EXHIBIT 10.8
As Amended through
November 20, 2003
TIME WARNER INC.
1999 INTERNATIONAL EMPLOYEES RESTRICTED STOCK PLAN
1. CERTAIN DEFINITIONS. The following terms (whether used in the
singular or plural) shall have the meanings indicated when used in the Plan.
1.1 "Time Warner" shall mean Time Warner Inc. (formerly
named AOL Time Warner Inc.), a Delaware corporation,
and any successor thereto.
1.2 "Approved Transaction" means any transaction in which
the Board (or, if approval of the Board is not
required as a matter of law, the stockholders of the
Company) shall approve (i) any consolidation or
merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to
which shares of Common Stock would be converted into
cash, securities or other property, other than a
merger of the Company in which the holders of Common
Stock immediately prior to the merger have the same
proportionate ownership of common stock of the
surviving corporation immediately after the merger,
or (ii) any sale, lease, exchange, or other transfer
(in one transaction or a series of related
transactions) of all, or substantially all, of the
assets of the Company, or (iii) the adoption of any
plan or proposal for the liquidation or dissolution
of the Company.
1.3 "Board" means the Board of Directors of the Company.
1.4 "Board Change" means, during any period of two
consecutive years, individuals who at the beginning
of such period constituted the entire Board ceased
for any reason to constitute a majority thereof
unless the election, or the nomination for election
by the Company's stockholders, of each new director
was approved by a vote of at least two-thirds of the
directors then still in office who were directors at
the beginning of the period.
1.5 "Code" means the Internal Revenue Code of 1986, as
amended from time to time, or any successor statute
or statutes thereto. Reference to any specific Code
section shall include any successor section.
1.6 "Committee" means the Committee of the Board
appointed pursuant to Section 2.3 hereof.
1.7 "Common Stock" means the Common Stock, par value $.01
per share, of the Company.
1.8 "Company" means (i) with respect to periods prior to
January 11, 2001, Historic TW Inc. (formerly named
Time Warner Inc.), a Delaware corporation, and (ii)
with respect to periods on and after January 11,
2001, Time Warner.
1.9 "Control Purchase" means any transaction in which any
person (as such term is defined in Sections 13(d)(3)
and 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")), corporation or
other entity (other than the Company or any employee
benefit plan sponsored by the Company or any of its
Subsidiaries) (i) shall purchase any Common Stock (or
securities convertible into Common Stock) for cash,
securities or any other consideration pursuant to a
tender offer or exchange offer, without the prior
consent of the Board, or (ii) shall become the
"beneficial owner" (as such term is defined in Rule
13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing
20% or more of the combined voting power of the then
outstanding securities of the Company ordinarily (and
apart from the rights accruing under special
circumstances) having the right to vote in the
election of directors (calculated as provided in Rule
13d-3(d) in the case of rights to acquire securities
of the Company).
1.10 "Dividend Equivalents" means, with respect to
Restricted Shares to be issued at the end of the
Restriction Period, to the extent specified in the
Restricted Shares Agreement only, an amount equal to
the regular cash dividends and all other
distributions (or the economic equivalent thereof)
which are payable to stockholders of record during
the Restriction Period on a like number of shares of
Common Stock (other than dividends or distributions
which result in an adjustment in the character or
amount of Restricted Shares pursuant to Section 10
hereof).
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1.11 "Holder" means an individual to whom Restricted
Shares have been awarded pursuant to Section 2
hereof.
1.12 "Plan" means this 1999 International Employees
Restricted Stock Plan of the Company.
1.13 "Restricted Shares" means shares of Common Stock
awarded to a Holder pursuant to Section 2 hereof.
1.14 "Restricted Shares Agreement" means the agreement
specified in Section 12 hereof.
1.15 "Restriction Period" means a period of time beginning
on the date of each award of Restricted Shares and
ending on the Vesting Date with respect to each such
award.
1.16 "Retained Distributions" means distributions which
are retained by the Company pursuant to Section 5.3
hereof.
1.17 "Subsidiary" of a person means any present or future
subsidiary of such person as such term is defined in
section 424 of the Code and any present or future
trade or business, whether or not incorporated,
controlled by or under common control with such
person. An entity shall be deemed a Subsidiary of a
person only for such periods as the requisite
ownership or control relationship is maintained.
1.18 "Vesting Date" with respect to any Restricted Shares
awarded hereunder means the date when such Restricted
Shares shall become unconditionally vested as
designated by the Board at the time Restricted Shares
are awarded pursuant to Section 2 hereof.
2. ADMINISTRATION AND AWARD OF RESTRICTED SHARES.
2.1 Powers. The Plan shall be administered by the Board.
Subject to the express provisions of the Plan, the Board shall have plenary
authority, in its discretion, to award Restricted Shares under the Plan and to
determine the terms and conditions (which need not be identical) upon which
Restricted Shares shall be awarded, including, without limitation, (a) the
individuals to whom, and the time or times at which, Restricted Shares shall be
awarded hereunder, (b) the number of Restricted Shares covered by each award,
(c) the Vesting Date(s) applicable to each award and the conditions, if any,
subject to which Restricted Shares shall
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become vested on the Vesting Date and (d) the form, terms and provisions of the
Restricted Shares Agreement evidencing each award of Restricted Shares
hereunder.
2.2 Interpretation. Subject to the express provisions of the
Plan, the Board shall have plenary authority to interpret the Plan, to
prescribe, amend and rescind the rules and regulations relating to it and to
make all other determinations deemed necessary or advisable for the
administration of the Plan. The determinations of the Board on the matters
referred to in this Section 2 shall be conclusive.
2.3 Delegation to Committee. Notwithstanding anything to the
contrary contained herein, the Board may at any time, or from time to time,
appoint a Committee and delegate to such Committee the authority of the Board to
administer the Plan, including to the extent provided by the Board, the power to
further delegate such authority. Upon such appointment and delegation, the
Committee shall have all the powers, privileges and duties of the Board in the
administration of the Plan to the extent provided in such delegation, except the
power to appoint members of the Committee and to terminate, modify or amend the
Plan. The Board may from time to time appoint members of any such Committee in
substitution for or in addition to members previously appointed, may fill
vacancies in the Committee and may discharge the Committee. Any such Committee
shall have as chairman one of its members as determined by the Board or by the
Committee members and shall hold its meetings at such times and places as it
shall deem advisable. A majority of its members shall constitute a quorum and
all determinations shall be made by a majority of its members. Any determination
reduced to writing and signed by a majority of the members shall be fully as
effective as if it had been made by a majority vote at a meeting duly called and
held.
3. SHARES SUBJECT TO THE PLAN. Subject to the provisions of Section 10
hereof, the maximum aggregate number of Restricted Shares which may be awarded
under the Plan in any calendar year, commencing with calendar year 1999, shall
be an amount determined by the Board not in excess of .04% of the shares of
Common Stock outstanding on December 31st of the preceding calendar year;
provided, however, that any Restricted Shares awarded under the Plan in any
calendar year which are forfeited by the terms of the Plan or any Restricted
Shares Agreement in the same calendar year shall be deemed not to have been
awarded for the purpose of this Section 3 and shall again become available for
awards during such calendar year. Any Restricted Shares available for grant in
any calendar year which are not granted in that calendar year shall not be
available for grant in any subsequent calendar year and any Restricted Shares
awarded in any calendar year which are forfeited by the terms of the Plan or any
Restricted Shares Agreement in any subsequent calendar year shall not again be
available for awards. No fractional shares of Common Stock shall be awarded or
issued under the Plan.
The Restricted Shares may be in whole or in part, as the Board shall
from time to time
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determine, authorized but unissued shares of Common Stock or shares of Common
Stock previously issued and outstanding and reacquired by the Company, or both.
4. ELIGIBILITY AND CRITERIA FOR AWARDS. Awards may be made only to
employees, including officers and directors who are also employees, of the
Company or any of its Subsidiaries and prospective employees of the Company or
any of its Subsidiaries whose place of employment at the time of the award of
Restricted Shares is, or is intended to be, in whole or in significant part,
outside the United States. The vesting of Restricted Shares granted to a
prospective employee shall be conditioned upon such person becoming an employee
of the Company or any of its Subsidiaries. For purposes of the Plan, the term
"prospective employee" shall mean any person who holds an outstanding offer of
employment on specific terms from the Company or any of its Subsidiaries. Awards
may be made to employees who hold or have held awards under this Plan or any
similar or other awards under any other plan of the Company or its Subsidiaries.
5. RESTRICTIONS APPLICABLE TO RESTRICTED SHARES; CERTIFICATES
REPRESENTING RESTRICTED SHARES.
5.1 Vesting Date and Issuance. The Board shall determine
whether shares of Common Stock covered by awards of Restricted Shares will be
issued at the beginning or the end of the Restriction Period, shall determine
whether Dividend Equivalents will be paid in the event shares of Common Stock
are to be issued at the end of the Restriction Period, and, if so, the time(s)
at which such Dividend Equivalents will be paid, shall designate a Vesting
Date(s) with respect to each award of Restricted Shares and may prescribe other
restrictions, terms and conditions applicable to the vesting of such Restricted
Shares in addition to those provided in the Plan. The Board shall determine the
price, if any, to be paid by the Holder for the Restricted Shares and the terms
of payment. All determinations made by the Board pursuant to this Section 5.1
shall be specified in the Restricted Shares Agreement.
5.2 Restrictions. Restricted Shares, when issued, will be
registered in the name of the Holder to whom such Restricted Shares shall have
been awarded. During the Restriction Period, any certificates representing the
Restricted Shares and any securities constituting Retained Distributions shall
bear a restrictive legend to the effect that ownership of the Restricted Shares
(and such Retained Distributions), and the enjoyment of all rights appurtenant
thereto, are subject to the restrictions, terms and conditions provided in the
Plan and the applicable Restricted Shares Agreement. Any such certificates shall
be deposited by such Holder with the Company, together with stock powers or
other instruments of assignment, each endorsed in blank, which will permit
transfer to the Company of all or any portion of the Restricted Shares and any
securities constituting Retained Distributions that shall be forfeited or that
shall not become vested in accordance with the Plan and the applicable
Restricted Shares
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Agreement.
5.3 Rights of Holder. Restricted Shares issued at the
beginning of the Restriction Period shall constitute issued and outstanding
shares of Common Stock for all corporate purposes. The Holder will have the
right to vote such Restricted Shares, to receive and retain all regular cash
dividends, and such other distributions as the Board may in its sole discretion
designate, paid or distributed on such Restricted Shares and to exercise all
other rights, powers and privileges of a holder of Common Stock with respect to
such Restricted Shares, with the exception that (i) the Holder will not be
entitled to delivery of the stock certificate or certificates representing such
Restricted Shares until the Restriction Period shall have expired and unless all
other vesting requirements with respect thereto shall have been fulfilled; (ii)
the Company will retain custody of the stock certificate or certificates
representing the Restricted Shares during the Restriction Period; (iii) other
than regular cash dividends and such other distributions as the Board may in its
sole discretion designate, the Company will retain custody of all distributions
("Retained Distributions") made or declared with respect to the Restricted
Shares (and such Retained Distributions will be subject to the same
restrictions, terms and conditions as are applicable to the Restricted Shares)
until such time, if ever, as the Restricted Shares with respect to which such
Retained Distributions shall have been made, paid or declared shall have become
vested, and such Retained Distributions shall not bear interest or be segregated
in separate accounts; (iv) the Holder may not sell, assign, transfer, pledge,
exchange, encumber or dispose of the Restricted Shares or any Retained
Distributions during the Restriction Period; and (v) a breach of any
restrictions, terms or conditions provided in the Plan or established by the
Board with respect to any Restricted Shares or Retained Distributions will cause
a forfeiture of such Restricted Shares and any Retained Distributions with
respect thereto.
5.4 Issuance of Stock at End of the Restriction Period.
Restricted Shares issued at the end of the Restriction Period shall not
constitute issued and outstanding shares of Common Stock and the Holder shall
not have any of the rights of a stockholder with respect to the shares of Common
Stock covered by such an award of Restricted Shares, in each case, until such
shares shall have been transferred to the Holder at the end of the Restriction
Period. If and to the extent that shares of Common Stock are to be issued at the
end of the Restriction Period, the Holder may be entitled to receive Dividend
Equivalents to the extent provided in the Restricted Shares Agreement.
6. COMPLETION OF RESTRICTION PERIOD. On the Vesting Date with respect
to each award of Restricted Shares, and the satisfaction of any other applicable
restrictions, terms and conditions (a) Restricted Shares covered by that award
shall become vested and (b) Retained Distributions and unpaid Dividend
Equivalents, if any, with respect to such Restricted Shares shall become vested
to the extent that the Restricted Shares related thereto shall have become
vested, all in accordance with the terms of the applicable Restricted Shares
Agreement. Any
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such Restricted Shares, Retained Distributions and unpaid Dividend Equivalents
that shall not have become vested shall be forfeited to the Company and the
Holder shall not thereafter have any rights (including dividend and voting
rights) with respect to such Restricted Shares, Retained Distributions and
unpaid Dividend Equivalents that shall have been so forfeited.
7. ACCELERATION OF VESTING DATE. Unless the applicable Restricted
Shares Agreement provides otherwise, all outstanding awards of Restricted Shares
shall unconditionally vest in full upon the occurrence of any Approved
Transaction, Board Change or Control Purchase, and the date of the occurrence of
any such Approved Transaction, Board Change or Control Purchase shall be deemed
to be the Vesting Date for such Restricted Shares.
8. TERMINATION OF EMPLOYMENT PRIOR TO EXPIRATION OF RESTRICTION PERIOD.
8.1 General. If a Holder's employment shall terminate prior to
the expiration of the Restriction Period applicable to any award of Restricted
Shares, then such Restricted Shares shall be forfeited or shall vest, in whole
or in part, as provided in the applicable Restricted Shares Agreement; provided,
however, that any termination of a Holder's employment for cause will be treated
in accordance with the provisions of Section 8.2.
8.2 Termination for Cause. If a Holder's employment with the
Company or any of its Subsidiaries shall be terminated for cause by the Company
or such Subsidiary prior to the expiration of the Restriction Period applicable
to any award of Restricted Shares, then the Holder shall forfeit all of such
Restricted Shares, Retained Distributions and unpaid Dividend Equivalents with
respect to such Restricted Shares. For the purpose of this Section 8.2, cause
shall have the meaning ascribed thereto in any employment agreement to which
such Holder is a party. In the absence of an employment agreement, cause shall
include but not be limited to, insubordination, dishonesty, incompetence, moral
turpitude, other misconduct of any kind and the refusal to perform the Holder's
duties and responsibilities for any reason other than illness or incapacity;
provided, however, that if such termination occurs within 12 months after an
Approved Transaction, Control Purchase or Board Change, termination for cause in
the absence of an employment agreement shall mean only a felony conviction for
fraud, misappropriation or embezzlement.
8.3 Special Rule. Notwithstanding any other provision of the
Plan, the Board may provide in the applicable Restricted Shares Agreement that
the award of Restricted Shares shall vest in a manner that differs from the
provisions otherwise herein set forth; provided, however, that the provisions of
any such Restricted Shares Agreement that differ from the provisions otherwise
set forth herein shall be effective only if reflected in the terms of an
employment agreement approved or ratified by the Board.
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8.4 Miscellaneous. The Board may determine whether any given
leave of absence constitutes a termination of employment. Awards made under the
Plan shall not be affected by any change of employment so long as the Holder
continues to be an employee of the Company or one of its Subsidiaries.
9. RIGHT OF COMPANY TO TERMINATE EMPLOYMENT. Nothing contained in the
Plan or in any award of Restricted Shares pursuant to the Plan shall confer on
any Holder any right to continue in the employ of the Company or any of its
Subsidiaries or interfere in any way with the right of the Company or a
Subsidiary to terminate the employment of the Holder at any time, with or
without cause, notwithstanding the possibility that one or more awards of
Restricted Shares may thereby be forfeited entirely.
10. CHANGES IN STOCK. In the event of any stock split, dividend,
distribution, combination, reclassification or recapitalization that changes the
character or amount of the Common Stock prior to the expiration of the
Restriction Period with respect to any award of Restricted Shares, the Board
shall make such adjustments in the character and number of shares subject to
such award, as shall be equitable and appropriate in order to make such award,
immediately after any such change, as nearly as may be practicable, equivalent
to such award, immediately prior to any such change. If any merger,
consolidation or similar transaction affects the Common Stock subject to any
unvested award of Restricted Shares, the Board or any surviving or acquiring
corporation shall take such action as is equitable and appropriate to substitute
a new award for such award or to assume such award in order to make such new or
assumed award, as nearly as may be practicable, equivalent to the old award. If
any such change or transaction shall occur, the number and kind of shares for
which awards may thereafter be granted under the Plan shall be adjusted to give
effect thereto.
11. NONALIENATION OF BENEFITS. Except as specifically provided in
Section 20, no right or benefit under the Plan shall be subject to anticipation,
alienation, sale, assignment, hypothecation, pledge, exchange, transfer,
encumbrance or charge, and any attempt to anticipate, alienate, sell, assign,
hypothecate, pledge, exchange, transfer, encumber or charge the same shall be
void. No right or benefit hereunder shall in any manner be liable for or subject
to the debts, contracts, liabilities or torts of the person entitled to such
benefit.
12. RESTRICTED SHARES AGREEMENT. Each award of Restricted Shares
hereunder shall be evidenced by an agreement in such form and containing such
terms and provisions not inconsistent with the provisions of the Plan as the
Board from time to time shall approve. Such agreement shall be entered into
between the Company and the Holder at the time of any award of Restricted Shares
hereunder. Such agreement may contain (but shall not be required to contain)
such provisions as the Board deems appropriate to ensure that the penalty
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provisions of Section 4999 of the Code will not apply to any stock or cash
received by the Holder from the Company or any of its Subsidiaries.
13. TERMINATION AND AMENDMENT OF PLAN. The Board may terminate or amend
the Plan at any time in such respects as it shall deem advisable; provided,
however, that any such amendment shall comply with all applicable laws and
regulations and stock exchange listing requirements. No termination or amendment
of the Plan may, without the consent of the Holder to whom any award of
Restricted Shares shall theretofore have been granted, adversely affect the
rights of such Holder with respect to such award. With the consent of the Holder
and subject to the terms and conditions of the Plan, the Board may amend
outstanding Restricted Shares Agreements with any Holder, including, without
limitation, any amendment which would accelerate the Vesting Date with respect
to any award of Restricted Shares. Without limiting the generality of the
foregoing, the Board may, but solely with the Holder's consent, agree to cancel
any award of Restricted Shares under the Plan and issue a new award in
substitution therefor, provided that the award so substituted shall satisfy all
of the requirements of the Plan as of the date such new award is made.
14. GOVERNMENT AND OTHER REGULATIONS. Notwithstanding any other
provisions of the Plan, the obligations of the Company with respect to awards of
Restricted Shares shall be subject to all applicable laws, rules and
regulations, and such approvals by any governmental agencies as may be required.
The Company reserves the right to restrict, in whole or in part, the delivery of
Common Stock pursuant to any award of Restricted Shares under the Plan until
such time as (a) any legal requirements or regulations shall have been met
relating to the issuance of such Restricted Shares or to their registration,
qualification or exemption from registration or qualification under the
Securities Act of 1933 or any applicable state securities laws; and (b)
satisfactory assurances shall have been received that such Restricted Shares
when issued will be duly listed on any securities exchange on which the Common
Stock may be listed.
15. NONEXCLUSIVITY OF PLAN. The adoption of the Plan by the Board shall
not be construed as creating any limitations on the power of the Board to adopt
such other incentive arrangements as it may deem desirable, including without
limitation, the awarding of stock and cash awards otherwise than under the Plan,
and such arrangements may be either generally applicable or applicable only in
specific cases.
16. WITHHOLDING TAXES. The Company's obligation to deliver stock to the
Holder upon the vesting of Restricted Shares shall be subject to applicable
federal, state, local and foreign tax withholding requirements. Federal, state,
local and foreign withholding taxes paid by a Holder upon the vesting of
Restricted Shares may be paid in shares of Common Stock upon such terms and
conditions as the Board shall determine; provided, however, that the Board in
its sole discretion may disapprove such payment and require that such taxes be
paid in cash.
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17. EXCLUSION FROM PENSION AND OTHER BENEFIT PLANS. By acceptance of an
award under the Plan, each Holder shall be deemed to have agreed that the award
of Restricted Shares is special incentive compensation and that it will not be
taken into account as "salary" or "compensation" or "bonus" in determining the
amount of any payment under any pension, retirement or other employee benefit
plan of the Company or any Subsidiary. In addition, each beneficiary of a
deceased Holder shall be deemed to have agreed that such award will not affect
the amount of any life insurance coverage, if any, provided by the Company or
any Subsidiary on the life of the Holder which is payable to such beneficiary
under any life insurance plan covering employees of the Company or any
Subsidiary.
18. GOVERNING LAW. The Plan shall be governed by, and construed in
accordance with, the laws of the State of New York.
19. EFFECTIVE DATE OF THE PLAN. The Plan shall become effective on
November 18, 1999, the date of its approval by the Board.
20. BENEFICIARIES. The Holder's beneficiary in the event of his or her
death shall be his or her estate.
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