DC10197.pdf -- Converted by SEC Publisher 4.2, created by BCL Technologies Inc., for SEC Filing








DISCOVERY COMMUNICATIONS, INC.


PERFORMANCE RESTRICTED STOCK UNIT GRANT AGREEMENT FOR EMPLOYEES


     Discovery Communications, Inc. (the “Company”) has granted you a performance restricted
stock unit (the “PRSU”) under the Discovery Communications, Inc. 2005 Incentive Plan (As Amended and Restated) (the “Plan”). The PRSU lets you receive a specified number (the “PRSU Shares”) of
shares 


(“Shares”) of the Company’s Series A common stock upon satisfaction of the conditions to receipt.


     The individualized communication you received (the “Cover Letter”) provides the details
for your PRSU. It specifies the number of PRSU Shares, the Date of Grant, the schedule for vesting, and the Vesting Date(s).


     The PRSU is subject in all respects to the applicable provisions of the Plan. This grant agreement does not cover all of the rules that apply to the PRSU under the Plan; please refer to
the Plan document. Capitalized terms are defined either further below in this grant agreement (the “Grant Agreement”) or in the Plan.


The Plan document is available on the Fidelity website. The Prospectus for the Plan, the Company’s S-8, Annual Report on Form 10-K, and other filings the Company makes with the Securities and Exchange Commission
are available for your review on the Company’s web site. You may also obtain paper copies of these documents upon request to the Company’s HR department.


Neither the Company nor anyone else is making any representations or promises regarding the duration of your service, vesting of the PRSU, the value of the Company's stock or of this PRSU, or the Company's prospects.
The Company is not providing any advice regarding tax consequences to you or regarding your decisions regarding the PRSU; you agree to rely only upon your own personal advisors.


NO ONE MAY SELL, TRANSFER, OR DISTRIBUTE THE PRSU OR THE SECURITIES THAT MAY BE RECEIVED UNDER IT WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT RELATING THERETO OR AN OPINION OF COUNSEL 


SATISFACTORY TO DISCOVERY COMMUNICATIONS, INC. OR OTHER INFORMATION AND
REPRESENTATIONS SATISFACTORY TO IT THAT SUCH REGISTRATION IS NOT REQUIRED.











In addition to the Plan’s terms and restrictions, the following terms and restrictions apply:

	
Vesting Schedule 
		
 		
Your PRSU becomes nonforfeitable (“Vested”) as provided in the Cover Letter 
	
	
 
		
 		
and the Grant Agreement assuming you remain employed (or serve as a 
	
	
 
		
 		
member of the Company’s board of directors (“Board”)) until the Vesting Date(s) 
	
	
 
		
 		
and the performance metrics are satisfied. For purposes of this Grant 
	
	
 
		
 		
Agreement, employment with the Company will include employment with any 
	
	
 
		
 		
Subsidiary whose employees are then eligible to receive Awards under the Plan 
	
	
 
		
 		
(provided that a later transfer of employment to an ineligible Subsidiary will not 
	
	
 
		
 		
terminate employment unless the Board determines otherwise). 
	
	
 
	
	
 
		
 		
If your employment is terminated without “Cause” (as defined in the Plan) or by 
	
	
 
		
 		
your death or “Disability” (as defined in the Plan) 
	
	
 
	
	
 
		
 		
                    before the PRSU’s performance conditions are satisfied, the PRSU will 
	
	
 
		
 		
                    remain or become Vested on the original vesting schedule as though you 
	
	
 
		
 		
                    remained working through any Vesting Date(s) occurring during the 180 
	
	
 
		
 		
                    days after the date of termination, subject to any applicable performance 
	
	
 
		
 		
                    conditions, or 
	
	
 
	
	
 
		
 		
                    on or after satisfaction of the performance conditions and before the last 
	
	
 
		
 		
                    Vesting Date, the PRSU will become Vested as to any remaining portion 
	
	
 
		
 		
                    of the PRSU, provided that you have complied with the restrictions under 
	
	
 
		
 		
                    Restrictive Covenants in
this Grant Agreement, and the Distribution 
	
	
 
		
 		
                    Date will remain the date that would have applied if your service had 
	
	
continued through the last Vesting Date.
	
	
 
	
	
                    Change in 
		
 		
Notwithstanding the Plan’s provisions, if an Approved Transaction, 
	
	
                    Control 
		
 		
Control Purchase, or Board Change (each a “Change in
Control”) occurs before 
	
	
 
		
 		
the PRSU is fully vested, the PRSU will only have accelerated Vesting as a result 
	
	
 
		
 		
of the Change in Control if (i) within 12 months after the Change in Control, the 
	
	
 
		
 		
Company terminates your employment other than for Cause or, if your 
	
	
 
		
 		
employment agreement or another plan or agreement covering you permits 
	
	
 
		
 		
“Good Reason” resignation, you resign for Good Reason and (ii) with respect to 
	
	
 
		
 		
any Approved Transaction, the transaction actually closes before the first 
	
	
 
		
 		
anniversary. Accelerated Vesting will only accelerate the Distribution Date if and 
	
	
 
		
 		
to the extent permitted under Section 409A of the Internal Revenue Code 
	
	
 
		
 		
(“Section 409A”). 
	
	
 
	
	
 
		
 		
The Board reserves its ability under Section 11.1(b) of the Plan to vary this 
	
	
 
		
 		
treatment if the Board determines there is an equitable substitution or 
	
	
 
		
 		
replacement award in connection with a Change in Control. 
	
	
 
	
	
Distribution Date 
		
 		
Subject to any overriding provisions in the Plan, you will receive a distribution of 
	
	
 
		
 		
the Shares equivalent to your Vested PRSU Shares as soon as practicable 
	
	
 
		
 		
following the date on which you become Vested (with the actual date being the 
	
	
 
		
 		
"Distribution Date”) and, in any event, no later than March 15 of the year 
	
	
 
		
 		
following the calendar year in which the Vesting Date(s) occurred, unless the 
	
	
 
		
 		
Board determines that you may make a timely deferral election to defer 
	
	
 
		
 		
distribution to a later date and you have made such an election (in which case 
	
	
 
		
 		
the deferred date will be the “Distribution Date”). 
	
	
 
	
	
Clawback 
		
 		
If the Company’s Board of Directors or its Compensation Committee (the 
	
	
 
		
 		
“Committee”) determines, in its sole discretion, that you engaged in fraud or 
	




Page 2










	
 
		
 		
misconduct as a result of which or in connection with which the Company is 
	
	
 
		
 		
required to or decides to restate its financials, the Committee may, in its sole 
	
	
 
		
 		
discretion, impose any or all of the following: 
	
	
 
	
	
 
		
 		
                    Immediate expiration of the PRSU, whether vested or not, if granted 
	
	
 
		
 		
                    within the first 12 months after issuance or filing of any financial 
	
	
 
		
 		
                    statement that is being restated (the “Recovery Measurement Period”); 
	
	
 
		
 		
                    and 
	
	
 
	
	
 
		
 		
                    Payment or transfer to the Company of the Gain from the PRSU, where 
	
	
 
		
 		
                    the “Gain” consists of the greatest of (i) the value of the PRSU Shares 
	
	
 
		
 		
                    on the applicable Distribution Date on which you received them within 
	
	
 
		
 		
                    the Recovery Measurement Period, (ii) the value of PRSU Shares 
	
	
 
		
 		
                    received during the Recovery Measurement Period, as determined on 
	
	
 
		
 		
                    the date of the request by the Committee to pay or transfer, (iii) the gross 
	
	
 
		
 		
                    (before tax) proceeds you received from any sale of the PRSU Shares 
	
	
 
		
 		
                    during the Recovery Measurement Period, and (iv) if transferred without 
	
	
 
		
 		
                    sale during the Recovery Measurement Period, the value of the PRSU 
	
	
 
		
 		
                    Shares when so transferred. 
	
	
 
	
	
 
		
 		
This remedy is in addition to any other remedies that the Company may have 
	
	
 
		
 		
available in law or equity. 
	
	
 
	
	
 
		
 		
Payment is due in cash or cash equivalents within 10 days after the Committee 
	
	
 
		
 		
provides notice to you that it is enforcing this clawback. Payment will be 
	
	
 
		
 		
calculated on a gross basis, without reduction for taxes or commissions. The 
	
	
 
		
 		
Company may, but is not required to, accept retransfer of shares in lieu of cash 
	
	
 
		
 		
payments. 
	
	
 
	
	
 
		
 		
By accepting this PRSU, you agree that the Clawback
section, as it may be 
	
	
 
		
 		
amended from time to time without your further consent, applies to any PRSUs or 
	
	
 
		
 		
other equity compensation grants (with applicable modifications for the type of 
	
	
grant) you receive or received on or after March 15, 2010.
	
	
 
	
	
Restrictions 
		
 		
You may not sell, assign, pledge, encumber, or otherwise transfer any 
	
	
and 
		
 		
interest (“Transfer”) in the PRSU Shares until the PRSU Shares are distributed 
	
	
Forfeiture 
		
 		
to you. Any attempted Transfer that precedes the Distribution Date is invalid. 
	
	
 
	
	
 
		
 		
Unless the Board determines otherwise or the Grant Agreement provides 
	
	
 
		
 		
otherwise, if your employment or service with the Company terminates for any 
	
	
 
		
 		
reason before your PRSU is Vested, then you will forfeit the PRSU (and the 
	
	
 
		
 		
Shares to which they relate) to the extent that the PRSU does not otherwise vest 
	
	
 
		
 		
on or after your termination, pursuant to the rules in the Vesting Schedule 
	
	
 
		
 		
section. The forfeited PRSU will then immediately revert to the Company. You 
	
	
 
		
 		
will receive no payment for the PRSU if you forfeit it. 
	
	
 
	
	
Restrictive 
		
 		
You agree that, if the Company terminates your employment without Cause on or 
	
	
Covenants 
		
 		
after the third anniversary of the Date of Grant and before the final Vesting Date, 
	
	
 
		
 		
you will not, for the remainder of the period before the final Vesting Date, 
	
	
 
	
	
 
		
 		
                    perform any work on, related to, or respecting non-fiction television 
	
	
 
		
 		
                    programming or engage in any activities on behalf of any company or 
	
	
 
		
 		
                    any entity related to nonfiction television programming services for 
	
	
 
		
 		
                    distribution to cable, satellite and/or other multi-channel distribution 
	




Page 3










	
 
		
 		
                    platforms (any such company or entity, a “Competitor”) in the 
	
	
 
		
 		
                    “Restricted Area” (which means the United States and any other 
	
	
 
		
 		
                    country (a) in which you provided services to the Company, or (b) for 
	
	
 
		
 		
                    which you had substantive responsibility for Company operations or 
	
	
 
		
 		
                    business matters, in the five years prior to separation from employment), 
	
	
 
		
 		
                    and 
	
	
 
	
	
 
		
 		
                    will not directly or indirectly solicit any employees of the Company or any 
	
	
 
		
 		
                    subsidiary or affiliated company to leave their employment nor directly or 
	
	
 
		
 		
                    indirectly aid in the solicitation of such employees. 
	
	
 
	
	
 
		
 		
You agree that compliance with this restriction is a material part of this 
	
	
 
		
 		
Agreement, breach of which will cause Company irreparable harm and damages, 
	
	
 
		
 		
the loss of which cannot be adequately compensated at law. If these restrictions 
	
	
 
		
 		
should ever be deemed to exceed the limitations permitted by applicable laws, 
	
	
 
		
 		
you and the Company agree that such provisions shall be reformed to the 
	
	
 
		
 		
maximum limitations permitted by the applicable laws. 
	
	
 
	
	
 
		
 		
The Company agrees that its sole remedy under these Restrictive Covenants will 
	
	
 
		
 		
be your forfeiture of the final half of the PRSUs. You agree that these
restrictions 
	
	
 
		
 		
are in addition to and do not supersede, replace, or amend any other restrictions 
	
	
 
		
 		
of a similar nature that apply to you, either by contract or common law, nor any of 
	
	
their related remedies (other than as apply to the PRSU).
	
	
 
	
	
Limited Status 
		
 		
You understand and agree that the Company will not consider you a shareholder 
	
	
 
		
 		
for any purpose with respect to the PRSU Shares, unless and until the PRSU 
	
	
 
		
 		
Shares have been issued to you on the Distribution Date. You will not receive 
	
	
 
		
 		
dividends with respect to the PRSU. 
	
	
 
	
	
Voting 
		
 		
You may not vote the PRSU. You may not vote the PRSU Shares unless and 
	
	
 
		
 		
until the Shares are distributed to you. 
	
	
 
	
	
Taxes and 
		
 		
The PRSU provides tax deferral, meaning that the PRSU Shares are not taxable 
	
	
Withholding 
		
 		
to until you actually receive the PRSU Shares on or around the Distribution Date. 
	
	
 
		
 		
You will then owe taxes at ordinary income tax rates as of the Distribution Date at 
	
	
 
		
 		
the Shares' value. As an employee of the Company, you may owe FICA and HI 
	
	
 
		
 		
(Social Security and Medicare) taxes before the Distribution Date. 
	
	
 
	
	
 
		
 		
Issuing the Shares under the PRSU is contingent on satisfaction of all obligations 
	
	
 
		
 		
with respect to required tax or other required withholdings (for example, in the 
	
	
 
		
 		
U.S., Federal, state, and local taxes). The Company may take any action 
	
	
 
		
 		
permitted under Section 11.9 of the Plan to satisfy such obligation, including, if 
	
	
 
		
 		
the Board so determines, satisfying the tax obligations by (i) reducing the number 
	
	
 
		
 		
of PRSU Shares to be issued to you by that number of PRSU Shares (valued at 
	
	
 
		
 		
their Fair Market Value on the date of distribution) that would equal all taxes 
	
	
 
		
 		
required to be withheld (at their minimum withholding levels), (ii) accepting 
	
	
 
		
 		
payment of the withholdings from a broker in connection with a sale of the PRSU 
	
	
 
		
 		
Shares or directly from you, or (iii) taking any other action under Section 11.9 of 
	
	
 
		
 		
the Plan. If a fractional share remains after deduction for required withholding, 
	
	
the Company will pay you the value of the fraction in cash.
	
	
 
	
	
Compliance 
		
 		
The Company will not issue the PRSU Shares if doing so would violate any 
	
	
with Law 
		
 		
applicable Federal or state securities laws or other laws or regulations. You may 
	
	
 
		
 		
not sell or otherwise dispose of the PRSU Shares in violation of applicable law. 
	




Page 4










	
Additional 
		
 		
The Company may postpone issuing and delivering any PRSU Shares for so 
	
	
Conditions 
		
 		
long as the Company determines to be advisable to satisfy the following: 
	
	
to Receipt 
		
 		
 
	
	
 
	
	
 
		
 		
                    its completing or amending any securities registration or qualification of 
	
	
 
		
 		
                    the PRSU Shares or
its or your satisfying any exemption from 
	
	
 
		
 		
                    registration under any Federal or state law, rule, or regulation; 
	
	
 
	
	
 
		
 		
                    its receiving proof it considers satisfactory that a person seeking to 
	
	
 
		
 		
                    receive the PRSU Shares after your death is entitled to do so; 
	
	
 
	
	
 
		
 		
                    your complying with any requests for representations under the Plan; 
	
	
 
		
 		
                    and 
	
	
 
	
	
 
		
 		
                    your complying with any Federal, state, or local tax withholding 
	
	
 
		
 		
                    obligations. 
	
	
 
	
	
Additional 
		
 		
If the vesting provisions of the PRSU are satisfied and you are entitled to receive 
	
	
Representations 
		
 		
PRSU Shares at a time when the Company does not have a current registration 
	
	
from You 
		
 		
statement (generally on Form S-8) under the Securities Act of 1933 (the “Act”) 
	
	
 
		
 		
that covers issuances of shares to you, you must comply with the following 
	
	
 
		
 		
before the Company will issue the PRSU Shares to you. You must — 
	
	
 
	
	
 
		
 		
                    represent to the Company, in a manner satisfactory to the Company’s 
	
	
 
		
 		
                    counsel, that you are acquiring the PRSU Shares for your own account 
	
	
 
		
 		
                    and not with a view to reselling or distributing the PRSU Shares; and 
	
	
 
	
	
 
		
 		
                    agree that you will not sell, transfer, or otherwise dispose of the PRSU 
	
	
 
		
 		
                    Shares unless: 
	
	
 
	
	
 
		
 		
                                        a registration statement under the Act is
effective at the time of 
	
	
 
		
 		
                                        disposition with respect to the PRSU Shares
you propose to sell, 
	
	
 
		
 		
                                        transfer, or otherwise dispose of;
or 
	
	
 
	
	
 
		
 		
                                        the Company has received an opinion of
counsel or other 
	
	
 
		
 		
                                        information and representations it considers
satisfactory to the 
	
	
 
		
 		
                                        effect that, because of Rule 144 under the
Act or otherwise, no 
	
	
 
		
 		
                                        registration under the Act is
required. 
	
	
 
	
	
No Effect on 
		
 		
Nothing in this Grant Agreement restricts the Company’s rights or those of any of 
	
	
Employment 
		
 		
its affiliates to terminate your employment or other relationship at any time and 
	
	
or Other 
		
 		
for any or no reason. The termination of employment or other relationship, 
	
	
Relationship 
		
 		
whether by the Company or any of its affiliates or otherwise, and regardless of 
	
	
 
		
 		
the reason for such termination, has the consequences provided for under the 
	
	
 
		
 		
Plan and any applicable employment or severance agreement or plan. 
	
	
 
	
	
No Effect on 
		
 		
You understand and agree that the existence of the PRSU will not affect in any 
	
	
Running Business 
		
 		
way the right or power of the Company or its stockholders to make or authorize 
	
	
 
		
 		
any adjustments, recapitalizations, reorganizations, or other changes in the 
	
	
 
		
 		
Company’s capital structure or its business, or any merger or consolidation of the 
	
	
 
		
 		
Company, or any issuance of bonds, debentures, preferred or other stock, with 
	
	
 
		
 		
preference ahead of or convertible into, or otherwise affecting the Company’s 
	
	
 
		
 		
common stock or the rights thereof, or the dissolution or liquidation of the 
	




Page 5










	
 
		
 		
Company, or any sale or transfer of all or any part of its assets or business, or 
	
	
 
		
 		
any other corporate act or proceeding, whether or not of a similar character to 
	
	
 
		
 		
those described above. 
	
	
 
	
	
Section 409A 
		
 		
The PRSU is intended to comply with the requirements of Section 409A and 
	
	
 
		
 		
must be construed consistently with that section. Notwithstanding anything in the 
	
	
 
		
 		
Plan or this Grant Agreement to the contrary, if the PRSU Vests in connection 
	
	
 
		
 		
with your “separation from service” within the meaning of Section 409A, as 
	
	
 
		
 		
determined by the Company), and if (x) you are then a “specified employee” 
	
	
 
		
 		
within the meaning of Section 409A at the time of such separation from service 
	
	
 
		
 		
(as determined by the Company, by which determination you agree you are 
	
	
 
		
 		
bound) and (y) the distribution of PRSU Shares under such accelerated PRSU 
	
	
 
		
 		
will result in the imposition of additional tax under Section 409A if distributed to 
	
	
 
		
 		
you within the six month period following your separation from service, then the 
	
	
 
		
 		
distribution under such accelerated PRSU will not be made until the earlier of (i) 
	
	
 
		
 		
the date six months and one day following the date of your separation from 
	
	
 
		
 		
service or (ii) the 10 th day after your
date of death. Neither the Company nor you 
	
	
 
		
 		
shall have the right to accelerate or defer the delivery of any such PRSU Shares 
	
	
 
		
 		
or benefits except to the extent specifically permitted or required by Section 
	
	
 
		
 		
409A. In no event may the Company or you defer the delivery of the PRSU 
	
	
 
		
 		
Shares beyond the date specified in the Distribution Date section, unless such 
	
	
 
		
 		
deferral complies in all respects with Treasury Regulation Section 1.409A-2(b) 
	
	
 
		
 		
related to subsequent changes in the time or form of payment of nonqualified 
	
	
 
		
 		
deferred compensation arrangements, or any successor regulation. In any 
	
	
 
		
 		
event, the Company makes no representations or warranty and shall have no 
	
	
 
		
 		
liability to you or any other person, if any provisions of or distributions under this 
	
	
 
		
 		
Grant Agreement are determined to constitute deferred compensation subject to 
	
	
 
		
 		
Section 409A but not to satisfy the conditions of that section. 
	
	
 
	
	
Unsecured 
		
 		
The PRSU creates a contractual obligation on the part of the Company to make 
	
	
Creditor 
		
 		
a distribution of the PRSU Shares at the time provided for in this Grant 
	
	
 
		
 		
Agreement. Neither you nor any other party claiming an interest in deferred 
	
	
 
		
 		
compensation hereunder shall have any interest whatsoever in any specific 
	
	
 
		
 		
assets of the Company. Your right to receive distributions hereunder is that of an 
	
	
 
		
 		
unsecured general creditor of Company. 
	
	
 
	
	
Governing Law 
		
 		
The laws of the State of Delaware will govern all matters relating to the PRSU, 
	
	
 
		
 		
without regard to the principles of conflict of laws. 
	
	
 
	
	
Notices 
		
 		
Any notice you give to the Company must follow the procedures then in effect. If 
	
	
 
		
 		
no other procedures apply, you must send your notice in writing by hand or by 
	
	
 
		
 		
mail to the office of the Company’s Secretary (or to the Chair of the Board if you 
	
	
 
		
 		
are then serving as the sole Secretary). If mailed, you should address it to the 
	
	
 
		
 		
Company’s Secretary (or the Chair of the Board) at the Company’s then 
	
	
 
		
 		
corporate headquarters, unless the Company directs PRSU holders to send 
	
	
 
		
 		
notices to another corporate department or to a third party administrator or 
	
	
 
		
 		
specifies another method of transmitting notice. The Company and the Board 
	
	
 
		
 		
will address any notices to you using its standard electronic communications 
	
	
 
		
 		
methods or at your office or home address as reflected on the Company’s 
	
	
 
		
 		
personnel or other business records. You and the Company may change the 
	
	
 
		
 		
address for notice by notice to the other, and the Company can also change the 
	
	
 
		
 		
address for notice by general announcements to PRSU holders. 
	




Page 6










	
Amendment 
		
 		
Subject to any required action by the Board or the stockholders of the Company, 
	
	
 
		
 		
the Company may cancel the PRSU and provide a new Award under the Plan in 
	
	
 
		
 		
its place, provided that the Award so replaced will satisfy all of the requirements 
	
	
 
		
 		
of the Plan as of the date such new Award is made and no such action will 
	
	
 
		
 		
adversely affect the PRSU to the extent then Vested. 
	
	
 
	
	
Plan Governs 
		
 		
Wherever a conflict may arise between the terms of this Grant Agreement and 
	
	
 
		
 		
the terms of the Plan, the terms of the Plan will control. The Board may adjust 
	
	
 
		
 		
the number of PRSU Shares and other terms of the PRSU from time to time as 
	
	
 
		
 		
the Plan provides. 
	




Page 7