As filed with the Securities and Exchange Commission on December 17, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TIME WARNER INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3527249
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification
Number)
75 Rockefeller Plaza
New York, New York 10019
(Address of Principal Executive Offices) (Zip Code)
Time Warner Inc. Deferred Compensation Plan
(Full title of the Plan)
Peter R. Haje, Esq.
Executive Vice President and General Counsel
Time Warner Inc.
75 Rockefeller Plaza
New York, New York 10019
(Name and address of agent for service)
(212) 484-8000
(Telephone number, including area code, of agent for service)
<TABLE>
--------------------- ------------------- ---------------------- ---------------------- ----------------
Title of Securities Proposed Maximum Proposed Maximum Amount of
to be Registered Amount to be Offering Price Per Aggregate Offering Registration Fee
Registered Obligation (2) Price (2)
--------------------- ------------------- ---------------------- ---------------------- -----------------
--------------------- ------------------- ---------------------- ---------------------- -----------------
<S> <C> <C> <C> <C> <C>
Deferred
Compensation
Obligations (1) $172,000,000 100% $172,000,000 $47,816.00
--------------------- ------------------- ---------------------- ---------------------- -----------------
(1) The Deferred Compensation Obligations are unsecured obligations of Time Warner Inc. to pay deferred
compensation in the future in accordance with the terms of the Time Warner Inc. Deferred Compensation
Plan.
(2) Estimated solely for the purpose of determining the registration fee.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by the Registrant (File
No. 1-12259) pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are hereby incorporated by reference in this Registration
Statement:
1. The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997, as amended by Form 10-K/A dated June 25, 1998 (as
amended, the "1997 Form 10-K");
2. The Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998; and
3. The Registrant's current reports on Form 8-K dated February
10, 1998 and November 19, 1998.
All documents and reports subsequently filed by the Registrant
pursuant to Sections 13(a) and (c), 14 or 15(d) of the Exchange Act after the
date of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered hereby have been sold, or which deregisters all such securities
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents or reports. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein and to be a part hereof shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities
Under the Time Warner Inc. Deferred Compensation Plan (the "Plan"), Time
Warner Inc. (the "Company") will provide eligible employees the opportunity to
defer a specified percentage or amount of their regular annual cash bonus. The
obligations of the Company under the Plan (the "Obligations") will be unsecured
general obligations of the Company to pay the deferred compensation in the
future in accordance with the terms of the Plan, and will rank on a parity with
other unsecured and unsubordinated indebtedness of the Company from time to time
outstanding. However, because the Company is a holding company, the right of the
Company, and hence the right of creditors of the Company (including participants
in the Plan), to participate in any distribution of the assets of any subsidiary
upon its liquidation or reorganization or otherwise is necessarily subject to
the prior claims of creditors of the subsidiary, except to the extent that
claims of the Company itself as a creditor of the subsidiary may be recognized.
Accordingly, participants in the Plan may be deemed to be effectively
subordinated to such claims. As of September 30, 1998, the consolidated and
unconsolidated subsidiaries of the Company had an aggregate of approximately $21
billion of outstanding liabilities, including indebtedness. In addition,
dividends, loans and advances from certain subsidiaries to the Company are
restricted by certain agreements.
The amount of compensation to be deferred by each participating employee
(each a "Participant") will be determined in accordance with the Plan based on
elections by each Participant. Each Obligation will be payable on the date
selected by each Participant in accordance with the terms of the Plan or, if
earlier, death, disability or other termination of employment pursuant to the
terms of the Plan. The Obligations will be indexed to one or more investment
crediting rate options (the "Crediting Rate Options") individually chosen by
each Participant from a list of investment fund options. Each Participant's
Obligation will be adjusted to reflect the investment experience, whether
positive or negative, of the selected Crediting Rate Options, including any
appreciation or depreciation. The Obligations will be denominated and be payable
in United States dollars.
A Participant's right or the right of any other person to the Obligations
cannot be assigned, alienated, sold, garnished, transferred, pledged, or
encumbered except by a written designation of a beneficiary under the Plan, by
written will, or by the laws of descent and distribution.
The Obligations are not subject to redemption, in whole or in part, prior
to the individual payment dates specified by each Participant, at the option of
the Company or through operation of a mandatory or optional sinking fund or
analogous provision. However, the Company reserves the right to amend or
terminate the Plan at any time, except that no such amendment or termination
shall adversely affect the right of the Participant to the balance of his or her
deferred account as of the date of such amendment or termination.
<PAGE>
The Obligations are not convertible into another security of the Company.
The Obligations will not have the benefit of a negative pledge or any other
affirmative or negative covenant on the part of the Company. No trustee has been
appointed having the authority to take action with respect to the Obligations
and each Participant will be responsible for acting independently with respect
to, among other things, the giving of notices, responding to any requests for
consents, waivers or amendments pertaining to the Obligations, enforcing
covenants and taking action upon default.
Item 5. Interests of Named Experts and Counsel.
Ernst & Young LLP, independent auditors, have audited the consolidated
financial statements and schedules of the Registrant and Time Warner
Entertainment Company, L.P. included in the Registrant's 1997 Form 10-K, as set
forth in their reports which are incorporated herein and in the Prospectus
relating hereto by reference. Such consolidated financial statements are
incorporated by reference in reliance on their reports, given on their authority
as experts in accounting and auditing.
PricewaterhouseCoopers LLP, independent accountants, have audited the
consolidated financial statements of Turner Broadcasting System, Inc.
for the year ended December 31, 1995, which are incorporated herein and in the
Prospectus relating hereto by reference to the Registrant's 1997 Form 10-K. Such
consolidated financial statements are incorporated by reference in reliance on
their report given on their authority as experts in accounting and auditing.
Legal matters in connection with the Deferred Compensation Obligations
offered hereby have been passed upon for the Registrant by Thomas W. McEnerney,
Esq., 75 Rockefeller Plaza, New York, NY 10019.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
that a corporation may indemnify directors and officers as well as other
employees and individuals against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation - a
"derivative action"), if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceedings, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) actually and reasonably incurred
in connection with the defense or settlement of such action, and the statute
requires court approval before there can be any indemnification where the person
seeking indemnification has been found liable to the corporation. The statute
provides that it is not exclusive of other indemnification that may be granted
by a corporation's charter, by-laws, disinterested director vote, stockholder
vote, agreement or otherwise.
Article VI of the Registrant's By-laws requires indemnification to the
fullest extent permitted under Delaware law of any person who is or was a
director or officer of the Registrant who is or was involved or threatened to be
made so involved in any action, suit or proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that such person is or
was serving as a director, officer or employee of the Registrant or any
predecessor of the Registrant or was serving at the request of the Registrant as
a director, officer or employee of any other enterprise.
Section 102(b)(7) of the DGCL permits a provision in the certificate of
incorporation of each corporation organized thereunder, such as the Registrant,
eliminating or limiting, with certain exceptions, the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director. Section 1, Article X of the Restated
Certificate of Incorporation of the Registrant eliminates the liability of
directors to the extent permitted by Section 102(b)(7).
The foregoing statements are subject to the detailed provisions of Sections
145 and 102(b)(7) of the DGCL, Article VI of such By-laws and Section 1, Article
X of such Restated Certificate of Incorporation, as applicable.
The Registrant's Directors' and Officers' Liability and Reimbursement
Insurance Policy is designed to reimburse the Registrant for any payments made
by it pursuant to the foregoing indemnification. Such policy has coverage of
$50,000,000.
<PAGE>
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits listed on the accompanying Exhibit Index are filed or
incorporated by reference as part of this Registration Statement.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective Registration Statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3,
Form S-8, or Form F-3 and the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to
the Commission by the Registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the
initial bona fide offering thereof.
<PAGE>
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnifi- cation is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City and State of New York, on December 17, 1998.
TIME WARNER INC.
By: /s/John A. LaBarca
Name: John A. LaBarca
Title: Senior Vice President
and Controller
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed below by the following persons on
December 17, 1998 in the capacities indicated.
Signature Title
(i) Principal Executive Officer:
* Director, Chairman of the Board and
___________________________ Chief Executive Officer
(Gerald M. Levin)
(ii) Principal Financial Officer:
* Executive Vice President and Chief
___________________________ Financial Officer
(Richard J. Bressler)
(iii) Principal Accounting Officer:
/s/John A. LaBarca Senior Vice President and
_____________________________ Controller
(John A. LaBarca)
<PAGE>
(iv) Directors:
*
_________________________________
(Merv Adelson)
*
_________________________________
(J. Carter Bacot)
*
_________________________________
(Stephen F. Bollenbach)
*
_________________________________
(John C. Danforth)
*
_________________________________
(Beverly Sills Greenough)
*
_________________________________
(Gerald Greenwald)
*
_________________________________
(Carla A. Hills)
*
_________________________________
(Reuben Mark)
*
_________________________________
(Michael A. Miles)
*
_________________________________
(Richard D. Parsons)
*
_________________________________
(R. E. Turner)
*
_________________________________
(Francis T. Vincent, Jr.)
Constituting a majority of the Board of Directors
*By /s/Peter R. Haje
(Peter R. Haje)
(Attorney-in-Fact)
*Pursuant to Powers of Attorney
dated as of November 19, 1998
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description Page
_______ ___________ ____
4 Time Warner Inc. Deferred Compensation Plan.
5 Opinion of Thomas W. McEnerney, Esq. regarding the
legality of the securities being registered.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of PricewaterhouseCoopers LLP, Independent
Accountants, with respect to Turner Broadcasting
System, Inc.
23.3 Consent of Thomas W. McEnerney, Esq. included in
Exhibit 5.
*
24 Powers of Attorney dated as of November 19, 1998.
__________________________
*Incorporated by reference
EXHIBIT 4
TIME WARNER INC.
DEFERRED COMPENSATION PLAN
ARTICLE I
ESTABLISHMENT OF THE PLAN
1.1 Establishment of Plan. Time Warner Inc. (the "Company") has
established this plan effective as of November 18, 1998, to be known as the
Time Warner Inc. Deferred Compensation Plan (the "Plan").
1.2 Purpose of Plan. The Plan is intended to be an unfunded,
non-qualified deferred compensation plan maintained to provide deferred
compensation for a select group of management or highly compensated employees
under Section 201(2) of the Employee Retirement Income Security Act of 1974, by
providing Eligible Employees a means of irrevocably deferring to a future Year
the receipt of certain compensation from Employing Companies in excess of the
Compensation Limit. The Plan will also accept transfers of account balances
attributable to compensation previously irrevocably deferred under (i) the Time
Warner Deferred Compensation (pre-1999) Plan (the "Pre-1999 Plan") and (ii) the
employment agreements of certain senior officers and key personnel of the
Company and its Affiliates, subject to the terms and conditions for making such
transfers specified in the Pre-1999 Plan and each of the employment agreements.
1.3 Applicability of Plan. The provisions of the Plan are applicable
only to Employees of Employing Companies employed on or after the effective date
of the Plan.
ARTICLE II
DEFINITIONS
2.1 Definitions. Whenever used in the Plan, the following terms
shall have the respective meanings set forth below unless otherwise expressly
provided, and when the defined meaning is intended, the term is capitalized.
2.2. Affiliate: An Employing Company and any entity affiliated with
the Employing Company within the meaning of Code Section 414(b), with respect to
controlled groups of corporations, Section 414(c) with respect to trades or
businesses under common control with the Employing Company, and Section 414(m)
with respect to affiliated service groups, and any other entity required to be
aggregated with an Employing Company pursuant to regulations under Section
414(o) of the Code.
Except as described below, the term "Affiliate" shall generally mean an
entity in which the Employing Company has an ownership interest directly or
indirectly of at least eighty percent (80%).
(a) The Committee may designate any entity which is related to
the Company by less than eighty percent (80%) as an Affiliate.
(b) If an Employing Company adopts the Plan only for the
benefit of certain of its divisions, locations or operations, all other
divisions, locations or operations of said Employing Company shall be treated as
Affiliates.
(c) TWE, each division of TWE, any entity affiliated with
TWE within the meaning of Sections 414(b), 414(c) and 414(m) of the Code, and
any other entity required to be aggregated with TWE pursuant to regulations
under Section 414(o) of the Code shall be treated as Affiliates.
(d) TWE-A/N, each division of TWE-A/N, any entity
affiliated with TWE-A/N within the meaning of Sections 414(b), 414(c) and 414(m)
of the Code, and any other entity required to be aggregated with TWE-A/N
pursuant to regulations under Section 414(o) of the Code shall be treated as
Affiliates.
2.3 Adverse Tax Effect: Any reduction in the benefits available to,
or any adverse impact on, the Company from the use of Corporate Owned Life
Insurance ("COLI") as an investment vehicle to fund the obligations of the
Company under the Plan.
<PAGE>
2.4 Beneficiary: The person or persons designated from time to time
by a Participant or Inactive Participant, by notice to the Committee, to receive
any benefits payable under the Plan after his or her death, which designation
has not been revoked by notice to the Committee at the date of the Participant's
or Inactive Participant's death. Such notice shall be in a form as required by
the Committee or acceptable to it which is properly completed and delivered to
the Committee, any member thereof or its designee. Notice to the Committee shall
be deemed to have been given when it is actually received by any such
individual.
2.5 Board: The Board of Directors of the Company or a committee
thereof authorized to act in the name of the Board.
2.6 Code: The Internal Revenue Code of 1986, as amended.
2.7 Committee: The committee appointed by the Company as provided for
herein.
2.8 Company: Time Warner Inc.
2.9 Compensation Limit: The compensation limit of Section 401(a)(17)
of the Code, as adjusted under Section 401(a)(17)(B) of the Code for increases
in the cost of living.
2.10 Deferred Compensation Account: The separate account established
under Article V of the Plan for each Participant and Inactive Participant
representing amounts deferred by a Participant pursuant to Article III.
2.11 Disability: Permanent and total disability as determined by the
Social Security Administration or any disability for which a Participant is
receiving monthly benefits under the provisions of the Time Warner Inc. Long
Term Disability Plan or, in the case of an employee covered by a long term
disability plan of an Affiliate, under the provisions of such plan, whichever
shall occur first.
2.12 Eligible Employee: An individual who meets the eligibility
requirements of Section 3.1.
2.13 Employee: An individual employed by an Employing Company.
2.14 Employing Company: The Company and each Affiliate which has been
authorized by the Committee to participate in the Plan and has adopted the Plan.
2.15 ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
2.16 Inactive Participant: A Participant whose employment has
terminated with the Company and any Affiliate and whose Deferred Compensation
Account has not been fully distributed.
2.17 Investment Committee: The Investment Committee as provided for
herein.
2.18 Investment Direction: A Participant's or Inactive Participant's
direction to the recordkeeper of the Plan, in the form and manner prescribed by
the Committee, in accordance with either written directions or directions made
through the recordkeeper's telephone system directing which Investment Funds
will be credited with his or her deferrals and transfers of all or part of the
deferred amounts and any earnings thereon from other Investment Funds, the
Pre-1999 Plan and certain employment agreements, as provided for herein.
2.19 Investment Funds: The hypothetical investment funds, as determined
from time to time by the Board or the Investment Committee.
2.20 Participant: Each Employee who participates in the Plan in
accordance with the terms and conditions of the Plan.
<PAGE>
2.21 Plan: This plan, the Time Warner Inc. Deferred Compensation Plan
as set forth herein and as it may be amended from time to time.
2.22 Retirement: The term used to indicate that a Participant, as of
the date his or her employment terminates with the Company and any Affiliate, is
eligible for retirement under the then current qualified defined benefit plan of
the Company or the Affiliate from which he or she is terminating employment. If
such company does not have a qualified defined benefit plan, eligibility for
retirement shall be determined by the applicable provision in the qualified
defined contribution plan of such company for which the Participant is eligible,
and, if more than one, the plan which would result in the earliest distribution
under this Plan.
2.23 Tax Event: The first to occur of any of the following events (as
determined by the Committee):
(a) any amendments to, clarification of, or change in the
laws of the United States or taxing authority thereof that has an Adverse Tax
Effect,
(b) any judicial decision, administrative pronouncement,
published or private ruling, technical advice memorandum, regulatory procedure,
notice or announcement ("Administrative Action") that has an Adverse Tax Effect,
(c) any amendment to, clarification of, or change in the
position or the interpretation of any Administrative Action
that has an Adverse Tax Effect, or
(d) the receipt by the Company or any of its Affiliates or
subsidiaries of a Notice of Proposed Adjustment (or notice similar thereto)
from the Internal Revenue Service proposing an adjustment which would result
in an Adverse Tax Effect.
2.24 TWE: Time Warner Entertainment Company, L.P.
2.25 TWE-A/N: Time Warner Entertainment-Advance/Newhouse Partnership.
2.26 Valuation Date: With respect to the Investment Funds, each business
day when the New York Stock Exchange is open.
2.27 Year: A calendar year.
ARTICLE III
PARTICIPANT DEFERRALS
3.1 Eligibility. The Employees who shall be eligible to make
deferral elections under the Plan are those salaried officers and other key
employees of an Employing Company who at the time of a deferral election
pursuant to Section 3.3 below:
(i) are on a regular periodic U.S. payroll of the Employing
Company; and
(ii) have a current base salary plus bonus in excess of the
Compensation Limit or are otherwise designated as
eligible by the Committee. For purposes of this
subsection 3.1(ii), "bonus" means any annual bonus
(paid or deferred) pursuant to a regular program (but
excluding long-term cash incentive plan payments other
than those specified in Section 3.5 and commission,
spot and similar bonuses) for the Year preceding the
current Year, except that, in the case of a deferral
election to be made by a newly hired Employee (which
election shall be made available at the sole discretion
of the Employing Company), with respect to a bonus to
be earned in (A) the current Year, "bonus" means the
target or otherwise estimated bonus for that portion of
the current Year after the date of his or her hire, and
(B) the Year following hire, "bonus" means the target
or otherwise estimated bonus for the current Year.
The Committee may from time to time, in its sole and absolute
discretion, modify the above eligibility requirements and make such additional
or other requirements for eligibility as it may determine.
<PAGE>
3.2 Compensation Eligible for Deferral. (a) An Eligible Employee may
elect to defer receipt of all or a specified portion of any bonus, but only to
the extent the receipt thereof would cause the Eligible Employee's compensation
to exceed the Compensation Limit. Each such deferral may be expressed as a
percentage, in 10% increments only, but in no event shall any election result in
a deferral of less than $5,000. The Eligible Employee may elect to have the
designated percentage apply only to that portion of the bonus in excess of a
certain dollar amount that he or she specifies when making the election. In lieu
of designating a percentage, the Eligible Employee may elect to have a specific
dollar amount of the bonus deferred. For purposes of this Section 3.2, "bonus"
means any annual bonus payable pursuant to a regular program (but excluding
long-term cash incentive plan payments other than those specified in Section 3.5
and commission, spot and similar bonuses) and which would otherwise be payable
in cash to an Eligible Employee for services as an Employee.
(b) An Eligible Employee whose compensation is payable under
an employment agreement with the Company or another Employing Company
which provides for deferred compensation may elect to defer such
deferred compensation under the Plan, subject to the terms of
such agreement. Any such deferral so elected shall be made in the same
manner as provided for in subsection (a). Notwithstanding the
foregoing, any compensation previously deferred under an employment
agreement shall be subject to deferral under the Plan only as provided
for in Section 3.6(b).
(c) Whenever any compensation eligible for deferral
under the Plan is also eligible for deferral, in whole or part, under any other
deferred compensation plan (such as an excess 401(k) plan), the amount of such
compensation eligible for deferral under the Plan shall be net of any amount
elected for deferral under the other plan.
3.3 Deferral Elections. An Eligible Employee with the consent of the
Committee may annually make an irrevocable election to defer under the Plan
certain compensation described in Section 3.2 and participate herein by
timely delivering a properly executed election to the Committee on a form
prescribed by the Committee. The election form shall specify with respect
to the compensation to be deferred under the Plan for the Year, pursuant to
the provisions of Section 3.2 and Article V:
(i) the percentage of the bonus or compensation specified in
Section 3.2(b) to be deferred, the certain dollar amount of
such bonus or compensation in excess of which the deferral
has been elected, if applicable or, the specific dollar
amount to be deferred; and
(ii) the time for the commencement of payment of the deferred
compensation, which must be either on account of retirement
or at an in-service Year to be specified by the Eligible
Employee. Compensation which is to be deferred to an
in-service payment date must be deferred for no fewer than
three Years following the Year in which it was earned.
3.4 Effective Date of Election. (a) An election to defer
compensation under the Plan must be received by the Committee prior to the
beginning of the Year in which such compensation is earned. Such an election
shall become irrevocable as of the last day of the Year prior to the Year in
which such compensation is earned. Notwithstanding the foregoing, an election to
defer compensation to be earned in 1999 must be received by the Committee prior
to January 31, 1999, at which time it shall become irrevocable.
(b) Notwithstanding the date specified in subsection (a)
above, the Committee may prescribe an earlier or later date by which
time an Eligible Employee must elect to defer such compensation.
(c) Under no circumstances may an Eligible Employee at any
time defer compensation to which he or she has attained a legally
enforceable right to receive currently.
3.5 Certain Incentive Plans. Notwithstanding anything to the contrary
herein, the term "bonus" wherever used in this Article III shall include any
amounts payable to eligible employees of (i) Time Inc. and its subsidiaries and
affiliates, who participate in a Phantom Equity Plan ("PEP"), provided, however,
that any such elections shall be made irrevocably during the third Year of a
four Year PEP cycle or (ii) Entertainment Weekly Inc., who participate in the
Entertainment Weekly Stock Performance Plan, provided, however, that any such
elections under either (i) or (ii) shall be made irrevocably no later than by
the end of January of the final year of the respective plan.
<PAGE>
3.6 Transfers. (a) Each "Eligible Participant" in the Pre-1999
Plan may make a one time election no later than January 31, 1999 (which shall
become irrevocable as of such date) by a written notice to the Committee to have
his or her entire account balance in the Pre-1999 Plan transferred to and
deferred under his or her Deferred Compensation Account in the Plan. For
purposes of this Section, an "Eligible Participant" is any Participant in the
Pre-1999 Plan who has not been designated (either individually or by class) by
the Committee, in its sole discretion, as being ineligible to make such
transfers.
(b) Each Eligible Employee, whose compensation is payable
under an employment agreement with the Company or another Employing Company
which provides for deferred compensation, may elect to have transferred to and
deferred under his or her Deferred Compensation Account in the Plan the balance,
in whole or in part, of the compensation previously deferred under such
agreement, subject to the terms thereof. Such an election can be made at any
time, but only once in the Eligible Employee's lifetime.
ARTICLE IV
DEFERRED COMPENSATION ACCOUNT
4.1 Deferred Compensation Account. (a) A Deferred Compensation
Account shall be established for each Participant who makes a deferral election
pursuant to Article III. A Participant's or Inactive Participant's Deferred
Compensation Account shall consist of the Compensation deferred by a Participant
in any Year under the Plan, increased or decreased by any gains or losses
thereon.
(b) The Company shall maintain the Deferred Compensation Accounts
of all Participants and Inactive Participants.
(c) All payments made under the Plan shall be made directly by
the Company from its general assets subject to the claims of any creditors and
no deferred compensation under the Plan shall be segregated or earmarked or
held in trust. The Plan is an unfunded and unsecured contractual obligation of
the Company. Participants, Inactive Participants and Beneficiaries shall be
unsecured creditors of the Comany with respect to all oblitgations owed to them
under the Plan. Participants, Inactive Participants and Beneficiaries shall
not have any interest in any fund or specific asset of the Company by reason of
any amount credited to a Deferred Compensation Account, nor shall any such
person have any right to receive any distribution under the Plan except as
explicitly stated herein. The Company shall not designate any funds or assets
to specifically provide for the distribution of the value of a Deferred
Compensation Account or issue any notes or security for the payment thereof.
Any asset or reserve that the Company may purchase or establish shall not serve
as security to Participants, Inactive Participants and Beneficiaries for the
performance of the Company under the Plan.
4.2 Hypothetical Investment. (a) For crediting rate purposes, amounts
creditedto a Participant's or Inactive Participant's Deferred Compensation
Account shall be deemed to be invested in one or more of the following deemed
Investment Funds, according to his or her Investment Direction: Time Warner Inc.
Stock Fund, International Equity Fund, Aggressive Equity Fund, Income-Managed
Equity Fund, Balanced Investment Fund and Capital Preservation Fund. For any
period, the deemed return on each of these Investment Funds shall be the same as
the return for such period on each similarly named fund offered under the Time
Warner Defined Contribution Plans Master Trust.
(b) The Company, by action of the Investment Committee or the
Board, may add to, decrease or change the Investment Funds offered under the
Plan, at any time and for any reason. Participants, Inactive Participants and
Beneficiaries shall not have the right to continue any particular deferral
option.
(c) The Company shall be under no obligation to invest
amounts corresponding to any deferral options chosen by Participants or Inactive
Participants. Any such allocation to any Deferred Compensation Account shall be
made solely for the purpose of determining the value of such account under the
Plan.
4.3 Investment Direction. Deferrals shall be credited to the
Investment Funds in accordance with a Participant's or Inactive Participant's
Investment Direction. A Participant or Inactive Participant shall direct that
his or her deferrals be applied, in multiples of one percent, to deemed
investments in any or all of the Investment Funds.
4.4 Changes in Investment Direction. A Participant or Inactive
Participant may make one Investment Direction in each calendar quarter,
separately with respect to either or both new deferrals or previous deferrals
and any earnings thereon.
<PAGE>
4.5 Manner of Hypothetical Investment. (a) For purposes of the
hypothetical investment under Section 4.2, deferred compensation shall be
considered to be invested on the date the recordkeeper of the Plan records the
deferral amount.
(b) As of each Valuation Date, the recordkeeper of the
Plan shall determine the value of each Participant's or Inactive
Participant's Deferred Compensation Account.
(c) For purposes of distribution pursuant to Article V,
the balance of each Deferred Compensation Account shall be valued as
of the Valuation Date immediately preceding the date that the
Committee commences the processing of the distribution of the balance
of such account, or the particular installment thereof.
4.6 Participant Assumes Risk of Loss. Each Participant and Inactive
Participant or his or her respective Beneficiary assumes the risk in connection
with any decrease in value of his or her Deferred Compensation Account deemed
invested in the Investment Funds.
4.7 Statement of Account. As soon as reasonably practicable after
the end of each calendar quarter, a statement shall be sent to each Participant
and Inactive Participant with respect to the value of his or her Deferred
Compensation Account as of the end of such quarter.
ARTICLE V
PAYMENT OF DEFERRED COMPENSATION ACCOUNT
5.1 Payment on Account of Retirement. (a) In the event of the
termination of the Participant's employment with the Company or an Affiliate on
account of his or her Retirement, the Participant's Deferred Compensation
Account shall be distributed to him or her in ten annual installment payments.
(b) Notwithstanding any other provision of this Section
5.1, if the value of the Participant's Deferred Compensation Account is less
than $50,000 as of the Valuation Date immediately prior to the date of
Retirement, payment shall be made in a lump sum.
(c) Notwithstanding subsection (a) above, if the value
of a Participant's Deferred Compensation Account is $50,000 or more, such
Participant may, at least 12 months prior to his or her Retirement date, request
a lump sum payment, and the Committee may, in its sole and absolute discretion,
make payment in a lump sum.
(d) The first installment, or lump sum, as the case may
be, shall be distributed as soon as practicable on or after April 1 of the Year
following the date of Retirement. Subsequent annual installment payments shall
be distributed as soon as practicable on or after each following April 1.
(e) All requests by a Participant under this Section
5.1 shall be made only by delivering a written notice to the Committee on a form
prescribed by it.
5.2 Special In-Service Payment. Notwithstanding the payment
provisions in subsections (a) through (d) of Section 5.1, a Participant may
request, by delivering written notice to the Committee on a form prescribed by
it, one special in-service payment in a lump sum of all or any portion of the
Participant's Deferred Compensation Account (but not less than $5,000), to be
distributed as soon as practicable after the expiration of 36 months following
the month in which he or she has made the request, and the Committee may, in its
sole and absolute discretion, make such payment.
(i) The value of any such special in-service payment shall
not include amounts payable under existing in-service
payment elections.
(ii) In the event of the termination of the Participant's
employment with the Company or an Affiliate for any
reason, prior to the payment of any such special
in-service payment, it shall be paid in the same manner
and at the same time or times as any other payments of
the Participant's Deferred Compensation Account due
under this Article. In the event of death, payment
shall be made as provided for in Section 5.6.
(iii) In requesting a special in-service payment, a
Participant must specify that such payment is to be
applicable to the amount or amounts which were deferred
in a specific Year or Years. All or a percentage of the
deferral for such Year or Years may be requested.
<PAGE>
5.3 Payment on Account of Disability. (a) In the event a Participant
meets the definition of Disability, the value of the Participant's Deferred
Compensation Account shall be distributed to him or her in five annual
installment payments.
(b) Notwithstanding subsection (a) above, if the value
of the Participant's Deferred Compensation Account is less than $50,000 as of
the Valuation Date immediately prior to the date the definition of Disability is
met, payment shall be made in a lump sum.
(c) The first installment, or lump sum, as the case may
be, shall be distributed as soon as practicable on or after April 1 of the Year
following the date the Participant has met the definition of Disability.
Subsequent annual installment payments shall be distributed as soon as
practicable on or after each following April 1.
(d) If a Participant or Inactive Participant no longer
meets the definition of Disability and returns to work with the Company or an
Affiliate, no further payments shall be made on account of the prior Disability,
and distribution of his or her remaining Deferred Compensation Account shall be
made as otherwise provided in this Article V.
5.4 In-Service Payments. (a) An in-service payment elected by a
Participant pursuant to Section 3.3(ii) shall be distributed in a lump sum as
soon as practicable on or after April 1 in the Year specified by the
Participant.
(b) Notwithstanding subsection (a) above, a Participant
may request, by delivering written notice to the Committee on a form prescribed
by it prior to January 1 of the Year preceding that in which the in-service
payment is to be made, that the Committee, in its sole and absolute discretion,
defer such payment until such later Year as the Participant requests. Any such
additional deferral (i) must be for full Years, and for no fewer than three
Years following the Year in which payment would have been made but for the
additional deferral, (ii) must be for the current value of the whole amount
originally deferred, (iii) can only be made once with respect to any in-service
payment, and (iv) shall be distributed in a lump sum as soon as practicable on
or after April 1 in the Year specified by the Participant. In lieu of specifying
the Year in which the payment is to be made, the Participant may specify that
payment of the deferral shall be made on account of retirement, in which case
it shall be distributed in accordance with the provisions of Section 5.1 as
soon as practicable on or after April 1 of the Year following the date of
Retirement.
(c) In the event of the termination of a Participant's
employment for any reason prior to the time any in-service payment under this
Section 5.4 would have been made, distribution of such payment shall be made
according to the manner of payment specified in Section 5.1, 5.2, 5.3, 5.5 or
5.6, based on the Participant's actual reason for termination of employment;
provided, however, that the unpaid balance of any in-service payment shall be
paid in full at the time such in-service payment would have been made but for
such termination of employment.
(d) The Committee may, in its sole and absolute
discretion, defer any in-service payment previously elected by any officer of
the Company or TWE who at the time of the designated in-service payment date is
at or above the level of a senior vice president. In the event of any such
deferral by the Committee, payment shall be made under this Article V as if such
officer had made a deferral election for payment on account of Retirement.
5.5 Payment on Account of Termination of Employment other than on
Account of Death, Disability or Retirement. (a) In the event of the termination
of employment with the Company or an Affiliate for reasons other than death,
Disability or Retirement, the value of the Participant's Deferred Compensation
Account shall be distributed to him or her in five annual installment payments.
A Participant shall not be considered to have terminated employment for purposes
of the Plan if he or she transfers directly to the Company or an Affiliate.
(b) Notwithstanding subsection (a) above, if the value
of the Participant's Deferred Compensation Account is less than $50,000 as of
the applicable Valuation Date pursuant to Section 4.5(b), payment shall be made
in a lump sum.
(c) The first installment, or lump sum, as the case may
be, shall be distributed as soon as practicable on or after April 1 of the Year
following the date the Participant has terminated employment. Subsequent annual
installment payments shall be distributed as soon as practicable on or after
each following April 1.
<PAGE>
5.6 Payment to Beneficiary or Estate in the Event of Death. Notwithstanding
the provisions for payment described in Sections 5.1 through 5.5 above, in the
event of the death of a Participant or Inactive Participant before the
distribution of his or her Deferred Compensation Account has commenced, or
before such account has been fully distributed, the value of such account shall
be determined as of the Valuation Date coincident with or immediately prior to
the date that the Committee commences the processing of the distribution, after
both a written notice of his or her death and a death certificate have been
received by the Committee. Such account shall be distributed in a lump sum as
soon as practicable to the Participant's or Inactive Participant's Beneficiary
(or, if no person has been designated or if no person so designated survives the
Participant or Inactive Participant, to such Participant's or Inactive
Participant's estate or if such Beneficiary survives the Participant or Inactive
Participant, but dies prior to payment, to such Beneficiary's estate). In case
any Participant or Inactive Participant and his or her Beneficiary die in or as
a result of a common accident or disaster and under such circumstances as to
make it impossible to determine which of them was the last to die, the
Participant or Inactive Participant shall be deemed to have survived his or her
Beneficiary. Distributions hereunder shall be subject to such administrative and
procedural requirements and forms as the Committee in its discretion may
require.
5.7 Severe Unforeseeable Financial Emergency Payments. Notwithstanding
any other provisions of the Plan, a Participant or Inactive Participant may make
an application to the Committee that he or she has a severe unforeseeable
financial emergency of such a substantial nature and beyond the individual's
control that a payment of compensation previously deferred under the Plan
or recision of a deferral election is warranted. After consideration of
the application, and a determination that such an emergency exists, the
Committee may, in its sole and absolute discretion, direct that all or a portion
of the balance of such individual's Deferred Compensation Account be paid to him
or her in such manner and at such time as the Committee shall specify, or may
rescind, in whole or in part, a deferral election with respect to a bonus
deferred but not yet payable, but only to the extent reasonably required to
satisfy the emergency need.
5.8 Incapacity. The Committee may direct that any amounts
distributable under the Plan to a person under a legal disability be made to
(and be withheld until the appointment of) a representative qualified pursuant
to law to receive such payment on such person's behalf.
5.9 Method of Paying Installments. Installment payments as provided
for in this Article V shall be paid as follows: (i) in the case of installments
paid over five Years: 1/5 of the value of the Deferred Compensation Account
subject to installment payments shall be paid in the first installment; 1/4 of
the remaining value shall be paid in the second installment; 1/3 of the
remaining value shall be paid in the third installment; 1/2 of the remaining
value shall be paid in the fourth installment; and all of the remaining value in
the account shall be paid in the fifth and final installment, and (ii) in the
case of installments paid over ten Years: 1/10 of the value of the Deferred
Compensation Account subject to installment payments shall be paid in the first
installment; 1/9 of the remaining value shall be paid in the second installment;
1/8 of the remaining value shall be paid in the third installment; 1/7 of the
remaining value shall be paid in the fourth installment; 1/6 of the remaining
value shall be paid in the fifth installment; 1/5 of the remaining value shall
be paid in the sixth installment; 1/4 of the remaining value shall be paid in
the seventh installment; 1/3 of the remaining value shall be paid in the eighth
installment; 1/2 of the remaining value shall be paid in the ninth installment
and all of the remaining value in the account shall be paid in the tenth and
final installment.
5.10 Payments Only in Cash. All payments under the Plan shall be made only
in cash.
5.11 Occurrence of a Tax Event: If a Tax Event shall occur and the
Committee thereafter determines to change the Investment Funds offered as
crediting rates under the Plan for amounts that have been deferred and elected
to be deferred under the Plan prior to the effective date of such change, then
each Participant and Inactive Participant shall have a one-time right to elect
to (a) maintain his or her Deferred Compensation Account under the Plan in the
Investment Funds then offered as crediting rates under the Plan or (b) receive a
lump sum distribution of all (but not less than all) of his or her Deferred
Compensation Account under the Plan and all amounts elected to be deferred under
the Plan but not yet credited to the Plan.
5.12 Rehire of Inactive Participant. If an Inactive Participant
returns to work with the Company or an Affiliate, no further payments shall be
made on account of the prior termination of employment, and distribution of his
or her remaining Deferred Compensation Account shall be made as otherwise
provided in this Article V.
<PAGE>
ARTICLE VI
ADMINISTRATION
6.1 The Committee. The Plan shall be administered by a Committee,
consisting of not less than three members to be appointed from time to time by
the Board. The members of the Committee shall serve at the pleasure of, and may
be removed by the Board at any time. Any member of the Committee may resign at
any time by giving notice to the Board or to the President of the Company. Any
such resignation shall take effect at the date of receipt of such notice or at
any later date specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective. No
member of the Committee shall receive any compensation for his or her services
as such. Participants and Inactive Participants may be members of the Committee
but may not participate in any decision affecting their own account in any case
where the Committee may take discretionary action under Article V.
6.2 Quorum and Actions of Committee. A majority of the members of
the Committee at the time in office shall constitute a quorum for the
transaction of business. All resolutions or other action taken by the Committee
shall be by vote of a majority of its members present at any meeting or, without
a meeting, by instrument in writing signed by all its members. Members of the
Committee may participate in a meeting of such Committee by means of a
conference telephone or similar communications equipment that enables all
persons participating in the meeting to hear each other, and such participation
in a meeting shall constitute presence in person at the meeting.
6.3 Plan Administrator. The Committee shall be the administrator of
the Plan and shall have all powers necessary to administer the Plan, including
discretionary authority to determine eligibility for benefits and to decide
claims under the terms of the Plan, except to the extent that any such powers
are vested in any other fiduciary by the Plan or by the Committee. The Committee
may from time to time establish rules for the administration of the Plan, and it
shall have the exclusive right to interpret the Plan to decide any matters
arising in connection with the administration and operation of the Plan. All its
rules, interpretations and decisions shall be conclusive and binding on the
Employing Companies and on Eligible Employees, Participants, Inactive
Participants and Beneficiaries.
The Committee may delegate any of its powers or duties to others as it
shall determine and may retain counsel, agents and such clerical and accounting
services as it may require in carrying out the provisions of the Plan.
6.4 Reliance on Information. The Committee and Investment Committee
(as described below) may rely conclusively upon all tables, valuations,
certificates, opinions and reports furnished by any actuary, accountant,
controller, counsel, recordkeeper or other person who is employed or engaged for
any purpose in connection with the administration of the Plan.
Neither the Committee or Investment Committee nor any member of the Board
or the board of directors (or governing body) of an Affiliate and no employee of
the Company or any Affiliate shall be liable for any act or action hereunder,
whether of omission or commission, by any other member or employee or by any
agent to whom duties in connection with the administration of the Plan have been
delegated or for anything done or omitted to be done in connection with the
Plan.
6.5 Committee Records. The Committee shall keep a record of all its
proceedings and of all payments directed by it to be made to Participants,
Inactive Participants or Beneficiaries or payments made by it for expenses or
otherwise.
6.6 Investment Committee; Appointment. An Investment Committee,
consisting of three (3) or more persons, shall be appointed from time to time by
the Board. The members of the Investment Committee shall serve at the pleasure
of, and may be removed by the Board at any time. Any member of the Investment
Committee may resign at any time by giving notice to the Board or to the
President of the Company. Any such resignation shall take effect at the date of
receipt of such notice or at any later date specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. Participants may be members of the Investment
Committee. Unless otherwise directed by the Board, and except as may be required
under ERISA, no bond or other security shall be required of any members of the
Investment Committee as such. No member of the Investment Committee shall
receive compensation for his services as such.
<PAGE>
6.7 Quorum and Actions of Investment Committee. A majority of the
members of the Investment Committee at the time in office shall constitute a
quorum for the transaction of business. All resolutions or other action taken by
the Investment Committee shall be by vote of a majority of its members present
at any meeting or, without a meeting, by instrument in writing signed by all its
members. Members of the Investment Committee may participate in a meeting of
such Investment Committee by means of a conference telephone or similar
communications equipment that enables all persons participating in the meeting
to hear each other, and such participation in a meeting shall constitute
presence in person at the meeting.
6.8 Investment Committee Chairman; Delegation by Investment
Committee. The members of the Investment Committee shall elect one of their
number as chairman and may elect a secretary who may, but need not, be one of
their number. The Investment Committee may delegate any of its powers or duties
among its members or to others as it shall determine. It may authorize one or
more of its members to execute or deliver any instrument or to make any payment
in its behalf. It may employ such counsel, agents and clerical, accounting,
actuarial and recordkeeping services as it may require in carrying out the
provisions of the Plan.
6.9 Investment Policy. The Board shall have the authority to
establish the overall investment policy for the Plan and may delegate such
responsibility to the Investment Committee. The Investment Committee shall take
all prudent action necessary or desirable for the purpose of carrying out the
foregoing.
6.10 Indemnification. The Company shall, to the fullest extent
permitted by law, indemnify each director, officer or employee of the Company or
any Affiliate (including the heirs, executors, administrators and other personal
representatives of such person) and each member of the Committee against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement, actually and reasonably incurred by such person in connection with
any threatened, pending or actual suit, action or proceeding (whether civil,
criminal, administrative or investigative in nature or otherwise) in which such
person may be involved by reason of the fact that he or she is or was serving
any employee benefit plans of the Company or any Affiliate in any capacity at
the request of such company.
6.11 Expenses of Administration. Any expense incurred by the Company,
the Committee or the Investment Committee relative to the administration of the
Plan shall be paid by the Employing Companies in such proportions as the Company
may direct.
ARTICLE VII
CLAIMS PROCEDURE
7.1 Participant or Beneficiary Request for Claim. Any request for a
benefit payable under the Plan shall be made in writing by a Participant or
Beneficiary (or an authorized representative of any of them), as the case may
be, and shall be delivered to any member of the Committee. Such written request
shall be deemed filed upon receipt thereof by the Committee. Such request shall
be made within the time prescribed in the Plan for claiming a particular benefit
or, if no time is so prescribed, within a reasonable time before payment of the
benefit is to commence.
7.2 Insufficiency of Information. In the event a request for
benefits contains insufficient information, the Committee shall, within a
reasonable period after receipt of such request, send a written notification to
the claimant setting forth a description of any additional material or
information necessary for the claimant to perfect the claim and an explanation
of why such material is necessary. The claimant's request shall be deemed filed
with the Committee on the date the Committee receives in writing such additional
information.
7.3 Request Notification. The Committee shall make a determination with
respect to a request for benefits within ninety (90) days after such request is
filed (or within such extended period prescribed below). The Committee shall
notify the claimant whether his claim has been granted or whether it has been
denied in whole or in part. Such notification shall be in writing and shall be
delivered, by mail or otherwise, to the claimant within the time period
described above. If the claim is denied in whole or in part, the written
notification shall set forth, in a manner calculated to be understood by the
claimant:
<PAGE>
(i) The specific reason or reasons for the denial;
(ii) Specific reference to pertinent provisions of the Plan
on which the denial is based; and
(iii) An explanation of the Plan's claim review procedure.
Failure by the Committee to give notification pursuant
to this Section within the time prescribed shall be
deemed a denial of the request for the purpose of
proceeding to the review stage.
7.4 Extensions. If special circumstances require an extension of
time for processing the claim, the Committee shall furnish the claimant with
written notice of such extension. Such notice shall be furnished prior to the
termination of the initial ninety (90)-day period and shall set forth the
special circumstances requiring the extension and the date by which the
Committee expects to render its decision. In no event shall such extension
exceed a period of ninety (90) days from the end of such initial ninety (90)-day
period.
7.5 Claim Review. A claimant whose request for benefits has been
denied in whole or in part, or his duly authorized representative, may, within
sixty (60) days after written notification of such denial, file with a reviewer
appointed for such purpose by the Committee (or, if none has been appointed,
with the Committee itself, with a copy to the Committee, a written request for a
review of his claim. Such written request shall be deemed filed upon receipt of
same by the reviewer.
7.6 Time Limitation on Review. A claimant who timely files a request
for review of his claim for benefits, or his duly authorized representative, may
review pertinent documents (upon reasonable notice to the reviewer) and may
submit the issues and his comments to the reviewer in writing. The reviewer
shall, within sixty (60) days after receipt of the written request for review
(or within such extended period prescribed below), communicate its decision in
writing to the claimant and/or his duly authorized representative setting forth,
in a manner calculated to be understood by the claimant, the specific reasons
for its decision and the pertinent provisions of the Plan on which the decision
is based. If the decision is not communicated within the time prescribed, the
claim shall be deemed denied on review.
7.7 Special Circumstances. If special circumstances require an
extension of time beyond the sixty (60)-day period described above for the
reviewer to render his decision, the reviewer shall furnish the claimant with
written notice of the extension required. Such notice shall be furnished prior
to the termination of the initial sixty (60)-day period and shall set forth the
special circumstances requiring the extension period. In no event shall such
extension exceed a period of sixty (60) days from the end of such initial sixty
(60)-day period.
ARTICLE VIII
AMENDMENT AND TERMINATION
8.1 Amendments. The Company (by action of the Board) or the
Committee (for the Company and the other Employing Companies) may at any time
amend the Plan.
8.2 Termination or Suspension. The continuance of the Plan and the
ability of an Eligible Employee to make a deferral for any Year are not assumed
as contractual obligations of the Company or any other Employing Company. The
Company reserves the right (for itself and the other Employing Companies) by
action of the Board or the Committee, to terminate or suspend the Plan, or to
terminate or suspend the Plan with respect to itself or an Employing Company.
Any Employing Company may terminate or suspend the Plan with respect to itself
by executing and delivering to the Company or the Committee such documents as
the Company or Committee shall deem necessary or desirable.
8.3 Participants' Rights to Payment. No termination of the Plan or
amendment thereto shall deprive a Participant or Inactive Participant of the
right to payment of deferred compensation credited as of the date of termination
or amendment, in accordance with the terms of the Plan as of the date of such
termination or amendment; provided, however, that in the event of termination of
the Plan, or termination of the Plan with respect to the Company or one or more
other Employing Companies, the Committee may, in its sole and absolute
discretion, accelerate the payment of all such credited deferred compensation on
a uniform basis for all Participants and Inactive Participants or, in the case
of termination of the Plan with respect to one or more other Employing
Companies, for all Participants and Inactive Participants of such other
Employing Companies only.
<PAGE>
ARTICLE IX
PARTICIPATING COMPANIES
9.1 Adoption by Other Entities. Upon the approval of the Company or
the Committee, the Plan may be adopted by any Affiliate by executing and
delivering to the Company or the Committee such documents as the Company or
Committee shall deem necessary or desirable. The provisions of the Plan shall be
fully applicable to such entity except as may otherwise be agreed to by such
adopting company and the Company or Committee.
ARTICLE X
GENERAL PROVISIONS
10.1 Participants' Rights Unsecured. The right of any Participant
or Inactive Participant to receive future payments under the provisions of the
Plan shall be an unsecured claim against the general assets of the Employing
Company employing the Participant at the time that his or her compensation is
deferred. The Company, and any other Employing Company or former Employing
Company shall not guarantee or be liable for payment of benefits to the
employees of any other Employing Company or former Employing Company under the
Plan.
10.2 Non-Assignability. The right of any person to receive any
benefit payable under the Plan shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, lien
or charge, and any such benefit shall not, except to such extent as may be
required by law, in any manner be liable for or subject to the debts, contracts,
liabilities, engagements or torts of the person who shall be entitled to such
benefits, nor shall it be subject to attachment or legal process for or against
such person.
10.3 Affiliate Ceasing to be Such. (a) In the event that a
corporation or unincorporated entity ceases at any time to meet the definition
of an Affiliate, such corporation or entity shall cease as of such time to be an
Employing Company, if it had been such, and those of its Employees who would
have been Eligible Employees under the Plan shall cease to be such.
(b) Payments to Participants employed by any Affiliate which
ceases to be such shall be made pursuant to Article V unless prior to the end of
the Year in which such company ceases to be an Affiliate, it adopts a non-
qualified deferred compensation plan and agrees to the transfer of the Deferred
Compensation Accounts of all such Participants to its plan and to assume all
obligations accrued under the Plan as of the date of such transfer with respect
to such accounts and subsequent distributions thereof.
10.4 No Rights Against the Company. The establishment of the Plan,
any amendment or other modification thereof, or any payments hereunder, shall
not be construed as giving to any Employee, Eligible Employee, Participant or
Inactive Participant any legal or equitable rights against the Company or any
other Employing Company or former Employing Company, its shareholders,
directors, officers or other employees, except as may be contemplated by or
under the Plan including, without limitation, the right of any Participant or
Inactive Participant to be paid as provided under the Plan. Participation in the
Plan does not give rise to any actual or implied contract of employment. A
Participant may be terminated at any time for any reason in accordance with the
procedures of the Employing Company.
10.5 Withholding. Each Employing Company, former Employing Company,
or paying agent shall withhold any federal, state and local income or employment
tax (including F.I.C.A. obligations for both social security and medicare) which
by any present or future law it is, or may be, required to withhold with respect
to any deferral of compensation pursuant to the Plan, any Employing Company
Allocation, any income deemed accrued or any distribution under the Plan, with
respect to any of its former or present Employees. The Committee shall provide
or direct the provision of information necessary or appropriate to enable each
such company to so withhold.
10.6 No Guarantee of Tax Consequences. The Committee, the Company and
any Employing Company or former Employing Company do not make any commitment or
guarantee that any amounts deferred for the benefit of a Participant or Inactive
Participant will be excludible from the gross income of the Participant or
Inactive Participant in the Year of deferral or distribution for federal, state
or local income or employment tax purposes, or that any other federal, state or
local tax treatment will apply to or be available to any Participant or Inactive
<PAGE>
Participant. It shall be the obligation of each Eligible Employee, Participant
or Inactive Participant to determine whether any deferral under the Plan is
excludible from his or her gross income for federal, state and local income or
employment tax purposes, and to take appropriate action if he or she has reason
to believe that any such deferral is not so excludible.
10.7 Severability. If a provision of the Plan shall be held illegal
or invalid, the illegality or invalidity shall not affect the remaining parts of
the Plan, and the Plan shall be construed and enforced as if the illegal or
invalid provision had not been included in the Plan.
10.8 Governing Law. The provisions of the Plan shall be governed by
and construed in accordance with the laws of the State of New York (other than
its rules of conflicts of laws to the extent that the application of the laws of
another jurisdiction would be required thereby), to the extent not preempted by
the laws of the United States.
EXHIBIT 5
TIME WARNER INC.
75 Rockefeller Plaza
New York, NY 10019
TELEPHONE: 212-484-8000
FACSIMILE: 212-333-3987
December 17, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Dear Sirs:
I am an Associate General Counsel and Vice President of Time Warner Inc., a
Delaware corporation (the "Company"), and I am delivering this Opinion in
connection with the filing with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, of a Registration Statement on Form S-8 (the
"Registration Statement") for the purpose of registering $172 million of
Deferred Compensation Obligations which represent unsecured obligations of the
Company to pay deferred compensation in the future in accordance with the terms
of the Time Warner Inc. Deferred Compensation Plan (the "Plan").
I have examined originals or copies, certified or otherwise identified
to my satisfaction, of such documents, corporate records of the Company and
other instruments as I have deemed necessary or appropriate for the purposes of
this opinion, including (a) the Restated Certificate of Incorporation, as
amended, and By-Laws of the Company, (b) the Plan, (c) resolutions adopted by
the Compensation Committee and the Finance Committee of the Board of Directors
of the Company and (d) the Registration Statement.
Based upon the foregoing, I am of the opinion that, when issued in
accordance with the provisions of the Plan, the Deferred Compensation
Obligations will be valid and binding obligations of the Company, enforceable in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws of general applicability relating to or
affecting enforcement of creditors' rights or by general equity principles.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name wherever appearing in the
Registration Statement and any amendment thereto.
Very truly yours,
Thomas W. McEnerney
Associate General Counsel
and Vice President
ens
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the references to our firm under the caption "Interests of
Named Experts and Counsel" in the Registration Statement on Form S-8 pertaining
to the registration of $172,000,000 of Deferred Compensation Obligations of Time
Warner Inc. ("Time Warner") and to the incorporation by reference in the
Registration Statement and related prospectus of our reports dated February 10,
1998, with respect to the consolidated financial statements and schedules of
Time Warner and Time Warner Entertainment Company, L.P., incorporated by
reference from Time Warner's Annual Report on Form 10-K for the year ended
December 31, 1997, as amended by Time Warner's Form 10-K/A dated June 25, 1998,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
New York, New York
December 11, 1998
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Time Warner Inc. and the Prospectus thereto of our
report dated February 5, 1996, which appears on page 53 of Turner Broadcasting
System, Inc.'s 1995 Annual Report to Shareholders, which is incorporated by
reference in Turner Broadcasting System, Inc.'s Annual Report on Form 10-K for
the year ended December 31, 1995, which is incorporated by reference in the
Annual Report on Form 10-K of Time Warner Inc. for the year ended December 31,
1997, which is incorporated by reference in this Registration Statement and the
Prospectus thereto. We also consent to the incorporation by reference of our
report on the Financial Statement Schedule, which appears on Page 43 of Turner
Broadcasting System, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1995. We also consent to the reference to us under the heading
"Interests of Named Experts and Counsel" in such Registration Statement.
PricewaterhouseCoopers LLP
Atlanta, Georgia
December 11, 1998
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers and
directors of Time Warner Inc., a Delaware corporation (the "Corporation"),
hereby constitutes and appoints CHRISTOPHER P. BOGART, RICHARD J. BRESSLER,
PETER R. HAJE, JOHN A. LABARCA, GERALD M. LEVIN, THOMAS W. MCENERNEY AND RICHARD
D. PARSONS and each of them, his or her true and lawful attorneys-in-fact and
agents, with full power to act without the others, for him or her and in his or
her name, place and stead, in any and all capacities, to sign one or more
Registration Statements on Form S-3, Form S-4 or Form S-8 or any other
appropriate form and any and all amendments to any such Registration Statement
(including post-effective amendments), to be filed with the Securities and
Exchange Commission for the registration under the provisions of the Securities
Act of 1933, as amended, of the shares of common stock, par value $0.01 per
share, of the Corporation (including any associated preferred stock purchase
rights), the shares of preferred stock, par value $.10 per share, of the
Corporation, deferred compensation obligations of the Corporation and/or
interests in certain employee benefit plans of the Corporation and its
subsidiaries, as the case may be, to be issued in connection with (a) the Time
Warner Dividend Reinvestment and Stock Purchase Plan and (b) certain employee
benefit plans of the Corporation and its subsidiaries, including (1) the Time
Warner Savings Plan, (2) the TWC Employees Savings Plan, (3) the Time Warner
Thrift Plan, (4) the Time Warner 1989 Stock Incentive Plan, (5) the Time Warner
1989 Lorimar Non-Employee Replacement Stock Option Plan, (6) the Time Warner
1989 WCI Replacement Stock Option Plan, (7) the 1988 Restricted Stock Plan for
Non-Employee Directors of Time Warner Inc., (8) the Time Warner Inc. 1988 Stock
Incentive Plan, (9) the Time Warner 1986 Stock Option Plan, (10) the Time Warner
Publishing Group Stock Incentive Plan, (11) the Time Warner Filmed Entertainment
Group Stock Incentive Plan, (12) the Time Warner Music Group Stock Incentive
Plan, (13) the Time Warner Programming Group Stock Incentive Plan, (14) the Time
Warner Cable Television Group Stock Incentive Plan, (15) the Time Warner
Corporate Group Stock Incentive Plan, (16) the Time Warner Inc. 1993 Stock
Option Plan, (17) the Time Warner Inc. 1994 Stock Option Plan, (18) the Time
Warner 1996 Stock Option Plan for Non-Employee Directors, (19) the Turner
Broadcasting System, Inc. 1988 Stock Option Plan, (20) the Turner Broadcasting
System, Inc. 1993 Stock Option and Equity-Based Award Plan, (21) the New Line
Cinema Corporation 1986 Stock Option Plan, (22) the New Line Cinema Corporation
1990 Stock Option Plan, (23) the New Line Cinema Corporation 1991 Stock Option
Plan, (24) the New Line Cinema Corporation Nonqualified Stock Option Agreements,
(25) the Time Warner 1997 Stock Option Plan, (26) the Time Warner Inc. Deferred
Compensation Plan, (27) the Time Warner Inc. 1999 Restricted Stock Plan and (28)
other employee stock incentive, stock option, restricted stock, deferred
compensation and benefit plans or successor plans maintained for the benefit of
employees of the Corporation or any of its subsidiaries, with power where
appropriate to affix thereto the corporate seal of the Corporation and to attest
said seal, and to file any such Registration Statement, including a form of
prospectus, and any and all amendments and post-effective amendments to any such
Registration Statement, with all exhibits thereto, and any and all documents in
connection therewith, with the Securities and Exchange Commission, hereby
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform any and all acts and things requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has hereunto set his or her
name as of the 19th day of November, 1998.
(i) Principal Executive Officer:
/s/Gerald M. Levin
_________________________________
Gerald M. Levin
Director, Chairman of the Board
and Chief Executive Officer
(ii) Principal Financial Officer:
/s/Richard J. Bressler
_________________________________
Richard J. Bressler
Executive Vice President and
Chief Financial Officer
(iii) Principal Accounting Officer:
/s/John A. LaBarca
_________________________________
John A. LaBarca
Senior Vice President and
Controller
<PAGE>
(iv) Directors:
/s/Merv Adelson
_________________________________
(Merv Adelson)
/s/J. Carter Bacot
_________________________________
(J. Carter Bacot)
/S/Stephen F. Bollenbach
_________________________________
(Stephen F. Bollenbach)
/s/John C. Danforth
_________________________________
(John C. Danforth)
/s/Beverly Sills Greenough
_________________________________
(Beverly Sills Greenough)
/s/Gerald Greenwald
_________________________________
(Gerald Greenwald)
/s/Carla A. Hills
_________________________________
(Carla A. Hills)
/s/Reuben Mark
_________________________________
(Reuben Mark)
/s/Michael A. Miles
_________________________________
(Michael A. Miles)
/s/Richard D. Parsons
_________________________________
(Richard D. Parsons)
/s/R. E. Turner
_________________________________
(R. E. Turner)
/s/Francis T. Vincent, Jr.
_________________________________
(Francis T. Vincent, Jr.)
