DEATH BENEFIT AGREEMENT William H. Joyce
Xxxxxxx
X. Xxxxx
THIS
AGREEMENT,
effective January 9, 2004, between Nalco Company (hereinafter "Nalco"), a
corporation organized and existing under the laws of Delaware, and Xxxxxxx 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 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 a notice in writing in a form
attached hereto as Exhibit A.
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.
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.
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.
2.7.4 No
benefit payable under this Agreement shall be construed as part of the
Executive’s Final Average Earnings in the Ondeo Nalco Company Retirement Income
Plan (or any successor or amended Plan).
2.8
Plan 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.
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
/s/ X. X.
Xxxxx
Nalco
Company
/s/
Xxxxxxx X. Xxxxxxxx
/s/
Xxxxxxx X. Xxx
EXHIBIT
A
DESIGNATION
OF BENEFICIARY
Nalco
Company
Name ________________________________________________________
I hereby
designate ___________________________________________________
of _______________________________________________________________
Address
Who is
my _________________________________________________________
Relationship
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).
Witness: Executive:
Witness
should not be a beneficiary
Dated:
ADDENDUM
TO
Xxxxxxx
X. Xxxxx
THIS
ADDENDUM AGREEMENT,
effective May 26, 2005, between Nalco Company (hereinafter "Nalco"), a
corporation organized and existing under the laws of Delaware, and Xxxxxxx X.
Xxxxx (hereinafter "Executive").
WHEREAS, the
Executive is employed by Nalco as a corporate officer; and
WHEREAS,
the
Executive, as a corporate officer, has entered into a Death Benefit Agreement
dated January 9, 2004 (the “Agreement”) to which this Addendum relates;
and
WHEREAS, Nalco
will agree to pay to the Executive or the Executive's designees additional
benefits under the Agreement in return for Executive waiving any right to a
salary increase during 2005.
Therefore,
Nalco and
Executive agree as follows:
Article
I, paragraph 1 of the Agreement shall be modified to delete the words “Two
Hundred Percent (200%)” in the third line and replace these words with “Three
Hundred Percent (300%).”
Article
I, paragraph 2 of the Agreement shall be modified to delete the words “Three
Hundred Percent (300%)” in the fourth line and replace these words with “Four
Hundred Percent (400%).”
Except as
indicated in this Addendum, the Agreement shall otherwise remain
unchanged.
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 Nalco
Company
/s/ X. X.
Xxxxx /s/
Xxxxxxx X. Xxxxxxxx
Employee
Name By:
Xxxxxxx X. Xxxxxxxx
