Contract
EXHIBIT
10.44
EMPLOYMENT AGREEMENT made September 21, 2001, effective as of July 30, 2001 (the “Effective
Date”), between AOL TIME WARNER INC., a Delaware corporation (the “Company”), and XXXXXXXX
XXXX-XXXXXXX.
You and the Company desire to set forth the terms and conditions of your employment by the
Company and agree as follows:
1. Term of Employment. Your “term of employment” as this phrase is used throughout
this Agreement, shall be for the period beginning on the Effective Date and ending on July 29, 2005
(the “Term Date”), subject, however, to earlier termination as set forth in this Agreement.
2. Employment. During the term of employment, you shall serve as Executive Vice
President, Administration, of the Company and you shall have the authority, functions, duties,
powers and responsibilities normally associated with such position and such additional authority,
functions, duties, powers and responsibilities as may be assigned to you from time to time by the
Company consistent with your senior position with the Company. During the term of employment, (i)
you shall be a member of the Company’s Executive Committee, for so long as it continues to exist,
or any successor thereto and you shall serve as the Chairperson of the Human Resources Directors
Counsel, the membership of which shall consist of the senior human resources executives of each of
the Company’s operating divisions, (ii) your services shall be rendered on a substantially
full-time, exclusive basis and you will apply on a full-time basis all of your skill and experience
to the performance of your duties, (iii) you shall report directly to a Co-Chief Operating Officer
of the Company, (iv) you shall have no other employment and, without the prior written consent of
the Chairman, the Chief Executive Officer or a Chief Operating Officer of the Company, no outside
business activities which require the devotion of substantial amounts of your time, and (v) the
place for the performance of your services shall be the principal executive offices of the Company
in the New York City metropolitan area, subject to such reasonable travel as may be required in the
performance of your duties. 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.
3. Compensation.
3.1 Base Salary. The Company shall pay you a base salary at the rate of not less
than $750,000 per annum during the term of employment (“Base Salary”). The Company may not
decrease your Base Salary during the term of employment. Base Salary shall be paid in accordance
with the Company’s customary payroll practices.
3.2 Bonus. In addition to Base Salary, the Company typically pays its executives an
annual cash bonus (“Bonus”). Although your Bonus is fully discretionary, your target annual Bonus
is $1,500,000, pro rated for any year in which you are employed for less than the whole year. Each
year, your personal performance will be considered in the context of your executive duties and any
individual goals set for you, and your actual Bonus will be determined. You will be consulted prior
to the setting of any individual goals which are to be established for you. Although as a general
matter the Company expects to pay bonuses at the target level in cases of satisfactory individual
performance, it does not commit to do so, and your Bonus may be negatively affected by the exercise
of the Company’s discretion or by overall Company performance. Notwithstanding the foregoing, with
respect to 2001, you shall receive a guaranteed minimum Bonus of no less than $625,000.
3.3 Stock Options. Subject to your execution of this Agreement, you have been granted
a new hire option to purchase 400,000 shares of Common Stock of the Company. Without limiting the
Company’s discretion, commencing in 2002 you will be eligible to receive annual grants of stock
options and, although the Company does not commit to do so, you will have a target annual award of
an option to purchase between 350,000 and 400,000 shares of Company Common Stock. Each such stock
option grant shall be at an exercise price equal to the fair market value of the Common Stock on
the date of grant and shall be reflected in a separate Stock Option Agreement in accordance with
the Company’s customary practices.
3.4 Indemnification. You shall be entitled throughout the term of employment (and
after the end of the term of employment, to the extent relating to service during the term of
employment) 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 hereof that limit or narrow, but including any that add to or broaden, the
protection afforded to you by those provisions).
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”. Termination by the Company for “cause” shall mean termination by
action of the Company because of (a) your 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), (b)
willful refusal without proper cause to perform your obligations under this Agreement, (c) fraud,
embezzlement or misappropriation or (d) 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 you
and shall be effective as of the date such notice is delivered; provided, however, that if (i)
such termination is because of your willful refusal without proper cause to perform any one or more
of your obligations under this Agreement, (ii) such notice is the first such
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notice of termination
for any reason delivered by the Company to you under this Section 4.1, and (iii) within 15 days
following the date such notice is delivered you shall cease your refusal and shall use your best
efforts to perform such obligations, the termination shall not be effective.
In the event of 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
obligation to you other than (i) to pay Base Salary through the effective date of termination, (ii)
to pay any Bonus and issue any stock options for any year prior to the year in which such
termination occurs that have been determined but not yet paid or issued as of the date of such
termination, (iii) with respect to any rights you have to reimbursement of business expenses
incurred prior to the effective date of termination, and (iv) with respect to any rights you may
have pursuant to any insurance or other benefit plans or arrangements of the Company. In the event
of a termination by the Company for cause, you hereby disclaim any right to receive a pro rata
portion of any Bonus with respect to the year in which such termination occurs.
4.2 Termination by You 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, you 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 is 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 you pursuant to this Section 4.2 and within such 15-day period the Company shall have
cured all such material breaches. A material breach by the Company shall include, but not be
limited to, (i) the Company violating Section 2 with respect to your title, reporting lines, duties
or place of employment or (ii) the Company failing to cause any 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 you, to terminate your
employment under this Agreement without cause, which notice shall specify the effective date of
such termination.
4.2.1 On or promptly after the effective date of a termination by you or by the Company
pursuant to this Section 4.2 (a “termination without cause”), you shall receive Base Salary and a
pro rata portion of your Average Annual Bonus (as defined below) through the effective date of
termination. Your
Average Annual Bonus shall be equal to the average of the 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 annual bonus received by you from the Company was the greatest;
provided, however, if the Company has
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previously paid you no annual Bonus, then your Average Annual
Bonus shall equal your target Bonus and if the Company has previously paid you one annual Bonus,
then your Average Annual Bonus shall equal the average of such Bonus and your target Bonus.
4.2.2 After the effective date of a termination without cause, you shall remain an employee
of the Company for a period ending on the date (the “Severance Term Date”) which is the later of
(i) the Term Date and (ii) the date which is twelve months after the effective date of such
termination and during such period you shall be entitled to receive, whether or not you become
disabled during such period but subject to Section 6, (a) Base Salary at an annual rate equal to
your Base Salary in effect immediately prior to the notice of termination, and (b) an annual Bonus
in respect of each calendar year or portion thereof (in which case a pro rata portion of such Bonus
will be payable) during such period equal to your Average Annual Bonus. Except as provided in the
second succeeding sentence, if you accept other full-time employment during such period or notify
the Company in writing of your intention to terminate your status as an employee during such
period, you shall cease to be an employee of the Company effective upon the commencement of such
other employment or the effective date of such termination as specified by you in such notice,
whichever is applicable, and you shall be entitled to receive, as severance, a lump sum payment
within 30 days after such commencement or such effective date (provided that if you were 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 payments you would have received pursuant to this Section 4.2.2 had you remained
on the Company’s payroll. That lump sum 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
commencement or 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, as amended (the “Code”), in effect on the date of such commencement or termination,
compounded semi-annually. Notwithstanding the foregoing, if you accept employment with any
not-for-profit entity, then you 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 you accept full-time
employment with any affiliate of the Company, then the payments provided for in this Section 4.2.2
shall immediately cease and you 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
on a month-to-month basis and you 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
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(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 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 such termination shall be deemed for all purposes of this
Agreement to be a “termination without cause” under Section 4.2 and the provisions of Sections
4.2.1 and 4.2.2 shall apply.
4.4 Office Facilities. In the event of a termination without cause, then for the
period beginning on the effective date of such termination and ending on the earlier of (a) six
months thereafter or (b) the date you commence other full-time employment, the Company shall,
without charge to you, make available to you office space at or near your principal job location
immediately prior to such termination, together with secretarial services, office facilities,
services and furnishings, in each case reasonably appropriate to an employee of your position and
responsibilities prior to such termination but taking into account your reduced need for such
office space, secretarial services and office facilities, services and furnishings as a result of
you no longer being a full-time employee.
4.5 Release. A condition precedent to the Company’s obligation to make the
payments associated with a termination without cause shall be your execution and delivery of a
release in the form attached hereto as Annex A. Within ten days of receipt by the Company of such
release signed by you, the Company shall deliver to you a release substantially in the form
attached hereto as Annex B, signed by the Company. If you shall fail to execute and deliver such
release, or if you revoke such release as provided therein, the Company shall have no obligation to
deliver the Annex B release and, in lieu of the payments provided for herein, you shall receive a
severance payment determined in accordance with the Company’s policies relating to notice and
severance.
4.6 Mitigation. In the event of a termination without cause under this Agreement,
you shall not be required to seek other employment in order to mitigate your damages hereunder
unless Section 280G of the Code would apply to any payments to you by the Company and your failure
to mitigate would result in the Company losing tax deductions to which it would otherwise have been
entitled. In such an event, you will
engage in whatsoever mitigation is necessary to preserve the Company’s tax deductions. With
respect to the preceding sentences, any payments or rights to which you are entitled by reason of
the termination of employment without cause shall be considered as damages hereunder. Any
obligation to mitigate your damages pursuant to this Section 4.6 shall not be a defense or offset
to the Company’s obligation to pay you in full the amounts provided in this Agreement upon the
occurrence of a termination without cause, at the time provided herein, or the timely and full
performance of any of the Company’s other obligations under this Agreement.
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4.7 Payments. So long as you remain on the payroll of the Company or any
subsidiary of the Company, payments of Base Salary and Bonus required to be made after a
termination without cause shall be made at the same times as salary and bonus payments are made to
other senior executives of the Company.
5. Disability.
5.1 Disability Payments. If during the term of employment and prior to the
delivery of any notice of termination without cause, you become physically or mentally disabled,
whether totally or partially, so that you are prevented from performing your 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 your full compensation 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 you have not resumed your usual duties
on or prior to the Disability Date, the Company shall pay you a pro rata Bonus (based on your
Average Annual Bonus) for the year in which the Disability Date occurs and thereafter shall pay you
disability benefits for the period ending on the later of (i) the Term Date or (ii) the date which
is twelve months after the Disability Date (in the case of either (i) or (ii), the “Disability
Period”), in an annual amount equal to 75% of (a) your Base Salary at the time you become disabled
and (b) the Average Annual Bonus.
5.2 Recovery from Disability. If during the Disability Period you shall fully
recover from your disability, the Company shall have the right (exercisable within 60 days after
notice from you of such recovery), but not the obligation, to restore you to full-time service at
full compensation. If the Company elects to restore you 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 you to
full-time service, you shall be entitled to obtain other employment, subject, however, to the
following: (i) you shall perform advisory services during any balance of the Disability Period;
and (ii) you shall comply with the provisions of Sections 9 and 10 during the Disability Period.
The advisory services referred to in clause (i) of the immediately
preceding sentence shall consist of rendering advice concerning the organization and
management of the Company as requested by the Chairman, the Chief Executive Officer or a Chief
Operating Officer of the Company but you 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.
5.3 Other Disability Provisions. The Company shall be entitled to deduct from all
payments to be made to you during the Disability Period pursuant to this Section 5 an amount equal
to all disability payments received by you during the Disability Period from Worker’s Compensation,
Social Security and disability insurance policies
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maintained by the Company; provided, however,
that for so long as, and to the extent that, proceeds paid to you from such disability insurance
policies are not includible in your 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. Except as otherwise
provided in this Section 5, the term of employment shall continue during the Disability Period and
you 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 you to full-time service at full compensation prior to the end of the Disability Period,
the term of employment shall end and you 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. If you die during the term of employment, this Agreement and all
obligations of the Company to make any payments hereunder shall terminate except that your estate
(or a designated beneficiary) shall be entitled to receive Base Salary to the last day of the month
in which your death occurs and Bonus compensation (at the time bonuses are normally paid) based on
the Average Annual Bonus, but prorated according to the number of whole or partial months you were
employed by the Company in such calendar year.
7. Life Insurance. During your employment with the Company, the Company shall (i)
provide you with $50,000 of group life insurance and (ii) pay you annually an amount equal to two
times the premium you 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 $3,000,000. You
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 you hereunder 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) you are eligible under the
general provisions thereof (including without limitation, any plan provision providing for
participation to be limited to persons who were employees of the company or certain of its
subsidiaries prior to a specific point in time) and (b) the Company maintains such plan or program
for the benefit of its executives, during the term of employment and
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so long as you are an employee
of the Company, you shall be eligible to participate in any savings 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.
8.2 Benefits After a Termination or Disability. During the period you remain on
the payroll of the Company after a termination without cause or during the Disability Period, you
shall continue to be eligible to participate in the benefit plans and to receive the benefits
required to be provided to you under this Agreement to the extent such benefits are maintained in
effect by the Company for its executives; provided, however, you shall not be entitled to any
additional awards or grants under any stock option, restricted stock or other stock based incentive
plan. At the time you leave the payroll of the Company, your 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 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. However, notwithstanding the foregoing or any more restrictive
provisions of any such plan or agreement, if your employment with the Company is terminated as a
result of a termination pursuant to Section 4.2, then, except if you shall otherwise qualify for
retirement under the terms of the applicable stock option agreement, (i) all stock options granted
to you by the Company which would have vested on or before the Severance Term Date (or the
comparable date of any employment agreement that amends, replaces or supersedes this Agreement)
shall vest and become immediately exercisable upon the effective date of such termination, (ii) all
your vested options, including those which shall vest as provided in subsection (i) above, shall
remain exercisable while you are on the payroll of the Company and for a period of three years
after the date you leave the payroll of the Company (but not beyond the term of such options), and
(iii) the Company shall not be permitted to determine that your
employment was terminated for “unsatisfactory performance” within the meaning of any stock
option agreement between you and the Company or “for cause” pursuant to Sections 10(d) and 11(c) of
the 1999 Stock Option Plan of the Company (other than in connection with a determination that you
committed fraud, embezzlement or misappropriation during your employment with the Company).
8.3 Payments in Lieu of Other Benefits. In the event the term of employment and
your employment with the Company is terminated pursuant to any
section of this Agreement, you shall not be entitled to notice and severance under the Company’s
general employee policies 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.
9.1 Confidentiality Covenant. You acknowledge that your employment by the Company
(which, for purposes of this Section 9 shall mean AOL Time
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Warner Inc. and its affiliates) will,
throughout the term of employment, bring you 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. You
further acknowledge that the services to be performed under this Agreement are of a special,
unique, unusual, extraordinary and intellectual character. You further acknowledge that the
business of the Company is international in scope, that its products and services 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 your
services, position and expertise are such that you are capable of competing with the Company from
nearly any location in the world. In recognition of the foregoing, you covenant and agree:
9.1.1 You shall keep secret all confidential matters of the Company and shall not disclose
such matters to anyone outside of the Company, or to anyone inside the Company who does not have a
need to know or use such information, and shall not use such information for personal benefit or
the benefit of a third party, either during or after the term of employment, except with the
Company’s written consent, provided that (i) you shall have no such obligation to the extent such
matters are or become publicly known other than as a result of your breach of your obligations
hereunder and (ii) you 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 You shall deliver promptly to the Company on termination of your employment, or at any
other time the Company may so request, all
memoranda, notes, records, reports and other documents (and all copies thereof) relating to
the Company’s business, which you obtained while employed by, or otherwise serving or acting on
behalf of, the Company and which you may then possess or have under your control; and
9.1.3 If the term of employment is terminated pursuant to Section 4, for a period of one
year after such termination, without the prior written consent of the Company, you shall not
employ, and shall not cause any entity of which you are 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 your secretary or executive assistant or to any
other employee eligible to receive overtime pay.
9.2 Non-Compete. During the term of employment and through the later of (i) the
Term Date, (ii) the date you leave the payroll of the Company, and (iii) twelve months after the
effective date of any termination of the term of employment pursuant to Section 4, you shall not,
directly or indirectly, without the prior written consent of the Chairman, the Chief Executive
Officer or any Chief Operating Officer of the
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Company, render any services to, or act in any
capacity for, any Competitive Entity, or acquire any interest of any type in any Competitive
Entity; provided, however, that the foregoing shall not be deemed to prohibit you from acquiring,
(a) 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 you are not part of any control group of such Competitive Entity
and such securities, including converted securities, do not constitute more than one percent (1%)
of the outstanding voting power of that entity and (b) securities of any Competitive Entity that
are not publicly traded, so long as you are not part of any control group of such Competitive
Entity and such securities, including converted securities, do not constitute more than three
percent (3%) of the outstanding voting power of that entity. For purposes of the foregoing, the
following shall be deemed to be a Competitive Entity: (x) during the period that you are actively
employed with the Company, any person or entity that engages in any line of business that is
substantially the same as either (i) any line of business which the Company engages in, conducts
or, to your knowledge, has definitive plans to engage in or conduct or (ii) any operating business
that is engaged in or conducted by the Company as to which, to your knowledge, the Company
covenants, in writing, not to compete with in connection with the disposition of such business, and
(y) during the period following a termination of your term of employment pursuant to Section 4, any
of the following: AT&T Corporation, Bertelsmann A.G., The Xxxx Disney Company, EarthLink, Inc.,
General Electric Corporation, Microsoft Corporation, The News Corporation, Sony Corporation,
Vivendi Universal, S.A., Viacom Inc. and Yahoo! Inc., and their respective subsidiaries and
affiliates and any successor to any internet service provider, media or entertainment businesses
thereof.
10. Ownership of Work Product. You acknowledge that during the term of employment,
you 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 you by reason of your employment by the Company. You
acknowledge that all of the foregoing shall be owned by and belong exclusively to the Company and
that you 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 you for the possible
interest or participation of the Company. You 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 your
inventorship or creation in any appropriate case. You agree that you will not assert any rights to
any Work Product or business opportunity as having been made or acquired by you 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.
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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 a nationally recognized overnight
delivery service, 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):
11.1 If to the Company:
AOL Time Warner Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Vice President — Global
Compensation and Benefits
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Vice President — Global
Compensation and Benefits
(with a copy, similarly addressed
but Attention: General Counsel)
but Attention: General Counsel)
11.2 If to you, to your residence address set forth on the records of the Company, with a
copy to:
Xxxxxx Del, Esq.
Del, Xxxx, Moonves, Tanaka & Xxxxxxxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Del, Xxxx, Moonves, Tanaka & Xxxxxxxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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 the Annexes hereto, 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.
12.4 No Other Representations. No representation, promise or inducement has been
made by either party that is not embodied in this Agreement, and
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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 your rights and obligations hereunder may
not be assigned by you and except as specifically contemplated in this Agreement, neither you, your
legal representative nor any beneficiary designated by you 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. The Company shall
assign its rights together with its obligations hereunder in connection with any sale, transfer or
other disposition of all or substantially all of the Company’s business and assets, whether by
merger, purchase of stock or assets or otherwise, as the case may be. Upon any such assignment, the
Company shall cause any such successor expressly to assume such obligations, and such rights and
obligations shall inure to and be binding upon any such successor.
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 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 you commit a material
breach of any of the provisions of Sections 9.1, 9.2, or 10, 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.
12.8 Resolution of Disputes. Except as provided in the preceding Section 12.7, any
dispute or controversy arising with respect to this Agreement and your employment hereunder
(whether based on contract or tort or upon any federal, state or local statute, including but not
limited to claims asserted under the Age Discrimination in Employment Act, Title VII of the Civil
Rights Act of 1964, as amended, any state Fair Employment Practices Act and/or the Americans with
Disability Act) shall, at the election of either you or the Company, 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
12
dispute
or controversy) and thereupon any such dispute or controversy shall be resolved only in accordance
with the provisions of this Section 12.8. 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 non-judicial (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 parties shall have the right to conduct reasonable discovery in connection with any 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 12.8.
If you shall be the prevailing party in such arbitration, the Company shall promptly pay, upon your
demand, all legal fees, court costs and other costs and expenses incurred by you in any legal
action seeking to enforce the award in any court.
12.9 Beneficiaries. Whenever this Agreement provides for any payment to your
estate, such payment may be made instead to such beneficiary or beneficiaries as you may designate
by written notice to the Company. You 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.
12.10 No Conflict. You represent and warrant to the Company that this Agreement is
legal, valid and binding upon you and the execution of this Agreement and the performance of your
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 you are a party (including, without
limitation, any other employment, separation or severance agreement or arrangement). You further
represent that, to the best of your knowledge, there is no basis for any claim or assertion by your
prior employer that the Company interfered with, or induced a breach by you of, your prior
employment arrangements. The Company represents and warrants to you 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.
12.11 Withholding Taxes. Payments made to you pursuant to this Agreement shall be
subject to withholding and social security taxes and other ordinary and customary payroll
deductions.
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12.12 No Offset. Neither you nor the Company 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 you and the Company shall make all the
payments provided for in this Agreement in a timely manner.
12.13 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.
12.14 Survival. Sections 3.4, 8.3 and 9 through 12 shall survive any termination
of the term of employment by the Company for cause pursuant to Section 4.1. Sections 3.4, 4.2,
4.4, 4.5, 4.6, 5 and 8 through 12 shall survive any termination of the term of employment pursuant
to Sections 4.2, 5 or 6.
12.15 Definitions. The following terms are defined in this Agreement in the places
indicated:
affiliate — Section 4.2.2
Average Annual Bonus — Section 4.2.1
Base Salary — Section 3.1
Bonus — Section 3.2
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
Disability Date — Section 5
Disability Period — Section 5
Effective Date — the first paragraph on page 1
Term Date — Section 1
Severance Term Date — Section 4.2.2
term of employment — Section 1
termination without cause — Section 4.2.1
Work Product — Section 10
Average Annual Bonus — Section 4.2.1
Base Salary — Section 3.1
Bonus — Section 3.2
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
Disability Date — Section 5
Disability Period — Section 5
Effective Date — the first paragraph on page 1
Term Date — Section 1
Severance Term Date — Section 4.2.2
term of employment — Section 1
termination without cause — Section 4.2.1
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.
| AOL TIME WARNER INC. | ||||||
| By | /s/ Xxxxxxx X. Xxxxxxx | |||||
| /s/ Xxxxxxxx Xxxx-Xxxxxxx | ||||||
| Xxxxxxxx Xxxx-Xxxxxxx | ||||||
15
ANNEX A
RELEASE
Pursuant to the terms of the Employment Agreement made as of ___, between AOL 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 any successors, subsidiaries, affiliates, related entities,
predecessors, merged entities and parent entities and their respective officers, directors,
shareholders, employees, benefit plan administrators and trustees, agents, attorneys, insurers,
representatives, affiliates, successors and assigns from any and all actions, causes of action,
claims, or demands for general, special or punitive damages, attorney’s fees, expenses, or other
compensation or damages (collectively, “Claims”), 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, Claims related to any stock options held by me or granted to me by the Company
that are scheduled to vest subsequent to the Severance Term Date, as defined in the Agreement, and
Claims under the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964,
the Americans with Disabilities Act, the Fair Labor Standards Act, the Family and Medical Leave Act
and the Employee Retirement Income Security Act, each as amended through and including the date of
this Release; provided, however, that nothing herein shall constitute a release of
any rights I may have pursuant to any stock option or benefit plan of the Company, and the
execution of this Release shall not prevent me 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 ALSO ACKNOWLEDGE THAT BY SIGNING THIS RELEASE I MAY BE GIVING UP VALAUBLE LEGAL RIGHTS AND
THAT I HAVE BEEN ADVISED TO CONSULT A LAWYER BEFORE SIGNING. 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]
Annex B
Release
In connection with the Employment Agreement made September 21, 2001 effective July 30, 2001,
between AOL TIME WARNER INC. (the “Company”) and Xxxxxxxx Xxxx-Xxxxxxx (“Executive”) (the
“Agreement”), the Company does hereby release and forever discharge Executive and her estate,
heirs, beneficiaries and representatives, for any and all actions, causes of action, claims, or
demands for general, special or punitive damages, attorney’s fees, expenses, or other compensation
or damages, which in any way relate to or arise out of her employment with the Company or any of
its subsidiaries or the termination of such employment which the Company may now or hereafter have
under any federal, state or local law, regulation or order, through and including the date of this
Release; provided, however, that the execution of this Release shall not prevent the Company from
bringing a lawsuit against Executive (x) to enforce Executive’s obligations under Section 9 of the
Agreement, or (y) to seek damages or reimbursement for fraud or embezzlement committed by Executive
during her employment with the Company.
IN WITNESS WHEREOF the Company has caused this Release to be executed on its behalf by a duly
authorized officer this ___day of ___, 200___.
| AOL TIME WARNER INC. | ||||||
| By: | ||||||
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