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EXHIBIT 10.10
TRUST AGREEMENT
FOR
AIRTOUCH COMMUNICATIONS
EXECUTIVE BENEFITS
(SECOND AMENDMENT AND RESTATEMENT EFFECTIVE
AS OF OCTOBER 31, 1994)
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TABLE OF CONTENTS
Page
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Section 1. Establishment of Trust............................................... 2
Section 2. Payments to Plan Participants and Their Beneficiaries................ 3
Section 3. Trustee Responsibility Regarding Payments to Trust
Beneficiaries When a Company is Insolvent............................ 4
Section 4. Payments to the Company.............................................. 6
Section 5. Investment Authority................................................. 6
Section 6. Disposition of Income................................................ 9
Section 7. Accounting by Trustee................................................ 9
Section 8. Responsibilities and Authorities of the Trustee and Investment
Manager.............................................................. 10
Section 9. Compensation and Expenses of Trustee................................. 12
Section 10. Resignation or Removal of the Trustee................................ 13
Section 11. Appointment of Successor............................................. 13
Section 12. Amendment or Termination............................................. 14
Section 13. Miscellaneous........................................................ 15
Section 14. Effective Date....................................................... 16
APPENDIX A......................................................................... 17
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TRUST AGREEMENT
FOR
AIRTOUCH COMMUNICATIONS
EXECUTIVE BENEFITS
(SECOND AMENDMENT AND RESTATEMENT EFFECTIVE
AS OF OCTOBER 31, 1994)
This Trust Agreement is made as of the thirty-first day of October,
1994, by and between AirTouch Communications, Inc., a Delaware Corporation
("ATC"), and Xxxxx Fargo Bank, N.A (the "Trustee").
Any affiliate of ATC which participates in the executive compensation
plans subject to this Trust Agreement may become a party to this Trust Agreement
by indicating its acceptance, in writing, to ATC and the Trustee. The term
"Company" as used in this Trust Agreement shall include ATC and any affiliate of
ATC which participates in this Trust Agreement unless the context requires
otherwise. In the event of a merger, consolidation or liquidation of a Company
into or with any other corporation, or the sale or other transfer of all or
substantially all of a Company's operating assets, the resulting successor or
purchaser corporation shall automatically be substituted for such Company under
this Trust Agreement if such successor or purchaser corporation is an affiliate
of ATC, participates in any of the executive compensation plans related to this
Trust Agreement and indicates its agreement to participate in this Trust
Agreement in writing to ATC and the Trustee. A successor or purchaser
corporation that is not affiliated with ATC or does not choose to participate in
this Trust Agreement shall be known as a "Former Company." "Former Company" also
means a Company which is designated by ATC as a Former Company for purposes of
withdrawal by such Company from the Trust and disposition of the percentage
interest of such Company from the Trust.
WHEREAS, ATC has adopted the executive benefit plans listed in Appendix
A (the "Plans"); and
WHEREAS, ATC wishes to establish a trust (hereinafter called the
"Trust") and to contribute to the Trust assets that shall be held therein,
subject to the claims of the Company's creditors in the event of the Company's
Insolvency, as herein defined, until
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paid to Plan participants and their beneficiaries in such manner and at such
times as specified in the Plans; and
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plans
as unfunded plans maintained for the purpose of providing deferred compensation
for a select group of management or highly compensated employees for purposes of
Title I of the Employee Retirement Income Security Act of 1974; and
WHEREAS, it is the intention of the Company to make contributions to the
Trust to provide itself with a source of funds to assist it in the meeting of
its liabilities under the Plans;
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 Trustee in trust one thousand
dollars ($1000.00), which shall become the principal of the Trust to be held,
administered and disposed of by the Trustee as provided in this Trust 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 I, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
(d) The principal of the Trust and any 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 Plan participants and general creditors as herein
set forth. 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 Plans and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries against their
Company. Any
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assets held by the Trust will be subject to the claims of that Company's general
creditors under federal and state law in the event of that Company's Insolvency,
as defined in Section 3(a) herein.
(e) Upon a Change of Control, each Company shall, as soon as possible,
but in no event longer than 60 days following the Change of Control, as defined
herein, make an irrevocable contribution to the Trust in an amount that is
sufficient to pay each Plan participant or beneficiary the benefits to which
Plan participants or their beneficiaries would be entitled from such Company
pursuant to the terms of the Plans as of the date on which the Change of Control
occurred.
(f) For purposes of this Trust Agreement, each Company shall be deemed
to have a "percentage interest" in the Trust assets. The percentage interest
shall be equal to a fraction, the numerator of which shall equal that Company's
contributions and income thereon, less payments and expenses of the Trust
charged to that Company, and the denominator of which shall be the total amount
of Trust assets. The Trustee's determination with respect to the percentage
interest of each Company shall be conclusive and binding upon each Company. The
money or other property attributable to the percentage interest of any Company
shall not be available to satisfy the claims of any other Company's creditors or
the Plan participants of any other Company or their beneficiaries, unless such
Company consents to the use of the money or other property attributable to its
percentage interest in the Trust to pay the claims of the Plan participants of
another Company and their beneficiaries.
(g) Not later than 90 days following the end of each Plan year, each
Company shall be required to make an irrevocable contribution to the Trust in an
amount sufficient to pay each Plan participant or beneficiary the benefits to
which the Plan participant or beneficiary would be entitled from such Company
pursuant to the terms of the Plan as of the close of such Plan year. If a
Company fails to make such contribution for a Plan year, the principal and
income of the Trust shall in no event be used to pay any benefits to which Plan
participants or beneficiaries become entitled from such Company pursuant to the
terms of the Plans after the close of such Plan year until such contribution has
been made.
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(h) For purposes of Section 1(e) and Section 1(g), the amount of the
benefit to which a participant or beneficiary would be entitled as of the
specified date shall be determined by applying the terms of the applicable Plan
as if the participant's employment with the Company had terminated on such date.
SECTION 2. PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES.
(a) ATC shall deliver to the Trustee a schedule (the "Payment Schedule")
that indicates the amounts payable in respect of each Plan participant (and his
or her beneficiaries), that provides a formula or other instructions acceptable
to the Trustee for determining the amounts so payable, the form in which such
amount is to be paid (as provided for or available under the Plans) and the time
of commencement for payment of such amounts. Except as otherwise provided
herein, the Trustee shall make payments to the Plan participants and their
beneficiaries in accordance with such Payment 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 payment of benefits
pursuant to the terms of the Plans and shall pay amounts withheld to the
appropriate taxing authorities or determine that such amounts have been
reported, withheld and paid by the Company.
(b) Except in the event of a Change of Control and for the 3-year period
following such Change of Control, the Trustee may rely upon, and shall be under
no duty to verify, the formula and other instructions contained in the Payment
Schedule delivered to the Trustee by ATC in accordance with Section 2(a), and
may determine that 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 the
Plans have been reported, withheld and paid by the Company by receipt of a
certification to that effect from the Company.
(c) The entitlement of a Plan participant or his or her beneficiaries to
benefits under the Plans shall be determined by ATC or such party as it shall
designate under the Plans, and any claim for such benefits shall be considered
and reviewed under the procedures set out in the Plans.
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(d) The Company may make payment of benefits directly to Plan
participants or their beneficiaries as they become due under the terms of the
Plans. The Company shall notify the Trustee of its decision to make payment of
benefits directly prior to the time amounts are payable to participants or their
beneficiaries. In addition, if the principal of the Trust, and any earnings
thereon, are not sufficient to make payments of benefits in accordance with the
terms of the Plans, the Company shall make the balance of each such payment as
it falls due. The Trustee shall notify the Company where principal and earnings
are not sufficient.
(e) In the event the Company makes payment of benefits as permitted in
Section 2(d), the Company shall provide the Trustee with a schedule of all
benefits, and taxes attributable thereto, that have been paid by the Company
within 15 days after the end of the quarter in which such payments have been
made.
SECTION 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARIES WHEN
A COMPANY IS INSOLVENT.
(a) The Trustee shall cease payment of benefits to Plan participants and
their beneficiaries if their Company is Insolvent. A Company shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) the Company is unable to
pay its debts as they become due, or (ii) the Company is subject to a pending
proceeding as a debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, 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.
(1) The Board of Directors and the Chief Executive Officer of the
Company shall have the duty to inform the Trustee in writing of the
Company's Insolvency. If a person claiming to be a creditor of the
Company alleges in writing to the Trustee that the Company has become
Insolvent, the Trustee shall determine whether the Company is Insolvent
and, pending such determination, the Trustee shall discontinue payment
of benefits to the Plan participants or their beneficiaries.
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(2) Unless the Trustee has actual knowledge of a 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 in all events rely on such evidence concerning the Company's
solvency as may be furnished to the Trustee and that provides the
Trustee with a reasonable basis for making a determination concerning
the Company's solvency.
(3) If at any time the Trustee has determined that a Company is
Insolvent, the Trustee shall discontinue payments to Plan participants
or their beneficiaries 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 Plan participants or
their beneficiaries to pursue their rights as general creditors of the
Company with respect to benefits due under the Plans or otherwise.
(4) The Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Section 2 of this
Trust Agreement only after the Trustee has determined that the Company
is not Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant to Section 3(b)
hereof and subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plans for the period
of such discontinuance, less the aggregate amount of any payments made to Plan
participants or their beneficiaries by any Company in lieu of the payments
provided for hereunder during any such period of discontinuance.
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SECTION 4. PAYMENTS TO THE COMPANY.
Except as provided in Sections 3 and 12 hereof, no Company shall have
the right or power to direct the Trustee to return to the Company or to divert
to others any of the Trust assets before all payments of benefits have been made
to Plan participants and their beneficiaries pursuant to the terms of the Plans.
SECTION 5. INVESTMENT AUTHORITY.
(a) ATC may appoint an individual or organization to invest and reinvest
assets of the Trust (an "Investment Manager"). ATC shall notify the Trustee of
the appointment of any Investment Manager and identify the Trust assets
allocated to such Investment Manager for purposes of investment and
reinvestment. The terms and conditions of appointment, authority and retention
shall be the sole responsibility of ATC. ATC shall cause each Investment Manager
to furnish the Trustee with the names and signatures of those persons authorized
to direct the Trustee on its behalf. The Trustee shall have the right to assume,
in the absence of written notice to the contrary, that no event constituting a
change in the authority of any such person has occurred. ATC may also direct the
Trustee to divide the assets of the Trust into separate parts for investment
purposes and shall have the power, from time to time, to modify or terminate any
existing investment arrangement as it shall deem appropriate.
(b) The Trust shall be invested and reinvested without distinction
between income and principal. ATC may allocate and reallocate investment
responsibility with respect to any assets of the Trust among ATC, any Investment
Manager and the Trustee. Any such allocations shall be made by ATC in a written
instrument delivered to the Trustee and, if appropriate, the affected Investment
Manager, and shall continue in force and effect until revoked by ATC in a
writing delivered to the Trustee. Any Investment Manager acting hereunder shall
have sole authority and responsibility for the management, investment and
reinvestment of the Trust assets allocated to such Investment Manager. The
portion of the Trust over which ATC or an Investment Manager shall have
investment responsibility is hereinafter referred to as a "Directed Fund." The
Trustee shall be under no duty or obligation to review or to question any
direction of ATC or an Investment Manager, or to review securities or any other
property held in any Directed Fund with respect to prudence or proper
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diversification or compliance with any limitation on the Investment Manager's
authority under the terms of any agreement entered into between ATC and the
Investment Manager or imposed by applicable law, or to make any suggestions or
recommendations to ATC or an Investment Manager with respect to the retention or
investment of any assets of any Directed Fund, and shall have no authority to
take any action or to refrain from taking any action with respect to any asset
of a Directed Fund unless and until it is directed to do so by ATC or an
Investment Manager.
(c) The assets of this Trust may be invested and reinvested in such
personal property investments and insurance and annuity contracts as the
individual or organization having investment responsibility, in its sole
discretion, may deem appropriate and consistent with the investment directions
communicated by ATC, including without limiting the generality of the foregoing:
common and preferred stocks; trusts and participation certificates; bonds;
debentures; covered call options; notes secured by personal property;
obligations of governmental bodies, both domestic and foreign; notes, commercial
paper and other evidences of indebtedness, secured or unsecured, including
variable amount notes; convertible securities of all types and kinds; mutual
fund shares; interest-bearing savings or deposit accounts with any
federally-insured bank (including the Trustee) or savings and loan association;
contracts for the immediate or future delivery of financial instruments of any
issuer or of any other property; all forms of options in any combination;
investments commonly known as "synthetic securities" or "derivative securities"
(including, without limitation, investments referred to as asset swaps,
collateralized asset swaps, equity swaps, fixed income swaps, "pure" and
"participating" synthetic securities, and similar arrangements as may now exist
or may be developed in the future); and any other personal property permitted as
investments under applicable law. The Trustee shall not be responsible under
this Agreement, or otherwise, in any way for the form, terms, payment provisions
or issuer of any insurance contract which it is directed to purchase and/or hold
as contractholder, or for performing any functions under any such insurance
contract (other than the execution of documents incidental thereto and the
transfer or receipt of funds thereunder), on the directions of an Investment
Manager or, except in the event of a Change of Control and for the 3-year period
following such Change of Control, on the directions of ATC.
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(d) The assets of this Trust may be invested and reinvested in such
forms of collective investments as may be consistent with the investment
policies developed and communicated by ATC to the Trustee or the appropriate
Investment Manager. To the extent that the Trust is invested in a common or
collective trust, the terms of the agreement or declaration of trust
establishing such common or collective trust fund shall become a part of this
Trust as if set forth in full herein, to the extent of the allocable share of
the Trust therein.
(e) The Trustee may invest in securities (including stock or rights to
acquire stock) or obligations issued by ATC.
(f) The Trustee may acquire securities issued by ATC directly from ATC
or from any third party, in such manner and upon such terms as the Trustee deems
appropriate and advisable in the Trustee's sole discretion. There shall be no
limitation on the amount or percentage of Trust assets that may be held in the
form of ATC securities. To the extent the Trustee is directed by ATC or an
Investment Manager to invest in ATC securities, the Trustee shall have no duty
or obligation to sell any portion of the assets of the Trust invested in ATC
securities for the purpose of establishing a mixed, balanced or diversified
portfolio of investments and the Trustee shall not be liable for any loss
attributable to the investment of Trust assets in ATC securities.
(g) All rights associated with assets of the Trust shall be exercised by
the Trustee or the person designated by the Trustee, and shall in no event be
exercisable by or rest with Plan participants, except that voting rights with
respect to ATC securities will be exercised by ATC.
(h) To the extent any assets of the Trust are held in a Directed Fund,
the Trustee shall exercise the rights associated with such assets only as
directed by ATC or an Investment Manager, as the case may be. Notwithstanding
the preceding sentence of this Section 5(h) and the provisions of Section 5(g),
in the event of a Change of Control and for the 3-year period following such
Change of Control, the Trustee shall exercise voting rights with respect to ATC
securities.
(i) ATC 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 any asset
held by the Trust. This right is
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exercisable by ATC in a non-fiduciary capacity without the approval or consent
of any person in a fiduciary capacity.
(j) Except in the event of a Change of Control and for the 3-year period
following such Change of Control, the Trustee shall be under no duty or
obligation to review or to question any direction of any Company pursuant to
Section 5(i), or to review securities so substituted or any other property so
held with respect to prudence or proper diversification, or to make any
suggestions or recommendations to such Company with respect to the retention or
investment of any such substituted assets and shall have no authority to take
any action with respect to such substituted assets unless and until it is
directed to do so by ATC.
(k) The Trustee shall have the following discretionary powers and
authority in the investment of the Trust with respect to the assets of the Trust
under its management and control and, with respect to a Directed Fund, ATC or
the Investment Manager, as the case may be, shall exercise such powers and
authority:
(1) to purchase, sell, exchange, convey, transfer or otherwise
acquire or dispose of any property, by private contract or at public
auction; and
(2) to give general or special proxies or powers of attorney with
or without power of substitution; to exercise any conversion privileges,
subscription rights or other options and to make any payments incidental
thereto; to consent to or otherwise participate in corporate
reorganizations or other changes affecting corporate securities and to
delegate discretionary powers and pay any assessments or charges in
connection therewith; and generally to exercise any of the powers of an
owner with respect to securities or other property held in the Trust;
and
(3) to make, execute, acknowledge and deliver any and all
documents of transfer and conveyance and any and all other instruments
that may be necessary or appropriate to carry out the powers herein
granted.
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SECTION 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.
SECTION 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 records as shall be necessary to determine each Company's
percentage interest in the Trust and such other specific records as shall be
agreed upon in writing between ATC and the Trustee. The Trustee shall submit to
ATC and each Company such interim valuations, reports or other information as
ATC and the Trustee shall mutually agree. 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 ATC a written account of its
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 effected
by it, 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. ATC shall review each such
accounting provided by the Trustee and within a reasonable period shall advise
the Trustee in writing of any corrections or specific objections to any
transaction reported; provided, however, that nothing in the preceding clause
shall prevent ATC from advising the Trustee of any corrections later discovered
to be necessary for accurate Trust records and accounting.
SECTION 8. RESPONSIBILITIES AND AUTHORITIES OF THE TRUSTEE AND INVESTMENT
MANAGER.
(a) The Trustee and each Investment Manager appointed pursuant to
Section 5 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
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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 written direction, request or approval
given by the Company or an Investment Manager which is contemplated by, and in
conformity with, the terms of this Trust Agreement or anything omitted to be
done in the absence of such direction, request or approval with respect to a
Directed Fund, except that any liability of the Trustee for fraud, gross
negligence or willful misconduct shall continue. In the event of a dispute
between a Company and any party, including any other Company respecting assets
in the Trust, the Trustee may apply to a court of competent jurisdiction to
resolve the dispute.
(b) In the absence of fraud, gross negligence or misconduct on the part
of the Trustee, ATC hereby agrees to indemnify the Trustee for, and hold it
harmless against, any and all liabilities, losses, claims, damages, actions,
costs and expenses (including reasonable counsel fees) which may be incurred by
or assessed against it as a direct or indirect result of anything done in good
faith, or alleged to have been done, by or on behalf of the Trustee, in reliance
upon the written directions of ATC, a Company or an Investment Manager appointed
by ATC, or anything omitted to be done in good faith, or alleged to have been
omitted, in the absence of such directions.
(c) If the Trustee undertakes or defends any litigation arising in
connection with this Trust, ATC 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 ATC does not pay such costs, expenses and liabilities in a
reasonably timely manner, the Trustee may charge such expenses against the
Trust.
(d) If at any time the Trustee determines (as a result of notice from
the participants or beneficiaries or otherwise) that the Trust assets and
earnings thereon are insufficient to make benefit payments to participants or
beneficiaries that have become due, and if the Trustee has no reasonable
expectation that the Trustee will be able within 30 days to cause all past due
Plan benefits to be paid from Trust assets, and no reasonable expectation that
the Company responsible for such past due benefits will within 30 days cause all
past due Plan benefit payments to be made, and no reasonable expectation that
all past
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due Plan benefit payments will within 30 days be paid by a combination of
Company payments and payments from Trust assets, the Trustee shall bring an
action or proceeding in a court of competent jurisdiction against the Company
responsible for such past due benefit payments under the Plan to compel such
responsible Company to make contributions to the Trust as necessary to enable
the Trustee to pay all past due Plan benefits and to make Plan benefit payments
as they become due. The Trustee shall determine whether benefit payments are
past due with reference to the provisions for payment set forth in Section 2
hereof. The Trustee shall also be authorized to apply to a court of competent
jurisdiction for direction at any time it determines (as a result of notice from
the participants or beneficiaries or otherwise) that it has insufficient
information to determine the amounts of benefit payments that would be
consistent with the provisions of the Plans. The Company hereby agrees to pay
all attorneys' fees and expenses incurred by the Trustee in bringing such a
cause of action regardless of its outcome. If the Company does not pay such
attorney's fees and expenses in a reasonably timely manner, the Trustee may
charge such payment against the Trust.
(e) The Trustee may consult with legal counsel (who may also be counsel
for any Company generally) with respect to any of its duties or obligations
hereunder.
(f) The Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder. If the Company does not
pay the fees of such professionals in a reasonably timely manner, the Trustee
may charge such payment against the Trust.
(g) The Trustee shall have, without exclusion, all powers conferred on
trustees by applicable law, unless expressly provided otherwise herein,
provided, however, that if an insurance policy is held as an asset of the Trust,
the Trustee shall have no power to name a beneficiary of the policy other than
the Trust, to assign the policy (as distinct from conversion of the policy to a
different form) other than to a successor Trustee, or to loan to any person the
proceeds of any borrowing against such policy.
(h) However, notwithstanding the provisions of Section 8(g) above, the
Trustee shall be obligated to follow the written
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directions of ATC with respect to (1) the payment of premiums for life insurance
policies held as an asset of the Trust, (2) the borrowing of part or all of the
cash value, or increase in cash value, of any life insurance policy held as an
asset of the Trust, and (3) except in the event of a Change of Control and for
the 3-year period following such Change of Control, the lending to the Company
of the proceeds of any borrowing against an insurance policy held as an asset of
the Trust.
(i) The Trustee may register any securities held in the Trust in its own
name or in the name of a nominee and hold any securities in bearer form, and
combine certificates representing such securities with securities of the same
issue held by the Trustee in other fiduciary or representative capacities or as
agents for customers, or deposit or arrange for the deposit of such securities
in any qualified central depository even though when so deposited, such
securities may be merged and held in bulk in the name of the nominee of such
depository with other securities deposited therein by other depositors, or
deposit or arrange for the deposit of any securities issued by the United States
Government, or any agency or instrumentality thereof, with a Federal Reserve
Bank, but the books and records of the Trustee shall at all times show that all
such investments are part of the Trust Fund.
(j) With the consent of ATC, the Trustee may compromise, compound,
submit to arbitration or settle any debt or obligation owing to or from or
otherwise adjust all claims in favor of or against the Trust. In the event of a
Change of Control and for the 3-year period following such Change of Control,
the Trustee may exercise the powers set forth in this Section 8(j) with or
without the consent of ATC.
(k) Notwithstanding any powers granted to the Trustee pursuant to this
Trust Agreement or 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.
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SECTION 9. COMPENSATION AND EXPENSES OF TRUSTEE.
The Trustee shall be entitled to reasonable compensation for its
services and shall be reimbursed for all reasonable expenses incurred by it in
performing its duties hereunder including, but not limited to, legal and
accounting expenses. Such compensation shall be set forth in a separate
schedule. Such schedule may be modified from time to time as agreed by ATC, or
its successor, and the Trustee. All such compensation and expenses shall be paid
by the Company; provided, however, that such compensation and expenses shall
constitute a charge upon the Trust, and may be withdrawn by the Trustee from the
Trust upon prior written notice to the Company if not otherwise paid by the
Company within 60 days of such prior written notice. Upon written direction to
the Trustee from a Company, any costs or expenses that are chargeable to the
Trust but which for administrative convenience and efficiency are paid or
incurred by a Company shall be fully reimbursed by the Trust to that Company
upon presentation to the Trustee of a copy of the invoice of the service
provider and a certification by the Company that the invoice has been paid, or,
if services are provided by a Company, upon presentation to the Trustee of an
accounting of such costs and expenses incurred with respect to such services,
including any costs and expenses incurred by a Company in connection with
administrative activities for the Plans. In all cases the Trustee shall be
entitled to rely on the Company's statements and directions concerning the
payment of any such expenses and shall be fully protected in making such
payments pursuant to the directions of the Company.
SECTION 10. RESIGNATION OR REMOVAL OF THE TRUSTEE.
(a) The Trustee may resign at any time by written notice to ATC, which
shall be effective 60 days after receipt of such notice unless ATC and the
Trustee agree otherwise.
(b) The Trustee may be removed by ATC, or its successor, on 60 days
notice or upon shorter notice accepted by the Trustee.
(c) Upon a Change of Control, as defined herein, the Trustee may not be
removed by ATC for 3 years.
(d) If the Trustee resigns within 3 years after a Change of Control, as
defined herein, the Trustee shall select a successor Trustee in accordance with
the provisions of Section 11(b) hereof prior to the effective date of the
Trustee's resignation.
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(e) 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 90 days after receipt of the
notice of resignation, removal or transfer, unless ATC extends the time limit.
(f) If the Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 11 hereof, by the effective date of
resignation or removal under paragraphs (a) or (b) of this section. If no such
appointment has been made, the Trustee may apply to a court of competent
jurisdiction for appointment of a successor or for instructions. All expenses of
the Trustee in connection with the proceeding shall be allowed as administrative
expenses of the Trust.
SECTION 11. APPOINTMENT OF SUCCESSOR.
(a) If the Trustee resigns or is removed in accordance with Section
10(a) or (b) hereof, ATC, or its successor may appoint a bank trust department
or other party that may be granted corporate trustee powers under state law, as
a successor Trustee to replace Trustee upon resignation or removal. The
appointment of a successor Trustee shall be effective when accepted in writing
by the new 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 ATC or the
successor Trustee to evidence the transfer.
(b) If the Trustee resigns pursuant to the provisions of Section 10(d)
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 new Trustee. The new Trustee shall
have all 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 successor Trustee to evidence the transfer.
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(c) Upon the appointment of any successor Trustee pursuant to this
Section 11 and acceptance of the appointment by such successor Trustee, the
Trustee shall have no responsibility to the Trust for the acts of such successor
Trustee. In addition, the Trustee shall have no responsibility for assets of the
Trust or for acts taken with respect to assets of the Trust following their
transfer to such successor Trustee.
SECTION 12. AMENDMENT OR TERMINATION.
(a) This Trust Agreement may be amended by a written instrument executed
by the Trustee and ATC, or its successor. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of the Plans or shall make the Trust
revocable after it has become irrevocable in accordance with Section 1(b)
hereof.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits pursuant
to the terms of the Plans. Upon termination of the Trust any assets remaining in
the Trust shall be returned to the Company.
(c) Notwithstanding any other provision of this Trust, upon written
approval of two-thirds (2/3) of the Participants entitled to payment of benefits
pursuant to the terms of the Plans, ATC may terminate this Trust prior to the
time all benefit payments under the Plans have been made.
(d) Upon termination of the Trust pursuant to Section 12(b) or Section
12(c), at the direction of ATC all assets in the Trust at termination shall be
returned to the Companies in proportion to their respective percentage
interests.
(e) Notwithstanding any other provision of this Trust, in the event that
a Company becomes a Former Company, the Trustee shall follow the written
directions of ATC with respect to the disposition of such Former Company's
percentage interest in the Trust.
(f) Sections 1(e), 1(g), 2(b), 5(c), 5(h), 5(j), 8(d), 8(h), 8(j),
10(c), 10(d) and 12 of this Trust Agreement may not be amended by ATC, or its
successor, for 3 years following a Change of Control, as defined herein.
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SECTION 13. MISCELLANEOUS.
(a) Any provisions of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries 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.
(c) This Trust Agreement shall be governed by and construed in
accordance with the laws of the State of California.
(d) For purposes of this Trust Agreement, "Change of Control" shall have
the meaning of the term "Change in Control" that is set forth in the AirTouch
Communications, Inc. 1993 Long-Term Stock Incentive Plan or its successor.
(e) The provisions of this Trust Agreement are binding upon ATC (and any
Company and Former Company) and any successor or purchaser corporation.
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SECTION 14. EFFECTIVE DATE.
The effective date of this Trust Agreement shall be October 31, 1994.
ATC and the Trustee have caused this Trust Agreement to be executed by
their respective duly authorized officers on the dates set forth below:
AIRTOUCH COMMUNICATIONS, INC.
Dated: 12/29/98 By: /s/ XXXXX X. XXXXX
--------------- ---------------------------------
As Its: Executive Vice President
and Chief Financial Officer
XXXXX FARGO BANK, N.A.
Dated: 12/29/98 By: /s/ XXXXXXX X. XXXX
--------------- ---------------------------------
As Its: Assistant Vice President
and Trust Officer
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APPENDIX A
EXECUTIVE BENEFIT PLANS
AirTouch Communications Supplemental Executive Pension Plan
AirTouch Communications Estate Deferral Program
(effective as of December 11, 1997)
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