As filed with the Securities and Exchange Commission on June 29, 1999
Registration No. 333-____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------------------
VODAFONE GROUP PUBLIC LIMITED COMPANY
(to be renamed VODAFONE AIRTOUCH PUBLIC LIMITED COMPANY)
(Exact name of registrant as specified in its charter)
England and Wales None
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
The Courtyard
2-4 London Road
Newbury, Berkshire RG14 1JX, England
---------------------------------
VODAFONE AIRTOUCH PLC 1999 LONG-TERM STOCK INCENTIVE PLAN
VODAFONE AIRTOUCH PLC 1999 EMPLOYEE STOCK PURCHASE PLAN
AIRTOUCH COMMUNICATIONS RETIREMENT PLAN
AIRTOUCH COMMUNICATIONS, INC. 1993 LONG-TERM STOCK INCENTIVE PLAN
AIRTOUCH COMMUNICATIONS, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full titles of plans)
Agent for Service:
CT Corporation
1633 Broadway
New York, New York 10019
(212) 315-7920
Please send copies of all communications to:
Stephen R. Scott
Vodafone Group Public Limited Company
The Courtyard
2-4 London Road
Newbury, Berkshire
RG14 1JX, England
(011 44) 1635 33251
------------------------------------
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=======================================================================================================================
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of to be Price Per Offering Registration
Securities to be Registered(1) registered(2)(3) Share (4) Price (4) Fee
<S> <C> <C> <C> <C>
Ordinary Shares, nominal value $0.10 each(5):
To be issued under Vodafone AirTouch 1999
Long-Term Stock Incentive Plan 120,000,000 $20.18125 $2,421,750,000 $ 673,247
To be issued under Vodafone AirTouch 1999
Employee Stock Purchase Plan 4,000,000 $20.18125 $ 80,725,000 $ 22,442
To be issued under AirTouch Communications
Retirement Plan 4,000,000 $20.18125 $ 80,725,000 $ 22,442
To be issued under AirTouch Communications,
Inc. 1993 Long-Term Stock Incentive Plan 128,125,000 $20.18125 $2,585,722,656 $ 718,831
To be issued under AirTouch Communications,
Inc. Employee Stock Purchase Plan 500,000 $20.18125 $ 10,090,625 $ 2,806
- -----------------------------------------------------------------------------------------------------------------------
Total 256,625,000 N/A $5,179,013,281 $ 1,439,766
=======================================================================================================================
<FN>
(1) American Depositary Shares ("ADSs") evidenced by American Depositary
Receipts issuable upon deposit of ordinary shares, nominal value $0.10
each ("Ordinary Shares"), of the Registrant will be registered under a
separate registration statement on Form F-6. Each ADS represents ten
Ordinary Shares.
(2) The amount being registered also includes an indeterminate number of
Ordinary Shares which may be issuable as a result of stock splits, stock
dividends and anti-dilution provisions and other terms, in accordance
with Rule 416.
(3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this registration statement also covers an indeterminate amount
of interests to be offered or sold pursuant to the AirTouch
Communications Retirement Plan as described herein.
(4) Estimated in accordance with Rule 457(h), solely for purposes of
calculating the registration fee, on the basis of the average of the high
and low sale prices on the New York Stock Exchange on June 24, 1999 for
American Depositary Shares of the Registrant, each of which represents
ten Ordinary Shares.
(5) In connection with the merger of a wholly-owned subsidiary of the
Registrant with and into AirTouch Communications, Inc. (the "Merger"),
the ordinary shares, currently of nominal value 5p each, of the
Registrant will be redenominated into ordinary shares, of nominal value
$0.10 each, prior to the effective time of the Merger, if the
redenomination becomes effective as contemplated by the merger agreement
relating to the Merger. If the redenomination does not become effective,
ordinary shares, of nominal value 5p each, will be issued.
</FN>
</TABLE>
This Registration Statement will become effective upon filing in accordance
with Rule 462 under the Securities Act of 1933.
2
<PAGE>
PART I: INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
As permitted by Rule 428 under the Securities Act of 1933, as amended
(the "Securities Act"), this Registration Statement omits the information
specified in Part I of Form S-8. The documents containing the information
specified in Part I will be delivered to the participants in the plans covered
by this Registration Statement as required by Rule 428(b). Such documents are
not being filed with the Securities and Exchange Commission (the "Commission")
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424(b) under the Securities Act.
PART II: INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The reports listed below have been filed with or furnished to the
Commission by Vodafone Group Public Limited Company ("Vodafone" or the
"Registrant"), and are incorporated herein by reference to the extent not
superseded by documents or reports subsequently filed or furnished:
(a) The Registrant's Annual Report on Form 20-F for the fiscal year
ended March 31, 1998, filed with the Commission on July 22, 1998 pursuant to
Section 13(a) of the Exchange Act.
(b) The Registrant's Registration Statement on Form F-4, filed with the
Commission on April 22, 1999 (Registration No. 333-76781).
(c) The description of the Registrant's Ordinary Shares contained in
the Registrant's Registration Statement on Form 8-A filed October 12, 1988
pursuant to Section 12(b) of the Exchange Act, and any amendment or report filed
for the purpose of updating such description.
In addition, all filings on Form 20-F filed by Vodafone pursuant to the
Securities Exchange Act of 1934 after the date of this Registration Statement
and prior to the termination of the distribution contemplated hereby are
incorporated by reference in this Registration Statement from the date of filing
or furnishing such documents or reports. Also, to the extent designated therein,
Reports on Form 6-K filed or furnished by Vodafone after March 31, 1998 and
prior to the termination of the distribution contemplated hereby are
incorporated by reference in this Registration Statement from the date of filing
or furnishing such documents or reports.
The following report has been filed with or furnished to the Commission
by the AirTouch Communications Retirement Plan, and is incorporated herein by
reference to the extent not superseded by documents or reports subsequently
filed or furnished: The Annual Report on Form 11-K for the year ended December
31, 1998.
All documents subsequently filed by the Registrant and the AirTouch
Communications Retirement Plan pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act, prior to the filing of a post-effective amendment to this
registration statement which indicates that all Securities offered hereby have
been sold or which deregisters all Securities remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein 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 document which also is deemed to be incorporated by reference herein
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
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the Ordinary Shares registered herein has been passed
upon by Stephen R. Scott, Company Secretary of Vodafone. The validity of the
plan interests in the AirTouch Communications Retirement Plan has been passed
upon by Margaret G. Gill, Senior Vice President, Legal, External Affairs and
Secretary of AirTouch Communications, Inc.
3
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 152 of Vodafone's Articles of Association provides:
"152.1 So far as the Companies Acts allow, every director, Secretary
or other officer of the Company shall be indemnified by the
Company out of its own funds against all costs, charges,
losses, expenses and liabilities incurred by him:
o in performing or omitting to perform his duties; and/or
o in exercising or omitting to exercise his powers; and/or
o in purporting to do any of these things; and/or
o otherwise in relation to or in connection with his
duties, powers or office."
"152.2 So far as the Companies Acts allow, every director, Secretary
or other officer of the Company is exempted from any liability
to the Company where that liability would be covered by the
indemnity in Article 152.1."
Section 310 of the Companies Act 1985 (as amended by Section 137 of the
Companies Act 1989) provides as follows:
"310. Provisions exempting officers and auditors from liability
(1) This section applies to any provision, whether contained in a
company's articles or in any contract with the company or
otherwise, for exempting any officer of the company or any person
(whether an officer or not) employed by the company as auditor
from, or indemnifying him against, any liability which by virtue
of any rule of law would otherwise attach to him in respect of
any negligence, default, breach of duty or breach of trust of
which he may be guilty in relation to the company.
(2) Except as provided by the following subsection, any such
provision is void.
(3) This section does not prevent a company
(a) from purchasing and maintaining for any such officer or
auditor insurance against any liability, or
(b) from indemnifying any such officer or auditor against any
liability incurred by him
(i) in defending any proceedings (whether civil or criminal)
in which judgment is given in his favor or he is acquitted, or
(ii) in connection with any application under section 144(3)
or (4) (acquisition of shares by innocent nominee) or section 727
(general power to grant relief in case of honest and reasonable
conduct) in which relief is granted to him by the court."
Section 727 of the Companies Act 1985 provides as follows:
"727. Power of court to grant relief in certain cases:
(1) If in proceedings for negligence, default, breach of duty or
breach of trust against an officer of a company or a person
employed by a company as auditor (whether he is or is not an
officer of the company) it appears to the court hearing the case
that the officer or person is or may be liable in respect of the
negligence, default, breach of duty or breach of trust, but that
he has acted honestly and reasonably, and that having regard to
all the circumstances of the case (including those connected with
his appointment) he ought fairly to be excused for the
negligence, default, breach of duty or breach of trust, that
court may relieve him, either wholly or partly, from his
liability on such terms as it thinks fit.
4
<PAGE>
(2) If any such officer or person as above-mentioned has reason to
apprehend that any claim will or might be made against him in
respect of any negligence, default, breach of duty or breach of
trust, he may apply to the court for relief; and the court on the
application has the same power to relieve him as under this
section it would have had if it had been a court before which
proceedings against that person for negligence, default, breach
of duty or breach of trust had been brought.
(3) Where a case to which subsection (1) applies is being tried by a
judge with a jury, the judge, after hearing the evidence may, if
he is satisfied that the defendant or defender ought in pursuance
of that subsection to be relieved either in whole or in part from
the liability sought to be enforced against him, withdraw the
case in whole or in part from the jury and forthwith direct
judgment to be entered for the defendant or defender on such
terms as to costs or otherwise as the judge may think proper."
Vodafone has obtained directors' and officers' insurance coverage,
which, upon the merger of a wholly-owned subsidiary of Vodafone with and into
AirTouch Communications, Inc. and subject to policy terms and limitations, will
include coverage to reimburse the combined company (to be called Vodafone
AirTouch Public Limited Company ("Vodafone AirTouch")) for amounts that it may
be required or permitted by law to pay to directors or officers of Vodafone,
Vodafone AirTouch or former officers and directors of AirTouch Communications,
Inc.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as exhibits hereto.
Exhibit
Number Description
- ------- -----------
4(a) Form of Memorandum and Articles of Association of Vodafone
AirTouch Public Limited Company, as approved by the shareholders
of Vodafone at a meeting on May 24, 1999 (Incorporated by reference
to Exhibit 3(b) of Vodafone's Registration Statement on Form F-4
filed with the Commission on April 22, 1999 (Reg. No. 333-76781)).
4(b) Form of Amended and Restated Deposit Agreement among Vodafone
AirTouch Public Limited Company, The Bank of New York as Depositary,
and all Owners and Beneficial Owners from time to time of American
Depositary Receipts issued thereunder (Incorporated by reference to
Exhibit A of Vodafone's Registration Statement on Form F-6, filed
with the Commission on April 22, 1999, as amended by Pre-Effective
Amendment No. 2 to the Registration Statement on Form F-6 filed with
the Commission on June 25, 1999).
4(c) Vodafone AirTouch PLC 1999 Long-Term Stock Incentive Plan.
4(d) Vodafone AirTouch PLC 1999 Employee Stock Purchase Plan.
4(e) AirTouch Communications, Inc. 1993 Long-Term Stock Incentive Plan -
Amendment and Restatement effective as of December 12, 1996
(Incorporated by reference to Exhibit 10.1 to AirTouch
Communications, Inc.'s Quarterly Report on Form 10-Q for the period
ended June 30, 1997 (File No. 1-12342)).
4(f) AirTouch Communications, Inc. Employee Stock Purchase Plan.
4(g) AirTouch Communications Retirement Plan.
5(a) Opinion of Stephen R. Scott, Company Secretary of Vodafone, as
to the validity of the Ordinary Shares being registered.
5(b) Opinion of Margaret G. Gill, Senior Vice President, Legal,
External Affairs and Secretary of AirTouch Communications, Inc.,
as to the validity of the plan interests being registered.
23(a) Consent of Deloitte and Touche.
23(b) Consent of PricewaterhouseCoopers LLP.
23(c) Consent of Arthur Andersen LLP.
23(d) Consent of KPMG Deutsche Treuhand-Gesellschaft Aktiengesellschaft.
23(e) Consent of Arthur Andersen LLP.
23(f) Consent of Stephen R. Scott, included in Exhibit 5(a).
23(g) Consent of Margaret G. Gill, included in Exhibit 5(b).
24 Power of Attorney
5
<PAGE>
ITEM 9. UNDERTAKINGS
(a) Rule 415 Offering. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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 which remain unsold at the termination of
the offering.
(b) Filings incorporating subsequent Exchange Act documents by
reference. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange 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 thereof.
(c) Request for acceleration of effective date of filing of
Registration Statement on Form S-8. Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suite or proceeding) is asserted by such director, officer or controlling person
in connection with the Securities being registered, the Registrant 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
Securities Act and will be governed by the final adjudication of such issue.
6
<PAGE>
SIGNATURE OF VODAFONE GROUP PUBLIC LIMITED COMPANY
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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Newbury, Berkshire, England, on June 29, 1999.
VODAFONE GROUP PUBLIC LIMITED COMPANY
By: /s/ STEPHEN R. SCOTT
---------------------------------
Stephen R. Scott
Company Secretary
* * *
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the following capacities
on June 29, 1999.
Signature Title
--------- -----
/s/ LORD MACLAURIN OF KNEBWORTH, DL* Chairman of the Board of Directors
------------------------------------
Lord MacLaurin of Knebworth, DL
/s/ CHRISTOPHER C. GENT* Chief Executive
------------------------------------ (Principal Executive Officer)
Christopher C. Gent
/s/ KENNETH J. HYDON* Financial Director
------------------------------------ (Principal Financial and Accounting
Kenneth J. Hydon Officer)
/s/ PETER R. BAMFORD* Executive Director
------------------------------------
Peter R. Bamford
/s/ JULIAN M. HORN-SMITH* Executive Director
------------------------------------
Julian M. Horn-Smith
Non-Executive Director
------------------------------------
Professor Sir Alec Broers
/s/ SIR DAVID SCHOLEY* Non-Executive Director
------------------------------------
Sir David Scholey
/s/ PENELOPE L. HUGHES* Non-Executive Director
------------------------------------
Penelope L. Hughes
/s/ JOHN GILDERSLEEVE* Non-Executive Director
-----------------------------------
John Gildersleeve
/s/ GREGORY F. LAVELLE Authorized Representative in the
----------------------------------- United States
Gregory F. Lavelle
*By: /s/ STEPHEN R. SCOTT
------------------------------
Stephen R. Scott
Attorney-in-fact
<PAGE>
SIGNATURE OF THE AIRTOUCH COMMUNICATIONS RETIREMENT PLAN
Pursuant to the requirements of the Securities Act of 1933, the plan
administrator has 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 June 29, 1999.
AIRTOUCH COMMUNICATIONS RETIREMENT PLAN
By: /s/ TERRY KRAMER
----------------------------------
Terry Kramer
Plan Administrator
2
<PAGE>
EXHIBIT INDEX
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as exhibits hereto. All other exhibits are
provided as part of the electronic transmission.
Exhibit
Number Description
- ------- -----------
4(a) Form of Memorandum and Articles of Association of Vodafone
AirTouch Public Limited Company, as approved by the shareholders
of Vodafone at a meeting on May 24, 1999 (Incorporated by reference
to Exhibit 3(b) of Vodafone's Registration Statement on Form F-4
filed with the Commission on April 22, 1999 (Reg. No. 333-76781)).
4(b) Form of Amended and Restated Deposit Agreement as among Vodafone
AirTouch Public Limited Company, The Bank of New York as Depositary,
and all Owners and Beneficial Owners from time to time of American
Depositary Receipts issued thereunder (Incorporated by reference to
Exhibit A of Vodafone's Registration Statement on Form F-6, filed
with the Commission on April 22, 1999, as amended by Pre-Effective
Amendment No. 2 to the Registration Statement on Form F-6 filed with
the Commission on June 25, 1999).
4(c) Vodafone AirTouch PLC 1999 Long-Term Stock Incentive Plan.
4(d) Vodafone AirTouch PLC 1999 Employee Stock Purchase Plan.
4(e) AirTouch Communications, Inc. 1993 Long-Term Stock Incentive Plan -
Amendment and Restatement effective as of December 12, 1996
(Incorporated by reference to Exhibit 10.1 to AirTouch
Communications, Inc.'s Quarterly Report on Form 10-Q for the period
ended June 30, 1997 (File No. 1-12342)).
4(f) AirTouch Communications, Inc. Employee Stock Purchase Plan.
4(g) AirTouch Communications Retirement Plan.
5(a) Opinion of Stephen R. Scott, Company Secretary of Vodafone, as
to the validity of the Ordinary Shares being registered.
5(b) Opinion of Margaret G. Gill, Senior Vice President, Legal,
External Affairs and Secretary of AirTouch Communications, Inc.,
as to the validity of the plan interests being registered.
23(a) Consent of Deloitte and Touche.
23(b) Consent of PricewaterhouseCoopers LLP.
23(c) Consent of Arthur Andersen LLP.
23(d) Consent of KPMG Deutsche Treuhand-Gesellschaft Aktiengesellschaft.
23(e) Consent of Arthur Andersen LLP.
23(f) Consent of Stephen R. Scott, included in Exhibit 5(a).
23(g) Consent of Margaret G. Gill, included in Exhibit 5(b).
24 Power of Attorney
3
Exhibit 4(c)
VODAFONE AIRTOUCH PLC
1999 LONG TERM STOCK INCENTIVE PLAN
(Approved by shareholders on 24 May 1999)
May 1999 - Final Version
<PAGE>
TABLE OF CONTENTS
-----------------
ARTICLE 1. INTRODUCTION.....................................................1
ARTICLE 2. ADMINISTRATION...................................................1
2.1 Committee Composition..........................................1
2.2 Committee Responsibilities.....................................1
2.3 Granting of Awards.............................................1
ARTICLE 3. SHARES AVAILABLE FOR GRANTS......................................1
3.1 Numerical Limit................................................1
3.2 Percentage Limits..............................................2
3.3 Additional Shares..............................................2
3.4 Dividend Equivalents...........................................3
3.5 Issue of Shares................................................3
ARTICLE 4. ELIGIBILITY......................................................3
4.1 General Rules..................................................3
4.2 Incentive Stock Options........................................3
ARTICLE 5. OPTIONS .........................................................3
5.1 Stock Option Agreement.........................................3
5.2 Number of Shares...............................................4
5.3 Exercise Price.................................................4
5.4 Exercisability and Term........................................4
5.5 Effect of Change in Control....................................4
5.6 Modification or Assumption of Options..........................4
ARTICLE 6. PAYMENT FOR OPTION SHARES........................................5
6.1 General Rule...................................................5
6.2 Surrender of Stock.............................................5
6.3 Exercise/Sale..................................................5
6.4 Exercise/Pledge................................................5
6.5 Promissory Note................................................5
6.6 Other Forms of Payment.........................................5
ARTICLE 7. STOCK APPRECIATION RIGHTS........................................5
7.1 SAR Agreement..................................................5
7.2 Number of Shares...............................................6
7.3 Exercise Price.................................................6
7.4 Exercisability and Term........................................6
7.5 Effect of Change in Control....................................6
7.6 Exercise of SARs...............................................6
7.7 Modification or Assumption of SARs.............................6
<PAGE>
ARTICLE 8. RESTRICTED SHARES AND STOCK UNITS................................7
8.1 Time, Amount and Form of Awards................................7
8.2 Payment for Awards.............................................7
8.3 Vesting Conditions.............................................7
8.4 Form and Time of Settlement of Stock Units.....................7
8.5 Death of Recipient.............................................8
8.6 Creditors'Rights...............................................8
ARTICLE 9. VOTING AND DIVIDEND RIGHTS.......................................8
9.1 Restricted Shares..............................................8
9.2 Stock Units....................................................8
ARTICLE 10. PROTECTION AGAINST DILUTION.....................................8
10.1 Adjustments...................................................8
10.2 Reorganizations...............................................9
ARTICLE 11. AWARDS UNDER OTHER PLANS........................................9
ARTICLE 12. LIMITATION ON RIGHTS...........................................10
12.1 Retention Rights.............................................10
12.2 Exclusion from Liability for Damages.........................10
12.3 Stockholders'Rights..........................................10
12.4 Regulatory Requirements......................................10
ARTICLE 13. LIMITATION ON PAYMENTS.........................................10
13.1 Basic Rule...................................................10
13.2 Reduction of Payments........................................11
13.3 Overpayments and Underpayments...............................11
13.4 Related Corporations.........................................12
ARTICLE 14. WITHHOLDING TAXES..............................................12
14.1 General......................................................12
14.2 Share Withholding............................................12
ARTICLE 15. ASSIGNMENT OR TRANSFER OF AWARDS...............................12
ARTICLE 16. FUTURE OF THE PLAN.............................................12
16.1 Term of the Plan.............................................12
16.2 Amendment or Termination.....................................12
ARTICLE 17. DEFINITIONS....................................................13
<PAGE>
VODAFONE AIRTOUCH PLC
1999 LONG TERM STOCK INCENTIVE PLAN
ARTICLE 1. INTRODUCTION.
1.1 The Plan was approved by the Company's shareholders on 24 May 1999.
The purpose of the Plan is to promote the long-term success of the
Company and the creation of stockholder value by (a) encouraging Key
Employees to focus on critical long-range objectives, (b) encouraging
the attraction and retention of Key Employees with exceptional
qualifications and (c) linking Key Employees directly to stockholder
interests through increased stock ownership. The Plan seeks to achieve
this purpose by providing for Awards in the form of Restricted Shares,
Stock Units, Options (which may constitute ISOs or NSOs ) or stock
appreciation rights. The Plan shall be governed by, and construed in
accordance with, the laws of England, except to the extent that United
States law or statute applies.
ARTICLE 2. ADMINISTRATION.
2.1 Committee Composition. The Plan shall be administered by the Committee.
The Committee may delegate such of the administration of the Plan as it
considers appropriate to such person or persons as it changes.
2.2 Committee Responsibilities. The Committee or its delegees shall have the
sole and absolute discretion to (a) select the Key Employees who are to
receive Awards under the Plan, (b) determine the type, number, vesting
requirements and other features and conditions of such Awards, (c)
interpret the Plan and (d) make all other decisions relating to the
operation of the Plan. The Committee may adopt such rules or guidelines
as it deems appropriate to implement the Plan. The Committee's
determinations under the Plan shall be final and binding on all persons.
2.3 Granting of Awards. No Awards may be granted at any time when there is
an embargo on dealing in securities of the Company, whether by virtue of
the London Stock Exchange Model Code for Securities Transactions by
Directors of Listed Companies or of the provisions of any legislation or
other regulations for the time being in force.
ARTICLE 3. SHARES AVAILABLE FOR GRANTS.
3.1 Numerical Limit. The maximum number of Ordinary Shares which may be
allocated on the exercise of ISOs may not exceed 100 million. The
limitation of this Section 3.1
1
<PAGE>
is subject to the further limits of this Section 3 and shall be subject
to adjustment pursuant to Article 10.
3.2 Percentage Limits.
3.2.1 The number of Ordinary Shares which may be allocated under the Plan on
any day will not exceed 10% of the ordinary share capital of the Company
in issue immediately before that day, when added to the total number of
Ordinary Shares which have been allocated in the previous ten years
under the Plan and any other employee share plan adopted by the Company.
3.2.2 The number of Ordinary Shares which may be allocated under the Plan on
any day will not exceed 5% of the ordinary share capital of the Company
in issue immediately prior to that day, when added to the total number
of Ordinary Shares which have been allocated in the previous five years
under the Plan and any other employee share plan adopted by the Company.
3.2.3 The number of Ordinary Shares which may be allocated under the Plan on
any day will not exceed 5% of the ordinary share capital of the Company
in issue immediately prior to that day, when added to the total number
of Ordinary Shares which have been allocated in the previous ten years
under the Plan and any other executive share plan adopted by the
Company.
3.2.4 Where the right to acquire Ordinary Shares was released or lapsed
without being exercised the Ordinary Shares concerned will be ignored
when calculating the limits in this Section 3.2. Ordinary Shares
allocated on the exercise of options, restricted shares, stock units and
SARs granted under plans operated by AirTouch Communications, Inc
("AirTouch") prior to the Merger will be ignored when calculating the
limits in this Section 3.2.
3.2.5 Allocate means in relation to any share option plan the placing of
unissued Ordinary Shares under option and in relation to other types of
employee share plan the issue and allotment of Ordinary Shares.
3.2.6 For the avoidance of doubt Ordinary Shares issued to a trustee or
trustees of a trust for the benefit of those persons named in Section
743 Companies Act 1985 established by the Company or any Subsidiary for
the purposes of this Plan shall be included in the limits set out in
Sections 3.2.1 to 3.2.5 inclusive.
3.3 Additional Shares. If Restricted Shares, Stock Units, Options or SARs
are forfeited or if Options or SARs terminate for any other reason
before being exercised, then the corresponding Ordinary Shares shall
again become available for Awards under the Plan. If
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Stock Units are settled, then only the number of Ordinary Shares (if
any) actually issued in settlement of such Stock Units shall reduce the
number available under Section 3.2 and the balance shall again become
available for Awards under the Plan. If SARs are exercised, then only
the number of Ordinary Shares (if any) actually issued in settlement of
such SARs shall reduce the number available under Section 3.2 and the
balance shall again become available for Awards under the Plan. The
foregoing notwithstanding, the aggregate number of Ordinary Shares that
may be issued under the Plan upon the exercise of ISOs shall not be
increased when Restricted Shares are forfeited.
3.4 Dividend Equivalents. Any dividend equivalents distributed under the
Plan shall not be applied against the number of Restricted Shares, Stock
Units, Options or SARs available for Awards, whether or not such
dividend equivalents are converted into Stock Units.
3.5 Issue of Shares. On the issue of Ordinary Shares, such shares shall, if
required, be converted at the Company's expense into American Depository
Shares (ADSs). Options, Restricted Shares, Stock Units and SARs shall be
denominated in the form of Ordinary Shares or ADSs.
ARTICLE 4. ELIGIBILITY.
4.1 General Rules. Only Key Employees shall be eligible for designation as
Participants by the Committee.
4.2 Incentive Stock Options. Only Key Employees who are employees of the
Company or a Subsidiary shall be eligible for the grant of ISOs. In
addition, a Key Employee who owns more than 10% of the total combined
voting power of all classes of outstanding stock of the Company or any
of its Parents or Subsidiaries shall not be eligible for the grant of an
ISO unless the requirements set forth in section 422(c)(6) of the Code
are satisfied.
ARTICLE 5. OPTIONS.
5.1 Stock Option Agreement. Each grant of an Option under the Plan shall be
evidenced by a Stock Option Agreement between the Optionee and the
Company. Such Option shall be subject to all applicable terms of the
Plan and may be subject to any other terms that are not inconsistent
with the Plan. The Stock Option Agreement shall specify whether the
Option is an ISO or an NSO. The provisions of the various Stock Option
Agreements entered into under the Plan need not be identical. Options
may be granted in consideration of a cash payment or in consideration of
a reduction in the Optionee's other compensation or under seal or as a
deed for no consideration. A Stock Option Agreement may provide that new
Options will be granted automatically to the Optionee when he or she
exercises the prior Options.
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5.2 Number of Shares. Each Stock Option Agreement shall specify the number
of Ordinary Shares or ADSs subject to the Option and shall provide for
the adjustment of such number in accordance with Article 10.
5.3 Exercise Price. Each Stock Option Agreement shall specify the Exercise
Price; provided that the Exercise Price under an ISO shall in no event
be less than 100% of the Fair Market Value of an ADS on the date of
grant and the Exercise Price under an NSO shall in no event be less than
the par value of the Ordinary Share or ADSs subject to such NSO. In the
case of an NSO, a Stock Option Agreement may specify an Exercise Price
that varies in accordance with a pre-determined formula while the NSO is
outstanding.
5.4 Exercisability and Term. Each Stock Option Agreement shall specify the
date when all or any installment of the Option is to become exercisable.
The Stock Option Agreement shall also specify the term of the Option;
provided that the term of an ISO shall in no event exceed 10 years from
the date of grant. A Stock Option Agreement may provide for accelerated
exercisability in the event of the Optionee's death, disability or
retirement or other events and may provide for expiration prior to the
end of its term in the event of the termination of the Optionee's
service. Options may be awarded in combination with SARs, and such an
Award may provide that the Options will not be exercisable unless the
related SARs are forfeited. NSOs may also be awarded in combination with
Restricted Shares or Stock Units, and such an Award may provide that the
NSOs will not be exercisable unless the related Restricted Shares or
Stock Units are forfeited.
5.5 Effect of Change in Control. The Committee may determine, at the time of
granting an Option or thereafter, that such Option shall become fully
exercisable as to all Ordinary Shares or ADSs subject to such Option in
the event that a Change in Control occurs with respect to the Company.
If, in respect of Options granted within 12 months of the date of the
Merger, the Committee finds that there is a reasonable possibility that,
within the succeeding six months, a Change in Control will occur with
respect to the Company, then the Committee at its sole discretion may
determine that any or all outstanding Options shall become fully
exercisable as to all Ordinary Shares or ADSs subject to such Options.
5.6 Modification or Assumption of Options. Within the limitations of the
Plan, the Committee may modify, extend or assume outstanding options or
may accept the cancellation of outstanding options (whether granted by
the Company or by another issuer) in return for the grant of new options
for the same or a different number of shares and at the same or a
different exercise price. The foregoing notwithstanding, no modification
of an Option shall, without the consent of the Optionee, alter or impair
his or her rights or obligations under such Option.
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ARTICLE 6. PAYMENT FOR OPTION SHARES.
6.1 General Rule. The entire Exercise Price of Ordinary Shares or ADSs
issued upon exercise of Options shall be payable in cash at the time
when such Ordinary Shares or ADSs are purchased, except as follows:
(a) In the case of an ISO granted under the Plan, payment shall be made only
pursuant to the express provisions of the applicable Stock Option
Agreement. The Stock Option Agreement may specify that payment may be
made in any form(s) described in this Article 6.
(b) In the case of an NSO, the Committee may at any time accept payment in
any form(s) described in this Article 6.
6.2 Exercise/Sale. To the extent that this Section 6.2 is applicable,
payment may be made by the delivery (on a form prescribed by the
Company) of an irrevocable direction to a securities broker approved by
the Company to sell Ordinary Shares or ADSs and to deliver all or part
of the sales proceeds to the Company in payment of all or part of the
Exercise Price and any withholding taxes.
6.3 Exercise/Pledge. To the extent that this Section 6.3 is applicable,
payment may be made by the delivery (on a form prescribed by the
Company) of an irrevocable direction to pledge Ordinary Shares or ADSs
to a securities broker or lender approved by the Company, as security
for a loan, and to deliver all or part of the loan proceeds to the
Company in payment of all or part of the Exercise Price and any
withholding taxes.
6.4 Promissory Note. To the extent that this Section 6.4 is applicable,
payment may be made with a full-recourse promissory note; provided that
the par value of the Ordinary Shares shall be paid in cash.
6.5 Other Forms of Payment. To the extent that this Section 6.5 is
applicable, payment may be made in any other form that is consistent
with applicable laws, regulations and rules or under any other
arrangements approved by the Committee, which may include the delivery
of Ordinary Shares or ADSs.
ARTICLE 7. STOCK APPRECIATION RIGHTS.
7.1 SAR Agreement. Each grant of an SAR under the Plan shall be evidenced by
an SAR Agreement between the Optionee and the Company. Such SAR shall be
subject to all applicable terms of the Plan and may be subject to any
other terms that are not inconsistent with the Plan. The provisions of
the various SAR Agreements entered into
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under the Plan need not be identical. SARs may be granted in
consideration of a reduction in the Optionee's other compensation.
7.2 Number of Shares. Each SAR Agreement shall specify the number of
Ordinary Shares or ADSs to which the SAR pertains and shall provide for
the adjustment of such number in accordance with Article 10.
7.3 Exercise Price. Each SAR Agreement shall specify the Exercise Price. An
SAR Agreement may specify an Exercise Price that varies in accordance
with a predetermined formula while the SAR is outstanding.
7.4 Exercisability and Term. Each SAR Agreement shall specify the date when
all or any installment of the SAR is to become exercisable. The SAR
Agreement shall also specify the term of the SAR. An SAR Agreement may
provide for accelerated exercisability in the event of the Optionee's
death, disability or retirement or other events and may provide for
expiration prior to the end of its term in the event of the termination
of the Optionee's service. SARs may also be awarded in combination with
Options, Restricted Shares or Stock Units, and such an Award may provide
that the SARs will not be exercisable unless the related Options,
Restricted Shares or Stock Units are forfeited. An SAR may be included
in an ISO only at the time of grant but may be included in an NSO at the
time of grant or at any subsequent time. An SAR granted under the Plan
may provide that it will be exercisable only in the event of a Change in
Control.
7.5 Effect of Change in Control. The Committee may determine, at the time of
granting an SAR or thereafter, that such SAR shall become fully
exercisable as to all Ordinary Shares or ADSs subject to such SAR in the
event that a Change in Control occurs with respect to the Company. If,
in respect of SARs granted within 12 months of the date of the Merger,
the Committee finds that there is a reasonable possibility that, within
the succeeding six months, a Change in Control will occur with respect
to the Company, then the Committee at its sole discretion may determine
that any or all outstanding SARs shall become fully exercisable as to
all Ordinary Shares or ADSs subject to such SARs.
7.6 Exercise of SARs. If, on the date when an SAR expires, the Exercise
Price under such SAR is less than the Fair Market Value on such date but
any portion of such SAR has not been exercised or surrendered, then such
SAR shall automatically be deemed to be exercised as of such date with
respect to such portion. Upon exercise of an SAR, the Optionee (or any
person having the right to exercise the SAR after his or her death)
shall receive from the Company Ordinary Shares, ADSs, cash or a
combination of Ordinary Shares, ADSs and cash, as the Committee shall
determine. The amount of cash and/or the Fair Market Value of Ordinary
Shares or ADSs received upon exercise of SARs shall, in the aggregate,
be equal to the amount by which the Fair Market Value (on the date of
surrender) of the Ordinary Shares or ADSs subject to the SARs exceeds
the Exercise Price.
7.7 Modification or Assumption of SARs. Within the limitations of the Plan,
the Committee may modify, extend or assume outstanding SARs or may
accept the cancellation of
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outstanding SARs (whether granted by the Company or by another issuer)
in return for the grant of new SARs for the same or a different number
of shares and at the same or a different exercise price. The foregoing
notwithstanding, no modification of an SAR shall, without the consent of
the Optionee, alter or impair his or her rights or obligations under
such SAR.
ARTICLE 8. RESTRICTED SHARES AND STOCK UNITS.
8.1 Time, Amount and Form of Awards. Awards under the Plan may be granted in
the form of Restricted Shares, in the form of Stock Units, or in any
combination of both. Restricted Shares or Stock Units may also be
awarded in combination with NSOs or SARs, and such an Award may provide
that the Restricted Shares or Stock Units will be forfeited in the event
that the related NSOs or SARs are exercised.
8.2 Payment for Awards. To the extent that an Award is granted in the form
of newly issued Restricted Shares, the Award recipient, as a condition
to the grant of such Award, may be required to provide consideration to
the Company in the form of cash rendered in an amount equal to the par
value of such Restricted Shares. To the extent that an Award is granted
in the form of Restricted Shares already in issue or in the form of
Stock Units, no consideration shall be required of the Award recipients.
8.3 Vesting Conditions. Each Award of Restricted Shares or Stock Units shall
become vested, in full or in installments, upon satisfaction of the
conditions specified in the Stock Award Agreement. The Committee may
include among such conditions the requirement that the performance of
the Company or a business unit of the Company (as determined by the
Company's independent auditors) for a specified period of one or more
years equal or exceed a target determined in advance by the Committee. A
Stock Award Agreement may provide for accelerated vesting in the event
of the Participant's death, disability or retirement or other events.
The Committee may determine, at the time of making an Award or
thereafter, that such Award shall become fully vested in the event that
a Change in Control occurs with respect to the Company.
8.4 Form and Time of Settlement of Stock Units. Settlement of vested Stock
Units may be made in the form of cash, Ordinary Shares or ADSs or any
combination. The actual number of Stock Units eligible for settlement
may be larger or smaller than the number included in the original Award,
based on predetermined performance factors. Methods of converting Stock
Units into cash may include (without limitation) a method based on the
average Fair Market Value of Ordinary Shares or ADSs over a series of
trading days. Vested Stock Units may be settled in a lump sum or in
installments. The distribution may occur or commence when all vesting
conditions applicable to the Stock Units have been satisfied or have
lapsed, or it may be deferred to any later date. The amount of a
deferred distribution may be increased by an interest factor or by
dividend equivalents. Until an
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Award of Stock Units is settled, the number of such Stock Units shall be
subject to adjustment pursuant to Article 10.
8.5 Death of Recipient. Any Stock Units Award that becomes payable after the
recipient's death shall be distributed to the recipient's beneficiary or
beneficiaries. Each recipient of a Stock Units Award under the Plan
shall designate one or more beneficiaries for this purpose by filing the
prescribed form with the Company. A beneficiary designation may be
changed by filing the prescribed form with the Company at any time
before the Award recipient's death. If no beneficiary was designated or
if no designated beneficiary survives the Award recipient, then any
Stock Units Award that becomes payable after the recipient's death shall
be distributed to the recipient's estate.
8.6 Creditors' Rights. A holder of Stock Units shall have no rights other
than those of a general creditor of the Company. Stock Units represent
an unfunded and unsecured obligation of the Company, subject to the
terms and conditions of the applicable Stock Award Agreement.
ARTICLE 9. VOTING AND DIVIDEND RIGHTS.
9.1 Restricted Shares. The holders of Restricted Shares awarded under the
Plan shall have the same voting, dividend and other rights as the
Company's other shareholders. A Stock Award Agreement may require that
the holders of Restricted Shares invest any cash dividends received in
additional Restricted Shares. Such additional Restricted Shares shall be
subject to the same conditions and restrictions as the Award with
respect to which the dividends were paid. Such additional Restricted
Shares shall not reduce the number of Ordinary Shares available under
Article 3.
9.2 Stock Units. The holders of Stock Units shall have no voting rights.
Prior to settlement or forfeiture, any Stock Unit awarded under the Plan
may, at the Committee's discretion, carry with it a right to dividend
equivalents. Such right entitles the holder to be credited with an
amount equal to all cash dividends paid on one Ordinary Share or ADS (as
appropriate) while the Stock Unit is outstanding. Dividend equivalents
may be converted into additional Stock Units. Settlement of dividend
equivalents may be made in the form of cash, Ordinary Shares or ADSs, or
in a combination. Prior to distribution, any dividend equivalents which
are not paid shall be subject to the same conditions and restrictions as
the Stock Units to which they attach.
ARTICLE 10. PROTECTION AGAINST DILUTION.
10.1 Adjustments. In the event of a subdivision of the outstanding Ordinary
Shares, a declaration of a dividend payable in Ordinary Shares, a
declaration of a dividend payable
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in a form other than Ordinary Shares in an amount that has a material
effect on the price of Ordinary Shares, a combination or consolidation
of the outstanding Ordinary Shares (by reclassification or otherwise)
into a lesser number of Ordinary Shares, a recapitalization, a spin-off
or a similar occurrence, the Committee shall make such adjustments as
it, in its sole discretion, deems appropriate in one or more of (a) the
number of Options, SARs, Restricted Shares and Stock Units available for
future Awards under Article 3, (b) the number of Stock Units included in
any prior Award which has not yet been settled, (c) the number of
Ordinary Shares or ADSs covered by each outstanding Option and SAR or
(d) the Exercise Price under each outstanding Option and SAR. Except as
provided in this Article 10, a Participant shall have no rights by
reason of any issue by the Company of stock of any class or securities
convertible into stock of any class, any subdivision or consolidation of
shares of stock of any class, the payment of any stock dividend or any
other increase or decrease in the number of shares of stock of any
class.
10.2 Reorganizations. In the event that the Company is a party to a merger or
other reorganization, outstanding Options, SARs, Restricted Shares and
Stock Units shall be subject to the agreement of merger or
reorganization. Such agreement may provide, without limitation, for the
assumption of outstanding Awards by the surviving corporation or its
parent, for their continuation by the Company (if the Company is a
surviving corporation), for accelerated vesting and accelerated
expiration, or for settlement in cash.
ARTICLE 11. AWARDS UNDER OTHER PLANS.
The Company may grant awards under other plans or programs. Such awards
may be settled in the form of Ordinary Shares or ADSs issued under this
Plan. Such Ordinary Shares or ADSs shall be treated for all purposes
under the Plan like Ordinary Shares or ADSs issued in settlement of
Stock Units and shall, when issued, reduce the number of Ordinary Shares
available under Article 3.
ARTICLE 12. LIMITATION ON RIGHTS.
12.1 Retention Rights. Neither the Plan nor any Award granted under the Plan
shall be deemed to give any individual a right to remain an employee,
consultant or director of the Company, a Parent, a Subsidiary or an
Affiliate. The Company and its Parents and Subsidiaries reserve the
right to terminate the service of any employee, consultant or director
at any time, with or without cause, subject to applicable laws, the
Company's memorandum and articles of association and a written
employment agreement (if any).
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12.2 Exclusion from Liability for Damages. Nothing in the Plan will in any
way be construed as imposing on the Company or a Subsidiary a
contractual obligation as between the Company or a Subsidiary and a Key
Employee to offer participation in the Plan.
Any person who ceases to be an employee (including a consultant or
director) of the Company, a Parent, a Subsidiary or an Affiliate because
of dismissal or termination of employment (however caused) or who is
under notice of termination of employment will in no circumstances be
entitled to claim any compensation in respect of the operation of the
Plan including but not limited to the application of tax policies
maintained by the Company, its Parents, Subsidiaries or Affiliates. If
necessary, that person's terms of employment will be varied accordingly.
12.3 Stockholders' Rights. A Participant shall have no dividend rights,
voting rights or other rights as a stockholder with respect to any
Ordinary Shares or ADSs covered by his or her Award prior to the
issuance of a stock certificate for such Ordinary Shares or ADSs. No
adjustment shall be made for cash dividends or other rights for which
the record date is prior to the date when such certificate is issued,
except as expressly provided in Articles 8, 9 and 10.
12.4 Regulatory Requirements. Any other provision of the Plan
notwithstanding, the obligation of the Company to issue Ordinary Shares
or ADSs under the Plan shall be subject to all applicable laws, rules
and regulations and such approval by any regulatory body as may be
required. The Company reserves the right to restrict, in whole or in
part, the delivery of ADSs pursuant to any Award prior to the
satisfaction of all legal requirements relating to the issuance of the
related Ordinary Shares, to their registration, qualification or listing
or to an exemption from registration, qualification or listing.
ARTICLE 13. LIMITATION ON PAYMENTS.
13.1 Basic Rule. This Article 13 shall not apply to a Participant's Award if
(a) the Committee, at the time of making such Award or at any time
thereafter, specifies in writing that such Award shall not be subject to
this Article 13 or (b) a written employment agreement between the
Company and such Participant expressly provides that his or her Awards
shall not be subject to the limitation described in this Article 13. If
this Article 13 applies to an Award, it shall supersede any other
provision of the Plan. In the event that the independent auditors most
recently selected by the Board (the "Auditors") determine that any
payment or transfer by the Company to or for the benefit of a
Participant, whether paid or payable (or transferred or transferable)
pursuant to the terms of this Plan or otherwise (a "Payment"), would be
nondeductible by the Company for federal income tax purposes because of
the provisions concerning "excess parachute payments" in section 280G of
the Code, then the aggregate present value of all Payments shall be
reduced (but not below zero) to the Reduced Amount. For purposes of this
Article 13, the "Reduced Amount" shall be the amount, expressed as a
present value, which maximizes the
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aggregate present value of the Payments without causing any Payment to
be nondeductible by the Company because of section 280G of the Code.
13.2 Reduction of Payments. If the Auditors determine that any Payment would
be nondeductible by the Company because of section 280G of the Code,
then the Company shall promptly give the Participant notice to that
effect and a copy of the detailed calculation thereof and of the Reduced
Amount, and the Participant may then elect, in his or her sole
discretion, which and how much of the Payments shall be eliminated or
reduced (as long as after such election the aggregate present value of
the Payments equals the Reduced Amount) and shall advise the Company in
writing of his or her election within 10 days of receipt of notice. If
no such election is made by the Participant within such 10-day period,
then the Company may elect which and how much of the Payments shall be
eliminated or reduced (as long as after such election the aggregate
present value of the Payments equals the Reduced Amount) and shall
notify the Participant promptly of such election. For purposes of this
Article 13, present value shall be determined in accordance with section
280G(d)(4) of the Code. All determinations made by the Auditors under
this Article 13 shall be binding upon the Company and the Participant
and shall be made within 60 days of the date when a payment becomes
payable or transferable. As promptly as practicable following such
determination and the elections hereunder, the Company shall pay or
transfer to or for the benefit of the Participant such amounts as are
then due to him or her under the Plan and shall promptly pay or transfer
to or for the benefit of the Participant in the future such amounts as
become due to him or her under the Plan.
13.3 Overpayments and Underpayments. As a result of uncertainty in the
application of section 280G of the Code at the time of an initial
determination by the Auditors hereunder, it is possible that Payments
will have been made by the Company which should not have been made (an
"Overpayment") or that additional Payments which will not have been made
by the Company could have been made (an "Underpayment"), consistent in
each case with the calculation of the Reduced Amount hereunder. In the
event that the Auditors, based upon the assertion of a deficiency by the
United States Internal Revenue Service against the Company or the
Participant which the Auditors believe has a high probability of
success, determine that an Overpayment has been made, such Overpayment
shall be treated for all purposes as a loan to the Participant which he
or she shall repay to the Company, together with interest at the
applicable federal rate provided in section 7872(f)(2) of the Code;
provided, however, that no amount shall be payable by the Participant to
the Company if and to the extent that such payment would not reduce the
amount which is subject to taxation under section 4999 of the Code. In
the event that the Auditors determine that an Underpayment has occurred,
such Underpayment shall promptly be paid or transferred by the Company
to or for the benefit of the Participant, together with interest at the
applicable federal rate provided in section 7872(f)(2) of the Code.
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13.4 Related Corporations. For purposes of this Article 13, the term
"Company" shall include affiliated corporations to the extent determined
by the Auditors in accordance with section 280G(d)(5) of the Code.
ARTICLE 14. WITHHOLDING TAXES.
14.1 To the extent required by applicable federal, state, local or foreign
law, a Participant or his or her successor shall make arrangements
satisfactory to the Company for the satisfaction of any withholding tax
obligations that arise in connection with the Plan. The Company shall
not be required to issue any Ordinary Shares or ADSs or make any cash
payment under the Plan until such obligations are satisfied.
14.2 Share Withholding. The Committee may permit a Participant to satisfy all
or part of his or her withholding or income tax obligations by having
the Company withhold all or a portion of any Ordinary Shares or ADSs
that otherwise would be issued to him or her or by surrendering all or a
portion of any Ordinary Shares or ADSs that he or she previously
acquired. Such Ordinary Shares or ADSs shall be valued at their Fair
Market Value on the date when taxes otherwise would be withheld in cash.
ARTICLE 15. ASSIGNMENT OR TRANSFER OF AWARDS.
An Award shall be transferable only as provided in the applicable Stock
Option Agreement, SAR Agreement or Stock Award Agreement. Such Agreement
may permit a transfer of the Award by beneficiary designation, will or
intestate succession. In the case of an Award other than an ISO, such
Agreement may also permit a transfer of the Award to the Participant's
spouse or children or stepchildren under the age of 18. The transferee
of an Award shall agree in writing on a form prescribed by the Company
to be bound by all provisions of the applicable Stock Option Agreement,
SAR Agreement or Stock Award Agreement. An ISO, may not be transferred
other than by will or laws of descent and distribution. While the
Participant is alive, an ISO may only be exercised by the Participant.
ARTICLE 16. FUTURE OF THE PLAN.
16.1 Term of the Plan. The Plan, as set forth herein, shall become effective
on 24 May 1999. The Plan shall remain in effect until it is terminated
under Section 16.2, or, if sooner, 24 May 2009. No ISOs may be granted
after 24 May 2009. No Awards may be granted under the Plan after the
termination thereof. The termination of the Plan, or any amendment
thereof, shall not affect any Award previously granted under the Plan.
16.2 Amendment or Termination. The Plan may be amended by resolution of the
Board provided that no amendment which would be to the advantage of
Participants may be made without prior approval of the Company in
general meeting to the provisions relating to eligibility, overall
limits, maximum individual entitlement or the adjustment of Awards
following a variation of share capital, except for minor amendments to
benefit the
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administration of the Plan, to take account of a change in legislation
or to obtain or maintain favourable tax, exchange control or regulatory
treatment for participants or the Company or its subsidiaries. No
amendments to the Plan shall affect any awards granted under the
AirTouch Communications, Inc. 1993 Long-Term Stock Incentive Plan.
ARTICLE 17. DEFINITIONS.
17.1 "ADS" means one American Depositary Share of the Company.
17.2 "Affiliate" means any entity other than a Subsidiary, if the Company
and/or one or more Subsidiaries own not less than 50% of such entity.
17.3 "Award" means any award of an Option, an SAR, a Restricted Share or a
Stock Unit under the Plan.
17.4 "Board" means the Company's Board of Directors, as constituted from time
to time.
17.5 "Change in Control" means the occurrence of any of the following events:
(a) A person obtaining Control as a result of making:
(i) a general offer to acquire the whole of the issued ordinary share
capital of the Company which is made on a condition such that if it is
satisfied the person making the offer will have Control of the Company;
or
(ii) a general offer to acquire all the shares in the Company which are of
the same class as the shares over which Awards have been granted.
(b) A person becoming bound or entitled to acquire shares in the Company
under Sections 428 to 430F of the Companies Act 1985.
(c) Under Section 425 of the Companies Act 1985, the Court sanctioning a
compromise or arrangement proposed for the purposes of or in connection
with a scheme for the reconstruction of the Company or its amalgamation
with any other company or companies.
(d) The giving of a notice of a meeting to consider a resolution for the
voluntary winding-up of the Company.
(e) In respect of Awards granted within 12 months of the Merger, both:
(i) Any "person" (as defined below) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of the Company representing at least 20% of the total
voting power represented by the Company's then outstanding voting
securities; and
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(ii) The beneficial ownership by such person of securities representing such
percentage has not been approved by a majority of the "continuing
directors" (as defined below); or
For purposes of Subsection (e) above, the term "person" shall have the
same meaning as when used in sections 13(d) and 14(d) of the Exchange
Act but shall exclude (i) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or of a Parent
or Subsidiary and (ii) a corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportions as
their ownership of the common stock of the Company.
(f) In respect of Awards granted within 12 months of the Merger, a change in
the composition of the Board occurs, as a result of which fewer than
two-thirds of the incumbent directors are directors who either:
(i) Had been directors of the Company on the "look-back date" (as defined
below) (the "original directors"); or
(ii) Were elected, or nominated for election, to the Board with the
affirmative votes of at least a majority of the aggregate of the
original directors who were still in office at the time of the election
or nomination and the directors whose election or nomination was
previously so approved (the "continuing directors"); For purposes of
Subsection (f) above, the term "look-back date" shall mean the date 24
months prior to the date of the event that may constitute a Change in
Control.
17.6 "Code" means the United States Internal Revenue Code of 1986, as
amended.
17.7 "Committee" means a committee of the Board, as described in Article 2.
17.8 "Company" means Vodafone AirTouch Plc.
17.9 "Control" has the meaning given to that expression in Section 840 of the
Income and Corporation Taxes Ac 1988.
17.10 "Exchange Act" means the United States Securities Exchange Act of 1934,
as amended.
17.11 "Exercise Price," in the case of an Option, means the amount for which
one ADS may be purchased upon exercise of such Option, as specified in
the applicable Stock Option Agreement. "Exercise Price," in the case of
an SAR, means an amount, as specified in the applicable SAR Agreement,
which is subtracted from the Fair Market Value of one ADS in determining
the amount payable upon exercise of such SAR.
17.12 "Fair Market Value" means either the market price of an ADS, determined
by the Committee as follows:
14
<PAGE>
(a) If the ADSs are traded over-the-counter on the date in question and are
traded on the Nasdaq system or The Nasdaq National Market, then the Fair
Market Value shall be equal to the last-transaction price quoted for
such date by the Nasdaq system or The Nasdaq National Market;
(b) If the ADSs are traded on a stock exchange on the date in question, then
the Fair Market Value shall be equal to the closing price reported by
the applicable composite transactions report for such date; and
(c) If neither of the foregoing provisions is applicable, then the Fair
Market Value shall be determined by the Committee in good faith on such
basis as it deems appropriate.
Whenever possible, the determination of the Fair Market Value of an ADS
by the Committee shall be based on the prices reported in the Western
Edition of The Wall Street Journal. Such determination shall be
conclusive and binding on all persons; or,
where applicable, the market price of an Ordinary Share, being the
middle market quotation of and Ordinary Share on the dealing day
preceding the date in question, as derived from the London Stock
Exchange Daily Official List.
17.13 "ISO" means an incentive stock option described in section 422(b) of the
Code.
17.14 "Key Employee" means an employee of the Company or a Subsidiary.
17.15 "Merger" means the completion of the merger of the Company or a
Subsidiary with AirTouch Communications, Inc.
17.16 "NSO" means an employee stock option not described in sections 422 or
423 of the Code.
17.17 "Option" means an ISO or NSO granted under Article 5 of the Plan and
entitling the holder to purchase one Ordinary Share or one ADS.
17.18 "Optionee" means an individual or estate who or which holds an Option or
SAR.
17.19 "Ordinary Share" means one ordinary share in the capital of the Company.
17.20 "Parent" means any corporation (other than the Company) in an unbroken
chain of corporations ending with the Company, if each of the
corporations other than the Company owns stock possessing 50% or more of
the total combined voting power of all classes of stock in one of the
other corporations in such chain. A corporation that attains the status
of a Parent on a date after the adoption of the Plan shall be considered
a Parent commencing as of such date.
17.21 "Participant" means an individual or estate who or which holds an Award.
17.22 "Plan" means this Vodafone AirTouch Plc 1999 Long Term Stock Incentive
Plan, as amended from time to time.
15
<PAGE>
17.23 "Restricted Share" means an Ordinary share or an ADS awarded under
Article 8 of the Plan.
17.24 "SAR" means a stock appreciation right granted under Article 7 of the
Plan.
17.25 "SAR Agreement" means the agreement between the Company and an Optionee
which contains the terms, conditions and restrictions pertaining to his
or her SAR.
17.26 "Stock Award Agreement" means the agreement between the Company and the
recipient of a Restricted Share or Stock Unit which contains the terms,
conditions and restrictions pertaining to such Restricted Share or Stock
Unit.
17.27 "Stock Option Agreement" means the agreement between the Company and an
Optionee which contains the terms, conditions and restrictions
pertaining to his or her Option.
17.28 "Subsidiary" means a company which is both under the Control of the
Company and a subsidiary of the Company within the meaning of Section
736 of the Companies Act 1985 and a subsidiary of the Company within the
meaning of Section 424 of the Code.
Exhibit 4(d)
VODAFONE AIRTOUCH PLC
1999 EMPLOYEE STOCK PURCHASE PLAN
(Approved by shareholders on 24 May 1999)
May 1999 - Final Version
<PAGE>
TABLE OF CONTENTS
------------------
Page
----
SECTION 1. PURPOSE OF THE PLAN..............................................1
SECTION 2. ADMINISTRATION OF THE PLAN.......................................1
SECTION 3. ENROLLMENT AND PARTICIPATION.....................................1
SECTION 4. EMPLOYEE CONTRIBUTIONS...........................................2
SECTION 5. WITHDRAWAL FROM THE PLAN.........................................2
SECTION 6. CHANGE IN EMPLOYMENT STATUS......................................3
SECTION 7. PLAN ACCOUNTS AND PURCHASE OF SHARES.............................3
SECTION 8. LIMITATIONS ON STOCK OWNERSHIP...................................4
SECTION 9. RIGHTS NOT TRANSFERABLE..........................................5
SECTION 10. NO RIGHTS AS AN EMPLOYEE........................................5
SECTION 11. NO RIGHTS AS A STOCKHOLDER......................................5
SECTION 12. STOCK OFFERED UNDER THE PLAN....................................5
SECTION 13. AMENDMENT OR DISCONTINUANCE.....................................6
SECTION 14. DEFINITIONS.....................................................7
<PAGE>
VODAFONE AIRTOUCH PLC
1999 EMPLOYEE STOCK PURCHASE PLAN
SECTION 1. PURPOSE OF THE PLAN.
- --------- -------------------
The Plan was approved by the Company's shareholders on 24 May 1999.
The purpose of the Plan is to provide Eligible Employees with an opportunity to
increase their proprietary interest in the success of the Company by purchasing
Stock in the Company on favorable terms and to pay for such purchases through
payroll deductions. The Plan is intended to qualify under section 423 of the
Code. The Plan is a successor to the AirTouch Communications, Inc. Employee
Stock Purchase Plan (the "Prior Plan") with the effect that the participation in
this Plan of Eligible Employees who were participants in the Prior Plan shall
continue uninterrupted following the last participation period in the Prior
Plan.
SECTION 2. ADMINISTRATION OF THE PLAN.
- --------- --------------------------
(a) The Committee. The Plan shall be administered by the Committee. The
interpretation and construction by the Committee of any provision of the
Plan or of any right to purchase Stock granted under the Plan shall be
conclusive and binding on all persons. The committee may delegate the
administration of the Plan to such person or persons as it chooses.
(b) Rules and Forms. The Committee may adopt such rules and forms under the Plan
as it considers appropriate.
SECTION 3. ENROLLMENT AND PARTICIPATION.
- --------- ----------------------------
(a) Participation Periods. While the Plan is in effect, there shall be four
Participation Periods in each calendar year. The Participation Periods
shall consist of calendar quarters, except that in the event of a
`change in Control' of the Company, the last day of the Participation
Period in which the change in Control would occur shall be accelerated
to the last payday immediately preceding the change in Control.
(b) Enrollment. Any individual who, on the first day of a Participation
Period, qualifies as an Eligible Employee may elect to become a
Participant in the Plan for such Participation Period by executing the
enrollment form prescribed for this purpose by the Committee. The
enrollment form shall be filed with the Company at the prescribed
location at least 15 days before the commencement of such Participation
Period.
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(c) Duration of Participation. Once enrolled, a Participant shall continue
to participate in the Plan for each succeeding Participation Period
until he or she ceases to be an Eligible Employee, withdraws from the
Plan or reaches the end of the Participation Period in which he or she
discontinued employee contributions under Section 4(d). A Participant
who discontinued employee contributions under Section 4(d) or withdrew
from the Plan under Section 5(a) may again become a Participant, if he
or she then is an Eligible Employee, by following the procedure
described in Subsection (b) above. A Participant whose employee
contributions were discontinued automatically under Section 8(b) shall
automatically resume participation at the beginning of the next calendar
year, if he or she then is an Eligible Employee.
SECTION 4. EMPLOYEE CONTRIBUTIONS.
- --------- ----------------------
(a) Frequency of Payroll Deductions. A Participant may purchase shares of
Stock under the Plan solely by means of payroll deductions. Payroll
deductions, as designated by the Participant pursuant to Subsection (b)
below, shall commence with the first payday in the Participation Period
and shall continue on each subsequent payday during participation in the
Plan.
(b) Amount of Payroll Deductions. An Eligible Employee shall designate on the
enrollment form the portion of his or her Compensation that he or she
elects to have withheld for the purchase of Stock. Such portion shall be
a whole percentage of the Eligible Employee's Compensation, but not less
than 2% nor more than 25%. Compensation shall not be withheld in arrears.
(c) Changing Withholding Rate. If a Participant wishes to change the rate of
payroll withholding, he or she may do so by filing a new enrollment form
with the Company at the prescribed location at least 15 days before the
commencement of the Participation Period for which such change is to be
effective.
(d) Discontinuing Payroll Deductions. If a Participant wishes to discontinue
employee contributions entirely, he or she may do so by filing a new
enrollment form with the Company at the prescribed location. The
discontinuance shall be effective as soon as reasonably practicable
after such form has been received by the Company. In addition, employee
contributions may be discontinued automatically pursuant to Section
8(b). A Participant who discontinues employee contributions under this
Subsection (d) shall not resume such contributions during the same
Participation Period.
SECTION 5. WITHDRAWAL FROM THE PLAN.
- --------- ------------------------
(a) Withdrawal. A Participant may elect to withdraw from the Plan by filing
the prescribed form with the Company at the prescribed location at least
15 days before the last day of a
Page 2
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Participation Period. As soon as reasonably practicable thereafter,
payroll deductions shall cease and the entire amount credited to the
Participant's Plan Account shall be refunded to him or her in cash,
without interest. No partial withdrawals shall be permitted.
(b) Re-Enrollment After Withdrawal. A former Participant who has withdrawn
from the Plan shall not be a Participant until he or she re-enrolls for
a subsequent Participation Period under Section 3(b).
SECTION 6. CHANGE IN EMPLOYMENT STATUS.
- --------- ---------------------------
(a) Termination of Employment. Termination of employment as an Eligible
Employee for any reason, including death, shall be treated as an
automatic withdrawal from the Plan under Section 5(a). A transfer from
one Participating Company to another shall not be treated as a
termination of employment. The Committee shall have the sole and
absolute discretion to determine whether a Participant's employment has
terminated.
(b) Leave of Absence. For purposes of the Plan, employment shall not be
deemed to terminate when the Participant goes on a military leave, a
sick leave or another bona fide leave of absence, if the leave was
approved by the Company in writing. Employment, however, shall be deemed
to terminate 90 days after the Participant goes on a leave, unless a
contract or statute protects his or her right to return to work.
Employment shall be deemed to terminate in any event when the approved
leave ends, unless the Participant immediately returns to work. The
Company shall determine which leaves count for this purpose.
(c) Death. In the event of the Participant's death, the amount credited to
his or her Plan Account shall be paid to a beneficiary designated by him
or her for this purpose on the prescribed form or, if none, to the
Participant's estate. Such form shall be valid only if it was filed with
the Company at the prescribed location before the Participant's death.
SECTION 7. PLAN ACCOUNTS AND PURCHASE OF SHARES.
- --------- ------------------------------------
(a) Plan Accounts. The Company or a Subsidiary nominated by the company
shall maintain a Plan Account on its books in the name of each
Participant. Whenever an amount is deducted from the Participant's
Compensation under the Plan, such amount shall be credited to the
Participant's Plan Account. No interest shall be credited to Plan
Accounts.
(b) Purchase Price. The Purchase Price for each share of Stock shall be the
lower of:
(i) 85% of the Fair Market Value of Stock on the last trading day
before the Participation Period commences; or
(ii) 85% of the Fair Market Value of Stock on the last trading day in
the Participation Period.
Page 3
<PAGE>
(c) Number of Shares Purchased. As of the last day of each Participation
Period, each Participant shall be deemed to have elected to purchase the
number of shares of Stock calculated in accordance with this Subsection
(c), unless the Participant has withdrawn from the Plan under Sections 5
or 6. The amount then in the Participant's Plan Account shall be divided
by the Purchase Price, and the number of whole shares that results shall
be purchased from the Company with the funds in the Participant's Plan
Account. The foregoing notwithstanding, no Participant shall purchase
shares of Stock in excess of the amounts set forth in Section 12(a).
(d) Available Shares Insufficient. In the event that the aggregate number of
shares that all Participants elect to purchase during a Participation
Period exceeds the maximum number of shares remaining available for
issuance under Section 12(a), then the number of shares to which each
Participant is entitled shall be determined by multiplying the number of
shares available for issuance by a fraction, the numerator of which is
the number of shares that such Participant has elected to purchase and
the denominator of which is the number of shares that all Participants
have elected to purchase.
(e) Issuance of Stock. At a Participant's request, certificates representing
the whole number of shares of Stock purchased by him or her shall be
issued as soon as reasonably practicable after the close of the
Participation Period. Absent a request from the Participant, shares
purchased under the Plan shall be held for the Participant's benefit by
a broker designated by the Company. Shares may be registered in the name
of the Participant or jointly in the name of the Participant and his or
her spouse as joint tenants with right of survivorship or as community
property.
(f) Unused Cash Balances. Any amount remaining in the Participant's Plan
Account that represents the Purchase Price for shares which could not be
purchased by reason of Subsection (c) above, Section 8 or Section 12(a)
shall be refunded to the Participant in cash, without interest. Any
amount remaining in the Participant's Plan Account that represents the
Purchase Price for a fractional share of Stock shall be carried over in
the Participant's Plan Account to the next Participation Period unless
the Participant has withdrawn from the Plan under Sections 5 or 6, in
which event such amount shall be refunded to the Participant in cash,
without interest.
SECTION 8. LIMITATIONS ON STOCK OWNERSHIP.
- --------- ------------------------------
(a) Five Percent Limit. Any other provision of the Plan notwithstanding, no
Participant shall be granted a right to purchase Stock under the Plan if
such Participant, immediately after his or her election to purchase such
Stock, would own stock possessing more than 5% of the total combined
voting power or value of all classes of stock of the Company or any
Parent or Subsidiary of the Company. For purposes of this Subsection
(a), ownership of stock shall be determined after applying the
attribution rules of section 424(d) of the Code,
Page 4
<PAGE>
and each Participant shall be considered to own any stock that he or she
has a right or option to purchase under this or any other plan.
(b) $25,000 Limit. Any other provision of the Plan notwithstanding, no
Participant shall be granted a right to purchase Stock under the Plan if
such Participant's rights to purchase stock under this and all other
employee stock purchase plans of the Company or any parent or Subsidiary
of the Company would accrue at a rate that exceeds $25,000 of the fair
market value of such stock (determined at the beginning of the
applicable Participation Period) for each calendar year for which such
right is outstanding at any time. For purposes of this Subsection (b),
employee stock purchase plans not described in section 423 of the Code
shall be disregarded. If a Participant is precluded by this Subsection
(b) from purchasing additional Stock under the Plan, then his or her
employee contributions shall automatically be discontinued for the
balance of the calendar year and resume at the beginning of the next
calendar year (if he or she then is an Eligible Employee).
SECTION 9. RIGHTS NOT TRANSFERABLE.
- --------- -----------------------
The rights of any Participant under the Plan, or any Participant's interest in
any Stock or moneys to which he or she may be entitled under the Plan, shall,
during the Participant's lifetime, only be exercisable by the Participant and
shall not be transferable by voluntary or involuntary assignment or by operation
of law, or in any other manner other than by beneficiary designation or the laws
of descent and distribution. Any attempted assignment in violation of this
Section 9 shall be void. If a Participant in any manner attempts to transfer,
assign or otherwise encumber his or her rights or interest under the Plan, other
than by beneficiary designation or the laws of descent and distribution, then
such act shall be treated as an election by the Participant to withdraw from the
Plan under Section 5(a).
SECTION 10. NO RIGHTS AS AN EMPLOYEE.
- ---------- ------------------------
Nothing in the Plan shall be construed to give any person the right to remain in
the employ of a Participating Company. Each Participating Company reserves the
right to terminate the employment of any person at any time, with or without
cause.
SECTION 11. NO RIGHTS AS A STOCKHOLDER.
- ---------- --------------------------
A Participant shall have no rights as a stockholder with respect to any shares
that he or she has purchased, or may have a right to purchase, under the Plan
until the date of issuance of a stock certificate for such shares.
Page 5
<PAGE>
SECTION 12. STOCK OFFERED UNDER THE PLAN.
- ---------- ----------------------------
(a) Authorized Shares.
(i) The aggregate number of shares of Stock available for purchase
under the Plan shall be 100 million, subject to adjustment
pursuant to Section 12(b). Section 12 (a)(i) is subject to the
further restrictions of Section 12(a), which cannot be used to
increase this limit.
(ii) The number of shares of Stock which may be allocated under the
Plan on any day will not exceed 10% of the ordinary share capital
of the Company in issue immediately before that day, when added
to the total number of shares of Stock which have been allocated
in the previous ten years under the Plan and any other employee
share plan adopted by the Company.
(iii) The number of shares of Stock which may be allocated under the
Plan on any day will not exceed 5% of the ordinary share capital
of the Company in issue immediately prior to that day, when added
to the total number of shares of stock which have been allocated
in the previous five years under the Plan and any other employee
share plan adopted by the Company.
(iv) Where the right to acquire shares of Stock was released or lapsed
without being exercised the ordinary shares concerned will be
ignored when calculating the limits in this Rule.
(v) Allocate means in relation to any share option plan the placing
of unissued shares of Stock under option and in relation to this
plan and other types of employee share plan the issue and
allotment of shares of Stock
(b) Anti-Dilution Adjustments. The aggregate number of shares of Stock
offered under the Plan and the price of shares that any Participant has
elected to purchase shall be adjusted proportionately by the Committee
for any increase or decrease in the number of outstanding shares of
Stock resulting from a subdivision or consolidation of shares, the
payment of a stock dividend, any other increase or decrease in such
shares effected without receipt or payment of consideration by the
Company, or the distribution of the shares of a Subsidiary to the
Company's stockholders.
(c) Reorganizations. In the event of a dissolution or liquidation of the
Company, or a merger or consolidation to which the Company is a
constituent corporation, the Plan shall terminate unless the plan of
merger, consolidation or reorganization provides otherwise, and all
amounts that have been withheld but not yet applied to purchase Stock
hereunder shall be
Page 6
<PAGE>
refunded, without interest. The Plan shall in no event be construed to
restrict in any way the Company's right to undertake a dissolution,
liquidation, merger, consolidation or other reorganization.
SECTION 13. AMENDMENT OR DISCONTINUANCE.
- ---------- ---------------------------
The Plan may be amended or terminated by resolution of the Board of Directors
provided that no amendment which would be to the advantage of Participants may
be made without prior approval of the Company in general meeting to the
provisions relating to eligibility, overall limits, maximum individual
entitlement or the adjustment of Awards following a variation of share capital,
except for minor amendments to benefit the administration of the Plan, to take
account of a change in legislation or to obtain or maintain favourable tax,
exchange control or regulatory treatment for participants or the Company or its
subsidiaries.
SECTION 14. DEFINITIONS.
- ---------- -----------
(a) "Board of Directors" means the Board of Directors of the Company, as
constituted from time to time.
(b) "Code" means the Unites States Internal Revenue Code of 1986, as
amended.
(c) "Committee" means a committee of the Board of Directors, consisting of
one or more directors appointed by the Board of Directors.
(d) "Company" means Vodafone AirTouch Plc.
(e) "Compensation" means the regular compensation paid in cash to a
Participant by a Participating Company, plus amounts contributed by the
Participant to this Plan or to other employee benefit or
deferred-compensation plans (whether on a pre-tax or after-tax basis).
Compensation shall include base salaries and wages, team awards,
commissions and wage replacement payments but shall exclude other
bonuses, incentive compensation, overtime pay, moving or relocation
allowances, car allowances, imputed income attributable to cars or life
insurance, taxable fringe benefits and similar items, all as determined
by the Committee.
(f) "Control" has the meaning given to that expression in Section 840 of the
Income and Corporation Taxes Act 1988.
(g) "Eligible Employee" means:
Any employee of a Participating Company who meets both of the
following requirements:
Page 7
<PAGE>
(A) His or her customary employment is for more than five
months per calendar year and for more than 20 hours
per week; and
(B) He or she has been an employee of a Participating
Company for not less than six consecutive months.
The foregoing notwithstanding, an individual shall not be considered an
Eligible Employee if his or her participation in the Plan is prohibited
by the law of any country which has jurisdiction over him or her.
(h) "Fair Market Value" means the market price of Stock, determined by the
Committee as follows:
(i) If the Stock is traded over-the-counter on the date in question
but is not classified as a national market issue, then the Fair
Market Value shall be equal to the mean between the last reported
representative bid and asked prices quoted by the Nasdaq system
for such date;
(ii) If the Stock is traded over-the-counter on the date in question
and is classified as a national market issue, then the Fair Market
Value shall be equal to the last-transaction price quoted by the
Nasdaq system for such date;
(iii) If the Stock is traded on a stock exchange on the date in
question, then the Fair Market Value shall be equal to the closing
price reported by the applicable composite transactions report for
such date; and
(iv) If none of the foregoing provisions is applicable, then the Fair
Market Value shall be determined by the Committee in good faith on
such basis as it deems appropriate.
Whenever possible, the determination of Fair Market Value by the
Committee shall be based on the prices reported in the Western Edition
of The Wall Street Journal. Such determination shall be conclusive and
binding on all persons.
(i) "Parent" means any corporation (other than the Company) in an unbroken
chain of corporations ending with the Company, if each of the
corporations other than the Company owns stock possessing 50% or more of
the total combined voting power of all classes of stock in one of the
other corporations in such chain. A corporation that attains the status
of a Parent on a date after the adoption of the Plan shall be considered
a Parent commencing as of such date.
(j) "Participant" means an Eligible Employee who elects to participate in
the Plan, as provided in Section 3(b).
Page 8
<PAGE>
(k) "Participating Company" means each Subsidiary designated from time to
time by the Committee and listed on Schedule A attached hereto. An
entity that becomes a Subsidiary after adoption of the Plan may be
designated by the Committee as a Participating Company.
(k) "Participation Period" means a period during which contributions may be
made toward the purchase of Stock under the Plan, as determined pursuant
to Section 3(a).
(l) "Plan" means this Vodafone AirTouch Plc1999 Employee Stock Purchase
Plan, as amended from time to time.
(m) "Plan Account" means the account established for each Participant
pursuant to Section 7(a).
(n) "Purchase Price" means the price at which Participants may purchase
Stock under the Plan, as determined pursuant to Section 7(b).
(o) "Retirement Plan" means the AirTouch Communications, Inc. Retirement
Plan, as amended from time to time.
(p) "Stock" means the American Depositary Shares of the Company, unless the
context requires otherwise.
(q) "Subsidiary" means a company which is both under the Control of the
Company and a subsidiary of the Company within the meaning of Section
736 of the Companies Act 1985 and a subsidiary of the Company within the
meaning of Section 424 of the Code.
Page 9
<PAGE>
SCHEDULE A
EFFECTIVE DATE OF
NAME OF PARTICIPATING COMPANY* PARTICIPATION
- ----------------------------- -----------------
AirTouch Cellular Date of closing of the Merger
AirTouch Communications, Inc.
AirTouch International
AirTouch Paging
Airtouch PCS, Inc
AirTouch Cellular, Inc
- --------
* An individual employed by a Participating Company is not considered
an Eligible Employee if his or her participation in the Plan is prohibited by
the law of any country which has jurisdiction over him or her. The Company
determines to whom the preceding sentence applies.
Exhibit 4(f)
AIRTOUCH COMMUNICATIONS, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Amended and Restated Effective as of February 1, 1995)
<PAGE>
TABLE OF CONTENTS
SECTION 1. PURPOSE OF THE PLAN...............................................1
SECTION 2. ADMINISTRATION OF THE PLAN........................................1
SECTION 3. ENROLLMENT AND PARTICIPATION......................................1
SECTION 4. EMPLOYEE CONTRIBUTIONS............................................2
SECTION 5. WITHDRAWAL FROM THE PLAN..........................................2
SECTION 6. CHANGE IN EMPLOYMENT STATUS.......................................3
SECTION 7. PLAN ACCOUNTS AND PURCHASE OF SHARES..............................3
SECTION 8. LIMITATIONS ON STOCK OWNERSHIP....................................4
SECTION 9. RIGHTS NOT TRANSFERABLE...........................................5
SECTION 10. NO RIGHTS AS AN EMPLOYEE.........................................5
SECTION 11. NO RIGHTS AS A STOCKHOLDER.......................................5
SECTION 12. STOCK OFFERED UNDER THE PLAN.....................................5
SECTION 13. AMENDMENT OR DISCONTINUANCE......................................6
SECTION 14. DEFINITIONS......................................................6
SECTION 15. EXECUTION........................................................8
<PAGE>
AIRTOUCH COMMUNICATIONS, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Restated Effective as of February 1, 1995)
SECTION 1. PURPOSE OF THE PLAN.
The Plan was adopted by the board of directors of the Company's
predecessor on July 22, 1993, and approved by the majority stockholder of the
Company's predecessor on September 24, 1993. The Plan was most recently amended
and restated by the Company's Board of Directors on May 16, 1995, effective as
of February 1, 1995.
The purpose of the Plan is to provide Eligible Employees with an
opportunity to increase their proprietary interest in the success of the Company
by purchasing Stock from the Company on favorable terms and to pay for such
purchases through payroll deductions. The Plan is intended to qualify under
section 423 of the Code.
SECTION 2. ADMINISTRATION OF THE PLAN.
(a) The Committee. The Plan shall be administered by the Committee. The
interpretation and construction by the Committee of any provision of the Plan or
of any right to purchase Stock granted under the Plan shall be conclusive and
binding on all persons.
(b) Rules and Forms. The Committee may adopt such rules and forms under
the Plan as it considers appropriate.
SECTION 3. ENROLLMENT AND PARTICIPATION.
(a) Participation Periods. While the Plan is in effect, there shall be
four Participation Periods in each calendar year. The Participation Periods
shall consist of calendar quarters.
(b) Enrollment. Any individual who, on the first day of a Participation
Period, qualifies as an Eligible Employee may elect to become a Participant in
the Plan for such Participation Period by executing the enrollment form
prescribed for this purpose by the Committee. The enrollment form shall be filed
with the Company at the prescribed location at least 15 days before the
commencement of such Participation Period.
(c) Duration of Participation. Once enrolled, a Participant shall
continue to participate in the Plan for each succeeding Participation Period
until he or she ceases to be an Eligible Employee, withdraws from the Plan or
reaches the end of the Participation Period in which he or she discontinued
employee contributions under Section 4(d). A Participant who discontinued
Page 1
<PAGE>
employee contributions under Section 4(d) or withdrew from the Plan under
Section 5(a) may again become a Participant, if he or she then is an Eligible
Employee, by following the procedure described in Subsection (b) above. A
Participant whose employee contributions were discontinued automatically under
Section 8(b) shall automatically resume participation at the beginning of the
next calendar year, if he or she then is an Eligible Employee.
(d) Special Rule for Directors and Officers. Any other provision of the
Plan notwithstanding, an Eligible Employee who is considered a director or
officer of the Company for purposes of section 16 of the Securities Exchange Act
of 1934, as amended, shall not resume employee contributions under the Plan for
a period of at least six months after discontinuing his or her employee
contributions. This Subsection (d) shall be applicable only to the extent
required by Rule 16b-3 of the Securities and Exchange Commission, as amended.
SECTION 4. EMPLOYEE CONTRIBUTIONS.
(a) Frequency of Payroll Deductions. A Participant may purchase shares
of Stock under the Plan solely by means of payroll deductions. Payroll
deductions, as designated by the Participant pursuant to Subsection (b) below,
shall commence with the first payday in the Participation Period and shall
continue on each subsequent payday during participation in the Plan.
(b) Amount of Payroll Deductions. An Eligible Employee shall designate
on the enrollment form the portion of his or her Compensation that he or she
elects to have withheld for the purchase of Stock. Such portion shall be a whole
percentage of the Eligible Employee's Compensation, but not less than 2% nor
more than 25%. Compensation shall not be withheld in arrears.
(c) Changing Withholding Rate. If a Participant wishes to change the
rate of payroll withholding, he or she may do so by filing a new enrollment form
with the Company at the prescribed location at least 15 days before the
commencement of the Participation Period for which such change is to be
effective.
(d) Discontinuing Payroll Deductions. If a Participant wishes to
discontinue employee contributions entirely, he or she may do so by filing a new
enrollment form with the Company at the prescribed location. The discontinuance
shall be effective as soon as reasonably practicable after such form has been
received by the Company. (In addition, employee contributions may be
discontinued automatically pursuant to Section 8(b).) A Participant who
discontinued employee contributions under this Subsection (d) shall not resume
such contributions during the same Participation Period.
SECTION 5. WITHDRAWAL FROM THE PLAN.
(a) Withdrawal. A Participant may elect to withdraw from the Plan by
filing the prescribed form with the Company at the prescribed location at least
15 days before the last day
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of a Participation Period. As soon as reasonably practicable thereafter, payroll
deductions shall cease and the entire amount credited to the Participant's Plan
Account shall be refunded to him or her in cash, without interest. No partial
withdrawals shall be permitted.
(b) Re-Enrollment After Withdrawal. A former Participant who has
withdrawn from the Plan shall not be a Participant until he or she re-enrolls
for a subsequent Participation Period under Section 3(b).
SECTION 6. CHANGE IN EMPLOYMENT STATUS.
(a) Termination of Employment. Termination of employment as an Eligible
Employee for any reason, including death, shall be treated as an automatic
withdrawal from the Plan under Section 5(a). (A transfer from one Participating
Company to another shall not be treated as a termination of employment.)
(b) Leave of Absence. For purposes of the Plan, employment shall not be
deemed to terminate when the Participant goes on a military leave, a sick leave
or another bona fide leave of absence, if the leave was approved by the Company
in writing. Employment, however, shall be deemed to terminate 90 days after the
Participant goes on a leave, unless a contract or statute protects his or her
right to return to work. Employment shall be deemed to terminate in any event
when the approved leave ends, unless the Participant immediately returns to
work. The Company shall determine which leaves count for this purpose.
(c) Death. In the event of the Participant's death, the amount credited
to his or her Plan Account shall be paid to a beneficiary designated by him or
her for this purpose on the prescribed form or, if none, to the Participant's
estate. Such form shall be valid only if it was filed with the Company at the
prescribed location before the Participant's death.
SECTION 7. PLAN ACCOUNTS AND PURCHASE OF SHARES.
(a) Plan Accounts. The Company shall maintain a Plan Account on its
books in the name of each Participant. Whenever an amount is deducted from the
Participant's Compensation under the Plan, such amount shall be credited to the
Participant's Plan Account. No interest shall be credited to Plan Accounts.
(b) Purchase Price. The Purchase Price for each share of Stock shall be
the lower of:
(i) 85% of the Fair Market Value of Stock on the last trading
day before the Participation Period commences; or
(ii) 85% of the Fair Market Value of Stock on the last trading
day in the Participation Period.
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(c) Number of Shares Purchased. As of the last day of each Participation
Period, each Participant shall be deemed to have elected to purchase the number
of shares of Stock calculated in accordance with this Subsection (c), unless the
Participant has withdrawn from the Plan under Sections 5 or 6. The amount then
in the Participant's Plan Account shall be divided by the Purchase Price, and
the number of whole shares that results shall be purchased from the Company with
the funds in the Participant's Plan Account. The foregoing notwithstanding, no
Participant shall purchase more than a maximum of 2,000 shares of Stock with
respect to any Participation Period nor shares of Stock in excess of the amounts
set forth in Sections 8 and 12(a).
(d) Available Shares Insufficient. In the event that the aggregate
number of shares that all Participants elect to purchase during a Participation
Period exceeds the maximum number of shares remaining available for issuance
under Section 12(a), then the number of shares to which each Participant is
entitled shall be determined by multiplying the number of shares available for
issuance by a fraction, the numerator of which is the number of shares that such
Participant has elected to purchase and the denominator of which is the number
of shares that all Participants have elected to purchase.
(e) Issuance of Stock. At a Participant's request, certificates
representing the whole number of shares of Stock purchased by him or her shall
be issued as soon as reasonably practicable after the close of the Participation
Period. Absent a request from the Participant, shares purchased under the Plan
shall be held for the Participant's benefit by a broker designated by the
Company. Shares may be registered in the name of the Participant or jointly in
the name of the Participant and his or her spouse as joint tenants with right of
survivorship or as community property.
(f) Unused Cash Balances. Any amount remaining in the Participant's Plan
Account that represents the Purchase Price for shares which could not be
purchased by reason of Subsection (c) above, Section 8 or Section 12(a) shall be
refunded to the Participant in cash, without interest. Any amount remaining in
the Participant's Plan Account that represents the Purchase Price for a
fractional share of Stock shall be carried over in the Participant's Plan
Account to the next Participation Period unless the Participant has withdrawn
from the Plan under Sections 5 or 6, in which event such amount shal be refunded
to the Participant in cash, without interest.
SECTION 8. LIMITATIONS ON STOCK OWNERSHIP.
(a) Five Percent Limit. Any other provision of the Plan notwithstanding,
no Participant shall be granted a right to purchase Stock under the Plan if such
Participant, immediately after his or her election to purchase such Stock, would
own stock possessing more than 5% of the total combined voting power or value of
all classes of stock of the Company or any parent or Subsidiary of the Company.
For purposes of this Subsection (a), ownership of stock shall be determined
after applying the attribution rules of section 424(d) of the Code, and each
Participant
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shall be considered to own any stock that he or she has a right or option to
purchase under this or any other plan.
(b) $25,000 Limit. Any other provision of the Plan notwithstanding, no
Participant shall be granted a right to purchase Stock under the Plan if such
Participant's rights to purchase stock under this and all other employee stock
purchase plans of the Company or any parent or Subsidiary of the Company would
accrue at a rate that exceeds $25,000 of the fair market value of such stock
(determined at the beginning of the applicable Participation Period) for each
calendar year for which such right is outstanding at any time. For purposes of
this Subsection (b), employee stock purchase plans not described in section 423
of the Code shall be disregarded, and each Participant shall be considered to
have the right to purchase not more than 2,000 shares of Stock under this Plan
with respect to each Participation Period. If a Participant is precluded by this
Subsection (b) from purchasing additional Stock under the Plan, then his or her
employee contributions shall automatically be discontinued for the balance of
the calendar year and resume at the beginning of the next calendar year (if he
or she then is an Eligible Employee).
SECTION 9. RIGHTS NOT TRANSFERABLE.
The rights of any Participant under the Plan, or any Participant's
interest in any Stock or moneys to which he or she may be entitled under the
Plan, shall not be transferable by voluntary or involuntary assignment or by
operation of law, or in any other manner other than by beneficiary designation
or the laws of descent and distribution. If a Participant in any manner attempts
to transfer, assign or otherwise encumber his or her rights or interest under
the Plan, other than by beneficiary designation or the laws of descent and
distribution, then such act shall be treated as an election by the Participant
to withdraw from the Plan under Section 5(a).
SECTION 10. NO RIGHTS AS AN EMPLOYEE.
Nothing in the Plan shall be construed to give any person the right to
remain in the employ of a Participating Company. Each Participating Company
reserves the right to terminate the employment of any person at any time, with
or without cause.
SECTION 11. NO RIGHTS AS A STOCKHOLDER.
A Participant shall have no rights as a stockholder with respect to any
shares that he or she has purchased, or may have a right to purchase, under the
Plan until the date of issuance of a stock certificate for such shares.
SECTION 12. STOCK OFFERED UNDER THE PLAN.
(a) Authorized Shares. The aggregate number of shares of Stock available
for purchase under the Plan shall be 2,400,000, subject to adjustment pursuant
to this Section 12.
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(b) Anti-Dilution Adjustments. The aggregate number of shares of Stock
offered under the Plan, the 2,000-share limitation described in Section 7(c) and
the price of shares that any Participant has elected to purchase shall be
adjusted proportionately by the Committee for any increase or decrease in the
number of outstanding shares of Stock resulting from a subdivision or
consolidation of shares, the payment of a stock dividend, any other increase or
decrease in such shares effected without receipt or payment of consideration by
the Company, or the distribution of the shares of a Subsidiary to the Company's
stockholders.
(c) Reorganizations. In the event of a dissolution or liquidation of the
Company, or a merger or consolidation to which the Company is a constituent
corporation, the Plan shall terminate unless the plan of merger, consolidation
or reorganization provides otherwise, and all amounts that have been withheld
but not yet applied to purchase Stock hereunder shall be refunded, without
interest. The Plan shall in no event be construed to restrict in any way the
Company's right to undertake a dissolution, liquidation, merger, consolidation
or other reorganization.
SECTION 13. AMENDMENT OR DISCONTINUANCE.
The Board of Directors shall have the right to amend, suspend or
terminate the Plan at any time and without notice. The Company's Vice President
- - Human Resources with the approval of the Senior Vice President - Legal and
External Affairs and Secretary, is authorized to make minor or administrative
changes to the Plan. Except as provided in Section 12, any increase in the
aggregate number of shares of Stock to be issued under the Plan shall be subject
to approval by a vote of the stockholders of the Company. In addition, any other
amendment of the Plan shall be subject to approval by a vote of the stockholders
of the Company to the extent required by an applicable law or regulation.
SECTION 14. DEFINITIONS.
(a) "Board of Directors" means the Board of Directors of the Company, as
constituted from time to time.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Committee" means a committee of the Board of Directors, consisting
of one or more directors appointed by the Board of Directors.
(d) "Company" means AirTouch Communications, Inc., a Delaware
corporation.
(e) "Compensation" means the regular compensation paid in cash to a
Participant by a Participating Company, plus amounts contributed by the
Participant to this Plan or to other employee benefit or deferred-compensation
plans (whether on a pre-tax or after-tax basis). Compensation shall include base
salaries and wages, team awards, commissions and wage
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replacement payments but shall exclude other bonuses, incentive compensation,
overtime pay, moving or relocation allowances, car allowances, imputed income
attributable to cars or life insurance, taxable fringe benefits and similar
items, all as determined by the Committee.
(f) "Eligible Employee" means either of the following:
(i) Any employee of a Participating Company who is eligible to
make contributions to the Retirement Plan; or
(ii) Any employee of a Participating Company who meets both of
the following requirements:
(A) His or her customary employment is for more than
five months per calendar year and for more than 20 hours per
week; and
(B) He or she has been an employee of a Participating
Company for not less than six consecutive months.
The foregoing notwithstanding, an individual shall not be considered an Eligible
Employee if his or her participation in the Plan is prohibited by the law of any
country which has jurisdiction over him or her.
(g) "Fair Market Value" means the market price of Stock, determined by
the Committee as follows:
(i) If the Stock was traded over-the-counter on the date in
question but was not classified as a national market issue, then the
Fair Market Value shall be equal to the mean between the last reported
representative bid and asked prices quoted by the Nasdaq system for such
date;
(ii) If the Stock was traded over-the-counter on the date in
question and was classified as a national market issue, then the Fair
Market Value shall be equal to the last-transaction price quoted by the
Nasdaq system for such date;
(iii) If the Stock was traded on a stock exchange on the date in
question, then the Fair Market Value shall be equal to the closing price
reported by the applicable composite transactions report for such date;
and
(iv) If none of the foregoing provisions is applicable, then the
Fair Market Value shall be determined by the Committee in good faith on
such basis as it deems appropriate.
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Whenever possible, the determination of Fair Market Value by the Committee shall
be based on the prices reported in the Western Edition of The Wall Street
Journal. Such determination shall be conclusive and binding on all persons.
(h) "Participant" means an Eligible Employee who elects to participate
in the Plan, as provided in Section 3(b).
(i) "Participating Company" means (i) the Company and (ii) each
Subsidiary designated from time to time by the Committee and listed on Schedule
A attached hereto. An entity that becomes a Subsidiary after adoption of the
Plan may be designated by the Committee as a Participating Company.
(j) "Participation Period" means a period during which contributions may
be made toward the purchase of Stock under the Plan, as determined pursuant to
Section 3(a).
(k) "Plan" means this AirTouch Communications, Inc. Employee Stock
Purchase Plan, as amended from time to time.
(l) "Plan Account" means the account established for each Participant
pursuant to Section 7(a).
(m) "Purchase Price" means the price at which Participants may purchase
Stock under the Plan, as determined pursuant to Section 7(b).
(n) "Retirement Plan" means the AirTouch Communications, Inc. Retirement
Plan, as amended from time to time.
(o) "Stock" means the Common Stock of the Company.
(p) "Subsidiary" means a corporation, 50% or more of the total combined
voting power of all classes of stock of which is owned by the Company or by
another Subsidiary.
SECTION 15. EXECUTION.
To record the amendment and restatement of the Plan by the Board of
Directors, the Company has caused its duly authorized officer to affix the
corporate name and seal hereto.
AIRTOUCH COMMUNICATIONS, INC.
By /s/ DWIGHT JASMANN
-------------------------
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SCHEDULE A
NAME OF PARTICIPATING COMPANY* EFFECTIVE DATE OF
PARTICIPATION
AirTouch Cellular July 1, 1994
AirTouch Communications July 1, 1994
AirTouch Communications, Inc. December 15, 1994
AirTouch International July 1, 1994
AirTouch Paging July 1, 1994
- ----------------------
* An individual employed by a Participating Company is not considered an
Eligible Employee if his or her participation in the Plan is prohibited by the
law of any country which has jurisdiction over him or her. The Company
determines to whom the preceding sentence applies.
Exhibit 4(g)
AIRTOUCH COMMUNICATIONS
RETIREMENT PLAN
(AMENDED AND RESTATED AS OF APRIL 1, 1994)
<PAGE>
AIRTOUCH COMMUNICATIONS
RETIREMENT PLAN
(AMENDED AND RESTATED AS OF APRIL 1, 1994)
TABLE OF CONTENTS
ARTICLE 1. Introduction....................................................1
1.1 Establishment of Plan...........................................1
1.2 Predecessor Plan................................................1
ARTICLE 2. Eligibility and Enrollment......................................3
2.1 Eligible Employees..............................................3
2.2 Service Requirements............................................3
2.3 Enrollment......................................................3
2.4 Rehired Participants............................................4
2.5 Eligible Employee Hired with Prior Service......................4
2.6 Suspension of Participation.....................................4
2.7 Termination of Participation....................................4
2.8 Limitation on Participation.....................................5
2.9 Disposition of Subsidiary or Division...........................5
2.10 Participation During Joint Venture Service......................6
ARTICLE 3. Basic Contributions.............................................7
3.1 Amount of Basic Contributions...................................7
3.2 Allocation of Basic Contributions...............................7
ARTICLE 4. Salary Deferrals and Employee Contributions.....................9
4.1 Amount of Salary Deferrals......................................9
4.2 Amount of Employee Contributions................................9
4.3 Election to Contribute..........................................9
4.4 Amendment of Prior Elections....................................9
4.5 Voluntary Suspension of Contributions..........................10
4.6 General Limitation on Elections................................10
4.7 Allocation and Investment of Contributions.....................10
ARTICLE 5. Matching Contributions.........................................11
5.1 Amount of Matching Contributions...............................11
5.2 Limitation on Salary Deferrals and Employee Contributions......11
5.3 Allocation of Matching Contributions...........................11
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PAGE
ARTICLE 6. Variable Contributions..........................................13
6.1 Amount of Variable Contributions................................13
6.2 Allocation of Variable Contributions............................13
ARTICLE 7. Transition Contributions........................................14
7.1 Amount of Transition Contributions..............................14
7.2 Investment of Transition Account................................14
ARTICLE 8. Rollover Contributions..........................................15
8.1 Requirements for Rollover Contributions.........................15
8.2 Crediting of Rollover Contributions.............................15
8.3 Participation...................................................15
ARTICLE 9. Merger Contributions...........................................16
9.1 Requirements for a Merger Contribution.........................16
9.2 Allocation of Merger Contributions.............................16
9.3 Forfeitures Attributable to Merger Accounts....................16
ARTICLE 10. Plan Investments...............................................17
10.1 The Trust Fund; No Reversion...................................17
10.2 The Company Stock Fund.........................................17
10.3 The Growth Fund................................................17
10.4 The Equity Fund................................................18
10.5 The Money Market Fund..........................................18
10.6 The Bond Fund..................................................18
10.7 The Balanced Fund..............................................19
10.8 The Interest Income Fund.......................................19
10.9 The Telesis Stock Fund.........................................19
10.10 Individual Accounts............................................20
10.11 Investment of Post-Spin Matching Contributions.................22
10.12 Investment Elections...........................................22
10.13 Change in Investment Elections.................................22
10.14 Reinvestment of Accounts.......................................22
10.15 Limitation on Elections........................................23
10.16 Establishment of New Fund and New Accounts as of Spin..........24
10.17 Transfer Elections For Spin Month..............................24
10.18 Valuation of Stock Funds Due to Spin...........................24
ARTICLE 11. Withdrawals....................................................25
11.1 Withdrawals From Employee Accounts and Rollover Accounts.......25
11.2 Withdrawals From Matching Accounts.............................25
11.3 Withdrawals From Salary Deferral Accounts......................25
11.4 Payment of Withdrawals.........................................26
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PAGE
ARTICLE 12. Vesting and Forfeitures........................................28
12.1 One Hundred Percent Vesting....................................28
12.2 Vesting Schedule...............................................29
12.3 Vesting After Prior Distributions..............................29
12.4 Application of Forfeitures.....................................29
12.5 Reinstatement of Forfeitures...................................30
12.6 Restoration of Contributions...................................31
12.7 Vesting for Joint Venture Employees............................31
ARTICLE 13. Amount and Distribution of Plan Benefits.......................32
13.1 Amount of Plan Benefits........................................32
13.2 Time of Distribution...........................................32
13.3 Earliest Time of Distribution..................................32
13.4 Latest Time of Distribution....................................33
13.5 Participation After Latest Distribution Date...................33
13.6 Form of Distribution...........................................33
13.7 Small Benefits.................................................33
13.8 Direct Rollover Payment Option.................................34
13.9 Death Benefit..................................................34
13.10 Certain Transferred Benefits...................................35
13.11 Certain Employment Terminations Disregarded....................35
ARTICLE 14. Claims Procedure...............................................36
14.1 Filing Claims for Benefits.....................................36
14.2 Denial of Claims...............................................36
ARTICLE 15. Review Procedure................................................37
15.1 Appointment of the Committee...................................37
15.2 Right to Appeal................................................37
15.3 Form of Request for Review.....................................37
15.4 Time for Committee Action......................................37
15.5 Committee Decisions............................................37
15.6 Rules and Procedures...........................................38
15.7 Exhaustion of Remedies Required................................38
ARTICLE 16. Management of Assets............................................39
16.1 Control and Management of Plan Assets..........................39
16.2 Investment Authority...........................................39
16.3 Independent Qualified Public Accountant........................39
16.4 Expenses.......................................................39
16.5 Benefit Payments...............................................40
16.6 Valuation......................................................40
16.7 Statements.....................................................40
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PAGE
ARTICLE 17. Administration of the Plan.....................................41
17.1 Plan Administration............................................41
17.2 Employment of Advisors.........................................41
17.3 Service in Several Fiduciary Capacities........................41
ARTICLE 18. Amendment and Termination......................................42
18.1 Right to Amend or Terminate....................................42
18.2 Effect of Termination..........................................42
18.3 Allocation of Assets Upon Termination..........................42
ARTICLE 19. General Provisions.............................................43
19.1 No Assignment of Property Rights...............................43
19.2 Incompetence...................................................43
19.3 Unclaimed Plan Benefits........................................43
19.4 No Employment Rights...........................................43
19.5 Beneficiary....................................................44
19.6 Merger, Consolidation and Transfer of Assets or Liabilities....44
19.7 Rules of Construction..........................................44
19.8 Voting of Stock................................................45
ARTICLE 20. Special Top-Heaviness Rules....................................46
20.1 Determination of Top-Heavy Status..............................46
20.2 Minimum Allocations............................................46
20.3 Minimum Vesting................................................46
20.4 Adjustment of Contribution Limitations.........................47
20.5 Special Definitions............................................47
ARTICLE 21. General Definitions............................................49
ARTICLE 22. Execution......................................................60
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APPENDIX I
LIMITATIONS ON CONTRIBUTIONS
PAGE
ARTICLE 1. Definitions....................................................61
ARTICLE 2. Deferral And Average Deferral Percentage Limitations...........67
2.1 Return of Excess Deferrals.....................................67
2.2 Average Deferral Percentage Limitation.........................67
2.3 Allocation of Excess Contributions to Highly Compensated
Employees......................................................68
2.4 Distribution of Excess Contributions...........................68
2.5 Corrective Qualified Nonelective Contributions.................68
2.6 Special Rules..................................................69
2.7 Prospective Limitations on Salary Deferrals....................70
ARTICLE 3. Average Contribution Percentage Limitations....................71
3.1 Average Contribution Percentage Limitation.....................71
3.2 Allocation of Excess Aggregate Contributions to Highly
Compensated Employees..........................................71
3.3 Distribution of Excess Aggregate Contributions.................72
3.4 Use of Salary Deferrals........................................72
3.5 Corrective QNECs...............................................72
3.6 Special Rules..................................................72
ARTICLE 4. Multiple-Use Limitations.......................................74
4.1 Applicability of the Multiple-Use Limitation...................74
4.2 Multiple-Use Limitation........................................74
4.3 Correction of Multiple-Use Limitation..........................75
ARTICLE 5. Allocation Limitations.........................................76
5.1 Limitation on Contributions....................................76
5.2 Effect on Future Contributions.................................76
5.3 Return of Prior Salary Deferrals and Employee Contributions....76
5.4 Combined Limitation on Benefits and Contributions..............77
5.5 Excess Company Contributions...................................77
v
<PAGE>
AIRTOUCH COMMUNICATIONS
RETIREMENT PLAN
(AMENDED AND RESTATED AS OF APRIL 1, 1994)
ARTICLE 1. Introduction
1.1 Establishment of Plan
Effective as of April 1, 1994, AirTouch Communications adopted the
AirTouch Communications Retirement Plan (the "Plan"). The Plan is amended and
restated, also as of April 1, 1994, to read as set forth herein. All the assets
and liabilities of the PacTel Corporation Retirement Plan, as sponsored by
Pacific Telesis Group, were transferred from that plan ("Predecessor Plan") to
this Plan as of the effective date of the Plan. The value of each Participant's
Accounts under this Plan as of the date of such transfer shall equal the value
of the Participant's accounts under the Predecessor Plan as of such date. Such
transfer shall constitute a transfer of sponsorship of the Plan from Pacific
Telesis Group to PacTel Corporation. The Plan is intended to qualify as a
profit-sharing plan under sections 401(a) and 401(k) of the Code.
1.2 Predecessor Plan
Effective as of January 1, 1987, the Predecessor Plan was adopted
by Pacific Telesis Group for the benefit of the Eligible Employees of PacTel
Corporation and other Participating Entities. The Predecessor Plan was intended
to qualify as a profit-sharing plan under sections 401(a) and 401(k) of the
Code.
Prior to January 1, 1987, certain Eligible Employees were
participants in the Pacific Telesis Group Supplemental Retirement and Savings
Plan for Salaried Employees and the Pacific Telesis Group Supplemental
Retirement and Savings Plan for Nonsalaried Employees, or the Communications
Industries, Inc. Savings and Incentive Plan. Effective as of January 1, 1987,
such Eligible Employees ceased active participation in such plans. The Eligible
Employees' accounts under the Pacific Telesis Group Supplemental Retirement and
Savings Plan for Salaried Employees and the Pacific Telesis Group Supplemental
Retirement and Savings Plan for Nonsalaried Employees remain in such plans and
will be distributed in accordance with the terms of such plans. Effective as of
April 1, 1987, the Communications Industries, Inc. Savings and Incentive Plan
was merged into the Predecessor Plan.
Prior to April 1, 1988, certain Eligible Employees were
participants in the Detroit Cellular Telephone Company 401(k) Profit Sharing
Plan. Effective as of April 1, 1988, such Eligible Employees ceased active
participation in such plan and became participants in the
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Predecessor Plan. Effective as of July 1, 1988, the Detroit Cellular Telephone
Company 401(k) Profit Sharing was merged into the Predecessor Plan.
Prior to March 1, 1989, certain Eligible Employees were
participants in the Premisys Savings and Retirement Plan. Effective as of March
1, 1989, such Eligible Employees ceased active participation in such plan and
became Participants in the Predecessor Plan. Effective as of April 1, 1989, the
Premisys Savings and Retirement Plan was merged into the Predecessor Plan.
Participants' accounts under the Premisys Savings and Retirement Plan shall be
immediately and fully vested under the Predecessor Plan, as under the Premisys
Savings and Retirement Plan.
Effective March 3, 1991, certain participants in the Predecessor
Plan who were employees of PacTel Business Systems became employees of PacTel
Meridian Systems, a corporation which is not a member of the Affiliated Group,
pursuant to an asset purchase agreement with Northern Telecom Inc. Plan
benefits, including any nonvested amounts, attributable to these participants
were transferred to a defined contribution plan maintained by Northern Telecom
Inc.
Effective April 1, 1994, the assets and liabilities of the
Predecessor Plan were transferred to this Plan pursuant to section 414(l) of the
Code. This Plan has plan provisions substantially similar to the provisions in
the Predecessor Plan.
Capitalized terms used throughout the text of the Plan are defined
in Article 21 in alphabetical order. Capitalized terms used only in Article 20
and Appendix I are defined therein.
2
<PAGE>
ARTICLE 2. Eligibility and Enrollment
2.1 Eligible Employees
The term "Eligible Employee" shall mean any Employee who is
employed by a Participating Entity, other than an Employee who is:
(a) A "leased employee" (within the meaning of section 414(n) of
the Code) with respect to the Participating Entity;
(b) Included in a unit of employees covered by a collective
bargaining agreement under which the Employee is not eligible to
participate in the Plan; or
(c) A nonresident alien with respect to the United States;
provided that this Subsection (c) shall not apply to an Employee whom the
Corporation has designated in writing as an Eligible Employee.
An individual's status as an Eligible Employee shall be determined
by the Corporation, and such determination shall be conclusive and binding on
all persons.
2.2 Service Requirements
An Eligible Employee shall not be entitled to commence
participation in the Plan until he or she has met the service requirement. The
service requirement is met after completion of a period of six consecutive
calendar months commencing on or after the date the Employee first completes one
Hour of Service, but only if the individual completes not less than 500 Hours of
Service during such period.
2.3 Enrollment
Participation in the Plan is automatic. Participants are permitted
but not required to make contributions to the Plan. Enrollment or reenrollment
in the Plan occurs only on Entry Dates (except as provided in Sections 2.4 and
2.6). An Eligible Employee shall become a Participant on the Entry Date which
occurs after the later of the date the Eligible Employee is employed by a
Participating Entity or the date the Eligible Employee meets the service
requirement under Section 2.2. Upon becoming a Participant, each Eligible
Employee shall designate a Beneficiary pursuant to Section 19.5, shall select
the Investment Fund or Funds for the investment of his or her Accounts pursuant
to Article 10 and may elect to make Salary Deferrals or Employee Contributions
pursuant to Article 4.
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2.4 Rehired Participants
If a Participant or former Participant is rehired by a
Participating Entity as an Eligible Employee, the Employee shall resume
participation in the Plan as of the date of reemployment.
2.5 Eligible Employee Hired with Prior Service
An Eligible Employee who meets the service requirement upon his or
her date of hire by a Participating Entity shall become a Participant on the
first Entry Date following the date of hire. An Eligible Employee may meet the
service requirement on the date of hire due to (a) prior service as an Employee,
but not as an Eligible Employee, (b) prior service with a Joint Venture Employer
if such service is included in the Employee's Hours of Service, or (c) prior
service with an employer subject to an Interchange Agreement if such service is
included in the Employee's Hours of Service.
2.6 Suspension of Participation
A Participant's participation in the Plan shall be suspended
during any period of time in which the Participant:
(a) Neither receives nor is entitled to receive any Compensation,
including, without limitation, any leave of absence without pay; or
(b) Does not qualify as an Eligible Employee but remains a
Participant, including, without limitation, the period following a
termination of employment or a transfer.
A Participant shall not make any Salary Deferrals or Employee
Contributions nor receive any allocation of Company Contributions or Forfeitures
with respect to a period of suspended participation. A suspended Participant's
Accounts shall remain invested as a part of the Trust Fund and shall continue to
share in the gains, income, losses and expenses of the Trust Fund. When a
Participant again becomes an Eligible Employee receiving Compensation, active
participation shall resume immediately.
2.7 Termination of Participation
A Participant's participation in the Plan shall terminate when his
or her entire Plan Benefit has been distributed or on the date of his or her
death, whichever occurs first. In the case of a Participant who is not entitled
to a Plan Benefit, participation in the Plan shall terminate when the
Participant ceases to be an Employee.
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2.8 Limitation on Participation
Any other provision of the Plan notwithstanding, a Participant who
is an "accrual participant" in the AirTouch Communications Employees Pension
Plan at any time during a Plan Year shall not be eligible to share in the
allocation of Basic Contributions under Article 3 and Variable Contributions
under Article 6 for that Plan Year or any subsequent Plan Year.
2.9 Disposition of Subsidiary or Division
In the event that the Corporation or any of the Participating
Entities enters into an agreement to sell its interest in a subsidiary or
division in a transaction described in section 409(d)(3) of the Code or to sell
substantially all of the assets used in the trade or business of a subsidiary or
division in a transaction described in section 409(d)(2) of the Code to an
unrelated third party ("Buyer"), the sales agreement entered into by the
Corporation or a Participating Entity and the Buyer ("Sales Agreement") may
specify that the Plan Benefits, if any, and continuing Plan participation, if
any, which will be available to Participants who leave the employment of such
subsidiary or division and who continue employment with the Buyer at such
subsidiary or division pursuant to the terms of the Sales Agreement ("Acquired
Employees"), will be determined pursuant to one of the following provisions:
(a) Suspended Accounts. If the Sales Agreement provides that Plan
Benefits of Acquired Employees are to be determined under this Section
2.9(a), the Acquired Employees shall be treated as suspended Participants
as provided under Section 2.6, and the Acquired Employees' accounts shall
be treated as set forth in Section 2.6 (hereinafter such an Account shall
be referred to as a "Suspended Account"). If an Acquired Employee has a
Suspended Account, there shall not be a distribution of a Plan Benefit to
the Acquired Employee solely as a result of his or her termination of
employment with a Participating Entity. An Acquired Employee with a
Suspended Account:
(i) Shall be able to make withdrawals under the provisions of
Article 11;
(ii) Shall be able to direct the reinvestment of his or her
Suspended Accounts under the provisions of Section 10.13;
(iii) Shall be credited with Hours of Service for any period
of employment with the Buyer at the acquired subsidiary
or division for vesting purposes, as if such period of
employment had been with a member of the Affiliated
Group;
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(iv) Shall not forfeit the nonvested portions of his or her
Accounts under the provisions of Section 12.4 before his
or her employment terminates with Buyer; and
(v) Shall be treated as having ceased to be an Employee on
the date he or she terminates employment with Buyer.
(b) Election Between Distribution and Suspended Account. If the
Sales Agreement provides that the Plan Benefits of Acquired Employees are
to be determined under Section 2.9(b), an Acquired Employee may elect to
(i) take a distribution in accordance with Article 13 by filing the
prescribed written form with the Corporation within the time limit
specified in the Sales Agreement or (ii) have his or her accounts treated
as Suspended Accounts under Section 2.9(a) above. If a distribution is
properly elected by an Acquired Employee, the distribution must be made
prior to the end of the second calendar year following the closing date
specified in the Sales Agreement. If a written election for a distribution
is not properly made within the time limit specified in the Sales
Agreement, the Acquired Employee shall be treated as having elected to
leave his or her Accounts in the Plan as Suspended Accounts, and his or
her Plan Benefit shall be determined under Section 2.9(a) above.
2.10 Participation During Joint Venture Service
In the event that a Participant terminates employment with an
Affiliated Group member and immediately (i.e., within 30 days) is hired by a
Joint Venture Employer, the Participant's Plan Benefit shall be subject to this
Section 2.10 unless the Participant's Plan Benefit is transferred to a qualified
plan maintained by the Joint Venture Employer, pursuant to section 414(1) of the
Code and Section 19.6 of the Plan.
If the Participant's Plan Benefit remains in the Plan, the
Participant shall continue to participate as a suspended Participant under
Section 2.6 of the Plan in the same manner as a suspended Participant who
continues to be employed by an Affiliated Group member. Such a Participant shall
continue to receive vesting credit based on employment with a Joint Venture
Employer in accordance with Section 12.7 of the Plan, to be eligible for
withdrawals under Section 11.4 of the Plan, and to be ineligible for a
distribution until the Participant terminates employment with the Joint Venture
Employer in accordance with Section 13.3 of the Plan.
A period of employment with a Joint Venture Employer which begins
or ends within 30 days of a period of employment with another Joint Venture
Employer shall be considered employment with a single Joint Venture Employer for
purposes of this Section.
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ARTICLE 3. Basic Contributions
3.1 Amount of Basic Contributions
For each calendar month, each Participating Entity shall make a
Basic Contribution to the Plan. The amount of each Participating Entity's
monthly Basic Contribution shall be equal to:
(a) The Participating Entity's Basic Rate multiplied by the
aggregate Compensation for such month attributable to all Participants
employed by the Participating Entity during the month, or, if the
Participating Entity's Basic Rate is less than 2%, the sum of (i) the
Participating Entity's Basic Rate multiplied by the aggregate Compensation
for such month attributable to all Participants other than Choice
Participants employed by the Participating Entity during the month and
(ii) 2% multiplied by the aggregate Compensation for such month
attributable to all Choice Participants employed by the Participating
Entity during the month; less
(b) The Allocable Forfeitures which arose on the last day of the
previous calendar month from Basic Accounts attributable to former
Employees of the Participating Entity.
For purposes of this Section, the "Basic Rate" means a rate from
0% to 6%, as determined by each Participating Entity for a Plan Year (or for the
balance of a Plan Year if a Participating Entity first becomes a Participating
Entity during a Plan Year). Such rate shall remain in effect until changed by
the Participating Entity to another permissible rate. A Participating Entity may
change its Basic Rate for the succeeding Plan Year only if such change is made
before the beginning of such year.
3.2 Allocation of Basic Contributions
A Basic Contribution for a calendar month shall be paid to the
Trustee not later than the last day of the following month. As soon as
reasonably practicable after a Participating Entity's Basic Contributions for
the calendar month have been paid to the Trustee, such contributions shall be
allocated among the eligible Participants employed by such Participating Entity
during such month. Allocable Forfeitures which were applied to reduce such
contributions shall be allocated along with such contributions. Subject to the
contribution limitations prescribed by Appendix I, an eligible Participant's
allocation for a calendar month shall constitute the same percentage of his or
her Compensation for such month as the allocation of each other eligible
Participant employed by the same Participating Entity for such month; provided,
however, that if the Participating Entity's Basic Rate is less than 2% and the
Participating Entity employs one or more Choice Participants, then any eligible
Choice Participant's allocation for a calendar month shall be 2% of his or her
Compensation for such month. A Participant shall be eligible for an allocation
for a calendar month only if the
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Participant had Compensation during such month. Each Participant's share of
Basic Contributions and Allocable Forfeitures attributable to Basic Accounts for
a calendar month shall be credited to his or her Basic Accounts as of the last
day of the calendar month.
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ARTICLE 4. Salary Deferrals and Employee Contributions
4.1 Amount of Salary Deferrals
A Participant who is not suspended may elect to contribute Salary
Deferrals to the Plan. Subject to the contribution limitations prescribed by
Appendix I, the amount of such Salary Deferrals for any period of participation
may be equal to any whole percentage of the Participant's Compensation for such
period but shall not exceed 16% of the Participant's Compensation for such
period. Salary Deferrals shall be made through periodic payroll deductions from
the Participant's Compensation. For federal tax purposes (and, wherever
permitted, for state and local tax purposes), Salary Deferrals shall be deemed
employer contributions to the Plan, and a Participant's election to make Salary
Deferrals shall constitute an election to have the Participant's taxable
compensation reduced by the amount of the Salary Deferrals.
4.2 Amount of Employee Contributions
A Participant who is not suspended may elect to make Employee
Contributions to the Plan. Subject to the contribution limitations prescribed by
Appendix I, the amount of such contributions for any period of participation may
be equal to any whole percentage of the Participant's Compensation for such
period but shall not exceed 16% of the Participant's Compensation for such
period reduced by (a) the Participant's Salary Deferrals for such period and (b)
any Voluntary Employee Contributions made by the Participant for such period
under any other qualified pension, profit-sharing or stock bonus plan maintained
by a member of the Affiliated Group. Employee Contributions under this Section
4.2 may be made by periodic payroll deductions or by a lump sum payment in cash
to the Plan once in each Plan Year, if such cash payment is at least $50.
4.3 Election to Contribute
A Participant who wishes to make Salary Deferrals pursuant to
Section 4.1 or Employee Contributions pursuant to Section 4.2 shall file with
the Participating Entity the form prescribed for this purpose. On such form, the
Participant shall specify the rate at which he or she wishes to contribute to
the Plan. An election to make Salary Deferrals or Employee Contributions shall
be effective as of the first day of any month, by filing the election form no
fewer than 15 days before such effective date.
4.4 Amendment of Prior Elections
By filing the prescribed form with the Participating Entity, a
Participant who is making Salary Deferrals or Employee Contributions may change
the rate of such contributions to any other amount permitted under Sections 4.1
and 4.2. An election to change the rate of Salary
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Deferrals or Employee Contributions shall be effective as of the first day of
any month by filing the election form no fewer than 15 days before such
effective date. An election to make Salary Deferrals shall be converted
automatically to an election to suspend Salary Deferrals when the Participant's
Salary Deferrals for a Plan Year reach the $7,000 limitation under Section 2.1
of Appendix I for such year. A Participant may elect to change the rate of
Employee Contributions as of the date the $7,000 limitation is reached without
having such election count as one of the two permissible elections permissible
under Section 4.6.
4.5 Voluntary Suspension of Contributions
By filing the prescribed form with the Participating Entity, a
Participant may elect to suspend all Salary Deferrals or Employee Contributions.
An election to suspend Salary Deferrals or Employee Contributions shall be
effective as of the first day in any month, by filing the election form no fewer
than 15 days before such effective date. A Participant who has suspended all
Salary Deferrals or Employee Contributions may elect to resume Salary Deferrals
or Employee Contributions by following the procedure prescribed by Section 4.3.
(If the Participant had already made an election under Sections 4.3 or 4.4 in
the Plan Year in which contributions were suspended, then an election to resume
contributions cannot take effect prior to the first day of the next following
Plan Year because of the limitation of Section 4.6.)
4.6 General Limitation on Elections
Any other provision of the Plan notwithstanding, a Participant
shall not make more than two elections under Sections 4.3, 4.4 and 4.5 in any
single Plan Year, except that a Participant who has already made two such
elections may nevertheless elect to suspend all Salary Deferrals or Employee
Contributions under Section 4.5.
4.7 Allocation and Investment of Contributions
All Salary Deferrals and Employee Contributions shall be
transferred to the Trustee for investment in the Trust Fund, as provided in
Article 10, as of the earliest date on which such contributions can reasonably
be segregated from the employer's general assets. A Participant's Salary
Deferrals, and Employee Contributions for a calendar month shall be credited to
the Participant's Salary Deferral Accounts and Employee Accounts, respectively,
as of the first day of the following calendar month.
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ARTICLE 5. Matching Contributions
5.1 Amount of Matching Contributions
For each calendar month beginning on or after the effective date
of Spin, each Participating Entity shall make a Matching Contribution to the
Plan. The amount of a Participating Entity's Matching Contribution for a
calendar month shall be equal to:
(a) The Participating Entity's Matching Rate multiplied by the
aggregate of the Salary Deferrals and Employee Contributions (as limited
by Section 5.3) made for such month by all eligible Participants employed
by the Participating Entity during such month; less
(b) The Allocable Forfeitures which arose on the first day of the
calendar month from Matching Accounts attributable to former Employees of
the Participating Entity.
For purposes of this Section 5.1, the "Matching Rate" means a
percentage from 0% to 100%, as determined by each Participating Entity for a
Plan Year or for the balance of a Plan Year if a Participating Entity first
becomes a Participating Entity during a Plan Year. A Participating Entity's
Matching Rate shall remain in effect until changed by the Participating Entity
to another permissible rate. A Participating Entity may change its Matching Rate
for a Plan Year only if such change is made before the beginning of such year.
5.2 Limitation on Salary Deferrals and Employee Contributions
To the extent provided by this Article 5, monthly Salary Deferrals
and Employee Contributions on behalf of each Participant in excess of 6% of his
or her Compensation for such month shall be disregarded.
5.3 Allocation of Matching Contributions
A Matching Contribution for a calendar month shall be paid to the
Trustee not later than the last day of the following month. As soon as
reasonably practicable after a Participating Entity's Matching Contributions for
the month have been paid to the Trustee, such contributions shall be allocated
among the eligible Participants employed by such Participating Entity during
such month. Any Allocable Forfeitures which were applied to reduce such
contributions shall be allocated along with such contributions. Subject to the
contribution limitations prescribed by Appendix I, an eligible Participant's
allocation for a calendar month shall constitute the same percentage of his or
her Salary Deferrals and Employee Contributions (as limited by Section 5.2) for
such month as the allocation of each other eligible Participant employed by the
same Participating Entity for such month. A Participant who made a withdrawal
under Section 11.1 or 11.2 shall not be eligible for an allocation under this
Section 5.3 until the expiration of the
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six-month period following the month in which the withdrawal was made. Each
Participant's share of Matching Contributions and Allocable Forfeitures
attributable to Matching Accounts for a calendar month shall be credited to his
or her Matching Accounts as of the last day of the calendar month.
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ARTICLE 6. Variable Contributions
6.1 Amount of Variable Contributions
For each Plan Year, a Participating Entity may (but need not) make
one or more Variable Contributions to the Plan. The amount of any Variable
Contribution shall be determined by the Compensation and Personnel Committee, a
committee established by the Board of Directors of the Corporation, in its sole
discretion; provided, however, that all Variable Contributions, together with
other Company Contributions, shall not exceed the maximum amount which is
deductible for federal income tax purposes.
6.2 Allocation of Variable Contributions
Any Variable Contribution for a Plan Year shall be paid to the
Trustee not later than the March 15 of the next following Plan Year. As soon as
reasonably practicable after a Participating Entity's Variable Contributions for
a Plan Year have been paid to the Trustee, such contributions shall be allocated
among the eligible Participants employed by such Participating Entity during the
Plan Year. Subject to the contribution limitations prescribed by Appendix I, an
eligible Participant's allocation of a Participating Entity's Variable
Contribution for a Plan Year shall constitute the same percentage of his or her
Compensation paid by the Participating Entity for such year as the allocation of
Variable Contributions to each other eligible Participant employed by the same
Participating Entity for such year. Allocable Forfeitures which arose during the
Plan Year from Variable Accounts attributable to former Employees of all of the
Participating Entities shall be allocated to all of the eligible Participants.
Subject to the limitations of Appendix I, an eligible Participant's allocation
of Allocable Forfeitures from Variable Accounts for a Plan Year shall constitute
the same percentage of his or her Compensation for such year as the allocation
of each other eligible Participant employed by all of the Participating Entities
electing to make Variable Contributions for such year.
A Participant shall be eligible for an allocation of Variable
Contributions and an allocation of Allocable Forfeitures attributable to
Variable Accounts under this Section for a Plan Year only if:
(a) The Participant received Compensation from a Participating
Entity which elected to make Variable Contributions for such Plan Year;
and
(b) The Participant either (i) was an Employee on the last day of
such year, or (ii) died, attained Retirement Status or incurred a
Disability during such year.
Each Participant's share of Variable Contributions and Allocable
Forfeitures attributable to Variable Accounts shall be credited to his or her
Variable Accounts as of the last day of the Plan Year for which the allocation
was made.
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ARTICLE 7. Transition Contributions
7.1 Amount of Transition Contributions
This Article 7 applies only to Transition Credits made under the
Predecessor Plan. Transition Credit contributions ceased under the Predecessor
Plan for years after 1990.
7.2 Investment of Transition Account
The Participant's Transition Account was invested in the same
manner as the Participant's other Company Contributions and shall receive
allocations of trust income or loss on each Valuation Date in the same manner as
the Participant's other Accounts.
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ARTICLE 8. Rollover Contributions
8.1 Requirements for Rollover Contributions
An Eligible Employee, whether or not a Participant, may make one
or more Rollover Contributions to the Plan. In addition, a suspended Participant
who is no longer an Eligible Employee may make one or more Rollover
Contributions to the Plan from either (i) a plan maintained by the Pacific
Telesis Group if such contribution is made within one year following the
effective date of Spin or (ii) the AirTouch Communications Employees Pension
Plan if such contribution is made within one year following the date the
Participant first becomes eligible for a distribution from such plan. A Rollover
Contribution shall be permitted only if it meets both of the following
conditions:
(a) The contribution must be made entirely in the form of U.S.
dollars; and
(b) The Participant or Eligible Employee must demonstrate to the
Corporation's satisfaction that the contribution qualifies as (i) an
eligible rollover distribution under section 402(c) of the Code, relating
to distributions from plans qualified under section 401(a) of the Code, or
(ii) a rollover contribution under section 408(d)(3)(A)(ii) of the Code,
relating to distributions from individual retirement accounts consisting
solely of rollovers from qualified plans.
8.2 Crediting of Rollover Contributions
A Rollover Contribution shall be paid to the Participating Entity
in a lump sum. A Participant or Eligible Employee making a Rollover Contribution
shall make an initial investment election under Section 10.12, which shall be
applicable solely to such contribution. Each approved Rollover Contribution
shall be transferred to the Trustee as soon as reasonably practicable after it
is paid to the Participating Entity. The Rollover Contribution shall be credited
to Rollover Accounts established for this purpose.
8.3 Participation
Before becoming a Participant under Article 2, an Eligible
Employee who made a Rollover Contribution shall be considered a Participant
solely with respect to his or her Rollover Accounts.
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ARTICLE 9. Merger Contributions
9.1 Requirements for a Merger Contribution
If a qualified defined contribution plan (other than a
defined-contribution plan subject to section 412 of the Code) is merged into the
Plan pursuant to Section 19.6, then the Participant's entire account balance in
such other plan shall be transferred to this Plan as a Merger Contribution and
shall be credited to his or her Accounts, as provided in Section 9.2, as soon as
practicable after the date of transfer. This Article 9 shall not apply to the
transfer of assets and liabilities from the Predecessor Plan to this Plan on
account of Spin.
9.2 Allocation of Merger Contributions
The portion of the Merger Contribution consisting of after-tax
employee contributions and earnings thereon shall be credited to the
Participant's Employee Account. The portion of the Merger Contribution
consisting of before-tax employee contributions under section 401(k) of the Code
shall be credited to the Participant's Salary Deferral Account. The portion of
the Merger Contribution consisting of rollover contributions within the meaning
of Article 8 and earnings thereon shall be credited to his or her Rollover
Account. The remaining portion of the Merger Contributions shall be credited to
one or more Merger Accounts, depending upon the type of employer accounts under
the transferor plan.
A Merger Account shall vest in accordance with Section 12.2 of the
Plan; provided, however, that a Participant's vested interest in such Merger
Account shall not be less than the Participant's vested interest in his or her
corresponding account under the transferor plan as of the date of transfer. In
all other respects, the provisions of the Plan shall apply to the Merger Account
as though the Merger Account were a Company Account.
9.3 Forfeitures Attributable to Merger Accounts
Any Forfeitures arising from Merger Accounts applicable to former
Employees of a Participating Entity shall be added to the Allocable Forfeitures
applicable to one or more of the Basic Accounts, Matching Accounts and
Transition Accounts of such former Employees, as such Participating Entity shall
determine, and such Forfeitures shall reduce such Participating Entity's
required Company Contributions.
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ARTICLE 10. Plan Investments
10.1 The Trust Fund; No Reversion
The Trust Fund shall be comprised of the Investment Funds
described in this Article 10. Except as provided in Subsections (a) and (b)
below, the assets of the Plan shall never inure to the benefit of any
Participating Entity and shall be held for the exclusive purpose of providing
benefits to Participants or their Beneficiaries and of defraying the reasonable
expenses of administering the Plan.
(a) In the case of a Company Contribution which was made by virtue
of a mistake of fact, this Section 10.1 shall not prohibit the return of
such contribution to the appropriate Participating Entity within 12 months
after the payment of such contribution.
(b) All Company Contributions are conditioned upon the
deductibility thereof under section 404 of the Code. To the extent that a
deduction is disallowed for a Company Contribution, this Section 10.1
shall not prohibit the return of such contribution (to the extent
disallowed) to the appropriate Participating Entity within 12 months after
the disallowance of the deduction.
10.2 The Company Stock Fund
The Company Stock Fund shall be invested primarily in shares of
Stock. The Company Stock Fund shall consist of all Stock held by the Trustee and
all cash held by the Trustee which is derived from dividends (if any), Company
Contributions, Salary Deferrals, Employee Contributions, Rollover Contributions,
Merger Contributions and Forfeitures to be invested in the Company Stock Fund
and proceeds from the sale or redemption of Stock. Such cash shall be used to
purchase shares of Stock in the open market or by private purchases, including
without limitation purchases from the Corporation, at a price not to exceed
their fair market value on the date of purchase. The foregoing notwithstanding,
if the Corporation and the Trustee have entered into a direct stock purchase
agreement, shares of Stock shall be purchased in accordance with such agreement.
Each Account invested in the Company Stock Fund shall be maintained on a dollar
value basis, and such Account shall reflect the dollar values allocated to such
Account as of each Valuation Date.
10.3 The Growth Fund
The Growth Fund shall be invested in those equity securities, debt
securities or other investments of any kind which have potential for
above-average, long-term capital appreciation rather than current dividend
income, including (without limitation) stock of smaller companies in emerging
growth industries or in early stages of their product or market cycles. The
Growth Fund shall consist of all Growth Fund investments held by the
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Trustee and all cash held by the Trustee which is derived from dividends,
interest, rents or other income from Growth Fund investments, Company
Contributions, Salary Deferrals, Employee Contributions, Rollover Contributions,
Merger Contributions and Forfeitures to be invested in the Growth Fund and
proceeds from the sale or redemption of Growth Fund investments. Pending
investment in Growth Fund investments, such cash may be invested in short-term
obligations, in the sole discretion of the Trustee, subject to any investment
guidelines adopted by the Corporation. Each Account invested in the Growth Fund
shall be maintained on a dollar value basis, and such Account shall reflect the
dollar values allocated to such Account as of each Valuation Date.
10.4 The Equity Fund
The Equity Fund shall be invested primarily in those equity
securities which are the same as, or comparable to, securities included in the
Standard & Poor's 500 stock index. The Equity Fund shall consist of all Equity
Fund investments held by the Trustee and all cash held by the Trustee which is
derived from dividend or other income from Equity Fund investments, Company
Contributions, Salary Deferrals, Employee Contributions, Rollover Contributions,
Merger Contributions and Forfeitures to be invested in the Equity Fund and
proceeds from the sale or redemption of Equity Fund investments. Pending
investment in the Equity Fund Investments, such cash may be invested in
short-term obligations, in the sole discretion of the Trustee, subject to any
investment guidelines adopted by the Corporation. Each Account invested in the
Equity Fund shall be maintained on a dollar value basis, and such Account shall
reflect the dollar values allocated to such Account as of each Valuation Date.
10.5 The Money Market Fund
The Money Market Fund shall be invested primarily in short-term
debts of the U.S. Government, U.S. government agencies, and corporations. The
Money Market Fund shall consist of all Money Market Fund investments held by the
Trustee and all cash held by the Trustee which is derived from Company
Contributions, Salary Deferrals, Employee Contributions, Rollover Contributions,
Merger Contributions and Forfeitures to be invested in the Money Market Fund.
Pending investment in Money Market Instruments, such cash may be invested in
short-term obligations, in the sole discretion of the Trustee, subject to any
investment guidelines adopted by the Corporation. Each Account invested in the
Money Market Fund shall be maintained on a dollar value basis, and such Account
shall reflect the dollar values allocated to such Account as of each Valuation
Date.
10.6 The Bond Fund
The Bond Fund shall be invested in obligations of the U.S.
government, governmental obligations and corporations which are of a long term
nature. The Bond Fund shall consist of all Bond Fund investments held by the
Trustee and all cash held by the Trustee which is derived from Company
contributions, Salary Deferrals, Employee Contributions,
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Rollover Contributions, Merger Contributions and Forfeitures to be invested in
the Bond Fund. Pending investment in the group trust, such cash may be invested
in short-term obligations, in the sole discretion of the Trustee, subject to any
investment guidelines adopted by the Corporation. Each Account invested in the
Bond Fund shall be maintained on a dollar value basis, and such Account shall
reflect the dollar values allocated to such Account as of each Valuation Date.
10.7 The Balanced Fund
The Balanced Fund shall be invested primarily in a combination of
stock, bonds and money market instruments. The Balanced Fund shall consist of
all Balanced Fund investments held by the trustee and all cash held by the
Trustee which is derived from Company Contributions, Salary Deferrals, Employee
Contributions, Rollover Contributions, Merger Contributions and Forfeitures to
be invested in the Bond Fund. Pending investment in Balanced Fund Investments,
such cash may be invested in short-term obligations, in the sole discretion of
the Trustee, subject to any investment guidelines adopted by the Corporation.
Each Account invested in the Balanced Fund shall be maintained on a dollar value
basis, and such Account shall reflect the dollar values allocated to such
Account as of each Valuation Date.
10.8 The Interest Income Fund
The Interest Income Fund shall be invested and reinvested in (a)
investment contracts, purchased from insurance companies or other financial
institutions, which provide for a specified rate of return during a specified
term with respect to all deposits received in a particular period and (b) on and
after January 1, 1995, in debts and obligations of the U.S. government, U.S.
government agencies, other governments and agencies and corporations. The Income
Interest Fund shall consist of all Income Interest Fund investments held by the
Trustee and all cash held by the Trustee which is derived from Company
Contributions, Salary Deferrals, Employee Contributions, Rollover Contributions,
Merger Contributions and Forfeitures to be invested in the Income Interest Fund
and proceeds from the redemption or maturity of Income Interest Fund
investments. Such cash shall be invested as provided in this Section 10.8. Each
Account invested in the Income Interest Fund shall be maintained on a dollar
value basis, and such Account shall reflect the dollar values allocated to such
Account as of each Valuation Date.
10.9 The Telesis Stock Fund
The Telesis Stock Fund shall be invested primarily in the common
stock of Pacific Telesis Group acquired by the Predecessor Plan before Spin. The
Telesis Stock Fund shall consist of all the common stock of Pacific Telesis
Group held by the Trustee at Spin which was derived from dividends, Company
Contributions, Salary Deferrals, Employee Contributions, Rollover Contributions,
Merger Contributions and Forfeitures. Effective as of April 1, 1994 and the
first day of each month thereafter, no further contributions or transfers from
other Investment
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Funds shall be made to the Telesis Stock Fund. Any dividends received by the
Telesis Stock Fund and otherwise allocable to the Participants' Telesis Stock
Fund Accounts shall be transferred to the Participants' corresponding Company
Stock Accounts. Each Account invested in the Telesis Stock Fund shall be
maintained on a dollar value basis, and such Account shall reflect the dollar
values allocated to such Account as of each Valuation Date.
10.10 Individual Accounts
To the extent required by the terms of the Plan or by a
Participant's elections under the Plan, the following accounts shall be
maintained for a Participant:
(a) "Company Stock Basic Account";
(b) "Company Stock Pre-Spin Matching Account";
(c) "Company Stock Post-Spin Matching Account";
(d) "Company Stock Variable Account";
(e) "Company Stock Transition Account";
(f) "Company Stock Salary Deferral Account";
(g) "Company Stock Employee Account";
(h) "Company Stock Rollover Account";
(i) "Company Stock QNEC Account;
(j) "Company Stock Merger Account;
(k) "Growth Basic Account";
(l) "Growth Pre-Spin Matching Account";
(m) "Growth Variable Account";
(n) "Growth Transition Account";
(o) "Growth Salary Deferral Account";
(p) "Growth Employee Account";
(q) "Growth Rollover Account";
(r) "Growth QNEC Account";
(s) "Growth Merger Account";
(t) "Equity Basic Account";
(u) "Equity Pre-Spin Matching Account";
(v) "Equity Variable Account";
(w) "Equity Transition Account";
(x) "Equity Salary Deferral Account";
(y) "Equity Employee Account";
(x) "Equity Rollover Account";
(aa) "Equity QNEC Account";
(bb) "Equity Merger Account"
(cc) "Money Market Basic Account";
(dd) "Money Market Pre-Spin Matching Account";
(ee) "Money Market Variable Account";
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(ff) "Money Market Transition Account";
(gg) "Money Market Salary Deferral Account";
(hh) "Money Market Employee Account";
(ii) "Money Market Rollover Account";
(jj) "Money Market QNEC Account";
(kk) "Money Market Merger Account";
(ll) "Bond Basic Account";
(mm) "Bond Pre-Spin Matching Account";
(nn) "Bond Variable Account";
(oo) "Bond Transition Account";
(pp) "Bond Salary Deferral Account";
(qq) "Bond Employee Account";
(rr) "Bond Rollover Account";
(ss) "Bond QNEC Account";
(tt) "Bond Merger Account";
(uu) "Balanced Basic Account";
(vv) "Balanced Pre-Spin Matching Account";
(ww) "Balanced Variable Account";
(xx) "Balanced Transition Account";
(yy) "Balanced Salary Deferral Account";
(zz) "Balanced Employee Account";
(aaa) "Balanced Rollover Account";
(bbb) "Balanced QNEC Account";
(ccc) "Balanced Merger Account";
(ddd) "Interest Income Basic Account";
(eee) "Interest Income Pre-Spin Matching Account";
(fff) "Interest Income Variable Account";
(ggg) "Interest Income Transition Account";
(hhh) "Interest Income Salary Deferral Account";
(iii) "Interest Income Employee Account";
(jjj) "Interest Income Rollover Account";
(kkk) "Interest Income QNEC Account"; and
(lll) "Interest Income Merger Account"
(mmm) "Telesis Stock Basic Account"
(nnn) "Telesis Stock Pre-Spin Matching Account"
(ooo) "Telesis Stock Variable Account";
(ppp) "Telesis Stock Transition Account";
(qqq) "Telesis Stock Salary Deferral Account";
(rrr) "Telesis Stock Employee Account";
(sss) "Telesis Stock Rollover Account";
(ttt) "Telesis Stock QNEC Account"; and
(uuu) "Telesis Stock Merger Account"
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10.11 Investment of Post-Spin Matching Contributions
Matching Contributions for each calendar month commencing on and
after April 1, 1994 shall be allocated to the Company Stock Post-Spin Matching
Account. Such Account shall be invested solely in the Company Stock Fund.
10.12 Investment Elections
Each Participant's share of new Company Contributions (other than
Matching Contributions attributable to calendar months beginning on or after
April 1, 1994) and Allocable Forfeitures, and his or her new Salary Deferrals
and Employee Contributions, shall be invested in one or more of the Investment
Funds, other than the Telesis Stock Fund and, prior to January 1, 1995, the
Interest Income Fund. The Participant shall select the percentage of the
combined contributions which is to be invested in each Investment Fund;
provided, however, that the percentage which may be directed to any single
Investment Fund shall be a multiple of 10%. Each Participant shall make an
investment election by filing the prescribed form with the Participating Entity
before participation commences. A Participant may make a separate investment
election (within the limits prescribed by this Section 10.12), applicable solely
to a Rollover Contribution or a Merger Contribution, by filing the prescribed
form with the Participating Entity on or before the date when such contribution
is transferred to the Plan. If a Participant fails to direct the manner in which
Rollover Contributions, Salary Deferrals, Employee Contributions, Company
Contributions and Allocable Forfeitures are to be invested, then he or she shall
be deemed to have elected to have all such amounts invested entirely in the
Money Market Fund. Each Participant's share of QNECs shall be invested in the
same Investment Funds and in the same proportion as set forth in the
Participant's investment directions in effect as of the effective date of the
allocation.
10.13 Change in Investment Elections
Effective as of the first day of any month, a Participant who is an
Employee may change his or her investment directions with respect to Salary
Deferrals, Employee Contributions, Company Contributions (other than Matching
Contributions attributable to calendar months beginning on or after Spin) and
Forfeitures to be credited thereafter. Any such change shall be made by filing a
notice on the prescribed form with the Participating Entity at least 15 days
before the effective date of the change.
10.14 Reinvestment of Accounts
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Effective as of the first day of any month, a Participant may direct
that his or her Accounts (other than the Company Stock Post-Spin Matching
Account) be reallocated among the Investment Funds. The Participant may transfer
a percentage (from 10% to 100%, in multiples of 10%) of the combined value of
all such Accounts invested in any Investment Fund to like Accounts invested in
one or more of the other Investment Funds, subject to all of the following
conditions:
(a) The amount transferred from an Investment Fund shall be
transferred to other Investment Funds in multiples of 10%;
(b) No amount may be transferred to an Investment Fund if at the
same time an amount was transferred from such Fund;
(c) No amount may be transferred from the Interest Income Fund
described in Section 10.8 to the Money Market Fund, the Bond Fund, or the
Company Stock Fund;
(d) No amount may be transferred to the Telesis Stock Fund or, prior
to January 1, 1995, to the Interest Income Fund.
(e) No amount attributable to the Company Stock Post-Spin Matching
Account may be transferred out of the Company Stock Fund.
The value of a Participant's interest in an Investment Fund shall be determined
as of the Valuation Date immediately preceding the effective date of the
transfer. Any transfer shall be made by filing a notice on the prescribed form
with the Participating Entity at least 15 days before the effective date of the
transfer.
10.15 Limitation on Elections
The effective date of any election under Section 10.12, 10.13, or
10.14 shall occur at least three months after the effective date of the last
election under any such section. However, for purposes of this limitation, the
following rules shall apply.
(a) If an election under Section 10.13 and an election under Section
10.14 are effective on the same date, such elections shall be treated as a
single election.
(b) A deemed election under Section 10.12 for failure to make an
election shall be treated as an election subject to this limitation.
(c) A special election under Section 10.12 for a Rollover
Contribution shall be permitted regardless of the limitation under this
Section 10.15.
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(d) An election to transfer amounts from the Company Stock Fund to
any other permissible fund shall be permitted on a monthly basis, without
regard to the three month rule limit under this Section 10.15.
(e) An election made under the Predecessor Plan shall be deemed made
under this Plan.
10.16 Establishment of New Fund and New Accounts as of Spin
Effective as of March 31, 1994, the AirTouch Stock Fund was
established as a new Investment Fund under the Predecessor Plan. Effective as of
April 1, 1994 all of the Investment Funds held in the Predecessor Plan were
transferred to this Plan. The AirTouch Stock Fund under the Predecessor Plan
shall be renamed the Company Stock Fund and the Company Stock Fund under the
Predecessor Plan shall be renamed the Telesis Stock Fund. All other Investment
Funds shall have the same names under this Plan as they had under the
Predecessor Plan.
Effective as of April 1, 1994, the value of each Account (before
transfers or distributions effective as of such date) attributable to each
Participant shall equal the value under the Predecessor Plan as of March 31,
1994.
10.17 Transfer Elections For Spin Month
To the extent permitted by Section 10.14 and 10.15, a Participant
may transfer amounts among Investment Funds effective as of April 1, 1994. If
any amount is directed into or out of the Company Stock Fund, the election shall
be deemed to apply only to the Company Stock Fund in effect as of April 1, 1994,
consisting of cash and the common stock of AirTouch Communications.
In addition to the regular transfers permitted under Sections 10.14
and 10.15, a Participant may make a special election effective as of April 1,
1994, regardless of when the Participant's last election was made. The
Participant may elect to transfer amounts to or from the Company Stock Fund and
from the Telesis Stock Fund. To the extent necessary to satisfy these elections,
a Participant may transfer amounts to and from other Investment Funds, as
permitted by Section 10.14.
An election under this Section 10.17 shall not be effective unless
it is made in writing on a special election form and filed with the
administrator in accordance with the instructions set forth in the employee
communications package relating to Spin.
10.18 Valuation of Stock Funds Due to Spin.
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For the purpose of valuing the Company Stock Fund and the Telesis
Stock Fund as of April 30, 1994, the values of a share of Stock and a share
common stock of Pacific Telesis Group may be valued based on the average of
closing prices for a number of trading days between April 15, 1994 and May 15,
1994 deemed appropriate by the Trustee to average the fluctuations in value due
to Spin. Thereafter, the Company Stock Fund and the Telesis Stock Fund shall be
valued in the manner provided in Section 16.6.
ARTICLE 11. Withdrawals
11.1 Withdrawals From Employee Accounts and Rollover Accounts
A Participant who has Employee Accounts or Rollover Accounts may
withdraw from such Accounts any amount which does not exceed the value of such
Accounts (subject to Section 11.4). A Participant who wishes to make a
withdrawal under this Section 11.1 shall file an election with the Participating
Entity on the prescribed form. A Participant shall not be permitted to make more
than two withdrawals under this Section 11.1 and under Section 11.2 in any
period of 12 consecutive months. A Participant shall not be eligible to receive
an allocation of Matching Contributions for the six calendar months following
the month in which a withdrawal under this Section 11.1 is made.
11.2 Withdrawals From Matching Accounts
If a Participant's Matching Accounts are 100% vested, the
Participant may withdraw from his or her Matching Accounts any amount which does
not exceed the value of such Accounts (subject to Section 11.4). A Participant
who wishes to make a withdrawal under this Section 11.2 shall file an election
with the Participating Entity on the prescribed form. A Participant shall not be
permitted to make more than two withdrawals under this Section 11.2 and under
Section 11.1 in any period of 12 consecutive months. A Participant shall not be
eligible to receive an allocation of Matching Contributions for the six calendar
months following the month in which a withdrawal under this Section 11.2 is
made.
11.3 Withdrawals From Salary Deferral Accounts
A Participant who has attained age 59-1/2 or who suffers a hardship
may withdraw from his or her Salary Deferral Accounts any amount which does not
exceed the lesser of the aggregate amount of his or her Salary Deferrals or the
value of such Accounts (subject to Section 11.4). A Participant who makes a
hardship withdrawal before reaching the age of 59-1/2 shall not be eligible to
receive an allocation of Matching Contributions for the six calendar months
following the month in which such a withdrawal under this Section 11.3 is made.
A Participant who has not attained age 59-1/2 and who wishes to make a hardship
withdrawal shall file a request with the Corporation on the prescribed form, and
such request shall specify the reason or reasons why such withdrawal is
required. The Corporation shall authorize a hardship withdrawal only if the
Participant has demonstrated that an immediate and heavy financial need exists,
has
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demonstrated that the withdrawal is necessary to satisfy such need and has
withdrawn the entire amount available under Section 11.1 and 11.2.
An immediate and heavy financial need exists only if the need arises
within 120 days of the date that the Participant files a withdrawal request form
and only if the need arises from one or more of the following reasons:
(a) Medical expenses (as defined in section 213(d) of the Code)
which were incurred by the Participant, the Participant's spouse or any
dependent (as defined in section 152 of the Code);
(b) The purchase (excluding mortgage payments) of a principal
residence of the Participant;
(c) The cost of tuition of a post-secondary education for the
Participant, the Participant's spouse, children or dependents (as defined in
section 152 of the Code);
(d) The need to prevent the eviction of the Participant from the
Participant's principal residence or the foreclosure on the mortgage of the
Participant's principal residence; or
(e) The income taxes and penalty taxes payable to a state or federal
government on account of a hardship withdrawal payable from this Plan, but
in no event shall such amount exceed the amount of the hardship under
(a)-(d) above.
The Corporation, at its sole discretion, may require documentation of the
immediate and heavy financial need and the amount of such need.
A withdrawal is necessary to satisfy the financial need only if the
need cannot be relieved by one or more of the following resources: (i) through
reimbursement or compensation from insurance or otherwise, (ii) by reasonable
liquidation of the Participant's assets (to the extent that such liquidation
would not itself cause an immediate and heavy financial need), (iii) by
cessation of Salary Deferrals and Employee Contributions to this Plan, or by
other distributions or loans from any plan maintained by the Affiliated Group or
any other employer,
or
(iv) by borrowing from commercial sources on reasonable commercial terms. A
Participant's resources shall include the assets of the Participant's spouse and
minor children that are reasonably available to the Participant. The Corporation
shall reasonably rely on the Participant's statements that the need cannot be
relieved by one or more of the resources listed above.
The Corporation, based on the foregoing criteria, may deny a
hardship withdrawal or may authorize a hardship withdrawal in an amount which is
equal to or less than the amount
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requested by the Participant. The Corporation shall not authorize a hardship
withdrawal which is greater than the amount necessary to relieve the hardship.
11.4 Payment of Withdrawals
A Participant shall be eligible to make withdrawals under Sections
11.1, 11.2 and 11.3 only if, on the date that the Participant files the
prescribed election form with the Participating Entity, the Participant is
either an Employee or a former Employee who is then employed by a Joint Venture
Employer. Each withdrawal shall be deemed to be made pro rata from the
Investment Funds in which the affected Accounts are invested and shall be based
on the value of such Accounts as of the Valuation Date next preceding the date
of distribution. A withdrawal shall be paid in the form specified in Section
13.6. Payment shall be made as soon as reasonably practicable after the request
for the withdrawal was received (or approved, in the case of a hardship
withdrawal under Section 11.3) by the Participating Company. No withdrawal is
permitted from a Participant's Basic Accounts, Variable Accounts, Transition
Accounts or QNEC Accounts. Withdrawals may be made from a Merger Account which
is treated as a Company Account to the same extent that withdrawals may be made
from a comparable Company Account originating from contributions made to this
Plan, but no withdrawals may be made from a Merger Account which was treated by
the transferor plan in a manner comparable to the treatment of Basic Accounts,
Variable Accounts, or Transition Accounts under this Plan. No withdrawal is
permitted in an amount less than the lesser of (a) $250 or (b) the entire amount
available to the Participant as a withdrawal.
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ARTICLE 12. Vesting and Forfeitures
12.1 One Hundred Percent Vesting
A Participant's interest in his or her Salary Deferral Accounts,
Employee Accounts, Rollover Accounts and QNEC Accounts shall be 100% vested at
all times. A Participant's interest in his or her Company Accounts shall become
100% vested when the earliest of the following events occurs:
(a) The Participant completes five Years of Service;
(b) The Participant, before ceasing to be an Employee, attains the
age of 65 years;
(c) The Participant ceases to be an Employee by reason of
Disability;
(d) The Participant dies while employed as an Employee;
(e) The Participant ceases to be an Employee with an entitlement to
payments under the PacTel Corporation Separation Pay Plan;
(f) The Plan is terminated, or the Plan undergoes a partial
termination which affects the Participant, before the Participant ceases to
be an Employee;
(g) Company Contributions are completely discontinued; or
(h) The Participant is employed by Pacific Telesis Group or any of
its subsidiaries as of April 1, 1994. Full vesting pursuant to this
subsection (h) applies only to the Participant's Company Accounts as of
March 31, 1994.
Certain Participants whose accounts under the Premisys Savings and
Retirement Plan were transferred to this Plan as of April 1, 1989 shall have a
100% vested interest in their Company Accounts.
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12.2 Vesting Schedule
Before a Participant becomes 100% vested under Section 12.1, the
Participant shall be vested in a percentage of each of his or her Company
Accounts determined from the following schedule:
Vested Percentage of
Years of Service Participant's Company
Completed by Participant Accounts
------------------------ ---------------------
Less than 3 years 0%
3 but less than 4 years 60%
4 but less than 5 years 80%
5 or more years 100%
The foregoing notwithstanding, to the extent that the Corporation declares all
or a portion of any Company Contribution to be a QNEC, that portion shall be
100% vested at all times.
12.3 Vesting After Prior Distributions
Section 12.2 shall be applied as set forth in this Section 12.3 in
the case of any Participant who received one or more prior distributions from
his or her Company Accounts, who thereafter has not incurred a Permanent Service
Break, and who is not yet 100% vested in the Company Accounts. The vested
portion of each Company Account shall be determined in two steps. First, the
Participant's vested percentage under Section 12.2 shall be applied to the sum
of (a) the value of each Company Account plus (b) the aggregate amount of the
Participant's prior distributions from such Company Account. Then, the aggregate
amount of the Participant's prior distributions from such Company Account shall
be subtracted.
12.4 Application of Forfeitures
Except as provided in Section 12.7 below, the nonvested portion of a
Participant's Company Account shall constitute a forfeiture as of the last day
of the calendar month in which the Participant's employment with the Affiliated
Group terminates. Forfeitures shall be applied as necessary in the following
order:
(a) To restore Company Contributions pursuant to Section 12.6;
(b) To restore Forfeitures pursuant to Section 12.5; and
(c) To adjust Company Contributions as described below.
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Forfeitures arising from Basic Accounts and Matching Accounts on the
first day of a calendar month shall be applied to reduce the Basic Contributions
and Matching Contributions, respectively, for such month, as provided in
Sections 3.1 and 5.1. Forfeitures arising from the Variable Accounts on the
first day of each calendar month in the Plan Year shall be added to the Variable
Contributions for such year, as provided in Section 6.2. Forfeitures arising
from Merger Accounts shall be applied as provided in Section 9.3. If Allocable
Forfeitures cannot be applied as described in the foregoing manner for any
reason, including the withdrawal of an entity as a Participating Entity, such
Forfeitures (regardless of the Account from which the Forfeitures arose) shall
be added to the Allocable Forfeitures under Sections 3.1 and 5.1 of other
Participating Entities, either in the proportion that each Participating
Entity's required Company Contributions under Articles 3 and 5 for the current
calendar month (before reduction for any Forfeitures) bear to the total of such
contributions of all of the Participating Entities or in such other manner as
may be determined by the Committee. In addition and notwithstanding any other
provision of the Plan, the Committee may elect to treat the Employees of two or
more Participating Entities as Employees of a single Participating Entity for
purpose of reallocation of Forfeitures under Sections 3.1, 5.1, 6.2 and 9.3.
12.5 Reinstatement of Forfeitures
If a Participant is rehired as an Employee before incurring a
Permanent Service Break, then the amount of the Participant's Forfeitures
(without adjustment for income, gains, expenses and losses of the applicable
Investment Fund or Funds) shall be reinstated to his or her Company Accounts.
Reinstatement of a Participant's Forfeitures attributable to his or her Basic
Accounts, Matching Accounts and Transition Accounts shall be made as of the last
day of the calendar month in which the rehire occurs. Such reinstatement shall
be made from other Forfeitures which arose during such month from the Basic
Accounts, Matching Accounts and Transition Accounts (whichever is applicable) of
former Employees of the Participating Entity which reemployed the Participant.
Reinstatement of a Participant's Forfeitures attributable to his or her Variable
Accounts and Merger Accounts shall be made as soon as practicable after rehire,
but not later than the close of the Plan Year in which the rehire occurs. Such
reinstatement shall be made from other Forfeitures which arose during such year
from Variable Accounts and Merger Accounts (whichever is applicable) of former
Employees of the Participating Entity which reemployed the Participant. If other
Forfeitures are insufficient to reinstate a rehired Participant's Forfeitures as
of the last day of the reinstatement period, such Participating Entity shall
make a special contribution in the amount required to reinstate the Forfeitures.
After any reinstatement, Section 12.3 may be applicable to the determination of
the vested portion of the Participant's Company Accounts. In no event shall a
Participant's Forfeitures be reinstated if he or she is not rehired as an
Employee before incurring a Permanent Service Break. Any amount forfeited under
Section 3.3 of Appendix I shall not be reinstated under this Section 12.5.
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12.6 Restoration of Contributions
If a Participant was improperly excluded from an allocation of
Company Contributions and Allocable Forfeitures under Articles 3, 5 or 6, then
the amount that should have been allocated to his or her Accounts (including
adjustments for income, gains, expenses or losses of the Investment Fund or
Funds determined under Section 16.6) shall be credited to such Accounts as soon
as practicable, but in no event later than 60 days following the date the error
was discovered. Restoration to Basic Accounts, Matching Accounts or Variable
Accounts shall be made from current Forfeitures which arise from the
corresponding Accounts of former Employees of the Participating Entity which
employs the Participant. If such Forfeitures are insufficient to restore a
Participant's Accounts as of the last day of the restoration period, such
Participating Entity shall make a special contribution in the amount required to
restore a Participant's Accounts.
12.7 Vesting for Joint Venture Employees
If a Participant is hired by a Joint Venture Employer within 30 days
after ceasing to be an Employee or an employee of another Joint Venture
Employer, the Participant's service with the Joint Venture Employer shall be
recognized for vesting purposes to the extent that such service is included in
the Participant's Hours of Service. If such service is counted, the nonvested
portion of the Participant's Company Account shall not be forfeited until the
first day of the calendar month following the month in which the Participant
terminates employment with the Joint Venture Employer and is no longer receiving
vesting credit under the Plan.
If an Employee is hired by an Affiliated Group member within 30 days
after terminating employment with a Joint Venture Employer, the Participant's
prior service with the Joint Venture Employer shall be recognized for vesting
purposes, to the extent such service is included in the Participant's Hours of
Service. Such service shall also be recognized for participation purposes
pursuant to Section 2.5.
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ARTICLE 13. Amount and Distribution of Plan Benefits
13.1 Amount of Plan Benefits
A Participant's Plan Benefit shall include such Participant's entire
interest in his or her Salary Deferral Accounts, Employee Accounts, Rollover
Accounts and QNEC Accounts. To the extent that a Participant is vested under
Article 12 in his or her Company Accounts, such Participant's Plan Benefit shall
also include the vested percentage of his or her Company Accounts. The value of
a Plan Benefit shall be the value of the vested portion of the Accounts as of
the most recent practicable Valuation Date preceding the distribution date for
such Plan Benefit. Such Valuation Date shall in no event be earlier than the
Valuation Date coinciding with or next following the date when the Participant
ceases to be an Employee, except to the extent that an earlier Valuation Date is
required for in-service distributions under Sections 13.4 and 13.5.
Notwithstanding any other provision of the Plan relating to distributions, all
distributions hereunder shall be made in accordance with the regulations under
section 401(a)(9) of the Code, including section 1.401(a)(9)-2. Such provisions
shall override any Plan provisions that are inconsistent with such legal
requirements. A Participant's vested interest in the Plan shall not be divested
for cause or otherwise forfeited (but the market value of such interest may
decline).
13.2 Time of Distribution
Subject to Sections 13.3, 13.4 and 13.5, a Participant's Plan
Benefit shall be distributed to him or her as soon as reasonably practicable
after the Valuation Date coinciding with or next following the date when the
Participating Entity receives a completed distribution election form. This form
shall be signed by the Participant and filed with the Participating Entity.
Where applicable, the distribution election form shall constitute the written
consent of the Participant to the distribution of his or her Plan Benefit before
he or she attains age 65.
13.3 Earliest Time of Distribution
Except to the extent that an earlier distribution is required or
requested under Section 13.4, a Participant's Plan Benefit shall not be
distributed before the date that the Participant ceases to be an Employee. The
foregoing sentence shall not apply in the case of a Participant who ceases to be
an Employee due to employment with a Joint Venture Employer within 30 days
following termination of employment with the Affiliated Group or who ceases to
be an Employee on April 1, 1994 due to employment with Pacific Telesis Group
(including any member of its controlled group within the meaning of section
414(b) of the Code) as of such date. In such a case, the Participant's Plan
Benefit shall not be distributed before the date the Participant ceases to be
employed by a Joint Venture Employer or Pacific Telesis Group and its controlled
group members. Effective as of the date the Internal Revenue Service issues a
favorable determination letter with respect to the Plan, the preceding two
sentences shall not
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apply to Participants who are employed by Pacific Telesis Group and its
controlled group members as of the effective date of Spin.
13.4 Latest Time of Distribution
In the case of a Participant who attains age 70-1/2 after 1987, the
Participant's Plan Benefit shall be distributed to him or her no later than the
April 1 next following the close of the calendar year in which the Participant
attains age 70-1/2, whether or not the Participant ceases to be an Employee. In
the case of a Participant who attained age 70-1/2 before 1988 and who has never
been a 5% owner (as defined in Code section 416(i)), distribution of the
Participant's Plan Benefit is not required until the April 1 next following the
year in which the Participant ceases to be an Employee. However, any such
Participant in the preceding sentence may elect to receive a distribution before
ceasing to be an Employee by filing the prescribed form pursuant to Section
13.2.
13.5 Participation After Latest Distribution Date
If a Participant continues to participate in the Plan after the
Participant's latest distribution date, as determined under Section 13.4, the
Participant shall receive a distribution of any additional Plan Benefit as of
each December 31 following such latest distribution date. The Plan Benefit as of
each such December 31 shall include any Company Contributions, Employee
Contributions and Salary Deferrals which were actually made after December 31,
but which were allocated to the Participant's Accounts as of such December 31 or
any earlier date within the Plan Year. Payment of the Plan Benefit shall be made
as soon as practicable after all of the allocations have been made for the Plan
Year, but in no event later than the close of the following Plan Year. The value
of the Plan Benefit so distributed shall be determined under Section 13.1.
A Participant who ceases to be an Employee after his or her latest
distribution date may elect to receive his or her remaining Plan Benefit earlier
than the distribution date provided in the preceding paragraph by filing the
prescribed form pursuant to Section 13.2.
13.6 Form of Distribution
A Participant's Plan Benefit shall be distributed in the form of a
single sum in cash, except that, if any portion of the Participant's Plan
Benefit is invested in the Company Stock Fund or the Telesis Stock Fund, the
Participant (or, in the case of his or her death, the Beneficiary) may elect to
receive such Plan Benefit in whole shares of stock held by both Investment Funds
and cash for any fractional shares.
13.7 Small Benefits
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If the Participant ceases to be an Employee or dies and if the value
of a Participant's vested Plan Benefit equals $3500 or less (including a Plan
Benefit of $0), then the Plan Benefit shall be paid (or deemed paid if the Plan
Benefit is $0) to such Participant (or, in the case of his or her death, to the
Beneficiary) in a single sum under Section 13.6 or a rollover payment under
Section 13.8 (if elected), as soon as reasonably practicable thereafter. The
Valuation Date attributable to this distribution shall be the Valuation Date
coinciding with or next following the date when the Participants ceases to be an
Employee (or dies, if applicable) or the date when the Plan Administrator is
first aware of such termination or death, if later. This Section shall not apply
to a Participant who ceases to be an Employee due to employment with a Joint
Venture Employer within the 30 day period following termination of employment
with the Affiliated Group.
13.8 Direct Rollover Payment Option
A Participant who elects a distribution under Section 13.6 or who is
eligible to receive a mandatory distribution under Section 13.7 may elect a
direct transfer of such distribution to another retirement plan that is
qualified under section 401(a) of the Code and that will accept the
distribution, or, to an individual retirement account under section 408(a) of
the Code. The election of a direct transfer shall be made at the same time the
Participant elects to receive a distribution, or, in the case of an automatic
distribution under Section 13.7, no later than 30 days after the date the
Participant receives notification in writing of the direct transfer payment
option.
A Beneficiary who is the surviving spouse of a Participant may elect
a direct transfer of a distribution payable under Section 13.7 or 13.9, except
that the direct transfer must be made to an individual retirement account. A
Beneficiary other than the surviving spouse is not eligible to elect a direct
transfer of the distribution otherwise payable.
The following Plan Benefits are not eligible to be transferred to
another retirement plan or an individual retirement account and shall be paid
directly to the Participant or surviving spouse, as applicable:
(a) The portion of the Plan Benefit equal to the Participant's
Employee Contributions;
(b) The portion of the Plan Benefit that is a minimum required
distribution under section 401(a)(9) of the Code because the Participant
attained age 70-1/2; and
(c) Any portion of the Plan Benefit payable in the form of an
annuity under Section 13.10.
The Committee shall make such rules as it deems necessary to implement this
section.
13.9 Death Benefit
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If any Participant dies before receiving his or her entire Plan
Benefit, then such Participant's Beneficiary shall be entitled to receive such
Plan Benefit in a single sum. The distribution ordinarily shall be made as soon
as reasonably practicable after the Valuation Date coinciding with or next
following the date of the Participant's death. However, the Beneficiary may
elect to defer the distribution to a date not later than five years after the
Participant's death or, if the Beneficiary is the spouse of the Participant, a
date not later than the April 1 next following the close of the calendar year in
which the Participant would have attained age 70-1/2.
13.10 Certain Transferred Benefits
The provisions of Section 13.6 shall not apply to any Merger Account
which was transferred from the Detroit Cellular Telephone Company 401(k) Profit
Sharing Plan to this Plan on July 1, 1988. The value of any such Merger Account
shall be distributed in the form of an annuity contract, unless, during the
election period the Participant elects (with the consent of the Participant's
spouse, if the Participant is married on the annuity starting date) to waive the
distribution of such balance in the form of a qualified joint and survivor
annuity. The annuity contract shall be purchased from an insurance company for
an annuity consideration equal to the value of the portion of the Participant's
Plan Benefit which is attributable to the Merger Account, and shall provide for
the payment of a qualified joint and survivor annuity. With respect to a
Participant who is married on the annuity starting date, the term "qualified
joint and survivor annuity" shall mean an annuity which is payable for the life
of the Participant, under which the amount of each payment made to the surviving
spouse, following the death of the Participant, shall be equal to 50% of the
amount of each payment made during the life of such Participant, except that, if
the Participant and the spouse so elect (during the election period), then the
amount payable during the life of the Participant shall be so reduced, and the
amount payable during the life of the surviving spouse shall be so increased, as
that the amount of each payment made during the life of the surviving spouse
shall be equal to either 75% or 100% of the amount of each payment made during
the life of the Participant. With respect to a Participant who is not married on
the annuity starting date, the term "qualified joint and survivor annuity" shall
mean a single life annuity, payable during the life of the Participant. For
purposes of this Section 13.10, the term "election period" shall mean the period
of 90 consecutive days that ends on the annuity starting date, and the term
"annuity starting date" shall mean that date on which the Participant's Plan
Benefit shall actually be distributed as provided in Section 13.2. All elections
made by the Participant shall be in writing and the consent of the spouse shall
meet the requirements of Section 19.5 regarding consent to name beneficiaries.
The provisions of this Section 13.10 shall not apply in any case in which a
Merger Account is part of a benefit distributable under the provisions of
Section 13.7.
13.11 Certain Employment Terminations Disregarded
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A Participant who terminates employment as an Employee shall not be
deemed to have ceased to be an Employee, for purposes of Section 13.3, in any
case in which such Participant is employed or reemployed as an Employee within
30 days following such termination of employment.
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ARTICLE 14. Claims Procedure
14.1 Filing Claims for Benefits
Claims for benefits under the Plan shall be made in writing on the
prescribed form and shall be signed by the Participant or by his or her
Beneficiary, as the case may be. All claims for or inquiries concerning benefits
under the Plan shall be submitted to the Corporation at the address prescribed
from time to time for this purpose.
14.2 Denial of Claims
In the event that any claim for benefits is denied in whole or in
part, the Corporation shall notify the applicant in writing of such denial and
shall advise the applicant of the right to a review thereof. Such written notice
shall set forth, in a manner calculated to be understood by the applicant,
specific reasons for the denial, specific references to the Plan provisions on
which the denial is based, a description of any information or material
necessary for the applicant to perfect the application, an explanation of why
such material is necessary and an explanation of the Plan's review procedure.
Such written notice shall be given to the applicant within 90 days after the
Corporation received the claim in proper form, except that such 90-day period
may be extended for an additional 90 days if special circumstances exist. The
Corporation shall advise the applicant of such circumstances in writing within
the first 90-day period. If the Corporation does not provide the applicant with
written notice of its decision within the applicable time period, the
applicant's claim shall be deemed to have been denied as of the last day of the
applicable time period.
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ARTICLE 15. Review Procedure
15.1 Appointment of the Committee
The Corporation from time to time shall appoint a Committee
consisting of three or more individuals, who may (but need not) be employees of
the Corporation. The Committee shall be the named fiduciary that has the
authority to act with respect to appeals from denials of claims under the Plan.
15.2 Right to Appeal
Any applicant whose claim for benefits was denied in whole or in
part (or such applicant's authorized representative) may appeal from the denial
by submitting to the Committee a written request for a review of the claim
within three months after receiving written notice of the denial, or within
three months after the date when a claim may be deemed to have been denied. The
Corporation shall give the applicant (or the applicant's authorized
representative) an opportunity to review pertinent materials, other than legally
privileged documents, in preparing such request for review.
15.3 Form of Request for Review
The request for review shall be made in writing and shall be
submitted to the Committee in care of the Corporation at the address prescribed
from time to time for this purpose. The request for review shall set forth all
of the grounds on which it is based, all facts in support thereof and any other
matters which the applicant deems pertinent. The Committee may require the
applicant to submit such additional facts, documents or other material as the
Committee may deem necessary or appropriate in making its review.
15.4 Time for Committee Action
The Committee shall act upon each request for review within 60 days
after the Committee received the request for review in proper form, except that
such 60-day period may be extended for an additional 60 days if special
circumstances exist. The Committee shall advise the applicant of such
circumstances in writing within the first 60-day period.
15.5 Committee Decisions
The Committee shall give prompt written notice of its decision to
the applicant and to the Participating Entity. In the event that the Committee
confirms the denial of the claim for benefits in whole or in part, such notice
shall set forth, in a manner calculated to be understood by the applicant, the
specific reasons for such denial and specific references to the Plan provisions
on which the decision was based. In the event that the Committee determines that
the
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claim for benefits should not have been denied in whole or in part, the
Corporation shall take appropriate remedial action as soon as reasonably
practicable after receiving notice of the Committee's decision.
15.6 Rules and Procedures
The Committee shall establish such rules, procedures and
interpretations, consistent with the Plan and ERISA, as it may deem necessary or
appropriate in carrying out its responsibilities under this Article . The
Committee may require an applicant who wishes to submit additional information
in connection with an appeal from a denial of benefits to do so at his or her
own expense.
15.7 Exhaustion of Remedies Required
No legal or equitable action for benefits under the Plan shall be
brought unless and until the applicant (a) has submitted a written claim for
benefits in accordance with Article 14, (b) has been notified that the claim is
denied, (c) has filed a written request for a review of the claim in accordance
with this Article 15 and (d) has been notified in writing that the Committee has
affirmed the denial of the claim; provided, however, that such an action may be
brought after the Corporation or the Committee has failed to act on the claim
within the time prescribed in Sections 14.2 and 15.4, respectively.
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ARTICLE 16. Management of Assets
16.1 Control and Management of Plan Assets
The Corporation is a named fiduciary with respect to control over
and management of the assets of the Plan, but only to the extent of (a) having
the duty to appoint one or more trustees to hold all assets of the Plan in
trust, (b) having the authority to remove any trustee so appointed and to
appoint one or more successor trustees, (c) having the duty to enter into a
trust agreement with each trustee or successor trustee so appointed, (d) having
the authority to appoint one or more Investment Managers for any Plan assets, to
enter into an investment management agreement with each Investment Manager so
appointed and to remove such Investment Manager and (e) having the authority to
direct the investment of any Plan assets not assigned to an Investment Manager.
Each Investment Manager appointed by the Corporation shall acknowledge in
writing that such Investment Manager is a fiduciary with respect to the Plan.
16.2 Investment Authority
The Trustee shall have the exclusive authority and discretion to
invest, manage and control the assets of the Plan, except to the extent that the
Corporation has allocated the authority to manage such assets to one or more
Investment Managers or has retained such authority. Any Investment Manager
appointed under Section 16.1 shall have the exclusive authority to manage,
including the power to direct the acquisition and disposition of, the Plan
assets assigned to it by the Corporation, including the power to invest Plan
assets in a group trust. The Corporation shall have authority to issue general
investment guidelines governing investments by the Trustee and Investment
Manager(s).
16.3 Independent Qualified Public Accountant
The Corporation shall engage an independent qualified public
accountant to conduct such examinations and to express such opinions as may be
required by section 103(a)(3) of ERISA. The Corporation in its discretion may
remove and discharge the person so engaged, in which event it shall appoint a
successor independent qualified public accountant to perform such examinations
and express such opinions.
16.4 Expenses
Brokerage fees, transfer taxes and other expenses incident to the
purchase or sale of securities by the Trustee shall be deemed to be part of the
cost of such securities or shall be deducted in computing the proceeds therefrom
(as the case may be). Taxes, if any, on any assets held, or income received, by
the Trustee shall be charged appropriately against the Accounts, as the
Corporation shall determine. All other expenses of the Plan and the Trust Fund
shall be paid by the Trustee out of the Trust Fund pursuant to the terms of the
Trust Agreement, except such
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expenses as are paid by the Corporation. The Corporation shall have complete and
unfettered discretion to determine whether an expense of the Plan shall be paid
by the Corporation or out of the Trust Fund, and the Corporation's discretion
and authority to direct the payment of expenses out of the Trust Fund shall not
be limited in any way by any prior decision or practice regarding payment of the
expenses of the Plan.
16.5 Benefit Payments
All benefits and withdrawals payable pursuant to the Plan shall be
paid by the Trustee out of the Trust Fund pursuant to the directions of the
Corporation and the terms of the Trust Agreement.
16.6 Valuation
The Trustee shall value each Investment Fund at its fair market
value as of each Valuation Date. Before the amount of any forfeiture is
determined, each Account shall be valued as of each Valuation Date to reflect
the percentage of any increase or decrease in the fair market value of the
applicable Investment Fund since the preceding Valuation Date. Each Account
shall be credited with a share of any such increase or decrease in the
proportion that the value of such Account on the preceding Valuation Date bore
to the sum of the values of all Accounts invested in the same Investment Fund on
such date (other than Accounts which have been distributed in their entirety).
In addition, under written procedures to be adopted by the Corporation, a
portion of the contributions and Allocable Forfeitures allocated to Accounts
during the period since the preceding Valuation Date shall also share in such
increase or decrease.
16.7 Statements
A statement shall be prepared and distributed to each Participant at
least annually. Such statement shall reflect the status of the Participant's
Accounts (including the fair market value thereof) and shall contain such other
information as the Corporation may prescribe.
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ARTICLE 17. Administration of the Plan
17.1 Plan Administration
The Corporation is the named fiduciary with respect to the operation
and administration of the Plan, and the Corporation is the "administrator" and
"plan sponsor" of the Plan (as such terms are used in ERISA). The Corporation
shall make such rules, interpretations and computations and shall take such
other actions to administer the Plan as it may deem appropriate. The Corporation
shall have sole discretion to interpret the terms of the Plan and to determine
eligibility for Plan benefits. The Corporation's rules, interpretations,
computations and actions shall be conclusive and binding on all persons. In
administering the Plan, the Corporation (a) shall act in a nondiscriminatory
manner to the extent required by section 401(a) and related sections of the Code
and (b) shall at all times discharge its duties in accordance with the standards
set forth in section 404(a)(1) of ERISA.
17.2 Employment of Advisors
The Corporation may retain such attorneys, actuaries, accountants,
consultants or other persons to render advice or to perform services with regard
to its responsibilities under the Plan as it shall determine to be necessary or
desirable. The Corporation may designate by written instrument (signed by both
parties) one or more persons to carry out, where appropriate, fiduciary
responsibilities under the Plan. The Corporation's duties and responsibilities
under the Plan which have not been delegated to other fiduciaries pursuant to
the preceding sentence shall be carried out by its directors, officers and
employees, acting individually or as members of a committee. They shall act on
behalf and in the name of the Corporation in their capacities as directors,
officers and employees and not as individual fiduciaries.
17.3 Service in Several Fiduciary Capacities
Nothing herein shall prohibit any person or group of persons from
serving in more than one fiduciary capacity with respect to the Plan (including
service both as the administrator and as a trustee of the Plan).
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ARTICLE 18. Amendment and Termination
18.1 Right to Amend or Terminate
The Corporation may amend or terminate the Plan at any time and for
any reason, by action of its Board of Directors or by action of a committee or
individual(s) acting pursuant to a valid delegation of authority. In addition,
any Participating Entity may amend its Company Contributions by action of its
board of directors or by action of a committee or individual(s) acting pursuant
to a valid delegation of authority. No amendment of the Plan, however, shall (a)
reduce the benefit of any Participant accrued under the Plan prior to the date
when such amendment is adopted or (b) divert any part of the Plan's assets to
purposes other than the exclusive purpose of providing benefits to the
Participants and Beneficiaries who have an interest in the Plan and of defraying
the reasonable expenses of administering the Plan.
18.2 Effect of Termination
Upon termination of the Plan, no assets of the Plan shall revert to
the Participating Entities or be used for or diverted to purposes other than the
exclusive purpose of providing benefits to Participants and Beneficiaries and of
defraying the reasonable expenses of termination (except as otherwise provided
in Article 10). Upon termination of the Plan, the Trust Fund shall continue in
existence until it has been distributed entirely as provided in Section 19.3.
18.3 Allocation of Assets Upon Termination
Upon termination of the Plan, the Trust Fund shall continue in
existence until the Accounts of each Participant have been distributed to such
Participant (or to such Participant's Beneficiary) as provided in Article 13;
provided, however, that the assets of the Plan shall be allocated in accordance
with the requirements of section 403(d)(l) of ERISA.
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ARTICLE 19. General Provisions
19.1 No Assignment of Property Rights
The interest or property rights of any person in the Plan, in any
Account or in any payment to be made under the Plan shall not be anticipated,
assigned (either at law or in equity), alienated or made subject to attachment,
garnishment, levy, execution or other legal or equitable process. Any act in
violation of this Section 19.1, whether voluntary or involuntary, shall be void.
This Section 19.1 shall not apply with respect to qualified domestic relations
orders described in section 414(p) of the Code and section 206(d) of ERISA. The
Corporation shall establish reasonable procedures to determine the qualified
status of domestic relations orders and to administer distributions under
qualified domestic relations orders. Notwithstanding any provision of the Plan
which restricts the time at which account balances may be distributed to or
withdrawn by a Participant, a distribution may be made to an alternate payee as
soon as practicable following the date when the Corporation determines such
order to be qualified.
19.2 Incompetence
If, in the opinion of the Corporation, any individual becomes unable
to handle properly any amounts payable to such individual under the Plan, then
the Corporation may make such arrangements for payment on such individual's
behalf as it determines will be beneficial to such individual, including
(without limitation) payment to such individual's guardian, conservator, spouse
or dependent.
19.3 Unclaimed Plan Benefits
If any Plan Benefit, or a portion thereof, would be distributable
under the Plan but the Corporation is unable to locate the Participant or
Beneficiary to whom the distribution is payable for three consecutive Plan
Years, then the Participant's Accounts may be closed after the third consecutive
Plan Year during which such distribution is payable but the Participant or
Beneficiary cannot be found. The amount of the unpaid Plan Benefit shall be
treated as a Forfeiture. If, however, the Participant or Beneficiary
subsequently makes a proper claim to the Corporation for any Plan Benefit which
was reallocated, then such Plan Benefit (adjusted for income, gains, expenses
and losses of the applicable Fund or Funds) shall be restored to the
Participant's Accounts pursuant to Section 12.5. The Plan Benefit shall
thereafter be distributable in accordance with the terms of the Plan.
19.4 No Employment Rights
Nothing in the Plan shall be deemed to give any individual any right
to remain in the employ of any Participating Entity or to affect the right of
such Participating Entity to terminate such individual's employment at any time,
with or without cause.
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19.5 Beneficiary
Upon commencement of participation, each Participant shall, by
filing the prescribed form with the Corporation, name one or more persons as the
Beneficiary who will receive any distribution payable under the Plan in the
event of the Participant's death. If the Participant has not named a Beneficiary
or if none of the named Beneficiaries is living when any payment is to be made,
then (a) the spouse of the deceased Participant shall be the Beneficiary, or (b)
if the Participant has no spouse living at the time of such payment, the then
living children of the deceased Participant shall be the Beneficiaries in equal
shares, or (c) if the Participant has neither spouse nor children living at the
time of such payment, the estate of the Participant shall be the Beneficiary.
The Participant may change his or her Beneficiary designation from time to time
in accordance with procedures established by the Corporation. Any designation of
a Beneficiary (or an amendment or revocation thereof) shall be effective only if
it is made in writing on the prescribed form and is received by the Corporation
prior to the Participant's death. Any other provision of this Section 19.5
notwithstanding, any Beneficiary designation by a Participant which does not
designate his or her surviving spouse as the sole primary Beneficiary shall be
valid only if the spouse consented to such designation. The spouse's consent
shall be in writing, shall acknowledge the effect of the Participant's
designation and shall be witnessed by a notary public or, if permitted by the
Corporation, by a representative of the Plan. A consent, once given by a spouse,
shall not be revocable by such spouse. The spouse's consent shall not be
required if the Participant established to the Corporation's satisfaction that
it could not be obtained because the spouse could not be located or because of
other reasons deemed acceptable under applicable regulations.
19.6 Merger, Consolidation and Transfer of Assets or Liabilities
The Plan shall not be merged or consolidated with any other plan,
and no assets or liabilities of the Plan shall be transferred to any other plan,
unless each Participant would receive a Plan Benefit immediately after the
merger, consolidation or transfer (if the Plan were then terminated) which is
equal to or greater than the Plan Benefit which such Participant would have been
entitled to receive immediately before such merger, consolidation or transfer
(if the Plan had then been terminated).
19.7 Rules of Construction
The Plan and all rights thereunder shall be interpreted and
construed in accordance with ERISA. In the event that there may be deemed to be
a conflict between the meaning of any express provision of this Plan and any
description or summary of such provision, such provision shall control.
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19.8 Voting of Stock
Before each annual or special meeting of the shareowners of the
Corporation, each Participant who has Accounts invested in the Company Stock
Fund shall receive a copy of the proxy soliciting material for the meeting,
together with a form requesting the Participant to instruct the Trustee on how
to vote the shares of Stock in his or her Accounts. Upon receipt of such
instructions, the Trustee shall vote the shares of Stock as instructed. The
Trustee shall vote the shares of Stock for which it does not receive voting
instructions in the same proportion as it votes the shares of Stock for which it
does receive instructions.
Each Participant who had Accounts invested in the Telesis Stock Fund
shall be entitled to direct the Trustee with respect to the voting of shares of
Pacific Telesis Group stock for the annual meeting of shareowners held in April,
1994. Thereafter, the Trustee shall vote the shares of Pacific Telesis Group
stock in the Telesis Stock Fund, unless the Company directs the Trustee to
provide proxy soliciting materials to Participants and requests the Participants
to direct the Trustee to vote.
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ARTICLE 20. Special Top-Heaviness Rules
20.1 Determination of Top-Heavy Status
Any other provision of the Plan notwithstanding, this Article 20
shall apply to any Plan Year in which the Plan is a Top-Heavy Plan. The Plan
shall be considered a "Top-Heavy Plan" for a Plan Year if, as of the
Determination Date for such Plan Year, the Top-Heavy Ratio for the Aggregation
Group exceeds 60%.
20.2 Minimum Allocations
For any Plan Year during which the Plan is a Top-Heavy Plan, the
Salary Deferrals, Company Contributions and Forfeitures allocated to each
Participant who is not a Key Employee, but who is an Employee on the last day of
such Plan Year, shall not be less than the lesser of (a) three percent of his or
her Wages or (b) the greatest allocation, expressed as a percentage of
Compensation, made to any Participant who is a Key Employee.
For any Plan Year during which the Plan is a Top-Heavy Plan and the
PacTel Corporation Employees Pension Plan is a Top-Heavy Plan, the Salary
Deferrals, Company Contributions and Forfeitures allocated to each Participant
of this Plan who is also a Participant in the PacTel Employees Pension Plan, and
who is not a Key Employee, but who is an Employee on the last day of such plan
year, shall not be less than five percent of his or her wages.
20.3 Minimum Vesting
In any Plan Year during which the Plan is a Top-Heavy Plan, the
vested portion of a Participant's Company Accounts shall be equal to the
percentage determined in accordance with the following schedule:
Vested Percentage of
Years of Service Completed Participant's Company
by Participant Accounts
-------------------------- ---------------------
Less than 2 years 0%
2 but less than 3 years 20%
3 but less than 4 years 60%
4 but less than 5 years 80%
5 or more years 100%
If the Plan ceases to be a Top-Heavy Plan, then (a) this Section
20.3 shall continue to apply to the entire Company Accounts of a Participant who
has completed five or more Years of Service as of the close of the last Plan
Year in which the Plan was a Top-Heavy Plan and (b) the
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vested portion of any other Participant's Company Accounts shall never be less
than his or her vested portion as of the close of the last Plan Year in which
the Plan was a Top-Heavy Plan.
20.4 Adjustment of Contribution Limitations
For any Plan Year during which the Plan is a Top-Heavy Plan, the
number "1.0" shall be substituted for the number "1.25" wherever it appears in
section 415(e)(2) and (3) of the Code.
20.5 Special Definitions
For purposes of this Article 20 only, the following definitions
shall apply:
(a) "Affiliate" means:
(i) With respect to a Participating Entity that is a
designated member of the Affiliated Group, any entity that is considered to
be part of such Participating Entity's controlled group (within the meaning
of sections 414(b) and (c) of the Code); and
(ii) With respect to a Participating Entity that is not
a designated member of the Affiliated Group, a member of the Affiliated
Group (determined without regard to the penultimate sentence of Section
21.2.)
(b) "Aggregation Group" means either the Required Aggregation Group
or any Permissive Aggregation Group, as the Corporation may elect.
(c) "Determination Date" means the first day of the first Plan Year
and the last day of the Plan Year prior to the applicable Plan Year for all
subsequent Plan Years.
(d) "Key Employee" means a key employee, as defined in section
416(i) of the Code.
(e) "Permissive Aggregation Group" means a group of qualified plans
which includes (i) the Required Aggregation Group and (ii) one or more plans
of an Affiliate which are not part of the Required Aggregation Group. A
Permissive Aggregation Group, when viewed as a single plan, must satisfy the
requirements of sections 401(a)(4) and 410 of the Code.
(f) "Required Aggregation Group" means a group of qualified plans
which includes (i) each plan of an Affiliate in which a Key Employee
participates and (ii) each other plan of an Affiliate which enables any plan
in which a Key Employee participates to meet the requirements of section
401(a)(4) or 410 of the Code.
(g) "Top-Heavy Plan" with respect to the Plan, is defined in Section
20.1 of the Plan. The PacTel Employees Pension Plan is a "Top Heavy Plan" if
for any plan year, as of the
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determination date, the present value of the cumulative accrued benefits of
all key employees under that plan exceeds sixty percent of the present value
of the cumulative accrued benefits of all employees under that plan.
(h) "Top-Heavy Ratio" means a percentage determined pursuant to
section 416(g) of the Code, as of the Valuation Date which coincides with
the Determination Date, except that for the first Plan Year, the Top-Heavy
Ratio shall be determined as of the Valuation Date coinciding with December
31, 1987, and shall include any contributions allocable as of such date.
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ARTICLE 21. General Definitions
21.1 "Accounts" means, to the extent applicable to the Participant, one or
more of the accounts enumerated in Section 10.10.
21.2 "Affiliated Group" means a group of one or more chains of organizations
connected through ownership with the Corporation, if:
(a) A controlling interest of each organization, except the
Corporation, is owned by one or more of the other organizations, and
(b) The Corporation owns a controlling interest in at least one of
the other organizations, excluding any direct ownership interest by such
other organizations.
For these purposes, "controlling interest" means: (i) in the case of
a corporation, ownership of stock possessing at least 80 percent of total
combined voting power of all classes of stock entitled to vote of such
corporation or at least 80 percent of the total value of shares of all classes
of stock of such corporation and (ii) in the case of a partnership or a joint
venture which is taxed as a partnership, ownership of at least 80 percent of the
profits or capital interest of such partnership or joint venture.
In addition, the term "Affiliated Group" includes any other entity
which the Corporation has designated in writing as a member of the Affiliated
Group for purposes of the Plan (a "designated member of the Affiliated Group")
and any entity which is part of such designated member's controlled group
(within the meaning of sections 414(b) and (c) of the Code). An entity shall be
considered a member of the Affiliated Group only with respect to periods for
which such designation is in effect or during which the relationship described
in subsections (a) and (b) above exists. For this purpose, Pacific Telesis Group
and its subsidiaries are designated as members of the Affiliated Group for the
period between January 1, 1984 and March 31, 1994.
21.3 "Allocable Forfeitures" means those Forfeitures which were not applied
to restore Company Accounts under Sections 12.5 and 12.6.
21.4 "Balanced Fund" means a part of the Trust Fund, as described in Section
10.7.
21.5 "Basic Accounts" means, to the extent applicable to the Participant,
one or more of the Company Stock Basic Account, the Growth Basic Account, the
Equity Basic Account, the Interest Income Basic Account, the Money Market Basic
Account, the Bond Basic Account, the Balanced Basic Account, and the Telesis
Stock Basic Account.
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21.6 "Basic Contribution" means a contribution made by a Participating
Entity pursuant to Article 3.
21.7 "Basic Rate" is defined in Section 3.1.
21.8 "Beneficiary" means one or more persons designated by the Participant
(or by the Plan) pursuant to Section 19.5.
21.9 "Bond Fund" means a part of the Trust Fund, as described in Section
10.6.
21.10 "Choice Participant" means an individual who:
(a) Was an Employee of a participating entity under the Predecessor
Plan on December 30, 1986;
(b) Became a participant in the PacTel Corporation Employees Pension
Plan (the successor plan due to the merger of the PacTel Corporation Pension
Plan and the PacTel Corporation Pension Plan for Salaried Employees) on
December 31, 1986;
(c) Was vested in his or her benefit under the PacTel Corporation
Employees Pension Plan as of December 31, 1986;
(d) Continued to be an active Employee on August 1, 1987; and
(e) During the special election period established by the
Corporation in August of 1987, irrevocably elected to receive future
allocations of Basic, Variable and Transition Contributions under the terms
of the Plan rather than to receive accrued benefits under the terms of the
PacTel Corporation Employees Pension Plan retroactive to January 1, 1987.
21.11 "Code" means the Internal Revenue Code of 1986, as it may be amended
from time to time.
21.12 "Committee" means the AirTouch Communications Retirement Plans
Committee designated by the Board of Directors of the Corporation.
21.13 "Company Accounts" means, to the extent applicable to the Participant,
one or more of the Basic Accounts, the Matching Accounts, the Variable Accounts,
the Transition Accounts and any Merger Accounts.
21.14 "Company Contributions" means Basic Contributions, Matching
Contributions, Variable Contributions and Transition Contributions.
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21.15 "Company Stock Fund" means a part of the Trust Fund, as described in
Section 10.2.
21.16 "Compensation" means the basic compensation, commissions, incentive
compensation (except for awards under any individual or long term incentive
plan), shift differentials and overtime pay paid to the Participant by a
Participating Entity. Compensation shall include Salary Deferrals and deferrals
under section 125 of the Code (including "Bene$bank" deferrals). For the period
that a Participant receives benefits under the Corporation's Sickness and
Accident Disability Benefits Plan, the term "Compensation" means the gross
benefits received pursuant to such plan before reduction for any offsets
provided therein. For the period that a Participant receives pay from a
Participating Entity while the Participant is on a Temporary Emergency Military
Leave of Absence, "Compensation" means the Participant's basic rate of pay when
the leave began rather than the Participant's actual pay from the Participating
Entity.
Compensation for any Plan Year shall not exceed the limit established under
section 401(a)(17) of the Code, as adjusted to reflect a cost of living
increase. For the Plan Year beginning on April 1, 1994, compensation shall not
exceed $150,000, reduced by compensation taken into account in 1994 before Spin
under the Predecessor Plan and other qualified defined-contribution plans
maintained by members of the Affiliated Group. For purposes of applying the
dollar limitation on Compensation established under section 401(a)(17) of the
Code, the Compensation of any of the 10 most highly compensated Highly
Compensated Employees or any five-percent owner shall be determined by combining
the Compensation of such top-10 Highly Compensated Employee or five-percent
owner with the Compensation of any Employees who are family members of such
top-10 Highly Compensated Employee or five-percent owner. (For purposes of this
Section, "family members" means an individual's spouse and any lineal
descendants who have not attained age 19 prior to the end of the Plan Year.) If,
as a result of the application of such family-aggregation rules, such dollar
limitation is exceeded, then the limitation shall be prorated among the
individuals in each family-aggregation group in proportion to each such
individual's Compensation, determined without regard to the application of the
family-aggregation rules or the dollar limitation established under section
401(a)(17) of the Code.
21.17 "Corporation" means AirTouch Communications, a California corporation
prior to the effective date of the reincorporation merger approved by the Board
of Directors on September 19, 1994, and a Delaware corporation on and after such
date.
21.18 "Disability" means a condition which entitles a Participant to
long-term disability benefits provided by a welfare benefit plan maintained by a
Participating Entity.
21.19 "Eligible Employee" is defined in Section 2.1.
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21.20 "Employee" means an individual who (a) is a common-law employee of a
member of the Affiliated Group or (b) is a "leased employee" (within the meaning
of section 414(n) of the Code) with respect to a member of the Affiliated Group.
21.21 "Employee Accounts" means, to the extent applicable to the
Participant, one or more of the Company Stock Employee Account, the Growth
Employee Account, the Equity Employee Account, the Interest Income Employee
Account, the Money Market Employee Account, the Bond Employee Account, and the
Balanced Employee Account, and the Telesis Stock Employee Account.
21.22 "Employee Contributions" means employee contributions (other than
Salary Deferrals) made by the Participant pursuant to Article 4.
21.23 "Entry Date" means the first day of each calendar month, commencing
with April 1, 1994.
21.24 "Equity Fund" means a part of the Trust Fund, as described in Section
10.4.
21.25 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
21.26 "Forfeiture" means that part of the Participant's Company Accounts
which has not become vested pursuant to Article 12 when he or she ceases to be
an Employee.
21.27 "Growth Fund" means a part of the Trust Fund, as described in Section
10.3.
21.28 "Highly Compensated Participant" means an individual who during the
Plan Year was both a Participant and a Highly Compensated Employee (as defined
in Appendix I).
21.29 "Hour of Service" means all of the following:
(a) Each hour for which the Employee is paid, or is entitled to
payment, for the performance of duties as an Employee;
(b) Each hour for which the Employee is paid, or is entitled to
payment, by an Affiliated Group member on account of a period of time during
which the Employee performs no duties (regardless of whether employment has
terminated) due to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or leave of absence; provided,
however, that not more than 501 Hours of Service shall be credited under
this subsection (b) to any Employee on account of a single continuous period
during which such Employee does not perform duties; and provided further
that no Hours of Service shall be credited under this
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subsection (b) for any payments applicable to workers' compensation,
unemployment compensation, disability insurance laws or reimbursements for
medical expenses;
(c) Each hour not otherwise included in an Hour of Service for which
back pay (regardless of mitigation of damages) is awarded or agreed to by an
Affiliated Group member; provided, however, that not more than 501 Hours of
Service shall be credited under this subsection (c) to any Employee on
account of a back-pay award covering a single continuous period during which
such Employee has not, or would not have, performed duties;
(d) Each hour which is required to be recognized under an agreement
among Pacific Telesis Group, American Telephone and Telegraph Company and
one or more other companies (i) made pursuant to the requirements of section
559 of the Tax Reform Act of 1984 or (ii) made in connection with the
reorganization of American Telephone and Telegraph Company and its
subsidiaries on January 1, 1984, with respect to certain covered employees
who are employed by a covered Participating Entity and who were previously
employed by a company, other than a Participating Entity, which is a party
to such agreement and any subsidiary or affiliate of such company identified
in such agreement;
(e) Each hour not otherwise included in an Hour of Service which was
recognized as an hour of service under a plan from which a Merger
Contribution was made to this Plan;
(f) Each hour not otherwise included in an Hour of Service which is
recognized as an hour of service by an Affiliated Group member pursuant to
written and nondiscriminatory rules, subject to such conditions and
limitations as the Corporation may adopt; and
(g) Solely for the purpose of determining whether a Permanent
Service Break has occurred, each hour which normally would have been
credited as an Hour of Service except that the Employee is on a Special
Absence or on an unpaid leave of absence. For purposes of the Special
Absence only, the Hours of Service under this subsection (g) shall be
credited in the Plan Year during which the Special Absence begins (and in no
other period), if the Employee would fail to complete more than 500 Hours of
Service during such year without regard to this subsection (g). Otherwise,
the Hours of Service under this subsection (g) shall be credited in the Plan
Year next following the Plan Year during which the Special Absence begins
(and in no other period). In no event shall more than 501 Hours of Service
be credited under this subsection (g) to any Employee on account of any
single Special Absence.
(h) Each hour for which the Participant is paid by a Joint Venture
Employer for a period of service with the Joint Venture employer if such
service (i) either begins or ends within 30 days of a period of service with
the Affiliated Group, or (ii) either begins or ends within 30 days of a
period of service with another Joint Venture Employer, as long as any chain
of service with Joint Venture Employers begins or ends within 30 days of
employment with the Affiliated Group. For the purpose of determining the
number of hours paid by a Joint
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Venture Employer, a period of employment with a Joint Venture Employer
consisting of one or more whole calendar months shall be deemed to
constitute 190 hours for each whole calendar month, and a period of
employment consisting of less than one whole calendar month shall be deemed
to constitute 10 hours for each working day of such employment.
21.30 "Interest Income Fund" means a part of the Trust Fund, as described in
Section 10.5.
21.31 "Investment Funds" means, to the extent applicable, one or more of the
Company Stock Fund, the Growth Fund, the Equity Fund, the Interest Income Fund,
the Money Market Fund, the Bond Fund, the Balanced Fund, and the Telesis Stock
Fund.
21.32 "Investment Manager" means any person who is:
(a) Registered as an investment adviser under the Investment
Advisers Act of 1940;
(b) A "bank," as defined in such Act; or
(c) An insurance company qualified to perform investment management
services under the laws of more than one state.
21.33 "Joint Venture Employer" means an entity (a) in which the Affiliated
Group has an ownership interest of at least 20%, but less and 80% and (b) which
is designated as a Joint Venture Employer for the period set forth below:
Joint Venture Employer Designation Dates
---------------------- -----------------
PacTel Meridian Systems From 2/28/88 to 8/1/93 when
transferred to
Pacific Telesis Group
Detroit Cellular Telephone Co. From date of hire (including
service before becoming a
JV) to 9/1/91 when merged
into New Par
Bay Area Telephone Company (BACTC) From date of hire by JV to 9/1/93
when merged into CMT
Partnership
New Par From 9/1/91
PacTel Teletrac From 3/31/92
CMT Partnership From 9/1/93
55
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21.34 "Matching Accounts" means, to the extent applicable to the
Participant, one or more of the Company Stock Pre-Spin Matching Account, the
Company Stock Post-Spin Matching Account, the Growth Matching Account, the
Equity Matching Account, the Interest Income Matching Account, the Money Market
Matching Account, the Bond Matching Account, the Balanced Matching Account, and
the Telesis Stock Matching Account.
21.35 "Matching Contribution" means a contribution made by a Participating
Entity pursuant to Article 5.
21.36 "Matching Rate" is defined in Sections 5.2 and 5.3.
21.37 "Merger Accounts" means, to the extent applicable to the Participant,
one or more Accounts funded with Merger Contributions attributable to employer
contributions (other than contributions under section 401(k) of the Code).
21.38 "Merger Contribution" means an amount which was transferred from
another plan to the Plan on behalf of a Participant, pursuant to Section 9.1.
21.39 "Money Market Fund" means a part of the Trust Fund, as described in
Section 10.5.
21.40 "Participant" means an individual whose participation in the Plan (a)
has commenced pursuant to Sections 2.3, 2.4 or 2.5 and (b) has not yet
terminated pursuant to Section 2.7, except that, for purposes of Articles 3, 6
and 7, the term "Participant" shall not include any individual who is an
"accrual participant" in the AirTouch Communications Employees Pension Plan.
21.41 "Participating Entity" means AirTouch Communications and each other
member of the Affiliated Group which has been designated as a Participating
Entity by the Corporation and which has elected to contribute to the Plan. In
addition, a particular division or separate operating unit of a member of the
Affiliated Group may be designated as a separate Participating Entity from the
Affiliated Group member of which it is a part, including the ability to make
separate elections as to the amount of Basic, Matching and Variable
Contributions. A division or separate operating unit of an existing
Participating Entity may be designated as a separate Participating Entity as of
the first day of any calendar month only if the designation is made before such
date.
The entities which have been designated as Participating Entities are:
AirTouch Communications
AirTouch Paging
AirTouch Paging of Kentucky, Inc.
AirTouch Paging of Texas
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AirTouch Paging of California
AirTouch Cable
AirTouch International (except Mobilfunk Business)
AirTouch International - Mobilfunk Business
AirTouch Mobile Services - Concord Market
AirTouch Cellular (California) - Los Angeles Market
AirTouch Cellular (California) - Sacramento Market
AirTouch Cellular (California) - San Diego Market
AirTouch Cellular (California) - COO Staff
AirTouch Cellular (California) - MIS Staff
AirTouch Cellular (Nevada) - Atlanta Market
AirTouch Cellular (California) - Wireless Data Division
21.42 "Permanent Service Break" means five consecutive Plan Years during
which the Employee fails to complete more than 500 Hours of Service in each Plan
Year.
21.43 "Plan" means this AirTouch Communications Retirement Plan, as it may
be amended from time to time.
21.44 "Plan Benefit" means the benefit payable to the Participant or to his
or her Beneficiary pursuant to Article 12.
21.45 "Predecessor Plan" means the PacTel Corporation Retirement Plan, as
sponsored by Pacific Telesis Group immediately before Spin.
21.46 "Plan Year" means each calendar year. The first plan year shall be a
short year beginning on the effective date of Spin and ending on December 31,
1994.
21.47 "QNEC" means a qualified non-elective contribution within the meaning
of section 401(m)(4)(C) of the Code.
21.48 "QNEC Accounts" means, to the extent applicable to the Participant,
one or more of the Company Stock QNEC Account, the Growth QNEC Account, the
Equity QNEC Account, the Interest Income QNEC Account, the Money Market QNEC
Account, the Bond QNEC Account, the Balanced QNEC Account, and the Telesis Stock
QNEC Account.
21.49 "Record Date" means the record date that each shareowner of Pacific
Telesis Group common stock receives shares of Stock due to the Spin.
21.50 "Retirement Status" means that the Participant has attained one of the
combinations of age and service set forth below:
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(a) 30 years of service and any age;
(b) 25 years of service and at least age 50;
(c) 20 years of service and at least age 55; or
(d) 10 years of service and at least age 65.
For purposes of (a), (b), (c) and (d) above only, "service" means "term of
employment" as defined in the AirTouch Communications Employees Pension Plan,
determined without regard to eligibility to participate in such plan and without
regard to the plan's break in service rules. The foregoing notwithstanding,
solely in the case of a former participant in the Communications Industries,
Inc. Employees' Pension Plan, "Retirement Status" means that the Participant has
attained age 65 or has attained age 55 and completed 15 years of service as
defined in such plan. "Retirement Status" is used to determine eligibility for
allocations of Variable Contributions in the year of termination of employment
with the Affiliated Group.
21.51 "Rollover Accounts" means, to the extent applicable to the
Participant, one or more of the Company Stock Rollover Account, the Growth
Rollover Account, the Equity Rollover Account, the Interest Income Rollover
Account, the Money Market Rollover Account, the Bond Rollover Account, the
Balanced Rollover Account, and the Telesis Stock Rollover Account.
21.52 "Rollover Contribution" means a contribution made by the Participant
pursuant to Article 8.
21.53 "Salary Deferral" means a contribution made by a Participating Entity
on the Participant's behalf pursuant to Section 4.1.
21.54 "Salary Deferral Accounts" means, to the extent applicable to the
Participant, one or more of the Company Stock Salary Deferral Account, the
Growth Salary Deferral Account, the Equity Salary Deferral Account, the Interest
Income Salary Deferral Account, the Money Market Salary Deferral Account, the
Bond Salary Deferral Account, the Balanced Salary Deferral Account, and the
Telesis Stock Salary Deferral Account.
21.55 "Special Absence" means an absence from work which commences on or
after January 1, 1987, and which is due to:
(a) The Employee's pregnancy;
(b) The birth of the Employee's child;
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(c) The placement of a child with the Employee in connection with
the adoption of such child by the Employee; or
(d) Caring for the child for a period immediately after the birth
or placement described in subsections (b) and (c) above, respectively.
An absence shall not be treated as a Special Absence unless the Employee
furnishes to the Participating Entity such timely information as the
Participating Entity may reasonably require in order to establish that such
absence is caused by one of the reasons set forth herein and to determine the
number of days for which such absence is continuing.
21.56 "Spin" means the complete separation of corporate affiliation between
PacTel Corporation and the Pacific Telesis Group as of April 1, 1994.
21.57 "Stock" means the common stock of AirTouch Communications.
21.58 "Telesis Stock Fund" means a part of the Trust Fund, as described in
Section 10.9.
21.59 "Transition Accounts" means, to the extent applicable to the
Participant, one or more of the Company Stock Transition Account, the Growth
Transition Account, the Equity Transition Account, the Interest Income
Transition Account, the Money Market Transition Account, the Bond Transition
Account, the Balanced Transition Account, and the Telesis Stock Transition
Account.
21.60 "Transition Contribution" means a contribution made by a Participating
Entity for periods before January 1, 1991, pursuant to Article 7 then in effect.
21.61 "Transition Credit" means a Regular Transition Credit or Special
Transition Credit, as those terms were defined in Article 7 in effect on
December 31, 1990.
21.62 "Trust Agreement" means the trust agreement(s) between the Corporation
and the Trustee, as amended from time to time.
21.63 "Trustee" means the trustee(s) appointed pursuant to Section 16.1.
21.64 "Trust Fund" means the trust fund(s) established pursuant to the Trust
Agreement.
21.65 "Valuation Date" means the last business day of each calendar month.
21.66 "Variable Accounts" means, to the extent applicable to the
Participant, one or more of the Company Stock Variable Account, the Growth
Variable Account, the Equity Variable
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Account, the Interest Income Variable Account, the Money Market Variable
Account, the Bond Variable Account, the Balanced Variable Account, and the
Telesis Stock Variable Account.
21.67 "Variable Contribution" means a contribution made by a Participating
Entity pursuant to Article 6.
21.68 "Voluntary Employee Contribution" means any after-tax employee
contribution under a qualified retirement plan which is not required in order to
participate in such plan and which does not attract a matching employer
contribution under such plan.
21.69 "Wages" means the amounts reported on Form W-2 for income tax
withholding purposes.
21.70 "Year of Service" means a calendar year in which the Employee
completes not less than 1,000 Hours of Service. For this purpose, Hours of
Service shall not include hours attributable to periods specified in Section
21.29(g).
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ARTICLE 22. Execution
To record the amendment and restatement of the Plan to read as set forth
herein, effective as of April 1, 1994, the Corporation has caused its authorized
officer to execute this document on this 15th day of December, 1994.
AIRTOUCH COMMUNICATIONS
By: /s/ Arun Sarin
----------------------------
Arun Sarin
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APPENDIX I
LIMITATIONS ON CONTRIBUTIONS
ARTICLE 1. Definitions.
1.1 "Aggregate 401(k) Contributions" means, for any Plan Year, the sum of
the Participant's Salary Deferrals for the Plan Year and the QNECs allocated to
the Participant's Accounts as of a date within the Plan Year, to the extent that
such QNECs are aggregated with Salary Deferrals pursuant to Section 2.6 of this
Appendix I. For the Plan Year beginning on the effective date of Spin,
"Aggregate 401(k) Contributions" shall not include any contributions allocated
under the Predecessor Plan.
1.2 "Aggregate 401(m) Contributions" means, for any Plan Year, the sum of
the following: the Matching Contributions allocated to the Participant's
Accounts as of a date within the Plan Year; the Employee Contributions allocated
to the Participant's Accounts as of a date within the Plan Year; the
Participant's Salary Deferrals for the Plan Year, to the extent that such Salary
Deferrals are aggregated with Matching Contributions pursuant to Section 3.4 of
this Appendix I; and the QNECs allocated to the Participant's Accounts as of a
date within the Plan Year, to the extent that such QNECs are aggregated with
Matching Contributions pursuant to Section 3.5 of this Appendix I. For the Plan
Year beginning on the effective date of Spin, "Aggregate 401(m) Contributions"
shall not include any contributions allocated under the Predecessor Plan.
1.3 "Annual Additions" means, for any calendar year, the sum of the
following:
(a) Employee contributions made by the Participant under all
qualified defined-contribution or defined-benefit plans maintained by any
member of the Section 415 Employer Group, other than this Plan, during such
calendar year;
(b) Employer contributions and forfeitures credited to the
Participant under all qualified defined-contribution plans maintained by
any member of the Section 415 Employer Group, other than this Plan, as of
any date within such calendar year;
(c) Matching Contributions and Forfeitures credited to the
Participant under Article 5 of this Plan (and, for 1994, the Predecessor
Plan) as of any date within such calendar year; and
(d) Basic Contributions and Forfeitures credited to the Participant
under Article 3 of this Plan (and, for 1994, the Predecessor Plan) as of
any date within such calendar year;
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(e) Variable Contributions and Forfeitures credited to the
Participant under Article 6 of this Plan (and, for 1994, the Predecessor
Plan) as of any date within such calendar year; and
(f) QNECs credited to the Participant under Article 2 of this
Appendix I of the Plan (and, for 1994, the Predecessor Plan as of any date
within such calendar year); and
(g) Salary Deferrals and Employee Contributions made by the
Participant under Article 4 of this Plan (and, for 1994, the Predecessor
Plan) during such calendar year.
The term "Annual Addition" does not include Rollover Contributions or Merger
Contributions.
1.4 "Excess Aggregate Contributions" means the amount by which the
Aggregate 401(m) Contributions of Highly Compensated Employees are reduced
pursuant to Section 3.3 of this Appendix I.
1.5 "Excess Contributions" means the amount by which the Aggregate 401(k)
Contributions of Highly Compensated Employees are reduced pursuant to Section
2.4 of this Appendix I.
1.6 "Excess Deferrals" means the amount of a Participant's Salary Deferrals
and elective deferrals (within the meaning of section 402(g)(3) of the Code)
that exceed the limits set forth in Section 2.1 of this Appendix I.
1.7 "Family Member," for purposes of this Appendix I, means an individual's
spouse, lineal ascendants and descendents, and the spouses of such lineal
ascendants and descendents.
1.8 "Highly Compensated Employee" for any Plan Year means any active
Employee who, during the look-back year:
(a) Received Total Compensation of more than $75,000 (or such
larger amount as may be adopted by the Commissioner of Internal Revenue to
reflect a cost-of-living adjustment);
(b) Received Total Compensation of more than $50,000 (or such
larger amount as may be adopted by the Commissioner of Internal Revenue to
reflect a cost-of-living adjustment) and was a member of the Top-Paid
Group; or
(c) Was an officer of a member of the Affiliated Group and received
Total Compensation of more than 50 percent of the dollar limitation in
effect under section 415(b)(1)(A) of the Code.
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The term "Highly Compensated Employee" also includes: (a) any
Employee who is described in the preceding sentence if the term "determination
year" is substituted for the term "look-back year" and who is one of the 100
Employees who received the most Total Compensation from members of the
Affiliated Group during the determination year; and (b) any Employee who is a
five-percent owner at any time during the look-back year or determination year.
If no officer has satisfied the Total Compensation requirement of (c) above
during either a determination year or look-back year, the highest paid officer
for such year shall be treated as a Highly Compensated Employee.
If an Employee is, during a determination year or look-back year, a
Family Member of either a five-percent owner who is an active or former Employee
or a Highly Compensated Employee who is one of the 10 most Highly Compensated
Employees ranked on the basis of Total Compensation paid during such year, then
the Family Member and the five-percent owner or top-10 Highly Compensated
Employee shall be aggregated. In such case, the Family Member and the
five-percent owner or top-10 Highly Compensated Employee shall be treated as a
single Employee receiving compensation and Plan contributions and benefits of
the Family Member and five-percent owner or top-10 Highly Compensated Employee.
For purposes of this Section 1.8, the determination year shall be
the Plan Year and the look-back year shall be the 12-month period immediately
preceding the determination year, unless the Committee makes a calendar-year
calculation election in accordance with the regulations under section 414(q) of
the Code. The foregoing provisions of this Section 1.8 notwithstanding, for the
Plan Year beginning on the effective date of Spin, Highly Compensated Employees
shall be determined by (a) treating 1994 as the look-back year, (b) not making a
determination-year calculation and (c) taking into account 1994 Total
Compensation paid by members of the Affiliated Group (including Pacific Telesis
Group) before and after Spin.
The determination of who is a Highly Compensated Employee,
including the determinations of the number and identity of Employees in the
Top-Paid Group, the top 100 Employees, the number of Employees treated as
officers and the Total Compensation that is considered, will be made in
accordance with section 414(q) of the Code and regulations thereunder.
1.9 "Highly Compensated Former Employee" means a former Employee who
separated from service (or is deemed to have separated) prior to the
determination year, performs no service for any member of the Affiliated Group
during the determination year, and was a Highly Compensated Employee as an
active Employee for either the separation year or any determination year ending
on or after the Employee's 55th birthday. The determination of who is a Highly
Compensated Former Employee will be made in accordance with section 414(q) of
the Code and regulations thereunder.
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1.10 "Nonhighly Compensated Employee" for any Plan Year means any active
Employee who is not a Highly Compensated Employee.
1.11 "Section 415 Compensation" means any one of the definitions of
compensation described in Subsections (a), (b) and (c) of Section 1.13 of this
Appendix I (without regard to the limitations of section 401(a)(17) of the Code)
received by an Employee from members of the Section 415 Employer Group. Any
definition of Section 415 Compensation shall be used consistently to define the
compensation of all Employees taken into account in satisfying the requirements
of an applicable provision of this Appendix I for the relevant determination
period. For the calendar year 1994, Section 415 Compensation shall be determined
by taking into account Section 415 Compensation paid by members of the Section
415 Employer Group before and after Spin.
1.12 "Section 415 Employer Group" means the Affiliated Group, including
Pacific Telesis Group and PacTel Corporation for periods before Spin, except
that, for purposes of this Appendix I only, the phrase "more than 50%" shall be
substituted for the phrase "at least 80%" wherever it occurs in Section 22.2 of
the Plan.
1.13 "Section 414(s) Compensation" means any one of the following
definitions of compensation received by an Employee from members of the
Affiliated Group:
(a) Compensation as defined in Treasury Regulation section
1.415-2(d) or any successor thereto;
(b) "Wages" as defined in section 3401(a) of the Code for purposes
of income tax withholding at the source, but determined without regard to
any rules that limit the remuneration included in wages based on the nature
or location of the employment or the services performed (such as the
exception for agricultural labor in section 3401(a)(23) of the Code);
(c) "Wages" as defined in section 3401(a) of the Code for purposes
of income tax withholding at the source, plus all other payments of
compensation reportable under Code sections 6041(d) and 6051(a)(3) and the
regulations thereunder, determined without regard to any rules that limit
such Wages or reportable compensation based on the nature or location of
the employment or the services performed (such as the exception for
agricultural labor in section 3401(a)(23) of the Code), and modified, at
the election of the Corporation, to exclude amounts paid or reimbursed for
the Employee's moving expenses, to the extent it is reasonable to believe
that these amounts are deductible by the Employee under section 217 of the
Code;
(d) Any of the definitions of Section 414(s) Compensation set forth
in Subsections (a), (b) and (c) above, reduced by all of the following
items (even if includible in
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gross income): reimbursements or other expense allowances, fringe benefits
(cash and noncash), moving expenses, deferred compensation and welfare
benefits;
(e) Any of the definitions of Section 414(s) Compensation set forth
in Subsections (a), (b), (c) and (d) above, modified to include any
elective contributions made by a member of the Affiliated Group on behalf
of the Employee that are not includible in gross income under section 125,
402(a)(8), 402(h) or 403(b) of the Code; or
(f) Any reasonable definition of compensation that does not by
design favor Highly Compensated Employees and that satisfies the
nondiscrimination requirement set forth in Treasury Regulation section
1.414(s)-1(d) or the successor thereto.
Any definition of Section 414(s) Compensation shall be used
consistently to define the compensation of all Employees taken into account in
satisfying the nondiscrimination tests set forth in this Appendix I for the
relevant determination period. For purposes of applying the limitations set
forth in Articles 2, 3 and 4 of this Appendix I, (a) Section 414(s) Compensation
shall not include compensation paid to an Employee for a Plan Year in excess of
the limit established under section 401(a)(17) of the Code, as adjusted to
reflect a cost-of-living adjustment and (b) for the Plan Year beginning on the
effective date of Spin, only Section 414(s) Compensation after March 31, 1994
shall be taken into account and the limit established under section 401(a)(17)
shall be prorated by multiplying it by a fraction, the denominator of which is
12 and the numerator of which is the number of months in the Plan Year beginning
on April 1, 1994.
1.13 "Top-Paid Group" for any Plan Year means the top 20 percent (in terms
of Total Compensation) of all Employees of the Affiliated Group, excluding the
following:
(a) Any Employee covered by a collective bargaining agreement who
is not an Eligible Employee;
(b) Any Employee who is a nonresident alien with respect to the
United States who receives no income with a source within the United States
from a member of the Affiliated Group;
(c) Any Employee who has not completed at least 500 Hours of
Service during any six-month period at the end of the Plan Year;
(d) Any Employee who normally works less than 17 1/2 hours per
week;
(e) Any Employee who normally works no more than six months during
any year; and
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(f) Any Employee who has not attained the age of 21 at the end of
the Plan Year.
1.14 "Total Compensation" means "wages," as defined in section 3401(a) of
the Code for purposes of income tax withholding at the source, but determined:
(a) Without regard to any rules that limit the remuneration
included in "wages" based on the nature or location of the employment or
the services performed (such as the exception for agricultural labor in
section 3401(a)(2) of the Code); and
(b) By including amounts deferred but not refunded under a
cafeteria plan, as such term is defined in section 125(c) of the Code and
under a plan, including this Plan, qualified under section 401(k) of the
Code.
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ARTICLE 2. Deferral And Average Deferral Percentage Limitations
2.1 Return of Excess Deferrals
The aggregate Salary Deferrals of any Participant for any calendar
year, together with his or her elective deferrals under any other plan or
arrangement to which section 402(g) of the Code applies and that is maintained
by an Affiliated Group member, shall not exceed $7,000 (or such larger amount as
may be adopted by the Commissioner of Internal Revenue to reflect a
cost-of-living adjustment). In the event that the aggregate Salary Deferrals of
any Participant for any calendar year, together with any other elective
deferrals (within the meaning of section 402(g)(3) of the Code) under all plans,
contracts or arrangements of the Affiliated Group and any other employers,
exceed $7,000 (or such larger amount as may be adopted by the Commissioner of
Internal Revenue to reflect a cost-of-living adjustment), then the Participant
may designate all or a portion of such Excess Deferrals as attributable to this
Plan and may request a refund of such portion by notifying the Corporation in
writing on or before the March 1 next following the close of such calendar year.
If timely notice is received by the Corporation, then such portion of the Excess
Deferrals, and any income or loss allocable to such portion, shall be refunded
to the Participant not later than the April 15 next following the close of such
calendar year. If the Participant fails properly to request a distribution of
all such Excess Deferrals, and such Excess Deferrals are attributable solely to
plans, contracts or arrangements of the Affiliated Group, then the Company shall
be deemed to have notice of such Excess Deferrals and shall designate one or
more plans maintained by a member of the Affiliated Group from which the refund
of Excess Deferrals and allocable income or loss shall be made no later than
April 15 next following the close of such calendar year.
For the Plan Year beginning on April 1, 1994, the maximum Salary
Deferrals and elective deferrals under the Affiliated Group plans shall be equal
to $9,240, reduced by elective deferrals made in 1994 before Spin under any plan
(including the Predecessor Plan) maintained by Pacific Telesis Group.
2.2 Average Deferral Percentage Limitation.
The Plan shall satisfy the average deferral percentage test, as
provided in section 401(k)(3) of the Code and section 1.401(k)-1 of the
regulations issued thereunder. Subject to the special rules described in Section
2.6 of this Appendix I, the Aggregate 401(k) Contributions of Highly Compensated
Employees shall not exceed the limits described below:
(a) An Actual Deferral Percentage shall be determined for each
individual who, at any time during the Plan Year, is a Participant
(including a suspended Participant) or is eligible to participate in the
Plan, which Actual Deferral Percentage shall be the ratio, computed to the
nearest one-hundredth of one percent, of the individual's Aggregate 401(k)
Contributions for the Plan Year to the individual's Section 414(s)
Compensation for the Plan Year;
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(b) The Actual Deferral Percentages (including zero percentages) of
Highly Compensated Employees and Nonhighly Compensated Employees shall be
separately averaged to determine each group's Average Deferral Percentage;
and
(c) The Aggregate 401(k) Contributions of Highly Compensated
Employees shall constitute Excess Contributions and shall be reduced,
pursuant to Sections 2.3 and 2.4 of this Appendix I, to the extent that the
Average Deferral Percentage of Highly Compensated Employees exceeds the
greater of (a) 125 percent of the Average Deferral Percentage of Nonhighly
Compensated Employees or (b) the lesser of (i) 200 percent of the Average
Deferral Percentage of Nonhighly Compensated Employees or (ii) the Average
Deferral Percentage of Nonhighly Compensated Employees plus two percentage
points.
2.3 Allocation of Excess Contributions to Highly Compensated Employees.
Any Excess Contributions for a Plan Year shall be allocated to
Highly Compensated Employees by use of a leveling process, whereby the Actual
Deferral Percentage of the Highly Compensated Employee with the highest Actual
Deferral Percentage is reduced to the extent required to (a) eliminate all
Excess Contributions or (b) cause such Highly Compensated Employee's Actual
Deferral Percentage to equal the Actual Deferral Percentage of the Highly
Compensated Employee with the next-highest Actual Deferral Percentage. Such
leveling process shall be repeated until all Excess Contributions for such Plan
Year are allocated to Highly Compensated Employees.
2.4 Distribution of Excess Contributions.
Excess Contributions allocated to Highly Compensated Employees for
the Plan Year pursuant to Section 2.3 of this Appendix I, together with any
income or loss allocable to such Excess Contributions, shall be distributed to
such Highly Compensated Employees not later than the March 15 next following the
close of such Plan Year, if possible, and in any event no later than the
December 31 next following the close of such Plan Year.
2.5 Corrective Qualified Nonelective Contributions.
In order to satisfy (or partially satisfy) the Average Deferral
Percentage limitation described in Section 2.2 of this Appendix I, the Average
Contribution Percentage limitation described in Section 3.1 of this Appendix I
or the multiple-use limitation described in Section 4.2 of this Appendix I (or
more than one of such limitations), a Participating Entity may elect to make a
QNEC on behalf of each eligible Participant employed by that Participating
Entity as of the last day of that Plan Year. The amount of a Participating
Entity's QNEC, as determined with the approval of the Corporation, on behalf of
each such eligible Participant shall equal one of the following:
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(a) The same percentage of the eligible Participant's Compensation
as the Participating Entity contributed as a QNEC for the Plan Year on
behalf of each other eligible Participant employed by the Participating
Entity; or
(b) The same dollar amount as the Participating Entity contributed
as a QNEC for the Plan Year on behalf of each other eligible Participant
employed by the Participating Entity; or
(c) A combination of (a) and (b).
For this purpose, an eligible Participant is a Participant who is a
Nonhighly Compensated Employee for the Plan Year with respect to which such QNEC
is made.
QNECs shall be contributed to the Trust by the Participating
Entities no later than the end of the following Plan Year. Any QNEC made on
behalf of a Participant for a Plan Year shall be allocated to the Participant's
QNEC Account as of the last day of the Plan Year. The actual allocation shall be
made as soon as practicable after the contribution is paid to the Trustee.
2.6 Special Rules.
The following special rules shall apply for purposes of this
Article 2:
(a) The amount of Excess Deferrals to be distributed to a
Participant for a calendar year pursuant to Section 2.1 of this Appendix I
shall be reduced by the amount of any Excess Contributions previously
distributed to such Participant for the Plan Year ending within such
calendar year;
(b) The amount of Excess Contributions to be distributed to a
Participant for a Plan Year pursuant to Section 2.2 of this Appendix I
shall be reduced by the amount of any Excess Deferrals previously
distributed to such Participant for the calendar year ending with such Plan
Year;
(c) If, after a distribution of Excess Deferrals or Excess
Contributions (or both) under this Article 2, a Participant's aggregate
remaining Salary Deferrals and Employee Contributions are less than 6% of
his or her Compensation for a Plan Year, any Matching Contributions that
relate to such Excess Deferrals and Excess Contributions, together with any
income allocable to such Matching Contributions, shall be forfeited;
(d) For purposes of applying the limitation described in Section
2.2 of this Appendix I, the Actual Deferral Percentage of any Highly
Compensated Employee who is eligible to make Salary Deferrals and to make
elective deferrals (within the meaning of section 402(g)(3) of the Code)
under any other plans, contracts or arrangements of the
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Affiliated Group shall be determined as if all such Salary Deferrals and
elective deferrals were made under a single arrangement; provided, however,
that plans, contracts and arrangements shall not be treated as a single
arrangement to the extent that Treasury Regulation section
1.401(k)-1(b)(3)(ii)(B) prohibits aggregation;
(e) In the event that this Plan is aggregated with one or more
other plans in order to satisfy the requirements of Code section 401(a)(4),
401(k) or 410(b), then all such aggregated plans, including the Plan, shall
be treated as a single plan for all purposes under all such Code sections
(except for purposes of the average benefit percentage provisions of Code
section 410(b)(2)(A)(ii));
(f) In the event that the mandatory disaggregation rules of
Treasury Regulation section 1.401(k)-1(b)(3)(ii)(B) apply to the Plan, or
to the Plan and other plans with which it is aggregated as described in
Subsection (d) above, then the limitation described in Section 2.2 of this
Appendix I shall be applied as if each mandatorily disaggregated portion of
the Plan (or aggregated plans) were a single arrangement;
(g) The Actual Deferral Percentage of any of the 10 most highly
compensated Highly Compensated Employees or any five-percent owner shall be
determined by combining the Aggregate 401(k) Contributions and Section
414(s) Compensation of such top-10 Highly Compensated Employee or
five-percent owner with the Aggregate 401(k) Contributions and Section
414(s) Compensation of any Employees who are Family Members of such top-10
Highly Compensated Employee or five-percent owner;
(h) Any Excess Contributions of any of the 10 most highly
compensated Highly Compensated Employees or five-percent owner affected by
the family-aggregation rules described in Subsection (g) of this Section
2.6 shall be allocated among the individuals in each family aggregation
group in proportion to the Aggregate 401(k) Contributions of each such
individual; and
(i) Income (and loss) allocable to Excess Contributions for the
Plan Year shall be determined pursuant to the provisions for allocating
income (and loss) to a Participant's Accounts under Section 17.6 of the
Plan.
2.7 Prospective Limitations on Salary Deferrals.
At any time, the Committee (at its sole discretion) may reduce the
maximum rate at which any Participant may make Salary Deferrals to the Plan, or
the Committee may require that any Participant discontinue all Salary Deferrals,
in order to ensure that the limitations described in this Article 2 are met. Any
reduction or discontinuance of Salary Deferrals may be applied selectively to
individual Participants or to particular classes of Participants, as the
Committee may determine. Upon such date as the Committee may determine, this
Section 2.7 shall
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automatically cease to apply until the Committee again determines that a
reduction or discontinuance of Salary Deferrals is required for any Participant.
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ARTICLE 3. Average Contribution Percentage Limitations
3.1 Average Contribution Percentage Limitation.
The Plan shall satisfy the average contribution percentage test, as
provided in section 401(m)(2) of the Code and section 1.401(m)-1 of the
regulations issued thereunder. Subject to the special rules described in Section
3.6 of this Appendix I, the Aggregate 401(m) Contributions of Highly Compensated
Employees shall not exceed the limits described below:
(a) An Actual Contribution Percentage shall be determined for each
individual who, at any time during the Plan Year, is a Participant
(including a suspended Participant) or is eligible to participate in the
Plan, which Actual Contribution Percentage shall be the ratio, computed to
the nearest one-hundredth of one percent, of the individual's Aggregate
401(m) Contributions for the Plan Year to the individual's Section 414(s)
Compensation for the Plan Year;
(b) The Actual Contribution Percentages (including zero
percentages) of Highly Compensated Employees and Nonhighly Compensated
Employees shall be separately averaged to determine each group's Average
Contribution Percentage; and
(c) The Aggregate 401(m) Contributions of Highly Compensated
Employees shall constitute Excess Aggregate Contributions and shall be
reduced, pursuant to Sections 3.2 and 3.3 of this Appendix I, to the extent
that the Average Contribution Percentage of Highly Compensated Employees
exceeds the greater of (i) 125 percent of the Average Contribution
Percentage of Nonhighly Compensated Employees or (ii) the lesser of (A) 200
percent of the Average Contribution Percentage of Nonhighly Compensated
Employees or (B) the Average Contribution Percentage of Nonhighly
Compensated Employees plus two percentage points.
3.2 Allocation of Excess Aggregate Contributions to Highly Compensated
Employees.
Any Excess Aggregate Contributions for a Plan Year shall be
allocated to Highly Compensated Employees by use of a leveling process, whereby
the Actual Contribution Percentage of the Highly Compensated Employee with the
highest Actual Contribution Percentage is reduced to the extent required to (a)
eliminate all Excess Aggregate Contributions or (b) cause such Highly
Compensated Employee's Actual Contribution Percentage to equal the Actual
Contribution Percentage of the Highly Compensated Employee with the next-highest
Actual Contribution Percentage. Such leveling process shall be repeated until
all Excess Aggregate Contributions for such Plan Year are allocated to Highly
Compensated Employees.
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3.3 Distribution of Excess Aggregate Contributions.
Excess Aggregate Contributions allocated to any Highly Compensated
Employee for the Plan Year pursuant to Section 3.2 of this Appendix I, together
with any income or loss allocable to such Excess Aggregate Contributions, shall
be eliminated as follows:
(a) First, to the extent required, Employee Contributions made by
such Highly Compensated Employee for such Plan Year that are not matched
pursuant to Section 5.2 of the Plan shall be distributed to such Highly
Compensated Employee;
(b) Then, to the extent required, Employee Contributions made by
such Highly Compensated Employee for the Plan Year that are matched
pursuant to Section 5.2 of the Plan together with Matching Contributions
attributable to such Employee Contributions shall be eliminated by
distributing such Employee Contributions and the vested portion of such
Matching Contributions to such Highly Compensated Employee and by
forfeiting the nonvested portion of such Matching Contributions and
applying such forfeited portion in the manner described in Section 12.4 of
the Plan.
All such distributions and forfeitures shall be made not later than the March 15
next following the close of such Plan Year, if possible, and in any event no
later than the December 31 next following the close of such Plan Year.
3.4 Use of Salary Deferrals.
The Committee, in its sole discretion, may include all or a portion
of the Salary Deferrals for a Plan Year in Aggregate 401(m) Contributions taken
into account in applying the Average Contribution Percentage limitation
described in Section 3.1 of this Appendix I for such Plan Year, provided that
the requirements of Treasury Regulation section 1.401(m)-1(b)(5) are satisfied.
3.5 Corrective QNECs.
The Committee, in its sole discretion, may include all or a portion
of the QNECs made pursuant to Section 2.5 of this Appendix I for a Plan Year in
Aggregate 401(m) Contributions taken into account in applying the Average
Contribution Percentage limitation described in Section 3.1 of this Appendix I
for such Plan Year, provided that the requirements of Treasury Regulation
section 1.401(m)-1(b)(5) are satisfied.
3.6 Special Rules.
The following special rules shall apply for purposes of this
Article 3:
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(a) If, after a distribution of Excess Aggregate Contributions
under this Article 3, a Participant's aggregate remaining Salary Deferrals
and Employee Contributions are less than 6% of his or her Compensation for
a Plan Year, any Matching Contributions that related to such Excess
Aggregate Contributions, together with any income allocable to such
Matching Contributions, shall be forfeited.
(b) For purposes of applying the limitation described in Section
3.1 of this Appendix I, the Actual Contribution Percentage of any Highly
Compensated Employee who is eligible to participate in the Plan and to make
employee contributions or receive an allocation of matching contributions
(within the meaning of section 401(m)(4)(A) of the Code) under any other
plans, contracts or arrangements of the Affiliated Group shall be
determined as if Matching Contributions allocated to such Highly
Compensated Employee's Accounts and all such employee contributions and
matching contributions were made under a single arrangement;
(c) In the event that this Plan is aggregated with one or more
other plans in order to satisfy the requirements of Code section 401(a)(4),
401(m) or 410(b), then all such aggregated plans, including the Plan, shall
be treated as a single plan for all purposes under all such Code sections
(except for purposes of the average benefit percentage provisions of Code
section 410(b)(2)(A)(ii));
(d) In the event that the mandatory disaggregation rules of
Treasury Regulation section 1.401(m)-1(b)(3)(ii) apply to the Plan, or to
the Plan and other plans with which it is aggregated as described in
Subsection (c) above, then the limitation described in Section 3.1 of this
Appendix I shall be applied as if each mandatorily disaggregated portion of
the Plan (or aggregated plans) were a single arrangement;
(e) The Actual Contribution Percentage of any of the 10 most highly
compensated Highly Compensated Employees or any five-percent owner shall be
determined by combining the Aggregate 401(m) Contributions and Section
414(s) Compensation of such top-10 Highly Compensated Employee or
five-percent owner with the Aggregate 401(m) Contributions and Section
414(s) Compensation of any Employees who are Family Members of such top-10
Highly Compensated Employee or five-percent owner;
(f) Any Excess Aggregate Contributions of any of the 10 most highly
compensated Highly Compensated Employees or five-percent owner affected by
the family-aggregation rules described in Subsection (d) of this Section
3.6 shall be allocated among the individuals in each family aggregation
group in proportion to the Aggregate 401(m) Contributions of each such
individual; and
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(g) Income (and loss) allocable to Excess Aggregate Contributions
for the Plan Year shall be determined pursuant to the provisions for
allocating income (and loss) to a Participant's Accounts under Section 17.6
of the Plan.
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ARTICLE 4. Multiple-Use Limitations
4.1 Applicability of the Multiple-Use Limitation.
The limitation described in this Article 4 shall apply only if, for
a Plan Year, after the limitations of Articles 2 and 3 of this Appendix I are
applied:
(a) The Average Deferral Percentage of Highly Compensated Employees
(i) exceeds 125 percent of the Average Deferral Percentage of Nonhighly
Compensated Employees, but (ii) does not exceed the lesser of (A) 200
percent of the Average Deferral Percentage of Nonhighly Compensated
Employees or (B) the Average Deferral Percentage of Nonhighly Compensated
Employees plus two percentage points; and
(b) The Average Contribution Percentage of Highly Compensated
Employees (i) exceeds 125 percent of the Average Contribution Percentage of
Nonhighly Compensated Employees, but (ii) does not exceed the lesser of (A)
200 percent of the Average Contribution Percentage of Nonhighly Compensated
Employees or (B) the Average Contribution Percentage of Nonhighly
Compensated Employees plus two percentage points.
4.2 Multiple-Use Limitation.
The sum of the Average Deferral Percentage and Average Contribution
Percentage of Highly Compensated Employees shall not exceed the greater of (a)
or (b) below.
(a) This limit equals the sum of:
1.25 times the greater of the Average Deferral Percentage or
Average Contribution Percentage of Nonhighly Compensated Employees; and
The lesser of (i) 200 percent of the lesser of the Average
Deferral Percentage or Average Contribution Percentage of Nonhighly
Compensated Employees, or (ii) the lesser of the Average Deferral
Percentage or Average Contribution Percentage of Nonhighly Compensated
Employees plus two percentage points.
(b) This limit equals the sum of:
1.25 times the lesser of the Average Deferral Percentage or
Average Contribution Percentage of Nonhighly Compensated Employees; and
The lesser of (i) 200 percent of the greater of the Average
Deferral Percentage or Average Contribution Percentage of Nonhighly
Compensated Employees, or (ii) the greater
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of the Average Deferral Percentage or Average Contribution Percentage of
Nonhighly Compensated Employees plus two percentage points.
4.3 Correction of Multiple-Use Limitation.
To the extent necessary, the limitation of Section 4.2 of this
Appendix I shall be satisfied by one or more of the following methods: (a) the
allocation of corrective QNECs in the manner set forth in Sections 2.5 or 3.5 of
this Appendix I, or (b) the distribution of Aggregate 401(m) Contributions (and
income or loss allocable thereto) to Highly Compensated Employees in the manner
set forth in Sections 3.2 and 3.3 of this Appendix I, followed by the
distribution of Aggregate 401(k) Contributions (and income or loss allocable
thereto) to Highly Compensated Employees in the manner set forth in Sections 2.3
and 2.4 of this Appendix I.
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ARTICLE 5. Allocation Limitations.
5.1 Limitation on Contributions.
The Annual Additions allocated or attributed to a Participant for
any calendar year shall not exceed the lesser of the following:
(a) $30,000 (or, if greater, 25% of the dollar limitation in effect
under Code section 415(b)(1)(A)); or
(b) 25% of the Participant's Section 415 Compensation for such
year.
If a Participant's Annual Additions would exceed the foregoing
limitation, then such Annual Additions shall be reduced by reducing the
components thereof as necessary in the order in which they are listed in Section
1.3 of this Appendix I; provided however, that any such reduction required for
the 1994 calendar year shall be accomplished by reducing the components of a
Participant's Annual Addition by ordering the subsections in Section 1.3 in the
sequence (c), (a), (d), (e), (f), (g), (b). Any amounts so reduced shall not be
taken into account for purposes of applying the limitations of Articles 2, 3 and
4 of this Appendix I.
5.2 Effect on Future Contributions
Articles 3, 4, 5 and 6 notwithstanding, the Salary Deferrals and
Employee Contributions that a Participant is permitted to make and his or her
participation in the allocation of Company Contributions and Allocable
Forfeitures shall cease when required by Section 5.1 of this Appendix I. The
aggregate amount of the Company Contributions that otherwise would be made under
Articles 3, 5 and 6 shall be reduced accordingly. Any Forfeitures that cannot be
reallocated to any Participant by reason of this Article 5 shall be credited to
the suspense account described in Section 5.5 of this Appendix I. No Participant
shall be affected by this Article 5 in any manner unless a cessation of his or
her Salary Deferrals or Employee Contributions and his or her participation in
the allocation of Company Contributions and Allocable Forfeitures is required in
order to prevent his or her Annual Additions from exceeding the limitation
described in Section 5.1 of this Appendix I.
5.3 Return of Prior Salary Deferrals and Employee Contributions
If the amount of any prior Salary Deferral or Employee Contribution
(or both) is determined to have been excessive by reason of this Article 5, then
the amount of such excess (adjusted to reflect any earnings, appreciation or
losses attributable to such excess shall be refunded by the Trustee in cash to
the Participant who made such Salary Deferral or Employee Contribution.
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5.4 Combined Limitation on Benefits and Contributions.
The sum of a Participant's defined-benefit plan fraction and his or
her defined-contribution plan fraction shall not exceed 1.0 with respect to any
calendar year. For purposes of this Section 5.2, the terms "defined-benefit plan
fraction" and "defined-contribution plan fraction" shall have the meaning given
to such terms by section 415(e) of the Code and the regulations thereunder. If a
Participant would exceed the foregoing limitation, then such Participant's
benefits under any qualified defined-benefit plan that may be maintained by the
Section 415 Employer Group shall be reduced as necessary to allow his or her
Annual Additions to equal the maximum permitted by Section 5.1 of this Appendix
I.
5.5 Excess Company Contributions.
If, as a result of the reallocation of Forfeitures or a reasonable
error in estimating a Participant's Compensation or Section 415 Compensation,
the Annual Additions (other than Salary Deferrals and Employee Contributions)
allocated to a Participant for any calendar year must be reduced to meet the
limitation described in Section 5.1 of this Appendix I, then the excess shall be
transferred to a suspense account. Any gains, income or losses attributable to
the suspense account shall be allocated to such account. All amounts credited to
the suspense account shall be applied to reduce Company Contributions for the
next Plan Year, and for succeeding Plan Years if necessary. Such amounts shall
be allocated among Participants pursuant to Articles 3, 5 and 6 of the Plan
until the suspense account is exhausted (subject to this Article 5). No Company
Contributions, Salary Deferrals, or Employee Contributions shall be made as long
as any amount remains in the suspense account. The suspense account shall be
invested as part of the Money Market Fund.
80
Exhibit 5(a)
June 29, 1999
Vodafone Group Public Limited Company
The Courtyard
2-4 London Road
Newbury, Berkshire
RG14 1JX, England
Ladies and Gentlemen:
This opinion is given in connection with the registration under the United
States Securities Act of 1933, as amended (the "Act"), on Form S-8 (the
"Registration Statement") of 256,625,000 Ordinary Shares, nominal value 5p each
or, if the redenomination of the share capital of Vodafone Group Public Limited
Company, an English public limited company (the "Company"), from pounds sterling
into U.S. dollars as approved by the Company's shareholders becomes effective,
nominal value $0.10 each (the "Ordinary Shares"), of the Company, to be issued
in connection with the Vodafone AirTouch 1999 Long-Term Stock Incentive Plan,
the Vodafone AirTouch 1999 Employee Stock Purchase Plan (collectively, the
"Stock Plans"), the AirTouch Communications Retirement Plan (the "Retirement
Plan"), the AirTouch Communications, Inc. 1993 Long-Term Stock Incentive Plan
and the AirTouch Communications, Inc. Employee Stock Purchase Plan
(collectively, the "AirTouch Plans").
This opinion is limited to English law as applied by the English courts and is
given on the basis that it will be governed by and construed in accordance with
English Law.
I have examined and relied on copies of such corporate records and other
documents, including the Registration Statement, and reviewed such matters of
law as I have deemed necessary or appropriate for the purpose of this Opinion.
In rendering this Opinion, I have assumed that the resolution of the board of
directors of the Company to allot and issue the Ordinary Shares will not be
amended or revoked prior to the allotment and issuance of such Ordinary Shares.
On the basis of, and subject to, the foregoing and having regard to such
consideration of English law in force at the date of this letter as I consider
relevant, I am of the opinion that (i) the Company has been duly organized and
is an existing corporation in good standing under the laws of England, and (ii)
any Ordinary Shares to be issued by the Company pursuant to and in accordance
with the Stock Plans, the Retirement Plan and the AirTouch Plans
will, when so issued, be legally and validly issued, fully paid and
non-assessable (i.e., no further contributions in respect thereof will be
required to be made to the Company by the holders thereof, by reason only of
their being such holders).
I hereby consent to the filing of this Opinion as an exhibit to the Registration
Statement relating to such Ordinary Shares. In giving such consent, I do not
thereby admit that I am within the category of persons whose consent is required
under Section 7 of the Act.
Very truly yours,
/s/ STEPHEN R. SCOTT
- ---------------------------------
Stephen R. Scott
Company Secretary
4
Exhibit 5(b)
Margaret G. Gill
Senior Vice President, Legal, External
Affairs and Secretary
AirTouch Communications, Inc.
One California Street
San Francisco, California 94111
June 29, 1999
The Directors
Vodafone Group Public Limited Company
The Courtyard
2-4 London Road
Newbury, Berkshire
RG14 1JX, England
Ladies and Gentlemen:
Reference is made to the proposed offering of interests ("Interests") in the
AirTouch Communications Retirement Plan (the "Plan") and to the offering through
the Plan of ordinary shares of Vodafone Group Public Limited Company (the
"Company") either directly or in the form of American Depositary Shares to
employees of certain participating companies that have adopted the Plan, and
certain other participants in the Plan.
I am familiar with the Form S-8 Registration Statement (the "Registration
Statement") that the Company is filing with the Securities and Exchange
Commission to register, among other things, Interests in the Plan.
I have examined such documents and made such other investigation as I have
deemed necessary for the purpose of giving the opinion herein stated.
I am of the opinion that the Plan and the Interests therein have been duly
authorized and approved and, when issued pursuant to the terms and conditions of
the Plan, such Interests will be the valid and binding obligations of AirTouch
Communications, Inc., a Delaware corporation.
The foregoing opinion is limited to the Federal laws of the United States and
the Delaware General Corporation Law, and I am not expressing any opinion as to
the effect of the laws of any other jurisdiction. I hereby consent to the use of
the foregoing opinion as an exhibit to the Registration Statement. In giving
such consent, I do not hereby admit I am in the category of person whose consent
is required under Section 7 of the Act.
Very truly yours,
/s/ MARGARET G. GILL
- ----------------------------------------
Margaret G. Gill
Senior Vice President, Legal, External
Affairs and Secretary
5
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby give our consent to the incorporation by reference in this
Registration Statement on Form S-8 of Vodafone Group Public Limited Company
("Vodafone"), of our report dated June 2, 1998 with respect to the consolidated
financial statements of Vodafone as of March 31, 1998 and 1997, and for each of
the three years in the period ended March 31, 1998, which report is included in
Vodafone's Annual Report on Form 20-F for the year ended March 31, 1998 and is
incorporated by reference in Vodafone's Registration Statement on Form F-4;
filed with the Securities and Exchange Commission on April 22, 1999 (the
"Vodafone Form F-4") and our report dated June 8, 1999 with respect to the
consolidated financial statements of Vodafone as of March 31, 1999 and for the
year ended March 31, 1999 which report is included in the Vodafone Annual Report
and Accounts included within Vodafone's Form 6-K filed with the Securities and
Exchange Commission on June 23, 1999. We also consent to the reference to us
under the heading "Experts" in the Proxy Statement/Prospectus constituting part
of the Vodafone Form F-4, and to all references to our firm included in this
Registration Statement.
Yours faithfully,
/s/ Deloitte & Touche
- ---------------------
Deloitte & Touche
London, England
June 29, 1999
Exhibit 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Vodafone Group Public Limited Company ("Vodafone") of
our report dated March 1, 1999 relating to the consolidated financial statements
of AirTouch Communications, Inc. ("AirTouch"), which appears on page 35 of the
AirTouch Annual Report to Stockholders, which Annual Report is incorporated by
reference in the AirTouch Annual Report on Form 10-K for the year ended December
31, 1998 ("AirTouch 1998 Form 10-K"), which is incorporated by reference in the
Prospectus constituting part of Vodafone's Registration Statement on Form F-4
("Vodafone Form F-4"). We also consent to the incorporation by reference in this
Registration Statement of our report dated February 23, 1998 relating to the
consolidated financial statements of CMT Partners, which appears on page S-3 of
the AirTouch Annual Report on Form 10-K for the year ended December 31, 1997
("AirTouch 1997 Form 10-K") which is incorporated by reference in the AirTouch
1998 Form 10-K. We also consent to the incorporation by reference of our report
on the Financial Statement Schedule of AirTouch Communications, Inc. which
appears on page X-1 of the AirTouch 1998 Form 10-K and our report on the
Financial Statement Schedule of CMT Partners which appears on page S-12 of the
AirTouch 1997 Form 10-K. We also consent to the references to us under the
heading "Experts" in the Prospectus constituting part of the Vodafone Form F-4.
We also consent to the incorporation by reference in this Registration Statement
on Form S-8 of our report dated June 28, 1999 relating to the financial
statements of the AirTouch Communications Retirement Plan, which appears in the
Annual Report of the AirTouch Communications Retirement Plan on Form 11-K for
the year ended December 31, 1998.
/s/ PricewaterhouseCoopers
- --------------------------
San Francisco, California
June 29, 1999
7
Exhibit 23(c)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 12,
1998, as it relates to U S WEST NewVector Group, Inc. and Subsidiaries (the
Company), included in AirTouch Communications, Inc.'s Current Report on Form
8-K/A filed April 23, 1998, and to all references to our Firm included in this
registration statement. It should be noted that we have not audited any
financial statements of the Company subsequent to December 31, 1997, or
performed any audit procedures subsequent to the date of our report.
/s/ ARTHUR ANDERSEN LLP
Denver, Colorado
June 25, 1999
8
Exhibit 23(d)
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Vodafone Group Public Limited Company of our report
dated February 16, 1999 relating to the financial statements of Mannesmann
Mobilfunk GmbH, appearing in AirTouch Communications, Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1998.
Dusseldorf, Germany,
June 25, 1999
KPMG Deutsche Treuhand-Gesellschaft
Aktiengesellschaft
Wirtschaftsprufungsgesellschaft
/s/ Aschermann /s/ Haas
Wirtschaftsprufer Wirtschaftsprufer
Aschermann Haas
Wirtschaftsprufer Wirtschaftsprufer
9
Exhibit 23(e)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated January
24, 1997, on the financial statements of Kansas Combined Cellular included in
the Form 10-K of AirTouch Communications, Inc. for the year ended December 31,
1997, and to all references to our firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Kansas City, Missouri,
June 25, 1999
10
Exhibit 24
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
WHEREAS, VODAFONE GROUP PUBLIC LIMITED COMPANY, an English public limited
company (the "Corporation"), proposes to file with the Securities and Exchange
Commission (the "SEC"), under the provisions of the Securities Act of 1933, as
amended, a Registration Statement on Form S-8; and
WHEREAS, each of the undersigned is an officer or director, or both, of the
Corporation as indicated below under his/her name;
NOW, THEREFORE, each of the undersigned hereby constitutes and appoints
Christopher C. Gent, Kenneth J. Hydon and Stephen R. Scott, and each of them,
his/her attorneys for him/her in his/her stead, in his/her capacity as an
officer, director, or both, of the Corporation, to execute and file such
Registration Statement on Form S-8, and any and all amendments, modifications or
supplements thereto, and any exhibits thereto, and granting to each of said
attorneys full power and authority to sign and file any and all other documents
and to perform and do all and every act and thing whatsoever requisite and
necessary to be done as fully, to all intents and purposes, as he/she might or
could do if personally present at the doing thereof, and hereby ratifying and
confirming all that said attorneys may or shall lawfully do, or cause to be
done, by virtue hereof in connection with effecting the filing of the
Registration Statement on Form S-8.
IN WITNESS WHEREOF, the undersigned has hereunto set his/her hand this 24th day
of May, 1999.
Signature Title
/s/ LORD MACLAURIN OF KNEBWORTH, DL Chairman of the Board of Directors
------------------------------------
Lord MacLaurin of Knebworth, DL
/s/ CHRISTOPHER C. GENT Chief Executive
------------------------------------ (Principal Executive Officer)
Christopher C. Gent
/s/ KENNETH J. HYDON Financial Director
------------------------------------ (Principal Financial and Accounting
Kenneth J. Hydon Officer)
/s/ PETER R. BAMFORD Executive Director
------------------------------------
Peter R. Bamford
/s/ JULIAN M. HORN-SMITH Executive Director
------------------------------------
Julian M. Horn-Smith
Non-Executive Director
------------------------------------
Professor Sir Alec Broers
/s/ JOHN GILDERSLEEVE Non-Executive Director
-----------------------------------
John Gildersleeve
/s/ PENELOPE L. HUGHES Non-Executive Director
------------------------------------
Penelope L. Hughes
/s/ SIR DAVID SCHOLEY Non-Executive Director
------------------------------------
Sir David Scholey
11
