Form 10-Q Nielsen Holdings plc For: Mar 31

Exhibit 10.3

PERFORMANCE STOCK OPTION AGREEMENT

THIS GRANT is hereby made effective as of the Grant Date set forth on the schedule attached hereto as Schedule A (“Schedule A”, such date, the “Grant Date”) by and between Nielsen Holdings plc, a company incorporated under the laws of England and Wales, having its registered office in the United Kingdom (hereinafter referred to as the “Company”), and the individual whose name is set forth on Schedule A hereof, who is in the Employment of the Company or a Subsidiary (hereinafter referred to as the “Optionee”). Any capitalized terms herein not otherwise defined in this Agreement shall have the meaning set forth in the Nielsen 2019 Stock Incentive Plan (the “Plan”).

 

WHEREAS, the Company desires to grant the Participant the Option (as defined below) as provided hereunder and pursuant to 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 during her term of office with the Company or any Subsidiary, and has advised the Company thereof and instructed the undersigned officers to grant 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 have the meaning ascribed to such term in the severance plan or policy of the Company or any of its Subsidiaries in which the Optionee is eligible to participate immediately prior to the termination of the Optionee’s Employment (the “Policy”).

 

Section 1.2. Good Reason

“Good Reason” shall have the meaning ascribed to such term in the Policy.

Section 1.3. Option

“Option” shall mean the right and option to acquire, on the terms and conditions set forth in Section 3.1, all or any part of an aggregate of the number of Shares, as shall be evidenced by entry in the Company’s shareholder register, set forth on Schedule A.

 

Section 1.4. Permanent Disability

“Permanent Disability” shall have the meaning ascribed to such term in the Policy.

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Section 1.5. Retirement

“Retirement” shall mean (a) any statutorily mandated retirement date required under laws applicable to the Optionee or (b) such other retirement date (which date may vary by Optionee) as may be approved by the Committee or a designated officer of the Company, as delegated in accordance with the Plan.

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 an Option upon the terms and conditions set forth in this Agreement.

 

Section 2.2. Exercise Price

Subject to Section 2.4, the exercise price of the Shares covered by the Option (the “Option Price”) shall be as set forth on Schedule A.

Section 2.3. No Guarantee of Employment

Nothing in this Agreement or in the Plan shall confer upon the Optionee any right to continue in the Employment of the Company or any Subsidiary or shall interfere with or restrict in any way the rights of the Company or any Subsidiary, which are hereby expressly reserved, to terminate the Employment of the Optionee 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 a Subsidiary, or an offer letter provided by the Company or a Subsidiary to the Optionee.

 

Section 2.4. Adjustments to Option

The Option shall be adjusted pursuant to Section 9(a) 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)The Option shall be subject to both performance and service vesting conditions

as described in Sections 3.1(b) and (c) below, and will only be vested and exercisable with respect to any of the Shares subject thereto when both the performance and service conditions have been achieved with respect to such Shares (except as otherwise provided in this Section 3.1).

(b)The Option will satisfy the performance vesting component (the “Performance Vesting Condition”) with respect to 100% of the Shares subject thereto if, on or prior to the Share Price Goal End Date set forth on Schedule A, the closing price for one Share as listed on the New York Stock Exchange has equaled or exceeded the Share Price Goal set forth on Schedule A for a period greater thanor equal to 21 consecutive trading days. If the Performance Vesting Condition has not been achieved on or prior to the Share Price Goal End Date (and provided that the Option has not otherwise become vested and

 

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exercisable in connection with an earlier Change in Control or the Optionee’s termination of employment due to death or Permanent Disability), the Option shall be automatically cancelled without payment upon the Share Price Goal End Date.

(c)Except as otherwise provided in this Section 3, the Shares subject to the Option will satisfy the service vesting component (the “Service Vesting Condition”) with respect to 100% of the Shares subject thereto based on the Optionee’s continued employment with the Company or any Subsidiary through the Share Price Goal End Date (such date, the “Service Vesting Date”).

(d)Upon a Change in Control that occurs on or prior to the Share Price Goal End Date, the Option (to the extent it then remains outstanding) shall be deemed to have satisfied the Performance Vesting Condition, and (i) if the Option is not assumed, continued, or substituted by the Company or its successor as provided in Section 9 of the Plan and the Optionee is employed with the Company or any of its Subsidiaries on the effective date of the Change in Control, then, on the effective date of the Change in Control, the Option shall become immediately fully vested and exercisable with respect to 100% of the Shares subject thereto and (ii) if the Option is so assumed, continued or substituted by the Company or its successor, then the Option shall remain subject to satisfaction of the Service Vesting Condition; provided, that, if, prior to the Service Vesting Date, the Optionee’s employment with the Company and its Subsidiaries (or any successors thereto) is involuntarily terminated by the Company and its Subsidiaries without Cause, terminated by the Optionee for Good Reason, or terminates due to the Optionee’s death, Permanent Disability or Retirement, then the Option shall become immediately fully vested and exercisable with respect to 100% of the Shares subject thereto effective upon the date of such termination of employment.

 

(e)Upon a termination of the Optionee’s Employment for any reason (other than for Cause by the Company or any Subsidiary, without Good Reason by the Optionee or due to the Optionee’s death or Permanent Disability) prior to a Change in Control, (i) if the Performance Vesting Condition has been satisfied on or prior to the date of such termination of Employment, a pro rata portion of the Shares subject to the Option will be deemed to have satisfied the Service Vesting Condition upon such termination date, which pro rata portion shall be determined by multiplying the total number of Shares subject to the Option by a fraction, the numerator of which is the number of days commencing on the Grant Date and ending on the date of the termination of the Optionee’s Employment and the denominator of which is the number of days from the Grant Date through the Service Vesting Date (such portion, the “Pro Rata Portion of the Option”) and the Option shall automatically expire with respect to the remainder of the Shares subject thereto without becoming exercisable, and (ii) if the Performance Vesting Condition has not been satisfied on or prior to the date of such termination of Employment, the Pro Rata Portion of the Option will be deemed to have satisfied the Service Vesting Condition upon such termination date and shall remain outstanding following such termination and shall vest and become exercisable on the date on which the Performance Vesting Condition is satisfied and the Option shall automatically expire with respect to the remainder of the Shares subject thereto without becoming exercisable; provided, that, if the Performance Vesting Condition is not satisfied on or prior to the Share Price Goal End Date, the Pro Rata Portion of the Option shall be automatically cancelled without payment upon the Share Price Goal End Date.

(f)Upon the Optionee’s death or Permanent Disability prior to a Change in Control while the Option remains outstanding, the Option shall become immediately fully vested and exercisable with respect to 100% of the Shares subject thereto, without regard to whether either the Service Vesting Condition or Performance Vesting Condition has been satisfied at the time of such termination of Employment.

 

 

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(g)Notwithstanding the foregoing, no portion of the Option shall become exercisable as to any additional Shares (which do not otherwise become exercisable in accordance with Sections 3.1(d), (e), or (f) above) following the Optionee’s termination of Employment for any reason and any portion of the Option which is unexercisable as of the Optionee’s termination of Employment, shall be immediately cancelled without payment therefor. Accordingly, except as is provided in Sections 3.1(d), (e) and (f), if at the time of the Optionee’s termination, the Performance Vesting Condition has not been satisfied, then the Option shall automatically expire without becoming exercisable even if all or a portion of the Option has satisfied the Service Vesting Condition.

Section 3.2. Expiration of Option

The Optionee may not exercise any portion of the Option to any extent after the first to occur of the following events:

 

(a)The seventh anniversary of the Grant Date; provided that the Optionee remains in the Employment of the Company or any Subsidiary through such date;

(b)Six months after (i) the Optionee’s Employment is terminated by the Company and all its Subsidiaries without Cause or the Optionee terminates employment for Good Reason (unless earlier terminated as provided in Section 3.2(g) below) or (ii) solely in the case of the Option becoming vested and exercisable following such termination pursuant to Section 3.1(e), the date on which the Option vests and becomes exercisable;

(c)The first anniversary of the date of the Optionee’s termination of Employment, if the Optionee’s Employment is terminated by reason of death or Permanent Disability (unless earlier terminated as provided in Section 3.2(g) below);

(d)Unless earlier terminated as provided in Section 3.2(g) below, three months after the Optionee’s termination of Employment without Good Reason (other than due to death or Permanent Disability) unless, in the Company’s sole determination, such termination is in connection with the rendering of services (as proprietor, investor, director, officer, employee, consultant, partner or otherwise) to any business that competes with the business of the Company, in which event the Option shall expire immediately upon termination of employment with the Company;

(e)Immediately upon the date of the Optionee’s termination of Employment with the Company and all its Subsidiaries for Cause;

(f)Immediately upon the date of the Optionee’s termination of Employment for any reason other than by reason of death or Permanent Disability if the Performance Vesting Condition has not been satisfied as of the date of such termination; or

(g)At the discretion of the Company, if the Committee so determines pursuant to Section 9 of the Plan.

Notwithstanding anything set forth in this Section 3.2 to the contrary, in the event any vested and exercisable portion of the Option is scheduled to expire pursuant to any of Sections 3.2(a), (b), (c) or (d) above, and the Option Price is at least $0.10 less than the Fair Market Value on the applicable expiration date, then on the date that such exercisable portion of the Option is scheduled to expire, such exercisable portion of the Option (to the extent not previously exercised by the Optionee) shall be automatically exercised on behalf of the Optionee and the net number of Shares resulting from such automatic exercise (after deduction for payment of the exercise price and withholding taxes) shall be delivered to the Optionee as soon as practicable thereafter.

 

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For purposes of the foregoing, to the extent the Optionee is employed outside of the United States, the date on which the Optionee’s Employment terminates shall be the earliest of (i) the date on which the Company, or the Subsidiary that employs him, provides the Optionee with notice of termination of Employment, (ii) the last day of the Optionee’s active service with the Company and its Subsidiaries; or (iii) the last day on which the Optionee is an employee of the Company or the Subsidiary that employs him, as determined in each case without including any required advance notice period and irrespective of the status of the termination under local labor or employment laws.

ARTICLE IV

EXERCISE OF OPTION

Section 4.1. Person Eligible to Exercise

During the lifetime of the Optionee, only he may exercise the Option or any portion thereof. After the death of the Optionee, any exercisable portion of the Option may, prior to the time when the Option becomes unexercisable under Section 3.2, be exercised by his personal representative or by any person empowered to do so under the Optionee’s will or under the then-applicable laws of descent and distribution.

Section 4.2. Partial Exercise

Any exercisable portion of the Option or the entire Option, if then wholly exercisable, may be exercised in whole or in part at any time prior to the time when the Option or portion thereof becomes unexercisable under Section 3.2; provided, that any partial exercise shall be for whole Shares only.

 

Section 4.3. Manner of Exercise

The Option, or any exercisable portion thereof, may be exercised solely by delivering to the designated individual at the Company or his office all of the following prior to the time when the Option or such portion becomes unexercisable under Section 3.2:

 

(a)Notice from the Optionee or the other person then entitled to exercise the Option or portion thereof, stating that the Option or portion thereof is thereby exercised, such notice complying with all applicable rules, policies, and procedures established by the Committee;

(b)Full payment (in cash or by check or by a combination thereof) for the Shares with respect to which the Option or portion thereof is exercised (the “net settlement” feature as described in the Plan shall not be permitted);

(c)Full payment (in cash or by check or by a combination thereof) of all amounts which, under applicable law, the Company is required to withhold upon exercise of the Option; and

(d)In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the Optionee, appropriate proof of the right of such person or persons to exercise the Option.

Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of shares acquired on exercise of the Option does not violate the Securities Act of 1933, as amended.

 

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Section 4.4. Conditions to Issuance of Shares

The Shares issuable upon the exercise of the Option, or any portion thereof, shall not be required to be so physically issued to the Optionee.  For the avoidance of doubt, Shares shall be deemed to have been issued when evidenced by entry in the Company’s shareholder register. Such Shares shall be fully paid and nonassessable. The Company shall not be required to issue or deliver any certificate or certificates for Shares acquired upon the exercise of the Option or portion thereof prior to fulfillment of all of the following conditions:

 

(a)The obtaining of approval or other clearance from any state, provincial or federal governmental agency which the Committee shall, in its reasonable and good faith discretion, determine to be necessary or advisable (and the Company and the Optionee shall each use reasonable efforts to obtain all such clearances and approvals as soon as reasonably practicable); and

(b)The lapse of such reasonable period of time following the exercise of the Option as the Committee may from time to time establish for reasons of administrative convenience or as may otherwise be required by applicable law.

Section 4.5. Rights as Shareholder

The Optionee shall not be, nor have any of the rights or privileges of, a shareholder of the Company in respect of any Shares he may be issued upon the exercise of the Option or any portion thereof unless and until such Shares shall have been issued as evidenced by entry in the Company’s shareholder register upon satisfaction of the conditions set forth in Section 4.4.

ARTICLE V

MISCELLANEOUS

Section 5.1. Administration

The Committee shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Committee in good faith shall be final and binding upon the Optionee, the Company and all other interested persons. No member of the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or the Option. In its absolute discretion, the Board may at any time and from time to time exercise any and all rights and duties of the Committee under the Plan and this Agreement.

 

Section 5.2. Option Not Transferable

Subject to applicable law to the contrary, neither the Option nor any interest or right therein or part thereof shall be liable for the debts, contracts or engagements of the Optionee or his successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect; provided, that this Section 5.2 shall not prevent transfers by will or by the applicable laws of descent and distribution or to a partnership, limited liability company, corporation, trust or custodianship, the beneficiaries of which

 

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may include only the Optionee, his spouse (or ex-spouse) or his lineal descendants (including adopted children) or, if at any time after any such transfer there shall be no then living spouse or lineal descendants, then to the ultimate beneficiaries of any such trust or to the estate of a deceased beneficiary.

 

Section 5.3. Notices

Any written notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of the designated individual, and any notice to be given to the Optionee shall be addressed to him at the address on file at the Company; provided that notice may be provided electronically by complying with any applicable rules, policies, and procedures established by the Committee. By a notice given pursuant to this Section 5.3, either party may hereafter designate a different address for notices to be given to it or him. Any notice which is required to be given to the Optionee, shall, if the Optionee is then deceased, be given to the Optionee’s personal representative if such representative has previously informed the Company of his status and address by notice under this Section 5.3 that complies with any applicable rules, policies, and procedures established by the Committee. Written notice, if permitted by the Committee, shall have been deemed duly given, in each case as follows: (a) upon electronic confirmation of facsimile, (b) one business day following the date sent when sent by overnight delivery and (c) five (5) business days following the date mailed when mailed by registered or certified mail return receipt requested and postage prepaid.

 

Section 5.4. Titles; Pronouns

 

Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement. The masculine pronoun shall include the feminine and neuter, and the singular the plural, where the context so indicates.

 

Section 5.5. Applicability of Plan

The Option and the Shares issued to the Optionee upon exercise of the Option shall be subject to all of the terms and provisions of the Plan, to the extent applicable to the Option and such Shares. In the event of any conflict between this Agreement and the Plan, the terms of the Plan shall control.

 

Section 5.6. Amendment

This Agreement may be amended only by a writing executed by the parties hereto, which specifically states that it is amending this Agreement.

 

Section 5.7. Governing Law

The laws of the State of New York shall govern the interpretation, validity and performance of the terms of this Agreement, except to the extent that the issue or transfer of Shares shall be subject to mandatory provisions of the laws of England and Wales.

 

Section 5.8. Arbitration

In the event of any controversy among the parties hereto arising out of, or relating to, this Agreement which cannot be settled amicably by the parties, such controversy shall be finally, exclusively and conclusively settled by mandatory arbitration conducted expeditiously in accordance with the American Arbitration Association rules, by a single independent arbitrator. Such arbitration process shall take place within the Borough of Manhattan, in the City of New York, New York. The decision of the arbitrator shall be final and binding upon all parties hereto and shall be rendered pursuant

 

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to a written decision, which contains a detailed recital of the arbitrator’s reasoning. Judgment upon the award rendered may be entered in any court having jurisdiction thereof. Each party shall bear its own legal fees and expenses. Notwithstanding anything herein to the contrary, if the Optionee’s employment agreement or offer letter contains a similar provision relating to arbitration and/or dispute resolution, such provision in the employment agreement or offer letter shall govern any controversy hereunder.

Section 5.9.Code Section 409A

Notwithstanding any other provisions of this Agreement or the Plan, the Option granted hereunder shall not be deferred, accelerated, extended, paid out or modified in a manner that would result in the imposition of an additional tax under Section 409A of the Code upon the Optionee. In the event it is reasonably determined by the Committee that, as a result of Section 409A of the Code, the transfer of Shares under this Agreement may not be made at the time contemplated hereunder without causing the Optionee to be subject to taxation under Section 409A of the Code, the Company will make such payment on the first day that would not result in the Optionee incurring any tax liability under Section 409A of the Code. Notwithstanding anything herein to the contrary, if at the time of the Optionee’s termination of Employment with the Company the Optionee is a “specified employee” as defined in Section 409A of the Code and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of Employment is necessary in order to prevent any accelerated or additional tax under Section 409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Optionee) until the date that is six months following the Optionee’s termination of Employment with the Company (or the earliest date as is permitted under Section 409A of the Code without any accelerated or additional tax). The Optionee is solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on or in respect of such Optionee in connection with the Option (including any taxes and penalties under Section 409A), and neither the Company nor any of its Subsidiaries shall have any obligation to indemnify or otherwise hold the Optionee (or any beneficiary) harmless from any or all of such taxes or penalties. If the Option is considered “deferred compensation” subject to Section 409A, references in this Agreement and the Plan to “termination of Employment” and “separation from service” (and substantially similar phrases) shall mean “separation from service” within the meaning of Section 409A. For purposes of Section 409A, each payment that may be made in respect of the Option is designated as a separate payment.

Section 5.10.Counterparts

This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

Section 5.11. No Acquired Rights

In participating in the Plan, the Optionee acknowledges and accepts (i) that the Board has the power to amend or terminate the Plan, to the extent permitted thereunder, at any time, and (ii) that the opportunity given to the Optionee to participate in the Plan is entirely at the discretion of the Committee and does not obligate the Company or any of its Affiliates to offer such participation in the future (whether on the same or different terms). The Optionee further acknowledges and accepts that (a) such Optionee’s participation in the Plan is not to be considered part of any normal or expected compensation, (b) the value of the Options or the Shares shall not be used for purposes of determining any benefits or compensation payable to the Optionee or the Optionee’s beneficiaries or estate under any benefit arrangement of the Company or any Subsidiary, including but not limited to severance or indemnity payments, and (c) the termination of the Optionee’s employment with the Company and all Subsidiaries under any circumstances whatsoever will give the Optionee no claim or right of action against the

 

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Company or any Subsidiary in respect of any loss of rights under this Agreement or the Plan that may arise as a result of such termination of employment.

Section 5.12 Confidential Information; Non-Compete; Non-Solicitation

The Optionee acknowledges and agrees that the Optionee is bound by and will comply with the restrictive covenants and obligations contained in the Appendix to this Agreement, which covenants and obligations are incorporated herein by reference and made a part of this Agreement.

Section 5.13 Data Privacy The Optionee hereby acknowledges that:

(a)if he or she is based outside the UK and EEA, and his or her data is not

otherwise subject to the General Data Protection Regulation (EU) 2016/679 ("GDPR"), the GDPR in such form as incorporated into the law of England and Wales, Scotland and Northern Ireland by virtue of the European Union (Withdrawal) Act 2018 (the "UK GDPR")  and any regulations thereunder and the UK Data Protection Act 2018, the Company holds information about the Optionee relating to his or her employment, the nature and amount of his or her compensation, bank details, and other personal details and the fact and conditions of the Optionee’s participation in the Plan. The Optionee understands that the Company is the controller of the Optionee’s personal data and is the only person authorized to process that data and is responsible for maintaining adequate security with regard to it. As the Company is part of a group of companies operating internationally, it may be necessary for the Company to make the details referred to above available to: (i) other companies within the Company's group that may be located outside the geographical location in which the Optionee is employed and where there may be no legislation concerning an individual’s rights concerning personal data; (ii) third party advisers and administrators of the Plan; and/or (iii) the regulatory authorities. Any personal data made available by the Company to the parties referred to above in (i), (ii), or (iii) in relation to the Plan will only be for the purpose of administration and management of the Plan by the Company, on behalf of the Company. The Optionee’s information will not, under any circumstances, be made available to any party other the parties listed above under (i), (ii), or (iii). The Optionee hereby authorizes and directs the Company to disclose to the parties as described above under (i), (ii), or (iii) any of the above data that is deemed necessary to facilitate the administration of the Plan. The Optionee understands and authorizes the Company to store and transmit such data in electronic form. The Optionee confirms that the Company has notified the Optionee of his or her entitlement to reasonable access to the personal data held about the Optionee and of his or her rights to rectify any inaccuracies in that data; or

(b) if he or she is based in the UK and/or EEA, or his or her data is otherwise subject to GDPR, the UK GDPR or the UK Data Protection Act 2018, his or her personal data will be processed in accordance with the Company's European Union privacy notice (which will be provided to such Optionees and is available upon request).

Section 5.14 Forfeiture of Grant

 

If the Optionee does not sign and return this Agreement within six months following the Grant Date, this Option shall be forfeited and shall be of no further force and effect.

 

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11

NIELSEN HOLDINGS PLC

By: Laurie Lovett

Chief Human Resources Officer OPTIONEE:

Participant name

Online grant acceptance satisfies signature requirement

 

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12

Schedule A

 

 

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APPENDIX

Confidential Information; Non-Compete; Non-Solicitation

1.In consideration of the Company entering into this Agreement with the Optionee, the Optionee shall not, directly or indirectly, (i) at any time during or after the Optionee’s employment with the Company or any of its subsidiaries, parents or affiliates (collectively, “Nielsen”), disclose any Confidential Information (as defined below) except (A) when required to perform his or her duties to Nielsen; (B) as required by law or judicial process; or (C) in connection with any Protected Activity (as defined below) by the Optionee; or (ii) at any time during the Optionee’s employment with Nielsen and for a period of 12 months thereafter or, if the Optionee’s employment with Nielsen is terminated under circumstances that entitle the Optionee to receive severance under any severance plan, policy or agreement with Nielsen applicable to the Optionee at the time of such termination, for the duration of the applicable severance period under such plan, policy or agreement if such severance period is longer than 12 months (with, for the avoidance of doubt, the severance period for any lump sum severance payment being equal to the number of months of base salary being paid in such lump sum (for example, 1.5x base salary equates to a severance period of 18 months)) (A) associate with (whether as a proprietor, investor, director, officer, employee, consultant, partner or otherwise) or render services to any business that competes with the business of Nielsen, in any geographic or market area where Nielsen conducts business or provides products or services (or which the Optionee has knowledge, at the time in question, that Nielsen has plans to commence engaging in within twelve (12) months); provided, that nothing herein shall be deemed to prohibit the Optionee’s ownership of not more than 2% of the publicly-traded securities of any competing business; (B) induce, influence, encourage or solicit in any manner any (x) client or prospective client with which the Optionee had interactions in connection with his/her employment in the 18 months prior to termination of the Optionee’s employment with Nielsen, or (y) vendor or supplier of Nielsen, to cease or reduce doing business with Nielsen or to do business with any business in competition with the business of Nielsen; (C) solicit, recruit, or seek to hire, or otherwise assist or participate in any way in the solicitation or recruitment of, any person who has been employed or engaged by Nielsen at any time during the 6 months immediately preceding the termination of the Optionee’s employment, or induce, influence, or encourage in any manner, or otherwise assist or participate in any way in the inducement, influence or encouragement of, any such person to terminate his or her employment or engagement with Nielsen; or (D) hire or otherwise assist or participate in any way in the hiring of, any person who has been employed or engaged by Nielsen at any time during the 6 months immediately preceding the termination of the Optionee’s employment. The provisions hereof shall be in addition to and not in derogation of any other agreement covering similar matters to which the Optionee and the Company or any subsidiary or affiliate thereof are parties. For purposes of this agreement, the “business of Nielsen” means consumer purchasing measurement and analytics, media audience measurement and analytics, and any other line of business in which Nielsen is engaged at the time of the termination of the Optionee’s employment (or which the Optionee has knowledge, at the time in question, that Nielsen has plans to commence engaging in within twelve (12) months). If the Optionee is primarily providing services in California at the time the Optionee’s employment with Nielsen terminates, then sub-clauses (A), (B) and (D) of clause (ii) of this Section 1 shall not apply following such termination. If the Optionee lived or provided services in Massachusetts for at least thirty (30) days immediately preceding the Optionee’s termination, then sub-clause (A) of clause (ii) of this Section 1 shall not apply following such termination.

2.“Confidential Information” shall include all trade secrets and proprietary or other confidential information owned, possessed or used by Nielsen in any form, whether or not explicitly designated as confidential information, including, without limitation, business plans, strategies, customer lists, customer projects, cooperator lists, personnel information, financial information, pricing information, cost information, methodologies, software, data, and product research and development. Confidential Information shall not include any information that is generally known to the industry or the public other than as a result of the Optionee’s breach of this covenant or any breach of other confidentiality obligations by the Optionee, employees or third parties.

 

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3.If the Optionee performs services for an entity other than Nielsen at any time prior to the end of the 12-month post-termination period or, if longer, the applicable severance period (whether or not such entity is in competition with Nielsen), the Optionee shall notify the Company on or prior to the commencement thereof. To “perform services” shall mean employment or services as an employee, consultant, owner, partner, associate, agent or otherwise on behalf of any person, principal, partnership, firm or corporation.

4.If at any time a court holds that the restrictions stated in Section 1 above are unreasonable or otherwise unenforceable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographic area determined to be reasonable under such circumstances by such court will be substituted for the stated period, scope or area or, if the court does not undertake such substitution, then the remainder of Section 1 shall be given full effect without regard to the invalid portion. Because the Optionee’s services are unique and because the Optionee has had and will continue to have access to Confidential Information, the parties hereto agree that money damages will be an inadequate remedy for any breach of this Agreement. In the event of a breach or threatened breach of this Agreement, Nielsen or its successors or assigns may, in addition to other rights and remedies existing in their favor, (i) apply to any court of competent jurisdiction for specific performance and/or injunctive relief in order to enforce, or prevent any violations of, the provisions hereof (without the posting of a bond or other security); and (ii) may require the Optionee (A) to forfeit any vested or unvested portion of the Grant and to return all Shares previously issued to the Optionee under the Grant (“Grant Shares”); and (B) to pay to Nielsen the full value of any consideration received for the Grant Shares that were previously sold by the Optionee or otherwise disposed of to a third party (or if no such consideration was received, the then fair market value of the Grant Shares).

5.The Optionee acknowledges that the restrictions in Section 1 above are not greater than required to protect Nielsen’s legitimate business interests, including without limitation the protection of its Confidential Information and the protection of its client relationships, and are reasonably limited in time or duration, geography and scope of activity. The Optionee further acknowledges that, viewed separately or together, the restrictions in Section 1 above do not unfairly or unreasonably restrict the Optionee’s ability to obtain other comparable employment, earn a living, work in any particular area or otherwise impose an undue hardship on Optionee.

6.Protected Activity. Nothing in this Agreement shall prohibit or impede the Optionee from communicating, cooperating or filing a complaint with any U.S. federal, state or local governmental or law enforcement branch, agency or entity (collectively, a “Governmental Entity”) with respect to possible violations of any U.S. federal, state or local law or regulation, or otherwise making disclosures to any Governmental Entity, in each case, that are protected under the whistleblower provisions of any such law or regulation; provided, that in each case such communications and disclosures are consistent with applicable law. An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law; or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal, and does not disclose the trade secret, except pursuant to court order. Except as otherwise provided in this paragraph or under applicable law, under no circumstance is the Optionee authorized to disclose any information covered by Nielsen’s attorney-client privilege or attorney work product, or Nielsen’s trade secrets, without Nielsen’s prior written consent. The Optionee does not need the prior authorization of (or to give notice to) Nielsen regarding any communication, disclosure, or activity described in this paragraph.

 

Exhibit 10.4

RESTRICTED STOCK UNIT AWARD AGREEMENT

THIS RESTRICTED STOCK UNIT AWARD AGREEMENT (the “Agreement”) is hereby made effective as of the Grant Date set forth on the schedule attached hereto as Schedule A (“Schedule A”, such date, the “Grant Date”) between Nielsen Holdings plc, a company incorporated under the laws of England and Wales having its registered office in the United Kingdom (hereinafter referred to as the “Company”), and the individual whose name is set forth on Schedule A hereof, who is in the Employment of the Company or a Subsidiary (the “Participant”). For purposes of this Agreement, capitalized terms not otherwise defined herein shall have the meaning set forth in the Nielsen 2019 Stock Incentive Plan (the “Plan”).

WHEREAS, the Company desires to grant the Participant restricted stock units (“RSUs”), as provided hereunder and pursuant to the Plan, the terms of which are hereby incorporated by reference and made a part of this Agreement; and

WHEREAS, the Committee has determined that it would be to the advantage and best interest of the Company and its shareholders to grant the RSUs to the Participant (as provided in Section 1 below), ultimately payable in shares of common stock (the “Award”) as an incentive for increased efforts during the Participant’s term of office with the Company or a Subsidiary, 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 the number of RSUs to the Participant set forth on Schedule A, on the terms and conditions hereinafter set forth, and pursuant and subject to the terms of the Plan. Each RSU represents the unfunded, unsecured right of the Participant to receive one share of the Company’s common stock. 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, the Participant shall become vested in the RSUs in accordance with the Plan and the vesting provisions set forth on Schedule A (each date on which all or a portion of the RSUs become vested thereunder, a “Vesting Date”), subject to the continued Employment of the Participant by the Company or a Subsidiary through the relevant Vesting Date.

(b)Notwithstanding the foregoing, upon a termination of the Participant’s Employment by the Company or a Subsidiary without Cause or by the Participant for Good Reason, 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 such termination of Employment will become vested upon the date of such termination. The pro-rata portion subject to such vesting shall be 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. 

(c)Upon the Participant’s death or Permanent Disability, all unvested RSUs shall become immediately vested.

(d)Upon termination of the Participant’s Employment with the Company and all of its Subsidiaries for any reason other than as set forth in Section 2(b) or (c) above, all unvested RSUs shall immediately be forfeited by the Participant, without payment of any consideration therefor.

 

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(e)The Board shall cause to be delivered to the Participant such Shares underlying any non-forfeited, vested RSUs as soon as practicable after they become vested RSUs as provided in this Section 2 (but in no event later than 2½ months after the last day of the calendar year in which such RSUs become so vested).

(f)In the event of the death of the Participant the delivery of Shares under Section 2(e), 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.

(g)Upon each transfer of Shares in accordance with Section 2(e) above, 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. Notwithstanding the foregoing, the Participant may elect to defer the transfer of Shares by providing notice to the Company in accordance with all applicable rules, policies, and procedures established by the Committee.

3.Dividends. Unless otherwise provided pursuant to Section 4 below, from and after the Grant Date, the Participant will only be entitled to receive dividend equivalent payments or other distributions, if any, with respect to Shares underlying the RSUs in accordance with the terms set forth in Schedule A.  

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 10 of the Plan. For purposes of this Agreement, in order for an award to constitute a “Substitute Award” under Section 10 of the Plan, the award must be denominated in shares of publicly traded stock which are traded on an established U.S. or U.K. securities exchange.

5.Definitions. For purposes of this Agreement, the following terms shall have the following meanings:

“Cause” shall have the meaning ascribed to such term in the severance plan or policy of the Company or any of its Subsidiaries in which the Participant is eligible to participate immediately prior to the termination of the Participant’s Employment (the “Policy”).

“Good Reason” shall have the meaning ascribed to such term in the Policy.

“Permanent Disability” shall have the meaning ascribed to such term in the Policy.

6.No Right to Continued Employment. Nothing in this Agreement or in the Plan shall confer upon the Participant any right to continue in the Employment 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 Participant at any time for any reason whatsoever, with or without Cause, subject to the applicable provisions of, if any, the Participant’s Employment Agreement or offer letter provided by the Company or any Subsidiary to the Participant.

7.No Acquired Rights. In participating in the Plan, the Participant acknowledges and accepts (a) that the Board has the power to amend or terminate the Plan, to the extent permitted thereunder, at any time, and (b) that the opportunity given to the Participant to participate in the Plan is entirely at the discretion of the Committee and does not obligate the Company or any of its Affiliates to offer such participation in the future (whether on the same or different terms). The Participant further acknowledges and accepts that (i) such Participant’s participation in the Plan is not to be considered part of any normal or expected compensation, (ii) the value of the RSUs or the Shares shall not be used for purposes of determining any benefits or compensation payable to the Participant or the Participant’s beneficiaries or estate under any benefit arrangement of the Company or any Subsidiary, including but not limited to severance or indemnity payments, and (iii) the termination of the Participant’s Employment

 

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with the Company and all Subsidiaries under any circumstances whatsoever will give the Participant no claim or right of action against the Company or any Subsidiary in respect of any loss of rights under this Agreement or the Plan that may arise as a result of such termination of Employment.

8.No Rights of Shareholder. The Participant shall not have any rights or privileges as a shareholder of the Company until the Shares underlying vested RSUs have been registered in the Company’s register of stockholders as being held by the Participant.

9.Transferability. RSUs may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant otherwise than by will or by the laws of descent and distribution, and any purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance not permitted by this Section 9 shall be void and unenforceable against the Company or any Subsidiary or Affiliate.

10.Withholding. The Participant may be required to pay to the Company or any Affiliate, and the Company or any Affiliate shall have the right and is hereby authorized to withhold from any transfer due under this Agreement or under the Plan or from any compensation or other amount owing to the Participant, applicable withholding taxes with respect to any transfer under this Agreement or under the Plan and to take such action as may be necessary in the opinion of the Company to satisfy all obligations for the payment of such taxes, pursuant to Section 4(c) of the Plan.

11.Choice of Law. This agreement shall be governed by and construed in accordance with the laws of the state of New York without regard to conflicts of law, except to the extent that the issue or transfer of Shares shall be subject to mandatory provisions of the laws of England and Wales.

12.RSUs Subject to Plan. By entering into this Agreement, the Participant agrees and acknowledges that the Participant has received and read a copy of the Plan. All RSUs are subject to the Plan. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail.

13.Signature in Counterparts. If executed in writing, this Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

14.Section 409A of the Code. Notwithstanding any other provisions of this Agreement or the Plan, the RSUs granted hereunder shall not be deferred, accelerated, extended, paid out or modified in a manner that would result in the imposition of an additional tax under Section 409A of the Code upon the Participant. In the event it is reasonably determined by the Committee that, as a result of Section 409A of the Code, the transfer of Shares under this Agreement may not be made at the time contemplated hereunder without causing the Participant to be subject to taxation under Section 409A of the Code, the Company will make such payment on the first day that would not result in the Participant incurring any tax liability under Section 409A of the Code. Notwithstanding anything herein to the contrary, if at the time of the Participant’s termination of employment with the Company the Participant is a “specified employee” as defined in Section 409A of the Internal Revenue Code of 1986, as amended and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section 409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Participant) until the date that is six months following the Participant’s termination of employment with the Company (or the earliest date as is permitted under Section 409A of the Code without any accelerated or additional tax).  The Participant is solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on or in respect of such Participant in connection with the RSUs (including any taxes and penalties under Section 409A), and neither the Company nor any of its Subsidiaries shall have any obligation to indemnify or otherwise hold the

 

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Participant (or any beneficiary) harmless from any or all of such taxes or penalties.  If the RSUs are considered “deferred compensation” subject to Section 409A, references in this Agreement and the Plan to “termination of Employment” and “separation from service” (and substantially similar phrases) shall mean “separation from service” within the meaning of Section 409A.  For purposes of Section 409A, each payment that may be made in respect of the RSUs is designated as a separate payment.

 

15.Confidential Information; Non-Compete; Non-Solicitation

The Participant acknowledges and agrees that the Participant is bound by and will comply with the restrictive covenants and obligations contained in the Appendix to this Agreement, which covenants and obligations are incorporated herein by reference and made a part of this Agreement.

 

16.Data Privacy.  The Participant hereby acknowledges that:

(a)if he or she is based outside the UK and EEA, and his or her data is not otherwise subject to the General Data Protection Regulation (EU) 2016/679 ("GDPR"), the Company holds information about the Participant relating to his or her employment, the nature and amount of his or her compensation, bank details, and other personal details and the fact and conditions of the Participant’s participation in the Plan. The Participant understands that the Company is the controller of the Participant’s personal data and is the only person authorized to process that data and is responsible for maintaining adequate security with regard to it. As the Company is part of a group of companies operating internationally, it may be necessary for the Company to make the details referred to above available to: (i) other companies within the Company's group that may be located outside the geographical location in which the Participant is employed and where there may be no legislation concerning an individual’s rights concerning personal data; (ii) third party advisers and administrators of the Plan; and/or (iii) the regulatory authorities. Any personal data made available by the Company to the parties referred to above in (i), (ii), or (iii) in relation to the Plan will only be for the purpose of administration and management of the Plan by the Company, on behalf of the Company. The Participant’s information will not, under any circumstances, be made available to any party other the parties listed above under (i), (ii), or (iii).  The Participant hereby authorizes and directs the Company to disclose to the parties as described above under (i), (ii), or (iii) any of the above data that is deemed necessary to facilitate the administration of the Plan.  The Participant understands and authorizes the Company to store and transmit such data in electronic form.  The Participant confirms that the Company has notified the Participant of his or her entitlement to reasonable access to the personal data held about the Participant and of his or her rights to rectify any inaccuracies in that data; or

(b)if he or she is based in the UK and/or EEA, or his or her data is otherwise subject to GDPR, his or her personal data will be processed in accordance with the Company's European Union privacy notice (which will be provided to such Participants and is available upon request).

17.Forfeiture of Grant

 

If the Participant does not sign and return this Agreement within six months following the Grant Date, the RSUs shall be forfeited and shall be of no further force and effect.

 

 

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

 

 

 

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Schedule A

 

 

 

 

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APPENDIX

 

Confidential Information; Non-Compete; Non-Solicitation

 

 

 

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public other than as a result of the Participant’s breach of this covenant or any breach of other confidentiality obligations by the Participant, employees or third parties.

 

 

 

 

 

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Exhibit 10.5

 

NIELSEN HOLDINGS PLC

PERFORMANCE RESTRICTED STOCK UNIT AWARD AGREEMENT  

(FREE CASH FLOW CONVERSION)

 

THIS PERFORMANCE RESTRICTED STOCK UNIT AWARD AGREEMENT (the

“Agreement”), is made, effective as of #GrantDate# (the “Grant Date”) between Nielsen Holdings plc, a company incorporated under the laws of England and Wales having its registered office in the United Kingdom (hereinafter referred to as the “Company”), and #ParticipantName# (the “Participant”).  For purposes of this Agreement, capitalized terms not otherwise defined above or below, or in the Nielsen 2019 Stock Incentive Plan (the “Plan”), shall have the meanings set forth in Exhibit A attached to this Agreement and incorporated by reference herein.

WHEREAS, the Company desires to grant the Participant performance-based restricted

stock units (the “Performance RSUs”), as provided hereunder and pursuant to the Plan, the terms of which are hereby incorporated by reference and made a part of this Agreement; and

WHEREAS, the Committee has determined that it would be to the advantage and best

interest of the Company and its shareholders to grant the Performance RSUs to the Participant as an incentive for increased efforts during Participant’s term of office with the Company or a Subsidiary, and has advised the Company thereof and instructed the undersigned officers to grant said Performance RSUs.

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 the Performance RSUs.  

hereinafter set forth, the Company hereby grants to the Participant a target number of Performance RSUs equal to #QuantityGranted# (the “Target RSU Award”).  The actual number of Performance RSUs which the Participant will earn under this Agreement will be finally determined based upon the Company’s Free Cash Flow Conversion achievement for the period commencing on January 1, 2021 and ending on December 31, 2023 (the “Performance Period”), in accordance with the provisions of Exhibit A attached to this Agreement and made a part hereof.  

Participant to receive one share of the Company’s common stock upon earning and vesting.  The Participant will earn and become vested in the Performance RSUs, and take delivery of the Shares, as set forth in this Agreement.

2. Earning of Performance RSUs. Until the applicable vesting date(s) provided

below, (i) the Performance RSUs shall be subject to forfeiture by the Participant to the Company as provided in this Agreement, and (ii) the Participant may not sell, assign, transfer, discount, exchange, pledge or otherwise encumber or dispose of any of the Performance RSUs unless the restrictions have terminated in accordance with the provisions of this Agreement.

(a) Service and Performance Requirements Absent a Change in Control. The Performance RSUs shall become vested, earned and no longer subject to forfeiture based upon the level of achievement of the Company’s performance goals for the Performance Period as set forth on Exhibit A, as well as the conditions set forth in both subsections (i) and (ii) of this Section 2(a):

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(i)    Service Requirements.  

(A)General Rule: Unless otherwise provided in this Agreement, so long as the Participant continues to be employed by the Company or any of its Subsidiaries through the end of the Performance Period, the Participant shall, on the Performance Vesting Date (defined in Section 2(a)(ii) below), vest in and earn the number of Performance RSUs determined as set forth on Exhibit A hereto.  If, prior to the end of the Performance Period, and absent the occurrence of a Change in Control, the Participant’s employment with Company and its Subsidiaries is terminated for any reason, then the Performance RSUs shall be forfeited by the Participant to the Company without consideration as of the date of such termination of employment and this Agreement shall terminate without payment in respect thereof.

 

(B)Exceptions to Forfeiture on Termination of Employment: Notwithstanding clause (A) above, if, prior to the end of the Performance Period, and absent the occurrence of any Change in Control, the Participant’s employment with Company and its Subsidiaries is terminated:

death, Permanent Disability or Retirement) or involuntarily by the Company for Cause, then the Performance RSUs shall be forfeited by the Participant to the Company without consideration as of the date of such termination of employment, and this Agreement shall terminate without payment in respect thereof; or

(2)involuntarily by the Company and its Subsidiaries without Cause, by the participant for Good Reason, by the Participant if mutually agreed to in writing by the Company with reference to this Agreement and the amounts payable under this Section, or due to the Participant’s Retirement, then the Participant will be eligible to earn a number of Performance RSUs equal to the product of (x) the total number of Performance RSUs that would have become vested and earned pursuant to Section 2(a)(ii) below if the Participant had remained employed with the Company or a Subsidiary through the end of the Performance Period, and (y) a fraction, the denominator of which is equal to 1096 and the numerator of which is equal to:

shall immediately vest in full and be paid to the Participant as soon as practicable thereafter, and no additional amounts shall be payable hereunder with respect to the Performance Period

Amounts payable under this provision shall be paid at the time such payment would have been made if employment had not terminated, except in the case of death or Permanent Disability as described above.

 

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(ii) Performance Requirement. The Performance RSUs shall, so long as the

Participant remains employed with the Company or its Subsidiaries through the end of the Performance Period (or except as otherwise provided in Section 2(a) (i) above), become vested, earned and no longer subject to forfeiture in such number of Performance RSUs as shall be determined as set forth on Exhibit A hereto. Whether and to what extent the Performance RSUs shall become vested and earned shall be determined at a meeting of the Committee (such meeting date, the “Performance Vesting Date”) as soon as practicable following the end of the Performance Period pursuant to a certification by the Committee of the Company’s achievement, if any, of the applicable performance goals set forth on Exhibit A hereto.

  

(b) Effect of Change in Control. If a Change in Control occurs during the Performance Period, the Participant shall earn a number of Performance RSUs as follows:  

equivalent value are not substituted for the Performance RSUs by the Company or its successor and the Participant is employed with the Company or any of its Subsidiaries on the effective date of the Change in Control, then on the effective date of the Change in Control the Participant shall become vested in and earn 100% of the Target RSU Award; but  

(ii)if the Performance RSUs are assumed, continued or substituted by the Company or its successor, then the Participant shall become vested in and earn, on the last day of the Performance Period, so long as the Participant is employed with the Company or any of its Subsidiaries (or any successors thereto) on such date, 100% of the Target RSU Award; provided, that if, prior to the end of the Performance Period, the Participant’s employment by the Company or any of its Subsidiaries (or any successors thereto) is involuntarily terminated by the Company and its Subsidiaries without Cause, terminated by the Participant for Good Reason, or terminates due to the Participant’s death, Permanent Disability or Retirement, then the Participant shall become vested in and earn 100% of the Target RSU Award payable as promptly as practicable following such termination of employment.

(c) Delivery of Shares; Forfeiture. As promptly as practicable following the

Performance Vesting Date or any other earlier vesting date provided under Section 2(b) above, the

Company shall cause to be delivered to the Participant such Shares underlying any non-forfeited, vested Performance RSUs as soon as practicable after they are earned and vested as provided in this Agreement (but in no event later than 2 ½ months after the last day of the calendar year in which such Performance RSUs became so earned and vested).  

 

take any actions with respect to any unvested Performance RSUs subject to this Agreement pursuant to Section 9 of the Plan.

following meanings:

“Cause” shall have the meaning ascribed to such term in the severance plan or policy of the Company or any of its Subsidiaries in which the Participant is eligible to participate immediately prior to the termination of the Participant’s Employment (the “Policy”).

“Good Reason” shall have the meaning ascribed to such term in the Policy.  

“Permanent Disability” shall mean that, due to an injury or illness, the Participant requires the regular care and attendance of a qualified, licensed and practicing physician, and the Participant is unable to perform the material duties of his or her regular occupation due to such injury or illness.  The Committee or its delegee shall have the sole discretion to determine whether this definition is met.

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“Retirement” shall mean (a) any statutorily mandated retirement date required under laws applicable to the Participant or (b) such other retirement date (which date may vary by Participant) as may be approved by the Committee or a designated officer of the Company, as delegated in accordance with the Plan.

 

5.No Right to Continued Employment. Nothing in this Agreement or in the Plan shall confer upon the Participant any right to continue in the Employment 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 Participant at any time for any reason whatsoever, with or without Cause, subject to the applicable provisions of, if any, the Participant’s Employment Agreement or offer letter provided by the Company or any Subsidiary to the Participant.

6.No Acquired Rights. In participating in the Plan, the Participant acknowledges and accepts (a) that the Board has the power to amend or terminate the Plan, to the extent permitted thereunder, at any time, and (b) that the opportunity given to the Participant to participate in the Plan is entirely at the discretion of the Committee and does not obligate the Company or any of its Affiliates to offer such participation in the future (whether on the same or different terms).  The Participant further acknowledges and accepts that (i) such Participant’s participation in the Plan is not to be considered part of any normal or expected compensation, (ii) the value of the Performance RSUs or the Shares shall not be used for purposes of determining any benefits or compensation payable to the Participant or the Participant’s beneficiaries or estate under any benefit arrangement of the Company or any Subsidiary, including but not limited to severance or indemnity payments, and (iii) the termination of the Participant’s Employment with the Company and all Subsidiaries under any circumstances whatsoever will give the Participant no claim or right of action against the Company or any Subsidiary in respect of any loss of rights under this Agreement or the Plan that may arise as a result of such termination of Employment.

7.No Rights of Shareholder; No Dividend Equivalents. The Participant shall not have any rights or privileges as a shareholder of the Company until the Shares underlying vested Performance RSUs have been registered in the Company’s register of stockholders as being held by the Participant.  No dividend equivalents or other distributions shall be paid or payable with respect to Performance RSUs.

8.Transferability. Performance RSUs may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant otherwise than by will or by the laws of descent and distribution, and any purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance not permitted by this Section 8 shall be void and unenforceable against the Company or any Subsidiary or Affiliate.  

9.Withholding. The Participant may be required to pay to the Company or any Affiliate, and the Company or any Affiliate shall have the right and is hereby authorized to withhold from any transfer due under this Agreement or under the Plan or from any compensation or other amount owing to the Participant, applicable withholding taxes with respect to any transfer under this Agreement or under the Plan and to take such action as may be necessary in the opinion of the Company to satisfy all obligations for the payment of such taxes, pursuant to Section 4(c) of the Plan.

10.Choice of Law. This agreement shall be governed by and construed in accordance with the laws of the state of New York without regard to conflicts of law, except to the extent that the issue or transfer of Shares shall be subject to mandatory provisions of the laws of England and Wales.

11.Performance RSUs Subject to Plan. By entering into this Agreement, the Participant agrees and acknowledges that the Participant has received and read a copy of the Plan. All

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Performance RSUs are subject to the Plan. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail.

 

12.Signature in Counterparts. If executed in writing, this Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

13.Clawback. The Participant shall forfeit or repay amounts awarded hereunder, whether or not vested, if:

(a)The amount of the award was calculated based upon the achievement of certain financial results that were subsequently the subject of a restatement or the correction of a material error; and

(b)The Participant engaged in intentional misconduct that caused or partially caused the material error; and

(c)The amount that would have been awarded to the Participant had the financial results been properly reported, would have been less than the amount actually awarded (such difference being the amount forfeited or repaid hereunder).

14.Section 409A of the Code. Notwithstanding any other provisions of this Agreement or the Plan, the Performance RSUs granted hereunder shall not be deferred, accelerated, extended, paid out or modified in a manner that would result in the imposition of an additional tax under Section 409A of the Code upon the Participant. In the event it is reasonably determined by the Committee that, as a result of Section 409A of the Code, the transfer of Shares under this Agreement may not be made at the time contemplated hereunder without causing the Participant to be subject to taxation under Section 409A of the Code, the Company will make such payment on the first day that would not result in the Participant incurring any tax liability under Section 409A of the Code. Notwithstanding anything herein to the contrary, if at the time of the Participant’s termination of employment with the Company the Participant is a “specified employee” as defined in Section 409A of the Code and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section 409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Participant) until the date that is six months following the Participant’s termination of employment with the Company (or the earliest date as is permitted under Section 409A of the Code without any accelerated or additional tax). The Participant is solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on or in respect of such Participant in connection with the Performance RSUs (including any taxes and penalties under Section 409A), and neither the Company nor any of its Subsidiaries shall have any obligation to indemnify or otherwise hold the Participant (or any beneficiary) harmless from any or all of such taxes or penalties.  If the Performance RSUs are considered “deferred compensation” subject to Section 409A, references in this Agreement and the Plan to “termination of Employment” and “separation from service” (and substantially similar phrases) shall mean “separation from service” within the meaning of Section 409A.  For purposes of Section 409A, each payment that may be made in respect of the Performance RSUs is designated as a separate payment.

15.Compliance with Restrictive Covenants. In the event of a breach or threatened breach of any restrictive covenant to with the Participant is subject under any plan or agreement with the Company or any of its Subsidiaries, the Company or its successors or assigns may, in addition to other rights and remedies existing in their favor, require the Participant (a) to forfeit any Performance RSUs granted hereunder and to return all Shares previously issued to the Participant in

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settlement of any vested Performance RSUs; and (b) to pay to the Company the full value of any consideration received for any Shares issued in settlement of Performance RSUs that were previously sold by the Participant or otherwise disposed of to a third party (or if no such consideration was received, the then fair market value of such Shares).

16.Data Privacy.  The Participant hereby acknowledges that:

(a)if he or she is based outside the UK and EEA, and his or her data is not otherwise subject to the General Data Protection Regulation (EU) 2016/679 ("GDPR"), the GDPR in such form as incorporated into the law of England and Wales, Scotland and Northern Ireland by virtue of the European Union (Withdrawal) Act 2018 (the "UK GDPR")  and any regulations thereunder and the UK Data Protection Act 2018, the Company holds information about the Optionee relating to his or her employment, the nature and amount of his or her compensation, bank details, and other personal details and the fact and conditions of the Optionee’s participation in the Plan. The Optionee understands that the Company is the controller of the Optionee’s personal data and is the only person authorized to process that data and is responsible for maintaining adequate security with regard to it. As the Company is part of a group of companies operating internationally, it may be necessary for the Company to make the details referred to above available to: (i) other companies within the Company's group that may be located outside the geographical location in which the Optionee is employed and where there may be no legislation concerning an individual’s rights concerning personal data; (ii) third party advisers and administrators of the Plan; and/or (iii) the regulatory authorities. Any personal data made available by the Company to the parties referred to above in (i), (ii), or (iii) in relation to the Plan will only be for the purpose of administration and management of the Plan by the Company, on behalf of the Company. The Optionee’s information will not, under any circumstances, be made available to any party other the parties listed above under (i), (ii), or (iii). The Optionee hereby authorizes and directs the Company to disclose to the parties as described above under (i), (ii), or (iii) any of the above data that is deemed necessary to facilitate the administration of the Plan. The Optionee understands and authorizes the Company to store and transmit such data in electronic form. The Optionee confirms that the Company has notified the Optionee of his or her entitlement to reasonable access to the personal data held about the Optionee and of his or her rights to rectify any inaccuracies in that data;  

(b)or if he or she is based in the UK and/or EEA, or his or her data is otherwise subject to GDPR, the UK GDPR or the UK Data Protection Act 2018, his or her personal data will be processed in accordance with the Company's European Union privacy notice (which will be provided to such Optionees and is available upon request).

17. Forfeiture of Grant.  If the Participant does not sign and return this Agreement within six months following the Grant Date, the Performance RSUs shall be forfeited and shall be of no further force and effect.

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

NIELSEN HOLDINGS PLC

 

By:

Laurie Lovett

Chief People Officer

 

PARTICIPANT

 

 

 

 

Online grant acceptance satisfies signature   requirement

________________________________________

#ParticipantName#

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EXHIBIT A

 

 

The number of Earned FCFC Performance RSUs determined in Part 1 shall be multiplied by the Relative TSR Multiplier in Part 2 to determine the total number of Vested Performance RSUs (as defined below), which shall constitute the total number of Performance RSUs that will become vested, earned and no longer subject to forfeiture pursuant to the terms of the Agreement to which this Exhibit A is attached.

Part 1

Free Cash Flow Conversion Award Opportunity. The Participant’s Target RSU Award (the “FCFC

Target RSUs”) shall be eligible to vest and be earned if and only if the Company’s Free Cash Flow

Conversion over the Performance Period (the “FCF Conversion Achievement”) at least equals or exceeds forty percent (40%) (the “FCFC Threshold Target”). Subject to the Company’s achievement of the FCFC Threshold Target, the number of Performance RSUs that will become earned under this Part 1 shall be equal to the product of (x) the number of FCFC Target RSUs and (y) the FCFC Performance Factor (as set forth in the table below) (such number of RSUs, the “Earned FCFC Performance RSUs”).  The number of Earned FCFC Performance RSUs is then subject to a multiplier based on relative total shareholder return, as described in Part 2, below, to determine the number of Vested Performance RSUs.  If the FCFC Threshold Target is not achieved, no percentage of the FCFC Target RSUs will become vested or earned and the Performance RSUs shall be immediately forfeited without consideration.  If the FCFC Threshold Target is met, the number of Earned FCFC Performance RSUs shall be determined as follows:

 

 

If the FCF Conversion Achievement falls between two percentages set forth above, the FCFC Performance Factor shall be interpolated on a linear basis in order to determine the number of Earned FCFC Performance RSUs.

 

 

 

2

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Part 2

Relative Total Shareholder Return Modifier.  Following the conclusion of the Performance Period, the number of Earned FCFC Performance RSUs, if any, are adjusted by applying a modifier (the “Relative TSR Multiplier”) based on the total shareholder return, or “TSR”, during the Performance Period as compared to the TSR of the Peer Group companies for the three-year period (the Relative Total Shareholder Return or “rTSR”), as set forth in the table below.  If the Company’s rTSR is below the 25th percentile of the Peer Group, the Relative TSR Multiplier will be .75X.  If the Company's rTSR is at or above the 75th percentile of the Peer Group, the Relative TSR Multiplier will be 1.25X.  If the rTSR is between the 25th and 75th percentiles, the Relative TSR Multiplier will be determined based on the chart below:  

 

 

If the rTSR is determined by the Committee to fall exactly at the dividing point between two rTSR ranges (e.g., at precisely the 25^th Percentile), then result shall be deemed to fall in the higher range (e.g., “Between 25^th and 40^th Percentile”) and apply the greater Relative TSR Multiplier (e.g., .85X).

Calculation of Vested Performance Shares (Earned FCFC Performance RSUs times Relative TSR Multiplier).  

The product of the Relative TSR Multiplier and the Earned FCFC Performance RSUs (determined in Part 1) shall determine the total number of Performance RSUs that vest (the “Vested Performance RSUs”).  For the avoidance of doubt, the maximum amount of the award including the FCFC Performance Factor and the Relative TSR Multiplier may not exceed 200% of the Target RSU Award.  If the FCFC Threshold Target described in Part 1 is not achieved, then the number of Vested Performance RSUs shall be zero, regardless of the Relative TSR Multiplier. Fractional Vested Performance RSUs shall be rounded up to the next whole Vested Performance RSU.

 

 

 

3

 

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Definitions

“Adjusted EBITDA” shall mean net income or loss from the Company’s consolidated statements of operations before interest income and expense, income taxes, depreciation and amortization, restructuring charges, stock-based compensation expense and other non-operating items from the Company’s consolidated statements of operations and excluding the following items: (a) restructuring expenses; (b) the impact of costs relating to stock-based compensation; (c) foreign currency exchange transaction gains and losses; and (d) expenses and gains that arise outside the ordinary course of Company operations.

“Free Cash Flow” shall mean net cash provided by operating activities from continuing operations and pro-forma as if the sale of the NielsenIQ business to Advent International occurred on January 1, 2021 less the sum of (a) net additions to property, plant, and equipment and other assets, and (b) net additions to intangible assets.

Free Cash Flow will be adjusted for the following: (1) impact of foreign currency (FX) relative to the FX assumption used in setting the FCF Conversion achievement targets, (2) capital expenditures, within the definitions of clauses (a) and (b) of the immediately preceding sentence, requiring Board approval, not contemplated in the Company’s operating plan, (3) restructuring and acquisition-related cash transaction costs (“Restructuring and Acquisition Costs”) having an impact on Free Cash Flow not contemplated in the Company’s operating plan, and requiring Board approval, (4) acquisitions and divestitures as approved by the Board, (5) changes in accounting principles that impact Free Cash Flow, and (6) such other one-time impacts including separation related costs that are non-recurring, and are reflecting in the Company’s financial statements, the notes to financial statements or in the management discussion to the financial statements that were not contemplated in the FCF plan.  At the end of the Performance Period, all costs falling within the definition of Restructuring and Acquisition Costs will be summed to yield the total Restructuring and Acquisition Costs and Free Cash Flow will be adjusted if total Restructuring and Acquisition Costs are approved by the Board.

“Free Cash Flow Conversion” shall mean Three Year Cumulative Free Cash Flow divided by Three Year Cumulative Adjusted EBITDA.

“Beginning Stock Price” shall mean, for purposes of determining the TSR for the Company and each company in the Peer Group, respectively, the average closing price per share of common stock of each such entity based on the twenty (20) trading day period ending immediately prior to January 1, 2021.  For any company with more than one issue of common stock, the calculation shall be made on the primary (most actively traded) issue of stock.

“Ending Stock Price” shall mean, for purposes of determining TSR for each of the Company and each company in the Peer Group, respectively, the average closing price per share of common stock based on the twenty (20) trading day period ending immediately prior to (and including, if it is a trading day) December 31, 2023.  For any company with more than one issue of common stock, the calculation shall be made based on the primary (most actively traded) issue of stock.

“TSR” shall mean the amount equal to:

(a) the sum of:  

(x)the Ending Stock Price minus the Beginning Stock Price, plus  

(y)the amount of any cash dividends paid on a per share basis on any shares of common stock of the applicable company (calculated as if such dividends had been reinvested in the applicable company’s common stock at the end of the month in which each dividend is made, based on the ex-dividend date) cumulatively over the Performance Period; divided by

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(b) the Beginning Stock Price.

“Peer Group” shall mean each of the following companies if it remains publicly listed at the end of the Performance Period:  Alliance Data Systems Corp, comScore, CoreLogic, Equifax Inc., Experian, Fair Isaac Corporation, Gartner, Inc., IHS Markit Ltd., Teradata Corporation, The Interpublic Group, The Trade Desk, Inc., Thomson Reuters Corp, TransUnion, Verint Systems Inc., and Verisk Analytics Inc.; provided, that, if prior to the end of the Performance Period a company that is in the Peer Group ceases to publicly report, on either a recognized stock exchange or “over the counter” market, a share price for the security used to determine the stock price at the beginning of the Performance Period and such company or entity has not become “Insolvent” (as defined below), such company will be excluded from the ranking, provided further, that, if prior to the end of the Performance Period a company that is in the Peer Group becomes Insolvent, whether or not such company ceases to publicly report a share price for the security used to determine the stock price at the beginning of the Performance Period, then such company will be treated as having a TSR of negative one hundred percent (-100%).  A company will be considered “Insolvent” if it (i) files for bankruptcy, reorganization, or liquidation under any chapter of the U.S.

Bankruptcy Code; (ii) is the subject of an involuntary bankruptcy proceeding that is not dismissed within 30 days; (iii) is the subject of a stockholder approved plan of liquidation or dissolution; or (iv) ceases to conduct substantial business operations.

“Three Year Cumulative Adjusted EBITDA” shall mean 2021-2023 Adjusted EBITDA as adjusted for impact of foreign currency (FX) relative to the FX assumption used in setting the Company’s operating plan.  

“Three Year Cumulative Free Cash Flow” shall mean 2021-2023 Free Cash Flow.

189

Exhibit 10.6

 

NIELSEN HOLDINGS PLC

PERFORMANCE RESTRICTED STOCK UNIT AWARD AGREEMENT  

(AVERAGE ORGANIC REVENUE GROWTH RATE)

 

THIS PERFORMANCE RESTRICTED STOCK UNIT AWARD AGREEMENT (the

“Agreement”), is made, effective as of #GrantDate# (the “Grant Date”) between Nielsen Holdings plc, a company incorporated under the laws of England and Wales having its registered office in the United Kingdom (hereinafter referred to as the “Company”), and #ParticipantName# (the “Participant”).  For purposes of this Agreement, capitalized terms not otherwise defined above or below, or in the Nielsen 2019 Stock Incentive Plan (the “Plan”), shall have the meanings set forth in Exhibit A attached to this Agreement and incorporated by reference herein.

WHEREAS, the Company desires to grant the Participant performance-based restricted

stock units (the “Performance RSUs”), as provided hereunder and pursuant to the Plan, the terms of which are hereby incorporated by reference and made a part of this Agreement; and

WHEREAS, the Committee has determined that it would be to the advantage and best

interest of the Company and its shareholders to grant the Performance RSUs to the Participant as an incentive for increased efforts during Participant’s term of office with the Company or a Subsidiary, and has advised the Company thereof and instructed the undersigned officers to grant said Performance RSUs.

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 the Performance RSUs.  

hereinafter set forth, the Company hereby grants to the Participant a target number of Performance RSUs equal to #QuantityGranted# (the “Target RSU Award”).  The actual number of Performance RSUs which the Participant will earn under this Agreement will be finally determined based upon the Company’s Average Organic Revenue Growth Rate achievement for the period commencing on January 1, 2021 and ending on December 31, 2023 (the “Performance Period”), in accordance with the provisions of Exhibit A attached to this Agreement and made a part hereof.  

Participant to receive one share of the Company’s common stock upon earning and vesting.  The Participant will earn and become vested in the Performance RSUs, and take delivery of the Shares, as set forth in this Agreement.

2. Earning of Performance RSUs. Until the applicable vesting date(s) provided

below, (i) the Performance RSUs shall be subject to forfeiture by the Participant to the Company as provided in this Agreement, and (ii) the Participant may not sell, assign, transfer, discount, exchange, pledge or otherwise encumber or dispose of any of the Performance RSUs unless the restrictions have terminated in accordance with the provisions of this Agreement.

(a) Service and Performance Requirements Absent a Change in Control. The Performance RSUs shall become vested, earned and no longer subject to forfeiture based upon the level of achievement of the Company’s performance goals for the Performance Period as set forth on Exhibit A, as well as the conditions set forth in both subsections (i) and (ii) of this Section 2(a):

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2

(i)     Service Requirements.  

(A)General Rule: Unless otherwise provided in this Agreement, so long as the

Participant continues to be employed by the Company or any of its Subsidiaries through the end of the Performance Period, the Participant shall, on the Performance Vesting Date (defined in Section 2(a)(ii) below), vest in and earn the number of Performance RSUs determined as set forth on Exhibit A hereto.  If, prior to the end of the Performance Period, and absent the occurrence of a Change in Control, the

Participant’s employment with Company and its Subsidiaries is terminated for any reason, then the Performance RSUs shall be forfeited by the Participant to the Company without consideration as of the date of such termination of employment and this Agreement shall terminate without payment in respect thereof.

(B)Exceptions to Forfeiture on Termination of Employment: Notwithstanding clause (A) above, if, prior to the end of the Performance Period, and absent the occurrence of any Change in Control, the Participant’s employment with Company and its Subsidiaries is terminated:

death, Permanent Disability or Retirement) or involuntarily by the Company for Cause, then the Performance RSUs shall be forfeited by the Participant to the Company without consideration as of the date of such termination of employment, and this Agreement shall terminate without payment in respect thereof; or

(2)involuntarily by the Company and its Subsidiaries without Cause, by the Participant for Good Reason, by the Participant if mutually agreed to in writing by the Company with reference to this Agreement and the amounts payable under this Section, or due to the Participant’s Retirement, then the Participant will be eligible to earn a number of Performance RSUs equal to the product of (x) the total number of Performance RSUs that would have become vested and earned pursuant to Section 2(a)(ii) below if the Participant had remained employed with the Company or a Subsidiary through the end of the Performance Period, and (y) a fraction, the denominator of which is equal to 1096 and the numerator of which is equal to:

(3)due to the Participant’s death or Permanent Disability, then the Target RSU Award shall immediately vest in full and be paid to the Participant as soon as practicable thereafter, and no additional amounts shall be payable hereunder with respect to the Performance Period.

Amounts payable under this provision shall be paid at the time such payment would have been made if employment had not terminated, except in the case of death or Permanent Disability as described above.

 

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(ii) Performance Requirement. The Performance RSUs shall, so long as the

Participant remains employed with the Company or its Subsidiaries through the end of the Performance Period (or except as otherwise provided in Section 2(a)(i) above), become vested, earned and no longer subject to forfeiture in such number of Performance RSUs as shall be determined as set forth on Exhibit A hereto. Whether and to what extent the Performance RSUs shall become vested and earned shall be determined at a meeting of the Committee (such meeting date, the “Performance Vesting Date”) as soon as practicable following the end of the Performance Period pursuant to a certification by the Committee of the Company’s achievement, if any, of the applicable performance goals set forth on Exhibit A hereto.  

(b) Effect of Change in Control. If a Change in Control occurs during the Performance Period, the Participant shall earn a number of Performance RSUs as follows:  

equivalent value are not substituted for the Performance RSUs by the Company or its successor and the Participant is employed with the Company or any of its Subsidiaries on the effective date of the Change in Control, then on the effective date of the Change in Control the Participant shall become vested in and earn 100% of the Target RSU Award; but  

(ii)if the Performance RSUs are assumed, continued or substituted by the Company or its successor, then the Participant shall become vested in and earn, on the last day of the Performance Period, so long as the Participant is employed with the Company or any of its Subsidiaries (or any successors thereto) on such date, 100% of the Target RSU Award; provided, that if, prior to the end of the Performance Period, the Participant’s employment by the Company or any of its Subsidiaries (or any successors thereto) is involuntarily terminated by the Company and its Subsidiaries without Cause, terminated by the Participant for Good Reason, or terminates due to the Participant’s death, Permanent Disability or Retirement, then the Participant shall become vested in and earn 100% of the Target RSU Award payable as promptly as practicable following such termination of employment.

(c) Delivery of Shares; Forfeiture. As promptly as practicable following the

Performance Vesting Date or any other earlier vesting date provided under Section 2(b) above, the

Company shall cause to be delivered to the Participant such Shares underlying any non-forfeited, vested

Performance RSUs as soon as practicable after they are earned and vested as provided in this Agreement (but in no event later than 2 ½ months after the last day of the calendar year in which such Performance RSUs became so earned and vested).  

take any actions with respect to any unvested Performance RSUs subject to this Agreement pursuant to Section 9 of the Plan.

following meanings: “Cause” shall have the meaning ascribed to such term in the severance plan or policy of the Company or any of its Subsidiaries in which the Participant is eligible to participate immediately prior to the termination of the Participant’s Employment (the “Policy”).

“Good Reason” shall have the meaning ascribed to such term in the Policy.  

“Permanent Disability” shall mean that, due to an injury or illness, the Participant requires the regular care and attendance of a qualified, licensed and practicing physician, and the Participant is unable to perform the material duties of his or her regular occupation due to such injury or illness.  The Committee or its delegee shall have the sole discretion to determine whether this definition is met.

“Retirement” shall mean (a) any statutorily mandated retirement date required under laws applicable to the Participant or (b) such other retirement date (which date may vary by Participant) as

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may be approved by the Committee or a designated officer of the Company, as delegated in accordance with the Plan.

shall confer upon the Participant any right to continue in the Employment 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 Participant at any time for any reason whatsoever, with or without Cause, subject to the applicable provisions of, if any, the Participant’s Employment Agreement or offer letter provided by the Company or any Subsidiary to the Participant.

and accepts (a) that the Board has the power to amend or terminate the Plan, to the extent permitted thereunder, at any time, and (b) that the opportunity given to the Participant to participate in the Plan is entirely at the discretion of the Committee and does not obligate the Company or any of its Affiliates to offer such participation in the future (whether on the same or different terms).  The Participant further acknowledges and accepts that (i) such Participant’s participation in the Plan is not to be considered part of any normal or expected compensation, (ii) the value of the Performance RSUs or the Shares shall not be used for purposes of determining any benefits or compensation payable to the Participant or the Participant’s beneficiaries or estate under any benefit arrangement of the Company or any Subsidiary, including but not limited to severance or indemnity payments, and (iii) the termination of the Participant’s Employment with the Company and all Subsidiaries under any circumstances whatsoever will give the Participant no claim or right of action against the Company or any Subsidiary in respect of any loss of rights under this Agreement or the Plan that may arise as a result of such termination of Employment.

7.No Rights of Shareholder; No Dividend Equivalents. The Participant shall not have any rights or privileges as a shareholder of the Company until the Shares underlying vested Performance RSUs have been registered in the Company’s register of stockholders as being held by the Participant.  No dividend equivalents or other distributions shall be paid or payable with respect to Performance RSUs.

8.Transferability. Performance RSUs may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant otherwise than by will or by the laws of descent and distribution, and any purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance not permitted by this Section 8 shall be void and unenforceable against the Company or any Subsidiary or Affiliate.  

9.Withholding. The Participant may be required to pay to the Company or any Affiliate, and the Company or any Affiliate shall have the right and is hereby authorized to withhold from any transfer due under this Agreement or under the Plan or from any compensation or other amount owing to the Participant, applicable withholding taxes with respect to any transfer under this Agreement or under the Plan and to take such action as may be necessary in the opinion of the Company to satisfy all obligations for the payment of such taxes, pursuant to Section 4(c) of the Plan.

10.Choice of Law. This agreement shall be governed by and construed in accordance with the laws of the state of New York without regard to conflicts of law, except to the extent that the issue or transfer of Shares shall be subject to mandatory provisions of the laws of England and Wales.

11.Performance RSUs Subject to Plan. By entering into this Agreement, the Participant agrees and acknowledges that the Participant has received and read a copy of the Plan. All Performance RSUs are subject to the Plan. In the event of a conflict between any term or provision

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contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail.

12.Signature in Counterparts. If executed in writing, this Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

13.Clawback. The Participant shall forfeit or repay amounts awarded hereunder, whether or not vested, if:

financial results that were subsequently the subject of a restatement or the correction of a material error; and

the material error; and

results been properly reported, would have been less than the amount actually awarded (such difference being the amount forfeited or repaid hereunder).

14.Section 409A of the Code. Notwithstanding any other provisions of this Agreement or the Plan, the Performance RSUs granted hereunder shall not be deferred, accelerated, extended, paid out or modified in a manner that would result in the imposition of an additional tax under Section 409A of the Code upon the Participant. In the event it is reasonably determined by the Committee that, as a result of Section 409A of the Code, the transfer of Shares under this Agreement may not be made at the time contemplated hereunder without causing the Participant to be subject to taxation under Section 409A of the Code, the Company will make such payment on the first day that would not result in the Participant incurring any tax liability under Section 409A of the Code. Notwithstanding anything herein to the contrary, if at the time of the Participant’s termination of employment with the Company the Participant is a “specified employee” as defined in Section 409A of the Code and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section 409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Participant) until the date that is six months following the Participant’s termination of employment with the Company (or the earliest date as is permitted under Section 409A of the Code without any accelerated or additional tax). The Participant is solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on or in respect of such Participant in connection with the Performance RSUs (including any taxes and penalties under Section 409A), and neither the Company nor any of its Subsidiaries shall have any obligation to indemnify or otherwise hold the Participant (or any beneficiary) harmless from any or all of such taxes or penalties.  If the Performance RSUs are considered “deferred compensation” subject to Section 409A, references in this Agreement and the Plan to “termination of Employment” and “separation from service” (and substantially similar phrases) shall mean “separation from service” within the meaning of Section 409A.  For purposes of Section 409A, each payment that may be made in respect of the Performance RSUs is designated as a separate payment.

15.Compliance with Restrictive Covenants. In the event of a breach or threatened breach of any restrictive covenant to with the Participant is subject under any plan or agreement with the Company or any of its Subsidiaries, the Company or its successors or assigns may, in addition to other rights and remedies existing in their favor, require the Participant (a) to forfeit any Performance RSUs granted hereunder and to return all Shares previously issued to the Participant in

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settlement of any vested Performance RSUs; and (b) to pay to the Company the full value of any consideration received for any Shares issued in settlement of Performance RSUs that were previously sold by the Participant or otherwise disposed of to a third party (or if no such consideration was received, the then fair market value of such Shares).

6

16.Data Privacy.  The Participant hereby acknowledges that:

(a)if he or she is based outside the UK and EEA, and his or her data is not otherwise subject to the General Data Protection Regulation (EU) 2016/679 ("GDPR"), the GDPR in such form as incorporated into the law of England and Wales, Scotland and Northern Ireland by virtue of the European Union (Withdrawal) Act 2018 (the "UK GDPR")  and any regulations thereunder and the UK Data Protection Act 2018, the Company holds information about the Optionee relating to his or her employment, the nature and amount of his or her compensation, bank details, and other personal details and the fact and conditions of the Optionee’s participation in the Plan. The Optionee understands that the Company is the controller of the Optionee’s personal data and is the only person authorized to process that data and is responsible for maintaining adequate security with regard to it. As the Company is part of a group of companies operating internationally, it may be necessary for the Company to make the details referred to above available to: (i) other companies within the Company's group that may be located outside the geographical location in which the Optionee is employed and where there may be no legislation concerning an individual’s rights concerning personal data; (ii) third party advisers and administrators of the Plan; and/or (iii) the regulatory authorities. Any personal data made available by the Company to the parties referred to above in (i), (ii), or (iii) in relation to the Plan will only be for the purpose of administration and management of the Plan by the Company, on behalf of the Company. The Optionee’s information will not, under any circumstances, be made available to any party other the parties listed above under (i), (ii), or (iii). The Optionee hereby authorizes and directs the Company to disclose to the parties as described above under (i), (ii), or (iii) any of the above data that is deemed necessary to facilitate the administration of the Plan. The Optionee understands and authorizes the Company to store and transmit such data in electronic form. The Optionee confirms that the Company has notified the Optionee of his or her entitlement to reasonable access to the personal data held about the Optionee and of his or her rights to rectify any inaccuracies in that data;  

(b)or if he or she is based in the UK and/or EEA, or his or her data is otherwise subject to GDPR, the UK GDPR or the UK Data Protection Act 2018, his or her personal data will be processed in accordance with the Company's European Union privacy notice (which will be provided to such Optionees and is available upon request).

17. Forfeiture of Grant.  If the Participant does not sign and return this Agreement within six months following the Grant Date, the Performance RSUs shall be forfeited and shall be of no further force and effect.

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

NIELSEN HOLDINGS PLC

 

 

By:

Laurie Lovett

Chief People Officer

 

PARTICIPANT

 

 

 

 

Online grant acceptance satisfies signature   requirement

________________________________________

#ParticipantName#

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EXHIBIT A

 

 

The number of Earned AORGR Performance RSUs determined in Part 1 shall be multiplied by the Relative TSR Multiplier in Part 2 to determine the total number of Vested Performance RSUs (as defined below), which shall constitute the total number of Performance RSUs that will become vested, earned and no longer subject to forfeiture pursuant to the terms of the Agreement to which this Exhibit A is attached.

Part 1

Average Organic Revenue Growth Rate Award Opportunity. The Participant’s Target RSU Award

(the “AORGR Target RSUs”) shall be eligible to vest and be earned if and only if the Company’s Average Organic Revenue Growth Rate over the Performance Period (the “AORGR Achievement”) at least equals or exceeds three and one half percent (3.5%) (the “AORGR Threshold Target”). Subject to the Company’s achievement of the AORGR Threshold Target, the number of Performance RSUs that will become earned under this Part 1 shall be equal to the product of (x) the number of AORGR Target RSUs and (y) the AORGR Performance Factor (as set forth in the table below) (such number of RSUs, the “Earned AORGR Performance RSUs”).  The number of Earned AORGR Performance RSUs is then subject to a multiplier based on relative total shareholder return, as described in Part 2, below, to determine the number of Vested Performance RSUs.  If the AORGR Threshold Target is not achieved, no percentage of the AORGR Target RSUs will become vested or earned and such portion of the Performance RSUs shall be immediately forfeited without consideration.  If the AORGR Threshold Target is met, the number of Earned AORGR Performance RSUs shall be determined as follows:

 

 

If the AORGR Achievement falls between two percentages set forth above, the AORGR Performance Factor shall be interpolated on a linear basis in order to determine the number of Earned AORGR Performance RSUs.

For significant divestitures (greater than $50M annual revenue) the targets set forth above may be adjusted by the Committee to reflect the average three-year organic constant currency growth rate for 2021-2023 excluding the impact of the divestiture. Such targets may also be adjusted by the Committee in its sole discretion for other one-time adjustments not contemplated in the Company’s operating plan approved by the Board or changes in accounting principles that impact Revenue.

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Part 2

Relative Total Shareholder Return Modifier.  Following the conclusion of the Performance Period, the number of Earned AORGR Performance RSUs, if any, are adjusted by applying a modifier (the “Relative TSR Multiplier”) based on the total shareholder return, or “TSR”, during the Performance Period as compared to the TSR of the Peer Group companies for the three-year period (the Relative Total Shareholder Return or “rTSR”), as set forth in the table below.  If the Company’s rTSR is below the 25th percentile of the Peer Group, the Relative TSR Multiplier will be .75X.  If the Company's rTSR is at or above the 75th percentile of the Peer Group, the Relative TSR Multiplier will be 1.25X.  If the rTSR is between the 25th and 75th percentiles, the Relative TSR Multiplier will be determined based on the chart below:  

 

 

If the rTSR is determined by the Committee to fall exactly at the dividing point between two rTSR ranges (e.g., at precisely the 25^th Percentile), then result shall be deemed to fall in the higher range (e.g., “Between 25^th and 40^th Percentile”) and apply the greater Relative TSR Multiplier (e.g., .85X).

Calculation of Vested Performance Shares (Earned AORGR Performance RSUs times Relative TSR Multiplier).  

The product of the Relative TSR Multiplier and the Earned AORGR Performance RSUs (determined in

Part 1) shall determine the total number of Performance RSUs that vest (the “Vested Performance

RSUs”).  For the avoidance of doubt, the maximum amount of the award including the AORGR Performance Factor and the Relative TSR Multiplier may not exceed 200% of the Target RSU Award.  If the AORGR Threshold Target described in Part 1 is not achieved, then the number of Vested Performance RSUs shall be zero, regardless of the Relative TSR Multiplier. Fractional Vested Performance RSUs shall be rounded up to the next whole Vested Performance RSU.

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Definitions

“Average Organic Revenue Growth Rate” shall mean the average organic growth rate in Revenue during the Performance Period and above the Base Revenue, which shall be measured in constant currency and calculated as: (1) the quotient obtained by dividing Ending Revenue, by Base Revenue; (2) raised to the power of 1/3 (i.e., one divided by the number of years in the Performance Period); and (3) subtracting one from the final result.  For the purposes hereof, organic constant currency revenue is constant currency revenue excluding (x) the net effect of business acquisitions and divestitures over the 12 month period immediately preceding the applicable measurement date and (y) fluctuations in foreign currency exchange rates.

“Revenue” shall mean income to the Company generated from the sale of goods or services before any costs or expenses are deducted all in accordance with U.S. GAAP, as depicted in the Condensed Financial Statements in the Company’s applicable annual financial statements.  

“Base Revenue” shall mean the Company’s consolidated revenue for the year ending December 31, 2020 (as reported in the Company’s consolidated statement of operations for the year ending December 31, 2020 included in the Company’s Annual Report on Form 10-K (or any successor form) for the year then ending, as filed with the Securities and Exchange Commission (the “2020 Form 10-K”) and subject to such adjustments as may be approved by the Committee in its sole discretion.

“Ending Revenue” shall mean the Company’s consolidated revenue for the year ending December 31, 2023 as reported in the Company’s consolidated statement of operations for the year ending December 31, 2023 included in the Company’s Annual Report on Form 10-K (or any successor form) for the year then ending, as filed with the Securities and Exchange Commission (the “2023 Form 10-K”) and subject to such adjustments as may be approved by the Committee in its sole discretion.

“Beginning Stock Price” shall mean, for purposes of determining the TSR for the Company and each company in the Peer Group, respectively, the average closing price per share of common stock of each such entity based on the twenty (20) trading day period ending immediately prior to January 1, 2021.  For any company with more than one issue of common stock, the calculation shall be made on the primary (most actively traded) issue of stock.

“Ending Stock Price” shall mean, for purposes of determining the TSR for each of the Company and each company in the Peer Group, respectively, the average closing price per share of common stock based on the twenty (20) trading day period ending immediately prior to (and including, if it is a trading day) December 31, 2023.  For any company with more than one issue of common stock, the calculation shall be made based on the primary (most actively traded) issue of stock.

“TSR” shall mean the amount equal to:

(a) the sum of:  

(x)the Ending Stock Price minus the Beginning Stock Price, plus  

(y)the amount of any cash dividends paid on a per share basis on any shares of common stock of the applicable company (calculated as if such dividends had been reinvested in the applicable company’s common stock at the end of the month in which each dividend is made, based on the ex-dividend date) cumulatively over the Performance Period; divided by

(b)       the Beginning Stock Price.

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“Peer Group” shall mean each of the following companies if it remains publicly listed at the end of the Performance Period:  Alliance Data Systems Corp, comScore, CoreLogic, Equifax Inc., Experian, Fair Isaac Corporation, Gartner, Inc., IHS Markit Ltd., Teradata Corporation, The Interpublic Group, The Trade Desk, Inc., Thomson Reuters Corp, TransUnion, Verint Systems Inc., and Verisk Analytics Inc.; provided, that, if prior to the end of the Performance Period a company that is in the Peer Group ceases to publicly report, on either a recognized stock exchange or “over the counter” market, a share price for the security used to determine the stock price at the beginning of the Performance Period and such company or entity has not become “Insolvent” (as defined below), such company will be excluded from the ranking, provided further, that, if prior to the end of the Performance Period a company that is in the Peer Group becomes Insolvent, whether or not such company ceases to publicly report a share price for the security used to determine the stock price at the beginning of the Performance Period, then such company will be treated as having a TSR of negative one hundred percent (-100%).  A company will be considered “Insolvent” if it (i) files for bankruptcy, reorganization, or liquidation under any chapter of the U.S. Bankruptcy Code; (ii) is the subject of an involuntary bankruptcy proceeding that is not dismissed within 30 days; (iii) is the subject of a stockholder approved plan of liquidation or dissolution; or (iv) ceases to conduct substantial business operations.

 

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Exhibit 31.1

Certification of the Chief Executive Officer

I, David Kenny, certify that:

Date: May 6, 2021

 

 

 

 

Exhibit 31.2

Certification of the Chief Financial Officer

I, Linda Zukauckas, certify that:

Date: May 6, 2021

 

 

 

 

Exhibit 32.1

Certification

Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

(Subsections (a) and (b) of Section 1350, Chapter 63 of Title 18, United States Code)

Pursuant to Rule 13a-14(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of Section 1350, Chapter 63 of Title 18, United States Code), each of the undersigned does hereby certify that:

The Quarterly Report on Form 10-Q for the quarter ended March 31, 2021 (the “Form 10-Q”) of Nielsen Holdings plc fully complies with the requirements of section 13(a) or 15(d) of the Exchange Act and information contained in the Form 10-Q fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

 

 

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