NON PLAN INDUCEMENT AWARD
RESTRICTED
STOCK AWARD AGREEMENT
200,000
Restricted Shares
THIS
AGREEMENT (the “Agreement”), is made effective as of March 7, 2008 (the “Grant
Date”), between Nalco Holding Company, a Delaware corporation (the “Company”),
and J. Xxxx Xxxxxxx (“Fyrwald”).
R E C I T A L S:
WHEREAS,
in connection with Fyrwald’s hiring as an officer of the Company, the Company
and Fyrwald have entered into an Employment Letter Agreement and Severance
Agreement both dated as of February 22, 2008.
WHEREAS,
in connection with Fyrwald’s hiring as an officer of the Company, the
Compensation Committee (the “Committee”) has determined that it would be in the
best interests of the Company and its stockholders to grant the restricted stock
award provided for herein (the “Restricted Stock Award”) to Fyrwald pursuant to
the terms set forth below.
WHEREAS,
the Restricted Stock Award is being made to Fyrwald as an inducement grant
outside of the Amended and Restated Nalco Holding Company 2004 Stock Incentive
Plan (the “Plan”) in accordance with New York Stock Exchange Rule
303A(8).
NOW
THEREFORE, in consideration of the mutual covenants hereinafter set forth, the
parties hereto agree as follows:
1. Grant of the Restricted
Shares. Subject to the terms and conditions set forth in this
Agreement, the Company hereby grants to Fyrwald a Restricted Stock Award
consisting of 200,000 restricted shares (hereinafter called the “Restricted
Shares”), that, subject to vesting, are convertible into 200,000 shares of the
Company’s Common Stock (the “Shares”).
2. Vesting. The
Restricted Shares shall vest and become nonforfeitable in accordance
with Exhibit A to this
Agreement.
3. Certificates. The
Restricted Shares shall be evidenced by this Agreement. The Shares
shall be issued by the Company and shall be registered in Fyrwald’s name on the
stock registry of the Company promptly after the date such Restricted Shares
Vest, if ever. Without limiting the generality of this Section 3, no
certificates shall be issued for fractional Shares
4. Rights as a
Stockholder. Fyrwald shall have no rights of a common
stockholder of the Company unless and until the Restricted Shares vest and the
Shares are issued to him.
5. Legend on
Certificates. The certificates representing the vested Shares
shall be subject to such stop transfer orders and other restrictions as the
Committee may deem advisable to reflect the provisions of this Agreement or
under the rules, regulations, and other requirements of the Securities and
Exchange Commission, any stock exchange upon which such Shares are listed, and
any applicable Federal or state laws, and the Committee may cause a legend or
legends to be put on any such certificates to make appropriate reference to such
restrictions.
6.
No Right to Continued
Employment. The granting of the Restricted Shares evidenced by
this Agreement shall impose no obligation on the Company or any Affiliate to
continue the employment of Fyrwald and shall not lessen or affect the Company’s
or its Affiliate’s right to terminate the employment of Fyrwald.
7. Transferability. Unless
otherwise permitted by the Committee, the Restricted Shares may not, at any time
prior to becoming vested pursuant to Exhibit A, be
assigned, alienated, pledged, attached, sold or otherwise transferred or
encumbered by Fyrwald and any such purported assignment, alienation, pledge,
attachment, sale, transfer or encumbrance shall be void and unenforceable
against the Company or any Affiliate; provided that the designation of a
beneficiary shall not constitute an assignment, alienation, pledge, attachment,
sale, transfer or encumbrance.
8. Withholding. Fyrwald
may be required to pay to the Company or any Affiliate and the Company shall
have the right and is hereby authorized to withhold, any applicable withholding
taxes in respect of the grant of Restricted Shares, or their vesting, and the
subsequent delivery of Shares or any payment or transfer with respect to the
Restricted Shares or the Shares and to take such action as may be necessary in
the opinion of the Committee to satisfy all obligations for the payment of such
withholding taxes.
9. Securities
Laws. Upon the vesting of any Restricted Shares, Fyrwald will
make or enter into such written representations, warranties and agreements as
the Committee may reasonably request in order to comply with applicable
securities laws or with this Agreement.
10. Notices. Any
notice necessary under this Agreement shall be addressed to the Company in care
of is General Counsel at the principal executive office of the Company and to
Fyrwald at the address appearing in the personnel records of the Company for
Fyrwald or to either party at such other address as either party hereto may
hereafter designate in writing to the other. Any such notice shall be
deemed effective upon receipt thereof by the addressee.
11. Choice of
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, without regard to conflicts
of laws.
12. Plan
Terms. Although the Restricted Stock has not been issued under
the Plan, the Parties agree that the following provisions of the Plan shall be
applicable to the Restricted Stock and this Agreement: Sections 4(a),
4(c), 9, 10, 11, 14, 15(b), 15(c) and 16 (it being understood, however, that all
references to “the Plan” in those sections shall be deemed to be references to
“this Agreement” for the purposes of the Restricted Stock and this
Agreement).
13.
Signature in
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. Without limiting
the generality of the foregoing, any counterpart or other signature hereupon
delivered by facsimile shall be deemed for all purposes as constituting good and
valid execution and delivery of this Agreement by such party.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year first written above.
NALCO
HOLDING COMPANY
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NAME: Xxxxxxx
X. Xxxxxxxx
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ITS: Vice
President and General Counsel
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J.
XXXX XXXXXXX
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EXHIBIT
A
Vesting of Restricted
Shares
(a) Subject
to Fyrwald’s continued Employment with the Company, the Restricted Shares shall
vest as follows:
50% on
March 6, 2011
50% on
March 6, 2012
(b) Notwithstanding
clause (a) above, all of the Restricted Shares shall immediately vest upon (i)
Fyrwald’s death, (ii) the termination of Fyrwald’s employment due to Permanent
Disability, (iii) the Company’s termination of Fyrwald’s employment without
Cause or (iv) Fyrwald’s termination of his employment for Good
Reason.
(c) If
Fyrwald’s Employment with the Company is terminated for any reason other than
those set forth in clause (b) above, then the Restricted Shares shall, to the
extent not then vested, be forfeited by Fyrwald without any payment or other
consideration.
(d) As
used in this Exhibit (and elsewhere in the Agreement), the terms “Cause”, “Good
Reason” and “Permanent Disability” shall have the meanings assigned to them in
the Severance Agreement.