NALCO HOLDING COMPANY AMENDED AND RESTATED 2004 STOCK INCENTIVE PLAN RESTRICTED SHARES AGREEMENT David Johnson
Exhibit
99.1
NALCO
HOLDING COMPANY
AMENDED
AND RESTATED 2004 STOCK INCENTIVE PLAN
Xxxxx
Xxxxxxx
THIS
AGREEMENT, is made effective as of March 7, 2008 (the “Grant
Date”), between
Nalco Holding Company (the “Company”) and Xxxxx
Xxxxxxx (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 Board of Directors of the Company (the “Board”) has determined that the
Participant be granted the Restricted Shares 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
Shares” means the
shares of the Company’s common stock, par value $0.01 per share subject to the
Time and Performance Restrictions.
(c) “Time and
Performance Restrictions” means those restrictions
described in Exhibit
A to this Agreement.
(d) “Vested
Shares” means
those Restricted Shares that are no longer subject to the Time and Performance
Restrictions.
2. Grant of Restricted
Shares. The
Company hereby grants to the Participant, subject to the terms and conditions of
this Agreement and the Plan, 50,000 Restricted Shares.
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3.
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Delivery of Restricted
Shares.
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(a) In
General. The Company shall issue note in its electronic stock
registry (without the issuance of certificates) the Restricted Shares in the
name of the Participant which shall bear a legend which shall provide
that:
The
shares of Nalco Holding Company are subject to the terms and restrictions of the
Nalco Holding Company Amended and Restated 2004 Stock Incentive Plan and the
Restricted Shares Agreement between the Participant and the Company (the “Grant
Agreement”), such shares are subject to forfeiture, vesting conditions or
cancellation under the terms of such Plan and the terms of the Grant Agreement
under which the shares were issued, and such shares shall not be sold,
transferred, assigned, pledged, encumbered or otherwise alienated or
hypothecated except pursuant to the provision of such Plan and the Grant
Agreement, copies of which are available from the Secretary of Nalco Holding
Company.
(b) Termination of
Service. If the Participant ceases to be an employee of the
Company or its affiliates for reasons other than death or disability, the
Restricted Shares, other than Vested Shares, shall be immediately canceled by
the Company without any payment or other consideration.
(c) Satisfaction of Time and
Performance Restrictions. If the Time and Performance
Restrictions are satisfied for the Restricted Shares, prior to their forfeiture
and subject to the other terms and conditions stated herein, the Company shall
release the legend on such Restricted Shares as related to the Time and
Performance Restrictions.
(d) Registration or
Qualification. Notwithstanding any other provision of the Plan
or this Agreement to the contrary, absent an available exemption to registration
or qualification, the Restricted Shares 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.
4. Legend on Vested
Shares. The Vested Shares issued to the Participant upon the
vesting of the Restricted Shares 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, Restricted Shares 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 Shares or the Participant’s
employment, any applicable withholding taxes in respect of the Restricted Shares
or any payment or transfer with respect to the Restricted Shares 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 Vested Shares pursuant to
the vesting of the Restricted Shares, 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 Shares 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 Shares the Vested 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
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Participant
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TIME
AND PERFORMANCE CONDITIONS
25,000
Restricted Shares shall vest on December 31, 2011 and become Vested Shares, if
Participant continues to be employed on that date (excepting only that the
reason for the employment not continuing because of his death or permanent
disability).
25,000
Restricted Shares shall vest on December 31, 2012 and become Vested Shares, if
Participant continues to be employed on that date (excepting only that the
reason for the employment not continuing because of his death or permanent
disability).
