Exhibit 10.10(h)
RESTRICTED STOCK UNIT AWARD
AGREEMENT
THIS AGREEMENT (the “
Agreement ”) is made, effective as of June 19,
2009 (the “ Grant Date ”), between Valcon
Acquisition Holding B.V., a private company with limited liability
incorporated under the laws of The Netherlands, having its
registered office in Haarlem, The Netherlands (hereinafter referred
to as the “ Company ”) and Mitchell Habib, an
employee of the Company or a Subsidiary (the “
Participant ”).
WHEREAS, the Company desires to
grant the Participant restricted stock units (as provided in
Section 1 below), ultimately payable in shares of Common Stock
(the “ Award ”), pursuant to the 2006 Stock
Acquisition and Option Plan for Key Employees of Valcon Acquisition
Holding B.V. and its Subsidiaries (the “ Plan
”), the terms of which are hereby incorporated by reference
and made a part of this Agreement (capitalized terms not otherwise
defined herein shall have the same meanings as in the
Plan);
WHEREAS, the Committee has
determined that it would be to the advantage and best interest of
the Company to grant the restricted stock units provided for herein
to the Participant as an incentive for increased efforts during the
Participant’s term of office with the Company or its
Subsidiaries or Affiliates, and has advised the Company thereof and
instructed the undersigned officers to grant said Award;
NOW, THEREFORE, in consideration of
the mutual covenants herein contained and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties
hereto do hereby agree as follows:
1. Grant of RSUs . For
valuable consideration, receipt of which is hereby acknowledged,
the Company hereby grants 100,000 restricted stock units
(“RSUs”) to the Participant, on the terms and
conditions hereinafter set forth. Each RSU represents the unfunded,
unsecured right of the Participant to receive one share of the
Company’s Common Stock (each, a “Share”). The
Participant will become vested in the RSUs, and take delivery of
the Shares, as set forth in this Agreement.
2. Vesting and Timing of
Transfer .
(a) Unless otherwise provided
herein, and subject to the continued employment of the Participant
by the Company or any of its Subsidiaries (collectively, the
“ Employer ”) through the relevant Vesting Event
(as hereinafter defined), the Participant shall become vested in
the RSUs granted on the Grant Date as follows (the occurrence of
each such event described herein, a “ Vesting Event
”):
(i) Thirty-three and one-third
percent (33 1/3%) of the total number of RSUs granted hereunder
shall become vested on December 31, 2010 and on each of the
first two anniversaries thereof (each, a “ Vesting
Date” ); and
(ii) Notwithstanding the foregoing,
any unvested RSUs shall become one hundred percent
(100%) vested immediately prior to a Change in
Control.
(b) Upon a termination of the
Participant’s employment for any reason (other than for Cause
by the Company or without Good Reason by the Participant but which
shall include, for the avoidance of doubt, due to the
Participant’s death or Permanent Disability) a pro-rata
portion of the installment of RSUs that would, but for such
termination, be scheduled to vest on the next Vesting Date
following the termination will become vested upon such termination,
with such pro-rata portion determined based on the number of days
the Participant was employed by the Company or any of its
Subsidiaries since the immediately prior Vesting Date, relative to
365.
(c) Upon termination of the
Participant’s employment with the Employer for any reason
other than as set forth in 2(b), above, all unvested RSUs shall
immediately be forfeited by the Participant, without payment of any
consideration therefor and all vested RSUs shall be treated in the
same manner and subject to the same terms and conditions as shares
of stock owned by the Participant.
(d) The Company shall deliver to the
Participant Shares underlying any non-forfeited, vested RSUs as
soon as practicable after they become vested RSUs (but in no event
later than 2 1 / 2
months after the last day of the
calendar year in which such RSUs become so vested).
(e) In the event of the death of the
Participant, the delivery of Shares under Section 2(d) shall
be made in accordance with the beneficiary designation form on file
with the Company; provided, however , that, in the absence
of any such beneficiary designation form, the delivery of Shares
under Section 2(d), as applicable, shall be made to the person
or persons to whom the Participant’s rights under the
Agreement shall pass by will or by the applicable laws of descent
and distribution.
(f) Upon each transfer of Shares in
accordance with Section 2(d) of this Agreement, the Company
shall have satisfied its obligation with respect to the number of
RSUs equal to the number of Shares delivered to the Participant
pursuant thereto, and the Participant shall have no further rights
to claim any additional Shares in respect thereof.
3. Dividends . Unless
otherwise provided pursuant to Section 4 of this Agreement,
from and after the Grant Date, the Participant will not be entitled
to receive any dividends or other distributions with respect to
Shares underlying the RSUs unless and until the RSUs become
vested.
4. Adjustments Upon Certain
Events . The Committee shall, in its sole discretion, make
certain equitable substitutions or adjustments to any Shares or
RSUs subject to this Agreement pursuant to Section 8 of the
Plan.
5. Definitions . For purposes
of this Agreement, the following terms shall have the following
meanings:
“ Cause ” shall
mean “Cause” as such term may be defined in any
employment, change in control or severance agreement between the
Participant and the Company or any of its Subsidiaries (the
“Employment Agreement”), or, if there is no such
Employment Agreement or if no such term is defined therein,
“Cause” shall mean: (i) the Participant’s
willful misconduct with regard to the Company; (ii) the
Participant is indicted for, convicted of, or pleading nolo
contendere to, a felony, a misdemeanor involving moral turpitude,
or an intentional crime involving material dishonesty other than,
in any case, vicarious liability; (iii)&nbs
