NALCO HOLDING COMPANY RESTRICTED STOCK UNIT AGREEMENT
NALCO
HOLDING COMPANY
2004
STOCK INCENTIVE PLAN
THIS
AGREEMENT, is made effective as of May 26, 2005 (the “Grant
Date”),
between Nalco Holding Company (the “Company”) and
Xxxxxx X. Xxxxx (the “Participant”).
R E C I T A L S:
WHEREAS,
the Company has adopted the Plan (as defined below), the terms of which are
hereby incorporated by reference and made a part of this Agreement;
and
WHEREAS,
the Compensation Committee of the Board of Directors of the Company (the
“Committee”) has determined that the Participant be granted the Restricted Stock
Units provided for herein pursuant to the Plan and the terms set forth
herein.
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth, the
parties agree as follows:
1. Definitions.
Whenever the following terms are used in this Agreement, they shall have the
meanings set forth below. Capitalized terms not otherwise defined herein shall
have the same meanings as in the Plan.
(a)
“Plan” means
the Nalco Holding Company 2004 Stock Incentive Plan, as the same may be amended,
supplemented or modified from time to time.
(b) “Restricted
Stock Unit” means
the unfunded, unsecured right of the Participant to receive a share of the
Company’s common stock, par value $0.01 per share (the “Shares”).
2. Grant
of Restricted Stock Units.
The
Company hereby grants to the Participant, subject to the terms and conditions of
this Agreement and the Plan, two thousand (“2000”) Restricted Stock Units. The
Participant shall not possess any incidents of ownership (including, without
limitation, dividend and voting rights) in Shares in respect of the Restricted
Stock Units until such Restricted Stock Units have been distributed to the
Participant in the form of Shares.
3. Delivery
of Shares Underlying the Restricted Stock Units.
(a) In
General. Subject
to Sections 3(b), 3(c) and 3(d), (i) the Company shall issue or cause there to
be transferred to the Participant on the second anniversary of the Grant, a
number of Shares equal to the remaining number of Restricted Stock Units granted
to the Participant under this Agreement Date.
(b) Change
of Control.
Notwithstanding the foregoing, upon a Change of Control, the Company shall issue
or cause there to be transferred, to the extent not previously cancelled or
forfeited, to the Participant a number of Shares equal to the aggregate number
of Restricted Stock Units granted to the Participant under this
Agreement.
(c) Cancellation
of Restricted Stock Units. Upon
the issuance or transfer of Shares in accordance with this Section 3, a number
of Restricted Stock Units equal to the number of Shares issued or transferred to
the Participant shall be cancelled.
(d) Termination
of Service on the Board of Directors. If the
Participant ceases to be a member of the Board of Directors of the Company for
any reason, the Restricted Stock Units shall be immediately canceled by the
Company without any payment or other consideration.
(e) Registration
or Qualification.
Notwithstanding any other provision of the Plan or this Agreement to the
contrary, absent an available exemption to registration or qualification, a
Restricted Stock Unit may not be delivered prior to the completion of any
registration or qualification of the Restricted Stock Units or the Shares to
which they relate under applicable state and federal securities or other laws,
or under any ruling or regulation of any governmental body or national
securities exchange that the Committee shall in its sole reasonable discretion
determine to be necessary or advisable.
(f) Certificates. As soon
as practicable following the delivery date of the Shares subject to the
Restricted Stock Units, the Company shall issue certificates in the
Participant’s name for such Shares. However, the Company shall not be liable to
the Participant for damages relating to any delays in issuing the certificates
to the Participant, any loss by the Participant of the certificates, or any
mistakes or errors in the issuance of the certificates or in the certificates
themselves.
4. Legend
on Certificates.
The
certificates representing the Shares issued to the Participant upon the vesting
of the Restricted Stock Units shall be subject to such stop transfer orders and
other restrictions as the Committee may deem reasonably advisable under the Plan
or the rules, regulations, and other requirements of the Securities and Exchange
Commission, any stock exchange upon which such Shares are listed, any applicable
federal or state laws or the Company’s Certificate of Incorporation and Bylaws,
and the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
5. Transferability. Unless
otherwise determined by the Committee, a Restricted Stock Unit may not be
assigned, alienated, pledged, attached, sold or otherwise transferred or
encumbered by the Participant otherwise than by will or by the laws of descent
and distribution, 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.
6. Withholding. The
Company or its Affiliate shall have the right to withhold from any payment due
or transfer made with respect to the Restricted Stock Unit, any applicable
withholding taxes in respect of the Restricted Stock Unit or any payment or
transfer with respect to the Restricted Stock Unit or under the Plan and to take
such action as may be necessary in the option of the Company to satisfy all
obligations for the payment of such taxes.
7. Securities
Laws. Upon
the acquisition of any Shares pursuant to the vesting of the Restricted Stock
Units, the Participant 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.
8. Notices. Any
notice under this Agreement shall be addressed to the Company in care of its
General Counsel at the principal executive office of the Company and to the
Participant at the address appearing in the personnel records of the Company for
the Participant 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.
9. Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to conflicts of laws.
10. Restricted
Stock Units Subject to the Plan. By
entering into this Agreement the Participant agrees and acknowledges that the
Participant has received and read a copy of the Plan. The Restricted Stock Units
and the Shares received upon vesting are subject to the Plan. The terms and
provisions of the Plan as it may be amended from time to time are hereby
incorporated by reference. In the event of a conflict between any term or
provision contained herein and a term or provision of the Plan, the applicable
terms and provisions of the Plan will govern and prevail
11. Counterparts. This
Agreement may be executed in any number of counterparts, each of which when so
executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. 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, this Agreement has been executed and delivered by the parties
hereto.
NALCO
HOLDING COMPANY
By /s/
Xxxxxxx X. Xxxxxxxx
Its Vice
President
/s/
Xxxxxx X. Xxxxx
Participant
