Exhibit 10.22(a)
Execution Copy
SEVERANCE
AGREEMENT
Itzhak
Fisher
SEVERANCE AGREEMENT (the
“Agreement”) dated June 4, 2007 by and between The
Nielsen Company B.V. and The Nielsen Company (US), Inc. (the
“Company”) and Itzhak Fisher (the
“Executive”).
The Company desires to induce
Executive to continue to provide services to the Company by
providing the Executive protection in the event of a termination of
the Executive’s active service in certain circumstances, and
Executive desires to continue to provide services to the Company
and to accept such protection.
In consideration of the promises and
mutual covenants contained herein and for other good and valuable
consideration, the parties agree as follows:
1. Term . This Agreement
shall be effective for a period commencing on the date of this
Agreement and ending on June 4, 2008 (the “Term”);
provided , however , that commencing with
June 4, 2008 and on each anniversary thereof (each an
“Extension Date”), the Term shall automatically be
extended for an additional twelve (12) month period, unless
the Company or Executive provides the other party hereto twelve
(12) month’s prior written notice before the next
Extension Date that the Term shall not be so extended.
2. Termination of Service
.
a. By the Company without Cause
or by Executive for Good Reason . If, during the Term,
Executive’s active service with the Company and its
affiliates is terminated by the Company without Cause or by
Executive’s resignation for Good Reason (as each such term is
defined in Section 3 below), subject to the Executive’s
execution of a general waiver and release of claims agreement
substantially in the form attached hereto as Exhibit A , and
subject to the Executive’s compliance with the terms of
Exhibit B attached hereto, Executive shall be entitled to
receive:
(i) a cash severance payment equal
to one (1) times the Executive’s annual rate of base
salary, as in effect prior to the date on which such termination
occurs (or, if higher, as in effect prior to the occurrence
identified in Section 3(c)(ii)), payable in equal
installments, in accordance with the normal payroll practices of
the Company over the twenty four (24) month period following
the date of termination (the “Severance Period”);
provided , however , that such severance payment
shall be in lieu of notice or any other severance benefits to which
the Executive might otherwise be entitled; and
(ii) the annual cash bonus that the
Executive would have received, if the Executive had continued to
provide services to the Company through the end of the fiscal year
of the Company in which such termination occurs (with the
determination of the amount, if any, of such bonus based on the
Company’s performance in relation to the applicable
performance targets previously established by the Company for such
fiscal year, as determined in good faith by the Compensation
Committee of the Board of Supervisory Directors of The Nielsen
Company B.V.), multiplied by the Pro-Rate Factor (as defined
in Section 3 below) (as applicable to the Executive’s
service with the Company) and paid at such time as the annual cash
bonus would otherwise have been paid to the Executive;
(iii) continuation of the
Executive’s coverage under the Company’s health and
welfare benefit plans and programs in which the Executive was
entitled to participate immediately prior to the date of
termination or continued payments to the Executive of the cost
thereof, as applicable, to the extent permitted under the terms of
such plans and programs, until the earlier to occur of (i) the
end of the Severance Period and (ii) the date on which the
Executive receives comparable health and welfare benefits from any
subsequent employer; provided that, to the extent that the
Company is unable to continue such benefits because the terms of
such plan or program does not so permit, or if such continuation
would violate Section 105(h) of the Internal Revenue Code of
1986, as amended (the “ Code ”), the Company
shall then provide the Executive with an economically equivalent
benefit or payment determined on (to the extent health and welfare
benefit plans and programs in which the Executive was entitled to
participate immediately prior to the date of termination were
non-taxable to the Executive) an after-tax basis;
(iv) all earned and unpaid and/or
vested, nonforfeitable amounts owing or accrued at the date of
Executive’s termination of service (include any earned but
unpaid base salary) under any compensation and benefit plans,
programs, and arrangements of the Company and its affiliates in
which Executive theretofore participated, payable in accordance
with the terms and conditions of the plans, programs, and
arrangements (and agreements and documents thereunder) pursuant to
which such compensation and benefits were granted or accrued;
and
(v) reimbursement for any
unreimbursed business expenses properly incurred by Executive in
accordance with Company policy prior to the date of
termination.
b. By the Company for Cause or by
Executive without Good Reason . If, during the Term,
Executive’s active service with the Company and its
affiliates is terminated by the Company for Cause or by
Executive’s resignation without Good Reason, Executive shall
be entitled to receive only those benefits described in
Section 2(a)(iv) and (v) above.
c. Due to Executive’s Death
or Disability. If, during the Term, Executive’s active
service with the Company and its affiliates is terminated by the
Company by reason of Executive’s death or Disability (as
defined in Section 3 below), Executive or Executive’s
estate (as the case may be) shall be entitled to receive only those
payments and benefits described in Section 2(a)(ii),
(iv) and (v) above.
d. Following Executive’s
termination or resignation (as the case may be), except as set
forth in this Section 2 and Section 5 below, Executive
shall have no further rights to any other compensation or benefits
under this Agreement or any other severance plan or arrangement
maintained by the Company or any of its affiliates, except as
otherwise provided under any stock option or management
stockholder’s agreement entered into by and between Executive
and the Company or any of its affiliates.
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3. Definitions . For purposes
of this Agreement:
a. “ Cause ”
shall mean
(i) Executive’s willful
misconduct with regard to the Company;
(ii) Executive’s indictment
for, conviction of, or plea of nolo contendere to (under the
laws of the United States or any state thereof), a felony, a
misdemeanor involving moral turpitude, or an intentional crime
involving material dishonesty other than, in any case, vicarious
liability;
(iii) Executive’s conduct
involving the use of illegal drugs in the workplace;
(iv) Executive’s failure to
attempt in good faith to follow a lawful directive of his or her
supervisor within ten (10) days after written notice of such
failure is delivered to Executive by the Company; and/or
(v) Executive’s material
breach of the Executive’s Management Stockholders’
Agreement or the Executive’s other agreements with the
Company, including without limitation the Engagement Letter, dated
April 26, 2007, which continues beyond ten (10) days
after written demand for substantial performance is delivered to
the Executive by the Company (to the extent that, in the reasonable
judgment of the Company’s Supervisory Board, such breach can
be cured by the Executive).
b. “ Disability ”
shall mean the Executive’s physical or mental inability to
perform substantially his or her duties to the Company for a period
of 180 consecutive days as determined by an approved medical
doctor. For this purpose, an approved medical doctor shall mean a
medical doctor selected by the Company and the Executive. If the
Company and the Executive cannot agree on a medical doctor, each
party shall select a medical doctor and the two doctors shall
select another medical doctor who shall be the sole medical doctor
for this purpose.
c. “ Good Reason
” shall mean without Executive’s express written
consent, the occurrence of any of the following
circumstances:
(i) a material diminution in the
nature or scope of Executive’s responsibilities, duties or
authority (other than any such diminution which may occur by reason
of the corporate restructuring programs in effect as of the time of
the Agreement); or
(ii) a reduction in
Executive’s annual base salary and/or target annual incentive
under the Company’s Annual Incentive Plan (“target
AIP”) (excluding any reduction in Executive’s base
salary and/or target AIP that is part of a plan to reduce
compensation of comparably situated employees of the Company
generally; provided that such reduction in Executive’s base
salary and/or target AIP is not greater than ten percent
(10%) of such base salary and/or target AIP);
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(iii) the relocation by the Company
of Executive’s primary place of service with the Company to a
location more than fifty (50) miles outside of
Executive’s current principal place of service (which shall
not be deemed to occur due to a requirement that Executive travel
in connection with the performance of his or her
duties);
(iv) the failure by the Company to
renew the Term of this Agreement;
in any case of the foregoing, that
remains uncured after ten (10) business days after Executive
has provided the Company written notice that Executive believes in
good faith that such event giving rise to such claim of Good Reason
has occurred, so long as such notice is provided within ninety
(90) days after such event has first occurred.
d. “ Pro-Rate Factor
” shall mean a fraction, (i) the numerator of which is
equal to the number of days that the Executive has provided
services to the Company during the calendar year in which the
Executive’s service terminates, and (ii) the denominator
of which is the number of days in such calendar year.
4. Notice of Termination .
Any purported termination of service by the Company or by Executive
(other than due to Executive’s death) shall be communicated
by written Notice of Termination to the other party hereto in
accordance with Section 7(e) hereof. For purposes of this
Agreement, a “Notice of Termination” shall mean a
notice which shall indicate the specific termination provision in
this Agreement relied upon and the date of termination, and shall
set forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of service under the provision
so indicated.
5. Section 409A . If any
provision of this Agreement (or of any award of compensation,
including equity compensation or benefits) would cause the
Executive to incur any additional tax or interest under
Section 409A of the Code or any regulations or Treasury
guidance promulgated thereunder, the Company shall, after
consulting with the Executive, reform such provision to comply with
Section 409A of the Code; provided that the Company
agrees to maintain, to the maximum extent practicable, the original
intent and economic benefit to the Executive of the applicable
provision without violating the provisions of Section 409A of
the Code.
6. Restrictive Covenants . As
a condition to the payment of Executive’s severance in
accordance with Sections 2(a) and 2(b) of this Agreement, Executive
agrees to be bound by the restrictive covenants set forth in
Exhibit B attached hereto and incorporated by reference
herein.
7. Miscellaneous .
a. Governing Law . This
Agreement shall be governed by and construed in accordance with the
laws of New York, without regard to conflicts of laws principles
thereof.
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b. Entire
Agreement/Amendments . This Agreement contains the entire
understanding of the parties with respect to the subject matter
contained herein, and during the Term supersedes all prior
agreements, promises, warranties, covenants or undertakings between
the parties with respect to the subject matter herein. This
Agreement may not be altered, modified, or amended except by
written instrument signed by the parties hereto.
c. No Waiver; Severability .
The failure of a party to insist upon strict adherence to any term
of this Agreement on any occasion shall not be considered a waiver
of such party’s rights or deprive such party of the right
thereafter to insist upon strict adherence to that term or any
other term of this Agreement. In the event that any one or more of
the provisions of this Agreement shall be or become invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions of this Agreement shall
not be affected thereby.
d. Successor; Binding
Agreement . The Company shall assign this Agreement and its
obligations hereunder to any successor thereof. This Agreement
shall inure to the benefit of and be enforceable by Executive and
Executive’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If Executive should die while any amount would still be
payable to Executive hereunder had Executive continued to live, all
such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Executive’s
devisee, legatee or other designee or, if there is no such
designee, to Executive’s estate.
e. Notice . For the purpose
of this Agreement, notices and all other communications provided
for in the Agreement shall be in writing and shall be deemed to
have been duly given when delivered by hand or overnight courier or
three days after it has been mailed by United States registered
mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below in this Agreement, or to such
other address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
If to the Company:
The Nielsen Company B.V.
45 Danbury Road
Wilton, CT 06897
Attention: Chief Legal
Officer
If to Executive:
To the most recent address of
Executive set forth in
