NALCO HOLDING COMPANY RESTRICTED STOCK UNIT AGREEMENT
NALCO
HOLDING COMPANY
2004
STOCK INCENTIVE PLAN
2005
Grant
THIS
AGREEMENT, is made effective as of November 14, 2005 (the “Grant
Date”),
between Nalco Holding Company (the “Company”),
Xxxxxxx Xxxxx (the “Participant”)
and The
Xxxxxxx Sachs Group, Inc. (the “Holder”).
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;
WHEREAS,
the Board of Directors of the Company (the “Board”) had notified the Participant
that the Participant was entitled to be granted the Restricted Stock Units
provided for herein pursuant to the Plan and the terms set forth
herein;
WHEREAS,
the Participant had thereafter requested that the Board grant the Restricted
Stock Units to the Holder in lieu of the Participant; and
WHEREAS,
the Company and the Committee (as defined below) have each approved of the
granting the Restricted Stock Units to the Holder in lieu of the Participant.
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 Holder, subject to the terms and conditions of
this
Agreement and the Plan, 2,000 Restricted Stock Units. The Holder 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 Holder 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), the Company shall issue or cause there to
be
transferred to the Holder on January 1, 2007, a number of Shares equal to the
aggregate number of Restricted Stock Units granted to the Holder under this
Agreement.
(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 Holder a number of Shares equal to the aggregate number of
Restricted Stock Units granted to the Holder 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 Holder 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 Holder’s
name for such Shares. However, the Company shall not be liable to the Holder
for
damages relating to any delays in issuing the certificates to the Holder, any
loss by the Holder 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 Holder 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 Holder otherwise than to the Holder’s Affiliates, and any such
purported assignment, alienation, pledge, attachment, sale, transfer or
encumbrance shall be void and unenforceable against the Company or any of its
Affiliates; provided that the designation of a beneficiary shall not constitute
an assignment, alienation, pledge, attachment, sale, transfer or encumbrance.
6. Taxes.
(a) If
there
is a change in law that, in the opinion of the Company’s counsel, would require
the Company to withhold from any payment due or transfer made with respect
to
the Restricted Stock Units or Shares any applicable withholding taxes, then,
but
only to the extent advised by the Company’s counsel pursuant to such opinion,
the Company or its Affiliate shall have the right to take such actions and
any
other action as may be necessary to satisfy all obligations for the payment
of
such taxes; provided that prior to taking any such action, the Company shall
provide written notice to the Holder thereof and consult with the Holder to
discuss whether such action is required by law. The Company hereby agrees and
acknowledges that under current law the Company is not and shall not be required
to withhold from any payment due or transfer made with respect to the Restricted
Stock Units or Shares any withholding taxes.
(b) The
Company, the Participant and the Holder each agrees that, except to the extent
provided in (a) above, for all tax reporting purposes, it shall not take any
action or omit to take any action that would cause any party other than the
Holder to be deemed to be the holder of the Restricted Stock Units or the
Shares.
7. Securities
Laws.
Upon
the acquisition of any Shares pursuant to the vesting of the Restricted Stock
Units, the Holder 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 or the Holder at the address appearing in the personnel records
of
the Company for the Participant or the Holder or to any party at such other
address as any party hereto may hereafter designate in writing to the others.
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 Holder agrees and acknowledges that the Holder
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
/s/
Xxxxxxx X. Xxxxxxxx
Vice
President
/s/Xxxxxxx
Xxxxx
Participant
THE
XXXXXXX XXXXX GROUP, INC.
/s/Xxxxxxx
Xxxxx
Attorney-in-Fact
