EMPLOYMENT AGREEMENT
Exhibit
99.2
This EMPLOYMENT AGREEMENT (the
“Agreement”) is entered into as of the 16th day of
December, 2009, between COMCAST CORPORATION, a Pennsylvania corporation
(together with its subsidiaries, the “Company”), and XXXXXXX X. XXXXXXXXX
(“Employee”).
BACKGROUND
Employee desires to have Employee’s
employment relationship with the Company be governed by the terms and conditions
of this Agreement, which include material benefits favorable to
Employee. In return for such favorable benefits, Employee is agreeing
to the terms and conditions contained in this Agreement, which include material
obligations on Employee.
AGREEMENT
Intending to be legally bound, the
Company and Employee agree as follows:
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1.
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Position and
Duties.
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(a) Employee
shall continue to serve and the Company shall continue to employ Employee in the
position set forth on Schedule 1. Employee shall report directly to
the Company’s Chief Executive Officer (currently Xxxxx X. Xxxxxxx), in
Philadelphia, Pennsylvania. The duties of Employee will be those
assigned by the Chief Executive Officer from time to time commensurate with
Employee’s education, skills and experience.
(b) Employee
shall work full-time and devote Employee’s reasonable best efforts to the
business of the Company in a manner that will further the interests of the
Company. Without the prior written consent of the Company, Employee
shall not, directly or indirectly, work for or on behalf of any person or
business, other than the Company. Nothing herein shall restrict
Employee from engaging in non-compensatory civic and charitable activities with
the consent of the Company, which consent shall not be unreasonably withheld or
delayed.
(c) Employee
shall comply with all policies of the Company applicable to Employee, including
the Employee Handbook and the Code of Ethics and Business Conduct.
2.
Term. The
term of this Agreement (the “Term”) shall be from the date first-above
written (the
“Commencement Date”) through the first to occur of: (a) the date Employee’s
employment is terminated in accordance with Paragraph 6; or (b) December 31,
2012 (the date specified in subparagraph (b) is referred to as “Regular End
Date”). Notwithstanding the end of the Term, the Company’s obligation
to make any payments expressly set forth herein to be made after the Term, and
Employee’s covenants contained in Xxxxxxxxxx 0, 0 xxx 00, xxxxx xx enforceable
after the end of the Term.
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3.
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Compensation.
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(a) Base
Salary. Employee’s base salary (“Base Salary”) from the
Commencement Date through February 28, 2010 shall be at Employee’s current
annual rate and shall not thereafter be reduced other than as part of a salary
reduction program effected by the Company during the Term, on a basis consistent
with that applicable to other employees at Employee’s level. Employee
shall thereafter be entitled to participate in any salary increase program
offered by the Company during the Term, on a basis consistent with that
applicable to other employees at Employee’s level, taking into account
Employee’s position, duties and performance. Base Salary, less normal
deductions, shall be paid to Employee in accordance with the Company’s payroll
practices in effect from time to time.
(b) Signing
Bonuses. As soon as practicable after each of (A) the
Commencement Date and (B) the first to occur of June 30, 2010 and the closing of
the Company’s NBC Universal transaction, Employee shall receive a cash signing
bonus in the amount and on the terms set forth on Schedule 1.
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(c)
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Restricted Stock/Stock
Option Grants.
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(i) As
soon as practicable after each of (A) the Commencement Date and (B) the first to
occur of June 1, 2010 and the closing of the Company’s NBC Universal
transaction, Employee shall receive a grant of restricted stock units under the
Company’s Restricted Stock Plan for the number of shares of the Company’s Class
A Common Stock set forth on Schedule 1. Such units shall vest as set
forth on Schedule 1.
(ii) Continuing
in 2010, Employee shall be entitled to participate in any annual (or other)
broad-based grant programs under the Company’s Restricted Stock Plan and/or
Stock Option Plan (or any successor equity-based compensation plan or plans) on
a basis consistent with that applicable to other employees at Employee’s level,
taking into account Employee’s position, duties and performance.
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(d)
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Cash
Bonuses.
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(i)
Employee shall be entitled to participate in the Company’s Cash Bonus Plan as
set forth on Schedule 1 through each of December 31, 2009 and December 31,
2010. Employee’s participation in such Plan will be pursuant to the
terms and conditions thereof. The performance standards applicable to
such cash bonus will be consistent with those applicable to other employees at
Employee’s level, taking into account Employee’s position and
duties.
(ii) Employee
shall be entitled to continued participation in the Company’s Cash Bonus Plan
(or any successor performance-based cash incentive compensation plan) with
respect to each subsequent calendar year (or portion thereof) in the Term on a
basis consistent with that applicable to other employees at Employee’s level,
taking into account Employee’s position, duties and performance, provided that
in no event will the percentage of eligible earnings target bonus potential
thereunder be less than that set forth on Schedule 1.
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(e) Deferred
Compensation.
(i) Employee
shall be entitled to participate in the Company’s deferred compensation plans
and programs on the same terms as the Company’s other senior executive
officers.
(ii) In
addition, the Company shall credit to Employee’s account under, and pursuant to
the terms and conditions of, the Company’s 2005 Deferred Compensation Plan (or
any successor plan), (A) as of the Commencement Date, $1,000,000, and (B) as of
January 1 of each of the following calendar years, the following
amounts:
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Year
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Amount
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2010
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$1,500,000
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2011
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$1,575,000
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2012
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$1,653,750.
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4. Other
Benefits. Employee shall be entitled to participate in the
Company’s health and welfare and other employee benefit plans and programs
(including group insurance programs, vacation benefits and applicable directors
and officers liability insurance and indemnification and advancement of expenses
provisions relating to claims made by third parties against Employee in
Employee’s role as a director, officer or employee) (“Other Benefit Plans”), on
terms (including cost) as are consistent with those made available to other
employees at Employee’s level, taking into account Employee’s position and
duties, in accordance with the terms of such plans and
programs. Nothing in this Agreement shall limit the Company’s right
to modify or discontinue any Other Benefit Plans at any time, provided no such
action may adversely affect any vested rights of Employee
thereunder. The provisions of this Paragraph 4 shall not apply to
compensation and benefit plans and programs specifically addressed in this
Agreement, in which case the applicable terms of this Agreement shall
control.
5. Business
Expenses. The Company shall pay or reimburse Employee for
reasonable travel, lodging, meals, entertainment and other reasonable expenses
incurred by Employee in connection with the performance of Employee’s duties
hereunder, upon receipt of vouchers therefor submitted to the Company on a
timely basis and in accordance with the Company’s policies and practices in
effect from time to time.
6. Termination. Employee’s
employment, and the Company's obligations under this Agreement (excluding any
obligations the Company may have under Paragraph 7, any other obligations
expressly set forth herein as surviving termination of employment, and any
obligations with respect to any vested rights of Employee under any benefit
plans or programs), shall or may be terminated, in the circumstances set forth
below.
(a) Death. Employee's
employment shall terminate automatically in the event of Employee’s
death.
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(b) Disability. The
Company may terminate Employee’s employment in accordance with the provisions of
applicable law, in the event Employee becomes substantially unable to perform
Employee’s duties hereunder due to partial or total disability or incapacity
resulting from a mental or physical illness, injury or other health-related
cause (“Disability”) for a period of twelve (12) consecutive months or for a
cumulative period of fifty-two (52) weeks in any two (2) calendar year
period.
(c) Termination With Cause by
the Company or Termination by Employee Without Good Reason.
(i)
The Company may terminate Employee’s employment upon written notice following
its determination that Employee has committed any of the following acts
(“Termination With Cause”): conviction of a felony or a crime
involving moral turpitude; fraud, embezzlement or other misappropriation of
funds with respect to the Company; material misrepresentation with respect to
the Company; substantial failure to perform duties; gross negligence or
misconduct in the performance of duties; material violation of the Employee
Handbook, the Code of Ethics and Business Conduct or any other written Company
policy; or material breach of this Agreement (which, as to the last two items,
if capable of being cured (as determined by the Company), shall remain uncured
following ten (10) business days after written notice thereof).
(ii)
Employee may terminate Employee’s employment at any time upon twenty (20)
business days prior written notice without Good Reason (as such item is defined
in subparagraph (d)(ii) below) (“Termination Without Good Reason”).
(d) Termination Without Cause by
the Company or Termination by Employee With Good Reason.
(i)
The Company may terminate Employee’s employment at any time for any reason (or
for no reason) upon ten (10) business days prior written notice (“Termination
Without Cause”).
(ii)
Employee may terminate Employee’s employment as a result of any of the following
acts of the Company (“Termination With Good Reason”) upon ten (10) business days
prior written notice, provided Employee has provided Company such written notice
within sixty (60) days of the occurrence thereof: a substantial
demotion in Employee’s position; or material breach of any material provision of
this Agreement (which, as to either such item, if capable of being cured (as
determined by the Company), shall remain uncured following twenty (20) business
days after written notice thereof) (“Good Reason”).
7.
Payments and Other
Entitlements As a Result of Termination. Employee’s sole
entitlements as a result of a termination under Paragraph 6 shall be as set
forth below.
(a)
Death or
Disability. Following termination due to death or
Disability, Employee (or Employee’s estate, as applicable) shall be entitled to
payment of Employee’s then-
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current
Base Salary through the date of termination and for a period of three (3) months
thereafter (payable in accordance with the Company’s regular payroll practices),
amounts accrued or payable under any Other Benefit Plans (payable at such times
as provided therein), any accrued but unused vacation time, any amounts payable
for any unreimbursed business expenses, any amount that otherwise would have
been payable in the current year on account of the prior year’s Cash Bonus Plan
grant, and an amount on account of the current year’s Cash Bonus Plan grant
(pro-rated through the date of termination, and assuming achievement of
performance targets at 100%) (in the case of each of the last two amounts,
payable at such time as otherwise applicable absent such death or
Disability). Except as otherwise provided herein, any amounts payable
to Employee (or Employee’s estate, as applicable) pursuant to this subparagraph
(a) shall be paid no later than the 90th day
following the date of termination. In addition, Employee’s stock
options and restricted stock grants shall automatically vest in full, and the
stock options shall remain exercisable for the balance of their remaining
terms.
(b)
Termination With Cause
or Termination Without Good Reason. If Employee’s employment
terminates as a result of a Termination With Cause or Termination Without Good
Reason, then subject to the provisions of subparagraph 8(c), Employee shall be
entitled only to payment of Employee’s then-current Base Salary through the date
of termination (payable in accordance with the Company’s regular payroll
practices), amounts accrued or payable under any Other Benefit Plans (payable at
such times as provided therein), any accrued but unused vacation time, any
amounts payable for any unreimbursed business expenses, and any amount that
otherwise would have been payable in the current year on account of the prior
year’s Cash Bonus Plan grant (payable at such time as otherwise applicable
absent such termination). Except as otherwise provided herein, any
amounts payable to Employee pursuant to this subparagraph (b) shall be paid no
later than the 90th day
following the date of termination.
(c) Termination Without Cause or
Termination With Good Reason. If Employee’s employment is
terminated as a result of a Termination Without Cause or Termination With Good
Reason, and subject to Employee’s entering into an agreement containing a
release by Employee of the Company with respect to all matters relating to
Employee’s employment and the termination thereof (other than rights under this
Agreement which by their express terms continue following termination of
employment) within thirty (30) days following the date of termination, in a form
and containing terms as the Company customarily requires of terminated employees
receiving salary continuation payments:
(i) Provided
Employee is alive at the time of payment or receipt of benefits, Employee shall
be entitled to: (A) receive Employee’s then-current Base Salary in accordance
with the Company’s regular payroll practices; and (B) participate in the
Company’s health and welfare benefit plans and programs at the same cost to
Employee as is applicable to active employees; in each case for the period of
time set forth on Schedule 1 following the date of
termination. Employee’s rights under the Consolidated Omnibus Budget
Reconciliation Act of 1986, as amended (“COBRA”) shall run concurrently with
Employee’s participation during such period of time. To the extent
the provision of health and welfare benefits to Employee pursuant to
subparagraph (B) constitutes a “deferral of compensation” within the meaning of
Section 409A of
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the
Internal Revenue Code (the “Code”), and its implementing regulations and
guidance, the provision of such benefits shall be subject to the terms and
conditions of subparagraph 13(a).
(ii) Employee
shall also receive payment of Employee’s then-current Base Salary through the
date of termination (payable in accordance with the Company’s regular payroll
practices), amounts accrued or payable under any Other Benefit Plans (payable at
such times as provided therein), any accrued but unused vacation time, any
amounts payable for any unreimbursed business expenses, and any amount that
otherwise would have been payable in the current year on account of the prior
year’s Cash Bonus Plan grant (payable at such time as otherwise applicable
absent such termination). Except as otherwise provided herein, any
amounts payable to Employee pursuant to this subparagraph (ii) shall be paid no
later than the 90th day
following the date of termination.
(iii) Employee
shall have no obligation to seek to obtain employment during the period in which
Employee receives salary continuation payments under subparagraph (i)
above. Any income received from any subsequent employer shall not
reduce such salary continuation payments. However, Employee shall
provide the Company with notice of any such subsequent employment and the
Company's obligation to continue health and welfare benefits shall cease upon
Employee's eligibility for health and welfare benefits from any subsequent
employer.
(iv) Provided
Employee is alive at the time of payment, Employee shall be entitled to receive
payment on account of: (A) the current year’s Cash Bonus Plan grant; and (B) the
following year’s Cash Bonus Plan grant (pro-rated for the period of time in the
following year based on the number of months equal to twelve (12) minus the
number of full months in the current year following the date of termination); in
each case, assuming achievement of performance targets at 100% (payable at such
times as otherwise applicable absent such termination).
(v) Provided
Employee is alive at the time of vesting, Employee shall have the right to
continued vesting of Stock Option Plan and Restricted Stock Plan grants through
the period of time set forth on Schedule 1, as if there had been no termination
of employment (subject to the achievement of any performance conditions in
Restricted Stock Plan grants). Provided Employee is alive at the time
of exercise, Employee shall have the right to exercise any vested Stock Option
Plan grants through the period of time set forth on Schedule 1.
8. Non-Solicitation;
Non-Competition; Confidentiality. Employee acknowledges and
agrees that (x) Employee’s skills, experience, knowledge and reputation are of
special, unique and extraordinary value to the Company, (y) Employee is and will
continue to be privy to confidential and proprietary information, processes and
expertise that will be used by the Company, the confidentiality of which has
significant value to the Company and its future success, and (z) certain
restrictions on Employee’s activities as set forth below are necessary to
protect the value of the goodwill and other tangible and intangible assets of
the Company. Based upon the foregoing, Employee agrees as
follows:
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(a) While
employed by the Company (whether during the Term or thereafter), and for a
period of one year after termination of Employee’s employment for any reason
(whether during the Term or thereafter), Employee shall not, directly or
indirectly: (i) hire any employee of the Company (other than as a result of a
general solicitation); or (ii) solicit, induce, encourage or attempt to
influence any employee, customer, consultant, independent contractor, service
provider or supplier of the Company to cease to do business or terminate the
employment or other relationship with the Company.
(b) (i) WHILE
EMPLOYED BY THE COMPANY (WHETHER DURING THE TERM OR THEREAFTER), AND FOR A
PERIOD OF ONE YEAR AFTER TERMINATION OF EMPLOYEE’S EMPLOYMENT PRIOR TO THE
REGULAR END DATE BY EMPLOYEE (OTHER THAN AS A RESULT OF A TERMINATION WITH GOOD
REASON) OR BY THE COMPANY AS A RESULT OF A TERMINATION WITH CAUSE, EMPLOYEE
SHALL NOT, DIRECTLY OR INDIRECTLY, ENGAGE OR BE FINANCIALLY INTERESTED IN (AS AN
AGENT, CONSULTANT, DIRECTOR, EMPLOYEE, INDEPENDENT CONTRACTOR, OFFICER, OWNER,
PARTNER, MEMBER, PRINCIPAL OR OTHERWISE), ANY ACTIVITIES FOR A COMPETITIVE
BUSINESS. A COMPETITIVE BUSINESS MEANS A BUSINESS (WHETHER CONDUCTED
BY AN ENTITY OR INDIVIDUAL, INCLUDING EMPLOYEE IN SELF-EMPLOYMENT) THAT IS
ENGAGED IN COMPETITION, DIRECTLY OR INDIRECTLY THROUGH ANY ENTITY CONTROLLING,
CONTROLLED BY OR UNDER COMMON CONTROL WITH SUCH BUSINESS, WITH ANY OF THE
BUSINESS ACTIVITIES CARRIED ON BY THE COMPANY OR BEING PLANNED BY THE COMPANY
WITH EMPLOYEE’S PARTICIPATION.
(ii) TO
APPROPRIATELY TAKE ACCOUNT OF THE HIGHLY COMPETITIVE ENVIRONMENT OF THE
COMPANY’S BUSINESSES, THE PARTIES AGREE THAT ANY BUSINESS ENGAGED IN ANY OF THE
ACTIVITIES SET FORTH ON SCHEDULE 2 SHALL BE DEEMED TO BE A COMPETITIVE BUSINESS
UNDER SUBPARAGRAPH (i) ABOVE.
(iii)
THIS RESTRICTION SHALL APPLY IN ANY GEOGRAPHIC AREA OF THE UNITED STATES IN
WHICH THE COMPANY CARRIES OUT BUSINESS ACTIVITIES. EMPLOYEE AGREES
THAT NOT SPECIFYING A MORE LIMITED GEOGRAPHIC AREA IS REASONABLE IN LIGHT OF THE
BROAD GEOGRAPHIC SCOPE OF THE ACTIVITIES CARRIED OUT BY THE COMPANY IN THE
UNITED STATES.
(iv) For
purposes of clarification of their intent, the parties agree that subparagraph
(i) above restricts Employee from working on the account, or otherwise for the
benefit, of a Competitive Business as a result of Employee’s working as an
employee, consultant or in any other capacity for a company or other entity that
provides consulting, advisory, lobbying or similar services to other
businesses.
(v)
Nothing herein shall prevent Employee from owning for investment up to one
percent (1%) of any class of equity security of an entity whose securities are
traded on a
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national
securities exchange or market. Further, nothing herein
shall prevent Employee from being employed or otherwise engaged in any private
equity or other financial services business (including related investing,
monitoring and management activities (including serving as a director)) as long
as the Employee is not employed by a Competitive Business as an officer or in
any other operational capacity.
(c) IF
EMPLOYEE TERMINATES EMPLOYMENT (OTHER THAN AS A RESULT OF A TERMINATION WITH
GOOD REASON) AT ANY TIME FOLLOWING THE REGULAR END DATE, THEN PROVIDED THE
COMPANY SO ELECTS BY WRITTEN NOTICE TO EMPLOYEE GIVEN WITHIN TEN (10) BUSINESS
DAYS OF SUCH TERMINATION: (i) THE PROVISIONS OF SUBPARAGRAPH (b)
ABOVE SHALL APPLY TO EMPLOYEE FOR A ONE-YEAR PERIOD FOLLOWING SUCH
TERMINATION, PROVIDED THAT FOR THE PURPOSES OF THIS SUBPARAGRAPH THE TERM
COMPETITIVE BUSINESS SHALL MEAN ANY OF THE FOLLOWING ENTITIES (OR THEIR
SUCCESSORS) THAT IS ENGAGED IN COMPETITION WITH THE COMPANY’S BUSINESSES,
DIRECTLY OR INDIRECTLY THROUGH ANY PARENT, SUBSIDIARY, AFFILIATE, JOINT VENTURE,
PARTNERSHIP OR OTHERWISE: AT&T INC.; DIRECTTV, INC.; DISH NETWORK
CORPORATION; ECHOSTAR HOLDING CORPORATION; QWEST COMMUNICATIONS INTERNATIONAL,
INC.; AND VERIZON COMMUNICATIONS, INC.; AND (ii) THE COMPANY SHALL PROVIDE TO
EMPLOYEE, FOR A ONE-YEAR PERIOD FOLLOWING SUCH TERMINATION, THE PAYMENTS AND
BENEFITS DESCRIBED IN SUBPARAGRAPHS 7(c)(i) AND 7(c)(iv) ON THE TERMS SET FORTH
THEREIN, AS IF THERE HAD BEEN NO TERMINATION.
(d) During
the Term and at all times thereafter, Employee shall not, directly or
indirectly, use for Employee’s personal benefit, or disclose 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 secret or
confidential information, knowledge or data of the Company or any of its
affiliates, employees, officers, directors or agents (“Confidential
Information”). Confidential Information includes, but is not limited
to: the terms and conditions of this Agreement; sales, marketing and other
business methods; policies, plans, procedures, strategies and techniques;
research and development projects and results; software and firmware; trade
secrets, know-how, processes and other intellectual property; information on or
relating to past, present or prospective employees or suppliers; and information
on or relating to past, present or prospective customers, including customer
lists. Notwithstanding the foregoing, Confidential Information does
not include information that: (i) is generally available to the public; (ii) is
available to Employee on a nonconfidential basis from a source other than the
Company, provided such source is not and was not bound by a confidentiality
agreement with the Company or otherwise prohibited from transmitting such
information to Employee by a contractual, legal or fiduciary obligation; or
(iii) has been independently developed by Employee, as evidenced by written
records. Employee agrees that Confidential Information is the
exclusive property of the Company, and agrees that, immediately upon Employee’s
termination of employment for any reason (including after the Term), Employee
shall deliver to the Company all correspondence, documents, books, records,
lists and other materials containing Confidential Information that are within
Employee’s possession or control, regardless of the medium in which such
materials are
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maintained. Employee
shall retain no copies thereof in any medium. Without limiting the
generality of the foregoing, Employee agrees neither to prepare, participate in
or assist in the preparation of any article, book, speech or other writing or
communication relating to the past, present or future business, operations,
personnel or prospects of the Company or its affiliates, nor to encourage or
assist others to do any of the foregoing, without the prior written consent of
the Company (which may be withheld in the Company’s sole
discretion). Nothing herein shall prevent Employee
from: (A) complying with a valid subpoena or other legal requirement
for disclosure of Confidential Information, provided that Employee shall use
good faith efforts to notify the Company promptly and in advance of disclosure
if Employee believes Employee is under a legal requirement to disclose
Confidential Information otherwise protected from disclosure under this
subparagraph; or (B) disclosing the terms and conditions of this Agreement to
Employee’s spouse or tax, accounting or legal advisors, or as necessary to
enforce this Agreement.
(e) Employee
acknowledges that the restrictions contained in this Paragraph 8, in light of
the nature of the businesses 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 or threatened violation of any of these restrictions: (i)
the Company shall have the right to suspend or terminate any unaccrued payment
obligations to Employee hereunder and/or Employee’s unaccrued rights under any
benefit plans and programs hereunder or thereunder (including in each case any
arising following termination of employment); and (ii) the Company shall be
entitled to seek from any court of competent jurisdiction: (A) preliminary
and permanent injunctive relief against Employee; (B) damages from Employee
(including the Company’s reasonable legal fees and other costs and expenses);
and (C) 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.
(f) Employee
agrees that if any portion of the restrictions contained in this Paragraph 8, or
the application thereof, is construed to be invalid or unenforceable, the
remainder of such restrictions or the application thereof shall not be affected
and the remaining restrictions shall have full force and effect without regard
to the invalid or unenforceable portions. If any restriction is held
to be unenforceable because of the 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.
(g) 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) shall not count toward or be included in any applicable
restrictive period.
(h) Employee
agrees that prior to accepting employment with any other person or entity at any
time during the one-year period following termination of employment referred to
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in
subparagraph (b)(i) or (c)(i) above, Employee will provide the prospective
employer with written notice of the provisions of this Paragraph 8, with a copy
of such notice provided simultaneously to the Company.
9. Non-Derogatory
Statements. While employed by the Company (whether during the
Term of thereafter), and for a period of five (5) years thereafter, Employee
shall not, in any communication with any person or entity, including any actual
or potential employer, customer, consultant, independent contractor, investor,
lender, service provider or supplier of the Company, or any third party media
outlet, make any significant derogatory or disparaging statements – orally,
written or otherwise – against the Company or any of its directors, officers,
agents, employees, contractors or affiliates (or any of their respective
directors, officers, agents, employees, contractors or
affiliates). The foregoing shall not be deemed to restrict Employee’s
obligations to testify truthfully in any proceeding or cooperate in any
governmental investigation.
10. Company
Property. Employee agrees that the Company owns, and is
entitled to receive all of the results and proceeds of, items produced or
created by Employee (including, without limitation, inventions, patents,
copyrights, trademarks, literary material and any other intellectual property),
alone or in collaboration with others, that: (i) relate to the
Company’s businesses, if produced or created during the period of Employee’s
employment by the Company (whether during the Term or thereafter and whether
during or outside working hours); or (ii) are produced or created during working
hours or using the Company’s information, assets, technology or facilities
(referred to collectively as the “Work”). Employee shall
disclose and furnish to the Company, promptly following the Company’s request or
immediately upon Employee’s termination of employment, any and all
Work. Employee expressly acknowledges and agrees that the Work is
specially ordered by the Company and shall be “works made-for-hire” under the
United States copyright laws. In the event that a court of competent
jurisdiction determines that any part of the Work is not made-for-hire, then
Employee hereby irrevocably transfers and shall be deemed to have assigned all
rights, title and interests in and to the Work to the Company, on an exclusive
basis, including any and all copyrights, trademarks, trade secrets, patents or
other proprietary rights, under the laws of the United States or of any other
jurisdiction or country, in perpetuity. Employee shall, at the
request of the Company, execute such documents as the Company may from time to
time reasonably deem necessary or desirable to evidence, establish, maintain,
protect, enforce and defend its title in and right to any such
Work. In the event Employee fails or is unable to execute any such
documents, Employee hereby appoints the Company as Employee’s attorney-in-fact
with the full right, power and authority to execute and deliver the same, with
full power of substitution and delegation, which appointment shall be deemed a
power coupled with an interest and shall be irrevocable under any and all
circumstances.
11.
Representations.
(a)
Employee represents that:
(i)
Employee has had the opportunity to retain and consult with legal counsel and
tax advisors of Employee’s choice regarding the terms of this
Agreement.
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(ii)
Subject to equitable principles, this Agreement is enforceable against Employee
in accordance with its terms.
(iii) This
Agreement, and the performance of Employee’s obligations hereunder, do not
conflict with, violate or give rise to any rights of third parties under, any
agreement, benefit plan or program, order, decree or judgment to which Employee
is a party or by which Employee is bound.
(b)
The Company represents that:
(i)
Subject to equitable principles, this Agreement is enforceable against the
Company in accordance with its terms.
(ii)
This Agreement, and the performance of the Company’s obligations hereunder, do
not conflict with, violate or give rise to any rights to third parties under,
any agreement, order, decree or judgment to which the Company is a party or by
which it is bound.
12.
Withholding. All
compensation under this Agreement is subject to applicable tax withholding
requirements and other deductions required by law.
13.
Section
409A.
(a) Notwithstanding
anything herein to the contrary or otherwise, except to the extent any expense,
reimbursement or in-kind benefit provided to Employee does not constitute a
“deferral of compensation” within the meaning of Section 409A of the Code, and
its implementing regulations and guidance, (i) the amount of expenses eligible
for reimbursement or in-kind benefits provided to Employee during any calendar
year will not affect the amount of expenses eligible for reimbursement or
in-kind benefits provided to Employee in any other calendar year, (ii) the
reimbursements for expenses for which Employee is entitled to be reimbursed
shall be made on or before the last day of the calendar year following the
calendar year in which the applicable expense is incurred and (iii) the right to
payment or reimbursement or in-kind benefits hereunder may not be liquidated or
exchanged for any other benefit.
(b) For
purposes of the application of Treas.Reg.§1.409A-1(b)(4) (or any successor
provision), each payment in a series of payments provided to Employee pursuant
to this Agreement will be deemed a separate payment.
(c) Notwithstanding
any other provision of this Agreement to the contrary, any payment or benefit
described in Paragraph 7 that represents a “deferral of compensation” within the
meaning of Section 409A of the Code shall only be paid or provided to Employee
upon his “separation from service” within the meaning of Treas.Reg.§1.409A-1(h)
(or any successor regulation). To the extent compliance with the
requirements of Treas.Reg.§1.409A-3(i)(2) (or any successor provision) is
necessary to avoid the application of an additional tax under Section 409A of
the Code to payments due to Employee upon or following his “separation from
service,” then notwithstanding any other provision of this Agreement (or any
otherwise applicable plan, policy,
11
agreement
or arrangement), any such payments that are otherwise due within six months
following Employee’s “separation from service” will be deferred (without
interest) and paid to Employee in a lump sum immediately following that six
month period. In the event Employee dies during that six month
period, the amounts deferred on account of Treas.Reg.§1409A-3(i)(2) (or any
successor provision) shall be paid to the personal representatives of the
Employee’s estate within sixty (60) days following Employee’s
death. This provision shall not be construed as preventing payments
pursuant to Paragraph 7 equal to an amount up to two (2) times the lesser of (i)
Employee’s annualized compensation for the year prior to his “separation from
service” and (ii) the maximum amount that may be taken into account under a
qualified plan pursuant to section 401(a)(17) of the Code, being paid to
Employee in the first six months following his “separation from
service.”
(d) Anything
to the contrary herein notwithstanding, all benefits or payments provided by the
Company to Employee that would be deemed to constitute “nonqualified deferred
compensation” within the meaning of Section 401A of the Code are intended to
comply with Section 409A of the Code. Notwithstanding anything in
this Agreement to the contrary, distributions may only be made under this
Agreement upon an event and in a manner permitted by Section 409A of the Code or
an applicable exemption.
14. Successors.
(a)
If the Company merges into, or transfers all or substantially all of its assets
to, or as part of a reorganization, restructuring or other transaction becomes a
subsidiary of, another entity, such other entity shall be deemed to be the
successor to the Company hereunder, and the term “Company” as used herein shall
mean such other entity as is appropriate, and this Agreement shall continue in
full force and effect.
(b)
If the Company transfers part of its assets to another entity owned by the
shareholders of the Company (or any substantial portion of them), or distributes
stock or other interests in a subsidiary or affiliate of the Company to the
shareholders of the Company (or any substantial portion of them), and Employee
works for the portion of the Company or the entity so transferred, then such
other entity shall be deemed the successor to the Company hereunder, the term
“Company” as used herein shall mean such other entity, and this Agreement shall
continue in full force and effect.
15. WAIVER OF
RIGHT TO TRIAL BY JURY. TO THE EXTENT PERMITTED
BY APPLICABLE LAW, THE COMPANY AND EMPLOYEE HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT EITHER THEY OR THEIR HEIRS, EXECUTORS,
ADMINISTRATORS, PERSONAL REPRESENTATIVES, SUCCESSORS OR ASSIGNS MAY HAVE TO A
TRIAL BY JURY IN ANY LITIGATION BASED ON OR RELATING TO THIS
AGREEMENT. BY WAIVING THE RIGHT TO A JURY TRIAL, NEITHER PARTY
IS WAIVING A RIGHT TO XXX THE OTHER; RATHER, THE PARTIES ARE SIMPLY WAIVING THE
RIGHT TO HAVE A JURY DECIDE THE CASE.
16. LIMITATION
ON DAMAGES. EMPLOYEE AGREES THAT,
UNLESS
12
PROHIBITED BY APPLICABLE LAW, AND
EXCEPT AS EXPRESSLY AVAILABLE IN AN APPLICABLE FEDERAL, STATE OR LOCAL STATUTE
OR ORDINANCE, EMPLOYEE’S REMEDY FOR BREACH OF THIS AGREEMENT OR ANY OTHER CLAIM
OR CAUSE OF ACTION ARISING OUT OF EMPLOYEE’S EMPLOYMENT SHALL BE LIMITED TO
ACTUAL ECONOMIC DAMAGES, AND EMPLOYEE SHALL NOT BE PERMITTED TO MAKE ANY CLAIM
FOR OR RECOVER (a) PUNITIVE, EXEMPLARY, COMPENSATORY (OTHER THAN BASED ON ACTUAL
ECONOMIC LOSS), EMOTIONAL DISTRESS, OR SPECIAL DAMAGES OR (b) ATTORNEYS’
FEES.
17. Jurisdiction. Litigation
concerning this Agreement, if initiated by or on behalf of Employee, shall be
brought only in a state court in Philadelphia County, Pennsylvania or federal
court in the Eastern District of Pennsylvania, or, if initiated by the Company,
in either such jurisdiction or in a jurisdiction in which Employee then resides
or works. Employee consents to jurisdiction in any such jurisdiction,
regardless of the location of Employee’s residence or place of
business. Employee and the Company irrevocably waive any objection,
including any objection to the laying of venue or based on the grounds of forum
non conveniens, which Employee or the Company may now or hereafter have to the
bringing of any action or proceeding in any such
jurisdiction. Employee and the Company acknowledge and agree that any
service of legal process by mail constitutes proper legal service of process
under applicable law in any such action or proceeding. In any such
litigation, the prevailing party shall be entitled to reimbursement from the
other party for all costs of defending or maintaining such action, including
reasonable attorneys’ fees.
18. Governing
Law. This Agreement shall be interpreted and enforced in
accordance with the substantive law of the Commonwealth of Pennsylvania, without
regard to any choice-of-law doctrines.
19. Notices. All
notices referred to in this Agreement shall be given in writing and shall be
effective: (a) if given by fax, when transmitted to the number below
(with an appropriate confirmation received); or (b) if given by registered or
certified mail, when received at the address below (with an appropriate receipt
received):
if to the
Company:
c/o
Comcast Corporation
Xxx
Xxxxxxx Xxxxxx
Xxxxxxxxxxxx,
XX 00000
Attention: General
Counsel
Fax:
(000) 000-0000; and
if to
Employee:
Employee’s
address and fax number (if any) as indicated in the Company’s
records.
13
20. Entire
Agreement. This Agreement (including Schedules 1 and 2 hereto)
constitutes the entire agreement of the parties with respect to the subject
matter hereof, and supersedes and replaces in its entirety the Employment
Agreement dated on November 20, 2006 between the parties, provided that any
accrued rights and obligations of the parties thereunder as of the date hereof
shall be unaffected by the execution of this Agreement. In the event
of any conflict between the terms of this Agreement and the terms of any plans
or policies of the Company (including the Employee Handbook), the terms of this
Agreement shall control.
21. 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.
22. Amendments and
Waivers. No amendment or waiver of this Agreement or any
provision hereof shall be binding upon the party against whom enforcement of
such amendment or waiver is sought unless it is made in writing and signed by or
on behalf of such party. The waiver by either party of a breach of
any provision of this Agreement by the other party shall not operate or be
construed as a waiver or a continuing waiver by that party of the same or any
subsequent breach of any provision of this Agreement by the other
party.
23. Binding Effect; No
Assignment. This Agreement shall be binding on and inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns, except that (other than to effect the
provisions of Paragraph 14) it may not be assigned by either party without the
other party’s written consent.
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement
as of the date first-above written.
| COMCAST CORPORATION | ||||
| By: | /s/ Xxxxxx X. Block | |||
| Date: | 12/18/09 | |||
| EMPLOYEE: | ||||
| /s/ Xxxxxxx X. Xxxxxxxxx | ||||
| Xxxxxxx X. Xxxxxxxxx | ||||
| Date: | 12/18/09 | |||
14
SCHEDULE 1 TO EMPLOYMENT
AGREEMENT WITH XXXXXXX X. XXXXXXXXX
|
1.
|
Position:
|
Executive
Vice President and Chief Financial Officer, Comcast
Corporation.
|
|
2.
|
Signing
Bonus Amount and Terms: $1,500,000; provided that Employee
shall be required to reimburse the Company for 100% of the amount of each
signing bonus in the event a Termination With Cause or Termination Without
Good Reason occurs within six months of the date thereof, or fifty percent
(50%) of the amount of the signing bonus if either such event occurs
following six months but within one year of the date
thereof.
|
|
3.
|
Restricted
Stock Amount and Vesting Schedule: units for shares having a
market value of approximately $3,000,000; vesting: 100% on the
thirteen-month anniversary of the date of grant. Employee shall
remain subject to the Company’s Stock Ownership
Policy.
|
|
4.
|
Cash
Bonus. Target bonus potential under the Cash Bonus
Plan: 300% of eligible earnings
(i.e.,
the amount of Base Salary actually paid in the calendar
year).
|
|
5.
|
Base
Salary and Health and Welfare Benefits Continuation Period following
Termination Without
Cause or Termination With Good Reason: Twenty-four (24)
months.
|
|
6.
|
Restricted
Stock and Stock Option Plan Grants Continued Vesting Period following
Termination Without Cause or Termination With Good
Reason: Twelve (12) months. Stock Option Plan Grants
Continued Exercisability Period following Termination Without Cause or
Termination With Good Reason: the lesser of fifteen (15) months
or the end of the stock option’s
term.
|
15
SCHEDULE
2
COMPETITIVE BUSINESS
ACTIVITIES
|
|
A.
|
The
distribution of video programming to consumer or commercial customers or
users, whether by analog or digital technology, to any type of end-user
equipment (television, computer, phone, personal digital
assistant or other), and by any distribution method (including
coaxial cable, fiber optic cable, digital subscriber line, power line,
satellite, wireless and Internet) or protocol (IP or
other). Employee agrees that the following companies (or their
parents, subsidiaries or controlled affiliates), and their successors and
assigns, are among those engaged in competitive video programming
distribution as of the date hereof: Xxxxxx.xxx, Inc.; Apple
Inc.; AT&T Inc.; Bright House Networks; Cablevision Systems Corp.;
Charter Communications, Inc.; Xxx Communications, Inc.; DirecTV, Inc.;
DISH Network Corporation; EchoStar Holding Corporation; Everest; Facebook,
Inc.; Flixster, Inc; Google, Inc. (including YouTube); Joost Operations
S.A.; Knology Holdings, Inc.; Microsoft Corporation (including Xbox); N-F
NewSite, LLC d/b/a xxxx.xxx; Qwest Communications International, Inc.; RCN
Corporation; Roku, Inc.; Time Warner Cable, Inc.; TiVo Inc.; Verizon
Communications, Inc.; VUDU, Inc.; and Wide Open
West.
|
|
|
B.
|
The
provision of Internet access or portal service (including related
applications and services) to consumer or commercial customers or users,
whether by analog or digital technology, to any type of end-user equipment
(television, computer, phone, personal digital assistant or other), and by
any distribution method (including dial-up, coaxial cable, fiber optic
cable, digital subscriber line, power line, satellite and wireless) or
protocol (IP or other). Employee agrees that the following
companies (or their parents, subsidiaries or controlled affiliates), and
their successors and assigns, are among those engaged in competitive
high-speed Internet access and/or portal service as of the date
hereof: AT&T Inc.; Bright House Networks; Cablevision
Systems Corp.; Charter Communications Inc.; Clearwire Corporation; Xxx
Communications, Inc.; DirecTV, Inc.; DISH Network Corporation; EchoStar
Holding Corporation; Google, Inc.; Knology Holdings, Inc.; Microsoft
Corporation (including MSN); Qwest Communications International, Inc.; RCN
Corporation; Sprint Nextel Corporation; Time Warner Cable, Inc.; Time
Warner Inc. (including AOL); Verizon Communications, Inc.; and Yahoo,
Inc.
|
|
|
C.
|
The
provision of voice and/or data service to consumer or commercial customers
or users, whether by analog or digital technology, by any distribution
method (including coaxial cable, fiber optic cable, digital subscriber
line, power line, satellite, wireless and Internet) or protocol (IP or
other). Employee agrees that the following companies (or their
parents, subsidiaries or controlled affiliates), and their successors and
assigns, are among those engaged in competitive voice and/or data service
as of the date hereof: AT&T Inc.; Bright House Networks;
Cablevision Systems Corp.; Charter Communications, Inc.; Clearwire
Corporation; Xxx Communications, Inc.; DirecTV, Inc.; DISH Network
Corporation; EchoStar Holding Corporation; Embarq Corporation;
|
16
|
|
|
Google,
Inc.; Knology Holdings, Inc.; Qwest Communications International, Inc.;
RCN Corporation; Sprint Nextel Corporation; Skype Limited; Time Warner
Cable, Inc.; Vonage Holdings Corp.; Verizon Communications, Inc.; and Wide
Open West.
|
|
|
D.
|
The
provision of wireless communications services to consumer or commercial
customers or users, whether by analog or digital technology, to any type
of end-user equipment (television, computer, phone, personal digital
assistant or other) and by any technology or protocol (IP or
other). Employee agrees that the following companies (or their
parents, subsidiaries or controlled affiliates), and their successor and
assigns, are among those engaged in the provision of competitive wireless
service as of the date hereof: AT&T Inc.; Boingo Wireless,
Inc.; Bright House Networks; Clearwire Corporation; Leap Wireless
International, Inc.; MediaFLO USA, Inc.; MetroPCS Communications, Inc.;
Sprint Nextel Corporation; T-Mobile USA, Inc.; and Verizon Communications,
Inc.
|
|
|
E.
|
The
(i) creation, (ii) production or (iii) sale, license or other provision,
of audio and/or video program content, whether for use by program content
providers, broadcast, satellite or other program networks, distributors of
program content, or providers of high-speed Internet portal or other
Internet-based services or websites. Employee agrees that the
following companies (or their parents, subsidiaries or controlled
affiliates), and their successors and assigns, are among those engaged in
the competitive creation, production or provision of audio and/or video
program content as of the date hereof: A&E Television
Networks; Cablevision Systems Corp. (including Rainbow); CBS Corporation;
Xxx Communications, Inc.; Discovery Communications, Inc.; Epix Joint
Venture; XX Xxxxxxx Co.; General Electric Co. (including NBC-Universal);
Google, Inc. (including YouTube); IAC/InterActive Corp; Liberty Media
Corp.; Metro-Xxxxxxx-Xxxxx Inc.; News Corp. (including Fox and MySpace);
Sony Corporation of America; The Xxxx Disney Company, Inc. (including
ABC); Time Warner Inc. (including AOL, Xxxxxx and Xxxxxx Bros.); and
Viacom Inc. (including Dreamworks and
Paramount).
|
|
|
F.
|
The
provision of Internet-based products or services to consumer or commercial
users. Employee agrees that the following companies (or their parents,
subsidiaries or controlled affiliates), and their successors and assigns,
are among those engaged in providing competitive Internet-based products
and services as of the date hereof: AT&T Inc.; BitTorrent,
Inc.; Bright Cove, Inc.; CBS Interactive Inc. (including CNET); Facebook,
Inc.; Flixster, Inc.; Friendfeed Inc.; Google, Inc. (including YouTube);
xxxx.xxx; Joost Operations S.A.; LinkedIn Corporation; Microsoft
Corporation (including MSN); News Corp. (including MySpace); RealNetworks,
Inc.; The Xxxx Disney Company, Inc.; Time Warner Inc. (including AOL);
TiVo Inc.; Verizon Communications, Inc.; XING AG; Xobni Corporation; and
Yahoo, Inc.
|
|
|
G.
|
The
creation, development, enhancement, testing, deployment, operation,
licensing or sale of software or other technology used in any of the
products or services described in A to F
above.
|
17
