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EXHIBIT 10.19
TRANSWESTERN HOLDINGS LP
EMPLOYEE EQUITY COMPENSATION TRUST II
This Trust Agreement (this "Agreement") is made this 28th day of June,
2001 by and between TransWestern Holdings LP (the "Company"), TransWestern
Communications Company, Inc., the general partner of the Company (the "General
Partner"), and Xxxxxxxx X. Xxxxx, Xxxxxxx Xxxxxx and Xxxx Xxxxxxx (the foregoing
individuals being referred to herein individually as a "Trustee" and
collectively as the "Trustees"). Capitalized terms used but not otherwise
defined herein shall have the meanings assigned such terms in the Plan (as
defined below).
WHEREAS, the board of directors of the General Partner (the "Board") has
adopted the TransWestern Holdings LP Employee Equity Compensation Plan II, a
copy of which is attached hereto as Annex A (the "Plan"), for the benefit of its
current and future managers and such other key employees as the Plan Committee
determines should be participants in the Plan ("Plan Participants");
WHEREAS, the Company wishes to establish a trust (the "Trust") and to
contribute to the Trust assets to be held therein, subject to the claims of the
Company's creditors in the event the Company becomes Insolvent (as defined
below), until paid to Plan Participants and their beneficiaries or returned to
the Company in such manner and at such times as shall be specified herein; and
WHEREAS, it is the intention of the Company to make a contribution to
the Trust to provide itself with a source of funds to assist it in the meeting
of its liabilities under the Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and agree that
the Trust shall be comprised, held and disposed of as follows:
Section 1.Establishment of Trust.
(a) The Company hereby deposits with the Trustees 2,000 of its Class B
Partnership Units ("Partnership Units"; and together, with all dividends and
distributions paid with respect to such Partnership Units, and all proceeds of
the foregoing and including any assets contributed to the Trust after the date
hereof, the "Trust Assets"), which shall become the principal of the Trust to be
held, administered and disposed of by the Trustees as provided in this
Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which the Company is
the grantor, within the meaning of subpart E, part 1, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended (the "Code"), and
shall be construed accordingly.
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(d) The Plan does not constitute either a "defined contribution plan"
(as defined in Section 3(37) of the Employee Retirement Income Security Act of
1974 ("ERISA")), a "defined benefit plan" (as defined in Section 3(35) of ERISA)
or any other employee plan subject to any of the provisions of ERISA.
(e) The principal of the Trust, and any earnings thereon, shall be
recorded on the Company's books and records and used exclusively for the uses
and the purposes of Plan Participants and general creditors as herein set forth;
provided that, the foregoing notwithstanding, all or any portion of the proceeds
of the Trust Assets may, from time to time, be loaned to the Company to be used
for general corporate purposes. Plan Participants and their beneficiaries shall
have no preferred claim on, or any beneficial ownership interest in, any assets
of the Trust. Any rights created under the Plan and this Agreement shall be mere
unfunded and unsecured contractual rights of Plan Participants and their
beneficiaries against the Company, shall provide each Plan Participant merely
with a contingent right to receive future payments and do not represent direct
ownership interests in the Company. The Trust Assets will be subject to the
claims of the Company's general creditors under federal and state law in the
event the Company becomes Insolvent.
(f) The Company may, in its sole discretion and in accordance with the
Plan, make additional deposits of cash, Partnership Units or other property to
be held in trust with the Trustees to augment the principal to be held,
administered and disposed of by the Trustees as provided in this Agreement.
Neither the Trustees nor any Plan Participant or beneficiary shall have any
right to compel such additional deposits.
Section 2. Payments to Plan Participants and Their Beneficiaries.
(a) If at any time (whether on or prior to the date of termination of
the Plan (the "Termination Date")), the Plan Committee determines that a payment
should be made to Plan Participants under the Plan, then it shall deliver to the
Trustees a schedule (the "Payment Schedule") that indicates the amounts payable
in respect of each Plan Participant (and such Plan Participant's beneficiaries),
provides a formula or other instructions acceptable to the Trustees for
determining the amounts so payable, and indicates the time for payment of such
amounts. Except as otherwise provided herein, the Trustees shall make payments
to Plan Participants or their beneficiaries in accordance with such Payment
Schedule. The Trustees 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 payment of benefits pursuant to the terms of this Agreement and
shall pay amounts withheld to the appropriate taxing authorities or determine
that such amounts have been reported, withheld and paid by the Company in
accordance with the Plan.
(b) In the event of any dispute as to the entitlement of a Plan
Participant or such Plan Participant's beneficiaries to benefits under the Plan,
such dispute shall be resolved by the Plan Committee, or such other party as the
Company shall designate under the Plan, which resolution shall be final and
binding on all parties including all Plan Participants.
Section 3. Trustee Responsibility Regarding Payments to Trust
Beneficiary When Company is Insolvent.
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(a) The Trustees shall cease payment of benefits to Plan Participants
and their beneficiaries if the Company is Insolvent. The Company shall be
considered "Insolvent" for purposes of this Agreement if (i) the Company is
unable to pay its debts as they become due, (ii) the Company is a debtor in and
subject to a proceeding pending under the United States Bankruptcy Code or (iii)
payment of such benefits would cause a default or event of default under any
agreement to which the Company is bound relating to borrowed money.
(b) At all times during the continuance of this Trust, the principal and
income of the Trust shall be subject to claims of general creditors of the
Company under federal and state law as set forth below.
(i) The Board shall inform the Trustees in writing if the Company
becomes Insolvent. If a person claiming to be a creditor of the Company alleges
in writing to the Trustees that the Company has become Insolvent, the Trustees
shall determine whether the Company is Insolvent and, pending such
determination, the Trustees shall discontinue payment of benefits to Plan
Participants and their beneficiaries.
(ii) The Trustees shall have no duty to inquire as to whether the
Company is Insolvent unless the Trustees have (A) actual knowledge that the
Company is Insolvent or (B) received notice from the Company or a person
claiming to be a creditor of the Company alleging that the Company is Insolvent.
The Trustees may in all events rely on such evidence concerning whether the
Company is Insolvent as may be furnished to the Trustees and that provides the
Trustees with a reasonable basis for making a determination as to whether the
Company is Insolvent.
(iii) If at any time the Trustees have determined that the
Company is Insolvent, the Trustees shall discontinue payments to Plan
Participants and their beneficiaries and shall hold all Trust Assets for the
benefit of the Company's general creditors.
(iv) The Trustees shall resume the payments of benefits to Plan
Participants or their beneficiaries in accordance with Section 2 of this
Agreement only after the Trustees have determined that the Company is not
Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if the Trustees
discontinue the payment of benefits from the Trust pursuant to Section 3(b) of
this Agreement and subsequently resume such payments, the aggregate payments to
any Plan Participant following such discontinuance shall include the aggregate
amount of all payments due (if any) to such Plan Participant or his or her
beneficiaries under the terms of the Plan for the period of such discontinuance,
less the aggregate amount of any payments made to such Plan Participant or his
or her beneficiaries by the Company in lieu of the payments provided for
hereunder during any such period of discontinuance.
Section 4. Payments to the Company.
Except as provided in Sections 2, 3 and 12 of this Agreement (but
subject to the terms of the Plan), the Company shall have no right or power to
direct the Trustees to return to the Company or to divert to others any Trust
Assets before all payment of benefits have been made
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to any Plan Participant and his or her beneficiaries for which such Plan
Participant is eligible pursuant to the terms of this Agreement and the Plan.
Section 5. Investment Authority.
The Trustees may invest in securities (including Partnership Units or
rights to acquire Partnership Units) issued by the Company or others. All rights
associated with the Trust Assets shall be exercised by the Trustees or the
person designated by the Trustees, and shall in no event be exercisable by Plan
Participants. Notwithstanding any other provision of this Agreement, the Company
shall have the right at any time, and from time to time in its sole discretion,
to substitute assets of equal fair market value for all or any portion of the
Trust Assets. This right is exercisable by the Company in a nonfiduciary
capacity without the approval or consent of any person in a fiduciary capacity.
Section 6. Disposition of Income.
During the term of this Trust, all of the income received by the Trust,
net of expenses and taxes, to the extent not distributed, shall be accumulated
and reinvested.
Section 7. Accounting by Trustees.
The Trustees shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions required to be
made, including such specific record as shall be agreed upon in writing between
the Company and the Trustees.
Section 8. Responsibility of Trustees.
(a) The Trustees 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 that the Trustees
shall incur no liability to any person for any action taken pursuant to a
direction, request or approval given by the Company to the Trustees which is
contemplated by, and in conformity with, the terms of the Plan or this
Agreement. In the event of a dispute between the Company and another party, the
Trustees may apply to a court of competent jurisdiction to resolve the dispute.
(b) If the Trustees undertake or defend any litigation arising in
connection with this Agreement or the Trust created hereby, or otherwise incur
any costs or expenses in connection with this Agreement or the Trust, the
Company agrees to indemnify each Trustee against such Trustee's costs, expenses
and liabilities (including, without limitation, attorneys' fees and expenses
relating thereto and to be primarily liable for such payments), unless and to
the extent it is finally determined by a court of competent jurisdiction that
such costs, expenses and liabilities resulted solely from the gross negligence
or willful misconduct of such Trustee.
(c) The Trustees may consult with legal counsel (who may also be counsel
for the Company generally) with respect to any of their duties or obligations
hereunder.
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(d) The Trustees may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to assist them in
performing any of their duties or obligations hereunder.
(e) The Trustees shall have, without exclusion, all powers conferred on
trustees by applicable law, unless expressly provided otherwise herein.
(f) Notwithstanding any powers granted to the Trustees pursuant to this
Agreement or pursuant to applicable law, the Trustees 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 Code.
Section 9. Compensation and Expenses of Trustees.
Subject to Section 8(b), the Company shall pay all fees and expenses
incurred by the Trustees in connection with the Plan and this Agreement,
including costs of record-keeping, accounting and legal fees. No Trustee shall
be entitled to compensation for his services as a Trustee.
Section 10. Resignation and Removal of Trustees.
(a) The Board may, at any time with or without cause, remove a Trustee
by written notice to such Trustee, which removal shall be effective immediately
after delivery of such notice unless the Company and such Trustee agree
otherwise.
(b) In the event of the termination of employment by the Company or its
subsidiaries for any reason (with or without Cause) of any Trustee, such Trustee
shall cease to be a Trustee hereunder upon the effective date of such
termination.
(c) A Trustee may resign at any time by written notice to the Company,
which resignation shall be effective immediately after delivery of such notice
unless the Company and such Trustee agree otherwise.
(d) Upon removal or resignation of a Trustee pursuant to Section 10(a),
(b) or (c), the Company may, but shall not be required to, appoint a new Trustee
to replace such departing Trustee.
Section 11. Appointment of Successor Trustee.
(a) In the event of the appointment of a successor Trustee by the
Company, 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.
(b) 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
Sections 7 and 8 hereof. The successor
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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 he or she becomes a successor Trustee.
Section 12. Amendment or Termination.
(a) This Agreement may be amended by a written instrument executed by
the Trustees and the Company.
(b) The Termination Date will be determined by the Plan Committee in its
sole discretion. On the Termination Date, the Trustees shall be authorized by
the Plan Committee to, in its sole discretion, either return to the Company or
distribute to any Plan Participants (or their permitted heirs and estates
holding Awards) determined by the Plan Committee to be eligible for such
distribution the Partnership Units and other Trust Assets.
Section 13. Miscellaneous.
(a) Any provisions of this Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to the Plan Participants and their beneficiaries
under this 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 except to a Plan
Participant's permitted heirs and estate.
(c) This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware.
Section 14. Effective Date.
The effective date of this Agreement shall be June 28, 2001.
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ANNEX A
TRANSWESTERN HOLDINGS L.P.
EMPLOYEE EQUITY COMPENSATION PLAN II
Section 1. Purpose of the Employee Equity Compensation Plan.
The Board of Directors (the "Board") of TransWestern Communications
Company, Inc. (the "General Partner"), the general partner of TransWestern
Holdings L.P. (the "Company") on June 28, 2001 approved the adoption of this
TransWestern Holdings L.P. Employee Equity Compensation Plan II (the "Plan") and
formation of the TransWestern Holdings L.P. Employee Equity Compensation Trust
II (the "Trust"). The Plan is designed as an incentive compensation program to
provide selected members of management and other key employees the opportunity
to participate in the long-term profitability and equity appreciation of the
Company. The Plan is intended to (a) attract, retain and motivate key employees
and (b) provide incentive and reward for exceptional contribution to the
long-term success of the Company.
Section 2. Plan Administration.
The Plan will be administered by persons (such persons being referred to
herein individually as a "Committee Member," and collectively as the "Plan
Committee") appointed by the Board. The Plan Committee will serve at the
discretion of the Board, which has the right to remove at any time (with our
without cause) any individual appointed as a Committee Member and to appoint a
successor. The initial Plan Committee will be comprised of Xxxxxxxx X. Xxxxx,
Xxxxxxx Xxxxxx and Xxxx Xxxxxxx.
The Plan Committee will interpret the Plan, establish necessary
guidelines to further the purposes of the Plan, determine which employees of the
Company will become Participants (as defined below), determine the number of
Awards (as defined below) granted to each Participant, determine whether,
subject to Board approval, to increase the number of the Company's partnership
units (the "Partnership Units") available to be contributed to the Trust,
determine whether to increase the total number of Awards available under the
Plan, determine when to terminate the Plan and take any other action necessary
for the proper administration of the Plan. All acts of the Plan Committee will
be final and binding on all Participants.
Section 3. Trust Assets.
Up to 2,000 Partnership Units will be initially available to be
contributed to the Trust, all of which will be contributed to the Trust as of
June 28, 2001. All Partnership Units and all other assets held by the Trust are
referred to as "Trust Assets."
Section 4. Awards Under the Plan.
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The Plan Committee has initially established a total of 100,000 Awards
under the Plan ("Awards"). Awards under the Plan consist of the right to receive
distributions from the Trust on the terms, and subject to the conditions,
determined by the Plan Committee. The Awards (together with any Partnership
Units related to Forfeited Awards (as defined below) which are recontributed to
the Trust by the Company) may be granted from time to time by the Plan
Committee, in its sole discretion.
Each Award granted to an "eligible" (as determined by the Plan Committee
in its sole discretion) Participant will entitle such Participant to an equal
pro rata interest in any distributions made by the Trust (including, without
limitation, distributions made in connection with a sale of the Company or
similar liquidation event), subject to the terms and conditions as may be
prescribed by the Plan Committee in connection with the granting of any Awards
or the making of any distributions with respect thereto. The Plan Committee may
issue additional Awards to Participants only to the extent that the Company has
contributed (or recontributed) additional Partnership Units to the Trust, such
that no issuance of Awards will dilute any outstanding Awards previously granted
to any Participant.
Section 5. Participation.
The Plan Committee will designate from time to time in its sole
discretion members of management and other employees of the Company (other than
Committee Members) to participate in the Plan ("Participants"). Participants
selected to receive Awards in any year will be determined at the sole discretion
of the Plan Committee.
Upon termination of a Participant's employment with the Company for any
reason, whether voluntary or involuntary, such Participant will forfeit any and
all Awards ("Forfeited Awards") previously received by such Participant and all
other interests under the Plan unless otherwise agreed by the Plan Committee. In
the event of such forfeiture, Trust Assets related to such Participant's
Forfeited Awards will be contributed to the Trust, such Forfeited Awards shall
no longer be deemed outstanding Awards hereunder and such former employee shall
no longer be deemed a Participant for purposes of this Plan (unless such person
qualifies as an Exempt Participant). As used herein, "Exempt Participant" means
any Participant (i) whose employment with the Company terminates as a result of
such Participant's death or Disability (as defined below) and (ii) which the
Plan Committee determines (in its sole discretion) will be exempted from the
forfeiture provisions described above and will therefore be entitled to have
Awards become vested upon such termination. "Disability" means any physical or
mental incapacitation which results in a Participant's inability to perform such
Participant's duties and responsibilities to the Company for a total of 60
business days during any twelve-month period, as determined in good faith by the
Plan Committee.
Receipt of an Award by any Participant in any one year does not entitle
such Participant to receive an Award in any other year.
Section 6. Records and Statements.
The Plan Committee will maintain all records of the Plan and will cause
the granting and reservation of the Awards to be reflected on the Company's
financial statements.
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Section 7. Timing and Amounts of Distributions.
Subject to Section 13 hereof and Section 1(e) of the Trust, the Plan
Committee will in its sole discretion determine the amount of distributions from
the Trust (whether in cash or equity (including Partnership Units)) and the
timing of all such distributions; provided that Trust Assets (other than
Partnership Units or the right of the Plan to acquire Partnership Units) will be
distributed no later than the end of the 24-month period following the
contribution of such Trust Assets to the Trust. The Plan Committee will promptly
notify the Trustees of the Trust as to a decision to cause a distribution of
such Trust Assets to Participants and will direct Trustees to make distributions
within 30 days following such notice (each, a "Distribution Date").
Although distributions from the Trust will be made solely in the
discretion of the Plan Committee, it is the intent of the Plan Committee
generally to make distributions when cash is received by the Trust (including
upon a sale of the Company).
Subject to Section 13 hereof, all distributions to Participants and
Exempt Participants (or their estates) will be made pro rata based on the number
of Awards outstanding as of the applicable Distribution Date.
Awards held by Participants who are not full-time employees of the
Company on a Distribution Date or by Exempt Participants (or their estates) will
not be considered outstanding for any purposes whatsoever under the Plan and
such Participants will not be entitled to receive any distributions from the
Trust.
Section 8. Taxes.
Participants will have no income tax upon receipt of Awards. Any
distributions to Participants (including Exempt Participants) made by the Trust
will be taxable as ordinary income to the recipient and will be subject to
federal and state income tax withholding. The Company shall be entitled, if the
Plan Committee deems it necessary or desirable, to withhold from any Participant
(or secure payment from the Participant in lieu of withholding) the amount of
any withholding or other tax due from the Company with respect to any payment
due in connection with distributions under the Plan. The Company shall be
entitled to withhold either cash (from the salary of Participants) and/or shares
(with a market value equal to the amount of the required withholding).
Section 9. Non-Assignability.
The rights of each Participant (including Exempt Participants) under the
Plan are not transferable or assignable by such Participant (except to such
Participant's heirs or estate).
Section 10. Expenses.
The Company will pay all expenses incidental to operations of the Plan,
including the costs of record-keeping, accounting fees and legal fees incurred
pursuant to the Plan.
Section 11. Rights to Terminate Employment.
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Neither the adoption by the Company of, nor the participation of an
employee in, the Plan confers upon any employee the right to continue in the
employ of the Company or interferes in any way with the right of the Company to
terminate such employee's employment at any time, nor will it interfere in any
way with such employee's right to terminate his or her employment with the
Company at any time.
Section 12. Amendment to the Plan.
The Company may (without the consent of any Participant) amend the Plan
at any time to comply with applicable federal or state law or for any other
reason.
Section 13. Termination of Plan.
The Plan will terminate at such date (the "Termination Date") as
determined by the Plan Committee in its sole discretion. On the Termination
Date, the Plan Committee will authorize the Trustees (as defined in the Trust)
to either return to the Company or distribute to the Plan Participants (or
permitted heirs and estates holding a Plan Participant's Awards) all Partnership
Units and other Trust Assets.
Section 14. Unfunded Arrangement.
The benefits to be paid pursuant to the Plan are unfunded and unsecured
and will be payable solely from the assets of the Trust, and the Participants
have no interests in the assets of the Company, the Trust, or in any account
maintained by the Company for its own convenience by virtue of the Plan. No fund
or other assets will be set aside or segregated for the benefit of any
Participant, other than pursuant to the Trust. The Plan does not constitute and
is not intended to be a "defined contribution plan" (as defined in Section 3(37)
of the Employee Retirement Income Security Act of 1974 ("ERISA")), a "defined
benefit plan" (as defined in Section 3(35) of ERISA) or any other employee plan
subject to the provisions of ERISA. All Trust Assets and other assets of the
Trust will be subject to the claims of the Company's creditors in the event of
the occurrence of the Company's bankruptcy or insolvency until actually paid to
Participants. Awards granted under the Plan provide each Participant a
contingent right to receive future payments under the conditions set forth in
this Plan and do not represent direct ownership of interests in the Company.
Section 15. Governing Law.
The Plan and all rights and obligations hereunder will be construed and
enforced in accordance with the laws of the State of Delaware.
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