Nalco Holding Company Common Stock (par value $0.01 per share) Underwriting Agreement
Nalco
Holding Company
Common
Stock
(par
value $0.01 per share)
November
2, 2006
Citigroup
Global Markets Inc.,
000
Xxxxxxxxx Xxxxxx,
Xxx
Xxxx,
Xxx Xxxx 00000.
Ladies
and Gentlemen:
The
stockholders of Nalco Holding Company, a Delaware corporation (the “Company”),
named in Schedule I hereto (the “Selling Stockholders”) propose, severally and
not jointly, subject to the terms and conditions stated herein, to sell to
Citigroup Global Markets Inc. (the “Underwriter”) an aggregate of
20,000,000 shares
(the “Shares”) of Common Stock, par value $0.01 per share (“Stock”), of the
Company.
1. (a) The
Company represents and warrants to, and agrees with, the Underwriter
that:
(i) An
“automatic shelf registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”) on Form S-3 (File No. 333-130715)
in respect of the Stock, including the Shares, has been filed with the
Securities and Exchange Commission (the “Commission”) not earlier than three
years prior to the date hereof; such registration statement, and any
post-effective amendment thereto, became effective on filing; and no stop order
suspending the effectiveness of such registration statement or any part thereof
has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission, and no notice of objection of the Commission
to
the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act has been received by the Company (the
base prospectus filed as part of such registration statement, in the form in
which it has most recently been filed with the Commission on or prior to the
date of this Agreement, is hereinafter called the “Basic Prospectus”; the
various parts of such registration statement, including all exhibits thereto
and
any prospectus supplement relating to the Shares that is filed with the
Commission and deemed by virtue of Rule 430B to be part of such registration
statement, each as amended at the time such part of the registration statement
became effective, are hereinafter collectively called the “Registration
Statement”; the Basic Prospectus, as amended and supplemented immediately prior
to the Applicable Time (as defined in Section 1(a)(iii) hereof), is hereinafter
called the “Pricing Prospectus”; the form of the final prospectus relating to
the Shares filed with the Commission pursuant to Rule 424(b) under the Act
in
accordance with Section 5(a) hereof is hereinafter called the “Prospectus”; any
reference herein to the Basic Prospectus, the Pricing Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated
by
reference therein pursuant to Item 12 of Form S-3 under the Act, as of the
date
of such prospectus; any reference to any amendment or supplement to the Basic
Prospectus or the Prospectus shall be deemed to refer to and include any
post-effective amendment to the Registration Statement, any prospectus
supplement relating to the Shares filed with the Commission pursuant to Rule
424(b) under the Act and any documents filed under the Securities Exchange
Act
of 1934, as amended (the “Exchange Act”), and incorporated therein, in each case
after the date of the Basic Prospectus or the Prospectus, as the case may be;
any reference to any amendment to the Registration Statement shall be deemed
to
refer to and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement;
and
any “issuer free writing prospectus” as defined in Rule 433 under the Act
relating to the Shares is hereinafter called an “Issuer Free Writing
Prospectus”);
(ii) No
order
preventing or suspending the use of any Issuer Free Writing Prospectus has
been
issued by the Commission;
(iii) For
the
purposes of this Agreement, the “Applicable Time” is 5:30 p.m. (Eastern time) on
the date of this Agreement; the Pricing Prospectus as supplemented by the Issuer
Free Writing Prospectuses and other information listed in Schedule II(c) hereto,
taken together (collectively, the “Pricing Disclosure Package”) as of the
Applicable Time, did not include any untrue statement of a material fact or
omit
to state any material fact necessary in order to make the statements therein,
in
the light of the circumstances under which they were made, not misleading;
and
each Issuer Free Writing Prospectus listed in Schedule II(a) or
Schedule II(c) hereto does not conflict with the information contained in
the Registration Statement, the Pricing Prospectus or the Prospectus and each
such Issuer Free Writing Prospectus, as supplemented by and taken together
with
the Pricing Disclosure Package as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to statements or omissions made
in
an Issuer Free Writing Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriter expressly
for
use therein;
(iv) The
documents incorporated by reference in the Pricing Prospectus and the
Prospectus, when they became effective or were filed with the Commission, as
the
case may be, conformed in all material respects to the requirements of the
Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective
or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable,
and
the rules and regulations of the Commission thereunder and will not contain
an
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriter expressly for use
therein; and no such documents were filed with the Commission since the
Commission’s close of business on the business day immediately prior to the date
of this Agreement and prior to the execution of this Agreement, except as set
forth on Schedule II(b) hereto;
(v) The
Registration Statement and the Pricing Prospectus conform, and the Prospectus
and any further amendments or supplements to the Registration Statement or
the
Prospectus will conform, in all material respects to the requirements of the
Act
and the rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to each part of the Registration
Statement and as of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a material
fact
or omit to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading; provided,
however,
that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing
to
the Company by the Underwriter expressly for use therein;
(vi) Since
the
date of the latest audited financial statements included in or incorporated
by
reference in the Pricing Prospectus, except as set forth in or contemplated
in
the Pricing Prospectus, (A) there has not been any material adverse change
in
the condition (financial or otherwise), business or results of operations of
the
Company and its subsidiaries, taken as a whole, and (B) since the respective
dates as of which information is given in the Registration Statement and the
Pricing Prospectus, there has not been any change in the capital stock or
long-term debt (other than an increase not in excess of $75,000,000) of the
Company or any of its significant subsidiaries (as such term is defined in
Rule
1-02(w) of Regulation S-X, as promulgated by the Commission (the “Significant
Subsidiaries”));
(vii) Each
of
the Company and its subsidiaries owns, leases or licenses all such real
properties as are necessary to conduct its operations as presently conducted,
except as would not reasonably be expected to have a material adverse effect
on
the condition (financial or otherwise), business or results of operations of
Company and its subsidiaries, taken as a whole (a “Material Adverse
Effect”);
(viii) Each
of
the Company and its subsidiaries has been duly organized and is validly existing
as an entity in good standing under the laws of the jurisdiction in which it
is
chartered or organized with full corporate or other organizational power and
authority to own or lease, as the case may be, and to operate its properties
and
conduct its business as described in the Pricing Prospectus, and is duly
qualified to do business as a foreign corporation or other entity and is in
good
standing under the laws of each jurisdiction where the ownership or leasing
of
its properties or the conduct of its business requires such qualification except
where the failure to be so organized or qualified, have such power or authority
or be in good standing would not reasonably be expected to have a Material
Adverse Effect;
(ix) The
Company has an authorized capitalization as set forth in the Pricing Prospectus,
and all of the issued and outstanding shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description of the Stock contained in the
Pricing Prospectus under the heading “Description of Capital Stock”; and all of
the issued shares of capital stock of each subsidiary of the Company (or in
the
case of a non-wholly-owned subsidiary, such portion of the capital stock of
such
subsidiary issued to the Company or any of its subsidiaries), have been duly
and
validly authorized and issued, are fully paid and non-assessable and, except
as
otherwise set forth in the Pricing Prospectus, all outstanding shares of capital
stock of the Company’s subsidiaries are owned by the Company either directly or
through its subsidiaries free and clear of any security interest, claim, lien
or
encumbrance (other than liens, encumbrances and restrictions (i) imposed by
the
Act and state securities or “blue sky” laws of certain jurisdictions and (ii)
imposed in connection with the senior credit facilities described in the Pricing
Prospectus);
(x) No
consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the execution,
delivery and performance of this Agreement, except such (i) as may be required
under the blue sky laws of any jurisdiction in which the Shares are offered
and
sold or (ii) as shall have been obtained or made prior to the Time of Delivery
(as defined in Section 4);
(xi) None
of
the execution and delivery of this Agreement, the sale of the Shares, or the
consummation of any other of the transactions herein contemplated, or the
fulfillment of the terms hereof will (A) conflict with, result in a breach
or
violation or imposition of any lien, charge or encumbrance upon any property
or
assets of the Company or any of its Significant Subsidiaries pursuant to
(i) the terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company or any of its Significant
Subsidiaries is a party or bound or to which its or their property is subject;
or (ii) any statute, law, rule, regulation, judgment, order or decree of
any court, regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over the Company or any of its
Significant Subsidiaries or any of its or their properties, other than in the
case of clause (i), such breaches, violations, liens, charges, or encumbrances
that would not, individually or in the aggregate, reasonably be expected to
have
a Material Adverse Effect or (B) result in the violation of the charter or
by-laws of the Company;
(xii) Neither
the Company nor any of its subsidiaries is in violation or default of
(i) any provision of its charter, bylaws or any equivalent organizational
document; (ii) the terms of any indenture, contract, lease, mortgage, deed
of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound or to which
its property is subject; or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its subsidiaries
of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or such
subsidiary or any of its properties, as applicable, other than in the cases
of
clauses (ii) and (iii), such violations and defaults that would not reasonably
be expected to have a Material Adverse Effect;
(xiii) The
consolidated historical financial statements of the Company and its consolidated
subsidiaries present fairly the financial condition, results of operations
and
cash flows of the Company, as of the dates and for the periods indicated and
have been prepared in conformity with United States generally accepted
accounting principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein); the selected historical financial
data set forth under the caption “Item 6 - Selected Financial Data” in the
Company’s Annual Report on Form 10-K for the fiscal year ended December 31,
2005, which is incorporated by reference in the Pricing Prospectus, fairly
presents, on the basis stated therein, the information included
therein;
(xiv) The
statements set forth in the Pricing Prospectus under the caption “Description of
Capital Stock”, insofar as they purport to constitute a summary of the terms of
the Stock, and in the Prospectus under the caption “Underwriting”, insofar as
they purport to describe the provisions of the laws and documents referred
to
therein, are accurate, complete and fair;
(xv) No
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries or its or their property is pending or, to the best knowledge
of
the Company, threatened that (i) would reasonably be expected to have a
material adverse effect on the performance of this Agreement or the consummation
of any of the transactions contemplated hereby or (ii) would reasonably be
expected to have a Material Adverse Effect, except as set forth in or
contemplated in the Pricing Prospectus;
(xvi) The
Company is not and, after giving effect to the sale of the Shares by the Selling
Stockholders, will not be an “investment company”, as such term is defined in
the Investment Company Act of 1940, as amended (the “Investment Company
Act”);
(xvii) Ernst
& Young LLP, who have certified certain financial statements of the Company
and its subsidiaries and have audited the Company’s internal control over
financial reporting and management’s assessment thereof, are independent public
accountants as required by the Act and the applicable rules and regulations
of
the Commission thereunder;
(xviii) The
Company and its subsidiaries have filed all non-U.S., U.S. federal, state and
local tax returns that are required to be filed or have requested extensions
thereof (except in any case in which the failure so to file would not reasonably
be expected to have a Material Adverse Effect and except as disclosed in the
Pricing Prospectus) and have paid all taxes required to be paid by them and
any
other assessment, fine or penalty levied against them, to the extent that any
of
the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as would not
reasonably be expected to have a Material Adverse Effect and except as disclosed
in the Pricing Prospectus;
(xix) No
labor
problem or dispute with the employees of the Company or any of its subsidiaries
exists that would reasonably be expected to have a Material Adverse Effect
or,
to the Company’s knowledge, is threatened, and the Company is not aware of any
existing labor disturbance that would reasonably be expected to have a Material
Adverse Effect;
(xx) The
Company and its subsidiaries are insured against such losses and risks and
in
such amounts as are prudent and customary in the businesses in which they are
engaged or as required by law;
(xxi) The
Company and its subsidiaries possess all licenses, certificates, permits and
other authorizations issued by the appropriate U.S. federal, state or non-U.S.
regulatory authorities necessary to conduct their respective businesses, except
where the failure to possess such licenses, certificates, permits and other
authorizations would not reasonably be expected to have a Material Adverse
Effect, and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if
the
subject of an unfavorable decision, ruling or finding, would reasonably be
expected to have a Material Adverse Effect, except as disclosed in the Pricing
Prospectus;
(xxii) The
Company maintains a system of internal control over financial reporting (as
such
term is defined in Rule 13a-15(f) under the Exchange Act) that complies with
the
requirements of the Exchange Act and has been designed by the Company’s
principal executive officer and principal financial officer, or under their
supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles. The
Company’s internal control over financial reporting is effective and the Company
is not aware of any material weaknesses in its internal control over financial
reporting;
(xxiii)
Since the date of the latest audited financial statements incorporated by
reference in the Pricing Prospectus, there has been no change in the Company’s
internal control over financial reporting that has materially affected, or
is
reasonably likely to materially affect, the Company’s internal control over
financial reporting;
(xxiv)
The Company maintains disclosure controls and procedures (as such term is
defined in Rule 13a-15(e) under the Exchange Act) that comply with the
requirements of the Exchange Act; such disclosure controls and procedures have
been designed to ensure that material information relating to the Company and
its subsidiaries is made known to the Company’s principal executive officer and
principal financial officer by others within those entities; and such disclosure
controls and procedures are effective;
(xxv) The
Company and its subsidiaries are (i) in compliance with any and all
applicable non-U.S., U.S. federal, state and local laws and regulations relating
to the protection of human health and safety, the environment or hazardous
or
toxic substances or wastes, pollutants or contaminants (“Environmental Laws”);
(ii) have received and are in compliance with all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses; (iii) have not received notice of any actual
or potential liability under any Environmental Law; and (iv) have not been
named
as a “potentially responsible party” under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, except where
such
non-compliance with Environmental Laws, failure to receive or comply with
required permits, licenses or other approvals, liability or status as a
potentially responsible party would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect and except as disclosed
in the Pricing Prospectus;
(xxvi) The
minimum funding standard under Section 302 of the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (“ERISA”), has been satisfied by each “pension plan”
(as defined in Section 3(2) of ERISA) which has been established or maintained
by the Company and/or one or more of its subsidiaries, and the trust forming
part of each such plan which is intended to be qualified under Section 401
of
the Code is so qualified; each of the Company and its subsidiaries has fulfilled
its obligations, if any, under Section 515 of ERISA; each pension plan and
welfare plan established or maintained by the Company and/or one or more of
its
subsidiaries is in compliance in all material respects with the currently
applicable provisions of ERISA; and neither the Company nor any of its
subsidiaries has incurred or, except as disclosed in the Pricing Prospectus,
could reasonably be expected to incur any material withdrawal liability under
Section 4201 of ERISA, any material liability under Section 4062, 4063, or
4064
of ERISA, or any other material liability under Title IV of ERISA;
(xxvii) The
Company and its subsidiaries own, possess, license or have other rights to
use
on reasonable terms, all patents, trademarks and service marks, trade names,
copyrights, domain names (in each case including all registrations and
applications to register same), inventions, trade secrets, technology, know-how,
and other intellectual property (collectively, the “Intellectual Property”),
necessary for the conduct of the Company’s business as now conducted or as
proposed in the Pricing Prospectus to be conducted, except where the failure
to
own, possess, license or otherwise have such rights would not reasonably be
expected to have a Material Adverse Effect. Except as disclosed in the Pricing
Prospectus, and except as would not reasonably be expected to have a Material
Adverse Effect, (i) the Company and its subsidiaries own, or have rights to
use
under license, all such Intellectual Property free and clear in all respects
of
all adverse claims, liens or other encumbrances except those granted in
connection with the senior credit facilities described in the Pricing
Prospectus; (ii) to the knowledge of the Company, there is no infringement
by third parties of any such Intellectual Property; (iii) there is no
pending or, to the Company’s knowledge, threatened action, suit, proceeding or
claim by any third party challenging the Company’s or its subsidiaries’ rights
in or to any such Intellectual Property, and the Company is not aware of any
reasonable basis for any such claim; (iv) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or claim by any third
party challenging the validity, scope or enforceability of any such Intellectual
Property, and the Company is not aware of any reasonable basis for any such
claim; and (v) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by any third party that the Company
or any subsidiary infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of any third party, and
the
Company is not aware of any reasonable basis for any such claim;
(xxviii) (A)(i)
At
the time of filing of the Registration Statement and (ii) at the time of the
most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act
or
form of prospectus), the Company was a “well-known seasoned issuer” as defined
in Rule 405 under the Act; and (B) at the earliest time after the filing of
the
Registration Statement that the Company or another offering participant made
a
bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the
Shares, the Company was not an “ineligible issuer” as defined in Rule 405 under
the Act;
(xxix)
Neither the Company nor any person acting on its behalf (within the meaning,
for
this clause only, of Rule 163(c) under the Act) has made any offer relating
to
the Shares in reliance on the exemption of Rule 163 under the Act;
(xxx)
No
forward-looking statement (within the meaning of Section 27A of the Act and
Section 21E of the Exchange Act) or presentation of market-related or
statistical data contained in the Pricing Prospectus or Prospectus has been
made
or reaffirmed without a reasonable basis or has been disclosed other than in
good faith; and
(xxxi) Except
as
disclosed in the Pricing Prospectus, no person or entity other than the Selling
Stockholders has the right to require registration of shares of Stock or other
securities of the Company because of the filing or effectiveness of the
Registration Statement or otherwise, except for persons and entities who have
expressly waived such right or who have been given proper notice and have failed
to exercise such right within the time or times required under the terms and
conditions of such right.
(b) Each
of
the Selling Stockholders, severally and not jointly, represents and warrants
to,
and agrees with, the Underwriter and the Company that:
(i) All
consents, approvals, authorizations and orders necessary for the execution
and
delivery by such Selling Stockholder of this Agreement and the Power of Attorney
hereinafter referred to, and for the sale and delivery of the Shares to be
sold
by such Selling Stockholder hereunder, have been obtained; and such Selling
Stockholder has full right, power and authority to enter into this Agreement
and
the Power of Attorney and to sell, assign, transfer and deliver the Shares
to be
sold by such Selling Stockholder hereunder;
(ii) The
sale
of the Shares and the compliance by such Selling Stockholder with all of the
provisions of this Agreement and the Power of Attorney and the consummation
of
the transactions herein and therein contemplated will not, in any material
respect, conflict with or result in a breach or violation of any of the terms
or
provisions of, or constitute a default under, any indenture, mortgage, deed
of
trust, loan agreement or other agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder is bound or to
which
any of the property or assets of such Selling Stockholder is subject, nor will
such action result in any violation of the provisions of the Certificate of
Formation or Limited Liability Company Operating Agreement or Partnership
Agreement or other applicable governing documents of such Selling Stockholder
or
any material violation of a statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over such Selling
Stockholder or the property of such Selling Stockholder;
(iii) Such
Selling Stockholder is, and immediately prior to the Time of Delivery (as
defined in Section 4 hereof) such Selling Stockholder will be, the owner of
the
Shares to be sold by such Selling Stockholder hereunder, free and clear of
all
liens, encumbrances, equities or claims; and, upon delivery of such Shares
as
directed by the Underwriter, to a nominee designated by The Depository Trust
Company (“DTC”) and the crediting of such Shares on the records of DTC to the
securities account of the Underwriter and payment therefor pursuant hereto,
(a)
DTC will be a “protected purchaser” (as defined under Section 8-303 of the
Uniform Commercial Code of Delaware (the “Delaware UCC”)) provided that it has
no “notice” of an adverse claim within the meaning of Section 8-105 of the
Delaware UCC, (b) the Underwriter will acquire a security entitlement in respect
of such Shares under Section 8-501 of the Uniform Commercial Code of New York
(the “New York UCC”) and (c) no action based on an adverse claim to such
security entitlement may be asserted against the Underwriter provided that
they
have no “notice” of an adverse claim within the meaning of Section 8-105 of the
New York UCC;
(iv) Such
Selling Stockholder has delivered to the Underwriter an executed copy of a
power
of attorney, in the form of Annex IV hereto (the “Power of Attorney”),
appointing Xxxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxx, and each of them, as such
Selling Stockholder’s attorneys-in-fact (the “Attorneys-in-Fact”) for the
purposes described therein;
(v) Such
Selling Stockholder has not taken and will not take, directly or indirectly,
any
action which is designed to or which has constituted or which might reasonably
be expected to cause or result in stabilization or manipulation of the price
of
any security of the Company to facilitate the sale or resale of the Shares;
(vi) To
the
extent that any statements or omissions made in the Registration Statement,
the
Pricing Prospectus, the Prospectus or any amendment or supplement thereto are
made in reliance upon and in conformity with written information furnished
to
the Company by such Selling Stockholder expressly for use therein, such Pricing
Prospectus and the Registration Statement did, and the Prospectus and any
further amendments or supplements to the Registration Statement and the
Prospectus, when they become effective or are filed with the Commission, as
the
case may be, will conform in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder and will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided
that
it
is understood and agreed that, for purposes of this Agreement, including Section
9 hereof, the only such information furnished by such Selling Stockholder
consists of the information in the Prospectus under the caption “Selling
Stockholders” and in the Company’s 2006 Proxy Statement under the caption “Stock
Ownership Information”, in each case insofar as such information relates to such
Selling Stockholder and the beneficial owners of such Selling
Stockholder; and
(vii) In
order
to document the Underwriter’s compliance with the reporting and withholding
provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect
to the transactions herein contemplated, such Selling Stockholder will deliver
to you prior to or at the Time of Delivery (as defined in Section 4 hereof)
a
properly completed and executed United States Treasury Department Form W-9
(or
other applicable form or statement specified by Treasury Department regulations
in lieu thereof).
2. Subject
to the terms and conditions herein set forth, each of the Selling Stockholders
agrees, severally and not jointly, to sell to the Underwriter, and the
Underwriter agrees to purchase from each of the Selling Stockholders, at a
purchase price per share of $19.20, the number of Shares set forth opposite
their respective names in Schedule I hereto.
3. Upon
the
authorization by you of the release of the Shares, the Underwriter proposes
to
offer the Shares for sale upon the terms and conditions set forth in the
Prospectus.
4. (a)
The
Shares to be purchased by the Underwriter hereunder, in definitive form, and
in
the authorized denominations and registered in the names as the Underwriter
may
request upon at least forty-eight hours’ prior notice to the Selling
Stockholders shall be delivered by or on behalf of the Selling Stockholders
to
the Underwriter, through the facilities of the DTC, for the account of the
Underwriter, against payment by the Underwriter of the purchase price therefor
by wire transfer of Federal (same-day) funds to the accounts specified by the
Selling Stockholders to the Underwriter at least forty-eight hours in advance.
The Company and the Selling Stockholders will cause the certificates
representing the Shares to be made available for checking and packaging at
least
twenty-four hours prior to the Time of Delivery (as defined below) at the office
of DTC or its designated custodian (the “Designated Office”). The time and date
of such delivery and payment shall be 9:30 a.m., New York time, on November
8, 2006 or such other time and date as the Underwriter, the Company and the
Selling Stockholders may agree upon in writing. Such time and date are herein
called the “Time of Delivery”.
(b) The
documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross receipt for the Shares
and any additional documents requested by the Underwriter pursuant to Sections
8(k) and 8(l) hereof will be delivered at the offices of Xxxxxxxx & Xxxxxxxx
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (the “Closing Location”),
and the Shares will be delivered at the Designated Office, all at the Time
of
Delivery. A meeting will be held at the Closing Location at 3:00 p.m., New
York
City time, on the New York Business Day next preceding the Time of Delivery,
at
which meeting the final drafts of the documents to be delivered pursuant to
the
preceding sentence will be available for review by the parties hereto. For
the
purposes of this Section 4, “New York Business Day” shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The
Company agrees with the Underwriter:
(a) To
prepare the Prospectus in a form approved by you, such approval not to be
unreasonably withheld or delayed, and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission’s close of business on the
second business day following the execution and delivery of this Agreement;
to
make no further amendment or any supplement to the Registration Statement,
the
Basic Prospectus or the Prospectus prior to the Time of Delivery to which you
reasonably object promptly after reasonable notice thereof; to advise you,
promptly after it receives notice thereof, of the time when any amendment to
the
Registration Statement has been filed or becomes effective or any supplement
to
the Prospectus or any amended Prospectus has been filed and to furnish you
with
copies thereof; to file promptly all material required to be filed by the
Company with the Commission pursuant to Rule 433(d) under the Act; to file
promptly all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus
and for so long as delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is required in connection with the
offering or sale of the Shares; to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus in respect of the Shares,
of
any notice of objection of the Commission to the use of the Registration
Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the Act, of the suspension of the qualification of the Shares for offering
or sale in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the amending
or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any
order
preventing or suspending the use of any prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the withdrawal of
such
order; and in the event of any such issuance of a notice of objection, promptly
to take such steps including, without limitation, amending the Registration
Statement or filing a new registration statement, at its own expense, as may
be
necessary to permit offers and sales of the Shares by the Underwriter
(references herein to the Registration Statement shall include any such
amendment or new registration statement); provided that any actions required
in
connection with the sales of any of the Shares at any time nine months or more
after the time of issue of the Prospectus shall be at the Underwriter’s
expense;
(b) If
required by Rule 430B(h) under the Act, to prepare a form of prospectus in
a
form approved by you and to file such form of prospectus pursuant to Rule 424(b)
under the Act not later than may be required by Rule 424(b) under the Act;
and
to make no further amendment or supplement to such form of prospectus to which
you reasonably object promptly after reasonable notice thereof;
(c) If
by the
third anniversary (the “Renewal Deadline”) of the initial effective date of the
Registration Statement, any of the Shares remain unsold by the Underwriter,
the
Company will file, if it has not already done so and is eligible to do so,
a new
automatic shelf registration statement relating to the Shares, in a form
satisfactory to you. If at the Renewal Deadline the Company is no longer
eligible to file an automatic shelf registration statement, the Company will,
if
it has not already done so, file a new shelf registration statement relating
to
the Shares, in a form satisfactory to you and will use its best efforts to
cause
such registration statement to be declared effective within 180 days after
the Renewal Deadline. The Company will take all other action necessary or
appropriate to permit the public offering and sale of the Shares to continue
as
contemplated in the expired registration statement relating to the Shares.
References herein to the Registration Statement shall include such new automatic
shelf registration statement or such new shelf registration
statement, as
the
case may be; provided that any actions required in connection with the sales
of
any of the Shares at any time nine months or more after the time of issue of
the
Prospectus shall be at the Underwriter’s expense;
(d) Promptly
from time to time to take such action as you may reasonably request to qualify
the Shares for offering and sale under the securities laws of such jurisdictions
as you may request and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Shares, provided that in
connection therewith the Company shall not be required to qualify as a foreign
corporation or a dealer in securities or to file a general consent to service
of
process in any jurisdiction or to subject itself to taxation in excess of a
nominal amount in respect of doing business in any jurisdiction;
(e) Prior
to
10:00 A.M., New York City time, on the New York Business Day next succeeding
the
date of this Agreement and from time to time, to furnish the Underwriter with
written and electronic copies of the Prospectus in New York City in such
quantities as you may reasonably request, and, if the delivery of a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
required at any time prior to the expiration of nine months after the time
of
issue of the Prospectus in connection with the offering or sale of the Shares
and if at such time any events shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement
of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were
made when such Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is delivered, not misleading, or, if for any other reason
in the opinion of counsel for the Underwriter it shall be necessary during
such
period to amend or supplement the Prospectus or
to
file under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act or the Exchange Act, to notify you
and upon your request to file such document and to prepare and furnish without
charge to the Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance, and in case any Underwriter is required
to deliver a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) in connection with sales of any of the Shares at any
time
nine months or more after the time of issue of the Prospectus, upon your request
but at the expense of the Underwriter (notwithstanding the provisions of Section
7), to prepare and deliver to the Underwriter as many written and electronic
copies as you may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act;
(f) To
make
generally available to its securityholders as soon as practicable, but in any
event not later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act), an earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company,
Rule 158);
(g) During
the Lock-up Period (as defined below), not to offer, sell, contract to sell,
pledge or otherwise dispose of (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition (whether
by
actual disposition or effective economic disposition due to cash settlement
or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company), directly or
indirectly, including to establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of Section
16 of the Exchange Act, except as provided hereunder, any Stock, any securities
of the Company that are substantially similar to the Shares, including but
not
limited to any securities that are convertible into or exchangeable for, or
that
represent the right to receive, Stock or any such substantially similar
securities (other than (i) the Shares to be sold by the Selling Stockholders
hereunder, (ii) the issuance of shares of Stock upon the exercise of an option
or warrant or upon the conversion or exchange of convertible or exchangeable
securities, in each case outstanding as of the date of this Agreement or
described in the Pricing Prospectus as being outstanding on or prior to the
Time
of Delivery, (iii) the grant of options to purchase shares of Stock under the
Company’s stock option plans existing on the date of this Agreement and
described in the Pricing Prospectus, (iv) the issuance of securities of the
Company in exchange for the assets of, or a majority or controlling portion
of
the equity of, another entity in connection with the acquisition by the Company
of such entity, provided, however, that in the case of (iv), (A) prior to such
issuance of securities, each recipient of such securities shall have executed
and delivered to the Underwriter an agreement, in a form reasonably satisfactory
to the Underwriter, to comply with the terms and conditions set forth in Annex
III hereto, and (B) the aggregate market value of such securities shall not
exceed 5% of the market capitalization of the Company immediately following
the
Time of Delivery, and (v) the filing of a registration statement in respect
of
the Stock during the Lock-up Period), without
the prior written consent of the Underwriter. The initial lock-up period will
commence on the date hereof and will continue to and include the date 60 days
after the date of the Prospectus; provided,
however,
that if
(1) during the last 17 days of the initial lock-up period the Company releases
earnings results or announces material news or a material event or
(2) prior to the expiration of the initial lock-up period the Company
announces that it will release earnings results during the 16-day period
beginning on the last day of the initial lock-up period, then in each case
the
lock-up period will be automatically extended until the expiration of the 18-day
period beginning on the date of release of the earnings results or the
announcement of the material news or material event, as applicable, unless
the
Underwriter waives, in writing, such lock-up restriction (the “Lock-up
Period”);
(h) To
provide written notice to the Underwriter and to each of the Selling
Stockholders of any event that would result in an extension of the Lock-up
Period in accordance with the terms and conditions set forth in Annex III
hereto;
(i) So
long
as the Company is required to file reports with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act (but in any event for a period of no
less than two years and no more than five years from the effective date of
the
Registration Statement), to furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance sheet
and statements of income, stockholders’ equity and cash flows of the Company and
its consolidated subsidiaries certified by independent public accountants)
and,
as soon as practicable after the end of each of the first three quarters of
each
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), to make available to its stockholders
consolidated summary financial information of the Company and its subsidiaries
for such quarter in reasonable detail; provided,
however,
that the
Company may satisfy the requirements of this subsection by making any such
reports, communications or information generally available on its web site
or by
filing such information with the Commission via XXXXX;
(j) So
long
as the Company is required to file reports with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act (but in any event for a period of no
less than two years and no more than five years from the effective date of
the
Registration Statement), to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver
to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition
of
the Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
provided, however,
that the
Company may satisfy the requirements of this subsection by making any such
reports, communications or information generally available on its web site
or by
filing such information with the Commission via XXXXX;
(k) If
the
Shares have not already been listed, to use its commercially reasonable efforts
to list, subject to notice of issuance, the Shares on the New York Stock
Exchange (the “Exchange”);
(l) Upon
request of the Underwriter, to furnish, or cause to be furnished, to the
Underwriter an electronic version of the Company’s owned trademarks,
servicemarks and corporate logo for use on the website, if any, operated by
the
Underwriter for the purpose of facilitating the on-line offering of the Shares
(the “License”); provided,
however,
that
the License shall be used solely for the purpose described above, is granted
without any fee and may not be assigned or transferred;
(m) Not
to
take, directly or indirectly, any action designed to or that would constitute
or
that might reasonably be expected to cause or result in, under the Exchange
Act
or otherwise, stabilization or manipulation of the price of any security of
the
Company to facilitate the sale or resale of the Shares; and
(n) To
pay
the required Commission filing fees relating to the Shares within the time
required by Rule 456(b)(1) under the Act without regard to the proviso therein
and otherwise in accordance with Rules 456(b) and 457(r) under the
Act.
6. (a) The
Company and each of the Selling Stockholders represents and agrees that, without
the prior consent of the Underwriter, and the Underwriter represents and agrees
that, without the prior consent of the Company, it has not made and will not
make any offer relating to the Shares that would constitute an Issuer Free
Writing Prospectus, or that would constitute a “free writing prospectus” as
defined in Rule 405 under the Act, any portion of which would be required to
be
filed with the Commission; any such free writing prospectus the use of which
has
been consented to by the Company and the Underwriter is listed on Schedule
II(a)
or Schedule II(c) hereto;
(b) The
Company and each of the Selling Stockholders has complied and will comply with
the requirements of Rule 433 under the Act applicable to any Issuer Free Writing
Prospectus, including timely filing with the Commission or retention where
required and legending; and
(c) The
Company and each of the Selling Stockholders agrees that if at any time
following issuance of an Issuer Free Writing Prospectus any event occurred
or
occurs as a result of which such Issuer Free Writing Prospectus would conflict
with the information in the Registration Statement, the Pricing Prospectus
or
the Prospectus or would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein,
in
the light of the circumstances then prevailing, not misleading, the Company
or
such Selling Stockholder will give prompt notice thereof to the Underwriter
and,
if requested by the Underwriter, will prepare and furnish without charge to
the
Underwriter an Issuer Free Writing Prospectus or other document which will
correct such conflict, statement or omission; provided, however, that this
representation and warranty shall not apply to any statements or omissions
in an
Issuer Free Writing Prospectus made in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriter expressly
for
use therein.
(d) Each
of
the Selling Stockholders represents and agrees to be bound by, and to comply
with, the terms and conditions set forth in Annex III hereto.
7. The
Company and each of the Selling Stockholders covenants and agrees with one
another and with the Underwriter that (a) the Company will pay or cause to
be
paid the following: (i) the fees, disbursements and expenses of the Company’s
counsel and accountants and the Selling Stockholders’ counsel in connection with
the registration of the Shares under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, the Basic Prospectus, any Issuer Free Writing Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriter and dealers; (ii) the cost of printing
or
producing any Blue Sky Memorandum and any other related documents in connection
with the offering, purchase, sale and delivery of the Shares; (iii) all
expenses in connection with the qualification of the Shares for offering and
sale under state securities laws as provided in Section 5(d) hereof, including
the reasonable fees and disbursements of counsel for the Underwriter in
connection with such qualification and in connection with the Blue Sky survey;
(iv) all fees and expenses in connection with listing the Shares on
the Exchange;
(v) the filing fees incident to, and the fees and disbursements of counsel
for the Underwriter in
connection with, securing any required review by the NASD of the terms of the
sale of the Shares; (vi) the cost of preparing stock certificates; (vii)
the cost and charges of any transfer agent or registrar; and (viii) all other
costs and expenses incident to the performance of its obligations and the
Selling Stockholders’ obligations hereunder which are not otherwise specifically
provided for in this Section 7, including the transportation and other expenses
incurred by or on behalf of the Company’s representatives or the Selling
Stockholders’ representatives in connection with presentations to prospective
purchasers of the Shares (it being understood that the Company and the
Underwriter shall each bear half of the costs, respectively, associated with
any
chartered aircraft), and (b) each Selling Stockholder will pay or cause to
be
paid all taxes incident to the sale and delivery of the Shares to be sold by
such Selling Stockholder to the Underwriter hereunder. In connection with clause
(b) of the preceding sentence, the Underwriter agrees to pay New York State
stock transfer tax, and such Selling Stockholder agrees to reimburse the
Underwriter for associated carrying costs if such tax payment is not rebated
on
the day of payment and for any portion of such tax payment not rebated. It
is
understood, however, that, except as provided in this Section 7, and Sections
9
and 11 hereof, the Underwriter will pay all of its own costs and expenses,
including the fees and disbursements of its counsel, stock transfer taxes on
resale of any of the Shares by it, and any advertising expenses connected with
any offers it may make.
8. The
obligations of the Underwriter hereunder shall be subject, in its discretion,
to
the condition that (i) all representations and warranties and other statements
of the Company and the Selling Stockholders herein that are qualified by
Material Adverse Effect or another materiality qualifier are, at and as of
the
Time of Delivery, true and correct and (ii) all representations and warranties
and other statements of the Company and the Selling Stockholders herein that
are
not qualified by Material Adverse Effect or another materiality qualifier are,
at and as of the Time of Delivery, true and correct in all material respects,
the condition that the Company and each of the Selling Stockholders shall have
performed all of its obligations hereunder theretofore to be performed, and
the
following additional conditions:
(a) The
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 5(a) hereof; all
material required to be filed by the Company pursuant to Rule 433(d) under
the
Act shall have been filed with the Commission within the applicable time period
prescribed for such filings by Rule 433; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission and no notice of objection of the Commission to
the
use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act shall have been received; no stop
order
suspending or preventing the use of the Prospectus or any Issuer Free Writing
Prospectus shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction;
(b) Xxxxxxxx
& Xxxxxxxx LLP, counsel for the Underwriter, shall have furnished to you
such written opinion or opinions, dated the Time of Delivery, with respect
to
the incorporation of the Company, the validity of the Shares and such other
related matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(c) Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP, counsel for the Company and the Selling
Stockholders, shall have furnished to you their written opinions (drafts of
the
opinions are attached as Annex II(a) hereto), dated the Time of Delivery, in
form and substance satisfactory to you;
(d) Xxxxxxx
X. Xxxxxxxx, Esq., General Counsel of the Company, shall have furnished to
you
his written opinion (a draft of the opinion is attached as Annex II(b) hereto),
dated the Time of Delivery, in form and substance satisfactory to
you;
(e) On
the
date of the Prospectus at a time prior to the execution of this Agreement,
at
9:30 a.m., New York City time, on the effective date of any post-effective
amendment to the Registration Statement filed subsequent to the date of this
Agreement and also at the Time of Delivery, Ernst & Young LLP shall have
furnished to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you (the executed copy of the
letter delivered prior to the execution of this Agreement is attached as Annex
I(a) hereto and a draft of the form of letter to be delivered on the effective
date of any post-effective amendment to the Registration Statement and as of
the
Time of Delivery is attached as Annex I(b) hereto);
(f) Subsequent
to the date of the Pricing Prospectus or, if earlier, the dates as of which
information is given in the Pricing Prospectus (exclusive of any amendment
or
supplement thereto), there shall not have been any change, or any development
involving a prospective change, in or affecting the condition (financial or
otherwise), business or results of operations of the Company and its
subsidiaries, taken as a whole and after giving effect to the offering, except
as set forth in or contemplated in the Pricing Prospectus (exclusive of any
amendment or supplement thereto), the effect of which is, in the judgment of
the
Underwriter, so material and adverse as to make it impracticable or inadvisable
to proceed with the public offering or the delivery of the Shares on the terms
and in the manner contemplated in the Prospectus (exclusive of any amendment
or
supplement thereto);
(g) On
or
after the Applicable Time, there shall not have been any decrease in the rating
of any of the Company or any of its Significant Subsidiaries’ debt securities by
any “nationally recognized statistical rating organization” (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change;
(h) On
or
after the Applicable Time there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on
the Exchange; (ii) a suspension or material limitation in trading in the
Company’s securities on the Exchange; (iii)
a
general moratorium on commercial banking activities declared by either Federal
or New York State authorities or a material disruption in commercial banking
or
securities settlement or clearance services in the United States; (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war or (v) the
occurrence of any other calamity or crisis, if the effect on the financial
markets of any such event specified in clause (iv) or (v) in the judgment of
the
Underwriter makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Prospectus;
(i) The
Shares at the Time of Delivery shall have been duly listed,
subject
to notice of issuance, on the Exchange;
(j) The
Company shall have complied with the provisions of Section 5(e) hereof with
respect to the furnishing of prospectuses;
(k) The
Company shall have furnished or caused to be furnished to you at the Time of
Delivery customary certificates of officers of the Company satisfactory to
you
to the effect that:
(i) the
representations and warranties of the Company herein that are not qualified
by
Material Adverse Effect or another materiality qualifier are true and correct
in
all material respects at and as of the Time of Delivery;
(ii) the
representations and warranties of the Company herein that are qualified by
Material Adverse Effect or another materiality qualifier are true and correct
at
and as of the Time of Delivery;
(iii) the
Company has performed in all material respects all obligations and satisfied
all
conditions on its part to be performed or satisfied pursuant to this Agreement
at or prior to the Time of Delivery;
(iv) the
Prospectus has been filed with the Commission pursuant to Rule 424(b) under
the
Act within the applicable time period prescribed for such filing by the rules
and regulations under the Act and in accordance with Section 5(a) of this
Agreement; all material required to be filed by the Company pursuant to Rule
433(d) under the Act has been filed with the Commission within the applicable
time period prescribed for such filings by Rule 433; no stop order suspending
the effectiveness of the Registration Statement or any part thereof has been
issued and no proceeding for that purpose has been initiated or threatened
by
the Commission and no notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to
Rule
401(g)(2) under the Act has been received; no stop order suspending or
preventing the use of the Prospectus or any Issuer Free Writing Prospectus
has
been initiated or threatened by the Commission; and all requests for additional
information relating to the Registration Statement on the part of the Commission
have been complied with; and
(v) since
the
date of the most recent financial statements included in or incorporated by
reference in the Pricing Prospectus (exclusive of any amendment or supplement
thereto), there has been no material adverse change in the condition (financial
or otherwise), business or results of operations of the Company and its
subsidiaries, taken as a whole, except as set forth in or contemplated in the
Pricing Prospectus (exclusive of any amendment or supplement thereto);
and
(l) Each
of
the Selling Stockholders shall have furnished or caused to be furnished to
you
at the Time of Delivery customary certificates of officers of such Selling
Stockholder satisfactory to you to the effect that:
(i) the
representations and warranties of such Selling Stockholder herein that are
not
qualified by Material Adverse Effect or another materiality qualifier are true
and correct in all material respects at and as of the Time of
Delivery;
(ii) the
representations and warranties of such Selling Stockholder herein that are
qualified by Material Adverse Effect or another materiality qualifier are true
and correct at and as of the Time of Delivery; and
(iii) such
Selling Stockholder has performed in all material respects all obligations
and
satisfied all conditions on its part to be performed or satisfied pursuant
to
this Agreement at or prior to the Time of Delivery.
9. (a)
The
Company will indemnify and hold harmless the Underwriter against any losses,
claims, damages or liabilities, joint or several, to which the Underwriter
may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer
Free Writing Prospectus or any “issuer information” filed or required to be
filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be
stated therein or necessary to make the statements therein not misleading,
and
(subject to the limitations set forth in the proviso to this sentence) will
reimburse the Underwriter for any legal or other expenses reasonably incurred
by
the Underwriter in connection with investigating or defending any such action
or
claim as such expenses are incurred; provided,
however,
that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in
the Registration Statement, the Basic Prospectus, the Pricing Prospectus or
the
Prospectus or any such amendment or supplement, or any Issuer Free Writing
Prospectus, in reliance upon and in conformity with written information
furnished to the Company by the Underwriter expressly for use therein. The
Company shall not be liable under this Section 9 to any indemnified party
regarding any settlement or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding
in
respect of which indemnification may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent is consented to by the Company,
which consent shall not be unreasonably withheld.
(b) Each
of
the Selling Stockholders, severally and not jointly, will indemnify and hold
harmless the Underwriter against any losses, claims, damages or liabilities,
joint or several, to which the Underwriter may become subject, under the Act
or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
the
Basic Prospectus, the Pricing Prospectus or the Prospectus, or any amendment
or
supplement thereto, or any Issuer Free Writing Prospectus, or arise out of
or
are based upon the omission or alleged omission to state therein a material
fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, the Basic Prospectus, the Pricing Prospectus
or
the Prospectus or any such amendment or supplement, or any Issuer Free Writing
Prospectus, in reliance upon and in conformity with written information
furnished to the Company by such Selling Stockholder expressly for use therein;
and will reimburse the Underwriter for any legal or other expenses reasonably
incurred by the Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided,
however,
that
the liability of such Selling Stockholder pursuant to this subsection (b) shall
not exceed the product of the number of Shares sold by such Selling Stockholder
and the purchase price per Share to be paid by the Underwriter as set forth
in
Section 2 hereof. Such Selling Stockholder shall not be liable under this
Section 9 to any indemnified party regarding any settlement or compromise
or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought hereunder (whether or not the indemnified parties are actual
or
potential parties to such claim or action) unless such settlement, compromise
or
consent is consented to by such Selling Stockholder, which consent shall not
be
unreasonably withheld.
(c) The
Underwriter will indemnify and hold harmless the Company and each of the Selling
Stockholders against any losses, claims, damages or liabilities to which the
Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
the
Basic Prospectus, the Pricing Prospectus or the Prospectus, or any amendment
or
supplement thereto, or any Issuer Free Writing Prospectus, or arise out of
or
are based upon the omission or alleged omission to state therein a material
fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, the Basic Prospectus, the Pricing Prospectus
or
the Prospectus or any such amendment or supplement, or any Issuer Free Writing
Prospectus, in reliance upon and in conformity with written information
furnished to the Company by the Underwriter expressly for use therein. The
Underwriter shall not be liable under this Section 9 to any indemnified
party regarding any settlement or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such claim
or
action) unless such settlement, compromise or consent is consented to by the
Underwriter, which consent shall not be unreasonably withheld.
(d) Promptly
after receipt by an indemnified party under subsection (a), (b) or (c) above
of
notice of the commencement of any action, such indemnified party shall, if
a
claim in respect thereof is to be made against the indemnifying party under
such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise
than
under such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and,
to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its election
so
to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any fees and expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. Notwithstanding the indemnifying party’s election to
appoint counsel to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses
of
such separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest (based on the advice of counsel to the indemnified party),
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act,
by or
on behalf of any indemnified party.
(e) If
the
indemnification provided for in this Section 9 is unavailable to or insufficient
to hold harmless an indemnified party under subsection (a), (b) or (c) above
in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute
to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriter on
the
other from the offering of the Shares. If, however, the allocation provided
by
the immediately preceding sentence is not permitted by applicable law or if
the
indemnified party failed to give the notice required under subsection (d) above,
then each indemnifying party shall contribute to such amount paid or payable
by
such indemnified party in such proportion as is appropriate to reflect not
only
such relative benefits but also the relative fault of the Company and the
Selling Stockholders on the one hand and the Underwriter on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any
other relevant equitable considerations. The relative benefits received by
the
Company and the Selling Stockholders on the one hand and the Underwriter on
the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Shares (before deducting expenses) received by the
Selling Stockholders bear to the total underwriting discounts and commissions
received by the Underwriter. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Selling Stockholders
on
the one hand or the Underwriter on the other and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission and other equitable considerations appropriate under
the
circumstances. The Company, the Selling Stockholders and the Underwriter agree
that it would not be just and equitable if contributions pursuant to this
subsection (e) were determined by pro
rata
allocation or by any other method of allocation which does not take account
of
the equitable considerations referred to above in this subsection (e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above
in this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (e), the Underwriter shall not be required to contribute any amount
in excess of the amount by which the total price at which the Shares were
offered to the public exceeds the amount of any damages which the Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) The
obligations of the Company and the Selling Stockholders under this Section
9
shall be in addition to any liability which the Company and the respective
Selling Stockholders may otherwise have and shall extend, upon the same terms
and conditions, to each officer, director and affiliate of the Underwriter
and
to each person, if any, who controls the Underwriter within the meaning of
the
Act; and the obligations of the Underwriter under this Section 9 shall be in
addition to any liability which the Underwriter may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the
Company and to each person, if any, who controls the Company or any Selling
Stockholder within the meaning of the Act.
10. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, the Selling Stockholders and the Underwriter, as
set
forth in this Agreement or made by or on behalf of them, respectively, pursuant
to this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of the Underwriter or any controlling person of the Underwriter, or the Company,
or any Selling Stockholder, or any officer or director or controlling person
of
the Company, or any controlling person of any Selling Stockholder, and shall
survive delivery of and payment for the Shares.
11. If
the
sale of the Shares provided for herein is not consummated because any condition
to the obligations of the Underwriter set forth in Section 8 hereof is not
satisfied or because of any refusal, inability or failure on the part of the
Company or the Selling Stockholders to perform any agreement herein or comply
with any provision hereof, the Company and the Selling Stockholders will
reimburse the Underwriter on demand for all reasonable out-of-pocket accountable
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale
of
the Shares, but the Company and the Selling Stockholders shall then be under
no
further liability to the Underwriter in respect of the Shares not so delivered
except as provided in Sections 7 and 9 hereof.
12. All
statements, requests, notices and agreements hereunder shall be in writing,
and
if to the Underwriter shall be delivered or sent by mail, telex or facsimile
transmission to: Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: General Counsel (fax no.: (000) 000-0000); and if
to
the Company shall be delivered or sent by mail, telex or facsimile transmission
to the address of the Company set forth in the Registration Statement,
Attention: Xxxxxxx Xxxxxxxx, Vice President, General Counsel and Corporate
Secretary (fax no.: (000) 000-0000); and if to any Selling Stockholder
shall be delivered or sent by mail, telex or facsimile transmission to the
Attorneys-in-Fact at the address of the Company set forth in the Registration
Statement. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This
Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriter, the Company and the Selling Stockholders and, to the extent
provided in Sections 9 and 10 hereof, the officers and directors of the Company
and each person who controls the Company, any Selling Stockholder or the
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Shares from the Underwriter
shall be deemed a successor or assign by reason merely of such
purchase.
14. Time
shall be of the essence of this Agreement. As used herein, the term “business
day” shall mean any day when the Commission’s office in Washington, D.C. is open
for business.
15. The
Company and each of the Selling Stockholders acknowledges and agrees that (i)
the purchase and sale of the Shares pursuant to this Agreement is an
arm's-length commercial transaction between the Company and the Selling
Stockholders, on the one hand, and the Underwriter, on the other, (ii) in
connection therewith and with the process leading to such transaction the
Underwriter is acting solely as a principal and not as agent or fiduciary of
the
Company or of any Selling Stockholder, (iii) the Underwriter has not assumed
any
advisory or fiduciary responsibility in favor of the Company or of any Selling
Stockholder with respect to the offering contemplated hereby or the process
leading thereto (irrespective of whether the Underwriter has advised or is
currently advising the Company or any Selling Stockholder on other matters)
or
any other obligation to the Company or to any Selling Stockholder except the
obligations expressly set forth in this Agreement and (iv) the Company and
each
of the Selling Stockholders has consulted its own legal and financial advisors
to the extent it deemed appropriate. The Company and each of the Selling
Stockholders agrees that it will not claim that the Underwriter has rendered
advisory services of any nature or respect, or owes a fiduciary or similar
duty
to the Company or to such Selling Stockholder, in connection with such
transaction or the process leading thereto.
16. This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Company and the Underwriter, or between any Selling
Stockholder and the Underwriter, with respect to the subject matter
hereof.
17. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York.
18. The
Company, the Selling Stockholders and the Underwriter hereby irrevocably waive,
to the fullest extent permitted by applicable law, any and all right to trial
by
jury in any legal proceeding arising out of or relating to this Agreement or
the
transactions contemplated hereby.
19. This
Agreement may be executed by any one or more of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
20. The
Company and each of the Selling Stockholders are authorized, subject to
applicable law, to disclose any and all aspects of this potential transaction
that are necessary to support any U.S. federal income tax benefits expected
to
be claimed with respect to such transaction, and all materials of any kind
(including tax opinions and other tax analyses) related to those benefits,
without the Underwriter imposing any limitation of any kind.
If
the
foregoing is in accordance with your understanding, please sign and return
to us
eight counterparts hereof, and upon the acceptance hereof by you, this letter
and such acceptance hereof shall constitute a binding agreement among the
Underwriter, the Company and the Selling Stockholders.
Any
person executing and delivering this Agreement as Attorney-in-Fact for a Selling
Stockholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing
and
binding Power of Attorney which authorizes such Attorney-in-Fact to take such
action.
Very
truly yours,
Nalco
Holding Company
By:
/s/
Xxxxxxx Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title:
Vice President
Nalco
LLC
Apollo
Investment Fund V, X.X.
Xxxxxxxxxx
Capital Partners IV L.P.
GS
Capital Partners 2000, L.P.
By:
/s/
Xxxxxxx Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title:
Attorney-in-Fact
Citigroup
Global Markets Inc.
By:/s/
Xxxxx Xxxxx
Vice
President
