AMENDED AND RESTATED EMPLOYMENT AND CONSULTING AGREEMENT
Exhibit
99.1
AMENDED
AND RESTATED
EMPLOYMENT
AND CONSULTING AGREEMENT
EMPLOYMENT
AND CONSULTING AGREEMENT (this “Agreement”), dated as of November 2, 2007
by and between Na1co Holding Company, a Delaware corporation (the
“Company”), Nalco LLC, a Delaware limited liability company
(“LLC”) and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (“Executive”).
WHEREAS,
Executive entered into an Employment Agreement dated as of August 3, 2004 with
LLC, an affiliate of the Company, pursuant to which Executive agreed to serve
as
the Chief Executive Officer of the predecessor to the Company (the “Nalco LLC
Employment Agreement”).
WHEREAS,
Executive, the Company and LLC desire to amend and restate the Nalco LLC
Employment Agreement.
NOW,
THEREFORE, for good or valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged, Executive and the Company agree as
follows:
ARTICLE
I
TERM
OF
AGREEMENT
Section
1.01 Retirement
Date. Executive’s
employment with the Company shall be deemed to have commenced on November 4,
2003 and shall terminate on December 30, 2007 (the “Retirement Date”),
provided, however, that Executive’s employment may be extended beyond the
Retirement Date by mutual agreement of the Company and Executive.
ARTICLE
II
TERMS
OF
EMPLOYMENT
Section
2.01 Employment,
Retirement Transition and Succession Planning. Executive
agrees to continue in his current position as Chief Executive Officer of the
Company and Chairman of the Board of Directors until the earlier of (i) December
30, 2007, (ii) the appointment of a successor chief executive officer or
(iii) the board’s election of a new chair. Executive agrees to
diligently assist the Board of Directors of the Company through the Consulting
Period in its search for and transition to his successor including, without
limitation, cooperating fully with the Board of Directors when communicating
and
interacting with the Company’s internal and external constituencies and
otherwise acting in the best interests of the Company. The Executive
acknowledges that his agreement to cooperate with and assist the Board of
Directors of the Company with the succession planning and transition process
is
a material inducement to the Company entering into this
Agreement. Following the Retirement Date, except for the Consulting
Services to be provided pursuant to Article V, or as otherwise provided
in this Agreement or as mutually agreed upon between Executive and the Company,
Executive will not be required to provide further services to the
Company.
Section
2.02 Office
and Staff. During
Executive’s employment by the Company the Company shall maintain appropriately
appointed executive offices for Executive at the Company’s headquarters in
Naperville, Illinois from which Executive shall perform his
duties. Following the Retirement Date and through December 31, 2012,
the Company shall provide Executive with one executive secretarial assistant
approved by Executive and appropriate office equipment (which shall not include
an office) and supplies. The Executive acknowledges that (a) the
amount of such in-kind benefit related to the secretarial support provided
by
the Company during the Executive’s tax year shall not affect the amount of
in-kind benefit provided by the Company in any other tax year and (b) the
Executive’s right to this in-kind benefit is not subject to liquidation or
exchange for another benefit.
Section
2.03 Base
Salary, Variable Compensation and Expenses.
(a) Until
the Retirement Date, Executive shall continue to receive a base annual salary
of
One Million Dollars ($1,000,000), pro rated for any partial year, payable in
equal monthly installments, subject to applicable tax withholdings, in
accordance with the Company’s normal payroll practices.
(b) Executive
shall be eligible to earn annual variable compensation for the full fiscal
year
ending on December 31, 2007 in accordance with the Company’s Management
Incentive Plan (the “MIP”). For purposes of determining the bonus, the Company
will use the company wide standard applicable to executives under the MIP as
such standard relates to the chief executive officer position. The bonus will
be
paid in accordance with the terms of the MIP and the Company’s regular
practices.
(c) The
Company shall promptly reimburse Executive for all ordinary, necessary,
reasonable and proper business expenses actually incurred by Executive in
connection with the performance and discharge of his duties and responsibilities
under this Agreement in accordance with the policies and procedures established
by the Company from time to time. Executive will not incur expenses
other than in accordance with the Company’s policies and procedures both as to
the nature and amount of such expenses or otherwise as provided in this
Agreement.
Section
2.04 Equity
Awards.
(a) The
Company shall grant Executive three restricted stock awards pursuant to the
Company’s 2004 Stock Incentive Plan (“SIP”). Executive shall receive
a restricted stock award having a value of $4.0 million in December 2007 (the
“2007 Award”), a second restricted stock award having a value of $4.0 million in
January 2008 (the “2008 Award”) and a third restricted stock award having a
value of $4.0 million in January 2009 (the “2009 Award”). In each
case the value of the award shall be based on the Fair Market Value (as such
term is defined in the SIP) of the shares on the date of grant. The
2007 Award shall be made on December 31, 2007 and the 2008 Award and 2009 Award
shall be made during the first five business days of those years. The
2007 Award shall vest on March 31, 2008 if the Performance Conditions for the
first quarter of 2008 are achieved and the 2008 Award shall vest on December
31,
2008 if the Performance Conditions for 2008 are achieved. The 2009
Award shall vest on December 31, 2009 if the Performance Conditions for 2009
are
achieved. As used herein, Performance Conditions shall mean: the
Company’s achieving 3% sales growth in the first quarter of 2008 (with respect
to the 2007 Award), 3% sales growth for 2008 ( for the 2008 Award) and 3% sales
growth for 2009 (for the 2009 Award). If the Company fails to achieve
3% sales growth in the first quarter of 2008, then the 2007 Award
will also vest if the Company achieves cumulative 3% sales growth for the two
year period 2008-2009. If the Company does not achieve 3% sales
growth in the first quarter of 2008 and does not achieve cumulative
3% sales growth for the two year period 2008-2009, then the 2007
Award will be forfeited. If the Company fails to achieve
3% sales growth in 2008 or 2009, then the 2008 Award and the 2009 Award will
also vest if the Company achieves cumulative 3% sales growth for the two year
period 2008-2009. If the Company does not achieve 3% sales growth in
2008 and does not achieve cumulative 3% sales growth for the two year period
2008-2009 then the 2008 Award shall be forfeited. If the
Company does not achieve 3% sales growth in 2009 and does not achieve cumulative
3% sales growth for the two year period 2008-2009 then the 2009 Award will
be
forfeited.
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The
above
restricted shares shall also be forfeited if the Board, acting in good
faith, reasonably concludes, on or before March 31, 2008 or such
earlier date as the Board appoints a successor CEO, that ▇▇. ▇▇▇▇▇ has failed
to
comply in any material respect with his obligations to assist with the CEO
search and transition process as set forth in Section 2.01 during the
period up to and including March 31, 2008, or such earlier date as the Board
appoints a successor CEO. Except as otherwise provided for in this
Section 2.04, the restricted stock awards will be governed by the terms
and conditions of the SIP.
(b) In
the event Executive dies prior to the grant of any award pursuant to
Section 2.04(a) then in lieu of the restricted stock awards not yet
granted at the time of death, the Company will pay a cash equivalent in the
amount of $4.0 million for each ungranted award to Executive’s designated
beneficiary (as set forth in Executive’s Death Benefit Agreement, unless
Executive notifies the Company in writing of a different beneficiary) on the
date such award would otherwise have been granted to Executive. All previously
granted unvested awards will vest upon the Executive’s death.
ARTICLE
III
CERTAIN
BENEFITS; INDEMNIFICATION
Section
3.01 Personal
Benefits.
(a) Until
the Retirement Date, Executive shall continue to be entitled to receive all
fringe benefits, observe all holidays, be eligible for such sick days and
personal days as may be established by the Company for its executives, and
participate in all plans generally available to executive personnel of the
Company, including without limitation, any qualified or non-qualified pension
plans, hospital, medical, accident, disability, life insurance, and dental
coverages. The Company and ▇▇. ▇▇▇▇▇ shall enter into an amendment to
his Executive Death Benefit Agreement in the form attached hereto as Exhibit
A.
(b) As
of the date of this Agreement, Executive is entitled to 12 days of
unused vacation in 2007. Executive will be paid for any unused
vacation as of the Retirement Date in accordance with Company
policy.
(c) On
or prior to the Retirement Date, the Company will transfer ownership of
Executive’s Company provided car to the Executive.
(d)
Until the Retirement Date, the Company shall pay for suitable housing for the
Executive in the Illinois area.
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(e) Until
the Retirement Date, Executive shall be entitled to receive paid transportation
to and from Connecticut at such times as Executive shall determine, but not
more
frequently than one round trip per week and one round trip per
holiday.
(f) The
Company will pay or reimburse Executive for his 2007 tax and financial planning
expenses in accordance with the Company’s policies.
(g) The
Company will pay Executive $15,000 as reimbursement for his legal fees incurred
in connection with the negotiation of this Agreement.
(h) The
Company acknowledges that, in accordance with the terms of the Nalco LLC
Employment Agreement Executive’s unvested Class B, C and D units will vest on
the Retirement Date.
Section
3.02 Indemnification. Anything
in this Agreement to the contrary notwithstanding, the Company agrees to pay
all
reasonable costs and expenses incurred by Executive in connection with the
enforcement of his rights and entitlements under this Agreement, unless the
trier of fact in such matter finds that Executive’s claim was brought or
maintained in bad faith or was frivolous. In addition, Executive shall be
indemnified and covered by liability insurance on the same terms and conditions
as other senior executives of the Company with respect to his service as an
employee of the Company and his service to its affiliates and predecessors
and
with respect to his service on the Board of Directors of the
Company.
Section
3.03 No
Other Benefits. Executive
acknowledges and agrees that, other than as specifically set forth in this
Agreement, upon or following the Retirement Date, Executive is not and will
not
be due any compensation, including, but not limited to, compensation for unpaid
salary (except for amounts unpaid and owing for Executive’s employment prior to
the Retirement Date), unpaid bonus or variable compensation or severance
benefits of any kind. Except as provided herein, Executive will not
be eligible to participate in any of the benefit plans of the Company after
the
Retirement Date. However, Executive will be entitled to receive
benefits that are vested and accrued prior to the Retirement Date pursuant
to
the Company’s health or welfare or qualified or non-qualified savings, pension
or retirement plans. Any participation by Executive in any of the
compensation or benefit plans of the Company of any of its affiliates as of
and
after the Retirement Date shall be subject to and determined in accordance
with
the terms and conditions of such plans, except as otherwise expressly set forth
in this Agreement.
Section
3.04 Death
or Disability. In
the event Executive dies or becomes “permanently and totally disabled” (within
the meaning of Section 22(c)(3) of the Internal Revenue Code of 1986, as
amended) prior to the Retirement Date, then Executive’s employment with the
Company shall be deemed to have terminated on the date of his death or the
date
he becomes permanently and totally disabled. Executive shall be
entitled to receive the equity awards pursuant to Section 2.04,
notwithstanding his disability. In the event of Executive’s death, in
lieu of restricted stock awards not yet granted at the time of death, the
Company will pay Executive’s designated beneficiary cash and any previously
granted and unvested shares will vest pursuant to Section
2.04(b).
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ARTICLE
IV
TERMINATION
OF EMPLOYMENT; CHANGE IN CONTROL
Section
4.01 Termination
of Employment for Cause. Prior
to the Retirement Date the Company may terminate Executive’s employment for
“Cause.” A termination of Executive’s employment by the Company shall
be considered to be for “Cause” under this Agreement if the Company Board
terminates his employment based upon a determination that Executive has (i)
engaged in serious misconduct in connection with the performance of his duties
hereunder, (ii) willfully neglected his duties hereunder, or (iii) engaged
in
criminal conduct or other serious misconduct that is likely to be harmful to
the
business or reputation of the Company; provided, that if the foregoing actions
or inactions on the part of Executive are capable of cure, the Company Board
shall give Executive notice of the first occurrence thereof and five business
days’ opportunity to cure. In the event Executive’s employment is
terminated for Cause, the Company shall have no further obligation to make
any
payments or awards to Executive under Articles II or III of this
Agreement.
Section
4.02 Change
in Control. The
consequence of the termination of Executive’s employment after a Change in
Control is governed by a separate Change in Control Employment Agreement between
the Company and Executive (the “Change in Control Agreement”) dated as of
May 10, 2005. The Change of Control Agreement shall terminate on the
date Executive ceases to be Chief Executive Officer, unless prior to that date
(i) a change of control (as such term is defined in the Change of Control
Agreement) has occurred, or (ii) any person has announced or otherwise disclosed
in a press release or pursuant to a filing with the Securities and Exchange
Commission the intention to pursue a transaction that is reasonably calculated
to effect a change of control.
Section
4.03 Resignation. Executive
shall resign from the Company’s Board of Directors and from all other officer or
director positions he holds with the Company and its subsidiaries and affiliates
on December 30, 2007 or such earlier date as the Board requests. For
clarity, the Executive shall continue to be employed by the Company through
December 30, 2007. The Executive hereby agrees to execute any and all
documentation of such resignations upon request by the Company, but he shall
be
treated for all purposes as having so resigned as of December 30, 2007,
regardless of when or whether he executes any such documentation.
Section
4.04 Nalco
LLC. Executive
shall resign immediately as a Member and Director of LLC. Executive
shall appoint or elect a Company designated Director and Member of
LLC. Executive further agrees not to take any other action with
respect to the appointment of directors or admission of additional members
to
the LLC without the consent of the Company. Executive further agrees
to cooperate fully with the Company and LLC to promptly wind up the affairs
of,
and liquidate LLC.
ARTICLE
V
CONSULTING
ARRANGEMENT
Section
5.01 Term
of Retention.
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(a) The
Company will retain Executive, and Executive hereby accepts such retention
as a
consultant of the Company, upon the terms set forth in this Article
V. The term of retention of the Consultant (the “Consulting
Period”) will be effective on December 31, 2007 and will end on March 31,
2008, unless extended by the mutual agreement of the parties.
(b) During
the Consulting Period, Executive shall serve as a consultant to the Board of
Directors of the Company. In his capacity as a consultant hereunder,
Executive shall report to the Board of Directors.
(c) The
Company shall defend, indemnify and hold Executive harmless from any claims,
demands, charges or causes of action arising out of his performance of services
for the Company during the Consulting Period pursuant to the terms and
conditions of the Company’s policy for indemnification of officers.
Section
5.02 Extent
of Services.
(a) During
the Consulting Period, the Consultant shall assist with the succession planning
and transition process as described in Section 2.01.
(b)
The Company and the Executive acknowledge and agree that the Company shall
not
exercise general supervision or control over the time, place or manner in which
Executive provides services hereunder, and that in performing services pursuant
to this Agreement Executive shall be acting and shall act at all times as an
independent contractor only and not as an employee, agent, partner or joint
venturer of or with the Company, or any subsidiary of the
Company. Executive acknowledges that he is solely responsible for the
payment of all Federal, state, local and foreign taxes that are required by
applicable laws or regulations to be paid with respect to the Monthly Fees
(as
defined below).
Section
5.03 Monthly
Fees. During
the Consulting Period, the Company shall pay Executive a Monthly consulting
fee
of $183,333 (a “Monthly Fee”), which shall be payable on the last day of
each month during the Consulting Period.
Section
5.04 Reimbursement
of Business Expenses. During
the Consulting Period, the Company shall reimburse Executive for all reasonable
and necessary out-of-pocket costs incurred or paid by Executive in connection
with, or related to, the performance of his services, duties and
responsibilities under this Agreement, in accordance with Company policies
in
effect from time to time and subject to presentation by Executive of
documentation, expense statements, vouchers, and/or such other supporting
information as the Company may request.
ARTICLE
VI
GENERAL
PROVISIONS
Section
6.01 Entire
Agreement. This
Agreement (and the documents referred to in this Agreement) set forth the entire
agreement between the parties with respect to the subject matter referred to
in
this Agreement and merge and supersede all prior discussions, agreements and
understandings of every kind and nature between any of them, including without
limitation, the Nalco LLC Employment Agreement, and neither party shall be
bound
by any term or condition other than as expressly set forth or provided for
in
this Agreement. This Agreement may not be changed or modified except by an
agreement in writing, signed by the parties hereto.
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Section
6.02 Waiver. The
failure of any party to this Agreement to enforce any of its terms, provisions
or covenants shall not be construed as a waiver of the same or of the right
of
such party to enforce the same. Waiver by any party hereto of any breach or
default by any other party of any term or provision of this Agreement shall
not
operate as a waiver of any other breach of default.
Section
6.03 Severability. In
the event that anyone or more of the provisions of this Agreement shall be
held
to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remainder of the Agreement shall not in any way be
affected or impaired thereby. Moreover, if any one, or more of the
provisions contained in this Agreement shall be held to be excessively broad
as
to duration, activity or subject, such provisions shall be construed by limiting
and reducing them so as to be enforceable to the maximum extent allowed by
applicable law.
Section
6.04 Notices. Any
notice given hereunder shall be in writing and shall be deemed to have been
given when delivered by messenger or courier service (against appropriate
receipt), or mailed by registered or certified mail (return receipt requested),
addressed as follows:
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If
to the Company:
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Nalco
Company
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▇▇▇▇
▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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| Attention: General Counsel | ||
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If
to Executive:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
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or
at
such other address as shall be indicated to either party in writing. Notice
of
change of address shall be effective only upon receipt.
Section
6.05 Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Illinois without regard to conflicts of law principles.
Section
6.06 Confidentiality. Executive
shall keep confidential all proprietary and other information concerning of
the
Company, its subsidiaries and its business, including but not limited to
information concerning its customers, vendors and others with whom it transacts
business, its methods of operation and other trade secrets, its future plans
and
strategies, and any financial information concerning the Company and its
subsidiaries (collectively, “Confidential Information”). Executive agrees
that all Confidential Information is the exclusive property of the Company
and
Executive will not remove the originals or make copies of any Confidential
Information without the prior written consent of the
Company. Executive shall not use Confidential Information for any
purposes other than to carry out his obligations under this Agreement and will
not divulge Confidential Information to any other person or entity without
the
prior written consent of the Company unless required by law or judicial or
other
process. “Confidential Information” shall not include any information that is
generally known to the public other than as a result of Executive’s breach of
this covenant.
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Section
6.07 Executive
Covenants.. Executive
agrees to the following covenants:
(a) For
the 24 month period commencing on his Retirement Date (the “Non-Compete
Period”), without the prior written consent of the Company, Executive shall
not, directly or indirectly, either as principal, manager, agent, consultant,
officer, director, stockholder, partner, member, investor, lender or employee
or
in any other capacity, carry on, be engaged in or have any financial interest
in
any Competitive Business. For purposes hereof, a business shall be deemed to
be
a “Competitive Business” if (i) it is significantly involved in the sale or
rendering of any product or service sold, dealt in or rendered by the Company
and/or any direct or indirect subsidiary of the Company or (ii) it is
significantly involved in the sale or rendering of any product or service that
the Company or its affiliates have specific plans to sell or provide and as
to
which Executive is aware of such planning. As used in the preceding sentence,
the term “significantly” shall be deemed to refer to activities generating gross
annual sales of at least $25 million. Nothing in this shall be construed so
as
to preclude Executive from investing in any publicly held company; provided,
that Executive’s beneficial ownership of any class of such company’s securities
does not exceed 2% of the outstanding securities of such class.
(b) During
the Non-Compete Period, Executive shall not, directly or indirectly through
another person, (i) solicit any employee of the Company or any of its direct
or
indirect subsidiaries to leave the employ of the Company or such subsidiary,
or
in any way interfere with the relationship between the Company and such
subsidiary, on the one hand, and any employee thereof, on the other hand or
(ii)
hire any individual who is an employee of the Company or any of its direct
or
indirect subsidiaries or was an employee of the Company at any time during
the
preceding 12 month period and who left the Company
voluntarily.
(c) During
the Non-Compete Period, Executive shall not, directly or indirectly, solicit,
initiate or encourage the submission of any Transaction Proposal, enter into
any
agreement with respect to a Transaction Proposal or directly or indirectly
participate in any discussions or negotiations regarding, or furnish to any
person any non-public information with respect to, or take any other action
to
encourage or facilitate any inquires or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any Transaction
Proposal. For the purposes of this Section 6.07(c),
Transaction Proposal means (i) any proposal or offer for a merger,
consolidation, dissolution, recapitalization or other business combination
involving the Company, (ii) any proposal for the issuance by the Company of
over
20% of its equity securities as consideration for the assets or securities
of
another person or (iii) any proposal or offer to acquire in any manner, directly
or indirectly, over 20% of the equity securities or consolidated total assets
of
the Company.
(d) Executive
agrees not to disparage the Company, its past and present investors, officers,
directors, employees or affiliates.
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(e) Executive
and the Company agree that each of the foregoing covenants are reasonable
covenants under the circumstances, and further agree that if, in the opinion
of
any court of competent jurisdiction, such covenant is not reasonable in any
respect, such court shall have the right, power and authority to excise or
modify such provision or provisions of such covenant as to the court shall
appear not reasonable and to enforce the remainder of the covenant as so
amended. Executive agrees that any breach of the covenants contained in this
Section would irreparably injure the Company. Accordingly, the Company may,
in
addition to pursuing any other remedies it may have in law or in equity,
obtain
an injunction against Executive from any court having jurisdiction over the
matter, restraining any further violation of this Section by
Executive.
Section
6.08 Releases. The
Executive hereby agrees as follows:
(a)
The Executive hereby releases and forever discharges and covenants not to ▇▇▇
(i) the Company and its affiliates, (ii) all present and former directors,
officers, agents, representatives, employees, successors and assigns of the
Company and its affiliates, (iii) the Company's direct or indirect owners,
and
(iv) the Blackstone Group, Apollo Management L.P., and ▇▇▇▇▇▇▇ Sachs & Co.
(collectively, the “Sponsors”) and each of the Sponsors’ affiliates,
including without limitation, each of the Sponsors’ investment entities that
owned an interest in the Company or its predecessors (collectively, the
"Released Parties") from and for any and all claims, suits,
controversies, actions, causes of action, cross-claims, counter-claims, demands,
debts, compensatory damages, liquidated damages, punitive or exemplary damages,
other damages, claims for costs and attorneys' fees, or liabilities of any
nature whatsoever in law and in equity, both past and present and whether known
or unknown, suspected, or claimed against the Company or any of the Released
Parties which he or his spouse, or any of his heirs, executors, administrators
or assigns, may have, which arise out of, or are connected in any way with
executive compensation (whether cash or non-cash), equity incentives or stock
or
unit ownership in the Company (whether or not compensatory in nature) including,
without limitation, the grant, purchase or award of any units under the Nalco
LLC 2004 Unit Plan (the “Unit Plan”), the administration of the Unit
Plan, the establishment or operation of any conversion feature or formulae
for
units issued under the Unit Plan, or any claim for additional compensation
under
the Unit Plan, all of the foregoing collectively referred to herein as the
"Claims". Executive acknowledges and intends that this release
shall be effective as a bar to each and every one of the Claims hereinabove
mentioned or implied. Executive acknowledges and agrees that this
release is an essential and material term of this Agreement and that without
such release the Company would not have agreed to the terms of the Agreement.
Executive further agrees to forfeit the 2007 Award, 2008 Award and 2009 Award
if
he challenges the validity of this release or otherwise violates this release.
Executive also agrees that if he violate this release by suing the Company
or
the other Released Parties, he will pay all costs and expenses of defending
against the suit incurred by the Released Parties, including reasonable
attorneys' fees. Nothing herein shall release the Company from its obligations
under this Agreement or the Death Benefit Agreement or impair the Executive’s
right to enforce this Agreement or the Death Benefit Agreement or to dispute
any
determination by the Board under the last paragraph of Section
2.04(a).
(b) Provided
the Company is not in default of its obligations under this Agreement, Executive
shall execute and deliver to the Company on the Retirement Date a general
release in the form attached hereto as Exhibit B.
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Section
6.09 Breach
of Agreement.
(a) In
the event of any actual or threatened breach of this Agreement, the party who
claims such breach of threatened breach shall give the other party written
notice and, except in the case of a breach of this Agreement which is not
susceptible to being cured (expressly including, without limitation, any
violation of Sections 6.06, 6.07, 6.08 or 6.10 of
this Agreement), ten calendar days in which to cure.
(b) In
the event of a material breach of this Agreement, including, but not limited
to
Sections 6.06, 6.07, 6.08 and 6.10 by Executive,
Executive shall reimburse the Employer the full amount of the restricted stock
awards granted to Executive pursuant to Section 2.04(a).
(c) The
prevailing party in any suit to enforce the terms of this Agreement or the
Death
Benefit Agreement will be entitled to recover reasonable attorneys’
fees.
Section
6.10 Executive
Representation and Warranty. Executive
hereby represents and warrants that (a) during Executive’s period of employment
with the Company, Executive did not knowingly and willfully breach any policies
of the Company or violate any laws in any material respect relating to the
management and operation of the Company; (b) the execution, delivery and
compliance with the terms of this Agreement by Executive do not and will not
(with or without notice or lapse of time, or both) conflict with any agreement,
contract, commitment or restriction to which Executive is a party or otherwise
bound; and (c) except as otherwise disclosed in the Company’s most recent Proxy
Statement, no units have been issued or are outstanding under the Unit
Plan.
Section
6.11 Descriptive
Headings. The
section headings contained herein are for reference purposes only and shall
not
in any way affect the meaning or interpretation of this Agreement.
Section
6.12
Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original for all purposes but which, together, shall constitute one and the
same
instrument.
* * * * *
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IN
WITNESS WHEREOF, each party has executed this Agreement as of the date set
forth
above.
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NALCO
HOLDING COMPANY
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By:
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title:
Executive Vice President
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EXECUTIVE
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By:
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Exhibit
A
AMENDMENT
NO. 1 TO DEATH BENEFIT AGREEMENT
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
THIS
AMENDMENT NO. 1 TO DEATH BENEFIT AGREEMENT is made this____ day
of ______________, 2007, between Nalco Company (hereinafter “Nalco”),
a Delaware corporation, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (hereinafter the
“Executive”).
WHEREAS,
on January 9, 2004, the Executive and Nalco entered into a Death Benefit
Agreement, and on May 5, 2005, the Executive and Nalco entered into an Addendum
to Death Benefit Agreement, granting additional benefits to the Executive
(collectively the “Death Benefit Agreement”).
WHEREAS,
contemporaneously with this Amendment No. 1 to Death Benefit Agreement,
the Executive and Nalco Holding Company are entering into an Amended and
Restated Employment Agreement (the “Amended Employment Agreement”).
WHEREAS,
Section 3.01(a) of the Amended Employment Agreement provides that
the
Death Benefit Agreement will be amended to provide that the benefit will be
provided to the Executive after the termination of his employment with Nalco
or
its affiliates, notwithstanding the duration of such employment.
THEREFORE,
Nalco and the Executive agree to amend the Death Benefit Agreement
as
follows:
Article
I
of the Death Benefit Agreement shall be deleted in its entirety and replaced
with the following (reflecting also the additional benefits previously granted
in the Addendum to Death Benefit Agreement):
AMENDED
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 Three Hundred Percent
(300%) 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 he had left employment with Nalco or its
affiliates, even should he not have ten years of service at the time he leaves
employment with Nalco or its affiliates, Nalco will pay a benefit equal to
Four
Hundred Percent (400%) 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 a notice in writing in a form attached
hereto as Exhibit A.
A-1
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 days following the settlement date with
the insurance company if a policy is taken out by Nalco, whichever is
later.
Except
as
indicated herein, the Death Benefit Agreement shall otherwise remain
unchanged.
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Executive
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Nalco
Company
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
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By:
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Title:
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A-2
Exhibit
B
GENERAL
RELEASE
I,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, do hereby release and forever discharge as of the date hereof
(i) Nalco Holdings Company, a Delaware corporation (the “Company”) and
all of its affiliates, (ii) all present and former directors, officers, agents,
representatives, employees, successors and assigns of the Company and its
affiliates, (iii) the Company's direct or indirect owners, and (iv) the
Blackstone Group, Apollo Management L.P., and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
(collectively, the “Sponsors”) and each of the Sponsors’ affiliates,
including without limitation, each of the Sponsors’ investment entities that
owned an interest in the Company or its predecessors (collectively, the
"Released Parties") to the extent provided below.
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1.
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I
understand that my Amended and Restated Employment and Consulting
Agreement with the Company dated November 2, 2007 (the “Agreement”)
includes consideration for signing this General Release and such
consideration is not salary, wages or benefits to which I was already
entitled. I also acknowledge and represent that I have received
all payments and benefits that I am entitled to receive (as of the
date
hereof) by virtue of any employment by the
Company.
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2.
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Except
as provided in paragraphs 4 and 11 below, I knowingly and voluntarily
(for
myself, my heirs, executors, administrators and assigns) release
and
forever discharge the Company and the other Released Parties from
any and
all claims, suits, controversies, actions, causes of action, cross-claims,
counter-claims, demands, debts, compensatory damages, liquidated
damages,
punitive or exemplary damages, other damages, claims for costs and
attorneys' fees, or liabilities of any nature whatsoever in law and
in
equity, both past and present (through the date this General Release
becomes effective and enforceable) and whether known or unknown,
suspected, or claimed against the Company or any of the Released
Parties
which I, my spouse, or any of my heirs, executors, administrators
or
assigns, may have, which arise out of or are connected with my employment
with, compensation by, or my separation or termination from, the
Company
(including, but not limited to, any allegation, claim or violation,
arising under the Nalco LLC 2004 Unit Plan (the “Unit Plan”)
(including any units purchased by, or granted to, me under the Unit
Plan)
and the conversion of units issued under the Unit Plan (including
the
conversion formula); Title VII of the Civil Rights Act of 1964, as
amended; the Civil Rights Act of 1991; the Age Discrimination in
Employment Act of 1967, as amended (including the Older Workers Benefit
Protection Act); the Equal Pay Act of 1963, as amended; the Americans
with
Disabilities Act of 1990; the Family and Medical Leave Act of 1993;
the
Worker Adjustment Retraining and Notification Act; the Employee Retirement
Income Security Act of 1974; any applicable Executive Order Programs;
the
Fair Labor Standards Act; or their state or local counterparts; or
under
any other federal, state or local civil or human rights law, or under
any
other local, state, or federal law, regulation or ordinance; or under
any
public policy, contract or tort, or under common law; or arising
under any
policies, practices or procedures of the Company; or any claim for
wrongful discharge, breach of contract, infliction of emotional distress,
defamation; or any claim for costs, fees, or other expenses, including
attorneys' fees incurred in these matters) (all of the foregoing
collectively referred to herein as the
"Claims").
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A-1
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3.
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I
represent that I have made no assignment or transfer of any right,
claim,
demand, cause of action, or other matter covered by paragraph 2
above.
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4.
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I
agree that this General Release does not waive or release any rights
or
claims that I may have under the Age Discrimination in Employment
Act of
1967 which arise after the date I execute this General Release. I
acknowledge and agree that my separation from employment with the
Company
in compliance with the terms of the Agreement shall not serve as
the basis
for any claim or action (including, without limitation, any claim
under
the Age Discrimination in Employment Act of
1967).
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5.
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I
agree that I am waiving all rights to ▇▇▇ or obtain equitable, remedial
or
punitive relief from any or all Released Parties of any kind whatsoever,
including, without limitation, reinstatement, back pay, front pay,
attorneys’ fees and any form of injunctive
relief. Notwithstanding the above, I further acknowledge that I
am not waiving and am not being required to waive any right that
cannot be
waived under law, including the right to file an administrative charge
or
participate in an administrative investigation or
proceeding; provided, however, that I disclaim and waive any
right to share or participate in any monetary award resulting from
the
prosecution of such charge or investigation or
proceeding.
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6.
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In
signing this General Release, I acknowledge and intend that it shall
be
effective as a bar to each and every one of the Claims hereinabove
mentioned or implied. I expressly consent that this General Release
shall
be given full force and effect according to each and all of its express
terms and provisions, including those relating to unknown and unsuspected
Claims (notwithstanding any state statute that expressly limits the
effectiveness of a general release of unknown, unsuspected and
unanticipated Claims), if any, as well as those relating to any other
Claims hereinabove mentioned or implied. I acknowledge and agree
that this
waiver is an essential and material term of this General Release
and that
without such waiver the Company would not have agreed to the terms
of the
Agreement. I further agree that in the event I should bring a
Claim seeking damages against the Company, or in the event I should
seek
to recover against the Company in any Claim brought by a governmental
agency on my behalf, this General Release shall serve as a complete
defense to such Claims to the maximum extent permitted by law. I
further
agree that I am not aware of any pending claim of the type described
in
paragraph 2 as of the execution of this General
Release.
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7.
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I
agree that neither this General Release, nor the furnishing of the
consideration for this General Release, shall be deemed or construed
at
any time to be an admission by the Company, any Released Party or
myself
of any improper or unlawful
conduct.
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8.
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I
agree that I will forfeit all amounts payable by the Company pursuant
to
the Agreement if I challenge the validity of this General Release.
I also
agree that if I violate this General Release by suing the Company
or the
other Released Parties, I will pay all costs and expenses of defending
against the suit incurred by the Released Parties, including reasonable
attorneys' fees, and return all payments received by me pursuant
to the
Agreement.
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A-2
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9.
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I
agree to reasonably cooperate with the Company in any internal
investigation, any administrative, regulatory, or judicial proceeding
or
any dispute with a third party. I understand and agree that my cooperation
may include, but not be limited to, making myself available to the
Company
upon reasonable notice for interviews and factual investigations;
appearing at the Company's request to give testimony without requiring
service of a subpoena or other legal process; volunteering to the
Company
pertinent information; and turning over to the Company all relevant
documents which are or may come into my possession all at times and
on
schedules that are reasonably consistent with my other permitted
activities and commitments. I understand that in the event the Company
asks for my cooperation in accordance with this provision, the Company
will reimburse me solely for reasonable travel expenses, (including
lodging and meals), upon my submission of
receipts.
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10.
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I
agree not to disparage the Company, its past and present investors,
officers, directors or employees or its affiliates and to keep all
confidential and proprietary information about the past or present
business affairs of the Company and its affiliates confidential unless
a
prior written release from the Company is obtained. I further
agree that as of the date hereof, I have returned to the Company
any and
all property, tangible or intangible, relating to its business, which
I
possessed or had control over at any time (including, but not limited
to,
company-provided credit cards, building or office access cards, keys,
computer equipment, manuals, files, documents, records, software,
customer
data base and other data) and that I shall not retain any copies,
compilations, extracts, excerpts, summaries or other notes of any
such
manuals, files, documents, records, software, customer data base
or other
data, except as otherwise provided in Section 2.02 or
Article V of this
Agreement.
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11.
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Notwithstanding
anything in this General Release to the contrary, this General Release
shall not relinquish, diminish, or in any way affect any rights or
claims
arising out of any breach by the Company or by any Released Party
of the
Agreement or the Death Benefit Agreement after the date hereof and
nothing
herein shall release the Company from its obligations under the Agreement
or the Death Benefit Agreement or impair the Executive’s right to enforce
the Agreement or the Death Benefit
Agreement.
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12.
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Whenever
possible, each provision of this General Release shall be interpreted
in,
such manner as to be effective and valid under applicable law, but
if any
provision of this General Release is held to be invalid, illegal
or
unenforceable in any respect under any applicable law or rule in
any
jurisdiction, such invalidity, illegality or unenforceability shall
not
affect any other provision or any other jurisdiction, but this General
Release shall be reformed, construed and enforced in such jurisdiction
as
if such invalid, illegal or unenforceable provision had never been
contained herein.
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A-3
BY
SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
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A.
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I
HAVE READ IT CAREFULLY;
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B.
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I
UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT
RIGHTS,
INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION
IN
EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS
ACT OF
1964, AS AMENDED; THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH
DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT
OF 1974, AS AMENDED;
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C.
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I
VOLUNTARILY CONSENT TO EVERYTHING IN
IT;
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D.
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I
HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT
AND I
HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION I HAVE CHOSEN
NOT
TO DO SO OF MY OWN VOLITION;
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E.
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I
HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE
SUBSTANTIALLY IN ITS FINAL FORM ON OCTOBER __, 2007 TO CONSIDER
IT;
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F.
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I
UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS RELEASE
TO
REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE
UNTIL THE REVOCATION PERIOD HAS
EXPIRED;
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G.
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I
HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH
THE
ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT;
AND
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H.
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I
AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED,
WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED
BY
AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY
ME.
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DATE: December
31, 2007
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
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A-4