Exhibit 10.22(b)
STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of
June 4, 2007 (the “ Grant Date ”) is made
by and 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 Pereg Holdings LLC, hereinafter referred to as the
“ Optionee ”. Any capitalized terms herein not
otherwise defined in Article I shall have the meaning set forth in
the 2006 Stock Acquisition and Option Plan for Key Employees of
Valcon Acquisition Holding B.V. and its Subsidiaries, as amended
from time to time (the “ Plan ”).
WHEREAS, the Optionee is providing
the services of Itzhak Fisher (the “ Executive
”) pursuant to a letter agreement with The Nielsen Company
B.V. dated April 26, 2007 (the “ Engagement
Letter ”);
WHEREAS, the Company wishes to carry
out the Plan, the terms of which are hereby incorporated by
reference and made a part of this Agreement; and
WHEREAS, the Committee, charged with
administration of the Plan, has determined that it would be to the
advantage and best interest of the Company and its shareholders to
grant the Option provided for herein to the Optionee as an
incentive for increased efforts by the Executive during his period
of service to the Company or its Subsidiaries, and has advised the
Company thereof and instructed the undersigned officers to issue
said Option;
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:
ARTICLE I
DEFINITIONS
Whenever the following terms are
used in this Agreement, they shall have the meaning specified in
the Plan or below unless the context clearly indicates to the
contrary.
SECTION 1.1 Cause
“Cause” shall mean
“Cause” as such term may be defined in any employment,
change in control or severance agreement between the Optionee 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 Executive’s or
the Optionee’s willful misconduct with regard to the Company;
(ii) the Executive or the Optionee 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) the Executive’s or the Optionee’s conduct
involving the use of illegal drugs in the workplace; (iv) the
Optionee’s or the Executive’s failure to attempt in
good faith to follow a lawful directive of its or his supervisor
within ten (10) days after written notice of such failure;
and/or (v)
the Optionee’s or the Executive’s
breach (either directly or through the actions of the Executive) of
the Optionee’s Management Stockholder’s Agreement (the
“ Management Stockholder’s Agreement ”) or
the Optionee’s other agreements with the Company or any
employment agreement with any of the Company’s Affiliates,
including the Engagement Letter, which continues beyond ten
(10) days after written demand for substantial performance is
delivered to the Optionee or the Executive by the Company (to the
extent that, in the reasonable judgment of the Board, such breach
can be cured by the Optionee or the Executive).
SECTION 1.2 Fiscal
Year
“Fiscal Year” shall mean
each fiscal year of the Company (which, for the avoidance of doubt,
begins on January 1 and ends on December 31 of any given
calendar year).
SECTION 1.3 Good
Reason
“Good Reason” shall mean
“Good Reason” as such term is defined in the Management
Stockholder’s Agreement.
SECTION 1.4 Investor
Return
“Investor Return” shall
mean, on any given date, the aggregate amount of cash proceeds
(including the receipt of any dividends or other distributions)
received by the Investors and Affiliates in respect of their
aggregate direct and indirect equity investment in the Company
(excluding, for the avoidance of doubt, debt
investment).
SECTION 1.5 Option
“Option” shall mean the
aggregate of the Time Option and the Performance Option granted
under Section 2.1 of this Agreement.
SECTION 1.6 Permanent
Disability
“Permanent Disability”
shall mean “Permanent Disability” as defined in the
Management Stockholder’s Agreement.
SECTION 1.7 Performance
Option
“Performance Option”
shall mean the right and option to acquire, on the terms and
conditions set forth in Sections 3.1(a)(ii) and (iii), 3.1(b)(ii)
and 3.1(c)(ii) and (iii), all or any part of an aggregate of the
number of shares of Common Stock, as shall be evidenced by entry in
the Company’s shareholder register, set forth on the
signature page of this Agreement.
SECTION 1.8 Time
Option
“Time Option” shall mean
the right and option to acquire, on the terms and conditions set
forth in Sections 3.1(a)(i), 3.1(b)(i) and 3.1(c)(ii), all or any
part of an aggregate of the number of shares of Common Stock, as
shall be evidenced by entry in the Company’s shareholder
register, set forth on the signature page of this
Agreement.
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ARTICLE II
GRANT OF OPTIONS
SECTION 2.1 Grant of
Options
For good and valuable consideration,
on and as of the date hereof the Company irrevocably grants to the
Optionee (i) a Time Option upon the terms and conditions set
forth in this Agreement and (ii) a Performance Option upon the
terms and conditions set forth in this Agreement. The Option shall
consist of a Time Option and a Performance Option.
SECTION 2.2 Exercise
Price
Subject to Section 2.4, the
exercise prices of the shares of Common Stock covered by the Time
Option and Performance Option shall be as set forth on the
signature page of this Agreement.
SECTION 2.3 No Guarantee of
Employment
Nothing in this Agreement or in the
Plan shall confer upon the Optionee or the Executive any right to
continue in the employ of the Company or any Subsidiary or shall
interfere with or restrict in any way the rights of the Company and
its Subsidiaries, which are hereby expressly reserved, to terminate
the employment of the Optionee and the Executive at any time for
any reason whatsoever, with or without cause, subject to the
applicable provisions of, if any, the Optionee’s employment
agreement with the Company or its Subsidiaries or offer letter
provided by the Company or its Subsidiaries to the
Optionee.
SECTION 2.4 Adjustments to
Option
The Option shall be adjusted
pursuant to Sections 8 or 9 of the Plan, as applicable. Any such
adjustment made in good faith thereunder shall be final and binding
upon the Optionee, the Company and all other interested
persons.
ARTICLE III
PERIOD OF EXERCISABILITY
SECTION 3.1 Commencement of
Exercisability
(a) So long as the Executive
continues to provide his services to the Company or any of its
Subsidiaries in accordance with the Engagement Letter, the Option
shall become exercisable pursuant to the following
schedules:
(i) Time Option. Subject to
clause (b)(i) below, the Time Option shall become vested and
exercisable as follows: (x) with respect to 5% of the shares
of Common Stock underlying such Time Option, on the Grant Date; and
(y) with respect to 31.67% of the shares of Common Stock
underlying such Time Option, on each of the three anniversaries of
May 1, 2007.
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(ii) Performance Option. The
Performance Option shall become vested and exercisable as follows:
(x) with respect to 5% of the shares of Common Stock
underlying such Performance Option, on the Grant Date; and
(y) with respect to 19% of the shares of Common Stock
underlying such Performance Options, for each of the five Fiscal
Years ending after the Grant Date, starting with the 2007 Fiscal
Year, on each of the five anniversaries of December 31, 2006,
if and only if the Company achieves the Annual Performance
Target set forth on Schedule A attached hereto for each such
Fiscal Year.
(iii) In the event that the Annual
Performance Target is not achieved in a particular Fiscal Year
identified on Schedule A (any such year, a “ Missed
Year ”), if and only to the extent that
performance of the Company in any subsequent Fiscal Year satisfies
the Cumulative Performance Target (as set forth in Schedule
A ) applicable to any such subsequent Fiscal Year, then
the applicable percentage of the Performance Option that was
scheduled to become vested and exercisable in respect of such
Missed Year shall become vested and exercisable as of the end of
the Fiscal Year in respect of which the Cumulative Performance
Target is achieved.
(b) Notwithstanding the foregoing,
so long as the Executive continues to provide his services to the
Company or any of its Subsidiaries under the Engagement Letter
through the occurrence of a Change in Control:
(i) the Time Option shall become
immediately exercisable as to 100% of the shares of Common Stock
underlying such Time Option immediately prior to a Change in
Control (but only to the extent such Option has not otherwise
terminated or become exercisable), and
(ii) the Performance Option shall
become immediately exercisable as to 100% of the shares of Common
Stock underlying such Performance Option immediately prior to a
Change in Control (but only to the extent such Option has not
otherwise terminated or become exercisable) only if, as a result of
the Change in Control, the Investor Return equals or exceeds the
Applicable Multiple (as set forth on Schedule B for the
applicable Fiscal Year in which the Change in Control occurs) of
the Base Price (as defined on the signature page
hereto).
(c) Upon a termination of the
Engagement Letter and the Executive’s services thereunder for
any reason (other than for Cause by the Company or without Good
Reason by the Optionee but which shall include, for the avoidance
of doubt, due to the Executive’s death or Permanent
Disability):
(i) a pro-rata portion of the
installment of the Time Option that would, but for such
termination, be scheduled to vest and become exercisable on
December 31 of the Fiscal Year in which the termination occurs
will become vested and exercisable upon such termination, with such
pro-rata portion determined based on the number of days the
Executive provided services to the Company or any of its
Subsidiaries during such Fiscal Year, relative to the number of
days of such full Fiscal Year; and
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(ii) occurring within the last six
months of any Fiscal Year, if the Annual Performance Target for
such year is achieved, then a pro rata portion of the installment
of the Performance Option that would, but for such termination, be
scheduled to vest and become exercisable on December 31 of the
Fiscal Year in which the termination occurs will become vested and
exercisable upon such December 31, with such pro-rata portion
determined based on the number of days the Executive provided
services to the Company or any of its Subsidiaries during such
Fiscal Year, relative to the number of days of such full Fiscal
Year (such vesting event, a “ Special Termination Vesting
Event ”).
(iii) Notwithstanding the foregoing,
in the event it is determined by the Company (in consultation with
its auditors) that the provisions of Section 3.1(c)(ii)
results in the Option (or any portion hereof) being classified as a
liability as contemplated by FASB Statement No. 123R,
Share-Based Payment, including any amendments and interpretations
thereto, then Section 3.1(c)(ii) shall be of no further force
and effect, and instead the following provision shall apply: Upon a
termination of the Engagement Letter and the Executive’s
services thereunder for any reason (other than for Cause by the
Company or without Good Reason by the Optionee but which shall
include, for the avoidance of doubt, due to the Executive’s
death or Permanent Disability) occurring within the last six months
of any Fiscal Year, a Special Termination Vesting Event shall occur
if and only if the Performance Target for such Fiscal Year
is met, based on the EBITDA (as such term is defined in Schedule A)
achieved for the twelve month trailing period ending the month end
prior to the month in which the termination event
occurs.
(iv) Notwithstanding the foregoing,
no Option shall become exercisable as to any additional shares of
Common Stock (which do not otherwise become exercisable in
accordance with Section 3.1(a), (b) or (c) above)
following the termination of the Engagement Letter and the
Executive’s services thereunder for any reason and any
Option, which is unexercisable as of the termination of the
Engagement Letter, shall be immediately cancelled without payment
therefor.
SECTION 3.2 Expiration of
Option
Except as otherwise provided in
Section 5 or 6 of the Management Stockholder’s
Agreement, the Optionee may not exercise the Option to any extent
after the first to occur of the following events:
(a) The tenth anniversary of the
Grant Date, provided that the Engagement Letter remains in effect
and/or the Executive continues to provide services thereunder to
the Company or any of its Subsidiaries through such
date;
(b) Six months after the Optionee
and/or the Executive is/are terminated by the Compa
