Registration No. 333-32743
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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AERIAL COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
Delaware 39-1706857
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
8410 West Bryn Mawr Avenue, Suite 1100
Chicago, Illinois 60631
(Address of Principal Executive Offices) (Zip Code)
Aerial Operating Company, Inc.
Tax-Deferred Savings Plan
(Full title of the plan)
Donald W. Warkentin
President
Aerial Communications, Inc.
8410 West Bryn Mawr, Suite 1100
Chicago, Illinois 60631
(Name and address of agent for service)
(773) 399-4200
(Telephone number, including
area code, of agent for service)
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EXPLANATORY NOTE
Aerial Communications, Inc. (the "Company") previously registered 300,000
Common Shares, $1.00 par value, ("Common Shares") and interests which may be
issued pursuant to the Telephone and Data Systems, Inc. ("TDS") Tax-Deferred
Savings Plan ("TDS Plan"), pursuant to a Registration Statement on Form S-8 (No.
333-32743).
On September 17, 1999, VoiceStream Wireless Corporation ("VoiceStream"),
VoiceStream Wireless Holding Corporation ("VoiceStream Holdings"), a Delaware
subsidiary of VoiceStream Holdings ("Sub"), the Company and TDS entered into an
Agreement and Plan of Reorganization ("Reorganization Agreement") pursuant to
which Sub will be merged with and into the Company (the "Reorganization"). In
connection with the Reorganization, TDS and the Company entered into an
agreement providing that, among other things, the Company would establish its
own Tax-Deferred Savings Plan and would cease to participate in the TDS Plan as
of January 1, 2000. As a result, the Company's operating subsidiary, Aerial
Operating Company, Inc., has adopted the Aerial Operating Company, Inc. Tax
Deferred Savings Plan (the "Aerial Plan"). All interests in the TDS Tax-Deferred
Savings Plan held by eligible employees of the Company as of January 1, 2000
will be transferred from the TDS Plan to the Aerial Plan. The Registration
Statement as amended by this Post-Effective Amendment No. 1 covers the unissued
Common Shares and interests previously registered under Registration Statement
No. 333-32743. The Common Shares and interests will be issued under the Aerial
Plan rather than the TDS Plan as of January 1, 2000.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
-----------------
Item 2. Registration Information and Employee Plan Annual Information.*
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* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance
with Rule 428 under the 1933 Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
----------------------------------------
The following documents which have heretofore been filed by the Company
with the Securities and Exchange Commission (the "Commission") pursuant to the
1934 Act, are incorporated by reference herein and shall be deemed to be a part
hereof:
1. The Company's Annual Report on Form 10-K for the year ended December 31,
1998.
2. The Company's Quarterly Report on Form 10-Q for the quarters ended March
31, June 30 and September 30, 1999.
3. The Company's Current Report on Form 8-K, filed on September 28, 1999.
4. The description of the Common Shares, par value $1.00 per share, of the
Company contained in the Company's Registration Statement on Form 8-A, as filed
with the Commission on April 19, 1996.
<PAGE>
All documents, subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act,
prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and made a part hereof from their
respective dates of filing (such documents, and the documents enumerated above,
being hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed Incorporated Document modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
-------------------------
See Item 3.
Item 5. Interests of Named Experts and Counsel.
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Certain legal matters relating to the securities registered
hereby have been addressed by Sidley & Austin, Bank One Plaza, 10 South Dearborn
Street, Chicago, Illinois 60603. The Company is controlled by TDS which is
controlled by a voting trust. Walter C.D. Carlson, a trustee and beneficiary of
such voting trust and a director of TDS, the Company and certain other
subsidiaries of the TDS, Michael G. Hron, the General Counsel and Assistant
Secretary of TDS, and the Secretary or Assistant Secretary of the Company and
certain other subsidiaries of TDS, William S. DeCarlo, an Assistant Secretary of
TDS, the Company and certain other subsidiaries of TDS, Stephen P. Fitzell, the
Secretary or Assistant Secretary of certain subsidiaries of TDS, and Sherry S.
Treston, an Assistant Secretary of certain subsidiaries of TDS, are partners of
Sidley & Austin.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Article XI of the Company's Restated Certificate of
Incorporation provides for the indemnification of directors and officers of the
Company to the fullest extent authorized by the Delaware General Corporation Law
("DGCL"). Section 145 of the DGCL empowers a Delaware corporation to indemnify
any persons who are, or are threatened to be made, parties to any threatened,
pending or completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person was an officer or director
of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such officer or
director acted in good faith in a manner he reasonably believed to be in or not
opposed to the corporation's best interests, and, for criminal proceedings, had
no reasonable cause to believe his conduct was illegal. A Delaware corporation
may indemnify officers and directors in an action by or in the right of the
corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation in the performance of his duty. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses which
such officer or director actually and reasonably incurred. The Company's
Restated Certificate of Incorporation states that the right to indemnification
conferred in Article XI thereof is a contract right and includes the right to be
paid by the corporation the expenses incurred in defending proceedings covered
by Article XI in advance of their final disposition; provided, however, that, if
the DGCL requires, the payment of such expenses in advance of the final
disposition of a proceeding shall be made only upon delivery to the Company of
an undertaking, by or on behalf of an indemnified director or officer, to repay
all amounts so advanced if it shall ultimately be determined that such director
or officer is not entitled to be indemnified under Article XI or otherwise.
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In accordance with Section 102(b)(7) of the DGCL, the
Company's Restated Certificate of Incorporation also provides that directors
shall not be personally liable for monetary damages for breaches of their
fiduciary duty as directors except for (i) breaches of their duty of loyalty to
the Company or its stockholders, (ii) acts or omissions not in good faith or
which involve intentional misconduct or knowing violations of law, (iii) certain
transactions under Section 174 of the DGCL (unlawful payment of dividends or
unlawful stock purchases or redemptions) or (iv) transactions from which a
director derives an improper personal benefit. The effect of the provision is to
eliminate the personal liability of directors for monetary damages for actions
involving a breach of their fiduciary duty of care, including any actions
involving gross negligence.
The Company has directors' and officers' liability insurance
which provides, subject to certain policy limits, deductible amounts and
exclusions, coverage for all persons who have been, are or may in the future be,
directors or officers of the Company, against amounts which such persons must
pay resulting from claims against them by reason of their being such directors
or officers during the policy period for certain breaches of duty, omissions or
other acts done or wrongfully attempted or alleged. Such policies provide
coverage to certain situations where the Company cannot directly provide
indemnification under DGCL.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
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The exhibits accompanying this Registration Statement are
listed on the accompanying Exhibit Index. The plan is intended to be qualified
under Section 401(a) of the Internal Revenue Code. The registrant hereby
undertakes that it has submitted or will submit the Plan and any amendment
thereto to the Internal Revenue Service ("IRS") in a timely manner, and has made
or will make all changes required by the IRS in order to qualify the plan.
Item 9. Undertakings.
------------
The Company hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(a) To include any prospectus required by Section 10(a)(3) of the
1933 Act;
(b) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
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(c) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs 1.(a) and 1.(b) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant
to Section 13 or Section 15(d) of the 1934 Act that are incorporated by
reference in the Registration Statement.
2. That, for the purpose of determining any liability under the 1933 Act, each
such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
3. To remove from registration by means of a post-effective amendment any of
the securities being registered hereby which remain unsold at the
termination of the offering.
4. That, for the purposes of determining any liability under the 1933 Act,
each filing of the Company's Annual Report pursuant to Section 13(a) or
Section 15(d) of the 1934 Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the 1934
Act) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering hereof.
5. That, insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the 1933 Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Company will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the 1933 Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this Post-
effective Amendment to the Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois, on the 23rd day of December, 1999.
AERIAL COMMUNICATIONS, INC.
By: /s/ LeRoy T. Carlson, Jr.
-------------------------
LeRoy T. Carlson, Jr.
Chairman
POWER OF ATTORNEY AND SIGNATURES
The undersigned officers and directors of Aerial
Communications, Inc. hereby severally constitute and appoint LeRoy T. Carlson,
Jr. and Donald W. Warkentin, and each of them, our true and lawful
attorneys-in-fact and agents, with full power of substitution, to sign for us in
our names in the capacities indicated below, all amendments to this
Post-effective Amendment to the Registration Statement, and generally to do all
things in our names and on our behalf in such capacities to enable Aerial
Communications, Inc. to comply with the provisions of the Securities Act of
1933, as amended, and all requirements of the Securities and Exchange Commission
in connection with this Post- effective Amendment to the Registration Statement.
Pursuant to the requirements of the Securities Act of 1933,
this Post-effective Amendment to the Registration Statement has been signed by
the following persons in the capacities indicated and on the 23rd day of
December, 1999.
Signature Title
--------- -----
/s/ LeRoy T. Carlson, Jr. Chairman and Director
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LeRoy T. Carlson, Jr.
/s/ Donald W. Warkentin President and Chief Executive Officer
- ------------------------------- (Principal Executive Officer) and Director
Donald W. Warkentin
/s/ J. Clarke Smith Vice President-Finance and Administration
- ------------------------------- and Chief Financial Officer (Principal
J. Clarke Smith Financial Officer), Treasurer and Director
/s/ LeRoy T. Carlson* Director
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LeRoy T. Carlson
/s/ Sandra L. Helton* Director
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Sandra L. Helton
/s/ Rudolph E. Hornacek* Director
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Rudolph E. Hornacek
/s/ James Barr III* Director
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James Barr III
Page 1 of 2 Signature Pages to Form S-8
Re: Aerial Tax Deferred Savings Plan
<PAGE>
/s/ Walter C.D. Carlson* Director
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Walter C.D. Carlson
/s/ Thomas W. Wilson, Jr.* Director
- -------------------------------
Thomas W. Wilson, Jr.
/s/ John D. Foster* Director
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John D. Foster
/s/ Matti Makkonen* Director
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Matti Makkonen
/s/ Pertti Miettunen* Director
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Pertti Miettunen
/s/ B. Scott Dailey Controller (Principal Accounting Officer)
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B. Scott Dailey
*By /s/ LeRoy T. Carlson, Jr.
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LeRoy T. Carlson, Jr.
Attorney-in-Fact
*By /s/ Donald W. Warkentin
- -------------------------------
Donald W. Warkentin
Attorney-in-Fact
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois, on the 23rd day of December, 1999.
AERIAL OPERATING COMPANY, INC.
TAX-DEFERRED SAVINGS PLAN AND TRUST
By: AERIAL OPERATING COMPANY, INC.,
as plan administrator
By: /s/ Donald W. Warkentin
------------------------------
Name: Donald W. Warkentin
Title: President
Page 2 of 2 Signature Pages to Form S-8
Re: Aerial Tax Deferred Savings Plan
<PAGE>
EXHIBIT INDEX
The following documents are filed herewith or incorporated herein by
reference.
Exhibit
No. Description
- ------ -----------
4.1 Restated Certificate of Incorporation of the Company, as
amended, is hereby incorporated herein by reference to Exhibit
3.1 to the Company's Form 10-Q for the quarter ended June 30,
1997.
4.2 Bylaws of the Company is hereby incorporated herein by
reference to Exhibit 3.2 to the Company's Form 10-K for the
year ended December 31, 1998.
4.3 Aerial Communications, Inc. Tax-Deferred Savings Plan.
4.4 Aerial Communications, Inc. Tax-Deferred Savings Trust.
5 Opinion of Counsel (previously filed with original
registration statement).
23.1 Consent of Independent Public Accountants.
23.2 Consent of Counsel (contained in Exhibit 5).
24 Powers of Attorney (included on signature page).
<PAGE>
EXHIBIT 4.3
Tax-Deferred Savings Plan
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AERIAL OPERATING COMPANY, INC.
TAX-DEFERRED SAVINGS PLAN
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January 1, 2000
<PAGE>
AERIAL OPERATING COMPANY, INC.
------------------------------
TAX-DEFERRED SAVINGS PLAN
-------------------------
PAGE
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ARTICLE 1. ESTABLISHMENT AND FIDUCIARIES................................4
1.1 Establishment of Plan and Trust..............................4
1.2 Appointment of Fiduciaries of Plan...........................4
1.3 Delegation of Fiduciary Responsibility.......................4
ARTICLE 2. DEFINITIONS..................................................5
ARTICLE 3. PARTICIPATION AND SERVICE CREDIT............................12
3.1 Participation...............................................12
3.2 Year of Vesting Service.....................................14
3.3 Employment By the Company and an Affiliate or Related
Entity....................................................14
3.4 Vesting Service Under the TDS Plan, Amended Plans and
Plans Previously
Maintained by an Employer...................................15
3.5 Leased Employees............................................15
3.6 Reemployment of Veterans....................................16
ARTICLE 4. CONTRIBUTIONS AND VALUATION.................................17
4.1 Company Contributions.......................................17
4.2 Salary Reduction Contributions..............................18
4.3 Matching Employer Contributions.............................20
4.4 Coordination Between Sections 4.2 and 4.3...................21
4.5 Refund of Excess Contributions..............................22
4.6 Voluntary Employee Contributions............................24
ARTICLE 5. COMPUTATION OF BENEFITS.....................................24
5.1 Maintenance of Accounts.....................................24
5.2 Allocation of Plan Expenses.................................24
5.3 Allocation of Trust Income..................................24
5.4 Allocation of Salary Reduction Contributions................24
5.5 Allocation of Employer Contributions, Forfeitures
and Matching Employer Contributions.......................25
5.6 Priority of Allocations.....................................25
5.7 Limitation on Allocations...................................26
5.8 Establishment of Designated Funds...........................27
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PAGE
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5.9 Employee Direction of Investments...........................28
5.10 Fund Allocations............................................29
5.11 Duration of Investment Election.............................29
ARTICLE 6. PAYMENT OF BENEFITS.........................................29
6.1 Retirement..................................................29
6.2 Disability..................................................29
6.3 Death.......................................................30
6.4 Other Termination of Service................................30
6.5 Payment of Benefits.........................................31
6.6 Designation of Beneficiary..................................33
6.7 Location of Employee or Beneficiary Unknown.................34
6.8 Distribution After Age 59-1/2...............................35
6.9 Hardship Withdrawal.........................................34
6.10 Plan Loans..................................................36
ARTICLE 7. TRANSFER OF BENEFITS........................................37
7.1 Transfer of Benefits........................................37
7.2 Acceptance of Transferred Benefits..........................37
ARTICLE 8. ADMINISTRATION OF THE PLAN..................................37
8.1 Plan Administrator..........................................37
8.2 Claim for Benefits..........................................38
ARTICLE 9. ADMINISTRATION OF THE TRUST.................................39
ARTICLE 10. AMENDMENT OR TERMINATION OF THE PLAN AND ADOPTION OF
THE PLAN BY OTHER EMPLOYERS..........................................40
10.1 Right to Amend or Terminate.................................40
10.2 Effect of Termination.......................................40
10.3 Adoption of the Plan by Affiliate or Related Entity.........40
10.4 Adoption of the Plan by Successor...........................41
ARTICLE 11. GENERAL PROVISIONS..........................................41
11.1 Merger or Consolidation with Another Plan...................41
11.2 Nonreversion................................................41
11.3 Nonalienation...............................................42
11.4 Facility of Payment.........................................43
11.5 Indemnification.............................................43
11.6 Limitation of Rights........................................43
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11.7 Employment Non-Contractual..................................43
11.8 Governing Laws..............................................43
ARTICLE 12. TOP-HEAVY PROVISIONS........................................44
12.1 Determination of Top-Heaviness..............................44
12.2 Minimum Allocation..........................................45
12.3 Minimum Vesting.............................................45
12.4 Definitions.................................................45
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AERIAL OPERATING COMPANY, INC.
-----------------------------
TAX-DEFERRED SAVINGS PLAN
-------------------------
ARTICLE 1. ESTABLISHMENT AND FIDUCIARIES.
1.1 Establishment of Plan and Trust.
-------------------------------
This Plan and the Trust are established as of January 1, 2000,
to provide, together with other retirement plans provided for eligible Employees
by the Company, Social Security and personal savings, for retirement benefits
for employees participating in the Plan. It is intended that the Plan and the
Trust qualify under Sections 401 and 501 of the Code, respectively, and that
contributions to the Trust be deductible under Section 404 of the Code.
1.2 Appointment of Fiduciaries of Plan.
----------------------------------
(a) The Company shall be the "Administrator" and a "Named
Fiduciary" of the Plan, both within the meaning of ERISA. The Company may
designate in writing, if not otherwise specified in the Plan, a person or
persons to be responsible for carrying out its duties as administrator or named
fiduciary.
(b) The Company hereby designates the Investment Management
Committee (the "Committee"), consisting of two or more individuals appointed by
the Board of Directors of the Company, to be a "Named Fiduciary" of the Plan,
within the meaning of ERISA, solely for purposes of directing the Trustee with
respect to the investment and reinvestment of the assets of the Plan, in
accordance with the terms hereof.
(c) The decision of the majority of the members of the
Committee shall control in the event of any disagreement among the members. Any
nonconcurring member of the Committee shall not be liable or responsible for any
action taken or failed to be taken over such member's dissent if his dissent is
filed in writing with the other members or such other appropriate action is
taken which is required under ERISA.
1.3 Delegation of Fiduciary Responsibility.
--------------------------------------
(a) The members of the Committee may (i) allocate fiduciary
responsibilities between, or to, any one or more of them; (ii) designate others
to carry out such responsibilities; and (iii) appoint one or more investment
managers (within the meaning of Section 3(38) of ERISA) and remove any
investment manager so appointed.
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(b) The Company and the Committee mutually represent and
warrant, each to the other, that any directions given or information furnished
by them or their respective agents for purposes of the Plan or the Trust will be
given or furnished in accordance with the terms hereof, and in accordance with
the applicable provisions of the Code and ERISA.
ARTICLE 2. DEFINITIONS.
Wherever used in this document, words in the masculine gender
shall include masculine or feminine gender, and, unless the context otherwise
requires, words in the singular shall include words in the plural, and words in
the plural shall include the singular. The words "hereof," "herein," "hereunder"
and other similar compounds of the word "here" shall mean and refer to the
entire document and not to any particular provisions. The titles and headings of
the provisions in this document are inserted merely for convenience of reference
and shall be given no legal effect.
As used in this document, unless the context otherwise requires:
Account means the account maintained for an Employee pursuant
to Section 5.1 hereof. Employer Account means the Account maintained for the
Employee pursuant to Section 5.1 hereof to which Employer contributions, other
than Matching Employer Contributions, made for such Employee under Section 4.1
hereof, and amounts credited to such Employee's employer account under the TDS
Plan, if any, that are transferred to the Plan, are credited. Employer Matching
Account means the Account maintained for the Employee pursuant to Section 5.1
hereof to which Matching Employer Contributions made for the Employee under
Section 4.3 hereof, and amounts credited to such Employee's employer matching
account under the TDS Plan, if any, that are transferred to the Plan, are
credited. Salary Reduction Contributions Account means the Account maintained
for the Employee pursuant to Section 5.1 hereof to which Salary Reduction
Contributions, if any, made for such Employee under Section 4.2 hereof, and
amounts credited to such Employees salary reduction contributions account under
the TDS Plan, if any, that are transferred to the Plan, are credited. Prior Plan
Account means the Account maintained for the Employee pursuant to Section 5.1
hereof to which the Employee's account (other than the portion thereof, if any,
attributable to after-tax employee contributions) under an Amended Plan, if any,
and amounts credited to such Employee's prior plan account under the TDS Plan,
if any, that are transferred to the Plan, are credited. Rollover Account means
the Account maintained for the Employee pursuant to Section 5.1 hereof to which
the Employee's benefit transferred to the Plan under provisions of Section 7.2
hereof, and amount credited to such Employee's rollover account under the TDS
Plan, if any, that are transferred to the Plan, are credited.
Aerial Common Shares means Common Shares, par value $1.00 per
share, of Aerial Communications, Incorporated, a Delaware Corporation.
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Affiliate means any trade or business entity which is a member
of a controlled group with the Company (as described in Section 414(b) and (c)
of the Code, and modified by Section 415(h) of the Code, where applicable) or is
a member of an affiliated service group with the Company (as described in
Section 414(m) of the Code) and any other entity required to be aggregated with
the Company pursuant to final regulations under Section 414(o) of the Code.
Amended Plan means an employee pension benefit plan, which
contains a cash or deferred arrangement under Section 401(k) of the Code, any of
whose assets were transferred to the Plan (other than in accordance with Section
7.2 hereof) at or at any time after the Company's acquisition of stock or assets
of a company maintaining or contributing to such plan. In no event shall the TDS
Plan be considered for any purpose of the Plan to be an Amended Plan.
Annual Addition means, with respect to any Plan Year, an
amount equal to the sum of (a), (b), (c) and (d) below, allocated to any
Employee's Account, where:
(a) equals that portion of the Employer contributions under
Sections 4.1, 4.3 and 12.2 hereof allocated to such Account, including any such
contributions that are forfeited by, or returned to, the Employee pursuant to
Section 4.5(b) hereof;
(b) equals the sum of all Salary Reduction Contributions made
by the Employee, including any such contributions that are returned to the
Employee pursuant to Section 4.5(a) hereof;
(c) equals all of the Employee's voluntary contributions, if
any; and
(d) equals that portion of any forfeitures allocated to such
Account.
Annual Valuation Date means December 31 of each Plan Year.
Before-Tax Contributions means before-tax contributions made
under Section 401(k) of the Code to an Amended Plan.
Beneficiary means the person or persons entitled to receive
benefits under the Plan payable upon an Employee's death.
Benefits Department means the employee benefits department of
the Company, located at 8410 West Bryn Mawr, Chicago, Illinois 60631.
Code means the Internal Revenue Code of 1986, as amended from
time to time.
Company means AERIAL OPERATING COMPANY, INC., a Delaware
corporation, and any successor thereto that adopts the Plan.
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Compensation means the compensation paid as remuneration for
services by an Employee as defined in each article herein where such term
appears. Notwithstanding the foregoing, Compensation in excess of the limit set
forth in Section 401(a)(17) of the Code (adjusted for changes in the cost of
living pursuant to Section 401(a)(17) of the Code) shall be disregarded for all
purposes under the Plan.
Designated Fund means an investment fund selected by the
Committee to which Employees may, in accordance with Article 5 hereof, direct
the investment of all or some portion of their Accounts.
Effective Date means January 1, 2000.
Employee means any person who is employed by the Company, an
Affiliate or a Related Entity, and any former Employee who may be entitled to a
retirement benefit from the Plan by reason of his participation herein. The term
shall not include any Leased Employee or any person excluded by name or
classification by the Company, an Affiliate or a Related Entity upon adoption of
the Plan. The term shall also not include any person covered by a collective
bargaining agreement that does not by its terms provide that such person is
eligible to participate in the Plan. In the event, however, that persons
otherwise eligible to participate in the Plan select a bargaining representative
subsequent to the Effective Date then such persons shall continue to be eligible
to participate pending the completion of negotiations between the Company and
such persons' selected bargaining representative. Upon completion of
negotiations, if the resulting collective bargaining agreement does not
expressly provide for continued eligibility then such persons shall become
ineligible to participate further in the Plan as of the effective date of such
collective bargaining agreement.
Employer means the Company, any Affiliate or Related Entity
that adopts the Plan pursuant to the provisions of Section 10.3 hereof with the
Company's consent to such adoption.
Employment Commencement Date means the date on which an
Employee (i) first performs an Hour of Service for the Company, an Affiliate, or
a Related Entity or (ii) first performs an hour of service (determined in
accordance with Department of Labor Regulation Section 2530.200b-2) with a
company any of the stock or assets of which are directly or indirectly acquired
by the Company. Notwithstanding the preceding sentence, in the case of an
Employee who, at any time during the period beginning on January 1, 1995 and
ending on the date that the Company is no longer an Affiliate of TDS, was
employed by TDS, a TDS Affiliate or a TDS Related Entity, the Employment
Commencement Date for such an Employee shall be the later to occur of (i) date
on which the Employee first performed an hour of service (determined in
accordance with Department of Labor Regulations Section 2530-200b-2) with TDS, a
TDS Affiliate or a TDS Related Entity or (ii) January 1, 1995.
-7-
<PAGE>
ERISA means the Employee Retirement Income Security Act of
1974, as amended.
Entry Date means the first day of each calendar month.
401(k) Deferral Percentage means that percentage, rounded to
the nearest one-hundredth of one percent, that is equal to the ratio of the
Employee's Salary Reduction Contributions for the Plan Year to the Employee's
Compensation. In any Plan Year, the Company at its discretion may determine each
Employee's 401(k) Deferral Percentage by adding to such Employee's Salary
Reduction Contributions either (i) Matching Employer Contributions allocated to
such Employee's Account that are distributable no earlier than the occurrence of
the circumstances described in Section 401(k)(2)(B) of the Code and are
nonforfeitable within the meaning of Section 401(k)(2)(C) of the Code or (ii)
Employer contributions allocated to such Employee's Account that are "qualified
nonelective contributions" (within the meaning of Section 401(m)(4)(C) of the
Code) which are distributable no earlier than the occurrence of the
circumstances described in Section 401(k)(2)(B) of the Code and are
nonforfeitable within the meaning of Section 401(k)(2)(C) of the Code or both
(i) and (ii). For purposes of this definition, Compensation means compensation
that is includable in gross income (or would be includable but for Section 125,
402(a)(8) or 402(h) of the Code) and is actually paid to the Employee during the
portion of the 12-month period ending on the last day of the Plan Year during
which the Employee was eligible to participate in the Plan under Section 3.1
hereof (disregarding any prohibition imposed by Section 6.9(d)(i) hereof).
401(m) Contribution Percentage means that percentage, rounded
to the nearest one-hundredth of one percent, that is equal to the ratio of the
Matching Employer Contributions made on behalf of the Employee and the
Employee's voluntary contributions, if any, for the Plan Year to the Employee's
Compensation. In any Plan Year, the Company at its discretion may determine each
Employee's 401(m) Contribution Percentage by adding to such Employee's Matching
Employer Contributions all or a portion of the Salary Reduction Contributions
allocated to such Employee's Account as of the end of the Plan Year. For
purposes of this definition, Compensation means compensation that is includable
in gross income (or would be includable but for Section 125, 402(a)(8) or 402(h)
of the Code) and is actually paid to the Employee during the portion of the
12-month period ending on the last day of the Plan Year during which the
Employee was eligible to participate in the Plan under Section 3.1 hereof
(disregarding any prohibition imposed by Section 6.9(d)(i) hereof).
Highly Compensated Employee means an Employee described in
Section 414(q) of the Code.
Leased Employee means any person who renders services to the
Company or any Affiliate or Related Entity as a leased employee and is described
in Section 414(n) of the Code.
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<PAGE>
Matching Employer Contribution means the amounts contributed
for an Employee by his Employer under Section 4.3 hereof.
Military Service. Service in the "uniformed services" within
the meaning of the Uniform Services Employment and Reemployment Rights Act of
1994, which entitles a person rendering such service to reemployment under such
Act provided such person returns to the employ of the Employer within the period
prescribed by such Act.
Normal Retirement Date means the date on which the Employee
attains age 65.
Plan means the tax-deferred savings plan herein set forth and
any amendment or supplement thereto.
Plan Year means the twelve month period beginning on January 1
and ending on the immediately following December 31. The first Plan Year shall
commence January 1, 2000.
Related Entity means any other trade or business entity in
which the Company or an Affiliate has an interest and that is a "subsidiary" of
the Company as defined in Regulation C, Rule 405, promulgated by the Securities
and Exchange Commission under the Securities Act of 1933.
Retirement means any termination of Service after an Employee
is eligible for early or normal retirement benefits under any other qualified
retirement plan maintained by the Company, an Affiliate or Related Entity with
which the Employee is in Service at the time of such termination, or if no such
Plan exists, termination of Service after any of the following dates: (i) the
date on which the sum of the Employee's age and Years of Vesting Service equals
75, provided that he has attained 55 years of age; (ii) the date on which the
Employee has completed at least 30 Years of Vesting Service; or (iii) the date
which is the later of the Employee's 65th birthday and the fifth anniversary of
the date on which the Employee commences participation in the Plan.
Salary Reduction Contribution means the amounts contributed on
behalf of an Employee by his Employer pursuant to the Employee's election under
Section 4.2 hereof.
Service means employment by the Company, until terminated by
quit, discharge, retirement, disability, death or otherwise, accounted for in
accordance with Paragraphs (a) and (b) below. Employment by an Affiliate or
Related Entity shall be treated as employment by the Company for purposes of
computing Service hereunder.
(a) Hours of Service means the sum of all hours credited to an
Employee under subparagraphs (i) through (iv) below, determined from the
employment records of the Company, the Affiliates and Related Entities which
accurately reflect the actual hours of service
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<PAGE>
to which the Employee is entitled. An Employee for whom employment records do
not accurately reflect the hours of service to which the Employee is entitled
shall be credited with Hours of Service under an alternative method permitted by
applicable law.
(i) An Employee shall be credited with an Hour of Service for
each hour for which he is directly or indirectly paid, or entitled to
payment by the Company, an Affiliate or a Related Entity for the
performance of duties. These hours shall be credited to the Employee
for the Plan Year in which such duties are performed.
(ii) An Employee shall be credited with an Hour of Service for
each hour for which he is directly or indirectly paid, or entitled to
payment by the Company, an Affiliate or a Related Entity for a period
of time during which he performed no duties (irrespective of whether
the employment relationship has terminated) due to vacation, holiday,
illness, incapacity (including disability), severance, layoff, jury
duty, Military Service or leave of absence. These hours shall be
credited to the Employee for the Plan Year during which such absence
occurs.
(iii) An Employee shall be credited with an Hour of Service
for each hour for which back pay, irrespective of mitigation of
damages, has been either awarded or agreed to by the Company, an
Affiliate or a Related Entity. These hours shall be credited to the
Employee for the Plan Year to which such award or agreement pertains
rather than the year in which the award, agreement or payment is made.
(iv) Hours of Service shall be credited to an Employee on the
basis of the actual hours for which he is paid or entitled to payment,
and no Employee shall be credited with Hours of Service for the same
hours under more than one of the preceding subparagraphs.
Notwithstanding subparagraphs (i) through (iii) above, (A) no Employee
shall be credited with more than 501 Hours of Service under
subparagraph (ii) above on account of any single continuous period
during which he performs no duties, (B) no Hours of Service shall be
credited to an Employee under subparagraph (ii) above to the extent
payment for any period of time during which no duties are performed is
made or due under a program maintained solely for the purpose of
complying with any applicable worker's compensation or disability
insurance laws, and (c) Hours of Service shall not be credited with
respect to any payment which solely reimburses an Employee for medical
or medically-related expenses incurred by him.
(v) All Hours of Service shall be credited and determined in
accordance with Department of Labor Regulation Section 2530.200b-2(b)
and (c).
(vi) For purposes of this definition, Compensation means
compensation that is includible in gross income (or would be includible
in gross income but for Section 125,
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<PAGE>
402(a)(8) or 402(h)(1)(B) of the Code) and is actually paid to the
Employee during the Plan Year for which such determination is being
made.
(b) Break in Service means any Plan Year (or, for purposes of
determining eligibility to participate in the Plan, any eligibility period)
during which an Employee is not credited with more than 500 Hours of Service
under the Plan. Solely for purposes of determining whether an Employee has
incurred a Break in Service, such Employee shall, in addition to Hours of
Service credited under Paragraph (a) above, be credited with Hours of Service
based upon his customary period of work, for periods of absence during which no
duties are performed and for which the Employee is not paid or entitled to
payment by the Company, an Affiliate or a Related Entity due to (i) Military
Service, provided such Employee returns to work within the period and under the
conditions provided by law for the protection of his reemployment rights
following such service, (ii) temporary layoff or leave of absence both of which
must be approved in advance by the Company, an Affiliate or a Related Entity,
provided such Employee returns to work on the date fixed by the Company, an
Affiliate or a Related Entity, and (iii) leave of absence due to the Employee's
pregnancy, birth of the Employee's child, placement of a child with the Employee
in connection with the adoption of such child, or caring for such child for a
period immediately following such birth or placement. For purposes of (iii)
above, Hours of Service shall be credited for the Plan Year in which such leave
of absence begins, if credit is necessary to prevent the Employee from incurring
a Break in Service; otherwise, Hours of Service shall be credited in the
immediately following Plan Year. Not more than 501 Hours of Service shall be
credited under (iii) above.
TDS means Telephone and Data Systems, Inc., an Iowa
corporation.
TDS Affiliate means any trade or business entity which is a
member of a controlled group with TDS (as described in Section 414(b) and (c) of
the Code, and modified by Section 415(h) of the Code, where applicable) or any
member of an affiliated service group with TDS (as described in Section 414(m)
of the Code) and any other entity required to be aggregated with TDS pursuant to
final regulations under Section 414(o) of the Code.
TDS Common Shares means Common Shares, par value $1.00 per
share, of Telephone and Data Systems, Inc., an Iowa Corporation.
TDS Plan means the Telephone and Data Systems, Inc. Tax
Deferred Savings Plan.
TDS Related Entity means any other trade or business entity in
which TDS or a TDS Affiliate has an interest and that is a "subsidiary" of the
Company as defined in Regulation C, Rule 405, promulgated by the Securities and
Exchange Commission under he Securities Act of 1933.
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<PAGE>
Total and Permanent Disability means a disability (determined
by the Company's disability insurer) which has rendered the Employee totally and
permanently disabled within the meaning of the Company's long term disability
plan.
Trust means the Trust created by agreement between the Company
and the Trustee, as from time to time amended.
Trust Fund means all money and property of every kind held by
the Trustee under the Trust agreement.
Trustee means the trustee provided for in Article 9, any
successor or, if there shall be more than one trustee acting at any time, all of
such trustees.
USCC Common Shares means Common Shares, par value $1.00 per
share, of United States Cellular Corporation, a Delaware Corporation.
Valuation Date means each business day.
ARTICLE 3. PARTICIPATION AND SERVICE CREDIT.
3.1 Participation.
-------------
(a)(i) Each Employee of an Employer who is participating in
the TDS Plan on the day before the Effective Date shall participate in
the Plan from and after the Effective Date, provided, he is and
continues to be employed by an Employer on and after the Effective
Date.
(ii) In the case of an individual who is not participating in
the TDS Plan on the day before the Effective Date but who becomes an
Employee because either (i) the individual's employer becomes an
Affiliate, or (ii) any of the stock or assets of the individual's
employer is directly or indirectly acquired by the Company, the
Employee shall become a participant in the Plan as of the date
specified in the agreement under which either the Employee's employer
became an Affiliate or the stock or assets of the Employee's employer
was directly or indirectly acquired by the Company, provided that the
Employee satisfies the requirements of subsection (b) below as of such
date (taking into account hours of service described in Section 3.3(a)
hereof) and provided the employer becomes an Employer under the Plan.
If no date is specified in such agreement or if the Employee does not
satisfy the requirements of subsection (b) below as of the date
specified in such agreement, the Employee shall commence participation
in the Plan in accordance with subsection (b) below (taking into
account hours of service described in Section 3.3(a) hereof).
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<PAGE>
(b) Each other Employee shall commence participation in the
Plan as of the first Entry Date coinciding with or immediately following the
date on which he satisfies the following requirements:
(i) he is employed by an Employer;
(ii) he attains age 21; and
(iii) he completes three consecutive months of employment beginning
on his Employment Commencement Date, or any later reemployment date, or
completes an eligibility period during which he is credited with 1,000
Hours of Service. If an Employee does not complete three consecutive
months of employment beginning on his Employment Commencement Date, his
first eligibility period, during which he shall be required to be
credited with 1,000 Hours of Service, shall be the 12-consecutive
calendar month period beginning on his Employment Commencement Date. If
an Employee both does not complete three consecutive months of
employment beginning on his Employment Commencement Date and is not
credited with 1,000 Hours of Service during his first eligibility
period, the Employee's subsequent eligibility periods shall be each
Plan Year, beginning with the Plan Year that includes the first
anniversary of the Employee's Employment Commencement Date.
(c) If the Service of a non-participating Employee terminates
after he had satisfied the requirement set forth in subsection (b)(iii) above or
if an Employee who was employed by TDS, a TDS Affiliate or a TDS Related Entity
during the period beginning on January 1, 1995 and ending on the date that the
Company is no longer an Affiliate of TDS and who had satisfied the requirement
of subsection (b)(iii) above during such period, terminated employment with TDS,
such TDS Affiliate or TDS Related Entity, in the event of his later
reemployment, he shall not be required to satisfy again such requirement and
shall commence participation in the Plan on the last to occur of (i) the date of
his reemployment, (ii) the first Entry Date following his 21st birthday and
(iii) the date that would have been his Entry Date if he had not terminated
Service; provided, however, that if such Employee had after such termination
incurred at least five consecutive Breaks in Service, he shall be considered a
new Employee.
(d) If the Service of an Employee who participates in the Plan
terminates or if an Employee who participated in the TDS Plan at any time during
the period beginning on January 1, 1995 and ending on the Effective Date
terminated employment with TDS, a TDS Affiliate or a TDS Related Entity, in the
event of his later reemployment by the Company, he shall recommence
participation in the Plan as of the date of his reemployment by an Employer.
(e) No Leased Employee shall be eligible to participate in the
Plan.
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<PAGE>
3.2 Year of Vesting Service.
-----------------------
(a) Each Employee shall be credited with a Year of Vesting
Service for each Plan Year in which he is credited with 1,000 Hours of Service.
(b) If the Service of an Employee terminates, in the event of
his later reemployment, Years of Vesting Service credited prior to a Break in
Service shall be disregarded for purposes of determining Years of Vesting
Service credited after such Break in Service if (i) the Employee was not
entitled to any nonforfeitable percentage of his Account derived from Employer
contributions prior to the Break in Service, and (ii) the number of his
consecutive Breaks in Service equals the greater of 5 or the total number of his
Years of Vesting Service credited prior to such Break in Service.
(c) If the Service of an Employee terminates, in the event of
his later reemployment, Years of Vesting Service credited after 5 consecutive
Breaks in Service shall be disregarded for purposes of determining Years of
Vesting Service to be credited before such 5 consecutive Breaks in Service.
(d) If the Service of an Employee terminates, in the event of
his later reemployment, Years of Vesting Service with respect to which the
Employee has received a distribution of the nonforfeitable balance in his
Account as a result of his termination of Service shall be disregarded unless
the Employee returns to Service and repays the full amount of such distribution
to the Plan on or before the earlier of (i) the Annual Valuation Date on which
the Employee incurs 5 consecutive Breaks in Service following such distribution,
or (ii) the end of the 5-year period beginning on the date the Employee returns
to Service.
3.3 Employment By the Company and an Affiliate or Related Entity.
------------------------------------------------------------
(a) For purposes of determining participation hereunder, an
Employee shall be credited with Hours of Service (i) with respect to all Service
with the Company, any Affiliate and any Related Entity and (ii) for all hours of
service (determined in accordance with Department of Labor Regulation Section
2530.200b-2) with any company any of the stock or assets of which are directly
or indirectly acquired by the Company. In addition, in the case of an Employee
who, during the period beginning on January 1, 1995 and ending on the date that
the Company is no longer an Affiliate of TDS, was employed by TDS, a TDS
Affiliate or a TDS Related Entity, for purposes of determining participation
hereunder, such Employee shall be credited with all hours of service (determined
in accordance with Department of Labor Regulation Section 2530-200b- 2) credited
during such period with TDS, a TDS Affiliate or a TDS Related Entity.
(b) For purposes of determining Years of Vesting Service
hereunder, an Employee shall be credited with Hours of Service with respect to
all Service with the Company
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<PAGE>
and any Affiliate or Related Entity (but only after the Affiliate or Related
Entity became an Affiliate or Related Entity, as the case may be).
(c) For purposes of subsection (a) and (b) above and Article
6, if an Employee transfers employment among the Company, any Affiliate or any
Related Entity, such Employee shall not be deemed to have terminated Service.
3.4 Vesting Service Under the TDS Plan, Amended Plans and Plans Previously
---------------------------------------------------------------------------
Maintained by an Employer.
-------------------------
(a) In addition to the Years of Vesting Service credited to
any Employee under the preceding provisions of this Article 3, an Employee
shall, upon the first Entry Date on which an Employee commences participation in
the Plan under Section 3.1 hereof, be credited with Years of Vesting Service
equal to the excess of (i) vesting service credited to the Employee under any
predecessor plan (defined in subsection (b) below) or any Amended Plan over (ii)
the Years of Vesting Service credited to the Employee under the preceding
provisions of this Article 3. In addition to Years of Vesting Service credited
pursuant to the preceding sentence, an Employee who, during the period beginning
on January 1, 1995 and ending on the date that the Company is no longer an
Affiliate of TDS, was employed by TDS, a TDS Affiliate or a TDS Related Entity
shall be credited with Years of Vesting Service equal to the excess of (i)
vesting service credited during such period to such Employee under the TDS Plan
over (ii) the Years of Vesting Service credited to the Employee under the
preceding provisions of this Article 3. Notwithstanding the preceding two
sentences, in the case of an Employee who participated in a predecessor plan or
the TDS Plan and who incurred five or more consecutive break in service years
(as defined in Section 411(a)(6) of the Code), no Years of Vesting Service shall
be credited to an Employee under this Plan for vesting service credited to the
Employee under such predecessor plan or the TDS Plan if (i) the Employee had no
vested right to employer contributions under such predecessor plan or the TDS
Plan or (ii) the number of his consecutive break in service years equals or
exceeds the greater of five and the number of years of service credited to the
Employee under the predecessor plan or the TDS Plan.
(b) For purposes of this Section 3.4, a predecessor plan means
a plan, other than an Amended Plan or the TDS Plan, that was qualified under
Section 401(a) of the Code and whose related trust was exempt from federal
income tax under Section 501(a) of the Code and that was maintained by or
required to be contributed to by a company any of the stock or assets of which
are directly or indirectly acquired by the Company or an Affiliate, provided
that (i) as a result of such acquisition, any employee who participated in such
plan begins participating in the Plan and (ii) accurate information to calculate
an Employee's vesting service under such plan is made available to the Company.
3.5 Leased Employees. If an individual who performed services as a Leased
-----------------
Employee becomes an Employee, or if an Employee becomes a Leased Employee, then
any
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period during which such services were so performed shall be taken into account
solely for the purposes of (i) determining whether and when such individual
satisfied the eligibility service requirement set forth in Section 3.1(b)
hereof, (ii) determining the individual's Years of Vesting Service and (iii)
determining when such individual has terminated his employment for purposes of
Article 6 hereof, to the same extent it would have been had such period of
employment been as an Employee. This Section 3.5 shall not apply to any period
of service during which such a Leased Employee was covered by a plan described
in Section 414(n)(5) of the Code.
3.6 Reemployment of Veterans. The provisions of this Section 3.6 shall apply in
------------------------
the case of the reemployment by an Employer of an Employee, within the period
prescribed by laws relating to the rights of reemployed veterans, after the
Employee's completion of a period of qualified military service (as defined in
Section 414(u)(5) of the Code). The provisions of this Section 3.6 are intended
to provide such Employees with the rights required by Section 414(u) of the
Code, and shall be interpreted in accordance with such intent.
An Employee participating in the Plan after completion of a
period of qualified military service shall be credited with a Year of Vesting
Service for any Plan Year during which he is in qualified military service if
the Employee would have completed 1,000 Hours of Service in such Plan Year, but
for the qualified military service (based on the Employee's work schedule as in
effect on the date such military service began, as determined by the Company).
In addition, such Employee shall be permitted to make additional salary
reduction contributions and shall be entitled to matching Employer contributions
with respect to any such additional salary reduction contributions in accordance
with the following subsections:
(a) Such Employee shall be entitled to have his Employer make
salary reduction contributions under the Plan ("Make Up Deferrals"), in addition
to any Salary Reduction Contributions which the Employee elects to have made
under Section 4.2(a) hereof. From time to time while employed by an Employer,
such Employee may elect to have his Employer contribute such Make Up Deferrals
during the period beginning on the date of such Employee's reemployment and
ending on the earlier of:
(i) the end of the period equal to the product of three
and such Employee's period of qualified military service, and
(ii) the fifth anniversary of the date of such reemployment.
Such Employee shall not be permitted to elect to have his Employer contribute
Make Up Deferrals to the Plan in an amount in excess of the amount which the
Employee could have elected to have made under Section 4.2(a) hereof as Salary
Reduction Contributions if the Employee had continued in employment with his
Employer during such period of qualified military service. The manner in which
an Employee may elect to have his Employer contribute Make Up Deferrals pursuant
to this subsection (a) shall be prescribed by the Company.
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(b) An Employee who elects to have his Employer contribute
Make Up Deferrals as described in subsection (a) above shall be entitled to an
allocation of matching Employer contributions ("Make Up Matching Contributions")
in an amount equal to the amount of Matching Employer Contributions that would
have been allocated to the Employer Matching Account of such Employee under the
Plan if such Make Up Deferrals had been made during the period of such
Employee's qualified military service (as determined pursuant to Section 414(u)
of the Code). The amounts necessary to make such allocation of Make Up Matching
Contributions shall be derived from any forfeitures that remain after the
application of Section 5.5(b) hereof or, if such forfeitures are less than the
amount of Make Up Matching Contributions that must be allocated to any
Employee's Employer Matching Account, then the Employee's Employer shall make a
special contribution which shall be utilized solely for purposes of such
allocation.
(c) An Employee's "Compensation," as defined in Sections
4.2(a) and 4.3(a) hereof, during any period of qualified military service shall
be determined in accordance with Section 414(u) of the Code.
(d) Any contributions of Make Up Deferrals made by an Employer
on behalf of an Employee and any contributions of Make Up Matching Contributions
made by an Employer, in either case, pursuant to this Section 3.6 on account of
a period of qualified military service in a prior Plan Year and any allocations
of such contributions to an Employee shall not be subject to the limitations
prescribed by Sections 4.2(f) and 5.7 hereof for the Plan Year in which such
contributions and allocations are made, but, instead, shall be subject to such
limits for the Plan Year to which such contributions and allocations relate. In
addition, such contributions shall not be included in computing an Employees'
401(k) Deferral Percentage or 401(m) Contribution Percentage for any Plan Year.
ARTICLE 4. CONTRIBUTIONS AND VALUATION.
4.1 Company Contributions.
---------------------
(a) Each Employer shall contribute to the Trustee for each
Plan Year, such amount, if any, as its Board of Directors shall determine by
appropriate resolution.
(b) Notwithstanding subsection (a) above to the contrary, each
Employer shall contribute during each Plan Year an amount that is necessary to
restore any Account of its Employees pursuant to Section 6.4(e) hereof if such
Account is not restored pursuant to Section 5.5(a) hereof.
(c) All Employer contributions under this Section 4.1 shall be
in cash or in Aerial Common Shares, as determined by the Employer making the
contribution, and shall be made within the time prescribed by law for filing the
Employer's federal income tax return, including extensions thereof, for the
taxable year that ends with the Plan Year. For purposes of
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this Section 4.1, Aerial Common Shares shall be valued at the closing price for
such shares on the Nasdaq National Market ("Nasdaq") on the last trading day
preceding the date of purchase.
4.2 Salary Reduction Contributions.
------------------------------
(a) Except as provided in subsection (f) below, an Employee
who is eligible to participate in the Plan under Section 3.1 hereof may elect,
at the time and in the manner prescribed by the Company, to make a Salary
Reduction Contribution in any whole percentage (or fraction thereof from time to
time permitted by the Company) of his Compensation up to a maximum of 15%
thereof. An election to make a Salary Reduction Contribution may be made as of
the first date on which an Employee becomes eligible to participate in the Plan
under Section 3.1 hereof. If an Employee who is eligible to participate in the
Plan under Section 3.1 hereof fails to make a timely Salary Reduction
Contribution election as of the first date on which the Employee becomes
eligible, such Employee may make such election effective, as of the first day of
the next payroll period administratively practicable after the Employee's
election is received by the Company or its designee. Each Employee who
authorizes a Salary Reduction Contribution shall have his total compensation for
such period reduced by an equal amount. For purposes of this subsection (a),
Compensation means compensation that is includible in gross income (or would be
includible in gross income but for Section 125, 402(a)(8) or 402(h)(1)(B) of the
Code) and is actually paid to the Employee during the Plan Year including all
commissions, bonuses and overtime pay, but excluding reimbursement for business
expenses, any other taxable or non-taxable fringe benefits and any other
contributions to this or any other qualified plan of deferred compensation of
the Company.
(b) Contributions elected by an Employee under subsection (a)
above shall continue until such time as he may change or suspend such
contributions by making a new election at the time and in the manner prescribed
by the Company. Any such change shall become effective as of the first day of
the next payroll period administratively practicable after the Employee's
election is received by the Company or its designee. Any such suspension shall
become effective as soon as practicable after receipt by the Company of the
Employee's election to suspend contributions. An Employee who changes or
suspends such contributions may not change or resume such contributions until as
of the first day of the next payroll period administratively practicable after
the Employee's election is received by the Company or its designee.
(c) All Salary Reduction Contributions shall be provisionally
accepted and are subject to return to the Employee pursuant to the provisions of
Section 4.5 hereof.
(d) The amount of Salary Reduction Contributions elected by
any Employee under subsection (a) above may be reduced or suspended during a
Plan Year by the Company if, in its sole discretion, it determines that such
reduction or suspension is necessary or desirable in
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<PAGE>
order that the actual deferral percentage for the current Plan Year of all
eligible Highly Compensated Employees (determined as a group) does not exceed
the greater of:
(i) 125% of the actual deferral percentage for the immediately
preceding Plan Year of all other eligible Employees (determined as a
group), or
(ii) the lesser of 200% of the actual deferral percentage for the
immediately preceding Plan Year of all other eligible Employees
(determined as a group) and 2 percentage points in excess of the actual
deferral percentage for the immediately preceding Plan Year of all
other eligible Employees (determined as a group).
For purposes of this subsection (d), the actual deferral percentage of a group
of eligible Employees shall be the average, rounded to the nearest one-hundredth
of one percent, of the 401(k) Deferral Percentages of Employees in the group for
the Plan Year. In computing the actual deferral percentage of a Highly
Compensated Employee who participates in this Plan and one or more other plans
of the Employer to which contributions described in Section 401(k) of the Code
are made, this Plan and all such other plans shall be treated as a single plan
(unless they may not be permissively aggregated under the Code) and all Salary
Reduction Contributions made on behalf of such Highly Compensated Employee under
this Plan and all contributions described in Section 401(k) of the Code made on
behalf of such Highly Compensated Employee under such other plans shall be
aggregated for purposes of determining such Highly Compensated Employee's 401(k)
Deferral Percentage.
(e) As promptly as practicable, the aggregate amount of Salary
Reduction Contributions elected under this Section 4.2 and deducted from payroll
on behalf of each Employee shall be remitted to the Trustee, but in no event
later than 15 business days after the last day of the month in which they were
otherwise payable to the Employers' Employees.
(f) Notwithstanding anything herein to the contrary, no
Employee's Salary Reduction Contribution during any calendar year shall exceed
the amount provided for in Section 402(g) of the Code, adjusted for changes in
the cost of living under applicable rules and regulations ($10,500 for 2000). If
for any calendar year an Employee determines that the aggregate amount of Salary
Reduction Contributions and amounts contributed under other plans or
arrangements maintained by the Company or an Affiliate and described in Section
401(k), 408(k) or 403(b) of the Code will exceed the limitations of this
subsection (f) for the calendar year in which such contributions were made, such
Employee shall, pursuant to such rules and at such time following such calendar
year as determined by the Company, be allowed to submit a written request that
such excess contributions, reduced by any amounts previously distributed
pursuant to Section 4.5(a) hereof, plus any income allocable thereto for the
calendar year to which the contributions relate, shall be distributed to him.
The amount of income to be distributed pursuant to the preceding sentence shall
be determined in accordance with applicable rules and regulations. The request
described in this subsection (f) shall be made on a form
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<PAGE>
provided by the Company which specifies the Employee's contributions in excess
of the limitations of this subsection (f) for the calendar year. A distribution
of such excess contributions, plus income, shall be made no later than April 15
of the calendar year following the calendar year for which such excess
contributions were made.
4.3 Matching Employer Contributions.
-------------------------------
(a) Each Employer shall contribute to the Trustee a Matching
Employer Contribution on behalf of each Employee employed by such Employer on
the Annual Valuation Date (or, in the case of an Employee who terminated Service
during the Plan Year on account of his Retirement, Total and Permanent
Disability or death, on behalf of each such former Employee employed by such
Employer on the date of such termination of Service) who is participating in the
Plan equal to the sum of 100% of the first level, and 25% of any second level.
For purposes of this subsection (a), an Employee's "Matchable Salary Reduction
Contribution" means the Salary Reduction Contributions authorized by the
Employee that do not exceed a first level of 2%, and a second level in excess of
the first level of 4%. For purposes of this subsection (a), Compensation shall
have the same meaning as that term is defined in Section 4.2(a) hereof, except
that an Employee's Compensation shall only include Compensation paid to such
Employee for the portion of the Plan Year during which the Employee is eligible
to participate in the Plan.
(b) All Matching Employer Contributions shall be provisionally
accepted and, pursuant to the provisions of Section 4.5(b) hereof, are subject
to forfeiture or distribution to Highly Compensated Employees participating in
the Plan.
(c) Matching Employer contributions required under subsection
(a) above may be reduced or suspended during a Plan Year by the Company if, in
its sole discretion, it determines that such reduction or suspension is
necessary or desirable in order that the actual contribution percentage for the
current Plan Year of all eligible Highly Compensated Employees (determined as a
group) does not exceed the greater of:
(i) 125% of the actual contribution percentage for the
immediately preceding Plan Year of all other eligible Employees
(determined as a group), or
(ii) the lesser of 200% of the actual contribution percentage for
the immediately preceding Plan Year of all other eligible Employees
(determined as a group) and 2 percentage points in excess of the actual
contribution percentage for the immediately preceding Plan Year of all
other eligible Employees (determined as a group).
For purposes of this subsection (c), the actual contribution percentage on
behalf of a group of eligible Employees shall be the average, rounded to the
nearest one-hundredth of one percent of the 401(m) Contribution Percentages of
Employees in the group for the Plan Year. In computing
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<PAGE>
the actual contribution percentage of a Highly Compensated Employee who
participates in this Plan and one or more other plans of the Employer to which
contributions described in Section 401(m) of the Code are made, this Plan and
all such other plans shall be treated as a single plan (unless they may not be
permissively aggregated under the Code) and all Matching Employer Contributions
made on behalf of such Highly Compensated Employee under this Plan and all
contributions described in Section 401(m) of the Code made for, or by, such
Highly Compensated Employee under such other plans shall be aggregated for
purposes of determining such Highly Compensated Employee's 401(m) Contribution
Percentage.
(d) Matching Employer Contributions that are added to an
Employee's Salary Reduction Contributions for purposes of determining that
Employee's 401(k) Deferral Percentage under Section 4.2(d) hereof shall be
disregarded for purposes of determining that Employee's 401(m) Contribution
Percentage.
(e) All Matching Employer Contributions made by an Employer
under this Section 4.3 shall be made in cash and shall be made within the time
for filing of the Employer's federal income tax return, including extensions
thereof, for the taxable year that ends with the Plan Year.
4.4 Coordination Between Sections 4.2 and 4.3.
-----------------------------------------
(a) Notwithstanding the limitations on Salary Reduction
Contributions under Section 4.2(d) hereof and the limitations on Matching
Employer Contributions under Section 4.3(c) hereof, the Company, in its sole
discretion, may further reduce or suspend such Contributions if it determines
that such reduction or suspension is necessary or desirable in order that the
sum of the actual deferral percentage (as defined in Section 4.2(d) hereof) for
the current Plan Year on behalf of the eligible Highly Compensated Employees
(determined as a group) and the actual contribution percentage (as defined in
Section 4.3(c) hereof) for the current Plan Year on behalf of the eligible
Highly Compensated Employees (determined as a group) does not exceed the greater
of:
(i) the sum of (A) 125% of the greater of (1) the actual
deferral percentage for the immediately preceding Plan Year on behalf
of eligible Employees who are not Highly Compensated Employees
(determined as a group), and (2) the actual contribution percentage for
the immediately preceding Plan Year on behalf of eligible Employees who
are not Highly Compensated Employees (determined as a group), and (B)
the lesser of (1) the sum of two percentage points and the lesser of
(A)(1) and (A)(2) above, and (2) 200% of the lesser of (A)(1) and
(A)(2) above; and
(ii) the sum of (A) 125% of the lesser of (i)(A)(1) and (i)(A)(2)
above, and (B) the lesser of (1) the sum of two percentage points and
the greater of (i)(A)(1) and (i)(A)(2) above and (2) 200% of the
greater of (i)(A)(1) and (i)(A)(2) above.
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(b) For purposes of subsection (a) above, Matching Employer
Contributions that are added to an Employee's Salary Reduction Contributions for
purposes of determining that Employee's 401(k) Deferral Percentage under Section
4.2(d) hereof shall be disregarded for purposes of determining that Employee's
401(m) Contribution Percentage. In addition, for purposes of subsection (a)
above, if "excess contributions," as defined in Section 4.5(a) hereof, are
distributed under Section 4.5(c) hereof, the actual deferral percentage will be
deemed to be the largest amount permitted under Section 4.2(d) hereof and if
"excess matching contributions," as defined in Section 4.5(b) hereof, are
forfeited or distributed under Section 4.5(d) hereof, the actual contribution
percentage will be deemed to be the largest amount permitted under Section
4.3(c) hereof.
4.5 Refund of Excess Contributions.
------------------------------
(a) If for any Plan Year, the Salary Reduction Contributions
on behalf of the eligible Highly Compensated Employees (determined as a group)
exceed the limitations under Section 4.4 or 4.2(d) hereof, the Company shall
return so much or all of such excess contribution (defined below), reduced by
any amounts previously distributed pursuant to Section 4.2(f) hereof, and the
income attributable to such excess contributions (as reduced), determined under
subsection (f) below, to the Highly Compensated Employees participating in the
Plan in the manner described in subsection (c) below. Upon the distribution of
any Salary Reduction Contributions pursuant to the preceding sentence, any
corresponding Employer Matching Contributions allocated to the Employee's
Employer Matching Account, adjusted for income or loss pursuant to applicable
rules and regulations, shall be forfeited. For purposes of this subsection (a),
excess contribution means the excess of (i) the aggregate amount of Salary
Reduction Contributions made on behalf of Highly Compensated Employees for the
current Plan Year over (ii) the maximum amount of Salary Reduction Contributions
permitted under Section 4.2(d) hereof (determined by reducing Salary Reduction
Contributions made on behalf of Highly Compensated Employees in order of 401(k)
Deferral Percentages, beginning with the highest 401(k) Deferral Percentage).
(b) If for any Plan Year the Matching Employer Contribution on
behalf of the eligible Highly Compensated Employees (determined as a group)
exceeds the limitations under Section 4.4 or Section 4.3(c) hereof (such excess
being referred to herein as an "excess matching contribution"), such excess
matching contribution (defined below), to the extent not vested, shall be
forfeited by, and, to the extent vested, shall be distributed to, the Highly
Compensated Employees participating in the Plan in the manner described in
subsection (d) below. If the Matching Employer Contribution is forfeited by or
distributed to Highly Compensated Employees participating in the Plan, the
income allocable to such excess, determined under subsection (f) below, shall
also be forfeited or distributed, as the case may be. For purposes of this
subsection (b), excess matching contribution means the excess of (i) the
aggregate amount of Matching Employer Contributions made on behalf of Highly
Compensated Employees for the current Plan Year over (ii) the maximum amount of
Matching Employer Contributions permitted
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<PAGE>
under Section 4.3(c) hereof (determined by reducing Matching Employer
Contributions made on behalf of Highly Compensated Employees in order of 401(m)
Contribution Percentages, beginning with the highest 401(m) Contribution
Percentage.
(c) The amount of Salary Reduction Contributions that must be
returned under subsection (a) above shall be allocated pro rata to each Highly
Compensated Employee who has the highest amount of Salary Reduction
Contributions until the amount of Salary Reduction Contributions of each such
Highly Compensated Employee does not exceed the amount of Salary Reduction
Contributions of the Highly Compensated Employee with the next highest amount of
Salary Reduction Contributions. Any Salary Reduction Contributions that must be
returned which have not been allocated under the preceding sentence shall be
successively allocated pro rata to the Highly Compensated Employees who have the
highest amount of Salary Reduction Contributions in the manner described in the
preceding sentence until the entire amount of the Salary Reduction Contributions
that must be returned under subsection (a) above have been allocated.
(d) The amount of Matching Employer Contributions that must be
forfeited or returned under subsection (b) above shall be allocated pro rata to
each Highly Compensated Employee who has the highest amount of Matching Employer
Contributions until the amount of Matching Employer Contributions of each such
Highly Compensated Employee does not exceed the amount of Matching Employer
Contributions of the Highly Compensated Employee with the next highest amount of
Matching Employer Contributions. Any Matching Employer Contributions that must
be forfeited or returned which have not been allocated under the preceding
sentence shall be successively allocated pro rata to the Highly Compensated
Employees who have the highest amount of Matching Employer Contributions in the
manner described in the preceding sentence until the entire amount of the
Matching Employer Contributions that must be forfeited or returned under
subsection (b) above have been allocated.
(e) Any Salary Reduction Contributions that must be returned
to Highly Compensated Employees under subsection (a) above and any Matching
Employer Contributions that must be forfeited by, or returned to, Highly
Compensated Employees under subsection (a) or (b) above shall be forfeited by,
or distributed to, the Highly Compensated Employees not later than the last day
of the Plan Year immediately following the Plan Year in which such excess
contributions arose. If such excess contributions are not forfeited or
distributed within 2-1/2 months following the Annual Valuation Date of the Plan
Year in which they arose, the Employers shall be subject to the excise tax
imposed by Section 4979 of the Code.
(f) The return of Salary Reduction Contributions and the
return or forfeiture of any Matching Employer Contributions under this Section
4.5 shall be accompanied by the income allocable to such contributions for the
Plan Year to which the contributions relate. The amount of such income shall be
determined in accordance with applicable rules and regulations.
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<PAGE>
4.6 Voluntary Employee Contributions. Employees shall not be
-----------------------------------
required or permitted to make any non-Salary Reduction Voluntary Contributions
to the Plan.
ARTICLE 5. COMPUTATION OF BENEFITS.
5.1 Maintenance of Accounts. The Company shall maintain or cause to be
-----------------------
maintained a separate Account for each Employee. The Account maintained for an
Employee shall consist of an Employer Account, an Employer Matching Account, a
Salary Reduction Contributions Account and, if any, a Prior Plan Account and, if
any, a Rollover Account, but the maintenance of these Accounts shall be solely
for accounting purposes and shall not require that the assets of each Account be
segregated. The books of accounts, forms and accounting methods used in the
administration of Employees' Accounts shall be the responsibility of, and shall
be subject to the supervision and control of, the Company.
5.2 Allocation of Plan Expenses. As of each Valuation Date, all
-----------------------------
expenses of administering the Plan, including the fees and expenses of the
Trustee shall, at the discretion of the Company, be paid by the Company, the
Employers or by the Trustee from the Trust Fund. If such expenses are paid by
the Trustee from the Trust Fund, each Account shall bear an equitable portion
thereof, in accordance with uniform procedures established by the Company. If
such expenses are paid by the Employers, the Company, in its sole discretion,
having regard to the nature of a particular expense, shall determine the portion
of such expense which is to be borne by a particular Employer.
5.3 Allocation of Trust Income.
--------------------------
(a) As of each Valuation Date, any income or loss of, and any
increase or decrease in the fair market value of the Trust assets since the
preceding Valuation Date shall be credited to or deducted from the Account of
each Employee who has an unpaid balance in his Account as of the preceding
Valuation Date (adjusted in a uniform and non-discriminatory way for
contributions and withdrawals from such Account through the current Valuation
Date) in the ratio that each such Account bears to the total of all such
Accounts.
(b) Notwithstanding subsection (a) above, as of each Valuation
Date, any increase or decrease in the fair market value of any Designated Fund
attributable to an Employee's designated investment therein, and all income and
losses of such Designated Fund since the preceding Valuation shall be credited
to or deducted from the Account of such Employee.
5.4 Allocation of Salary Reduction Contributions. As of the next
--------------------------------------------
Valuation Date administratively practicable after the date they are made, any
Salary Reduction Contributions
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<PAGE>
made by an Employee shall be credited to the Salary Reduction Contributions
Account of such Employee.
5.5 Allocation of Employer Contributions, Forfeitures and Matching
--------------------------------------------------------------
Employer Contributions.
- ----------------------
(a) As of each Annual Valuation Date, any balance in an
Employee's Account that is forfeited during the Plan Year pursuant to Sections
4.5(a), 4.5(b) and 6.4(d) hereof shall be used to restore the Account of any
Employee who during such Plan Year complies with the requirements of Section
6.4(e) hereof.
(b) As of each Annual Valuation Date, the forfeitures, if any,
that remain after application of subsection (a) above shall be used to reduce
the Employers' Matching Employer Contributions under Section 4.3 hereof.
(c) As of the next Valuation Date administratively practicable
after Matching Employer Contributions are contributed by the Employers to the
Trustee, the Matching Employer Contributions for the Plan Year under Section 4.3
hereof shall be allocated among the respective Employer Matching Accounts of
Employees who made Matchable Salary Reduction Contributions to the Plan during
the Plan Year under Section 4.2 hereof and who were employed on the Annual
Valuation Date by the Employer that made the Matching Employer Contributions (or
who terminated Service with such Employer during the Plan Year on account of
Retirement, Total and Permanent Disability or death). Each Employee's Matching
Employer Account shall be credited with an amount equal to the Matching Employer
Contribution made on his behalf.
(d) As of each Annual Valuation Date, the Employer
contribution for the Plan Year under Section 4.1(a) hereof and the forfeitures,
if any, that remain after application of subsections (b) and (c) above shall be
allocated ratably among the respective Employer Accounts of each Employee who
(i) is credited with 1,000 Hours of Service for such Plan Year and (ii) is in
the Service of an Employer on the Annual Valuation Date or had terminated
Service during the Plan Year on account of Retirement, Total and Permanent
Disability or death in the ratio that each such Employee's Compensation bears to
the total Compensation of all Employees who are entitled to an allocation under
this subsection (d) for such Plan Year.
(e) For purposes of this Section 5.5, Compensation means
compensation that is includible in gross income (or would be includible in gross
income but for Section 125, 402(a)(8) or 402(b)(1)(B) of the Code) and is
actually paid to the Employee during that part of the Plan Year in which the
Employee is participating in the Plan.
5.6 Priority of Allocations. All allocations to the Accounts under this
-----------------------
Article 5 shall be deemed to have been made on the related Annual Valuation Date
or other Valuation Date in the order of priority set forth in this Article 5,
even though actually determined at a later date.
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<PAGE>
5.7 Limitation on Allocations. Notwithstanding any other provision to
-------------------------
the contrary, the Annual Addition in any Plan Year with respect to any
Employee's Account and his accounts under all other defined contribution plans
of the Employers shall not exceed the lesser of $30,000 (adjusted for changes in
the cost of living under applicable rules and regulations) and 25% of such
Employee's Compensation. If the amount allocable to an Employee's Account would
exceed the limitation set forth in the immediately preceding sentence, then the
amount in excess of such limitation shall be reduced before allocations are made
to the Employee's Account.
If in any Plan Year the Annual Addition of an Employee exceeds the
limitation set forth in this Section 5.7 as a result of (i) an error in
estimating an Employee's Compensation, (ii) the allocation of forfeitures, (iii)
a reasonable error in determining the amount of salary reduction contributions
(within the meaning of Section 402(g)(3) of the Code) that may be made with
respect to an Employee under the limits of Section 415 of the Code, or (iv)
under other limited facts and circumstances as determined by the Commissioner of
Internal Revenue, then the Company shall reduce such Employee's Annual Addition
to the extent of such excess in the manner described below:
(a) First, by reducing the Employee's Salary Reduction
Contributions allocated to his Account and any Matching Employer Contributions
attributable thereto and distributing to the Employee the amount by which his
Salary Reduction Contributions have been reduced. The amount by which his
Matching Employer Contributions have been reduced shall be forfeited. The amount
so forfeited shall be treated as Matching Employer Contributions or Employer
contributions, or both, to the extent there are any such contributions that have
not yet been paid for the Plan Year. Any remaining amount shall be applied to
reduce Matching Employer Contributions and Employer contributions under Section
4.1 hereof in the next following Plan Year and each Plan Year thereafter until
such amount is reduced to zero.
(b) Second, by reducing the amount of forfeitures in excess of
those applied under Section 5.5(b) hereof to reduce Matching Employer
Contributions allocated to such Employee's Account for such Plan Year and
allocating the amount of such reduction among the Accounts of other Employees as
provided under Section 5.5 hereof.
(c) Third, by reducing the amount of forfeitures allocated to
such Employee's Account that were not used to reduce employer contributions
under other plans maintained by an Employer, in accordance with the terms of
each such plan.
(d) Fourth, by reducing the Employer contributions made
pursuant to Section 4.1 hereof (including any allocation of forfeitures)
allocated to such Employee and allocating the amount by which such allocation is
reduced to a suspense account. In the next following Plan Year, the amount
allocated to the Employee's suspense account shall be allocated to the
Employee's Account to the extent permissible under this Section 5.7 in the same
manner as a Matching Employer Contribution under Section 4.3 hereof or an
Employer contribution under
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<PAGE>
Section 4.1 hereof before any other amounts are allocated to the Employee's
Account under such Sections. For each subsequent Plan Year, any amount held in
the Employee's suspense account shall be reallocated to his Account as described
in the preceding sentence until the amount in the suspense account is exhausted.
If the Employee is not eligible to receive an allocation as of any such Plan
Year, any amount remaining in his suspense account shall be allocated to the
Accounts of all Employees in the same manner as forfeitures.
(e) Fifth, by reducing employer contributions under other
plans maintained by any Employer according to the terms of each such plan.
(f) If a suspense account created under this Section 5.7
exists at any time during a Plan Year, such suspense account shall not
participate in the allocation of the Plan's investment gains and losses.
(g) For purposes of this Section 5.7, Compensation means
compensation that is includible in gross income and is actually paid to the
Employee during the 12-month period ending on the Annual Valuation Date.
5.8 Establishment of Designated Funds.
---------------------------------
(a) The Company directs the Committee to cause the Trustee to
establish Designated Funds in accordance with subsection (b) below among which
Employees shall be allowed to direct the investment of all, or such portion as
the Company shall allow, of their Accounts. The Committee shall undertake to
identify each Designated Fund according to its principal characteristics (e.g.,
"fixed income fund" or "equity fund") for the convenience of the Employees, but
the Committee shall in no way be liable or responsible for the failure of any
fund so designated to attain or maintain the characteristics by which it has
been so identified.
(b) The Committee shall direct the Trustee to establish as
Designated Funds the Aerial Common Stock Fund, which fund shall be invested by
the Trustee in Aerial Common Shares, the TDS Common Stock Fund, which fund shall
hold only those TDS Common Shares transferred to the Trustee from the trust
created under the TDS Plan, and the USCC Common Stock Fund, which fund shall
hold only those USCC Common Shares transferred to the Trustee from the trust
created under the TDS Plan. Investment of Accounts in the TDS Common Stock Fund
and the USCC Common Stock Fund shall be subject to the limitations described in
Section 5.9(b) hereof. In accordance with Section 404(c) of ERISA, the Committee
shall select and also direct the Trustee to establish as Designated Funds at
least 3 collective investment funds or mutual funds each of which (i) is
diversified, (ii) has materially different risk and return characteristics, and
(iii) when combined with investments in the other such Funds tends to minimize
through diversification the overall risk of the Employees. The Designated Funds
selected by the Committee shall in the aggregate enable the Employees by
choosing among them to achieve a portfolio with aggregate risk and return
characteristics at any point within the range
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<PAGE>
normally appropriate for the Employees. The portion of an Employee's Salary
Reduction Account that is reinvested pursuant to the preceding sentence may be
invested in other Designated Funds as directed by the Employee in accordance
with the terms of the Plan.
(c) The Committee may at any time and from time to time, in
the Committee's sole discretion, expand, modify or otherwise alter the
Designated Funds selected by the Committee pursuant to subsection (b) above and
may establish one or more pooled funds. The Committee shall also have the right,
in the Committee's sole discretion, to delegate its responsibility under this
Section 5.8 to one or more other fiduciaries selected by the Committee.
(d) The Director of Compensation and Benefits of the Company
is the fiduciary responsible for ensuring that (i) adequate procedures are
established and followed to maintain confidentiality with respect to Employee's
purchases, holdings and sales of securities under the Aerial Common Stock Fund,
the TDS Common Stock Fund and the USCC Common Stock Fund and Employees' exercise
of voting, tender and similar rights with respect to such funds and (ii) a
fiduciary independent of the Employers is appointed to carry out activities with
respect to such funds that the Director of Compensation and Benefits of the
Company determines involve a potential for undue Employer influence upon
Employees with regard to the direct or indirect exercise of shareholder rights.
The Director of Compensation and Benefits of the Company can be contacted at the
Human Resources Department for the Company at the Company's corporate office.
5.9 Employee Direction of Investments.
---------------------------------
(a) Except as provided in subsection (b) below, each Employee
shall have the opportunity to direct, at the time and in the manner prescribed
by the Company that, his Rollover Account, that portion of the amount of each
Salary Reduction Contribution made on his behalf and that portion of his Prior
Plan Account that the Company shall allow the Employee to direct investment
thereof (together, the "Self-Directed Amounts"), is to be invested in each
Designated Fund; provided that the Employee may not elect to invest less than
five percent (5%) (or a whole number multiple thereof) in any Designated Fund.
The opportunity to direct investment of the Self-Directed Amounts shall be
offered in accordance with Section 404(c) of ERISA. Except as otherwise provided
in Section 404(c) of ERISA, all investment directions made pursuant to this
Section 5.9 and Section 5.11 hereof shall be followed. The fiduciaries for the
Plan will not be liable for any losses that are the direct and necessary result
of an Employee's investment directions.
(b) Each Employee who, immediately prior to the Effective
Date, was a participant in the TDS Plan and had all or a portion of his account
under the TDS Plan invested in the TDS Common Stock Fund or the USCC Common
Stock Fund shall be permitted to continue such investments under this Plan.
Notwithstanding anything contained herein to the contrary, however, no employee
(including an Employee described in the preceding sentence)
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<PAGE>
shall be permitted to direct any portion of his Self-Directed Amounts or any
other portion of such Employee's current Account to be invested in the TDS
Common Stock Fund or the USCC Common Stock Fund. An Employee described in the
first sentence above may direct, at the time and in the manner that changes in
investment elections may be made under this Plan, as prescribed by the Company,
that all or any portion of his account invested in the TDS Common Stock Fund or
the USCC Common Stock Fund be invested in any other Designated Fund; provided
that the Employee may not thereafter direct that any amounts be reinvested in
the TDS Common Stock Fund or the USCC Common Stock Fund.
(c) In the event any Employee fails to so direct the manner of
investment of any contribution and deliver such direction in the time and manner
specified by the Company, such contribution shall be invested as directed by the
Committee in the Designated Fund with the least risk of loss of principal.
5.10 Fund Allocations. Dividends, interest, gains, losses, expenses and
----------------
other distributions received by the Trustee with respect to a Designated Fund
shall be allocated to that Designated Fund.
5.11 Duration of Investment Election. An investment direction by an
---------------------------------
Employee shall continue in effect until changed by such Employee at the time and
in the manner prescribed by the Company. An Employee's investment direction
applicable to future Salary Reduction Contributions may be changed as of the
first day of the next payroll period administratively practicable after the
change in direction is received by the Company or its designee. An Employee's
investment direction applicable to his current Account balance may be changed as
of the next Valuation Date administratively practicable after such change in
direction is received by the Company or its designee.
ARTICLE 6. PAYMENT OF BENEFITS.
6.1 Retirement. An Employee who attains his Normal Retirement Date
----------
shall have a nonforfeitable right to the entire balance in his Account. An
Employee whose Service terminates due to retirement on or after his Normal
Retirement Date shall be entitled to his Account determined as of the next
Valuation Date administratively practicable following the date of his
retirement. Such Account shall be distributed in accordance with the provisions
of this Article 6.
6.2 Disability. An Employee whose Service terminates due to Total and
----------
Permanent Disability shall be entitled to the entire balance in his Account
determined as of the next Valuation Date administratively practicable following
the date of such disability. Such Account shall be distributed in accordance
with the provisions of this Article 6.
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<PAGE>
6.3 Death. The Beneficiary of an Employee whose Service terminates due
-----
to his death shall be entitled to the entire balance in such Employee's Account
determined as of the next Valuation Date administratively practicable following
the date of his death. Such Account shall be distributed in accordance with the
provisions of this Article 6.
6.4 Other Termination of Service.
----------------------------
(a) An Employee whose Service terminates for any reason other
than Retirement, Total and Permanent Disability or death shall be entitled to
receive the entire balance in his Salary Reduction Contributions Account and
Rollover Account and, if any, the portion of his Prior Plan Account attributable
to Before-Tax Contributions and amounts rolled over from another plan, and the
following percentage of the balance in his Employer Account and Employer
Matching Account and, if any, the remaining balance in his Prior Plan Account,
determined as of the next Valuation Date administratively practicable following
the date of such termination (such Account shall be distributed in accordance
with the provisions of this Article 6):
Nonforfeitable
Years of Vesting Service Percentage
------------------------ --------------
Less than 1 0%
At least 1, but less than 2 34%
At least 2, but less than 3 67%
3 years or more 100%
(b) Notwithstanding subsection (a) above, if an Employee
participated in the TDS Plan or an Amended Plan, such Employee's non-forfeitable
percentage under subsection (a) above shall not be less than his non-forfeitable
percentage determined under the TDS Plan or such Amended Plan. In addition, in
the case of an Employee described in the preceding sentence who is credited with
3 or more years of Vesting Service under an Amended Plan, such Employee shall be
permitted to elect to have his non-forfeitable percentage under the Plan
determined in accordance with the vesting schedule in effect under such Amended
Plan without regard to subsection (a) above.
(c) Any forfeitable balance remaining in the Employer Account,
Employer Matching Account or Prior Plan Account of an Employee who terminates
Service shall be forfeited and allocated in accordance with Section 5.5 hereof
in the Plan Year in which such Employee's Service terminates.
(d) If an Employee who was not fully vested in his Account
when he terminated Service and who subsequently returns to Service after
receiving a distribution of the nonforfeitable balance in his Account, he may
repay the full amount of such distribution to the
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Plan on or before the earlier of (i) the Annual Valuation Date on which the
Employee incurs 5 consecutive Breaks in Service following such distribution, and
(ii) the end of the 5-year period beginning with the date the Employee returns
to Service. Upon such repayment, the Employee's Account shall be restored
without adjustment for any allocations provided under Article 5 hereof.
6.5 Payment of Benefits.
-------------------
(a) An Employee who terminates Service on or after his Normal
Retirement Date shall receive the nonforfeitable balance in his Account in a
single lump sum not later than 60 days after the Annual Valuation Date next
following such termination of Service. An Employee who terminates Service before
his Normal Retirement Date shall receive the nonforfeitable balance in his
Account in a single lump sum as soon as practicable after the Valuation Date
next following the Employee's termination of Service or as soon as practicable
after the Valuation Date next following the date the Employee has provided all
required distribution information, if such balance does not exceed $5,000; or if
the nonforfeitable balance in his Account exceeds $5,000, the Employee may elect
to receive the nonforfeitable balance in his Account in a single lump sum (i)
within 60 days after the Annual Valuation Date next following his termination of
Service, (ii) not later than 60 days after the Annual Valuation Date next
following his Normal Retirement Date or (iii) as soon as administratively
practicable after the Valuation Date next following the later of the Employee's
termination of Service and the date the Employee has properly completed and
delivered all required distribution forms. Notwithstanding anything contained
herein to the contrary, an Employee whose Service terminates due to Total and
Permanent Disability may elect to receive the nonforfeitable balance in his
Account in a single lump sum within 60 days after any Annual Valuation Date
following such Employee's termination of Service, or, as soon as
administratively practicable after the Valuation Date next following the later
of the Employee's termination of Service and the date the Employee has properly
completed and delivered all required distribution forms, but in no event later
than the earlier of (i) the date on which he returns to work for an Employer or
Affiliate and (ii) 60 days after the Annual Valuation Date next following his
Normal Retirement Date.
(b) Notwithstanding subsection (a) above, an Employee whose
nonforfeitable balance in his Account exceeds $5,000 may elect to receive the
distribution of the nonforfeitable balance in his Account, commencing at the
time a lump sum distribution would commence under subsection (a) above, in
substantially equal annual or more frequent installments over a period
determined by the Employee which does not exceed the joint life and last
survivor expectancy of the Employee and his designated Beneficiary (provided,
however, that the present value of the payments to be made to the Employee shall
be more than 50% of the present value of the total payments to be made to the
Employee and his designated Beneficiary, determined as of the date such
installments commence). Such installments shall continue until the entire
nonforfeitable balance in the Employee's Account has been distributed. Further
notwithstanding subsection (a) above and this subsection (b), if an Employee
participated in an Amended Plan, such Employee shall be entitled to elect to
receive distribution of his Prior Plan Account, if any, in any manner
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permitted under such Amended Plan, as set forth in an Appendix to this Plan
which specifically names the Amended Plan in which such Employee participated.
(c) Any nonforfeitable balance in an Employee's Account not
distributed after the Valuation Date next following the Employee's termination
of Service shall remain in the Trust and, in accordance with Article 5, shall
continue, until the next Valuation Date administratively practicable following
the date the Employee has properly completed and delivered all required
distribution forms, to participate in the allocation of income, gains, losses
and expenses, but shall not continue to participate in the allocation of
contributions and forfeitures.
(d) If an Employee dies prior to receiving the nonforfeitable
balance in his Account, such balance shall be distributed in a single lump sum
to his Beneficiary within 5 years after the date of his death.
(e) If, after the Effective Date, an Employee fails to
terminate Service by the April 1 immediately following the calendar year in
which he attains age 70-1/2, distribution of such Employee's nonforfeitable
balance in his Account (i) shall commence, in the case of an Employee who is a
5-percent owner as defined in Section 416(i) of the Code, or (ii) may commence,
upon any other such Employee's election, in either case on the April 1 next
following the calendar year in which the Employee attains age 70-1/2. If at the
time of the distribution such Employee's non-forfeitable balance exceeds $5,000,
the nonforfeitable balance in the Employee's Account shall be distributed in
substantially equal annual or more frequent cash installments over a period
determined by the Employee which does not exceed the joint life and last
survivor expectancy of the Employee and his designated Beneficiary (provided,
however, that the present value of the payments to be made to the Employee shall
be more than 50% of the present value of the total payments to be made to the
Employee and his designated Beneficiary, determined as of the date such
installments commence). Such installments shall continue until the entire
nonforfeitable balance in the Employee's Account has been distributed or, if
earlier, until the Employee's termination of Service (at which time the then
nonforfeitable balance in the Account shall be distributed in accordance with
subsection (a) above). Notwithstanding the preceding sentence, an Employee
(other than a 5 percent owner) who is in Service after he attains age 70-1/2 may
elect to stop such installments at any time. If such Employee's non-forfeitable
balance at the time of distribution does not exceed $5,000, notwithstanding any
provision to the contrary, the Company shall direct the Trustee to distribute
the entire non-forfeitable Account balance to the Employee in a single lump sum
no later than April 1 of the calendar year following the calendar year in which
such Employee attains age 70-1/2.
(f) Payment of benefits hereunder shall be made in cash except
to the extent that the Employee's Account is invested in the Aerial Common Stock
Fund, the TDS Common Stock Fund or the USCC Common Stock Fund in which case, to
the extent his Account is so invested, payment shall be made in whole Aerial
Common Shares, TDS Common Shares or
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USCC Common Shares, respectively (plus cash in lieu of fractional shares),
unless the Employee elects to be paid entirely in cash.
(g) For purposes of determining the minimum amount to be
distributed under any annuity form of benefit during a calendar year, the life
expectancies of an Employee and such Employee's Beneficiary shall be calculated
using the Employee's and the Beneficiary's attained ages in the calendar year in
which the Employee attains age 70-1/2.
(h) Notwithstanding anything herein to the contrary, in the
case of a distribution from the Plan (excluding any amount offset against the
Employee's Account to repay the outstanding balance of any unpaid loan) which is
an eligible rollover distribution within the meaning of Section 402 of the Code,
an Employee (or surviving spouse of an Employee) may elect that all or any
portion of such distribution to which he is entitled which equals at least $200
shall be directly transferred as a rollover contribution from the Plan to one of
the following: (i) an individual retirement account described in Section 408(a)
of the Code, (ii) an individual retirement annuity described in Section 408(b)
of the Code, (iii) an annuity plan described in Section 403(a) of the Code, or
(iv) another plan qualified under Section 401(a) of the Code (provided, however,
that a surviving spouse of an Employee may only elect to have such distribution
transferred directly to an individual retirement account or individual
retirement annuity). Notwithstanding the foregoing, an Employee (or his
surviving spouse) shall not be entitled to elect to have a portion which equals
less than the total amount of such distribution transferred as a rollover
contribution as described in the preceding sentence unless such portion equals
at least $500. At least 30 days and no more than 90 days prior to the date on
which an Employee is entitled to receive a distribution from the Plan (or such
other time as prescribed by law), the Company shall provide a written
explanation to the Employee (or his surviving spouse) of the availability of the
direct rollover option, the rules that require income tax withholding on
distributions, the rules under which the Employee (or his surviving spouse) may
roll over the distribution within 60 days of receipt and, if applicable, other
special tax rules that may apply to the distribution.
(i) Notwithstanding anything herein to the contrary, in the
event that the recordkeeper for the Plan is changed, distributions may be made
at such time as prescribed by the Company in order to accommodate the transfer
of records to the new recordkeeper.
6.6 Designation of Beneficiary.
--------------------------
(a) Each Employee who has an unpaid balance in his Account may
file with the Company from time to time a written designation of Beneficiary,
and any payments required under the Plan to be made upon the Employee's death
shall be made to such Beneficiary. Notwithstanding any prior designation, if the
Employee has a Surviving Spouse at the time of his death, the Trustee shall make
any required payments to the Surviving Spouse unless the Employee and his
Surviving Spouse shall have designated an alternate beneficiary in the manner
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described in subsection (b) below. If an Employee fails to validly designate a
Beneficiary, or if no designated Beneficiary survives the Employee, any payments
required hereunder shall be made by the Trustee in the following order of
priority:
(i) to the Employee's Surviving Spouse; or if none,
(ii) to the Employee's descendants, per stirpes; or if none,
(iii) to the executor or administrator of the Employee's estate; or
if no executor or administrator shall have been appointed for such
Employee's estate within six months following the date of such
Employee's death,
(iv) to the person or persons who would be entitled under the
intestate succession laws of the state of the Employee's domicile to
receive the Employee's personal estate in the proportions provided in
such laws.
(b) At any time prior to the Employee's death, the Employee,
with the consent of his Surviving Spouse, may designate a Beneficiary other than
his Surviving Spouse. The Surviving Spouse's consent shall acknowledge the
effect of the Employee's designation and shall be witnessed by a Notary Public.
(c) Any designation made by an Employee and his Surviving
Spouse described in subsection (b) above may be revoked in writing without the
Surviving Spouse's consent and a new designation made at any time prior to the
Employee's death. Any new designations must again satisfy the requirements of
subsection (b) above.
(d) For purposes of this Section 6.6, Surviving Spouse means
the person to whom the Employee has been married during the entire 12-month
period ending on the date of his death.
6.7 Location of Employee or Beneficiary Unknown. If any benefit
------------------------------------------------
attributable to an Employee's Account remains unpaid for a period of 5 years
solely because the location of such Employee or Beneficiary is unknown, the
Employee's Account shall be forfeited and shall be applied to reduce his
Employer's contributions under Article 4 hereof. The Company shall use due
diligence to notify an Employee or Beneficiary including registered mail, return
receipt requested, at his last known address. If an Employee or Beneficiary is
located after his Account has been so forfeited, such Account will be restored
without adjustment for any allocations provided under Article 5, hereof.
6.8 Distribution After Age 59-1/2. Any Employee may direct a
---------------------------------
distribution of all or any portion of his Salary Reduction Contributions Account
at anytime after he attains age 59-1/2 upon written request to the Company.
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6.9 Hardship Withdrawal.
-------------------
(a) If an Employee establishes to the satisfaction of the
Company his need for funds because of a hardship resulting from (i) the purchase
(excluding mortgage payments) of a primary residence, (ii) the payment of
tuition for the next twelve months of post-secondary education for the Employee,
his spouse or his children, or (iii) a demonstrable financial emergency as
determined by the Company in a uniform and non-discriminatory manner arising out
of a medical condition, accidental injury or other calamity affecting the
Employee, his spouse or children, he shall be entitled to a hardship withdrawal
from his Salary Reduction Contributions Account and, if any, the portion of his
Prior Plan Account attributable to Before- Tax Contributions in accordance with
subsection (d) below.
(b) The amount of such hardship withdrawal shall be determined
by the Company, in its sole discretion, but shall not exceed the lesser of: (i)
the Employee's need for funds, which need shall include any amounts necessary to
pay any federal, state, or local income taxes or penalties reasonably
anticipated to result from the distribution, (ii) the aggregate of his Salary
Reduction Contributions and, if any, Before-Tax Contributions, in either case,
for the current and all previous Plan Years (reduced by the amount of all prior
hardship withdrawals under the Plan), and (iii) the amount that is not
reasonably available from other resources of the Employee (including Plan loans
pursuant to Section 6.10 hereof). For purposes of this Section 6.9, the
aggregate of an Employee's Salary Reduction Contributions and, if any,
Before-Tax Contributions shall be determined as of the next Valuation Date
administratively practicable following his request without regard to the
allocations of income, expense or gain thereon.
(c) Such amount shall be distributed in cash as soon as
practicable after determination by the Company that such withdrawal is to be
made, and such withdrawal shall involve no forfeiture by the Employee, no
suspension of participation for the Employee and shall not affect his rights
under other provisions of the Plan, except as provided in subsection (d) below.
(d) An Employee must request a hardship withdrawal by written
notice to the Company. If such request is approved in accordance with the
provisions of this Section 6.9 by the Company, the Employee may make a hardship
withdrawal from his Salary Reduction Contributions Account and, if any, the
portion of his Prior Plan Account attributable to Before- Tax Contributions
subject to the following restrictions:
(i) if an Employee makes a hardship withdrawal from his Salary
Reduction Contributions Account or, if any, the portion of his Prior
Plan Account attributable to Before-Tax Contributions, further Salary
Reduction Contributions under Section 4.2 hereof shall be prohibited
for 1 year from the date of such withdrawal;
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(ii) no hardship withdrawal in an amount of less than $500.00 (or
the aggregate of the Employee's Salary Reduction Contributions Account
and, if any, the portion of his Prior Plan Account attributable to
Before-Tax Contributions, if less than $500) shall be permitted; and
(iii) hardship withdrawals shall not be allowed more than once in
any 24-month period commencing on the date of each such withdrawal.
6.10 Plan Loans.
----------
(a) Notwithstanding anything herein to the contrary, upon
application of an Employee, the Company may permit the Committee to provide for
a loan from the Plan to such Employee, in accordance with a uniform and
nondiscriminatory policy established by the Committee.
(b) The terms of any such loan shall be set forth in a
promissory note made by the Employee and made payable to the order of the Plan.
Loans from the Plan to any Employee shall be secured by 50% of the
nonforfeitable balance in the borrowing Employee's Account and may be further
secured in whole or in part by such additional security as the Committee may
require. The amount of any loan to an Employee (when added to the outstanding
balance of all other loans to such Employee from the Plan or any other qualified
plan of the Company, an Affiliate or a Related Entity, including any principal
amount thereof repaid within the period beginning 1 year before the date of the
loan and ending on the date of the loan) shall not exceed 50% of the
nonforfeitable balance in the Employee's Salary Reduction and Rollover
Contributions Accounts and, if any, the portion of his Prior Plan Account
attributable to Before- Tax Contributions and amounts rolled over from another
plan (limited to $50,000).
(c) Loans from the Plan shall be repaid by payroll deduction
within a period determined by mutual agreement between the Committee and the
Employee. Such repayment period shall not exceed 5 years.
(d) Loans from the Plan shall bear a reasonable rate of
interest as determined by the Committee.
(e) For purposes of Section 5.8 hereof, loans from the Plan to
an Employee shall be treated as an investment in a Designated Fund and interest
thereon shall be allocated in accordance with Section 5.3(b) hereof.
(f) No loan shall be permitted in an amount of less than
$1,000.00.
(g) Repayments of any loan made pursuant to subsection (a)
above shall be suspended during any period in which an Employee is in qualified
military service (as defined in
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Section 414(u)(5) of the Code). Repayments shall recommence at such time as
prescribed by the Committee. Any such suspension shall not require the loan to
be treated as a distribution for purposes of Section 72(p) of the Code and shall
not be taken into account for purposes of Sections 401(a) and 4975(d)(1) of the
Code.
ARTICLE 7. TRANSFER OF BENEFITS.
7.1 Transfer of Benefits. If an Employee entitled to receive benefits
--------------------
under the Plan is subsequently employed by another employer having a pension or
profit sharing plan qualified under Sections 401 and 501 of the Code, the
Company may transfer the Employee's benefits, in cash or in kind, from the Plan
directly to the trustee or custodian of the plan of the Employee's new employer,
under uniform procedures established by the Company, and subject to the
following conditions:
(a) the trustee or custodian of such plan shall be authorized
to accept assets from the Plan;
(b) the assets so transferred shall be maintained in a
separate account in such plan; and
(c) the assets so transferred shall not be forfeitable or
reduce in any way the obligation of the new employer under such plan.
7.2 Acceptance of Transferred Benefits. The Company may direct the
-------------------------------------
Trustee to accept benefits from an Employee (whether or not the Employee is
eligible to immediately participate herein) who has received benefits from, or
directly from the trustee or custodian of, a qualified pension or profit sharing
plan or an individual retirement account defined in Section 408 of the Code,
provided such benefits are treated as either "rollover contributions" under
Section 408(d)(3) of the Code or "rollover amounts" under Section 402(a)(5) of
the Code, on behalf of an Employee entitled to receive such benefits, upon the
same terms and conditions set forth in Section 7.1 hereof. The benefits so
accepted shall be maintained in the Rollover Account. Any benefits delivered by
an Employee must be delivered to the Trustee on or before the 60th day after the
day on which the Employee receives the distribution or on or before such later
date as may be prescribed by law.
ARTICLE 8. ADMINISTRATION OF THE PLAN.
8.1 Plan Administrator. The Company shall be responsible for the
-------------------
administration of the Plan, in accordance with the terms hereof and shall have
full power and authority, according to the terms and within the limits of the
Plan:
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(a) to determine all questions arising in administration of
the Plan, including the power to determine the rights or eligibility of
Employees and Beneficiaries and the amounts of their respective interests;
(b) to adopt such rules and regulations and to exercise such
powers, rights or privileges as the Company deems desirable for the Plan's
administration that are consistent with the purposes of the Plan;
(c) to employ such agents, attorneys, actuaries, accountants,
or other persons (who may also be employees of the Company) as the Company deems
desirable for administration of the Plan, to delegate to such persons duties and
obligations for its administration, and to pay them reasonable compensation;
(d) to determine all matters with respect to the maturity of
benefits, distributions from the Trust, and the identity of distributes; and
(e) to maintain the Account records of all Employees.
8.2 Claim for Benefits.
------------------
(a) In the event any claim is made by an Employee,
Beneficiary, or any other person, with respect to the amount of any distribution
under the Plan, such claimant shall file his claim in writing with the Benefits
Department.
(b) The Benefits Department shall review the claim and, unless
special circumstances require an extension of time, within 90 days after receipt
of the claim, give written notice by registered or certified mail to the
claimant of its decision regarding the claim. If special circumstances require
an extension of time, the claimant shall be so advised in writing within the
initial 90-day period and in no event shall such an extension exceed 90 days. If
the claim is wholly or partially denied, the notice of the decision that is
furnished to any claimant hereunder shall contain the following information
written in a manner calculated to be understood by the claimant:
(i) a specific reference to the Plan provisions applicable
to such claim;
(ii) the specific reason or reasons for disposition of such claim;
(iii) if applicable, a description of any additional material or
information necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary; and
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(iv) an explanation of the Plan's claim review procedure set forth
in subsections (c) and (d) below.
(c) Any claimant whose claim has been denied in whole or in
part may request the Committee to review such denial. Any request for the review
of the denial of any such claim shall be made in writing to the Committee no
later than 60 days after the date the notice described in subsection (b) above
is received by such claimant. In connection with the review of any such claim,
the claimant or his duly authorized representative shall have the right to
review all pertinent documents and submit issues and comments to the Committee
in writing within such 60-day period.
(d) The Committee shall promptly review the prior disposition
of such claim, and shall notify such claimant of its decision, in writing, no
later than 60 days after its receipt of such request for such review, unless
special circumstances require an extension of time. If special circumstances
require an extension of time, the claimant shall be so advised in writing within
the initial 60-day period and in no event shall such an extension exceed 60
days. The notice of the Committee's final decision shall include specific
reasons for the decision and the specific references to the Plan provisions on
which the decision is based and shall be written in a manner calculated to be
understood by the claimant.
ARTICLE 9. ADMINISTRATION OF THE TRUST.
A Trust shall be created by the execution of a Trust agreement
between the Company and the Trustee. The Company and the Trustee will execute
the Aerial Operating Company, Inc. Tax-Deferred Savings Trust to serve as the
Trust under the Plan. All contributions made under this Plan by an Employer or
an Employee shall be paid to the Trustee. The Trustee shall hold all monies and
other property received by it and invest and reinvest the same, together with
the income therefrom, on behalf of the Employees collectively in accordance with
the provisions of the Trust agreement and, to the extent directed, in accordance
with Employees' investment directions pursuant to Section 5.9 hereof. The
Trustee shall make distributions from the Trust Fund at such time or times to
such person or persons and in such amounts as the Company shall direct in
accordance with this Plan. The Trust may provide for the collective investment
of assets of this Plan and assets of such other plans that are qualified under
Section 401(a) of the Code and that are maintained by the Company or any
Affiliate, provided that such collective investment does not result in the Plan
and such other plans being deemed one plan under Section 414(l) of the Code.
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ARTICLE 10. AMENDMENT OR TERMINATION OF THE PLAN AND
ADOPTION OF THE PLAN BY OTHER EMPLOYERS.
10.1 Right to Amend or Terminate. The Company intends to continue the
---------------------------
Plan and contributions hereunder indefinitely, but such continuance is not
assumed as a contractual obligation. The Company expressly reserves the
exclusive right, retroactively to the extent permitted by law, to amend or
terminate the Plan and to reduce, suspend or discontinue contributions hereunder
at any time and without the consent of any other party, including any Affiliate
or Related Entity that adopts the Plan, provided that no such amendment (other
than an amendment required to obtain or retain qualification of the Plan under
the Code) shall operate to deprive any person without his written consent of any
accrued benefit hereunder. Copies of any amendment to the Plan shall be
communicated to any Affiliate or Related Entity that adopts the Plan. No
amendment affecting the rights or duties of the Trustee shall be effective
without the written consent of the Trustee. Any amendment to or a termination of
the Plan or any reduction, suspension or discontinuance of contributions
hereunder shall be effected by the Board of Directors of the Company.
10.2 Effect of Termination. The Plan may be terminated in whole or in
----------------------
part and the termination of the Plan by the board of directors of one Employer
with respect to such Employer shall not automatically constitute a termination
of the Plan with respect to any other Employers. With respect to that portion of
the Plan that has terminated, the Company shall, in its discretion, either
terminate that portion of the Trust relating to the portion of the Plan that has
terminated and direct the Trustee to distribute the assets or hold such assets
in further trust under the provisions hereof; provided, however, that no
distribution of assets shall be made to an affected Employee if a successor
plan, as defined in applicable rules and regulations, is established or
maintained by such Employee's Employer. In either such event or in the event of
the complete discontinuance of contributions to the Plan, the Account of each
Employee with respect to the portion of the Plan that has terminated (or with
respect to which there has been a complete discontinuance of contributions to
the Plan) shall become nonforfeitable.
10.3 Adoption of the Plan by Affiliate or Related Entity.
---------------------------------------------------
(a) Any Affiliate or Related Entity may adopt the Plan with
respect to its employees with the written consent of the Company's Chairman or
President by executing an Adoption Agreement substantially in the form of
Appendix B. Each Affiliate or Related Entity that adopts the Plan delegates to
the Company the right to act on the Affiliate's or Related Entity's behalf in
all matters pertaining to the Plan, including but not limited to the
administration, amendment and termination of the Plan, as may be necessary or
desirable from time to time in the sole judgment of the Company.
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(b) The adoption of the Plan by an Affiliate or Related Entity
shall not be considered the adoption of a new plan by such Affiliate or Related
Entity for purposes of Section 414(l) of the Code and any contributions
(including the income earned thereon) by such Affiliate or Related Entity
thereto shall be made available to pay benefits to any employee or beneficiary
of the Company or any other Affiliate or Related Entity that adopts the Plan.
(c) An Affiliate or Related Entity shall not be treated as
adopting the Plan (under subsection (b) above) solely because employees of such
Affiliate or Related Entity are included in the definition of Employees, as
defined in Article 2 hereof.
(d) The Company has consented to the adoption of the Plan by
the Affiliates and Related Entities listed in Appendix A.
10.4 Adoption of the Plan by Successor. The Plan shall not be deemed
----------------------------------
terminated by reason of the transfer of the business of the Company or an
Affiliate or Related Entity to a successor or successors by means of merger,
acquisition of the Company's or an Affiliate's or Related Entity's assets or
stock, or otherwise, at any time or times, if such successor or successors
adopts the Plan with the intention of continuing it and notifies the Trustee in
writing of such adoption.
ARTICLE 11. GENERAL PROVISIONS.
11.1 Merger or Consolidation with Another Plan. In the event of any
--------------------------------------------
merger or consolidation of the assets of the Plan with, or transfer of assets or
liabilities to, any other plan, trust or fund established and qualified under
Sections 401 and 501 of the Code, each Employee in this Plan at the time of any
such event shall, after the merger, consolidation or transfer, have the right to
receive an accrued benefit which is equal to or greater than the accrued benefit
he would have been entitled to receive immediately before such merger,
consolidation, or transfer (if the Plan had then terminated).
11.2 Nonreversion.
------------
(a) It shall be impossible for any assets of the Plan to be
used for or diverted to purposes other than for the exclusive benefit of
Employees or Beneficiaries (including the payment of the expenses of the Trust)
or for any funds to revert to any Employer, except as otherwise provided in this
Section 11.2.
(b) If the establishment of the Plan and Trust fails to
qualify under Sections 401 and 501 of the Code because the Internal Revenue
Service issues an adverse determination letter, and if the application for
determination was submitted to the Internal Revenue Service before the due date
of the Employer's federal income tax return for the taxable year of the Employer
in which the Plan was adopted (or such later time as may be permitted under
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applicable rules and regulations), the Trustee shall, upon written request of
the Company, return to the Employer the portion of the Trust Fund applicable to
Employees and former Employees of such Employer within one year after the date
the Internal Revenue Service issues such adverse determination letter.
(c) If an Employer contribution under Section 4.1 hereof or a
Matching Employer Contribution under Section 4.3 hereof is disallowed as a
deduction under Section 404 of the Code, then, to the extent the deduction is
disallowed, the Trustee shall, upon the written request of the Employer, return
the contribution to the contributing Employer within 1 year after the date that
the deduction is disallowed.
(d) If a contribution under Section 4.1 hereof or Section 4.3
hereof or any portion thereof is made by an Employer under a mistake of fact,
the Trustee shall, upon written request of the Employer, return the contribution
or such portion to the Employer within 1 year after the date of payment to the
Trustee.
(e) If, after all liabilities of the Plan have been satisfied,
any residual assets remain when the Plan is terminated, such assets shall be
returned to participating Employers in such portions as the Company determines.
(f) Any contribution to be returned to an Employer under
subsections (c) or (d) above shall be (i) the amount contributed, less (ii) the
amount that would have otherwise been contributed, less (iii) losses
attributable thereto.
11.3 Nonalienation.
-------------
(a) To the fullest extent permitted by law, no right or
interest of any Employee or Beneficiary arising out of or created by the Plan
either before or after termination of Service shall be subject to execution,
attachment, garnishment or other legal or judicial process whatsoever by any
person, whether as a creditor or otherwise. Except as provided in subsection (b)
below, no Employee or Beneficiary shall have any right to alienate, encumber or
assign any of the payments or proceeds or any other interest arising out of or
created by the Plan, and any action to do so shall be void.
(b) Subsection (a) above shall not apply to any domestic
relations order which is determined to be a qualified domestic relations order,
as defined in Section 414(p) of the Code. The Company shall adopt written
procedures to determine the qualified status of domestic relations orders and to
administer distributions under such qualified orders. A domestic relations order
determined to be a qualified domestic relations order shall not require the
payment of benefits to any alternate payee before the earlier to occur of (i)
the earliest date as of which payment of the nonforfeitable percentage of the
Employee's Account could commence (i) if he terminated employment on his 50th
birthday or (II) following his termination of employment,
-42-
<PAGE>
whichever shall occur first, and (ii) as soon as administratively practicable
after the date such order is determined by the Benefits Department to be a
qualified domestic relations order.
11.4 Facility of Payment. If at any time any person to whom benefits
-------------------
are payable hereunder is under a legal disability or is in the opinion of the
Company incapable of properly managing his affairs, the Company may expend such
benefits for the benefit of such person, or may pay such benefits over to the
parent, guardian or custodian under any Uniform Transfers (or Gifts) to Minors
Act or to any person with whom the person is residing without responsibility for
its expenditure.
11.5 Indemnification. The Company shall indemnify its officers and
----------------
employees from and against any and all claims, losses, damages, expenses and
liability, including attorney's fees, that arise out of an alleged breach of
fiduciary duty, other than claims, costs, losses, damages, expenses, liability
and attorney's fees incurred as a result of gross negligence or willful
misconduct of such a person. The Company shall have the right, but not the
obligation, to conduct the defense of any officer or employee in a suit brought
alleging a breach of fiduciary duty.
11.6 Limitation of Rights. An Employee and his Beneficiary shall have
--------------------
no right, title or claim in or to any specific asset of the Trust, but shall
have the right only to distributions from the Trust Fund on the terms and
conditions herein provided.
11.7 Employment Non-Contractual. The Plan is purely voluntary on the
---------------------------
part of the Employers. Neither the establishment of the Plan nor any changes
therein, shall be construed as giving any Employee or any other person any legal
or equitable right against any Employer or the Trustee, unless the same shall be
specifically provided for herein, or as giving any Employee the right to be
retained in an Employer's employ. All Employees shall remain subject to
discharge from employment to the same extent as if the Plan had never been
established.
11.8 Governing Laws. The Plan shall be construed and enforced according
--------------
to the laws of the State of Illinois and, where applicable, the provisions of
ERISA. In the event of any conflict between the provisions of ERISA and the
provisions hereof, the former shall apply and the Plan shall be interpreted to
the extent necessary to eliminate any such conflicts. Each provision hereof
shall be treated as separable, so that if any one or more provisions shall be
adjudged or declared illegal, invalid or unenforceable, this Plan shall be
interpreted, and shall remain in full force and effect, as though such provision
or provisions had never been contained herein.
-43-
<PAGE>
ARTICLE 12. TOP-HEAVY PROVISIONS.
12.1 Determination of Top-Heaviness.
------------------------------
(a) The Plan shall be "Top-Heavy" for any Plan Year if the
Accounts of Key Employees exceed 60% of the Accounts of all Employees,
determined as of the Annual Valuation Date immediately preceding the Plan Year
for which Top-Heaviness is being determined.
(b) For purposes of determining Top-Heaviness, (i) all other
qualified plans of the Employers in which a Key Employee participates, (ii) all
other qualified plans that enable the Plan to meet the requirements of Section
401(a)(4) or 410 of the Code, and (iii) in the discretion of the Company, all
other qualified plans maintained by the Employers shall be aggregated with the
Plan.
(c) For purposes of determining Top-Heaviness, the Account of
any Employee shall be increased by (i) any contribution that was due but unpaid
as of the applicable Annual Valuation Date, and (ii) any distribution of the
Employee's Account during the 5-Plan Year period ending on the applicable Annual
Valuation Date, and (iii) any rollovers and transfers to the extent required
under Section 416(g)(4) of the Code.
(d) For purposes of determining Top-Heaviness, the Account of
any Employee shall be disregarded if (i) the Employee is not a Key Employee for
the Plan Year but was a Key Employee for any prior Plan Year, or (ii) the
Employee had not performed any services for an Employer at any time during the
5-Plan Year period ending on the Annual Valuation Date.
(e) For purposes of this Article 12, Key Employee means any
Employee who, at any time during the 5-Plan Year period ending on the Annual
Valuation Date provided in subsection (a) above, is or was:
(i) an officer of the Company or Affiliate whose Compensation
exceeds 50% of the dollar amount specified in Section 415(b)(1)(A) of
the Code; provided, however, that no more than the lesser of (i) 50
Employees, and (ii) the greater of 3 Employees and 10% of all Employees
shall be treated as officers;
(ii) 1 of the 10 Employees who own the largest interests in the
Company or Affiliate (which ownership interest is more than 1/2% in
value in the Company or any Affiliate) and whose Compensation exceeds
the dollar limit specified in Section 415(c)(1)(A) of the Code;
(iii) a 5% owner of the Company or Affiliate; or
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<PAGE>
(iv) a 1% owner of the Company or Affiliate whose Compensation
exceeds $150,000.
12.2 Minimum Allocation. For each Plan Year that the Plan is Top-Heavy,
------------------
the allocation of Employer contributions (not including Salary Reduction
Contributions or Matching Employer Contributions) to the Account of each
Employee who had not terminated Service during the Plan Year and who is not a
Key Employee shall not be less than the lesser of (a) 3% of such Employee's
Compensation, or (b) the largest percentage allocated to any Key Employee
(determined by dividing the allocation to such Key Employee by his
Compensation). For purposes of satisfying the requirements of this Section 12.2,
all defined contribution plans of the Employers (without regard to whether such
plans have been terminated) shall be aggregated.
12.3 Minimum Vesting.
---------------
(a) For each Plan Year that the Plan is Top-Heavy, an
Employee's nonforfeitable percentage of the balance in his Employer Account
shall be determined under the following schedule, if such schedule results in a
larger percentage than that determined under Section 6.4 hereof:
Nonforfeitable
Years of Vesting Service Percentage
------------------------ -----------
Less than 2 0%
At least 2, but less than 3 20%
At least 3, but less than 4 40%
At least 4, but less than 5 60%
At least 5, but less than 6 80%
6 or more 100%
(b) For any subsequent Plan Year in which the Plan ceases to
be Top-Heavy, an Employee's nonforfeitable percentage shall be determined
without regard to subsection (a) above; provided, however, that an Employee's
nonforfeitable percentage shall not be less than the applicable percentage
determined under subsection (a) above in any Plan Year during which the Plan was
Top-Heavy.
(c) Notwithstanding subsection (b) above, an Employee's
nonforfeitable percentage shall continue to be determined under subsection (a)
above, if such Employee has completed at least 3 Years of Service as of the
beginning of the Plan Year in which the Plan ceases to be Top-Heavy.
12.4 Definitions. For purposes of this Article 12, the term
-----------
"Compensation" shall mean compensation that is includible in gross income and
that is actually paid to the Employee during the Plan Year.
-45-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to
be executed by its duly authorized officer this 22nd day of November, 1999.
AERIAL OPERATING COMPANY, INC.
By: /s/ Donald W. Warkentin
-----------------------
President
<PAGE>
EXHIBIT 4.4
Tax-Deferred Savings Trust
<PAGE>
AERIAL OPERATING COMPANY, INC.
TAX-DEFERRED SAVINGS TRUST
<PAGE>
AERIAL OPERATING COMPANY, INC.
TAX-DEFERRED SAVINGS TRUST
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE 1 TRUST, FUND AND TRUSTEE.............................................2
Section 1.1. Trust...................................................2
Section 1.2. Fund....................................................2
Section 1.3. Trustee and its Agents..................................2
ARTICLE 2 PLANS...............................................................3
Section 2.1. Delivery of Plan to Trustee.............................3
Section 2.2. Participating Employers.................................3
ARTICLE 3 AUTHORIZED EMPLOYER REPRESENTATIVES.................................3
ARTICLE 4 CONTRIBUTIONS.......................................................3
ARTICLE 5 DISTRIBUTIONS FROM FUND.............................................4
Section 5.1. Company to Direct Distributions.........................4
Section 5.2. Withholding of Taxes....................................4
Section 5.3. Participant Loans.......................................4
Section 5.4. Interests Non-Assignable................................5
ARTICLE 6 INVESTMENT OF FUND..................................................5
Section 6.1. Investments Authorized..................................5
Section 6.2. Individual Investment Direction.........................6
Section 6.3. Investment in Commingled Trust..........................7
Section 6.4. Registration of Company Securities......................8
ARTICLE 7 POWERS AND RIGHTS OF TRUSTEE........................................8
Section 7.1. Trustee's Powers........................................8
Section 7.2. Restrictions on Power to Vote and Related Rights.......10
Section 7.3. Valuation of the Fund..................................10
Section 7.4. Advice of Counsel......................................11
Section 7.5. Indemnification of Trustee and Affiliates..............11
Section 7.6. Indemnification of Successor Trustee...................12
Section 7.7. Compensation and Expenses..............................12
-i-
<PAGE>
Page
----
ARTICLE 8 ACCOUNTS AND REPORTS OF THE TRUSTEE................................13
Section 8.1. Records and Accounts of the Trustee....................13
Section 8.2. Accrual Basis for Accounts.............................13
Section 8.3. Fiscal Year............................................13
Section 8.4. Annual Report..........................................13
Section 8.5. Approval of Reports....................................13
ARTICLE 9 REMOVAL, RESIGNATION AND SUCCESSION OF THE TRUSTEE.................14
Section 9.1. Removal................................................14
Section 9.2. Resignation............................................14
Section 9.3. Appointment, Qualifications and Powers of Successor
Trustee..............................................14
Section 9.4. Changes in Organization of Corporate Trustee...........14
ARTICLE 10 AMENDMENT OR TERMINATION..........................................15
Section 10.1. Authority to Amend or Terminate.......................15
Section 10.2. Method of Making Amendment............................15
Section 10.3. Termination of Trust..................................15
Section 10.4. Diversion of Fund Prohibited..........................15
ARTICLE 11 CONTINUANCE BY A SUCCESSOR........................................16
ARTICLE 12 PARTICIPATING EMPLOYERS...........................................16
Section 12.1. Participating Employers Become Parties to Trust.......16
Section 12.2. Company Appointed Agent by Participating Employers....16
Section 12.3. Segregation of Fund...................................16
ARTICLE 13 CONTROLLING LAW AND LEGAL ACTIONS.................................17
Section 13.1. Controlling Law.......................................17
Section 13.2. Legal Actions.........................................17
ARTICLE 14 MISCELLANEOUS.....................................................17
Section 14.1. Protection of Persons Dealing with Trustee............17
Section 14.2. Tax Exemption of Trust................................17
Section 14.3. No Interest in Participating Employer Given by Trust..17
Section 14.4. Gender and Plurals....................................18
ARTICLE 15 EXECUTION.........................................................18
-ii-
<PAGE>
AERIAL OPERATING COMPANY, INC.
TAX-DEFERRED SAVINGS TRUST
THIS AGREEMENT made as of November 22, 1999, between Aerial
Operating Company, Inc., a corporation organized under the laws of the State of
Delaware (the "Company"), CTC Illinois Trust Company, a corporation organized
under the laws of the State of Illinois and authorized to accept and execute
trusts (the "Trustee") and The Bank of New York, a New York Banking Corporation
("BNY").
WHEREAS, the Company has adopted and maintains the Aerial
Operating Company, Inc. Tax-Deferred Savings Plan (the "Plan") for the benefit
of certain of its employees and their beneficiaries and for the benefit of
certain employees of other employers and the beneficiaries of such employees;
WHEREAS, the Plan is intended to satisfy the requirements of
Sections 401(a) and 401(k) of the Internal Revenue Code of 1986, as amended (the
"Code"), and to meet all other applicable requirements of the Code and all
applicable requirements of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA");
WHEREAS, the Company desires to enter into a trust agreement
pursuant to which a trust will be established and maintained for the sole
purpose of the Company and participating employers funding the benefits provided
under the terms of the Plan;
WHEREAS, the Company desires that the assets of the trust be
held in trust pursuant to the terms of this trust agreement for the benefit of
the participants and beneficiaries under the Plan, effective as of the date
hereof;
WHEREAS, the Company desires to appoint CTC Illinois Trust
Company as Trustee, effective as of the date hereof; and
WHEREAS, CTC Illinois Trust Company desires to serve as
Trustee pursuant to the terms of this trust agreement, effective as of the date
hereof.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, the Company and the Trustee do hereby agree
as follows:
-1-
<PAGE>
ARTICLE 1
---------
TRUST, FUND AND TRUSTEE
-----------------------
Section 1.1. Trust. This instrument and the trust evidenced
hereby, as amended from time to time, shall be known as the Aerial Operating
Company, Inc. Tax-Deferred Savings Trust (the "Trust").
Section 1.2. Fund. The assets held under the Trust by the
Trustee are herein referred to as the "Fund." Except as herein otherwise
provided, title to assets of the Fund shall at all times be vested in the
Trustee, subject to the right of the Trustee to hold title in bearer form or in
the name of a nominee or nominees, and the interest of others in the assets of
the Fund shall be only the right to have such assets received, held, invested,
administered and distributed in accordance with the provisions of the Trust.
Section 1.3. Trustee and its Agents. (a) The Trustee and its
duly appointed agents, including but not limited to BNY, shall receive, hold,
invest, administer and distribute the Fund in accordance with the provisions of
the Trust and for the exclusive purpose of providing benefits to participants in
the Plan and their beneficiaries and defraying reasonable expenses of
administering the Plan.
(b) Without limiting the generality of the foregoing paragraph
1.3(a) or any other power of the Trustee, BNY or any other agent of the Trustee
as provided for in this trust agreement, the Company hereby specifically
authorizes that any of the Trustee's powers, duties, obligations and
responsibilities under this trust agreement may be performed or assumed, to the
extent determined by the Trustee in its sole and absolute discretion and without
any further notice to the Company, by BNY or any successor thereto. The Company
agrees to be bound by all actions taken by BNY pursuant to the preceding
sentence to the same extent as if they were taken by the Trustee. The Company
further agrees that BNY shall be entitled to all of the protections accorded to
the Trustee under this trust agreement, including but not limited to any and all
releases from liability and indemnities contained herein, and that the
performance of any action by BNY shall not enlarge the responsibilities of BNY
under this trust agreement beyond the responsibilities of the Trustee. Without
limiting the generality of the foregoing, BNY may perform investment management,
custodial functions, settlement of securities transactions, valuations and
accountings. If so advised in writing by the Trustee, the Company, the
Investment Management Committee, any Participating Company or any investment
manager shall provide investment directions and other directions to BNY rather
than to the Trustee.
-2-
<PAGE>
ARTICLE 2
---------
PLANS
-----
Section 2.1. Delivery of Plan to Trustee. The Company shall
deliver to the Trustee a certified copy of the Plan and of each amendment
thereto for convenience of reference, but the rights, powers, titles, duties and
discretions of the Trustee shall be governed solely by the Trust without
reference to the Plan.
Section 2.2. Participating Employers. The term "Participating
Employers" wherever used herein shall mean the Company and any other corporation
which has adopted the Plan and has become a party to the Trust pursuant to
Section 12.1.
ARTICLE 3
---------
AUTHORIZED EMPLOYER REPRESENTATIVES
-----------------------------------
The Company on its own behalf and as agent for each
Participating Employer shall furnish the Trustee the names and specimen
signatures of each person upon whose statement of the decision or direction of
the Company or the Participating Employers or the Investment Management
Committee (as defined in Section 6.2) the Trustee is authorized to rely.
Specifically, the Company shall certify to the Trustee the name of any agent,
including without limitation any third party administrator (an "Administrative
Agent"), appointed by the Company to receive, cumulate and communicate
investment, distribution and administration directions for the Plan, and to whom
the Company has delegated such responsibility and authority as the Company shall
communicate to the Trustee. The Trustee shall be fully protected in acting in
accordance with any such statement, decision or direction which it reasonably
believes to be genuine, and which reasonably purports to be signed in accordance
with this Section. Until notified of a change in the identity of such persons or
agents the Trustee shall act upon the assumption that there has been no change.
ARTICLE 4
---------
CONTRIBUTIONS
-------------
All contributions made under the Plan shall be delivered to
the Trustee. The Trustee shall be accountable for all contributions received by
it but shall have no duty to require any contributions to be made to it or to
determine that the contributions received comply with the Plan or with the
resolutions of the board of directors of the Participating Employers providing
therefor or to ensure that the Fund is adequate to meet and discharge any
liabilities under the Plan.
-3-
<PAGE>
ARTICLE 5
---------
DISTRIBUTIONS FROM FUND
-----------------------
Section 5.1. Company to Direct Distributions. Distributions in
cash or in kind shall be made from the Fund by the Trustee to such persons or
other entities in such manner, at such times, in such amounts and for such
purposes as the Company shall direct in writing, and upon receiving such
directions, the Trustee shall be authorized and empowered to sell or purchase
property held in the Fund as appropriate to effectuate such distributions. The
Trustee shall also discontinue distributions from the Fund in accordance with
the directions of the Company. The Trustee shall have no responsibility as
Trustee to see to the application of distributions so made or to ascertain
whether the directions of the Company comply with the Plan.
The Trustee may maintain one or more interest bearing accounts
for the purpose of making distributions and such other purposes, if any, as may
reasonably be required for the convenient administration of the Plan or of the
Trust. The Trustee is hereby directed to maintain any such account at BNY or one
of its affiliates. Distributions of the Trust shall be made by wire transfer,
checks, vouchers or warrants of the Trustee or an affiliate of the Trustee
acting as agent of the Trustee. The parties acknowledge and agree that the Trust
shall not be credited with any earnings on the amount required to make
distributions until the check, voucher or warrant is presented for payment. Any
such earnings shall be retained by and constitute compensation to the Trustee
and its affiliates in addition to that listed in Exhibit A.
Section 5.2. Withholding of Taxes. The Trustee may withhold,
or require the withholding, from any distribution which it is directed to make
such sum as the Trustee may reasonably estimate is necessary to cover any taxes
for which the Trustee may be liable which are, or may be, assessed with regard
to such distribution. Upon discharge or settlement of such tax liability the
Trustee shall distribute the balance of such sum, if any, to the distributee
from whose distribution it was withheld, or if such distributee is then
deceased, to such other person as the Company shall direct. Prior to making any
distribution hereunder the Trustee may require such releases or other documents
from any taxing authority, or may require such indemnity and surety bond, as the
Trustee shall reasonably deem necessary for its protection.
Section 5.3. Participant Loans. The Company as the named
fiduciary of the participant loan program, and any Administrative Agent shall be
exclusively responsible for the administration of any participant loan program,
including responsibility for issuing and maintaining custody of promissory notes
and other documentation pertaining to such loans, and for all related loan
disclosure and record keeping matters. The Trustee shall make loan disbursements
to participants from the Fund pursuant to the directions of the Company or the
Administrative Agent. Loan repayments shall be collected by the Company or the
Administrative Agent and remitted to the Trustee, which shall invest such
repayments among the available investment funds in the proportions directed by
the Company or the Administrative
-4-
<PAGE>
Agent. The Company or the Administrative Agent shall maintain and submit to the
Trustee the records, accounts and reports otherwise required of the Trustee with
respect to the portion of the Trust held by the Company or the Administrative
Agent as promissory notes, and the Trustee shall include the information so
provided in its reports and accounts furnished by the Trustee pursuant to
Article 8 hereof. The Company or the Administrative Agent will provide the
Trustee with such information as may from time to time be required for the
Trustee to exercise its rights under the documents relating to Plan loans,
including without limitation, the occurrence of events of default by
participants. The Trustee shall not be liable for any actions taken by the
Company or the Administrative Agent under this Section 5.3.
Section 5.4. Interests Non-Assignable. No right or interest of
any participant or distributee to receive distributions from the Fund shall be
assignable or transferable in whole or in part, either directly or by operation
of law or otherwise, including, but not by way of limitation, execution, levy,
garnishment, attachment, pledge or bankruptcy, but excluding devolution by death
or mental incompetency, and no right or interest of any participant of the Plan
or other distributee to receive distributions from the Fund shall be liable for,
or subject to, any obligation or liability of such participant or distributee,
including claims for alimony or the support of any spouse other than as may be
required by a qualified domestic relations order which is determined to be a
qualified domestic relations order by the Company within the meaning of Section
414(p) of the Code.
ARTICLE 6
---------
INVESTMENT OF FUND
------------------
Section 6.1. Investments Authorized. Except as otherwise in
the Trust provided, the net income of the Fund shall be accumulated, added to
the principal of the Fund and invested and reinvested therewith as a single
Fund. Subject to the provisions of Section 6.2, the Trustee is authorized to
invest the Fund in such preferred or common stocks, bonds, notes, and debentures
(including convertible stocks and securities), mortgages, equipment trust
certificates, investment trust certificates, shares of investment companies and
mutual funds (irrespective of whether the Trustee or BNY is performing services
therefor), interests in partnerships and trusts, insurance policies or
contracts, certificates of deposit and savings accounts which bear a reasonable
rate of interest, including certificates and accounts issued by or with the
Trustee's or BNY's banking department, and common, collective or commingled
trust funds maintained by the Trustee, BNY or any affiliate thereof, or a duly
appointed investment manager for the investment of assets of employee benefit
plans qualified under section 401(a) of the Code (whereupon the instruments
establishing such funds, as amended, shall be deemed a part of this Agreement
and incorporated by reference herein), or in such other property, real or
personal, either within or without the United States, as the Trustee may deem to
be in the interest of the participants and beneficiaries of the Plan. The
Trustee in its discretion may hold any portion of the Fund in an interest
bearing account pending investment or payment of expenses or distribution of
benefits.
-5-
<PAGE>
Section 6.2. Individual Investment Direction. The Company
shall appoint a committee consisting of two or more members (the "Investment
Management Committee") to direct the Trustee with respect to the investment and
reinvestment of all or any designated portion, as solely determined by the
Company, of the Fund. The Investment Management Committee shall be a "named
fiduciary" of the Plan within the meaning of such term as used in ERISA.
Pursuant to Section 5.8 of the Plan, the Investment Management Committee and the
Trustee shall establish and maintain for the investment and reinvestment of
contributions made on behalf of participants in the Plan ("Plan Participants")
separate investment funds, as may be designated by the Investment Management
Committee from time to time ("Designated Funds"), having different investment
characteristics and objectives in order to provide Plan Participants with a
variety of investment alternatives in accordance with Section 404(c) of ERISA
and the regulations thereunder. Such Designated Funds may be invested in whole
or in part in common stock of a Participating Employer or common or collective
investment funds maintained by the Trustee or others (such as, for example,
common or collective funds maintained by banks and trust companies for
investment of the assets of employee benefit trusts, mutual funds and the like).
The net income and proceeds of each Designated Fund shall be accumulated, added
to the principal of such Designated Fund, and reinvested therewith as a single
fund. Each Plan Participant shall give the Investment Management Committee or
the Administrative Agent directions in the manner required by the Company and
the Plan as to the amount, if any, of each contribution to the Fund which should
be invested in each Designated Fund and as to the amount to be transferred from
time to time from one such Designated Fund to another. Pursuant to each Plan
Participant's directions, the Investment Management Committee or the
Administrative Agent shall direct the Trustee with respect to the allocation of
assets to Designated Funds and with respect to the transfer of assets among such
Designated Funds and upon receiving such direction, the Trustee shall be
authorized and empowered to sell or purchase any property held in such
Designated Funds as appropriate to effectuate such transfers pursuant to this
Section. To the extent so directed, the Company, Investment Management Committee
and the Trustee are relieved of their fiduciary responsibilities as provided in
Section 404(c) of ERISA. In the event any Plan Participant fails to direct the
investment of any contribution as provided herein, the Trustee shall invest such
contribution in accordance with the instructions of the Investment Management
Committee. The Investment Management Committee shall direct the investment of
cash balances held in the Fund from time to time in short-term cash equivalents
including, but not limited to, units in the Trustee's or BNY's short term
collective investment fund if otherwise permitted by the terms of the Trust,
U.S. Treasury Bills, commercial paper (including such forms of commercial paper
as may be available through the Trustee's or BNY's Trust Department),
certificates of deposit, and similar type securities, with a maturity not to
exceed one year. Notwithstanding the foregoing, the Investment Management
Committee may by separate written agreement delegate to BNY or any other
investment manager authority to direct the investment, in the investment
manager's sole discretion, of all or a portion of the cash balances held in the
Fund in any of the short term cash equivalents listed in the prior sentence. The
Trustee shall sell any such short-term investments as may be necessary to carry
out the instructions of the Investment Management Committee or an investment
manager regarding investments and
-6-
<PAGE>
directed distributions. It shall be the duty of the Trustee to act strictly in
accordance with any direction given by the Administrative Agent, Investment
Management Committee or investment manager pursuant to this Section. The Trustee
shall be under no duty to question any such direction, to review any securities
or other property held in the Fund pursuant to any such direction, or to make
suggestions to the Administrative Agent, Investment Management Committee or
investment manager in connection therewith. The Trustee shall be under no
liability for any loss of any kind which may result by reason of any action by
it in accordance with any direction of an Administrative Agent, the Investment
Management Committee or an investment manager or by reason of the Trustee's
failure to take any investment action in the absence of directions from an
Administrative Agent, the Investment Management Committee or an investment
manager with respect to such portion of the Trust. Notwithstanding any provision
of the Trust to the contrary, the Trustee shall be indemnified and saved
harmless by the Participating Employers from and against any and all personal
liability to which the Trustee may be subjected by carrying out any directions
of an Administrative Agent, the Investment Management Committee or an investment
manager issued pursuant to this Section or for failure to act in the absence of
directions of an Administrative Agent, the Investment Management Committee or an
investment manager including all expenses reasonably incurred in its defense in
the event the Participating Employers fail to provide such defense; provided,
however, the Trustee shall not be so indemnified if it participates knowingly
in, or knowingly undertakes to conceal, an act or omission of an Administrative
Agent, the Investment Management Committee or an investment manager, having
actual knowledge that such act or omission is a breach of a fiduciary duty; and
further provided, however, that the Trustee shall not be deemed to have
knowingly participated in or knowingly undertaken to conceal an act or omission
of an Administrative Agent, the Investment Management Committee or an investment
manager with knowledge that such act or omission was a breach of fiduciary duty
by merely complying with directions of an Administrative Agent, the Investment
Management Committee or an investment manager, or for failure to act in the
absence of any such directions, or by reason of maintaining accounting records.
The Trustee may rely upon any order, certificate, notice, direction or other
documentary confirmation reasonably purporting to be issued by an Administrative
Agent, the Investment Management Committee or an investment manager which the
Trustee reasonably believes to be genuine and to have been issued by such
Administrative Agent, Investment Management Committee or investment manager.
Section 6.3. Investment in Commingled Trust. Notwithstanding
any other provision of the Trust, the Trustee at the direction of the Investment
Management Committee may cause any part or all of such assets to be commingled
with the assets of other trusts by investment as a part of any group trust and
as a part of any one or more of the Funds into which such group trust may from
time to time be divided, and the assets so invested shall be subject to all of
the provisions of such group trust, as it may be amended from time to time. To
the extent that property of the Fund is invested in any such group trust, the
declaration of trust pertaining thereto, as amended from time to time, and the
trust thereby created, shall be a part of this Agreement and of the Plan. The
Trustee shall have, with respect to the interest of the Fund in
-7-
<PAGE>
such group trust, the powers conferred by this Agreement to the extent that such
powers are not inconsistent with the provisions of such declaration of trust.
The Trustee shall have no responsibility for the custody or safekeeping of
assets transferred to a group trust pursuant to this Section.
Section 6.4. Registration of Company Securities. In the event
that the property initially delivered to the Trustee hereunder includes shares
of stock or other securities of a Participating Employer, or any subsidiary or
affiliate thereof, or the Investment Management Committee or a duly appointed
investment manager directs the purchase of any such securities and thereafter
directs the Trustee to dispose of any such securities, it shall be the Company's
ultimate responsibility to ensure that such securities are properly registered
under the Securities Act of 1933 and are qualified under the Blue Sky laws of
any state or states. The Trustee shall be fully protected in relying on the
Company's representation that (a) any such registration and/or qualification has
been effected and (b) with respect to such securities, the Company has fully
complied with all relevant federal and state securities laws, rules and
regulations.
ARTICLE 7
---------
POWERS AND RIGHTS OF TRUSTEE
----------------------------
Section 7.1. Trustee's Powers. Subject to the provisions of
Articles 6 and 7, the Trustee shall have the following powers, rights and duties
in addition to those vested in them elsewhere in the Trust or by law:
(A) to retain, manage, improve, repair, operate and control
any asset of the Fund;
(B) to sell, convey, transfer, exchange, partition, grant or
acquire options with respect to, lease for any term (even though such
term extends beyond the duration of this Trust or commences in the
future), mortgage, pledge, or otherwise deal with or dispose of any
asset of the Fund in such manner, for such consideration and upon such
terms and conditions as the Trustee, in its discretion, shall
determine;
(C) to employ such counsel, agents, including but not limited
to BNY and auditors, as may be reasonably necessary in collecting,
managing, administering, investing, distributing and protecting the
Fund or the assets thereof and to pay them reasonable compensation;
(D) to settle, compromise or abandon all claims and demands in
favor of or against the Fund;
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<PAGE>
(E) to organize, incorporate or create (or participate in the
organization, incorporation or creation of), under the laws of any
state, a corporation or trust for the purpose of acquiring and holding
title to any property which the Trustee is authorized to acquire for
the Fund and to exercise with respect thereto any of the powers, rights
and duties it has with respect to other assets of the Fund;
(F) to cause any asset of the Fund to be issued, held or
registered in the name of its nominee, or in such form that title will
pass by delivery, provided the records of the Trustee shall indicate
the true ownership of such asset (and the Company agrees to hold the
Trustee and BNY, individually and as agent for the Trustee, and each of
their directors, officers and employees, and any such nominee harmless
from any liability as the holder of record);
(G) to purchase, sell and/or hold shares of stock of any
Participating Employer; provided, however, that shares purchased from
or sold to a Participating Employer shall be purchased or sold for
adequate consideration within the meaning of section 3(18) of ERISA
(which shall mean the closing price for such shares on the AMEX or
Nasdaq National Market, whichever is applicable for the last day
preceding the date of purchase or sale), and no commission shall be
charged or paid with respect to purchases from or sales to a
Participating Employer;
(H) 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 granted
herein;
(I) to collect all interest, dividends and other income
payable with respect to property in the Fund, and to surrender
securities at maturity or when advised of an earlier call for
redemption, provided that the Trustee shall not be liable for failure
to surrender any security for redemption prior to maturity if the
Trustee did not have actual notice of such redemption;
(J) to exchange securities in temporary form for securities in
definitive form, and to effect an exchange of shares where the par
value of stock is changed;
(K) to hold property in its vaults, in non-certificated form
with the issuer, on Federal Book Entry at the Federal Reserve Bank of
New York, with a custodian appointed pursuant to clause (L) below, or
at any other location approved by the Investment Management Committee;
(L) to appoint BNY to act as custodian with respect to any
portion of the Fund;
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<PAGE>
(M) to delegate to any of the Trustee's affiliates such powers
and duties as the Trustee considers desirable, provided that such
delegation, and the acceptance thereof by such affiliates, shall be in
writing; and
(N) to exercise any of the powers and rights of an individual
owner with respect to any property of the Fund and to do all other acts
which in its judgment are necessary or desirable for the proper
administration of the Fund, although such powers, rights and acts are
not specifically enumerated in the Trust.
The Trustee shall discharge its duties solely in the interest
of participants of the Plan and their beneficiaries and with the care, skill,
prudence, and diligence under the circumstances then prevailing that a prudent
man acting in a like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character with like aims.
Section 7.2. Restrictions on Power to Vote and Related Rights.
Pursuant to, and only with, the specific direction of the Investment Management
Committee, the Trustee shall (i) vote any corporate stock or mutual fund shares
either in person or by proxy for any purposes; (ii) exercise any conversion
privilege, subscription right or any other right or option given to the Trustee
as the owner of record of any security owned by the Fund and make any payments
incidental thereto; and (iii) consent to, take any action in connection with,
and receive and retain any securities resulting from any reorganization,
consolidation, merger, readjustment of the financial structure, sale, lease or
other disposition of the assets of any corporation or other organization, the
securities of which may be an asset of the Fund. Notwithstanding the foregoing
provisions of this Section 7.2, the Trustee shall pass through to each Plan
Participant by proxy or otherwise, the right to vote and exercise all of the
other powers and rights described in the preceding sentence with respect to (A)
the Common Shares, par value $1.00 per share, of Aerial Communications, Inc. (B)
the Common Shares, par value $1.00 per share, of Telephone and Data Systems,
Inc., and (c) the Common Shares, par value $1.00 per share, of United States
Cellular Corporation, (all of such Common Shares being collectively referred to
herein as "Employer Common Shares") represented in or allocated to such Plan
Participant's Salary Reduction Contributions Account or Rollover Account;
provided however, that if any Plan Participant does not instruct the Trustee or
otherwise exercise his right to vote and other related rights and powers in a
timely manner, the Trustee shall exercise such rights and powers as directed by
the Investment Management Committee, which shall act in the best interest of the
Plan Participant. In any event, the right to vote and exercise all of the other
powers and rights described in this Section 7.2 with respect to the Employer
Common Shares represented in or allocated to the Employer Matching Account shall
be exercised by the Trustee pursuant to, and only with the specific direction of
the Investment Management Committee.
Section 7.3. Valuation of the Fund. As of the inception of the
Fund and at such other times as may be agreed upon by the Trustee and the
Investment Management Committee (the "Valuation Date"), the Trustee shall
determine the market value of the Fund and of the
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<PAGE>
interests of the various Participating Plans therein. Such determination may be
made either by the Trustee itself or by such person or persons believed by the
Trustee to be competent to make such determination as the Trustee may select,
but in accordance with a method consistently followed and uniformly applied. The
Trustee's determination of the value of the Fund and of the interest of each
Participating Plan therein shall be conclusive and binding upon all
Participating Plans and all participating Employers, the Investment Management
Committee and the Participants in such Plans and their beneficiaries; provided,
however, that in the event the Company or Investment Management Committee
objects to the Trustee's determination of the value of the Fund and of the
interest of each Participating Plan therein, such determination shall not be
conclusive and binding until the Trustee, in good faith, has fully considered
and evaluated the Company's or Investment Management Committee's objection
thereto and any reasons for or evidence supporting such objection.
The interest of each Participating Plan shall be represented
by whole and fractional units which shall be undivided interests in such Fund
without priority or preference one over the other. The original unit of
participation upon establishment of this Trust shall be $1,000, or such other
amount as the Trustee may determine at that time. As of any Valuation Date, the
Trustee may make a uniform change in the size of all outstanding units of the
Fund, by creating either a larger number of small units or a smaller number of
large units. As of each Valuation Date the Trustee shall determine the value per
unit in the Fund by dividing the value of the Fund as determined in accordance
with this Section by the number of existing units in the Fund. Transfers of cash
and/or property to or from the separate accounts of the various Participating
Plans shall be made only as of a Valuation Date and shall be based upon the
value of a unit as of such Date, and the number of units charged or credited to
the accounts of such Plans shall be adjusted accordingly.
To the extent that the Trustee shall be required to value the
assets of the Fund for any purpose, including without limitation any valuation
pursuant to this Section, for accounting pursuant to Article 8 and any
segregation of assets pursuant to Section 12.3 hereof, the Trustee may rely for
all purposes of this Agreement upon any certified appraisal or other form of
valuation submitted to it by any investment manager, the Investment Management
Committee and, with respect to an interest in any venture capital organization,
the manager of such organization.
Section 7.4. Advice of Counsel. The Trustee may consult with
legal counsel, who may be counsel for any Participating Employer, in respect of
any of its rights, duties or obligations hereunder.
Section 7.5. Indemnification of Trustee and Affiliates. The
Trustee, individually and as trustee under this Agreement, and the Trustee's
directors, officers and employees, and those affiliates (including but not
limited to BNY) to whom the Trustee has delegated any responsibility hereunder
shall be indemnified and saved harmless by the Participating Employers
-11-
<PAGE>
from and against any and all claims, loss, damages, expenses and liability to
which they may be subjected by reason of any act reasonably taken or omitted in
good faith with respect to the Fund, including all expenses reasonably incurred
in their defense in case the Participating Employers fail to provide such
defense, provided such action or omission does not constitute a violation of the
fiduciary responsibilities under part 4 of Title I of ERISA of the Trustee, the
Trustee's directors, officers or employees or those affiliates to whom the
Trustee has delegated any responsibility.
Notwithstanding the foregoing, nothing in this Agreement is
intended to or shall be construed to relieve the Trustee and the Trustee's
directors, officers and employees, and those affiliates to whom the Trustee has
delegated any responsibility hereunder from any responsibility or liability they
may have under part 4 of Title I of ERISA, or from any liability of any kind
arising as a result of their negligence or willful misconduct. Additionally,
except as may be required under ERISA, in no event shall the Trustee or BNY
individually, as trustee or as agent for the Trustee, nor any of their
respective directors, officers, employees or affiliates to whom the Trustee or
BNY has delegated any responsibilities under this trust agreement be liable for
any claim, loss, damages, expenses or liability caused by circumstances beyond
its or their control, or for special, punitive or consequential damages.
Section 7.6. Indemnification of Successor Trustee. If the
Trustee is acting as a successor trustee, the Company hereby agrees to hold the
Trustee and any affiliates to which it has delegated responsibility hereunder
harmless from and against any tax, claim, liability, loss, damage, or expense
incurred by or assessed against it as such successor as a direct or indirect
result of any act or omission of a predecessor trustee or any other person
charged under any agreement affecting Fund assets with investment responsibility
with respect to such assets.
Section 7.7. Compensation and Expenses. The Trustee shall be
entitled to the compensation set forth in Exhibit A attached hereto, which may
be amended from time to time by the Trustee by written notice of amendment. Such
an amendment shall become effective on the 60th day after the Trustee mails it
to the Company unless the Company shall have provided the Trustee with written
notice of objection thereto. The Trustee is authorized and directed to pay from
the Fund all costs and expenses approved by the Company (which approval must not
be unreasonably delayed or withheld) and incurred in administering the Plan and
the Fund, including without limitation the compensation and expenses of the
Trustee, the fees of counsel for the Trustee, all brokerage costs and transfer
taxes incurred in connection with the investment and reinvestment of the Fund,
all income taxes or other taxes of any kind which may be levied or assessed upon
or in respect of the Fund and any other administrative expenses to the extent
such expenses are not paid by the Participating Employers. The Trustee is
authorized, when so directed by the Company, to pay from the Fund any specified
expenses of administration of the Plan.
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ARTICLE 8
---------
ACCOUNTS AND REPORTS OF THE TRUSTEE
-----------------------------------
Section 8.1. Records and Accounts of the Trustee. The Trustee
shall maintain accurate and detailed records and keep accounts of all
transactions of the Trust and make them available at all reasonable times for
inspection or audit by any person designated by the Company. At the direction of
the Company the Trustee shall submit to the auditors for the Company and to
others designated by the Company such valuations, reports or other information
as they may reasonably require.
Section 8.2. Accrual Basis for Accounts. All accounts of the
Trustee shall be kept on an accrual basis.
Section 8.3. Fiscal Year. The fiscal year of the Trust shall
be the calendar year.
Section 8.4. Annual Report. Within 45 days after the close of
each fiscal year of the Trust (or such other date as may be agreed upon in
writing between the Company and the Trustee) and within 60 days after the
effective date of the removal or resignation of any Trustee, the Trustee shall
file with the Company a written report setting forth all transactions with
respect to the Fund during such fiscal year or during the period from the close
of the last fiscal year to the date of such removal or resignation and listing
the assets of the Fund and the market value thereof as of the close of the
period covered by such report.
Section 8.5. Approval of Reports. Upon the receipt by the
Trustee of the Company's written approval of any such report, or upon the
expiration of three months after delivery of any such report to the Company,
such report (as originally stated if no objection has been theretofore filed by
the Company, or as therefore adjusted pursuant to agreement between the Company
and the Trustee) shall be deemed to be approved by the Company except as to
matters, if any, covered by written objections theretofore delivered to the
Trustee by the Company regarding which the Trustee has not given an explanation
or made adjustments satisfactory to the Company, and the Trustee shall be
released and discharged as to all items, matters and things set forth in such
report which are not covered by such written objections as if such report has
been settled and allowed by a decree of a court having jurisdiction regarding
such report and of the Trustee and the Participating Employers. The Trustee,
nevertheless, shall have the right to have its accounts and reports settled by
judicial proceedings if it so elects, in which event the Company and the Trustee
shall be the only necessary parties (although the Trustee may also join such
other parties as it may deem appropriate).
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<PAGE>
ARTICLE 9
---------
REMOVAL, RESIGNATION AND SUCCESSION OF THE TRUSTEE
--------------------------------------------------
Section 9.1. Removal. The Company, by resolution of its board
of directors, may remove a Trustee at any time, such removal to take effect upon
the later of the 60th day after the Trustee receives notice from the Company of
such removal and the effective date of the appointment of a successor Trustee as
hereinafter provided.
Section 9.2. Resignation. Any Trustee may resign by delivering
to the Company a written resignation to take effect upon the 60th day after the
delivery thereof to the Company or upon such earlier date as may be acceptable
to the Company.
Section 9.3. Appointment, Qualifications and Powers of
Successor Trustee. The Company may appoint additional or successor Trustees at
any time by resolution of its board of directors, such appointment to become
effective upon the delivery to any Trustee then in office of a copy of such
resolution certified by an officer of the Company and upon written acceptance of
the Trust by the additional or successor Trustee so appointed, or such other
date agreed to by the Company and the additional or successor Trustee. Each
additional or successor Trustee shall have all the rights, powers, titles,
discretions, duties and immunities given to, or acquired by, the original
Trustee. The legal title to the assets of the Fund shall be and remain vested in
the Trustee from time to time acting hereunder without any transfer or
conveyance to, by, or from any succeeding or retiring Trustee. No successor
Trustee shall be liable for the acts or omissions of any prior Trustee or shall
be obliged to examine the accounts, words, acts or omissions of any prior
Trustee.
Section 9.4. Changes in Organization of Corporate Trustee. In
the event that any corporate Trustee at any time acting hereunder shall be
converted into, shall merge or consolidate with, or shall sell or transfer
substantially all of its assets and business to, another corporation, state or
federal, the corporation resulting from such conversion, merger or
consolidation, or the corporation to which such sale or transfer shall be made,
shall thereupon become and be a Trustee of the Trust with the same effect as
though specifically so named.
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<PAGE>
ARTICLE 10
----------
AMENDMENT OR TERMINATION
------------------------
Section 10.1. Authority to Amend or Terminate. Subject to the
provisions of Section 10.4, the Company shall have the right at any time and
from time to time to amend the Trust in any manner, in whole or in part, or to
terminate the Trust, provided that no amendment which changes the duties or
liabilities of the Trustee shall be made without its written consent.
Section 10.2. Method of Making Amendment. Each amendment of
the Trust shall be made by delivery to the Trustee of a written instrument
setting forth such amendment duly executed by the Company together with a
certified copy of a resolution of the board of directors of the Company
authorizing the execution of such written instrument. Such written instrument
(with the consent of the Trustee endorsed thereon, if its duties or liabilities
are changed thereby) shall constitute the instrument of amendment.
Section 10.3. Termination of Trust. Termination of the Trust
shall be effected by resolution of the board of directors of the Company.
Written notice of such termination, together with a certified copy of such
resolution, shall be delivered to the Trustee, and the Trustee shall dispose of
the Fund in the manner directed in writing by the Company or, in the absence of
directions from the Company, in such manner as may be directed by a judgment or
decree of a court of competent jurisdiction. The powers of the Trustee hereunder
shall continue as long as any assets of the Fund shall remain in its hands.
Section 10.4. Diversion of Fund Prohibited. Subject only to
the provisions of Sections 5.5(b), 5.7 and 11.2 of the Plan and any other
provisions of the Plan to the extent similar in purpose, at no time (either by
operation, amendment or termination of the Plan or the Trust, or otherwise)
shall any part of the Fund (other than such part as is required to pay taxes and
administration expenses) be used for, or diverted to, purposes other than for
the exclusive benefit of employees of the Participating Employers or their
beneficiaries; provided, however, that nothing herein contained shall preclude
the return to a Participating Employer of any contribution if the Company
determines that such return is permitted by Section 403(c) of ERISA or any
successor legislation.
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ARTICLE 11
----------
CONTINUANCE BY A SUCCESSOR
--------------------------
In the event that any Participating Employer shall be
reorganized by way of merger, consolidation, transfer of assets or otherwise, so
that another corporation other than a Participating Employer shall succeed to
all or substantially all of such Participating Employer's business, such
successor corporation may be substituted for such Participating Employer as a
party to the Trust by executing an appropriate supplemental agreement with the
Trustee.
ARTICLE 12
----------
PARTICIPATING EMPLOYERS
-----------------------
Section 12.1. Participating Employers Become Parties to Trust.
Any corporation which shall adopt the Plan pursuant to the terms thereof shall
become a party to the Trust by filing with the Company and the Trustee a duly
executed instrument in the form hereto annexed as "Exhibit B." Moneys thereafter
remitted to the Trustee by or on behalf of such Participating Employer and its
employees and the income therefrom shall be held by the Trustee as a part of the
Fund.
Section 12.2. Company Appointed Agent by Participating
Employers. Each Participating Employer which shall become a party to the Trust
pursuant to Article 11 or Section 12.1 by so doing shall be deemed to have
appointed the Company its agent to exercise on its behalf all of the powers and
authorities hereby conferred upon the Company by the terms of the Trust,
including, but not by way of limitation, the power to amend or terminate the
Trust. Such Participating Employer agrees that it shall be bound by the
decisions, actions and directions of the Company, the Investment Management
Committee or a duly appointed investment manager. The Trustee and any affiliate
to whom it has delegated any responsibility hereunder shall be fully protected
in relying upon such directions and subject to Section 12.3 herein, shall in no
event be required to give notice to or otherwise deal with any such
Participating Employer except by dealing with the Company as agent to such
Participating Employer. The authority of the Company to act as such agent shall
continue unless and until the portion of the Fund held for the benefit of
employees of the particular Participating Employer and their beneficiaries is
set aside in a separate trust as provided in Section 12.3.
Section 12.3. Segregation of Fund. Each Participating Employer
reserves the right to cause the Trustee to set aside from the Fund such portion
of the Fund as the Company shall determine to be held for the benefit of the
employees of such Participating Employer (such Participating Employer being
hereinafter referred to as the "withdrawing employer") and their beneficiaries
under the Plan. Any portion which is so segregated shall thereafter constitute a
separate trust fund and shall be held upon a separate trust identical to that
hereby established, except that with respect thereto this agreement shall be
construed as if the withdrawing employer were the only participating employer
named herein. Thereafter with respect to such separate trust
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<PAGE>
fund all powers and authority herein conferred upon the Company shall devolve
upon the withdrawing employer. Upon the request of a withdrawing employer, the
Company shall give written directions to the Trustee with respect to such
segregation, a copy of which shall be given to each Participating Employer which
shall then be a party to this Trust. Such directions shall specify not only the
amount to be segregated but the particular assets of the Fund which shall be
used to constitute such separate trust fund. The Trustee shall follow such
directions of the Company which shall constitute a conclusive determination that
the amount and the assets so segregated represent the share which should be held
upon a separate trust for the benefit of the employees of the withdrawing
employer and their beneficiaries under the Plan, unless one or more of the
Participating Employers shall file with the Trustee and the Company a written
protest within 30 days after such directions are given to the Trustee.
ARTICLE 13
----------
CONTROLLING LAW AND LEGAL ACTIONS
---------------------------------
Section 13.1. Controlling Law. To the extent not preempted by
ERISA, the Trust shall be construed, enforced and administered according to the
substantive laws (and not the choice of law provisions) of the State of
Illinois. Except as otherwise required by ERISA, all proceedings under this
trust agreement shall be brought in courts located in the City of Chicago and
the company hereby submits to the jurisdiction of such courts for such purposes.
Section 13.2. Legal Actions. The Company shall have the
authority to enforce the Trust on behalf of any and all persons having or
claiming any interest in the Fund. In any legal action or equitable proceeding
pertaining to the Trust or the Fund or any interest therein or the
administration thereof, or for instructions to the Trustee, the Company and the
Trustee shall be the only necessary parties.
ARTICLE 14
----------
MISCELLANEOUS
-------------
Section 14.1. Protection of Persons Dealing with Trustee. No
person dealing with the Trustee shall be required or entitled to see to the
application of any money paid or property delivered to the Trustee or to
determine whether or not the Trustee is acting pursuant to authority granted to
it hereunder or to authorizations or directions herein required.
Section 14.2. Tax Exemption of Trust. The Trust is hereby
designated as constituting a part of plans intended to qualify and to be
tax-exempt under section 401(a) and section 501(a) of the Code, respectively.
Until advised otherwise, the Trustee may conclusively assume that the Trust is
so tax-exempt.
Section 14.3. No Interest in Participating Employer Given by
Trust. Neither the creation of the Trust nor anything contained in the Trust
shall be construed as giving any person
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<PAGE>
or employee of any Participating Employer any equity or interest in the assets,
business, or affairs of any Participating Employer or any right to continue in
the employ of any Participating Employer.
Section 14.4. Gender and Plurals. In the Trust, words in the
masculine gender shall include masculine or feminine gender, and, unless the
context otherwise requires, words in the singular shall include the plural and
words in the plural shall include the singular.
ARTICLE 15
----------
EXECUTION
---------
The Trust may be executed in any number of counterparts, each
of which shall be considered an original, and no other counterpart need be
produced.
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<PAGE>
IN WITNESS WHEREOF, the Company, the Trustee and The Bank of
New York have caused the Trust to be signed by their authorized officers on the
date provided at the beginning of this Trust.
AERIAL OPERATING COMPANY, INC.
By /s/ Donald W. Warkentin
-----------------------
Title: President
----------------
CTC ILLINOIS TRUST COMPANY
By /s/ Greg Anderson
------------------------
Title: Managing Director
-----------------
THE BANK OF NEW YORK
By /s/ Brian Jirak
----------------------
Title: Agent
---------------
SIGNATURE PAGE OF THE
AERIAL OPERATING COMPANY, INC. TAX-DEFERRED SAVINGS TRUST
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Post-Effective Amendment No. 1 to Form S-8 Registration
Statement of Aerial Communications, Inc., of our reports dated January 27, 1999
(except with respect to the matter discussed in Note 10, as to which the date is
March 15, 1999), included or incorporated by reference in the Aerial
Communications, Inc. Form 10-K for the year ended December 31, 1998, and to all
references to our Firm included in this Post-Effective Amendment No. 1 to Form
S-8 Registration Statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois
December 22, 1999
