EXHIBIT 10.22
EMPLOYMENT AGREEMENT made December 22, 2003, effective as of December
22, 2003 (the "Effective Date"), between TIME WARNER INC., a Delaware
corporation (the "Company"), and Xxxxxxx Xxxxxx ("You").
You are currently employed by Time Warner Inc. (the "Company")
pursuant to an Employment Agreement between you and Time Warner Entertainment
Company, L.P. dated December 22, 1999, as amended on March 29, 2001 and March
31, 2003 (as so amended, the "Prior Agreement"). The Company wishes to amend and
restate the terms of your employment with the Company and to secure your
services on a full-time basis for the period to and including December 31, 2007
(the "Term Date") on and subject to the terms and conditions set forth in this
Agreement, and you are willing to provide such services on and subject to the
terms and conditions set forth in this Agreement. You and the Company therefore
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 the Term Date, subject, however, to earlier termination as
set forth in this Agreement.
2. Employment. During your employment, you shall serve as Chairman of
the Entertainment and Networks Group of the Company ("Group Chairman") and shall
report only to the Chairman and Chief Executive Officer of the Company. 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 the Board of Directors may from time to
time delegate to you in addition thereto consistent with your position with the
Company. You shall, subject to your 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 you may
be elected from time to time. During your employment, (i) your services shall be
rendered on a substantially full-time, exclusive basis and you will apply on a
substantially full-time basis all of your skill and experience to the
performance of your duties, (ii) you shall have no other employment and, without
the prior written consent of the Chairman and Chief Executive Officer of the
Company, no outside business activities which require the devotion of
substantial amounts of your time, and (iii) unless you consent otherwise, 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 and shall not
prevent you from devoting such time to your personal affairs (including service
as a director of another entity) as shall not interfere with the performance of
your duties hereunder, provided that you comply with the provisions of the
Confidentiality Agreement and any generally applicable written policies of the
Company 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 you a base salary
at the rate of not less than $ 1,000,000 per annum during the term of employment
("Base Salary"). The Company may increase, but not decrease, your Base Salary
during the term of employment and upon such increase the term "Base Salary"
shall mean such increased amount (subject to Section 5). Base Salary shall be
paid 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 the executive officers of the Company.
3.2 Bonus. In addition to Base Salary, you may be
entitled to receive during the term of employment an annual cash bonus ("Bonus")
subject to and pursuant to the Company's Annual Bonus Plan for Executive
Officers (such plan, together with any successor plan of Company intended to
comply with Section 162(m) of the Internal Revenue Code of 1986, as amended (the
"Code"), being hereinafter referred to as the "Annual Bonus Plan"). Although
your Bonus is fully discretionary, your target annual Bonus is $4,500,000.
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 its senior executives, but in no event later than 90 days after the end of
the period for which the bonus is payable.
3.3 Deferred Compensation Account. Pursuant to the terms
of your previous employment agreements with the Company, you have been paid
deferred compensation which has been deposited in a special account (the "Trust
Account") maintained on the books of a Time Warner Inc. grantor trust (the
"Rabbi Trust") for your benefit. The Trust Account shall be maintained by the
trustee ("Trustee") thereof in accordance with the terms of Annex A attached
hereto and the trust agreement (the "Trust Agreement") establishing the Rabbi
Trust (which Trust Agreement shall in all respects be consistent with the terms
of Annex A), until the full amount which you are entitled to receive therefrom
has been paid in full. The Company shall pay all fees and expenses of the
Trustee and shall enforce the provisions of the Trust Agreement for your
benefit.
3.4 Long Term Incentive Compensation. Company shall
provide you with long term incentive compensation with an annualized competitive
target award as reasonably determined by the Compensation Committee of the
Company's Board of Directors in good faith from time to time, through a
combination of stock option grants, restricted stock and long-term plan
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as may be developed (in proportions to be determined annually by the Company in
its sole discretion). The parties acknowledge that the grant for 2003 was
targeted to a competitive level of $7,000,000.
3.5 Restricted Stock. You will be awarded 500,000 shares
of Time Warner Restricted Stock (the "Upfront Restricted Stock Grant") upon your
execution and delivery of this Agreement, which shall be reflected in a separate
Restricted Stock Purchase Agreement that will set forth terms and conditions of
the Upfront Restricted Stock Grant, including a provision that the Upfront
Restricted Stock Grant shall xxxxx xxxx on December 31, 2007, provided you are
still employed by the Company on that date.
In the event your employment with the Company is terminated as a result
of a termination pursuant to Section 4.2, then the Upfront Restricted Stock
Grant shall cease to vest and you shall receive a pro rata portion of the
unvested Upfront Restricted Stock Grant through the effective date of
termination of your active employment.
3.6 Deferred Bonus. In addition to any other deferred
bonus plan in which you may be entitled to participate, you may elect by written
notice delivered to the Company at least 15 days prior to the commencement of
any calendar year during the term of employment during which an annual cash
bonus would otherwise accrue or to which it would relate, to defer payment of
and to have the Company credit all or any portion of your bonus for such year to
either the Trust Account or the Deferred Compensation Plan established by the
Company on November 18, 1998, as the same may be amended from time to time (and
as so amended, 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.
3.7 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 and in any other agreements or
arrangements intended to provide you with indemnification rights (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).
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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 Sections 4.1 and in Section
3.7, for "cause". Termination by the Company for "cause" shall mean termination
because of your (a) 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)
other than as a result of a moving violation or a Limited Vicarious Liability,
(b) willful failure or refusal without proper cause to perform your material
duties with the Company, including your material obligations under this
Agreement (other than any such failure resulting from your incapacity due to
physical or mental impairment), (c) willful misappropriation, embezzlement or
reckless or willful destruction of Company property having a significant adverse
financial effect on the Company or a significant adverse effect on the Company's
reputation, (d) willful and material breach of any statutory or common law duty
of loyalty to the Company having a significant adverse financial effect on the
Company or a significant adverse effect on the Company's reputation; or (e)
material and willful breach of any of the covenants provided for in the
Confidentiality Agreement. Such termination shall be effected by written notice
thereof delivered by the Company to you and shall be effective as of the date of
such notice; provided, however, that if (i) such termination is because of your
willful failure or refusal without proper cause to perform your material duties
with the Company including any one or more of your material obligations under
this Agreement or for intentional and improper conduct, and (ii) within 30 days
following the date of such notice you shall cease your refusal and shall use
your best efforts to perform such obligations or cease such intentional and
improper conduct, the termination shall not be effective. For purposes of this
definition of Cause, no act, or failure to act, on your part shall be considered
"willful" or "intentional" unless done, or omitted to be done, by you not in
good faith and without reasonable belief that such action or omission was
opposed to the best interest of the Company. The term "Limited Vicarious
Liability" shall mean any liability which is based on acts of the Company for
which you are responsible solely as a result of your office(s) with the Company;
provided that (x) you are not directly involved in such acts and either had no
prior knowledge of such intended actions or, upon obtaining such knowledge,
promptly acted reasonably and in good faith to attempt to prevent the acts
causing such liability or (y) after consulting with the Company's counsel, you
reasonably believed that no law was being violated by such acts.
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
for any year prior to the year in which such termination occurs that has been
determined but not yet paid as of the date of such termination, and (iii) with
respect to any rights you have with respect of amounts credited to the Trust
Account or Deferred Plan through
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the effective date of termination or pursuant to any insurance or other benefit
plans or arrangements of the Company (including rights under Section 9 hereof).
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 or place of employment; (ii) the Company
violating Section 2 with respect to your, authorities, functions duties, powers
or responsibilities (whether or not accompanied by a change in title); and (iii)
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 After the effective date of a termination
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 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 annual bonus received
by you during your employment as Group Chairman was the greatest; provided,
however, if the Company has previously paid you less than two annual bonuses,
then your Average Annual Bonus shall equal 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 earlier of (i) the Term
Date and (ii) the date which is thirty-six 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
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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 or governmental
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 90 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 90 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), then you shall receive any
unpaid Annual Bonus or award under Section 3.4 with respect to a year prior to
the year of termination which has been determined but not yet paid, Base Salary
and a pro rata portion of your Average Annual Bonus through the
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effective date of termination. At the end of the 90-day notice period provided
for in the first sentence of this Section 4.3, the term of employment shall end
and you shall cease to be an employee of the Company and you shall have no
further obligations or liabilities to the Company whatsoever, except that
Sections 3.6, 3.7, 4.5, 4.6 and 4.8, the Confidentiality Agreement and Annex A
shall survive such termination.
4.4 Resignation. If Xxx Xxxxx has retired and you are not
named President or sole Chief Operating Officer of the Company on or before
January 1, 2006, you shall have the right, exercisable by written notice to the
Company, to resign employment effective 30 days after the giving of such notice,
provided that such notice is given on or before June 30, 2006.
In the event you resign your employment pursuant to this
Section 4.4, your sole remedy shall be: (i) you shall remain an employee of the
Company for twelve months after the effective date of such resignation 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 resignation, and (b) an annual Bonus in respect of each calendar year or
portion thereof (in which case a pro rata portion of such annual payment will be
payable) during such period in an amount equal to your Average Annual Bonus. A
resignation under this Section 4.4 shall not be deemed a "termination without
cause" under this Agreement. The provisions of Section 2 of the Confidentiality
Agreement shall apply for a period of twelve months following the effective date
of your resignation.
4.5 Office Facilities. In the event of a termination of
your employment 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 you, make available to you office space at your
principal job location immediately prior to your 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 your position and responsibilities prior to such
termination of employment but taking into account your reduced need for such
office space, secretarial services and office facilities, services and
furnishings as a result of your no longer being a full-time employee.
4.6 Release. A condition precedent to the Company's
obligation to make the payments associated with a termination without cause or a
termination under Section 4.4 of the Agreement shall be your execution and
delivery of a release in the form attached hereto as Annex B. If you shall fail
to execute and deliver such release, or if you revoke such release as provided
therein, then 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.
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4.7 Retirement. Notwithstanding the provisions of
Sections 4.2, 4.3, 4.4 or 5, if the term of employment is in effect and you are
still employed by the Company pursuant to this Agreement on the date you first
become 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 your
employment with the Company shall thereafter be governed by the policies
generally applicable to employees of the Company, and you shall not thereafter
be entitled to the payments provided in such Sections to the extent not received
by you on or prior to the Retirement Date. In addition, no benefits or payments
provided in Sections 4.2, 4.3, 4.4 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 provisions of Annex A and the Trust
Agreement shall apply to the investment and payment of deferred compensation
after such termination, the provisions of Section 7 of this Agreement shall
survive any such termination and the provisions of Sections 12.1 and 12.8 shall
apply to any dispute with respect to this Agreement that arises after any such
termination.
4.8 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 whatever 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. In addition, whether or not you are required to mitigate your damages
hereunder, if following a termination without cause you obtain other employment
with any entity, other than a not-for-profit entity or government institution,
then you shall pay over to the Company the total cash salary and bonus (of any
kind) payable to you in connection with such other employment for services
during the period prior to the Severance Term Date (whether paid or deferred),
at the time received by you, to the extent of the amounts previously paid to you
by the Company following your termination with respect to such period, as
damages or severance, in excess of the Company's standard policy. (The
provisions of the foregoing sentence shall not apply to any equity interest,
stock option, phantom or restricted stock or similar benefit received in
connection with such other employment). Any obligation to mitigate your damages
pursuant to this Section 4.7 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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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 continue to
receive disability benefits and 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 the Confidentiality Agreement 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 Board of Directors or the Chief
Executive 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 maintained by the Company;
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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 4.4 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 any unpaid Annual Bonus award with respect to the year prior to your
death, 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. For purposes of clarity,
it is intended that your death shall not affect any vested rights you or your
beneficiaries may have at the time of your death pursuant to any insurance or
other death benefit plans or arrangements of the Company or any subsidiary or
benefit and incentive plans described in Sections 3.3, 8 and 9, which vested
rights shall continue to be governed by the provisions of such plans and this
Agreement.
7. Life Insurance. The parties confirm that pursuant to the terms of
your previous employment agreements with the Company, the Company maintained
$4,000,000 face amount of split ownership life insurance on your life. The
Company shall continue to maintain such life insurance and shall maintain such
policy (without reduction in the face amount of the coverage) until your death
and irrespective of any termination of this Agreement, except pursuant to
Section 4.1. You shall be entitled to designate the beneficiary or beneficiaries
of such policy, which may include a trust. At your death, or on the earlier
surrender of such policy by the owner, your estate (or the owner of the policy)
shall promptly pay to the Company an amount equal to the premiums on such policy
paid by the Company and its subsidiaries (net of (i) tax benefits, if any, to
the Company and its subsidiaries in respect of payments of such premiums, (ii)
any amounts payable by the Company which have been paid by you or on your behalf
with respect to such insurance, (iii) dividends received by the Company and its
subsidiaries in respect of such premiums, but only to the
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extent such dividends are not used to purchase additional insurance on your
life, and (iv) any unpaid borrowings by the Company and its subsidiaries under
the policy. If other than the Company, the owner of the policy from time to time
shall execute, deliver and maintain a customary split dollar insurance agreement
and collateral assignment form, assigning to the Company the proceeds of the
policy but only to the extent necessary to secure the reimbursement of the
obligation contained in the preceding sentence. The Company agrees that it will
not borrow against the policy an amount in excess of the premiums on such policy
paid by the Company and its subsidiaries (net of the amounts referred to in
clauses (i), (ii) and (iii) above). The life insurance provided for in this
Section 7 shall be in addition to any other insurance hereafter provided by the
Company or any of its subsidiaries on your life under any group or individual
policy. In addition to the foregoing, during your employment with the Company,
the Company shall (x) provide you with $50,000 of group life insurance and (y)
pay you annually an amount equal to 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 (i) twice your Base Salary minus
(ii) $50,000. 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. The parties intend that any life insurance provided under this Section
7 shall be provided in a manner consistent with applicable laws.
8. General Availability of Benefits. 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 senior executives, during the term of employment and so long as
you are an employee of the Company, you shall be eligible to participate in any
pension, profit-sharing, stock option or similar plan or program and in any
group life insurance (to the extent set forth in Section 7), hospitalization,
medical, dental, accident, disability or similar plan or program of the Company
now existing or established hereafter. In addition, you shall be entitled during
the term of employment and so long as you are an employee of the Company, to
receive other benefits generally available to all senior executives of the
Company to the extent you are 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.
9. Benefits After a Termination or Disability. During the period you
remain on the
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payroll of the Company after a termination without cause or during the
Disability Period, you shall continue to be an employee of the Company and 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, (a) all stock options granted to you
by the Company prior to November 1, 2003 shall be continue to be governed by the
terms and provisions of the applicable stock option plan or agreement under
which such options were awarded, as modified by the Prior Agreement; (b) if your
employment with the Company is terminated as a result of a termination pursuant
to Section 4.2, then (i) all stock options and restricted stock granted to you
by the Company on or after November 1, 2003 (other than the Upfront Restricted
Stock Grant awarded under Section 3.5) shall continue to vest while you remain
on the payroll of the Company (and thereafter receive a pro rata portion of
unvested restricted stock), (ii) all your vested options shall remain
exercisable while you are on the payroll of the Company and all stock options
granted to you by the Company on or after July 18, 2002 shall be vested and
remain exercisable for a period of five 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; and (c) if your employment is voluntarily
terminated by you at any time (x) following the attainment of age 55 with ten
years of service with the Company or any Affiliate or (y) pursuant to a
retirement plan or early retirement program of the Company or any Affiliate,
then all options granted to you by the Company shall vest and become immediately
exercisable, and shall remain exercisable for five years following your date of
termination (but not beyond the term of such options); provided, however, that
if the Company has given notice of termination under Section 4.1 prior to your
election to terminate pursuant to this subsection, then the terms of the
applicable stock option plan or agreement shall be controlling.
10. 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.
12
11. Assignability. This Agreement and your rights and obligations
hereunder may not be assigned by you and except as specifically contemplated in
this Agreement or under the life insurance policies and benefit plans referred
to in Sections 7 and 8, respectively, 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. Confidentiality, Non-Competition and Non-Disclosure Agreement. This
Agreement includes the Confidentiality, Non Competition and Ownership of Work
Product Agreement (the "Confidentiality Agreement"), which is attached hereto
and by this reference made a part of this Agreement. In the event of any
conflict between the terms of the Confidentiality Agreement and any express term
or condition provided in above, the express terms and conditions provided above
shall prevail.
13. Entire Agreement. This Agreement, including Annexes A, B, the
accompanying Confidentiality Agreement and the agreements specifically referred
to herein, represents the entire agreement and understanding of the parties
relating to the subject matter of this Agreement and, except as otherwise
specifically provided in this Agreement, supersedes all prior agreements,
arrangements and understandings, written or oral, between the parties. 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.
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
---------------------------
/s/ Xxxxxxx Xxxxxx
---------------------------
Xxxxxxx Xxxxxx
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ANNEX A
DEFERRED COMPENSATION ACCOUNT
A.1 Investments. Funds credited to the Trust Account shall be
actually invested and reinvested in an account in securities selected from time
to time by an investment advisor designated from time to time by the Company
(the "Investment Advisor"), substantially all of which securities shall be
"eligible securities". The designation from time to time by the Company of an
Investment Advisor shall be subject to the approval of the Executive, which
approval shall not be withheld unreasonably. "Eligible securities" are common
and preferred stocks, warrants to purchase common or preferred stocks, put and
call options, and corporate or governmental bonds, notes and debentures, either
listed on a national securities exchange or for which price quotations are
published in newspapers of general circulation, including The Wall Street
Journal, and certificates of deposit. Eligible securities shall not include the
common or preferred stock, any warrants, options or rights to purchase common or
preferred stock or the notes or debentures of the Company or any corporation or
other entity of which the Company owns directly or indirectly 5% or more of any
class of outstanding equity securities. The Investment Advisor shall have the
right, from time to time, to designate eligible securities which shall be
actually purchased and sold for the Trust Account on the date of reference. Such
purchases may be made on margin; provided that the Company may, from time to
time, by written notice to the Executive, the Trustee and the Investment
Advisor, limit or prohibit margin purchases in any manner it deems prudent and,
upon three business days written notice to the Executive, the Trustee and the
Investment Advisor, cause all eligible securities theretofore purchased on
margin to be sold. The Investment Advisor shall send notification to the
Executive and the Trustee in writing of each transaction within five business
days thereafter and shall render to the Executive and the Trustee written
quarterly reports as to the current status of his or her Trust Account. In the
case of any purchase, the Trust Account shall be charged with a dollar amount
equal to the quantity and kind of securities purchased multiplied by the fair
market value of such securities on the date of reference and shall be credited
with the quantity and kind of securities so purchased. In the case of any sale,
the Trust Account shall be charged with the quantity and kind of securities
sold, and shall be credited with a dollar amount equal to the quantity and kind
of securities sold multiplied by the fair market value of such securities on the
date of reference. Such charges and credits to the Trust Account shall take
place immediately upon the consummation of the transactions to which they
relate. As used herein "fair market value" means either (i) if the security is
actually purchased or sold by the Rabbi Trust on the date of reference, the
actual purchase or sale price per security to the Rabbi Trust or (ii) if the
security is not purchased or sold on the date of reference, in the case of a
listed security, the closing price per security on the date of reference, or if
there were no sales on such date, then the closing price per security on the
nearest preceding day on which there were such sales, and, in the case of an
unlisted security, the mean between the bid and asked prices per security on the
date of reference, or if no such prices are available for such date, then the
mean between the bid and asked prices per security on the nearest preceding day
for which such prices are available. If no bid or asked price information is
available with respect to a particular security, the price quoted to the Trustee
as the value of such security on the date of reference (or the nearest preceding
date for which such information is available) shall be used for purposes of
administering the Trust Account, including determining the fair market value of
such security. The Trust Account shall be charged currently with all interest
paid by the Trust Account with respect to any credit extended to the Trust
Account. Such interest shall be charged to the Trust Account, for margin
purchases actually made,
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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 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
15
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 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 first ten calendar days following the end
of the 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 immediately succeeding the month in
which the term of employment is scheduled to terminate under the Agreement. 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, plus
any amounts that have been transferred to the Deferred Plan pursuant to Section
A.6 hereof and not therefore distributed or deemed distributed therefrom,
exceeds the aggregate amount of credits to the Trust Account pursuant to
Sections 3.3, and 3.5 of the Agreement as of each Valuation Date and not
theretofore distributed or deemed distributed pursuant to this Section A.6 is
herein called "Account Retained Income". The amount of each payment for the
year, or such shorter period as may be determined by the Company or the Trustee,
of the Pay-Out Period immediately succeeding such Valuation Date, including the
payment then due, shall be determined by dividing the aggregate value of the
Trust Account, as valued and adjusted pursuant to the second preceding sentence,
by the number of payments remaining to be paid in the Pay-Out Period, including
the payment then due; provided that each payment made shall be deemed made first
out of Account Retained Income (to the extent remaining after all prior
distributions thereof since the last Valuation Date). The balance of the Trust
Account, after all the securities held therein have been sold and all
indebtedness liquidated, shall be paid to the Executive in the final payment,
which shall be decreased by deducting therefrom the amount of all taxes
attributable to the sale of any securities held in the Trust Account since the
end of the preceding taxable year of the Company, which taxes shall be computed
as of the date of such payment.
If pursuant to the terms of the Agreement the Trust Account is to be
paid out in one lump sum, then the Trust Account shall be valued as of the date
of the event triggering such lump sum payment (or such other date provided in
the Agreement) and 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 as soon as practicable and in any event within 30 days following
the date of such valuation 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.
17
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.
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 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.
18
ANNEX B
RELEASE
Pursuant to the terms of the Employment Agreement made as of
_____________, between TIME WARNER INC., a Delaware corporation (the "Company"),
00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and the undersigned (the
"Agreement"), and in consideration of the payments made to me and other benefits
to be received by me pursuant thereto, I, [Name], being of lawful age, do hereby
release and forever discharge the Company and 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 after taking into account the provisions of Section 9 of
the Agreement are scheduled to vest subsequent to my termination of employment
and Claims under the Age Discrimination in Employment Act (with the exception of
Claims that may arise after the date I sign this Release), 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 the execution of this Release shall not prevent
the undersigned from bringing a lawsuit against the Company to enforce my rights
and the Company's continuing 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 ___________, ____.
_________________________________
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