-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HvLSSHqplNcW5UcNq3y+Xjlw63mrhoDvS2tCAoUd7Uf/pn5qAwba/rBRQbVGPoHy 8gswDj2//S/TYS7qDhypzA== 0001104659-08-069367.txt : 20081110 0001104659-08-069367.hdr.sgml : 20081110 20081110062607 ACCESSION NUMBER: 0001104659-08-069367 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20081110 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Regulation FD Disclosure ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20081110 DATE AS OF CHANGE: 20081110 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ECOLAB INC CENTRAL INDEX KEY: 0000031462 STANDARD INDUSTRIAL CLASSIFICATION: SOAP, DETERGENT, CLEANING PREPARATIONS, PERFUMES, COSMETICS [2840] IRS NUMBER: 410231510 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-09328 FILM NUMBER: 081173343 BUSINESS ADDRESS: STREET 1: ECOLAB CORPORATE CENTER STREET 2: 370 WABASHA STREET NORTH CITY: ST PAUL STATE: MN ZIP: 55102 BUSINESS PHONE: 6512932233 MAIL ADDRESS: STREET 1: ECOLAB CORPORATE CENTER STREET 2: 370 WABASHA STREET NORTH CITY: ST. PAUL STATE: MN ZIP: 55102 FORMER COMPANY: FORMER CONFORMED NAME: ECONOMICS LABORATORY INC DATE OF NAME CHANGE: 19861203 8-K 1 a08-28035_18k.htm 8-K

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported)  November 10, 2008

 

ECOLAB INC.

(Exact name of registrant as specified in its charter)

 

Delaware

 

1-9328

 

41-0231510

(State or other jurisdiction of
incorporation)

 

(Commission File Number)

 

(IRS Employer Identification
No.)

 

 

 

 

 

370 Wabasha Street North, Saint Paul, Minnesota

 

55102

(Address of principal executive offices)

 

(Zip Code)

 

Registrant’s telephone number, including area code:  651-293-2233

 

(Not applicable)

(Former name or former address, if changed since last report.)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

o  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240 240.14a-12)

o  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o  Pre-commencement communications pursuant to Rule 13a-4(c) under the Exchange Act (17 CRF 240.13e-4(c))

 

 

 



 

ITEM 1.01 Entry into a Material Definitive Agreement.

 

On November 10, 2008, Ecolab Inc. (“Ecolab” or the “Company”) and Henkel AG & Co. KGaA (“Henkel,” and together with its subsidiary Henkel Corporation, the “Selling Stockholders”) entered into an amendment (the “Amendment”) to the stockholder’s agreement (the “Stockholder’s Agreement”) that governs Henkel’s equity ownership in the Company. Pursuant to the Amendment, the Company agreed to meet with potential investors in connection with up to two registered public offerings of Ecolab common stock by the Selling Stockholders. Additionally, among other things, the Company agreed to permit sales to certain persons that, together with such person’s affiliates or any group of which such person may be a member, would beneficially own up to five percent of Ecolab’s outstanding stock and waive its right of first refusal in connection with certain transfers by Henkel.

 

Also, on November 10, 2008, the Company entered into a stock purchase agreement (the “Stock Purchase Agreement”) with the Selling Stockholders, pursuant to which the Company agreed to purchase from the Selling Stockholders, following the completion of the first registered public offering, shares of Ecolab common stock for consideration of, at the Company’s discretion, between $300 million and $500 million.  The number of shares that Ecolab will acquire for a given level of consideration will be determined pursuant to a formula set forth in the Stock Purchase Agreement.  The Company may also purchase in excess of $500 million of shares from the Selling Stockholders at the price per share equal to the price to the public, less underwriting discounts and commissions.  The Selling Stockholders will only sell shares in the first offering if at least 43,700,000 shares are sold, and if the offering is not consummated by April 30, 2009, the Company will have no obligation to purchase any shares from the Selling Stockholders in connection with the first offering, but Ecolab will remain obligated to purchase shares of common stock in connection with a potential second offering by the Selling Stockholders, subject to the same terms and conditions as described for the first offering.

 

Ecolab intends to finance the stock purchase with available cash and the proceeds of an issuance of commercial paper under its existing commercial paper program and may also utilize committed bank lines.

 

The foregoing descriptions of the Amendment to the Stockholder’s Agreement and the Stock Purchase Agreement do not purport to be complete and are qualified in their entirety by reference to the full text thereof, copies of which are attached as Exhibits 4.1 and 10.1, respectively, and incorporated herein by reference.

 

ITEM 7.01 Regulation FD Disclosure.

 

On November 10, 2008, the Company issued a News Release announcing that (i) it had filed a registration statement enabling the Selling Stockholders to sell all of their shares of the Company’s common stock, (ii) the Company and Henkel had entered into the Amendment to the Stockholder’s Agreement to facilitate the offering and (iii) the Company had agreed to purchase $300 million of shares from the Selling Stockholders in conjunction with the offering.

 

A copy of the News Release issued by Ecolab in connection with this report under Item 7.01 is attached as Exhibit 99.1.

 

ITEM 8.01 Other Events.

 

Attached hereto as Exhibit 3.1 is a copy of the Company’s By-Laws, as filed with our registration statement relating to the offering of the Company’s common stock by the Selling Stockholders.

 

ITEM 9.01 Financial Statements and Exhibits.

 

(d) Exhibits:

 

Exhibit No.

 

Description

3.1

 

Ecolab Inc. By-Laws, as amended through August 1, 2008.

4.1

 

Amendment No. 1 to Second Amended and Restated Stockholder’s Agreement, dated November 10, 2008, between Henkel AG & Co. KGaA and Ecolab Inc. (incorporated by reference to Exhibit 4.4 of our Registration Statement on Form S-3 filed on November 10, 2008).

10.1

 

Stock Purchase Agreement, dated November 10, 2008, among Henkel AG & Co. KGaA, Henkel Corporation and Ecolab Inc.

 

 

 

The following exhibit is furnished pursuant to Item 7.01 of Form 8-K and should not be deemed to be “filed” under the Securities Exchange Act of 1934.

 

99.1

 

Ecolab News Release dated November 10, 2008.

 

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SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

 

ECOLAB INC.

 

 

 

 

Date: November 10, 2008

By:

/s/ Sarah Z. Erickson

 

 

By: Sarah Z. Erickson

 

 

Its: Assistant Secretary

 

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EXHIBIT INDEX

 

Exhibit No.

 

Description

3.1

 

Ecolab Inc. By-Laws, as amended through August 1, 2008.

4.1

 

Amendment No. 1 to Second Amended and Restated Stockholder’s Agreement, dated November 10, 2008, between Henkel AG & Co. KGaA and Ecolab Inc. (incorporated by reference to Exhibit 4.4 of our Registration Statement on Form S-3 filed on November 10, 2008).

10.1

 

Stock Purchase Agreement, dated November 10, 2008, among Henkel AG & Co. KGaA, Henkel Corporation and Ecolab Inc.

99.1

 

Ecolab News Release dated November 10, 2008.

 

 

4


EX-3.1 2 a08-28035_1ex3d1.htm EX-3.1

Exhibit 3.1

 

BY-LAWS

OF

ECOLAB INC.

(A Delaware corporation)

AS AMENDED THROUGH AUGUST 1, 2008

 

ARTICLE I

 

OFFICES

 

Section 1.  Registered Office.  The registered office of the Corporation in the State of Delaware shall be at 1209 Orange Street, City of Wilmington, County of New Castle, Delaware.  The name of the resident agent in charge thereof shall be The Corporation Trust Company.

 

Section 2.  Other Offices.  The Corporation may also have offices at such other places, within or without the State of Delaware, as the Board of Directors may from time to time determine or the business of the Corporation may require.

 

ARTICLE II

 

MEETINGS OF STOCKHOLDERS

 

Section 1.  Place of Meetings.  Meetings of stockholders may be held at such place, within or without the State of Delaware, as the Board of Directors or the officer calling the same shall designate.

 

Section 2.  Annual Meeting.  An annual meeting of the stockholders of the Corporation for the election of directors by written ballot and for the transaction of such other business as may properly come before the meeting shall be held at such time and on such day of each year as shall be designated by the Board of Directors, the Chairman of the Board, the President or the Secretary.

 

Section 3.  Notice of Stockholder Nominations of Directors.  Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation, except as may be otherwise provided in the Restated Certificate of Incorporation of the Corporation.  Nominations of persons for election to the Board of Directors may be made at any annual meeting of stockholders (a) by or at the direction of the Board of Directors (or any duly authorized Committee thereof) or (b) by any stockholder of the Corporation (i) who is a stockholder of record on the date of the giving of the notice provided for in this Section 3 and on the record date for the

 

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determination of stockholders entitled to vote at such annual meeting and (ii) who complies with the notice procedures set forth in this Section 3.

 

In addition to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation.

 

To be timely, a stockholder’s notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred thirty-five (135) days prior to the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within thirty (30) days before or after such an anniversary date, notice by the stockholder in order to be timely must be so received not later than the close of business on the tenth (10th) day following the day on which such notice of the date of the annual meeting was mailed or public disclosure of the date of the annual meeting was made, whichever first occurs.  In no event shall the public disclosure of an adjournment of an annual meeting commence a new time period for the giving of a stockholder’s notice as described above.

 

To be in proper written form, a stockholder’s notice to the Secretary must set forth as to each person whom the stockholder proposes to nominate for election as a director and as to the stockholder giving the notice and any Stockholder Associated Person (as defined below) (i) the name, age, business address, residence address and record address of such person, (ii) the principal occupation or employment of such person, (iii) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by such person, (iv) any information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder,  (v) the nominee holder for, and number of, shares owned beneficially but not of record by such person, (vi) whether and the extent to which any hedging or other transaction or series of transactions has been entered into by or on behalf of, or any other agreement, arrangement or understanding (including any derivative or short positions, profit interests, options or borrowed or loaned shares) has been made, the effect or intent of which is to mitigate loss to or manage risk or benefit of share price changes for, or to increase or decrease the voting power of, such person with respect to any share of stock of the Corporation, (vii) to the extent known by the stockholder giving the notice, the name and address of any other stockholder supporting the nominee for election or reelection as a director on the date of such stockholder’s notice, (viii) a description of all arrangements or understandings between or among such persons pursuant to which the nomination(s) are to be made by the stockholder and (ix) a representation that such stockholder intends to appear in person or by proxy at the meeting to nominate the persons named in its notice.  Any ownership information shall be supplemented by the stockholder giving the notice not later than ten (10) days after the record date for the meeting as of the record date.  Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if

 

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elected.  The Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such nominee.

 

No person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth in this Section 3.  If the Chairman of the meeting determines that a nomination was not made in accordance with the foregoing procedures, the Chairman shall declare to the meeting that the nomination was defective and such defective nomination shall be disregarded.

 

Notwithstanding anything in the third paragraph of this Section 3 to the contrary, in the event that the number of directors to be elected to the Board of Directors of the Corporation is increased and there is no public disclosure by the Corporation naming all of the nominees for director or specifying the size of the increased Board of Directors at least 100 days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this By-Law shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the 10th day following the day on which such public disclosure is first made by the Corporation.

 

Section 4.  Notice of Stockholder Proposals of Business.  No business may be transacted at an annual meeting of stockholders, other than business that is either (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors (or any duly authorized committee thereof), (b) otherwise properly brought before the annual meeting by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (c) otherwise properly brought before the annual meeting by any stockholder of the Corporation (i) who is a stockholder of record on the date of the giving of the notice provided for in this Section 4 and on the record date for the determination of stockholders entitled to vote at such annual meeting and (ii) who complies with the notice procedures set forth in this Section 4.

 

In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation.

 

To be timely, a stockholder’s notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred thirty-five (135) days prior to the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within thirty (30) days before or after such anniversary date, notice by the stockholder in order to be timely must be so received not later than the close of business on the tenth (10th) day following the day on which such notice of the date of the annual meeting was mailed or public disclosure of the date of the annual meeting

 

3



 

was made, whichever first occurs.  In no event shall the public disclosure of an adjournment of an annual meeting commence a new time period for the giving of a stockholder’s notice as described above.

 

To be in proper written form, a stockholder’s notice to the Secretary must set forth as to each matter such stockholder proposes to bring before the annual meeting a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting and as to the stockholder giving the notice and any Stockholder Associated Person (i) the name and record address of such person, (ii) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by such person, (iii) the nominee holder for, and number of, shares owned beneficially but not of record by such person, (iv) whether and the extent to which any hedging or other transaction or series of transactions has been entered into by or on behalf of, or any other agreement, arrangement or understanding (including any derivative or short positions, profit interests, options or borrowed or loaned shares) has been made, the effect or intent of which is to mitigate loss to or manage risk or benefit of share price changes for, or to increase or decrease the voting power of, such person with respect to any share of stock of the Corporation, (v) to the extent known by the stockholder giving the notice, the name and address of any other stockholder supporting the proposal of other business on the date of such stockholder’s notice, (vi) a description of all arrangements or understandings between or among such persons in connection with the proposal of such business by such stockholder and any material interest in such business and (vii) a representation that the stockholder giving the notice intends to appear in person or by proxy at the annual meeting to bring such business before the meeting.  Any ownership information shall be supplemented by the stockholder giving the notice not later than ten (10) days after the record date for the meeting as of the record date.

 

No business shall be conducted at the annual meeting of stockholders except business brought before the annual meeting in accordance with the procedures set forth in this Section 4; provided, however, that, once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Section 4 shall be deemed to preclude discussion by any stockholder of any such business.  If the Chairman of an annual meeting determines that business was not properly brought before the annual meeting in accordance with the foregoing procedures, the Chairman shall declare to the meeting that the business was not properly brought before the meeting and such business shall not be transacted.

 

Section 5Definitions.  For purposes of Sections 3 and 4 of Article II of these By-Laws:

 

“Public disclosure” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.”

 

“Stockholder Associated Person” of any stockholder shall mean (i) any person acting in concert, directly or indirectly, with such stockholder and (ii) any person

 

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controlling, controlled by or under common control with such stockholder or any Stockholder Associated Person.

 

Section 6.  Special Meetings.  Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called at any time by the Board of Directors or by the Chairman of the Board, and shall be called by the Chairman of the Board, the President or the Secretary at the written request of the majority of the Board of Directors or at the written request of stockholders owning capital stock having eighty percent (80%) of the voting power of the entire issued and outstanding capital stock of the Corporation.  Such request shall state the purpose or purposes of the proposed meeting.  No business shall be transacted at any special meeting of the stockholders except that stated in the notice of the meeting.

 

Section 7.  Notice of Meetings.  Written notice stating the place, date and hour of each annual and special meeting of the stockholders and, in the case of a special meeting, the purpose or purposes thereof, shall be given not less than twenty (20) nor more than sixty (60) days before the date of such meeting to each stockholder entitled to vote at such meeting.  If mailed, notice shall be deemed given when deposited in the United States mail, postage prepaid, directed to the stockholder at such address as appears on the records of the Corporation.  Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy and shall not, at the beginning of such meeting, object to the transaction of any business because the meeting is not lawfully called or convened, or who shall, either before or after the meeting, submit a signed waiver of notice.

 

Section 8.  Quorum.  At all meetings of the stockholders the holders of a majority of the shares of stock of the Corporation issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall be requisite to constitute a quorum for the transaction of business, except as otherwise provided by statute or in the Restated Certificate of Incorporation.  In the absence of a quorum, the holders of a majority of the shares of stock present in person or by proxy and entitled to vote may adjourn the meeting until the requisite amount of stock shall be present.

 

Section 9.  Organization and Order of Business.  At each meeting of the stockholders, the Chairman of the Board, or in his absence the President, or in his absence any other person selected by the Board of Directors, shall act as Chairman of the meeting.  The Secretary, or in his absence an Assistant Secretary, or any person appointed by the Chairman of the meeting, shall act as Secretary of the meeting and keep the minutes thereof.  The order of business at all meetings of the stockholders shall be as determined by the Chairman of the meeting.

 

Section 10.  Voting.  Except as otherwise provided by statute or by the Restated Certificate of Incorporation, at each meeting of the stockholders each stockholder having the right to vote thereat shall be entitled to (i) one vote for each share of common stock of the Corporation standing in his name on the record of stockholders of the Corporation, and (ii) such voting rights, if any, as are provided in the applicable Certificate of Designation, Preferences and Rights with respect to any series of preferred stock of the Corporation standing in his name on the record of stockholders of

 

5



 

the Corporation, in all such instances on the date fixed by the Board of Directors as the record date for the determination of the stockholders who shall be entitled to notice of and vote at such meeting; or if no record date shall have been fixed, then at the close of business on the day next preceding the day on which notice thereof shall be given.  Each stockholder entitled to vote at any meeting of stockholders may authorize another person or persons to act for him by a proxy signed or otherwise authorized in accordance with Section 212 of the General Corporation Law of Delaware by such stockholder or his attorney-in-fact.  No proxy shall be valid after the expiration of three (3) years from the date thereof, unless otherwise provided in the proxy.  Except as otherwise provided by statute, these By-Laws or the Restated Certificate of Incorporation, any corporate action to be taken by vote of the stockholders shall be authorized by a majority of the total votes cast at a meeting of stockholders by the holders of shares present in person or represented by proxy and entitled to vote on such action.  Unless required by statute, or determined by the chairman of the meeting to be advisable, the vote on any question other than elections need not be by written ballot.  On a vote by written ballot, each ballot shall be signed by the stockholder, his attorney-in-fact, or his proxy if there be such proxy, and shall state the stockholder’s name and the number of shares voted.

 

Section 11.  Stockholder List.  The Secretary shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder.  Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held.  This list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

 

Section 12.  Inspectors.  The Board of Directors may, in advance of any meeting of stockholders, appoint or provide for the appointment of one or more inspectors to act at such meeting or any adjournments thereof.  If the inspector or inspectors shall not be appointed, or if any of them shall fail to appear or act, the Chairman of the meeting may, and on the request of any stockholder entitled to vote thereat shall, appoint one or more inspectors.  Each inspector, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of his ability.  On request of the Chairman of the meeting or any stockholder entitled to vote thereat, the inspectors shall make a report in writing of any challenge, request or matter determined by them and shall execute a certificate of any fact found by them.  No director or candidate for the office of director shall act as inspector of any election of directors.  Inspectors need not be stockholders of the Corporation.

 

Section 13.  Adjourned Meetings.  A meeting of stockholders may be adjourned to another time and to another place by either the chairman of the meeting or by the stockholders and proxies present.  When a meeting is adjourned to another time or

 

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place, notice of such adjourned meeting need not be given if the time and place to which the meeting shall be adjourned are announced at the meeting at which the adjournment is taken.  At the adjourned meeting, if a quorum is present any business may be transacted which might have been transacted at the original meeting.  If the adjournment is for more than thirty (30) days or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 14.  Consent of Stockholders.  Unless otherwise provided in the Restated Certificate of Incorporation, any action required or permitted to be taken at any Annual or Special Meeting of Stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.  Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

 

ARTICLE III

 

BOARD OF DIRECTORS

 

Section 1.  General Powers.  The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.  The Board of Directors may exercise all such authority and powers of the Corporation and do all such lawful acts and things as are not by statute or the Restated Certificate of Incorporation or these By-Laws directed or required to be exercised or done by the stockholders.

 

Section 2.  Number and Election of Directors.  The number of directors of the Corporation which shall constitute the entire Board of Directors shall be such number as is fixed by the Board of Directors in accordance with the provisions of the Restated Certificate of Incorporation.  Directors shall be elected and shall hold office in accordance with the provisions of the Restated Certificate of Incorporation.  Directors need not be stockholders of the Corporation.

 

Section 3.  Required Vote for Directors.  A nominee for director shall be elected to the Board of Directors by the vote of the majority of the votes cast at any meeting for the election of directors at which a quorum is present; provided, however, that directors shall be elected by a plurality of the votes cast at any meeting of stockholders for which (i) the Secretary of the Corporation receives a notice that a stockholder has nominated a person for election to the Board of Directors in compliance with the advance notice requirements for stockholder nominees for directors set forth in Article II, Section 3, of these By-Laws and (ii) such nomination has not been withdrawn by such stockholder on or prior to the tenth (10th) day preceding the date the Corporation first mails its notice of meeting for such meeting to the stockholders.  For purposes of this By-Law, a majority of votes cast shall mean that the number of shares voted “for” a nominee exceeds fifty

 

7



 

percent (50%) of the number of votes cast with respect to such nominee.  Votes cast with respect to a nominee shall include votes to withhold authority and exclude abstentions with respect to such nominee.

 

Section 4.  Place of Meeting.  The Board of Directors may hold meetings at such place, within or without the State of Delaware, as the Board of Directors or the officer calling the meeting may from time to time determine.

 

Section 5.  Organization Meeting.  Promptly following the adjournment of the annual meeting of the stockholders, and without other notice than this By-Law, the newly constituted Board of Directors shall meet for the purpose of organization, the election of officers, and the transaction of other business, with power to adjourn and re-adjourn.

 

Section 6.  Meetings.  Regular meetings of the Board of Directors shall be held at such time and place as the Board of Directors may from time to time determine.  Special meetings of the Board of Directors may be called by the Chairman of the Board, the President or any two (2) or more Directors.

 

Section 7.  Notice of Meetings.  Notice of regular meetings of the Board of Directors need not be given except as otherwise required by statute or these By-Laws.  Notice of the place, date and time of the holding of each special meeting of the Board of Directors, and the purpose or purposes thereof, shall be delivered to each director either personally or by mail, telephone, telegraph, cable, or similar means, three (3) days before the day on which such meeting is to be held, or on such shorter notice as the person or persons calling such meeting deem appropriate in the circumstances.  Such notice shall be deemed to be given at the time it is dispatched by depositing it in the United States mail with postage prepaid, by transmission by telephone, telegraph or cable, or by personal delivery.  Notice of any such meeting need not be given to any director who shall, either before or after the meeting, submit a signed waiver of notice or who shall attend such meeting without protesting, prior to or at its commencement, the lack of notice to him.

 

Section 8.  Quorum and Manner of Acting.  Except as otherwise provided by statute, the Restated Certificate of Incorporation or these By-Laws, at all meetings of the Board of Directors a majority of the directors then in office shall constitute a quorum for the transaction of business; provided, however, that if by reason of catastrophe or emergency, a majority of the entire Board is not available or capable of acting, one third (1/3) of the entire Board of Directors, but in any event not less than two (2) directors, shall constitute a quorum for the transaction of business at any meeting of the Board of Directors.  The act of a majority of the directors present at any meeting at which there is a quorum, as herein provided, shall be the act of the Board of Directors except as may be otherwise specifically provided by statute, the Restated Certificate of Incorporation or these By-Laws.  In the absence of a quorum at any meeting of the Board of Directors, a majority of the directors present thereat, or if no director be present, the Secretary or an Assistant Secretary, may adjourn such meeting to another time and place until the quorum is had.  Notice of any adjourned meeting need not be given.  At any adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting as originally called.

 

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Section 9.  Organization and Order of Business.  At each meeting of the Board of Directors, the Chairman of the Board, or in his absence the President, or in his absence, a member of the Board of Directors selected by the directors in attendance, shall act as Chairman of the meeting.  The Secretary, or in his absence, an Assistant Secretary, or any person appointed by the Chairman of the meeting, shall act as Secretary of the meeting and keep the minutes thereof.  The order of business at all meetings of the directors shall be as determined by the Chairman of the meeting.

 

Section 10.  Action Without Meeting.  Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of the Board of Directors or committee.

 

Section 11.  Conference Telephone.  Members of the Board of Directors, or of any committee thereof, may participate in a meeting of the Board of Directors or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting in this manner shall constitute presence in person at such meeting.

 

Section 12.  Committees.  The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of three (3) or more of the directors of the Corporation.  The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.  Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers of the Board of Directors in the management of the business and affairs of the Corporation which the Board of Directors may lawfully delegate, and may authorize the seal of the Corporation to be affixed to all papers which may require it.  Meetings of committees may be called by the committee chairman, if any, or as provided in Section 5 of this Article III.  Notice of such meetings shall be given to each member of the committee in the manner set forth in Section 6 of this Article III.  Notice of any such meeting need not be given to any committee member who shall, either before or after the meeting, submit a signed waiver of notice or who shall attend such meeting without protesting prior to or at its commencement, the lack of notice to him.  A notice or waiver of notice of any regular or special meeting of any committee need not state the purposes of such meeting.  A majority of any committee may determine its action, unless the Board of Directors shall otherwise provide.  Each committee shall keep written minutes of its formal proceedings and shall report such proceedings to the Board.  All such proceedings shall be subject to revision or alteration by the Board of Directors; provided, however, that third parties shall not be prejudiced by such revision or alteration.  The Board of Directors shall have power at any time to fill vacancies in, to change the membership, duties or authority of, or to dissolve any such committee.

 

Section 13.  Resignations.  Any director of the Corporation may resign at any time by giving written notice of his resignation to the Board of Directors, the Chairman of the

 

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Board, the President or the Secretary.  Such resignation shall take effect at the date of the receipt of such notice, or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

 

Section 14.  Removal.  Except as otherwise provided in the Restated Certificate of Incorporation or in these By-Laws, any director may be removed at any time, at a special meeting of the stockholders called and held for the purpose, but, for so long as the Board of Directors is classified, only for cause, by the affirmative vote of the holders of a majority of the shares then entitled to vote at an election of directors; and the vacancy in the Board caused by any such removal shall be filled as the Restated Certificate of Incorporation provides.

 

Section 15.  Vacancies.  Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, in accordance with the Restated Certificate of Incorporation.

 

Section 16.  Compensation.  The Board of Directors shall have authority to fix the compensation, including fees and reimbursement of expenses, of directors for services to the Corporation in any capacity and no such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.

 

ARTICLE IV

 

OFFICERS

 

Section 1.  Number and Qualification.  The officers of the Corporation shall be elected by the Board of Directors.  The officers shall be a Chairman of the Board, a President, one or more Vice Presidents, a Secretary, a Treasurer, and a Controller.  The Board of Directors may also elect a Vice Chairman of the Board, one or more Sector Presidents and one or more Assistant Secretaries, Assistant Treasurers, and Assistant Controllers, and the Board of Directors may designate any Vice President as an Executive Vice President, a Senior Vice President or a Group Vice President.  The Board of Directors may also designate from such officers (i) a Chief Executive Officer who shall have general supervision and authority over the business and affairs of the Corporation subject to the control of the Board of Directors, (ii) a Chief Operating Officer who shall have general supervision and authority over the operations of the Corporation subject to the control of the Chief Executive Officer, if that designation has been made, and subject to the control of the Board of Directors, or (iii) both a Chief Executive Officer and a Chief Operating Officer.  The Chairman of the Board, the Vice Chairman of the Board and the President shall be chosen from among the directors, but no other officer need be a director.  Any two or more offices may be held by the same person.

 

Section 2.  Election and Term.  The officers of the Corporation shall be chosen annually by the Board of Directors at the first meeting of the Board of Directors following the annual meeting of stockholders or as soon thereafter as is conveniently possible.

 

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Officers may also be elected from time to time at any other meeting of the Board of Directors to fill vacancies and otherwise.  Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this Article IV, shall continue in office until his successor shall have been duly elected and qualified or until his earlier resignation or removal.

 

Section 3.  Other Officers and Agents.  The Board of Directors or the Chairman of the Board, or in his absence or disability, the President, may appoint such other officers and agents, each of whom shall hold office for such period, have such authority and perform such duties as are provided for in these By-Laws, or as the Board of Directors or Chairman of the Board, or the President, may from time to time determine.

 

Section 4.  Resignation.  Any officer may resign at any time by giving written notice to the Chairman of the Board, the President or the Secretary of the Corporation.  Such resignation shall take effect at the date of the receipt of such notice, or at any later time specified therein; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

 

Section 5.  Removal.  Any officer or agent may be removed, either with or without cause, at any time by the vote of the majority of the whole Board of Directors.  Any subordinate officer or agent appointed in accordance with the provisions of Section 3 of this Article IV may be removed, either with or without cause, by a vote of the majority of the whole Board of Directors or, except in the case of an officer or agent elected or appointed by the Board of Directors, by the Chairman of the Board or the President.

 

Section 6.  Vacancies.  A vacancy in any office because of death, resignation, removal, disqualification or any other cause may be filled for the unexpired portion of the term in the manner prescribed in these By-Laws for the regular election or appointment to such office.

 

Section 7.  Compensation.  The compensation of the officers of the Corporation shall be fixed from time to time by the Board of Directors or by such officers or a committee of the Board of Directors to which the Board of Directors has delegated such authority.  An officer of the Corporation shall not be prevented from receiving compensation by reason of the fact that he is also a director of the Corporation, but any such officer who shall also be a director shall not have any vote in the determination of the amount of compensation paid to him.

 

Section 8.  Chairman of the Board.  The Chairman of the Board shall preside at all meetings of the stockholders and of the Board of Directors.  He shall perform such duties with such authority as may be prescribed from time to time by the Board of Directors.

 

Section 9.  President.  The President shall be responsible to the Chief Executive Officer and shall perform such duties with such authority as may be prescribed in these By-Laws and from time to time by the Board of Directors and the Chief Executive Officer.

 

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Section 10.  Vice Presidents.  Each Vice President shall have such powers and shall perform such duties as shall from time to time be prescribed by the Board and as shall from time to time be assigned to him by the Chairman of the Board or the President.

 

Section 11.  Secretary.  The Secretary shall give or cause to be given all required notices of meetings of stockholders and of the Board of Directors, shall record all of the proceedings and act as custodian of the minutes of all such meetings, shall have charge of the corporate seal and the corporate minute books, and shall make such reports and perform such other duties as may be assigned from time to time by the Board of Directors, the Chairman of the Board, or the President.  The Secretary shall keep in safe custody the seal of the Corporation and the Secretary or any Assistant Secretary shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or any Assistant Secretary.  The Assistant Secretaries, or any of them, shall perform such of the duties of the Secretary as may from time to time be assigned to them by the Board of Directors, the Chairman of the Board, the President, or the Secretary, and in the absence of the Secretary or in the event of his disability or refusal to act, shall perform the duties of the Secretary, and when so acting shall have all the powers of and be subject to all the restrictions upon the Secretary.

 

Section 12.  Treasurer.  The Treasurer shall have custody of all moneys and securities of the Corporation, shall have responsibility for disbursement of the funds of the Corporation, shall make payment of the just demands on the Corporation, shall invest surplus cash of the Corporation and manage its investment portfolio under the direction of the Board of Directors, and shall render to the Board of Directors an account of all transactions of the Corporation and of the financial condition of the Corporation as may be required of him.  The Treasurer shall also perform such other duties as may be assigned to him from time to time by the Board of Directors, the Chairman of the Board, the President or by the Chief Financial Officer.  The Assistant Treasurers, or any of them, shall perform such of the duties of the Treasurer as may from time to time be assigned to them by the Board of Directors, the Chairman of the Board, the President, the Chief Financial Officer, or the Treasurer, and in the absence of the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Treasurer.

 

Section 13.  Controller.  The Controller shall provide and maintain a system of accounts and accounting records of the Corporation, shall provide and administer a system of internal financial controls, and shall present such financial statements to the Board of Directors as may be required.  The Controller shall also perform such other duties as may from time to time be assigned to him by the Board of Directors, the Chairman of the Board, the President or by the Chief Financial Officer.  The Assistant Controllers, or any of them, shall perform such of the duties of the Controller as may from time to time be assigned to them by the Board of Directors, the Chairman of the Board, the President, the Chief Financial Officer, or the Controller, and in the absence of the Controller or in the event of his disability or refusal to act, shall perform the duties of the Controller, and when so acting shall have all the powers of and be subject to all the restrictions upon the Controller.

 

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ARTICLE V

 

INDEMNIFICATION

 

Section 1.  Right to Indemnification.  Every person who was or is a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation or for its benefit as a director, officer, employee or agent of another corporation, or as its representative in a partnership, joint venture, trust or other enterprise, including any employee benefit plan, shall be indemnified and held harmless by the Corporation to the fullest extent legally permissible under the General Corporation Law of the State of Delaware in the manner prescribed therein, from time to time, against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection therewith.  Similar indemnification may be provided by the Corporation to an employee or agent of the Corporation who was or is a party or is threatened to be made a party to or is involved in any such threatened, pending or completed action, suit or proceeding, by reason of the fact that he is or was an employee or agent of the Corporation or is or was serving at the request of the Corporation or for its benefit as a director, officer, employee, or agent of another corporation or as its representative in a partnership, joint venture, trust or other enterprise, including any employee benefit plan.

 

Section 2.  Other Indemnification.  The rights of indemnification conferred by this Article shall not be exclusive of any other rights which such directors, officers, employees or agents may have or hereafter acquire and, without limiting the generality of such statement, they shall be entitled to their respective rights of indemnification under any by-law, agreement, vote of stockholders, provision of law or otherwise, as well as their rights under this Article.

 

ARTICLE VI

 

SHARES AND THEIR TRANSFER

 

Section 1.  Shares of Stock.  The shares of stock in the Corporation shall be represented by a certificate, unless and until the Board of Directors of the Corporation adopts a resolution permitting shares to be uncertificated.  Notwithstanding the adoption of any such resolution providing for uncertificated shares, every holder of stock of the Corporation theretofore represented by certificates and, upon request, every holder of uncertificated shares, shall be entitled to have a numbered certificate in such form as shall be approved by the Board of Directors, certifying the number of shares owned by him and signed in the name of the Corporation by the Chairman of the Board or the President or a Vice President and by the Treasurer or an Assistant

 

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Treasurer or the Secretary or an Assistant Secretary, and sealed with the seal of the Corporation (which seal may be a facsimile, engraved or printed).  Any or all the signatures on the certificate may be a facsimile.  In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of issue.

 

Section 2.  Transfer of Stock.  Stock of the Corporation shall be transferable in the manner prescribed by applicable law and in these By-Laws. Transfers of shares of stock of the Corporation shall be made on the stock records of the Corporation, and in the case of certificated shares of stock, only upon authorization by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary or with a transfer agent or transfer clerk, and on surrender of the certificate or certificates for such shares properly endorsed or accompanied by a duly executed stock transfer power with reasonable assurances given that such endorsement is genuine and that all taxes thereon have been paid; or, in the case of uncertificated shares of stock, upon receipt of proper transfer instructions from the registered holder of the shares or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary or with the transfer agent or transfer clerk, and reasonable assurances that all taxes thereon have been paid and compliance with appropriate procedures for transferring shares in uncertificated form; provided, however, that such surrender and endorsement, compliance or payment of taxes shall not be required in any case in which the authorized officers of the Corporation shall determine to waive such requirement.  Except as otherwise provided by law, the Corporation shall be entitled to recognize the exclusive right of a person in whose name any share or shares stand on the record of stockholders as the owner of such share or shares for all purposes, including, without limitation, the rights to receive dividends or other distributions, and to vote as such owner, and the Corporation may hold any such stockholder or record liable for calls and assessments, and the Corporation shall not be bound to recognize any equitable or legal claim to or interest in any such share or shares on the part of any other person whether or not it shall have express or other notice thereof.

 

Section 3.  Lost Certificates.  The Corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, or which shall have been mutilated, and the Board of Directors may, in its discretion, require the owner of the lost, stolen, destroyed or mutilated certificate, or his legal representative, to give the Corporation a bond, limited or unlimited, in such sum and in such form and with such surety or sureties as the Board of Directors in its absolute discretion shall determine is sufficient to indemnify the Corporation against any claim that may be made against it on account of the alleged loss, theft, destruction or mutilation of any such certificate, or the issuance of a new certificate.  Anything herein to the contrary notwithstanding, the Board of Directors in its absolute discretion may refuse to issue any such new certificate except pursuant to legal proceedings under the laws of the State of Delaware.

 

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Section 4.  Rules and Regulations.  The Board of Directors may make such additional rules and regulations, not inconsistent with these By-Laws, the Restated Certificate of Incorporation or the laws of the State of Delaware, as it may deem expedient concerning the issuance, transfer and registration of certificates for shares of stock of the Corporation.  The Board of Directors may appoint, or authorize any officer or officers of the Corporation to appoint, one or more independent transfer agents and one or more independent registrars, and may require all certificates for shares of stock to bear the signature or signatures of any of them.

 

Section 5.  Record Date.  In order to determine the stockholders entitled to notice and to vote at any meeting of stockholders or adjournment thereof, or to express consent to corporate action in writing without a meeting, or  entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be less than ten (10) nor more than sixty (60) days before the date of such meeting, nor more than sixty (60) days prior to any other action.  A determination of stockholders of record entitled to notice of and to vote at a meeting of stockholders shall apply to any adjournment of the meeting unless the Board of Directors shall elect to fix a record date for the adjourned meeting.

 

ARTICLE VII

 

GENERAL PROVISIONS

 

Section 1.  Contracts and Other Instruments.  The Chairman of the Board, the Vice Chairman of the Board, the President, the Chief Operating Officer, the Chief Financial Officer, the General Counsel, any Sector President, any Senior Executive Vice President, any Executive Vice President and any Senior Vice President may enter into any contract or execute and deliver any instrument in the name of the Corporation and on behalf of the Corporation except as in these By-Laws or by resolution otherwise provided.  The Board of Directors, except as in these By-Laws otherwise provided, may authorize any other officer or officers, agent or agents of the Corporation, to enter into any contract or execute and deliver any instrument in the name of the Corporation and on behalf of the Corporation, and such authority may be general or confined to specific instances, and unless so authorized by the Board of Directors, no such other officer, agent or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable pecuniarily for any purpose or to any amount.

 

Section 2.  Loans.  No loans shall be contracted on behalf of the Corporation and no negotiable paper shall be issued in its name unless, and on such terms as shall be, authorized by the Board of Directors.

 

Section 3.  Disbursements.  All checks, drafts, demands for money, notes or other evidences of indebtedness of the Corporation shall be signed by such officer or officers

 

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or such other person or persons as may from time to time be designated by the Board of Directors or by any officer or officers or person or persons authorized by the Board of Directors to make such designations.  Facsimile signatures may be authorized in any such case where authorized by the Board of Directors.

 

Section 4.  Deposits.  All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation under such conditions and in such banks or other depositories as the Board of Directors may designate, or as may be designated by any officer or officers, agent or agents of the Corporation to whom such power of designation may from time to time be delegated by the Board of Directors.  For the purpose of deposit and for the purpose of collection for the account of the Corporation, checks, drafts, and other orders for the payment of money which are payable to the order of the Corporation may be endorsed, assigned and delivered by any officer or agent of the Corporation as the Board of Directors may determine by resolution.

 

Section 5.  Voting Securities of Other Corporations.  Unless otherwise ordered by the Board of Directors, the Chairman of the Board, the President or any person either may designate, shall have full power and authority on behalf of the Corporation, in person or by proxy, to attend and to act and to vote at any meeting of the security holders of any other corporation in which this Corporation may hold securities, and at any such meeting he or his proxy shall possess and may exercise any and all rights and powers incident to the ownership of such securities and which as the owner thereof the Corporation might have possessed and exercised if present.  The Board of Directors, by resolution from time to time, may confer like powers upon any other person or persons.

 

Section 6.  Corporate Seal.  The Board of Directors shall provide a corporate seal, which shall be in the form of a circle, and which shall bear the words and figures:

 

ECOLAB INC.

CORPORATE SEAL

1924

DELAWARE

 

Section 7.  Fiscal Year.  The fiscal year of the Corporation shall be as determined by the Board of Directors.

 

Section 8.  Gender.  Whenever used in these By-Laws, words in the masculine gender shall include the feminine gender.

 

ARTICLE VIII

 

AMENDMENTS

 

Except as otherwise provided in the Restated Certificate of Incorporation or these By-Laws, the Board of Directors may from time to time, by vote of a majority of its

 

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members, alter, amend or rescind all or any of these By-Laws as permitted, by law, subject to the power of the stockholders to change or repeal such By-Laws.

 

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EX-10.1 3 a08-28035_1ex10d1.htm EX-10.1

Exhibit 10.1

 

STOCK PURCHASE AGREEMENT

 

THIS STOCK PURCHASE AGREEMENT, dated as of November 10, 2008 (this “Agreement”), is by and among Henkel AG & Co. KGaA, organized under the laws of the Federal Republic of Germany (“Henkel KGaA”), Henkel Corporation, a Delaware corporation (“Henkel Corp.,” and, together with Henkel KGaA, the “Selling Stockholders”), and Ecolab Inc., a Delaware corporation (the “Company”).

 

WHEREAS, at the request of the Selling Stockholders, the Company proposes to file a Registration Statement on Form S-3 with the Securities and Exchange Commission (the “Registration Statement”) with respect to the offer and sale by the Selling Stockholders of up to 72,692,552 shares of common stock, par value $1.00 per share, of the Company (the “Common Stock”) (less any shares to be purchased under this Agreement);

 

WHEREAS, the Selling Stockholders propose to enter into an Underwriting Agreement (the “First Underwriting Agreement”) among certain underwriters to be named therein (the “First Underwriters”), the Company and themselves whereby the Selling Stockholders will sell some or all of their shares of Common Stock (the “First Underwritten Shares”) in a public offering (the “First Offering”);

 

WHEREAS, in the event that the Selling Stockholders do not sell all of their shares of Common Stock in connection with the First Offering, the Selling Stockholders may enter into a second Underwriting Agreement (the “Second Underwriting Agreement”) among certain underwriters to be named therein (the “Second Underwriters”), the Company and themselves whereby the Selling Stockholders will sell some or all of their remaining shares of Common Stock (the “Second Underwritten Shares”) in a second public offering (the “Second Offering,” and, together with the First Offering, the “Offerings”);

 

WHEREAS, simultaneously with the execution of this Agreement, the Company and Henkel KGaA have executed an amendment to that certain Second Amended and Restated Stockholder’s Agreement, dated as of November 30, 2001, between the Company and Henkel KGaA (the “Amendment,” and as so amended, the “Amended Stockholder’s Agreement”); and

 

WHEREAS, upon the terms and subject to the conditions of this Agreement, the Selling Stockholders desire to sell, and the Company desires to purchase, shares of Common Stock owned by the Selling Stockholders.

 



 

NOW, THEREFORE, in consideration of the premises and the representations, warranties and covenants contained in this Agreement and the Amendment, the Company and the Selling Stockholders hereby agree as follows:

 

ARTICLE I

 

purchase and sale of COMMON STOCK

 

Section 1.01                                Purchase and Sale.  Subject to the terms and conditions of this Agreement, the Company shall purchase from the Selling Stockholders, and the Selling Stockholders shall sell to the Company, shares of Common Stock (collectively, the “Repurchase Shares”).

 

(a)           First Offering.

 

(i)    Number of Shares.  The number of shares of Common Stock (rounded to the nearest whole share) (the “First Purchased Shares”) to be purchased by the Company from the Selling Stockholders upon completion of the First Offering, including the closing of any over-allotment option pursuant to the First Underwriting Agreement (the “First Offering Closing”), shall be equal to the quotient obtained by dividing (x) the sum of (A) the First Purchase Price (as defined below), (B) $40,000,000 and (C) $50,000 for each $1,000,000, if any, by which the First Purchase Price exceeds $300,000,000, up to a total excess of $200,000,000, by (y) the price per share at which the First Underwriters purchase the First Underwritten Shares from the Selling Stockholders pursuant to the First Underwriting Agreement (including any discretionary fees or discounts) (the “First Price Per Share”).  The Company shall have the right to designate a First Purchase Price in excess of $500,000,000, provided that in no event shall the Company so designate a First Purchase Price in excess of $500,000,000 if the result would be that the Selling Stockholders are unable to sell at least 43,700,000 shares of Common Stock pursuant to the First Underwriting Agreement.

 

(ii)   Purchase Price.  The purchase price for the First Purchased Shares shall be the First Purchase Price, which shall not be less than $300,000,000.

 

(iii)  Condition of Company’s Obligation to Purchase.  If the Selling Stockholders do not sell at least 43,700,000 shares of Common Stock (which is the minimum sale amount necessary to complete the First Offering) pursuant to the First Underwriting Agreement on or prior to April 30, 2009, then notwithstanding any Purchase Notice (as defined below) delivered pursuant to Section 1.02(b) hereof, the Company shall have no obligation to purchase any shares of Common Stock. The First Offering shall be deemed to commence upon the filing of the Registration Statement.

 

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(b)           Second Offering.

 

(i)    Number of Shares.  The number of shares of Common Stock (rounded to the nearest whole share) (the “Second Purchased Shares”) to be purchased by the Company from the Selling Stockholders upon completion of the Second Offering, including the closing of any over-allotment option pursuant to the Second Underwriting Agreement (the “Second Offering Closing”), shall be equal to the quotient obtained by dividing (x) the sum of (A) the Second Purchase Price (as defined below), (B) if the Company did not purchase any shares of Common Stock from the Selling Stockholders upon completion of the First Offering, $40,000,000, and (C) $50,000 for each $1,000,000 by which (i) the lesser of the Total Purchase Price (as defined below) or $500,000,000 exceeds (ii) the First Purchase Price, by (y) the price per share at which the Second Underwriters purchase the Second Underwritten Shares from the Selling Stockholders pursuant to the Second Underwriting Agreement (including any discretionary fees or discounts) (the “Second Price Per Share”).  The Company shall have the option to designate a Second Purchase Price that would produce a Total Purchase Price in excess of $500,000,000, provided that, if the Company did not purchase any shares of Common Stock from the Selling Stockholders upon completion of the First Offering, in no event shall the Company so designate a Second Purchase Price in excess of $500,000,000 if the result would be that the Selling Stockholders are unable to sell at least 43,700,000 shares of Common Stock pursuant to the Second Underwriting Agreement.  If the First Purchase Price is at least $300,000,000, the Company shall have no obligation to purchase any Common Stock upon completion of the Second Offering.

 

(ii)   Purchase Price.  The purchase price for the Second Purchased Shares, if any, shall equal the Second Purchase Price.  If no shares were purchased in connection with the First Offering, then the Second Purchase Price shall be at least $300,000,000.  If shares were purchased in connection with the First Offering, the Company shall have no obligation to purchase any Common Stock upon completion of the Second Offering.

 

(iii)  Condition of Company’s Obligation to Purchase.  If the Company did not purchase any shares of Common Stock from the Selling Stockholders upon completion of the First Offering, and if the Selling Stockholders do not sell at least 43,700,000 shares of Common Stock (which is the minimum sale amount necessary to complete the Second Offering if the First Offering was not completed) pursuant to the Second Underwriting Agreement on or prior to April 30, 2009, then notwithstanding any Purchase Notice delivered pursuant to Section 1.02(b) hereof, the Company shall have no obligation to purchase any shares of Common Stock.  The Second Offering shall be deemed to commence upon the Company receiving from the Selling Stockholders written notice of the Selling Stockholders’ intent to initiate the Second Offering.

 

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Section 1.02                                Notices.

 

(a)           Not later than 5:00 p.m. Eastern time on the second (2nd) business day immediately prior to the proposed pricing date of the First Offering and the Second Offering, if applicable, the Selling Stockholders shall deliver a notice to the Company (A) setting forth the expected date of the pricing of such offering, the expected range of the First Price Per Share or the Second Price Per Share, as the case may be, and the expected range of the number of shares of Common Stock to be sold in such offering and (B) offering to sell shares of Common Stock owned by the Selling Stockholders in accordance with the terms and conditions of this Agreement (the “Offering Notice”); provided, however, that if following the delivery of an Offering Notice by the Selling Stockholders to the Company, the proposed pricing date of such offering, if applicable, is delayed, the Selling Stockholders shall deliver a new Offering Notice and any Purchase Notice from the Company in response to all preceding Offering Notices for such offering shall be void and of no effect.

 

(b)           Not later than 5:00 p.m. Eastern time on the business day prior to the proposed pricing date of the First Offering and the Second Offering, if applicable, as set forth in the Offering Notice, the Company shall deliver a notice to the Selling Stockholders (the “Purchase Notice”) setting forth the aggregate cash purchase price to be paid by the Company to the Selling Stockholders for the shares of Common Stock purchased upon the First Offering Closing (the “First Purchase Price”) or the Second Offering Closing (the “Second Purchase Price,” if any, and, together with the First Purchase Price, the “Total Purchase Price”), as applicable. Upon delivery by the Company to the Selling Stockholders of the Purchase Notice designating the First Purchase Price or the Second Purchase Price (if any), as the case may be, subject to the terms and conditions of this Agreement, the Company shall be obligated to purchase, and the Selling Stockholders shall be obligated to sell, the number of shares of Common Stock determined as above at the First Purchase Price or the Second Purchase Price (if any) on the related Closing (as defined below), all in accordance with the terms and conditions of this Agreement.

 

Section 1.03                                Closing.

 

(a)           Each closing of the purchase and sale of shares of Common Stock shall take place at 10:00 a.m. Eastern time at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 333 West Wacker Drive, Chicago, IL 60606, on such date as shall be determined by the Company, which date shall be within twenty (20) days after the First Offering Closing or the Second Offering Closing, as the case may be, or at such other place, time and date as the parties hereto shall mutually agree upon (each such closing, a “Closing”).  The date on which each Closing shall be held is referred to in this Agreement as a “Closing Date.”

 

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(b)           The Company shall give notice to the Selling Stockholders of each Closing no later than two (2) business days prior to the applicable Closing Date.

 

Section 1.04           Company Closing Deliveries.  At each Closing, the Company shall deliver or cause to be delivered to the Selling Stockholders:

 

(a)           the First or Second Purchase Price, as applicable, by wire transfer in immediately available funds to an account designated by the Selling Stockholders; and

 

(b)           the certificate contemplated by Section 4.02(b).

 

Section 1.05           Selling Stockholders Closing Deliveries.  At each Closing, the Selling Stockholders shall deliver or cause to be delivered to the Company:

 

(a)           the applicable Repurchase Shares, either by (i) delivering stock certificates representing the applicable Repurchase Shares, duly endorsed in blank, or accompanied by stock powers duly endorsed in blank; (ii) transferring the applicable Repurchase Shares to the Company pursuant to an executed letter of direction delivered to the Company’s transfer agent prior to the Closing Date; or (iii) any combination of (i) and (ii) above; and

 

(b)           the certificate contemplated by Section 4.01(b).

 

ARTICLE II


REPRESENTATIONS AND WARRANTIES OF the Selling StockholderS

 

Each Selling Stockholder jointly and severally represents and warrants to the Company as follows:

 

Section 2.01           Organization and Good Standing.  Henkel KGaA is a Kommanditgesellschaft auf Aktien validly existing under the laws of the Federal Republic of Germany.  Henkel Corp. is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.  Each Selling Stockholder has the full power and authority to execute, deliver and carry out the terms and provisions of this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary action to authorize the execution, delivery and performance of this Agreement.

 

Section 2.02           Authorization.  This Agreement has been duly and validly authorized, executed and delivered by each Selling Stockholder, and constitutes a legal, valid and binding agreement of each Selling Stockholder, enforceable against each Selling Stockholder in accordance with its terms, except to the extent that (i) such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in

 

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effect affecting creditors’ rights generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to certain equitable defenses and to the discretion of the court before which any proceedings therefor may be brought.

 

Section 2.03                                No Conflicts; Consents.

 

(a)           The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, result in the breach of any of the terms or conditions of, constitute a default under or violate, accelerate or permit the acceleration of any other similar right of any other party under, the charter, by-laws or similar document of each Selling Stockholder, any law, rule or regulation, or any agreement, lease, mortgage, note, bond, indenture, license or other document or undertaking, to which any Selling Stockholder is a party or by which any Selling Stockholder or its properties may be bound, nor will such execution, delivery and consummation violate any order, writ, injunction or decree of any federal, state, local or foreign court, administrative agency or governmental or regulatory authority or body (each, an “Authority”) to which any Selling Stockholder or any of its properties is subject, the effect of any of which, either individually or in the aggregate, would prevent or materially delay the ability of any Selling Stockholder to perform its obligations hereunder.

 

(b)           No consent, approval or authorization of or filing with any Authority or other third party is required to be obtained or made by any Selling Stockholder in connection with the execution and delivery of this Agreement and the performance by any Selling Stockholder of its obligations hereunder, other than any such consent, approval, authorization or filing that would not, individually or in the aggregate, prevent or materially delay the ability of any Selling Stockholder to perform its obligations hereunder.

 

Section 2.04           Title and Conveyance of Repurchase Shares.  Each Selling Stockholder has good and valid title to the shares of Common Stock set forth opposite its name in Exhibit A to this Agreement, free and clear of all liens, security interests, encumbrances and claims of any kind and has the legal right and power to enter into this Agreement and to sell, transfer and deliver the Repurchase Shares; and upon sale and delivery of, and payment for, such Repurchase Shares as provided herein at each Closing, each Selling Stockholder will convey to the Company good and valid title to such Repurchase Shares being sold by it free and clear of all liens, security interests, encumbrances and claims of any kind.

 

ARTICLE III


REPRESENTATIONS AND WARRANTIES OF THE COMPANY

 

The Company represents and warrants to the Selling Stockholders as follows:

 

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Section 3.01           Organization and Good Standing.  The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.  The Company has the full power and authority to execute, deliver and carry out the terms and provisions of this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary action to authorize the execution, delivery and performance of this Agreement.

 

Section 3.02           Authorization.  This Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that (i) such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting creditors’ rights generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to certain equitable defenses and to the discretion of the court before which any proceedings therefor may be brought.

 

Section 3.03           No Conflicts; Consents.

 

(a)           The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, result in the breach of any of the terms or conditions of, constitute a default under or violate, accelerate or permit the acceleration of any other similar right of any other party under, the Restated Certificate of Incorporation or By-Laws of the Company, any law, rule or regulation or any agreement, lease, mortgage, note, bond, indenture, license or other document or undertaking, to which the Company is a party or by which the Company or its properties may be bound, nor will such execution, delivery and consummation violate any order, writ, injunction or decree of any Authority to which the Company or any of its properties is subject, the effect of any of which, either individually or in the aggregate, would prevent or materially delay the ability of the Company to perform its obligations hereunder.

 

(b)           No consent, approval or authorization of or filing with any governmental authority or other third party is required to be obtained or made by the Company in connection with the execution and delivery of this Agreement, and the performance by the Company of its obligations hereunder, other than any such consent, approval, authorization or filing that would not, individually or in the aggregate, prevent or materially delay the ability of the Company to perform its obligations hereunder.

 

ARTICLE IV

 

CONDITIONS

 

Section 4.01           Conditions to Obligations of the Company.  The obligation of the Company to effect the transactions contemplated hereby shall be subject to the fulfillment, on or prior to each Closing, of each of the following conditions (any of which may be waived by the Company in whole or part to the extent permitted by applicable law):

 

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(a)           the representations and warranties of the Selling Stockholders set forth in Article II hereof shall be true and correct in all material respects as of the date of this Agreement and on and as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date;

 

(b)           the Selling Stockholders shall have performed in all material respects all obligations required to be performed by them at or prior to Closing, and the Company shall have received a certificate signed on behalf of each Selling Stockholder by an executive officer of such Selling Stockholder certifying the satisfaction of the conditions set forth in Sections 4.01(a) and (b);

 

(c)           in the case of the First Offering, the First Offering Closing shall have occurred;

 

(d)           if the Company did not purchase any shares of Common Stock from the Selling Stockholders upon completion of the First Offering, then in the case of the Second Offering, the Second Offering Closing shall have occurred; and

 

(e)           no temporary restraining order, preliminary or permanent injunction or other judgment, decision or order issued by any governmental authority of competent jurisdiction shall be in effect preventing the consummation of the transactions contemplated hereby.

 

Section 4.02           Conditions to Obligations of the Selling Stockholders.  The obligations of the Selling Stockholders to effect the transactions contemplated hereby shall be subject to the fulfillment, on or prior to each Closing, of each of the following conditions (any of which may be waived by the Selling Stockholders in whole or part to the extent permitted by applicable law):

 

(a)           the representations and warranties of the Company set forth in Article III hereof shall be true and correct in all material respects as of the date of this Agreement and on and as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date;

 

(b)           the Company shall have performed in all material respects all obligations required to be performed by it at or prior to Closing, and each of the Selling Stockholders shall have received a certificate signed on behalf of the Company by an executive officer of the Company certifying the satisfaction of the conditions set forth in Sections 4.02(a) and (b);

 

(c)           in the case of the First Offering, the First Offering Closing shall have occurred;

 

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(d)           in the case of the Second Offering, the Second Offering Closing shall have occurred; and

 

(e)           no temporary restraining order, preliminary or permanent injunction or other judgment, decision or order issued by any governmental authority of competent jurisdiction shall be in effect preventing the consummation of the transactions contemplated hereby.

 

ARTICLE V

 

EXPENSES

 

Section 5.01           Expenses.  The Selling Stockholders shall pay (i) their own expenses and costs in connection with this Agreement and the transactions contemplated hereby, including, without limitation, all counsel fees and transfer taxes and (ii) all out-of-pocket expenses incurred by the Company related to the road shows for the Offerings, including the use of private aircraft.  Except as set forth above, the Company shall pay its own expenses and costs in connection with (i) this Agreement and the transactions contemplated hereby, including all counsel fees and (ii) the Offerings (other than underwriting discounts and commissions and brokerage commissions and fees, if any, payable with respect to Common Stock sold by the Selling Stockholders and fees and expenses of counsel and any accountants for the Selling Stockholders).

 

ARTICLE VI

 

MISCELLANEOUS

 

Section 6.01           Termination.  This Agreement shall terminate upon the earliest of (a) the date on which the Selling Stockholders no longer own any shares of Common Stock, (b) the completion of the Company’s purchase obligation in connection with the Second Offering Closing, if any, or (c) at 5:00 p.m. Eastern time on the date that is eighteen (18) months after the date on which the registration statement for the First Offering is declared effective or otherwise becomes effective.

 

Section 6.02           Integration; Amendments; Waiver.  This Agreement and the Amended Stockholders’ Agreement constitute the entire agreement, and supersedes all prior agreements and understandings, whether oral or written, between the parties hereto with respect to the subject matter hereof. Any term of this Agreement may be amended or modified only by the written agreement of the parties. No term or condition of this Agreement may be waived, except by a writing executed by the party against whom enforcement of any such waiver is being sought.  No waiver by either party hereto of any term or condition of this Agreement shall operate as a waiver of such term or condition at any other time.

 

Section 6.03           Successors and Assigns.  The terms and provisions of this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.

 

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Section 6.04           Notices.  All notices and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered personally by hand (with written confirmation of receipt), (ii) when sent by facsimile (with written confirmation of transmission), (iii) when sent by electronic transmission (with confirmation of transmission) and (iv) one (1) business day following the day sent by overnight courier (with written confirmation of receipt), in each case at the following addresses and facsimile numbers (or to such other address or facsimile number as a party may have specified by notice given to the other party pursuant to this provision):

 

If to the Company, to:

 

 

 

Ecolab Inc.

Ecolab Center

370 Wabasha Street North

St. Paul, MN 55102

Facsimile: 651-293-2471

Attention: General Counsel

 

 

with a copy to:

 

 

 

Skadden, Arps, Slate, Meagher & Flom LLP

333 West Wacker Drive

Chicago, IL 60606

Facsimile: 312-407-0411

Attention: Charles W. Mulaney, Jr.

 

 

If to the Selling Stockholders:

 

 

 

Henkel AG & Co. KGaA

Henkelstrasse 67, Postfach 1100

D-4000 Dusseldorf 1, Germany

Facsimile: +49 211 7 98 24 63

Attention: General Counsel

 

 

with a copy to:

 

 

 

Cleary Gottlieb Steen & Hamilton LLP

One Liberty Plaza

New York, NY 10006

Facsimile: 212-225-3999

Attention: William A. Groll

 

Section 6.05           Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflicts of law doctrine.

 

Section 6.06           Jurisdiction and Venue.  Each of the Company and the Selling Stockholders hereby agrees that any proceeding relating to this Agreement shall be brought in the state of Delaware.  Each of the Company and the Selling Stockholders hereby consents to

 

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personal jurisdiction in any such action brought in any such Delaware court, consents to service of process by registered mail made upon such party and such party’s agent and waives any objection to venue in any such Delaware court or to any claim that any such Delaware court is an inconvenient forum.

 

Section 6.07           Severability.  If any provision of this Agreement or the application of any such provision to any person or circumstances shall be held invalid by a court of competent jurisdiction, the remainder of this Agreement, including the remainder of the provision held invalid, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.

 

Section 6.08           Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.  Facsimile signatures shall constitute original signatures.

 

Section 6.09           Headings.  All section headings herein are for convenience of reference only and are not part of this Agreement, and no construction or inference shall be derived therefrom.

 

Section 6.10           Remedies.  The Company and the Selling Stockholders shall be entitled to enforce their rights under this Agreement specifically, to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights existing in their favor. The parties hereto agree and acknowledge that money damages would not be an adequate remedy for any breach of the provisions of this Agreement and that the Company and the Selling Stockholders, in their sole discretion, may apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive relief (without posting a bond or other security) in order to enforce or prevent any violation of the provisions of this Agreement.

 

Section 6.11           Effect of Termination.  A termination as provided in Section 6.01 shall not release any party hereto from liability for a willful breach of this Agreement.

 

Section 6.12           Public Announcements.  The Company and the Selling Stockholders agree that any press release or public commentary regarding this Agreement, the Amendment or the transactions contemplated hereby or thereby shall be mutually agreed upon, except as may be required by applicable law, any Authority or the rules of a stock exchange or trading market.

 

Section 6.13           Survival.  All representations, warranties and covenants shall survive each Closing.

 

[signatures appear on following page]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above.

 

 

 

 

ECOLAB INC.

 

 

 

 

 

 

 

 

By:

/s/ Steven L. Fritze

 

 

Name: Steven L. Fritze

 

 

Its: Chief Financial Officer

 

 

 

 

 

 

 

 

HENKEL AG & CO. KGAA

 

 

 

 

 

 

 

 

 

By:

/s/ Thomas Gerd Kühn

 

 

Name: Thomas Gerd Kühn

 

 

Its: General Counsel

 

 

 

 

 

 

 

 

 

By:

/s/ Heinz Nicolas

 

 

Name: Heinz Nicolas

 

 

Its: Senior Corporate Counsel

 

 

 

 

 

 

 

 

HENKEL CORPORATION

 

 

 

 

 

 

 

 

By:

/s/ Paul R. Berry

 

 

Name: Paul R. Berry

 

 

Its: Chief Legal Officer

 



 

Exhibit A

 

Selling Stockholder

 

Shares of Common Stock

Henkel AG & Co. KGaA

 

43,738,036

Henkel Corporation

 

28,954,516

 


EX-99.1 4 a08-28035_1ex99d1.htm EX-99.1

Exhibit 99.1

 

 

News Release

 

Ecolab Inc.

370 Wabasha Street North

St. Paul, Minnesota  55102

 

 

FOR IMMEDIATE RELEASE

 

 

 

 

Michael J. Monahan

(651) 293-2809

 

ECOLAB FILES REGISTRATION STATEMENT TO ENABLE HENKEL TO SELL ITS ENTIRE 72.7 MILLION ECOLAB SHARE POSITION

 

Ecolab agrees to purchase $300 million of its shares from Henkel

 

ST. PAUL, Minn., November 10, 2008:  Ecolab Inc. announced that, at the request of stockholder Henkel AG & Co. KGaA, Ecolab has filed a registration statement with the Securities and Exchange Commission to enable Henkel to sell all of the 72.7 million Ecolab shares it holds.  Ecolab and Henkel have also agreed to amend the Stockholder’s Agreement between the parties to facilitate the offering.   The offering will begin today, and Ecolab’s senior management team will meet with potential investors in connection with the offering.

 

Ecolab further announced that it has agreed to purchase $300 million of its shares directly from Henkel in conjunction with Henkel’s sale of Ecolab shares.  Ecolab will utilize existing cash balances, commercial paper and committed bank lines to fund the purchase.  The purchase is expected to be accretive to Ecolab’s 2009 earnings per share.

 

Henkel has held an investment in Ecolab since 1989.  The investment originated as part of a transaction in which Ecolab and Henkel formed a joint venture in Europe, combining each company’s European commercial cleaning and sanitizing operations.  Also at that time, Henkel sold its remaining worldwide commercial cleaning and sanitizing businesses to Ecolab.  In 2001 Ecolab purchased Henkel’s interest in the joint venture for cash.  In August 2007 Henkel announced

 

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its intention to acquire the adhesives and electronic materials businesses of National Starch.  In February 2008 Henkel announced its intention to sell some or all of its Ecolab shares. Henkel closed on the acquisition of National Starch in April 2008.

 

Douglas M. Baker, Jr., Ecolab’s Chairman, President and Chief Executive Officer, commented on the action, saying “We have had a productive relationship with Henkel.  Through it, we expanded our global business reach and developed new and better opportunities to serve our customers.  Henkel has been a strong and supportive shareholder, and we wish them well in the future.”

 

Baker continued, “We are excited by the opportunity this transaction represents to further diversify our shareholder base and increase our float.  We are also excited by the opportunity to purchase our shares.  We believe our $300 million purchase is a sound and timely investment for Ecolab and its shareholders.  It balances a unique opportunity to invest in a strong and growing asset – Ecolab shares – while allowing us to retain appropriate flexibility in our balance sheet to fund new business opportunities that should help keep us a strong and attractive growth company for years to come.”

 

Baker concluded by saying, “We look forward to our upcoming meetings with investors, and as always, remain fully focused on driving our business, building our future and continuing to deliver superior shareholder value.”

 

With sales of $5.5 billion and more than 26,000 associates, Ecolab Inc. (NYSE: ECL) is the global leader in cleaning, sanitizing, food safety and infection prevention products and services. Ecolab delivers comprehensive programs and services to foodservice, food and beverage processing, healthcare, and hospitality markets in more than 160 countries.

 

This news release does not constitute an offer to sell, or a solicitation of an offer to buy, any of the common stock or any other security of Ecolab. Any such offers, or solicitations to buy, will be made solely by means of a prospectus and related prospectus supplements filed with the Securities and Exchange Commission.

 

This news release contains various “Forward-Looking Statements” within the meaning of the Private Securities Litigation Reform Act of 1995. These statements, including the potential impact of the company’s stock repurchase on earnings per share in 2009, represent Ecolab’s expectations or beliefs concerning various future events, and are based on current expectations that involve a number of risks and uncertainties that could cause actual results to differ materially from those of such Forward-Looking Statements.

 

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We caution that undue reliance should not be placed on Forward-Looking Statements, which speak only as of the date made.

 

Risks and uncertainties that may affect operating results and business performance are set forth under Item 1A of our most recent Form 10-K and Item 1A of Part II of our subsequent reports on Form 10-Q and include the vitality of the markets we serve; the impact of economic factors, such as the worldwide economy, interest rates and foreign currency exposure; our ability to develop competitive advantages through innovation; fluctuations in raw material costs; restraints on pricing flexibility due to contractual obligations; pressure on operations from consolidation of customers, vendors or competitors; the impact of acquisitions, divestitures and investments to develop business systems or to optimize our business structure; changes in regulations or accounting standards; the costs and effects of complying with laws and regulations relating to the environment and to the manufacture, storage, distribution, sale and use of our products; the occurrence of litigation or claims, acts of war, terrorism, severe weather or public health epidemics; the loss or insolvency of a major customer, supplier or distributor; our ability to attract and retain high caliber management talent; and other uncertainties or risks reported from time to time in our reports to the Securities and Exchange Commission.

 

Except as may be required under applicable law, we undertake no duty to update our Forward-Looking Statements.

 

Ecolab has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering.

 

You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling toll-free 1-800-221-1037, 1-866-471-2526 or 1-866-500-5408.

 

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