EXHIBIT 10.27
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT dated December 22, 1999
effective as of January 1, 1999, as amended on March 29, 2001, between TIME
WARNER ENTERTAINMENT COMPANY, L.P., a Delaware limited partnership (the
"Company"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "Executive").
The Executive is currently employed by the Home Box Office division
("Home Box Office") of the Company as Chairman of the Board, President and Chief
Executive Officer of Home Box Office pursuant to an Employment Agreement dated
May 31, 1996, as amended by Amendment dated as of April 2, 1998 (as so amended,
the "Prior Agreement"). The Company and the Executive wish to terminate the
Prior Agreement and to secure the services of the Executive pursuant to the
terms of this Agreement for the period from January 1, 1999 to and including
December 31, 2003 on the terms and conditions set forth below. The parties
therefore agree that the Prior Agreement is terminated as of December 31, 1998
and the Executive shall thereafter be employed by the Company pursuant to the
terms of this Agreement as follows:
1. Term of Services. The Executive's "term of employment," as
this phrase is used throughout this Agreement, shall be for the period beginning
on January 1, 1999 and ending on December 31, 2003 (the "Term Date"), subject,
however, to earlier termination as expressly provided herein.
2. Employment. During the term of employment, the Company shall
employ the Executive, and the Executive shall serve, as the Chairman of the
Board, President and Chief Executive Officer of Home Box Office and shall report
only to (a) the Chief Executive Officer of Time Warner Inc. ("Time Warner"), (b)
R.E. ▇▇▇▇▇▇ III, as a Vice Chairman of Time Warner or as Chief Executive Officer
of the networks group or division of Time Warner or the Company, or (c) if all
other Chief Executive Officers of the divisions of Time Warner and the Company
report to the President or Chief Operating Officer of Time Warner, then to such
President or Chief Operating Officer of Time Warner, each of such aforementioned
individuals being a "Superior". The Executive shall have the authority,
functions, duties, powers and responsibilities normally associated with the
positions of chairman of the board, president and chief executive officer of a
major division or a wholly-owned subsidiary of a publicly-held parent company
and as the Chief Executive Officer of Time Warner and any other Superior to whom
the Executive is
then reporting may from time to time delegate to the Executive in addition
thereto, but in no event shall the Executive's authority, functions, duties,
powers and responsibilities be less than those which have been afforded or
delegated to the Executive throughout the period of the Prior Agreement. The
parties agree that the Executive shall continue to be guided by the general
policy decisions of his Superior. The Executive agrees, subject to his election
as such and without additional compensation, to serve during the term of
employment in such particular additional offices of comparable stature and
responsibility to which he may be elected from time to time in Time Warner
and/or the Company and its subsidiaries and divisions and to serve as a director
and as a member of any committee of the Board of Directors of Time Warner and/or
the Company's subsidiaries. During the term of employment, (i) the Executive's
services shall be rendered on a substantially full-time, exclusive basis, (ii)
he will apply on a substantially full-time basis all of his skill and experience
to the performance of his duties in such employment, (iii) he shall have no
other employment and, without the prior consent of the Chief Executive Officer
of Time Warner or any other Superior to whom the Executive is then reporting, no
outside business activities which require the devotion of substantial amounts of
the Executive's time and (iv) unless the Executive otherwise consents, the
headquarters for the performance of his services shall be the principal
executive offices of Home Box Office in the greater New York City area, subject
to such reasonable travel as the performance of his duties in the business of
the Company may require.
During the term of employment, the Executive shall not, directly or
indirectly, without the prior consent of the Chief Executive Officer of Time
Warner or any other Superior to whom the Executive is then reporting, render any
services to any other person, or acquire any interest of any type in any other
person, that might be deemed in competition with Time Warner, the Company or any
of their respective subsidiaries or affiliates or in conflict with his
full-time, exclusive position as a senior executive officer of the Company;
provided, however, that the foregoing shall not be deemed to prohibit the
Executive from (A) acquiring, solely as an investment and through market
purchases, securities of any corporation which are registered under Section
12(b) or 12(g) of the Securities Exchange Act of 1934 and which are publicly
traded, so long as he is not part of any control group of such corporation and
such securities, if converted, do not constitute more than one percent (1%) of
the outstanding voting power of that public company, (B) acquiring, solely as an
investment, any securities of a partnership, trust, corporation (other than a
corporation that has outstanding securities covered by the preceding clause (A))
or other entity so long as he remains a passive investor in such entity and does
not become part of any control group thereof and so long as such entity is not,
directly or indirectly, in competition with the Company or any of its
subsidiaries or affiliates, or (C) serving as a
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director of any other public company that is not in competition with Time Warner
or the Company or any of their respective subsidiaries or affiliates. For
purposes of the foregoing, a person or entity shall be deemed to be in
competition with Time Warner or the Company or any of their respective
subsidiaries or affiliates if he or it engages in any line of business that is
substantially the same as either (1) any line of operating business which Time
Warner or the Company or any of their respective subsidiaries or affiliates
engages in, conducts or, to the knowledge of the Executive, has definitive plans
to engage in or conduct during the term of employment, or (2) any operating
business that is engaged in or conducted by Time Warner or the Company or any of
their respective subsidiaries or affiliates during the term of employment and as
to which, to the knowledge of the Executive, Time Warner or the Company or any
of their respective subsidiaries or affiliates covenants in writing, in
connection with the disposition of such business, not to compete therewith.
3. Compensation.
3.1 Base Salary. The Company shall pay or cause to be
paid to the Executive during the term of employment a base salary of not less
than $1,000,000 per annum (the "Base Salary"). The Company may increase, but not
decrease, the Base Salary at any time and from time to time during the term of
employment, and upon each such increase the term "Base Salary" shall mean such
increased amount. Base Salary shall be payable in monthly or more frequent
installments in accordance with the Company's regular payroll practices for
senior executives.
3.2 Bonus. In addition to Base Salary, the Executive may
be entitled to receive an annual cash bonus based on the performance of Home Box
Office and of the Executive. Bonuses for the Executive shall be determined by
the Chief Executive Officer of Time Warner and/or any other Superior to whom the
Executive is then reporting. Such determination with respect to the amount, if
any, of annual bonuses to be paid to the Executive under this Agreement shall be
final and conclusive except as otherwise provided herein. If at the time the
bonus with respect to any calendar year is determined the Executive does not
report to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as Chief Executive Officer of Time Warner, the
Executive shall be entitled to receive a bonus for that year of not less than
$2,750,000. 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 bonuses paid to other senior executives, but in no event later than
90 days after the end of the period for which the bonus is payable.
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3.3 Deferred Compensation. Pursuant to the terms of
Executive's employment agreements with the Company, Executive has been paid
deferred compensation which has been deposited in a special account (the "Trust
Account") maintained on the books of a grantor trust (the "Rabbi Trust") for
Executive's benefit. Effective as of January 1, 2001, no additional deferred
compensation shall be deposited in the Trust Account. The Trust Account, as
reflected on the records of the Rabbi Trust as of January 1, 2001, shall
continue to be maintained by the trustee (the "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 in furtherance of, and not inconsistent with, the terms of Annex A),
until the full amount which Executive is 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 Executive's benefit. Any
other deferred compensation account maintained by the Company for Executive's
benefit shall continue to be maintained in accordance with the terms of the
deferred compensation plan under which such account was established.
3.4 Deferred Bonus. In addition to any other deferred
bonus plan in which Executive may be entitled to participate, the Executive may
elect by written notice delivered to the Company at least 15 days prior to the
commencement of any calendar year during the term of employment during which an
annual cash bonus would otherwise accrue or to which it would relate, to defer
payment of and to have the Company credit all or any portion of the Executive's
bonus for such year to either the Trust Account or the Deferred Plan, or a
combination of both, subject in the case of a deferral to the Deferred Plan to
the terms and conditions of the Deferred Plan. Any such election shall only
apply to the calendar year during the term of employment with respect to which
such election is made and a new election shall be required with respect to each
successive calendar year during the term of employment.
3.5 Prior Account. The parties confirm that the Company
has maintained a deferred compensation account (the "Prior Account") for the
Executive in accordance with the Prior Agreement. The Prior Account shall be
promptly transferred to, and shall for all purposes be deemed part of, the Trust
Account and shall be maintained by the Trustee in accordance with this Agreement
and the Trust Agreement. All prior credits to the Prior Account shall be deemed
to be credits made under this Agreement, all "Account Retained Income"
thereunder shall be deemed to be Account Retained Income under this Agreement
and all increases or decreases to the Prior Account as a result of income,
gains, losses and other changes shall be deemed to have been made under this
Agreement.
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3.6 Long-Term Compensation. Effective as of December 31,
2000, Executive shall cease to participate in Home Box Office Cash Flow
Incentive Plan IV ("CFIP IV" or the "Plan"). Executive shall receive a payment
of $5,000,000, in respect of Executive's pro rata portion of his award under the
Plan for the period through December 31, 2000, no later than the later of (x)
April 13, 2001 and (y) three days following the date upon which Executive
executes Amendment No. 1 to this Agreement, and Executive understands and that
he shall not be entitled to any further payment thereunder. In consideration of
the elimination of Executive's participation in CFIP IV, on February 27, 2001,
the Company granted Executive options to purchase 1,250,000 shares of Common
Stock of AOL Time Warner Inc. at an exercise price of $45.36 per share, which
Executive hereby acknowledges and accepts.
3.7 Reimbursement. The Company shall pay or reimburse the
Executive for all reasonable expenses actually incurred or paid by the Executive
during the term of employment in the performance of his services hereunder upon
presentation of expense statements or vouchers or such other supporting
information as the Company may customarily require of its senior executives.
3.8 No Anticipatory Assignments. Except as specifically
contemplated hereunder, neither the Executive, his legal representative nor any
beneficiary designated by him shall have any right, without the express prior
written consent of the Company, to assign, transfer, pledge, hypothecate,
anticipate or commute any payment due in the future to such person pursuant to
any provision of this Agreement, and any attempt to do so shall be void and will
not be recognized by the Company.
3.9 Indemnification. The Executive shall be entitled
throughout the term of employment in his capacity as an officer or director of
the Company or any of its subsidiaries or as an officer or member of any
governing body of any partnership or joint venture in which the Company has any
equity interest or as a trustee or fiduciary of any plan, program or trust or
other entity established for the benefit of the Company, its subsidiaries or any
of their respective employees in connection with the business of the Company
(and after the term of employment, to the extent relating to his services as an
officer, director or member, trustee or fiduciary) to the benefit of the
indemnification provisions contained on the date hereof in the Agreement of
Limited Partnership, dated as of October 29, 1991, as amended (the "Limited
Partnership Agreement"), of the Company (not including any amendments or
additions that limit or narrow, but including any that add to or broaden, the
protection afforded to the Executive by those
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provisions), to the extent permitted by applicable law at the time of the
assertion of any liability against the Executive.
4. Termination.
4.1 Termination for Cause. The Company may terminate the
term of employment and all of the Company's obligations hereunder, other than
its obligations set forth below in this Section 4.1, for "cause", but only if
the term of employment has not previously been terminated pursuant to any other
provision of this Agreement. Termination by the Company for "cause" shall mean
termination by action of the Chief Executive Officer of Time Warner or any other
Superior to whom the Executive is then reporting because of the Executive's (i)
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), (ii) willful
refusal without proper cause to perform his material obligations under this
Agreement including, without limitation, the Executive's tendering of his
written resignation or his written termination of this Agreement (other than
pursuant to Section 4.2) prior to the expiration of the term of employment,
(iii) material breach of any of the covenants provided for in Section 9 (other
than Section 9.1.2) or (iv) willful misconduct which materially adversely
affects the business, operations or financial condition of Time Warner, the
Company or Home Box Office. Such termination shall be effected by notice thereof
specifying in detail the reason for such termination delivered by the Company to
the Executive and shall be effective as of the date of such notice; provided,
however, that if (A) such termination is because of the Executive's willful
refusal without proper cause to perform any one or more of his material
obligations under this Agreement (other than as a result of the tendering of his
written resignation or his termination of this Agreement other than as provided
in Section 4.2), (B) such notice is the first such notice of termination for any
reason delivered by the Company to the Executive hereunder, and (C) within 15
days following the date of such notice the Executive shall cease his refusal and
shall use his best efforts to perform such obligations, the termination shall
not be effective.
In the event of termination by the Company for cause in
accordance with the foregoing procedures, without prejudice to any other rights
or remedies that the Company may have at law or equity, the Company shall have
no further obligations to the Executive other than (1) to pay Base Salary and
make credits of deferred compensation as provided in Sections 3.1 and 3.3
accrued through the effective date of termination, (2) to pay any annual bonus
pursuant to Section 3.2 to the Executive in respect of any year prior to the
year in which such termination is effective which has been determined (or, with
respect to any such prior year in which the
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Executive is entitled to received a minimum bonus pursuant to Section 3.2,
whether or not determined) but not yet paid as of the date of such termination,
and (3) with respect to any rights the Executive has under Section 8 or any
rights which the Executive has in respect of amounts credited to the Trust
Account under Section 3.3 through the effective date of termination or pursuant
to any insurance or benefit plans or arrangements of the Company maintained for
the benefit of the Executive or the Company's senior executives. The Executive
hereby disclaims any right to receive a pro rata portion of the Executive's
annual bonus with respect to the year in which such termination occurs.
4.2 Termination by Executive for Material Breach by the
Company and Termination by the Company Without Cause. Subject to the provisions
of this Section 4.2, the Company may terminate the term of employment under this
Agreement without "cause" at any time. In addition, the Executive shall have the
right, exercisable by notice to the Company, to terminate the term of employment
under this Agreement effective 15 days after the giving of such notice, if, at
the time of such notice, the Company shall be in material breach of its
obligations hereunder; provided, however, that, with the exception of clause (i)
below, this Agreement shall not so terminate if within such 15-day period the
Company shall have cured all such material breaches of its obligations hereunder
and such notice is the first such notice of termination delivered by the
Executive pursuant to this Section 4.2. The parties acknowledge and agree that a
material breach by the Company shall include, but not be limited to, (i) the
Company failing to cause the Executive to remain as Chairman of the Board,
President and Chief Executive Officer of Home Box Office; (ii) the Executive
being required to report to a person other than those specified in Section 2;
(iii) the Company diminishing the status, authority, functions, duties, powers
or responsibilities afforded or delegated to the Executive as contemplated in
Section 2 or impeding the Executive in the good faith exercise of such
authority, functions, duties, powers or responsibilities (whether or not
accompanied by a change in title); provided, however, that any other provision
to the contrary notwithstanding, if the Company and the Executive have not
entered into a new employment agreement pursuant to Section 4.3, the Company
may, at any time and for any reason upon seven days written notice to the
Executive during the period beginning July 1, 2003 through December 31, 2003,
relieve the Executive of any and all of the Executive's authority, functions,
duties, powers or responsibilities (whether or not accompanied by a change in
title) and any such action to relieve the Executive shall not be construed as a
breach by the Company of its obligations under the Agreement so long as the
Executive shall continue to receive all compensation as provided in Section 3;
(iv) the Company's failure to comply with the provisions of Section 3.6.5; (v)
unless the Executive otherwise consents, the Company requiring the Executive's
primary services to be rendered in an
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area other than at the Company's principal offices in the New York metropolitan
area; and (vi) the Company failing to cause the successor to all or
substantially all of the business and assets of the Company expressly to assume
the obligations of the Company or Home Box Office, as the case may be, under
this Agreement.
In the event of a termination of the term of employment
pursuant to this Section 4.2, the Executive shall remain an employee of the
Company as provided in Section 4.2.2. In such event, the following provisions
shall apply:
4.2.1 After the effective date of such
termination, the Executive shall have no further obligations or liabilities to
the Company whatsoever, other than pursuant to Sections 4.5 and 9 through 12
which shall survive such termination, and, any provision to the contrary
notwithstanding, the Executive shall be entitled (A) to receive (i) any accrued
(through the effective date of termination) but not yet paid Base Salary; (ii) a
bonus for the year prior to the year in which the term of employment is
terminated which has not yet been paid but has been determined pursuant to
Section 3.2 (or if not determined, the Average Bonus (as defined below); (iii) a
bonus for the year in which the term of employment is terminated equal to the
Average Bonus (as defined below), prorated through the effective date of
termination; and (iv) long-term compensation as provided in Section 3.6, and (B)
to be credited with deferred compensation through the effective date of
termination and any portion of Executive's pro rata bonus will be credited to
the Trust Account or Deferred Plan in accordance with any previous election made
by the Executive to defer all or any portion of his bonus for such year pursuant
to Section 3.4.
4.2.2 After the effective date of termination
pursuant to this Section 4.2, the Executive shall remain an employee of the
Company for the period ending, at the election of the Executive (which election
shall be made by written notice delivered to the Company at any time within one
calendar year following the effective date of termination) (i) 18 months or (ii)
three years after the effective date of such termination and during such period
the Executive shall be entitled to receive, whether or not he becomes disabled
during such period but subject to Section 6, (A) Base Salary as provided in
Section 3.1, (B) an annual bonus in respect of each calendar year during such
period equal to the Average Bonus (as defined below) (including a pro rata bonus
for any partial year), and (C) credits of deferred compensation as provided in
Section 3.3; provided, however, that, subject to the provisions of Section
9.2.2, if the Executive accepts full-time employment with any other corporation,
partnership, trust, government or other entity during such period or notifies
the Company in writing of his intention to terminate his employment during such
period, the Executive shall cease to be an employee of the Company
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effective upon the commencement of such employment, or the effective date of
such termination as specified by the Executive in such notice, and shall be
entitled to receive, as damages, a lump sum cash payment within 30 days after
such commencement or such effective date, discounted as provided in the
immediately following sentence, equal to the balance of the Base Salary,
deferred compensation (which shall be credited as provided in the fourth
sentence of Section 3.3) and Average Bonuses (assuming no deferral pursuant to
Sections 3.4) the Executive would have been entitled to receive pursuant to this
Section 4.2.2 had the Executive remained on the Company's payroll until the end
of such period. The lump sum payment required to be made to the Executive
pursuant to this Section 4.2.2 shall be discounted to present value from the
times at which such amounts would have been paid absent any such termination at
an annual discount rate for the relevant periods equal to 120% of the
"applicable Federal rate" (within the meaning of Section 1274(d) of the Internal
Revenue Code of 1986 (the "Code")), in effect on the date of such termination,
compounded semi-annually, the use of which rate is hereby elected by the parties
hereto pursuant to Treas. Reg. ss.1.280G-1 Q/A 32 (provided that, in the event
such electioN is not permitted under Section 280G of the Code and the
regulations thereunder, such other rate determined as of such other date as is
applicable for determining present value under Section 280G of the Code) (the
"Discount Rate"). Notwithstanding the foregoing, if the Executive accepts
employment with any charitable or not-for-profit entity, or any corporation,
trust or partnership which is at least 80% owned by the Executive or members of
his immediate family, then the Executive shall be entitled to remain an employee
of the Company and receive the payments as provided in the first sentence of
this Section 4.2.2; and if the Executive accepts full-time employment with any
affiliate of the Company or Time Warner, then the payments provided for in this
Section 4.2.2 shall immediately cease and the Executive shall not be entitled to
any lump sum payment. For purposes of this Agreement (i) the term "affiliate"
shall mean any entity which, directly or indirectly, controls, is controlled by,
or is under common control with, the Company or Time Warner, and (ii) the term
"Average Bonus" shall mean the average of the regular annual bonuses (excluding
the amount of any special or spot bonuses) received by the Executive from the
Company for the two fiscal years during the most recent five years for which the
regular annual bonus received by the Executive was the greatest.
4.2.3 In the event the Executive's employment is
terminated pursuant to Section 4.2, then for a period beginning on the effective
date of termination and ending one year thereafter, the Executive will, without
charge to the Executive, have use of reasonable office space and reasonable
office facilities at the Executive's principal job location immediately prior to
his termination of employment, or other location reasonably close to such
location, together with reasonable secretarial services in each case appropriate
to an employee of the Executive's
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position and responsibilities prior to such termination of employment but taking
into account the Executive's reduced need for such office space, secretarial
services and office facilities, services and furnishings as a result of the
Executive's no longer being a full-time employee.
4.2.4 At the time the Executive shall terminate
his employment and leave the payroll of the Company pursuant to the provisions
of this Section 4.2, 4.3, 5 or 6 the Executive's rights to benefits and payments
under any insurance or other death benefit plans or arrangements of the Company
or Time Warner or under any stock option, restricted stock, stock appreciation
right, bonus unit, management incentive or other plan of the Company or Time
Warner 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; provided, however, that notwithstanding the foregoing
or the provisions of any plan or agreement, the provisions of Sections 7 and 8.1
and Annex A shall remain in effect after any such termination.
4.2.5 Any obligation of the Executive to mitigate
his damages pursuant to Section 4.5 shall not be a defense or offset to the
Company's obligation to pay the Executive in full the damages provided in
Section 4.2.2 or 4.3 or the payments to be made pursuant to Annex A, as the case
may be, at the time provided therein or the timely and full performance of any
of the Company's other obligations under this Agreement.
4.3 End of Term of Employment. If the Executive and the
Company have not on or prior to December 31, 2003 reached written agreement
regarding the Executive's employment with the Company after December 31, 2003,
then the Executive's term of employment shall end on December 31, 2003 (such an
event being a "Non-Renewal") and the Executive shall elect (i) to cease being an
employee of the Company without the receipt of a lump sum payment pursuant to
Section 4.3.1, (ii) to cease being an employee of the Company and to receive a
lump-sum payment pursuant to Section 4.3.1 or (iii) to remain an employee of the
Company for a period elected pursuant to Section 4.3.2.
4.3.1 In the event the Executive shall make the
election provided in Section 4.3(ii), the Company shall pay as severance within
30 days thereafter in a lump sum (discounted at the Discount Rate) an amount
equal to, at the election of the Executive (which election shall be made by
written notice to the Company prior to the end of such 30 day period), (i) the
sum of six months of Base Salary and deferred compensation plus 50% of the
Average Bonus or (ii) the sum of 12 months of Base Salary and deferred
compensation plus the Average
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Bonus. In either instance, the deferred compensation portion of the
payment shall be credited as provided in the fourth sentence of Section 3.3.
4.3.2 In the event the Executive shall make the
election provided in Section 4.3(iii), the Executive shall remain an employee of
the Company for the period ending, at the election of the Executive (which
election shall be made by written notice delivered to the Company at any time
within six months of his making the election as provided in Section 4.3(iii)
above), (i) six months or (ii) 12 months after the effective date of such
termination of the term of employment and during such period the Executive shall
be entitled to receive (A) Base Salary as provided in Section 3.1, (B) an annual
bonus in respect of each calendar year during such period equal to the Average
Bonus (including a pro rata bonus for any partial year) and (C) deferred
compensation as provided in Section 3.3; provided, however, that, subject to the
provisions of Section 9.2.2, if the Executive accepts full-time employment with
any other corporation, partnership, trust, government or other entity (other
than a charitable or not-for-profit entity, or any corporation, trust or
partnership which is at least 80% owned by the Executive or members of his
immediate family) during such period or notifies the Company in writing of his
intention to terminate his employment during such period, the Executive shall
cease to be an employee of the Company effective upon the commencement of such
employment, or the effective date of such termination as specified by the
Executive in such notice, and shall be entitled to receive as damages, a lump
sum cash payment (discounted at the Discount Rate) for the balance of the Base
Salary, deferred compensation (which shall be credited to the Trust Account or
the Deferred Plan as provided in the fourth sentence of Section 3.3) and annual
bonuses the Executive would have been entitled to receive pursuant to this
Section 4.3.2 had the Executive remained on the Company's payroll until the end
of such period; provided further, that the Executive shall not be entitled to
receive such lump sum cash payment if he accepts full-time employment with any
subsidiary or affiliate of the Company or Time Warner.
4.4 Benefits Following Termination of the Term of
Employment. During the period the Executive remains on the payroll of the
Company pursuant to Section 4.2.2, 4.3(iii) or 5, the Executive will continue to
be eligible to receive the benefits required to be provided to the Executive
under this Agreement to the extent such benefits are maintained in effect by the
Company for its senior executives; provided, however, that the Executive shall
not be entitled to any additional awards or grants under any stock option,
restricted stock or other stock based incentive plan. In the event of a
termination of the term of employment, the Executive shall continue to be an
employee of the Company for purposes of any stock option and restricted
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shares agreements and any other incentive plan awards until such time as the
Executive shall leave the payroll of the Company.
4.5 Payments After Termination/Mitigation. In the event
the Company makes any payments to the Executive pursuant to Section 4.2.2, 4.3.1
or 4.3.2, such payments shall be in consideration of the Executive's obligations
under Section 9.2.2 and the Executive shall not be required to seek other
employment in order to mitigate, or otherwise mitigate or set off, the payments
payable by the Company to the Executive pursuant to Section 4.2.2, 4.3.1 or
4.3.2, as applicable; provided, however, that, notwithstanding the foregoing, if
the Internal Revenue Service (or other relevant taxing authority) shall
determine that the amounts paid or payable to the Executive pursuant to Section
4.2.2, 4.3.1 or 4.3.2 (i) relate to an event of termination which is "contingent
on a change" (within the meaning of Section 280G(b)(2)(A)(i) of the Code) and
(ii) do not constitute reasonable compensation for the performance of future
services within the meaning of Section 280G(b)(4) of the Code by virtue of
Executive's covenant to refrain from performing future services for certain
others pursuant to Section 9.2.2, then such payments shall be treated as damages
hereunder and the Executive shall be required to mitigate such damages
hereunder, including any such damages theretofore paid, but not in excess of the
extent, if any, necessary to prevent the Company or its partners from losing any
tax deductions to which they otherwise would be entitled in connection with such
damages.
5. Disability. If during the term of employment and prior to any
termination of this Agreement under Section 4.2 the Executive shall become
physically or mentally disabled, whether totally or partially, so that he is
prevented from performing his usual duties for a period of six consecutive
months, or for shorter periods aggregating six months or more in any
twelve-month period, the Company shall, nevertheless, continue to pay the
Executive his full compensation and continue to make the deferred compensation
credits, when otherwise due, as provided in Section 3.3, through the last day of
the sixth consecutive month of disability or the date on which the shorter
periods of disability shall have equaled a total of six months in any
twelve-month period (such last day or date being referred to herein as the
"Disability Date"). If the Executive has not resumed his usual duties on or
prior to the Disability Date, the Company shall pay the Executive disability
benefits for the balance of the term of employment in an amount equal to 75% of
(i) what the Base Salary otherwise would have been pursuant to this Agreement
had the disability not occurred, and this reduced amount shall also be deemed to
be the Base Salary for purposes of determining the amounts to be credited by the
Company pursuant to Section 3.3 as further disability benefits and (ii) the
average of the regular annual bonuses (excluding the amount of any special or
spot bonuses) in respect of the three years for which the
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annual bonus received by the Executive from the Company was the greatest. If
during the term of employment and subsequent to the Disability Date the
Executive shall fully recover from a disability, the Company shall have the
right (exercisable within sixty (60) days after notice from the Executive of
such recovery), but not the obligation, to restore the Executive to full-time
service at full compensation. If the Company elects not to restore the Executive
to full-time service the Executive may terminate the term of employment by
written notice to the Company and upon such termination neither party shall have
any further obligations hereunder except that the provisions of Section 3.6.3
and Sections 7 through 12 shall survive any such termination. If the Company
elects not to restore the Executive to full-time service and the Executive does
not elect to terminate the term of employment, the Executive shall be entitled
to continue to receive disability benefits under this Section 5 and to obtain
other employment, subject, however, to the following: (A) the Executive shall be
obligated to perform advisory services during any balance of the term of
employment; and (B) the continued application of the covenants provided in the
last paragraph of Section 2. The advisory services referred to in clause (A) of
the immediately preceding sentence shall consist of rendering advice concerning
the business, affairs and management of Home Box Office as requested by the
Chief Executive Officer of Time Warner and/or any other Superior to whom the
Executive is then reporting but the Executive shall not be required to devote
more than five days (up to eight hours per day) each month to such services,
which shall be performed at a time and place mutually convenient to both
parties. Any income from any other employment shall not be applied to reduce the
Company's obligations under this Agreement. The term of employment shall not be
extended or be deemed suspended by reason of any period of disability. The
Company shall be entitled to deduct from all payments to be made to the
Executive during any disability period (whether or not there has been a
reduction in amounts paid pursuant to this Section 5 and whether or not such
payments are made in lieu of Base Salary, bonus or deferred compensation) an
amount equal to all disability payments received by the Executive (but only with
respect to that portion of the disability period occurring during the term of
employment) from Workmen's Compensation, Social Security and disability
insurance policies maintained by the Company or Time Warner; provided, however,
that for so long as, and to the extent that, proceeds paid to the Executive from
such disability insurance policies are not includable in his income for Federal
income tax purposes, the Company's deduction with respect to such payments shall
be equal to the product of (1) such payments and (2) 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.
13
6. Death. Upon the death of the Executive, this Agreement and all
benefits hereunder shall terminate except that (i) the Executive's estate (or a
designated beneficiary thereof) shall be entitled to receive the Base Salary and
deferred compensation to the last day of the month in which his death occurs and
shall be entitled to receive bonus compensation based on the average of the
regular annual bonuses (excluding the amount of any special or spot bonuses) in
respect of the three years for which the annual bonus received by the Executive
from the Company was the greatest, but prorated according to the number of whole
or partial months the Executive was employed by the Company in such year, (ii)
such termination shall not affect any vested rights which the Executive may have
at the time of his death pursuant to any insurance or other death benefit plans
or arrangements of the Company or Time Warner or any subsidiary or the benefit
and incentive plans described in Sections 3.6.3 and 8, which vested rights shall
continue to be governed by the provisions of such plans and this Agreement, and
(iii) the Trust Account shall be liquidated and revalued as provided in Annex A
as of the date of the Executive's death (except that all taxes shall be computed
and charged to the Account as of such date of death to the extent not
theretofore so computed and charged) and the entire balance thereof (plus any
amount due under the last paragraph of Section A.7 of Annex A) shall be paid to
the Executive's estate in a single payment not later than 75 days following such
date of death.
7. Life Insurance.
7.1 Split Life Policy. The Company shall maintain
$4,000,000 face amount of split ownership life insurance on the life of the
Executive, to be owned by the Executive or, pursuant to the Executive's
designation, the trustees of a trust for the benefit of the Executive's spouse
and/or descendants. Until the death of the Executive, and irrespective of any
termination of this Agreement except pursuant to Section 4.1, the Company shall
pay all premiums on such policy and shall maintain such policy (without
reduction of the face amount of the coverage). At the death of the Executive, or
on the earlier surrender of such policy by the owner, the Executive agrees that
the owner of the policy shall promptly pay to the Company an amount equal to the
premiums on such policy paid by the Company (net of (i) tax benefits, if any, to
the Company in respect of payments of such premiums, (ii) any amounts payable by
the Company which had been paid by or on behalf of the Executive with respect to
such insurance, (iii) dividends received by the Company in respect of such
premiums, but only to the extent such dividends are not used to purchase
additional insurance on the life of the Executive, and (iv) any unpaid
borrowings by the Company on the policy), whether before, during or after the
term of this Agreement. The owner of the policy from time to time shall execute,
deliver and maintain a customary split dollar insurance and collateral
assignment form, assigning to the Company the
14
proceeds of such policy but only to the extent necessary to secure the
reimbursement obligation contained in the preceding sentence. The Company agrees
that it will not borrow from the cash value of the policy in excess of the
Company's borrowings from other similar split dollar policies covering any other
chief executive officer of the Company's major divisions.
7.2 Individual. In addition to the insurance maintained
pursuant to Section 7.1, the Company will also maintain or cause to be
maintained life insurance on the life of the Executive under the group life
insurance policy generally available to executives of Home Box Office. The
Executive shall be entitled to designate the beneficiary or beneficiaries of
such policy which may include a trust.
8. Other Benefits.
8.1 Stock Options.
8.1.1 Group A, Group B and Group C Options. The
Executive has received various grants of options to purchase shares of Time
Warner Common Stock (the "Common Stock") (i) prior to January 10, 1990
(hereinafter collectively referred to as the "Group A Options"), (ii) after
January 9, 1990 and prior to May 1, 1995 (hereinafter collectively referred to
as the "Group B Options"), and (iii) on March 20, 1996 and after May 1, 1996 and
prior to December 31, 1999 (collectively referred to as the "Group C Options").
8.1.2 Group D Options. The Company agrees that it
will cause Time Warner to grant options to the Executive to purchase 250,000
shares of Common Stock in each of 2000 and 2001 and that it will cause AOL Time
Warner Inc. to grant options to the Executive to purchase 375,000 shares of AOL
Time Warner Inc. Common Stock in each of 2002 and 2003, in each such case at the
first time during such year that options are granted on a multi-division wide
basis or generally to other employees of Home Box Office but in no event later
than May 30th, so long as notice to terminate the term of employment shall not
have been given pursuant to Section 4.1 or 4.2 (all options granted pursuant to
Section 8.1.2, together with all other options granted after December 31, 1999
and prior to the end of the term of employment, are hereinafter collectively
referred to as the "Group D Options"). If the outstanding shares of Common Stock
are hereafter changed by reason of reorganization, merger, consolidation,
recapitalization, reclassification, stock split-up, combination or exchange of
shares or a similar transaction, or dividends payable in shares of Common Stock,
the number of shares of common stock referred to above subject to options to be
granted after such change shall be appropriately adjusted.
15
Group D Options granted after December 31, 2000 shall vest and become
exercisable no slower than as follows: 25% on the first anniversary of the date
of grant, 50% on the second anniversary of the date of grant, 75% on the third
anniversary of the date of grant, and 100% on the fourth anniversary of the date
of grant. The exercise price of each share of Common Stock subject to a Group D
Option shall be no greater than the fair market value of a share of Common Stock
on the date of the option grant. Upon the grant of any Group D Options, a
separate Stock Option Agreement relating to such Options consistent with the
terms of this Agreement will be entered into between the Executive and the
Company. On January 11, 2001, Executive was granted a Founders Grant of stock
options to purchase 1,000,000 shares of AOL Time Warner Inc. Common Stock at an
exercise price of $48.96 per share. Executive acknowledges that such grant
satisfies the Company's obligation as required in this Section 8.1.2 to cause
Time Warner to grant options to Executive in 2001, and shall not alter or amend,
or create any implication with respect to, the Company's obligation under this
Section to cause options to be granted to Executive during 2002, 2003 or any
other year.
8.1.3 Termination of Employment.
(i) Notwithstanding anything to the
contrary contained in this Agreement or the plans and the option agreements
covering the Group A, Group B and Group C Options, the Company hereby agrees
that if the Executive's term of employment is terminated pursuant to Section 4.2
or as a result of a Non-Renewal pursuant to Section 4.3, the Company agrees to
take, or to cause Time Warner to take, such action as may be necessary so that
(x) the Group B and Group C Options shall become immediately exercisable and
shall remain exercisable for the full term thereof and (y) any unexercised Group
A Options shall remain exercisable (but not beyond the end of their respective
option terms) for a period of three years from the date of termination pursuant
to such Section 4.2 or 4.3, as the case may be; provided, however, that in the
case of a termination pursuant to Section 4.2, the Group A Options shall remain
exercisable for such three-year period or until the end of the term of
employment, whichever is longer (but not beyond their respective option terms).
In addition, if the Executive's employment with the Company shall terminate by
reason of death or disability, then the Group C Options shall become immediately
exercisable and shall remain exercisable for the full term thereof.
(ii) If Executive's employment is
terminated pursuant to Section 4.2 or as a result of Non-Renewal pursuant to 4.3
or by reason of death or disability, all Group D Options previously granted to
the Executive shall vest and become immediately exercisable and
16
shall remain exercisable (but not beyond the option term) for a period of five
years from the date of such termination.
(iii) If the Executive shall breach the
provisions of Section 9.2, any then unexercised Group A, Group B, Group C or
Group D Options shall thereupon immediately be canceled and be null and void.
Notwithstanding anything to the contrary contained in this Agreement or the
plans and the option agreement covering the Group A, Group B, and Group C
Options, the Company hereby agrees that if the Executive's term of employment is
terminated pursuant to Section 4.1 or by the Executive other than pursuant to
Section 4.2, the Company agrees to take, or cause Time Warner to take, such
actions as may be necessary so that the Group A, Group B and Group C Options
shall become exercisable and remain exercisable for at least 90 days after such
termination (but not beyond their respective options terms).
8.2 Other Benefit Plans. To the extent that (i) he is
eligible under the general provisions thereof and (ii) the Company maintains
such plan or program for the benefit of its senior executives, during the term
of employment the Executive shall be eligible to participate in any pension,
profit-sharing, or similar plan or program of the Company or Time Warner now
existing or established hereafter. To the extent maintained in effect by the
Company for its senior executives, the Executive shall also be entitled to
participate in any group insurance, hospitalization, medical, dental, accident,
disability or similar plan or program of the Company or Time Warner now existing
or established hereafter to the extent that he is eligible under the general
provisions thereof. The Executive shall be entitled to receive other benefits
generally available to all senior executives of the Company to the extent that
he is eligible therefor, including, without limitation, to the extent maintained
in effect by the Company for its senior executives, an automobile allowance and
payment for financial services.
9. Protection of Confidential Information.
9.1 Covenant. The Executive acknowledges that his
employment by the Company (which, for purposes of this Section 9 shall mean Time
Warner and the Company and their respective subsidiaries and affiliates) will,
throughout the term of employment, bring him into close contact with many
confidential affairs of the Company, including information about costs, profits,
markets, sales, products, key personnel, pricing policies, operational methods,
technical processes and other business affairs and methods and other information
not readily available to the public, and plans for future development. The
Executive further acknowledges that the services to be performed under this
Agreement are of a special, unique, unusual,
17
extraordinary and intellectual character. The Executive further acknowledges
that the business of the Company is international in scope, that its products
are marketed throughout the world, that the Company competes in nearly all of
its business activities with other organizations that are or could be located in
nearly any part of the world and that the nature of the Executive's services,
position and expertise are such that he is capable of competing with the Company
from nearly any location in the world. In recognition of the foregoing, the
Executive covenants and agrees:
9.1.1 That he will keep secret all material
confidential matters of the Company, including without limitation, the terms of
this Agreement, and will not intentionally disclose such matters to anyone
outside of the Company, either during or after the term of employment, except
with the Company's written consent, provided that (i) the Executive shall have
no such obligation to the extent such matters are or become publicly known other
than as a result of the Executive's breach of his obligations hereunder, (ii)
the Executive may, after giving prior notice to the Company to the extent
practicable under the circumstances, disclose such matters to the extent
required by applicable laws or governmental regulations or judicial or
regulatory process, and (iii) the Executive may disclose the terms of this
Agreement to his spouse, lawyers, financial advisers and accountants provided
they agree to keep such terms confidential.
9.1.2 That he will deliver promptly to the Company
upon termination of the term of employment, or at any other time the Company may
so request, at the Company's expense, all memoranda, notes, records, reports and
other documents (and all copies thereof) relating to the Company's business,
which he obtained while employed by, or otherwise serving or acting on behalf
of, the Company and which he may then possess or have under his control;
provided that if the Executive is to continue as a director, consultant or
advisor to the Company after such termination, the Executive may retain such
documents as are necessary or appropriate to the performance of his duties
unless and until the Company requests that such documents be delivered to it.
9.1.3 That for a period of one year after
termination of his employment with the Company, the Executive will not employ,
and will not cause any entity of which he is an affiliate to employ, any person
who was a full-time executive employee of the Company or any of its affiliates
at the date of such termination or within six months prior thereto.
9.2 Non-Compete.
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9.2.1 Termination for Cause. If the term of
employment is terminated by the Executive in breach of this Agreement or by the
Company pursuant to Section 4.1, then, in any such case, for the 18 months
following the date of such termination the Executive shall not be or become an
officer, director, partner or employee of or consultant to or act in any
managerial capacity with (for the purposes of this Section 9.2, hereinafter
referred to as being an "Employee") or own any equity interest in Viacom Inc.
("Viacom"), or The Seagram Company Ltd. ("Seagram") or any of their respective
subsidiaries or affiliates or any other entity which is engaged in the operation
or management of any pay-television or pay-per-view channel or pay-per-view
network.
9.2.2 Termination for Other Reasons. If the term
of employment is terminated by the Company or the Executive pursuant to Section
4.2 or upon a Non-Renewal pursuant to Section 4.3, then in any such case, for
the time periods specified in the second and third sentences of this Section
9.2.2, the Executive shall not become an officer, director, partner or employee
of or consultant to or act in any managerial capacity with or own an equity
interest in Viacom or Seagram or any of their respective subsidiaries or
affiliates or any other entity which operates or manages any pay-television,
pay-per-view channel or pay-per-view network. Following a termination of
Executive's employment pursuant to Section 4.2, if the Executive elects to
receive the payments for the period referred to in clause (i) of Section 4.2.2,
the provisions of this Section 9.2.2 shall apply for 18 months following the
date of the termination of the term of employment, and if the Executive elects
to receive the payments for the period referred to in clause (ii) of Section
4.2.2 the provisions of this Section 9.2.2 shall apply for 36 months following
the date of the termination of the term of employment. In the event of a
Non-Renewal under Section 4.3, if the Executive elects to receive a lump sum
payment described in Section 4.3.1 or to remain an employee of the Company
pursuant to Section 4.3.2, then with respect to the payment referred to in
clause (i) of each such Section, the provisions of this Section 9.2.2 shall
apply for six months following the date of the termination of the term of
employment, and with respect to the payment referred to in clause (ii) of each
such Section, the provisions of this Section 9.2.2 shall apply for 12 months
following the date of the termination of the term of employment. In the event of
a Non-Renewal, if the Executive does not elect to receive a lump sum payment
pursuant to Section 4.3.1 or to remain an employee of the Company pursuant to
Section 4.3.2, then the provisions of this Section 9.2.2 shall not apply to the
Executive.
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9.2.3 The provisions of Sections 9.2.1 and 9.2.2
shall not prevent the Executive from acquiring, solely as an investment and
through market purchases, securities of any corporation 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 the Executive is not part of any control group
of such corporation and such securities, if converted, do not constitute more
than one percent (1%) of the outstanding voting power of that company. In
addition, the parties agree that the provisions of Sections 9.2.1 and 9.2.2
notwithstanding, the Executive may be an Employee of any entity (other than
Viacom or Seagram) which owns, operates or manages any pay-television or
pay-per-view channel or pay-per-view network so long as the Executive has no
involvement whatsoever in the management or operation of such channel or
network.
9.3 Specific Remedy. In addition to such other rights and
remedies as the Company may have at equity or in law with respect to any breach
of this Agreement, if the Executive commits a material breach of any of the
provisions of Section 9.1 or 9.2, the Company and/or Time Warner shall have the
right and remedy to have such provisions specifically enforced by any court
having equity jurisdiction, it being acknowledged and agreed that any such
breach or threatened breach will cause irreparable injury to the Company and
Time Warner and that money damages will not provide an adequate remedy to the
Company and Time Warner.
10. Ownership of Work Product. The Executive acknowledges that
during the term of employment, he may conceive of, discover, invent or create
inventions, improvements, new contributions, literary property, material, ideas
and discoveries, whether patentable or copyrightable or not (all of the
foregoing being collectively referred to herein as "Work Product"), and that
various business opportunities shall be presented to him by reason of his
employment by the Company. The Executive acknowledges that, unless the Company
otherwise expressly agrees in writing, all of the foregoing shall be owned by
and belong exclusively to the Company and that he shall have no personal
interest therein, provided that they are either related in any manner to the
business (commercial or experimental) of the Company or are, in the case of Work
Product, conceived or made on the Company's time or with the use of the
Company's facilities or materials, or, in the case of business opportunities,
are presented to him for the possible interest or participation of the Company.
The Executive shall further, unless the Company otherwise agrees in writing, (i)
promptly disclose any such Work Product and business opportunities to the
Company; (ii) assign to the Company, upon request and without additional
compensation, the entire rights to such Work Product and business opportunities;
(iii) sign all papers necessary to carry out the foregoing; and (iv) give
testimony in support of his inventorship or creation in any appropriate case.
The Executive agrees that he will not assert any
20
rights to any Work Product or business opportunity as having been made or
acquired by him prior to the date of this Agreement except for Work Product or
business opportunities, if any, disclosed to and expressly acknowledged by the
Company in writing prior to the date hereof.
11. Notices. All notices, requests, consents and other
communications required or permitted to be given hereunder shall be in writing
and shall be deemed to have been duly given if delivered personally or sent by
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:
Home Box Office
1100 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
with a copy to:
Time Warner Entertainment Company, L.P.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
11.2 If to the Executive, to the address set forth
on the records of the Company, with a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Kronish ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
12. General.
12.1 Governing Law. This Agreement shall be governed by
and construed and enforced in accordance with the 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.
21
12.3 Entire Agreement. This Agreement, including Annex A
sets forth the entire agreement and understanding of the parties relating to the
subject matter hereof and supersedes all prior agreements, arrangements and
understandings, written or oral, including the Prior Agreement, 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 neither party shall be bound by or be liable for any alleged
representation, promise or inducement not so set forth.
12.5 Assignability; Successors. This Agreement and the
Executive's rights and obligations hereunder may not be assigned by the
Executive. The Company may assign its rights together with its obligations
hereunder, in connection with any sale, transfer or other disposition of all or
substantially all of the business and assets of Home Box Office or of the
Company; and such rights and obligations shall inure to, and be binding upon,
any successor to the business or substantially all of the assets of Home Box
Office or the Company, whether by merger, purchase of stock or assets or
otherwise, and such successor shall expressly assume such obligations.
12.6 Amendments; Waivers. This Agreement may be amended,
modified, superseded, canceled, 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, whether by conduct or otherwise, 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 Set-Off. The Company shall have no right to set-off
payments owed to the Executive hereunder against amounts owed or claimed to be
owed by the Executive to the Company under this Agreement or otherwise.
12.8 Resolution of Disputes. Any dispute or controversy
arising with respect to this Agreement may be referred by either party to
JAMS/ENDISPUTE for resolution in arbitration in accordance with the rules and
procedures of JAMS/ENDISPUTE. 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
22
process, before a nonjudicial (rather than a judicial) arbitrator, and in
accordance with an arbitration process which, in the judgment of such
arbitrator, shall have the effect of reasonably limiting or reducing the cost of
such arbitration. The resolution of any such dispute or controversy by the
arbitrator appointed in accordance with the procedures of JAMS/ENDISPUTE shall
be final and binding. Judgment upon the award rendered by such arbitrator may be
entered in any court having jurisdiction thereof, and the parties consent to the
jurisdiction of the New York courts for this purpose. The arbitrator may provide
for the prevailing party to recover the costs of arbitration (including
reasonable attorneys fees and the fees of experts) from the losing party and
shall so provide if the Executive substantially prevails on his claims. 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 the Executive shall be the prevailing party in such arbitration, the
Company shall promptly pay, upon demand of the Executive, all legal fees, court
costs and other costs and expenses incurred by the Executive in any legal action
seeking to enforce the award in any court.
12.9 Survival. The fifth sentence of Section 3.3 and the
provisions of Sections 3.9, 9 through 12 and Annex A shall survive any
termination of the term of employment by the Company for cause. Sections 3.3,
3.6.2, 3.6.3, 3.7, 3.9, 4.2 through 4.5, 7, 8.1.3 and 9 through 12 and Annex A
shall survive any termination of the term of employment without cause or a
Non-Renewal.
13. Beneficiaries. Whenever this Agreement provides for any
payment to the Executive's estate, such payment may be made instead to such
beneficiary or beneficiaries as the Executive may designate in writing filed
with the Company. The Executive shall have the right to revoke any such
designation and to redesignate a beneficiary or beneficiaries by written notice
to the Company (and to any applicable insurance company) to such effect.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
TIME WARNER ENTERTAINMENT
COMPANY, L.P.
By
------------------------------
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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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 Time Warner or any
corporation or other entity of which the Company or Time Warner 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
A-2
mean between the bid and asked prices per security on the nearest preceding day
for which such prices are available. If no bid or asked price information is
available with respect to a particular security, the price quoted to the Trustee
as the value of such security on the date of reference (or the nearest preceding
date for which such information is available) shall be used for purposes of
administering the Trust Account, including determining the fair market value of
such security. The Trust Account shall be charged currently with all interest
paid by the Trust Account with respect to any credit extended to the Trust
Account. Such interest shall be charged to the Trust Account, for margin
purchases actually made, at the rates and times actually paid by the Trust
Account. The Company may, in the Company's sole discretion, from time to time
serve as the lender with respect to any margin transactions by notice to the
then Investment Advisor and the Trustee and in such case interest shall be
charged at the rate and times then charged by an investment banking firm
designated by the Company with which the Company or Time Warner 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
A-3
purchase or disposition of securities designated by the Investment Advisor (in
all cases net after any tax benefits that the Company would be deemed to derive
from the payment thereof, as and when determined pursuant to Section A.5) and,
only in the event of a default by the Company of its obligation to pay such fees
and expenses, the fees and expenses of the Trustee in accordance with the terms
of the Trust Agreement, but no other costs of the Company. Subject to the terms
of the Trust Agreement, the securities purchased for the Trust Account as
designated by the Investment Advisor shall remain the sole property of the
Company, subject to the claims of its general creditors, as provided in the
Trust Agreement. Neither the Executive nor his legal representative nor any
beneficiary designated by the Executive shall have any right, other than the
right of an unsecured general creditor, against the Company or the Trust in
respect of any portion of the Trust Account.
A.5 Taxes. The Trust Account shall be charged with all federal,
state and local taxes deemed payable by the Company with respect to income
recognized upon the dividends and interest received by the Trust Account
pursuant to Section A.2 and gains recognized upon sales of any of the securities
which are sold pursuant to Section A.1, A.6 or A.7. The Trust Account shall be
credited with the amount of the tax benefit received by the Company as a result
of any payment of interest actually made pursuant to Section A.1 or A.2 and as a
result of any payment of brokerage fees and investment advisory fees made
pursuant to Section A.1. If any of the sales of the securities which are sold
pursuant to Section A.1, A.6 or A.7 results in a loss to the Trust Account, such
net loss shall be deemed to offset the income and gains referred to in the
second preceding sentence (and thus reduce the charge for taxes referred to
therein) to the extent then permitted under the Internal Revenue Code of 1986,
as amended from time to time, and under applicable state and local income and
franchise tax laws (collectively referred to as "Applicable Tax Law"); provided,
however, that for the purposes of this Section A.5 the Trust Account shall,
except as provided in the third following sentence, be deemed to be a separate
corporate taxpayer and the losses referred to above shall be deemed to offset
only the income and gains referred to in the second preceding sentence. Such
losses shall be carried back and carried forward within the Trust Account to the
extent permitted by Applicable Tax Law in order to minimize the taxes deemed
payable on such income and gains within the Trust Account. For the purposes of
this Section A.5, all charges and credits to the Trust Account for taxes shall
be deemed to be made as of the end of the Company's taxable 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
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Annex A it shall be assumed that the Company is a taxpayer and pays all taxes at
the maximum marginal rate of federal income taxes and state and local income and
franchise taxes (net of assumed federal income tax benefits) applicable to
business corporations and that all of such dividends, interest, gains and losses
are allocable to its corporate headquarters, which are currently located in New
York City.
A.6 One-Time Transfer to Deferred Plan. So long as the Executive
is an employee of the Company, the Executive shall have the right to elect by
written notice to the Company at any time, but only once during the Executive's
lifetime, to transfer to the Deferred Plan all or a portion of the Net
Transferable Balance (determined as provided in the next sentence) of the Trust
Account. If the Executive shall make such an election, the Net Transferable
Balance shall be determined as of the end of the calendar quarter following the
date of such election (unless such election is made during the first ten
calendar days following the end of a calendar quarter, in which case such
determination shall be made as of the end of such preceding calendar quarter) by
adjusting all of the securities held in the Trust Account to their fair market
value (net of the tax adjustment that would be made thereon if sold, as
estimated by the Company or the Trustee) and by deducting from such value the
amount of all outstanding indebtedness and any other amounts payable by the
Trust Account. Transfers to the Deferred Plan shall be made in cash as promptly
as reasonably practicable after the end of such calendar quarter and the
Investment Advisor (or the Company or the Trustee if the Investment Advisor
shall fail to act in a timely manner) shall cause securities held in the Trust
Account to be sold to provide cash equal to the portion of the Net Transferable
Balance of the Trust Account selected to be transferred by the Executive. If the
Executive elects to transfer more than 75% of the Net Transferable Balance of
the Trust Account to the Deferred Plan, the Company or the Trustee shall be
permitted to take such action as they may deem reasonably appropriate, including
but not limited to, retaining a portion of such Net Transferable Balance in the
Trust Account, to ensure that the Trust Account will have sufficient assets to
pay the Company the amount of taxes payable on such sales of securities at the
end of the year in which such sales are made.
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
A-5
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 therefrom, exceeds the aggregate amount of credits to the
Trust Account pursuant to Sections 3.3, 3.4 and 3.5 of the Agreement as of each
Valuation Date and not theretofore distributed or deemed distributed pursuant to
this Section A.7 is herein called "Account Retained Income". The amount of each
payment for the year, or such shorter period as may be determined by the Company
or the Trustee, of the Pay-Out Period immediately succeeding such Valuation
Date, including the payment then due, shall be determined by dividing the
aggregate value of the Trust Account, as valued and adjusted pursuant to the
second preceding sentence, by the number of payments remaining to be paid in the
Pay-Out Period, including the payment then due; provided that each payment made
shall be deemed made first out of Account Retained Income (to the extent
remaining after all prior distributions thereof since the last Valuation Date).
The balance of the Trust Account after all the securities held therein have been
sold and all indebtedness liquidated, shall be paid to the Executive in the
final payment, which shall be decreased by deducting therefrom the amount of 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.
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
A-6
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 have been made directly or indirectly to the Executive
from the Trust Account or from the Trust Account pursuant to Section A.7 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. Notwith-standing any provision of this
Section A.7, the Executive shall not be entitled to receive pursuant to this
Annex A (including any amounts that have been transferred to the Deferred Plan
pursuant to section A.6 hereof) an aggregate amount that shall exceed the sum of
(i) all credits made to the Trust Account pursuant to Sections 3.3, 3.4 and 3.5
of the Agreement to which this Annex is attached, (ii) the net cumulative amount
(positive or negative) of all income, gains, losses, interest and expenses
charged or credited to the Trust Account pursuant to this Annex A (excluding
credits made pursuant to the second preceding sentence), after all credits and
charges to the Trust Account with respect to the tax benefits or burdens
thereof, and (iii) an amount equal to the tax benefit to the Company from the
payment of the amount (if positive) determined under clause (ii) above; and the
final payment(s) otherwise due may be adjusted or eliminated accordingly. In
determining the tax benefit to the Company under clause (iii) above, the Company
shall be deemed to have made the payments under clause (ii) above with respect
to the same taxable years and in the same proportions as payments of Account
Retained Income were actually made from the Trust Account. Except as otherwise
provided in this paragraph, the computation of all taxes and tax benefits
referred to in this Section A.7 shall be determined in accordance with Section
A.5 above.
