Exhibit 10-bb
AT&T INC.
STOCK PURCHASE AND DEFERRAL
PLAN
Adopted November 19, 2004
As amended through November 20,
2008
Article 1 -
Statement of Purpose
The purpose of the Stock Purchase and Deferral
Plan (“Plan”) is to increase stock ownership by, and to
provide savings opportunities to, a select group of management
employees of AT&T Inc. (“AT&T”) and its
Subsidiaries.
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:
(b) lump sum payments in lieu of a
base salary increase; and
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 Share 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 or Matching Contributions in such later Plan
Year.
Business Day. Any day during regular business
hours that AT&T is open for business.
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 Share Deferral
Account pursuant to Section 4.1 (Election to Make Contributions) of
the Plan.
Employer.
AT&T Inc. or any of
its Subsidiaries.
Exercise Price.
The price per share of
Stock purchasable under an Option.
Fair Market Value or FMV. In valuing Stock or
any other item subject to valuation under this Plan, the Committee
may use such index or measurement as the Committee may reasonably
determine from time to time, and such index or measurement shall be
the FMV of such Stock or other item, provided that for purposes of
determining the Exercise Price of Stock Options, the Committee
shall use a value consistent with the requirements of Section
409A. In the absence of such action by the Committee,
FMV means, with respect to Stock, the closing price on the New York
Stock Exchange (“NYSE”) of the Stock on the relevant
date, or if on such date the Stock is not traded on the NYSE, then
the closing price on the immediately preceding date such Stock is
so traded.
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.
Options or Stock
Options. Options to purchase Stock issued
pursuant to this Plan.
Participant.
An Employee or former
Employee who participates in this Plan.
Plan Year.
Each of the following
shall be a Plan Year: the period 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 earlier of the following dates, unless otherwise provided
by the Committee: (a) for Officer Level Employees, the
date the Participant is at least age 55 and has five (5) years of
Net Credited Service; or (b) the date the Participant has attained
one of the following combinations of age and Net Credited
Service:
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
amended from time to time, 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.
Shares or Share Units. An accounting entry representing the
right to receive an equivalent number of shares of
Stock.
Share
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 (1)
a separate Share Deferral Account for Share Units purchased with
Employee Contributions of Base Compensation (excluding Annual
Bonus) and related Matching Share Units and (2) a separate Share
Deferral Account for Share Units purchased with Employee
Contributions of Short Term Incentive Award and/or Annual Bonus and
any related Matching Share Units. Earnings on Share
Units and Matching Share Units shall accrue to the respective Share
Deferral Accounts where they are earned.
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.
Stock. The common stock of AT&T
Inc.
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
shall be deemed to also occur when such Employer incurs a Change in
Control.
Article 3 -
Administration of the Plan
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 determine 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 Authorized
Shares of Stock.
(a) Except as provided below, the number of
shares of Stock which may be distributed pursuant to the Plan,
exclusive of Article 8 - Options, is 21,000,000. The
number of shares of Stock which may be issued pursuant to the
exercise of Stock Options is 34,000,000 (together with an equal
number of Stock Options). Only the actual number of
shares of Stock that are issued (shares issued would not include,
for example, any reduction in shares to be issued as a result of
tax withholding in connection with a distribution of Stock,
exercise of options, or otherwise) shall be counted against the
authorized number of shares of Stock. To the extent an Option
issued under this Plan is canceled, terminates, expires, or lapses
for any reason, such Option shall again be available for issuance
under the Plan. Conversions of Stock awards into Share
Units and their eventual distribution (excluding the effects of any
dividends on such Share Units) shall count only against the limits
of the plans from which they originated and shall not be applied
against the limits in this Plan. To the extent Share
Units are credited through deferrals of Stock or Employee
Contributions where the distribution of which would be deductible
by AT&T under Section 162(m) of the Code without regard to the
size of the distribution, and such deductible Share Units are
available for distribution, such Share Units shall be distributed
first.
(b) In the event the Committee
determines that continuing the issuance of Share Units under the
Plan or Stock Options under the Plan may cause the number of shares
of Stock that are to be distributed under this Plan or the number
of Stock Options (as determined pursuant to subsection (a), above)
to exceed the number of authorized shares of Stock, then in lieu of
distributing Stock, the Committee may provide after such
determination and only with respect to Share Units that have not
theretofore been credited to a Share Deferral Account, that such
Share Units may be settled in cash equal to the value of the Stock
that would otherwise be distributed based on the FMV of the Stock
on the date of the distribution of such Share Unit. The
Committee may also provide after such determination and only with
respect to Stock Options that have not theretofore been issued that
such Stock Options may only be settled on a Net-Settled basis in
cash equal to the value of the Stock that would otherwise be
distributed based on the FMV of the Stock on the day of
exercise.
(c) In the event of a merger, reorganization,
consolidation, recapitalization, separation, liquidation, stock
dividend, stock split, share combination, or other change in the
corporate structure of AT&T affecting the shares of Stock
(including a conversion of Stock into cash or other property), such
adjustment shall be made to the number and class of the shares of
Stock which may be delivered under the Plan (including but not
limited to individual limits), and in the number and class of
and/or price of shares of Stock subject to outstanding Options
granted under the Plan, and/or in the number of outstanding Options
and Share Units, or such other adjustment determined by the
Committee, in each case as may be determined to be appropriate and
equitable by the Committee, in its sole discretion, to prevent
dilution or enlargement of rights.
Subject to the authority of the Committee over
the Plan, AT&T shall appoint a Claims Board to adjudicate
claims brought by or in respect to Participants and their
beneficiaries relating to benefits under the Plan. A
Participant may apply in writing to the Claims Board to make a
claim under this Plan. The Claims Board shall provide
written notice within 90 days to a Participant whose claim
hereunder has been denied, setting forth reasons for such denial or
explaining that an extension of the time for processing the claim
is necessary, written in a manner calculated to be understood by
such person. After receipt of such notice, or expiration
of 90 days without any response from the Claims Board, the
Participant may appeal the decision in writing to the Senior
Executive Vice President of AT&T in charge of Human Resources,
or to the person’s successor, within 90 days, except that if
the Participant is an Insider, as that term is used in the 2006
Incentive Plan, then the Participant's appeal shall be to the
Committee. The Participant shall receive written notice
within 60 days of the resolution of the appeal, and if denied,
setting forth reasons for the denial or explaining that an
extension of time for processing the appeal is necessary, written
in a manner calculated to be understood by such
person. If no notice of the decision on the
Participant’s appeal is furnished within the required time
frame, the appeal will be deemed denied. The Participant shall
receive a full and fair review of the decision denying the claim in
accordance with the requirements of ERISA.
All interpretations, determinations and
decisions of the Claims Board with respect to any claim, including
without limitation the appeal of any claim, shall be made by the
Claims Board, in its sole discretion, based on the Plan and
comments, documents, records, and other information presented to
it, and shall be final, conclusive and binding.
The claims procedures set forth in this section
are intended to comply with United States Department of Labor
Regulation § 2560.503-1 and should be construed in
accordance with such regulation. In no event shall it be
interpreted as expanding the rights of claimants beyond what is
required by United States Department of Labor Regulation
§ 2560.503-1.
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 6% to 30% (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. The Employee Contributions shall be
used to acquire Share Units to be credited to the Share Deferral
Account for that Plan Year.
(2) Up to 95% (in whole percentage
increments or limited to the target amount) of a Short Term
Incentive Award, or from 6% to 30% (in whole percentage increments)
of Annual Bonus, 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 such election is
determined. If because of a promotion or otherwise, the
Employee receives a different type of Award instead of, or in
partial or full replacement for, the type of Award subject to the
Employee’s election for the relevant Plan Year, the election
will apply to the other Award as well, including but not limited to
any individual discretionary award related thereto.
(b) The Committee may permit an
Eligible Employee to make an election to purchase Share Units under
this Plan with compensation other than Base Compensation or Short
Term Incentive Awards on such terms and conditions as such
Committee may permit from time to time, provided that any such
election is made in accordance with Section 409A of the
Code. In no event shall an acquisition of Share Units
pursuant to this paragraph (b) or pursuant to the conversion of a
right to receive Stock into Share Units (such as through a
distribution of Stock under the 2001 Incentive Plan) result in the
crediting of an AT&T Matching Contribution or
Options.
(c) Notwithstanding anything to the contrary in
this Plan, no election shall be effective to the extent it would
permit an Employee Contribution or distribution to be made that is
not in compliance with Section 409A of the Code. To the
extent such election related to Employee Contributions that
complied with such statute and regulations thereunder, that portion
of the election shall remain valid, except as otherwise provided
under this Plan.
(d) To the extent permitted by
Section 409A of the Code, AT&T may refuse or terminate, in
whole or in part, any election to purchase Share Units in the Plan
at any time; provided, however, that only the Committee may take
such action with respect to persons who are Officer Level
Employees.
(e) In the event the Participant
takes a hardship withdrawal pursuant to Treasury Regulation
§1.401(k)-1 from a benefit plan qualified under the Code and
sponsored by an Employer, any election to make Employee
Contributions by such Participant shall be cancelled on a
prospective basis, and the Participant shall not be permitted to
make a new election with respect to Employee Contributions that
would be contributed during the then current and immediately
following calendar year.
4.2 Purchase
of Share Units.
(a) Employee Contributions (as well as any
corresponding AT&T Matching Contributions) shall be made
pursuant to a proper election, only during the Participant’s
lifetime; provided, however, with respect to Employee Contribution
elections made prior to 2007, the Employee must remain an Eligible
Employee while making any such contributions. In the
event of a Change in Control of an Employer, subsequent
compensation from the Employer may not be contributed to the
Plan. The Employer may continue the then current
elections of the participants under a subsequent plan in order to
comply with applicable tax laws.
(b) The number of Share Units
purchased by a Participant during a calendar month shall be found
by dividing the Participant's Employee Contributions during the
month by the FMV of a share of Stock on the last day of such
month.
(c) A contribution to the Plan shall
be made when the compensation – from which the contribution
is to be deducted – is to be paid (“paid,” as
used in this Plan, includes amounts contributed to the Plan that
would have been paid were it not for an election under this Plan),
as determined by the relevant Employer. The
Committee may modify or change this paragraph (c) from time to
time.
4.3
Reinvestment of Dividends.
In the month containing a record date for a cash
dividend on Stock, each Share Deferral Account shall be credited
with that number of Share Units equal to the declared dividend per
share of Stock, multiplied by the number of Share Units held in
such Share Deferral Account as of such record date, and dividing
the product by the FMV of a share of Stock on the last day of such
month.
Article 5 -
AT&T Matching Contributions
(a) Each month
AT&T shall credit the Participant's relevant Share Deferral
Account with the number of “Matching Share
Units” found by taking eighty percent (80%) of the
Participant's Employee Contributions from Base Compensation made to
this Plan and to the Cash Deferral Plan during the month with
respect to the first six percent (6%) of the Participant’s
monthly Match Eligible Compensation (as defined below) a
