Comcast Corporation Incoming Letter Dated January 14,2010
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549-4561 DIVISION OF CORPORATION FINANCE March 17,2010 Wiliam H. Aaronson Davis Polk & Wardwell LLP 450 Lexington Avenue New York, NY 10017 Re: Comcast Corporation Incoming letter dated January 14,2010 Dear Mr. Aaronson: Ths is in response to your letter dated January 14,2010 concerning the shareholder proposal submitted to Comcast by the International Brotherhood of Electrical Workers Pension Benefit Fund. We also have received a letter on the proponent's behalf dated January 29,2010. Our response is attached to the enclosed photocopy of your correspondence. By doing this, we avoid having to recite or summarize the facts set forth in the correspondence. Copies of all of the correspondence also wil be provided to the proponent. In connection with this matter, your attention is directed to the enclosure, which sets forth a brief discussion of the Division's informal procedures regarding shareholder proposals. Sincerely, Heather L. Maples Senior Special Counsel Enclosures cc: Greg A Kinczewski Vice President/General Counsel The Marco Consulting Group 550 W. Washington Blvd., Suite 900 Chicago, IL 60661 March 17,2010 Response of the Office of Chief Counsel Division of Corporation Finance Re: Comcast Corporation Incoming letter dated January 14,2010 The proposal urges the compensation committee of the board of directors to adopt a policy requiring that senior executives retain a significant percentage of shares acquired through equity compensation programs until two years following the termination of employment and to report to stockholders regarding the policy. their There appears to be some basis for your view that Comcast may exclude the proposal under rules 14a-8(i)(2) and 14a-8(i)(6) because it may require Comcast to impose restrictions on transferability of shares already issued. It appears that this defect could be cured, however, if the proposal were revised to state that it applies only to compensation awards made in the future. Accordingly, unless the proponent provides Comcast with a proposal revised in this maner, within seven calendar days after receiving this letter, we will not recommend enforcement action to the Commission if Comcast omits the proposal from its proxy materials in reliance on rules 14a-8(i)(2) and 14a';8(i)(6). Sincerely, Matt S. McNair Attorney-Adviser DIVlSION OF CORPORATION FINANCE INFORMAL PROCEDURES REGARDING SHAHOLDER PROPOSALS The Division of Corporation Finance believes that its responsibility with respectto matters arising under Rule 14a~8 (17 CFR 240.14a-8), as with other matters under the proxy rules,. is to aid those who must comply with the rule by offering informal advice and suggestions and to determine, initially, whether or not it may be appropriate in a paricular matter to recommend enforcement action to the Commission: In connection with 'under Rule 14a-8, the Division's staff considers the information fuisheda shareholderto it by the Company proposal in support of its intention to exclude the proposals from the Company's proxy materials, as well as any information fuished by the proponent or the proponent's representative. .' Although Rule 14a-8(k) does not.require any cOl1unications from shareholders to the . Commission's staff, the staff will always consider information concerning alleged violations of . ": the statutes administered by the Commission; including argument as to whether or not activities pmposed to be taen would be violative of the statute ormle involved. The receipt by the staff . ". of such information, however, should not be construed as changing the staffs informal procedures and proxy review into a formal or adversar procedure. It is importt to note that the staff sand Coirssion' s no-action responses to Rule 14a-8(j) submissions reflect only informal views. The determinations reached in these no- action letters do not and cannot adjudicate the merits of a company's positÎonwith respect to the proposaL. Only a court such as a U.S. District Courean decide whether a company is obligated to include shareholder proposals in its proxy materials. Accordingly a discretionary determination not to recommend or tae Commission enforcement action, does not preclude proponent, or any shareholder of a company, from pursuing any rights he or she may have againsta the Company in cour, should the management omit the proposal from the company's proxy materiaL. New York Madrid Menlo Park Tokyo Washington DC Beijing London Hong Kong Paris DavisPolk William H. Aaronson Davis Polk & Wardwell LLP 212 450 4397 tel 450 Lexington Avenue 212 701 5397 fax New York, NY 10017 [email protected] January 14, 2010 Re: Shareholder Proposal Submitted by IBEW Pension Benefit Fund Office of Chief Counsel Division of Corporate Finance Securities and Exchange Commission 100 F Street NE Washington, D.C. 20549 via email: [email protected] Ladies and Gentlemen: On behalf of our client, Comcast Corporation (the "Company"), we write to inform you of the Company's intention to exclude from its proxy statement and form of proxy for the Company's 2010 Annual Meeting of Shareholders (collectively, the "2010 Proxy Materials") a shareholder proposal (the "Proposal") and related supporting statement received from the International Brotherhood of Electrical Workers Pension Benefit Fund (the "Proponent"). We hereby respectfully request that the Staff of the Division of Corporation Finance (the "Staff") concur in our opinion that the Company may, for the reasons set forth below, properly exclude the aforementioned proposal from the 2010 Proxy Materials. The Company has advised us as to the factual matters set forth below. Pursuant to Staff Legal Bulletin No. 14D (CF), Shareholder Proposals (November 7, 2008), question C, we have submitted this letter and the related correspondence from the Proponent to the Commission via email to [email protected]. Also, in accordance with Rule 14a-80), a copy of this letter and its attachments is being mailed on this date to the Proponent informing it of the Company's intention to exclude the Proposal from the 2010 Proxy Materials. The Company plans to file its definitive proxy statement with the Securities and Exchange Commission (the "SEC") on or about April 9, 2010. Accordingly, we are submitting this letter not less than 80 days before the Company intends to file its definitive proxy statement. I. INTRODUCTION The Proposal, which is attached hereto as Exhibit A, requests that the Company's Compensation Committee "adopt a policy requiring the senior executives retain a significant Office of Chief Counsel 2 January 14, 2010 percentage of shares acquired through equity compensation programs until two years following the termination of their employment (through retirement or otherwise), and to report to stockholders regarding the policy before Company [sic] 2011 annual meeting of stockholders," and recommends that "the Committee not adopt a percentage lower than 75% of net after-tax shares." Comcast requests that the Staff of the SEC concur with its view that the Proposal may be properly omitted from its 2010 Proxy Materials pursuant to: (a) Rule 14a-8(i)(2) because implementation of the Proposal would cause the Company to violate state law; and (b) Rule 14a-8(i)(6) because the Company lacks the power or authority to implement the Proposal, which would cause the Company to violate Pennsylvania law. II. REASONS FOR EXCLUSION A. Implementation of the Proposal would result in violations of state law Rule 14a-8(i)(2) permits a company to exclude a proposal from its proxy statement "if the proposal would, if implemented, cause the company to violate any state, federal or foreign law to which it is subject." The Company is incorporated under the laws of the Commonwealth of Pennsylvania and its equity award agreements with its senior executives are governed by Pennsylvania law. As more fully described in the opinion of Pepper Hamilton LLP (the "Pepper Hamilton Opinion") attached as Exhibit B, implementation of the Proposal would cause the Company to violate Pennsylvania law by imposing a new transfer restriction on previously issued and currently outstanding shares of common stock held by senior executives without their consent. The Proposal, by its plain terms, applies to any shares held by senior executives, including shares that have already been issued to senior executives. Under Pennsylvania law, new transfer restrictions may only be validly imposed on previously issued securities with the consent of the holders of those securities, either in the form of an agreement with respect to the transfer restriction or a vote in favor of the transfer restriction. Therefore, the Company believes that the Proposal may be properly omitted from the 2010 Proxy Materials pursuant to Rule 14a-8(i)(2) since implementation of the Proposal would result in a violation of Pennsylvania law. The Staff has previously granted relief, under Rule 14a-8(i)(2), in respect of similar share retention proposals for companies incorporated in Delaware and Virginia. See JPMorgan Chase & Co. (Jan. 9, 2009) (concurring in the exclusion of a similar proposal for violating Delaware law); and NVR, Inc. (Feb. 17, 2009) (concurring in the exclusion of a similar proposal for violating Virginia law). As more fully disclosed in the Pepper Hamilton Opinion, the Proposal may also be excluded pursuant to Rule 14a-8(i)(2) because it would, if implemented, cause the Company to violate Pennsylvania law by unilaterally breaching existing contracts between the Company and senior executives. Since these agreements do not contain the restriction on transfer included in the Proposal, implementation of the Proposal by the Company would result in their breach. It is Office of Chief Counsel 3 January 14, 2010 well established that a shareholder proposal that if implemented would require a company to breach its existing contracts, in violation of state law, may be excluded under Rule 14a-8(i)(2).