This Amended and
Restated Employment Agreement (“Agreement”) is made
this 6th day of March, 2008 by and between Discovery
Communications, LLC. (“DCL”) and Adria Alpert-Romm
(“Executive”) (herein referred to as “this
Agreement”).
WHEREAS, Executive
entered into an employment agreement with Discovery Communications,
Inc. dated January 31, 2007;
WHEREAS, the
parties to this Agreement now desire to enter into an amended and
restated employment agreement (“Agreement”) to reflect
certain changes:
NOW THEREFORE, in
consideration of the mutual promises and covenants set forth in
this Agreement, the parties hereby agree as follows:
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I.
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DUTIES, ACCEPTANCE,
LOCATION
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A.
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DCL
shall continue to employ Executive, and Executive agrees to
continue to render exclusive and full-time services as Executive
Vice President, Human Resources, upon the terms and conditions set
forth herein. Executive’s duties shall be consistent with her
title and as otherwise directed by DCL.
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B.
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Executive shall report to David
Zaslav, President and Chief Executive Officer of DCL, provided that
DCL reserves the right to change the individual and/or position to
whom/which Executive reports and, if DCL deems it necessary,
subject to Section IV(D)(1)(b) hereof, the location where
Executive works.
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C.
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Throughout her employment with DCL,
Executive agrees to serve DCL faithfully and to the best of her
ability, and to devote her full business time and energy to perform
the duties arising under this Agreement in a professional manner
that does not discredit, but furthers the interests of
DCL.
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A.
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Executive’s term of employment
shall be five (5) years beginning on March 12, 2007 and
ending March 11, 2012 (“Term of
Employment”).
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B.
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DCL
shall have the option to renew this Agreement with Executive for an
additional term. If DCL wishes to exercise its option to renew this
Agreement, it will give Executive written notice of its intent to
renew one hundred twenty (120) days prior to the end of the
Term of Employment. Executive and DCL then agree to negotiate with
each other exclusively and in good faith for the next ninety
(90) days of the Term of Employment. In the event DCL does not
exercise its option to renew this Agreement, this Agreement shall
expire, and Executive shall automatically become an at-will
employee following the Term of Employment.
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A.
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Base Salary . DCL agrees to provide Executive
with an annual base salary of $500,000. Beginning March 12,
2007, this sum will be paid over the course of twelve months, in
increments paid on regular DCL paydays, less such sums as the law
requires DCL to deduct or withhold. Executive’s future salary
increases will be reviewed and decided in accordance with DCL
standard practices and procedures.
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B.
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Bonus/Incentive Payment
. In addition to the
base salary paid to Executive pursuant to Section III(A),
Executive shall be eligible for an annual incentive payment of
Sixty Percent (60%) of her base salary. The portion of the
incentive payment to be received by Executive will be determined in
accordance with DCL’s applicable incentive or bonus plan in
effect at that time (e.g., subject to reduction for DCL
under-performance and increase for DCL over-performance and subject
to an individual performance evaluation by Executive’s
supervisor) and will be paid in accordance with the applicable
incentive or bonus plan.
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C.
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Benefits . Executive shall be entitled to
participate in and to receive any and all benefits generally
available to executives at Executive’s level in the company
in accordance with the terms and conditions of the applicable plan
or arrangement.
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D.
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Unit Appreciation Plan
. DCL currently
maintains the Discovery Appreciation Plan (a copy of which, as it
currently exists, is attached as Attachment 1) (the
“Plan”). Executive shall be designated as a participant
in the Plan and be awarded 400,000 units with, and on, a grant date
of March 12, 2007. Participation by Executive in the Plan
shall be in accordance with the terms of the Plan and subject to
the terms of this Agreement. If, however, Executive’s
employment under this Agreement is terminated by DCL not For Cause
as defined in Section IV(E)(1)(a) of this Agreement,
notwithstanding anything set forth in the Plan, Executive will have
the right to be compensated under the terms set forth in
Section IV(E) and its subparts. In the event Executive and DCL
do not enter into a new employment agreement following expiration
of this Agreement, Executive’s Units will be treated in
accordance with Sections II(B) and IV(F) hereof. The parties
acknowledge and agree that the terms and conditions of the Plan are
subject to change at any time, particularly, but not limiting the
generality of the foregoing, as may be required by changes to U.S.
law that may affect the Plan.
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E.
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Relocation . Executive shall receive all
benefits afforded to executives of her level under DCL’s
relocation policy as the same may be modified from time to
time.
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F.
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Supplemental Retirement Plan
Payment . DCL
maintains a Supplemental Retirement Plan (“SRP”) for
its senior executives (a copy of which, as it currently exists, is
attached hereto as Attachment 3). DCL agrees that Executive shall
be designated as a participant in the SRP and agrees that it will
pay the sum of $750,000 into Executive’s SRP account as of
Executive’s first day of employment hereunder. Such payment
(the “DCL SRP Payment”) shall be subject to the
following vesting provisions:
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1.
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The
DCL SRP Payment will vest in five equal installments on each of the
first, second, third, fourth and fifth anniversary dates of
executive’s first day of employment hereunder.
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2.
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In
the event that Executive’s employment with DCL is terminated
for any reason other than (a) a Termination For Cause (as
defined in Section IV(C) below), or (b) a termination by
Executive in violation of this Agreement, upon Executive’s
departure from DCL, Executive shall be entitled to receive the
vested portion of the DCL SRP Payment, plus any gain on such vested
portion, as provided in the payment provision of the
SRP.
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Other than these
vesting provisions applicable to the DCL SRP Payment,
Executive’s SRP account shall be subject to all terms and
conditions of the SRP plan, as it may change from time to time.
Executive acknowledges that under the provisions of the SRP, the
DCL SRP Payment, any other contributions to the SRP by Executive
and any gains thereon remain an asset of DCL until such time as
they are payable to Executive under the terms of this Agreement and
the SRP plan document.
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IV.
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TERMINATION OF EMPLOYMENT AND
AGREEMENT
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All definitions
and conditions set forth in this Section IV, including, but
not limited to, the definitions of Termination for Disability and
Termination for Cause as referenced in the Plan, shall be governed
solely by the terms of this Agreement unless otherwise
specified.
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A.
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Death . If Executive should die during the
Term of Employment, this Agreement will terminate. No further
amounts or benefits shall be payable except those benefits set
forth in Section 7.3(b) of the Plan and those that may vest in
accordance with the controlling documents for other relevant DCL
benefits programs, which shall be paid in accordance with the terms
of such other DCL benefit programs, including the terms governing
the time and manner of payment.
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B.
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Inability To Perform
Duties . If,
during the Term of Employment, Executive should become physically
or mentally disabled, such that she is unable to perform her duties
under Sections I (A) and (C) hereof for (i) a
period of six (6) consecutive months or (ii) for shorter
periods that add up to six (6) months in any eight (8)-month
period, by written notice to the Executive, DCL may terminate this
Agreement. Notwithstanding the foregoing, Executive’s
employment shall terminate upon Executive incurring a
“separation from service” under the medical leave rules
of Section 409A. In that case, no further amounts or benefits
shall be payable to Executive other than those set forth in
Section 7.3 (b) of the Plan, except that until
(i) she is no longer disabled or (ii) she becomes 65
years old — whichever happens first — Executive may be
entitled to receive continued coverage under the relevant medical
or disability plans to the extent permitted by such plans and to
the extent such benefits continue to be provided to DCL executives
at Executive’s level in the company generally, provided that
in the case of any continued coverage under one or more of
DCL’s medical plans, if DCL determines that the provision of
continued medical coverage at DCL’s sole or partial expense
may result in Federal taxation of the benefit provided thereunder
to Executive or her dependents because such benefits are provided
by a self-insured basis by DCL, then Executive shall be obligated
to pay the full monthly COBRA or similar premium for such
coverage.
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C.
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Termination For Cause
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1.
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In
the event that Executive is convicted of any felony, any lesser
crime of sufficient import to potentially discredit or adversely
affect DCL’s reputation or ability to conduct its business in
the normal course, or any offense involving the property of DCL or
any of its subsidiaries or affiliates (e.g., theft, conversion,
destruction of property, tampering with DCL’s computer
system), or engages in willful misconduct in connection with the
performance of Executive’s duties, DCL may terminate
Executive’s employment by written notice to the
Executive.
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2.
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In
the event that Executive materially neglects her duties under
Sections I(A) or (C) hereof or engages in other conduct
that constitutes a breach by Executive of this Agreement
(collectively “Breach”), DCL shall so notify Executive
in writing. Executive will be afforded a one-time-only opportunity
to cure the noted Breach within ten (10) days from receipt of this
notice. If no cure is achieved within this time, or if Executive
engages in the same Breach a second time after once having been
given the opportunity to cure, DCL may terminate this Agreement by
written notice to Executive.
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3.
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Any
of the above reasons set forth in Section IV(C)(1) or
Section IV(C)(2) hereof shall be considered termination For
Cause and upon such termination, Executive shall not be entitled to
receive any further amounts or benefits hereunder, other than as
may be required by law.
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D.
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Termination Of Agreement By
Executive .
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1.
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Executive may terminate this
Agreement only for the following Good Reasons: (a) material
reduction in duties or responsibilities; and (b) DCL’s
material change in the location of the DCL office where Executive
works (e.g., not relocation to another location in the Washington
D.C. metropolitan area) (“Good Reason”) provided
however, that Executive must provide DCL with written notice of the
existence of the change constituting Good Reason within thirty-five
(35) days of any such event having occurred, and allow DCL
thirty (30) days to cure the same. If DCL so cures the change,
Executive shall not have a basis for terminating his/her employment
for Good Reason with respect to such cured change. In addition, in
the event a change occurs that triggers Executive’s right to
terminate this Agreement for Good Reason, Executive must exercise
such right in writing to terminate this Agreement for Good Reason
within thirty-five (35) days of the effective date of the
applicable change, or such right shall be deemed waived.
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2.
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If
Executive terminates this Agreement for Good Reason before the Term
of Employment has expired, consistent with DCL’s normal
payroll practices, within ten (10) days following the Release
Deadline (as defined below), DCL will commence to pay Executive the
balance of his/her annual base salary for the lesser of
(a) twelve (12) months or (b) the remainder of the Term
of Employment (along with the Unit payment referred to below, the
“Separation Payment”). However, in no event shall this
Separation Payment be less than six (6) months of
Executive’s annual base salary. The salary portion of the
Separation Payment will be paid in equal increments on regular DCL
paydays (based upon the number of months base salary that is
payable and the number of paydays per month), less required
deductions and withholdings, until the balance is paid in full. In
addition, Executive will be paid the portion of her Units in the
Plan that has vested as of Executive’s last day of employment
according to the terms of the Plan, whether such Units were granted
under this Agreement or otherwise. Such payment will be made within
ten (10) days following the Release Deadline. This Separation
Payment is expressly conditioned on Executive’s signing the
Agreement and General Release (“Release”, attached as
Attachment 2 and incorporated by reference).
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3.
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No
Separation Payment will be made if Executive fails to sign the
Release. The Release must be executed and become effective within
the sixty (60) calendar day period following the date of
Executive’s “separation from service” within the
meaning of Section 409A (the last day of such period being the
“Release Deadline”). No Separation Payment will be made
if Executive violates the provisions of Section VI hereof, in
which case all Separation Payment shall cease, and those already
made shall be forfeited.
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4.
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If
Executive terminates this Agreement before the Term of Employment
has expired for a reason other than those stated in
Section IV(D)(1) hereof, it will be deemed a material breach
of this Agreement. Executive agrees that, in that event, in
addition to any other rights and remedies which DCL may have as a
result of such breach, she will forfeit all right and obligations
to be compensated for any remaining portion of her annualized base
salary, Separation Payment, bonus/incentive payment and Units that
may otherwise be due under this Agreement, pursuant to other DCL
plans or policies, or otherwise, except as may be required by
law.
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E.
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Termination Not For Cause
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1.
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(a) In the event that DCL
terminates Executive’s employment hereunder for reasons other
than For Cause, as defined in Section IV(C) hereof, subject to
what is described more fully below, DCL will pay the Executive
(i) the balance of all Units as described below, and
(ii) continued salary and continued participation in
DCL’s incentive or bonus plan for the lesser of
(A) twelve (12) months from Executive’s termination
date or (B) the remainder of the Term of Employment
(“Severance Payment”). However, in no event shall
Executive receive less than six (6) months of his/her annual
base salary and six (6) months of continued participation in
DCL’s incentive or bonus plan. This Severance Payment
expressly is conditioned on Executive’s signing the Release
(attached as Attachment 2).
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(b)
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In
the event DCL demotes Executive during the Term of Employment
(i.e., reduces Executive’s DCL title below that stated in
Section I(A) hereof and materially reduces his/her authority
and responsibilities) in the absence of Executive’s breach of
this Agreement, subject to what is described more fully below, upon
Executive’s termination of employment, Executive shall have
receive (i) the balance of all Units as described below, and
(ii) continued salary and continued participation in
DCL’s incentive or bonus plan for the lesser of
(A) twelve (12) months or (B) the remainder of the
Term of Employment (“Severance Payment”). However, in
no event shall Executive receive less than six (6) months of
his/her annual base salary and six (6) months of continued
participation in DCL’s incentive or bonus plan. This
Severance Payment expressly is conditioned on (i) Executive
providing notice of his/her intent to terminate his/her employment
as a result of the demotion and allowing a cure period in the
manner and duration set forth in Section IV(D)(1) for a Good
Reason termination, and (ii) Executive’s signing the Release.
Executive must exercise his/her rights to terminate under this
paragraph in writing within thirty-five (35) days of the
effective date of the applicable change or such right shall be
deemed waived.
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2.
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No
Severance Payment will be made if Executive fails to sign the
Release. The Release must be executed and become effective within
the sixty (60) calendar day period following the date of
Executive’s “separation from service” within the
meaning of Section 409A. No Separation Payment will be made if
Executive violates the provisions of Section VI hereof, in
which case all Severance Payments will cease, and those already
made will be forfeited.
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3.
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DCL
agrees that if, at the time Executive is Terminated not For Cause,
DCL has a standard severance policy in effect that would be
applicable in the absence of this Agreement (i.e., applicable to
the circumstances surrounding the termination) and that would
result in Executive’s receiving a sum greater than this
Severance Payment, Executive will receive whichever is the greater
of these two payments, provided that if (i) the standard
severance policy would provide for a sum greater than the Severance
Payment, and (ii) the payment schedule under the severance
policy is different from the payment schedules for the Severance
Payment and would result in an impermissible acceleration or delay
in payment in violation of the time and manner of payment
requirements of Section 409A, then the payment schedule
provided in the Company’s standard severance policy shall
only apply to the portion of the amount payable under the standard
severance policy that exceeds the Severance Payment. As of the date
of this Agreement, DCL represents that it has in place a
s
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