NALCO HOLDING COMPANY AMENDED AND RESTATED 2004 STOCK INCENTIVE PLAN RESTRICTED STOCK UNIT AGREEMENT
Exhibit
99.1
NALCO
HOLDING COMPANY
AMENDED
AND RESTATED 2004 STOCK INCENTIVE PLAN
2008
Grant
THIS
AGREEMENT, is made effective as
of (the
“Grant
Date”), between
Nalco Holding Company (the “Company”)
and ______________ (the
“Participant”).
RECITALS:
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 Board of Directors of the Company (the “Board”) 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 Amended and Restated 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 ______________ Restricted Stock Units, subject
to the
terms and conditions of this Agreement and the Plan. 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.
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3.
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Delivery
of Shares
Underlying the Restricted Stock Units.
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(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
January 1, 2010, a number of Shares equal to the aggregate number of Restricted
Stock Units granted to the Participant under this Agreement.
(b)
Change in
Control. Notwithstanding the foregoing, upon a Change in
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 Board or the Company’s Compensation
Committee (“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.
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NALCO
HOLDING COMPANY
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By
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Its Vice
President – Human Resources
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Participant
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