Common
Stock
(par value $0.01 per
share)
Underwriting
Agreement
November 2, 2006
Citigroup
Global Markets Inc.,
New York, New
York 10013.
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
Stephen N. Landsman and Bradley J. Bell, 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
Sullivan & Cromwell LLP, 125 Broad Street, New York, New York
10004-2498 (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
|
