UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934*
Nalco Holding Company
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(Name of Issuer)
Common Stock (Par Value $0.01 Per Share)
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(Title of Class of Securities)
62985Q 10 1
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(CUSIP Number)
Robert C. Schwenkel, Esq. Ben I. Adler, Esq.
Fried, Frank, Harris, Shriver & Jacobson LLP Goldman, Sachs & Co.
One New York Plaza One New York Plaza
New York, NY 10004 New York, NY 10004
(212) 859-8000 (212) 902-1000
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(Name, Address and Telephone Number of Persons Authorized to Receive Notices
and Communications)
November 16, 2004
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check
the following box |_|.
*The remainder of this cover page will be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but will be subject to all other provisions of the
Act (however, see the Notes).
SCHEDULE 13D
CUSIP No. 62985Q 10 1 Page 2 of 40
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Goldman Sachs Group, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 22,121,305 (SEE ITEMS 4 AND 5)
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 22,121,305 (SEE ITEMS 4 AND 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
22,121,305 (SEE ITEMS 4 AND 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |X|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.6%
14 TYPE OF REPORTING PERSON
HC-CO
SCHEDULE 13D
CUSIP No. 62985Q 10 1 Page 3 of 40
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Goldman, Sachs & Co.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |X|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
NEW YORK
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 22,121,305 (SEE ITEMS 4 AND 5)
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 22,121,305 (SEE ITEMS 4 AND 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
22,121,305 (SEE ITEMS 4 AND 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |X|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.6%
14 TYPE OF REPORTING PERSON
BD-PN-IA
SCHEDULE 13D
CUSIP No. 62985Q 10 1 Page 4 of 40
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Advisors 2000, L.L.C.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 16,823,637 (SEE ITEMS 4 AND 5)
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 16,823,637 (SEE ITEMS 4 AND 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
16,823,637 (SEE ITEMS 4 AND 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |X|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.9%
14 TYPE OF REPORTING PERSON
OO
SCHEDULE 13D
CUSIP No. 62985Q 10 1 Page 5 of 40
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Goldman, Sachs & Co. oHG
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Germany
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 515,578 (SEE ITEMS 4 AND 5)
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 515,578 (SEE ITEMS 4 AND 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
515,578 (SEE ITEMS 4 AND 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |X|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 62985Q 10 1 Page 6 of 40
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Goldman, Sachs Management GP GmbH
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Germany
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 515,578 (SEE ITEMS 4 AND 5)
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 515,578 (SEE ITEMS 4 AND 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
515,578 (SEE ITEMS 4 AND 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |X|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4%
14 TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP No. 62985Q 10 1 Page 7 of 40
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Employee Funds 2000 GP, L.L.C.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 4,782,090 (SEE ITEMS 4 AND 5)
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 4,782,090 (SEE ITEMS 4 AND 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,782,090 (SEE ITEMS 4 AND 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |X|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.4%
14 TYPE OF REPORTING PERSON
OO
SCHEDULE 13D
CUSIP No. 62985Q 10 1 Page 8 of 40
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Capital Partners 2000, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 12,335,073 (SEE ITEMS 4 AND 5)
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 12,335,073 (SEE ITEMS 4 AND 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
12,335,073 (SEE ITEMS 4 AND 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |X|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.7%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 62985Q 10 1 Page 9 of 40
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Capital Partners 2000 Offshore, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 4,482,091 (SEE ITEMS 4 AND 5)
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 4,482,091 (SEE ITEMS 4 AND 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,482,091 (SEE ITEMS 4 AND 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |X|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.2%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 62985Q 10 1 Page 10 of 40
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Capital Partners 2000 GmbH & Co. Beteiligungs KG
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Germany
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 515,578 (SEE ITEMS 4 AND 5)
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 515,578 (SEE ITEMS 4 AND 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
515,578 (SEE ITEMS 4 AND 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |X|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 62985Q 10 1 Page 11 of 40
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Capital Partners 2000 Employee Fund, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 3,919,212 (SEE ITEMS 4 AND 5)
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 3,919,212 (SEE ITEMS 4 AND 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,919,212 (SEE ITEMS 4 AND 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |X|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.8%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 62985Q 10 1 Page 12 of 40
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Goldman Sachs Direct Investment Fund 2000, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 862,878 (SEE ITEMS 4 AND 5)
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 862,878 (SEE ITEMS 4 AND 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
862,878 (SEE ITEMS 4 AND 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |X|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.6%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 62985Q 10 1 Page 13 of 40
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
NH Acquisition LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 6,473 (SEE ITEMS 4 AND 5)
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 6,473 (SEE ITEMS 4 AND 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,473 (SEE ITEMS 4 AND 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |X|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
14 TYPE OF REPORTING PERSON
OO
ITEM 1. SECURITY AND ISSUER.
-------------------
This statement on Schedule 13D relates to the common stock, par value
$0.01 per share (the "Common Stock"), of Nalco Holding Company, a Delaware
corporation (the "Issuer"). The principal executive offices of the Issuer
are located at 1601 West Diehl Road, Naperville, Illinois 60563.
ITEM 2. IDENTITY AND BACKGROUND.
-----------------------
This statement is being filed by The Goldman Sachs Group, Inc. ("GS
Group"), Goldman, Sachs & Co. ("Goldman Sachs"), GS Advisors 2000, L.L.C.
("GS Advisors"), Goldman, Sachs & Co. oHG ("GS oHG"), Goldman, Sachs
Management GP GmbH ("GS GmbH"), GS Employee Funds 2000 GP, L.L.C. ("GS
Employee 2000"), GS Capital Partners 2000, L.P. ("GS Capital"), GS Capital
Partners 2000 Offshore, L.P. ("GS Offshore"), GS Capital Partners 2000 GmbH
& Co. Beteiligungs KG ("GS Germany"), GS Capital Partners 2000 Employee
Fund, L.P. ("GS Employee"), Goldman Sachs Direct Investment Fund 2000, L.P.
("GS Direct") and NH Acquisition LLC ("NH" and, together with GS Capital,
GS Offshore, GS Germany, GS Employee and GS Direct, the "Purchasers"), (GS
Group, Goldman Sachs, GS Advisors, GS oHG, GS GmbH, GS Employee 2000, and
the Purchasers, collectively, the "Filing Persons").1
GS Group is a Delaware corporation and holding company that (directly
and indirectly through subsidiaries or affiliated companies or both) is a
leading investment banking organization. Goldman Sachs, a New York limited
partnership, is an investment banking firm and a member of the New York
Stock Exchange, Inc. and other national exchanges. Goldman Sachs also
serves as the manager for GS Advisors and GS Employee 2000 and the
investment manager for GS Capital, GS Offshore, GS Germany, GS Employee and
GS Direct. Goldman Sachs is wholly owned, directly and indirectly, by GS
Group. GS Advisors, a Delaware limited liability company, is the sole
general partner of GS Capital and GS Offshore and is the sole manager of
NH. GS oHG, a German partnership, is the sole stockholder of GS GmbH. GS
GmbH, a German corporation, is the sole managing partner of GS Germany. GS
Employee 2000, a Delaware limited liability company, is the sole general
partner of GS Employee and GS Direct. Each of GS Capital, a Delaware
limited partnership, GS Offshore, a Cayman Islands exempted limited
partnership, GS Germany, a German limited partnership, GS Employee, a
Delaware limited partnership and GS Direct, a Delaware limited partnership,
was formed for the purpose of investing in equity and equity-related
securities primarily acquired or issued in leveraged acquisitions,
reorganizations and other private equity transactions. NH was formed for
the principal purpose of acquiring, holding, protecting and disposing of
interests in Nalco Investment Holdings LLC (the predecessor of Nalco LLC)
and proceeds and distributions therefrom. The principal business address of
each Filing Person (other than GS oHG, GS GmbH,
--------------------
1 Neither the present filing nor anything contained herein will be
construed as an admission that any Filing Person constitutes a
"person" for any purpose other than for compliance with Section 13(d)
of the Securities Exchange Act of 1934.
GS Offshore and GS Germany) is 85 Broad Street, New York, NY 10004. The
principal business address for GS Offshore is c/o Maples and Calder, P.O.
Box 309, Grand Cayman, Cayman Islands. The principal business address for
each of GS Germany, GS GmbH and GS oHG is MesseTurm, 60308 Frankfurt am
Main, Germany.
The name, business address, present principal occupation or employment
and citizenship of each director of GS Group are set forth in Schedule I
hereto and are incorporated herein by reference. The name, business
address, present principal occupation or employment and citizenship of each
executive officer of GS Advisors are set forth in Schedule II-A-i hereto
and are incorporated herein by reference. The name, business address,
present principal occupation or employment and citizenship of each member
of the Principal Investment Area Investment Committee of Goldman Sachs,
which is responsible for making all investment and management decisions for
GS Advisors, GS Capital, GS Offshore, GS Germany, GS Employee and GS Direct
on behalf of Goldman Sachs, are set forth in Schedule II-A-ii hereto and
are incorporated herein by reference. The name, business address, present
principal occupation or employment and citizenship of each executive
officer and director of Goldman, Sachs & Co. Finanz GmbH, the sole managing
general partner of GS oHG, are set forth in Schedule II-B-i hereto and are
incorporated herein by reference. The name, business address, present
principal occupation or employment and citizenship of each executive
officer of the GS GmbH are set forth in Schedule II-B-ii hereto and are
incorporated herein by reference. The name, business address, present
principal occupation or employment and citizenship of each executive
officer of GS Employee 2000 are set forth in Schedule II-C hereto and are
incorporated herein by reference.
During the last five years, none of the Filing Persons, nor, to the
knowledge of each of the Filing Persons, any of the persons listed on
Schedules I, II-A-i, II-A-ii, II-B-i, II-B-ii or II-C hereto, (i) has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) except as set forth on Schedule III hereto, has been
a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject
to a judgment, decree, or final order enjoining future violations of, or
prohibiting or mandating activities subject to federal or state securities
laws or finding any violation with respect to such laws.
The Filing Persons have entered into a Joint Filing Agreement, dated
as of November 24, 2004, a copy of which is attached hereto as Exhibit 1.
ITEM 3 SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
-------------------------------------------------
In November 2003, the Purchasers, along with funds controlled by
affiliates of Apollo Management, L.P. ("Apollo") and funds controlled by
affiliates of The Blackstone Group L.P. ("Blackstone" and together with the
Purchasers and Apollo, the "Sponsors"), acquired membership interests in
Nalco Investment Holdings, LLC, in exchange for contributions of $253.7
million, $369.1 million and $369.1 million, respectively, which, together
with borrowings under a new credit facility and proceeds from an offering
of senior notes and senior subordinated notes, were used to acquire Nalco
Company, now a subsidiary of the Issuer. Following this acquisition, the
Sponsors engaged in a series of transactions that ultimately resulted in
the exchange of 100% of the membership interests in Nalco Investment
Holdings LLC for membership interests in Nalco LLC.
The Purchasers' cash contribution of $253.7 million was funded by
capital contributions from the partners of the Purchasers and from
available funds of the Purchasers.
On June 1, 2004, the Issuer was formed as a Delaware entity. On June
16, 2004, 100 shares of Common Stock were issued to Nalco LLC, as the sole
stockholder of the Issuer, at par value. Nalco LLC is currently the record
owner of 90,552,258 shares of Common Stock, or approximately 63.9% of the
issued and outstanding Common Stock.
ITEM 4. PURPOSE OF TRANSACTION.
----------------------
In connection with the Issuer's initial public offering (the "IPO"),
which closed on November 16, 2004, the Issuer sold an aggregate of
51,111,111 shares of Common Stock to a syndicate of underwriters in a firm
commitment underwritten offering, including 6,666,667 shares sold to the
underwriters upon the exercise of the underwriters' over-allotment option,
for aggregate net proceeds of approximately $724.5 million. The Issuer used
approximately $544.6 million of the net proceeds of the IPO to pay a cash
dividend to Nalco LLC and issued a stock dividend of 90,552,158 shares of
Common Stock to Nalco LLC. All of the shares offered and sold in the IPO
were primary shares issued and sold by the Issuer.
In connection with the IPO, the Issuer, Nalco LLC and the Sponsors
entered into the Stockholders Agreement, the terms of which are more fully
described in Item 6, pursuant to which the Sponsors will be entitled to
nominate a majority of the Issuer's board of directors, and will, through
Nalco LLC, have the ability to effectively control the vote in any election
of directors. In addition, pursuant to Lock-Up Agreements, the terms of
which are more fully described in Item 6, the Purchasers and others agreed
not to sell or otherwise dispose of any shares of Common Stock for a period
of 180 days after November 10, 2004. The Sponsors and Nalco LLC also have
certain registration rights with respect to the shares of Common Stock held
by Nalco LLC, the terms of which are more fully described in Item 6.
As of the date hereof, the Purchasers own an aggregate of
approximately 24.4% of the outstanding membership interests in Nalco LLC.
The balance of the membership interests in Nalco LLC are held by Apollo,
Blackstone and certain members of management of the Issuer. Because voting
and dispositive decisions of Nalco LLC with respect to the Common Stock
require the approval of at least two of the Sponsors, the Purchasers
disclaim beneficial ownership of the Issuer's securities held by Nalco LLC.
Nonetheless, the Filing Persons are voluntarily reporting an indirect
beneficial interest in the Common Stock, as reflected herein.
All of the shares of Common Stock reported herein were acquired for
investment purposes. The Filing Persons review on a continuing basis the
investment in the Issuer. Based on such review, the Filing Persons may
acquire, or cause to be acquired, additional securities of the Issuer,
dispose of, or cause to be disposed, such securities at any time or
formulate other purposes, plans or proposals regarding the Issuer or any of
its securities, to the extent deemed advisable in light of general
investment and trading policies of the Filing Persons, the Issuer's
business, financial condition and operating results, general market and
industry conditions or other factors.
Except as described in this Schedule 13D, the Filing Persons currently
have no plans or proposals which relate to or would result in any
transaction, event or action enumerated in paragraphs (a) through (j) of
Item 4 of the form of Schedule 13D promulgated under the Act, except that
under the terms of the Stockholders Agreement, the terms of which are more
fully described in Item 6, Nalco LLC and the Sponsors have agreed to
increase the size of the board of directors of the Issuer as necessary in
order to comply with Rule 10A-3 of the Act and the rules of the New York
Stock Exchange.
Each of the Filing Persons reserves the right, in light of its ongoing
evaluation of the Issuer's financial condition, business, operations and
prospects, the market price of the Common Stock, conditions in the
securities markets generally, general economic and industry conditions, its
business objectives and other relevant factors, to change its plans and
intentions at any time, as it deems appropriate. In particular, any one or
more of the Filing Persons (and their respective affiliates) reserves the
right, in each case subject to (a) any applicable limitations imposed on
the sale of any of their Issuer securities by the Securities Act or other
applicable law, to (i) purchase additional shares of Common Stock or other
securities of the Issuer, (ii) sell or transfer shares of Common Stock or
other securities beneficially owned by them from time to time in public or
private transactions, (iii) cause any of the Purchasers to distribute in
kind to their respective partners or members, as the case may be, shares of
Common Stock or other securities owned by such Purchasers and (iv) enter
into privately negotiated derivative transactions with institutional
counterparties to hedge the market risk of some or all of their positions
in the shares of Common Stock, or other securities. To the knowledge of
each Filing Person, each of the persons listed on Schedules I, II-A-i,
II-A-ii, II-B-i, II-B-ii or II-C hereto may make similar evaluations from
time to time or on an ongoing basis.
ITEM 5. INTERESTS IN SECURITIES OF THE ISSUER.
-------------------------------------
(a) The shares of Common Stock shown as beneficially owned by the
Filing Persons reflect the Filing Persons' percentage interest in the
90,552,158 shares of Common Stock held of record by Nalco LLC, based on the
Filing Person's percentage interest in Nalco LLC, and excludes the balance
of such shares which represent the other Sponsors' and management members'
percentage interest in Nalco LLC. As described in Item 4, because voting
and dispositive decisions of Nalco LLC with respect to the Common Stock of
the Issuer require the approval of at least two of the Sponsors, the Filing
Persons each disclaim beneficial ownership of the shares of the Issuer's
Common Stock reported as beneficially owned by Nalco LLC or any of the
other Sponsors, and the filing of this Schedule 13D shall not be construed
as an admission that any such person is the beneficial owner of any such
securities. The percentage of the class beneficially owned by each Filing
Person is based on 141,663,369 issued and outstanding shares of Common
Stock reported by the issuer on November 19, 2004.
As of November 16, 2004, GS Group may be deemed to beneficially own an
aggregate of 22,121,305 shares of Common Stock which may be deemed to be
beneficially owned by the Purchasers representing in the aggregate
approximately 15.6% of the outstanding Common Stock, based on calculations
made in accordance with Rule 13d-3(d) of the Act.
As of November 16, 2004, Goldman Sachs may be deemed to beneficially
own an aggregate of 22,121,305 shares of Common Stock which may be deemed
to be beneficially owned by the Purchasers representing in the aggregate
approximately 15.6% of the outstanding shares of Common Stock based on
calculations made in accordance with Rule 13d-3(d) of the Act.
GS Group and Goldman Sachs disclaim beneficial ownership of the shares
of Common Stock beneficially owned by the Purchasers to the extent that
partnership interests in the Purchasers are held by persons other than
Goldman Sachs or its affiliates.
In accordance with Securities and Exchange Commission Release No.
34-39538 (January 12, 1998), this filing reflects the securities
beneficially owned by the investment banking division ("IBD") of GS Group
and its subsidiaries and affiliates (collectively, "Goldman Sachs Group").
This filing does not reflect securities, if any, beneficially owned by any
other operating unit of Goldman Sachs Group. IBD disclaims beneficial
ownership of the securities beneficially owned by (i) any client accounts
with respect to which IBD or its employees have voting or investment
discretion, or both and (ii) certain investment entities, of which IBD is
the general partner, managing general partner or other manager, to the
extent interests in such entities are held by persons other than IBD.
As of November 16, 2004, GS Advisors may be deemed to beneficially own
the aggregate of 16,823,637 shares of Common Stock that may be deemed to be
beneficially owned by GS Capital, GS Offshore and NH representing in the
aggregate, approximately 11.9% of the outstanding shares of Common Stock
based on calculations made in accordance with Rule 13d-3(d) of the Act.
As of November 16, 2004, each of GS oHG and GS GmbH may be deemed to
beneficially own the aggregate of 515,578 shares of Common Stock that may
be deemed to be beneficially owned by GS Germany representing in the
aggregate, approximately 0.4% of the outstanding shares of Common Stock
based on calculations made in accordance with Rule 13d-3(d) of the Act.
As of November 16, 2004, GS Employee 2000 may be deemed to
beneficially own the aggregate of 4,782,090 shares of Common Stock that may
be deemed to be beneficially owned by GS Employee and GS Direct
representing in the aggregate, approximately 3.4% of the outstanding shares
of Common Stock based on calculations made in accordance with Rule 13d-3(d)
of the Act.
As of November 16, 2004, GS Capital may be deemed to beneficially own
12,335,073 shares of Common Stock representing in the aggregate,
approximately 8.7% of the outstanding shares of Common Stock based on
calculations made in accordance with Rule 13d-3(d) of the Act.
As of November 16, 2004, GS Offshore may be deemed to beneficially own
4,482,091 shares of Common Stock representing in the aggregate,
approximately 3.2% of the outstanding shares of Common Stock based on
calculations made in accordance with Rule 13d-3(d) of the Act.
As of November 16, 2004, GS Germany may be deemed to beneficially own
515,578 shares of Common Stock representing in the aggregate, approximately
0.4% of the outstanding shares of Common Stock based on calculations made
in accordance with Rule 13d-3(d) of the Act.
As of November 16, 2004, GS Employee may be deemed to beneficially own
3,919,212 shares of Common Stock representing in the aggregate,
approximately 2.8% of the outstanding shares of Common Stock based on
calculations made in accordance with Rule 13d-3(d) of the Act.
As of November 16, 2004, GS Direct may be deemed to beneficially own
862,878 shares of Common Stock representing in the aggregate, approximately
0.6% of the outstanding shares of Common Stock based on calculations made
in accordance with Rule 13d-3(d) of the Act.
As of November 16, 2004, NH may be deemed to beneficially own 6,473
shares of Common Stock representing in the aggregate, less than 0.1% of
the outstanding shares of Common Stock based on calculations made in
accordance with Rule 13d-3(d) of the Act.
None of the Filing Persons or, to the knowledge of the Filing Persons,
the persons listed on Schedules I, II-A-i, II-A-ii, II-B-i, II-B-ii or II-C
hereto beneficially owns any shares of Common Stock other than as set forth
herein.
(b) Each Filing Person shares the power to vote or direct the vote and
to dispose or to direct the disposition of securities that such Filing
Person may be deemed to beneficially own as indicated above.
(c) Except as described above, no other transactions in the shares of
Common Stock were effected by the Filing Persons, or, to their knowledge,
any of the persons listed on Schedules I, II-A-i, II-A-ii, II-B-i, II-B-ii
or II-C hereto, during the last 60 days.
(d) In accordance with the terms of the LLC Agreement (as defined
below) and, if approved by the board of directors of Nalco LLC, the members
of Nalco LLC have the right to receive dividends from and the proceeds from
any sale of Common Stock in accordance with their membership interests in
Nalco LLC.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
----------------------------------------
Nalco LLC Limited Liability Company Operating Agreement
Pursuant to the Nalco LLC Limited Liability Company Operating
Agreement (the "LLC Agreement"), the Sponsors have the ability to influence
the management policies and control of the Issuer. The LLC Agreement (1)
provides for the governance of certain of Nalco LLC's subsidiaries,
including the Issuer, (2) provides specific rights to the holders of Nalco
LLC's limited liability company interests with respect to those interests,
such as tag-along and drag-along rights and (3) provides specific rights
with respect to certain sales of capital stock of certain of Nalco LLC's
subsidiaries, including the Issuer, such as transfer restrictions and
registration rights.
All significant decisions involving Nalco LLC and any voting or other
rights to be exercised in respect of its direct or indirect subsidiaries
require the approval of the board of directors of Nalco LLC or the Sponsor
members of Nalco LLC, including the approval of directors appointed by at
least two of the three Sponsors (or two of the three Sponsors as members).
The board of directors of Nalco LLC currently consists of eight members,
including two directors designated by each of the Sponsors. If either
Blackstone or Apollo sells more than two-thirds of its current equity stake
in Nalco LLC or if Goldman sells more than 51.5% of its current equity
stake in Nalco LLC, that Sponsor will lose one of its two director
designation rights. If either Blackstone or Apollo sells more than 90% of
its current equity stake in Nalco LLC or if Goldman sells more than 85.5%
of its current equity stake in Nalco LLC, that Sponsor will lose its
remaining director designation right but will retain appropriate
information rights and the right to designate an observer to attend Nalco
LLC board meetings. If one Sponsor has the right to appoint only one
director to the Nalco LLC board but the other two Sponsors continue to have
the right to appoint two directors, then all Nalco LLC board decisions will
require the approval of the designees of the two Sponsors that are still
entitled to appoint two directors. If at least two of the Sponsors no
longer have the right to appoint two directors to the Nalco LLC board, then
the rule requiring approval of board designees of at least two of the
Sponsors will no longer be operative. Actions by members of Nalco LLC will
similarly require approval of two of the three Sponsors in those
circumstances in which the relative equity ownership of Nalco LLC would
require that actions be taken by director appointees of two of the three
Sponsors.
References to, and descriptions of, the LLC Agreement as set forth in
this Item 6 are qualified in their entirety by reference to the Nalco LLC
Limited Liability Company Operating Agreement filed as Exhibit 10.25 to the
Issuer's Registration Statement on Form S-1, filed with the United States
Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act"), on August 26, 2004, which
is incorporated as an exhibit to this Schedule 13D.
Registration Rights Agreement
On November 16, 2004, the Issuer entered into a registration rights
agreement (the "Registration Rights Agreement") with Nalco LLC and its
members, including the Purchasers. Under the Registration Rights Agreement,
Nalco LLC or the Sponsors, as members of Nalco LLC, have the right to
request that the Issuer register the sale of shares of Common Stock held by
Nalco LLC, including shares issuable upon exercise of the warrant held by
Nalco LLC, and may require the Issuer to make available shelf registration
statements permitting sales of shares into the market from time to time
over an extended period. In addition, Nalco LLC or the Sponsors have the
ability to exercise certain piggyback registration rights in connection
with registered offerings requested by the members of Nalco LLC or
initiated by the Issuer.
References to, and descriptions of, the Registration Rights Agreement
as set forth in this Item 6 are qualified in their entirety by reference to
the Registration Rights Agreement filed as Exhibit 10.1 to the Issuer's
Report on Form 8-K, filed with the Commission under the Securities Act on
November 18, 2004, which is incorporated as an exhibit to this Schedule
13D.
Stockholders Agreement
The Issuer, Nalco LLC and certain members of Nalco LLC controlled by
the Sponsors entered into a stockholders agreement (the "Stockholders
Agreement") on November 16, 2004. The Stockholders Agreement provides that
the Issuer's board of directors will initially consist of eight members,
which, subject to the provisions described below, may be increased to not
more than ten members. Nalco LLC is entitled to designate a nominee for
election to each available seat on the board of directors; provided that
the eighth, ninth and tenth such nominees, who will be nominated by the
board of directors, shall qualify as independent directors under the rules
of the New York Stock Exchange, on which the shares of the Common Stock are
traded. The board of directors may be further expanded in accordance with
applicable law or New York Stock Exchange rules. The Stockholders Agreement
provides that six of Nalco LLC's nominees to the board of directors (other
than independent directors) will be split evenly among the Sponsors
(subject to adjustment based on their holdings in Nalco LLC) with the
seventh to be nominated by agreement of the Sponsors. Nalco LLC and the
Sponsors have agreed to vote any shares of Common Stock held by them to
elect Nalco LLC's director nominees to the Issuer's board of directors, and
to approve increases to the size of the Issuer's board of directors as
necessary to comply with the rules of the New York Stock Exchange and
applicable law.
If the Issuer is required by New York Stock Exchange regulations to
have a majority of independent directors on its Board, upon the occurrence
of any transaction whereby Nalco LLC ceases to own more than 50% of the
Issuer's outstanding Common Stock, Nalco LLC will cause three directors
nominated by Nalco LLC (other than independent directors) to resign from
the board of directors. The board of directors will simultaneously be
reduced or increased, as the case may be, in size to nine directors. The
vacancies thus created will be filled by independent directors appointed by
the nominating and corporate governance committee of the board of
directors. Following such a transaction, for so long as Nalco LLC continues
to hold more than 35% of the outstanding Common Stock it shall retain the
right to designate four nominees for election to the Issuer's board of
directors, subject to compliance with the New York Stock Exchange
regulations, three of which shall be allocated evenly among the Sponsors
with the fourth, which may be the Issuer's Chief Executive Officer, to be
nominated by agreement of the Sponsors. If Nalco LLC continues to hold (1)
less than 35% but at least 25% of the outstanding Common Stock, it will
retain the right to designate three director nominees; (2) less than 25%
but at least 15% of the outstanding Common Stock, it will retain the right
to designate two director nominees; and (3) less than 15% but at least 10%
of the outstanding Common Stock, it will retain the right to designate one
director nominee, and in each case, Nalco LLC will cause such number of
directors nominated by Nalco LLC to resign as would be necessary to make
the number of remaining directors correspond with Nalco LLC's designation
rights unless the Issuer's Board decides that any such directors should
continue to serve on the Issuer's Board. Once Nalco LLC holds less than 10%
of the outstanding Common Stock, it shall have no right to designate
directors. Pursuant to the Stockholders Agreement, any Sponsor that does
not have the right, through Nalco LLC, to nominate a director to the board
of directors, shall have the right to nominate a non-voting observer to
attend board meetings.
To the extent permitted by applicable law, each Sponsor will have the
right to include at least one director specified by such Sponsor on each of
the Issuer's Board committees. If a director specified by a Sponsor is not
eligible to be a member of a Board committee, such Sponsor will have the
right, to the extent permitted by applicable law, to nominate an observer
to attend meetings of such committee.
References to, and descriptions of, the Stockholders Agreement as set
forth in this Item 6 are qualified in their entirety by reference to the
Stockholders Agreement filed as Exhibit 10.3 to the Issuer's Report on Form
8-K, filed with the Commission under the Securities Act on November 18,
2004, which is incorporated as an exhibit to this Schedule 13D.
Lock-Up Agreements
In connection with the consummation of the IPO, on November 10, 2004,
each of the Purchasers entered into a lock-up agreement (the "Lock-Up
Agreements") with the underwriters whereby such person agreed, subject to
certain exceptions, not to dispose of or hedge any of their Common Stock or
securities convertible into or exchangeable for shares of Common Stock
during the period that is 180 days from November 10, 2004, subject to an
extension of up to 18 additional days under certain circumstances, except
with the prior written consent of Goldman, Sachs & Co., with certain
exceptions.
References to, and descriptions of, the Lock-Up Agreements as set
forth in this Item 6 are qualified in their entirety by reference to the
Form of Lock-Up Agreement filed as Annex III(a) of Exhibit 1.1 to the
Issuer's Registration Statement on Form S-1, filed with the Commission
under the Securities Act on October 25, 2004, which is incorporated as an
exhibit to this Schedule 13D.
Underwriting Agreement.
On November 10, 2004, in connection with the IPO, Goldman Sachs, as
one of the representatives of the several underwriters (the
"Underwriters"), together with the several underwriters, entered into an
Underwriting Agreement with the Company, which provides for the purchase by
the several underwriters of 44,444,444 shares of Common Stock and an
additional 6,666,667 shares to be issued and sold upon exercise of an
over-allotment option, which option was exercised on November 12, 2004. The
initial public offering price in the IPO was $15.00 per share. Under the
Underwriting Agreement, the Underwriters purchased the shares net of an
underwriting discount of $0.825 per share. The Underwriting Agreement
contains standard terms and conditions for a public offering including
customary representations and warranties and indemnity provisions.
References to, and descriptions of, the Underwriting Agreement as set
forth in this Item 6 are qualified in their entirety by reference to the
Form of Underwriting Agreement filed as Exhibit 1.1 to the Issuer's
Registration Statement on Form S-1, filed with the Commission under the
Securities Act on October 25, 2004 which is incorporated as an exhibit to
this Schedule 13D.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
--------------------------------
Exhibit 1 Joint Filing Agreement, dated as of November 24, 2004
Exhibit 2 Nalco LLC Limited Liability Company Operating Agreement,
dated May 17, 2004 (incorporated herein by reference to
Exhibit 10.25 to the Nalco Holding Company Registration
Statement on Form S-1 filed with the Securities and Exchange
Commission on August 26, 2004 (file number 333-118583)).
Exhibit 3 Stockholders Agreement, dated November 16, 2004, among Nalco
Holding Company and Nalco LLC and the other parties named
therein (incorporated herein by reference to Exhibit 10.3 to
the Nalco Holding Company Report on Form 8-K filed with the
Securities and Exchange Commission on November 18, 2004
(file number 001-32342)).
Exhibit 4 Registration Rights Agreement, dated November 16, 2004,
among Nalco Holding Company, Nalco LLC and the other parties
named therein (incorporated herein by reference to Exhibit
10.1 to the Nalco Holding Company Report on Form 8-K filed
with the Securities and Exchange Commission on November 18,
2004 (file number 001-32342)).
Exhibit 5 Form of Lock-Up Agreement among Nalco Holding Company, Nalco
LLC and the other parties named therein (incorporated herein
by reference to Annex III(a) of Exhibit 1.1 to the Nalco
Holding Company Registration Statement on Form S-1 filed
with the Securities and Exchange Commission on October 25,
2004 (file number 333-118583)).
Exhibit 6 Underwriting Agreement (incorporated herein by reference to
Exhibit 1.1 to the Nalco Holding Company Registration
Statement on Form S-1 filed with the Securities and Exchange
Commission on October 25, 2004 (file number 333-118583))
Exhibit 7 Power of Attorney, dated as of December 12, 2003, relating
to The Goldman Sachs Group, Inc.
Exhibit 8 Power of Attorney, dated as of November 19, 2003, relating
to Goldman, Sachs & Co.
Exhibit 9 Power of Attorney, dated as of August 19, 2004, relating to
GS Advisors 2000, L.L.C.
Exhibit 10 Power of Attorney, dated as of August 5, 2004, relating to
Goldman, Sachs & Co. oHG.
Exhibit 11 Power of Attorney, dated as of August 19, 2004, relating to
Goldman, Sachs Management GP GmbH.
Exhibit 12 Power of Attorney, dated as of August 19, 2004, relating to
GS Employee Funds 2000 GP, L.L.C.
Exhibit 13 Power of Attorney, dated as of August 19, 2004, relating to
GS Capital Partners 2000, L.P.
Exhibit 14 Power of Attorney, dated as of August 19, 2004, relating to
GS Capital Partners 2000 Offshore, L.P.
Exhibit 15 Power of Attorney, dated as of August 19, 2004, relating to
GS Capital Partners 2000 GmbH & Co. Beteiligungs KG.
Exhibit 16 Power of Attorney, dated as of August 19, 2004, relating to
GS Capital Partners 2000 Employee Fund, L.P.
Exhibit 17 Power of Attorney, dated as of October 21, 2004, relating to
Goldman Sachs Direct Investment Fund 2000, L.P.
Exhibit 18 Power of Attorney, dated as of June 24, 2004, relating to NH
Acquisition LLC
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
November 24, 2004
THE GOLDMAN SACHS GROUP, INC.
By: /s/ Ted Chang
-------------------------------
Name: Ted Chang
Title: Attorney-in-fact
GOLDMAN, SACHS & CO.
By: /s/ Ted Chang
-------------------------------
Name: Ted Chang
Title: Attorney-in-fact
GS ADVISORS 2000, L.L.C.
By: /s/ Ted Chang
-------------------------------
Name: Ted Chang
Title: Attorney-in-fact
GOLDMAN, SACHS & CO. OHG
By: /s/ Ted Chang
-------------------------------
Name: Ted Chang
Title: Attorney-in-fact
GOLDMAN, SACHS MANAGEMENT GP GMBH
By: /s/ Ted Chang
-------------------------------
Name: Ted Chang
Title: Attorney-in-fact
GS EMPLOYEE FUNDS 2000 GP, L.L.C.
By: /s/ Ted Chang
-------------------------------
Name: Ted Chang
Title: Attorney-in-fact
GS CAPITAL PARTNERS 2000, L.P.
By: /s/ Ted Chang
-------------------------------
Name: Ted Chang
Title: Attorney-in-fact
GS CAPITAL PARTNERS 2000 OFFSHORE,
L.P.
By: /s/ Ted Chang
-------------------------------
Name: Ted Chang
Title: Attorney-in-fact
GS CAPITAL PARTNERS 2000 GMBH &
CO. BETEILIGUNGS KG
By: /s/ Ted Chang
-------------------------------
Name: Ted Chang
Title: Attorney-in-fact
GS CAPITAL PARTNERS 2000 EMPLOYEE
FUND, L.P.
By: /s/ Ted Chang
-------------------------------
Name: Ted Chang
Title: Attorney-in-fact
GOLDMAN SACHS DIRECT INVESTMENT
FUND 2000, L.P.
By: /s/ Ted Chang
-------------------------------
Name: Ted Chang
Title: Attorney-in-fact
NH ACQUISITION LLC
By: /s/ Ted Chang
-------------------------------
Name: Ted Chang
Title: Attorney-in-fact
SCHEDULE I
----------
The name of each director of The Goldman Sachs Group, Inc. is set
forth below.
The business address of each person listed below is c/o Goldman, Sachs
& Co., 85 Broad Street, New York, NY 10004.
Each person is a citizen of the United States of America except for
Lord Browne of Madingley, who is a citizen of the United Kingdom and Claes
Dahlback, who is a citizen of Sweden. The present principal occupation or
employment of each of the listed persons is set forth below.
Name Present Principal Occupation
Henry M. Paulson, Jr. Chairman and Chief Executive Officer of The
Goldman Sachs Group, Inc.
Lloyd C. Blankfein President and Chief Operating Officer of The
Goldman Sachs Group, Inc.
Lord Browne of Madingley Group Chief Executive of BP plc
John H. Bryan Retired Chairman and Chief Executive Officer
of Sara Lee Corporation
Claes Dahlback Nonexecutive Chairman of Investor AB
William W. George Retired Chairman and Chief Executive Officer
of Medtronic, Inc.
James A. Johnson Vice Chairman of Perseus, L.L.C.
Lois D. Vice Chairman of Colgate-Palmolive Company
Juliber
Edward M. Liddy Chairman of the Board, President and Chief
Executive Officer of The Allstate Corporation
Ruth J. Simmons President of Brown University
SCHEDULE II-A-i
---------------
The name, position and present principal occupation of each executive
officer of GS Advisors 2000, L.L.C., the sole general partner of GS Capital
Partners 2000, L.P. and GS Capital Partners 2000 Offshore, L.P. and the
sole manager of NH Acquisition LLC, are set forth below.
The business address for all the executive officers listed below is
c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004, except
as follows: The business address of Richard S. Sharp, Hughes B. Lepic, and
Ulrika Werdelin is Peterborough Court, 133 Fleet Street, London EC4A 2BB,
England. The business address of Mary Nee is Cheung Kong Center, 68th
Floor, 2 Queens Road, Central, Hong Kong. The business address of Joseph P.
DiSabato is 555 California Street, San Francisco, CA 94104. The business
address of Muneer A. Satter is 4900 Sears Tower, Chicago, IL 60606.
All executive officers listed below are United States citizens, except
as follows: Richard S. Sharp is a citizen of the United Kingdom. Sanjeev K.
Mehra is a citizen of India. Hughes B. Lepic is a citizen of France. Ulrika
Werdelin is a citizen of Sweden.
Name Position Present Principal Occupation
---- -------- ----------------------------
Richard A. Friedman President Managing Director of Goldman, Sachs & Co.
Joseph H. Gleberman Vice President Managing Director of Goldman, Sachs & Co
Terence M. O'Toole Vice President Managing Director of Goldman, Sachs & Co.
Henry Cornell Vice President Managing Director of Goldman, Sachs & Co.
Richard S. Sharp Vice President Managing Director of Goldman Sachs
International
Esta E. Stecher Assistant Secretary Managing Director of Goldman, Sachs & Co.
Sanjeev K. Mehra Vice President Managing Director of Goldman, Sachs & Co.
Muneer A. Satter Vice President Managing Director of Goldman, Sachs & Co.
Steven M. Bunson Assistant Secretary Managing Director of Goldman, Sachs & Co.
Elizabeth C. Fascitelli Treasurer Managing Director of Goldman, Sachs & Co.
David M. Weil Assistant Treasurer Managing Director of Goldman, Sachs & Co.
David J. Greenwald Assistant Secretary Managing Director of Goldman, Sachs & Co.
Hughes B. Lepic Vice President Managing Director of Goldman Sachs
International
Russell E. Makowsky Assistant Secretary Managing Director of Goldman, Sachs & Co.
Sarah G. Smith Assistant Treasurer Managing Director of Goldman, Sachs & Co.
Gerald J. Cardinale Vice President Managing Director of Goldman, Sachs & Co.
Stephen S. Trevor Vice President Managing Director of Goldman Sachs
International
Joseph P. DiSabato Vice President Managing Director of Goldman, Sachs & Co.
Robert R. Gheewalla Vice President Managing Director of Goldman, Sachs & Co.
Ben I. Adler Vice President Managing Director of Goldman, Sachs & Co.
Melina E. Higgins Vice President Managing Director of Goldman, Sachs & Co.
Adrian M. Jones Vice President Managing Director of Goldman, Sachs & Co.
John E. Bowman Vice President Vice President of Goldman, Sachs & Co.
Katherine B. Enquist Vice President/ Managing Director of Goldman, Sachs & Co.
Secretary
Beverly L. O'Toole Assistant Secretary Vice President of Goldman, Sachs & Co.
Mitchell S. Weiss Vice President Vice President of Goldman, Sachs & Co.
Matthew E. Tropp Assistant Secretary Associate General Counsel of Goldman, Sachs &
Co.
Mary Nee Vice President Executive Director of Goldman Sachs (Asia)
L.L.C.
Ulrika Werdelin Vice President Executive Director of Goldman Sachs
International
SCHEDULE II-A-ii
----------------
The name and principal occupation of each member of the Principal
Investment Area Investment Committee of Goldman, Sachs & Co., which
exercises the authority of Goldman, Sachs & Co. in managing GS Advisors
2000, L.L.C., 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. and Goldman Sachs Direct
Investment Fund 2000, L.P., are set forth below.
The business address for each member listed below is c/o Goldman,
Sachs & Co., 85 Broad Street, New York, New York 10004, except as follows:
The business address of Richard S. Sharp, Robert R. Gheewalla, and Hughes
B. Lepic is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England.
The business address of Muneer A. Satter is 4900 Sears Tower, Chicago, IL
60606.
All members listed below are United States citizens, except as
follows: Richard S. Sharp is a citizen of the United Kingdom, Sanjeev K.
Mehra is a citizen of India and Hughes B. Lepic is a citizen of France.
Name Present Principal Occupation
---- ----------------------------
Peter M. Sacerdote Advisory Director of Goldman, Sachs & Co.
Richard A. Friedman Managing Director of Goldman, Sachs & Co.
Joseph H. Gleberman Managing Director of Goldman, Sachs & Co.
Terence M. O'Toole Managing Director of Goldman, Sachs & Co.
Henry Cornell Managing Director of Goldman, Sachs & Co.
Richard S. Sharp Managing Director of Goldman Sachs International
Sanjeev K. Mehra Managing Director of Goldman, Sachs & Co.
Muneer A. Satter Managing Director of Goldman, Sachs & Co.
Peter G. Sachs Senior Director of The Goldman Sachs Group, Inc.
Scott Kapnick Managing Director of Goldman, Sachs & Co.
Melina E. Higgins Managing Director of Goldman, Sachs & Co.
Ben I. Adler Managing Director of Goldman, Sachs & Co.
David M. Weil Managing Director of Goldman, Sachs & Co.
Stephen S. Trevor Managing Director of Goldman, Sachs International
Robert R. Gheewalla Managing Director of Goldman, Sachs & Co.
Hughes B. Lepic Managing Director of Goldman, Sachs International
SCHEDULE II-B-i
---------------
The name, position and present principal occupation of each executive
officer and director of Goldman, Sachs & Co. Finanz GmbH which is the sole
managing general partner of Goldman, Sachs & Co. oHG are set forth below.
The business address for each of the executive officers and directors
listed below is MesseTurm, 60308 Frankfurt am Main, Germany.
The executive officers and directors listed below are citizens of
Germany except Wayne L. Moore, who is a citizen of the United States.
Name Position Present Principal Occupation
---- -------- ----------------------------
Andreas Koernlein Managing Director Managing Director of Goldman, Sachs & Co. oHG
Wayne L. Moore Managing Director Managing Director of Goldman, Sachs & Co. oHG
Alexander C. Dibelius Managing Director Managing Director of Goldman, Sachs & Co. oHG
Peter Hollmann Managing Director Managing Director of Goldman, Sachs & Co. oHG
SCHEDULE II-B-ii
----------------
The name, position and present principal occupation of each executive
officer of GS Management GP GmbH, the sole managing partner of GS Capital
Partners 2000 GmbH & Co. Beteiligungs KG, are set forth below.
The business address for all the executive officers listed below is
c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004, except
for Richard S. Sharp whose business address is Peterborough Court, 133
Fleet Street, London EC4A 2BB, England.
All executive officers listed below are United States citizens, except
for Richard S. Sharp, who is a citizen of the United Kingdom.
Name Position Present Principal Occupation
---- -------- ----------------------------
Richard A. Friedman Managing Director Managing Director of Goldman, Sachs &
Co.
Joseph H. Gleberman Managing Director Managing Director of Goldman, Sachs &
Co.
Terence M. O'Toole Managing Director Managing Director of Goldman, Sachs &
Co.
Richard S. Sharp Managing Director Managing Director of Goldman Sachs
International
Henry Cornell Managing Director Managing Director of Goldman, Sachs &
Co.
David A. Viniar Managing Director Managing Director of Goldman, Sachs &
Co.
Esta E. Stecher Managing Director Managing Director of Goldman, Sachs &
Co.
Elizabeth C. Fascitelli Managing Director Managing Director of Goldman, Sachs &
Co.
David J. Greenwald Managing Director Managing Director of Goldman, Sachs
& Co.
Sarah G. Smith Managing Director Managing Director of Goldman, Sachs &
Co.
Katherine B. Enquist Managing Director Managing Director of Goldman, Sachs &
Co.
John E. Bowman Managing Director Vice President of Goldman, Sachs & Co.
SCHEDULE II-C
-------------
The name, position and present principal occupation of each executive
officer of GS Employee Funds 2000 GP, L.L.C., the sole general partner of
GS Capital Partners 2000 Employee Fund, L.P. and Goldman Sachs Direct
Investment Fund 2000, L.P., are set forth below.
The business address for all the executive officers listed below is
c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004, except
as follows: The business address of Richard S. Sharp, Hughes B. Lepic,
Robert R. Gheewalla, and Ulrika Werdelin is 133 Fleet Street, London EC4A
2BB, England. The business address of Mary Nee is Cheung Kong Center, 68th
Floor, 2 Queens Road, Central, Hong Kong. The business address of Joseph P.
DiSabato is 555 California Street San Francisco, CA 94104. The business
address of Muneer A. Satter is 4900 Sears Tower, Chicago, IL 60606.
All executive officers listed below are United States citizens, except
as follows: Richard S. Sharp is a citizen of the United Kingdom. Sanjeev K.
Mehra is a citizen of India. Hughes B. Lepic is a citizen of France. Ulrika
Werdelin is a citizen of Sweden.
Name Position Present Principal Occupation
---- -------- ----------------------------
Richard A. Friedman President Managing Director of Goldman, Sachs & Co.
Joseph H. Gleberman Vice President Managing Director of Goldman, Sachs & Co.
Terence M. O'Toole Vice President Managing Director of Goldman, Sachs & Co.
Henry Cornell Vice President Managing Director of Goldman, Sachs & Co.
Richard S. Sharp Vice President Managing Director of Goldman Sachs
International
Esta E. Stecher Vice President/ Managing Director of Goldman, Sachs & Co.
Assistant Secretary
Sanjeev K. Mehra Vice President/ Managing Director of Goldman, Sachs & Co.
Treasurer
Muneer A. Satter Vice President Managing Director of Goldman, Sachs & Co.
Steven M. Bunson Assistant Secretary Managing Director of Goldman, Sachs & Co.
Elizabeth C. Fascitelli Vice President Managing Director of Goldman, Sachs & Co.
David M. Weil Assistant Treasurer Managing Director of Goldman, Sachs & Co.
David J. Greenwald Vice President/ Managing Director of Goldman, Sachs & Co.
Assistant Secretary
Hughes B. Lepic Vice President Managing Director of Goldman Sachs
International
Russell E. Makowsky Assistant Secretary Managing Director of Goldman, Sachs & Co.
Sarah G. Smith Assistant Treasurer Managing Director of Goldman, Sachs & Co.
Gerald J. Cardinale Vice President Managing Director of Goldman, Sachs & Co.
Stephen S. Trevor Vice President Managing Director of Goldman Sachs
International
Joseph P. DiSabato Vice President Managing Director of Goldman, Sachs & Co.
Robert R. Gheewalla Vice President Managing Director of Goldman, Sachs & Co.
Ben I. Adler Vice President Managing Director of Goldman, Sachs & Co.
Melina E. Higgins Vice President Managing Director of Goldman, Sachs & Co.
Adrian M. Jones Vice President Managing Director of Goldman, Sachs & Co.
John E. Bowman Vice President Vice President of Goldman, Sachs & Co.
Katherine B. Enquist Vice President/ Managing Director of Goldman, Sachs & Co.
Secretary
Beverly L. O'Toole Assistant Secretary Vice President of Goldman, Sachs & Co.
Raymond G. Matera Vice President Vice President of Goldman, Sachs & Co.
Mitchell S. Weiss Vice President Vice President of Goldman, Sachs & Co.
Mary Nee Vice President Executive Director of Goldman Sachs (Asia)
L.L.C.
Matthew E. Tropp Assistant Secretary Associate General Counsel of Goldman,
Sachs, & Co.
Richard J. Stingi Vice President Vice President of Goldman, Sachs & Co.
Ulrika Werdelin Vice President Executive Director of Goldman Sachs
International
SCHEDULE III
------------
On April 6, 2000, in connection with an industry-wide investigation by
the Securities and Exchange Commission (the "SEC") relating to the pricing
of government securities in advance refunding transactions, Goldman, Sachs
& Co. ("Goldman Sachs") joined in a global settlement resolving the SEC
investigation as well as a related qui tam lawsuit purportedly brought on
behalf of the United States entitled United States ex rel. Lissack v.
Goldman, Sachs & Co., et al., 95 Civ. 1363 (S.D.N.Y.)(BSJ). Pursuant to the
settlement, without admitting or denying the findings, Goldman Sachs
consented to the issuance of an SEC administrative order (SEA Rel. No.
42640) which, among other things, found that Goldman Sachs had violated
Sections 17(a)(2) and (3) of the Securities Act of 1933, as amended (the
"Securities Act"), in connection with such pricing of government
securities, required Goldman Sachs to cease and desist from violating such
provisions, and ordered Goldman Sachs to make payments totaling
approximately $5.1 Million to the U.S. Treasury and $104,000 to two
municipalities. Under the global settlement, the qui tam lawsuit was
dismissed with prejudice, and the Internal Revenue Service agreed not to
challenge the tax-free nature of the refundings by virtue of the pricing of
such securities.
In November 2002, the SEC, the National Association of Securities
Dealers ("NASD") and the New York Stock Exchange, Inc. ("NYSE") alleged
that five broker dealers, including Goldman Sachs, violated Section 17(a)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and Rule 17a-4 thereunder, NYSE Rules 440 and 342 and NASD Rules 3010 and
3110 by allegedly failing to preserve electronic mail communications for
three years and/or to preserve electronic mail communications for the first
two years in an accessible place, and by allegedly having inadequate
supervisory systems and procedures in relation to the retention of
electronic mail communications. Without admitting or denying the
allegations, the five broker dealers, including Goldman Sachs, consented to
censure by the SEC, NASD and NYSE and to the imposition of a
cease-and-desist order by the SEC and Goldman Sachs paid a total fine of
$1,650,000 ($550,000 each to the SEC, NASD and NYSE). Goldman Sachs also
undertook to review its procedures regarding the preservation of electronic
mail communications for compliance with the federal securities laws and
regulations and the rules of the NASD and NYSE, and to confirm within a
specified period of time that it has established systems and procedures
reasonably designed to achieve compliance with those laws, regulations and
rules.
On April 28, 2003, without admitting or denying liability, ten
investment banking firms including Goldman Sachs, entered into global
settlements with the SEC, the NYSE, the NASD and certain states to resolve
the investigations relating to equity research analyst conflicts of
interest. Goldman Sachs was charged with violating NYSE Rules 342, 401, 472
and 475, and NASD Conduct Rules 2110, 2210 and 3010. Goldman Sachs also
agreed to a censure by the NYSE and the NASD and to pay a total of
$110,000,000 and to adopt a set of industry-wide reforms of its research
and investment banking businesses and to adopt certain restrictions on the
allocations of "hot" IPO shares. The terms of the global settlement were
entered in an order by a federal court in the Southern District of New York
on October 31, 2003 (Civil Action Number 03CV2944).
On September 4, 2003, Goldman Sachs and the SEC settled administrative
proceedings relating to certain trading in U.S. Treasury securities by
Goldman Sachs on the morning of October 31, 2001. The Staff of the SEC
alleged that Goldman Sachs violated (i) Section 15(c)(1) and Rule 15c1-2 of
the Exchange Act as a result of certain trading in U.S. Treasury bonds over
an eight minute period on October 31, 2001; and (ii) Section 15(f) of the
Exchange Act by failing to maintain policies and procedures specifically
addressed to the possible misuse of non-public information obtained from
outside consultants. Under the Offer of Settlement submitted by Goldman
Sachs and accepted by the SEC, without admitting or denying the SEC's
allegations, Goldman Sachs consented to the entry of an Order that, among
other things, (i) censured Goldman Sachs; (ii) directed Goldman Sachs to
cease and desist from committing or causing any violations of Section
15(c)(1)(A) & (C) and 15(f) and Rule 15c1-2 of the Exchange Act; (iii)
ordered Goldman Sachs to pay disgorgement and prejudgment interest in the
amount of $1,742,642, and a civil monetary penalty of $5 million; and (iv)
directed Goldman Sachs to conduct a review its policies and procedures and
to adopt, implement and maintain policies and procedures consistent with
the Order and that review. Goldman Sachs also undertook to pay $2,562,740
in disgorgement and interest relating to certain trading in U.S. Treasury
bond futures during the same eight minute period.
On July 1, 2004, Goldman Sachs and the SEC settled administrative
proceedings relating to communications from Goldman Sachs sales traders on
its Asian Shares Sales Desk to certain institutional customers and news
media concerning four international public securities offerings during the
period between October 1999 and March 2000. The SEC alleged (i) that
certain of these communications by Goldman Sachs employees were made after
the registration statements pertaining to those offerings were filed, but
not yet declared effective by the SEC, in violation of Section 5(b) of the
Securities Act and (ii) that certain comments to the news media by Goldman
Sachs with respect to one of the offerings constituted an offer to sell
securities in violation of Section 5(c) of the Securities Act. The SEC also
alleged that Goldman Sachs failed to adequately supervise the Asian Shares
Sales Desk traders, as required by Section 15(b)(4)(E) of the Exchange Act.
Under the Offer of Settlement submitted by Goldman Sachs and accepted by
the SEC, without admitting or denying the SEC's allegations, Goldman Sachs
consented to the entry of an Order that, among other things, directed
Goldman Sachs to cease and desist from committing or causing any violations
of Sections 5(b) and 5(c) of the Securities Act., and ordered Goldman Sachs
to pay a civil monetary penalty of $2 million.