-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PTW3ONXzKaGtzugubOgiO9qNnM9hUI/UxywjwE+qtFjsGADWfzJO0lmg1oSVMxOp Qo+TTVtRwSsrQlRESqf3Pw== 0001010192-04-000024.txt : 20040528 0001010192-04-000024.hdr.sgml : 20040528 20040527180942 ACCESSION NUMBER: 0001010192-04-000024 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20040528 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KALOGRIS MICHAEL E CENTRAL INDEX KEY: 0001243613 FILING VALUES: FORM TYPE: SC 13D MAIL ADDRESS: STREET 1: 1100 CASSATT ROAD STREET 2: C/O TRITON PCS CITY: BERWYN STATE: PA ZIP: 19312 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TRITON PCS HOLDINGS INC CENTRAL INDEX KEY: 0001091973 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 232974475 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-58313 FILM NUMBER: 04836175 BUSINESS ADDRESS: STREET 1: 1100 CASSATT ROAD CITY: BERWYN STATE: PA ZIP: 19312 BUSINESS PHONE: 6106515900 MAIL ADDRESS: STREET 1: 1100 CASSATT ROAD CITY: BERWYN STATE: PA ZIP: 19312 SC 13D 1 triton13d.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Original Filing) Triton PCS Holdings, Inc. (Name of Issuer) Class A Common Stock, par value $0.01 per share (Title of Class of Securities) 89677M 10 6 (CUSIP Number) David D. Clark Triton PCS Holdings, Inc. 1100 Cassatt Road Berwyn, Pennsylvania 19312 (610) 651-5900 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) May 19, 2004 (Date of Event Which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. The information required in the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act, but shall be subject to all other provisions of the Act. - ------------ ------------------------------------------------------------------ 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Michael E. Kalogris - ------------ ------------------------------------------------------------------ - ------------ ------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) __ Not Applicable (b) __ - ------------ ------------------------------------------------------------------ - ------------ ------------------------------------------------------------------ 3 SEC USE ONLY - ------------ ------------------------------------------------------------------ - ------------ ------------------------------------------------------------------ 4 SOURCE OF FUNDS (See Instructions) SC - ------------ ------------------------------------------------------------------ - ------------ ------------------------------------------------------------------ 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) Not Applicable - ------------ ------------------------------------------------------------------ - ------------ ------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America - ------------ ------------------------------------------------------------------ - ----------------------------------- -------------- ---------------------------- 7 SOLE VOTING POWER 3,231,839 (*) (**) -------------- ---------------------------- NUMBER OF -------------- ---------------------------- SHARES 8 SHARED VOTING POWER BENEFICIALLY -0- OWNED BY -------------- ---------------------------- EACH -------------- ---------------------------- REPORTING 9 SOLE DISPOSITIVE POWER PERSON 3,168,662(*) WITH -------------- ---------------------------- -------------- ---------------------------- 10 SHARED DISPOSITIVE POWER 63,177 (**) - ----------------------------------- -------------- ---------------------------- - ------------ ------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,231,839 - ------------ ------------------------------------------------------------------ - ------------ ------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) Not Applicable - ------------ ------------------------------------------------------------------ - ------------ ------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.3%*** - ------------ ------------------------------------------------------------------ - ------------ ------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON (See Instructions) IN - ------------ ------------------------------------------------------------------ * Includes 682,500 shares that are subject to forfeiture. ** Includes 63,177 shares held under an amended and restated common stock trust agreement for management employees and independent directors, of which Mr. Kalogris is trustee. Mr. Kalogris disclaims beneficial ownership of the shares held by the trust. *** Based on the 60,831,300 shares of Class A Common Stock outstanding as of April 30, 2004, as stated on the facing page of the Form 10-Q of Triton PCS Holdings, Inc. for the fiscal quarter ended March 31, 2004. Item 1. Security and Issuer. This Schedule 13D relates to the Class A Common Stock, par value $0.01 per share (the "Common Stock"), of Triton PCS Holdings, Inc. (the "Issuer"). The Issuer's principal offices are located at 1100 Cassatt Road, Berwyn, Pennsylvania 19312. Item 2. Identity and Background. (a) Michael E. Kalogris (b) Business address: c/o Triton Management Company, Inc. 1100 Cassatt Road Berwyn, Pennsylvania 19312 (c) Mr. Kalogris is presently the Chairman of the Board of Directors and the Chief Executive Officer of Triton PCS Holdings, Inc. located at 1100 Cassatt Road, Berwyn, Pennsylvania 19312. (d) Mr. Kalogris has not, during the last five years, been convicted of a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) Mr. Kalogris has not, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding been subjected to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws upon the finding of any violation with respect to such laws. (f) Mr. Kalogris is a citizen of the United States of America. Item 3. Source and Amount of Funds or Other Consideration. On May 19, 2004, the Compensation Committee of the Issuer's Board of Directors approved an award of 227,500 shares of Common Stock to Mr. Kalogris under the Issuer's Amended and Restated Stock and Incentive Plan, which shares vest ratably over three years and are subject to forfeiture under an employment agreement. This award resulted in Mr. Kalogris holding shares of Common Stock that exceed 5% of the Issuer's outstanding Common Stock and required the filing of this Schedule 13D. Mr. Kalogris acquired his shares of Common Stock through a combination of: (i) purchases of shares in connection with the founding, formation and initial funding of the Issuer and its subsidiaries; (ii) limited open market purchases following the Issuer's initial public offering, (iii) the Issuer's Employee Stock Purchase Plan and (iv) awards of restricted stock. Mr. Kalogris used personal funds to purchase the shares of Common Stock described in clauses (i), (ii) and (iii). Item 4. Purpose of Transaction. The May 19, 2004 award to Mr. Kalogris and previous restricted stock grants were incentive compensation, and such shares are held for investment purposes. Open-market and other purchases of Common Stock also were made for investment purposes. Mr. Kalogris has no present plans or proposals that relate to or would result in any of the actions specified in clauses (a) through (j) of Item 4 of Schedule 13D. However, Mr. Kalogris reserves the right to propose or participate in future transactions which may result in one or more of such actions, including but not limited to, an extraordinary corporate transaction such as a merger, reorganization or liquidation, sale of a material amount of assets of the Issuer or its subsidiaries, or other transactions which might have the effect of causing the Issuer's Common Stock to cease to be listed on a national securities exchange or causing the Common Stock to become eligible for termination of registration, under Section 12(g) of the Exchange Act. Item 5. Interest in Securities of the Issuer. The aggregate number of shares of the Issuer's Common Stock beneficially owned by Mr. Kalogris is 3,231,839, which represents 5.3% of the issued and outstanding shares of the Issuer's Common Stock as of April 30, 2004. Mr. Kalogris has the power to vote 3,231,839 shares of the Issuer's Common Stock and the power to dispose of 3,168,662 shares of the Issuer's Common Stock. He may be deemed to share dispositive power with respect to 63,177 shares of the Issuer's Common Stock held in trust, but he disclaims beneficial ownership of all such shares. More specifically, as trustee, Mr. Kalogris has sole voting power with respect to the shares held by the trust. However, disposition of shares from the trust is accomplished by the Issuer delivering a distribution schedule to Mr. Kalogris, in his capacity as trustee, setting forth the recipients of shares held by the trust and the number of shares to be distributed from the trust in respect of each recipient. Mr. Kalogris, as Chairman of the Board and Chief Executive Officer of the Issuer, may be deemed to share dispositive power to the extent of his participation in determining the trust's distribution schedule. In May 2004, Mr. Kalogris sold 73,741 shares of Common Stock in the aggregate to satisfy certain tax obligations associated with the vesting of stock awards to Mr. Kalogris under the Issuer's Stock and Incentive Plan. No person other than Mr. Kalogris has the right to receive or the power to direct the receipt of dividends from or the proceeds from the sale of Common Stock owned beneficially by Mr. Kalogris. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. Employment Agreement. The Issuer has entered into an employment agreement with Mr. Kalogris which currently subjects shares beneficially owned by Mr. Kalogris to selling restrictions during the terms of such agreements. Mr. Kalogris' employment agreement is more particularly described in the Issuer's Definitive Proxy Statement for its 2004 Annual Meeting of Stockholders as filed with the Securities and Exchange Commission on April 7, 2004 (the "Proxy Statement"), which description is incorporated herein by reference and attached hereto as Exhibit 99.1. Common Stock Trust. Mr. Kalogris is currently serving as Trustee to an Amended and Restated Common Stock Trust Agreement for management employees and independent directors which grants Mr. Kalogris the authority to vote the 63,177 shares of Common Stock held by the trust. He may be deemed to share the power to dispose of the shares held under such trust agreement, as described in Item 4 above. A copy of the Amended and Restated Common Stock Trust Agreement is attached hereto as Exhibit 10.6. Stockholders Agreements. Mr. Kalogris is a party to the First Amended and Restated Stockholders Agreement dated October 27, 1999, as amended, by and among the Issuer and certain of its stockholders and the Investors Stockholders' Agreement, dated as of February 4, 1998, as amended, by and among the Issuer's initial cash equity investors and certain of its management stockholders. These agreements impose restrictions with respect to the sale, transfer or other disposition of the Issuer's capital stock held under the terms of the agreement. Subject to certain exceptions, stockholders holding shares of Common Stock may only transfer their shares of Common Stock after complying with certain first offer/first negotiation or tag along/drag along rights granted to specified parties to these stockholders' agreements. The stockholders' agreements are more particularly described in the Proxy Statement, which description is incorporated herein by reference and attached hereto as Exhibit 99.2. Item 7. Material to be Filed as Exhibits. 10.1 Employment Agreement, dated as of February 4, 1998, among Triton Management Company, Inc., Triton PCS Holdings, Inc. and Michael E. Kalogris (incorporated by reference to Exhibit 10.16 to the Form S-4 Registration Statement of Triton PCS, Inc. and its subsidiaries, File No. 333-57715). 10.2 Amendment No. 1 to Employment Agreement, dated as of June 29, 1998, among Triton Management Company, Inc., Triton PCS Holdings, Inc., and Michael E. Kalogris (incorporated by reference to Exhibit 10.16.1 to Amendment No. 1 to the Form S-4 Registration Statement of Triton PCS, Inc. and its subsidiaries, File No. 333-57715). 10.3 Amendment No. 2 to the Employment Agreement by and among Triton Management Company, Inc., Triton PCS Holdings, Inc. and Michael E. Kalogris, dated December, 1998 (incorporated by reference to Exhibit 10.39 to Post-Effective Amendment No. 2 to the Form S-4 Registration Statement of Triton PCS, Inc. and its subsidiaries, File No. 333-57715). 10.4 Amendment No. 3 to the Employment Agreement by and among Triton Management Company, Inc., Triton PCS Holdings, Inc. and Michael E. Kalogris, dated June 8, 1999 (incorporated by reference to Exhibit 10.40 to Post-Effective Amendment No. 2 to the Form S-4 Registration Statement of Triton PCS, Inc. and its subsidiaries, File No. 333-57715). 10.5 Letter Agreement, dated as of May 6, 2003, by and among Triton PCS Holdings, Inc., Triton Management Company, Inc. and Michael E. Kalogris (incorporated by reference to Exhibit 10.2 to the Form 10-Q/A, Amendment No. 1, of Triton PCS Holdings, Inc. for the quarter ended March 31, 2003). 10.6 Amended and Restated Common Stock Trust Agreement for Management Employees and Independent Directors, dated as of June 26, 1998, by and between Triton PCS Holdings, Inc. and Michael E. Kalogris. 99.1 Description of Employment Agreement, as amended. 99.2 Description of First Amended and Restated Stockholders Agreement dated October 27, 1999, as amended, by and among the Issuer and certain of its stockholders and the Investors Stockholders' Agreement, dated as of February 4, 1998, as amended, among the Issuer's initial cash equity investors and certain of its management stockholders. SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. May 27, 2004 By: /s/ Michael E. Kalogris - ------------------------- ----------------------------- Date Michael E. Kalogris EX-10 2 tritonex101.txt Exhibit 10.1 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 Michael E. Kalogris (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 I. 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. 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. 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 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 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 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 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 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 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 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. 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. 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 or Trustee shall be appointed, in accordance with Article 11 hereof, by the effective date of 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 successor Trustee in accordance with the provisions of Section 11.02 hereof 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 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 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 may appoint any third party, such as a bank Trust department or other party that may 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 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. 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, entry 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 or 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] 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/David D. Clark ------------------------------------- David D. Clark, Senior Vice President TRUSTEE: /s/Michael E. Kalogris ----------------------------------- Michael E. Kalogris EX-99 3 tritonex991.txt Exhibit 99.1 Description of Mr. Kalogris' Employment Agreement with the Triton PCS Holdings, Inc. (Excerpted from the Definitive Proxy Statement of Triton PCS Holdings, Inc. for its 2004 Annual Meeting of Stockholders) On February 4, 1998, Triton entered into an employment agreement for a five-year term with Michael E. Kalogris, Chairman of Triton's Board of Directors. On May 6, 2003, Mr. Kalogris' employment agreements was amended to extend the term of Mr. Kalogris' employment through February 3, 2006. The amended employment agreement also prohibits Mr. Kalogris, except in certain limited situations, from transferring his shares of Triton's Class A common stock during the three-year extended period. Upon executing their revised employment agreement, Mr. Kalogris received a bonus in the amount of $453,200. These bonus amounts are refundable in the event Mr. Kalogris' employment with Triton is terminated for cause or in the event of a resignation other than for good reason. Mr. Kalogris may terminate his employment agreement at any time at his sole discretion upon 30 days' prior written notice or immediately, upon written notice for good reason, which includes: (a) if there is a change of control, as defined in the employment agreement; (b) if he is demoted, removed or not re-elected as Chairman of Triton's Board of Directors. However, so long as Mr. Kalogris remains a member of Triton's Board of Directors and Triton's Chief Executive Officer, it is not considered good reason if Mr. Kalogris is no longer Chairman of Triton's Board of Directors; (c) there is a material diminishment of Mr. Kalogris' responsibilities, duties or status and that diminishment is not rescinded within 30 days after receiving written notice of the diminishment; (d) Triton fails to pay or provide benefits to Mr. Kalogris when due and does not cure that failure within 10 days of receiving written notice of that failure; (e) Triton relocates its principal offices more than 30 miles from its current headquarters without Mr. Kalogris' consent; or (f) Triton purports to terminate Mr. Kalogris for cause for any reason other than those permitted as for cause reasons under the employment agreement. Triton may terminate each employment agreement: (a) at any time, upon written notice, without cause at Triton's sole discretion; (b) for cause, as defined in the employment agreements; or (c) upon the death or disability of Mr. Kalogris. If Mr. Kalogris' employment is terminated on or after the initial term of the employment agreement or due to Triton's failure to renew the agreement, Triton will pay him a severance benefit in the amount of his base salary at that time. Mr. Kalogris' employment agreement provides for an initial annual base salary of $453,200, subject to annual increases at the discretion of the Compensation Committee of the Board of Directors, and an annual bonus in an amount up to 100% of his base salary based on Triton's performance. In the event of any change of control, regardless of whether Mr. Kalogris terminates his employment agreement, all of his previously unvested shares will vest immediately. EX-99 4 tritonex992.txt Exhibit 99.2 Description of First Amended and Restated Stockholders Agreement dated October 27, 1999, as amended, by and among the Issuer and certain of its stockholders and the Investors Stockholders' Agreement, dated as of February 4, 1998, as amended, among the Issuer's initial cash equity investors and certain of its management stockholders (Excerpted from the Definitive Proxy Statement of Triton PCS Holdings, Inc. for its 2004 Annual Meeting of Stockholders) General. Triton has entered into an amended and restated stockholders' agreement, dated as of October 27, 1999, with AT&T Wireless PCS LLC, which Triton refers to as AT&T Wireless PCS, its initial institutional investors, which Triton refers to as the cash equity investors, and certain of Triton's current and former executive officers. Additional management stockholders and the independent directors have also agreed to be bound by the provisions of the stockholders' agreement in connection with the issuance to them of Triton's capital stock. The agreement, as amended, covers matters in connection with Triton's management and operations and the sale, transfer or other disposition of Triton's capital stock. References to "stockholders" in this section mean stockholders who are party to the stockholders' agreement. Restrictions on Transfer; Rights of First Offer. The stockholders' agreement imposes restrictions with respect to the sale, transfer or other disposition of Triton's capital stock held under the terms of the agreement. Subject to certain exceptions, stockholders holding shares of common stock may only transfer their shares of common stock after complying with rights of first offer and first negotiation granted to specified parties to the stockholders' agreement. Additionally, holders of common stock and Series D preferred stock may transfer those shares at any time to an affiliated successor or an equity investor affiliate, and the cash equity investors may transfer or otherwise dispose of any of those shares held by them to any other cash equity investor. AT&T Wireless PCS may not transfer or dispose of any of its shares of Series D preferred stock at any time other than to an affiliated successor. In addition, each stockholder who is a party to the stockholders' agreement has agreed, subject to some exceptions, not to transfer or otherwise dispose of any shares of Triton's capital stock to any of the three largest carriers of telecommunications services that as of February 4, 1998 constituted interexchange services, other than AT&T Wireless PCS and other specified wireless carriers. Rights of Inclusion. In the event of a proposed sale by any stockholder to any person other than an affiliated successor that would constitute 25% or more of the aggregate outstanding Series C preferred stock and common stock on a fully-diluted basis, excluding the Series A preferred stock, the other stockholders have the right to participate in any such proposed sale by exercising such right within 30 days after receipt of a notice informing them of such proposed sale. The purchaser may either purchase all stock offered by all stockholders electing to participate in such sale, or the purchaser may purchase stock from stockholders electing to participate in such sale on a pro-rata basis up to the aggregate dollar amount offered by the purchaser to the initial selling stockholder. Investors Stockholders' Agreement. Pursuant to the investors stockholders' agreement, the cash equity investors have agreed that cash equity investors holding 66 2/3% or more of Triton's Class A common stock and Class B non-voting common stock held by the cash equity investors, in the aggregate, who propose to sell their shares of common stock may require the other cash equity investors to also participate in any such sale. As a result, such cash equity investors may have the effective right to sell control of Triton. -----END PRIVACY-ENHANCED MESSAGE-----