EX-10.4 5 rrd302872_34270.htm NON-QUALIFIED STOCK OPTION GRANT AGREEMENT DISCOVERY PERFORMANCE EQUITY PROGRAM NONQUALIFIED STOCK OPTION GRANT AGREEMENT FOR EMPLOYEES

EX-10.4 5 rrd302872_34270.htm NON-QUALIFIED STOCK OPTION GRANT AGREEMENT

DISCOVERY PERFORMANCE EQUITY PROGRAM

NONQUALIFIED STOCK OPTION GRANT AGREEMENT FOR EMPLOYEES

     Discovery Communications, Inc. (the “Company”) has granted you an option (the “Option”) under the Discovery Communications, Inc. 2005 Incentive Plan (As Amended and Restated) (the “Plan”). The Company’s general program to offer equity and equity-type awards to eligible employees is referred to as the “Performance Equity Program” (or “PEP”). The Option lets you purchase a specified number (the “Option Shares”) of shares of the Company’s Series A common stock, at a specified price per share (the “Xxxxx Xxxxx”).

     The individualized communication you received (the “Cover Letter”) provides the details for your Option. It specifies the number of Option Shares, the Xxxxx Xxxxx, the Date of Grant, the schedule for exercisability, and the latest date the Option will expire (the “Term Expiration Date”).

The Option 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 Option 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. If you are located in a country other than the United States, you are also receiving an International Addendum to this Grant Agreement (the “International Addendum”). You are required to sign a copy of the International Addendum in addition to accepting this Grant Agreement electronically. The International Addendum is incorporated into the Grant Agreement by reference and supplements the terms of this Grant Agreement and future grants to you under 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, exercisability of the Option, the value of the Company's stock or of this Option, or the Company's prospects. The Company is not providing any advice regarding tax consequences to you or regarding your decisions regarding the Option; you agree to rely only upon your own personal advisors.

NO ONE MAY SELL, TRANSFER, OR DISTRIBUTE THE OPTION OR THE SECURITIES THAT MAY BE PURCHASED UPON EXERCISING THE OPTION 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:

Option		While your Option remains in effect under the Option Expiration section, you
Exercisability		may exercise any exercisable portions of the Option (and buy the Option Shares)
		under the timing rules of this section.
		The Option will become exercisable on the schedule provided in the Cover Letter
		to this Grant Agreement, assuming you remain employed (or serve as a member
		of the Company’s board of directors) through each Exercisability Date. Any
		fractional shares will be carried forward to the following Exercisability Date,
		unless the Committee selects a different treatment. 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 Committee determines otherwise).
		Exercisability will accelerate fully on your Retirement, or, while employed, your
		Disability or death. If the Company terminates your employment without Cause
		during a calendar year before the Option is fully exercisable, the Option shall
		remain or become exercisable as though you remained working through any
		Exercisability Dates occurring during the 90 days after the date of termination.
		(“Cause” has the meaning provided in Section 11.2(b) of the Plan. “Retirement”
		means your employment ends for any reason other than Cause at a point at
		which you are at least age 60 and have been employed by the Company, any of
		its subsidiaries, or Discovery Communications, LLC for at least five years, where
		your period of service is determined using the Company’s Prior Employment
		Service Policy or a successor policy chosen by the Committee. Acceleration
		upon Retirement does not apply in countries subject to the EU Directive on
		Discrimination.)
Change in		Notwithstanding the Plan’s provisions, if an Approved Transaction,
Control		Control Purchase, or Board Change (each a “Change in Control”)
		occurs while you remain employed by the Company, the Option will only
		have accelerated exercisability as a result of the Change in Control if
		(i) within 12 months after the Change in Control, (x) your employment is
		terminated without Cause or (y) you resign for Good Reason and (ii) with
		respect to any Approved Transaction, the transaction actually closes and
		the qualifying separation from employment occurs within 12 months after
		the closing date.
		“Good Reason” has the meaning provided in your employment
		agreement with the Company or, if no such agreement is in effect after a
		Change in Control, any of the following events without your consent and
		as measured against the status in effect at the Change in Control (unless
		you have subsequently consented to a different status): (a) a required
		relocation of your principal place of employment that results in an
		increase in commuting distance of at least 50 miles, (b) a job level
		reduction of at least two levels, or (c) a reduction in base salary, provided
		however, that you must provide the Company with written notice of the
		existence of the event constituting Good Reason within 45 days of your
		knowledge of any such event having occurred and allow the Company
		30 days to cure the same. If the Company so cures the change, you will
		not have a basis for terminating your employment for Good Reason with

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		respect to such cured change. If such event is not cured within such
		30 day period, you may make your resignation effective at the end of
		such 30 day period. Unless the Committee determines otherwise, Good
		Reason provides an acceleration only for resignations during the
		12 month period following a Change in Control.
		The Committee reserves its ability under Section 11.1(b) of the Plan to
		vary this treatment if the Committee determines there is an equitable
		substitution or replacement award in connection with a Change in
		Control.
Option Expiration		The Option will expire no later than the close of business on the Term Expiration
		Date. Unexercisable portions of the Option expire immediately when you cease
		to be employed (unless you are concurrently remaining or becoming a member
		of the Board). If the Company terminates your employment for Cause, the
		Option will immediately expire without regard to whether it is then exercisable.
		Exercisable portions of the Option remain exercisable until the first to occur of the
		following (the “Final Exercise Date”), each as defined further in the Plan or the
		Grant Agreement:

·	The 30 th day after your employment (or directorship) ends if you resign other than on Retirement (except as extended below on death)
·	The 90 th day after your employment (or directorship) ends if the Company terminates your employment without Cause (even if then eligible for Retirement, except as the Committee otherwise provides, and except as extended below on death)
·	For death, Disability, or Retirement, the first anniversary of the date employment ends
·	The Term Expiration Date

		If you die during the 30 or 90 day period after your employment ends (on a
		termination without Cause or a resignation), the period for exercise will be
		extended until the first anniversary of the date your employment ended, subject
		to the Term Expiration Date, and the extended date will be the Final Exercise
		Date.
		The Committee can override the expiration provisions of this Grant Agreement.
Automatic Exercise		At close of business on the Final Exercise Date, if the Exercise Spread Test is
		met, the Option will be automatically exercised using the “net exercise” method
		described below, without regard to the notice requirement and with additional
		shares retained for purposes of satisfying the minimum applicable tax
		withholdings (the “Automatic Exercise”). The Option satisfies the “Exercise
		Spread Test” if the per share spread between the closing price of the Company’s
		Series A common stock and the Xxxxx Xxxxx (the “Exercise Spread”) on the
		Final Exercise Date is at least one dollar. If the Exercise Spread Test is not
		satisfied, the unexercised portions of the Option will expire as of close of
		business on the Final Exercise Date.
		For avoidance of doubt, you may exercise any exercisable portion of the Option
		prior to the time of an Automatic Exercise and no portion of the Option may or will
		be exercised at or after your termination for Cause.

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		The Automatic Exercise procedure is provided as a convenience and as a
		protection against inadvertent expiration of an Option. Because any exercise of
		an Option is normally your responsibility, you hereby waive any claims against
		the Company or any of its employees or agents if an Automatic Exercise does
		not occur for any reason and the Option expires.
Method of		Subject to this Grant Agreement and the Plan, and other than for portions of the
Exercise and		Option that are automatically exercised as described in the Automatic Exercise
Payment for		section, you may exercise the Option only by providing a written notice (or notice
Shares		through another previously approved method, which could include a web-based
		or voice- or e-mail system) to the Secretary of the Company or to whomever the
		Committee designates, received on or before the date the Option expires. Each
		such notice must satisfy whatever then-current procedures apply to that Option
		and must contain such representations (statements from you about your
		situation) as the Company requires. You must, at the same time, pay the Xxxxx
		Xxxxx using one or more of the following methods:
Cash/Check		cash or check in the amount of the Xxxxx Xxxxx payable to the order of
		the Company;
Cashless		an approved cashless exercise method, including directing the Company
Exercise		to send the stock certificates (or other acceptable evidence of ownership)
		to be issued under the Option to a licensed broker acceptable to the
		Company as your agent in exchange for the broker’s tendering to the
		Company cash (or acceptable cash equivalents) equal to the Xxxxx Xxxxx
		and, if you so elect, any required tax withholdings; or
Net Exercise		by delivery of a notice of “net exercise” to or as directed by the
		Company, as a result of which you will receive (i) the number of shares
		underlying the portion of the Option being exercised less (ii) such
		number of shares as is equal to (A) the aggregate Xxxxx Xxxxx for the
		portion of the Option being exercised divided by (B) the Fair Market
		Value on the date of exercise.
		The Committee can approve additional payment methods, including use
		of a fully or partially recourse promissory note, subject to any prohibitions
		of applicable law.
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
		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 Option , 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”)
		As to any exercised portion of the Option (to the extent, during the
		Recovery Measurement Period, the Option is granted, vests, is
		exercised, or the purchased shares are sold), prompt payment to the
		Company of any Option Gain. For purposes of this Agreement, the
		“Option Gain” per share you received on exercise of options is

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		for stock you have sold or transferred without sale, the greater of
		(i) the Exercise Spread and (ii) the spread between the price at
		which you sold (or the fair market value on the date of other
		disposition of) the stock and the Xxxxx Xxxxx paid, and
		for stock you have retained, the greater of (i) Exercise Spread
		and (ii) the spread between the closing price on the date of the
		Committee’s request for repayment and the Xxxxx Xxxxx paid.
		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 Option, you agree that the Clawback section, as it may
		be amended from time to time without your further consent, applies to
		any nonqualified stock options or other equity compensation grants (with
		applicable modifications for the type of grant) you receive or received on
		or after March 15, 2010.
Withholding		Issuing the Option Shares 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). Except as provided in the Automatic Exercise
		section, the Company may take any action permitted under Section 11.9 of the
		Plan to satisfy such obligation, including, if the Committee so determines,
		satisfying the tax obligations by (i) reducing the number of Option Shares to be
		issued to you in connection with any exercise of the Option by that number of
		Option Shares (valued at their Fair Market Value on the date of exercise) 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 Cashless Exercise of the Option or directly from you, or (iii) taking any
		other action under Section 11.9. If a fractional share remains after deduction for
		required withholding, the Company will pay you the value of the fraction in cash.
Compliance		You may not exercise the Option if the Company’s issuing stock upon such
with Law		exercise would violate any applicable Federal or state securities laws or other
		laws or regulations. You may not sell or otherwise dispose of the Option Shares
		in violation of applicable law. As part of this prohibition, you may not use the
		Cashless Exercise methods if the Company’s xxxxxxx xxxxxxx policy then prohibits
		you from selling to the market.
Additional		The Company may postpone issuing and delivering any Option Shares for so
Conditions		long as the Company determines to be advisable to satisfy the following:
to Exercise
		its completing or amending any securities registration or qualification of
		the Option Shares or its or your satisfying any exemption from
		registration under any Federal or state law, rule, or regulation;

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		its receiving proof it considers satisfactory that a person seeking to
		exercise the Option 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 you exercise the Option at a time when the Company does not have a current
Representations		registration statement (generally on Form S-8) under the Securities Act of 1933
from You		(the “Act”) that covers issuances of shares to you, you must comply with the
		following before the Company will issue the Option Shares to you. You must —
		represent to the Company, in a manner satisfactory to the Company’s
		counsel, that you are acquiring the Option Shares for your own account
		and not with a view to reselling or distributing the Option Shares; and
		agree that you will not sell, transfer, or otherwise dispose of the Option
		Shares unless:
		a registration statement under the Act is effective at the time of
		disposition with respect to the Option 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.
Not a Stockholder		You understand and agree that the Company will not consider you a stockholder
		for any purpose with respect to any of the Option Shares until you have
		exercised the Option, paid for the shares, and received evidence of ownership.
No Effect on		You understand and agree that the existence of the Option 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
		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.
Governing Law		The laws of the State of Delaware will govern all matters relating to the Option,
		without regard to the principles of conflict of laws.

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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 Committee 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 Committee) at the Company’s then
		corporate headquarters, unless the Company directs optionees to send notices
		to another corporate department or to a third party administrator or specifies
		another method of transmitting notice. The Company and the Committee 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 like notice to the other, and the Company can also change
		the address for notice by general announcements to optionees.
Amendment		Subject to any required action by the Board or the stockholders of the Company,
		the Company may cancel the Option and provide a new Award 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 Option to the extent then exercisable.
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 Committee may
		adjust the number of Option Shares and the Xxxxx Xxxxx and other terms of the
		Option from time to time as the Plan provides.

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