AMENDED AND RESTATED EMPLOYMENT AGREEMENT made as of March 18,
1998 effective as of January 1, 1998 (the "Effective Date"), between TIME WARNER
INC., a Delaware corporation (the "Company"), and Xxxxx X. Xxxx (the
"Executive").
The Executive is currently employed by the Company pursuant to
an Employment Agreement dated as of May 17, 1995 (the "Prior Agreement"). The
Company wishes to restate the Prior Agreement and secure the services of the
Executive on a full-time basis for the period to and including December 31, 1999
(the "Term Date") and thereafter for a two-year advisory period on and subject
to the terms and conditions set forth in this Agreement, and the Executive is
willing for the Prior Agreement to be so restated and to provide such services
on and subject to the terms and conditions set forth in this Agreement.
The parties therefore agree as follows:
1. Term of Employment. The Executive's "term of employment",
as this phrase is used throughout this Agreement, shall be for the period
beginning on the Effective Date and ending on the Term Date, subject, however,
to the terms and conditions set forth in this Agreement. Notwithstanding the
foregoing or anything to the contrary contained in this Agreement, the "term of
employment", as used in Section 3.6, 3.7, 3.8 and 8 through 12 shall mean the
period ending at the end of the Advisory Period (as defined in Section 13).
2. Employment. The Company shall employ the Executive, and the
Executive shall serve, as Executive Vice President, Secretary and General
Counsel of the Company during the term of employment, and the Executive shall
have the authority, functions, duties, powers and responsibilities normally
associated with such position and as the Board of Directors, the Chief Executive
Officer or the President of the Company may from time to time delegate to the
Executive in addition thereto. The Executive shall, subject to his election as
such from time to time and without additional compensation, serve during the
term of employment in such additional offices of comparable or greater stature
and responsibility in the Company and its subsidiaries and as a director and as
a member of any committee of the Board of Directors of the Company and its
subsidiaries, to which he may be elected from time to time. During the term of
employment, (i) the Executive's services shall be rendered on a substantially
full-time, exclusive basis and he will apply on a full-time basis all of his
skill and experience to the performance of his duties in such employment, (ii)
the Executive shall report only to the Company's Board of Directors, its Chief
Executive Officer, its President or its Chief Operating Officer, (iii) the
Executive shall have no other
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employment and, without the prior written consent of the Chief Executive Officer
or the President of the Company, no outside business activities which require
the devotion of substantial amounts of the Executive's time and (iv) the place
for the performance of the Executive's services shall be the principal executive
offices of the Company which shall be in the New York City metropolitan area,
subject to such reasonable travel as may be appropriate or required in the
performance of the Executive's duties in the business of the Company. The
foregoing shall be subject to the Company's written policies, as in effect from
time to time, regarding vacations, holidays, illness and the like and shall not
prevent the Executive from devoting such time to his personal affairs as shall
not interfere with the performance of his duties hereunder, provided that the
Executive complies with the provisions of Sections 9 and 10 and any of the
Company's written policies on conflicts of interest and service as a director of
another corporation, partnership, trust or other entity ("Entity").
3. Compensation.
3.1 Base Salary. The Company shall pay or cause to be
paid to the Executive a base salary of not less than $550,000 per annum during
the term of employment (the "Base Salary"). The Company may increase, but not
decrease, the Base Salary at any time and from time to time during the term of
employment and upon each such increase the term "Base Salary" shall mean such
increased amount. Base Salary shall be payable in monthly or more frequent
installments in accordance with the Company's then current practices and
policies with respect to senior executives. For the purposes of this Agreement
"senior executives" shall mean executives of the Company at the same executive
level as the Executive.
3.2 Bonus. In addition to Base Salary, the Executive may
be entitled to receive during the term of employment an annual cash bonus based
on the performance of the Company and of the Executive. Bonuses for senior
executives may be determined by the Compensation Committee of the Company's
Board of Directors or by the Chief Executive Officer or the President of the
Company. Such determination with respect to the amount, if any, of annual
bonuses to be paid to the Executive under this Agreement shall be final and
conclusive except as specifically provided otherwise in this Agreement. Payments
of any bonus compensation under this Section 3.2 shall be made in accordance
with the Company's then current practices and policies with respect to senior
executives, but in no event later than 90 days after the end of the period for
which the bonus is payable.
3.3 Deferred Compensation. In addition to Base Salary and
bonus as set forth in Sections 3.1 and 3.2, the Executive shall be credited with
a defined contribution which shall be determined and paid out on a deferred
basis ("deferred compensation") as
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provided in this Agreement, including Annex A hereto. During the term of
employment, the Company shall pay to the trustee (the "Trustee") of a Company
grantor trust (the "Rabbi Trust") for credit to a special account maintained on
the books of the Rabbi Trust for the Executive (the "Trust Account"), monthly,
an amount equal to 50% of one-twelfth of the Executive's then current Base
Salary. If a lump sum payment is made pursuant to Section 4.2.2 or 4.2.3, the
Company shall pay to the Trustee for credit to the Trust Account at the time of
such payment an amount equal to 50% of the Base Salary portion of such lump sum
payment. The Trust Account shall be maintained by the Trustee in accordance with
the terms of this Agreement, including Annex A, and the trust agreement (the
"Trust Agreement") establishing the Rabbi Trust (which Trust Agreement shall in
all respects be in furtherance of, and not inconsistent with, the terms of this
Agreement, including Annex A), until the full amount which the Executive is
entitled to receive therefrom has been paid in full. Effective April 1, 1998,
the Company shall establish and maintain the Rabbi Trust as a grantor trust
within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of
the Code and shall pay all fees and expenses of the Trustee and shall enforce
the provisions of the Trust Agreement for the benefit of the Executive. Prior to
April 1, 1998, the Company shall credit the Executive with deferred compensation
in accordance with the provisions of Section 3.3 of the Prior Agreement.
3.4 Deferred Bonus. In addition to any other deferred
bonus plan in which the Executive may be entitled to participate, the Executive
may elect by written notice delivered to the Company at least 15 days prior to
the commencement of any calendar year during the term of employment during which
an annual cash bonus would otherwise accrue or to which it would relate, to
defer payment of and to have the Company credit to the Trust Account all or any
portion of the Executive's bonus for such year. Any such election shall only
apply to the calendar year during the term of employment with respect to which
such election is made and a new election shall be required with respect to each
successive calendar year during the term of employment.
3.5 Prior Account. The parties confirm that the Company
has maintained a deferred compensation account (the "Prior Account") for the
Executive in accordance with the Prior Agreement. The Prior Account shall be
promptly transferred to, and shall for all purposes be deemed part of, the Trust
Account and shall be maintained by the Trustee in accordance with this Agreement
and the Trust Agreement. All prior credits to the Prior Account shall be deemed
to be credits made under this Agreement, all "Account Retained Income"
thereunder shall be deemed to be Account Retained Income under this Agreement
and all increases or decreases to the Prior Account as a result of income,
gains, losses and other changes shall be deemed to have been made under this
Agreement.
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3.6 Reimbursement. The Company shall reasonably promptly
pay or reimburse the Executive for all reasonable travel, entertainment and
other business expenses actually incurred or paid by the Executive during the
term of employment in the performance of his services under this Agreement
provided such expenses are incurred or paid in accordance with the Company's
then current written practices and policies with respect to senior executives of
the Company and upon presentation of expense statements or vouchers or such
other supporting information as the Company may customarily require of its
senior executives.
3.7 No Anticipatory Assignments. Except as specifically
contemplated in Section 12.8 or under the life insurance policies and benefit
plans referred to in Sections 7 and 8, respectively, neither the Executive, his
legal representative nor any beneficiary designated by him shall have any right,
without the prior written consent of the Company, to assign, transfer, pledge,
hypothecate, anticipate or commute to any person or Entity any payment due in
the future pursuant to any provision of this Agreement, and any attempt to do so
shall be void and shall not be recognized by the Company.
3.8 Indemnification. The Executive shall be entitled
throughout the term of employment in his capacity as an officer or director of
the Company or any of its subsidiaries or an officer or member of the Board of
Representatives or other governing body of any partnership or joint venture in
which the Company has an equity interest (and after the term of employment, to
the extent relating to his service as such officer, director or member) to the
benefit of the indemnification provisions contained on the date hereof in the
Certificate of Incorporation and By-Laws of the Company (not including any
amendments or additions after the date of execution hereof that limit or narrow,
but including any that add to or broaden, the protection afforded to the
Executive by those provisions), to the extent not prohibited by applicable law
at the time of the assertion of any liability against the Executive.
4. Termination.
4.1 Termination for Cause. The Company may terminate the
term of employment, the Advisory Period and all of the Company's obligations
under this Agreement, other than its obligations set forth below in this Section
4.1, for "cause" but only if the term of employment and Advisory Period have has
not previously been terminated pursuant to any other provision of this
Agreement. Termination by the Company for "cause" shall mean termination by
action of the Company's Board of Directors, or a committee thereof, because of
the Executive's conviction (treating a nolo contendere plea as a conviction) of
a felony (whether or not any right to appeal has been or may be exercised) or
willful refusal without proper cause to perform his obligations under this
Agreement or because of the Executive's
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breach of any of the covenants provided for in Section 9. Such termination shall
be effected by written notice thereof delivered by the Company to the Executive
and shall be effective as of the date of such notice; provided, however, that if
(i) such termination is because of the Executive's willful refusal without
proper cause to perform any one or more of his obligations under this Agreement,
(ii) such notice is the first such notice of termination for any reason
delivered by the Company to the Executive under this Section 4.1, and (iii)
within 15 days following the date of such notice the Executive shall cease his
refusal and shall use his best efforts to perform such obligations, the
termination shall not be effective.
In the event of such termination by the Company for
cause, without prejudice to any other rights or remedies that the Company may
have at law or in equity, the Company shall have no further obligations to the
Executive other than (i) to pay Base Salary and make credits of deferred
compensation to the Trust Account, or to pay Advisory Period compensation, as
the case may be, accrued through the effective date of termination, (ii) to pay
any annual bonus pursuant to Section 3.2 to the Executive in respect of the
calendar year prior to the calendar year in which such termination is effective,
in the event such annual bonus has been determined but not yet paid as of the
date of such termination and (iii) with respect to any rights the Executive has
in respect of amounts credited to the Trust Account or pursuant to any insurance
or other benefit plans or arrangements of the Company maintained for the benefit
of its senior executives. The Executive hereby disclaims any right to receive a
pro rata portion of the Executive's annual bonus with respect to the year in
which such termination occurs. The fourth sentence of Section 3.3 and the
provisions of Sections 3.8, 8.2, 8.3 and 9 through 12 and Annex A shall survive
any termination pursuant to this Section 4.1.
4.2 Termination by Executive for Material Breach by the
Company and Termination by the Company Without Cause. Unless previously
terminated pursuant to any other provision of this Agreement and unless a
Disability Period shall be in effect, the Executive shall have the right,
exercisable by written notice to the Company, to terminate the term of
employment and the Advisory Period effective 15 days after the giving of such
notice, if, at the time of the giving of such notice, the Company shall be in
material breach of its obligations under this Agreement; provided, however,
that, with the exception of clause (i) below, this Agreement shall not so
terminate if such notice is the first such notice of termination delivered by
the Executive pursuant to this Section 4.2 and within such 15-day period the
Company shall have cured all such material breaches of its obligations under
this Agreement. A material breach by the Company shall include, but not be
limited to, (i) the Company failing to cause the Executive to retain the title
specified in the first sentence of Section 2 or a more senior title; (ii) the
Executive being required to report to persons other than those specified in
Section 2; (iii) the Company violating the provisions of Section 2 with
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respect to the Executive's authority, functions, duties, powers or
responsibilities (whether or not accompanied by a change in title); (iv) the
Company requiring the Executive's primary services to be rendered at a place
other than at the Company's principal executive offices in the New York City
metropolitan area; and (v) the Company failing to cause the successor to all or
substantially all of the business and assets of the Company expressly to assume
the obligations of the Company under this Agreement.
The Company shall have the right, exercisable by written
notice to the Executive, to terminate the Executive's employment under this
Agreement without cause, effective at least 30 days after the giving of such
notice, which notice shall specify the effective date of such termination.
In the event of a termination pursuant to this Section
4.2, the Executive shall be entitled to elect by delivery of written notice to
the Company, within 30 days after written notice of such termination is given
pursuant to this Section 4.2, either (A) to cease being an employee of the
Company and receive a lump sum payment as provided in Section 4.2.2 or (B) to
remain an employee of the Company as provided in Section 4.2.3. After the
Executive makes such election, the following provisions shall apply:
4.2.1 Regardless of the election made by the
Executive pursuant to the preceding paragraph, (i) after the effective date of
such termination, the Executive shall have no further obligations or liabilities
to the Company whatsoever, except that Sections 4.4 and 4.5 and Sections 6
through 12 shall survive such termination, and (ii) the Executive shall be
entitled to receive any earned and unpaid Base Salary and deferred compensation
or Advisory Period compensation, as the case may be, accrued through the
effective date of such termination and if such termination occurs during the
term of employment, a pro rata portion of the Executive's annual bonus for the
year in which such termination occurs through the date of such termination based
on the average of the regular annual bonus amounts (excluding the amount of any
special or spot bonuses) in respect of the two calendar years during the most
recent five calendar years for which the regular annual bonus received by the
Executive from the Company was the greatest, all or a portion of which pro rata
bonus will be credited to the Trust Account if the Executive previously elected
to defer all or any portion of the Executive's bonus for such year pursuant to
Section 3.4.
4.2.2 In the event the Executive shall make the
election provided in clause (A) above, the Company shall pay to the Executive as
damages in a lump sum within 30 days thereafter (provided that if the Executive
was named in the compensation table in the Company's then most recent proxy
statement, such lump sum payment shall be made within 30 days after the end of
the calendar year in which such notice of termination is
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given) an amount (discounted as provided in the immediately following sentence)
equal to all amounts otherwise payable pursuant to Sections 3.1, 3.2, 3.3 and 13
for the year in which such termination occurs and for each subsequent year
through the end of the Advisory Period, assuming that annual bonuses are
required to be paid for each such year during the term of employment, with each
such annual bonus being equal to the average of the regular annual bonus amounts
(excluding the amount of any special or spot bonuses) in respect of the two
calendar years during the most recent five calendar years for which the regular
annual bonus received by the Executive from the Company was the greatest
(assuming that no portion of such bonus is deferred pursuant to Section 3.4).
Any payments required to be made to the Executive pursuant to this Section 4.2.2
upon such termination in respect of Sections 3.1, 3.2 and 13 and the credit to
the Trust Account provided for in the third sentence of Section 3.3 shall be
discounted to present value as of the date of payment from the times at which
such amounts would have become payable absent any such termination at an annual
discount rate for the relevant periods equal to 120% of the "applicable Federal
rate" (within the meaning of Section 1274(d) of the Internal Revenue Code of
1986 (the "Code")), in effect on the date of such termination, compounded
semi-annually, the use of which rate is hereby elected by the parties hereto
pursuant to Treas. Reg. ss.1.280G-1 Q/A 32 (provided that, in the event such
election is not permitted under Section 280G of the Code and the regulations
thereunder, such other rate determined as of such other date as is applicable
for determining present value under Section 280G of the Code shall be used).
4.2.3 In the event the Executive shall make the
election provided in clause (B) above, the term of employment and the Advisory
Period shall continue and the Executive shall remain an employee of the Company
through the end of the Advisory Period and during such period the Executive
shall be entitled to receive, whether or not he becomes disabled during such
period but subject to Section 6, (a) Base Salary at an annual rate equal to his
Base Salary in effect immediately prior to the notice of termination as provided
in Section 3.1, (b) an annual bonus (all or a portion of which may be deferred
by the Executive pursuant to Section 3.4) in respect of each calendar year or
portion thereof (in which case a pro rata portion of such annual bonus will be
payable) during the term of employment equal to the average of the regular
annual bonus amounts (excluding the amount of any special or spot bonuses) in
respect of the two calendar years during the most recent five calendar years for
which the regular annual bonus received by the Executive from the Company was
the greatest, (c) deferred compensation as provided in Section 3.3 and (d)
Advisory Period compensation as provided in Section 13. Except as provided in
the next sentence, if the Executive accepts full-time employment with any other
Entity during such period or notifies the Company in writing of his intention to
terminate his status as an employee during such period, then the term of
employment and the Advisory Period shall cease and the Executive shall cease to
be an employee of the Company effective upon the
8
commencement of such employment or the effective date of such termination as
specified by the Executive in such notice, whichever is applicable, and the
Executive shall be entitled to receive as severance in a lump sum within 30 days
after such commencement or such effective date (provided that if the Executive
was named in the compensation table in the Company's then most recent proxy
statement, such lump sum payment shall be made within 30 days after the end of
the calendar year in which such commencement or effective date occurred) an
amount (discounted as provided in the second sentence of Section 4.2.2, except
that the "applicable Federal rate" shall be determined as of the date the
Executive shall cease to be an employee of the Company) for the balance of the
Base Salary, deferred compensation (which shall be credited to the Trust Account
as provided in the third sentence of Section 3.3), regular annual bonuses
(assuming no deferral pursuant to Section 3.4) and Advisory Period compensation
the Executive would have been entitled to receive pursuant to this Section 4.2.3
had the Executive remained on the Company's payroll until the end of the
Advisory Period. Notwithstanding the preceding sentence, if the Executive
accepts employment with any charitable or not-for-profit Entity, or any
family-owned corporation, trust or partnership, then the Executive shall be
entitled to remain an employee of the Company and receive the payments as
provided in the first sentence of this Section 4.2.3; and if the Executive
accepts full-time employment with any affiliate of the Company, then the
payments provided for in this Section 4.2.3 and the term of employment and the
Advisory Period shall cease and the Executive shall not be entitled to any such
lump sum payment. For purposes of this Agreement, the term "affiliate" shall
mean any Entity which, directly or indirectly, controls, is controlled by, or is
under common control with, the Company.
4.3 Office Facilities. In the event the Executive shall
make the election provided in clause (B) of Section 4.2, then for the period
beginning on the day the Executive makes such election and ending one year
thereafter, the Company shall, without charge to the Executive, make available
to the Executive office space at the Executive's principal job location
immediately prior to his termination of employment, or other location reasonably
close to such location, together with secretarial services, office facilities,
services and furnishings, in each case reasonably appropriate to an employee of
the Executive's position and responsibilities prior to such termination of
employment but taking into account the Executive's reduced need for such office
space, secretarial services and office facilities, services and furnishings as a
result of the Executive no longer being a full-time employee.
4.4 Release. In partial consideration for the Company's
obligation to make the payments described in Section 4.2, the Executive shall
execute and deliver to the Company a release in substantially the form attached
hereto as Annex B. The Company shall deliver such release to the Executive
within 10 days after the written notice of termination is delivered pursuant to
Section 4.2 and the Executive shall execute and deliver such release to
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the Company within 21 days after receipt thereof. If the Executive shall fail to
execute and deliver such release to the Company within such 21 day period, or if
the Executive shall revoke his consent to such release as provided therein, the
Executive's term of employment shall terminate as provided in Section 4.2, but
the Executive shall receive, in lieu of the payments provided for in said
Section 4.2, a lump sum cash payment in an amount determined in accordance with
the written personnel policies of the Company relating to notice and severance
then generally applicable to employees with length of service and compensation
level of the Executive.
4.5 Mitigation. In the event of termination of the term
of employment and Advisory Period pursuant to Section 4.2, the Executive shall
not be required to seek other employment in order to mitigate his damages
hereunder; provided, however, that, notwithstanding the foregoing, if there are
any damages hereunder by reason of the events of termination described above
which are "contingent on a change" (within the meaning of Section
280G(b)(2)(A)(i) of the Code), the Executive shall be required to mitigate such
damages hereunder, including any such damages theretofore paid, but not in
excess of the extent, if any, necessary to prevent the Company from losing any
tax deductions to which it otherwise would be entitled in connection with such
damages if they were not so "contingent on a change". In addition to any
obligation under the preceding sentence, and without dupli cation of any amounts
required to be paid to the Company thereunder, if any such termination occurs
and the Executive, whether or not required to mitigate his damages under the
preceding sentence, thereafter obtains other employment with any Entity other
than a not-for-profit Entity, the total cash salary and bonus received in
connection with such other employment, whether paid to him or deferred for his
benefit, for any services through December 31, 1999 and for services as a
full-time employee from January 1, 2000 through December 31, 2001, up to an
amount equal to (x) the discounted lump sum payment received by or for the
account of the Executive with respect to Base Salary, annual bonus and deferred
compensation under Section 3 and Advisory Period compensation under Section 13
for such period, minus (y) the amount of severance the Executive would have
received in accordance with the personnel policies of the Company if the
Executive had been job eliminated on the date of such termination, provided that
if such termination occurs during the Advisory Period, the amount determined
pursuant to this clause (y) shall be zero, shall reduce, pro tanto, any amount
which the Company would otherwise be required to pay to the Executive as a
result of such termination and, to the extent amounts have theretofore been paid
to him as a result of such termination, such cash salary and bonus shall be paid
over to the Company as received with respect to such period, but the provisions
of this sentence shall not apply to any type of equity interest, bonus unit,
phantom or restricted stock, stock option, stock appreciation right or similar
benefit received as a result of such other employment. With respect to the
preceding sentences, any payments or rights to which the Executive is entitled
by reason of the
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termination of the term of employment and the Advisory Period by the Executive
or the Company pursuant to Section 4.2 shall be considered as damages hereunder.
With respect to the second preceding sentence, the Executive shall in no event
be required to pay the Company with respect to any calendar year more than the
discounted amount received by him or credited to the Trust Account with respect
to Base Salary, annual bonus and deferred compensation under Section 3 and
Advisory Period compensation under Section 13 for such year. Any obligation of
the Executive to mitigate his damages pursuant to this Section 4.5 shall not be
a defense or offset to the Company's obligation to pay the Executive in full the
amounts provided in Section 4.2.2 or 4.2.3, as the case may be, at the time
provided therein or the timely and full performance of any of the Company's
other obligations under this Agreement.
4.6 Payments. So long as the Executive remains on the
payroll of the Company or any subsidiary of the Company, payments of salary,
deferred compensation and bonus required to be made pursuant to Section 4.2
shall be made at the same times as such payments are made to senior executives
of the Company or such subsidiary.
5. Disability. If during the term of employment and prior to
any termination of this Agreement under Section 4.2, the Executive shall become
physically or mentally disabled, whether totally or partially, so that he is
prevented from performing his usual duties for a period of six consecutive
months, or for shorter periods aggregating six months in any twelve-month
period, the Company shall, nevertheless, continue to pay the Executive his full
compensation and continue to credit the Trust Account, when otherwise due, as
provided in Section 3 and Annex A, through the last day of the sixth consecutive
month of disability or the date on which the shorter periods of disability shall
have equaled a total of six months in any twelve-month period (such last day or
date being referred to herein as the "Disability Date"). If the Executive has
not resumed his usual duties on or prior to the Disability Date, the Company
shall pay the Executive a pro rata bonus for the year in which the Disability
Date occurs and shall pay the Executive disability benefits for the period
ending on the Term Date (the "Disability Period"), in an annual amount equal to
75% of (a) the Executive's Base Salary at the time the Executive becomes
disabled (and this reduced amount shall also be deemed to be the Base Salary for
purposes of determining the amounts to be credited to his Trust Account pursuant
to Section 3.3 and Annex A as further disability benefits) and (b) the average
of the regular annual bonuses (excluding the amount of any special or spot
bonuses) in respect of the two calendar years during the most recent five
calendar years for which the annual bonus received by the Executive from the
Company was the greatest (all or a portion of which may be deferred by the
Executive pursuant to Section 3.4). If during the Disability Period the
Executive shall fully recover from his disability, the Company shall have the
right (exercisable within 60 days after notice from the Executive of such
recovery), but not the
11
obligation, to restore the Executive to full-time service at full compensation.
If the Company elects to restore the Executive to full-time service, then this
Agreement shall continue in full force and effect in all respects and the Term
Date and the Advisory Period shall not be extended by virtue of the occurrence
of the Disability Period. If the Company elects not to restore the Executive to
full-time service, the Executive shall be entitled to obtain other employment,
subject, however, to the following: (i) the Executive shall be obligated to
perform advisory services during any balance of the Disability Period; and (ii)
the provisions of Sections 9 and 10 shall continue to apply to the Executive
during the Disability Period. The advisory services referred to in clause (i) of
the immediately preceding sentence shall consist of rendering advice concerning
the business, affairs and management of the Company as requested by the Chief
Executive Officer or the President of the Company but the Executive shall not be
required to devote more than five days (up to eight hours per day) each month to
such services, which shall be performed at a time and place mutually convenient
to both parties. Any income from such other employment shall not be applied to
reduce the Company's obligations under this Agreement. The Company shall be
entitled to deduct from all payments to be made to the Executive during the
Disability Period pursuant to this Section 5 an amount equal to all disability
payments received by the Executive during the Disability Period from Workmen's
Compensation, Social Security and disability insurance policies maintained by
the Company; provided, however, that for so long as, and to the extent that,
proceeds paid to the Executive from such disability insurance policies are not
includible in his income for federal income tax purposes, the Company's
deduction with respect to such payments shall be equal to the product of (i)
such payments and (ii) a fraction, the numerator of which is one and the
denominator of which is one less the maximum marginal rate of federal income
taxes applicable to individuals at the time of receipt of such payments. All
payments made under this Section 5 after the Disability Date are intended to be
disability payments, regardless of the manner in which they are computed. At the
end of a Disability Period or if a Disability Date occurs during the Advisory
Period, the Company shall pay to the Executive the full amount of the Advisory
Period compensation in accordance with Section 13 without regard to the
preceding two sentences. Except as otherwise provided in this Section 5, the
during the Disability Period and the Advisory Period, the Executive shall be
entitled to all of the rights and benefits provided for in this Agreement,
except that Section 4.2 shall not apply during the Disability Period and the
Advisory Period and the term of employment and the Advisory Period shall end and
the Executive shall cease to be an employee of the Company at the end of the
Advisory Period and shall not be entitled to notice and severance or to receive
or be paid for any accrued vacation time or unused sabbatical.
6. Death. Upon the death of the Executive during the term of
employment, this Agreement and all obligations of the Company to make any
payments under Sections 3, 4 and 5 shall terminate except that (i) the
Executive's estate (or a designated beneficiary) shall
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be entitled to receive, to the extent being received by the Executive
immediately prior to his death, Base Salary and deferred compensation or, if
applicable, Advisory Period compensation, to the last day of the month in which
his death occurs and bonus compensation (at the time bonuses are normally paid)
based on the average of the regular annual bonuses (excluding the amount of any
special or spot bonuses) in respect of the two calendar years during the most
recent five calendar years for which the annual bonus received by the Executive
from the Company was the greatest, but prorated according to the number of whole
or partial months the Executive was employed by the Company in such calendar
year, and (ii) the Trust Account shall be liquidated and revalued as provided in
Annex A as of the date of the Executive's death (except that all taxes shall be
computed and charged to the Trust Account as of such date of death to the extent
not theretofore so computed and charged) and the entire balance thereof (plus
any amount due under the last paragraph of Section A.6 of Annex A) shall be paid
to the Executive's estate (or a designated beneficiary) in a single payment not
later than 75 days following such date of death.
7. Life Insurance. The Company shall maintain $4,000,000 face
amount of split ownership life insurance on the life of the Executive, to be
owned by the Executive or the trustees of a trust for the benefit of the
Executive's spouse and/or descendants. Until the death of the Executive, and
irrespective of any termination of this Agreement except pursuant to Section
4.1, the Company shall pay all premiums on such policy and shall maintain such
policy (without reduction of the face amount of the coverage). The Company shall
not borrow from the cash value of such policy. At the death of the Executive, or
on the earlier surrender of such policy by the owner, the Executive agrees that
the owner of the policy shall promptly pay to the Company an amount equal to the
premiums on such policy paid by the Company (net of (i) tax benefits, if any, to
the Company in respect of payments of such premiums, (ii) any amounts payable by
the Company which had been paid by or on behalf of the Executive with respect to
such insurance, (iii) dividends received by the Company in respect of such
premiums, but only to the extent such dividends are not used to purchase
additional insurance on the life of the Executive, and (iv) any unpaid
borrowings by the Company on the policy), whether before, during or after the
term of this Agreement. The owner of the policy from time to time shall execute,
deliver and maintain a customary split dollar insurance and collateral
assignment form, assigning to the Company the proceeds of such policy but only
to the extent necessary to secure the reimbursement obligation contained in the
preceding sentence. In addition to the foregoing, during the Executive's
employment with the Company, the Company shall (x) provide the Executive with
$50,000 of group life insurance and (y) pay to the Executive annually an amount
equal to the premium that the Executive would have to pay to obtain life
insurance under the Group Universal Life ("GUL") insurance program made
available by the Company in an amount equal to (i) twice the Executive's Base
Salary minus (ii) $50,000. The Executive shall be under no obligation to
13
use the payments made by the Company pursuant to the preceding sentence to
purchase GUL insurance or to purchase any other life insurance. If the Company
discontinues its GUL insurance program, the Company shall nevertheless make the
payments required by this Section 7 as if such program were still in effect. The
payments made to the Executive pursuant to this Section 7 shall not be
considered as "salary" or "compensation" or "bonus" in determining the amount of
any payment under any pension, retirement, profit-sharing or other benefit plan
of the Company or any subsidiary of the Company.
8. Other Benefits.
8.1 General Availability. To the extent that (a) the
Executive is eligible under the general provisions thereof and (b) the Company
maintains such plan or program for the benefit of its senior executives, during
the term of employment and the Advisory Period and so long as the Executive is
an employee of the Company, the Executive shall be eligible to participate in
any pension, profit-sharing, stock option or similar plan or program and in any
group life insurance (to the extent set forth in Section 7), hospitalization,
medical, dental, accident, disability or similar plan or program of the Company
now existing or established hereafter. In addition, so long as the Executive is
an employee of the Company during the term of employment (but not the Advisory
Period) the Executive shall be entitled to receive other benefits generally
available to all senior executives of the Company to the extent the Executive is
eligible under the general provisions thereof, including, without limitation, to
the extent maintained in effect by the Company for its senior executives, an
automobile allowance and financial services.
8.2 Benefits After a Termination or Disability. During
the period the Executive remains on the payroll of the Company after a
termination pursuant to Section 4.2 and during the Disability Period and the
Advisory Period, the Executive shall continue to be eligible to participate in
the benefit plans and to receive the benefits required to be provided to the
Executive under Sections 7 and 8.1 to the extent such benefits are maintained in
effect by the Company for its senior executives; provided, however, the
Executive shall not be entitled to any additional awards or grants under any
stock option, restricted stock or other stock based incentive plan. The
Executive shall continue to be an employee of the Company for purposes of any
stock option and restricted shares agreements and any other incentive plan
awards during the term of employment and the Advisory Period and until such time
as the Executive shall leave the payroll of the Company. At the time the
Executive's term of employment and Advisory Period terminates and he leaves the
payroll of the Company pursuant to the provisions of Section 4.1, 4.2, 5 or 6,
the Executive's rights to benefits and payments under any benefit plans or any
insurance or other death benefit plans or arrangements of the Company or under
any stock option, restricted stock, stock appreciation right, bonus unit,
14
management incentive or other plan of the Company shall be determined, subject
to the other terms and provisions of this Agreement, in accordance with the
terms and provisions of such plans and any agreements under which such stock
options, restricted stock or other awards were granted; provided, however, that
notwithstanding the foregoing or any more restrictive provisions of any such
plan or agreement (but without affecting any less restrictive or more favorable
to the Executive provisions of any such plan or agreement), if the Executive
leaves the payroll of the Company as a result of a termination pursuant to
Section 4.2, then (i) all stock options granted to the Executive by the Company
shall vest and become immediately exercisable at the time the Executive shall
leave the payroll of the Company pursuant to Section 4.2, (ii) all stock options
granted to the Executive by the Company shall remain exercisable (but not beyond
the term thereof) during the remainder of the term of employment and the
Advisory Period and for a period of three months thereafter or such longer
period as shall be specified in any applicable stock option agreement and (iii)
the Company shall not be permitted to determine that the Executive's employment
was terminated for "unsatisfactory performance" within the meaning of any stock
option agreement between the Company and the Executive.
8.3 Payments in Lieu of Other Benefits. In the event the
term of employment and the Executive's employment with the Company is terminated
pursuant to Sections 4.1, 4.2, 5 or 6 (and regardless of whether the Executive
elects clause (A) or (B) as provided in Section 4.2), the Executive shall not be
entitled to notice and severance or to be paid for any accrued vacation time or
unused sabbatical, the payments provided for in such Sections being in lieu
thereof.
9. Protection of Confidential Information; Non-Compete. The
provisions of Section 9.2 shall continue to apply through the latest of (i) the
end of the Advisory Period (but not later than three years after the effective
date of any termination of this Agreement pursuant to Section 4.2) or (ii) the
date the Executive ceases to be an employee of the Company and leaves the
payroll of the Company for any reason. The provisions of Sections 9.1 and 9.3
shall continue to apply until three years after the latest of the events
described in the preceding sentence.
9.1 Confidentiality Covenant. The Executive acknowledges
that his employment by the Company (which, for purposes of this Section 9 shall
mean Time Warner Inc. and its affiliates) will, throughout the term of
employment and the Advisory Period, bring him into close contact with many
confidential affairs of the Company, including information about costs, profits,
markets, sales, products, key personnel, pricing policies, operational methods,
technical processes and other business affairs and methods and other information
not readily available to the public, and plans for future development. The
Executive further
15
acknowledges that the services to be performed under this Agreement are of a
special, unique, unusual, extraordinary and intellectual character. The
Executive further acknowledges that the business of the Company is international
in scope, that its products are marketed throughout the world, that the Company
competes in nearly all of its business activities with other Entities that are
or could be located in nearly any part of the world and that the nature of the
Executive's services, position and expertise are such that he is capable of
competing with the Company from nearly any location in the world. In recognition
of the foregoing, the Executive covenants and agrees:
9.1.1 The Executive shall keep secret all
confidential matters of the Company and shall not intentionally disclose such
matters to anyone outside of the Company, either during or after the term of
employment and the Advisory Period, except with the Company's written consent,
provided that (i) the Executive shall have no such obligation to the extent such
matters are or become publicly known other than as a result of the Executive's
breach of his obligations hereunder and (ii) the Executive may, after giving
prior notice to the Company to the extent practicable under the circumstances,
disclose such matters to the extent required by applicable laws or governmental
regulations or judicial or regulatory process;
9.1.2 The Executive shall deliver promptly to the
Company on termination of his employment by the Company, or at any other time
the Company may so request, at the Company's expense, all memoranda, notes,
records, reports and other documents (and all copies thereof) relating to the
Company's business, which he obtained while employed by, or otherwise serving or
acting on behalf of, the Company and which he may then possess or have under his
control; and
9.1.3 If the term of employment is terminated
pursuant to Section 4.1 or 4.2, for a period of one year after such termination,
without the prior written consent of the Company, the Executive shall not
employ, and shall not cause any Entity of which he is an affiliate to employ,
any person who was a full-time exempt employee of the Company at the date of
such termination or within six months prior thereto.
9.2 Non-Compete. The Executive shall not, directly or
indirectly, without the prior written consent of the Chief Executive Officer or
the President of the Company, render any services to any person or Entity or
acquire any interest of any type in any Entity, that might be deemed in
competition with the Company; provided, however, that the foregoing shall not be
deemed to prohibit the Executive from (a) acquiring, solely as an investment and
through market purchases, securities of any Entity which are registered under
Section 12(b) or 12(g) of the Securities Exchange Act of 1934 and which are
publicly traded,
16
so long as he is not part of any control group of such Entity and such
securities, if converted, do not constitute more than one percent (1%) of the
outstanding voting power of that Entity, (b) acquiring, solely as an investment,
any securities of an Entity (other than an Entity that has outstanding
securities covered by the preceding clause (a)) so long as he remains a passive
investor in such Entity and does not become part of any control group thereof
and so long as such Entity is not, directly or indirectly, in competition with
the Company, (c) serving as a director of any Entity that is not in competition
with the Company or (d) during the Advisory Period, being a partner in or of
counsel to a law firm that represents any person or Entity that is in
competition with the Company so long as the Executive does not personally
provide or assist in the provision of services to any such person or Entity. For
purposes of the foregoing, a person or Entity shall be deemed to be in
competition with the Company if such person or it engages in any line of
business that is substantially the same as either (i) any line of operating
business which the Company engages in, conducts or, to the knowledge of the
Executive, has definitive plans to engage in or conduct or (ii) any operating
business that is engaged in or conducted by the Company and as to which, to the
knowledge of the Executive, the Company covenants in writing, in connection with
the disposition of such business, not to compete therewith.
9.3 Specific Remedy. In addition to such other rights and
remedies as the Company may have at equity or in law with respect to any breach
of this Agreement, if the Executive commits a material breach of any of the
provisions of Section 9.1, the Company shall have the right and remedy to have
such provisions specifically enforced by any court having equity jurisdiction,
it being acknowledged and agreed that any such breach or threatened breach will
cause irreparable injury to the Company and that money damages will not provide
an adequate remedy to the Company.
9.4 Liquidated Damages. If the Executive commits a
material breach of the provisions of Section 9.2, the Executive shall pay to the
Company as liquidated damages an amount equal to two and one-half times the
Executive's then current Base Salary, or if the Executive is not employed by the
Company at the time of such breach or such breach occurs during the Advisory
Period, an amount equal to two and one-half times the most recent Base Salary
paid to the Executive by the Company. The Company shall be entitled to offset
any amounts owed by the Executive to the Company under this Section 9.4 against
any amounts owed by the Company to the Executive under any provision of this
Agreement or otherwise, including without limitation, amounts payable to the
Executive under Section 4.2. The Company and the Executive agree that it is
impossible to determine with any reasonable accuracy the amount of prospective
damages to the Company upon a breach of Section 9.2 by the Executive and further
agree that the damages set forth in this Section 9.4 are reasonable,
17
and not a penalty, based upon the facts and circumstances of the parties and
with due regard to future expectations.
10. Ownership of Work Product. The Executive acknowledges that
during the term of employment, he may conceive of, discover, invent or create
inventions, improve ments, new contributions, literary property, material, ideas
and discoveries, whether patentable or copyrightable or not (all of the
foregoing being collectively referred to herein as "Work Product"), and that
various business opportunities shall be presented to him by reason of his
employment by the Company. The Executive acknowledges that all of the foregoing
shall be owned by and belong exclusively to the Company and that he shall have
no personal interest therein, provided that they are either related in any
manner to the business (commercial or experimental) of the Company, or are, in
the case of Work Product, conceived or made on the Company's time or with the
use of the Company's facilities or materials, or, in the case of business
opportunities, are presented to him for the possible interest or participa tion
of the Company. The Executive shall (i) promptly disclose any such Work Product
and business opportunities to the Company; (ii) assign to the Company, upon
request and without additional compensation, the entire rights to such Work
Product and business opportunities; (iii) sign all papers necessary to carry out
the foregoing; and (iv) give testimony in support of his inventorship or
creation in any appropriate case. The Executive agrees that he will not assert
any rights to any Work Product or business opportunity as having been made or
acquired by him prior to the date of this Agreement except for Work Product or
business opportunities, if any, disclosed to and acknowledged by the Company in
writing prior to the date hereof.
11. Notices. All notices, requests, consents and other
communications required or permitted to be given under this Agreement shall be
effective only if given in writing and shall be deemed to have been duly given
if delivered personally or sent by prepaid telegram, or mailed first-class,
postage prepaid, by registered or certified mail, as follows (or to such other
or additional address as either party shall designate by notice in writing to
the other in accordance herewith):
18
11.1 If to the Company:
Time Warner Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
(with a copy, similarly addressed
but Attention: Senior Vice President -
Administration)
11.2 If to the Executive, to his residence address set
forth on the records of the Company.
12. General.
12.1 Governing Law. This Agreement shall be governed by
and construed and enforced in accordance with the substantive laws of the State
of New York applicable to agreements made and to be performed entirely in New
York.
12.2 Captions. The section headings contained herein are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
12.3 Entire Agreement. This Agreement, including Annexes
A and B, sets forth the entire agreement and understanding of the parties
relating to the subject matter of this Agreement and supersedes all prior
agreements, arrangements and understandings, written or oral, between the
parties, including without limitation, the Prior Agreement.
12.4 No Other Representations. No representation, promise
or inducement has been made by either party that is not embodied in this
Agreement, and neither party shall be bound by or be liable for any alleged
representation, promise or inducement not so set forth.
12.5 Assignability. This Agreement and the Executive's
rights and obligations hereunder may not be assigned by the Executive. The
Company may assign its rights together with its obligations hereunder, in
connection with any sale, transfer or other disposition of all or substantially
all of its business and assets; and such rights and obligations shall inure to,
and be binding upon, any successor to all or substantially all of the business
and
19
assets of the Company, whether by merger, purchase of stock or assets or
otherwise. The Company shall cause such successor expressly to assume such
obligations.
12.6 Amendments; Waivers. This Agreement may be amended,
modified, superseded, cancelled, renewed or extended and the terms or covenants
hereof may be waived only by written instrument executed by both of the parties
hereto, or in the case of a waiver, by the party waiving compliance. The failure
of either party at any time or times to require performance of any provision
hereof shall in no manner affect such party's right at a later time to enforce
the same. No waiver by either party of the breach of any term or covenant
contained in this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in this Agreement.
12.7 Resolution of Disputes. Any dispute or controversy
arising with respect to this Agreement shall, at the election of either the
Company or the Executive, be submitted to JAMS/ENDISPUTE for resolution in
arbitration in accordance with the rules and procedures of JAMS/ENDISPUTE.
Either party shall make such election by delivering written notice thereof to
the other party at any time (but not later than 45 days after such party
receives notice of the commencement of any administrative or regulatory
proceeding or the filing of any lawsuit relating to any such dispute or
controversy) and thereupon any such dispute or controversy shall be resolved
only in accordance with the provisions of this Section 12.7. Any such
proceedings shall take place in New York City before a single arbitrator (rather
than a panel of arbitrators), pursuant to any streamlined or expedited (rather
than a comprehensive) arbitration process, before a nonjudicial (rather than a
judicial) arbitrator, and in accordance with an arbitration process which, in
the judgment of such arbitrator, shall have the effect of reasonably limiting or
reducing the cost of such arbitration. The resolution of any such dispute or
controversy by the arbitrator appointed in accordance with the procedures of
JAMS/ENDISPUTE shall be final and binding. Judgment upon the award rendered by
such arbitrator may be entered in any court having jurisdiction thereof, and the
parties consent to the jurisdiction of the New York courts for this purpose. The
prevailing party shall be entitled to recover the costs of arbitration
(including reasonable attorneys fees and the fees of experts) from the losing
party. If at the time any dispute or controversy arises with respect to this
Agreement, JAMS/ENDISPUTE is not in business or is no longer providing
arbitration services, then the American Arbitration Association shall be
substituted for JAMS/ENDISPUTE for the purposes of the foregoing provisions of
this Section 12.7. If the Executive shall be the prevailing party in such
arbitration, the Company shall promptly pay, upon demand of the Executive, all
legal fees, court costs and other costs and expenses incurred by the Executive
in any legal action seeking to enforce the award in any court.
20
12.8 Beneficiaries. Whenever this Agreement provides for
any payment to the Executive's estate, such payment may be made instead to such
beneficiary or beneficiaries as the Executive may designate by written notice to
the Company. The Executive shall have the right to revoke any such designation
and to redesignate a beneficiary or beneficiaries by written notice to the
Company (and to any applicable insurance company) to such effect.
12.9 No Conflict. The Executive represents and warrants
to the Company that this Agreement is legal, valid and binding upon the
Executive and the execution of this Agreement and the performance of the
Executive's obligations hereunder does not and will not constitute a breach of,
or conflict with the terms or provisions of, any agreement or understanding to
which the Executive is a party (including, without limitation, any other
employment agreement). The Company represents and warrants to the Executive that
this Agreement is legal, valid and binding upon the Company and the execution of
this Agreement and the performance of the Company's obligations hereunder does
not and will not constitute a breach of, or conflict with the terms or
provisions of, any agreement or understanding to which the Company is a party.
12.10 Withholding Taxes. Payments made to the Executive
pursuant to this Agreement shall be subject to withholding and social security
taxes and other ordinary and customary payroll deductions.
12.11 No Offset. Except as provided in Section 9.4 of
this Agreement, neither the Company nor the Executive shall have any right to
offset any amounts owed by one party hereunder against amounts owed or claimed
to be owed to such party, whether pursuant to this Agreement or otherwise, and
the Company and the Executive shall make all the payments provided for in this
Agreement in a timely manner.
12.12 Severability. If any provision of this Agreement
shall be held invalid, the remainder of this Agreement shall not be affected
thereby; provided, however, that the parties shall negotiate in good faith with
respect to equitable modification of the provision or application thereof held
to be invalid. To the extent that it may effectively do so under applicable law,
each party hereby waives any provision of law which renders any provision of
this Agreement invalid, illegal or unenforceable in any respect.
12.13 Definitions. The following terms are defined in
this Agreement in the places indicated:
21
Account Retained Income - Section A.6 of Annex A
Advisory Period - Section 13
affiliate - Section 4.2.3
Applicable Tax Law - Section A.5 of Annex A
Base Salary - Section 3.1
cause - Section 4.1
Code - Section 4.2.2
Company - the first paragraph on page 1 and Section 9.1
deferred compensation - Section 3.3
Disability Date - Section 5
Disability Period - Section 5
Effective Date - the first paragraph on page 1
eligible securities - Section A.1 of Annex A
Entity - Section 2 Executive - the first paragraph in page 1
fair market value - Section A.1 of Annex A
Investment Advisor - Section A.1 of Annex A
Pay-Out Period - Section A.6 of Annex A
Prior Account - Section 3.5
Prior Agreement - the second paragraph on page 1
Rabbi Trust - Section 3.3
senior executives - Section 3.
Term Date - the second paragraph on page 1
term of employment - Section 1
Trust Account - Section 3.3
Trust Agreement - Section 3.3
Trustee - Section 3.3
Valuation Date - Section A.6 of Annex A
Work Product - Section 10
13. Advisory Services. The Executive shall render the advisory
services described in this Section for the period beginning on January 1, 2000
and ending on December 31, 2001 (the "Advisory Period"). During the Advisory
Period, the Executive will provide such advisory services concerning the
business, affairs and management of the Company as may be required by the Board
of Directors, the Chief Executive Officer or the President of the Company, but
shall not be required to devote more than five days (up to eight hours per day)
each month to such service, which shall be performed at a time and place
mutually convenient to both parties and consistent with the Executive's other
activities. If at any time during the Advisory Period, the Executive engages in
other full-time employment, the Executive shall not be deemed to be in breach of
this Section 13, but unless such employment consists of the Executive providing
services to one or more (i) charitable or non-profit organizations or (ii)
family-owned corporations, trusts, or partnerships, the term of
22
employment and the Advisory Period shall terminate, the Executive shall leave
the payroll of the Company and the Company shall have no further obligations
under this agreement other than with respect to earned and unpaid compensation
and benefits. Notwithstanding the foregoing, but subject to Section 9 of this
Agreement, during the Advisory Period the Executive may provide part-time
services to third parties (including serving as a member of the Board of
Directors of any such party). During the Advisory Period, the Executive shall be
entitled to receive compensation in an amount equal to $400,000 per annum and
shall continue to be entitled to the benefits described in Sections 7 and 8
hereof; provided, however, that the Executive shall not be entitled to a driver
or automobile allowance or financial counseling during the Advisory Period,
shall not accrue any vacation time during the Advisory Period and shall not be
entitled to any severance pay at the end thereof. In addition, during the first
year of the Advisory Period the Company shall provide the Executive with an
office, office facilities and a secretary in accordance with the provisions of
Section 4.3.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
TIME WARNER INC.
By /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxx, President
/s/ Xxxxx X. Xxxx
-------------------------------
Xxxxx X. Xxxx
ANNEX A
DEFERRED COMPENSATION ACCOUNT
A.1 Investments. Funds credited to the Trust Account shall be
actually invested and reinvested in an account in securities selected from time
to time by an investment advisor designated from time to time by the Company
(the "Investment Advisor"), substantially all of which securities shall be
"eligible securities". The designation from time to time by the Company of an
Investment Advisor shall be subject to the approval of the Executive, which
approval shall not be withheld unreasonably. "Eligible securities" are common
and preferred stocks, warrants to purchase common or preferred stocks, put and
call options, and corporate or governmental bonds, notes and debentures, either
listed on a national securities exchange or for which price quotations are
published in newspapers of general circulation, including The Wall Street
Journal, and certificates of deposit. Eligible securities shall not include the
common or preferred stock, any warrants, options or rights to purchase common or
preferred stock or the notes or debentures of the Company or any corporation or
other entity of which the Company owns directly or indirectly 5% or more of any
class of outstanding equity securities. The Investment Advisor shall have the
right, from time to time, to designate eligible securities which shall be
actually purchased and sold for the Trust Account on the date of reference. Such
purchases may be made on margin; provided that the Company may, from time to
time, by written notice to the Executive, the Trustee and the Investment
Advisor, limit or prohibit margin purchases in any manner it deems prudent and,
upon three business days written notice to the Executive, the Trustee and the
Investment Advisor, cause all eligible securities theretofore purchased on
margin to be sold. The Investment Advisor shall send notification to the
Executive and the Trustee in writing of each transaction within five business
days thereafter and shall render to the Executive and the Trustee written
quarterly reports as to the current status of his or her Trust Account. In the
case of any purchase, the Trust Account shall be charged with a dollar amount
equal to the quantity and kind of securities purchased multiplied by the fair
market value of such securities on the date of reference and shall be credited
with the quantity and kind of securities so purchased. In the case of any sale,
the Trust Account shall be charged with the quantity and kind of securities
sold, and shall be credited with a dollar amount equal to the quantity and kind
of securities sold multiplied by the fair market value of such securities on the
date of reference. Such charges and credits to the Trust Account shall take
place immediately upon the consummation of the transactions to which they
relate. As used herein "fair market value" means either (i) if the security is
actually purchased or sold by the Rabbi Trust on the date of reference, the
actual purchase or sale price per security to the Rabbi Trust or (ii) if the
security
A-2
is not purchased or sold on the date of reference, in the case of a listed
security, the closing price per security on the date of reference, or if there
were no sales on such date, then the closing price per security on the nearest
preceding day on which there were such sales, and, in the case of an unlisted
security, the mean between the bid and asked prices per security on the date of
reference, or if no such prices are available for such date, then the mean
between the bid and asked prices per security on the nearest preceding day for
which such prices are available. If no bid or asked price information is
available with respect to a particular security, the price quoted to the Trustee
as the value of such security on the date of reference (or the nearest preceding
date for which such information is available) shall be used for purposes of
administering the Trust Account, including determining the fair market value of
such security. The Trust Account shall be charged currently with all interest
paid by the Trust Account with respect to any credit extended to the Trust
Account. Such interest shall be charged to the Trust Account, for margin
purchases actually made, at the rates and times actually paid by the Trust
Account. The Company may, in the Company's sole discretion, from time to time
serve as the lender with respect to any margin transactions by notice to the
then Investment Advisor and the Trustee and in such case interest shall be
charged at the rate and times then charged by an investment banking firm
designated by the Company with which the Company does significant business.
Brokerage fees shall be charged to the Trust Account at the rates and times
actually paid.
A.2 Dividends and Interest. The Trust Account shall be
credited with dollar amounts equal to cash dividends paid from time to time upon
the stocks held therein. Dividends shall be credited as of the payment date. The
Trust Account shall similarly be credited with interest payable on interest
bearing securities held therein. Interest shall be credited as of the payment
date, except that in the case of purchases of interest-bearing securities the
Trust Account shall be charged with the dollar amount of interest accrued to the
date of purchase, and in the case of sales of such interest-bearing securities
the Trust Account shall be credited with the dollar amount of interest accrued
to the date of sale. All dollar amounts of dividends or interest credited to the
Trust Account pursuant to this Section A.2 shall be charged with all taxes
thereon deemed payable by the Company (as and when determined pursuant to
Section A.5). The Investment Advisor shall have the same right with respect to
the investment and reinvestment of net dividends and net interest as he has with
respect to the balance of the Trust Account.
A.3 Adjustments. The Trust Account shall be equitably adjusted
to reflect stock dividends, stock splits, recapitalizations, mergers,
consolidations, reorganizations and other changes affecting the securities held
therein.
A-3
A.4 Obligation of the Company. Without in any way limiting the
obligations of the Company otherwise set forth in the Agreement or this Annex A,
the Company shall have the obligation to establish, maintain and enforce the
Rabbi Trust and to make payments to the Trustee for credit to the Trust Account
in accordance with the provisions of Section 3.3 of the Agreement, to use due
care in selecting the Trustee or any successor trustee and to in all respects
work cooperatively with the Trustee to fulfill the obligations of the Company
and the Trustee to the Executive. The Trust Account shall be charged with all
taxes (including stock transfer taxes), interest, brokerage fees and investment
advisory fees, if any, payable by the Company and attributable to the purchase
or disposition of securities designated by the Investment Advisor (in all cases
net after any tax benefits that the Company would be deemed to derive from the
payment thereof, as and when determined pursuant to Section A.5) and only in the
event of a default by the Company of its obligation to pay such fees and
expenses, the fees and expenses of the Trustee in accordance with the terms of
the Trust Agreement, but no other costs of the Company. Subject to the terms of
the Trust Agreement, the securities purchased for the Trust Account as
designated by the Investment Advisor shall remain the sole property of the
Company, subject to the claims of its general creditors, as provided in the
Trust Agreement. Neither the Executive nor his legal representative nor any
beneficiary designated by the Executive shall have any right, other than the
right of an unsecured general creditor, against the Company or the Trust in
respect of any portion of the Trust Account.
A.5 Taxes. The Trust Account shall be charged with all
federal, state and local taxes deemed payable by the Company with respect to
income recognized upon the dividends and interest received by the Trust Account
pursuant to Section A.2 and gains recognized upon sales of any of the securities
which are sold pursuant to Section A.1 or A.6. The Trust Account shall be
credited with the amount of the tax benefit received by the Company as a result
of any payment of interest actually made pursuant to Section A.1 or A.2 and as a
result of any payment of brokerage fees and investment advisory fees made
pursuant to Section A.1. If any of the sales of the securities which are sold
pursuant to Section A.1 or A.6 results in a loss to the Trust Account, such net
loss shall be deemed to offset the income and gains referred to in the second
preceding sentence (and thus reduce the charge for taxes referred to therein) to
the extent then permitted under the Internal Revenue Code of 1986, as amended
from time to time, and under applicable state and local income and franchise tax
laws (collectively referred to as "Applicable Tax Law"); provided, however, that
for the purposes of this Section A.5 the Trust Account shall, except as provided
in the third following sentence, be deemed to be a separate corporate taxpayer
and the losses referred to above shall be deemed to offset only the income and
gains referred to in the second preceding sentence. Such losses shall be carried
back and carried forward within the Trust Account to the extent permitted by
Applicable Tax Law in order to minimize the taxes deemed payable on such income
and gains within the Trust Account. For the purposes of this Section A.5, all
charges
A-4
and credits to the Trust Account for taxes shall be deemed to be made as of the
end of the Company's taxable year during which the transactions, from which the
liabilities for such taxes are deemed to have arisen, are deemed to have
occurred. Notwithstanding the foregoing, if and to the extent that in any year
there is a net loss in the Trust Account that cannot be offset against income
and gains in any prior year, then an amount equal to the tax benefit to the
Company of such net loss (after such net loss is reduced by the amount of any
net capital loss of the Trust Account for such year) shall be credited to the
Trust Account on the last day of such year. If and to the extent that any such
net loss of the Trust Account shall be utilized to determine a credit to the
Trust Account pursuant to the preceding sentence, it shall not thereafter be
carried forward under this Section A.5. For purposes of determining taxes
payable by the Company under any provision of this Annex A it shall be assumed
that the Company is a taxpayer and pays all taxes at the maximum marginal rate
of federal income taxes and state and local income and franchise taxes (net of
assumed federal income tax benefits) applicable to business corporations and
that all of such dividends, interest, gains and losses are allocable to its
corporate headquarters, which are currently located in New York City.
A.6 Payments. Payments of deferred compensation shall be made
as provided in this Section A.6. Unless the Executive makes the election
referred to in the next succeeding sentence, deferred compensation shall be paid
bi-weekly for a period of ten years (the "Pay-Out Period") commencing on the
first Company payroll date in the month following the later of (i) the end of
the Advisory Period and (ii) the date the Executive ceases to be an employee of
the Company and leaves the payroll of the Company for any reason, provided,
however, that if the Executive was named in the compensation table in the
Company's then most recent proxy statement, such payments shall commence on the
first Company payroll date in January of the year following the year in which
the latest of such events occurs. The Executive may elect a shorter Pay-Out
Period by delivering written notice to the Company or the Trustee at least
one-year prior to the commencement of the Pay-Out Period, which notice shall
specify the shorter Pay-Out Period. On each payment date, the Trust Account
shall be charged with the dollar amount of such payment. On each payment date,
the amount of cash held in the Trust Account shall be not less than the payment
then due and the Company or the Trustee may select the securities to be sold to
provide such cash if the Investment Advisor shall fail to do so on a timely
basis. The amount of any taxes payable with respect to any such sales shall be
computed, as provided in Section A.5 above, and deducted from the Trust Account,
as of the end of the taxable year of the Company during which such sales are
deemed to have occurred. Solely for the purpose of determining the amount of
payments during the Pay-Out Period, the Trust Account shall be valued on the
fifth trading day prior to the end of the month preceding the first payment of
each year of the Pay-Out Period, or more frequently at the Company's or the
Trustee's election (the "Valuation Date"), by adjusting all
A-5
of the securities held in the Trust Account to their fair market value (net of
the tax adjustment that would be made thereon if sold, as estimated by the
Company or the Trustee) and by deducting from the Trust Account the amount of
all outstanding indebtedness. The extent, if any, by which the Trust Account,
valued as provided in the immediately preceding sentence, exceeds the aggregate
amount of credits to the Trust Account pursuant to Sections 3.3, 3.4 and 3.5 of
the Agreement as of each Valuation Date and not theretofore distributed or
deemed distributed pursuant to this Section A.6 is herein called "Account
Retained Income". The amount of each payment for the year, or such shorter
period as may be determined by the Company or the Trustee, of the Pay-Out Period
immediately succeeding such Valuation Date, including the payment then due,
shall be determined by dividing the aggregate value of the Trust Account, as
valued and adjusted pursuant to the second preceding sentence, by the number of
payments remaining to be paid in the Pay-Out Period, including the payment then
due; provided that each payment made shall be deemed made first out of Account
Retained Income (to the extent remaining after all prior distributions thereof
since the last Valuation Date). The balance of the Trust Account, after all the
securities held therein have been sold and all indebtedness liquidated, shall be
paid to the Executive in the final payment, which shall be decreased by
deducting therefrom the amount of all taxes attributable to the sale of any
securities held in the Trust Account since the end of the preceding taxable year
of the Company, which taxes shall be computed as of the date of such payment.
If this Agreement is terminated by the Company pursuant to
Section 4.1 or if the Executive terminates this Agreement or the term of
employment in breach of this Agreement, the Trust Account shall be valued as of
the later of (i) December 31, 2001 or (ii) twelve months after termination of
the Executive's employment with the Company, and the balance of the Trust
Account, after the securities held therein have been sold and all related
indebtedness liquidated, shall be paid to the Executive as soon as practicable
and in any event within 75 days following the later of such dates in a final
lump sum payment, which shall be decreased by deducting therefrom the amount of
all taxes attributable to the sale of any securities held in the Trust Account
since the end of the preceding taxable year of the Company, which taxes shall be
computed as of the date of such payment. Payments made pursuant to this
paragraph shall be deemed made first out of Account Retained Income.
If the Executive becomes disabled within the meaning of
Section 5 of the Agreement and is not thereafter returned to full-time
employment with the Company as provided in said Section 5, then deferred
compensation shall be paid bi-weekly during the Pay-Out Period commencing on the
first Company payroll date in the month following the end of the Disability
Period in accordance with the provisions of the first paragraph of this Section
A.6.
A-6
If the Executive shall die at any time whether during or after
the term of employment, the Trust Account shall be valued as of the date of the
Executive's death and the balance of the Trust Account shall be paid to the
Executive's estate or beneficiary within 75 days of such death in accordance
with the provisions of the second preceding paragraph.
Notwithstanding the foregoing provisions of this Section A.6,
if the Rabbi Trust shall terminate in accordance with the provisions of the
Trust Agreement, the Trust Account shall be valued as of the date of such
termination and the balance of the Trust Account shall be paid to the Executive
within 15 days of such termination in accordance with the provisions of the
third preceding paragraph.
Within 90 days after the end of each taxable year of the
Company in which payments have been made from the Trust Account and at the time
of the final payment from the Trust Account, the Company or the Trustee shall
compute and the Company shall pay to the Trustee for credit to the Trust
Account, the amount of the tax benefit assumed to be received by the Company
from the payment to the Executive of amounts of Account Retained Income during
such taxable year or since the end of the last taxable year, as the case may be.
No additional credits shall be made to the Trust Account pursuant to the
preceding sentence in respect of the amounts credited to the Trust Account
pursuant to the preceding sentence. Notwithstanding any provision of this
Section A.6, the Executive shall not be entitled to receive pursuant to this
Annex A an aggregate amount that shall exceed the sum of (i) all credits made to
the Trust Account pursuant to Sections 3.3, 3.4 and 3.5 of the Agreement to
which this Annex is attached, (ii) the net cumulative amount (positive or
negative) of all income, gains, losses, interest and expenses charged or
credited to the Trust Account pursuant to this Annex A (excluding credits made
pursuant to the second preceding sentence), after all credits and charges to the
Trust Account with respect to the tax benefits or burdens thereof, and (iii) an
amount equal to the tax benefit to the Company from the payment of the amount
(if positive) determined under clause (ii) above; and the final payment(s)
otherwise due may be adjusted or eliminated accordingly. In determining the tax
benefit to the Company under clause (iii) above, the Company shall be deemed to
have made the payments under clause (ii) above with respect to the same taxable
years and in the same proportions as payments of Account Retained Income were
actually made from the Trust Account. Except as otherwise provided in this
paragraph, the computation of all taxes and tax benefits referred to in this
Section A.6 shall be determined in accordance with Section A.5 above.
ANNEX B
RELEASE
Pursuant to the terms of the Employment Agreement made as of
_____________, between TIME WARNER INC., a Delaware corporation (the "Company"),
00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and the undersigned (the
"Agreement"), and in consideration of the payments made to me and other benefits
to be received by me pursuant thereto, I, [Name], being of lawful age, do hereby
release and forever discharge the Company and its officers, shareholders,
subsidiaries, agents, and employees, from any and all actions, causes of action,
claims, or demands for general, special or punitive damages, attorney's fees,
expenses, or other compensation, which in any way relate to or arise out of my
employment with the Company or any of its subsidiaries or the termination of
such employment, which I may now or hereafter have under any federal, state or
local law, regulation or order, including without limitation, under the Age
Discrimination in Employment Act, as amended, through and including the date of
this Release; provided, however, that the execution of this Release shall not
prevent the undersigned from bringing a lawsuit against the Company to enforce
its obligations under the Agreement.
I acknowledge that I have been given at least 21 days from the
day I received a copy of this Release to sign it and that I have been advised to
consult an attorney. I understand that I have the right to revoke my consent to
this Release for seven days following my signing. This Release shall not become
effective or enforceable until the expiration of the seven-day period following
the date it is signed by me.
I further state that I have read this document and the
Agreement referred to herein, that I know the contents of both and that I have
executed the same as my own free act.
WITNESS my hand this ____ day of ___________ , ____.
---------------------------
[Name]
