Exhibit 10-b
AT&T INC.
CASH DEFERRAL PLAN
Adopted November 19,
2004
As amended through July 29,
2009
Article 1 − Statement of
Purpose
The purpose of the Cash Deferral Plan
(“Plan”) is to provide savings opportunities to a
select group of management employees of AT&T Inc.
(“AT&T”) and its Subsidiaries.
Article 2 − Definitions
For the purpose of this Plan, the following
words and phrases shall have the meanings indicated, unless the
context indicates otherwise:
Annual Bonus. The award designated
the “Annual Bonus” by AT&T (including but not
limited to an award that may be paid in more frequent installments
than annually), together with any individual discretionary award
made in connection therewith, or comparable awards, if any,
determined by AT&T to be used in lieu of these
awards.
Base Compensation. The following
types of cash-based compensation paid by an Employer (but not
including payments made by a non-Employer, such as state disability
payments), before reduction due to any contribution pursuant to
this Plan or reduction pursuant to any deferral plan of an
Employer, including but not limited to a plan that includes a
qualified cash or deferral arrangement under Section 401(k) of the
Code:
(a) base salary;
(b) lump sum payments in lieu of a
base salary increase; and
(c) Annual Bonus.
Payments by an Employer under a disability plan
made in lieu of any compensation described above, shall be deemed
to be a part of the respective form of compensation it replaces for
purposes of this definition. Base Compensation does not
include zone allowances or any other geographical differential and
shall not include payments made in lieu of unused vacation or other
paid days off, and such payments shall not be contributed to this
Plan.
Determinations by AT&T (the Committee with
respect to Officer Level Employees) of the items that make up Base
Compensation shall be final. The Committee may, from
time to time, add or subtract types of compensation to or from the
definition of “Base Compensation” provided,
however, any such addition or subtraction shall be
effective only with respect to the next period in which a
Participant may make an election to establish a Cash Deferral
Account. Base Compensation that was payable in a prior
Plan Year but paid in a later Plan Year shall not be used to
determine Employee Contributions in the later Plan Year.
Business Day. Any day during regular
business hours that AT&T is open for business.
Cash Deferral Account or Account. The
Account or Accounts established annually by an election by a
Participant to make Employee Contributions to the Plan with each
account relating to a Plan Year. For each Plan Year
after 2008, there shall be a separate Cash Deferral Account for
Base Compensation (excluding Annual Bonus) and a separate Cash
Deferral Account for the Short Term Incentive Award and/or Annual
Bonus. Earnings on each of Employee Contributions shall
accrue to the respective Cash Deferral Accounts where they are
earned.
Change in Control. With respect to
AT&T’s direct and indirect ownership of an Employer, a
“Change in the effective control of a Corporation,” as
defined in Treasury Regulation Section
1.409A−3(i)(5)(vi)(A)(1), regardless of whether the Employer
is a corporation or non-corporate entity as permitted by
the regulation, and using “50 percent” in lieu of
“30 percent” in such regulation. A Change in
Control will not apply to AT&T itself.
Chief Executive Officer. The Chief
Executive Officer of AT&T Inc.
Code. References to the Code shall be
to provisions of the Internal Revenue Code of 1986, as amended,
including regulations promulgated thereunder and successor
provisions. Similarly, references to regulations shall
include amendments and successor provisions.
Committee. The Human Resources
Committee of the Board of Directors of AT&T Inc.
Disability. Absence of an Employee
from work with an Employer under the relevant Employer’s
disability plan.
Eligible Employee. An Employee
who:
(a) is a full or part time, salaried Employee of
AT&T or an Employer in which AT&T has a direct or indirect
100% ownership interest and who is on active duty or Leave of
Absence (but only while such Employee is deemed by the Employer to
be an Employee of such Employer);
(b) is, as determined by AT&T, a member of
Employer’s “select group of management or highly
compensated employees” within the meaning of the
Employee Retirement Income Security Act of 1974, as amended, and
regulations thereunder (“ERISA”), which is deemed to
include each Officer Level Employee; and
(c) has an employment status which has been
approved by AT&T to be eligible to participate in this Plan or
is an Officer Level Employee.
Notwithstanding the foregoing, AT&T (the
Committee with respect to Officer Level Employees) may, from time
to time, exclude any Employee or group of Employees from being
deemed an “Eligible Employee” under this
Plan.
In the event a court or other governmental
authority determines that an individual was improperly excluded
from the class of persons who would be permitted to make Employee
Contributions during a particular time for any reason, that
individual shall not be permitted to make such contributions for
purposes of the Plan for the period of time prior to such
determination.
Employee. Any person employed by an
Employer and paid on an Employer’s payroll system, excluding
persons hired for a fixed maximum term and excluding persons who
are neither citizens nor permanent residents of the United States,
all as determined by AT&T. For purposes of this
Plan, a person on Leave of Absence who otherwise would be an
Employee shall be deemed to be an Employee.
Employee Contributions. Amounts
credited to a Cash Deferral Account pursuant to Section 4.1
(Election to Make Contributions) of the Plan.
Employer. AT&T Inc. or any of its
Subsidiaries.
Incentive Award. A cash award paid by
an Employer (and not by a non-Employer, such as state disability
payments) under the Short Term Incentive Plan or any successor
plan, the 2006 Incentive Plan or any successor plan, or any other
award that the Committee specifically permits to be contributed to
a Cash Deferral Account under this Plan (regardless of the purpose
of the award).
Leave of Absence. Where a person is
absent from employment with an Employer on a leave of absence,
military leave, sick leave, or Disability, where the leave is given
in order to prevent a break in the continuity of term of
employment, and permission for such leave is granted (and not
revoked) in conformity with the rules of the Employer that employs
the individual, as adopted from time to time, and the Employee is
reasonably expected to return to service. Except as set
forth below, the leave shall not exceed six (6) months for purposes
of this Plan, and the Employee shall Terminate Employment upon
termination of such leave if the Employee does not return to work
prior to or upon expiration of such six (6) month
period, unless the individual retains a right to reemployment under
law or by contract. A twenty-nine (29) month limitation
shall apply in lieu of such six (6) month limitation if the leave
is due to the Employee being “disabled” (within the
meaning of Treasury Regulation
§1.409A−3(i)(4)). A Leave of Absence shall
not commence or shall be deemed to cease under the Plan where the
Employee has incurred a Termination of Employment.
Officer Level Employee. Any executive
officer of AT&T, as that term is used under the Securities
Exchange Act of 1934, as amended, and any Employee that is an
“officer level” Employee for compensation purposes as
shown on the records of AT&T.
Participant. An Employee or former
Employee who participates in this Plan.
Plan Interest Rate. An annual rate of
interest equal to Moody’s Long-Term Corporate Bond Yield
Average for the September preceding the calendar year during which
the interest rate will apply. The Committee may choose
another method of calculating the Plan Interest Rate, but such
other method may only apply to Cash Deferral Units that
Participants have not yet elected to establish.
Plan Year. Each of the following
shall be a Plan year: the period from January 1, 2005
through January 15, 2006; the period January 16, 2006 through
December 31, 2006; and, for all later Plan Years, it is defined as
the period from January 1 through December 31.
Retirement or Retire. Termination of
Employment on or after the date the Participant has attained one of
the following combinations of age and Net Credited
Service:
Net Credited
Service Age
10 years or
more 65
or older
20 years or
more 55
or older
25 years or
more 50
or older
30 years or
more Any
age
For purposes of this Plan only, Net Credited
Service shall be calculated in the same manner as “Pension
Eligibility Service” under the AT&T Pension Benefit Plan
– Nonbargained Program (“Pension Plan”), as the
same existed on October1, 2008, except that service with an
Employer shall be counted as though the Employer were a
“Participating Company” under the Pension Plan and the
Employee was a participant in the Pension Plan.
Short Term Incentive Award. A cash
award paid by an Employer (and not by a non-Employer, such as state
disability payments) under the Short Term Incentive Plan or any
successor plan, together with any individual discretionary award
made in connection therewith; an award under a similar plan
intended by the Committee to be in lieu of an award under such
Short Term Incentive Plan, including, but not limited to,
Performance Units granted under the 2006 Incentive Plan or any
successor plan. It shall also include any other award
that the Committee designates as a Short Term Incentive Award
specifically for purposes of this Plan (regardless of the purpose
of the award) provided the deferral election is made in accordance
with Section 409A.
Specified Employee. Any Participant
who is a “Key Employee” (as defined in Code Section
416(i) without regard to paragraph (5) thereof), as determined by
AT&T in accordance with its uniform policy with respect to all
arrangements subject to Code Section 409A, based upon the 12-month
period ending on each December 31st (such 12-month period is
referred to below as the “identification
period”). All Participants who are determined to
be Key Employees under Code Section 416(i) (without regard to
paragraph (5) thereof) during the identification period shall be
treated as Key Employees for purposes of the Plan during the
12-month period that begins on the first day of the 4th month
following the close of such identification period.
Subsidiary. Any corporation,
partnership, venture or other entity or business with which
AT&T would be considered a single employer under Sections
414(a) and (c) of the Code, using 50% as the ownership threshold as
provided under Section 409A of the Code.
Termination of Employment. References
herein to “Termination of Employment,” “Terminate
Employment” or a similar reference, shall mean the event
where the Employee has a “separation from service,” as
defined under Section 409A, with all Employers. For
purposes of this Plan, a Termination of Employment with respect to
an Employer also shall be deemed to occur when such Employer incurs
a Change in Control.
Article 3 − Administration of the
Plan
3.1 The
Committee.
Except as delegated by this Plan or by the
Committee, the Committee shall be the administrator of the Plan and
will administer the Plan, interpret, construe and apply its
provisions and all questions of administration, interpretation and
application of the Plan, including, without limitation, questions
and determinations of eligibility entitlement to benefits and
payment of benefits, all in its sole and absolute
discretion. The Committee may further establish, adopt
or revise such rules and regulations and such additional terms and
conditions regarding participation in the Plan as it may deem
necessary or advisable for the administration of the
Plan. References in this Plan to determinations or other
actions by AT&T, herein, shall mean actions authorized by the
Committee, the Chief Executive Officer, the Senior Executive Vice
President of AT&T in charge of Human Resources, or their
respective successors or duly authorized delegates, in each case in
the discretion of such person. All decisions by the
Committee, its delegate or AT&T, as applicable, shall be final
and binding.
3.2 Claims
and Appeals.
(a) Claims. A
person who believes that he or she is being denied a benefit to
which he or she is entitled under this Plan (hereinafter referred
to as a “Claimant”) may file a written request for such
benefit with the Executive Compensation Administration Department,
setting forth his or her claim. The request must be addressed to
the AT&T Executive Compensation Administration Department at
its then principal place of business.
(b) Claim
Decision. Upon receipt of a claim, the AT&T
Executive Compensation Administration Department shall review the
claim and provide the Claimant with a written notice of its
decision within a reasonable period of time, not to exceed ninety
(90) days, after the claim is received. If the AT&T Executive
Compensation Administration Department determines that special
circumstances require an extension of time beyond the initial
ninety (90)-day claim review period, the AT&T Executive
Compensation Administration Department shall notify the Claimant in
writing within the initial ninety (90)-day period and explain the
special circumstances that require the extension and state the date
by which the AT&T Executive Compensation Administration
Department expects to render its decision on the claim. If this
notice is provided, the AT&T Executive Compensation
Administration Department may take up to an additional ninety (90)
days (for a total of one hundred eighty (180) days after receipt of
the claim) to render its decision on the claim.
If the claim is denied by the AT&T Executive
Compensation Administration Department, in whole or in part, the
AT&T Executive Compensation Administration Department shall
provide a written decision using language calculated to be
understood by the Claimant and setting forth: (i) the
specific reason or reasons for such denial; (ii) specific
references to pertinent provisions of this Plan on which such
denial is based; (iii) a description of any additional material or
information necessary for the Claimant to perfect his or her claim
and an explanation of why such material or such information is
necessary; (iv) a description of the Plan’s procedures for
review of denied claims and the steps to be taken if the Claimant
wishes to submit the claim for review; (v) the time limits for
requesting a review of a denied claim under this section and for
conducting the review under this section; and (vi) a statement of
the Claimant’s right to bring a civil action under Section
502(a) of ERISA if the claim is denied following review under this
section.
(c) Request
for Review. Within sixty (60) days after the receipt by the
Claimant of the written decision on the claim provided for in this
section, the Claimant may request in writing that the Committee
review the determination of the AT&T Executive Compensation
Administration Department. Such request must be
addressed to the Committee at the address for giving notice under
this Plan. To assist the Claimant in deciding whether to
request a review of a denied claim or in preparing a request for
review of a denied claim, a Claimant shall be provided, upon
written request to the Committee and free of charge, reasonable
access to, and copies of, all documents, records and other
information relevant to the claim. The Claimant or his
or her duly authorized representative may, but need not, submit a
statement of the issues and comments in writing, as well as other
documents, records or other information relating to the claim for
consideration by the Committee. If the Claimant does not
request a review of the AT&T Executive Compensation
Administration Department’s decision by the Committee within
such sixty (60)-day period, the Claimant shall be barred and
estopped from challenging the determination of the AT&T
Executive Compensation Administration Department.
(d) Review
of Decision. Within sixty (60) days after the Committee’s
receipt of a request for review, the Administrator will review the
decision of the AT&T Executive Compensation Administration
Department. If the Committee determines that special
circumstances require an extension of time beyond the initial sixty
(60)-day review period, the Committee shall notify the Claimant in
writing within the initial sixty (60)-day period and explain the
special circumstances that require the extension and state the date
by which the Committee expects to render its decision on the review
of the claim. If this notice is provided, the Committee
may take up to an additional sixty (60) days (for a total of one
hundred twenty (120) days after receipt of the request for review)
to render its decision on the review of the claim.
During its review of the claim, the Committee
shall:
(1) Take
into account all comments, documents, records, and other
information submitted by the Claimant relating to the claim,
without regard to whether such information was submitted or
considered in the initial review of the claim conducted pursuant to
this section;
(2) Follow
reasonable procedures to verify that its benefit determination is
made in accordance with the applicable Plan documents;
and
(3) Follow
reasonable procedures to ensure that the applicable Plan provisions
are applied to the Participant to whom the claim relates in a
manner consistent with how such provisions have been applied to
other similarly-situated Participants.
After considering all materials presented by the
Claimant, the Committee will render a decision, written in a manner
designed to be understood by the Claimant. If the
Committee denies the claim on review, the written decision will
include (i) the specific reasons for the decision; (ii) specific
references to the pertinent provisions of this Plan on which the
decision is based; (iii) a statement that the Claimant is entitled
to receive, upon request to the Committee and free of charge,
reasonable access to, and copies of, all documents, records, and
other information relevant to the claim; and (iv) a statement of
the Claimant’s right to bring a civil action under Section
502(a) of ERISA.
The Committee shall serve as the final review
committee under the Plan and shall have sole and complete
discretionary authority to administer, interpret, construe and
apply the Plan provisions, and determine all questions of
administration, interpretation, construction, and application of
the Plan, including questions and determinations of eligibility,
entitlement to benefits and the type, form and amount of any
payment of benefits, all in its sole and absolute
discretion. The Committee shall further have the
authority to determine all relevant facts and related issues, and
all documents, records and other information relevant to a claim
conclusively for all parties, and in accordance with the terms of
the documents or instruments governing the Plan. Decisions by the
Committee shall be conclusive and binding on all parties and not
subject to further review.
In any case, a Participant or Beneficiary may
have further rights under ERISA. The Plan provisions
require that Participants or Beneficiary pursue all claim and
appeal rights described in this section before they seek any other
legal recourse regarding claims for benefits.
Article 4 − Contributions
4.1 Election
to Make Contributions.
(a) The Committee shall establish
dates and other conditions for participation in the Plan and making
contributions as it deems appropriate. Except as
otherwise provided by the Committee, each year an Employee who is
an Eligible Employee as of September 30 may thereafter make an
election on or prior to the last Business Day of the immediately
following November (such election shall be cancelled if the
Employee is not an Eligible Employee on the last day such an
election may be made) to contribute on a pre-tax basis, through
payroll deductions, any combination of the following:
(1) From 1% to 50% (in whole
percentage increments) of the Participant’s monthly Base
Compensation, other than Annual Bonus, during the calendar year
(the Plan Year for such contributions) following the calendar year
of such election. Employees who are below the level of
Senior Manager, as shown on the records of AT&T at the time of
the election, may contribute no more than 25% or such other amount
as determined by AT&T.
(2) Up to 95% (in whole percentage
increments) of a Short Term Incentive Award, or up to 50% (in whole
percentage increments) of Annual Bonus (25% for Employees who are
below the level of Senior Manager), in each case such contributions
shall be made during the second calendar year (which is the Plan
Year for such contributions) following the year of such election,
except that in 2008 a separate election may be made with respect to
contributions to be made in 2009. An Employee may make
such an election with respect to the type of Award (Short Term
Incentive Award or Annual Bonus) that the Employee is under as of
the time the Employee’s eligibility to make su
