EXHIBIT 10.15
2003 SIP Restricted Stock Agreement, Version 2
For Use from: January 2005
Restricted Stock Agreement
General Terms and Conditions
WHEREAS, the Company has adopted the Plan (as defined below), the terms of
which are hereby incorporated by reference and made a part of this Agreement;
and
WHEREAS, the Committee has determined that it would be in the best
interests of the Company and its stockholders to grant the Restricted Shares
provided for herein to the Participant pursuant to the Plan and the terms set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties agree as follows:
1. Definitions. Whenever the following terms are used in this Agreement, they
shall have the meanings set forth below. Capitalized terms not otherwise
defined herein shall have the same meanings as in the Plan.
a) "Cause" includes (and is not limited to) dishonesty with respect to
the Company or any Affiliate, insubordination, substantial malfeasance
or non-feasance of duty, unauthorized disclosure of confidential
information, and conduct substantially prejudicial to the business of
the Company or any Affiliate. The determination of the Committee as to
the existence of "Cause" will be conclusive on the Participant and the
Company.
b) "Disability" means, "Disability" as defined in an employment agreement
between the Company or any of its Affiliates and the Participant or,
if not defined therein or if there shall be no such agreement,
"disability" of the Participant shall have the meaning ascribed to
such term in the Company's long-term disability plan or policy, as in
effect from time to time.
c) "Good Reason" means (i) a breach by the Company or any Affiliate of
any employment or consulting agreement to which the Participant is a
party and (ii) following a Change in Control, (x) the failure of the
Company to pay or cause to be paid the Participant's base salary or
annual bonus when due or (y) any substantial and sustained diminution
in the Participant's authority or responsibilities materially
inconsistent with the Participant's position; provided that either of
the events described in clauses (x) and (y) will constitute Good
Reason only if the Company fails to cure such event within 30 days
after receipt from the Participant of written notice of the event
which constitutes Good Reason; provided, further, that "Good Reason"
will cease to exist for an event on the sixtieth (60th) day following
the later of its occurrence or the Participant's knowledge thereof,
unless the Participant has given the Company written notice of his or
her termination of employment for Good Reason prior to such date.
d) "Plan" means the Time Warner Inc. 2003 Stock Incentive Plan, as the
same may be amended, supplemented or modified from time to time.
e) "Restriction Period" means the period set forth in the Notice (as
defined below).
f) "Vesting Date" means each vesting date set forth in the Notice.
2. Grant of Shares. The Company hereby grants to the Participant (the
"Award"), on the terms and conditions hereinafter set forth, the number of
Shares (the "Restricted Shares") set forth on the Notice of Grant of
Restricted Stock (the "Notice").
3. Restricted Shares. The Restricted Shares will be represented by a Share
certificate, or other evidence of ownership (a "stock certificate"),
registered in the name of the Participant and will constitute issued and
outstanding Shares for all corporate purposes. Each stock certificate will
be issued bearing a restrictive legend in substantially the form as
follows:
"The shares represented by this certificate are subject to the
restrictions, terms and conditions (including forfeiture and
restrictions against transfer) contained in the Plan and the
Agreement) between the registered holder hereof and Time Warner
Inc. Copies of the Plan and Agreement are on file in the Office
of the General Counsel of Time Warner Inc."
4. Restriction Period; Rights of Participant; Custody of Stock Certificates
and Retained Distributions. During the Restriction Period with respect to
each portion of the Award, the Participant will generally exercise all the
rights, powers, and privileges of a holder of a Share, including the right
to vote the Restricted Shares registered in his or her name and to receive
all regular cash dividends and such other distributions as the Board of
Directors of the Company (the "Board") or any Committee (the "Committee")
to which the Board or any Committee of the Board has delegated such
authority may in its sole discretion designate that are paid or distributed
on such Restricted Shares.
However, until the end of the Restriction Period with respect to each
portion of the Award, the Participant:
a) will not be entitled to take possession of the stock certificate(s)
representing the Restricted Shares covered by that portion of the
Award;
b) may not sell, transfer, encumber or otherwise dispose of the
Restricted Shares covered by that portion of the Award; and
c) will not receive distributions made or declared with respect to the
Restricted Shares covered by that portion of the Award which the Board
or the Committee shall in its sole discretion designate as retained
distributions ("Retained Distributions"). Retained Distributions will
not bear interest or be segregated in a separate account and will be
subject to the same restrictions as the Restricted Shares to which
they relate.
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5. Vesting and Delivery of Vested Securities. Subject to the terms and
provisions of the Plan and this Agreement, on each Vesting Date with
respect to the Award, all of the Restricted Shares and the Retained
Distributions, if any, covered by the portion of the Award related to such
Vesting Date shall become unconditionally vested. Except as otherwise
provided in paragraphs 7 and 8, the vesting of such Restricted Shares and
any Retained Distributions relating thereto shall occur only if the
Participant has continued in Employment of the Company or any of its
Affiliates on the Vesting Date and has continuously been so employed since
the Date of Grant (as defined in the Notice).
Reasonably promptly following the Participant's satisfaction of all
requirements under paragraph 10 hereof, after Restricted Shares and
Retained Distributions vest, the Company will issue and deliver to the
Participant new Share certificates or other evidence of ownership of the
vested securities, registered in the name of the Participant or, if
deceased, his or her legatees, personal representatives or distributees
without the legend set forth in paragraph 3 of this Agreement.
6. Power of Attorney. The Company, its successors and assigns, is hereby
appointed the attorney-in-fact, with full power of substitution, of the
Participant for the sole purpose of carrying out the provisions of this
Agreement and taking any action and executing any instruments which such
attorney-in-fact may deem necessary or advisable to accomplish the purposes
hereof, which appointment as attorney-in-fact is irrevocable and coupled
with an interest. The Company as attorney-in-fact for the Participant may
in the name and stead of the Participant, make and execute all conveyances,
assignments and transfers (including to the Company) of the Restricted
Shares and Retained Distributions relating thereto held by the Company
during the Restriction Period and the Participant hereby ratifies and
confirms all that the Company, as said attorney-in-fact, shall do by virtue
hereof, provided that the foregoing shall be solely for the purpose of
carrying out the provisions of this Agreement. Nevertheless, the
Participant shall, if so requested by the Company, execute and deliver to
the Company all such instruments as may, in the reasonable judgment of the
Company, be advisable for the purpose.
7. Termination of Employment.
(a) If the Participant's Employment with the Company and its Affiliates is
(i) terminated by the Participant for any reason other than those
described in clauses (b) and (c) below prior to the Vesting Date with
respect to any portion of the Award, then the Restricted Shares
covered by any such portion of the Award and all Retained
Distributions relating thereto shall be completely forfeited on the
date of any such termination, unless otherwise provided in an
employment agreement between the Participant and the Company or an
Affiliate.
(b) If the Participant's Employment terminates as a result of his or her
(i) death or (ii) Disability, then the Restricted Shares for which a
Vesting Date has not yet occurred and all Retained Distributions
relating thereto shall fully vest on the date of any such termination.
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(c) If the Participant's Employment is terminated by the Company and its
Affiliates for any reason other than for Cause (unless such
termination is due to death or Disability), then a pro rata portion of
the Restricted Shares that would vest on the next Vesting Date, and
any Retained Distributions relating thereto, shall become vested
determined as follows:
(x) the number of Restricted Shares covered by the portion of
the Award that would vest on the next Vesting Date
multiplied by;
(y) a fraction, the numerator of which shall be the number of
days from the last Vesting Date (or the Date of Grant if
there has not yet occurred a Vesting Date) preceding the
date of such termination of Employment through the date of
such termination, and the denominator of which shall be the
number of days from the last Vesting Date (or the Date of
Grant if there has not yet occurred a Vesting Date) through
the next succeeding Vesting Date.
If the product of (x) and (y) results in a fractional share, such
fractional share shall be rounded to the next higher whole share.
The Restricted Shares and any Retained Distributions related thereto
that have not vested shall be completely forfeited on the date of any
such termination.
For purposes of this paragraph 7, a temporary leave of absence shall not
constitute a termination of Employment or a failure to be continuously
employed by the Company or any Affiliate regardless of the Participant's
payroll status during such leave of absence if such leave of absence is
approved in writing by the Company or any Affiliate, subject to the other
terms and conditions of the Agreement and the Plan.
In the event the Participant's Employment with the Company or any of its
Affiliates is terminated, the Participant shall have no claim against the
Company with respect to the Restricted Shares and related Retained
Distributions, if any, other than as set forth in this paragraph 7, the
provisions of this paragraph 7 being the sole remedy of the Participant
with respect thereto.
8. Acceleration of Vesting Date. In the event a Change in Control, subject to
paragraph 9, has occurred, the Award will vest in full upon the earlier of
(i) the expiration of the one-year period immediately following the Change
in Control, provided the Participant's Employment with the Company and its
Affiliates has not terminated, (ii) the original Vesting Date with respect
to each portion of the Award, or (iii) the termination of the Participant's
Employment by the Company or any of its Affiliates (A) by the Company other
than for Cause (unless such termination is due to death or Disability) or
(B) by the Participant for Good Reason. In the event of any such vesting as
described in clauses (i) and (iii) of the preceding sentence, the date
described in such clauses shall be treated as the Vesting Date.
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9. Limitation on Acceleration. Notwithstanding any provision to the contrary
in the Plan or this Agreement, if the Payment (as hereinafter defined) due
to the Participant hereunder as a result of the acceleration of vesting of
the Restricted Shares pursuant to paragraph 8 of this Agreement, either
alone or together with all other Payments received or to be received by the
Participant from the Company or any of its Affiliates (collectively, the
"Aggregate Payments"), or any portion thereof, would be subject to the
excise tax imposed by Section 4999 of the Code (or any successor thereto),
the following provisions shall apply:
a) If the net amount that would be retained by the Participant after all
taxes on the Aggregate Payments are paid would be greater than the net
amount that would be retained by the Participant after all taxes are
paid if the Aggregate Payments were limited to the largest amount that
would result in no portion of the Aggregate Payments being subject to
such excise tax, the Participant shall be entitled to receive the
Aggregate Payments.
b) If, however, the net amount that would be retained by the Participant
after all taxes were paid would be greater if the Aggregate Payments
were limited to the largest amount that would result in no portion of
the Aggregate Payments being subject to such excise tax, the Aggregate
Payments to which the Participant is entitled shall be reduced to such
largest amount.
The term "Payment" shall mean any transfer of property within the meaning
of Section 280G of the Code.
The determination of whether any reduction of Aggregate Payments is
required and the timing and method of any such required reduction in
Payments under this Agreement or in any such other Payments otherwise
payable by the Company or any of its Affiliates consistent with any such
required reduction, shall be made by the Participant, including whether any
portion of such reduction shall be applied against any cash or any shares
of stock of the Company or any other securities or property to which the
Participant would otherwise have been entitled under this Agreement or
under any such other Payments, and whether to waive the right to the
acceleration of the Payment due under this Agreement or any portion thereof
or under any such other Payments or portions thereof, and all such
determinations shall be conclusive and binding on the Company and its
Affiliates. To the extent that Payments hereunder or any such other
Payments are not paid as a consequence of the limitation contained in this
paragraph 9, then the Restricted Shares and Retained Distributions related
thereto (to the extent not so accelerated) and such other Payments (to the
extent not vested) shall be deemed to remain outstanding and shall be
subject to the provisions hereof and of the Plan as if no acceleration or
vesting had occurred. Under such circumstances, if the Participant
terminates Employment for Good Reason or is terminated by the Company or
any of its Affiliates without Cause, the Restricted Shares and Retained
Distributions related thereto (to the extent that they have not already
become vested) shall become immediately vested in their entirety upon such
termination subject to the provisions relating to Section 4999 of the Code
set forth herein.
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The Company shall promptly pay, upon demand by the Participant, all legal
fees, court costs, fees of experts and other costs and expenses which the
Participant incurred in any actual, threatened or contemplated contest of
the Participant's interpretation of, or determination under, the provisions
of this paragraph 9.
10. Withholding Taxes. The Participant agrees that, subject to paragraph 11
hereof,
a) Obligation to Pay Withholding Taxes. Upon the vesting of any portion
of the Award of Restricted Shares and the Retained Distributions
relating thereto, the Participant will be required to pay to the
Company any applicable Federal, state, local or foreign withholding
tax due as a result of such vesting. The Company's obligation to
deliver the Restricted Shares or Retained Distributions shall be
subject to such payment. The Company and its Affiliates shall, to the
extent permitted by law, have the right to deduct from any payment of
any kind otherwise due to the Participant any Federal, state, local or
foreign withholding taxes due with respect to such vesting.
b) Payment of Taxes with Stock. Subject to the Committee's right to
disapprove any such election and require the Participant to pay the
required withholding tax in cash and subject to paragraph 11 hereof,
the Participant shall have the right to elect to pay the required
withholding tax with Shares to be received upon vesting or which are
otherwise owned by the Participant. Unless the Company shall permit
another valuation method to be elected by the Participant, Shares used
to pay any required withholding taxes shall be valued at the mean
between the high and low sales price of a Share as reported on the New
York Stock Exchange Tape on the date the withholding tax becomes due
(hereinafter called the "Tax Date").
c) Conditions to Payment of Taxes with Stock. Any election to pay
withholding taxes with stock must be made on or prior to the Tax Date
and will be irrevocable once made. Any such election must be made in
conformity with conditions established by the Committee from time to
time.
11. Section 83(b) Election. If the Participant properly elects (which, apart
from any other notice required by law, shall require that the Participant
notify the Company of such election at the time it is made) within 30 days
after the Date of Grant or, in certain circumstances, within 30 days after
the date any condition precedent to the Award is satisfied, to include in
gross income for Federal income tax purposes an amount equal to the fair
market value of such Restricted Shares on the Date of Grant, the holder
shall promptly pay to the Company any Federal, state, local or foreign
withholding taxes due with respect to such Restricted Shares. If the
Participant fails to make such payment, the Company and its Affiliates
shall, to the extent permitted by law, have the right to deduct from any
payment of any kind otherwise due to the Participant any Federal, state,
local or foreign withholding taxes due with respect to such Restricted
Shares. Participants may use Shares otherwise owned by them to pay such
withholding taxes provided such
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Participants comply with the provisions of paragraph 10 hereof, including
paragraph 10(c).
12. Changes in Capitalization and Government and Other Regulations. The Award
shall be subject to all of the terms and provisions as provided in this
Agreement and in the Plan, which are incorporated by reference herein and
made a part hereof, including, without limitation, the provisions of
Section 10 of the Plan (generally relating to adjustments to the number of
Shares subject to the Award, upon certain changes in capitalization and
certain reorganizations and other transactions).
13. Forfeiture. A breach of any of the foregoing restrictions or a breach of
any of the other restrictions, terms and conditions of the Plan or this
Agreement, with respect to any of the Restricted Shares or any Retained
Distributions relating thereto, except as waived by the Board or the
Committee, will cause a forfeiture of such Restricted Shares and any
Retained Distributions relating thereto.
14. Right of Company to Terminate Employment. Nothing contained in the Plan or
this Agreement shall confer on any Participant any right to continue in the
employ of the Company or any of its Affiliates and the Company and any such
Affiliate shall have the right to terminate the Employment of the
Participant at any such time, with or without cause, notwithstanding the
fact that some or all of the Restricted Shares and Retained Distributions
covered by this Agreement may be forfeited as a result of such termination.
15. Notices. Any notice which either party hereto may be required or permitted
to give the other shall be in writing and may be delivered personally or by
mail, postage prepaid, addressed to Time Warner Inc., at One Time ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, attention Director-Global Stock
Plans Administration; and to the Participant at his or her address, as it
is shown on the records of the Company or its Affiliate, or in either case
to such other address as the Company or the Participant, as the case may
be, by notice to the other may designate in writing from time to time.
16. Interpretation and Amendments. The Board and the Committee (to the extent
delegated by the Board) have plenary authority to interpret this Agreement
and the Plan, to prescribe, amend and rescind rules relating thereto and to
make all other determinations in connection with the administration of the
Plan. The Board or the Committee may from time to time modify or amend this
Agreement in accordance with the provisions of the Plan, provided that no
such amendment shall adversely affect the rights of the Participant under
this Agreement without his or her consent.
17. Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the Company and its successors and assigns, and shall be
binding upon and inure to the benefit of the Participant and his or her
legatees, distributees and personal representatives.
18. Copy of the Plan. By entering into the Agreement, the Participant agrees
and acknowledges that he or she has received and read a copy of the Plan.
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19. Governing Law. The Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to any
choice of law rules thereof which might apply the laws of any other
jurisdiction.
20. Waiver of Jury Trial. To the extent not prohibited by applicable law which
cannot be waived, each party hereto hereby waives, and covenants that it
will not assert (whether as plaintiff, defendant or otherwise), any right
to trial by jury in any forum in respect of any suit, action, or other
proceeding arising out of or based upon this Agreement.
21. Submission to Jurisdiction; Service of Process. Each of the parties hereto
hereby irrevocably submits to the jurisdiction of the state courts of the
State of New York and the jurisdiction of the United States District Court
for the Southern District of New York for the purposes of any suit, action
or other proceeding arising out of or based upon this Agreement. Each of
the parties hereto to the extent permitted by applicable law hereby waives,
and agrees not to assert, by way of motion, as a defense, or otherwise, in
any such suit, action or proceeding brought in such courts, any claim that
it is not subject personally to the jurisdiction of the above-named courts,
that its property is exempt or immune from attachment or execution, that
such suit, action or proceeding in the above-referenced courts is brought
in an inconvenient forum, that the venue of such suit, action or
proceedings, is improper or that this Agreement may not be enforced in or
by such court. Each of the parties hereto hereby consents to service of
process by mail at its address to which notices are to be given pursuant to
paragraph 15 hereof.
22. Personal Data. The Company, the Participant's local employer and the local
employer's parent company or companies may hold, collect, use, process and
transfer, in electronic or other form, certain personal information about
the Participant for the exclusive purpose of implementing, administering
and managing the Participant's participation in the Plan. Participant
understands that the following personal information is required for the
above named purposes: his/her name, home address and telephone number,
office address (including department and employing entity) and telephone
number, e-mail address, date of birth, citizenship, country of residence at
the time of grant, work location country, system employee ID, employee
local ID, employment status (including international status code),
supervisor (if applicable), job code, title, salary, bonus target and
bonuses paid (if applicable), termination date and reason, tax payer's
identification number, tax equalization code, US Green Card holder status,
contract type (single/dual/multi), any shares of stock or directorships
held in the Company, details of all awards of Restricted Shares (including
number of grants, grant dates, price, vesting type, vesting dates, and any
other information regarding Restricted Shares that have been granted,
canceled, vested, or forfeited) with respect to the Participant, estimated
tax withholding rate, brokerage account number (if applicable), and
brokerage fees (the "Data"). Participant understands that Data may be
collected from the Participant directly or, on Company's request, from
Participant's local employer. Participant understands that Data may be
transferred to third parties assisting the Company in the implementation,
administration and management of the Plan, including the brokers approved
by the Company, the broker selected by the Participant from among such
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Company-approved brokers (if applicable), tax consultants and the Company's
software providers (the "Data Recipients"). Participant understands that
some of these Data Recipients may be located outside the Participant's
country of residence, and that the Data Recipient's country may have
different data privacy laws and protections than the Participant's country
of residence. Participant understands that the Data Recipients will
receive, possess, use, retain and transfer the Data, in electronic or other
form, for the purposes of implementing, administering and managing the
Participant's participation in the Plan, including any requisite transfer
of such Data as may be required for the administration of the Plan and/or
the subsequent holding of shares of common stock on the Participant's
behalf by a broker or other third party with whom the Participant may elect
to deposit any shares of common stock acquired pursuant to the Plan.
Participant understands that Data will be held only as long as necessary to
implement, administer and manage the Participant's participation in the
Plan. Participant understands that Data may also be made available to
public authorities as required by law, e.g., to the U.S. government.
Participant understands that the Participant may, at any time, review Data
and may provide updated Data or corrections to the Data by written notice
to the Company. Except to the extent the collection, use, processing or
transfer of Data is required by law, Participant may object to the
collection, use, processing or transfer of Data by contacting the Company
in writing. Participant understands that such objection may affect his/her
ability to participate in the Plan. Participant understands that he/she may
contact the Company's Stock Plan Administration to obtain more information
on the consequences of such objection.
23. Consent of Spouse. If the Participant is married as of the date of this
Agreement, the Participant's spouse shall execute a Consent of Spouse in
the form of Exhibit A hereto, effective as of the date hereof. Such consent
shall not be deemed to confer or convey to the spouse any rights in the
Restricted Shares that do not otherwise exist by operation of law or the
agreement of the parties. If the Participant marries or remarries
subsequent to the date hereof, the Participant shall, not later than 60
days thereafter, obtain the new spouse's acknowledgement of and consent to
the existence and binding effect of all restrictions contained in this
Agreement by such spouse's executing and delivering a Consent of Spouse in
the form of Exhibit A.
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Exhibit A
CONSENT OF SPOUSE
I, _______________, spouse of __________________, acknowledge that I have
read the RESTRICTED STOCK AGREEMENT dated as of ___________________ (the
"Agreement") to which this Consent is attached as Exhibit A and that I know its
contents. Capitalized terms used and not defined herein shall have the meaning
assigned to such terms in the Agreement. I am aware that by its provisions the
Restricted Shares granted to my spouse pursuant to the Agreement are subject to
forfeiture in favor of Time Warner Inc. (the "Company") and that, accordingly,
the Company has the right to cause the forfeiture of and to repurchase up to all
of the Restricted Shares of which I may become possessed as a result of a gift
from my spouse or a court decree and/or any property settlement in any domestic
litigation.
I hereby agree that my interest, if any, in the Restricted Shares subject
to the Agreement shall be irrevocably bound by the Agreement and further
understand and agree that any community property interest I may have in the
Restricted Shares shall be similarly bound by the Agreement.
I agree to the forfeiture provisions described in the Agreement and I
hereby consent to the forfeiture of the Restricted Shares to the Company in
accordance with the provisions of the Agreement. Further, as part of the
consideration for the Agreement, I agree that at my death, if I have not
disposed of any interest of mine in the Restricted Shares by an outright bequest
of the Restricted Shares to my spouse, then the Company shall have the same
rights against my legal representative to exercise its rights of repurchase with
respect to any interest of mine in the Restricted Shares as it would have had
pursuant to the Agreement if I had acquired the Restricted Shares pursuant to a
court decree in domestic litigation.
I AM AWARE THAT THE LEGAL, FINANCIAL AND RELATED MATTERS CONTAINED IN THE
AGREEMENT ARE COMPLEX AND THAT I AM FREE TO SEEK INDEPENDENT PROFESSIONAL
GUIDANCE OR COUNSEL WITH RESPECT TO THIS CONSENT. I HAVE EITHER SOUGHT SUCH
GUIDANCE OR COUNSEL OR DETERMINED AFTER REVIEWING THE AGREEMENT CAREFULLY THAT I
WILL WAIVE SUCH RIGHT.
Dated as of the ___ day of __________, ______.
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Signature
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Printed name