S-3ASR
As filed with the Securities and Exchange Commission on
March 6, 2009
Registration
No. 333-
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C.
20549
FORM S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
NALCO HOLDING COMPANY
(Exact name of registrant as
specified in its charter)
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Delaware
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2890
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16-1701300
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(State of Incorporation)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer Identification No.)
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1601 West Diehl Road
Naperville, Illinois 60563
(630) 305-1000
(Address, including zip code, and telephone number, including
area code, of registrants principal executive offices)
Stephen N. Landsman, Esq.
General Counsel
Nalco Holding Company
1601 West Diehl Road
Naperville, Illinois 60563
(630) 305-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
Richard A. Fenyes, Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York
10017-3954
(212) 455-2000
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this
registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plan, check the following
box. x
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box. x
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act.
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Large accelerated
filer x
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Accelerated
filer o
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Non-accelerated
filer o
(Do not check if a smaller reporting company)
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Smaller reporting
company o
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum
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Title of Each Class of
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Amount to
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Aggregate Offering
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Proposed Maximum Aggregate
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Securities to be Registered
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be Registered
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Price Per Share
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Offering Price
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Amount of Registration Fee
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Common stock, par value $0.01 per share.
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(1)
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(1)
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(1)
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(1)
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(1) |
Since an unspecified amount of securities registered herein will
be offered pursuant to an automatic shelf registration
statement, the issuer has elected to rely on Rule 456(b)
and Rule 457(r) of the Securities Act of 1933, as amended,
to defer payment of the registration fee.
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PROSPECTUS
Nalco Holding Company
Common Stock
We and/or
selling stockholders to be named in a prospectus supplement may
offer and sell shares of our common stock from time to time in
amounts, at prices and on terms that will be determined at the
time of the offering. Each time common stock is offered, we will
provide a prospectus supplement and attach it to this
prospectus. The prospectus supplement will contain more specific
information about the offering. The supplements may also add,
update or change information contained in this prospectus. This
prospectus may not be used to offer or sell securities without a
prospectus supplement describing the method and terms of the
offering.
You should carefully read this prospectus and any accompanying
prospectus supplement, together with the documents we
incorporate by reference, before you invest in our common stock.
Investing in our common stock involves risks. You should
consider the risk factors described in any accompanying
prospectus supplement or any of the documents we incorporate by
reference.
Our common stock is listed on the New York Stock Exchange under
the symbol NLC.
Neither the Securities and Exchange Commission nor any state
securities commission or other regulatory body has approved or
disapproved of these securities or passed upon the accuracy or
adequacy of this prospectus. Any representation to the contrary
is a criminal offense.
Prospectus
dated March 6, 2009
You should rely only on information contained or incorporated
by reference in this prospectus and any prospectus supplement.
We have not authorized anyone to provide you with different
information. We are not making an offer of these securities in
any state where the offer is not permitted. You should not
assume that the information contained or incorporated by
reference in this prospectus or any prospectus supplement is
accurate as of any date other than the date of the document
containing the information.
TABLE OF
CONTENTS
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PROSPECTUS
SUMMARY
This prospectus is part of a registration statement on
Form S-3
that we filed with the Securities and Exchange Commission using
a shelf registration process. Under this shelf
registration process, we
and/or
selling stockholders to be named in a prospectus supplement may,
over time, offer and sell our common stock in one or more
offerings. Each time common stock is offered, we will provide a
prospectus supplement and attach it to this prospectus. The
prospectus supplement will contain specific information about
the terms of the offering at that time. A prospectus supplement
may also add, update or change information contained in this
prospectus. Any statement that we make in this prospectus will
be modified or superseded by any inconsistent statement made by
us in a prospectus supplement. You should read both this
prospectus and any accompanying prospectus supplement together
with the additional information described under the heading
Incorporation of Certain Documents by Reference.
All references in this prospectus to we,
our and us refer collectively to Nalco
Holding Company and its subsidiaries and affiliates on a
consolidated basis.
Our
Company
We are the worlds leading water treatment and process
improvement company, delivering significant environmental,
social and economic performance benefits to a variety of
industrial and institutional customers. We are organized into
two primary divisions which correspond to the end markets we
serve: Water and Process Services and Energy Services. Our
products and services are typically used in water treatment
applications to prevent corrosion, contamination and the buildup
of harmful deposits, in production processes to enhance process
efficiency and improve our customers end products, and in
air emission control programs to reduce harmful releases.
Through our sales, research and marketing team of more than
7,000 technically trained professionals, we serve more than
70,000 customer locations. We focus on providing our customers
with technologically advanced engineered solutions and services.
These technologically advanced engineered solutions and services
enable our customers to improve their business by increasing
production yields, lowering manufacturing costs, extending asset
lives and maintaining environmental standards. The cost of our
technologically advanced engineering solutions and services
represents a small share of our customers overall
production expense. We offer more than 10,000 products and 5,500
unique formulations.
Water and
Process Services
Our Water and Process Services division provides water treatment
programs, process-focused programs, and emissions reduction
across a broad range of end users. This division also offers a
comprehensive portfolio of programs that are used in all
principal steps of the paper-making process and across all
grades of paper, including printing and writing, board and
packaging, tissue and towel and mechanical papers. Our offerings
are organized according to the markets we serve so we can
address the unique drivers faced by each segment. Innovative
treatment of boiler water, cooling water, influent, and
wastewater, along with practical solutions for pollutant
control, allow our customers to increase production efficiency,
reduce total cost of operation, conserve water and energy, meet
compliance requirements and extend the useful life of their
assets. We serve customers in the aerospace, chemical, paper,
pharmaceutical, mining and primary metals, power, food and
beverage, medium and light manufacturing, marine and
metalworking industries as well as institutional clients such as
hospitals, universities, commercial buildings and hotels.
Energy
Services
Our Energy Services division provides
on-site,
technology driven solutions to the global natural gas, petroleum
and petrochemical industries. In addition to recovery,
production and process enhancements, we deliver a full range of
water treatment offerings to refineries and petrochemical
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plants. Our upstream process applications improve oil and gas
recovery and production, extend production equipment life and
decrease operating costs through services that include scale,
paraffin and corrosion control, oil and water separation and gas
hydrate management solutions. Our downstream process
applications increase refinery and petrochemical plant
efficiency and the useful lives of customer assets, while
improving refined and petrochemical product quality and yields.
Risk
Factors
Investing in our common stock involves substantial risk. You
should carefully consider all the information in or incorporated
by reference in this prospectus and any accompanying prospectus
supplement prior to investing in our common stock. In
particular, we urge you to consider carefully the factors set
forth under the heading Risk Factors.
Nalco Holding Company was incorporated in the State of Delaware
in June 2004. Our principal executive offices are located at
1601 West Diehl Road, Naperville, Illinois 60563. Our main
telephone number is
(630) 305-1000.
Our Internet address is www.nalco.com. Information
contained on our website or that can be accessed through our
website is not incorporated by reference in this prospectus and
you should not rely on that information.
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SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement and the documents
incorporated by reference herein include forward-looking
statements. These forward-looking statements include
statements concerning our plans, objectives, goals, strategies,
future events, future revenue or performance, capital
expenditures, financing needs, plans or intentions relating to
acquisitions, business trends and other information that is not
historical information. When used in this prospectus and the
documents incorporated by reference herein, the words
estimates, expects,
anticipates, projects,
plans, intends, believes,
forecasts, or future or conditional verbs, such as
will, should, could or
may, and variations of such words or similar
expressions are intended to identify forward-looking statements.
All forward-looking statements, including, without limitation,
managements examination of historical operating trends and
data, are based upon our current expectations and various
assumptions. Our expectations, beliefs and projections are
expressed in good faith and we believe there is a reasonable
basis for them. However, there can be no assurance that
managements expectations, beliefs and projections will be
achieved.
There are a number of risks and uncertainties that could cause
our actual results to differ materially from the forward-looking
statements contained in this prospectus, any prospectus
supplement and the documents incorporated by reference herein.
Important factors that could cause our actual results to differ
materially from the forward-looking statements we make in this
prospectus or any prospectus supplement are set forth or
incorporated by reference in this prospectus.
All forward-looking statements attributable to us or persons
acting on our behalf apply only as of the date such statements
are made and are expressly qualified in their entirety by the
cautionary statements included in this prospectus. We undertake
no obligation to update or revise forward-looking statements
which may be made to reflect events or circumstances that arise
after the date made or to reflect the occurrence of
unanticipated events.
USE OF
PROCEEDS
We intend to use the net proceeds from the sales of our common
stock as set forth in the applicable prospectus supplement. We
will not receive any proceeds from the sale of any shares of
common stock offered by selling stockholders.
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DESCRIPTION
OF CAPITAL STOCK
The following is a description of the material terms of our
amended and restated certificate of incorporation and bylaws. We
refer you to our amended and restated certificate of
incorporation and bylaws, copies of which are incorporated by
reference into this registration statement of which this
prospectus forms a part.
Authorized
Capitalization
As of December 1, 2005, our authorized capital stock
consisted of (i) 500,000,000 shares of common stock,
par value $0.01 per share, and (ii) 100,000,000 shares
of preferred stock, par value $0.01 per share.
Common
Stock
Voting Rights. Holders of common stock are
entitled to one vote per share on all matters to be voted upon
by the stockholders. The holders of common stock do not have
cumulative voting rights in the election of directors.
Dividend Rights. Holders of common stock are
entitled to receive ratably dividends if, as and when dividends
are declared from time to time by our board of directors out of
funds legally available for that purpose, after payment of
dividends required to be paid on outstanding preferred stock, as
described below, if any. Our senior credit facilities and
indentures impose restrictions on our ability to declare
dividends with respect to our common stock.
Liquidation Rights. Upon liquidation,
dissolution or winding up, the holders of common stock are
entitled to receive ratably the assets available for
distribution to the stockholders after payment of liabilities
and accrued but unpaid dividends and liquidation preferences on
any outstanding preferred stock.
Other Matters. The common stock has no
preemptive or conversion rights and, if fully paid, is not
subject to further calls or assessment by us. There are no
redemption or sinking fund provisions applicable to the common
stock. All outstanding shares of our common stock are fully paid
and non-assessable, and the shares of our common stock offered
in this offering, upon payment and delivery in accordance with
the underwriting agreement, will be fully paid and
non-assessable.
Preferred
Stock
Our amended and restated certificate of incorporation authorizes
our board of directors to establish one or more series of
preferred stock and to determine, with respect to any series of
preferred stock, the terms and rights of that series, including:
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the designation of the series;
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the number of shares of the series;
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the preferences and relative, participating, option or other
special rights, if any, and any qualifications, limitations or
restrictions of such series; and
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the voting rights, if any, of the holders of the series.
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Anti-Takeover
Effects of Certain Provisions of Delaware Law and Our Amended
and Restated Certificate of Incorporation and Bylaws
Certain provisions of our amended and restated certificate of
incorporation and bylaws, which are summarized in the following
paragraphs, may have an anti-takeover effect and may delay,
defer or prevent a tender offer or takeover attempt that a
stockholder might consider in its best interest, including those
attempts that might result in a premium over the market price
for the shares held by stockholders.
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The
Delaware General Corporation Law
Our company is a Delaware corporation subject to
Section 203 of the Delaware General Corporation Law.
Section 203 provides that, subject to exceptions specified
in the law, a Delaware corporation shall not engage in
business combinations with any interested
stockholder for a three-year period following the time
that the stockholder became an interested stockholder unless:
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the corporation has elected in its certificate of incorporation
not to be governed by Section 203, which we have not done;
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prior to that time, the board of directors of the corporation
approved either the business combination or the transaction
which resulted in the stockholder becoming an interested
stockholder;
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upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced,
excluding specified shares; or
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at or subsequent to that time, the business combination is
approved by the board of directors of the corporation and by the
affirmative vote of at least
662/3%
of the outstanding voting stock which is not owned by the
interested stockholder.
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The three-year prohibition also does not apply to business
combinations proposed by an interested stockholder following the
announcement or notification of extraordinary transactions
involving the corporation and a person who had not been an
interested stockholder during the previous three years or who
became an interested stockholder with the approval of a majority
of the corporations directors. The term business
combination is defined generally to include mergers or
consolidations between a Delaware corporation and an
interested stockholder, transactions with an
interested stockholder involving the assets or stock
of the corporation or its majority-owned subsidiaries and
transactions which increase an interested stockholders
percentage ownership of stock.
The term interested stockholder is defined to
include any person, other than the corporation and any direct or
indirect majority-owned subsidiary of the corporation, that is
the owner of 15% or more of the outstanding voting stock of the
corporation, or is an affiliate or associate of the corporation
and was the owner of 15% or more of the outstanding voting stock
of the corporation, at any time within three years immediately
prior to the relevant date, or the affiliates and associates of
any such person.
Section 203 makes it more difficult for a person who would
be an interested stockholder to effect various
business combinations with a corporation for a three-year
period. The provisions of Section 203 may encourage
companies interested in acquiring our company to negotiate in
advance with our board of directors, because the stockholder
approval requirement would be avoided if our board of directors
approves either the business combination or the transaction
which results in the stockholder becoming an interested
stockholder. These provisions also may have the effect of
preventing changes in our board of directors and may make it
more difficult to accomplish transactions which stockholders may
otherwise deem to be in their best interests.
Classified
Board
Our amended and restated certificate of incorporation provides
that our board of directors will be divided into three classes
of directors, with the classes to be as nearly equal in number
as possible. As a result, approximately one-third of our board
of directors will be elected each year. The classification of
directors will have the effect of making it more difficult for
stockholders to change the composition of our board. Our amended
and restated certificate of incorporation and the bylaws provide
that the number of directors will be fixed from time to time
exclusively pursuant to a resolution adopted by the
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board, but must consist of not less than three or more than
fifteen directors. Our board of directors is currently fixed at
seven members.
Removal
of Directors; Vacancies
Under the Delaware General Corporation Law (DGCL),
unless otherwise provided in our amended and restated
certificate of incorporation, directors serving on a classified
board may be removed by the stockholders only for cause. Our
amended and restated certificate of incorporation and bylaws
provide that directors may be removed only for cause and only
upon the affirmative vote of holders of at least 80% of the
voting power of all the then outstanding shares of stock
entitled to vote generally in the election of directors, voting
together as a single class. In addition, our amended and
restated certificate of incorporation and bylaws also provide
that any vacancies on our board of directors will be filled only
by the affirmative vote of a majority of the remaining
directors, although less than a quorum.
No
Cumulative Voting
The DGCL provides that stockholders are not entitled to the
right to cumulate votes in the election of directors unless our
amended and restated certificate of incorporation provides
otherwise. Our amended and restated certificate of incorporation
does not expressly provide for cumulative voting.
No
Stockholder Action by Written Consent; Calling of Special
Meetings of Stockholders
Our amended and restated certificate of incorporation prohibits
stockholder action by written consent. It also provides that
special meetings of our stockholders may be called only by the
chairman of our board, the chief executive officer or secretary
at the direction of the board of directors.
Advance
Notice Requirements for Stockholder Proposals and Director
Nominations
Our bylaws provide that stockholders seeking to nominate
candidates for election as directors or to bring business before
an annual meeting of stockholders must provide timely notice of
their proposal in writing to the corporate secretary.
Generally, to be timely, a stockholders notice must be
received at our principal executive offices not less than
90 days nor more than 120 days prior to the first
anniversary date of the previous years annual meeting. Our
bylaws also specify requirements as to the form and content of a
stockholders notice. These provisions may impede
stockholders ability to bring matters before an annual
meeting of stockholders or make nominations for directors at an
annual meeting of stockholders.
Supermajority
Provisions
The DGCL provides generally that the affirmative vote of a
majority of the outstanding shares entitled to vote is required
to amend a corporations certificate of incorporation or
bylaws, unless the certificate of incorporation requires a
greater percentage. Our amended and restated certificate of
incorporation provides that the following provisions in the
amended and restated certificate of incorporation and bylaws may
be amended only by a vote of at least 80% of the voting power of
all of the outstanding shares of our stock entitled to vote:
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classified board (the election and term of our directors);
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the removal of directors;
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limited liability of directors;
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indemnification and advancement of expenses by us to our
directors, officers, employees or agents;
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the prohibition on stockholder action by written consent;
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the ability to call a special meeting of stockholders being
vested solely in our board of directors and the chairman of our
board;
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the advance notice requirements for stockholder proposals and
director nominations; and
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the amendment provision requiring that the above provisions be
amended only with an 80% supermajority vote.
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In addition, our amended and restated certificate of
incorporation grants our board of directors the authority to
amend and repeal our bylaws without a stockholder vote in any
manner not inconsistent with the laws of the State of Delaware
or our amended and restated certificate of incorporation.
Limitations
on Liability and Indemnification of Officers and
Directors
The DGCL authorizes corporations to limit or eliminate the
personal liability of directors to corporations and their
stockholders for monetary damages for breaches of
directors fiduciary duties. Our amended and restated
certificate of incorporation includes a provision that
eliminates the personal liability of directors for monetary
damages for actions taken as a director, except for liability:
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for breach of duty of loyalty;
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for acts or omissions not in good faith or involving intentional
misconduct or knowing violation of law;
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under Section 174 of the DGCL (unlawful dividends); or
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for transactions from which the director derived improper
personal benefit.
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Our amended and restated certificate of incorporation and bylaws
provide that we must indemnify our directors and officers to the
fullest extent authorized by the DGCL. We are also expressly
authorized to advance certain expenses (including attorneys fees
and disbursements and court costs) to our directors and officers
and carry directors and officers insurance providing
insurance for our directors, officers and certain employees for
some liabilities. We believe that these indemnification
provisions and insurance are useful to attract and retain
qualified directors and executive officers.
The limitation of liability and indemnification provisions in
our amended and restated certificate of incorporation and bylaws
may discourage stockholders from bringing a lawsuit against
directors for breach of their fiduciary duty. These provisions
may also have the effect of reducing the likelihood of
derivative litigation against directors and officers, even
though such an action, if successful, might otherwise benefit us
and our stockholders. In addition, your investment may be
adversely affected to the extent we pay the costs of settlement
and damage awards against directors and officers pursuant to
these indemnification provisions.
There is currently no pending material litigation or proceeding
involving any of our directors, officers or employees for which
indemnification is sought.
Transfer
Agent and Registrar
Computershare Trust Company, N.A. is the transfer agent and
registrar for our common stock.
Listing
Our common stock is listed on the New York Stock Exchange under
the symbol NLC.
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Authorized
but Unissued Capital Stock
The DGCL does not require stockholder approval for any issuance
of authorized shares. However, the listing requirements of the
New York Stock Exchange, which would apply so long as our common
stock is listed on the New York Stock Exchange, require
stockholder approval of certain issuances equal to or exceeding
20% of the then-outstanding voting power or then outstanding
number of shares of common stock. These additional shares may be
used for a variety of corporate purposes, including future
public offerings, to raise additional capital or to facilitate
acquisitions.
One of the effects of the existence of unissued and unreserved
common stock may be to enable our board of directors to issue
shares to persons friendly to current management, which issuance
could render more difficult or discourage an attempt to obtain
control of our company by means of a merger, tender offer, proxy
contest or otherwise, and thereby protect the continuity of our
management and possibly deprive the stockholders of
opportunities to sell their shares of common stock at prices
higher than prevailing market prices.
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VALIDITY
OF THE SHARES
The validity of the issuance of the shares of common stock will
be passed upon for us by Simpson Thacher & Bartlett
LLP, New York, New York.
EXPERTS
The consolidated financial statements of Nalco Holding Company
appearing in Nalco Holding Companys Annual Report on
Form 10-K
for the year ended December 31, 2008 (including schedules
appearing therein), and the effectiveness of Nalco Holding
Companys internal control over financial reporting as of
December 31, 2008, have been audited by Ernst &
Young LLP, independent registered public accounting firm, as set
forth in their reports thereon included therein, and
incorporated herein by reference. Such financial statements are
incorporated herein in reliance upon such reports given on the
authority of such firm as experts in accounting and auditing.
AVAILABLE
INFORMATION
We are required to file annual, quarterly and current reports,
proxy statements and other information with the SEC. You may
read and copy any documents filed by us at the SECs public
reference room at 100 F Street, N.E.,
Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330
for further information on the public reference room. Our
filings with the SEC are also available to the public through
the SECs Internet site at
http://www.sec.gov
and through the New York Stock Exchange, 20 Broad Street,
New York, New York 10005, on which our common stock is listed.
We have filed with the SEC a registration statement on
Form S-3
relating to the securities covered by this prospectus. This
prospectus is a part of the registration statement and does not
contain all the information in the registration statement.
Whenever a reference is made in this prospectus to a contract or
other document of the Company, the reference is only a summary
and you should refer to the exhibits that are a part of the
registration statement for a copy of the contract or other
document. You may review a copy of the registration statement at
the SECs public reference room in Washington, D.C.,
as well as through the SECs Internet site.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the
information contained in documents that we file with them, which
means that we can disclose important information to you by
referring you to those documents. The information incorporated
by reference is considered to be part of this prospectus and any
prospectus supplement. Information in this prospectus supersedes
information incorporated by reference that we filed with the SEC
prior to the date of this prospectus, while information that we
file later with the SEC will automatically update and supersede
this information. We incorporate by reference the documents
listed below other than those documents or the portions of those
documents which are furnished and not filed.
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Our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2008;
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Our Current Reports on
Form 8-K
filed on January 7, 2009 and January 12, 2009; and
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All filings by us under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 on or after the date of
this prospectus and before the termination of this offering.
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You can request a copy of these filings at no cost, by writing
or calling us at the following address:
Nalco Holding Company
1601 West Diehl Road
Naperville, IL 60563
(630) 305-1000
Attention: Corporate Secretary
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Nalco
Holding Company
Common Stock
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution.
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The following table sets forth the estimated costs and expenses
payable in connection with the distribution of the securities
being registered. All amounts are estimated. The SEC
registration fee will be calculated and paid in accordance with
Rule 457(r) of the Securities Act.
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Printing and Engraving Expenses
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$
|
5,000
|
|
Legal Fees
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|
|
20,000
|
|
Accounting Fees
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|
|
5,000
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Miscellaneous Expenses
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1,000
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|
|
|
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Total
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$
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31,000
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|
|
|
|
|
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Item 15.
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Indemnification
of Directors and Officers.
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As permitted by Section 102 of the Delaware General
Corporation Law, or the DGCL, our amended and restated
certificate of incorporation includes a provision that
eliminates the personal liability of our directors for monetary
damages for breach of fiduciary duty as a director.
Our amended and restated certificate of incorporation and bylaws
also provide that:
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we must indemnify our directors and officers to the fullest
extent permitted by Delaware law;
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we may advance expenses, as incurred, to our directors and
executive officers in connection with a legal proceeding to the
fullest extent permitted by Delaware Law; and
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we may indemnify our other employees and agents to the same
extent that we indemnified our officers and directors, unless
otherwise determined by our board of directors.
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Pursuant to Section 145(a) of the DGCL, we may indemnify
any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding (other than an action by or in the right of the
corporation) by reason of the fact that the person is or was a
director, officer, agent or employee of our company or is or was
serving at our request as a director, officer, agent, or
employee of another corporation, partnership, joint venture,
trust or other enterprise, against expenses, including
attorneys fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding. Pursuant to
Section 145(b) of the DGCL, the power to indemnify also
applies to actions brought by or in the right of the corporation
as well, but only to the extent of defense expenses (including
attorneys fees) actually and reasonably incurred by the
person in connection with the defense or settlement of such
action or suit. Pursuant to Section 145(b), we shall not
indemnify any person in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to us
unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem
proper. The power to indemnify under Sections 145(a) and
(b) of the DGCL applies (i) if such person is
successful on the merits or otherwise in defense of any action,
suit or proceeding, or (ii) if such person acted in good
faith and in a manner he reasonably believed to be in the best
interest, or not opposed to the best interest, of the
corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful.
Section 174 of the DGCL provides, among other things, that
a director, who willfully or negligently approves of an unlawful
payment of dividends or an unlawful stock purchase or
redemption, may be held liable for such actions. A director who
was either absent when the unlawful actions were approved or
dissented at the time, may avoid liability by causing his or her
dissent to such actions to be entered
II-1
in the books containing the minutes of the meetings of the board
of directors at the time such action occurred or immediately
after such absent director receives notice of the unlawful acts.
The indemnification provisions contained in our amended and
restated certificate of incorporation and bylaws are not
exclusive of any other rights to which a person may be entitled
by law, agreement, vote of stockholders or disinterested
directors or otherwise. In addition, we maintain insurance on
behalf of our directors and executive officers insuring them
against any liability asserted against them in their capacities
as directors or officers or arising out of such status.
A list of exhibits filed with this registration statement on
Form S-3
is set forth in the Exhibit Index and is incorporated into
this Item 16 by reference.
The undersigned Registrant hereby undertakes:
To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
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(i)
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to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
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(ii)
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to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and
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(iii)
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to include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
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provided, however, that paragraphs (i), (ii) and
(iii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission
by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
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(A)
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Each prospectus filed by a Registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
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(B)
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Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made
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II-2
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pursuant to Rule 415(a)(1)(i), (vii) or (x) for
the purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which the prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided,
however, that no statement made in a registration
statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
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That, for the purpose of determining liability of a Registrant
under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, each undersigned Registrant
undertakes that in a primary offering of securities of an
undersigned Registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following
communications, the undersigned Registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
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(i)
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Any preliminary prospectus or prospectus of an undersigned
Registrant relating to the offering required to be filed
pursuant to Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared by
or on behalf of an undersigned Registrant or used or referred to
by an undersigned Registrant;
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(iii)
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The portion of any other free writing prospectus relating to the
offering containing material information about an undersigned
Registrant or its securities provided by or on behalf of an
undersigned Registrant; and
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(iv)
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Any other communication that is an offer in the offering made by
an undersigned Registrant to the purchaser.
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That, for purposes of determining any liability under the
Securities Act of 1933, each filing of Registrants annual
report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plans annual report pursuant to
Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of each Registrant pursuant to
the foregoing provisions, or otherwise, each Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by a Registrant
of expenses incurred or paid by a director, officer or
controlling person of a Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, that Registrant will, unless in the opinion of
its counsel the has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by
the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Naperville, State of Illinois, on
March 2, 2009.
NALCO HOLDING COMPANY
Name: J. Erik Fyrwald
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Title:
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Chairman and Chief Executive Officer
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We, the undersigned officers and directors of Nalco Holding
Company, hereby severally constitute and appoint Bradley J.
Bell, Stephen N. Landsman and Michael P. Murphy, and each of
them acting alone, our true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution in
each of them for him and in his name, place and stead, and in
any and all capacities, to sign any and all amendments
(including post-effective amendments) to this registration
statement and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission and any applicable securities exchange or
securities self-regulatory body, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them or their or his
substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities indicated on March 2, 2009.
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Signature
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Title
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/s/ J.
Erik Fyrwald
J.
Erik Fyrwald
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Chairman and Chief Executive Officer
(Principal Executive Officer)
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/s/ Bradley
J. Bell
Bradley
J. Bell
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Executive Vice President and Chief Financial Officer (Principal
Financial Officer and Principal Accounting Officer)
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/s/ Carl
A. Casale
Carl
A. Casale
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Director
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/s/ Rodney
F. Chase
Rodney
F. Chase
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Director
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/s/ Richard
B. Marchese
Richard
B. Marchese
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Director
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/s/ Paul
J. Norris
Paul
J. Norris
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Director
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/s/ Douglas
A. Pertz
Douglas
A. Pertz
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Director
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/s/ Daniel
S. Sanders
Daniel
S. Sanders
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Director
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II-4
EXHIBIT INDEX
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Exhibit No.
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Description of Exhibit
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1.1*
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Form of Underwriting Agreement
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4.1(1)
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Form of certificate of Nalco Holding Company Common Stock
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5.1
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Opinion of Simpson Thacher & Bartlett LLP
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23.1
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Consent of Ernst & Young LLP
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23.2
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Consent of Simpson Thacher & Bartlett LLP (included as
part of its opinion filed as Exhibit 5.1 hereto)
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24
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Powers of Attorney (included on the signature page of this
registration statement)
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* |
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To be filed by amendment or as an exhibit to a document to be
incorporated by reference herein if the common stock is sold
through one or more underwriters. |
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(1) |
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Incorporated by reference to Amendment No. 2 to the
Registration Statement on
Form S-1
of Nalco Holding Company (File No. 333-118583) filed on
October 13, 2004. |