SEC Info - Nalco Holding Co - IPO: ‘S-1/A’ on 10/22/04

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Nalco Holding Co – IPO: ‘S-1/A’ on 10/22/04 – ‘EX-1.1’

On: Friday, 10/22/04, at 9:28pm ET · As of: 10/25/04 · Private-to-Public: Document/Exhibit `¶` – Release Delayed · Accession #: 950136-4-3532 · File #: 333-118583

  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

10/25/04  Nalco Holding Co                  S-1/A¶     10/22/04    9:6.2M                                   Capital Systems 01/FA

Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: S-1/A       Amendment No. 3 to Form S-1                         HTML   2.95M 
 9: COVER     ¶ Comment-Response or Cover Letter to the SEC         HTML      2K 
 2: EX-1.1      Form of Underwriting Agreement                      HTML    134K 
 3: EX-10.26    Form of Warrant                                     HTML     84K 
 4: EX-10.28    Stockholders Agreement                              HTML     71K 
 5: EX-10.29    Nalco Holding Company 2004 Stock Incentive Plan     HTML     33K 
 6: EX-10.40    Form of Sponsor Services Agreement                  HTML     34K 
 7: EX-23.2     Consent of Ernst and Young                          HTML      6K 
 8: EX-99.1     Consent of Douglas A. Pertz                         HTML      7K

‘EX-1.1’ — Form of Underwriting Agreement
Exhibit Table of Contents

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		Alternative Formats (Word, et al.) Underwriting Agreement
1	1st Page – Filing Submission
2	Underwriting Agreement

This Exhibit is an HTML Document rendered as filed. [ Alternative Formats ]

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                                                                     EXHIBIT 1.1

                         FORM OF UNDERWRITING AGREEMENT

                              NALCO HOLDING COMPANY
                                  COMMON STOCK
                           (PAR VALUE $0.01 PER SHARE)
                           ---------------------------

                             UNDERWRITING AGREEMENT
                             ----------------------

                                                                   _______, 2004

Goldman, Sachs & Co.,
Citigroup Global Markets Inc.,
J.P. Morgan Securities Inc.,
UBS Securities LLC,
    As representatives of the several Underwriters
      named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.

Ladies and Gentlemen:

         Nalco Holding Company, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of ________ shares (the "Firm Shares") and, at the election of the Underwriters,
up to ________ additional shares (the "Optional Shares") of Common Stock, par
value $0.01 per share ("Stock"), of the Company (the Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to Section 2
hereof are herein collectively called the "Shares").

         As part of the offering contemplated by this Agreement, Citigroup
Global Markets Inc. has agreed to reserve out of the Shares set forth opposite
its name on Schedule I to this Agreement, up to ________ shares, for sale to the
Company's employees, officers, and directors and other parties associated with
the Company (collectively, "Participants"), as set forth in the Prospectus (as
defined below) under the heading "Underwriting" (the "Directed Share Program").
The Shares to be sold by Citigroup Global Markets Inc. pursuant to the Directed
Share Program (the "Directed Shares") will be sold by Citigroup Global Markets
Inc. pursuant to this Agreement at the public offering price. Any Directed
Shares not orally confirmed for purchase by any Participants by 7:30 A.M. New
York City time on the business day following the date on which this Agreement is
executed will be offered to the public by Citigroup Global Markets Inc. as set
forth in the Prospectus

         1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:

            (i) A registration statement on Form S-1 (File No. 333-118583) (the
         "Initial Registration Statement") in respect of the Shares has been
         filed with the Securities and Exchange Commission (the "Commission");
         the Initial Registration Statement and any post-effective

EX-1.1 3rd Page of 34 TOC 1st Previous Next ↓Bottom Just 3rd
         amendment thereto, each in the form heretofore delivered to you, and,
         excluding exhibits thereto to you for each of the other Underwriters,
         have been declared effective by the Commission in such form; other than
         a registration statement, if any, increasing the size of the offering
         (a "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b)
         under the Securities Act of 1933, as amended (the "Act"), which became
         effective upon filing, no other document with respect to the Initial
         Registration Statement has heretofore been filed with the Commission;
         and no stop order suspending the effectiveness of the Initial
         Registration Statement, any post-effective amendment thereto or the
         Rule 462(b) Registration Statement, if any, has been issued and no
         proceeding for that purpose has been initiated or, to the knowledge of
         the Company, threatened by the Commission (any preliminary prospectus
         included in the Initial Registration Statement or filed with the
         Commission pursuant to Rule 424(a) of the rules and regulations of the
         Commission under the Act is hereinafter called a "Preliminary
         Prospectus"; the various parts of the Initial Registration Statement
         and the Rule 462(b) Registration Statement, if any, including all
         exhibits thereto and including the information contained in the form of
         final prospectus filed with the Commission pursuant to Rule 424(b)
         under the Act in accordance with Section 6(a) hereof and deemed by
         virtue of Rule 430A under the Act to be part of the Initial
         Registration Statement at the time it was declared effective, each as
         amended at the time such part of the Initial Registration Statement
         became effective or such part of the Rule 462(b) Registration
         Statement, if any, became or hereafter becomes effective, are
         hereinafter collectively called the "Registration Statement"; and such
         final prospectus, in the form first filed pursuant to Rule 424(b) under
         the Act, is hereinafter called the "Prospectus");

            (ii) No order preventing or suspending the use of any Preliminary
         Prospectus has been issued by the Commission, and each Preliminary
         Prospectus, at the time of filing thereof, conformed in all material
         respects to the requirements of the Act and the rules and regulations
         of the Commission thereunder, and did 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, in the
         light of the circumstances under which they were made, 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 an
         Underwriter through Goldman, Sachs & Co. and Citigroup Global Markets
         Inc. expressly for use therein;

            (iii) The Registration Statement conforms, 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 the Registration Statement and any amendment thereto 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 an Underwriter
         through Goldman, Sachs & Co. and Citigroup Global Markets Inc.
         expressly for use therein;

            (iv) Since the date of the latest audited financial statements
         included in the Prospectus, except as set forth in or contemplated in
         the 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 Prospectus, there has not been any
         change in the capital stock or long-term debt of the Company or any of
         its significant

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         subsidiaries (as such term is defined in Rule 1-02(w) of Regulation
         S-X, as promulgated by the Commission (the "Significant
         Subsidiaries"));

            (v) 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");

            (vi) 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 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;

            (vii) The Company has an authorized capitalization as set forth in
         the 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 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 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
         Prospectus); and the stock dividends and cash dividends (collectively,
         the "Dividends") described in the Prospectus under the heading
         "Dividend Policy", have been duly authorized by the Company's board of
         directors and stockholder, and no other corporate proceedings on the
         part of the Company are required to authorize the Dividends;

            (viii) The Shares have been duly and validly authorized and, when
         issued and delivered against payment therefor as provided herein, will
         be duly and validly issued and fully paid and non-assessable and will
         conform to the description of the Stock contained in the Prospectus;

            (ix) 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 the this Agreement
         (including, without limitation, the issuance of the Shares and the
         distribution of the Dividends), 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 First Time of Delivery (as defined in Section 5);

            (x) None of the execution and delivery of this Agreement, the
         issuance and sale of the Shares, or the consummation of any other of
         the transactions herein contemplated (including, without limitation,
         the distribution of the Dividends), 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

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         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 the Company's 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;

            (xi) 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;

            (xii) 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 captions "Prospectus Summary - Summary Historical and
         Pro Forma Financial Data" and "Selected Historical Financial Data" in
         the Prospectus fairly present, on the basis stated in the Prospectus,
         the information included therein; the pro forma financial statements
         included in the Prospectus include assumptions that provide a
         reasonable basis for presenting the significant effects directly
         attributable to the transactions and events described therein, the
         related pro forma adjustments give appropriate effect to those
         assumptions, the pro forma adjustments reflect the proper application
         of those adjustments to the historical financial statement amounts in
         the pro forma financial statements included in the Prospectus; the pro
         forma financial statements included in the Prospectus comply as to form
         with the applicable accounting requirements of Regulation S-X under the
         Act, except as otherwise noted in the letter delivered on the date
         hereof pursuant to Section 8(g), and the pro forma adjustments have
         been properly applied to the historical amounts in the compilation of
         those statements;

            (xiii) The statements set forth in the Prospectus under the caption
         "Description of Capital Stock", insofar as they purport to constitute a
         summary of the terms of the Stock, under the captions "Description of
         Indebtedness", "Material U.S. Tax Consequences," and "Underwriting",
         insofar as they purport to describe the provisions of the laws and
         documents referred to therein, are accurate, complete and fair;

            (xiv) 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 Prospectus;

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            (xv) The Company is not and, after giving effect to the offering and
         sale of the Shares and the application of the proceeds thereof as
         described in the Prospectus, will not be an "investment company", as
         such term is defined in the Investment Company Act of 1940, as amended
         (the "Investment Company Act");

            (xvi) Ernst & Young LLP, who have certified certain financial
         statements of the Company and its subsidiaries, are independent public
         accountants as required by the Act and the applicable rules and
         regulations of the Commission thereunder;

            (xvii) 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 has 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 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 Prospectus;

            (xviii) 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;

            (xix) 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;

            (xx) 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 Prospectus;

            (xxi) The Company and each of its subsidiaries maintain a system of
         internal accounting controls sufficient to provide reasonable assurance
         that (i) transactions are executed in accordance with management's
         general or specific authorizations; (ii) transactions are recorded as
         necessary to permit preparation of financial statements in conformity
         with generally accepted accounting principles and to maintain asset
         accountability; (iii) access to assets is permitted only in accordance
         with management's general or specific authorization; and (iv) the
         recorded accountability for assets is compared with the existing assets
         at reasonable intervals and appropriate action is taken with respect to
         any differences;

            (xxii) 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

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         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,
         except as disclosed in the Prospectus;

            (xxiii) 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 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;

            (xxiv) 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 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
         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 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;

            (xxv) No forward-looking statement (within the meaning of Section
         27A of the Act and Section 21E of the Securities Exchange Act of 1934,
         as amended (the "Exchange Act")) or presentation of market-related or
         statistical data contained in the Preliminary Prospectus or Prospectus
         has been made or reaffirmed without a reasonable basis or has been
         disclosed other than in good faith;

            (xxvi) Except as disclosed in the Prospectus, no person or entity
         other than the Stockholder has the right to require registration of
         shares of Stock or other securities of the Company because of the
         filing or effectiveness of the Initial Registration Statements or
         otherwise, except for persons and entities who have expressly waived
         such right or who have

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         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; and

            (xxvii) Furthermore, the Company represents and warrants to
         Citigroup Global Markets Inc. that (A) the Registration Statement, the
         Prospectus and any Preliminary Prospectus comply, and any further
         amendments or supplements thereto will comply, with any applicable laws
         or regulations of foreign jurisdictions in which the Prospectus or any
         Preliminary Prospectus, as amended or supplemented, if applicable, are
         distributed in connection with the Directed Share Program, and that (B)
         no authorization, approval, consent, license, order, registration or
         qualification of or with any government, governmental instrumentality
         or court, other than such as have been obtained, is necessary under the
         securities laws and regulations of foreign jurisdictions in which the
         Directed Shares are offered outside the United States. The Company has
         not offered, or caused the Underwriters to offer, Shares to any person
         pursuant to the Directed Share Program with the specific intent to
         unlawfully influence (x) a customer or supplier of the Company to alter
         the customer's or supplier's level or type of business with the
         Company, or (y) a trade journalist or publication to write or publish
         favorable information about the Company or its products.

         2. Subject to the terms and conditions herein set forth, (a) the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $____, the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Company agrees to issue and sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the purchase price per share set forth
in clause (a) of this Section 2, that portion of the number of Optional Shares
as to which such election shall have been exercised (to be adjusted by you so as
to eliminate fractional shares) determined by multiplying such number of
Optional Shares by a fraction, the numerator of which is the maximum number of
Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.

         The Company hereby grants to the Underwriters the right to purchase at
their election up to ________ Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering sales of
shares in excess of the number of Firm Shares, provided that the purchase price
per Optional Share shall be reduced by an amount per share equal to any
dividends or distributions declared by the Company and payable on the Firm
Shares but not payable on the Optional Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement,
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 5
hereof) or, unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.

         3. The Company hereby confirms its engagement of Citigroup Global
Markets Inc. as, and Citigroup Global Markets Inc. hereby confirms its agreement
with the Company to render services as, a "qualified independent underwriter"
within the meaning of Rule 2720(b)(15) of the National Association of Securities
Dealers, Inc. (the "NASD") with respect to the offering and sale of the Shares.
Citigroup Global Markets Inc., in its capacity as qualified independent
underwriter and not otherwise, is referred to herein as the "QIU".

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         4. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.

         5. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Goldman, Sachs & Co. may request upon at least forty-eight hours' prior
notice to the Company shall be delivered by or on behalf of the Company to
Goldman, Sachs & Co., through the facilities of The Depository Trust Company
("DTC"), for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company to Goldman, Sachs & Co.
at least forty-eight hours in advance. The Company 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) with respect
thereto at the office of DTC or its designated custodian (the "Designated
Office"). The time and date of such delivery and payment shall be, with respect
to the Firm Shares, 9:30 a.m., New York time, on _______, 2004 or such other
time and date as Goldman, Sachs & Co. and the Company may agree upon in writing,
and, with respect to the Optional Shares, 9:30 a.m., New York time, on the date
specified by Goldman, Sachs & Co. in the written notice given by Goldman, Sachs
& Co. of the Underwriters' election to purchase such Optional Shares, or such
other time and date as Goldman, Sachs & Co. and the Company may agree upon in
writing. Such time and date for delivery of the Firm Shares is herein called the
"First Time of Delivery", such time and date for delivery of the Optional
Shares, if not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a "Time of
Delivery".

         (b) The documents to be delivered at each 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
Underwriters pursuant to Section 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 such Time of Delivery. A meeting will be held at the Closing Location at
3:00 p.m., New York City time, on the New York Business Day next preceding such
Time of Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 5, "New York Business Day"
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in New York are generally authorized or
obligated by law or executive order to close.

         6. The Company agrees with each of the Underwriters:

            (a) To prepare the Prospectus in a form approved by you, such
         approval not to be unreasonably withheld or delayed, and to file such
         Prospectus pursuant to Rule 424(b) under the Act not later than the
         Commission's close of business on the second business day following the
         execution and delivery of this Agreement, or, if applicable, such
         earlier time as may be required by Rule 430A(a)(3) under the Act; to
         make no further amendment or any supplement to the Registration
         Statement or Prospectus to which you reasonably object promptly after
         reasonable notice thereof; to advise you, promptly after it receives
         notice thereof, of the time when any amendment to the Registration
         Statement has been filed or becomes effective or any supplement to the
         Prospectus or any amended Prospectus has been filed and to furnish you
         with copies thereof; to advise you, promptly after it receives notice
         thereof, of the issuance by the Commission of any stop order or of any
         order preventing or suspending the use of any Preliminary Prospectus or
         prospectus, of the suspension of the qualification of the Shares for
         offering or sale in any jurisdiction, of the initiation or threatening
         of any proceeding for any such purpose, or of any request by the
         Commission for the amending or supplementing of the Registration
         Statement or Prospectus or for additional

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         information; and, in the event of the issuance of any stop order or of
         any order preventing or suspending the use of any Preliminary
         Prospectus or prospectus or suspending any such qualification, promptly
         to use its best efforts to obtain the withdrawal of such order;

            (b) Promptly from time to time to take such action as you may
         reasonably request to qualify the Shares for offering and sale under
         the securities laws of such jurisdictions as you may request and to
         comply with such laws so as to permit the continuance of sales and
         dealings therein in such jurisdictions for as long as may be necessary
         to complete the distribution of the Shares, provided that in connection
         therewith the Company shall not be required to qualify as a foreign
         corporation or a dealer in securities or to file a general consent to
         service of process in any jurisdiction or to subject itself to taxation
         in excess of a nominal amount in respect of doing business in any
         jurisdiction;

            (c) Prior to 10:00 A.M., New York City time, on the New York
         Business Day next succeeding the date of this Agreement and from time
         to time, to furnish the Underwriters with written and electronic copies
         of the Prospectus in New York City in such quantities as you may
         reasonably request, and, if the delivery of a prospectus is required at
         any time prior to the expiration of nine months after the time of issue
         of the Prospectus in connection with the offering or sale of the Shares
         and if at such time any events shall have occurred as a result of which
         the Prospectus as then amended or supplemented would include an untrue
         statement of a material fact or omit to state any material fact
         necessary in order to make the statements therein, in the light of the
         circumstances under which they were made when such Prospectus is
         delivered, not misleading, or, if for any other reason in the opinion
         of counsel for the Underwriters it shall be necessary during such
         period to amend or supplement the Prospectus in order to comply with
         the Act, to notify you and upon your request to prepare and furnish
         without charge to each Underwriter and to any dealer in securities as
         many written and electronic copies as you may from time to time
         reasonably request of an amended Prospectus or a supplement to the
         Prospectus which will correct such statement or omission or effect such
         compliance, and in case any Underwriter is required to deliver a
         prospectus in connection with sales of any of the Shares at any time
         nine months or more after the time of issue of the Prospectus, upon
         your request but at the expense of such Underwriter, to prepare and
         deliver to such Underwriter as many written and electronic copies as
         you may request of an amended or supplemented Prospectus complying with
         Section 10(a)(3) of the Act;

            (d) To make generally available to its securityholders as soon as
         practicable, but in any event not later than eighteen months after the
         effective date of the Registration Statement (as defined in Rule 158(c)
         under the Act), an earnings statement of the Company and its
         subsidiaries (which need not be audited) complying with Section 11(a)
         of the Act and the rules and regulations of the Commission thereunder
         (including, at the option of the Company, Rule 158);

            (e) During the Lock-up Period (as defined below), not to offer,
         sell, contract to sell, pledge or otherwise dispose of (or enter into
         any transaction which is designed to, or might reasonably be expected
         to, result in the disposition (whether by actual disposition or
         effective economic disposition due to cash settlement or otherwise) by
         the Company or any affiliate of the Company or any person in privity
         with the Company or any affiliate of the Company), directly or
         indirectly, including to establish or increase a put equivalent
         position or liquidate or decrease a call equivalent position within the
         meaning of Section 16 of the Exchange Act, except as provided
         hereunder, any Stock, any securities of the Company that are
         substantially similar to the Shares, including but not limited to any
         securities that are convertible into or exchangeable for, or that
         represent the right to receive, Stock or any such substantially similar
         securities (other than (i) the Shares to be sold by the Company
         hereunder, (ii) the issuance of shares of Stock upon the exercise of an
         option or warrant or upon the conversion or exchange

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         of convertible or exchangeable securities, in each case outstanding as
         of the date of this Agreement or described in the Prospectus as being
         outstanding on or prior to the First Time of Delivery, (iii) the grant
         of options to purchase shares of Stock under the Company's stock option
         plans existing on the date of this Agreement and described in the
         Prospectus, (iv) the issuance of securities of the Company in exchange
         for the assets of, or a majority or controlling portion of the equity
         of, another entity in connection with the acquisition by the Company of
         such entity, provided, however, that in the case of (iv), (A) prior to
         such issuance of securities, each recipient of such securities shall
         have executed and delivered to the Representatives an agreement
         substantially in the form of Annex III(a) hereto, and (B) the aggregate
         market value of such securities shall not exceed 5% of the market
         capitalization of the Company immediately following the First Time of
         Delivery, and (v) the filing of a registration statement in respect of
         the Stock during the Lock-up Period), without the prior written consent
         of Goldman, Sachs & Co. (the initial lock-up period will commence on
         the date hereof and will continue to and including the date 180 days
         after the date of the Prospectus; provided, however, that if (1) during
         the last 17 days of the initial lock-up period the Company releases
         earnings results or announces material news or a material event or (2)
         prior to the expiration of the initial lock-up period the Company
         announces that it will release earnings results during the 16-day
         period beginning on the last day of the initial lock-up period, then in
         each case the lock-up period will be automatically extended until the
         expiration of the 18-day period beginning on the date of release of the
         earnings results or the announcement of the material news or material
         event, as applicable, unless Goldman, Sachs & Co. waives, in writing,
         such lock-up restriction (the "Lock-up Period");

            (f) To provide written notice to the Representatives and to each of
         the Company's directors and executive officers and the Stockholder and
         such other persons listed in Annex III(b) hereto of any event that
         would result in an extension of the Lock-up Period in accordance with
         the agreement in the form of Annex III(a) hereto executed by each such
         person and delivered to the Underwriters on or prior to the date
         hereof;

            (g) So long as the Company is required to file reports with the
         Commission pursuant to Section 13 or 15(d) of the Exchange Act (but in
         any event for a period of no less than two years and no more than five
         years from the effective date of the Registration Statement), to
         furnish to its stockholders as soon as practicable after the end of
         each fiscal year an annual report (including a balance sheet and
         statements of income, stockholders' equity and cash flows of the
         Company and its consolidated subsidiaries certified by independent
         public accountants) and, as soon as practicable after the end of each
         of the first three quarters of each fiscal year (beginning with the
         fiscal quarter ending after the effective date of the Registration
         Statement), to make available to its stockholders consolidated summary
         financial information of the Company and its subsidiaries for such
         quarter in reasonable detail; provided, however, that the Company may
         satisfy the requirements of this subsection by making any such reports,
         communications or information generally available on its web site or by
         filings such information with the Commission via EDGAR;

            (h) So long as the Company is required to file reports with the
         Commission pursuant to Section 13 or 15(d) of the Exchange Act (but in
         any event for a period of no less than two years and no more than five
         years from the effective date of the Registration Statement), to
         furnish to you copies of all reports or other communications (financial
         or other) furnished to stockholders, and to deliver to you (i) as soon
         as they are available, copies of any reports and financial statements
         furnished to or filed with the Commission or any national securities
         exchange on which any class of securities of the Company is listed;
         and (ii) such additional information concerning the business and
         financial condition of the Company as you may from time to time
         reasonably request (such financial statements to be on a consolidated
         basis to the extent the accounts of

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         the Company and its subsidiaries are consolidated in reports furnished
         to its stockholders generally or to the Commission); provided, however,
         that the Company may satisfy the requirements of this subsection by
         making any such reports, communications or information generally
         available on its web site or by filings such information with the
         Commission via EDGAR;

            (i) To use the net proceeds received by it from the sale of the
         Shares pursuant to this Agreement in the manner specified in the
         Prospectus under the caption "Use of Proceeds";

            (j) To use its commercially reasonable efforts to list, subject to
         notice of issuance, the Shares on the New York Stock Exchange (the
         "Exchange");

            (k) To file with the Commission such information on Form 10-Q or
         Form 10-K as may be required by Rule 463 under the Act;

            (l) If the Company elects to rely upon Rule 462(b), the Company
         shall file a Rule 462(b) Registration Statement with the Commission in
         compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on
         the date of this Agreement, and the Company shall at the time of filing
         either pay to the Commission the filing fee for the Rule 462(b)
         Registration Statement or give irrevocable instructions for the payment
         of such fee pursuant to Rule 111(b) under the Act;

            (m) Upon request of any Underwriter, to furnish, or cause to be
         furnished, to such Underwriter an electronic version of the Company's
         owned trademarks, servicemarks and corporate logo for use on the
         website, if any, operated by such Underwriter for the purpose of
         facilitating the on-line offering of the Shares (the "License");
         provided, however, that the License shall be used solely for the
         purpose described above, is granted without any fee and may not be
         assigned or transferred; and

            (n) Not to take, directly or indirectly, any action designed to or
         that would constitute or that might reasonably be expected to cause or
         result in, under the Exchange Act or otherwise, stabilization or
         manipulation of the price of any security of the Company to facilitate
         the sale or resale of the Shares.

         Furthermore, the Company covenants with Citigroup Global Markets Inc.
that the Company will comply with all applicable securities and other applicable
laws, rules and regulations in each foreign jurisdiction in which the Directed
Shares are offered in connection with the Directed Share Program.

         7. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Blue Sky Memorandum and any other related documents in connection with the
offering, purchase, sale and delivery of the Shares; (iii) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 6(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky survey; (iv) all
fees and expenses in connection with listing the Shares on the Exchange; and (v)
the filing fees incident to, and the fees and disbursements of counsel for the
Underwriters in connection with, securing any required review by the NASD of the
terms of the sale of the Shares; (vi) the cost of preparing stock certificates;
(vii) the cost and charges of any transfer agent or registrar; (viii) all
reasonable fees and

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disbursements of counsel incurred by the Underwriters in connection with the
Directed Share Program; (ix) all costs and expenses incurred by the Underwriters
in connection with the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of copies
of the Directed Share Program material; (x) all stamp duties, similar taxes or
duties or other taxes, if any, incurred by the Underwriters in connection with
the Directed Share Program; and (viii) all other costs and expenses incident to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section, including the transportation and
other expenses incurred by or on behalf of the Company representatives in
connection with presentations to prospective purchasers of the Shares (it being
understood that the Company and the Representatives shall each bear half of the
costs, respectively, associated with any chartered aircraft). It is understood,
however, that, except as provided in this Section, and Sections 9, 10 and 13
hereof, the Underwriters will pay all of their own costs and expenses, including
the fees and disbursements of their counsel, stock transfer taxes on resale of
any of the Shares by them, and any advertising expenses connected with any
offers they may make.

         8. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that (i) all representations and warranties and other statements
of the Company herein that are qualified by Material Adverse Effect or another
materiality qualifier are, at and as of such Time of Delivery, true and correct
and (ii) all representations and warranties and other statements of the Company
herein that are not qualified by Material Adverse Effect or another materiality
qualifier are, at and as of such Time of Delivery, true and correct in all
material respects, the condition that the Company shall have performed all of
its obligations hereunder theretofore to be performed, and the following
additional conditions:

            (a) The Prospectus shall have been filed with the Commission
         pursuant to Rule 424(b) within the applicable time period prescribed
         for such filing by the rules and regulations under the Act and in
         accordance with Section 6(a) hereof; if the Company has elected to rely
         upon Rule 462(b), the Rule 462(b) Registration Statement shall have
         become effective by 10:00 P.M., Washington, D.C. time, on the date of
         this Agreement; no stop order suspending the effectiveness of the
         Registration Statement or any part thereof shall have been issued and
         no proceeding for that purpose shall have been initiated or threatened
         by the Commission; and all requests for additional information on the
         part of the Commission shall have been complied with to your reasonable
         satisfaction;

            (b) Sullivan & Cromwell LLP, counsel for the Underwriters, shall
         have furnished to you such written opinion or opinions, dated such Time
         of Delivery, with respect to the incorporation of the Company, the
         validity of the Shares and such other related matters as you may
         reasonably request, and such counsel shall have received such papers
         and information as they may reasonably request to enable them to pass
         upon such matters;

            (c) Simpson Thacher & Bartlett LLP, counsel for the Company, shall
         have furnished to you their written opinion (a draft of the opinion to
         be delivered on the First Time of Delivery is attached as Annex II(a)
         hereto), dated such Time of Delivery, in form and substance
         satisfactory to you;

            (d) Stephen N. Landsman, Esq., General Counsel of the Company, shall
         have furnished to you his written opinion (a draft of the opinion to be
         delivered on the First Time of Delivery is attached as Annex II(b)
         hereto), dated such Time of Delivery, in form and substance
         satisfactory to you;

            (e) On the date of the Prospectus at a time prior to the execution
         of this Agreement, at 9:30 a.m., New York City time, on the effective
         date of any post-effective amendment to the Registration Statement
         filed subsequent to the date of this Agreement and also at each Time of
         Delivery, Ernst & Young LLP shall have furnished to you a letter or
         letters, dated the

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EX-1.1 14th Page of 34 TOC 1st Previous Next ↓Bottom Just 14th
         respective dates of delivery thereof, in form and substance
         satisfactory to you (the executed copy of the letter delivered prior to
         the execution of this Agreement is attached as Annex I(a) hereto and a
         draft of the form of letter to be delivered on the effective date of
         any post-effective amendment to the Registration Statement and as of
         each Time of Delivery is attached as Annex I(b) hereto);

            (f) Subsequent to the date of the Prospectus or, if earlier, the
         dates as of which information is given in the Prospectus (exclusive of
         any amendment or supplement thereto), there shall not have been any
         change, or any development involving a prospective change, in or
         affecting the condition (financial or otherwise), business or results
         of operations of the Company and its subsidiaries, taken as a whole and
         after giving effect to the offering, except as set forth in or
         contemplated in the Prospectus (exclusive of any amendment or
         supplement thereto), the effect of which, is, in the judgment of the
         Representatives, so material and adverse as to make it impracticable or
         inadvisable to proceed with the public offering or the delivery of the
         Shares being delivered at such Time of Delivery on the terms and in the
         manner contemplated in the Prospectus (exclusive of any amendment or
         supplement thereto);

            (g) On or after the date hereof, there shall not have been any
         decrease in the rating of any of the Company or any of its Significant
         Subsidiaries' debt securities by any "nationally recognized statistical
         rating organization" (as defined for purposes of Rule 436(g) under the
         Act) or any notice given of any intended or potential decrease in any
         such rating or of a possible change in any such rating that does not
         indicate the direction of the possible change;

            (h) On or after the date hereof there shall not have occurred any of
         the following: (i) a suspension or material limitation in trading in
         securities generally on the Exchange; (ii) a suspension or material
         limitation in trading in the Company's securities on the Exchange;
         (iii) a general moratorium on commercial banking activities declared by
         either Federal or New York State authorities or a material disruption
         in commercial banking or securities settlement or clearance services in
         the United States; (iv) the outbreak or escalation of hostilities
         involving the United States or the declaration by the United States of
         a national emergency or war or (v) the occurrence of any other calamity
         or crisis, if the effect on the financial markets of any such event
         specified in clause (iv) or (v) in the judgment of the Representatives
         makes it impracticable or inadvisable to proceed with the public
         offering or the delivery of the Shares being delivered at such Time of
         Delivery on the terms and in the manner contemplated in the Prospectus;

            (i) The Shares at such Time of Delivery shall have been duly listed,
         subject to notice of issuance, on the Exchange;

            (j) The Company has obtained and delivered to the Underwriters
         executed copies of an agreement in the form of Annex III(a) from the
         Company's directors and executive officers and the Stockholder and such
         other persons listed in Annex III(b);

            (k) The Company shall have complied with the provisions of Section
         6(c) hereof with respect to the furnishing of prospectuses; and

            (l) The Company shall have furnished or caused to be furnished to
         you at such Time of Delivery customary certificates of officers of the
         Company satisfactory to you to the effect that:

                (i) the representations and warranties of the Company herein
         that are not qualified by Material Adverse Effect or another
         materiality qualifier are true and correct in all material respects at
         and as of such Time of Delivery;

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EX-1.1 15th Page of 34 TOC 1st Previous Next ↓Bottom Just 15th
                (ii) the representations and warranties of the Company herein
         that are qualified by Material Adverse Effect or another materiality
         qualifier are true and correct at and as of such Time of Delivery;

                (iii) the Company has performed in all material respects all
         obligations and satisfied all conditions on its part to be performed or
         satisfied pursuant to this Agreement at or prior to such Time of
         Delivery;

                (iv) the Prospectus shall have been filed with the Commission
         pursuant to Rule 424(b) under the Act within the applicable time period
         prescribed for such filing by the rules and regulations under the Act
         and in accordance with Section 6(a) of this Agreement; the Company's
         Registration Statement No. 333-118583 under the Act shall have become
         effective; if the Company has elected to rely upon Rule 462(b), the
         Rule 462(b) Registration Statement shall have become effective by 10:00
         P.M., Washington, D.C. time, on the date of this Agreement; no stop
         order suspending the effectiveness of the Registration Statement or any
         part thereof has been issued and no proceedings for that purpose have
         been initiated or threatened by the Commission; and all requests for
         additional information relating to the Registration Statement on the
         part of the Commission have been complied with;

                (v) since the date of the most recent financial statements
         included in the Prospectus (exclusive of any amendment or supplement
         thereto), there has been no material adverse change in the condition
         (financial or otherwise), business or results of operations of the
         Company and its subsidiaries, taken as a whole, except as set forth in
         or contemplated in the Prospectus (exclusive of any amendment or
         supplement thereto); and

                (vi) the pro forma financial statements included in the
         Prospectus comply as to form in all material respects with the
         accounting requirements of Regulation S-X under the Act, except as
         otherwise noted in the letter delivered on the date hereof pursuant to
         Section 8(e) hereof, and the pro forma adjustments have been properly
         applied in all material respects to the historical amounts in the
         compilation of those statements.

         9. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and (subject to the limitations set forth in the proviso
to this sentence) will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Goldman, Sachs & Co. and Citigroup Global Markets Inc. expressly for use
therein. The Company shall not be liable under this Section 9 to any indemnified
party regarding any settlement or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent is consented to by the
Company, which consent shall not be unreasonably withheld.

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EX-1.1 16th Page of 34 TOC 1st Previous Next ↓Bottom Just 16th
         (b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through Goldman, Sachs & Co. and Citigroup Global Markets Inc. expressly for use
therein. The Underwriters shall not be liable under this Section 9 to any
indemnified party regarding any settlement or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent is consented to by the
Underwriters, which consent shall not be unreasonably withheld.

         (c) The Company agrees to indemnify and hold harmless Citigroup Global
Markets Inc., the directors, officers, employees and agents of Citigroup Global
Markets Inc. and each person, who controls Citigroup Global Markets Inc. within
the meaning of either the Act or the Exchange Act ("Citigroup Entities"), from
and against any and all losses, claims, damages and liabilities to which they
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim), insofar as such losses,
claims damages or liabilities (or actions in respect thereof) (i) arise out of
or are based upon any untrue statement or alleged untrue statement of a material
fact contained in the prospectus wrapper material prepared by or with the
consent of the Company for distribution in foreign jurisdictions in connection
with the Directed Share Program attached to the Prospectus or any Preliminary
Prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statement therein, when considered in conjunction with the Prospectus
or any applicable Preliminary Prospectus, not misleading; (ii) caused by the
failure of any Participant to pay for and accept delivery of the securities
which immediately following the effective date of the Registration Statement,
were subject to a properly confirmed agreement to purchase; or (iii) related to,
arising out of, or in connection with the Directed Share Program, except that
this clause (iii) shall not apply to the extent that such loss, claim, damage or
liability is finally judicially determined to have resulted primarily from the
gross negligence, willful misconduct or bad faith of the Citigroup Entities.

         (d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such

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indemnified party under such subsection for any fees and expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest (based on the advice of counsel to the indemnified party), (ii) the
actual or potential defendants in, or targets of, any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
Notwithstanding anything contained herein to the contrary, if indemnity may be
sought pursuant to subsection (c) above in respect of such action or proceeding,
then in addition to such separate firm for the indemnified parties, the
indemnifying party shall be liable for the reasonable fees and expenses of not
more than one separate firm (in addition to any local counsel) for Citigroup
Global Markets Inc., the directors, officers, employees and agents of Citigroup
Global Markets Inc., and all persons, if any, who control Citigroup Global
Markets Inc. within the meaning of either the Act or the Exchange Act for the
defense of any losses, claims, damages and liabilities arising out of the
Directed Share Program (each, a "Citigroup Indemnified Party") if (i) the use of
counsel chosen by the indemnified parties would present such counsel with a
conflict of interest (based on the advice of counsel to the indemnified
parties), (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified parties and the Citigroup Indemnified Party
and the Citigroup Indemnified Party shall have reasonably concluded that there
may be legal defenses available to it which are different from or additional to
those available to the indemnified parties, (iii) the indemnifying party shall
not have employed counsel satisfactory to the Citigroup Indemnified Party to
represent the Citigroup Indemnified Party within a reasonable time after notice
of the institution of such action or (iv) the indemnifying party shall authorize
the Citigroup Indemnified Party to employ separate counsel at the expense of the
indemnifying party.

         (e) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (d) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the

                                       16

EX-1.1 18th Page of 34 TOC 1st Previous Next ↓Bottom Just 18th
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Shares (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission and other equitable considerations
appropriate under the circumstances. The Company and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this subsection
(e) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (e). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (e) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.

         (f) The obligations of the Company under this Section 9 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and affiliate of
the respective Underwriters and to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 9 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.

         10. (a) The Company will indemnify and hold harmless Citigroup Global
Markets Inc., in its capacity as QIU, against any losses, claims, damages or
liabilities, joint or several, to which the QIU may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading or (iii) any act or omission to act or any
alleged act or omission to act by Citigroup Global Markets Inc. as QIU in
connection with any transaction contemplated by this Agreement or undertaken in
preparing for the purchase, sale and delivery of the Shares, except as to this
clause (iii) to the extent that any such loss, claim, damage or liability
results from the gross negligence, willful misconduct or bad faith of Citigroup
Global Markets Inc. in performing the services as QIU, and will reimburse the
QIU for any legal or other expenses reasonably incurred by the QIU in connection
with investigating or defending any such action or claim as such expenses are
incurred.

                                       17

EX-1.1 19th Page of 34 TOC 1st Previous Next ↓Bottom Just 19th
         (b) Promptly after receipt by the QIU under subsection (a) above of
notice of the commencement of any action, the QIU shall, if a claim in respect
thereof is to be made against the Company under such subsection, notify the
Company in writing of the commencement thereof; but the omission so to notify
the Company shall not relieve it from any liability which it may have to the QIU
otherwise than under such subsection. In case any such action shall be brought
against the QIU and it shall notify the Company of the commencement thereof, the
Company shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to the QIU (who
shall not, except with the consent of the QIU, be counsel to the Company), and,
after notice from the indemnifying party to the QIU of its election so to assume
the defense thereof, the indemnifying party shall not be liable to the QIU under
such subsection for any fees and expenses of other counsel or any other
expenses, in each case subsequently incurred by the QIU, in connection with the
defense thereof other than reasonable costs of investigation. The Company shall
not, without the written consent of the QIU, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought under this Section 10 (whether or not the QIU is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the QIU from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
QIU.

         (c) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless Citigroup Global Markets Inc.,
in its capacity as QIU, under subsection (a) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then the Company shall contribute to the amount paid or payable by the
QIU as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the QIU on the other from
the offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the QIU
failed to give the notice required under subsection (b) above, then the Company
shall contribute to such amount paid or payable by the QIU in such proportion as
is appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the QIU on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the QIU on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Shares (before deducting
expenses) received by the Company, as set forth in the table on the cover page
of the Prospectus, bear to the fee payable to the QIU, if any, pursuant to this
Agreement. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the QIU on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission and other equitable considerations
appropriate under the circumstances. The Company and the QIU agree that it would
not be just and equitable if contributions pursuant to this subsection (c) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
subsection (c). The amount paid or payable by the QIU as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (c) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.

                                       18

EX-1.1 20th Page of 34 TOC 1st Previous Next ↓Bottom Just 20th
         (d) The obligations of the Company under this Section 10 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and affiliate of
the QIU and to each person, if any, who controls the QIU within the meaning of
the Act.

         11. (a) If, on any Time of Delivery, any one or more of the
Underwriters shall fail or refuse to purchase Shares that it has or they have
agreed to purchase hereunder on such date, and the aggregate number of Shares
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate number of the Shares to
be purchased on such date, the other Underwriters shall be obligated severally
in the proportions that the number of Firm Shares or Optional Shares, as
applicable, set forth opposite their respective names in Schedule I bear to the
aggregate number of Firm Shares or Optional Shares, as applicable, set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as you may specify, to purchase the Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Shares that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 11 by an amount in excess of one-ninth of such number of Shares without
the written consent of such Underwriter. In any such case either you or the
Company shall have the right to postpone the Time of Delivery, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected.

         (b) If, on the First Time of Delivery, any Underwriter or Underwriters
shall fail or refuse to purchase Firm Shares and the aggregate number of Firm
Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Firm Shares to be purchased, and arrangements satisfactory
to you and the Company for the purchase of such Firm Shares are not made within
72 hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Company except for the
expenses to be borne by the Company and the Underwriters as provided in Section
7 hereof and the indemnity and contribution agreements in Sections 9 and 10
hereof.

         (c) If, on any Time of Delivery on which Optional Shares are delivered,
any Underwriter or Underwriters shall fail or refuse to purchase Optional Shares
and the aggregate number of Optional Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Optional Shares to be
purchased on such Time of Delivery, the non-defaulting Underwriters shall have
the option to (i) terminate obligation hereunder to purchase Optional Shares or
(ii) purchase not less than the number of Optional Shares that such
non-defaulting Underwriters would have been obligated to purchase in the absence
of such default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.

         (d) The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.

         12. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.

                                       19

EX-1.1 21st Page of 34 TOC 1st Previous Next ↓Bottom Just 21st
         13. If this Agreement shall be terminated pursuant to Section 11
hereof, the Company shall not be under any liability to any Underwriter except
as provided in Sections 7, 9 and 10 hereof; but, if the sale of the Shares
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 8 hereof is not satisfied or because of
any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, including pursuant to Section 11 hereof, the
Company will reimburse the Underwriters severally through Goldman, Sachs & Co.
and Citigroup Global Markets Inc. on behalf of the Underwriters on demand for
all reasonable out-of-pocket accountable expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Shares, but the Company shall then be
under no further liability to any Underwriter in respect of the Shares not so
delivered except as provided in Sections 7, 9 and 10 hereof.

         14. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Goldman, Sachs & Co. and Citigroup Global Markets
Inc. on behalf of you as the representatives.

         All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of: (i) Goldman,
Sachs & Co., 85 Broad Street, New York, New York 10004, Attention: Registration
Department and (ii) Citigroup Global Markets Inc., 388 Greenwich Street, New
York, New York, 10013, Attention: General Counsel (fax no.: (212) 816-7912); and
if to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: Stephen Landsman, Vice President, General Counsel and
Corporate Secretary (fax no.: (630) 305-2840); provided, however, that any
notice to an Underwriter pursuant to Section 9(d) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire or telex constituting such
Questionnaire, which address will be supplied to the Company by you on request.
Any such statements, requests, notices or agreements shall take effect upon
receipt thereof.

         15. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters and the Company and, to the extent provided in
Sections 9, 10 and 12 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Shares from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.

         16. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.

         17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.

         18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.

         19. The Company is authorized, subject to applicable law, to disclose
any and all aspects of this potential transaction that are necessary to support
any U.S. federal income tax benefits expected to be claimed with respect to such
transaction, and all materials of any kind (including tax opinions and other tax
analyses) related to those benefits, without the Underwriters imposing any
limitation of any kind.

                                       20

EX-1.1 22nd Page of 34 TOC 1st Previous Next ↓Bottom Just 22nd
         If the foregoing is in accordance with your understanding, please sign
and return to us seven counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters and
the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination.

                                            Very truly yours,

                                            Nalco Holding Company

                                            By:
                                               ---------------------------------
                                               Name:
                                               Title:

Goldman, Sachs & Co.
Citigroup Global Markets Inc.
J.P. Morgan Securities Inc.
UBS Securities LLC

By:
   ----------------------------------
   (Goldman, Sachs & Co.)

   On behalf of each of the Underwriters

                                       21

EX-1.1 23rd Page of 34 TOC 1st Previous Next ↓Bottom Just 23rd
                                   SCHEDULE I

                                                                       NUMBER OF OPTIONAL
                                                                          SHARES TO BE
                                                  TOTAL NUMBER OF         PURCHASED IF
                                                    FIRM SHARES          MAXIMUM OPTION
                              UNDERWRITER         TO BE PURCHASED           EXERCISED
                              -----------         ---------------      -------------------

Goldman, Sachs & Co..............................
Citigroup Global Markets Inc.....................
J.P. Morgan Securities Inc.......................
UBS Securities LLC...............................
Banc of America Securities LLC ..................
Bear, Stearns & Co. Inc. ........................
Credit Suisse First Boston LLC...................
Deutsche Bank Securities Inc.....................
Lehman Brothers Inc..............................
William Blair & Company, L.L.C...................

         Total................................... ------------------   -------------------
                                                  ==================   ===================

                                       22

EX-1.1 24th Page of 34 TOC 1st Previous Next ↓Bottom Just 24th
                                                                      ANNEX I(a)

    COMFORT LETTER DELIVERED PRIOR TO THE EXECUTION OF UNDERWRITING AGREEMENT

EX-1.1 25th Page of 34 TOC 1st Previous Next ↓Bottom Just 25th
                                                                      ANNEX I(b)

       FORM OF COMFORT LETTER TO BE DELIVERED ON THE EFFECTIVE DATE OF ANY
         POST-EFFECTIVE AMENDMENT TO THE REGISTRATION STATEMENT AND ON
                              EACH TIME OF DELIVERY

EX-1.1 26th Page of 34 TOC 1st Previous Next ↓Bottom Just 26th
                                                                     ANNEX II(a)

  FORMS OF OPINIONS OF SIMPSON THACHER & BARTLETT LLP, COUNSEL FOR THE COMPANY

EX-1.1 27th Page of 34 TOC 1st Previous Next ↓Bottom Just 27th
                                                                     ANNEX II(b)

                FORM OF OPINION OF GENERAL COUNSEL OF THE COMPANY

EX-1.1 28th Page of 34 TOC 1st Previous Next ↓Bottom Just 28th
                                                                    ANNEX III(a)

                              NALCO HOLDING COMPANY

                                LOCK-UP AGREEMENT

                                                                  ________, 2004

Goldman, Sachs & Co.,
Citigroup Global Markets Inc.,
J.P. Morgan Securities Inc.,
UBS Securities LLC,
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York  10004

and

Nalco LLC
1601 West Diehl Road
Naperville, Illinois  60563-1198

         Re:  Nalco Holding Company - Lock-Up Agreement
              -----------------------------------------

Ladies and Gentlemen:

         The undersigned understands that Goldman, Sachs & Co., Citigroup Global
Markets Inc., J.P. Morgan Securities Inc. and UBS Securities LLC, as
representatives (the "Representatives"), propose to enter into an Underwriting
Agreement (the "Underwriting Agreement") on behalf of the several Underwriters
named in Schedule I to such agreement (collectively, the "Underwriters"), with
Nalco Holding Company, a Delaware corporation (the "Company") and a subsidiary
of Nalco LLC, providing for a public offering of the Common Stock, par value
$0.01 per share, of the Company (the "Shares") pursuant to the Company's
Registration Statement on Form S-1 (Reg. No. 333-118583) (the "Registration
Statement") filed with the Securities and Exchange Commission (the "SEC").

         In consideration of the agreement by the Underwriters to offer and sell
the Shares, and of other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the undersigned agrees that, during
the period specified in the following paragraph (the "Lock-up Period"), the
undersigned will not offer, sell, contract to sell, pledge, grant any option to
purchase, make any short sale or otherwise dispose of any shares of Common Stock
of the Company, or any options or warrants to purchase any shares of Common
Stock of the Company, or any securities convertible into, exchangeable for or
that represent the right to receive shares of Common Stock of the Company or
units or other membership interests in Nalco LLC, whether now owned or
hereinafter acquired, owned directly by the undersigned (including holding as a
custodian) or with respect to which the undersigned has beneficial ownership
within the rules and regulations of the SEC (collectively the "Undersigned's
Shares"). The foregoing restriction is expressly agreed to preclude the
undersigned from engaging in any hedging or other transaction which is designed
to or which reasonably could be expected to lead to or result in a sale or
disposition of the Undersigned's Shares even if such Shares would be disposed of
by someone other than the undersigned. Such prohibited hedging or other
transactions would include without limitation any short sale or any purchase,
sale or grant of any right (including without limitation any put or call option)
with respect to any of the

EX-1.1 29th Page of 34 TOC 1st Previous Next ↓Bottom Just 29th
Undersigned's Shares or with respect to any security that includes, relates to,
or derives any significant part of its value from such Shares. If the
undersigned is a Management Member, as defined in the Nalco LLC Limited
Liability Company Operating Agreement, dated May 17, 2004 (the "LLC Agreement"),
the undersigned acknowledges that any proceeds of the offering of the Shares
that are distributed to Nalco LLC will be used to redeem Class A Units held by
the Sponsor Members (as such terms are defined in the LLC Agreement) and not any
units held by Management Members.

         The initial Lock-up Period will commence on the date of this Lock-Up
Agreement and continue for 180 days after the public offering date set forth on
the final prospectus used to sell the Shares (the "Public Offering Date")
pursuant to the Underwriting Agreement; provided, however, that if (1) during
the last 17 days of the initial Lock-up Period the Company releases earnings
results or announces material news or a material event or (2) prior to the
expiration of the initial Lock-up Period the Company announces that it will
release earnings results during the 16-day period beginning on the last day of
the initial Lock-up Period, then in each case the Lock-up Period will be
automatically extended until the expiration of the 18-day period beginning on
the date of release of the earnings results or the announcement of the material
news or material event, as applicable, unless Goldman, Sachs & Co. waives, in
writing, such extension.

         The undersigned hereby acknowledges and agrees that the Company has
agreed in the Underwriting Agreement to provide written notice of any event that
would result in an extension of the Lock-up Period pursuant to the previous
paragraph to the undersigned and that any such notice properly delivered will be
deemed to have given to, and received by, the undersigned. The undersigned
hereby further agrees that, prior to engaging in any transaction or taking any
other action that is subject to the terms of this Lock-Up Agreement during the
period from the date of this Lock-Up Agreement to and including the 34th day
following the expiration of the initial Lock-up Period, it will give notice
thereof to the Company and will not consummate such transaction or take any such
action during such period unless it has received written confirmation from the
Company that the Lock-up Period (as may have been extended pursuant to the
previous paragraph) has expired.

         Notwithstanding the foregoing, the undersigned may transfer the
Undersigned's Shares (i) as a bona fide gift or gifts, provided that the donee
or donees thereof agree to be bound in writing by the restrictions set forth
herein, (ii) by will or intestate, (iii) to any trust, partnership or limited
liability company for the direct or indirect benefit of the undersigned or the
immediate family of the undersigned, provided that the trustee of the trust,
partnership or the limited liability company, as the case may be, agrees to be
bound in writing by the restrictions set forth herein, and provided further that
any such transfer shall not involve a disposition for value, (iv) to the extent
applicable, as distributions of the Undersigned's Shares to a wholly-owned
subsidiary of the undersigned or to the direct or indirect members or partners
of the undersigned, provided, however, that (A) it shall be a condition to such
transfer that the transferee (if not already subject to this Lock-up Agreement)
execute an agreement stating that such transferee is receiving and holding such
capital stock subject to the provisions of this Lock-Up Agreement and there
shall be no further transfer of such capital stock except in accordance with
this Lock-up Agreement, and (B) such transfer shall not involve a disposition
for value, (v) to a nominee or custodian of a person or entity to whom a
disposition or transfer would be permissible under clauses (i) through (iv), or
(vi) with the prior written consent of Goldman, Sachs & Co. on behalf of the
Underwriters. For purposes of this Lock-Up Agreement, "immediate family" shall
mean any relationship by blood, marriage or adoption, not more remote than first
cousin. The undersigned now has, and, except as contemplated by clause (i)
through (vi) above, for the duration of this Lock-Up Agreement will have, good
and marketable title to the Undersigned's Shares, free and clear of all liens,
encumbrances, and claims whatsoever. The undersigned also agrees and consents to
the entry of stop transfer instructions with the Company's transfer agent and
registrar against the transfer of the Undersigned's Shares during the Lock-up
Period except in compliance with the foregoing restrictions.

EX-1.1 30th Page of 34 TOC 1st Previous Next ↓Bottom Just 30th
         The undersigned understands that Nalco LLC, the Company and the
Underwriters are relying upon this Lock-Up Agreement in proceeding toward
consummation of the offering. The undersigned further understands that this
Lock-Up Agreement is irrevocable and shall be binding upon the undersigned's
heirs, legal representatives, successors, and assigns.

         This Lock-Up Agreement shall automatically terminate and be of no
further effect if (i) the Registration Statement is not declared effective by
the SEC by ________, 2004 or (ii) the Underwriting Agreement is terminated
pursuant to its terms.

                                        Very truly yours,

                                        ----------------------------------------
                                        Exact Name

                                        ----------------------------------------
                                        Authorized Signature

                                        ----------------------------------------
                                        Title

EX-1.1 31st Page of 34 TOC 1st Previous Next ↓Bottom Just 31st
                                                                    ANNEX III(b)

                             LOCK-UP AGREEMENT LIST

EXECUTIVE OFFICERS AND DIRECTORS

William H. Joyce
William J. Roe
Bradley J. Bell
Daniel M. Harker
Mark L. Bosanko
Mark W. Irwin
Louis L. Loosbrock
Leon D. Black
Chinh E. Chu
Richard A. Friedman
Joshua J. Harris
Sanjeev K. Mehra
Paul H. O'Neill

STOCKHOLDER AND BENEFICIAL OWNERS OF THE STOCKHOLDER

Nalco LLC

Blackstone Capital Partners IV L.P.
Blackstone Family Investment Partnership IV-A L.P.
Blackstone Capital Partners IV-A L.P.
Blackstone Management Associates IV L.L.C.

Apollo Investment Fund V, L.P.
Apollo Management V, L.P.
Apollo Advisors V, L.P.

GS Capital Partners 2000, L.P.
GS Capital Partners 2000 Offshore, L.P.
GS Capital Partners 2000 GmbH & Co. Beteiligungs KG GS Capital Partners 2000
Employee Fund, L.P.
NH Acquisition LLC
Goldman Sachs Direct Investment Fund 2000, L.P.

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UNITHOLDERS

STEVE ABBATELLO
OSVALDO ALCOCER
JOHN ALCORN
GARY AMAN
MARTY ANCELLOTTI
RICK ANDERSON
ERIC ANTHONISSEN
GIANCARLO ANTINORI
JORGE AUGELLO
DOUG BALDWIN
BRAD BECKER
RICH BENDURE
AL BENINATI
DAVE BRIGHTBILL
SUSAN BUCHANAN
MIKE BUSHMAN
BRENT CARPENTER
FRANK CRAWFORD
PHILIPPE CRETEUR
MARK CRIST
JAMES DEHAAN
MARY DEJONGE
BRENT DIEZ
LOUIS DRIES
DON DUGA
JIMMIE DYESS
JAMES FORD
GREG FORDYCE
ROBERT FUTRAL
JAMES GAGE
TERRY GALLAGHER
STAN GIBSON
DAVE GIDDINGS
JOHN GIGERICH
KEN GOH
GEORGE HAMILTON
JOHN HEALY
DEBORAH HOCKMAN
DAVID JOHNSON
FREDERIC JUNG
RALPH KAESLER
CHRIS KAUFMAN
MARY KAY KAUFMANN
KURT KIRCHOF
DAVID KNOWLES
JAMES LANDI
STEVE LANDSMAN
BRUNO LAVANDIER

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RICK LIJANA
JIM LONG
BILL MALAK
PAT MAREK
DAVE MAXSON
PAT MCKINGHT
CHRIS MORRISON
MICHAEL MURPHY
PETE NASSOS
SCOTT NOVAK
DAVID OHRVALL
DICK O'SHANNA
CARL PASQUARELLI
JOEL PASTORE
BRIAN PENMAN
MIKE PHILLIPS
WILLIAM PIFER
VINCE PIZZONI
COR PLOEG
ANTHONY POWELL
BILL RADON
ASIRUR RAHMAN
MANI RAMESH
LEON RICHARDSON
RON RIEDE
BILL ROEHRICK
MIKE ROMANO
SKIP SCHEPISI
PETE SCHOEMANN
JANET SCHOO
CHRIS SCHWARZ
BERNARD SCHYNS
JOSE SERRANO
SHEKAR SHETTY
SCOTT SINGLETARY
JAMES SMITH
LORENZO SORRENTINO
SERGIO SOUSA
MARK STANLEY
JOHN STEWART
MARK STOLL
FLORIAN SZMURLO
STEVE TAYLOR
PIERRE THIBAUDAT
JOHN TIDD
DAVID TIMM
PHILIP TING
CHRISTOPHE VAN RIEL
JOHN WANTUCH
WILLIAM WASZAK

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JEFF WILKINS
JOHN WILLIAMS
KLAUS WOLFGANG
KEN YANKOWSKI

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Dates Referenced Herein

		Referenced-On Page
This ‘S-1/A’ Filing	Date	First	Last	Other Filings

Filed as of:	10/25/04			None on these Dates
Filed on:	10/22/04
	5/17/04	29
				List all Filings

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Filing Submission 0000950136-04-003532 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

Nalco Holding Co – IPO: ‘S-1/A’ on 10/22/04 – ‘EX-1.1’

On: Friday, 10/22/04, at 9:28pm ET · As of: 10/25/04 · Private-to-Public: Document/Exhibit ¶ – Release Delayed · Accession #: 950136-4-3532 · File #: 333-118583

Previous ‘S-1’: ‘S-1/A’ on 10/13/04 · Next: ‘S-1/A’ on 11/1/04 · Latest: ‘S-1/A’ on 8/9/05

Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1Filing Table of Contents

‘EX-1.1’ — Form of Underwriting AgreementExhibit Table of Contents

This Exhibit is an HTML Document rendered as filed. [ Alternative Formats ]

Dates Referenced Herein

On: Friday, 10/22/04, at 9:28pm ET · As of: 10/25/04 · Private-to-Public: Document/Exhibit `¶` – Release Delayed · Accession #: 950136-4-3532 · File #: 333-118583

Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents

‘EX-1.1’ — Form of Underwriting Agreement
Exhibit Table of Contents