EXHIBIT 10.15
AS AMENDED THROUGH
JANUARY 2004
AMENDED AND RESTATED
TIME WARNER INC.
ANNUAL BONUS PLAN FOR EXECUTIVE OFFICERS
1. PURPOSE.
The purpose of the Time Warner Inc. Annual Bonus Plan for Executive
Officers (hereinafter the "Plan") is to provide for the payment of annual cash
bonuses to certain executive officers of the Company that qualify for income tax
deduction by the Company.
2. DEFINITIONS.
The following terms (whether used in the singular or plural) have the
meanings indicated when used in the Plan:
2.1 "Annual Bonus" means the annual cash bonus payable to
a Participant pursuant to the Plan with respect to any calendar year,
which (i) shall be determined by the Committee prior to the beginning
of each such calendar year, or at such later time as may be permitted
by the Code and the Regulations, (ii) shall be expressed as a
percentage of the Bonus Pool and (iii) shall not exceed 50 percent of
the Bonus Pool.
2.2 "AP" means the applicable percent determined pursuant
to Section 3.1.
2.3 "Base EBITDA" means the average of the Company's
EBITDA for the three years preceding the year for which the Bonus Pool
is being calculated.
2.4 "Board" means the Board of Directors of the Company.
2.5 "Bonus Pool" means the annual cash bonuses payable to
all Participants calculated pursuant to Section 3.1.
2.6 "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.
2.7 "Committee" means the Compensation Committee of the
Board, and any successor thereto.
2.8 "Company" means Time Warner Inc. (formerly named AOL
Time Warner Inc.), a Delaware corporation, and any successor thereto.
2.9 "Company's EBITDA" for any year shall mean (i) EBITDA
of the Company for that year, plus (ii) a pro rata portion (based on
the percentage ownership) of the EBITDA of any entity or business that
the Company accounts for by the equity method of accounting if the
Company's pro rata share of the EBITDA of such entity or business for
the year with respect to which the Bonus Pool is being calculated
exceeds
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$25 million, all determined in accordance with GAAP; provided, however,
that to the extent that the Company's EBITDA must be determined for any
period on or before the "Closing" (as defined therein) of transactions
described in the Agreement and Plan of Merger dated as of January 10,
2000 between America Online, Inc. and Time Warner Inc., such EBITDA
shall equal the pro forma EBITDA for both such companies on a combined
basis.
2.10 "Current EBITDA" means the Company's EBITDA for the
year with respect to which the Bonus Pool is being calculated.
2.11 "EBITDA" for any year of any entity or business shall
mean the combined operating income (loss) before depreciation,
amortization and impairment charges of such entity or business for that
year.
2.12 "GAAP" shall mean generally accepted accounting
principles applicable to the Company as in effect from time to time.
2.13 "Participant" means those executive officers of the
Company and its affiliates as the Committee shall designate to
participate in the Plan for any calendar year prior to the beginning of
each such calendar year, or at such later time as may be permitted by
the Code and the Regulations.
2.14 "Plan" has the meaning ascribed thereto in Section 1.
2.15 "Regulations" shall mean the rules and regulations
under Section 162(m) of the Code.
2.16 "Significant Business" has the meaning ascribed
thereto in Section 3.2.
3. CALCULATION OF BONUS POOL.
3.1 Subject to the other provisions of this Section 3, the Bonus
Pool under the Plan with respect to any year shall be determined pursuant to the
following formula:
Bonus Pool = (Current EBITDA - Base EBITDA) x AP
Where AP is the applicable percent determined pursuant to the following table
(with the AP for percentage increases between the increases shown in the table
determined by interpolation):
PERCENTAGE INCREASE
IN CURRENT EBITDA
OVER BASE EBITDA AP
---------------- --
no increase over Base EBITDA.................................................... 0%
5% increase over Base EBITDA.................................................... 2.25%
10% increase over Base EBITDA................................................... 4.00%
</Table>
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<Table>
15% increase over Base EBITDA................................................... 5.25%
20% or higher increase over Base EBITDA......................................... 6.00%
3.2 The Current EBITDA and/or Base EBITDA used to calculate the
Bonus Pool for any year shall be adjusted as provided in this Section 3.2 if the
Company or any entity or business included in the Company's EBITDA for such year
pursuant to Section 2.9(ii) engages in any acquisition or disposition during
such year or in any of the prior three years, of any entity or business which
(a) if wholly owned, had more than $25 million of EBITDA in the year prior to
its acquisition or disposition or (b) if less than wholly owned, as to which
more than $25 million of EBITDA was or would have been included in the Company's
EBITDA pursuant to Section 2.9(ii) in the year prior to its acquisition or
disposition (each, a "Significant Business"). In the event of an acquisition,
the EBITDA of the Significant Business shall be excluded from Current EBITDA for
the year in which it was acquired. For each year subsequent to the year of
acquisition, all or a portion of the EBITDA of the Significant Business for each
applicable year shall be included in Current EBITDA and shall be included in
each of the years used in the calculation of Base EBITDA. In the event of a
disposition, all or a portion of the EBITDA of a Significant Business for each
applicable year shall be excluded from Current EBITDA and from each of the three
years included in the calculation of Base EBITDA for the year in which such
disposition occurs and for each year subsequent to such disposition. For the
purposes hereof, an acquisition or disposition of an entity or business shall
include a change in ownership which results in a change in consolidation or
equity accounting by the Company for such entity or business.
3.3 The Base EBITDA used to calculate the Bonus Pool for any year
shall be adjusted in the event any change in GAAP that is effective for such
year was not effective for each of the three years included in the calculation
of Base EBITDA; provided, however, that no such adjustment to Base EBITDA shall
be made unless such change in GAAP would have increased or decreased Current
EBITDA by more than $25 million in the year prior to the year in which such
change in GAAP first becomes effective. The adjustment to Base EBITDA to be made
pursuant to this Section 3.3 shall consist of applying the change in GAAP to
each year included in the Base EBITDA calculation. In addition, if the change in
GAAP is phased in so that the change is applied differently in successive years,
then the adjustment to be made to each year included in Base EBITDA shall be the
same as the change in GAAP that is applicable to the year for which the Bonus
Pool is being calculated.
3.4 The Committee may in its discretion (a) determine to make an
award to any Participant for any year in an amount that is less than the Annual
Bonus and (b) determine to make aggregate awards to all Participants for any
year that total less than the Bonus Pool.
3.5 Prior to paying any award under the Plan, the Company's
independent auditors shall review the calculation of the Bonus Pool and the
Committee shall certify that the performance goals have been met within the
meaning of the Code and the Regulations. Subject to Section 6 of this Plan,
payments of an award, if any, under the Plan with respect to any year, shall be
made as soon as practicable after the Committee certifies that the performance
goals have been met.
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4 ADMINISTRATION
The Plan shall be administered by the Committee or a subcommittee
thereof. Subject to the express provisions of the Plan and the requirements of
Section 162(m) of the Code, the Committee shall have plenary authority to
interpret the Plan, to prescribe, amend and rescind the rules and regulations
relating to it and to make, in its discretion, all other determinations deemed
necessary or advisable for the administration of the Plan. The determinations of
the Committee on the matters referred to in this Section 4 shall be conclusive.
Each member of the Committee (or a subcommittee thereof, consisting of
at least two individuals, established to administer the Plan) shall be an
"outside director" within the meaning of Section 162(m) of the Code and the
Regulations.
5. ELIGIBILITY
Payments with respect to any year may be made under the Plan only to a
person who was a Participant during all or part of such year.
6. DEFERRAL OF AWARD
Each Participant may elect by written notice delivered to the Company
at the time and in the form required by the Company to defer payment of all or
any portion of an award the Participant might earn with respect to a year, all
in accordance with the Code and the Regulations and on such terms and conditions
as the Committee may establish from time to time or as may be provided in any
employment agreement between the Company and the Participant.
7. TERMINATION AND AMENDMENT
The Plan shall continue in effect until terminated by the Board. The
Committee may at any time modify or amend the Plan in such respects as it shall
deem advisable; provided, however, that any such modification or amendment shall
comply with all applicable laws and applicable requirements for exemption (to
the extent necessary) under Section 162(m) of the Code and the Regulations.
8. EFFECTIVENESS OF THE PLAN
The Plan, as amended and restated herein, shall become effective upon
approval by the Board, subject to the affirmative vote of a majority of the
votes cast at a duly called and held meeting of stockholders of the Company, and
shall apply to the annual bonuses payable to each Participant in respect of 2003
and thereafter.
9. WITHHOLDING
The obligations of the Company to make payments under the Plan shall be
subject to applicable federal, state and local tax withholding requirements.
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10. SEPARABILITY
If any of the terms or provisions of this Plan conflict with the
requirements of Section 162(m) of the Code, the Regulations or applicable law,
then such terms or provisions shall be deemed inoperative to the extent
necessary to avoid the conflict with the requirements of Section 162(m) of the
Code, the Regulations or applicable law without invalidating the remaining
provisions hereof. With respect to Section 162(m), if this Plan does not contain
any provision required to be included herein under Section 162(m) of the Code or
the Regulations, such provision shall be deemed to be incorporated herein with
the same force and effect as if such provision had been set out at length
herein.
11. NON-EXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan by the Committee or the Board nor the
submission of the Plan to the stockholders of the Company for approval shall be
construed as creating any limitations on the power of the Committee or the Board
to adopt such other incentive arrangements as it may deem desirable, including,
without limitation, the granting of stock options and the awarding of stock or
cash or other benefits otherwise than under the Plan, and such arrangements may
be either generally applicable or applicable only in specific cases. None of the
provisions of this Plan shall be deemed to be an amendment to or incorporated in
any employment agreement between the Company and any Participant.
12. BENEFICIARIES
Each Participant may designate a beneficiary or beneficiaries to
receive, in the event of such Participant's death, any payments remaining to be
made to the Participant under the Plan. Each Participant shall have the right to
revoke any such designation and to redesignate a beneficiary or beneficiaries by
written notice to the Company to such effect. If any Participant dies without
naming a beneficiary or if all of the beneficiaries named by a Participant
predecease the Participant, then any amounts remaining to be paid under the Plan
shall be paid to the Participant's estate.
13. GOVERNING LAW
The Plan shall be governed by, and construed in accordance with, the
laws of the State of New York, without regard to principles of conflicts of
laws.