Exhibit 10.13(c)
THE NIELSEN COMPANY DEFERRED
COMPENSATION PLAN
(Originally Effective
April 1, 2003)
(As Amended and Restated
Effective October 28, 2008)
1. Purpose;
Effectiveness.
(a) The purpose of The Nielsen
Company Deferred Compensation Plan (the “Plan”) is to
provide certain members of a select group of management or highly
compensated employees of TNC (US) Holdings, Inc. (the
“Company”) and its affiliates a means to defer receipt
of compensation and to have such deferred amounts treated as if
invested in specified investment vehicles in order to enhance the
competitiveness of the Company’s executive compensation
program and, therefore, its ability to attract and retain key
personnel necessary for the continued success and progress of the
Company.
(b) Amounts deferred under any
Predecessor Plan prior to April 1, 2003 (“Previously
Deferred Amounts”) shall be governed by the applicable
deferral agreement and the terms of such Predecessor Plan in effect
on the date of such deferral, provided that the foregoing shall not
prevent the Company from depositing or transferring at any time all
or any portion of such Previously Deferred Amounts into any trust
or trusts established or designated by the Company to hold assets
in connection with this Plan and designating as hypothetical
investment vehicles for all or any portion of such Previously
Deferred Amounts the mutual funds or such other investment vehicles
as may be specified from time to time by the Company as
hypothetical investment vehicles available under this
Plan.
2. Definitions.
The following terms used in the Plan
shall have the meanings set forth below:
(a) “Administrator”
shall mean the person or persons to whom the Company has delegated
the authority to take any or all action under the Plan.
(b) “Beneficiary” shall
mean any person (which may include trusts and is not limited to one
person) designated by the Participant in his or her most recent
written Beneficiary designation form filed with the Company to
receive the benefits specified under the Plan in the event of the
Participant’s death. The spouse of a married Participant
shall be required to consent to the designation of a Beneficiary or
Beneficiaries other than such spouse, unless such spouse cannot be
located or the Company, in its sole and absolute discretion,
determines in a particular case, that it would be appropriate to
waive the spousal consent requirement. If no designated Beneficiary
survives the Participant’s death, then
“Beneficiary” shall mean any persons(s) entitled by the
Participant’s will, or in the absence thereof, the laws of
descent and distribution of the Participant’s state of
domicile, to receive such benefits.
(c) “Board” shall mean
the Board of Directors of the Company, except that any action that
may be taken by the Board may also be taken by a duly authorized
committee of the Board or the Company or the duly authorized
delegees of such duly authorized committee.
(d) “Code” shall mean
the Internal Revenue Code of 1986, as amended.
(e) “Company” shall mean
TNC (US) Holdings, Inc., a New York corporation.
(f) “Company Account”
shall mean the account or subaccount established and maintained by
the Company for specified notional contributions, if any, made by
the Company or an affiliate with respect to a Participant, as
described in Section 6. A Company Account will be maintained
solely as a bookkeeping entry by the Company to evidence unfunded
obligations of the Company or an affiliate.
(g) “Deferral Account”
shall mean the account or subaccount established and maintained by
the Company for specified deferrals by a Participant, as described
in Section 6. A Deferral Account will be maintained solely as
a bookkeeping entry by the Company to evidence unfunded obligations
of the Company or an affiliate.
(h) “Deferral Election”
shall mean the election made, in accordance with Section 5, on
a form, in substance, and at the time or times satisfactory to the
Company, entered into between a Participant and the Company
pursuant to which the Participant elects to defer compensation in
accordance with the terms of this Plan.
(i) “Effective Date”
shall mean April 1, 2003.
(j) “Fair Market Value”
shall mean, on a given date, (i) with respect to any mutual
fund, net asset value as reported in The Wall Street Journal with
respect to the date of valuation, and (ii) with respect to any
alternative investment, the value, as determined in good faith by
the Company, based on all relevant factors for determining the fair
market value of an investment of such type and nature. In
determining Fair Market Value, the Company may rely upon a
valuation made by independent third party appraisers experienced in
the valuation of investments similar to the investment.
(k) “Financial Hardship”
shall mean an “unforeseeable emergency” within the
meaning of Section 409A(a)(2)(B)(ii) of the Code that
(i) would result in severe financial hardship to the
Participant if early withdrawal were not permitted and (ii) is
caused by an event beyond the control of the Participant or
beneficiary, such as (A) a severe financial hardship to the
Participant caused by a sudden and unexpected illness or accident
of the Participant or a dependent of the Participant (as defined in
Code Section 152(a)), of (B) a loss of the
Participant’s property due to casualty, where neither
(A) nor (B) is reimbursed or reimbursable through
insurance, or (C) other similar extraordinary and
unforeseeable circumstances caused by
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events beyond the Participant’s control.
Financial Hardship shall not include payment of college tuition or
home purchases.
(l) “Participant” shall
mean any employee of the Company or any affiliate who is designated
by the Company as eligible to participate in the Plan and who makes
an election to participate in the Plan.
(m) “Plan” shall mean
The Nielsen Company Deferred Compensation Plan.
(n) “Plan Year” shall
mean the calendar year.
(o) “Predecessor
Plan(s)” shall mean, depending on the context, either or both
of (i) the VNU USA, Inc. Executive Deferred Compensation Plan,
adopted effective as of February 1, 1994 and as amended and
restated effective as of January 1, 1999 (formerly known as
the VNU Business Information Services, Inc. Executive Deferred
Compensation Plan) or (ii) the ACNielsen Corporation Deferred
Compensation Plan, effective as of April 1, 2000.
(p) “Previously Deferred
Amounts” shall mean amounts deferred prior to April 1,
2003 under any Predecessor Plan.
(q) “Trust” shall mean
any trust or trusts established or designated by the Company to
hold assets in connection with the Plan; provided, however,
that the assets of such trusts shall remain subject to the claims
of the general creditors of the Company in the event of an
insolvency of the Company or, if applicable, its affiliate. The
Company or the affiliate, as the case may be, shall be considered
“insolvent” for purposes of this Plan and any Trust if
(i) the Company or the affiliate is unable to pay its debts as
they become due, or (ii) the Company or the affiliate is
subject to a pending proceeding as a debtor under the United States
Bankruptcy Code. Notwithstanding anything herein to the contrary,
any trust or trusts designated to hold assets in connection with
the Plan also may hold Previously Deferred Assets under any
Predecessor Plan or assets previously deferred under other deferred
compensation plans of the Company or the affiliate or any
predecessor of either.
3. Administration.
(a) Authority . The
Administrator (subject to the ability of the Company to restrict
the Administrator) shall administer the Plan in accordance with its
terms, and shall have all powers necessary to accomplish such
purpose, including the power and authority to construe and
interpret the Plan, to define the terms used herein, to prescribe,
amend and rescind rules and regulations, agreements, forms, and
notices relating to the administration of the Plan, and to make all
other determinations necessary or advisable for the administration
of the Plan. Any actions of the Administrator with respect to the
Plan shall be conclusive and binding upon all persons interested in
the Plan. The Company and Administrator may each appoint agents and
delegate thereto powers and duties under the Plan, except as
otherwise limited by the Plan.
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(b) Limitation of Liability .
Each officer of the Company and the Administrator shall be
entitled, in good faith, to rely or act upon any report or other
information furnished to him or her by any officer or other
employee of the Company or any affiliate, the Company’s
independent certified public accountants, or any executive
compensation consultant, legal counsel, or other professional
retained by the Company to assist in the administration of the
Plan. To the maximum extent permitted by law, no officer of the
Company or the Administrator, nor any person to whom ministerial
duties have been delegated, shall be liable to any person for any
action taken or omitted in good faith in connection with the
interpretation and administration of the Plan.
(c) Indemnification . To the
maximum extent permitted by law, officers of the Company and the
Administrator shall be fully indemnified and protected by the
Company with respect to any action taken or omitted in good faith
in connection with the interpretation or administration of the
Plan.
4. Participation.
The Company will notify each person
of his or her eligibility to participate in the Plan not later than
15 days (or such lesser period as may be practicable in the
circumstances) prior to any deadline for filing an election
form.
5. Deferrals; Company
Contributions.
(a) Deferrals .
(i) In General . To the
extent authorized by the Company, a Participant may elect to defer
the following cash compensation or awards to be received from the
Company or an affiliate: base salary, commissions, annual incentive
awards, long-term incentive awards and other compensation as
determined by the Company in writing. The Company may impose
limitations on the amounts permitted to be deferred and other terms
and conditions of deferrals under the Plan, including minimum
and/or maximum periods of deferral. Any such limitations, and other
terms and conditions of deferral, shall be set forth in the rules
relating to the Plan or election forms, other forms, or
instructions published by the Company.
(ii) Deferral Elections .
Except as otherwise may be provided by the Company with respect to
annual and long-term incentive awards that otherwise would be
payable to the Participant during the first Plan Year, a Deferral
Election must be made by a Participant prior to (A) the first
day of the calendar year with respect to which base salary and
commission are to be earned and (B) the date that is six
months prior to the end of the applicable performance period (to
the extent permitted under Treas.
Reg. § 1.409A-2(a)(8)), in the case of annual and
long-term incentive awards that constitute “performance-based
compensation” within the meaning of Treas. Reg. §
1.409A-1(e). Notwithstanding the above, newly hired employees who
are advised of their eligibility to participate in the Plan may
submit their Deferral Elections no later than 30 days following
their first day of employment and such Deferral Elections will be
effective as soon as practicable after the date of such election
with respect to amounts earned after the date of
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such election, to the extent permitted under
Treas. Reg. § 1.409A-2(a)(7). Once a Deferral Election,
properly completed, is received by the Administrator, the elections
of the Participant thereon shall be irrevocable; provided,
however, that the Company may, in its discretion, permit a
Participant to change the form or timing of distribution by filing
a later election form if the following conditions are met:
(A) the redeferral election may not take effect until at least
twelve (12) months after the date on which such redeferral
election is made; (B) the first payment with respect to which
such redeferral election is made must be deferred for a period of
not less than five (5) years from the date such payment would
otherwise have been made based on the prior deferral election; and
(C) the election must be made at least twelve (12) months
prior to the date of the first scheduled payment pursuant to the
prior applicable deferral election. Notwithstanding the preceding
sentence, the Administrator may, in its sole discretion, permit
Participants to change their deferral elections under the Plan
without meeting the conditions set forth in this
Section 5(a)(ii) provided that such deferral election changes
comply with transitional relief rules promulgated by the Treasury
Department under Section 409A of the Code. Subject to the
minimum deferral period set forth in Section 5(c) hereof, a
Participant may elect to receive his or her payout at any time set
forth on his or her Deferral Election form, and may, on such form,
elect to
