Exhibit 10.1
Warner Music Group
Corp.
2005 Omnibus Award
Plan
(Amended and Restated Effective
February 26, 2008)
The purpose of the Plan is to
provide a means through which the Company and its Affiliates may
attract able persons to enter and remain in the employ of the
Company and its Affiliates and to provide a means whereby
employees, directors and consultants of the Company and its
Affiliates can acquire and maintain Common Stock ownership, or be
paid incentive compensation measured by reference to the value of
Common Stock, thereby strengthening their commitment to the welfare
of the Company and its Affiliates and promoting an identity of
interest between stockholders and these persons.
So that the appropriate incentive
can be provided, the Plan provides for granting Incentive Stock
Options, Nonqualified Stock Options, Stock Appreciation Rights,
Restricted Stock, Restricted Stock Units, Phantom Stock Awards,
Stock Bonuses and Performance Compensation Awards, or any
combination of the foregoing.
The following definitions shall be
applicable throughout the Plan.
(a) “Affiliate” means
any entity that directly or indirectly is controlled by, controls
or is under common control with the Company.
(b) “Award” means,
individually or collectively, any Incentive Stock Option,
Nonqualified Stock Option, Stock Appreciation Right, Restricted
Stock, Restricted Stock Unit, Phantom Stock Award, Stock Bonus or
Performance Compensation Award granted under the Plan.
(c) “Board” means the
Board of Directors of the Company.
(d) “Cause” means the
Company or an Affiliate having “cause” to terminate a
Participant’s employment or service, as defined in any
existing employment, consulting or any other agreement between the
Participant and the Company or an Affiliate or, in the absence of
such an employment, consulting or other agreement, upon
(i) the determination by the Committee that the Participant
has ceased to perform his duties to the Company, or an Affiliate
(other than as a result of his incapacity due to physical or mental
illness or injury), which failure amounts to an intentional and
extended neglect of his duties to such party, (ii) the
Committee’s determination that the Participant has engaged or
is about to engage in conduct materially injurious to the Company
or an Affiliate, (iii) the Participant having been convicted
of, or plead guilty or no contest to, a felony or any crime
involving as a material element fraud or dishonesty, (iv) the
failure of the Participant to follow the lawful instructions of the
Board or his
direct superiors or (v) in the
case of a Participant who is a non-employee director, the
Participant ceasing to be a member of the Board in connection with
the Participant engaging in any of the activities described in
clauses (i) through (iv) above.
(e) “Change in Control”
shall, unless in the case of a particular Award the applicable
Award agreement states otherwise or contains a different definition
of “Change in Control,” have the meaning set forth in
the Certificate of Incorporation of the Company.
(f) “Code” means the
Internal Revenue Code of 1986, as amended. Reference in the Plan to
any section of the Code shall be deemed to include any amendments
or successor provisions to such section and any regulations under
such section.
(g) “Committee” means a
committee of at least two people as the Board may appoint to
administer the Plan or, if no such committee has been appointed by
the Board, the Board. Unless the Board is acting as the Committee
or the Board specifically determines otherwise, each member of the
Committee shall, at the time he takes any action with respect to an
Award under the Plan, be an Eligible Director. However, the fact
that a Committee member shall fail to qualify as an Eligible
Director shall not invalidate any Award granted by the Committee
which Award is otherwise validly granted under the Plan.
(h) “Common Stock” means
the common stock, par value $0.01 per share, of the Company and any
stock into which such common stock may be converted or into which
it may be exchanged.
(i) “Company” means
Warner Music Group Corp. and any successor thereto.
(j) “Date of Grant”
means the date on which the granting of an Award is authorized, or
such other date as may be specified in such authorization or, if
there is no such date, the date indicated on the applicable Award
agreement.
(k) “Disability” means,
unless in the case of a particular Award the applicable Award
agreement states otherwise, the Company or an Affiliate having
cause to terminate a Participant’s employment or service on
account of “disability,” as defined in any existing
employment, consulting or other similar agreement between the
Participant and the Company or an Affiliate or, in the absence of
such an employment, consulting or other agreement, a condition
entitling the Participant to receive benefits under a long-term
disability plan of the Company or an Affiliate or, in the absence
of such a plan, the complete and permanent inability by reason of
illness or accident to perform the duties of the occupation at
which a Participant was employed or served when such disability
commenced, as determined by the Committee based upon medical
evidence acceptable to it.
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(l) “Effective Date”
means the date upon which the Pricing Committee of the Board sets
the price at which the shares of Common Stock are to be sold to a
group of underwriters in the underwritten initial public offering
of Common Stock, immediately following the recapitalization of the
Common Stock in preparation for such initial public
offering.
(m) “Eligible Director”
means a person who is (i) a “non-employee
director” within the meaning of Rule 16b-3 under the
Exchange Act, or a person meeting any similar requirement under any
successor rule or regulation and (ii) an “outside
director” within the meaning of Section 162(m) of the
Code, and the Treasury Regulations promulgated thereunder;
provided , however , that clause (ii) shall
apply only with respect to grants of Awards with respect to which
the Company’s tax deduction could be limited by
Section 162(m) of the Code if such clause did not
apply.
(n) “Eligible Person”
means any (i) individual regularly employed by the Company or
Affiliate who satisfies all of the requirements of Section 6;
provided , however , that no such employee covered by
a collective bargaining agreement shall be an Eligible Person
unless and to the extent that such eligibility is set forth in such
collective bargaining agreement or in an agreement or instrument
relating thereto; (ii) director of the Company or an
Affiliate; or (iii) consultant or advisor to the Company or an
Affiliate who may be offered securities pursuant to
Form S-8.
(o) “Exchange Act” means
the Securities Exchange Act of 1934, as amended.
(p) “Fair Market Value”,
on a given date means (i) if the Stock is listed on a national
securities exchange, the closing sales price reported as having
occurred on the primary exchange with which the Stock is listed and
traded on such date, or, if there is no such sale on that date,
then on the last preceding date on which such a sale was reported;
(ii) if the Stock is not listed on any national securities
exchange but is quoted in the Nasdaq National Market (the
“Nasdaq”) on a last sale basis, the last sales price
reported on such date, or, if there is no such sale on that date,
then on the last preceding date on which a sale was reported; or
(iii) if the Stock is not listed on a national securities
exchange nor quoted in the Nasdaq on a last sale basis, the amount
determined by the Committee to be the fair market value based upon
a good faith attempt to value the Stock accurately and computed in
accordance with applicable regulations of the Internal Revenue
Service.
(q) “Good Reason” shall
have the meaning, if any, set forth in a Participant’s
employment agreement, if any, with the Company or an Affiliate, and
shall not apply in respect of any Participant who does not have
such an employment agreement.
(r) “Incentive Stock
Option” means an Option granted by the Committee to a
Participant under the Plan which is designated by the Committee as
an incentive stock option as described in Section 422 of the
Code and otherwise meets the requirements set forth
herein.
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(s) “Mature Shares”
means shares of Stock owned by a Participant which are not subject
to any pledge or other security interest and have such other
requirements as the Committee may determine are necessary in order
to avoid an accounting earnings charge on account of the use of
such shares to pay the Option Price or satisfy a withholding
obligation in respect of an Option.
(t) “Negative
Discretion” shall mean the discretion authorized by the Plan
to be applied by the Committee to eliminate or reduce the size of a
Performance Compensation Award in accordance with
Section 11(d)(iv) of the Plan; provided , that the
exercise of such discretion would not cause the Performance
Compensation Award to fail to qualify as “performance-based
compensation” under Section 162(m) of the
Code.
(u) “Nonqualified Stock
Option” means an Option granted by the Committee to a
Participant under the Plan which is not designated by the Committee
as an Incentive Stock Option.
(v) “Option” means an
Award granted under Section 7 of the Plan.
(w) “Option Period”
means the period described in Section 7(c) of the
Plan.
(x) “Option Price” means
the exercise price for an Option as described in Section 7(a)
of the Plan.
(y) “Participant” means
an Eligible Person who has been selected by the Committee to
participate in the Plan and to receive an Award pursuant to
Section 6 of the Plan.
(z) “Parent” means any
parent of the Company as defined in Section 424(e) of the
Code.
(aa) “Performance Compensation
Award” shall mean any Award designated by the Committee as a
Performance Compensation Award pursuant to Section 11 of the
Plan.
(bb) “Performance
Criteria” shall mean the criterion or criteria that the
Committee shall select for purposes of establishing the Performance
Goal(s) for a Performance Period with respect to any Performance
Compensation Award under the Plan. The Performance Criteria that
will be used to establish the Performance Goal(s) shall be based on
the attainment of specific levels of performance of the Company (or
Affiliate, division or operational unit of the Company) and shall
be limited to the following:
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(i)
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net earnings or
net income (before or after taxes);
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(ii)
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basic or
diluted earnings per share (before or after taxes) or earnings per
shares growth;
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(iii)
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net revenue or
net revenue growth;
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(iv)
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gross profit or
gross profit growth;
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(v)
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net operating
profit (before or after taxes) or net operating profit
growth;
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(vi)
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return measures
(including, but not limited to, return on assets, capital, invested
capital, equity, or sales);
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(vii)
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cash flow
(including, but not limited to, operating cash flow, free cash
flow, and cash flow return on capital);
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(viii)
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earnings before
or after taxes, interest, depreciation and/or amortization (EBITDA)
or EBITDA growth;
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(ix)
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operating
income before or after depreciation and/or amortization (OIBDA) or
OIBDA growth;
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(x)
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gross or
operating margins;
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(xi)
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productivity
ratios;
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(xii)
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share price
(including, but not limited to, growth measures and total
stockholder return);
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(xv)
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operating
efficiency;
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(xvi)
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objective
measures of customer satisfaction;
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(xvii)
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working capital
targets;
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(xviii)
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measures of
economic value added;
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(xix)
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inventory
control; and
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Any one or more of the Performance
Criterion may be used on an absolute or relative basis to measure
the performance of the Company and/or an Affiliate as a whole or
any business unit of the Company and/or an Affiliate or any
combination thereof, as the Committee may deem appropriate, or any
of the above Performance Criteria as
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compared to the performance of a
group of comparator companies, or published or special index that
the Committee, in its sole discretion, deems appropriate, or the
Company may select Performance Criterion (xi) above as
compared to various stock market indices. The Committee also has
the authority to provide for accelerated vesting of any Award based
on the achievement of Performance Goals pursuant to the Performance
Criteria specified in this paragraph. To the extent required under
Section 162(m) of the Code, the Committee shall, within the
first 90 days of a Performance Period (or, if longer or shorter,
within the maximum period allowed under Section 162(m) of the
Code), define in an objective fashion the manner of calculating the
Performance Criteria it selects to use for such Performance Period.
In the event that applicable tax and/or securities laws change to
permit Committee discretion to alter the governing Performance
Criteria without obtaining stockholder approval of such changes,
the Committee shall have sole discretion to make such changes
without obtaining stockholder approval.
(cc) “Performance
Formula” shall mean, for a Performance Period, the one or
more objective formulas applied against the relevant Performance
Goal to determine, with regard to the Performance Compensation
Award of a particular Participant, whether all, some portion but
less than all, or none of the Performance Compensation Award has
been earned for the Performance Period.
(dd) “Performance Goals”
shall mean, for a Performance Period, the one or more goals
established by the Committee for the Performance Period based upon
the Performance Criteria. The Committee is authorized at any time
during the first 90 days of a Performance Period (or, if longer or
shorter, within the maximum period allowed under
Section 162(m) of the Code), or at any time thereafter to the
extent allowed under Section 162(m) of the Code, in its sole
and absolute discretion, to adjust or modify the calculation of a
Performance Goal for such Performance Period in order to prevent
the dilution or enlargement of the rights of Participants based on
the following events:
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(ii)
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litigation or
claim judgments or settlements;
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(iii)
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the effect of
changes in tax laws, accounting principles, or other laws or
regulatory rules affecting reported results;
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(iv)
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any
reorganization and restructuring programs;
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(v)
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extraordinary
nonrecurring items as described in Accounting Principles Board
Opinion No. 30 (or any successor pronouncement thereto) and/or
in management’s discussion and analysis of financial
condition and results of operations appearing in the
Company’s annual report to stockholders for the applicable
year;
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(vi)
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acquisitions or
divestitures;
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(vii)
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any other
specific unusual or nonrecurring events, or objectively
determinable category thereof;
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(viii)
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foreign
exchange gains and losses; and
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(ix)
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a change in the
Company’s fiscal year.
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(ee) “Performance
Period” shall mean the one or more periods of time not less
than one (1) year in duration, as the Committee may select,
over which the attainment of one or more Performance Goals will be
measured for the purpose of determining a Participant’s right
to, and the payment of, a Performance Compensation
Award.
(ff) “Phantom Stock
Award” shall mean a cash award whose value is determined
based on the change in the value of the Company Common Stock from
the Effective Date.
(gg) “Plan” means this
Warner Music Group Corp. 2005 Omnibus Award Plan.
(hh) “Restricted Period”
means, with respect to any Award of Restricted Stock or any
Restricted Stock Unit, the period of time determined by the
Committee during which such Award is subject to the restrictions
set forth in Section 9 or, as applicable, the period of time
within which performance is measured for purposes of determining
whether an Award has been earned.
(ii) “Restricted Stock
Unit” means a hypothetical investment equivalent to one share
of Stock granted in connection with an Award made under
Section 9.
(jj) “Restricted Stock”
means shares of Stock issued or transferred to a Participant
subject to forfeiture and the other restrictions set forth in
Section 9 of the Plan.
(kk) “Securities Act”
means the Securities Act of 1933, as amended.
(ll) “Stock” means the
Common Stock or such other authorized shares of stock of the
Company as the Committee may from time to time authorize for use
under the Plan.
(mm) “Stock Appreciation
Right” or “SAR” means an Award granted under
Section 8 of the Plan.
(nn) “Stock Bonus” means
an Award granted under Section 10 of the Plan.
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(oo) “Stock Option
Agreement” means any agreement between the Company and a
Participant who has been granted an Option pursuant to
Section 7 which defines the rights and obligations of the
parties thereto.
(pp) “Strike Price”
means, (i) in the case of a SAR granted in tandem with an
Option, the Option Price of the related Option, or (ii) in the
case of a SAR granted independent of an Option, the Fair Market
Value on the Date of Grant.
(qq) “Subsidiary” means
any subsidiary of the Company as defined in Section 424(f) of
the Code.
(rr) “Substitution
Award” means an Award that is intended to replace any
existing incentive award held by an employee or director of, or
consultant or advisor to, an entity acquired by the Company or an
Affiliate of the Company. The terms and conditions of any
Substitution Award shall be set forth in an Award agreement and
shall, except as may be inconsistent with any provision of the
Plan, to the extent practicable provide the recipient with benefits
(including economic value) substantially similar to those provided
to the recipient under the existing award which such Substitution
Award is intended to replace.
(ss) “Vested Unit” shall
have the meaning ascribed thereto in Section 9(d) of the
Plan.
(tt) “Voting Stock” of a
person means all classes of capital stock or other interests,
including partnership interests, of such person then outstanding
and normally entitled, without regard to the occurrence of any
contingency, to vote in the election of directors, managers, or
trustee thereof.
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3.
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Effective
Date, Duration and Shareholder Approval
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The Plan is effective as of the
Effective Date. No Option shall be treated as an Incentive Stock
Option unless the Plan has been approved by the shareholders of the
Company in a manner intended to comply with the shareholder
approval requirements of Section 422(b)(i) of the Code;
provided , that any Option intended to be an Incentive Stock
Option shall not fail to be effective solely on account of a
failure to obtain such approval, but rather such Option shall be
treated as a Nonqualified Stock Option unless and until such
approval is obtained.
The expiration date of the Plan, on
and after which no Awards may be granted hereunder, shall be the
tenth anniversary of the Effective Date; provided ,
however , that such expiration shall not affect Awards then
outstanding, and the terms and conditions of the Plan shall
continue to apply to such Awards.
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(a) The Committee shall administer
the Plan. The majority of the members of the Committee shall
constitute a quorum. The acts of a majority of the members present
at any meeting at which a quorum is present or acts approved in
writing by a majority of the Committee shall be deemed the acts of
the Committee.
(b) Subject to the provisions of the
Plan and applicable law, the Committee shall have the power, and in
addition to other express powers and authorizations conferred on
the Committee by the Plan, to: (i) designate Participants;
(ii) determine the type or types of Awards to be granted to a
Participant; (iii) determine the number of shares of Stock to
be covered by, or with respect to which payments, rights, or other
matters are to be calculated in connection with, Awards;
(iv) determine the terms and conditions of any Award;
(v) determine whether, to what extent, and under what
circumstances Awards may be settled or exercised in cash, shares of
Stock, other securities, other Awards or other property, or
canceled, forfeited, or suspended and the method or methods by
which Awards may be settled, exercised, canceled, forfeited, or
suspended; (vi) determine whether, to what extent, and under
what circumstances the delivery of cash, Stock, other securities,
other Options, other property and other amounts payable with
respect to an Award shall be deferred either automatically or at
the election of the holder thereof or of the Committee;
(vii) interpret, administer, reconcile any inconsistency,
correct any defect and/or supply any omission in the Plan and any
instrument or agreement relating to, or Award granted under, the
Plan; (viii) establish, amend, suspend, or waive such rules
and regulations; (ix) appoint such agents as it shall deem
appropriate for the proper administration of the Plan; and
(x) make any other determination and take any other action
that the Committee deems necessary or desirable for the
administration of the Plan.
(c) Notwithstanding the foregoing,
the committee may delegate to any officer of the Company or any
Affiliate the authority to act on behalf of the Committee with
respect to any matter, right, obligation, or election which is the
responsibility of or which is allocated to the Committee herein,
and which may be so delegated as a matter of law, except for grants
of Awards to (i) “covered employees” under Code
Section 162(m) (other than Awards exempt from the application
of Code Section 162(m)) and (ii) persons subject to
Section 16 of the 1934 Act.
(d) Unless otherwise expressly
provided in the Plan, all designations, determinations,
interpretations, and other decisions under or with respect to the
Plan or any Award or any documents evidencing Awards granted
pursuant to the Plan shall be within the sole discretion of the
Committee, may be made at any time and shall be final, conclusive
and binding upon all parties, including, without limitation, the
Company, any Affiliate, any Participant, any holder or beneficiary
of any Award, and any shareholder.
(e) No member of the Committee shall
be liable for any action or determination made in good faith with
respect to the Plan or any Award hereunder.
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5.
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Grant of
Awards; Shares Subject to the Plan
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The Committee may, from time to
time, grant Awards of Options, Stock Appreciation Rights,
Restricted Stock, Restricted Stock Units, Phantom Stock Awards,
Stock Bonuses and/or Performance Compensation Awards to one or more
Eligible Persons; provided , however ,
that:
(a) Subject to Section 13, the
aggregate number of shares of Stock in respect of which Awards may
be granted under the Plan is 19,916,133 shares;
(b) Shares of Stock shall be deemed
to have been used in settlement of Awards whether or not they are
actually delivered or the Fair Market Value equivalent of such
shares is paid in cash; provided , however , that
shares of Stock delivered (either directly or by means of
attestation) in full or partial payment of the Option Price in
accordance with Section 7(b) shall be deducted from the number
of shares of Stock delivered to the Participant pursuant to such
Option for purposes of determining the number of shares of Stock
acquired pursuant to the Plan. In accordance with (and without
limitation upon) the preceding sentence, if and to the extent an
Award under the Plan expires, terminates or is canceled for any
reason whatsoever without the Participant having received any
benefit therefrom, the shares covered by such Award shall again
become available for future Awards under the Plan. For purposes of
the foregoing sentence, a Participant shall not be deemed to have
received any “benefit” (i) in the case of
forfeited Restricted Stock Awards by reason of having enjoyed
voting rights and dividend rights prior to the date of forfeiture
or (ii) in the case of an Award canceled by reason of a new
Award being granted in substitution therefor;
(c) Stock delivered by the Company
in settlement of Awards may be authorized and unissued Stock, Stock
held in the treasury of the Company, Stock purchased on the open
market or by private purchase, or a combination of the foregoing;
and
(d) Subject to Section 13, no
person may be granted Options or SARs under the Plan during any
calendar year with respect to more than 6,000,000 shares of
Stock.
Participation shall be limited to
Eligible Persons who have entered into an Award agreement or who
have received written notification from the Committee, or from a
person designated by the Committee, that they have been selected to
participate in the Plan.
The Committee is authorized to grant
one or more Incentive Stock Options or Nonqualified Stock Options
to any Eligible Person; provided , however , that no
Incentive Stock Option shall be granted to any Eligible Person who
is not an employee of the Company or a Parent or Subsidiary. Each
Option so granted shall be subject to the conditions set forth in
this Section 7, or to such other conditions as may be
reflected in the applicable Stock Option Agreement.
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(a) Option Price. The
exercise price (“Option Price”) per share of Stock for
each Option which is not a Substitution Award shall be set by the
Committee at the time of grant but shall not be less than the Fair
Market Value of a share of Stock on the Date of Grant.
(b) Manner of Exercise and Form
of Payment. No shares of Stock shall be delivered pursuant to
any exercise of an Option until payment in full of the Option Price
therefor is received by the Company. Options which have become
exercisable may be exercised by delivery of written notice of
exercise to the Committee accompanied by payment of the Option
Price. The Option Price shall be payable (i) in cash, check,
cash equivalent and/or shares of Stock valued at the Fair Market
Value at the time the Option is exercised (including by means of
attestation of ownership of a sufficient number of shares of Stock
in lieu of actual delivery of such shares to the Company);
provided , that such shares of Stock are Mature Shares;
(ii) in the discretion of the Committee, either (A) in
other property having a fair market value on the date of exercise
equal to the Option Price or (B) by delivering to the
Committee a copy of irrevocable instructions to a stockbroker to
deliver promptly to the Company an amount sufficient to pay the
Option Price; or (iii) by such other method as the Committee
may allow. Notwithstanding the foregoing, in no event shall a
Participant be permitted to exercise an Option in a manner which
the Committee determines would violate the Sarbanes-Oxley Act of
2002, or any other applicable law or the applicable rules and
regulations of the Securities and Exchange Commission or the
applicable rules and regulations of any securities exchange or
inter dealer quotation system on which the securities of the
Company or any Affiliates are listed or traded.
(c) Vesting, Option Period and
Expiration. Options shall vest and become exercisable in such
manner and on such date or dates determined by the Committee and
shall expire after such period, not to exceed ten years, as may be
determined by the Committee (the “Option Period”);
provided , however , that notwithstanding any vesting
dates set by the Committee, the Committee may, in its sole
discretion, accelerate the exercisability of any Option, which
acceleration shall not affect the terms and conditions of such
Option other than with respect to exercisability. If an Option is
exercisable in installments, such installments or portions thereof
which become exercisable shall remain exercisable until the Option
expires.
(d) Stock Option Agreement
– Other Terms and Conditions. Each Option granted under
the Plan shall be evidenced by a Stock Option Agreement. Except as
specifically provided otherwise in such Stock Option Agreement,
each Option granted under the Plan shall be subject to the
following terms and conditions:
(i) Each Option or portion thereof
that is exercisable shall be exercisable for the full amount or for
any part thereof.
(ii) Each share of Stock purchased
through the exercise of an Option shall be paid for in full at the
time of the exercise. Each Option shall cease to be exercisable, as
to any share of Stock, when the Participant purchases the share or
exercises a related SAR or when the Option expires.
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(iii) Subject to Section 12(k),
Options shall not be transferable by the Participant except by will
or the laws of descent and distribution and shall be exercisable
during the Participant’s lifetime only by him.
(iv) Each Option shall vest and
become exercisable by the Participant in accordance with the
vesting schedule established by the Committee and set forth in the
Stock Option Agreement.
(v) At the time of any exercise of
an Option, the Committee may, in its sole discretion, require a
Participant to deliver to the Committee a written representation
that the shares of Stock to be acquired upon such exercise are to
be acquired for investment and not for resale or with a view to the
distribution thereof and any other representation deemed necessary
by the Committee to ensure compliance with all applicable federal
and state securities laws. Upon such a request by the Committee,
delivery of such representation prior to the delivery of any shares
issued upon exercise of an Option shall be a condition precedent to
the right of the Participant or such other person to purchase any
shares. In the event certificates for Stock are delivered under the
Plan with respect to which such investment representation has been
obtained, the Committee may cause a legend or legends to be placed
on such certificates to make appropriate reference to such
representation and to restrict transfer in the absence of
compliance with applicable federal or state securities
laws.
(vi) Each Participant awarded an
Incentive Stock Option under the Plan shall notify the Company in
writing immediately after the date he or she makes a disqualifying
disposition of any Stock acquired pursuant to the exercise of such
Incentive Stock Option. A disqualifying disposition is any
disposition (including any sale) of such Stock before the later of
(A)&nb
