Exhibit 10.22
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT is entered into as of the 1st day of May, 2002
between COMCAST CORPORATION, a Pennsylvania corporation (the "Company") and
XXXXXX X. XXXXXXX ("Employee").
BACKGROUND
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WHEREAS, Employee is currently employed by the Company as its Vice
Chairman; and
WHEREAS, the Company recognizes that Employee's contribution to the growth
and success of the Company has been substantial; and
WHEREAS, the Company desires to assure Employee's continued employment in
an executive and non-executive capacity; and
WHEREAS, Employee is willing to commit himself to serve the Company on the
terms herein provided.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. Term.
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1.1 The Company shall continue to retain Employee and Employee shall
continue to serve the Company as an employee, on the terms and conditions set
forth herein, for a term (the "Service Period") commencing on May 1, 2002 and
ending on the earlier of: (i) April 30, 2009; or (ii) the date Employee's
employment terminates for any reason. The period between May 1, 2002 and April
30, 2009, as it may be extended by the agreement of the parties, is referred to
as the "Seven Year Period."
1.2 Employee shall serve as an executive employee during the Service
Period from May 1, 2002 until the earlier of: (i) April 30, 2004; or (ii) the
effective date specified in Employee's written notice to the Company (if any),
given at any time prior to April 30, 2004, electing to end his status of an
executive employee and begin his status as a non-executive employee, provided
the effective date shall not be less than 30 days from the date of notice (the
"Executive Term"). The period of time during the Service Period from May 1, 2002
to April 30, 2004 is referred to as the "Base Period."
1.3 Employee shall serve as a non-executive employee from the first day
following the end of the Executive Term until the end of the Service Period (the
"Non-Executive Term").
2. Position and Duties; Office Space.
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2.1 Until the first to occur of: (i) the closing (if it occurs) (the
"Closing") of the Company's proposed transaction with AT&T Corp. relating to
AT&T Broadband; and (ii) the end of the Executive Term, Employee shall continue
to serve as Vice Chairman. If the Closing occurs, then for the balance of the
Executive Term Employee shall serve in such other executive officer position as
agreed to by the Company and Employee. In either such position, Employee shall
have such duties as are consistent with Employee's present duties as Vice
Chairman, but shall not have any specific duties which may be attendant to the
office of Vice Chairman unless so determined by the Company. During the
Non-Executive Term, Employee shall serve in a non-executive capacity without any
officer position.
2.2 During the Executive Term, Employee shall continue to devote
substantially all of his working time and effort to the business and affairs of
the
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Company. During the Non-Executive Term, Employee shall devote such time (which
the Company acknowledges is not intended to be full-time) as is required for the
performance of those duties which are reasonably requested by the Company and
which are commensurate with Employee's professional and executive experience.
Nothing contained herein shall preclude Employee from engaging in personal or
business activities which are consistent with Employee's obligations to the
Company hereunder, including the restrictions contained in Section 7, including
being an employee of another entity during the Non-Executive Term. Without
limiting the foregoing, the Company recognizes that Employee: (i) is Manager of
CIC Venture Management, LLC, which is the general partner of CIC Partners, L.P.,
which in turn is the general partner of Comcast Interactive Partners, L.P., an
investment partnership, and may become the manager of a similar entity with
respect to a similar investment partnership (together, the "CIC Funds"); and
(ii) serves and may serve as a director or trustee on the boards of other
corporations and organizations; and that, subject to the restrictions of Section
7.3, Employee may continue to devote considerable time to such activities.
2.3 During the Executive Term, an office and secretarial support will
be provided to Employee in the Company's corporate headquarters executive
offices floor. During the Non-Executive Term, an office and secretarial support
will be provided to Employee in the Company's corporate headquarters, outside
the executive offices floor.
3. Compensation.
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3.1 Base Salary. The Company shall pay base salary to Employee during
the Service Period as follows: From May 1, 2002 through December 31, 2002, the
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Company shall pay Employee a base salary at the per annum amount being paid to
Employee as of April 30, 2002 (i.e., $837,560). On each of January 1, 2003 and
January 1, 2004, the Company shall increase Employee's base salary per annum
amount as of the prior December 31 by the greater of: (i) five percent (5%);
(ii) the percentage increase for the preceding year in the Consumer Price Index
for all urban consumers published by the United States Department of Labor; and
(iii) the average percentage increase in the base salary of the five (5)
employees of the Company having the highest base salary (other than Employee)
for the preceding year. From May 1, 2004 through April 30, 2009, the Company
shall pay Employee a base salary at a per annum amount equal to six hundred
thousand dollars ($600,000).
3.2 Executive Cash Bonus Plan. Employee will be entitled to receive the
maximum amount of his cash bonus (less any required withholdings) under the
Company's Executive Cash Bonus Plan for 2002, 2003 and 2004 (pro-rated for the
portion of 2004 during the Service Period), at the same time as the other
participants therein, regardless of whether or not Employee remains employed on
any particular date. Employee will not be entitled to participate in the
Executive Cash Bonus Plan after 2004.
3.3 Expenses. During the Service Period, Employee shall be entitled to
receive prompt reimbursement for all reasonable expenses incurred by him (in
accordance with current practices) in performing services hereunder, including
attending conferences and conventions (limited to domestic locations following
the Executive Term), provided that Employee properly accounts therefor in
accordance with Company policy.
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3.4 Benefits.
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3.4.1 Except as otherwise specifically provided herein, during the
Service Period Employee shall continue to be eligible to participate in all
employee benefit plans and arrangements generally available to all employees and
those generally available to all senior executives (to the extent and on the
terms on which they are then in effect), excluding the Company's Restricted
Stock Plan, the Company's 1996 Cash Bonus Plan and any plan or arrangement
relating to the AT&T Broadband transaction, but including Employee's existing
supplemental executive long-term disability insurance (subject to imputed income
and tax gross-up bonus in connection therewith) and including directors and
officers liability insurance coverage and indemnification rights. Except as
otherwise specifically provided herein, following the Service Period Employee
shall be eligible to participate in the Company's post-retirement health and
welfare benefits plan for a number of years thereunder (the "Post-Retirement
Period") based upon service years with the Company including the years during
the Service Period (which benefits shall not be reduced on account of the health
and welfare benefits provided pursuant to this Section 3.4). Following the
Service Period, Employee may elect to continue his supplemental executive
long-term disability policy by paying premiums himself. Employee may change
health and welfare coverage types and options on the same basis as other
employees. Except as otherwise provided herein or as required by law, the
Company shall not make any changes in any employee benefit plans or arrangements
which would adversely affect Employee's vested rights or vested benefits
thereunder. Employee acknowledges that the Company's liability to Employee with
respect to this Section 3.4 is limited to providing the specified benefits, and
shall not
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extend to cover any unspecified tax or other cost, if any, to Employee of
receiving the same.
3.4.2 Employee may at any time during the Service Period, in lieu
of receiving the health and welfare benefits provided for under Section 3.4.1,
elect that the following provisions will apply: (i) Employee and his wife will
utilize at their expense Medicare Part A and Part B as each of their primary
individual insurance coverage; (ii) the Company will make available to Employee
and his wife a supplemental medical plan, Blue Cross Security - 65 Plan H (or
its equivalent), as each of their secondary medical insurance coverage; and
(iii) the Company will reimburse Employee and his wife (on a pre-tax basis only)
for their out-of-pocket costs for amounts not paid for or reimbursed by Medicare
or Blue Cross to provide health care benefits equivalent to those available to
employees. Employee acknowledges that the value of benefits received from the
Company in the event of this election will be includable in the taxable income
of Employee or his wife, as applicable.
3.4.3 Except as otherwise specifically provided for herein,
following the Service Period and the Post-Retirement Period, Employee and his
wife shall be entitled to the provisions of Section 3.4.2 for the remainder of
their lives.
3.5 Vacations and Holidays. Employee shall be entitled during the
Service Period to not fewer than the same number of paid vacation, flex and
personal days in each calendar year as to which he is currently entitled.
Employee shall also be entitled during the Service Period to all paid holidays
given by the Company to its employees.
3.6 Perquisites. Except as otherwise specifically provided herein,
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during the Service Period, Employee shall be entitled to continue to receive his
current perquisites ("Perquisites" ), including but not limited to: free cable
and high speed data service on the same basis as made available to senior
executives (provided Employee lives in a Company system); free monthly parking
in the parking garage at 0000 Xxxxxx Xxxxxx (or any successor corporate
headquarters location); a free parking space at the First Union Center (provided
it is owned by the Company); and a free cellular phone and service for three
phone numbers (on the type of account now provided); in all cases including any
tax gross-up amounts on the same basis as is now made available to Employee, and
subject to any income required to be imputed to Employee on account thereof in
accordance with Company policy.
3.7 Deferred Compensation.
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3.7.1 The Company's 1977 Deferred Compensation Plan will remain in
effect pursuant to its present terms. If not earlier terminated, Employee's
employment with the Company for purposes of the 1977 Deferred Compensation Plan
will be deemed to terminate at the end of the Base Period. At that time, a lump
sum cash payment shall be made to Employee in an amount representing the present
value (calculated using a discount rate equal to the then current yield to
maturity on ten (10) year obligations of the Treasury of the United States (the
"Discount Rate")) of the stream of payments then otherwise due thereunder.
Employee may elect to defer receipt of this amount as a bonus under the
Company's 1996 Deferred Compensation Plan.
3.7.2. Employee shall be eligible to participate in the Company's
1996 Deferred Compensation Plan through the Service Period, pursuant to its
terms (including any right under such Plan to make an election regarding the
continued deferral
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of Employee's account following the Service Period).
3.8 Supplemental Executive Retirement Plan. The Company's 1989
Supplemental Executive Retirement Plan (the "SERP") will remain in effect
pursuant to its present terms. If not earlier terminated, Employee's employment
with the Company for purposes of the SERP will be deemed to terminate at the end
of the Base Period.
3.9 Trust.
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3.9.1 Prior to the occurrence of a Change of Control (as defined in
Section 3.9.3) during the Service Period, the Company shall establish a grantor
trust (the "Trust"), the terms of which shall be consistent with the
requirements applicable under the Internal Revenue Code of 1986, as amended, in
order to avoid the constructive receipt of the assets held in the Trust. The
trust document for the Trust shall be in a form that is mutually satisfactory to
the Company and Employee, and may, but need not, be in substantially the same
form as the model trust agreement published by the Internal Revenue Service in
Revenue Procedure 92-64. The trustee of the Trust shall be such person or
institution acceptable to the Company and Employee. Upon the occurrence of a
Change of Control, the Trust, if not already irrevocable shall become
irrevocable and the Company shall contribute to the Trust an amount in cash or
such assets as it deems appropriate equal to the present value (calculated using
the Discount Rate at that time) of:
(i) the portion of the remaining premiums that the Company is obligated
to pay until the death of the survivor of Employee and his spouse under each of
the following life insurance policies: the 1987 Security Life of Denver policy,
the 1992 Security Life of Denver policy, the 1994 Xxxx Xxxxxxx policy, the 1994
Mass Mutual policy and the 1994 Prudential policy (together with the related
existing split-dollar
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agreements, the "Split-Dollar Arrangements");
(ii) the bonuses and tax gross-up amounts (if any) that the Company is
obligated to pay to Employee or his surviving spouse pursuant to the
Split-Dollar Arrangements; and
(iii) all deferred compensation benefits payable to Employee under the
1977 Deferred Compensation Plan, the 1996 Deferred Compensation Plan, the Income
Fund under the Deferred Stock Option Plan and the SERP, where for the purpose of
the SERP the present value shall be calculated using the actuarial lives
provided under standard mortality tables.
3.9.2 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 providing the benefits described in this Section
3.9 until all such benefits have been fully paid, at which time the Trust may be
terminated and any remaining assets will 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 properly paid as benefits 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.
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3.9.3 For purposes of this Agreement, a "Change of Control" shall
be deemed to have occurred on the date that persons other than Xxxxx X. Xxxxxxx
and members of his immediate family (or trusts for their benefit) first acquire
more than fifty percent (50%) of the voting power over all outstanding voting
shares of the Company. The Closing will be a Change of Control.
3.10 Airplane Use. Subject to priority for business use by the
Company's senior executives, Employee will be permitted personal use of Company
aircraft during the Base Period for domestic travel, up to a maximum of 40
hours, on the same economic terms (including with respect to cost methodology,
cost reimbursement and imputed income) as that made available to the Company's
Chief Executive Officer.
3.11 CIC Funds.
3.11.1 Upon the earlier of: (i) the end of the Executive Term; or
(ii) termination of Employee's employment for any reason other than Cause (as
defined in Section 4.3), the Company agrees that it, or any of its affiliates,
shall purchase the general partnership interest of CIC Partners, LP (the
"Partnership Interest") in Comcast Interactive Capital, LP (the "Partnership"),
and Employee agrees to use his reasonable best efforts to cause CIC Partners, LP
to sell the Partnership Interest to the Company or an affiliate. The sale of the
Partnership Interest pursuant to Section 3.11 shall be consummated on the fifth
business day following the determination of the fair market value of the
Partnership Interest pursuant to Section 3.11.4. The earlier of the dates
referred to in (i) and (ii) of the first sentence of this Section 3.11.1 is
referred to as the "Termination Date."
3.11.2 In the event that the Partnership Interest is sold pursuant
to
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Section 3.11.1, the purchaser shall be admitted to the Partnership and shall
replace CIC Partners, LP as the general partner of the Partnership and the
Partnership shall not be dissolved as a result of the transfer of the
Partnership Interest. Effective as of the date of the sale of the Partnership
Interest, the purchaser shall accede to the Limited Partnership Agreement of the
Partnership (the "LP Agreement") by executing an amendment to the LP Agreement
that accounts for the sale of the Partnership Interest and the admission of the
purchaser as the general partner of the Partnership. The purchaser shall make
any necessary filings with the appropriate governmental authorities, including
the filing of a certificate of amendment to the certificate of limited
partnership of the Partnership previously filed with the Secretary of State of
the State of Delaware, to reflect the withdrawal of CIC Partners, LP as the
general partner of the Partnership in connection with the sale of its interest
and the admission of the purchaser, and take such other actions as are necessary
under applicable law to effectuate such admission.
3.11.3 Upon the sale of the Partnership Interest pursuant to
Section 3.11, CIC Partners, LP shall: (i) cease to be a partner of the
Partnership and cease to have any obligations pursuant to the LP Agreement or as
a partner of the Partnership, including, but not limited to, the obligation to
make capital contributions pursuant to Section 6.1 of the LP Agreement, the
obligation to return to the Partnership excess tax distributions pursuant to
Section 7.3.3 of the LP Agreement, any obligation to return any amounts to the
Partnership under Section 7.6 of the LP Agreement or the obligation to return
certain amounts to the Partnership under Section 10.5.2 of the LP Agreement; and
(ii) have no rights or powers under the LP Agreement other than as specifically
provided for in the LP Agreement, including, without limitation, the right to
indemnification and
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advancement of expenses pursuant to Article 12 of the LP Agreement. The
purchaser shall succeed to the obligations of the CIC Partners, LP pursuant to
the LP Agreement, including, but not limited to, the obligation to make capital
contributions pursuant to Section 6.1 of the LP Agreement, the obligation to
return to the Partnership excess tax distributions pursuant to Section 7.3.3 of
the LP Agreement and the obligations to return certain amounts to the
Partnership pursuant to Section 7.6 and Section 10.5.2 of the LP Agreement.
3.11.4 The purchase price payable to CIC Partners, LP in connection
with any sale of the Partnership Interest pursuant to Section 3.11 shall be the
fair market value of the Partnership Interest as of the Termination Date, as
agreed to by CIC Partners, LP and the Company, which valuation may include a
good faith estimate of the goodwill associated with the Partnership's assets,
the name of the Partnership and CIC Partners, LP, the Partnership's office
records, files and statistical data, and any intangible assets of the
Partnership in the nature of or similar to goodwill, and which valuation shall
be determined without regard to any costs, fees or expenses payable by the
Partnership to any appraiser or appraisal firm pursuant to this Section 3.11;
provided, however, that should the Company and CIC Partners, LP not agree on
such a valuation within 15 days after the Termination Date, the valuation shall
be done by a qualified appraisal firm or a qualified appraiser who has the
Independent Chartered Financial Analyst designation and who is mutually agreed
to by the Company and CIC Partners, LP; provided, further that should the
Company and CIC Partners, LP not agree on such third party within 20 days
subsequent to the Termination Date, then each of the Company and CIC Partners,
LP shall put forth a nominee that is a qualified appraisal firm or
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qualified appraiser who has the Independent Chartered Financial Analyst
designation, and each of such nominees shall then select a third qualified
appraisal firm or qualified appraiser and such third qualified appraisal firm or
qualified appraiser shall determine the valuation. No appraisal firm or
appraiser determining the valuation pursuant to this Section 3.11 shall be bound
by any valuation methodology set forth in Section 14.4 of the LP Agreement. If a
qualified appraisal firm or qualified appraiser is used to make such valuation,
the Company and CIC Partners, LP shall use commercially reasonable efforts to
cause such person to complete such valuation within 45 days of the Termination
Date. The cost of any appraisal firm or appraiser shall be paid by the
Partnership. The payment of the purchase price to CIC Partners, LP pursuant to
this Section 3.11 shall be made in immediately available funds at the time of
the sale of the Partnership Interest. At the closing of the sale of the
Partnership Interest, CIC Partners, LP and the purchaser of its interest shall
execute such transfer documentation as may be reasonably requested in order to
consummate the purchase and sale of the Partnership Interest contemplated by
this Section 3.11. Upon the sale of the Partnership Interest, the purchaser
shall succeed to the Subscription, Contribution and Capital Account of CIC
Partners, LP (each as defined in the LP Agreement).
3.11.5 For purposes of Section 3.11, the assets of the Partnership
shall be determined as though each of CIC Partners, LP, the partners of CIC
Partners, LP, the members of CIC Venture Management, LLC and CIC Development
Corp. had remitted to the Partnership immediately prior to the Termination Date,
the fees and other remuneration (whether in cash or securities) from portfolio
companies of the Partnership
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which such persons are obligated pursuant to Section 5.3 of the LP Agreement to
remit to the Partnership.
3.12 Stock Options.
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3.12.1 Vesting of Employee's presently outstanding stock options
with respect to the Company's Common Stock, as well as the stock option granted
pursuant to Section 3.12.2 (collectively, the "Company Options"), and the Common
Stock of QVC, Inc. ("QVC") (the "QVC Options," and together with the Company
Options, the "Options"), will continue during the Service Period. Upon
termination of employment for death or Disability (as such term is defined in
Section 4.2), vesting of all of the Company Options will accelerate in full and
all such options will remain exercisable for their remaining respective terms,
per the Option Election Form of Employee dated September 25, 2001 made in
connection with the existing agreement between the Company and Employee on this
subject. Upon termination of employment at the end of the Seven Year Period, all
of the Company Options will accelerate in full and all such options will remain
exercisable for their remaining respective terms. Otherwise, the Options will
vest, and remain exercisable with respect to vested shares, as set forth herein
or in the existing option plans and grant documentation. Except as set forth in
Section 3.12.2, Employee shall not be granted any additional Company Options.
Employee shall not be granted any additional QVC Options, except pursuant to the
"reload" of QVC Options with respect to shares of the Common Stock of QVC
acquired upon option exercise and then redeemed during the Base Period.
3.12.2 As soon as practicable after the date hereof, Employee shall
be granted a non-qualified stock option to purchase 500,000 shares of the
Company's
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Class A Special Common Stock. Such options shall have a term of ten (10) years
and shall vest and become exercisable as follows: 10% on the second anniversary
date of the date of grant; 20% on each of the third to sixth anniversary dates
of the date of grant; and 10% on the six year and six month anniversary date of
the date of grant.
3.13 Life Insurance. The Split-Dollar Arrangements will remain in
effect pursuant to their present terms (including with respect to the payment of
premiums, premiums bonuses and tax-gross ups (if any)), provided that the
Company will use commercially reasonable efforts to cooperate with Employee's
requests to restructure the Split-Dollar Arrangements to improve the terms
thereof as they relate to Employee, provided further that the Company will have
no obligation to effect any change thereto that will result in any additional
net after-tax cost to or other additional obligation of the Company. Employee's
reasonable out-of-pocket expenses incurred in connection with such restructuring
(including counsel and consultant fees) will be paid by the Company.
4. Termination. Employee's services hereunder may be terminated under the
following circumstances:
4.1 Death. Employee's services hereunder shall terminate automatically
upon his death.
4.2 Disability. In the event Employee becomes unable to perform
Employee's duties hereunder due to partial or total disability or incapacity
resulting from a mental or physical illness, injury or health-related cause
("Disability") for a period of nine (9) consecutive months or for a cumulative
period of forty five (45) weeks, the Company may terminate Employee's services.
4.3 Cause. The Company may terminate Employee's services
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hereunder for Cause. For purposes of this Agreement, the Company shall have
"Cause" to terminate Employee's services hereunder at any time upon: (i) either
the willful and continued failure by Employee to substantially perform his
duties hereunder or the willful failure of Employee to comply with the material
provisions of the Company's Code of Ethics and Business Conduct (other than a
failure resulting from Employee's incapacity due to physical or mental illness)
for a period of sixty (60) days after written demand for substantial performance
or compliance is delivered by the Company specifically identifying the manner in
which the Company believes Employee has not substantially performed his duties
or has not complied; (ii) the commission by Employee of an act of fraud or
embezzlement against the Company; (iii) the willful breach by Employee of any
material provision of this Agreement; or (iv) Employee's failure to resign as
the manager of the CIC Funds upon the first to occur of: (A) Employee's
termination of employment hereunder for any reason or (B) the end of the
Executive Term. For purposes of this Section 4.3, no act, or failure to act, on
Employee's part shall be considered "willful" if resulting from Employee's
incapacity due to physical or mental illness or 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 interests of the Company.
4.4 Retirement. Employee may retire from employment hereunder by giving
at least thirty (30) days of advance written notice thereof to the Company.
4.5 Without Cause. The Company may terminate Employee's employment
without Cause hereunder by giving at least thirty (30) days of advance written
notice thereof to Employee.
4.6 Notice of Termination. Any termination of Employee's
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employment by the Company (other than termination upon his death) shall be
communicated by written Notice of Termination to Employee. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which indicates the
specific termination provision in this Agreement relied upon and sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Employee's employment under the provision so indicated.
4.7 Date of Termination. "Date of Termination" shall mean: (i) if
Employee's employment is terminated by his death or retirement, the date of his
death or retirement; (ii) if Employee's employment is terminated without Cause,
thirty (30) days after delivery of Notice of Termination from the Company; (iii)
if Employee's employment is terminated for Disability pursuant to Section 4.2,
thirty (30) days after delivery of Notice of Termination is given provided that
Employee shall not have returned to the performance of his duties during such
thirty (30) day period; or (iv) if Employee's employment is terminated for Cause
pursuant to Section 4.3, the date specified in the Notice of Termination;
provided that if within thirty (30) days after a Notice of Termination under
subsection (iii) or (iv) is given, Employee notifies the Company that he
disputes 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 and Benefits Upon Termination.
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5.1 If Employee's employment is terminated by reason of his death,
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the Company shall continue to pay to Employee's surviving spouse, if any,
Employee's then current base salary per annum amount (without increase or
decrease thereafter), on a monthly basis, less any required withholdings, for a
period of five (5) years, provided that such payments to Employee's surviving
spouse shall cease with the payment due immediately following her death. In
addition, the Company shall be obligated to provide to Employee's spouse during
her lifetime health care benefits on the basis set forth in Section 3.4.2. These
death benefits shall be in addition to any other payments Employee's spouse,
beneficiaries or estate may be entitled to receive under any of the Company's
benefit plans or arrangements or pursuant to this Agreement, including pursuant
to the Executive Cash Bonus Plan. The Company shall have no further obligations
to Employee, other than pursuant to the terms of this Agreement, the
requirements of law and vested rights under any of the Company's benefit plans
or arrangements.
5.2 During any period following Employee's failure to perform his
duties hereunder as a result of his Disability but prior to any Date of
Termination pursuant to Section 4.2, Employee shall continue to receive his base
salary, as well as any other benefits and Perquisites he may be entitled to
receive under any of the Company's benefit plans or arrangements or pursuant to
this Agreement, including pursuant to the Executive Cash Bonus Plan. After the
Date of Termination pursuant to Section 4.2: (i) the Company shall continue to
pay Employee his then current base salary per annum amount (without increase or
decrease thereafter), on a monthly basis, until the first to occur of: (A) a
period of five (5) years; or (B) the end of the Seven Year Period (the
"Disability Payment Period"); (ii) Employee will continue to receive the
Perquisites
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through the remainder of the Disability Payment Period; (iii) Employee will be
entitled to participate in the Company's post-retirement health and welfare
benefit plan based upon service years with the Company through the Date of
Termination; and (iv) the Company shall have no further obligations to Employee,
other than pursuant to the terms of this Agreement, the requirements of law and
vested rights under any of the Company's benefit plans or arrangements. In the
event Employee dies before the end of the Disability Payment Period, his
surviving spouse, if any, shall be entitled to receive: (1) such base salary
payments for the period ending five (5) years after such termination, provided
that these payments shall cease with the payment due immediately following her
death; and (2) during her lifetime health care benefits on the basis set forth
in Section 3.4.2. These death benefits shall be in addition to any other
payments Employee's spouse, beneficiaries or estate may be entitled to receive
under any of the Company's benefit plans or arrangements or pursuant to this
Agreement, including pursuant to the Executive Cash Bonus Plan.
5.3 If Employee's employment is terminated for Cause, the Company shall
pay Employee his then current base salary due through the Date of Termination
and the Company shall have no further obligations to Employee, other than
pursuant to the requirements of law and vested rights under any of the Company's
benefit plans or arrangements.
5.4 If the Company terminates Employee's employment pursuant to Section
4.5 (i.e., without Cause), then:
(i) the Company shall pay as severance pay to Employee, on a
monthly basis (or, in the case of amounts payable under the Executive Cash Bonus
Plan,
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on the basis provided in such Plan), for the remainder of the Seven Year Period,
an annual amount equal to Employee's base salary at the highest per annum amount
in effect at any time during the portion of the Service Period preceding the
date of termination, and any amounts that otherwise would have been payable
under the Executive Cash Bonus Plan; provided that should Employee die before
the end of the Seven Year Period, Employee's surviving spouse shall be entitled
to the death benefits provided in Section 5.1 as if Employee's employment had
then been terminated by reason of his death;
(ii) the Company shall provide for the remaining Seven Year
Period health care benefits, at the election of Employee, on the basis set forth
in Section 3.4.2 or by making available private health insurance providing
health care benefits reasonably comparable to those available to employees to
Employee and his wife; thereafter, Employee shall be entitled to participate in
the Company's post-retirement health and welfare benefit plan based upon service
years with the Company including the years during the Seven Year Period;
(iii) vesting of the Options will accelerate and the Options
will remain outstanding for the remainder of their respective terms;
(iv) Employee will continue to receive the Perquisites through
the remainder of the Service Period;
(v) the Company shall reimburse Employee for the remaining Seven
Year Period for the cost of obtaining office space and secretarial support
comparable to that previously provided by the Company pursuant to Section 2.3;
and
(vi) the Company shall have no further obligations to Employee
other than pursuant to the terms of this Agreement, the requirements of law and
vested
20
rights under any of the Company's benefit plans or arrangements.
5.5 If Employee terminates his employment as a result of retirement
pursuant to Section 4.4, then:
(i) Employee shall be entitled to participate in the Company's
post-retirement health and welfare benefit plan based upon service years with
the Company through the date of termination of employment;
(ii) vesting of Options will accelerate and the Options will
remain outstanding for the remainder of their respective terms;
(iii) Employee will continue to receive the Perquisites through
the remainder of the Service Period; and
(iv) the Company shall have no further obligations to Employee
other than pursuant to the terms of this Agreement, the requirements of law and
vested rights under any of the Company's benefit plans or arrangements.
5.6 Employee 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 income received by Employee from any other source after termination.
6. Public Statements. During or at any time after the Service Period during
which Employee is receiving any benefits from the Company: (i) Employee shall
use reasonable efforts to promote the goodwill of the Company in Employee's
public statements; and (ii) the Company shall use reasonable efforts to promote
the goodwill of Employee or his spouse in the Company's public statements.
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7. Non-Competition and Confidentiality.
------------------------------------
7.1 During the Service Period and for a period of two (2) years
thereafter, Employee shall not, directly or indirectly, solicit, induce,
encourage, or attempt to influence any client, customer, employee, consultant,
independent contractor, subscriber, service provider, salesman or supplier of
the Company to cease to do business or to terminate the employment or other
relationship with the Company.
7.2 During the Service Period and for a period of two (2) years
thereafter, Employee shall not, directly or indirectly, purchase (other than for
personal use) goods, services or programming from material suppliers of Company
similar to those purchased by Company if the effect of any such purchase shall
cause the Company the denial of or delay in the receipt of such goods, services
or programming.
7.3 DURING THE SERVICE PERIOD AND, PROVIDED EMPLOYMENT WAS NOT
TERMINATED BY THE COMPANY WITHOUT CAUSE, FOR A PERIOD OF TWO (2) YEARS
THEREAFTER, EMPLOYEE SHALL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN (AS A
PRINCIPAL, PARTNER, DIRECTOR, OFFICER, AGENT, EMPLOYEE, NON-EXECUTIVE, OWNER,
INDEPENDENT CONTRACTOR, CONSULTANT OR OTHERWISE) OR BE FINANCIALLY INTERESTED IN
ANY BUSINESS IN COMPETITION WITH THE BUSINESS ACTIVITIES CARRIED ON BY THE
COMPANY IN ANY AREA, OR BEING PLANNED BY THE COMPANY (TO EMPLOYEE'S KNOWLEDGE)
DURING OR AT THE TIME OF TERMINATION OF EMPLOYMENT. THE FOLLOWING WILL BE DEEMED
TO BE BUSINESSES IN COMPETITION WITH THE COMPANY: THE DISTRIBUTION OF VIDEO
PROGRAMMING TO
22
RESIDENTIAL OR COMMERICAL SUBSCRIBERS BY ANY TECHNOLOGY; THE TRANSPORT OF DATA
TO AND/OR FROM RESIDENTIAL OR COMMERCIAL SUBSCRIBERS BY ANY TECHNOLOGY; AND THE
PROVISION OF RESIDENTIAL OR COMMERICAL TELECOMMUNICATIONS SERVICES BY ANY
TECHNOLOGY. NOTHING HEREIN SHALL PREVENT EMPLOYEE FROM OWNING FOR INVESTMENT UP
TO FIVE PERCENT (5%) OF ANY CLASS OF EQUITY SECURITY OF AN ENTITY WHOSE
SECURITIES ARE TRADED ON A NATIONAL SECURITIES EXCHANGE OR MARKET.
7.4 During the Service Period and at all times thereafter, Employee
shall not, directly or indirectly, use for Employee's personal benefit, or
disclose, communicate or divulge to, or use for the direct or indirect benefit
of, anyone other than the Company (except as may be required within the scope of
Employee's duties hereunder), any confidential information of the Company which
Employee acquires in the course of Employee's employment, which is not otherwise
lawfully known by and readily available to the general public. This confidential
information includes, but is not limited to: business, marketing, legal or
accounting methods, policies, plans, procedures, strategies or techniques;
research or development projects or results; software and firmware; trade
secrets or other knowledge or processes of or developed by the Company; names
and addresses of employees, suppliers or customers; and any data on or relating
to past, present or prospective customers, including customer lists. Employee
confirms that such confidential information constitutes the exclusive property
of the Company, and agrees that, immediately upon Employee's termination of
employment for any reason, Employee shall deliver to the Company all
correspondence, documents,
23
books, records, lists and other materials relating to the Company's business,
other than Employee's personal records, regardless of the medium in which such
confidential information is maintained; and Employee shall retain no copies in
any medium, regardless of where or by whom such confidential information was
kept or prepared. Nothing herein shall prevent Employee from complying with a
valid subpoena or other legal requirement for disclosure of information,
provided that Employee shall notify the Company promptly and in advance of
disclosure if Employee believes Employee is under a legal requirement to
disclose confidential information.
7.5 Employee acknowledges that the restrictions contained in this
Section 7, in view of the nature of the business in which the Company is engaged
and Employee's position with the Company, are reasonable and necessary to
protect the legitimate interests of the Company, and that any violation of these
restrictions would result in irreparable injury to the Company. Employee
therefore agrees that, in the event of Employee's violation of any of these
restrictions, the Company shall be entitled to seek from any court of competent
jurisdiction: (i) preliminary and permanent injunctive relief against Employee;
(ii) damages from Employee; and (iii) an equitable accounting of all
compensation, commissions, earnings, profits and other benefits to Employee
arising from such violation, all of which rights shall be cumulative and in
addition to any other rights and remedies to which the Company may be entitled
as set forth herein or as a matter of law.
7.6 Employee agrees that if any portion of the restrictions contained
in this Section 7, or the application thereof, is construed to be invalid or
unenforceable, the remainder of such restriction or restrictions or the
application thereof shall not be affected
24
and the remaining restriction or restrictions will then be given full force and
effect without regard to the invalid or unenforceable portions. If any
restriction is held to be unenforceable because of the geographic area covered,
the duration thereof or the scope thereof, Employee agrees that the court making
such determination shall have the power to reduce the area and/or the duration,
and/or limit the scope thereof, and the restriction shall then be enforceable in
its reduced form. If Employee violates any such restrictions, the period of such
violation (from the commencement of any such violation until such time as such
violation shall be cured by Employee to the satisfaction of the Company) shall
not count toward or be included in the restrictive period contained in the
applicable subsection above.
7.7 Any and all obligations of Employee under this Section 7 shall
terminate immediately upon the Company's material breach of any provision of
this Agreement, it being agreed that the Company's failure to comply with any of
its economic obligations hereunder shall be deemed for this purpose to be a
material breach.
8. Successors; Related Companies; Binding Agreement.
-------------------------------------------------
8.1 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 written agreement, 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. In the event of the Closing, this Agreement will be assumed by
AT&T Comcast Corporation as the successor to the Company pursuant to the
preceding sentence. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession shall
25
be a breach of this Agreement and shall entitle Employee to equitable relief
against the Company as well as compensation, rights and benefits in the same
amounts and on the same terms, as he would be entitled to pursuant to Section
5.4 (the date on which any such succession becomes effective being deemed the
Date of Termination). As used in this Agreement, the term "the Company" shall
mean the Company and any successor as aforesaid or which otherwise becomes bound
by all the terms and provisions of this Agreement by operation of law.
8.2 For purposes of Sections 6 and 7, the term "the Company" shall
include the Company's subsidiaries and affiliates.
8.3 This Agreement and all rights of Employee hereunder shall inure to
the benefit of and shall be binding upon Employee's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Employee 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 Employee's devisee, legatee or other designee or, if there be no
such designee, to Employee's estate.
9. Entire Agreement. This Agreement constitutes the full and complete
understanding and agreement of the Company and Employee respecting the subject
matter hereof, and supersedes all prior understandings and agreements, oral or
written, express or implied, including the Noncompetition and Confidentiality
Agreement between Company and Employee dated August 1, 1996. This Agreement may
not be modified or amended orally but only by an agreement in writing, signed by
the parties hereto.
26
10. Waiver and Release. IN CONSIDERATION OF THE RIGHTS OF EMPLOYEE
HEREUNDER, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN AND EXCEPT WITH
RESPECT TO ANY VESTED RIGHTS, EMPLOYEE HEREBY WAIVES AND RELEASES THE COMPANY
FROM ANY AND ALL CLAIMS, RIGHTS OR BENEFITS HE MAY HAVE AGAINST OR FROM THE
COMPANY ON ACCOUNT OF EMPLOYEE BENEFITS, INSURANCE ARRANGEMENTS, EQUITY-BASED
ARRANGEMENTS, CASH COMPENSATION OR OTHER BENEFIT PLANS, ARRANGEMENTS OR AMOUNTS
WITH RESPECT TO EMPLOYEE'S EMPLOYMENT PRIOR TO MAY 1, 2002.
11. 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.
12. 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 fax (confirmation received) or certified mail, postage prepaid, addressed as
follows:
(i) if to the Company:
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: General Counsel; and
(ii) if to Employee, at his last known personal residence.
Either party may change the 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.
27
13. 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.
14. Nonalienation. Employee 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 Employee from designating a beneficiary
to receive any benefit payable hereunder upon his death, or the executors,
administrators or other legal representatives of Employee or his estate from
assigning any rights hereunder to which they become entitled to the person or
persons entitled thereto.
15. Governing Law. This Agreement is entered into and shall be construed in
accordance with the internal laws of the Commonwealth of Pennsylvania.
16. 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.
28
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date set forth above.
COMCAST CORPORATION
By:______________________
_________________________
Xxxxxx X. Xxxxxxx
