DEATH BENEFIT AGREEMENT Eric G. Melin
Exhibit
99.2
Xxxx
X. Xxxxx
THIS
AGREEMENT, effective August 22, 2008 between Nalco Company
(hereinafter "Nalco"), a corporation organized and existing under the laws of
Delaware, and Xxxx X. Xxxxx (hereinafter
"Executive").
WHEREAS,
the Executive is employed by Nalco as a corporate officer;
and
WHEREAS,
in consideration of Executive’s future services to Nalco, Nalco will agree to
pay to the Executive or the Executive's designees certain benefits in accordance
with the provisions and conditions hereinafter set forth;
and
NOW,
THEREFORE, for value received and in consideration of the mutual
covenants contained herein, the parties covenant and agree as
follows:
ARTICLE
I
DEATH
BENEFIT
If
the termination of the Executive's employment is on account of the Executive's
death during employment with Nalco while eligible under this Agreement, Nalco
will pay a benefit under this Agreement, in an amount equal to Two Hundred
Percent (200%) of the Executive's base annual salary as of the date of the
Executive's last day of work, to such beneficiary or beneficiaries as the
Executive may have designated by filing with Nalco a notice in writing in a form
attached hereto as Exhibit A.
If
the Executive dies at any time after retirement (meaning he qualifies for
retiree health and welfare benefits i.e. - has ten or more years of service with
Nalco after age 45) with this Agreement having been in effect at the time of
such qualification, Nalco will pay a benefit under this Agreement in an amount
equal to one hundred and fifty percent (150%) of the Executive's base annual
salary as of the date of the Executive's last day of work, to such beneficiary
or beneficiaries as the Executive may have designated by filing with Nalco a
notice in writing in a form attached hereto as Exhibit A.
This
benefit shall not be payable if the Executive was terminated from his Nalco
employment for cause or if he has violated any Nalco agreements (as determined
by Nalco in its reasonable discretion).
In
the absence of any such designation of beneficiaries, such benefit which is
payable will be paid to the Executive's estate. Such benefit which is
payable will be paid by Nalco in a lump sum within thirty (30) days following
the date of Executive’s death, or within thirty (30) days following the
settlement date with the insurance company if a policy is taken out by Nalco,
whichever is later. If the termination of the Executive's employment
is on account of any occurrence or circumstances other than the Executive's
death or retirement after qualifying for retiree health and welfare benefits, no
benefit will be payable under this Agreement.
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ARTICLE
II
MISCELLANEOUS
PROVISIONS
2.1
Satisfaction of Claim
The
Executive agrees that the Executive's rights and interests under this Agreement,
and rights and interests under this Agreement of any persons taking under or
through the Executive, will be completely satisfied upon compliance by Nalco
with the provisions of this Agreement.
2.2
Amendments/Entire Agreement
This
Agreement may be altered, amended or revoked only by a written instrument signed
by Nalco and the Executive. This Agreement represents the entire
agreement of the parties with respect to the subject matter hereof.
2.3
Governing Law
This
Agreement will be governed by the laws of the State of Illinois.
2.4
Non-Assignable Rights
It
is agreed that neither the Executive nor the Executive's spouse, nor other
beneficiary, will have any right to commute, sell, assign, transfer or otherwise
convey the right to receive any payments hereunder without having the written
consent of Nalco to do so. Such payments and the right thereto are
expressly declared to be non-assignable and non-transferable.
2.5
No Contract of Employment Created
This
Agreement will not be deemed to constitute a contract of employment between the
parties hereto, nor will any provision hereof restrict the right of Nalco to
discharge the Executive, or restrict the right of the Executive to terminate the
Executive's employment.
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2.6
Non-Secured Promise
2.6.1 The
rights of the Executive under this Agreement and of any beneficiary of the
Executive will be solely those of an unsecured creditor of the
Corporation. Any insurance policy or any other asset acquired or held
by Nalco in connection with the liabilities assumed by it hereunder, will not be
deemed to be held under any trust for the benefit of the Executive or the
Executive's beneficiaries or to be security for the performance of the
obligations of Nalco, but will be, and remain, a general, unpledged,
unrestricted asset of Nalco.
2.6.2 The
benefits under this Agreement will be paid by Nalco from its general
assets. To cover all or part of its potential liabilities under the
plan, Nalco may, but need not, purchase life insurance policies on the life of
the Executive, but the Executive will not have any preferred claim against the
policies or any beneficial ownership in the policies under this
Agreement. Nalco makes no representation that it will use any life
insurance policies acquired by it and insuring the life of the Executive only to
provide benefits under this Agreement or that any such policies will, in any
way, represent security for the payment of the benefits provided for in this
Agreement. An Executive's right to a benefit under this Agreement
will not, except as may be provided for in paragraph 2.7, be limited or governed
in any way by the amount of insurance proceeds received by Nalco.
2.7
Limitations on Benefits
2.7.1
If Nalco does deem it appropriate to insure all or any part of its obligation,
in accordance with Section 2.6.2 Nalco will so notify the
Executive. The Executive agrees to take whatever actions may be
necessary to enable Nalco to timely apply for and acquire such insurance and to
fulfill the requirements of the insurance company relative to the insurance
thereof.
2.7.2
If the Executive is required by this Agreement to submit information to the
insurance company and if the Executive has made a material misrepresentation in
an application for any insurance that is used to insure its obligations under
this Agreement, and if as a result of that material misrepresentation the
insurance company is not required to pay all or any part of the benefit provided
under that insurance, the Executive's right to a benefit under this Agreement
will be reduced by the amount of the benefit that is not paid by the insurance
company because of such material misrepresentation.
2.7.3
No benefit will be payable under this Agreement if the Executive dies by suicide
within two years after the effective date of this Agreement. No
increase in the amount of any benefit provided in this Agreement will be payable
under this Agreement if the Executive dies by suicide within two years after the
effective date of such increase.
2.8 Administrator
Nalco's
Employee Benefit Plan Administration Committee (EBPAC) will be the Administrator
under this Agreement. EBPAC may authorize or designate a person or
group of persons to fulfill the responsibilities of EBPAC as
Administrator. The Administrator (or designee(s)) may employ others
to render advice with regard to its responsibilities under this
Agreement.
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2.9 Claims
Procedure
2.9.1 Filing
Claims. Any insured, beneficiary or other individual
(hereinafter "Claimant") entitled to benefits under the Agreement will file a
claim request with the Administrator. The Administrator will, upon
written request of a Claimant, make available copies of any claim forms or
instructions or advise the Claimant where such forms or instructions may be
obtained. The Administrator shall notify Claimant in writing of its
decision within thirty (30) days of its receipt of Claimant’s claim
request. If the Administrator fails to notify Claimant of its
decision with such thirty (30) day period, the claim shall be deemed denied upon
the expiration of the thirty (30) day period.
2.9.2 Review
Procedure. Within thirty (30) days after receipt of a denial
of a claim (or within thirty (30) days after date of deemed denial) a Claimant
may file a written request for review with the Administrator. The
Administrator will then make available copies of any pertinent forms or
instructions or advise Claimant where such forms or instructions may be
obtained.
EBPAC
(or its designee(s)) will have the sole responsibility for the review of any
denied claim and will take all steps appropriate in the light of its
findings. EBPAC shall notify Claimant, in writing, of its decision on
appeal within thirty (30) days following receipt of Claimant’s written request
for review of the denied claim.
IN WITNESS WHEREOF, the
parties have hereunto set their hands and seals, Nalco by its duly authorized
officer, on the day and year first written above.
Executive
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Xxxx
X. Xxxxx
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Nalco
Company
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EXHIBIT
A
DESIGNATION
OF BENEFICIARY
Nalco
Company
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Name
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I
hereby designate
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of
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Address
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Who
is my
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Relationship
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as
the beneficiary(ies) under the Death Benefit Agreement between Nalco and me, to
whom benefits that are payable shall be paid at the time of my
death. (Unless otherwise stated if more than one beneficiary is
designated, it is understood that distribution shall be made in equal shares to
the designated beneficiaries but only to such of them as shall survive
me.) I reserve the right to change my beneficiary(ies).
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Witness:
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Executive:
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Witness
should not be a beneficiary
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Dated:
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