COMPENSATION AGREEMENT
AGREEMENT made as of the 16th day of June, 1998, by and
between COMCAST CORPORATION, a Pennsylvania corporation (the "Company," as
further defined in Section 12), and XXXXX X. XXXXXXX (the "Executive," as
further defined in Section 1).
R E C I T A L S
WHEREAS, the Executive has been employed by the Company for
over 20 years and is currently its President and a member of its Board of
Directors and Executive Committee; and
WHEREAS, during the Executive's tenure as President of the
Company, the Company has enjoyed outstanding success, due in large part to
Executive's leadership and to transactions initiated by him; and
WHEREAS, the Company's Board of Directors (the "Board"), as
well as the Board's Compensation Committee (the "Compensation Committee") and
its Subcommittee on Performance-Based Compensation (the "Subcommittee"),
recognize that the Executive's contribution to the growth and success of the
Company is substantial and that without his continued leadership the Company
would not have achieved and maintained its current preeminent status in the
cable television industry nor would the Company have achieved its performance
levels or successfully consummated the many strategic transactions that have
closed during the past five years; and
WHEREAS, the Board desires to assure the Company of the
Executive's continued employment in an executive capacity and to compensate him
therefor; and
WHEREAS, the Board has established the Subcommittee as a
subcommittee of its Compensation Committee comprised of independent outside
directors and which has the
responsibility for establishing the criteria for the payment of
performance-based compensation to the Executive and the Company's other senior
executive officers; and
WHEREAS, the Subcommittee has engaged in discussions with
Executive over a period of more than one year regarding formalizing the terms of
Executive's continued employment, and has sought advice from two independent
compensation consultants regarding the principal terms of such employment,
including Executive's salary, bonus, and stock-based compensation; and
WHEREAS, on June 21, 1999, the Company's shareholders approved
amendments to the Company's 1996 Stock Option Plan and 1996 Executive Cash Bonus
Plan that make such plans consistent with the terms set forth herein; and
WHEREAS, the Executive and the Company entered into a
Noncompetition Agreement as of August 1, 1996, and a Term Life Insurance Premium
and Tax Bonus Agreement as of September 23, 1998; and
WHEREAS, the Executive is currently a participant in the
Company's 1992 Executive Split-Dollar Insurance Plan and its 1994 Executive
Split-Dollar Insurance Plan (together, the "Split-Dollar Insurance Plans"), each
of which provides a death benefit to the Executive's family following the death
of the last survivor of the Executive and his spouse and a repayment of all
loans advanced by the Company on behalf of the Executive and his spouse for the
purpose of assisting the Executive to maintain in force the split-dollar
insurance policies issued thereunder; and
WHEREAS, the Executive is willing to commit himself to serve
the Company on the terms herein provided;
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NOW THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein contained, the parties
hereto agree as follows:
1. Employment. The Company hereby agrees to continue to
employ the Executive and the Executive hereby agrees to continue to serve the
Company, on the terms and conditions set forth herein, for a term commencing on
the date hereof and expiring on June 30, 2003 (unless sooner terminated as
hereinafter set forth).
2. Position and Duties. The Executive shall serve as the
President of the Company, and, in such position, he shall have such powers and
duties as may from time to time be prescribed by the Board in accordance with
the Company's By-Laws. Executive shall devote substantially all of his working
time and effort to the business and affairs of the Company. It is recognized
that the Executive has outside interests, including, but not limited to, serving
as a director on the boards of other corporations and community and charitable
organizations, and that the Executive may devote a reasonable amount of time to
such outside interests. Moreover, the provisions of this Section 2 shall not
prevent the Executive from investing his assets in such form and manner as he
chooses; provided, however, that the Executive shall not have any personal
interest, direct or indirect (other than through the Company or its
subsidiaries), financial or otherwise, in any supplier to, buyer from, or
competitor of the Company unless such interest has been approved by the
Compensation Committee or Subcommittee or such interest is, or arises solely
from ownership of, less than two percent (2%) of the outstanding capital stock
of such supplier, buyer or competitor and such capital stock is available to the
general public through trading on any national, regional or over-the-counter
securities market. In connection with his employment by the
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Company the Executive shall be based at the Company's principal executive
offices in the Delaware Valley.
3. Compensation and Related Matters.
(a) Base Salary. For each full year included in the term
of this Agreement the Company shall pay the Executive a base salary ("Base
Salary") for all services to be rendered by the Executive hereunder of One
Million Dollars ($1,000,000) per annum (less appropriate deductions), payable in
installments at such times as the Company customarily pays its other senior
executive officers (but in any event no less often than monthly). Effective as
of each January 1 (beginning in 2000) or such other date as may be determined by
the Subcommittee, the Subcommittee shall adjust the Executive's Base Salary to
reflect the Executive's contribution to the growth and success of the Company.
Once established at an increased annual rate, the Executive's Base Salary
hereunder shall not thereafter be reduced unless such reduction is pursuant to
an overall plan to reduce the salaries of all senior executive officers of the
Company.
(b) Performance-Based Compensation under Cash Bonus Plan.
Effective January 1, 1999, Executive shall be entitled to an annual
performance-based cash bonus ("Cash Bonus") of up to 150% of the Base Salary for
any year during the term hereof, determined in accordance with, and upon
satisfaction of, the performance based standards contained in the Cash Bonus
Plan; provided, that if the conditions for full payment of a Cash Bonus under
the Cash Bonus Plan are met in any year, the Compensation Subcommittee shall not
have discretion to reduce Employee's Cash Bonus for such year below 100% of his
Base Salary for such year.
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(c) Options. Executive shall receive grants of options to
purchase no fewer than 11,000,000 shares of the Company's Class A Special Common
Stock (such number of shares reflecting the stock split in the form of a 100%
stock dividend effected by the Company May 4, 1999 (the "Stock Split")) pursuant
to the terms of the Company's 1996 Stock Option Plan, as such plan may be
amended from time to time, or any equivalent stock option plan, including,
without limitation, an option price equal to fair market value of the underlying
stock on the date of grant (except for "incentive stock options," which may have
a higher exercise price), and a duration of at least ten years (except for
"incentive stock options" which may have a duration of five years). Such options
shall be or have been granted as follows: 3,000,000 shares on June 16, 1998 (an
original grant of options to purchase 1,500,000 shares, adjusted to 3,000,000
shares to reflect the Stock Split), and 1,000,000 shares on each of the second
business days of each fiscal quarter in 1999 and 2000 (i.e., for grants prior to
May 4, 1999, 500,000 shares adjusted to 1,000,000 shares to reflect the Stock
Split), or such earlier date as the Subcommittee may determine in its sole
discretion. Such options shall be "incentive stock options" under the Internal
Revenue Code to the maximum extent permitted by law. In the event of stock
dividends, stock splits, reverse stock splits, recapitalizations, or similar
events applicable to the Class A Special Common Stock that occur subsequent to
the date hereof (other than the Stock Split, which is taken into account
herein), the number of options to be granted hereunder that have not been
granted prior to the date of such event shall be adjusted to reflect the effect
of such event.
(d) Expenses. During the term of this Agreement, the
Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by him (in accordance
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with the policies and procedures established from time to time by the Board for
its senior executive officers) in performing services hereunder, provided that
the Executive properly accounts therefor in accordance with Company policy.
(e) Other Benefits. Except as otherwise provided herein,
the Executive shall continue to be eligible to participate in all employee
benefit plans and arrangements in effect on the date of this Agreement and shall
continue to obtain benefits thereunder, including, without limitation, each
bonus plan, savings and profit sharing plan, supplemental pension and retirement
plan, stock ownership plan, stock purchase plan, stock option plan, life
insurance plan, medical insurance plan, disability plan, dental plan and
health-and-accident plan. Except as otherwise provided herein or as required by
law, the Company shall not make any changes in any such employee benefit plans
or arrangements which would adversely affect the Executive's rights or benefits
thereunder, unless such change occurs pursuant to a program applicable to all
executives of the Company and does not result in a proportionately greater
reduction in the rights of or benefits to the Executive as compared with any
other executive of the Company. The Executive shall be entitled to participate
in or receive benefits under any employee benefit plan or arrangement made
available by the Company in the future to its executives and key management
employees, subject to and on a basis consistent with the terms, conditions and
overall administration of such plan or arrangement. No amount paid to the
Executive under any plan or arrangement presently in effect or made available in
the future shall be deemed to be in lieu of the Base Salary or Bonus payable to
the Executive pursuant to paragraph (a) of this Section.
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(f) Vacations. The Executive shall be entitled to not
fewer than the same number of paid vacation days in each calendar year as he is
currently entitled. The Executive shall also be entitled to all paid holidays
given by the Company to its senior executive officers.
(g) Perquisites. So long as he serves as President, the
Executive shall be entitled to continue to receive not less than the perquisites
and fringe benefits appertaining to the office of the President in accordance
with the Company's present practice.
(h) Deferred Compensation. So long as the Company's 1996
Deferred Compensation Plan, or any other deferred compensation plan in which
senior executives of the Company are eligible to participate, is in effect, if
the Executive and the Company so agree in writing prior to December 31 of any
calendar year (or such earlier date as may be required by the Company's 1996
Deferred Compensation Plan or any other applicable deferred compensation plan),
and to the extent so agreed, the payment of all or any portion of the
compensation payable to the Executive in the next following calendar year
(including, without limitation, any compensation payable in such year by reason
of having been deferred from a prior year pursuant to an election made prior to
June 30 of the year prior to the year of distribution in accordance with Section
3.6.2 of the 1996 Deferred Compensation Plan) shall be deferred to a subsequent
calendar year selected by the Executive pursuant to the terms of the 1996
Deferred Compensation Plan or such other deferred compensation plan. Once a
deferral has been agreed to pursuant to this Section 3(h), the deferred amount
shall be subject to the same terms and conditions as apply to deferrals under
the Company's 1996 Deferred Compensation Plan or such other deferred
compensation plan then applicable, including, without limitation, the crediting
of interest. Nothing in this Section 3(h) shall
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require the Company to maintain the 1996 Deferred Compensation Plan in effect,
to maintain the current terms of such plan, or to adopt any other deferred
compensation plan.
(i) Life Insurance Agreement. The compensation provided
herein is in addition to, and not in limitation of, the compensation provided by
the Term Life Insurance Premium and Tax Bonus Agreement dated as of September
23, 1998 (the "Life Insurance Agreement"), which agreement continues in effect.
(j) Funding of Trust. Prior to the occurrence of a "Change
of Control" (as hereinafter defined), the Company shall establish a grantor
trust (the "Trust"), the terms of which shall be consistent with the
requirements applicable under the Code in order to avoid the constructive
receipt of the assets held in the Trust by the Executive. The trust document for
the Trust shall be in a form that is satisfactory to both the Company and the
Executive, and may, but need not, be in substantially the same form as the model
trust agreement published by the IRS in Revenue Procedure 92-64. The trustee of
the Trust shall be such person or institution acceptable both to the Company and
the Executive. The Company shall contribute such amounts in cash or such assets
as it deems appropriate for the purpose of funding the compensation and/or death
benefits payable under the terms of this Agreement and such other compensation
or plans or arrangements that may be in effect. Upon the occurrence of a Change
of Control, the Trust, if not already irrevocable, shall become irrevocable. The
Company shall be required immediately prior to a Change of Control (or in the
event the Company does not receive notice of a proposed Change of Control prior
to such event), immediately upon a Change of Control, to contribute to the Trust
(i) an amount equal to the minimum base compensation and Bonus Payment payable
under this Agreement for the then-
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remaining term of this Agreement (assuming that all conditions to payment of a
full Bonus under the Cash Bonus Plan were met, and disregarding any possible
decrease in Base Salary), and (ii) the present value of all deferred
compensation benefits payable to the Executive under the terms of any
nonqualified deferred compensation arrangement in which the Executive is a
participant, including, but not limited to, the Company's 1996 Deferred
Compensation Plan and the Company's Supplemental Executive Retirement Plan.
In addition, the Company shall have the further obligation
following a Change of Control to make such additional contributions to the
Trust, from time to time (but determined no less than annually), as may become
necessary to fully fund the benefits described above, determined in the same
manner as the initial funding obligation is determined. The assets contributed
to the Trust shall, except to the extent otherwise provided in the trust
agreement in the case of the bankruptcy or insolvency of the Company, be used
exclusively for the purpose of provide to the Executive the benefits described
above until all such benefits have been fully paid, at which time the Trust may
be terminated and any remaining assets revert back to the Company.
Notwithstanding the foregoing, to the extent benefits are paid by the Company
rather than out of assets held in the Trust, the trustee may reimburse the
Company out of the Trust such amounts as have been paid as benefits to the
Executive by the Company, but only to the extent that such reimbursement does
not cause the Trust to be less than fully funded, determined in the same manner
as the initial funding obligation is determined.
For purposes of this Agreement, a "Change of Control"
shall be deemed to have occurred on the date that Executive and members of his
immediate family (or trusts for their benefit)
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first cease to beneficially own at least 50% of the voting power of the Company.
Present value shall be calculated based on the then current yields of U.S.
Treasury Bonds maturing on the respective dates on which the payments being
valued become due.
4. Termination. The Executive's employment hereunder may be
terminated without any breach of this Agreement only under the following
circumstances:
(a) Death. The Executive's employment hereunder shall
terminate upon his death.
(b) Disability. If, as a result of the Executive's
incapacity due to physical or mental illness, the Executive shall have been
absent from his duties hereunder for 180 consecutive calendar days, and within
thirty (30) days after written notice of termination is given (which may occur
before or after the end of such 180 day period), shall not have returned to the
performance of his duties hereunder on the basis provided for in Sections 1 and
2 hereof, the Company may terminate the Executive's employment hereunder.
(c) Cause. The Company may terminate the Executive's
employment hereunder for Cause. For purposes of this Agreement, the Company
shall have "Cause" to terminate the Executive's employment hereunder upon (A)
the willful and continued failure by the Executive either to substantially
perform his duties hereunder or to comply with the provisions of the Company's
Code of Ethics and Business Conduct (other than a failure following a Change of
Control, as defined in Section 3(j), or a failure resulting from the Executive's
incapacity due to physical or mental illness) for a period of sixty (60) days
after demand for
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substantial performance or compliance is delivered by the Company specifically
identifying the manner in which the Company believes the Executive has not
substantially performed his duties or has not complied; or (B) the willful
engaging by the Executive in misconduct which is materially injurious to the
Company, monetarily or otherwise, or (C) the willful breach by the Executive
either during or after the term of this Agreement of any material provision of
this Agreement, including, but not limited to, Sections 6, 7 and 8 hereof. For
purposes of this paragraph, no act, or failure to act, on the Executive's part
shall be considered "willful" unless done, or omitted to be done, by him not in
good faith and without reasonable belief that his action or omission was in the
best interest of the Company. Notwithstanding the foregoing, the Executive shall
not be deemed to have been terminated for Cause unless and until there shall
have been delivered to the Executive a copy of a resolution, duly adopted by the
affirmative vote of not less than two-thirds of the entire membership of the
Board (without counting Executive or any parent or spouse of Executive) at a
meeting of the Board called and held for such purpose (after reasonable notice
to the Executive and an opportunity for him, together with his counsel, to be
heard before the Board), finding that in the good faith opinion of the Board the
Executive was guilty of conduct set forth above in clause (A), (B), or (C) of
the preceding sentence, and specifying the particulars thereof in detail.
(d) Notice of Termination. Any termination of the
Executive's employment by the Company shall be communicated by written Notice of
Termination to the Executive. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in
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reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated.
(e) Date of Termination. "Date of Termination" shall mean
(i) if the Executive's employment is terminated by his death, the date of his
death, (ii) if the Executive's employment is terminated pursuant to paragraph
(b), above, thirty (30) days after Notice of Termination is given (provided that
the Executive shall not have returned to the performance of his duties on the
basis provided for in Section 2 hereof during such thirty (30) day period) or
(iii) if the Executive's employment is terminated pursuant to paragraph (c)
above, the date specified in the Notice of Termination; provided that if within
thirty (30) days after a Notice of Termination is given the party receiving such
Notice of Termination notifies the other party that a dispute exists concerning
the termination, the Date of Termination shall be the date on which the dispute
is finally determined, either by mutual written agreement of the parties, by a
binding and final arbitration award or by a final judgment, order or decree of a
court of competent jurisdiction (the time of appeal therefrom having expired and
no appeal having been perfected).
5. Compensation Upon Termination or During Disability.
(a) If during the term of this Agreement the Executive's
employment shall be terminated by reason of his death, the Company shall
continue to pay to the Executive's spouse, if, but only if, the spouse survives
the Executive, the Executive's then Base Salary, on a monthly basis for a period
of five (5) years, provided that, notwithstanding the foregoing, the payments to
the Executive's surviving spouse shall only be made during her lifetime and
shall cease with the payment due immediately following her death. This death
benefit shall be in addition to (x) the Company
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hereby agreeing to continue, for the benefit of Executive's spouse during her
lifetime, all health plan benefits which are available from time to time to the
Company's highest paid employee and (y) any other payments the Executive's
spouse, beneficiaries or estate may be entitled to receive pursuant to this
Agreement (including, but not limited to, his Cash Bonus with respect to any
period then ended which would have accrued to the Executive on the basis of the
Company's performance but which has not yet been paid) and any pension or
employee benefit plan or life insurance policy presently maintained by the
Company.
(b) During any period that the Executive fails to perform
his duties hereunder as a result of incapacity due to physical or mental illness
prior to a termination pursuant to Section 4(b) hereof, the Executive shall
continue to receive his Base Salary until the Executive's employment is
terminated pursuant to Section 4(b) hereof or until the end of the term of this
Agreement, whichever occurs first (including, but not limited to, his Cash Bonus
with respect to any period prior to the date of termination which would have
accrued to the Executive on the basis of the Company's performance but which has
not yet been paid) and any pension or employee benefit plan or life insurance
policy presently or then maintained by the Company. In the event of termination
pursuant to Section 4(b) hereof, the Executive shall be paid for five (5) years,
on a monthly basis, an annual amount equal to his Base Salary at the rate in
effect at the time the Notice of Termination is given and the Company shall also
make the payments required pursuant to Section 7 hereof. In the event the
Executive dies before the end of the five (5) year payment period, the remaining
payments shall be made to the Executive's spouse, if, but only if, the spouse
survives the Executive, but, notwithstanding the foregoing, the payments to the
Executive's surviving spouse
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shall only be made during her lifetime and shall cease with the payment due
immediately following her death. The death benefit provided in this Section 5(b)
shall be in lieu of, and not in addition to, the benefits provided in the first
sentence of Section 5(a) hereof.
(c) If the Executive's employment shall be terminated for
Cause, the Company shall pay the Executive his Base Salary due through the Date
of Termination at the rate in effect at the time the Notice of Termination is
given and the Company shall have no further obligation to the Executive under
this Agreement, including, but not limited to, the obligation to make the
payments provided for in Section 3 hereof.
(d) If, in breach of this Agreement, the Company shall
terminate the Executive's employment other than pursuant to Section 4(b) or 4(c)
hereof (it being understood that a purported termination pursuant to Section
4(b) or 4(c) hereof which is disputed and finally determined not to have been
proper shall be a termination by the Company in breach of this Agreement), then:
(i) the Company shall pay the Executive his Base
Salary through the Date of Termination at the rate in effect at the time the
Notice of Termination is given as well as any other amount, including his Cash
Bonus with respect to any period then ended which would have accrued to the
Executive on the basis of the Company's performance but which has not yet been
paid to him;
(ii) subsequent to the Date of Termination, the
Company shall pay as severance pay to the Executive on a monthly basis (or, in
the case of his Cash Bonus, on the basis provided in the Cash Bonus Plan) for
the remaining term of this Agreement an annual amount equal
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to the Executive's Base Salary at the highest annual rate in effect at any time
during the portion of the term immediately preceding the Date of Termination and
his Cash Bonus; provided that should the Executive die before the end of the
remaining term of this Agreement, the Executive's surviving spouse shall be
entitled to the death benefit provided in Section 5(a) hereof, and all benefits
referred to in the last sentence of Section 5(a) hereof, as if the Executive's
employment had been terminated by reason of his death;
(iii) the Company shall maintain in full force and
effect for the continued benefit of the Executive (and for his surviving spouse,
as provided in paragraph (ii) hereinabove) for the remaining term of this
Agreement all (x) health plan benefits available from time to time to the
Company's highest paid employee and (y) employee benefit plans and programs in
which the Executive was entitled to participate immediately prior to the Date of
Termination, including, without limitation, the Split-Dollar Arrangements. At
the end of the period of coverage, the Executive shall have the option to have
assigned to him at no cost and with no apportionment of prepaid premiums any
assignable insurance policy owned by the Company which relates specifically to
him.
(e) The Executive shall not be required to mitigate the
amount of any payment provided for in this Section 5 by seeking other employment
or otherwise, nor shall the amount of any payment provided for in this Section 5
be reduced by any compensation earned by the Executive as a result of employment
by another employer after the Date of Termination, or otherwise.
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(f) Notwithstanding anything herein to the contrary, in
the event the Executive's employment is terminated on or after the occurrence of
a Change of Control, as defined in Section 3(j), such termination shall in no
circumstances be treated under the terms of this Agreement as a termination for
Cause, and the Executive shall be entitled to the same benefits as are payable
with respect to a termination of the Executive's employment subject to the
provisions of Section 5(d).
6. Confidential Information. The Company (as hereinafter
specially defined for purposes of Sections 6 through 9 hereof), pursuant to the
Executive's employment hereunder, provides him access to and confides in him
business methods and systems, techniques and methods of operation developed at
great expense by the Company ("Trade Secrets") and which the Executive
recognizes to be unique assets of the Company's business. The Executive shall
not, during or at any time after the term of this Agreement, directly or
indirectly, in any manner utilize or disclose to any person, firm, corporation,
association or other entity, except (i) where required by law, (ii) to
directors, consultants or employees of the Company in the ordinary course of his
duties or (iii) during his employment and in the ordinary course of his services
as President for such use and disclosure as he shall reasonably determine to be
in the best interest of the Company: (a) any such Trade Secrets, (b) any sales
prospects, customer lists, products, research or data of any kind, or (c) any
information relating to strategic plans, sales, costs, profits or the financial
condition of the Company or any of its customers or prospective customers, which
are not generally known to the public or recognized as standard practice in the
industry in which the Company shall be engaged. The Executive further covenants
and agrees that he will promptly deliver to the Company all tangible
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evidence of the knowledge and information described in (a), (b) and (c), above,
prior to or at the termination of the Executive's employment.
7. Prohibited Public Statements. The Executive shall not,
either during or at any time after the termination of his employment, make any
public statement (including a private statement reasonably likely to be repeated
publicly) reflecting adversely on the Company and its business prospects, except
for such statements which during the Executive's employment he may be required
to make in the ordinary course of his service as President.
8. Noncompetition, Noninterference and Nonsolicitation.
(a) Subject to the geographic limitation of Section 8(b)
hereof, the Executive during the term of this Agreement and for a period of two
(2) years following termination of employment in accordance with this Agreement
shall not, directly or indirectly, on his behalf or on behalf of any other
person, firm, corporation, association or other entity, as an employee or
otherwise, engage in, or in any way be concerned with or negotiate for, or
acquire or maintain any ownership interest in any business or activity which is
the same as or competitive with that conducted by the Company at the termination
of his employment, or which was engaged in or developed by the Company at any
time during the term of this Agreement for specific implementation in the
immediate future by the Company.
(b) The Executive acknowledges that the Company is engaged
in business throughout the United States and in various foreign countries and
that the Company intends to expand the geographic scope of its activities.
Accordingly and in view of the nature of his position and responsibilities, the
Executive agrees that the provisions of this Section shall be applicable to
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each state and each foreign country, possession or territory in which the
Company may be engaged in business during the term of this Agreement, or, with
respect to the Executive's obligations following termination of his employment,
at the termination of his employment or at any time within the 12-month period
following the effective date of his termination of employment.
(c) The Executive agrees that for a period of two (2)
years following termination of employment in accordance with this Agreement, the
Executive will not, directly or indirectly, for himself or on behalf of any
third party at any time in any manner, request or cause any of the Company's
customers to cancel or terminate any existing or continuing business
relationship with the Company; solicit, entice, persuade, induce, request or
otherwise cause any employee, officer or agent of the Company to refrain from
rendering services to the Company or to terminate his or her relationship,
contractual or otherwise, with the Company; induce or attempt to influence any
supplier to cease or refrain from doing business or to decline to do business
with the Company; divert or attempt to divert any supplier from the Company; or
induce or attempt to influence any supplier to decline to do business with any
businesses of the Company as such businesses are constituted immediately prior
to the termination of employment.
(d) The Executive agrees that for a period of two (2)
years following his termination of employment in accordance with this Agreement,
the Executive will not directly or indirectly, for himself or on behalf of any
third party, solicit for business, accept any business from or otherwise do, or
contract to do, business with any person or entity who, at the time of, or any
time during the twelve (12) months preceding such termination, was an active
customer or was actively
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solicited by the Company according to the books and records of the Company and
within the knowledge, actual or constructive of the Executive.
(e) Notwithstanding anything to the contrary in this
Section 8, the prohibitions and agreements contained in subsections (a), (c),
and (d) shall terminate immediately upon any termination of Executive's
employment hereunder following a Change of Control.
9. Equitable Remedies. The Executive acknowledges that his
compliance with the covenants in Sections 6, 7, and 8 of this Agreement is
necessary to protect the good will and other proprietary interests of the
Company and that, in the event of any violation by the Executive of the
provisions of Section 6, 7 or 8 of this Agreement, the Company will sustain
serious, irreparable and substantial harm to its business, the extent of which
will be difficult to determine and impossible to remedy by an action at law for
money damages. Accordingly, the Executive agrees that, in the event of such
violation or threatened violation by the Executive, the Company shall be
entitled to any injunction before trial from any court of competent jurisdiction
as a matter of course and upon the posting of not more than a nominal bond in
addition to all such other legal and equitable remedies as may be available to
the Company. The Executive further agrees that, in the event any of the
provisions of Sections 6, 7 and 8 of this Agreement are determined by a court of
competent jurisdiction to be contrary to any applicable statute, law or rule, or
for any reason to be unenforceable as written, such court may modify any of such
provisions so as to permit enforcement thereof as thus modified.
10. Successors; Related Companies; Binding Agreement.
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(a) The Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance satisfactory to the Executive, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the same
terms as he would be entitled to hereunder pursuant to Section 5(d) hereof,
except that for purposes of implementing the foregoing, the date on which any
such succession becomes effective shall be deemed the Date of Termination. As
used in this Agreement, "Company" shall mean the Company and any successor to
its business and/or assets as aforesaid which executes and delivers the
agreement provided for in this Section 10 or which otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law.
(b) For purposes of Sections 6, 7 and 8 hereof the term
"Company" shall mean Comcast Corporation ("Comcast") as well as (i) each of its
more than fifty percent (50%) owned subsidiaries and (ii) each other entity in
which Comcast directly or indirectly has a greater than ten percent (10%) equity
interest, the fair market value of which interest is in excess of $50,000,000.
In determining Comcast's equity interest for purposes of this Section 10(b), any
equity interest which Comcast has an option to purchase shall be considered as
owned by Comcast.
(c) This Agreement and all rights of the Executive
hereunder shall inure to the benefit of and shall be binding upon the
Executive's personal or legal representatives,
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executors, administrators, successors, heirs, distributees, devisees and
legatees. If the Executive should die while any amounts would still be payable
to him hereunder if he had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
the Executive's devisee, legatee, or other designee or, if there be no such
designee, to the Executive's estate.
11. Entire Agreement. This Agreement and the Life Insurance
Agreement constitute the full and complete understanding and agreement of the
Executive and the Company respecting the subject matter hereof, and supersede
all prior understandings and agreements, oral or written, express or implied.
This Agreement may not be modified or amended orally but only by an agreement in
writing, signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
12. Headings. The section headings of this Agreement are for
convenience of reference only and are not to be considered in the interpretation
of the terms and conditions of this Agreement.
13. Actions by Board. The Company is governed by its Board
and, accordingly, all references in this Agreement to the actions and discretion
of the Company are meant and deemed to refer to the actions and discretion of
the Board.
14. Notices. Any notice required or permitted to be given
under this Agreement shall be in writing and shall be deemed to have been given
when sent by certified mail, postage prepaid, addressed as follows:
If to the Company:
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35th Floor
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attn: Corporate Secretary
If to the Executive, at his last known personal residence.
Any party may change the persons and address to which notices
or other communications are to be sent by giving written notice of such change
to the other party in the manner provided herein for giving notice.
15. Waiver of Breach. No waiver by either party of any
condition or of the breach by the other of any term or covenant contained in
this Agreement, whether by conduct or otherwise, in any one or more instances
shall be deemed or construed as a further or continuing waiver of any such
condition or breach or a waiver of any other condition, or of the breach of any
other term or covenant set forth in this Agreement. Moreover, the failure of
either party to exercise any right hereunder shall not bar the later exercise
thereof.
16. Nonalienation. The Executive shall not pledge,
hypothecate, anticipate or in any way create a lien upon any amounts provided
under this Agreement. This Agreement and the benefits payable hereunder shall
not be assignable by either party without the prior written consent of the
other; provided, however, that nothing in this Section shall preclude the
Executive from designating a beneficiary to receive any benefit payable
hereunder upon his death, or the executors, administrators or other legal
representatives of the Executive or his estate from assigning any rights
hereunder to which they become entitled to the person or persons entitled
thereto.
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17. Governing Law. This Agreement is entered into and shall be
construed in accordance with the internal laws of the Commonwealth of
Pennsylvania.
18. Continuation of Covenants. The covenants and agreements of
the Executive set forth in Sections 6, 7 and 8 hereof shall survive any
termination of employment, shall continue thereafter, and shall not expire
unless and except as may be expressly set forth in Sections 6, 7 and 8 hereof.
19. Invalidity or Unenforceability. If any term or provision
of this Agreement is held to be invalid or unenforceable, for any reason, such
invalidity or enforceability shall not affect any other term or provision hereof
and this Agreement shall continue in full force and effect as if such invalid or
unenforceable term or provision (to the extent of the invalidity or
unenforceability) had not been contained herein.
20. Counterparts. This Agreement may be executed in on or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written.
COMCAST CORPORATION
By: /s/ Xxxxxxx Xxxx
Title:
/s/ Xxxxx X. Xxxxxxx
XXXXX X. XXXXXXX
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