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EXHIBIT 10.17
AMENDED AND RESTATED EMPLOYMENT AGREEMENT made as of March 25,
1999, effective as of January 1, 1999 (the "Effective Date"), between TIME
WARNER INC., a Delaware corporation (the "Company"), and Xxxxxxx X.
Xxxxxxxx (the "Executive").
The Executive is currently employed by the Company pursuant to
an Amended and Restated Employment Agreement made as of March 18, 1998, as
amended by Amendment dated December 2, 1998 (as so amended, 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, 2004 (the "Term Date") 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.
2. Employment. The Company shall employ the Executive, and the
Executive shall serve, as Executive Vice President and Chief Financial Officer
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 or its President, (iii) the Executive shall have no other
employment and, without the prior written consent of the Chief Executive
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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 $600,000 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.
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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 provided in this Agreement, including Annex A
hereto. Unless Executive shall make the election described in the last sentence
of this Section 3.3, 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 Executive's then current Base Salary. If a lump sum payment is made to
Executive pursuant to Section 4.2.2 or 4.3.1 of this Agreement, 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; provided, however, that the Executive may elect by written notice to
the Company at least 15 days prior to the date of any such lump sum payment to
have such amount credited instead to the Deferred Compensation Plan established
by the Company on November 18, 1998, as the same may be amended from time to
time (as so amended, the "Deferred Plan"). 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
until the full amount which Executive is entitled to receive therefrom has been
paid in full. 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. 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 (except that for calendar year 1999, such election shall be made no
later than January 31, 1999) to have (a) all of the payments to be made to the
Rabbi Trust pursuant to the second sentence of this Section 3.3 to be credited
instead to the Deferred Plan or (b) to have 50% of the payments to be made by
the Company pursuant to the second sentence of this Section 3.3 to be credited
instead to the Deferred Plan and the remaining 50% to be paid to the Rabbi
Trust.
3.4 Deferred Bonus. In addition to any other deferred
bonus plan in which 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 (except
that for calendar year 1999, such election shall be made no
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later than January 31, 1999), to defer payment of and to have the Company credit
all or any portion of the Executive's bonus for such year to either the Trust
Account or the Deferred Plan, or a combination of both, subject in the case of a
deferral to the Deferred Plan to the terms and conditions of the Deferred Plan.
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.
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
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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 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 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 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 as provided in Sections 3.1 and 3.3 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
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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 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 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; or (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.
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In the event of a termination pursuant to this
Section 4.2, the Executive shall remain an employee of the Company as provided
in Section 4.2.2. In such case, the following provisions shall apply:
4.2.1 After the effective date of such termination,
the Executive shall have no further obligations or liabilities to the Company
whatsoever, other than pursuant to Sections 4.5 and 4.7 and Sections 6 through
12 which shall survive such termination, and the Executive shall be entitled to
receive any earned and unpaid Base Salary and be credited with deferred
compensation through the effective date of termination and a pro rata portion of
the Executive's annual bonus for the year in which such termination occurs
through the date of 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 or the Deferred Plan in accordance with any previous election made by
the Executive to defer all or any portion of his bonus for such year pursuant to
Section 3.4.
4.2.2 After the effective date of termination
pursuant to this Section 4.2, the Executive shall remain an employee of the
Company for the period ending on the later of (i) the Term Date and (ii) the
date which is one year after the date notice of termination is given under this
Section 4.2, 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, (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 such period 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 and (c) credits of deferred compensation as
provided in Section 3.3. Except as provided in the second succeeding 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, Executive shall cease to be an
employee of the Company effective upon the commencement of such employment or
the effective date of such termination as specified by the Executive in such
notice, whichever is applicable, and the
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Executive shall be entitled to receive, as severance, a lump sum payment 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),
discounted as provided in the immediately following sentence, equal to the
balance of the Base Salary, deferred compensation (which shall be credited as
provided in the third sentence of Section 3.3) and regular annual bonuses
(assuming no deferral pursuant to Section 3.4) the Executive would have been
entitled to receive pursuant to this Section 4.2.2 had the Executive remained on
the Company's payroll until the end of the period described in the first
sentence of this Section 4.2.2. The lump sum payment required to be made to
Executive pursuant to this Section 4.2.2 shall be discounted to present value as
of the date of payment from the times at which such amounts would otherwise have
become payable absent 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 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. Section 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). Notwithstanding the foregoing, if the Executive accepts
employment with any not-for-profit Entity, 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 4.2.2; and if the Executive accepts full-time
employment with any affiliate of the Company, then the payments provided for in
this Section 4.2.2 shall immediately cease and the Executive shall not be
entitled to any 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 After the Term Date. If at the Term Date, the
term of employment shall not have been previously terminated pursuant to the
provisions of this Agreement, no Disability Period is then in effect and the
parties shall not have agreed to an extension or renewal of this Agreement or on
the terms of a new employment agreement, then the term of employment shall
continue and the Executive shall continue to be employed by the Company pursuant
to the terms of this Agreement, subject to termination by either party hereto on
60 days written notice delivered to the other party (which notice may be
delivered by either party at any time on or after the date which is 60 days
prior to the Term Date). If the Company shall
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terminate the term of employment on or after the Term Date for any reason (other
than for cause as defined in Section 4.1, in which case Section 4.1 shall
apply), which the Company shall have the right to do so long as no Disability
Date (as defined in Section 5) has occurred prior to the delivery by the Company
of written notice of termination, then (i) at the end of the 60-day notice
period the Executive shall have no further obligations or liabilities to the
Company whatsoever, other than pursuant to Sections 4.5 and 4.7 and Sections 6
through 12 of this Agreement, which shall survive such termination and (ii) in
lieu of the provisions of Section 4.2, the Executive shall remain an employee of
the Company for a period of twelve months pursuant to Section 4.3.1 below and
shall receive the payments provided in Section 4.3.1.
4.3.1. The Executive shall remain an
employee of the Company until the date which is twelve months after the end of
the 60-day period provided in the first sentence of Section 4.3 and during such
twelve-month period the Executive shall be entitled to receive, whether or not
he becomes disabled during such period but subject to Section 6, (i) the
Executive's Base Salary as in effect immediately prior to such notice of
termination, (ii) an annual bonus (all or any portion of which may be deferred
by the Executive) equal to the average of the regular annual bonus amounts
(excluding the amount of any special or spot bonuses) received by the Executive
from the Company for the two calendar years during the most recent five calendar
years for which the regular annual bonus received by the Executive was the
greatest and (iii) deferred compensation as provided in Section 3.3 of this
Agreement. At the end of such twelve-month period, the Executive shall cease to
be an employee of the Company. Except as provided in the next sentence, if the
Executive accepts full-time employment with any other Entity during such
twelve-month period or notifies the Company in writing of his intention to
terminate his employment during such period, the Executive shall cease to be an
employee of the Company effective upon the commencement of such employment or
the effective date of such termination as specified by the Executive in such
notice, whichever is applicable, and shall be entitled to receive a lump sum
payment 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 year in which such commencement or effective date occurred)
an amount (discounted as provided in the third sentence of Section 4.2.2, except
that "applicable Federal rate" shall be determined as of the date of such
commencement or such effective date, as the case may be) for the balance of the
Base Salary, deferred compensation (which shall be credited as provided in the
third sentence
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of Section 3.3) and regular annual bonuses the Executive would have been
entitled to receive pursuant to this Section 4.3.1 had the Executive remained on
the Company's payroll until the end of such twelve-month period. Notwithstanding
the preceding sentence, if the Executive accepts employment with any
not-for-profit Entity, 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 4.3.1; and if the Executive accepts full-time
employment with any affiliate of the Company, then the payments provided for in
this Section 4.3.1 shall cease and the Executive shall not be entitled to any
such lump sum payment.
4.4 Office Facilities. In the event the Executive's
employment is terminated by the Company pursuant to Section 4.2 or 4.3, then for
the period beginning on the effective date of such termination 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.
4.5 Release. In partial consideration for the
Company's obligation to make the payments described in Sections 4.2 and 4.3, 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 or 4.3 and the Executive shall execute and
deliver such release to 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 or 4.3, as applicable, but the Executive shall receive,
in lieu of the payments provided for in said Section 4.2 or 4.3, 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.
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4.6 Retirement. Notwithstanding the provisions of
Sections 4.2, 4.3 or 5, if the term of employment is in effect and the Executive
is still employed by the Company pursuant to this Agreement on the date the
Executive first becomes eligible for normal retirement as defined in any
applicable retirement plan of the Company or any subsidiary of the Company (the
"Retirement Date"), then this Agreement shall terminate automatically on such
date and the Executive's employment with the Company shall thereafter be
governed by the policies generally applicable to employees of the Company, and
the Executive shall not thereafter be entitled to the payments provided in such
Sections to the extent not received by the Executive on or prior to the
Retirement Date. In addition, no benefits or payments provided in Sections 4.2,
4.3 or 5 shall include any period after the Retirement Date and if the provision
of benefits or calculation of payments provided in any such Section would
include any period subsequent to the Retirement Date, such provision of benefits
shall end on the Retirement Date and the calculation of payments shall cover
only the period ending on the Retirement Date. Notwithstanding the foregoing,
the Company's obligations under Section 7 of this Agreement shall continue after
any such termination and the provisions of Sections 12.1 and 12.7 shall apply to
any dispute with respect to this Agreement that arises after any such
termination.
4.7 Mitigation. In the event of termination of the
term of employment pursuant to Section 4.2 or 4.3, 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 duplication of any amounts required to be paid to the
Company thereunder, if the term of employment is terminated pursuant to Section
4.2 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 services through the later of (x) the Term Date or (y) one year
after the date of termination pursuant to Section 4.2, 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 for such period, minus
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(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,
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
termination of the term of employment by the Executive pursuant to Section 4.2
or in the event of the termination of the term of employment by the Company
pursuant to Section 4.2 or 4.3 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 or the
Deferred Plan with respect to Base Salary, annual bonus and deferred
compensation under Section 3 for such year. Any obligation of the Executive to
mitigate his damages pursuant to this Section 4.7 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 4.3.1, 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.
4.8 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 or
4.3 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 or 4.3, 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 make the deferred compensation credits when
otherwise due as provided in Section 3, 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
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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 longer of (i) the period ending on the Term Date or (ii) one year (in the
case of either (i) or (ii) (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 by the Company pursuant to
Section 3.3 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 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 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
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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. Except as otherwise
provided in this Section 5, the term of employment shall continue during the
Disability Period and the Executive shall be entitled to all of the rights and
benefits provided for in this Agreement, except that Sections 4.2 and 4.3 shall
not apply during the Disability Period and unless the Company has restored the
Executive to full-time service at full compensation prior to the end of the
Disability Period, the term of employment shall end and the Executive shall
cease to be an employee of the Company at the end of the Disability 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 be entitled to receive,
to the extent being received by the Executive immediately prior to his death,
Base Salary and deferred 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.7 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
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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. In the event the policy is owned by the trustees of a trust for the
benefit of the Executive's spouse and/or descendants, the trustees of the trust
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
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 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,
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disability or similar plan or program of the Company now existing or established
hereafter. In addition, the Executive shall be entitled during the term of
employment and so long as the Executive is an employee of the Company, 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 or 4.3 and during the Disability 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. In the event of a termination of the
term of employment pursuant to Section 4.2, the Company shall, at its sole
election, either issue to the Executive the stock options the Executive would
have received from the Company for the remainder of the term of employment had
such termination not occurred or pay to the Executive in cash an amount equal to
the value of such stock options. 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 until such
time as the Executive shall leave the payroll of the Company. At the time the
Executive's term of employment with the Company terminates and he leaves the
payroll of the Company pursuant to the provisions of Section 4.1, 4.2, 4.3, 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,
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, 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
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and for a period of three months thereafter or such longer period as may be
specified in any 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, 4.3, 5 or 6, 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 later of (i) the
Term Date, (ii) the date the Executive ceases to be an employee of the Company
and leaves the payroll of the Company for any reason and (iii) twelve months
after the termination of the Executive's employment with the Company pursuant to
Section 4.1, 4.2 or 4.3. 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, 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 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:
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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, 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, 4.2 or 4.3, 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 employee of the Company at
the date of such termination or within six months prior thereto but such
prohibition shall not apply to the Executive's secretary or executive assistant
or to any other employee eligible to receive overtime pay.
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 Competitive Entity (as
defined in the next sentence) or acquire any interest of any type in any
Competitive Entity; 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 Competitive Entity which are registered
under Section 12(b) or 12(g) of the Securities Exchange Act of 1934 and which
are publicly traded, so long as he is not part of any control group of such
Competitive Entity and such securities, if converted, do not constitute more
than one percent (1%) of the outstanding voting power of that Competitive
Entity, (b) acquiring, solely as an investment, any securities of an Entity
(other than a Competitive Entity that has outstanding securities covered by the
preceding clause (a))
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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 a Competitive
Entity, or (c) serving as a director of any Entity that is not a Competitive
Entity. For purposes of the foregoing, a Competitive Entity shall mean a person
or Entity that 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; provided, however, that after the Executive is no longer
on the payroll of the Company, the provisions of this Section 9.2 shall apply
only to a Competitive Entity that had, or the parent Entity or predecessor
Entity of such Competitive Entity had, consolidated gross revenues from all
sources, including non-competitive businesses, of $2 billion or more for the
fiscal year preceding the Executive's commencement of service for such
Competitive Entity.
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 three times the Executive's
then current Base Salary, or if the Executive is not employed by the Company at
the time of such breach, an amount equal to three 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 Sections 4.2 or 4.3. 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
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reasonable, 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, improvements, 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 participation
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):
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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: General Counsel)
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
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shall inure to, and be binding upon, any successor to all or substantially all
of the business and 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
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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.
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
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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:
Account Retained Income - Section A.6 of Annex A
affiliate - Section 4.2.2
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
Competitive Entity - Section 9.2
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
Other Period Deferred Amount - Section A.6 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
Retirement Date - Section 4.6
senior executives - Section 3.1
Term Date - the second paragraph on page 1
term of employment - Section 1
Trust Account - Section 3.
Trust Agreement - Section 3.3
Trustee - Section 3.3
Valuation Date - Section A.6 of Annex A
Work Product - Section 10
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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/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
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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 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
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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.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
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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, A.6 or A.7. 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, A.6 or A.7 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 and credits to the Trust Account for taxes shall
be deemed to be made as of the end of the Company's taxable
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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 One-Time Transfer to Deferred Plan. So long as the
Executive is an employee of the Company, the Executive shall have the right to
elect by written notice to the Company at any time, but only once during the
Executive's lifetime, to transfer to the Deferred Plan all or a portion of the
Net Transferable Balance (determined as provided in the next sentence) of the
Trust Account. If the Executive shall make such an election, the Net
Transferable Balance shall be determined as of the end of the calendar quarter
following the date of such election (unless such election is made during the
first ten calendar days following the end of a calendar quarter, in which case
such determination shall be made as of the end of such preceding calendar
quarter) by adjusting all 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 such value the
amount of all outstanding indebtedness and any other amounts payable by the
Trust Account. Transfers to the Deferred Plan shall be made in cash as promptly
as reasonably practicable after the end of such calendar quarter and the
Investment Advisor (or the Company or the Trustee if the Investment Advisor
shall fail to act in a timely manner) shall cause securities held in the Trust
Account to be sold to provide cash equal to the portion of the Net Transferable
Balance of the Trust Account selected to be transferred by the Executive. If the
Executive elects to transfer more than 75% of the Net Transferable Balance of
the Trust Account to the Deferred Plan, the Company or the Trustee shall be
permitted to take such action as they may deem reasonably appropriate, including
but not limited to, retaining a portion of such Net Transferable Balance in the
Trust Account, to ensure that the Trust Account will have sufficient assets to
pay the Company the amount of taxes payable on such sales of securities at the
end of the year in which such sales are made.
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A.7 Payments. Payments of deferred compensation shall be made
as provided in this Section A.7. 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 Term Date
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 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.7 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
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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) the Term Date 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.7.
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.7,
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.
If a transfer to the Deferred Plan has been made pursuant to
Section A.6 hereof, payments made to the Executive from the Deferred Plan (a)
shall be deemed made first from the amounts transferred to the Deferred Plan
pursuant to Section A.6 and (b) shall be deemed made first out of Account
Retained Income.
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Within 90 days after the end of each taxable year of the
Company in which payments are made, directly or indirectly, to the Executive
from the Trust Account or from the Deferred Plan with respect to amounts
transferred to the Deferred Plan from the Trust Account pursuant to Section A.6
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.7, the Executive shall not be entitled to receive pursuant to this
Annex A (including any amounts that have been transferred to the Deferred Plan
pursuant to Section A.6 hereof) 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.7 shall be determined in accordance with Section
A.5 above.
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