1
EXHIBIT 10.13
TRUST AGREEMENT
FOR
AIRTOUCH COMMUNICATIONS
DEFERRED COMPENSATION PLAN
(EFFECTIVE AS OF DECEMBER 1, 1994)
2
TABLE OF CONTENTS
Page
----
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................................... 12
Section 11. Appointment of Successor................................................ 13
Section 12. Amendment or Termination................................................ 14
Section 13. Miscellaneous........................................................... 15
Section 14. Effective Date.......................................................... 17
APPENDIX A .......................................................................... 18
i
3
TRUST AGREEMENT
FOR
AIRTOUCH COMMUNICATIONS
DEFERRED COMPENSATION PLAN
(EFFECTIVE AS OF DECEMBER 1, 1994)
This Trust Agreement is made as of the first day of December, 1995, by
and between AIRTOUCH COMMUNICATIONS, INC., a Delaware corporation ("ATC"), and
THE NORTHERN TRUST COMPANY, an Illinois corporation (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.
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 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
1
4
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 ($1,000.00), 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 the
Company. Any assets held by the Trust will be subject to the claims of the
Company's general creditors under federal and state law in the event of the
Company's Insolvency, as defined in Section 3(a) herein.
(e) For purposes of Sections 1(d) and 3, each Company shall be deemed to
have a pro rata interest in the Trust assets. A Company's pro rata interest
shall be equal to a fraction. The numerator of such fraction shall be equal to
that Company's contributions, adjusted for income, gains and losses thereon,
less payments and expenses of the Trust charged to that Company. The denominator
of such fraction shall be the total amount of Trust assets. ATC's determination
with respect to the pro rata interest of each Company shall be conclusive and
binding upon each Company. The money or other property attributable to the pro
rata interest of any Company shall not be available to satisfy the
2
5
claims of any other Company's creditors or the Plan participants employed by any
other Company or their beneficiaries. Sections 1(d) and 3 shall be applied
separately to each Company, its pro rata interest in Trust assets and the Plan
participants in its employ (or formerly in its employ). A Company's Insolvency
shall have no effect on any other Company, such other Company's pro rata
interest in Trust assets or the Plan participants in such other Company's employ
(or formerly in its employ).
(f) 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.
(g) For purposes of Section 1(f), 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. ATC shall give timely directions to
the Trustee with respect to the reporting, withholding and payment of taxes and
the Trustee shall not be required to report, withhold or pay taxes in the
absence of such directions.
(b) 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.
3
6
(c) 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 to make a payment then due under the Payment Schedule.
(d) This Section 2(d) shall apply only after the contribution described
in Section 1(f) has been made. In the event the Company makes payment of
benefits as permitted in Section 2(c), 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 the 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. The Trustee
need not act on such written allegation unless it has been made to the
trust department of the Trustee.
4
7
(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. In no event shall "actual knowledge" be deemed
to include knowledge of a Company's credit status held by banking
officers or banking employees of The Northern Trust Company or any other
knowledge which is not actually possessed by the trust department of the
Trustee. The Trustee may appoint an independent accounting firm to make
any determination of Insolvency required under this Section 3. In such
event, the Trustee may conclusively rely upon the determination of
Insolvency by such accounting firm and shall be responsible only for the
prudent selection of such accounting firm.
(3) If at any time the Trustee has determined that the 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. All payments by
the Trustee under this Section 3(c) shall be made in accordance with the Payment
Schedule, which shall be modified as necessary by ATC.
5
8
SECTION 4. PAYMENTS TO THE COMPANY.
Except as provided in Sections 3 and 12 hereof, a 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 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
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
6
9
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, in the event that a person other than ATC
has such investment responsibility, consistent with such investment guidelines
as may be communicated to it by ATC from time to time, 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. With respect to margin payments to brokers or
third-party safekeeping banks from the assets of a Directed Fund, the Trustee
shall make such payments, and enter into agreements with such brokers or
safekeeping banks, only as directed by the person or entity with investment
responsibility for the Directed Fund and shall have no responsibility for any
assets so transferred to such brokers or safekeeping banks, except as otherwise
provided by 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 of ATC, if it has investment responsibility for any such insurance
contract (subject to Section 8(h) hereof).
7
10
(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. 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.
(f) 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(f) and the provisions of Section 5(e),
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.
(g) 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.
(h) Except in the event of a Change of Control and for the 3-year period
following such Change of Control, 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 exercisable by ATC in a
non-fiduciary capacity without the approval or consent of any person in a
fiduciary capacity.
8
11
(i) The Trustee shall be under no duty or obligation to review or to
question any direction of any Company pursuant to Section 5(h), 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.
(j) 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.
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
9
12
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.
10
13
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 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 a 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 under this
Trust Agreement or anything omitted to be done in good faith, or alleged to have
been omitted, by or on behalf of the Trustee under this Trust Agreement.
(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 Trust assets are insufficient to make any payment
then due under the Payment Schedule and the Company has not notified the Trustee
pursuant to Section 2(d) that such payment will be or has been made directly by
the Company, then the Trustee shall bring an action or proceeding in a court of
competent jurisdiction against the Company to compel the Company to make such
payment. The Company hereby agrees to pay all reasonable attorneys' fees and
expenses that the Trustee anticipates will be incurred by it in bringing such a
cause of action, regardless of its outcome, and the Trustee may charge any such
fees and expenses not paid in advance by the Company
11
14
against the Trust. The Trustee shall be obligated to act under this Section 8(d)
only to the extent that all such fees and expenses are paid in advance by the
Company or from the Trust and shall in no event be required to advance any of
its own funds.
(e) The Trustee may consult with legal counsel (who may also be counsel
for a 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, with respect to any policies for which ATC has investment
responsibility, notwithstanding the provisions of Section 8(g) above, the
Trustee shall be obligated to follow the written 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.
12
15
(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.
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 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.
13
16
(b) The Trustee may be removed by ATC 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.
(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 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
14
17
transfer. The Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions whenever the Trustee is required
to appoint a successor under this Trust Agreement.
(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. 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(f), 5(f), 5(h), 8(d), 8(h), 8(j), 10(c), 10(d) and 12 of
this Trust Agreement may not be amended by ATC for 3 years following a Change of
Control, as defined herein.
15
18
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 New York.
(d) For purposes of this Trust Agreement, "Change of Control" shall mean
the occurrence of any of the following events:
(1) Both:
(A) Any "person" (as defined below) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended), directly or indirectly, of
securities of ATC representing at least 20 percent of the total
voting power represented by ATC's then outstanding voting
securities; and
(B) The beneficial ownership by such person of securities
representing such percentage has not been approved by a majority
of the "continuing directors" (as defined below); or
(2) Any "person" (as defined below) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended), directly or indirectly, of securities of ATC
representing at least 50 percent of the total voting power represented
by ATC's then outstanding voting securities; or
(3) A change in the composition of ATC's Board of Directors
occurs, as a result of which fewer than two-thirds of the incumbent
directors are directors (the "continuing directors") who either:
(A) Had been directors of ATC on the "look-back date" (as
defined below) (the "original directors"); or
16
19
(B) Were elected, or nominated for election, to such Board
with the affirmative votes of at least a majority of the
aggregate of the original directors who were still in office at
the time of the election or nomination and the directors whose
election or nomination was previously so approved; or
(4) The shareholders of ATC approve a merger or consolidation of
ATC with any other corporation, if such merger or consolidation would
result in the voting securities of ATC outstanding immediately prior
thereto representing (either by remaining outstanding or by being
converted into voting securities of the surviving entity) 50 percent or
less of the total voting power represented by the voting securities of
ATC or such surviving entity outstanding immediately after such merger
or consolidation; or
(5) The shareholders of ATC approve (A) a plan of complete
liquidation of ATC or (B) an agreement for the sale or disposition by
ATC of all or substantially all of ATC's assets.
For purposes of Paragraphs (1) and (2) above, the term "person" shall
have the same meaning as when used in sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended, but shall exclude (A) a trustee or other
fiduciary holding securities under an employee benefit plan of ATC or of a
parent or subsidiary of ATC and (B) a corporation owned directly or indirectly
by the shareholders of ATC in substantially the same proportions as their
ownership of the common stock of ATC.
For purposes of Paragraph (3) above, the term "look-back date" shall
mean the later of (A) April 1, 1994, or (B) the date 24 months prior to the date
of the event that may constitute a Change of Control.
Any other provision of this Subsection (d) notwithstanding, the term
"Change of Control" shall not include either of the following events, if
undertaken at the election of ATC:
(A) A transaction, the sole purpose of which is to change the
state of ATC's incorporation; or
(B) A transaction, the result of which is to sell all or
substantially all of the assets of ATC to another corporation (the
"surviving corporation"); provided that the surviving corporation is
owned directly or indirectly by the shareholders of ATC immediately
following such transaction in substantially the same proportions
17
20
as their ownership of ATC's common stock immediately preceding such
transaction; and provided, further, that the surviving corporation
expressly assumes this Trust Agreement.
The Chief Executive Officer of ATC shall notify the Trustee in writing
immediately upon a Change of Control. In the event that the Trustee receives
written notice from a Participant that a Change of Control has taken place, it
shall appoint a law firm or other third party ("Expert") to determine whether a
Change of Control has taken place. The Trustee may conclusively rely upon the
notice from the Chief Executive Officer of ATC or the determination of the
Expert but shall be responsible for the prudent selection of the Expert (if an
Expert has been appointed).
SECTION 14. EFFECTIVE DATE.
The effective date of this Trust Agreement shall be as of December 1,
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
---------------- ------------------------------------
Executive Vice President and
As Its: Chief Financial Officer
-----------------------------
THE NORTHERN TRUST COMPANY
Dated: 9/16/98 By: /s/ Xxx Xxxxxxx
---------------- ------------------------------------
As Its: Second Vice President
------------------------------------
18
21
APPENDIX A
EXECUTIVE BENEFIT PLANS
AirTouch Communications Deferred Compensation Plan
19
