Disclaimer
The SEC Filings on this page are provided by EDGAR (www.sec.gov), the Electronic Data Gathering, Analysis, and Retrieval System of the U.S. Securities and Exchange Commission (SEC). EDGAR performs automated collection, validation, indexing, acceptance, and forwarding of submissions by companies and others who are required by law to file forms with the SEC. The information here is provided for your convenience only. Comcast has no control over the information provided by EDGAR and cannot guarantee the sequence, accuracy, or completeness of any information or data displayed through EDGAR. Accordingly, Comcast does not accept any responsibility for the content or use of any information obtained through EDGAR.
Consult Your Tax Advisor
The information in this document represents our understanding of federal income tax laws and regulations, but does not constitute personal tax advice based on your specific situation. It does not purport to be complete or to describe the consequences that may apply to you given your particular taxes. You should consult your own tax advisor regarding the applicability of any state, local and foreign tax laws.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 10)
COMCAST CORPORATION
(Name of Issuer)
CLASS A COMMON STOCK, $1.00 PAR VALUE
(Title of Class of Securities)
--------------
200 30010 1
(CUSIP Number)
DAVIS POLK & WARDWELL
450 Lexington Avenue
New York, New York 10017
Attention: William L. Taylor, Esq.
Tel No.:
(212) 450-4000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 19, 2001
(Date of Event Which Requires Filing of This Statement)
(Continued on following pages)
(Page 1 of 7 Pages)
Page 2 of 7 pages
- -------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON: BRIAN L. ROBERTS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON:
- -------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [ ]
- -------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------
4. SOURCE OF FUNDS* -- OO
- -------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
- -------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION -- U.S.A.
- -------------------------------------------------------------------------------
NUMBER OF SHARES 7. SOLE VOTING POWER -- 9,581,287
BENEFICIALLY -----------------------------------------
OWNED BY 8. SHARED VOTING POWER -- 1,356
EACH -----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER -- 9,581,287
PERSON WITH -----------------------------------------
10. SHARED DISPOSITIVE POWER -- 1,356
- -------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON -- 9,582,643
- -------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) -- 30.6%
(treating 9,444,375 shares of convertible Class B Common Stock held
by Sural LLC as outstanding shares of Class A Common Stock)
- -------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON* -- IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 3 of 7 pages
- -------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON: SURAL LLC
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON:
- -------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X
(b) [ ]
- -------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------
4. SOURCE OF FUNDS* -- OO
- -------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
- -------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION -- DELAWARE
- -------------------------------------------------------------------------------
NUMBER OF SHARES 7. SOLE VOTING POWER -- 9,581,287
BENEFICIALLY -----------------------------------------
OWNED BY 8. SHARED VOTING POWER -- 0
EACH -----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER -- 9,581,287
PERSON WITH -----------------------------------------
10. SHARED DISPOSITIVE POWER -- 0
- -------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON -- 9,581,287
- -------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) -- 30.6%
(treating 9,444,375 shares of convertible Class B Common Stock held
by Sural LLC as outstanding shares of Class A Common Stock)
- -------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON* -- OO
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 4 of 7 pages
The following information amends the Schedule 13D dated May 12, 1980, as
previously amended (as so amended, the "Schedule 13D").
Unless otherwise indicated, each capitalized term used but not defined
herein shall have the meaning assigned to such term in the Schedule 13D.
Item 2. Identity and Background
On September 11, 2001, Sural Corporation merged with and into Sural LLC, a
newly formed Delaware limited liability company ("Sural"). Sural was the
surviving entity in the merger. Its managing member is Brian L. Roberts, who
holds approximately 72% of its outstanding units of membership interests.
Sural's principal place of business and executive offices are at 1105 North
Market Street, Suite 1219, Wilmington, Delaware 19801.
Item 4. Purpose of Transaction
(a) On December 19, 2001, Comcast entered into an Agreement and Plan of
Merger (the "Merger Agreement") with AT&T Corp., a New York corporation
("AT&T"), AT&T Broadband Corp., a Delaware corporation and a wholly owned
subsidiary of AT&T ("AT&T Broadband"), AT&T Comcast Corporation, a Pennsylvania
corporation ("Parent"), AT&T Broadband Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Parent, and Comcast Acquisition
Corp., a Pennsylvania corporation and a wholly owned subsidiary of Parent,
which provides, among other things, that each of Comcast and AT&T Broadband
will merge with and become a wholly-owned subsidiary of Parent (the "Mergers").
In connection with the Merger Agreement, on December 19, 2001, Sural and
Brian L. Roberts entered into a Support Agreement (the "Support Agreement")
with AT&T, Comcast and Parent. The Support Agreement provides, among other
things, that Sural will vote its shares of Comcast voting stock: (i) in favor
of adoption of the Merger Agreement and approval of the transactions
contemplated by the Merger Agreement, (ii) against any action or agreement that
would reasonably be expected to result in a breach of any covenant,
representation or warranty or any other obligation or agreement of Comcast
under the Merger Agreement or that would reasonably be expected to result in
any of the conditions to the obligations of the parties under the Merger
Agreement not being fulfilled, (iii) in favor of any other matter relating to
the consummation of the transactions contemplated by the Merger Agreement with
respect to which Sural may be entitled to vote and (iv) against any other
matter that would reasonably be expected to prevent, interfere with or delay
consummation of the transactions contemplated by the Merger Agreement,
including any transaction that would result in a breach of the Merger Agreement
by Comcast.
In addition, Sural has agreed in the Support Agreement not to transfer
ownership of any of the shares of Parent Class B Common Stock it will receive
in the Mergers prior to the tenth anniversary of the completion of the Mergers,
except to certain permitted transferees or in a transaction that is approved by
disinterested directors and shareholders, and Brian L. Roberts has
Page 5 of 7 pages
agreed not to transfer ownership of any of his securities or other equity
interests in Sural prior to the tenth anniversary of the completion of the
Mergers, except to certain permitted transferees or in a transaction that is
approved by disinterested directors and shareholders. Under the terms of the
Support Agreement, each permitted transferee of any of such securities will be
required to agree, as a condition to such transfer, to the same transfer
restrictions.
Sural has further agreed in the Support Agreement that, after the
completion of the Mergers and until April 2005, Sural will vote its shares of
Parent Class B Common Stock against any proposed amendment to Article SIXTH of
the Articles of Incorporation of Parent (the Article setting forth, among other
things, the composition of the Parent Board of Directors and other Parent
governance arrangements, in each case after completion of the Mergers). Sural
has further agreed in the Support Agreement that if Brian L. Roberts dies or
becomes incapable of performing his duties prior to the fifth anniversary of
the completion of the Mergers, then, unless Ralph J. Roberts has sole voting
power in respect of the election of directors with respect to all outstanding
shares of Parent Class B Common Stock, from the date of his death or inability
to perform his duties until the fifth anniversary of the completion of the
Mergers, Sural will vote its shares of Parent Class B Common Stock in any
election of Parent directors in the same proportion as the holders of shares of
Parent Common Stock (other than Parent Class B Common Stock and any other
voting shares of Parent owned by Brian L. Roberts or Sural) vote in such
election of directors. Under the terms of the Support Agreement, each permitted
transferee of any of such securities will also be required to agree, as a
condition to such transfer, to the same voting obligations.
Copies of the Merger Agreement and the Support Agreement are filed as
Exhibits 1 and 2, respectively, hereto and are incorporated herein by
reference. The description herein of certain provisions of the Merger Agreement
and the Support Agreement are qualified in their entirety by reference thereto.
(b) Except as described in subparagraph (a) above, neither Brian L.
Roberts, Sural nor any executive officer or director of Sural has any present
plans or proposals that relate to or would result in:
(i) the acquisition by any person of additional securities of
Comcast, or the disposition of securities of Comcast;
(ii) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving Comcast or any of its
subsidiaries;
(iii) a sale or transfer of a material amount of assets of Comcast or
any of its subsidiaries;
(iv) any change in the present board of directors or management of
Comcast, including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the board;
Page 6 of 7 pages
(v) any material change in the present capitalization or dividend
policy of Comcast;
(vi) any other material change in Comcast's business or corporate
structure;
(vii) changes in Comcast's charter, bylaws or instruments
corresponding thereto or other actions which may impede the acquisition of
control of Comcast by any person;
(viii) causing a class of securities of Comcast to be delisted from a
national securities exchange or to cease to be authorized to be quoted in
an inter-dealer quotation system of a registered national securities
association;
(ix) a class of equity securities of Comcast becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Exchange
Act; or
(x) any action similar to those enumerated in (i) - (ix) above.
Notwithstanding the foregoing, the parties filing this statement reserve
the right to attempt to effectuate any such transaction or transactions in the
future, subject to any applicable restrictions under contract or applicable
law.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
See subparagraph (a) of Item 4.
Item 7. Materials to be Filed as Exhibits
Exhibit 1: Agreement and Plan of Merger dated as of December 19, 2001 by and
among AT&T Corp., AT&T Broadband Corp., Comcast Corporation, AT&T Broadband
Acquisition Corp., Comcast Acquisition Corp. and AT&T Comcast Corporation
(filed as Exhibit 2.1 to the Current Report on Form 8-K of Comcast Corporation
dated December 20, 2001).
Exhibit 2: Support Agreement dated as of December 19, 2001 among AT&T Corp.,
Comcast Corporation, AT&T Comcast Corporation, Sural LLC and Brian L. Roberts.
Page 7 of 7 pages
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: December 26, 2001
/s/ Brian L. Roberts
-------------------------------
Name: Brian L. Roberts
SURAL LLC
By: /s/ Arthur R. Block
---------------------------
Name: Arthur R. Block
Title: Secretary
EXHIBIT 2
SUPPORT AGREEMENT
SUPPORT AGREEMENT (this "Agreement") dated as of December 19, 2001 among
AT&T Corp., a New York corporation ("AT&T"), Comcast Corporation, a
Pennsylvania corporation ("Comcast"), AT&T Comcast Corporation , a Pennsylvania
corporation ("Parent"), Sural LLC, a Delaware limited liability company
("Comcast Stockholder"), and Brian L. Roberts, a Pennsylvania resident and a
holder of units of membership interests in Comcast Stockholder.
WHEREAS, Comcast Stockholder owns 136,912 shares of Comcast Class A Common
Stock and 9,444,375 shares of Comcast Class B Common Stock (all shares of
Comcast Common Stock (other than Comcast Class A Special Common Stock) and
Parent Common Stock (other than Parent Class A Special Common Stock) owned as
of the date hereof and which may hereafter be acquired by Comcast Stockholder
prior to the termination of this Agreement shall be referred to herein as the
"Comcast Shares");
WHEREAS, Comcast, AT&T, Parent and certain other related parties propose
to enter into an Agreement and Plan of Merger dated as of the date hereof (as
amended from time to time, the "Merger Agreement"), which provides, among other
things, that at the Effective Time Comcast will merge (the "Merger") with a
wholly owned Subsidiary of Parent (capitalized terms used and not defined
herein shall have the meanings given to such terms in the Merger Agreement);
and
WHEREAS, it is a condition to the willingness of AT&T to enter into the
Merger Agreement that Comcast Stockholder, Brian L. Roberts and Parent agree,
and in order to induce AT&T to enter into the Merger Agreement, Comcast
Stockholder, Brian L. Roberts and Parent have agreed, to enter into this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
ARTICLE 1
VOTING OF COMCAST SHARES
SECTION 1.01. Voting Agreement. Comcast Stockholder hereby agrees that
during the time this Agreement is in effect, at any meeting of the stockholders
of Comcast, however called, and in any action by consent of the stockholders of
Comcast, Comcast Stockholder shall vote its Comcast Shares: (i) in favor of
adoption of the Merger Agreement and approval of the transactions contemplated
by the Merger Agreement, (ii) against any action or agreement that would
reasonably be expected to result in a breach of any covenant, representation or
warranty or any other obligation or agreement of Comcast under the Merger
Agreement or that would reasonably be expected to result in any of the
conditions to the obligations of the parties under the Merger Agreement not
being fulfilled, (iii) in favor of any other matter relating to the
consummation of the transactions contemplated by the Merger Agreement with
respect to which Comcast Stockholder may be entitled to vote and (iv) against
any other matter that would reasonably be expected to prevent, interfere with
or delay consummation of the transactions contemplated by the Merger Agreement,
including any transaction that would result in a breach of the Merger Agreement
by Comcast. Comcast Stockholder acknowledges receipt and review of a copy of
the Merger Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF COMCAST STOCKHOLDER
Comcast Stockholder hereby represents and warrants to AT&T as follows:
SECTION 2.01. Authority Relative to this Agreement. Comcast Stockholder
has all necessary power, authority and legal capacity to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by Comcast Stockholder and the consummation by Comcast Stockholder of the
transactions contemplated hereby have been duly and validly authorized by
Comcast Stockholder, and no other proceedings on the part of Comcast
Stockholder or the holders of units of membership interests in Comcast
Stockholder are necessary to authorize the execution and delivery of this
Agreement or to consummate such transactions. This Agreement has been duly and
validly executed and delivered by Comcast Stockholder and constitutes a legal,
valid and binding obligation of Comcast Stockholder, enforceable against
Comcast Stockholder in accordance with its terms. Comcast Stockholder has made
available to AT&T complete copies of its certificate of formation and limited
liability company operating agreement.
2
SECTION 2.02. No Conflict. (a) The execution and delivery of this
Agreement by Comcast Stockholder do not, and the performance of this Agreement
by Comcast Stockholder will not, (i) conflict with or violate the certificate
of formation or limited liability company operating agreement of Comcast
Stockholder, (ii) conflict with or violate any law, rule, regulation, order,
judgment or decree applicable to Comcast Stockholder or by which Comcast
Stockholder's Comcast Shares or any other assets of the Comcast Stockholder are
bound or affected or (iii) result in any breach of or constitute a default (or
an event that, with notice or lapse of time or both, would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a Lien on any of the Comcast
Shares pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which
Comcast Stockholder is a party or by which Comcast Stockholder or the Comcast
Shares or any other assets of the Comcast Stockholder are bound or affected,
except, in the case of clauses (ii) and (iii), for any such conflicts,
violations, breaches, defaults or other occurrences that would not reasonably
be expected to prevent or delay the performance by Comcast Stockholder of its
obligations under this Agreement.
(b) The execution and delivery of this Agreement by Comcast Stockholder do
not, and the performance of this Agreement by Comcast Stockholder will not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any federal, state, local or foreign regulatory body, except
(i) filings with the SEC under the 1934 Act and (ii) where the failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not reasonably be expected to prevent or delay
the performance by Comcast Stockholder of its obligations under this Agreement.
SECTION 2.03. Title to the Comcast Shares. Comcast Stockholder is the
owner, beneficially and of record, of the Comcast Shares, free and clear of all
security interests, liens, claims, pledges, options, rights of first refusal,
agreements, limitations on voting rights, charges and other encumbrances
(collectively, "Liens") of any nature whatsoever. Other than the Comcast
Shares, Comcast Stockholder does not own, either of record or beneficially, any
(i) shares of capital stock or voting securities of Comcast, (ii) securities
convertible into or exchangeable for capital stock or voting securities of
Comcast or (iii) options or other rights to acquire from Comcast any capital
stock, voting securities or securities convertible into or exchangeable for
capital stock or voting securities of Comcast. None of the Comcast Shares is
subject to any voting trust, proxy or other agreement with respect to the
voting of such Comcast Shares. Comcast Stockholder has sole voting power with
respect to the Comcast Shares and Comcast Stockholder has the sole power to
direct the voting of such shares.
3
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BRIAN L. ROBERTS
Brian L. Roberts hereby represents and warrants to AT&T as follows:
SECTION 3.01. Authority Relative to this Agreement. Brian L. Roberts
has all necessary power, authority and legal capacity to execute and deliver
this Agreement, to perform his obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by Brian L. Roberts and the consummation by Brian L. Roberts of the
transactions contemplated hereby have been duly and validly authorized by Brian
L. Roberts. This Agreement has been duly and validly executed and delivered by
Brian L. Roberts and constitutes a legal, valid and binding obligation of Brian
L. Roberts, enforceable against Brian L. Roberts in accordance with its terms.
SECTION 3.02. No Conflict. (a) The execution and delivery of this
Agreement by Brian L. Roberts do not, and the performance of this Agreement by
Brian L. Roberts will not, (i) conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to Brian L. Roberts or by
which Brian L. Roberts's units of membership interests in Comcast Stockholder
or other assets of Brian L. Roberts are bound or affected or (ii) result in any
breach of or constitute a default (or an event that, with or without notice or
lapse of time or both, would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of a Lien on any of Brian L Roberts's units of membership
interests in Comcast Stockholder pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Brian L. Roberts is a party or by which Brian
L. Roberts or Brian L. Roberts's units of membership interests in Comcast
Stockholder or other assets of Brian L. Roberts are bound or affected, except,
in the case of clauses (i) and (ii), for any such conflicts, violations,
breaches, defaults or other occurrences that would not reasonably be expected
to prevent or delay the performance by Brian L. Roberts of his obligations
under this Agreement.
(b) The execution and delivery of this Agreement by Brian L. Roberts do
not, and the performance of this Agreement by Brian L. Roberts will not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any federal, state, local or foreign regulatory body, except
(i) filings with the SEC under the 1934 Act and (ii) where the failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not reasonably be expected to prevent or delay
the performance by Brian L. Roberts of his obligations under this Agreement.
4
SECTION 3.03. Title to the Comcast Stockholder Interests. Brian L. Roberts
is the owner, free and clear of all Liens, of units of membership interests in
Comcast Stockholder (which represent approximately 72% of the outstanding units
of membership interests in Comcast Stockholder) entitled to cast a majority of
the votes entitled to be cast by the holders of the units of membership
interests in Comcast Stockholder in the election of the managing member or
members of Comcast Stockholder.
ARTICLE 4
COVENANTS
SECTION 4.01. No Inconsistent Agreement. Comcast Stockholder hereby
covenants and agrees that it shall not enter into any voting agreement or grant
a proxy or power of attorney or take any other action with respect to the
Comcast Shares which is inconsistent with this Agreement. Brian L. Roberts
hereby covenants and agrees that he shall not enter into any voting agreement
or grant a proxy or power of attorney or take any other action with respect to
any units of membership interests in Comcast Stockholder which is inconsistent
with this Agreement.
SECTION 4.02. Transfer of Title. Comcast Stockholder hereby covenants and
agrees that, prior to the Effective Time, Comcast Stockholder shall not,
directly or indirectly, sell, assign, transfer, encumber or otherwise dispose
of, or enter into any contract, option or other arrangement or understanding
with respect to the direct or indirect sale, assignment, transfer, encumbrance
or other disposition of, any Comcast Shares, except (i) in the case of shares
of Comcast Class A Common Stock, for transfers after the Comcast Stockholders'
Meeting to a transferee that agrees in writing to be bound by the terms and
conditions of this Agreement and (ii) for transfers pursuant to any transaction
expressly contemplated by Section 4.01(e) of the Merger Agreement; provided
that the condition to such transaction specified in Section 4.03(c) has been
satisfied. Nothing else contained in this Agreement shall be construed to
prohibit any transfer permitted by this Section 4.02.
SECTION 4.03. Post-closing Dispositions. (a) Comcast Stockholder hereby
covenants and agrees that, after the Effective Time and until the tenth
anniversary of the Effective Time, whether such anniversary occurs before or
after the death or disability of Brian L. Roberts, Comcast Stockholder shall
not, directly or indirectly, transfer ownership of any of its shares of Parent
Class B Common Stock except (i) for transfers to one or more Permitted Holders
(as defined below); provided that such transferee or transferees agree to be
bound by the
5
provisions of Sections 4.03(d) and 4.06, or (ii) in connection with any
transaction that (x) provides an opportunity for Parent's other stockholders to
dispose of all of their shares of Parent Common Stock for the same per share
consideration as Comcast Stockholder receives for each of its shares of Parent
Class B Common Stock (or, if higher, any of its shares of any other class of
Parent Common Stock) in connection with such transaction and (y) is approved by
holders of a majority of the votes cast by the holders of all of the classes of
Parent's capital stock entitled to vote (other than the Parent Class B Common
Stock and any other voting shares of Parent owned by Brian L. Roberts, Comcast
Stockholder or any Permitted Holder) or, in the case of a tender or exchange
offer, accepted by holders of shares representing a majority of the combined
voting power of all of the classes of Parent's capital stock (other than the
Parent Class B Common Stock and any other voting shares of Parent owned by
Brian L. Roberts, Comcast Stockholder or any Permitted Holder).
(b) Subject to the following sentence, Brian L. Roberts hereby covenants
and agrees that, after the date hereof and until the tenth anniversary of the
Effective Time, he shall not, directly or indirectly, transfer ownership of any
of his securities or other equity interests in Comcast Stockholder except (i)
for transfers to his spouse, parents, siblings, lineal descendants, aunts,
uncles, cousins, other close relatives and their respective spouses (Brian L.
Roberts and each other such other individual, a "Permitted Individual"), or any
trust which is established primarily for the benefit of Permitted Individuals,
or any partnership, corporation, limited liability company or other entity, all
of the equity interests of which are owned by Permitted Individuals and/or by
any trust which is established primarily for the benefit of Permitted
Individuals (such Permitted Individuals, trusts, partnerships, corporations,
limited liability companies and other entities, "Permitted Holders"); provided
that such transferee or transferees agree in writing to be bound by the
provisions of this Section 4.03(b), (ii) for transfers in connection with any
transaction that (x) provides an opportunity for the stockholders of Parent
(other than Comcast Stockholder) to dispose of all of their shares of Parent
Common Stock for the same per share consideration as the effective per share
consideration that Brian L. Roberts receives (as a result of his ownership
interest in Comcast Stockholder) for each of the shares of Parent Class B
Common Stock held by Comcast Stockholder (or, if higher, any of the shares of
any other class of Parent Common Stock) in connection with such transaction and
(y) is approved by holders of a majority of the votes cast by the holders of
all of the classes of Parent's capital stock entitled to vote (other than the
Parent Class B Common Stock and any other voting shares of Parent owned by
Brian L. Roberts, Comcast Stockholder or any Permitted Holder) or, in the case
of a tender or exchange offer, accepted by holders of shares representing a
majority of the combined voting power of all of the classes of Parent's capital
stock (other than the Parent Class B Common Stock and any other voting shares
of Parent owned
6
by Brian L. Roberts, Comcast Stockholder or any Permitted Holder), (iii) for
any transfers by operation of family laws or inheritance laws; provided that
such voting securities shall be subject to the terms of this Section 4.03(b) in
the hands of any such transferee and (iv) for transfers pursuant to any
transaction expressly contemplated by Section 4.01(e) of the Merger Agreement.
Brian L. Roberts hereby covenants and agrees that he shall cause the Comcast
Stockholder (or any successor entity holding shares of Parent Common Stock) to
perform its obligations hereunder; provided that if Brian L. Roberts no longer
owns a majority of the outstanding membership units (or other equity interests)
of the Comcast Stockholder (or successor entity) due to transfers of equity
interests in the Comcast Stockholder (or successor entity) to Permitted Holders
in accordance with the provisions hereof, he shall use his reasonable best
efforts to cause the Comcast Stockholder (or successor entity) to perform its
obligations hereunder and provided that any such transfer which results in
Brian L. Roberts no longer owning a majority of the outstanding membership
units (or other equity interests) of the Comcast Stockholder (or successor
entity) shall be conditioned on those Permitted Holders who, together with or
without Brian L. Roberts, would own a majority of the outstanding membership
units (or other equity interests) of the Comcast Stockholder (or successor
entity) agreeing in writing to cause the Comcast Stockholder (or successor
entity) to perform its obligations hereunder.
(c) Comcast Stockholder hereby covenants and agrees that consummation of
any transaction expressly contemplated by Section 4.01(e) of the Merger
Agreement shall be conditioned on prior execution by each of the holders of
units of membership interests in Comcast Stockholder that will receive Parent
Class B Common Stock as a result of such transaction of an agreement to be
bound by Sections 4.03(d) and 4.06 with respect to the shares of Parent Class B
Common Stock such holder receives in such transaction.
(d) Each Person who receives Parent Class B Common Stock pursuant to
Section 4.03(a) or 4.03(c) shall, as a condition to such transfer, agree in
writing that until the tenth anniversary of the Effective Time, such Person
shall not, directly or indirectly, transfer ownership of any of such Person's
Parent Class B Common Stock except (i) for transfers to one or more Permitted
Holders; provided that such transferee or transferees agrees to be bound by the
provisions of this Section 4.03(d) and Section 4.06, (ii) for transfers in
connection with any transaction that (x) provides an opportunity for the
stockholders of Parent to dispose of all of their shares of Parent Common Stock
for the same per share consideration as such holder of Parent Class B Common
Stock receives for each of such holder's shares of Parent Class B Common Stock
(or, if higher, any of such holder's shares of any other class of Parent Common
Stock) in connection with such transaction and (y) is approved by holders of a
majority of the votes cast by the holders of all of the classes of Parent's
capital stock entitled to vote (other
7
than the Parent Class B Common Stock and any other voting shares of Parent
owned by Brian L. Roberts, Comcast Stockholder or any Permitted Holder) or, in
the case of a tender or exchange offer, accepted by holders of shares
representing a majority of the combined voting power of all of the classes of
Parent's capital stock (other than the Parent Class B Common Stock and any
other voting shares of Parent owned by Brian L. Roberts, Comcast Stockholder or
any Permitted Holder) and (iii) for any transfers by operation of family laws
or inheritance laws; provided that such voting securities shall be subject to
the terms of this Section 4.03(d) and Section 4.06 in the hands of any such
transferee.
SECTION 4.04. Interested Party Transactions. Parent hereby covenants and
agrees that from and after the Effective Time, neither it nor any of its
Subsidiaries shall enter into any material transaction with Brian L. Roberts or
any of his associates (as defined in Rule 12b-2 under the 1934 Act)
("Associates") or any other person who would qualify as a Permitted Holder
unless such transaction is approved at a meeting of the Parent Board of
Directors at which a quorum is present by a majority of the Parent directors
who are not Associates of Brian L. Roberts and are not otherwise persons who
would qualify as Permitted Holders or, in the case of any compensation
arrangements between Brian L. Roberts or any of his Associates, on the one
hand, and Parent or any of its Subsidiaries, on the other hand, by the
Compensation Committee of the Parent Board of Directors; provided that no
member of such committee who is an Associate of Brian L. Roberts or who would
otherwise qualify as a Permitted Holder may vote on the approval of any such
compensation arrangement.
SECTION 4.05. Pre-Closing Transfer. Notwithstanding anything herein to the
contrary, prior to the Effective Time Comcast Stockholder may merge with and
into a Delaware limited liability company ("Comcast Stockholder II") that has
the same ownership and in all material respects the same governance
arrangements as Comcast Stockholder; provided that at the time of such merger,
(i) Comcast Stockholder II shall enter into this Agreement and be substituted
for Comcast Stockholder (including for purposes of Sections 4.03(a), 4.03(b)
and 4.06) and (ii) the representations and warranties set forth in Articles 2
and 3 shall be true after giving effect to such merger.
SECTION 4.06. Additional Voting Agreements. Comcast Stockholder (and each
transferee of shares of Parent Class B Common Stock who has agreed to be bound
by this Section 4.06) hereby covenants and agrees that, after the Effective
Time and until the expiration of the Initial Term (as such term will be defined
in the Articles of Incorporation of Parent after the Effective Time), at any
meeting of the stockholders of Parent, however called, and in any action by
consent of the stockholders of Parent, Comcast Stockholder (and such
transferee) shall vote its shares of Parent Class B Common Stock against any
proposed amendment to
8
Article SIXTH of the Articles of Incorporation of Parent. Comcast Stockholder
(and each transferee of shares of Parent Class B Common Stock who has agreed to
be bound by this Section 4.06) hereby covenants and agrees that if Brian L.
Roberts dies or is unable to perform his duties prior to the fifth anniversary
of the Effective Time, then, unless Ralph J. Roberts has sole voting power in
respect of the election of directors with respect to all outstanding shares of
Parent Class B Common Stock, from the date of his death or inability to perform
his duties until the fifth anniversary of the Effective Time, Comcast
Stockholder (and such transferee) shall vote its shares of Parent Class B
Common Stock in any election of directors in the same proportion as the holders
of shares of Parent Common Stock (other than Parent Class B Common Stock and
any other voting shares of Parent owned by Brian L. Roberts, Comcast
Stockholder or any Permitted Holder) vote in such election of directors.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Termination. This Agreement shall terminate on the earlier
to occur of (i) one day after the tenth anniversary of the Effective Time and
(ii) the date of the termination of the Merger Agreement. Notwithstanding the
foregoing, none of the representations and warranties included in this
Agreement shall survive the Effective Time. The termination of this Agreement
shall not relieve any party hereto from any liability due to a breach under
this Agreement by such party.
SECTION 5.02. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that AT&T shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 5.03. Enforcement. Any determination with respect to Comcast
Stockholder's, Brian L. Roberts's or Parent's compliance with this Agreement or
otherwise with respect to Sections 4.01, 4.03, 4.04 or 4.06, in each case after
the Effective Time, including, without limitation, any determination as to the
enforcement action or actions to be taken by Parent in connection with such
determination, shall be made for Parent by the majority vote of the
disinterested, independent persons on the Parent Board of Directors; provided
that a\ny Comcast Director (as defined in Article Sixth of Parent's Articles of
Incorporation) or any director who was a Comcast Director (as defined in
Article Sixth of Parent's Articles of Incorporation) or any spouse, parent,
sibling, lineal descendent, aunt,
9
uncle, cousin, other close relative of Brian L. Roberts or their respective
spouses shall not be considered a disinterested, independent person.
SECTION 5.04. Entire Agreement. This Agreement and the Merger Agreement
constitutes the entire agreement among the parties, and supersedes all prior
written and oral and all contemporaneous oral agreements and understandings,
with respect to the subject matter hereof.
SECTION 5.05. Amendments. Any provision of this Agreement may be amended
if, but only if, such amendment is in writing and is signed by each of the
parties hereto; provided that no amendment of any provision of Article 4 or
Section 5.03 or this Section 5.05 shall be effective without the approval of
(i) a majority of the disinterested, independent persons on the Parent Board of
Directors; provided that any Comcast Director (as defined in Article Sixth of
Parent's Articles of Incorporation) or any director who was a Comcast Director
(as defined in Article Sixth of Parent's Articles of Incorporation) or any
spouse, parent, sibling, lineal descendent, aunt, uncle, cousin, other close
relative of Brian L. Roberts or their respective spouses shall not be
considered disinterested, independent persons and (ii) holders of a majority of
the votes cast by the holders of all of the classes of Parent's capital stock
entitled to vote (other than the Parent Class B Common Stock and any other
voting shares of Parent owned by Brian L. Roberts, Comcast Stockholder or any
Permitted Holder).
SECTION 5.06. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to
the extent possible.
SECTION 5.07. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania,
regardless of the laws that might otherwise govern under principles of
conflicts of law applicable hereto.
SECTION 5.08. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
10
SECTION 5.09. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
SECTION 5.10. Assignments. This Agreement shall not be assigned by any
party hereto.
SECTION 5.11. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any person
other than the parties hereto any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
11
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
AT&T CORP.
By: /s/ Marilyn J. Wasser
--------------------------------
Name: Marilyn J. Wasser
Title: Vice President - Law
and Secretary
COMCAST CORPORATION
By: /s/ Brian L. Roberts
--------------------------------
Name: Brian L. Roberts
Title: President
AT&T COMCAST CORPORATION
By: /s/ Brian L. Roberts
--------------------------------
Name: Brian L. Roberts
Title: President
SURAL LLC
By: /s/ Brian L. Roberts
--------------------------------
Name: Brian L. Roberts
Title: Manager
/s/ Brian L. Roberts
-----------------------------------
Brian L. Roberts
12