EXHIBIT 10.40
FORM OF
THIS , dated as of ____________,
2004 (this "AGREEMENT"), amends and restates the amended Monitoring Fee
Agreement, dated as of November 4, 2003, among Nalco Company, a Delaware
corporation (the "COMPANY"), Blackstone Management Partners IV L.L.C., a
Delaware limited liability company ("BMP"), Apollo Management V, L.P. ("APOLLO")
and Xxxxxxx, Xxxxx & Co. ("GS") (the "ORIGINAL AGREEMENT"), and Nalco Holding
Company, a Delaware corporation and the indirect parent of the Company ("NALCO
HOLDING COMPANY"), hereby agrees to become a party to the Agreement. BMP, Apollo
and GS are referred to herein collectively as the "SPONSOR MANAGEMENT ENTITIES".
BACKGROUND
1. The Investor Groups (as defined in the LLC Agreement)
entered into a limited liability company operating agreement, dated as of May
17, 2004, relating to Nalco LLC, the ultimate parent of the Company (the "LLC
AGREEMENT").
2. The Sponsor Management Entities, which are affiliated with
Nalco LLC, have expertise in the areas of finance, strategy, investment,
acquisitions and other matters relating to the Company and its business.
3. The Company has availed itself, during the term of the
Original Agreement, of the Sponsor Management Entities' expertise in providing
financial and structural analysis, advice with respect to the hiring of senior
executives and modifications to the corporate reporting structure, the
development of a management equity plan, corporate financing transactions
(including a debt offering by the Company's subsidiaries in January 2004), due
diligence investigations of potential acquisition targets, corporate strategy,
and other advice and negotiation assistance, which the Company believes have
been beneficial to it. Nonetheless, the Company and the Sponsor Management
Entities wish to terminate such services to the Company (the "TERMINATED
SERVICES") and the Company's preexisting payment obligations of the Company as
set forth in this Agreement in consideration of the payment of the fees
described below.
4. Nalco Holding Company and its subsidiaries desire to have
the opportunity to avail themselves of the services of the Sponsor Management
entities in the future.
In consideration of the premises and agreements contained
herein and of other good and valuable consideration, the sufficiency of which
are hereby acknowledged, the parties agree as follows:
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AGREEMENT
SECTION 1. APPOINTMENT. Nalco Holding Company hereby engages
the Sponsor Management Entities to provide the services described in Section
2(a) (the "SERVICES") for the term of this Agreement on the terms and subject to
the conditions of this Agreement.
SECTION 2. SERVICES. (a) The Sponsor Management Entities agree
that during the term of this Agreement, they will provide to Nalco Holding
Company, by and through themselves, their affiliates and such respective
officers, employees, representatives and third parties as the Sponsor Management
Entities in their sole discretion may designate from time to time, such advisory
and consulting services in relation to the affairs of Nalco Holding Company and
its subsidiaries as Nalco Holding Company may reasonably request, including,
without limitation, (i) advice regarding the structure, terms, conditions and
other provisions, distribution and timing of debt and equity offerings and
advice regarding relationships with Nalco Holding Company's and its
subsidiaries' lenders and bankers, (ii) advice regarding dispositions and/or
acquisitions and (iii) such other advice directly related or ancillary to the
above financial advisory services as may be reasonably requested by Nalco
Holding Company; provided that the responsibilities of any Sponsor Management
Entity shall not be substantially disproportionate to the responsibilities of
the other Sponsor Management Entities. Notwithstanding any other provision of
this Agreement, the Sponsor Management Entities shall have no obligation to
provide any services to the Company absent agreement among Nalco Holding Company
and the Sponsor Management Entities over the scope of services to be rendered
and the payment therefor.
(b) If Nalco Holding Company or any of its subsidiaries shall determine
that it is advisable for Nalco Holding Company or such subsidiary to hire a
financial advisor, consultant, investment banker or any similar agent in
connection with any merger, acquisition, disposition, recapitalization, issuance
of securities, financing or any similar transaction, it shall notify the Sponsor
Management Entities of such determination in writing. Promptly thereafter, upon
the request of the Sponsor Management Entities, the parties shall negotiate in
good faith to agree upon appropriate services, compensation and indemnification
for Nalco Holding Company or such subsidiary to hire the Sponsor Management
Entities or their affiliates for such services. Nalco Holding Company and its
subsidiaries may not hire any person, other than the Sponsor Management Entities
or their affiliates, to perform any such services, unless all of the following
conditions have been satisfied: (a) the parties are unable to agree upon the
terms of the engagement of the Sponsor Management Entities after 30 days
following receipt by the Sponsor Management Entities of such written notice, (b)
such other person has a reputation that is at least equal to the reputation the
Sponsor Management Entities in respect of such services, (c) ten business days
shall have elapsed after Nalco Holding Company or such subsidiary provides a
written notice to the Sponsor Management Entities of its intention to hire such
other person, which notice shall identify such other person and shall describe
in reasonable detail the nature of the services to be provided, the compensation
to be paid and the indemnification to be provided, (d) the compensation to be
paid is not more than the Sponsor Management Entities were willing to accept in
the negotiations described above and (e) the indemnification to be provided is
not more favorable to Nalco Holding Company or the applicable subsidiary than
the indemnification that the Sponsor Management Entities were willing to accept
in the negotiations described above.
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SECTION 3. FEES.
(a) In payment for and in consideration of the termination of the
Terminated Services provided by the Sponsor Management Entities and the
termination of payment obligations pursuant to the Original Agreement, the
Company will pay to the Sponsor Management Entities the sum of $35,000,000 which
shall be payable in cash on the date hereof. Such fee shall be paid to each
respective Sponsor Management Entity pro rata based on the percentage interests
in Nalco LLC held by the Investor Group (as defined in the LLC Agreement) that
is affiliated with such Sponsor Management Entity (relative to the interests
held by the other Investor Groups) as of the date hereof. All amounts paid by
the Company to the Sponsor Management Entities pursuant to this Section 3 shall
be made by wire transfer in same-day funds to the respective bank accounts
designated by the Sponsor Management Entities, and shall not be refundable under
any circumstances.
(b) In consideration for any Services provided to Nalco Holding Company
from and after the Effective Time, Nalco Holding Company shall pay to the
Sponsor Management Entities reasonable compensation for such Services as agreed
upon by the parties hereto and approved by a majority of the independent members
of the Board of Directors of Nalco Holding Company
SECTION 4. REIMBURSEMENTS. In addition to the fees payable
pursuant to this Agreement, Nalco Holding Company and its subsidiaries will pay
directly or reimburse the Sponsor Management Entities and each of their
respective affiliates for their respective Out-of-Pocket Expenses (as defined
below). For the purposes of this Agreement, the term "OUT-OF-POCKET EXPENSES"
means the reasonable out-of-pocket costs and expenses incurred by a Sponsor
Management Entity and their respective affiliates in connection with Services
provided under this Agreement (including prior to the Effective Time),
including, without limitation, (a) fees and disbursements of any independent
professionals and organizations, including independent accountants, outside
legal counsel or consultants, retained by such Sponsor Management Entity,
Investor Groups or any of their affiliates, (b) costs of any outside services or
independent contractors such as couriers, business publications, on-line
financial services or similar services, retained or used by such Sponsor
Management Entity or any of their respective affiliates and (c) transportation,
per diem costs, word processing expenses or any similar expense not associated
with their or their affiliates' ordinary operations. All payments or
reimbursements for Out-of-Pocket Expenses will be made by wire transfer in
same-day funds to the bank account designated by such Sponsor Management Entity
or its relevant affiliate (if such Out-of-Pocket Expenses were incurred by such
Sponsor Management Entity or their respective affiliates) promptly upon or as
soon as practicable following request for reimbursement in accordance with this
Agreement, to the account indicated to Nalco Holding Company or the Company by
the relevant payee.
SECTION 5. INDEMNIFICATION. Nalco Holding Company and its
subsidiaries will indemnify and hold harmless the Sponsor Management Entities,
their affiliates and their respective partners (both general and limited),
members (both managing and otherwise), officers, directors, employees, agents
and representatives (each such person being an "INDEMNIFIED PARTY") from and
against any and all losses, claims, damages and liabilities, including in
connection with seeking indemnification, whether joint or several (the
"LIABILITIES"), related to, arising out of or in connection with (including
prior to the Effective Time) the Services
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contemplated by this Agreement or the engagement of the Sponsor Management
Entities pursuant to, and the performance by the Sponsor Management Entities of
the Services contemplated by, this Agreement, whether or not pending or
threatened, whether or not an Indemnified Party is a party, whether or not
resulting in any liability and whether or not such action, claim, suit,
investigation or proceeding is initiated or brought by the Company. Nalco
Holding Company and its subsidiaries will reimburse any Indemnified Party for
all reasonable costs and expenses (including reasonable attorneys' fees and
expenses) as they are incurred in connection with investigating, preparing,
pursuing, defending or assisting in the defense of any action, claim, suit,
investigation or proceeding for which the Indemnified Party would be entitled to
indemnification under the terms of the previous sentence, or any action or
proceeding arising therefrom, whether or not such Indemnified Party is a party
thereto. Nalco Holding Company and its subsidiaries will not be liable under the
foregoing indemnification provision with respect to any particular loss, claim,
damage, liability, cost or expense of an Indemnified Party that is determined by
a court, in a final judgment from which no further appeal may be taken, to have
resulted primarily from the gross negligence or willful misconduct of such
Indemnified Party. The attorneys' fees and other expenses of an Indemnified
Party shall be paid by Nalco Holding Company and its subsidiaries as they are
incurred upon receipt, in each case, of an undertaking by or on behalf of the
Indemnified Party to repay such amounts if it is finally judicially determined
that the Liabilities in question resulted primarily from the gross negligence or
willful misconduct of such Indemnified Party.
SECTION 6. ACCURACY OF INFORMATION. Nalco Holding Company and
its subsidiaries shall furnish or cause to be furnished to the Sponsor
Management Entities such information as the Sponsor Management Entities believe
reasonably appropriate to their advisory and consulting services hereunder and
to comply with Securities and Exchange Commission or other legal requirements
relating to the beneficial ownership of equity securities of Nalco LLC (all such
information so furnished, the "INFORMATION"). Nalco Holding Company and its
subsidiaries recognize and confirm that the Sponsor Management Entities (a) will
use and rely primarily on the Information and on information available from
generally recognized public sources in performing the Services contemplated by
this Agreement without having independently verified the same, (b) do not assume
responsibility for the accuracy or completeness of the Information and such
other information and (c) are entitled to rely upon the Information without
independent verification.
SECTION 7. EFFECTIVE TIME. This Agreement will become
effective (the "EFFECTIVE TIME") as of _______, 2004.
SECTION 8. TERM. This Agreement shall continue and remain in
effect through and until such time as the Investor Groups and their affiliates
then owning direct or indirect beneficial economic interests in Nalco Holding
Company own less in the aggregate than 5% of the direct or indirect beneficial
economic interest of Nalco Holding Company, or such earlier date as Nalco
Holding Company, the Company and the Sponsor Management Entities may mutually
agree upon, except that Section 4 will remain in effect after that with respect
to Out-of-Pocket Expenses that were incurred prior to or within a reasonable
period of time after such date but have not been paid to the Sponsor Management
Entities in accordance with Section 4; provided, however, that, with respect to
GS only, the provisions of Section 2(b) shall
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terminate on the date that is three years after the date hereof. The provisions
of Sections 5 and 10 and otherwise as the context requires shall survive the
termination of this Agreement.
SECTION 9. PERMISSIBLE ACTIVITIES. Subject to applicable law,
nothing herein will in any way preclude the Sponsor Management Entities or their
affiliates (other than Nalco Holding Company or its subsidiaries and their
respective employees) or their respective partners (both general and limited),
members (both managing and otherwise), officers, directors, employees, agents or
representatives from engaging in any business activities or from performing
services for its or their own account or for the account of others, including
for companies that may be in competition with the business conducted by Nalco
Holding Company and its subsidiaries.
SECTION 10. MISCELLANEOUS.
(a) No amendment or waiver of any provision of this Agreement,
or consent to any departure by any party hereto from any such provision, will be
effective unless it is in writing and signed by the parties hereto. Any
amendment, waiver or consent will be effective only in the specific instance and
for the specific purpose for which given. The waiver by any party of any breach
of this Agreement will not operate as or be construed to be a waiver by such
party of any subsequent breach.
(b) Any notices or other communications required or permitted hereunder
will be sufficiently given if delivered personally or sent by facsimile with
confirmed receipt, or by overnight courier, addressed as follows or to such
other address of which the parties may have given written notice:
if to BMP:
c/o The Blackstone Group L.P.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxx
Facsimile: (000) 000-0000
with a copy (which will not constitute notice) to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
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if to Apollo:
Apollo Management V, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy (which will not constitute notice) to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx
Fax: (000) 000-0000
if to GS:
Xxxxxxx Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Fax: (000) 000-0000
with a copy (which will not constitute notice) to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx
Fax: (000) 000-0000
if to the Company:
Nalco Company
0000 X. Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
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if to Nalco Holding Company:
Nalco Holding Company
0000 X. Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
Unless otherwise specified herein, such notices or other communications will be
deemed received (i) on the date delivered, if delivered personally or sent by
facsimile with confirmed receipt, and (ii) one business day after being sent by
overnight courier.
(c) This Agreement, the LLC Agreement and the Sponsors Agreement dated
May 17, 2004 by and among Nalco LLC and the Sponsor Members named therein, will
constitute the entire agreement between the parties with respect to the subject
matter hereof, and will supersede all previous oral and written (and all
contemporaneous oral) negotiations, commitments, agreements and understandings
relating hereto, and the Original Agreement is amended and restated hereby.
(d) This Agreement will be governed by, and construed in accordance
with, the laws of the State of New York.
(e) The provisions of this Agreement will be binding upon and inure to
the benefit of the parties hereto and their respective successors. Subject to
the next sentence, no Person other than the parties hereto and their respective
successors is intended to be a beneficiary of this Agreement. The parties
acknowledge and agree that their respective partners (both general and limited),
members (both managing and otherwise), officers, directors, employees, agents
and representatives are intended to be third-party beneficiaries under Section 5
of this Agreement.
(f) This Agreement may be executed by one or more parties to this
Agreement on any number of separate counterparts (including by facsimile), and
all of said counterparts taken together will be deemed to constitute one and the
same instrument.
(g) Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction will, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction will not invalidate or render unenforceable such provision in any
other jurisdiction.
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IN WITNESS WHEREOF, the undersigned have executed, or have
caused to be executed, this on the date first written
above.
NALCO COMPANY
By:
--------------------------------------------------
Name:
Title:
BLACKSTONE MANAGEMENT PARTNERS IV L.L.C.
By:
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Name:
Title:
Apollo Management V, L.P.
By:
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Name:
Title:
XXXXXXX XXXXX & CO.
By:
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Name:
Title:
NALCO HOLDING COMPANY
By:
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Name:
Title:
