Noncompetition Agreement

EXHIBIT 10.4 NONCOMPETITION AGREEMENT This NONCOMPETITION AGREEMENT (the "AGREEMENT") dated as of November 4,2003 between SUEZ, a societe anonyme organized under the laws of the Republic ofFrance ("SUEZ"), and Nalco Holdings LLC, formerly known as Blackstone/NeptuneAcquisition Company L.L.C., a Delaware limited liability company ("BUYER"). WHEREAS, Leo Holding Company, a Delaware corporation and indirectwholly-owned subsidiary of Suez ("LEO"), Nalco International S.A.S., a societepar actions simplifiee organized under the laws of the Republic of France andindirect wholly-owned subsidiary of Suez ("NIS" and, together with LEO, the"SELLERS"), and Buyer are parties to that certain Stock Purchase Agreement datedas of August 31, 2003 (as amended, the "STOCK PURCHASE AGREEMENT"), whichprovides for, among other things, the acquisition by Buyer, and the sale by theSellers, of all of the outstanding shares of capital stock of Ondeo NalcoCompany, a Delaware corporation, and certain subsidiaries of NIS; NOW, THEREFORE, in consideration of the agreements and covenantscontained herein and in the Stock Purchase Agreement, the parties hereby agreeas follows: ARTICLE 1 DEFINITIONSSection 1.01. Certain Defined Terms. Capitalized terms not otherwise definedherein shall have the respective meanings set forth in the Stock PurchaseAgreement and, as used in this Agreement, the following terms shall have thefollowing meanings: "CHEMICAL WATER AND WASTEWATER TREATMENT" means the treatment of waterand wastewater primarily using chemicals and related services and equipmentnecessary for the application of such chemicals. "EQUIPMENT WATER AND WASTEWATER TREATMENT" means the treatment of waterand wastewater primarily using equipment for filtration or deionization or otherequipment. "NALCO COMPETING BUSINESS" means the design, development, production,marketing or sale of (i) chemicals, services or equipment for the treatment ofwater and wastewater, (ii) chemicals and related services and equipment forproduction processes, including, without limitation, pulp and paper production,oil production and handling, refining and hydrocarbon chemical production,mining, metal forming and finishing, colloidal silicas, cosmetics ingredientsproduction, fuel treatment, cleaning and sanitizing, odor control, sugar production, marine applications, and synthetic fuel reagents, (iii) chemicalfeed, storage and handling equipment, (iv) chemical management services, (v)Water and Wastewater Treatment Outsourcing Projects in the United States ofAmerica and Canada, and (vi) water-borne and air-borne pathogen environmentalservices, in each case, as conducted by the Companies and the Subsidiaries onthe date hereof. "PERMITTED BUSINESS" means (i) the design, building, production,installation or sale of equipment to be used in Equipment Water and WastewaterTreatment, (ii) Water and Wastewater Treatment Outsourcing Projects, (iii) thesale or provision of chemicals and equipment necessary for the application ofsuch chemicals as part of a Water and Wastewater Treatment Outsourcing Projectand (iv) Chemical Water and Wastewater Treatment for municipal customers. "WATER AND WASTEWATER TREATMENT OUTSOURCING PROJECTS" means any of thefollowing projects for treating water or wastewater: (i) projects to acquire,own and operate equipment used in Equipment Water and Wastewater Treatment; (ii)projects to build, own and operate equipment used in Equipment Water andWastewater Treatment; (iii) projects to operate and maintain equipment used inEquipment Water and Wastewater Treatment; and (iv) projects to manage acustomer's use and production of water and wastewater. ARTICLE 2 NONCOMPETITION AND NON-SOLICITATION COVENANTS Section 2.01. Noncompetition; Non-Solicitation. (a) Suez agrees that untilthe third anniversary of the Closing Date, neither it nor any of its controlledAffiliates shall engage, either directly or indirectly, either alone or inconjunction with any other Person (including by having an investment or otherfinancial interest), in any Nalco Competing Business anywhere in the world;provided that nothing herein shall prohibit Suez or any of its Affiliates from: (i) engaging, either directly or indirectly, either alone or in conjunction with any other Person (including by having an investment or other financial interest) in any Permitted Business; (ii) acquiring any Person having, at the time of such acquisition, not more than 20% of its sales (based on its latest annual audited financial statements) attributable to Nalco Competing Businesses (other than any Permitted Business); (iii) acquiring and owning not more than a 5% interest in any Person the securities of which are publicly traded; or (iv) acquiring any shares or other ownership interests of Ondeo Nalco India Limited (or any successor) pursuant to a judgment, order or 2 decree of any court, tribunal, arbitrator, agency, official or other instrumentality of the Government of India. (b) It is understood and agreed that this Agreement shall prohibit Suez andits controlled Affiliates from using any confidential information of theCompanies and the Subsidiaries (including, without limitation, confidentialcustomer lists, pricing information and business plans of the Companies and theSubsidiaries) for any purpose other than in connection with the transactionscontemplated by the Stock Purchase Agreement and the enforcement of the rightsof the Seller thereunder; provided that fo ...