424B7
Filed
Pursuant to Rule 424(b)(7)
Registration No. 333-157772
CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each
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Amount to be
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Offering Price
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Aggregate Offering
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Registration
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Class of Securities to be Registered
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registered(1)
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Per
Unit(2)
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Price(2)
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Fee(3)
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Common Stock, par value $.01 per share
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625,291
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$
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10.23
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$
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6,396,727
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$
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252
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(1)
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The securities registered herein
are offered pursuant to an automatic shelf registration
statement.
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(2)
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Estimated solely for purposes of
calculating the amount of the registration fee, based on the
average of the high and low prices for our common stock as
reported on the New York Stock Exchange on March 6, 2009,
in accordance with Rule 457(c) of the Securities Act, as
amended.
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(3)
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The registration fee has been
transmitted to the SEC in connection with the offering of common
stock pursuant to the registration statement No.
333-157772
by means of this prospectus supplement in accordance with Rule
457(r).
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PROSPECTUS
SUPPLEMENT NO. 1
To
prospectus dated March 6, 2009
625,291 Shares
Nalco Holding Company
Common Stock
The selling stockholders are offering up to 625,291 shares
of our common stock owned by them or which they have the right
to acquire upon the exercise of warrants or put rights. The
selling stockholders may sell their shares of common stock from
time to time in public transactions or in privately negotiated
transactions at market prices prevailing at the time of sale or
at negotiated prices. The timing and amount of any sale are
within the sole discretion of the selling stockholders. The
selling stockholders will receive all of the net proceeds from
the sales of the common stock.
We have agreed to bear expenses in connection with the
preparation and filing of the registration statement of which
this prospectus forms a part. However, the selling stockholders
will bear any fees or expenses related to any applicable
underwriting discounts or commissions, brokers fees and
similar selling expenses, and any other fees and expenses
incurred by the selling stockholders.
The selling stockholders and any broker-dealers that participate
in the distribution of the common stock offered hereby may be
deemed to be underwriters within the meaning of the
Securities Act of 1933. As a result, any commission or profit on
the resale of shares received by such broker-dealers may be
deemed to be underwriting commissions and discounts under the
Securities Act of 1933.
Our common stock is listed on the New York Stock Exchange under
the symbol NLC. The last reported sale price of our
shares of common stock on the New York Stock Exchange on
March 6, 2009 was $10.13 per share.
See Risk Factors on
page S-2
to read about factors you should consider before buying shares
of the common stock.
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 Supplement dated March 9, 2009
You should rely only on information contained or incorporated
by reference in this prospectus supplement and the accompanying
prospectus. 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 supplement and the accompanying
prospectus is accurate as of any date other than the date of the
respective documents.
TABLE OF
CONTENTS
Prospectus
Supplement
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Page
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S-1
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S-2
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S-10
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S-10
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S-10
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S-11
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S-12
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S-13
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Prospectus
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Page
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Prospectus Summary
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1
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Special Note Regarding Forward-Looking Statements
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3
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Use of Proceeds
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3
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Description of Capital Stock
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4
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Validity of the Shares
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9
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Experts
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9
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Available Information
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9
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Incorporation of Certain Documents by Reference
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9
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PROSPECTUS
SUMMARY
This summary highlights selected information contained
elsewhere in this prospectus supplement or the accompanying
prospectus, but it may not contain all of the information that
you should consider before deciding to invest in our common
stock. You should read this entire prospectus supplement,
including the Risk Factors section, the accompanying
prospectus, the documents incorporated by reference and the
other documents to which we refer for a more complete
understanding of this offering.
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.
The
Offering
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Shares of common stock offered by the selling stockholders |
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625,291 shares |
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Shares of common stock outstanding before and after this offering |
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138,151,378 shares |
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Use of proceeds |
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We will not receive any of the proceeds from the sale of shares
of our common stock by the selling stockholders. The selling
stockholders will receive all net proceeds from the sale of
their shares of our common stock offered in this prospectus |
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New York Stock Exchange symbol |
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NLC |
Unless we specifically state otherwise, all information in this
prospectus supplement:
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excludes 9,535,943 shares of common stock held in our treasury;
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excludes 789,055 shares of common stock reserved for
issuance pursuant to the warrant that we issued to Nalco LLC in
November 2004;
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excludes 6,261,264 shares of common stock reserved for
issuance under the Nalco Holding Company 2004 Stock Incentive
Plan (the SIP), comprising 2,452,994 shares of
common stock that are subject to an outstanding grant pursuant
to the SIP and 3,808,270 shares of common stock that are
not subject to such a grant, and
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excludes 200,000 restricted shares of common stock and options
to purchase 190,000 shares of common stock pursuant to an
employment letter agreement between J. Erik Fyrwald and us,
dated February 22, 2008.
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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 supplement and accompanying
prospectus 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
supplement or the accompanying prospectus and you should not
rely on that information.
S-1
RISK
FACTORS
An investment in our common stock involves risks. You should
carefully consider the risks described below, together with the
other information in this prospectus supplement, the
accompanying prospectus and incorporated herein by reference,
before deciding to purchase any common stock.
Risks
Related To Our Business
If we
are unable to respond to the changing needs of a particular
industry and to anticipate, respond to or utilize changing
technologies and develop new offerings, it could become more
difficult for us to respond to our customers needs and
cause us to be less competitive.
We have historically been able to maintain our market positions
and margins through continuous innovation of products and
development of new offerings to create value for our customers.
Recent innovations and developments that we have relied on
include our 3D TRASAR system for controlling and monitoring
chemical feed. We may not be successful in continuing to make
similar innovations in the future. Our future operating results
will depend to a significant extent on our ability to continue
to introduce new products and applications and to develop new
offerings that offer distinct value for our customers. Many of
our products may be affected by rapid technological change and
new product introductions and enhancements. We expect to
continue to enhance our existing products and identify, develop
and manufacture new products with improved capabilities and make
improvements in our productivity in order to maintain our
competitive position. We intend to devote sizeable resources to
the development of new technologically advanced products and
systems and to continue to devote a substantial amount of
expenditures to the research and development functions of our
business. However, we cannot assure you that:
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we will be successful in developing new products or systems or
bringing them to market in a timely manner;
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products or technologies developed by others will not render our
offerings obsolete or
non-competitive;
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the market will accept our innovations;
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our competitors will not be able to produce our core
non-patented products at a lower cost;
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we will have sufficient resources to research and develop all
promising new technologies and products; or
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significant research and development efforts and expenditures
for products will ultimately prove successful.
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Our ability to anticipate, respond to and utilize changing
technologies is crucial because we compete with many companies
in each of the markets in which we operate. For example, we
compete with hundreds of companies in the water treatment
chemicals market, including our largest global competitor, GE
Water Technologies. Our ability to compete effectively is based
on a number of considerations, such as product and service
innovation, product and service quality, distribution capability
and price. Moreover, water treatment for industrial customers
depends on the particular needs of the industry. For example,
the paper industry requires a specific water quality for
bleaching paper; certain industrial boilers require
demineralized water; the pharmaceuticals industry requires ultra
pure water for processing; and, in the case of municipal
services, water treatment includes clarification for re-use,
sludge dewatering and membrane ultra filtration. We may not have
sufficient financial resources to respond to the changing needs
of a particular industry and to continue to make investments in
our business, which could cause us to become less competitive.
S-2
Our
substantial leverage could harm our business by limiting our
available cash and our access to additional
capital.
As of December 31, 2008, our total consolidated
indebtedness was $3,223.4 million and we had
$250.0 million of borrowing capacity available under our
revolving credit facility (excluding $21.1 million of
outstanding letters of credit).
Our high degree of leverage could have important consequences
for you, including the following:
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It may limit our and our subsidiaries ability to obtain
additional financing for working capital, capital expenditures,
product development, debt service requirements, acquisitions and
general corporate or other purposes on favorable terms or at all;
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A substantial portion of our subsidiaries cash flows from
operations must be dedicated to the payment of principal and
interest on their and our indebtedness and thus will not be
available for other purposes, including operations, capital
expenditures and future business opportunities;
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It may limit our ability to adjust to changing market conditions
and place us at a competitive disadvantage compared to those of
our competitors that are less highly-leveraged;
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It may restrict our ability to make strategic acquisitions or
cause us to make non-strategic divestitures; and
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We may be more vulnerable than a less leveraged company to a
downturn in general economic conditions or in our business, or
we may be unable to carry out capital spending that is important
to our growth.
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At December 31, 2008, we had $1,071.1 million of
variable rate debt. A 1% increase in the average interest rate
would increase future interest expense by approximately
$10.7 million per year.
Despite
our current leverage, we may still be able to substantially
increase our indebtedness. This could further exacerbate the
risks that we and our subsidiaries face.
We and our subsidiaries may be able to substantially increase
our indebtedness in the future. The terms of the indentures
governing our subsidiaries notes do not fully prohibit our
subsidiaries or us from doing so. Nalco Companys revolving
credit facility provides commitments of up to
$250.0 million, all of which would have been available for
future borrowings as of December 31, 2008 (excluding
$21.1 million of outstanding letters of credit). If new
debt is added to our current debt levels, the related risks that
we and our subsidiaries now face could intensify.
Our
subsidiaries debt agreements contain restrictions that
limit our flexibility in operating our business.
Nalco Companys senior credit agreement and the indentures
governing our subsidiaries existing notes contain a number
of significant covenants that, among other things, restrict our
or our subsidiaries ability to:
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incur additional indebtedness;
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pay dividends on or make other distributions or repurchase
certain capital stock;
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make certain investments;
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enter into certain types of transactions with our affiliates;
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pay dividends or other payments by restricted subsidiaries;
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use assets as security in other transactions; and
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sell certain assets or merge with or into other companies.
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S-3
In addition, under the senior credit agreement, Nalco Holdings
LLC is required to satisfy and maintain specified financial
ratios and tests. Events beyond our control may affect its
ability to comply with those provisions and Nalco Holdings LLC
may not be able to meet those ratios and tests. The breach of
any of these covenants would result in a default under the
senior credit agreement and the lenders could elect to declare
all amounts borrowed under the senior credit agreement, together
with accrued interest, to be due and payable and could proceed
against the collateral securing that indebtedness.
The
terms of Nalco Companys senior credit agreement limit
Nalco Holdings LLC and its subsidiaries from paying dividends or
otherwise transferring their assets to us.
Our operations are conducted through our subsidiaries and our
ability to make payments on any obligations we may have is
dependent on the earnings and the distribution of funds from our
subsidiaries. However, the terms of Nalco Companys senior
credit agreement limit the amount of dividends and other
transfers by Nalco Holdings LLC and its subsidiaries to us.
Our
significant
non-U.S.
operations expose us to global economic and political changes
that could impact our profitability.
We have significant operations outside the United States,
including joint ventures and other alliances. We conduct
business in approximately 130 countries and, in 2008,
approximately 55% of our net sales originated outside the United
States and some of our business is conducted in politically
unstable countries such as Venezuela. There are inherent risks
in our international operations, including:
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exchange controls and currency restrictions;
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currency fluctuations and devaluations;
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tariffs and trade barriers;
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export duties and quotas;
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changes in local economic conditions;
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changes in laws and regulations;
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difficulties in managing international operations and the burden
of complying with foreign laws;
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exposure to possible expropriation or other government actions;
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restrictions on our ability to repatriate dividends from our
subsidiaries;
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unsettled political conditions and possible terrorist attacks
against American interests; and
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countries whose governments have been hostile to
U.S.-based
businesses.
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Our international operations also expose us to different local
political and business risks and challenges. For example, in
certain countries we are faced with periodic political issues
that could result in currency risks or the risk that we are
required to include local ownership or management in our
businesses. We are also periodically faced with the risk of
economic uncertainty, which has impacted our business in these
countries. Other risks in international business also include
difficulties in staffing and managing local operations,
including our obligations to design local solutions to manage
credit risk to local customers and distributors.
Our overall success as a global business depends, in part, upon
our ability to succeed in differing economic, social and
political conditions. We may not continue to succeed in
developing and implementing policies and strategies that are
effective in each location where we do business, which could
negatively affect our profitability.
S-4
Environmental,
safety and production and product regulations or concerns could
subject us to liability for fines or damages, require us to
modify our operations and increase our manufacturing and
delivery costs.
We are subject to the requirements of environmental and
occupational safety and health laws and regulations in the
United States and other countries. These include obligations to
investigate and clean up environmental contamination on or from
properties or at off-site locations where we are identified as a
responsible party. For example, we are currently identified as a
potentially responsible party at certain waste management sites.
We have also been named as a defendant in multi-party and
individual lawsuits based on claims of exposure to hazardous
materials and claims that our products are defective or
dangerous. We have also been named as a defendant in lawsuits
where our products have not caused injuries, but the claimants
wish to be monitored for potential future injuries.
We cannot predict with certainty the outcome of any such tort
claims or the involvement we or our products might have in such
matters in the future and there can be no assurance that the
discovery of previously unknown conditions will not require
significant expenditures. In each of these chemical exposure
cases, our insurance carriers have accepted the claims on our
behalf (with or without reservation) and our financial exposure
should be limited to the amount of our deductible; however, we
cannot predict the number of claims that we may have to defend
in the future and we may not be able to continue to maintain
such insurance.
On November 27, 2006, the U.K. Health and Safety Executive
(HSE) issued a summons charging one of our
subsidiaries with a violation of the Health and Safety at Work
Act. The summons was
re-issued in
the Crown Court of Worcester on July 23, 2007. The charge
relates to a Legionella outbreak that is claimed to have
originated at cooling towers owned by one of the
subsidiarys customers. The Legionella outbreak is believed
to have resulted in two fatalities and multiple injuries. The
customer, H.P. Bulmer Limited, was also charged. Our subsidiary
submitted a guilty plea to a portion of the charge, exposing
non-employees to a health risk, on September 3, 2007.
Similarly, our subsidiarys customer submitted a guilty
plea. On July 1, 2008, the Crown Court issued a penalty of
£300,000 ($0.6 million) and court costs of £50,000
($0.1 million) against our subsidiary relating to this
violation. An identical penalty was issued against the
subsidiarys customer.
We have made and will continue to make capital and other
expenditures to comply with environmental requirements. Although
we believe we are in material compliance with environmental law
requirements, we may not have been and will not at all times be
in complete compliance with all of these requirements, and may
incur material costs, including fines or damages, or liabilities
in connection with these requirements in excess of amounts we
have reserved. In addition, these requirements are complex,
change frequently and have tended to become more stringent over
time. In the future, we may discover previously unknown
contamination that could subject us to additional expense and
liability. In addition, future requirements could be more
onerous than current requirements.
The activities at our production facilities are subject to a
variety of federal, state, local and foreign laws and
regulations (production regulations). Similarly, the
solid, air and liquid waste streams produced from our production
facilities are subject to a variety of regulations (waste
regulations) and many of our products and the handling of
our products are governmentally regulated or registered
(product regulations). Each of the production, waste
and product regulations is subject to expansion or enhancement.
Any new or tightened regulations could lead to increases in the
direct and indirect costs we incur in manufacturing and
delivering products to our customers. For example, the European
Commission has imposed new chemical registration requirements on
the manufacturers and users of all chemicals, not just those
which are considered to be harmful or hazardous. Such
regulations, referred to as REACH, will cause all chemical
companies to incur additional costs to conduct their businesses
in European Commission countries. Similarly, the need for
certain of our products and services is dependent
upon or triggered by governmental
regulation, and changes in such regulation could impact our
sales of these products or services. In addition to an increase
in costs in manufacturing and
S-5
delivering products, a change in production regulations or
product regulations could result in interruptions to our
business and potentially cause economic or consequential losses
should we be unable to meet the demands of our customers for
products.
We may
not be able to achieve all of our expected cost
savings.
For the years 2004 through 2008, our average annual cost savings
were $84 million. In 2008, we achieved cost savings of
$94 million, which was well above our target of
$75 million. A variety of risks could cause us not to
achieve the benefits of our expected cost savings, including,
among others, the following:
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higher than expected severance costs related to staff reductions;
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higher than expected retention costs for employees that will be
retained;
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delays in the anticipated timing of activities related to our
cost-saving plan, including the reduction of inefficiencies in
our administrative and overhead functions; and
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other unexpected costs associated with operating the business.
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We
have experienced in the past, and could again experience in the
future, difficulties in securing the supply of certain raw
materials we and our competitors need to manufacture some of our
products, and we have also been impacted by significant
increases in raw material costs.
In 2004 and 2006, certain of the raw materials used by us and
other chemical companies faced supply limitation. If these
limitations occur again in the future, we risk shortfalls in our
sales and the potential of claims from our customers if we are
unable to fully meet contractual requirements.
Also, limitations on raw materials and rising prices for
underlying materials have resulted in the past, and could result
in the future, in price increases for raw materials we purchase.
In the past, our margins have been impacted by such raw
materials price increases, and our margins could be similarly
impacted in the future if we are unable to pass any future raw
material price increases through to our customers.
Our
pension plans are currently underfunded and we may have to make
significant cash payments to the plans, reducing the cash
available for our business.
We sponsor various pension plans worldwide that are underfunded
and require significant cash payments. For example, in 2007 and
2008, we contributed $86.8 million and $86.2 million,
respectively, to our pension plans. We expect to contribute at
least $85.0 million to the U.S. pension plan in 2009.
We may also opt to make additional voluntary contributions to
various pension plans worldwide in 2009. If the performance of
the assets in our pension plans does not meet our expectations,
or if other actuarial assumptions are modified, our
contributions could be even higher than we expect. If our cash
flow from operations is insufficient to fund our worldwide
pension liability, we may be forced to reduce or delay capital
expenditures, seek additional capital or seek to restructure or
refinance our indebtedness.
As of December 31, 2008, our worldwide pension plans were
underfunded by $321.8 million (based on the actuarial
assumptions used for purposes of Statement of Financial
Accounting Standards (SFAS) No. 87, Employers
Accounting for Pensions). Our U.S. pension plans are
subject to the Employee Retirement Income Security Act of 1974,
or ERISA. Under ERISA, the Pension Benefit Guaranty Corporation,
or PBGC, has the authority to terminate an underfunded pension
plan under certain circumstances. In the event our
U.S. pension plans are terminated for any reason while the
plans are underfunded, we will incur a liability to the PBGC
that may be equal to the entire amount of the underfunding.
S-6
We
have recorded a significant amount of goodwill and other
identifiable intangible assets, and we may never realize the
full value of our intangible assets.
We have recorded a significant amount of goodwill and other
identifiable intangible assets, including customer
relationships, trademarks and developed technologies. Goodwill
and other net identifiable intangible assets were approximately
$2.8 billion as of December 31, 2008, or approximately
55% of our total assets. Goodwill, which represents the excess
of cost over the fair value of the net assets of the businesses
acquired, was approximately $1.7 billion as of
December 31, 2008, or 34% of our total assets. Goodwill and
net identifiable intangible assets are recorded at fair value on
the date of acquisition and, in accordance with
SFAS No. 142, Goodwill and Other Intangible
Assets, will be reviewed at least annually for impairment.
Impairment may result from, among other things, deterioration in
our performance, adverse market conditions, adverse changes in
applicable laws or regulations, including changes that restrict
the activities of or affect the products and services sold by
our business, and a variety of other factors. Some of the
products and services we sell to our customers are dependent
upon laws and regulations, and changes to such laws or
regulations could impact the demand for our products and
services. The amount of any quantified impairment must be
expensed immediately as a charge to results of operations.
Depending on future circumstances, it is possible that we may
never realize the full value of our intangible assets. Any
future determination of impairment of a significant portion of
goodwill or other identifiable intangible assets would have an
adverse effect on our financial condition and results of
operations.
Our
future success will depend in part on our ability to protect our
intellectual property rights, and our inability to enforce these
rights could permit others to offer products competitive with
ours, which could reduce our ability to maintain our market
position and maintain our margins.
We rely on the patent, trademark, copyright and trade secret
laws of the United States and other countries to protect our
intellectual property rights. However, we may be unable to
prevent third parties from using our intellectual property
without authorization. The use of our intellectual property by
others could reduce any competitive advantage we have developed
or otherwise harm our business. If we had to litigate to protect
these rights, any proceedings could be costly, and we may not
prevail.
We have obtained and applied for several U.S. and foreign
trademark registrations, and will continue to evaluate the
registration of additional service marks and trademarks, as
appropriate. Our pending applications may not be approved by the
applicable governmental authorities and, even if the
applications are approved, third parties may seek to oppose or
otherwise challenge these registrations. A failure to obtain
trademark registrations in the United States and in other
countries could limit our ability to protect our trademarks and
impede our marketing efforts in those jurisdictions.
We may
be subject to information technology system failures, network
disruptions and breaches in data security.
We rely to a large extent upon sophisticated information
technology systems and infrastructure. The size and complexity
of our computer systems make them potentially vulnerable to
breakdown, malicious intrusion and random attack. Likewise, data
privacy breaches by employees and others with permitted access
to our systems may pose a risk that sensitive data may be
exposed to unauthorized persons or to the public. While we have
invested heavily in protection of data and information
technology, there can be no assurance that our efforts will
prevent breakdowns or breaches in our systems that could
adversely affect our business.
The
market price of our common stock may be volatile, which could
cause the value of your investment to decline.
Securities markets worldwide experience significant price and
volume fluctuations. This market volatility, as well as general
economic, market or potential conditions, could reduce the
market price of our common stock in spite of our operating
performance. In addition, our operating results could be
S-7
below the expectations of securities analysts and investors, and
in response, the market price of our common stock could decrease
significantly.
The
effects of the recent global economic crisis may impact our
business, operating results or financial
condition.
The recent global economic crisis has caused a general
tightening in the credit markets, lower levels of liquidity,
increases in the rates of default and bankruptcy, and extreme
volatility in credit, equity and fixed income markets. These
macroeconomic developments could negatively affect our business,
operating results or financial condition in a number of ways.
When general economic conditions deteriorate, we may suffer
reductions in our sales and profitability. In addition, the
financial stability of our customers and suppliers may be
compromised, which could result in additional bad debts for us
or non-performance by suppliers. We may also find it more costly
or difficult to obtain financing to fund operations or
investment opportunities, or to refinance our debt in the future.
Risks
Related To This Offering
Future
sales of our shares could depress the market price of our common
stock.
The market price of our common stock could decline as a result
of sales of a large number of shares of common stock in the
market after the offering or the perception that such sales
could occur. These sales, or the possibility that these sales
may occur, also might make it more difficult for us to sell
equity securities in the future at a time and at a price that we
deem appropriate.
Immediately prior to the filing of this prospectus, we had
138,151,378 shares of common stock outstanding, of which
137,345,043 shares were freely tradable. The
625,291 shares that will be sold in this offering will also
be freely tradable. After the consummation of this offering, and
subject to the volume, manner of sale and other conditions of
Rule 144 under the Securities Act, 181,044 shares of
our common stock will be available for sale in the public market
under exemptions from registration requirements.
The
market price of our common stock may be volatile, which could
cause the value of your investment to decline.
Securities markets worldwide experience significant price and
volume fluctuations. This market volatility, as well as general
economic, market or potential conditions, could reduce the
market price of our common stock in spite of our operating
performance. In addition, our operating results could be below
the expectations of securities analysts and investors, and in
response, the market price of our common stock could decrease
significantly.
Provisions
in our amended and restated certificate of incorporation and
bylaws and Delaware law may discourage a takeover
attempt.
Provisions contained in our amended and restated certificate of
incorporation and bylaws and Delaware law could make it more
difficult for a third party to acquire us, even if doing so
might be beneficial to our stockholders. Provisions of our
amended and restated certificate of incorporation and bylaws
impose various procedural and other requirements, which could
make it more difficult for stockholders to effect certain
corporate actions. For example, our amended and restated
certificate of incorporation authorizes our board of directors
to determine the rights, preferences, privileges and
restrictions of unissued series of preferred stock, without any
vote or action by our stockholders. Thus, our board of directors
can authorize and issue shares of preferred stock with voting or
conversion rights that could adversely affect the voting or
other rights of holders of our common stock. These rights may
have the effect of delaying or deterring a change of control of
our company. In addition, a change of control of our company may
be delayed or deterred as a result of our having three classes
of directors. Additionally, Section 203 of the Delaware
General Corporation Law provides that, subject to specified
exceptions, a Delaware corporation shall not engage in business
combinations with any entity
S-8
that acquires enough shares of our common stock without the
consent of our board of directors to be considered an
interested stockholder under Delaware law for a
three-year period following the time that the stockholder became
an interested stockholder. These provisions could limit the
price that certain investors might be willing to pay in the
future for shares of our common stock.
S-9
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus supplement, the accompanying prospectus 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
supplement, the accompanying 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 supplement, the
accompanying prospectus 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 supplement, accompanying prospectus
or in documents incorporated by reference herein are set forth
in this prospectus supplement, including under the heading
Risk Factors.
All forward-looking statements attributable to us or persons
acting on our behalf apply only as of the date they were made
and are expressly qualified in their entirety by the cautionary
statements included in this prospectus supplement and the
accompanying 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 will not receive any of the proceeds from the sale of shares
of our common stock by the selling stockholders.
PRICE
RANGE OF COMMON STOCK
Our common stock has traded on the New York Stock Exchange under
the symbol NLC since November 11, 2004. The
following table sets forth the high and low intraday sales
prices per share of our common stock, as reported by the New
York Stock Exchange, for the periods indicated.
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Price Range
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High
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Low
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2007
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Quarter ended March 31, 2007
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$
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25.17
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$
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19.94
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Quarter ended June 30, 2007
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$
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29.29
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$
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23.75
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Quarter ended September 30, 2007
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$
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30.08
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$
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22.51
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Quarter ended December 31, 2007
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$
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30.98
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$
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21.32
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2008
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Quarter ended March 31, 2008
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$
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24.50
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$
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17.32
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Quarter ended June 30, 2008
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$
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26.28
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$
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21.11
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Quarter ended September 30, 2008
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$
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23.80
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$
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17.60
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Quarter ended December 31, 2008
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$
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18.84
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$
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7.80
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2009
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Quarter ended March 31, 2009 (through March 6)
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$
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12.75
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$
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9.38
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The closing sale price of our common stock, as reported by the
New York Stock Exchange, on March 6, 2009 was $10.13. As of
February 27, 2009, there were 47 holders of record of our
common stock. As of February 5, 2009, there were
approximately 18,215 beneficial owners of our common stock.
S-10
SELLING
STOCKHOLDERS
We are registering shares that were privately issued to
management members who exchanged their Nalco LLC class A
units, as well as their vested Nalco LLC class B, C and D
units (pursuant to management members agreements), for our
shares.
The following table sets forth information, as of March 6,
2009, with respect to the selling stockholders and the number of
shares of common stock beneficially owned by each selling
stockholder following the offering under this prospectus. The
address of each selling stockholder is
c/o Nalco
Holding Company, 1601 West Diehl Road, Naperville,
Illinois, 60563.
Although the selling stockholders may offer some or all of the
common stock that they own at their discretion following our
filing of this prospectus supplement, they are not required to
do so. Because the selling stockholders may offer all or some
portion of the common stock, no estimate can be given as to the
amount of the common stock that will be held by the selling
stockholders upon termination of any sales.
Selling stockholders, including their transferees, pledgees or
donees or their successors, may from time to time offer and sell
pursuant to this prospectus any or all of the common stock.
Identification of any additional selling stockholders, if any,
will be made in the applicable prospectus supplement.
Information about the selling stockholders may change over time.
Any changed information will be set forth in prospectus
supplements or post-effective amendments. From time to time,
additional information concerning ownership of the stock may
rest with holders of the common stock not named in the table
below and of whom we are unaware.
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Shares Beneficially
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Owned Prior to
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Shares Beneficially Owned
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this
Offering(1)
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After this
Offering(1)
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Shares
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Name of Selling Stockholder
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Number
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Percent(2)
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Being Offered
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Number
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Percent(2)
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Selling stockholders representing less than 1% owners of our
common stock as a group
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625,291
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*
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625,291
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0
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0
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%
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*
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Less than one percent.
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(1)
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Assumes all shares being offered by
this prospectus are sold and that all shares previously
registered on behalf of the selling stockholders have been sold.
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(2)
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The percentage of common stock
beneficially owned is based on 138,151,378 shares
outstanding as of March 6, 2009.
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S-11
PLAN OF
DISTRIBUTION
The selling stockholders and their successors, including their
transferees, pledgees or donees or their successors, may sell
the common stock directly to purchasers or through underwriters,
broker-dealers or agents, who may receive compensation in the
form of discounts, concessions or commissions from the selling
stockholders or the purchasers. These discounts, concessions or
commissions as to any particular underwriter, broker-dealer or
agent may be in excess of those customary in the types of
transactions involved. The common stock may be sold in one or
more transactions at fixed prices, at prevailing market prices
at the time of sale, at prices related to the prevailing market
prices, at varying prices determined at the time of sale, or at
negotiated prices. These sales may be effected in transactions,
which may involve crosses or block transactions:
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on any national securities exchange or U.S. inter-dealer
system of a registered national securities association on which
the common stock may be listed or quoted at the time of sale;
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in the over-the-counter market;
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in transactions otherwise than on these exchanges or systems or
in the over-the-counter market;
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through the writing of options, whether the options are listed
on an options exchange or otherwise; or
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through the settlement of short sales.
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In connection with the sale of the common stock, the selling
stockholders may enter into hedging transactions with the
broker-dealers or other financial institutions, which may in
turn engage in short sales of the common stock in the course of
hedging the positions they assume. The selling stockholders may
also sell the common stock short and deliver these securities to
close out their short positions, or loans or pledge the common
stock to broker-dealers that in turn may sell these securities.
The selling stockholders will act independently of us in making
decisions with respect to the timing, manner and size of each
sale. The aggregate proceeds to the selling stockholders from
the sale of the common stock offered by them will be the
purchase price of the common stock less discounts and
commissions, if any. Each of the selling stockholders reserves
the right to accept and, together with their agents from time to
time, to reject, in whole or in part, any proposed purchase of
common stock to be made directly or through agents. We will not
receive any of the proceeds from the sale by the selling
stockholders of the common stock.
Our outstanding common stock is listed for trading on the New
York Stock Exchange. In order to comply with the securities laws
of some states, if applicable, the common stock may be sold in
these jurisdictions only through registered or licensed brokers
or dealers. In addition, in some states the common stock may not
be sold unless they have been registered or qualified for sale
or an exemption from registration or qualification requirements
is available and is complied with.
The selling stockholders and any underwriters, broker-dealers or
agents that participate in the sale of the common stock may be
deemed to be underwriters within the meaning of
Section 2(11) of the Securities Act. As a result, any
profits on the sale of the common stock by selling stockholders
who are, or are deemed to be, underwriters and any discounts,
commissions or concessions received by any such broker-dealers
or agents who are, or are deemed to be, underwriters may be
deemed to be underwriting discounts or commissions under the
Securities Act. Selling stockholders who are deemed to be
underwriters within the meaning of
Section 2(11) of the Securities Act will be subject to the
prospectus delivery requirements of the Securities Act. The
selling stockholders have acknowledged
S-12
that they understand their obligations to comply with the
provisions of the Exchange Act and the rules thereunder relating
to stock manipulation, particularly Regulation M.
In addition, any securities covered by this prospectus that
qualify for sale pursuant to Rule 144 or Rule 144A of
the Securities Act may be sold under Rule 144 or
Rule 144A rather than pursuant to this prospectus. A
selling stockholder may not sell, transfer, devise or gift these
securities by other means not described
VALIDITY
OF THE SHARES
The validity of the issuance of the shares of common stock to be
sold in this offering will be passed upon for us by Simpson
Thacher & Bartlett LLP, New York, New York.
S-13
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
i
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
1
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.
2
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.
3
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.
4
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
10
625,291 Shares
Nalco Holding Company
Common Stock