trust Agreement in order to amend and modify the terms, conditions and
covenants of the Original Trust Agreement, as more particularly set forth
herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, the parties, intending to be legally bound, do
hereby amend and restate the Original Trust Agreement in its entirety and agree
that the Trust shall be comprised, held and disposed of as follows:
Article 1. ESTABLISHMENT OF TRUST
1.01 The Company hereby deposits with Trustee in Trust 41,994.71 shares of
the Company's common stock, par value $0.01 per share, which is the current
equivalent of approximately 21.4% the Company's outstanding common stock, which
shall become the
principal of the Trust to be held, administered and disposed of by Trustee as
provided in this Trust Agreement.
1.02 The Trust hereby established shall be revocable by the Company;
provided, however, that the Trust shall become irrevocable upon a change of
control, as defined in Section 13.04.
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1.03 This Trust is intended to be a grantor Trust, of which the Company is
the grantor, within the meaning of Section 671 of the Internal Revenue Code of
1986, as amended, and shall be construed accordingly.
1.04 The principal of the Trust, and any dividends or earnings thereon
shall be held separate and apart from other funds of the Company and shall be
used exclusively for the uses and purposes of compensating Management Employees
and Independent Directors (collectively, "Qualified Participants") and general
creditors as herein set forth. No employee or director shall have a preferred
claim on, or beneficial ownership interest in, any assets of the Trust. Any
rights created under this Trust Agreement shall be unsecured contractual rights
of a Qualified Participant against the Company based on written agreement
between the Company and such Qualified Participant. Any assets held by the Trust
shall be subject to the claims of the Company's general creditors under federal
and state law in the event of "insolvency," as defined in Section 3.01 herein.
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1.05 Within 60 days following the end of the calendar year ending after the
Trust has become irrevocable pursuant to Section 1.02 hereof, the Company shall
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be required to irrevocably deposit additional shares of common stock of the
Company to the Trust in an amount sufficient to pay each Qualified Participant
the benefits payable pursuant to the terms of any written agreement reached
between such Qualified Participant and the Company as of the close of the
calendar year.
Article 2. DISTRIBUTIONS FROM TRUST
2.01 The Company shall deliver to Trustee a schedule (the
"Distribution Schedule") that indicates the number of shares to be distributed
in respect of each Qualified Participant or his or her beneficiaries, that
provides a formula or other instructions acceptable to the Trustee for
determining the shares distributable, the form in which such benefit is to be
distributed, and the time of distribution. Except as otherwise provided herein,
Trustee shall make distributions to a Qualified Participant or his or her
beneficiaries in accordance with such Distribution Schedule. The Trustee shall
make provision for the reporting and withholding of any federal, state or local
taxes that may be required to be withheld with respect to the distribution of
benefits pursuant to the terms of any written agreement between the Company and
the Qualified Participant and shall pay amounts withheld to the appropriate
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taxing authorities or determine that such amounts have been reported, withheld
and paid by the Company.
2.02 The entitlement of a Qualified Participant or his or her beneficiaries
to benefits under this Trust shall be determined by the Company or such party as
it shall designate, and any claim for such benefits shall be considered and
reviewed under the procedures set out in the written agreement between the
Company and such Qualified Participant.
2.03 The Company may distribute benefits directly to the Qualified
Participant (or beneficiaries) as benefits become due under the terms of the
written agreement between the Company and Qualified Participant. The Company
shall notify the Trustee to distribute benefits directly to the Qualified
Participant prior to the time benefits are due. In addition, if the principal
of the Trust, and any dividends or earnings thereon, are insufficient for
payment of benefits, in accordance with the terms of the written agreement
between the Company and the Qualified Participant, the Company shall supplement
the balance of each such payment as it falls due. The Trustee shall notify the
Company if principal and dividends or earnings are insufficient to make the
required distribution of benefits following receipt of the Company's notice to
distribute benefits.
Article 3. INSOLVENCY OF THE COMPANY.
3.01 The Trustee shall cease distributions of benefits to Qualified
Participants and their beneficiaries if the Company becomes "insolvent."
"Insolvent" means, for purposes this Trust Agreement, that the Company is: (a)
unable to pay its debts as the debts become due, or (b) subject to a pending
proceeding as a debtor under the United States Bankruptcy Code.
3.02 At all times during the continuance of this Trust, as provided in
Section 1.04 hereof, the principal and income of the Trust shall be subject to
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the claims of general creditors of the Company under federal and state law as
set forth below.
(a) The Board of Directors of the Company shall have the duty to
inform the Trustee in writing of the Company's "insolvency". If any person
claiming to be a creditor of the Company alleges in writing to the Trustee that
the Company has become "insolvent", the Trustee shall conduct the appropriate
inquiries to determine whether the Company is "insolvent" and pending such
determination, the Trustee shall discontinue any and all distributions from the
Trust.
(b) Unless the Trustee has actual knowledge of the Company's
"insolvency", or has received notice from the Company or a person claiming to be
a creditor alleging that the Company is "insolvent", the Trustee shall have no
duty to inquire whether the Company
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is "insolvent". The Trustee may, at all times, rely on such evidence
concerning the Company's solvency.
(c) If, at any time, the Trustee determines that the Company is
"insolvent", the Trustee shall discontinue distributions from the Trust and
shall hold the assets of the Trust for the benefit of the Company's general
creditors. Nothing in this Trust Agreement shall in any way diminish any rights
of a Qualified Participant (or his or her beneficiaries) to pursue their rights
as general creditors of the Company with respect to benefits due under this
Trust or otherwise.
(d) The Trustee shall resume distribution of benefits in accordance
with Article 2 of this Trust Agreement only after the Trustee determines that
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the Company is "insolvent" (or is no longer "insolvent").
3.03 Provided that there are sufficient assets, if the Trustee discontinues
the distribution of benefits from the Trust pursuant to Section 3.02 hereof, and
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subsequently resumes such distributions, the first distribution following such
discontinuance shall include the aggregate amount of all distributions due to
the Qualified Participant (or his or her beneficiaries) under the terms of the
written agreement between the Company and Qualified Participant for the period
of such discontinuance, less the aggregate amount of any payments or transfers
of common stock made to the Qualified Participant (or his or her beneficiaries)
by the Company in lieu of the payments provided for hereunder during any such
period of discontinuance.
Article 4. PAYMENTS TO COMPANY.
Except as provided in Article 3 hereof, upon the Trust's becoming
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irrevocable, the Company shall have no right or power to direct the Trustee to
return to the Company, or to divert to others, any of the Trust assets before
all required distributions of benefits have been made to Qualified Participants
(or their beneficiaries) pursuant to the terms of any written agreements between
the Company and the Qualified Participants.
Article 5. INVESTMENT AUTHORITY.
The Trustee may invest in securities (including stock or rights to acquire
stock) or obligations issued by the Company. All rights associated with assets
of the Trust shall be exercised by the Trustee or the Trustee's delegate, and
shall in no event be exercisable by or rest with the Qualified Participant,
except to the extent any Qualified Participant is appointed Trustee or delegate
of the Trustee.
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Article 6. DISPOSITION OF INCOME.
During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested in the common stock of
the Company.
Article 7. ACCOUNTING BY TRUSTEE.
The Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon in writing between the
Company and the Trustee. Within 60 days following the close of each calendar
year, and within 60 days after the removal or resignation of the Trustee, the
Trustee shall deliver to the Company a written account of his administration of
the Trust during such year or during the period from the close of the last
preceding year to the date of such removal or resignation, setting forth all
investments, receipts, disbursements and other transactions occurring during
such period, including a description of all securities and investments purchased
and sold with the cost or net proceeds of such purchases or sales (accrued
interest paid or receivable being shown separately), and showing all cash,
securities and other property held in the Trust at the end of such year or as of
the date of such removal or resignation, as the case may be.
Article 8. RESPONSIBILITY OF TRUSTEE.
8.01 The Trustee shall act with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent person acting
in like capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims; provided, however, that the
Trustee shall incur no liability to any person for any action taken pursuant to
a direction, request or approval given by the Company that is contemplated by,
and in conformity with the terms of any written agreement between the Company
and a Qualified Participant or this Trust and is given in writing by the
Company. In the event of a dispute between the Company and a party, the Trustee
may apply to a court of competent jurisdiction to resolve the dispute.
8.02 If the Trustee undertakes or defends any litigation arising in
connection with this Trust, the Company agrees to indemnify the Trustee against
the Trustee's costs, expenses and liabilities (including, without limitation,
attorneys' fees and expenses) relating thereto and to be primarily liable for
such payments. If the Company does not pay such costs, expenses and liabilities
in a reasonably timely manner, the Trustee may obtain payment from the Trust ,
to the extent that the Trust maintains any cash assets as a result of dividends
or other earnings paid on the common stock in Trust.
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8.03 The Trustee may consult with legal counsel (who may also be counsel
for the Company generally) with respect to any of his duties or obligations
hereunder.
8.04 The Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to assist him in
performing any of the duties or obligations hereunder.
8.05 The Trustee shall have, without exclusion, all powers conferred
on trustees by applicable law, unless expressly provided otherwise herein.
8.06 Notwithstanding any powers granted to the Trustee pursuant to this
Trust Agreement or pursuant to applicable law, the Trustee shall not have any
power that could give this Trust the objective of carrying on a business and
dividing the gains therefrom, within the meaning of Section 301.7701-2 of the
Procedure and Administrative Regulations promulgated pursuant to the Internal
Revenue Code.
Article 9. COMPENSATION AND EXPENSES OF TRUSTEE.
The Company shall pay all administrative expenses associated with the
implementation, maintenance and operation of the Trust and all Trustee's fees
and expenses.
Article 10. RESIGNATION AND REMOVAL OF TRUSTEE.
10.01 The Trustee may resign at any time by written notice to the
Company, which shall be effective 30 days following receipt of such notice
unless the Company and the Trustee agree otherwise.
10.02 The Trustee may be removed by the Company on 30 days notice or
upon shorter notice accepted by the Trustee.
10.03 If the Trustee resigns or is removed, a successor Trustee shall
be appointed, in accordance with Article 11 hereof, by the effective date of
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resignation or removal. If the Trustee resigns or is removed within one year of
a change of control, as defined in Section 13.04, the Trustee shall select a
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successor Trustee in accordance with the provisions of Section 11.02 hereof
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prior to the effective date of the Trustee's resignation or removal. If no such
appointment has been made, the Trustee may apply to a court of competent
jurisdiction for appointment of a successor Trustee or for instructions for
appointment of a successor Trustee. All expenses of the Trustee in connection
with the proceeding shall be paid by the Company.
10.04 Upon resignation or removal of the Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the successor
Trustee. The transfer
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shall be completed within 30 days after receipt of notice of resignation,
removal or transfer. The Company may extend the time limit for transfer of
assets, however, in the event of resignation of the Trustee.
Article 11. APPOINTMENT OF SUCCESSOR TRUSTEE.
11.01 If the Trustee resigns or is removed, other than within the time
period provided in Section 10.03 hereof, the Company may appoint any third
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party, such as a bank Trust department or other party that may be granted
corporate Trustee powers under state law, as a Successor Trustee to replace the
Trustee upon resignation or removal. The appointment shall be effective when
accepted in writing by the Successor Trustee, who shall have all of the rights
and powers of the former Trustee, including ownership rights in the Trust
assets. The former Trustee shall execute any instrument necessary or reasonably
requested by the Company or the Successor Trustee to evidence the transfer.
11.02 If the Trustee resigns or is removed within the time period
provided in Section 10.03 hereof and selects a Successor Trustee, the Trustee
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may appoint any third party, such as a bank Trust department or other party
that my be granted corporate Trustee powers under state law. The appointment of
a Successor Trustee shall be effective when accepted in writing by the Successor
Trustee. The Successor Trustee shall have all the rights and powers of the
former Trustee, including ownership rights in Trust assets. The former Trustee
shall execute any instrument necessary or reasonably requested by the Successor
Trustee to evidence the transfer.
11.03 The Successor Trustee need not examine the records and acts of
any prior Trustee and may retain or dispose of existing Trust assets, subject to
Articles 7 and 8 hereof. The Successor Trustee shall not be responsible for and
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the Company shall indemnify and defend the Successor Trustee from any claim or
liability resulting from any action or inaction of any prior Trustee or from any
other past event, or any condition existing at the time it becomes Successor
Trustee.
Article 12. AMENDMENT OR TERMINATION.
12.01 This Trust Agreement may be amended by a written instrument
executed by the Trustee and the Company. Notwithstanding the foregoing, no such
amendment shall: (a) take effect less than one year following any change of
control; (b) conflict with the terms of any written agreement between the
Company and a Qualified Participant; or (c) shall make the Trust revocable after
it has become irrevocable in accordance with Section 1.02 hereof.
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12.02 The Trust shall not terminate until all Qualified Participants
and their beneficiaries are no longer entitled to benefits pursuant to the terms
of their written agreements with the Company. Upon termination of the Trust any
assets remaining in the Trust shall be returned to the Company.
12.03 Upon written approval of all Qualified Participants entitled to
distribution of benefits under this Trust, pursuant to the terms of their
written agreements with the Company, the Company may terminate this Trust prior
to the time all distributions have been made. All assets in the Trust at
termination shall be returned to the Company.
Article 13. MISCELLANEOUS.
13.01 Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
13.02 Benefits payable under this Trust Agreement may not be
anticipated, assigned (either at law or in equity), alienated, pledged,
encumbered or subjected to attachment, garnishment, levy, execution or other
legal or equitable process insofar as the Qualified Participant or his or her
beneficiaries are concerned.
13.03 This Trust Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
13.04 For purposes of this Trust, "change of control" shall mean the
purchase or other acquisition by any person, entity or group of persons, within
the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934
("Act"), or any comparable successor provisions, or beneficial ownership within
the meaning of Rule 13d-3 promulgate under the stock or the combined voting
power of the Company's then outstanding voting securities entitled to vote
generally, or the approval by the stockholders of the Company of a
reorganization, merger, or consolidation, in each case, with respect to which
persons who were stockholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own more
than 50 percent of the combined voting power entitled to vote generally in the
election of directors of the reorganized, merged or consolidated Company's then
outstanding securities, or a liquidation or dissolution of Company or of the
sale of all or substantially all of the Company's assets.
[SIGNATURES CONTAINED ON THE NEXT PAGE]
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IN WITNESS WHEREOF, the Company and Trustee have executed this Trust Agreement
as of the date first above written.
TRITON PCS HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President
TRUSTEE:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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