AMENDMENT TO MANAGEMENT MEMBERS AGREEMENT CONCERNING NALCO LLC July 14, 2006
AMENDMENT TO MANAGEMENT MEMBERS AGREEMENT
CONCERNING
NALCO LLC
July 14, 2006
This Amendment to Management Members Agreement (the “Amendment”) is made between Nalco LLC (the “Company” or “Nalco”) and Xxxx X. Xxxxx (“Xx. Xxxxx”).
Whereas, Nalco LLC and Xx. Xxxxx entered into a Management Members Agreement dated on or about June 11, 2006 (the “Management Members Agreement”).
Whereas the parties wish to amend the Management Members Agreement.
Whereas terms not otherwise defined herein shall have the meanings indicated in the Management Members Agreement.
Therefore the parties agree as follows:
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a. |
“Applicable Percentage” shall be modified to reflect as follows: (a) that for purposes of the 20% tranche of B Units scheduled to vest on December 31, 2006, Xx. Xxxxx will be permitted the opportunity to vest at 75% of these 2006 B Units at Xxxxxxxx 00, 0000, (x) should the required 2006 performance targets for the C units 2006 tranche be reached as determined by Nalco LLC, Xx. Xxxxx will be permitted the opportunity to vest at 75% of both the 20% tranche of 2006 C units and the 20% tranche of 2005 C units and (c) should the required 2006 performance targets for the D units be reached as determined by Nalco LLC, Xx. Xxxxx will be permitted the opportunity to vest at 75% of both the 20% tranche of 2006 D units and the 20% tranche of 2005 D units. After December 31, 2006, all vesting rights relating to the units shall terminate and Xx. Xxxxx shall have no further rights in any unvested units. In all other respects the Management Members Agreement shall remain unchanged with assumption that Xx. Xxxxx’x last date of participation in the Management Equity Program is deemed to be September 30, 2006, and except as stated herein, all other unvested units in the Management Equity Program shall terminate on September 30, 2006. Xx. Xxxxx and Nalco LLC will enter into an agreement amending the Management Members Agreement. |
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b. |
Xx. Xxxxx and Xx. Xxxxx’x successors, assigns, heirs, and agents, and each and all of them, hereby unconditionally and forever release, acquit, and discharge |
the Company, its 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. Xxxxx ever had or may now have up to the date of signing this Agreement, against the Company, or any of them, including, any claim arising out of or relating to 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. It is the intention of Xx. Xxxxx that in executing this Agreement Xx. Xxxxx 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 occurring prior to and up to the date this Agreement is executed. Also waived are any rights to attorneys’ fees, compensation or other recovery as the result of any legal action brought by Xx. Xxxxx or on Xx. Xxxxx’x behalf by any other party, based on any right Xx. Xxxxx has released and waived under this Agreement. Excepted from this release are claims challenging the validity of this Agreement under the Age Discrimination in Employment Act. Xx. Xxxxx’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. Xxxxx signs this Agreement. Also not released are any claims Xx. Xxxxx 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. Xxxxx agrees never to institute any 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 Agreement and alleges age discrimination. If Xx. Xxxxx sues Nalco in violation of this Agreement, then Xx. Xxxxx shall be liable for Nalco’s actual attorneys’ fees and other litigation costs incurred in defending such matter.
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c. |
Xx. Xxxxx shall waive any and all claims to any Unvested Units after application of the terms and provisions of this Agreement. Xx. Xxxxx transfers ownership of any and all Unvested Units to the Company without further payment or consideration. |
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NALCO LLC |
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By: |
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Title: |
Vice President |
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Xxxx X. Xxxxx |
