FIRST AMENDMENT TO CONSULTING AGREEMENT
FIRST AMENDMENT (the "Amendment"), dated as of May 26, 2004, to the
CONSULTING AGREEMENT (the "Agreement"), made as of May 26, 2004, by and between
Comcast Corporation, a Pennsylvania corporation (together with its successors
and assigns permitted under this Agreement, the "Company") and C. Michael
Armstrong (the "Consultant").
WITNESSETH:
WHEREAS, the Consultant is employed by the Company pursuant to the
Employment Agreement;
WHEREAS, the Consultant has elected to retire from his position as
Non-Executive Chairman of the Board and to retire from employment with the
Company, effective May 26, 2004;
WHEREAS, the Agreement reflects the Company's desire to retain the
benefit of the Consultant's knowledge and experience by retaining the
Consultant, and the Consultant's desire to accept such position, for the term
and upon the other conditions set forth in the Agreement;
WHEREAS, the Company and the Consultant wish to supplement the
conditions stated in the Agreement to permit Consultant to defer the receipt of
Consultant Compensation on the same basis as if the Consultant's employment were
continuing through the term of the Agreement;
NOW, THEREFORE, pursuant to Section 18 of the Agreement, and in
consideration of the mutual promises and agreements contained herein and for
other good and valuable consideration, the receipt of which is mutually
acknowledged, the Company and the Consultant hereby amend the Agreement as
follows:
SECTION 1. Definitions. All capitalized terms shall have the same
meanings as set forth in the Agreement, or as defined in this Amendment as
follows:
(a) "Account" means the bookkeeping account established and maintained
by the Company in the name of the Consultant, to which all amounts deferred and
earnings allocated under the Amendment shall be credited, and from which all
amounts distributed pursuant to the Amendment shall be debited.
(b) "Applicable Interest Rate" means:
(i) Except as otherwise provided in Section 1(b)(ii), the
interest rate that, when compounded daily pursuant to rules established under
the Deferred Compensation Plan from time to time, is mathematically equivalent
to 12% per annum, compounded annually, or such other rate as generally applies
to active participants in the Deferred Compensation Plan as in effect from time
to time.
(ii) Effective for the period beginning at the end of the Term
until the date the Account is distributed in full, the Prime Rate plus one
percent.
(c) "Consultant Compensation" means the amounts described in Section 5
of the Agreement.
(c) "Deferred Compensation Plan" means the Comcast Corporation 2002
Deferred Compensation Plan, as amended from time to time.
(d) "Income Fund" means a hypothetical investment fund pursuant to
which income, gains and losses are credited to the Account as if the Account
were credited with interest at the Applicable Interest Rate.
(c) "Initial Election" means a written election on a form provided by
the Company, pursuant to which the Consultant may:
(i) Elect to defer all or any portion of the Consultant
Compensation earned following the time that such election is filed; and
(ii) Designate the time of payment of the deferred Consultant
Compensation to which the Initial Election relates.
(d) "Prime Rate" means, for any calendar year, the interest rate that,
when compounded daily pursuant to rules established under the Deferred
Compensation Plan from time to time, is mathematically equivalent to the prime
rate of interest (compounded annually) as published in the Eastern Edition of
The Wall Street Journal on the last business day preceding the first day of such
calendar year, and as adjusted as of the last business day preceding the first
day of each calendar year beginning thereafter.
(e) "Subsequent Election" means a written election on a form provided
by the Company, pursuant to which the Consultant (or his beneficiaries) may
elect to defer (or, in limited cases, accelerate) the time of payment or to
change the manner of payment of amounts previously deferred in accordance with
the terms of a previously made Initial Election or Subsequent Election.
SECTION 2. Election to Defer Receipt of Compensation..
(a) Elections.
(i) Initial Elections. Notwithstanding Section 5 of the
Agreement, the Consultant shall have the right to defer all or any portion of
the Consultant Compensation that he would otherwise be entitled to receive in a
calendar year by filing an Initial Election at the time and in the manner
described in this Section 2. The Consultant Compensation for a calendar year
shall be reduced in an amount equal to the portion of the Consultant
Compensation deferred by the Consultant for such calendar year pursuant to the
Consultant's Initial Election.
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(ii) Subsequent Elections. The Consultant shall have the right
to elect to defer the time of payment or to change the manner of payment of
amounts previously deferred in accordance with the terms of a previously made
Initial Election by filing a Subsequent Election at the time, to the extent, and
in the manner described in this Section 2.
(b) Filing of Initial Election.
(i) The Consultant may make an Initial Election on a form
provided by the Company for this purpose. An Initial Election with respect to
Consultant Compensation earned in calendar year 2004 shall be effective only if
it is made within 30 days after the commencement of the Term of the Agreement
(and may apply only with respect to Consultant Compensation payable after the
Consultant files the Initial Election with the Company). An Initial Election
with respect to Consultant Compensation earned in any calendar year beginning
after 2004 shall be effective only if it is made on or before December 31 of the
calendar year preceding the calendar year to which the Initial Election applies.
(ii) Contemporaneously with an Initial Election, the
Consultant shall also elect the time of payment of the amount of the deferred
Consultant Compensation to which such Initial Election relates; provided,
however, that except as otherwise provided in this Amendment, no distribution
may commence earlier than January 2nd of the second calendar year beginning
after the date the Initial Election is filed with the Company, nor later than
January 2nd of the eleventh calendar year beginning after the date the Initial
Election is filed with the Company. Further, the Consultant may select with each
Initial Election the manner of distribution in accordance with Section 3 of this
Amendment.
(c) Subsequent Elections.
(i) During the Term. Following an Initial Election or
Subsequent Election, and during the Term, the Consultant may elect to change the
manner of distribution or defer the time of payment of any part or all of the
Account for a minimum of two and a maximum of ten additional years from the
previously-elected payment date, by filing a Subsequent Election with the
Company on or before the close of business on June 30 of the calendar year
preceding the calendar year in which the lump-sum distribution or initial
installment payment would otherwise be made. The Consultant may not make any
Subsequent Elections after the Term.
(ii) Following the Consultant's Death: Surviving Spouse as
Beneficiary. If the Consultant designates his surviving spouse as the
beneficiary of all or a portion of the Account, the surviving spouse may elect
to change the time and manner of distribution of the portion of the Account
subject to the beneficiary designation on the same basis and subject to the same
rules as if the Account were held under the Deferred Compensation Plan and the
surviving spouse were named as the Consultant's beneficiary thereunder.
(iii) Following the Consultant's Death: Beneficiary Other Than
the Surviving Spouse. If the Consultant designates an individual other than his
surviving spouse as the beneficiary of all or a portion of the Account, such
individual may elect to change the time and manner of distribution of the
portion of the Account subject to the beneficiary designation on
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the same basis and subject to the same rules as if the Account were held under
the Deferred Compensation Plan and such individual were named as the
Consultant's beneficiary thereunder.
(iv) Most Recently Filed Initial Election or Subsequent
Election Controlling. Unless the distribution of the Account is subject to
acceleration pursuant to Section 2(c)(ii) or Section 2(c)(iii), no distribution
of the amounts credited to the Account shall be made before the payment date
designated by the Consultant (or his beneficiary) on the most recently filed
Initial Election or Subsequent Election.
SECTION 3. Manner of Distribution.
(a) Manner of Distribution. Amounts credited to an Account
shall be distributed, pursuant to an Initial Election or Subsequent Election in
either (i) a lump sum payment or (ii) substantially equal annual installments
over a five (5), ten (10) or fifteen (15) year period or (iii) substantially
equal monthly installments over a period not exceeding fifteen (15) years.
(b) Small Balances. Notwithstanding any Initial Election or
Subsequent Election to the contrary:
(i) Distributions pursuant to Initial Elections or
Subsequent Elections shall be made in one lump sum payment unless the portion of
the Account subject to distribution, as of both the date of the Initial Election
or Subsequent Election and the benefit commencement date, has a value of more
than $10,000; and
(ii) Following the end of the Term, if the amount
credited to the Account has a value of $25,000 or less, the Company may, in its
sole discretion, direct that such amount be distributed to the Consultant (or
his beneficiary, as applicable) in one lump sum payment.
SECTION 4. Crediting of Income, Gains and Losses on Account. The
Company shall credit income, gains and losses with respect to the Account as if
it were invested in the Income Fund.
SECTION 5. Status of Deferred Amounts. All Consultant Compensation
deferred under this Amendment shall continue for all purposes to be a part of
the general funds of the Company.
SECTION 6. Consultant's and Beneficiaries' Status as General Creditors.
The Account shall at all times represent a general obligation of the Company.
The Consultant (and his beneficiaries) shall be general creditors of the Company
with respect to this obligation, and shall not have a secured or preferred
position with respect to the Accounts. Nothing contained herein shall be deemed
to create an escrow, trust, custodial account or fiduciary relationship of any
kind. Nothing contained herein shall be construed to eliminate any priority or
preferred position of a the Consultant (or his beneficiaries) in a bankruptcy
matter with respect to claims for wages.
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SECTION 7. No Alienation of Benefits. Except as otherwise
required by applicable law, the right of the Consultant (and his beneficiaries)
to any benefit or interest under any of the provisions of this Amendment shall
not be subject to encumbrance, attachment, execution, garnishment, assignment,
pledge, alienation, sale, transfer, or anticipation, either by the voluntary or
involuntary act of the Consultant (or the Consultant's beneficiaries) or by
operation of law, nor shall such payment, right, or interest be subject to any
other legal or equitable process.
SECTION 8. Death of Consultant.
(a) Death of Consultant. The Consultant's Account shall be
distributed in accordance with the last Initial Election or Subsequent Election
made by the Consultant before his death, unless the Consultant's surviving
spouse or other beneficiary timely elects to accelerate or defer the time or
change the manner of payment pursuant to Section 2(c)(ii) or Section 2(c)(iii).
(b) Designation of Beneficiaries. The Consultant (and his
beneficiaries) shall have the right to designate one or more beneficiaries to
receive distributions in the event of the Consultant's (or his beneficiaries')
death by filing with the Company a beneficiary designation on the form provided
by the Company for such purpose. The designation of a beneficiary or
beneficiaries may be changed by the Consultant or his beneficiaries at any time
prior to their death by the delivery to the Company of a new beneficiary
designation form.
SECTION 9. Interpretation; Notices. The purpose of this
Amendment is to permit the Consultant to defer the receipt of his Consultant
Compensation on substantially the same basis as if the Consultant Compensation
constituted "compensation" eligible for deferral under the terms and conditions
of the Comcast Corporation 2002 Deferred Compensation Plan, and the Amendment
shall be construed consistent with such purpose. If the Consultant or his
beneficiaries do not receive timely payment of benefits to which such individual
believes he or she is entitled under the Amendment, such individual may make a
claim for benefits to the Company which shall be administered on substantially
the same basis as would apply if such claim were a claim for benefits under the
Deferred Compensation Plan. Claims for benefits under the Amendment, and all
other filings referenced in the Amendment, shall be treated as notices pursuant
to the Agreement.
SECTION 10. Withholding of Taxes. Whenever the Company is
required to credit deferred Consultant Compensation to the Account, the Company
shall have the right to require the Consultant to remit to the Company an amount
sufficient to satisfy any federal, state and local withholding tax requirements
prior to the date on which the deferred Consultant Compensation shall be deemed
credited to the Account, or take any action whatever that it deems necessary to
protect its interests with respect to tax liabilities. The Company's obligation
to credit deferred Consultant Compensation to the Account shall be conditioned
on the Consultant's compliance, to the Company's satisfaction, with any
withholding requirement. To the maximum extent possible, the Company shall
satisfy all applicable withholding tax requirements by withholding tax from
other Consultant Compensation or other compensation payable by the Company to
the Consultant, or by the Consultant's delivery of cash to the Company in an
amount equal to the applicable withholding tax, as determined by the Company in
good faith.
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SECTION 11. Miscellaneous Provisions.
(a) Effect of Amendment. This Amendment is intended only to
amend Section 5 of the Agreement, relating to the timing of payment of
Consultant Compensation, as provided in this Amendment. Each other provision of
the Agreement shall continue in full force and effect.
(b) Tax Matters. The Consultant acknowledges that:
(i) The Company has advised him to consult his tax
advisor with respect to the federal, state and local income tax consequences of
making Initial Elections and Subsequent Elections pursuant to the Amendment.
(ii) The Company has delivered to him a copy of the
Prospectus for the Deferred Compensation Plan and he has read the provisions of
the Prospectus relating to tax consequences.
(c) Counterparts. This Amendment may be executed in
counterparts.
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IN WITNESS WHEREOF, the undersigned have executed this
Amendment on May 26, 2004.
COMCAST CORPORATION
By:/s/ Arthur R. Block
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Name: Arthur R. Block
Title: Senior Vice President,
General Counsel and
Secretary
/s/ C. Michael Armstrong
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C. Michael Armstrong