SEPARATION AGREEMENT

SEPARATION AGREEMENT

This Separation Agreement is made this 30^th day of June, 2007 between Nalco Company, for itself and on behalf of its direct or indirect affiliates, parents, subsidiaries and predecessors (collectively the “Company” or “Nalco”) and Xxxxxxx X. Xxx (“Xx. Xxx”).

Recitals

Xx. Xxx’x current position with the Company will end on June 30, 2007.

Xx. Xxx entered into a Severance Agreement with the Company with effective date of January 1, 2004 (the “Severance Agreement”).

Xx. Xxx entered into a Death Benefit Agreement with the Company (then Nalco Chemical Company) (the “Death Benefit Agreement”).

Xx. Xxx entered into a Management Members Agreement with Nalco LLC, an indirect parent of Nalco, on or about June 30, 2004, pursuant to which Xx. Xxx was given the opportunity to invest in certain equity ownership units in Nalco LLC (the “Management Members Agreement”).

Xx. Xxx signed a consent permitting certain acceleration rights for the C and D Units on December 13, 2006 (the “Consent Memorandum”).

Under the Severance Agreement, any severance payments would be paid to Xx. Xxx over the period from the date his employment ends to the date Xx. Xxx becomes age 55, permitting Xx. Xxx to elect retirement on the first day of the month following becoming age 55 (in December 2008).

As there are no severance payment obligations, the Company agrees that Xx. Xxx will continue to vest in the B Units under the 2004 Nalco LLC Plan for the years 2007 and 2008 and he shall otherwise continue receiving medical and dental benefits as an active employee until he reaches age 55 in December 2008, permitting Xx. Xxx to elect retirement on January 1, 2009.

Agreement

Accordingly, Xx. Xxx and Nalco agree as follows:

1.	Termination of Employment and Consulting Services

Effective June 30, 2007, Xx. Xxx will be terminated from all positions previously held by him as an officer, employee or director of Nalco, and all of its direct or indirect subsidiaries, parents and affiliates. Xx. Xxx shall execute any requested

forms to resign from such positions, including the resignation from the Nalco Foundation attached hereto.

2.	Separation Benefits

Xx. Xxx and Nalco LLC will separately enter into an amendment of the Management Members Agreement. This Agreement is conditioned upon the parties executing the described amendment to the Management Members Agreement.

The Company will maintain Xx. Xxx as an active employee until he is 55 years of age at which point he will be permitted to retire with the full retirement benefits of a 55 year old employee. As an active employee, Xx. Xxx will be available for consultation, special projects, or assistance with any company-related litigation, but will have no salary for his services.

The Company will continue Xx. Xxx’x current medical and dental coverage as an active employee for the period through December 31, 2008 at current cost.

The Company will reimburse tax assistance for Xx. Xxx up to a cap of $2500 and for financial planning up to a cap of $8500, for related services rendered in 2007 and 2008.

The Company will provide outplacement services through an agreed vendor.

3.	Waiver of Benefits

In addition to the offset right under paragraph (g) of the Consent Memorandum, Xx. Xxx fully waives and releases any and all claim he has or might have had under the Severance Agreement and further waives and releases any and all other claims he has to any payments or benefits, or any severance payments or severance benefits from Nalco or any of its direct or indirect affiliates, subsidiaries, parents or predecessors under any other agreements or commitments. Xx. Xxx does not waive and release any claims under the Death Benefit Agreement.

4.	Reconciliation of Expense Reports, Travel Advances, Credit Card Charges, and Other Obligations

If he has not already done so, by July 15, 2007, Xx. Xxx will deliver to Nalco a final written report and reconciliation of all outstanding travel advances and charges made against credit cards issued to Xx. Xxx by or on behalf of Nalco. Xx. Xxx shall identify those portions of advances and charges which were devoted to personal use and those portions that were devoted to the business purposes of Nalco. For the portions devoted to Nalco’s business purposes, Xx. Xxx will

provide all of the information normally provided under Nalco’s practices and procedures, with appropriate receipts.

Xx. Xxx will also provide a detailed statement of all business expenses that Xx. Xxx claims he incurred for Nalco’s business purposes that have not been reimbursed.

If the final report of business expenses, use of travel advances, and credit card charges reveals Xx. Xxx owes Nalco money, the sum owing shall be promptly paid by him by check. If the report reveals Nalco owes Xx. Xxx money, the sum owing shall be promptly paid by check.

Xx. Xxx agrees to return all Nalco property to Nalco promptly upon request.

5.	General Release and Covenant Not to Xxx

In consideration of Nalco’s promises under this Separation Agreement and the Amendment to the Management Members Agreement, Xx. Xxx individually, and Xx. Xxx’x successors, assigns, heirs, and agents, and each and all of them, hereby unconditionally and forever release, acquit, and discharge Nalco, its direct or indirect parents, subsidiaries and affiliates, and each of their respective officers, directors, stockholders, employees, agents, and attorneys from any and all claims, demands, liabilities, and causes of action of every kind, nature and description whatsoever whether known or unknown, or suspected to exist, which Xx. Xxx ever had or may now have up to the date of signing this Agreement, against Nalco, or any of them, including, without limitation, any claim arising out of or relating to (i) any aspect of Xx. Xxx’x employment with Nalco, including the termination of such employment; (ii) any federal, state, local or other government statute, regulation or ordinance of any country, including but not limited to the following US laws, Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, the Age Discrimination in Employment Act, 29 U.S.C. sec. 621 et. seq. as amended by the Older Workers’ Benefit Protection Act of 1990, the Americans with Disabilities Act, the Family and Medical Leave Act, the Employee Retirement Income Security Act, and the Rehabilitation Act of 1973, The Worker Adjustment and Retraining Notification Act and (iii) the common law of the jurisdiction wherein Xx. Xxx resides or any other jurisdiction, including without limitation, intentional infliction of emotional distress, breach of contract and any claims for consequential and/or punitive damages for any reason. It is the intention of Xx. Xxx that in executing this Agreement Xx. Xxx is providing a General Release and that it shall be an effective bar to each and every claim, demand and cause of action, either known or unknown, for all acts, or omissions of Nalco, its direct or indirect parents, subsidiaries and affiliates, and each of their respective officers, directors, stockholders, employees, agents, and attorneys, occurring prior to and up to the date this Agreement is executed. This release includes but is not limited to:

any claims for assault, battery, wrongful termination, defamation, invasion of privacy, intentional infliction of emotional distress, or any other tort or common law claims;

any claim to challenge the enforceability of any provision of the Severance Agreement, including but not limited to the noncompetition, nondisclosure, and nonsolicitation provisions in the Severance Agreement;

any claims for the breach of any written, implied or oral contract;

any claims of discrimination, harassment or retaliation based on such things as age, national origin, ancestry, race, religion, sex (including sexual harassment), sexual orientation, or physical or mental disability or medical condition or any other protected status;

any claims for benefits or monetary equivalent of benefits except as provided in this Agreement; and

any entitlement to reinstatement with or rehire or reemployment by Nalco.

Also waived are any rights to attorneys’ fees, compensation or other recovery as the result of any legal action brought by Xx. Xxx or on Xx. Xxx’x behalf by any other party, based on any right Xx. Xxx has released and waived under this Separation Agreement.

Excepted from this release are claims challenging the validity of this Separation Agreement under the Age Discrimination in Employment Act. Xx. Xxx’x release under the Age Discrimination in Employment Act does not apply to any claims that arise or may arise based on events that take place after the date Xx. Xxx signs this Agreement. Also not released are any claims Xx. Xxx may have for a) Worker’s Compensation benefits, b) accrued wages, accrued but unused vacation pay, and accrued commissions, if any, up to the date of termination, c) any vested pension benefits, or d) any right to unemployment benefits.

Xx. Xxx warrants that he: (a) has read this Agreement and understands its provisions including the waivers and releases, (b) understands that this Agreement includes a release of any rights or claims under the Age Discrimination in Employment Act, (c) is waiving rights under this release on a voluntary basis, without coercion or duress, in compliance with the Older Workers Benefit Protection Act, and (d) has been advised to consult an attorney before signing this Agreement.

Xx. Xxx agrees never to institute any charge, lawsuit, complaint, proceeding, grievance or action of any kind (at law, in equity or otherwise) in any state or federal court, or in any other public or private tribunal, against Nalco on any grounds, for any occurrence from the beginning of time to the effective date of

this Agreement. The only exception to this covenant not to xxx is a claim that challenges the validity of this Separation Agreement and alleges age discrimination. If Xx. Xxx sues Nalco in violation of this Separation Agreement, then Xx. Xxx shall be liable for Nalco’s actual attorneys’ fess and other litigation costs incurred in defending such matter

6.	Confidentiality and Covenants

Xx. Xxx agrees not to disclose any of the terms of this Separation Agreement to anyone, other than Xx. Xxx’x spouse, attorney, and accountant or as required by law. Xx. Xxx may disclose the terms of this Separation Agreement to these individuals only upon the understanding they shall be bound not to disclose the terms to anyone else. Before disclosing these terms to them, Xx. Xxx shall inform them of their confidentiality obligations.

In exchange for the consideration hereunder, during the term of this Agreement and for a period of two (2) years beginning on the effective date of termination, (i) Xx. Xxx shall not, within any jurisdiction or marketing area in which the Company (or its subsidiaries and its affiliates) is doing business, directly or indirectly, own, manage, operate, control, consult with, be employed by, or participate in the ownership, management, operation or control of any business of the type and character engaged in or competitive with that conducted by the Company (or its subsidiaries and its affiliates).

Xx. Xxx will not divulge, transmit or otherwise disclose (except as legally compelled by court order, and then only to the extent required, after prompt notice to the Company of any such order), directly or indirectly, any confidential knowledge or information with respect to the business, operations, finances, organization or employees of the Company (or its subsidiaries and affiliates) or with respect to trade secrets, confidential or secret processes, services, techniques, product formulations, customer information, marketing or business plans with respect to the Company (or its subsidiaries and affiliates); and (ii) Xx. Xxx will not use, directly or indirectly, any confidential information for the benefit of anyone other than the Company (or its subsidiaries and affiliates); provided, however, that Xx. Xxx has no obligation, express or implied, to refrain from using or disclosing to others any such knowledge or information which is or hereafter shall become available to the public other than through disclosure by Xx. Xxx. All new processes, techniques, know-how, inventions, plans, products, patents and devices developed, made or invented by Xx. Xxx, alone or with others, while an employee of the Company which are related to the business of the Company (or its subsidiaries and affiliates) shall be and become the sole property of the Company, unless released in writing by the Company, and Xx. Xxx hereby assigns any and all rights therein or thereto to the Company. All files, records, correspondence, memoranda, notes or other documents (including, without limitation, those in computer-readable form) or property relating or belonging to the Company, whether prepared by Xx. Xxx or otherwise coming into his

possession in the course of the performance of his services under this Agreement, shall be the exclusive property of Company and shall be delivered to Company and not retained by Xx. Xxx (including, without limitations, any copies thereof) upon termination of this Agreement for any reason whatsoever.

Xx. Xxx will communicate and disclose in writing to the Company all inventions, discoveries, improvements, machines, devices, designs, processes, products, software, treatments, formulae, mixtures and/or compounds whether patentable or not as well as patents and patent applications made, conceived, developed or acquired by Xx. Xxx or under which Xx. Xxx acquired the right to grant licenses or become licensed, whether alone or jointly with others, during his employment with the Company (all collectively referred to as “Inventions”). All of Xx. Xxx’x right, title and interest in, to and under such Inventions, including licenses and right to grant licenses are the sole property of the Company and the same are hereby assigned to the Company. Any Invention disclosed by Xx. Xxx to anyone within one (1) year after June 30, 2007, which relates to any matters pertaining to, applicable to, or useful in connection with, the business of the Company shall be deemed to have been made or conceived or developed by Xx. Xxx during his employment with the Company.

For all of Xx. Xxx’x Inventions, Xx. Xxx will execute and deliver all documents which the Company shall deem necessary or appropriate to assign, transfer and convey to the Company, all of Xx. Xxx’x right, title, interest in and to such Inventions, and enable the Company to file and prosecute applications for Letters Patent of the United States and any foreign countries on Inventions as to which the Company wishes to file patent applications; and do all other things (including the giving of evidence in suits and other proceedings) which the Company shall deem necessary or appropriate to obtain, maintain, and assert patents for any and all such Inventions and to assert its rights in any Inventions not patented.

Xx. Xxx hereby assigns to the Company the copyright in all works prepared by Xx. Xxx which are or were either within the scope of Xx. Xxx’x employment with the Company; or, based upon information acquired from the Company not normally made available to the public; or, commissioned by the Company but not within Xx. Xxx’x scope of employment.

Xx. Xxx also agrees to do all things (including the giving of evidence in suits and other proceedings) which the Company shall deem necessary or appropriate to obtain, maintain, and enable the Company to protect its rights in and to such works.

Xx. Xxx hereby releases and allows the Company to use, for any lawful purpose, any voice reproduction, photograph, or other video likeness of Xx. Xxx made in the scope of Xx. Xxx’x employment.

All expenses incident to any action required by the Company to assign Inventions or copyrights to the Company or so taken in its behalf pursuant to the terms of this Agreement shall be borne by the Company, including a reasonable payment for Xx. Xxx’x time and expenses involved if not then in the Company’s employ.

Xx. Xxx acknowledges that a breach of his covenants contained herein may cause irreparable damage to the Company (its subsidiaries and affiliates), the exact amount of which will be difficult to ascertain, that the remedies at law for any such breach will be inadequate and that the payments and other benefits, in this Separation Agreement and the amendment to the Management Members Agreement, are additional consideration for the covenants contained herein. Accordingly, Xx. Xxx agrees that if he breaches any of the covenants contained herein, in addition to any other remedy which may be available at law or in equity, the Company shall be entitled to specific performance and injunctive relief. In addition, the breach of any of the covenants contained herein shall entitle the Company to permanently withhold, and, if applicable, to recover from Xx. Xxx any payments, benefits, or other entitlements, of any type owed by the Company to Xx. Xxx under the Severance Agreement, the Consent Memorandum, this Separation Agreement, any other agreement or plan irrespective of whether the covenants in this Separation Agreement or the Severance Agreement are deemed enforceable by a court. The Company and Xx. Xxx further acknowledge that the time, scope, geographic area and other provisions herein have been specifically negotiated by sophisticated commercial parties and agree that all such provisions are reasonable under the circumstances of the activities contemplated by this Agreement. In the event that the covenants herein shall be determined by any court of competent jurisdiction to be unenforceable by reason of their extending for too great a period of time or over too great a geographical area or by reason of their being too extensive in any other respect, they shall be interpreted to extend only over the maximum period of time for which they may be enforceable and/or over the maximum geographical area as to which they may be enforceable and/or to the maximum extent in all other respects as to which they may be enforceable, all as determined by such court in such action.

Xx. Xxx agrees to cooperate with the Company during his employment hereunder and thereafter (including following Xx. Xxx’x termination of employment for any reason), by making himself reasonably available to testify on behalf of the Company in any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, and to assist the Company, in any such action, suit, or proceeding, by providing information and meeting and consulting with the Company’s Board of Directors or its representatives or counsel, or representatives or counsel to the Company, as reasonably requested; provided, however that the same does not materially interfere with his then current professional activities or important personal activities and is not contrary to the best interests of Xx. Xxx. The Company agrees to reimburse Xx. Xxx, on an after-tax basis, for all expenses including pre-approved legal expenses, actually incurred in connection with his provision of testimony or assistance.

Xx. Xxx will not make statements or representations, or otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly or indirectly, disparage the Company, its subsidiaries and affiliates or its or their respective officers, directors, employees, advisors, businesses or reputations. The Company agrees that it shall advise the members of the Board of Directors and its senior officers not to disparage Xx. Xxx and the Company shall use its reasonable business efforts to prevent them from doing so; provided, however, the Company’s obligations to Xx. Xxx in the immediately preceding sentence shall not apply to any oral, written or electronic statements, representations or other communications made internally at the Company by any member of the Board of Directors or any of the Company’s senior officers if such oral, written or electronic statements, representations or other communications are made by any of the foregoing individuals in the course of such individual’s duties, responsibilities or obligations to the Company. Notwithstanding the foregoing, nothing in this Agreement shall preclude Xx. Xxx or a representative of the Company from making truthful statements or disclosures that are required by applicable law, regulation or legal process.

7.	Additional Provisions

Xx. Xxx acknowledges and agrees that:

Xx. Xxx is entering into this Agreement knowingly and voluntarily and of Xx. Xxx’x own free will and not because of any threats or duress;

Xx. Xxx has been advised by this Agreement to consult with an attorney before signing this Agreement;

Xx. Xxx has read this Agreement and understands its provision, including that a portion of the consideration being paid by Nalco is

for a release of any rights or claims under the Age Discrimination in Employment Act:

Xx. Xxx understands that Xx. Xxx may take up to 21 days to consider this Agreement before signing it;

After Xx. Xxx signs this Agreement, Xx. Xxx will have 7 days to revoke it;

If Xx. Xxx wants to revoke it, Xx. Xxx must deliver a written notice of revocation to Xx. Xxxx Xxxxxxxxx at Nalco headquarters in Naperville, IL. If Xx. Xxx does not revoke it within 7 days after having signed it, this Agreement will become final between and enforceable by the parties; and

If Xx. Xxx chooses to revoke this Agreement within 7 days after Xx. Xxx signs it, Xx. Xxx will not receive consideration set forth above and he shall also be revoking the Amendment to the Management Members Agreement and all benefits thereunder (Xx. Xxx acknowledges that the Management Members Agreement is conditioned upon his agreeing to this Agreement), or the other benefits described hereunder.

Any violation by Xx. Xxx of the covenants, commitments, or obligations, in this Agreement shall release Nalco from its obligation to provide any other benefits promised in this Agreement and shall release any rights in the vesting of any units in Nalco LLC. Nalco’s right to withhold benefits and Nalco LLC’s right to refuse the vesting of any Nalco LLC units shall be without prejudice to any other remedy available to Nalco for breach of this Agreement.

Xx. Xxx shall not directly or indirectly employ, solicit for employment, or otherwise contract for the services of any individual who is an employee of the Company or its affiliates for a period of 5 years from the date of this Agreement.

Xx. Xxx agrees not to (directly or indirectly, individually or with others) do anything calculated or likely to have the effect of undermining, disparaging or otherwise reflecting negatively upon Nalco, its officers, directors, shareholders, employees, former employees agents, operations, reputation, goodwill, business practices, products, services, suppliers, employees of suppliers, and/or customers. Xx. Xxx and Nalco agree that, because the exact amount of potential damages to Nalco resulting from Xx. Xxx’x breach of this section is inherently difficult to determine with any precision, if a court finds that Xx. Xxx has breached this section in any respect, Xx. Xxx will pay all of Nalco’s actual attorneys’ fees and other litigation costs incurred in obtaining an injunction and/or judgment against Xx. Xxx.

Entire Agreement/Changes. This writing contains the entire Agreement between the parties. There is no agreement or understanding between Xx. Xxx and Nalco about or pertaining to the termination of Xx. Xxx’x employment with Nalco, or about Xx. Xxx’x obligations to Nalco regarding Xx. Xxx’x termination except those set forth in this Agreement. No changes to this Agreement shall be enforceable against Nalco unless agreed to and acknowledged by Nalco as evidenced by the signature of an authorized agent of Nalco.

Severability. If any provision of this Agreement, other than the release sections, is held by a court of competent jurisdiction to be unlawful, such provision shall be stricken or modified by the court, and the remaining and/or modified provisions shall remain in full force and effect. If the release sections are held to be unlawful or unenforceable, the Agreement shall be voidable at Nalcos option.

10.

Choice of Law, Interpretation, Venue. This Agreement shall be governed by Illinois law. This Agreement is a product of mutual authorship and shall be neutrally construed. Any action under this agreement which may be brought before the United States District Court for the Northern District of Illinois shall be brought before the United States District Court for the Northern District of Illinois.

In Witness Whereof, the parties have executed this Agreement on the date indicated:

NALCO COMPANY
By:
Title:	Vice President – Human Resources	Xx. Xxxxxxx X. Xxx

RESIGNATION FROM THE BOARD OF DIRECTORS OF

THE NALCO FOUNDATION

I, Xxxxxxx X. Xxx, hereby resign from my membership on the Board of Directors of the Nalco Foundation.



Xxxxxxx X. Xxx

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SEPARATION AGREEMENT

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