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) April 10, 2013
ECOLAB INC.
(Exact name of registrant as specified in its charter)
Delaware |
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1-9328 |
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41-0231510 |
(State or other jurisdiction of incorporation) |
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(Commission File Number) |
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(IRS Employer Identification No.) |
370 Wabasha Street North, Saint Paul, Minnesota |
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55102 |
(Address of principal executive offices) |
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(Zip Code) |
Registrants telephone number, including area code 1-800-232-6522
(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 240.14a-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 13e-4(c) under the Exchange Act (17 CRF 240.13e-4(c))
Introductory Note
On April 10, 2013, Permian Mud Service, Inc., a Texas corporation (Permian) and the parent company of Champion Technologies, Inc. (Champion) and Corsicana Technologies, Inc. (together with Permian and Champion, the acquired companies) became a wholly-owned subsidiary of Ecolab Inc., a Delaware corporation (Ecolab or the Company), as a result of the merger of OFC Technologies Corp., a Texas corporation and a wholly-owned subsidiary of Ecolab (Merger Sub), with and into Permian (the Merger). The Merger was effected pursuant to an Agreement and Plan of Merger dated as of October 11, 2012, as amended (the Merger Agreement), by and among Ecolab, Merger Sub and Permian.
Item 1.01 Entry into a Material Definitive Agreement.
On April 10, 2013, in connection with the closing of the Merger, Ecolab and the Permian stockholder representatives entered into a registration rights agreement (the Registration Rights Agreement) related to approximately 6.6 million shares of Ecolabs common stock paid as merger consideration pursuant to the Merger Agreement and beneficially owned by the Permian stockholders in an offering exempt from the registration requirements of the Securities Act of 1933, as amended (the Securities Act). The Registration Rights Agreement is filed as Exhibit 4.1 to this Current Report on Form 8-K and the description of the material terms of the Registration Rights Agreement is qualified in its entirety by reference to such exhibit, which is incorporated herein by reference.
Item 2.01 Completion of Acquisition or Disposition of Assets.
On April 10, 2013, pursuant to the Merger Agreement, Merger Sub merged with and into Permian, with Permian surviving the Merger as a wholly-owned subsidiary of the Company.
Pursuant to the terms of the Merger Agreement, after adjustments for assumed debt and other adjustments as set out in the Merger Agreement, Ecolab will pay merger consideration of approximately $1.97 billion (valued based on Ecolabs closing share price on April 10, 2013), consisting of $1.43 billion in cash and 6.6 million shares of Ecolab common stock. Ecolab will deposit approximately $100 million of the merger consideration in the form of shares of Ecolab common stock in an escrow fund to satisfy adjustments to the merger consideration and indemnification obligations of the Permian stockholders (including covenant obligations) for a period of two years following the effective time of the Merger.
Additionally, except under limited circumstances, Ecolab will be required to pay to the Permian stockholders an additional amount in cash, not to exceed $100 million in the aggregate, equal to 50% of the incremental taxes due on such stockholders receipt of the merger consideration as a result of increases in applicable capital gains rates and investment taxes after December 31, 2012. Such additional payment, if owed, will be due on January 31, 2014, and will be based on 2013 tax rates as in effect on January 1, 2014.
Ecolab funded the initial cash component of the merger consideration through a $900 million unsecured term loan, the proceeds from the issuance of $500 million of 1.450% senior notes due 2017 and commercial paper borrowings backed by its syndicated credit facility.
The foregoing description of the Merger and the Merger Agreement is not complete and is qualified in its entirety by reference to the Merger Agreement and subsequent amendments thereto, which are identified in the list of exhibits in Item 9.01 below and are incorporated herein
by reference.
On April 10, 2013, the Company issued a press release announcing the completion of the Merger effective on April 10, 2013. A copy of the press release is included as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.
On April 10, 2013, Ecolab announced that it has completed a series of agreements (collectively the Clariant Agreement) with Clariant Corporation and its affiliate, Clariant International (collectively, Clariant), in accordance with the terms of the Companys previously announced consent agreement with the U.S. Department of Justice. Under the Clariant Agreement, Champion will sell a patent for a product used in the Deepwater Gulf of Mexico, agreed to license certain other Champion deepwater chemistries to Clariant for use in the Deepwater Gulf of Mexico, provided an option to Clariant to purchase a Champion chemical blending facility, agreed to manufacture relevant products for Clariant for a limited period and permitted Clariant the opportunity to recruit certain Champion employees. The Clariant Agreement impacts approximately 3% of Champions business.
Item 3.02 Unregistered Sales of Equity Securities.
The information provided in Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02. The shares of Ecolab common stock issued in connection with the Merger were issued without registration under the Securities Act, in reliance upon an exemption from registration pursuant to Section 4(2) of the Securities Act, as a transaction by an issuer not involving a public offering.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. |
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Description |
2.1 |
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Agreement and Plan of Merger, dated as of October 11, 2012, among Ecolab Inc., OFC Technologies Corp. and Permian Mud Service, Inc. Incorporated by reference to Exhibit (2.1) of the Companys Form 8-K dated October 12, 2012. |
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2.2 |
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First Amendment dated as of November 28, 2012 to Agreement and Plan of Merger, dated as of October 11, 2012, among Ecolab Inc., OFC Technologies Corp. and Permian Mud Service, Inc. Incorporated by reference to Exhibit 2.3 of the Companys Form 10-K Annual Report for the year ended December 31, 2012. |
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2.3 |
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Second Amendment dated as of November 30, 2012 to Agreement and Plan of Merger, dated as of October 11, 2012, among Ecolab Inc., OFC Technologies Corp. and Permian Mud Service, Inc. Incorporated by reference to Exhibit 2.1 of the Companys Form 8-K dated November 30, 2012. |
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2.4 |
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Third Amendment dated as of December 28, 2012 to Agreement and Plan of Merger, dated as of October 11, 2012, among Ecolab Inc., OFC Technologies Corp. and Permian Mud Service, Inc. |
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2.5 |
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Fourth Amendment dated as of April 10, 2013 to Agreement and Plan of Merger, dated as of October 11, 2012, among Ecolab Inc., OFC Technologies Corp. and Permian Mud Service, Inc. |
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4.1 |
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Registration Rights Agreement, dated as of April 10, 2013 by and among Ecolab Inc., the Holders identified on Schedule A thereto and John W. Johnson and Steven J. Lindley, in their capacity as Holders Representatives. |
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99.1 |
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News release dated April 10, 2013. |
SIGNATURES
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.
Dated: |
April 11, 2013 |
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ECOLAB INC. | ||
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By: |
/s/ MICHAEL C. MCCORMICK | |
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Michael C. McCormick | |
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Assistant Secretary | |
EXHIBIT INDEX
Exhibit No. |
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Description |
2.1 |
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Agreement and Plan of Merger, dated as of October 11, 2012, among Ecolab Inc., OFC Technologies Corp. and Permian Mud Service, Inc. Incorporated by reference to Exhibit (2.1) of the Companys Form 8-K dated October 12, 2012. |
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2.2 |
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First Amendment dated as of November 28, 2012 to Agreement and Plan of Merger, dated as of October 11, 2012, among Ecolab Inc., OFC Technologies Corp. and Permian Mud Service, Inc. Incorporated by reference to Exhibit 2.3 of our Form 10-K Annual Report for the year ended December 31, 2012. |
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2.3 |
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Second Amendment dated as of November 30, 2012 to Agreement and Plan of Merger, dated as of October 11, 2012, among Ecolab Inc., OFC Technologies Corp. and Permian Mud Service, Inc. Incorporated by reference to Exhibit 2.1 of our Form 8-K dated November 30, 2012. |
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2.4 |
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Third Amendment dated as of December 28, 2012 to Agreement and Plan of Merger, dated as of October 11, 2012, among Ecolab Inc., OFC Technologies Corp. and Permian Mud Service, Inc. |
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2.5 |
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Fourth Amendment dated as of April 10, 2013 to Agreement and Plan of Merger, dated as of October 11, 2012, among Ecolab Inc., OFC Technologies Corp. and Permian Mud Service, Inc. |
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4.1 |
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Registration Rights Agreement, dated as of April 10, 2013 by and among Ecolab Inc., the Holders identified on Schedule A thereto and John W. Johnson and Steven J. Lindley, in their capacity as Holders Representatives. |
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99.1 |
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News release dated April 10, 2013. |
Exhibit 2.4
THIRD AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
This Third Amendment to Agreement and Plan of Merger is entered into as of the 28th day of December, 2012 (this Amendment), by and among PERMIAN MUD SERVICE, INC., a Texas corporation (the Company), ECOLAB INC., a Delaware corporation (Parent), OFC TECHNOLOGIES CORP., a Texas corporation and wholly owned subsidiary of Parent (Merger Subsidiary), and John W. Johnson, Steven J. Lindley and J. Loren Ross, solely in their capacity as the Representatives. The Company, Parent, Merger Subsidiary and the Representatives are collectively referred to as the Parties.
Recitals:
WHEREAS, the Parties entered into that certain Agreement and Plan of Merger, dated as of October 11, 2012, as amended pursuant to that certain First Amendment to Agreement and Plan of Merger, dated November 28, 2012, and that certain Second Amendment to Agreement and Plan of Merger, dated November 30, 2012 (as amended, the Agreement);
WHEREAS, Parent and the Company have entered into a timing agreement with the United States Department of Justice extending the expiration of the waiting period for its review of the Merger under the HSR Act from December 28, 2012 to February 28, 2013, and, as of the date of this Amendment, the Parties do not believe that the United States Department of Justice will allow the Merger to close prior to December 31, 2012;
WHEREAS, the Company, in light of the anticipated delay in closing of the Merger, desires to (1) proceed with the Restructuring on or prior to December 31, 2012, and (2) pay a dividend of up to $175,000,000 in the aggregate to its shareholders on or prior to December 31, 2012; and
WHEREAS, the Parties have agreed and now desire to further amend and modify the Agreement to, among other matters, (i) allow the Company to effect the Restructuring on or prior to December 31, 2012, (ii) allow the Company to pay a cash dividend to its shareholders on or prior to December 31, 2012, in an aggregate amount up to $125,000,000 and to incur indebtedness to fund such dividend, (iii) allow the Company to distribute promissory notes of the Company, in the aggregate amount up to $50,000,000, as a dividend to its shareholders on or prior to December 31, 2012, and (iv) confirm the obligations of Parent with respect to the Incremental Tax Burden (which could possibly arise as a result of a closing after December 31, 2012) contained in Section 11.5 of the Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained herein, and or other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:
1. Recitals; Definitions. The recitals set forth above are true and correct and are incorporated herein by this reference. Capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Agreement.
2. Amendments. The Agreement is hereby amended as follows:
(a) The following additional and new definitions will be added to Section 1.1 as follows:
Dividend Notes shall have the meaning set forth in Section 4.1.
Original Disbursement Amount shall have the meaning set forth in Section 11.5(b).
(b) Section 2.6(a) of the Agreement shall be and hereby is amended in its entirety to read as follows:
(a) Each share of common stock, par value $.01 per share, of Merger Subsidiary issued and outstanding immediately prior to the Effective Time shall remain outstanding and shall represent one share of common stock, par value $0.50 per share, of the Surviving Corporation, so that, after the Effective Time, Parent or a wholly owned Subsidiary of Parent shall be the holder of all of the issued and outstanding shares of the Surviving Corporations common stock.
(c) The second sentence of Section 2.9(b)(iii) of the Agreement shall be and hereby is amended in its entirety to read as follows:
For purposes hereof, the Escrowed Stock Consideration and any stock dividends paid on the Escrowed Stock Consideration prior to the Escrow Termination Date and any cash amounts substituted for Escrowed Stock Consideration prior to the Escrow Termination Date shall be referred to as the Escrow Fund and held by the Escrow Agent until the Escrow Termination Date, unless earlier disbursed in accordance with Section 2.9(b)(iv).
(d) Section 4.1 of the Agreement is hereby amended to include a new paragraph at the end of such Section, which reads as follows:
Notwithstanding the foregoing, Parent acknowledges and agrees that the Company is authorized to, on or prior to December 31, 2012, (i) effect the Restructuring in accordance with Section 6.5(a), (ii) pay a cash dividend to the Stockholders of up to $125,000,000 and to borrow up to $150,000,000 in additional funds under the Loan Agreement listed as item 3 of Section 1.1(f) of the Company Disclosure Schedule to fund such dividend, and (iii) distribute unsecured subordinated promissory notes of the Company, in the aggregate amount up to $50,000,000 and in the form attached as Exhibit I (collectively, the Dividend Notes), as a dividend to its shareholders. For the avoidance of doubt, the parties agree that any (A) funds borrowed pursuant to the authorization granted in clause (ii) of the preceding sentence not included in the Debt Pay-Off Amount and the indebtedness represented by the Dividend Notes, in each case to the extent not fully repaid prior to or at Closing, together with all accrued and unpaid interest thereon and penalties or payments required to be paid in connection with the prepayment thereof, and (B) declared but unpaid dividends, shall constitute Debt for purposes of this Agreement and shall be reflected as such in the Closing Balance Sheet and the Final Balance Sheet. Promptly after the distribution of the Dividend Notes, the Company shall deliver to Parent true, correct and complete copies of the Dividend Notes, and the Dividend Notes shall not be amended without the prior written consent of Parent.
(e) The first sentence of Section 6.8(b) of the Agreement is hereby amended to add the words prior to January 15, 2013 in between the words Additionally, and the Company shall.
(f) Section 8.1 of the Agreement is hereby amended and restated in its entirety to read as follows:
8.1 Closing. Unless this Agreement shall have been terminated and the transactions herein contemplated shall have been abandoned pursuant to Article IX, and subject to the satisfaction or waiver of the conditions set forth in Article VII, the closing of the Merger (the Closing) shall take place at 9:00 a.m., not later than three Business Days after termination or expiration of the applicable waiting period (and any extension thereof) under the HSR Act, at the offices of Vinson & Elkins L.L.P., 1001 Fannin, Houston, Texas, unless another date, time or place is mutually agreed to in writing by Parent and the Company. If any of the conditions set forth in Article VII are not satisfied or waived at the time the Closing is to occur pursuant to this Section 8.1, Parent or the Company may, by notice to the other, adjourn the Closing to a date specified in that notice (but not later than the earlier of the second (2nd) Business Day after the conditions set forth in Article VII have been so satisfied or waived and the Termination Date).
(g) Section 11.5(b) of the Agreement is hereby amended and restated in its entirety to read as follows:
(b) Parent agrees to and will pay to the Representative (on behalf of the Stockholders) 50% of the incremental tax burden imposed on such Stockholders (the Incremental Tax Burden) in connection with this transaction, as a result of post-December 31 increases in applicable gains or investment taxes, including increases in capital gains rates and Health Care Act-related increases, which become effective after December 31, 2012. The Incremental Tax Burden applicable to each Stockholder shall be calculated as the increased tax rates multiplied by the value of the Closing Cash Consideration, Closing Stock Consideration and Escrowed Stock Consideration, as adjusted by the terms of the Agreement, received by such Stockholder pursuant to or in consideration of the Merger. Such payments, if required, will be paid on or before January 31, 2014, based on tax rates for 2013 as in effect on January 1, 2014. Parents aggregate payment obligation under this Section 11.5(b) shall be capped at $100,000,000. For purposes of the calculating the Incremental Tax Burden, the value of the Escrowed Stock Consideration shall be deemed to equal the Escrow Amount; provided, that, to the extent Parent receives a disbursement from the Escrow Fund pursuant to Section 10.6(c) to satisfy Damages (such amount of Damages is the Original Disbursement Amount), the amount of Damages for which Parent is entitled to receive disbursement from the Escrow Fund pursuant Section 10.6(c) shall be increased by an amount necessary to reimburse Parent for payments under this Section 11.5(b) associated with the portion of the Escrow Fund disbursed as the Original Disbursement Amount; provided in no event will such reimbursement payments be in an amount, in the aggregate, in excess of the Incremental Tax Burden payments received by such Stockholder from Parent with respect to the Escrowed Stock Consideration.
(h) A new Section 6.16 will be added to the Agreement which reads as follows:
6.16 Annual Bonus Payment. On or prior to December 31, 2012, the Company shall pay bonuses attributable to 2012 performance in the aggregate amount of approximately
$12,000,000 to employees under the Permian Mud Service, Inc. Annual Bonus Plan. Parent hereby consents to such payment for purposes of Section 4.1 of this Agreement.
(i) The first sentence of Section 10.6 of the Agreement shall be and hereby is amended in its entirety to read as follows:
Each Notice of Claim given by an Indemnitee, other than with respect to Third-Party Claims resolved in accordance with Section 10.5, shall be resolved as follows:
(j) Section 11.18(b) of the Agreement shall be and hereby is amended in its entirety to read as follows:
(b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any related matter in any Texas state or Federal court located in Harris County and the defense of an inconvenient forum to the maintenance of such claim in any such court.
(k) Exhibit I to the Merger Agreement is hereby added in the form of Annex A attached hereto.
3. References. All references to the Agreement in any document, instrument, agreement, or writing delivered pursuant to the Agreement (as amended hereby) shall hereafter be deemed to refer to the Agreement as amended hereby.
4. Counterparts. This Amendment may be executed in any number of counterparts and each such counterpart hereof shall be deemed to be an original instrument, but all of such counterparts shall constitute for all purposes one agreement. Any signature hereto delivered by a party hereto by facsimile transmission shall be deemed an original signature hereto.
5. Ratification. The terms and conditions of the Agreement, as amended hereby, are hereby ratified, confirmed and approved in their entirety by the Parties, shall continue in full force and effect and are enforceable in accordance therewith.
6. Miscellaneous Provisions. The provisions of Article XI of the Agreement are incorporated herein by this reference as if set out fully herein and shall apply in all respects to this Amendment.
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IN WITNESS WHEREOF, the Parties have executed this Third Amendment as of the date first above written. | ||
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COMPANY: |
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PERMIAN MUD SERVICE, INC. |
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By: |
/s/ Steven J. Lindley |
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Name: |
Steven J. Lindley |
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Title: |
President |
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PARENT: |
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ECOLAB INC. |
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By: |
/s/ Douglas M. Baker |
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Name: |
Douglas M. Baker |
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Title: |
Chairman and Chief Executive Officer |
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MERGER SUBSIDIARY: |
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OFC TECHNOLOGIES CORP. |
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By: |
/s/ Douglas M. Baker |
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Name: |
Douglas M. Baker |
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Title: |
Chief Executive Officer |
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REPRESENTATIVES: |
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/s/ John W. Johnson |
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John W. Johnson, as a Representative |
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/s/ Steven J. Lindley |
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Steven J. Lindley, as a Representative |
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/s/ J. Loren Ross |
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J. Loren Ross, as a Representative |
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[Third Amendment to Agreement and Plan of Merger]
Annex A
SUBORDINATED PROMISSORY NOTE
$ «Principal_Amount» |
December 28, 2012 |
FOR VALUE RECEIVED, the undersigned, PERMIAN MUD SERVICE, INC. a Texas corporation (Payor), hereby promises to pay to the order of «PAYEE» (Payee), the principal sum of «Amount» ($«Principal_Amount») together with interest (computed on the basis of the actual number of days elapsed in a 365 or 366 day year, as the case may be) on the unpaid principal balance hereof at an interest rate equal to the Stated Rate (as defined below). As used herein, the term Stated Rate means six percent (6.0%) per annum.
1. Dividend. This Subordinated Promissory Note (Note) has been issued by Payor to Payee as part of a dividend made on December 28, 2012 by Payor to its shareholders.
2. Principal and Interest Payments. Subject to paragraph 6 below:
a) Interest on the outstanding principal amount shall be payable at the Stated Rate semi-annually on June 30th and December 31st of each successive year with the first such interest payment being due on June 30, 2013.
b) All principal and accrued but unpaid interest under this Note shall be payable on December 31, 2017.
c) Once the Senior Debt (as hereinafter defined) has been Paid In Full (as hereinafter defined), Payor may prepay interest and/or principal, in whole or in part, at any time without penalty or premium. All prepayments shall be applied first to accrued and unpaid interest thereon and then the balance to principal.
d) Payments of principal and interest on this Note shall be made to Payee at the address designated on the signature page hereof or such other place within the continental United States as shall hereafter be designated in writing by Payee to Payor.
e) Whenever any payment on this Note shall be stated to be due on a day which is not a Business Day (as defined below), such payment shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of the payment of interest on this Note. Business Day means any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of Texas or is a day on which banking institutions located in Houston, Texas are authorized or required by law or other governmental action to close.
3. Waivers. Payor waives any and all formalities in connection with this Note to the maximum extent allowed by law, including (but not limited to) demand, diligence, presentment for payment, protest and demand, notice of intent to accelerate, notice of acceleration, and notice of extension, dishonor, protest, demand and nonpayment of this Note.
4. Binding Effect. This Note shall be binding upon Payor and its successors and assigns and shall inure to the benefit of Payee, and any subsequent Payee of this Note, and its successors and assigns.
5. Conformance with Laws. It is the intention of the parties hereto that Payee shall conform strictly to usury laws applicable to it. Accordingly, if the transactions contemplated hereby would be usurious as to Payee under laws applicable to it (including the laws of the United States of America and the State of Texas or any other jurisdiction whose laws may be mandatorily applicable to Payee notwithstanding the other provisions of this Note), then, in that event, notwithstanding anything to the contrary in this Note or any agreement entered into in connection with or as security for this Note, it is agreed that if the aggregate of all consideration which constitutes interest under law applicable to Payee that is contracted for, taken, reserved, charged or received by Payee under this Note or agreements or otherwise in connection herewith shall under no circumstances exceed the maximum amount allowed by such applicable law, and any excess shall be canceled automatically and if theretofore paid shall be credited by Payee on the principal amount of this Note (or, to the extent that the principal amount of this Note shall have been or would thereby be paid in full, refunded by Payee to Payor).
6. Subordination.
(a) As used in this Note, the term Senior Debt means any and all debt and obligations of Payor or any of its subsidiaries (i) incurred or arising under (x) that certain Credit Agreement dated March 7, 2011, among Payor and Champion Technologies, Inc., as borrowers, Wells Fargo Bank, N.A., as administrative agent (Administrative Agent), and the financial institutions as lenders party thereto, as such agreement may be amended, restated, extended, increased, or renewed from time to time, or under any promissory notes issued in connection with such Credit Agreement, (y) that certain Credit Agreement dated March 7, 2011, between Champion Technologies, Inc., and Frost Bank, as such agreement may be amended, restated, extended, increased, or renewed from time to time, or under any promissory notes issued in connection therewith, (z) that certain Credit Agreement between Champion Technologies, Ltd., as borrower, Payor and Johnson & Lindley, Inc., as guarantors, and Bank of America, N.A., as lender, dated as of January 16, 2007, as amended by that certain Amendment Agreement to Credit Agreement dated as of January 14, 2008, as amended by that certain Second Amendment Agreement to Credit Agreement dated as of October 20, 2008, as amended by that certain Third Amendment Agreement to Credit Agreement dated as of March 30, 2009, as amended by that certain Fourth Amendment Agreement to Credit Agreement dated as of January 14, 2010, as amended by that certain Fifth Amendment Agreement to Credit Agreement dated as of December 16, 2010, as amended by that certain Sixth Amendment Agreement to Credit Agreement dated as of December 6, 2011, and (ii) for which the instrument creating or evidencing the same or pursuant to which the same is outstanding expressly provides that such indebtedness or obligation shall be senior in right of payment to this Note or Payors or its subsidiarys subordinated indebtedness, unless the instrument creating or evidencing the same or pursuant to which the same is outstanding expressly provides that such indebtedness or obligation shall not be senior in right of payment to this Note.
(b) As used in this Note, the term Paid In Full means (i) the irrevocable payment in full in cash of all obligations (including but not limited to principal, interest, fees and expenses), (ii) cancellation of, or the entry into arrangements satisfactory to the Administrative Agent with respect to all letters of credit issued and outstanding under any of the Senior Debt, and (iii) the termination or expiration of all commitments to lend and all obligations to issue, extend or renew letters of credit.
(c) This Note is an unsecured obligation of Payor, and subordinate and junior in right and time of payment to all amounts now or hereafter payable under the Senior Debt of Payor and its subsidiaries. All obligations of Payor to pay principal, interest, fees, costs, expenses and other amounts in respect of Senior Debt now or hereafter existing must be Paid In Full before any amount payable under this Note (Junior Debt) shall be payable. Notwithstanding the foregoing, so long as no event of default or event that, with notice, lapse of time or both, would constitute an event of default shall have occurred and be continuing under the Senior Debt, Payor will not be prohibited by the terms of this Paragraph 6 from paying scheduled interest payments when due under this Note or paying other amounts owing on this Note at its stated maturity.
(d) In the event (each, an Insolvency Event) of any dissolution, winding up, liquidation, arrangement, reorganization, adjustment, protection, relief or composition of Payor or its debt, whether voluntary or involuntary, in any bankruptcy, insolvency or similar case or proceeding under any federal or state bankruptcy or similar law or upon an assignment for the benefit of creditors or any other marshaling of the assets and liabilities of Payor or otherwise, the holders of the Senior Debt shall be entitled to receive irrevocable payment in full of the Senior Debt before the holder of the Junior Debt is entitled to receive any payment of the Junior Debt. All payments and distributions upon or with respect to the Junior Debt which are received by any holder of Junior Debt contrary to the subordination provisions herein contained shall be received in trust for the benefit of the holders of Senior Debt.
(e) Until the Senior Debt has been Paid In Full, Payee shall not (i) sue for or take or receive from or on behalf of Payor or any of its subsidiaries by set-off or the exercise of any other remedies the whole or any part of any monies which may now or hereafter be owing by Payor under this Note; (ii) reduce any claim to judgment or otherwise institute any suit or take or exercise any other right, remedy or action against Payor or any of its subsidiaries to pursue, enforce or collect all or any part of this Note; (iii) commence or join with any other creditor or creditors of Payor or any of it subsidiaries in commencing any Insolvency Event against Payor or any of its subsidiaries; or (iv) exercise any rights of setoff or recoupment.
(f) Notwithstanding any other provision in this Note, the Junior Debt shall not be subordinated to any other indebtedness or other obligations of Payor other than the Senior Debt.
7. Payment of Note in Cash or Assets. At maturity and subject to paragraph 6 hereof, this Note may be paid, in Payors discretion (a) in cash, (b) by delivery by Payor of limited liability company interests in Downstream RWS, LLC, a Texas limited liability company (Downstream Business Company) or (c) by delivery of a combination of cash and limited liability interests in Downstream Business Company. At the time of any such payment in limited liability company interests, the Downstream Business Company will hold all of the downstream specialty chemical business and related assets of Payor and its subsidiaries.
8. Governing Law. THIS NOTE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
9. Amendments and Waiver. Any term of this Note may be amended and the observance of any term of this Note may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written consent of Payor and Payee; provided that, until the Senior Debt has been Paid in Full (a) this Note shall remain unsecured and no collateral or guaranties may be given as security for this Note, (b) no provision of this Note shall be amended in a manner that would be adverse to the holders of Senior Debt, (c) the final maturity date of the obligations may not be amended to a date earlier than December 31, 2017, (d) the interest rate may not be increased above 6.0% per annum and (e) none of the subordination provisions in paragraph 6 or otherwise, nor this paragraph 9, shall be amended or modified in any manner without the prior written consent of the Administrative Agent. Any amendment or waiver effected in accordance with this paragraph 9 shall be binding upon Payor and Payee.
10. Headings. The headings and captions used in this Note are used for convenience only and are not to be considered in construing or interpreting this Note. All references in this Note to sections, paragraphs, exhibits, and schedules shall, unless otherwise provided, refer to sections and paragraphs of this Note and exhibits and schedules attached to this Note, all of which exhibits and schedules are incorporated in this Note by this reference.
11. Miscellaneous. Wherever used herein the words Payor and Payee shall be deemed to include their respective successors, permitted assigns, and permitted endorsees. Every provision hereof is intended to be severable. If any clause, phrase, provision or portion of this Note or the application thereof is determined by a court of competent jurisdiction to be invalid or unenforceable under applicable law, the remaining clauses, phrases, provisions and portions of this Note shall not be affected or impaired thereby, but each such remaining clause, phrase, provision and portion shall be valid and be enforced to the fullest extent permitted by law.
[Signature page follows.]
IN WITNESS WHEREOF, Payor has caused this Note to be executed and delivered by its duly authorized officer, as of the day and year first written above.
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Permian Mud Service, Inc. | ||
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Steven J. Lindley |
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President |
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Signature Page to Promissory Note
Exhibit 2.5
EXECUTION VERSION
FOURTH AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
This Fourth Amendment to Agreement and Plan of Merger is entered into as of the 10th day of April, 2013 (this Amendment), by and among PERMIAN MUD SERVICE, INC., a Texas corporation (the Company), ECOLAB INC., a Delaware corporation (Parent), OFC TECHNOLOGIES CORP., a Texas corporation and wholly owned subsidiary of Parent (Merger Subsidiary), and John W. Johnson, Steven J. Lindley and J. Loren Ross, solely in their capacity as the Representatives. The Company, Parent, Merger Subsidiary and the Representatives are collectively referred to as the Parties.
Recitals:
WHEREAS, the Parties entered into that certain Agreement and Plan of Merger, dated as of October 11, 2012, as amended pursuant to that certain First Amendment to Agreement and Plan of Merger, dated November 28, 2012, and that certain Second Amendment to Agreement and Plan of Merger, dated November 30, 2012 (the Second Amendment), and that certain Third Amendment to Agreement and Plan of Merger, dated December 28, 2012 (as amended, the Agreement); and
WHEREAS, the Parties have agreed and now desire to further amend and modify the Agreement as set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Agreement.
2. Amendments. The Agreement is hereby amended as follows:
(a) All references in the Agreement to that certain Interest Rate Swap Agreement between the Company and Wells Fargo Bank, N.A., dated as of September 30, 2011, shall be and hereby are amended such that they read Interest Rate Swap Agreement between the Company and Wells Fargo Bank, N.A., dated as of May 5, 2011, as amended on October 20, 2011.
(b) The definitions of Future Transaction Tax Deductions and Transaction Tax Deductions in Section 1.1 of the Agreement are hereby amended and modified in their entirety to read as follows:
Future Transaction Tax Deductions means an amount equal to the portions of the Bonus Plan Participation Payments that, under Applicable Law, will be deductible for U.S. federal income tax and Canadian income tax purposes by Parent and its Subsidiaries in Tax periods ending after the Closing Date. For the avoidance of doubt, any deductions which are attributable to foreign entities that are pass through entities and therefore taken into consideration on a U.S. federal income tax return will be included for purposes of calculating Future Transaction Tax Deductions. Except as hereinabove provided, no other deductions of any kind whatsoever, including under any U.S. state, Canadian provincial or other jurisdiction outside the U.S. and Canada, or for any taxes other than
income taxes, will be included for purposes of calculating Future Transaction Tax Deductions.
Transaction Tax Deductions means an amount equal to the sum of the amount of deductions for U.S. federal income tax purposes and Canadian income tax purposes that, under Applicable Law, will be included on any Unfiled Consolidated U.S. Federal Income Tax Return or Unfiled Canadian Income Tax Return and result from (a) the payment of any Company Transaction Costs paid by Company, (b) the payment of the Bonus Plan Participation Payments, and (c) the payment of the Debt Pay-Off Amount. For the avoidance of doubt, any deductions which are attributable to foreign entities that are pass through entities and therefore taken into consideration on a U.S. Federal Income Tax return will be included for purposes of calculating Transaction Tax Deductions. Except as hereinabove provided, no other deductions of any kind whatsoever, including under any U.S. state, Canadian provincial or other jurisdiction outside the U.S. and Canada, or for any taxes other than income taxes, will be included for purposes of calculating Transaction Tax Deductions.
(c) The following additional and new definitions will be added to Section 1.1 of the Agreement as follows:
Broker Instruction has the meaning set forth in Section 2.9(b)(v)(A).
Capitalized Lease has the meaning set forth in Section 6.17(a).
Hoover has the meaning set forth in Section 6.17(a).
Sanjel has the meaning set forth in Section 6.17(b).
Sanjel Equipment Lease has the meaning set forth in Section 6.17(b).
Tax Audit has the meaning set forth in Section 10.10.
Unfiled Canadian Income Tax Return means any consolidated Canadian federal income tax return of the Canada Subsidiaries of the Company for a Pre-Closing Tax Period which due date (taking into account applicable extensions) is after the Closing Date and which has not been filed by the Closing Date.
(d) Section 2.9(b)(v) of the Agreement shall be and hereby is amended as follows:
(i) Clause (A) thereof shall be and hereby is amended and restated in its entirety to read as follows:
(A) cause the Escrow Agent to deliver for settlement to a broker-dealer selected by the Representative a portion or all of the Escrowed Stock Consideration or other securities then held in the Escrow Fund to be sold for cash consideration only by such broker-dealer in one or more market transactions, provided that such broker-dealer is a nationally-recognized broker-dealer and is authorized to act only upon a written instruction executed by the Representative, the form of which shall have been provided by the Representative to Parent at least one (1) full Business Day prior to the date of delivery to the broker-dealer (the Broker Instruction). The Broker Instruction must be acknowledged in writing by the
broker-dealer and (1) state that the Broker Instruction is the only instruction to such broker-dealer with respect to the sale of such securities and that, without the prior written approval of Parent, it may not be amended or revoked in whole or in part by the Representative in any manner which would (x) result in the net proceeds of the transaction not being deposited directly into the escrow account managed by the Escrow Agent from which the Escrowed Stock Consideration or other securities were delivered to such broker-dealer or unsold shares not being redeposited into such escrow account, or (y) modify the requirements specified in clauses (1) through (5) hereof; (2) require that the sale or settlement of any Escrowed Stock Consideration or other securities by such broker-dealer is conducted in one or more market transactions for cash consideration only; (3) direct that any and all net proceeds of such sale or settlement will be promptly (but in no event later than five Business Days following such sale or settlement) deposited into the escrow account managed by the Escrow Agent from which the Escrowed Stock Consideration or other securities were delivered to such broker-dealer in accordance with wire instructions to be delivered by the Escrow Agent simultaneously with the delivery of such securities to the broker-dealer for settlement; (4) require that any securities delivered by the Escrow Agent that for whatever reason are not sold or settled are promptly (but in no event later than five Business Days following receipt) returned to the Escrow Agent; and (5) include a requirement that the sale of any Escrowed Stock Consideration (or other securities then held in the Escrow Fund) will not be executed at a price per share lower than the sales of other shares of Parent Common Stock or other such securities, if any, offered for sale contemporaneously by such broker-dealer at the direction of any of the Representatives. As promptly as practicable after the Closing, Parent and the Representatives shall jointly develop and agree upon a form of Broker Instruction that meets the requirements of this Section 2.9(b)(v)(A);
(ii) The last sentence thereof shall be and hereby is amended and restated in its entirety to read as follows:
Parent agrees to execute joint written instructions as requested by the Representative in order to effect any of the actions described in Section 2.9(b)(v)(A) (provided such instructions are consistent with or written waiver by Parent has been obtained of the conditions set forth therein) or 2.9(b)(v)(B).
(e) Sections 4.3 and 7.2 of the Agreement shall be and hereby are amended to reflect that, (i) other than with respect to that certain ISDA Master Agreement, dated as of February 18, 2011, by and between Wells Fargo Bank, N.A. and Champion Technologies, Inc. (which shall not be terminated at or prior to the Effective time and for which no consent is required as a result of the transactions contemplated in the Agreement), those agreements listed on Section 1.1(f) of the Company Disclosure Schedule and Schedule 4.3 shall be terminated at or prior to the Effective Time, and (ii) subject to the termination of each such agreement as contemplated by clause (i), no consent with respect to such agreement shall be required as a result of the transactions contemplated in the Agreement.
(f) The Company Disclosure Schedule shall be and is hereby amended to delete those disclosure schedules listed on and attached hereto as Annex A in their entirety and substitute in lieu and replacement thereof the disclosure schedules attached hereto as Exhibit A in order to accurately reflect the Parties agreement with respect to (i) the
effectuation of (A) the Downstream Business Restructuring and an amendment to the scope of the Downstream Business as reflected in Schedule 1.1(i) to the Company Disclosure Schedule and an amendment to reflect the agreed list of Downstream Business Assets as reflected in revised Schedule 1.1(j) to the Company Disclosure Schedule (as specified by notations in the relevant disclosure schedules attached hereto as Exhibit A, which amendments shall be consistent with the Downstream Business Closing Documents and are not intended to expand or modify the assets, rights, liabilities or obligations conveyed, transferred or licensed pursuant to the Downstream Business Closing Documents) and (B) the Deepwater Gulf of Mexico spin-off, and (ii) any matters arising in the ordinary course of business since the date of execution of the Agreement and other amendments to the disclosure schedules for purposes of correcting information therein; provided that, in accordance with Section 11.9 of the Agreement, any amendments described in the immediately preceding clause (ii) shall be for informational purposes only and shall not be deemed to amend, supplement or modify the Company Disclosure Schedule for purposes of the conditions to Closing in Article VII of the Agreement, the termination provisions in Article IX of the Agreement or the indemnification provisions in Article X of the Agreement.
(g) A new Section 6.17 is added to the Agreement as follows:
Section 6.17 Hoover Materials Capital Lease.
(a) The Parties acknowledge and agree that, notwithstanding any other provision of this Agreement, the Debt represented by that certain Lease-Purchase Agreement between Hoover Materials Handling Group Inc. (Hoover) and Corsicana Technologies effective April 2, 2012 (the Capitalized Lease), except for past due lease payments and other amounts due or owed to Hoover as of the Effective Time that are not fully offset or supported by payments to Corsicana Technologies under the Sanjel Equipment Lease, shall not be reflected on the Closing Balance Sheet or the Final Balance Sheet, included in the calculation of Estimated Debt or Closing Debt, included in the amount of any Estimated Working Capital Surplus or Estimated Working Capital Deficiency, included in the amount of any Closing Working Capital Surplus or Closing Working Capital Deficiency, or otherwise result in any adjustment to the Merger Consideration (except as provided in Section 6.17(b)).
(b) In the event that Sanjel (USA) Inc. (Sanjel) defaults and fails to pay to Corsicana Technologies the lease payments required to be paid by Sanjel to Corsicana Technologies under that certain Equipment Lease Agreement between Corsicana Technologies and Sanjel, dated March 20, 2012, as existing at the Effective Time (the Sanjel Equipment Lease), then Parent and the Representatives may at any time after such failure to pay cause an amount equal to the aggregate amount of missed payments (together with any penalties under the Sanjel Equipment Lease and costs of collection) to be paid to Parent or Corsicana Technologies out of the Escrow Funds, and the Representative agrees to execute joint written instructions to the Escrow Agent in connection with any such disbursement of Escrow Funds.
(c) Parent agrees that if Escrow Funds are paid to Parent or Corsicana Technologies pursuant to Section 6.17(b) then Parent will cause Corsicana Technologies to assign to Johnson & Lindley, LLC or such other Person as may be designated by
the Representatives, all rights against Sanjel arising out of the default under the Sanjel Equipment Lease to seek recourse for reimbursement of the amounts paid out of the Escrow Funds from Sanjel.
3. Downstream Business Restructuring Documents. The Parties acknowledge and agree that, to the extent that there are any conflicts or inconsistencies between the Bill of Sale, Assignment and Assumption Agreement, the Transition Services Agreement, the Manufacturing and Raw Materials Supply Agreement, the Intellectual Property Assignment Agreement, the Intellectual Property Cross License Agreement and the Non-Competition Agreement entered into in connection with the Downstream Business Restructuring (the Downstream Business Closing Documents) and the provisions of the Second Amendment, the provisions of the Downstream Business Closing Documents shall control.
4. Waiver of Pre-Closing Delivery Time Requirements. The Parties acknowledge their mutual desire to close the Merger on an expedited basis and accordingly, agree that if the Closing occurs, then at the Effective Time each Party shall be deemed to have waived any pre-closing delivery time requirements imposed upon the other Parties under the following sections of the Agreement: Section 2.10 (five (5) days prior to the Closing Date), Section 4.4 (three (3) Business Days prior to the Closing Date), Section 4.5 (three (3) Business Days prior to the Closing Date), Section 6.2 (fifteen (15) Business Days prior to before the Closing Date) and Section 6.5(d) (prior to December 10, 2012).
5. Bonus Plan. Ecolab acknowledges that it has received and has approved the terms of the Bonus Plan and the related Bonus Plan Participation Payments in accordance with Section 6.2(a) of the Merger Agreement.
6. References. All references to the Agreement in any document, instrument, agreement, or writing delivered pursuant to the Agreement (as amended hereby) shall hereafter be deemed to refer to the Agreement as amended hereby.
7. Counterparts. This Amendment may be executed in any number of counterparts and each such counterpart hereof shall be deemed to be an original instrument, but all of such counterparts shall constitute for all purposes one agreement. Any signature hereto delivered by a party hereto by facsimile transmission shall be deemed an original signature hereto.
8. Ratification. The terms and conditions of the Agreement, as amended hereby, are hereby ratified, confirmed and approved in their entirety by the Parties, shall continue in full force and effect and are enforceable in accordance therewith.
9. Miscellaneous Provisions. The provisions of Article XI of the Agreement are incorporated herein by this reference as if set out fully herein and shall apply in all respects to this Amendment.
IN WITNESS WHEREOF, the Parties have executed this Fourth Amendment as of the date first above written.
COMPANY: |
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PERMIAN MUD SERVICE, INC. |
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By: |
/s/ Steven J. Lindley |
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Name: |
Steven J. Lindley |
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Title: |
President |
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PARENT: |
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ECOLAB INC. |
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By: |
/s/ James J. Seifert |
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Name: |
James J. Seifert |
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Title: |
Executive Vice President, General Counsel & Secretary |
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MERGER SUBSIDIARY: |
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OFC TECHNOLOGIES CORP. |
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By: |
/s/ Michael C. McCormick |
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Name: |
Michael C. McCormick |
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Title: |
President |
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REPRESENTATIVES: |
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/s/ John W. Johnson |
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John W. Johnson, as a Representative |
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/s/ Steven J. Lindley |
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Steven J. Lindley, as a Representative |
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/s/ J. Loren Ross |
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J. Loren Ross, as a Representative |
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[Fourth Amendment to Agreement and Plan of Merger]
Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of April 10, 2013, is entered into by and among Ecolab Inc., a Delaware corporation (the Company), the parties identified on Schedule A hereto (each, a Holder and together, the Holders) and John W. Johnson and Steven J. Lindley, in their capacity Holders Representative.
WHEREAS, the Company has entered into that certain Agreement and Plan of Merger, dated as of October 11, 2012, by and among the Company, OFC Technologies Corp., a Texas corporation (Merger Sub) Permian Mud Service, Inc., a Texas corporation (Permian), and John W. Johnson, Steven J. Lindley and J. Loren Ross, in their capacity as the Representatives, as amended pursuant to that certain First Amendment to Agreement and Plan of Merger, dated November 28, 2012, that certain Second Amendment to Agreement and Plan of Merger, dated November 30, 2012, and that certain Third Amendment to Agreement and Plan of Merger, dated December 28, 2012 (as from time to time amended, the Merger Agreement), providing for the merger of Merger Sub with and into Permian, pursuant to which, among other things, the Holders will become holders of Common Stock; and
WHEREAS, in connection with the Merger Agreement, the Company and the Holders are entering into this Agreement pursuant to which the Company shall provide certain registration rights to the Holders.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in the Merger Agreement and herein, intending to be legally bound, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. The following terms shall have the meanings ascribed to them below:
Agreement means this Registration Rights Agreement, as amended, modified or supplemented from time to time, in accordance with the terms hereof, together with any exhibits, schedules or other attachments thereto.
Closing Date shall have the meaning ascribed to such term in the Merger Agreement.
Commission means the United States Securities and Exchange Commission or any other federal agency at the time administering either the Securities Act or the Exchange Act.
Common Stock means the common stock, par value $1.00 per share, of the Company (and any other securities into which or for which the Common Stock may be converted or exchanged pursuant to a dividend, stock split, plan of recapitalization, reorganization, merger, sale of assets or otherwise).
Company has the meaning set forth in the preamble to this Agreement.
Covered Person has the meaning set forth in Section 3.01.
Damages has the meaning set forth in Section 3.01.
Exchange Act means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
Filed Materials means (a) the Shelf Registration Statement, (b) a prospectus or any issuer free writing prospectus in connection with the Shelf Registration Statement and (c) any amendment or supplement to such Shelf Registration Statement, prospectus or issuer free writing prospectus, in each case including any exhibits thereto other than those which are being incorporated by reference and that are publicly available.
Holder and Holders has the meaning set forth in the preamble to this Agreement.
Holders Representative means John W. Johnson and Steven J. Lindley, or either of them, or such other representative as may be designated at any time and from time to time by written notice from Holders representing a majority of the Registrable Securities then outstanding to the Company in accordance with Section 4.06.
Indemnified Party has the meaning set forth in Section 3.03.
Indemnifying Party has the meaning set forth in Section 3.03.
Merger Agreement has the meaning set forth in the recitals to this Agreement.
Person shall mean any individual, corporation, partnership, firm, limited liability company, joint venture, trust, association, unincorporated organization, university, group, joint-stock company or other entity.
register, registered and registration shall mean any registration effected by preparing and (a) filing a Registration Statement in compliance with the Securities Act (and any post-effective amendments filed or required to be filed) and the declaration or ordering of effectiveness of such Registration Statement, or (b) filing a prospectus and/or prospectus supplement in respect of an appropriate effective Registration Statement.
Registrable Securities means, subject to the last sentence of this definition, (a) shares of Common Stock beneficially owned by any of the Holders and received by such Holders pursuant to the Merger Agreement (including shares of Common Stock deposited with the Escrow Agent in connection with the Merger) and (b) any other securities issued or issuable with respect to any such shares described in clause (a) above by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization. Any Registrable Securities shall cease to be Registrable Securities when (i) they are sold or otherwise disposed of pursuant to an effective Registration Statement or (ii) they have been sold or all remaining Registrable Securities held by such Holder may be sold under Rule 144 under the Securities Act (or any similar provision then in force).
Registration Statement means any registration statement of the Company on an appropriate registration form under the Securities Act, including the prospectus, amendments and supplements thereto, and all exhibits and material incorporated by reference therein.
Scheduled Black-out Period means any black-out period declared by the Company in connection with an annual or quarterly earnings release in accordance with Company policy (as may be amended from time to time).
Securities Act means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
Selling Stockholder Questionnaire means a questionnaire in the form attached as Schedule B hereto.
Shelf Registration Statement means a Registration Statement on Form S-3 (or any successor or similar provision) or any other appropriate Registration Statement that may be available at such time, in each case for an offering to be made on a continuous or delayed basis pursuant to Rule 415 (or any successor or similar provision) under the Securities Act covering Registrable Securities. To the extent that the Company is a well-known seasoned issuer (as such term is defined in Rule 405 (or any successor or similar rule) of the Securities Act), a Shelf Registration Statement shall be deemed to refer to an automatic shelf registration statement, as such term is defined in Rule 405 (or any successor or similar rule) of the Securities Act.
Suspension Period has the meaning set forth in Section 2.05(a).
ARTICLE II
REGISTRATION RIGHTS
Section 2.01 Shelf Registration.
(a) Shelf Registration. Subject to Section 2.05, the Company shall file and cause the Shelf Registration Statement to be effective on or prior to the Closing Date.
(b) Effectiveness. The Company shall use commercially reasonable efforts to keep the Shelf Registration Statement effective under the Securities Act until the earlier of (i) one hundred eighty (180) days after the Closing Date, (ii) the date on which all Registrable Securities covered by the Shelf Registration Statement have been sold and (iii) the first date on which no Registrable Securities remain outstanding.
Section 2.02 Registration Expenses. The Company shall pay the following registration costs and expenses incurred in connection with the registration pursuant to Section 2.01: (i) registration and filing fees and expenses, including, without limitation, those related to filings with the Commission, (ii) fees and expenses of compliance with state securities or blue sky laws (including reasonable fees and disbursements of counsel in connection with blue sky qualifications of the Registrable Securities), (iii) reasonable processing, duplicating and printing expenses, including, without limitation, expenses of printing any prospectuses or issuer free writing prospectuses reasonably requested by any Holder, (iv) the Companys internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties, the expense of any liability insurance and the expense of any annual audit or quarterly review), (v) fees and expenses incurred in connection with listing the Registrable Securities for trading on a national securities exchange, including, without limitation, fees and expenses of The New York Stock Exchange, (vi) fees and expenses in connection with the preparation of the Shelf Registration Statement and related documents, (vii) the cost of providing any CUSIP or other identification numbers for the Registrable Securities, (viii) fees and expenses and disbursements of counsel for the Company and fees and expenses for independent certified public accountants retained by the Company (including, without limitation, the expenses of any comfort letters or costs associated with the delivery by independent certified public accountants of a comfort letter or comfort letters requested), and (ix) fees and expenses of any special experts retained by the Company in connection with such registration. Each Holder shall be responsible for any underwriting fees, discounts or commissions as well as disbursements to counsel for any Holder attributable to the sale of Registrable Securities pursuant to a Registration Statement.
Section 2.03 Registration Procedures. In connection with any registration pursuant to Section 2.01 (in each case, to the extent applicable):
(a) The Company shall prepare and file with the Commission a Shelf Registration Statement with respect to the Registrable Securities and use commercially reasonable efforts to cause such Shelf Registration Statement to become effective as soon as reasonably practicable but in any event on or prior to the Closing Date.
(b) The Company shall prepare and file with the Commission such amendments and supplements to the Shelf Registration Statement and the prospectus used in connection therewith as may be necessary to comply with the provisions of the Securities Act applicable to it with respect to the disposition of Registrable Securities covered thereby for the period set forth in Section 2.01(b).
(c) Prior to filing any Filed Materials, the Company shall make available to each Holder copies of the Filed Materials as proposed to be filed and such other documents or information as such Holder may reasonably request in order to permit the Holders sufficient time to review and commenton the same and facilitate the disposition of the Registrable Securities in accordance with the plan of distribution set forth in the prospectus included in the Shelf Registration Statement. Thereafter, the
Company shall furnish to such Holders, without charge, such number of copies of the Filed Materials as such Holders may reasonably request.
(d) The Company shall promptly notify each Holder of any stop order issued or threatened by the Commission and, if entered, use commercially reasonable efforts to prevent the entry of such stop order or to remove it as soon as reasonably possible.
(e) On or prior to the date on which the Shelf Registration Statement is declared effective, the Company shall use commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as any Holder reasonably requests and do any and all other lawful acts and things which may be necessary or advisable to enable the Holders to consummate the disposition in such jurisdictions of such Registrable Securities, and use commercially reasonable efforts to keep each such registration or qualification (or exemption therefrom) effective while the Shelf Registration Statement remains effective; provided, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 2.03(e), (ii) subject itself to taxation in any jurisdiction where it would not otherwise be subject but for this Section 2.03(e) or (iii) consent to general service of process in any jurisdiction where it would not otherwise be subject but for this Section 2.03(e).
(f) The Company will promptly notify each Holder (i) when any prospectus, prospectus supplement, post-effective amendment or issuer free writing prospectus in connection with the Shelf Registration Statement has been filed, and when the Shelf Registration Statement or any post-effective amendment thereto has become effective, (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to the Filed Materials (provided that as promptly as practicable after such request, the Company shall use commercially reasonable efforts to prepare and file such amendments or supplements), (iii) of the issuance by any state securities commission or other regulatory authority of any order suspending the qualification or exemption from qualification of any of the Registrable Securities under state securities or blue sky laws or the initiation of any proceedings for that purpose (provided that as promptly as practicable after the issuance of such order, the Company shall use commercially reasonable efforts to obtain the withdrawal of such suspension of qualification), and (iv) of the occurrence of any event that requires the making of any changes to the Shelf Registration Statement or such prospectus, issuer free writing prospectus or documents so that such documents do not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements, in light of the circumstances under which they were made, not misleading (provided that (1) as promptly as practicable after such occurrence, the Company shall use commercially reasonable efforts to prepare and file with the Commission a supplement or amendment to the Shelf Registration Statement or such prospectus or issuer free writing prospectus so that such documents will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements, in light of the circumstances under which they were made, not misleading and (2) each Holder hereby agrees to keep any disclosures pursuant to this clause (iv) confidential until such time as a supplement or amendment containing such disclosures is filed).
(g) The Company will furnish to each Holder copies of any and all transmittal letters or other correspondence between the Company and the Commission or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) relating to such offering of Registrable Securities.
(h) The Company will cause all such Registrable Securities registered pursuant to this Agreement to be listed on each securities exchange or nationally recognized quotation system on which similar securities issued by the Company are then listed.
(i) The Company will provide a transfer agent and registrar for all Registrable Securities covered by the Shelf Registration Statement not later than the Closing Date.
(j) The Company will furnish customary closing certificates and other deliverables to the Holders and enter into customary agreements reasonably satisfactory to the Company and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities.
Section 2.04 Holders Obligations. Each Holder shall, as a condition precedent to the Companys obligations under this Article II, promptly furnish in writing to the Company such information regarding the distribution of the Registrable Securities as the Company may from time to time reasonably request and such other information as may be legally required in connection with the registration of the Registrable Securities, including, without limitation, a completed Selling Stockholder Questionnaire and all such information as may be requested by the Commission. Each Holder agrees that, upon receipt of any notice from the Company of the occurrence of any event of the kind described in Section 2.03(f)(ii) through (iv), such Holder will forthwith discontinue the offering or selling of Registrable Securities pursuant to the Shelf Registration Statement covering such Registrable Securities until such Holders receipt from the Company of the copies of the supplemented or amended prospectus or issuer free writing prospectus contemplated by Section 2.03(f), and, if so directed by the Company, such Holder will deliver to the Company all copies, other than permanent file copies then in such Holders possession and retained solely in accordance with record retention policies then-applicable to such Holder, of the most recent prospectus or issuer free writing prospectus covering such Registrable Securities at the time of receipt of such notice.
Section 2.05 Blackout Provisions.
(a) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any Holder whose Registrable Securities are included in the Shelf Registration Statement, suspend such Holders use of any prospectus which is a part of the Shelf Registration Statement (in which event the Holder shall discontinue sales of the Registrable Securities pursuant to the Shelf Registration Statement), (i) if the Company is pursuing a financing, acquisition, merger, reorganization, disposition or other similar transaction and determines in good faith that its ability to pursue or consummate such a transaction would be materially adversely affected by any required disclosure of such transaction, (ii) if the Company in good faith determines that it is in possession of material non-public information the disclosure of which the Company reasonably believes would not be in the best interests of the Company or its security holders, or (iii) during any Scheduled Black-Out Period. Any period during which the Holders are prohibited from effecting sales or the Company exercises its rights, in each case pursuant to this Section 2.05(a), shall constitute a Suspension Period. Upon disclosure of such information or transaction pursuant to clause (i) or (ii) of this Section 2.05(a), the Company shall provide prompt notice to the Holders and shall terminate any suspension under the Shelf Registration Statement.
(b) Each Holder agrees that, upon receipt of a written notice from the Company of a Suspension Period, such Holder (i) shall forthwith discontinue any disposition of Registrable Securities pursuant to the Shelf Registration Statement until such Holders receipt of a notice from the Company to the effect that such Suspension Period has terminated and (ii) shall keep the receipt of the notice and the subject matter thereof confidential.
Section 2.06 Clear Market Periods. In the event of a registration by the Company involving the offering and sale by the Company of equity securities (including without limitation Common Stock) or securities convertible into or exchangeable for its equity securities (including without limitation Common Stock), the Holders agree, if and to the extent requested in writing by the Company (or, in the case of an underwritten public offering, by the managing underwriter or underwriters), not to effect any public sale or distribution (excluding any sale pursuant to Rule 144 under the Securities Act) of any securities (except, in each case, as part of the applicable registration, if permitted) which securities are the same as or similar to those being registered in connection with such registration, or which are convertible
into or exchangeable or exercisable for such securities, during the period beginning seven (7) days before, and ending sixty (60) days after the date that a prospectus, prospectus supplement or free writing prospectus relating to such public offering is filed with the Commission, provided that the duration of the foregoing restriction shall be no longer than the duration of the shortest restriction imposed by the Company or such underwriters on the officers, directors or any other holder of Common Stock on whom a restriction is imposed in connection with such public offering.
ARTICLE III
INDEMNIFICATION
Section 3.01 Indemnification by the Company. With respect to each registration which has been effected pursuant to Section 2.01, the Company agrees, notwithstanding the termination of this Agreement, to indemnify and hold harmless, to the fullest extent permitted by law, each Holder and each of its managers, members, partners, officers, directors, employees and agents, and each Person, if any, who controls such Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, together with the managers, members, partners, officers, directors, employees and agents of such controlling Person (each such Person being referred to herein as a Covered Person), from and against any and all losses, claims, damages, liabilities, reasonable attorneys fees, costs and expenses of investigating and defending any such claim (collectively, Damages) and any action in respect thereof to which such Holder or Covered Person may become subject under the Securities Act or otherwise, insofar as such Damages (or proceedings in respect thereof) arise out of, or are based upon, (i) an untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement (including any prospectus or issuer free writing prospectus) or any amendment or supplement thereto or (ii) an omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or issuer free writing prospectus, in light of the circumstances in which they were made) not misleading, and shall reimburse each such Covered Person for any legal and other expenses reasonably incurred by such Covered Person in investigating or defending or preparing to defend against any such Damages or proceedings; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or fees, costs or expenses arise out of or is based upon (1) an untrue statement or alleged untrue statement, or omission or alleged omission, made or incorporated by reference in the Shelf Registration Statement, or any such prospectus, issuer free writing prospectus or preliminary prospectus, or any amendment or supplement thereto, or any document incorporated by reference therein, in reliance upon, and in conformity with, written information prepared and furnished to the Company by any Covered Person for use therein or (2) the failure of any Holder to satisfy any requirement upon Holder to deliver or cause to be delivered the proper prospectus contained in the Shelf Registration Statement to any purchaser of Registrable Securities covered by the Shelf Registration Statement through no fault of the Company. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any Covered Person, and shall survive the transfer of such securities by any Holder.
Section 3.02 Indemnification by the Holders. Each of the Holders agrees, severally but not jointly, to indemnify and hold harmless the Company, its officers, directors, employees, agents, each underwriter and each Person, if any, who controls the Company or any of its subsidiaries within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, together with the managers, members, partners, officers, directors, employees and agents of such Person, to the same extent as the foregoing indemnity from the Company to the Holders, for (1) information related to a Covered Person, or their plan of distribution, furnished in writing by the Holders to the Company for use in the Shelf Registration Statement, or prospectus, issuer free writing prospectus or preliminary prospectus, or any amendment or supplement thereto, and (2) the failure of any Holder to satisfy any requirement upon Holder to deliver or cause to be delivered the proper prospectus contained in the Shelf Registration
Statement to any purchaser of Registrable Securities covered by the Shelf Registration Statement through no fault of the Company. No Holder shall be required to indemnify any Person pursuant to this Section 3.02 for any amount in excess of the net proceeds of the Registrable Securities sold for the account of such Holder.
Section 3.03 Conduct of Indemnification Proceedings. Promptly after receipt by any Person (an Indemnified Party) of notice of any claim or the commencement of any action in respect of which indemnity may be sought pursuant to Section 3.01 or 3.02, the Indemnified Party shall, if a claim in respect thereof is to be made against the Person against whom such indemnity may be sought (an Indemnifying Party), notify the Indemnifying Party in writing of the claim or the commencement of such action. The failure to notify the Indemnifying Party in accordance with the preceding sentence shall not relieve the Indemnifying Party from any liability that it may have to an Indemnified Party under Section 3.01 or 3.02, except to the extent that the Indemnifying Party is prejudiced thereby. If any such claim or action shall be brought against an Indemnified Party, and it shall notify the Indemnifying Party thereof, the Indemnifying Party shall be entitled to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such claim or action, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable out-of-pocket costs of investigation; provided, that the Indemnified Party shall have the right to employ separate counsel to represent the Indemnified Party, but the fees and expenses of such counsel shall be for the account of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (ii) in the reasonable opinion of counsel to such Indemnified Party representation of both parties by the same counsel would be inappropriate due to actual or potential conflicts of interest between them, it being understood, however, that the Indemnifying Party shall not, in connection with any one such claim or action or separate but substantially similar or related claims or actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for all Indemnified Parties. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any claim or pending or threatened proceeding in respect of which the Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability arising out of such claim or proceeding. Whether or not the defense of any claim or action is assumed by the Indemnifying Party, such Indemnifying Party will not be subject to any liability for any settlement made without its written consent.
ARTICLE IV
MISCELLANEOUS
Section 4.01 Termination. This Agreement shall terminate, automatically and without any action of any party hereto, upon the earlier to occur of (a) termination of the Merger Agreement prior to consummation of the Merger (as defined in the Merger Agreement) in accordance with the provisions thereof and (b) the first date on which no Registrable Securities remain outstanding. In the event of termination of this Agreement for any reason, this Agreement shall immediately become void and have no effect, without any liability or obligation on the part of the Company or any Holder; provided that Article III and Article IV shall survive such termination.
Section 4.02 Further Assurances. The Company and the Holders will execute and deliver all such further documents and instruments and take all such further action as may be necessary in order to consummate the transactions contemplated hereby.
Section 4.03 Amendment and Modification. This Agreement may be amended, modified and supplemented, and any of the provisions contained herein may be waived, only by a written instrument signed by the Company and Holders representing a majority of the Registrable Securities then outstanding; provided, however, that no such amendment shall materially and adversely affect the rights of any Material Holder hereunder without the consent of such Holder. A Material Holder (for purposes of this Section 4.03) shall be a holder who receives pursuant to the Merger and beneficially owns in excess of 1,000 shares of Registrable Securities.
Section 4.04 Assignment; Binding Effect; Entire Agreement. This Agreement and the rights and obligations hereunder may not be assigned by any party hereto without the prior written consent of each of the other parties hereto. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement sets forth the entire agreement and understanding between the parties as to the subject matter hereof and merges and supersedes all prior discussions, agreements and understandings of any and every nature among them with respect to the subject matter hereof.
Section 4.05 Severability. In the event that any provision of this Agreement or the application of any provision hereof is declared to be illegal, invalid or otherwise unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall not be affected except to the extent necessary to delete such illegal, invalid or unenforceable provision unless that provision held invalid shall substantially impair the benefits of the remaining portions of this Agreement.
Section 4.06 Notices. All notices, requests and other communications to any party hereunder shall be in writing (including fax or similar writing) and shall be given to:
if to the Company:
Ecolab Inc.
370 Wabasha Street North
Saint Paul, Minnesota 55102
Attn: James J. Seifert
Executive Vice President, General Counsel and Secretary
Phone: (651) 293-2981
Fax: (651) 293-2471
with copies (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
155 N. Wacker Drive
Chicago, IL 60606
Attn: Charles W. Mulaney, Jr.
Joseph Miron
Phone: (312) 407-0700
Fax: (312) 407-0411
if to any Holder or the Holders Representative:
John W. Johnson
3200 Southwest Freeway, Suite 2700
Houston, Texas 77027
Phone: (713) 590-7002
Fax: (713) 627-0161
Steven J. Lindley
3200 Southwest Freeway, Suite 2700
Houston, Texas 77027
Phone: (713) 590-7004
Fax: (713) 627-0161
with a copy (which shall not constitute notice) to:
Vinson & Elkins L.L.P.
1001 Fannin, Suite 2500
Houston, Texas 77002
Attention: Christopher S. Collins
Facsimile: (713) 615-5883
or such other address or fax number as such party may hereafter specify for the purpose of giving such notice to such party. Each such notice, request or other communication shall be deemed to have been received (a) if given by fax, when such fax is transmitted to the fax number specified pursuant to this Section 4.06 and appropriate confirmation is received, or (b) if given by any other means, when delivered in person or by overnight courier.
Section 4.07 Holders Representative. The Company shall be entitled to rely upon the written communications of the Holders Representative, acting on behalf of any Holder, relating to matters addressed in this Agreement as communications of the Holders, including, without limitation, any elections, amendments, waivers or consents made pursuant to this Agreement. Any notice or communication delivered to the Holders Representative shall be deemed to have been delivered to each Holder for all purposes hereof. Each of the Holders shall conduct all written communications to the Company pursuant to this Agreement through the Holders Representative.
Section 4.08 Headings. The headings in this Agreement are for convenience of reference only and shall not constitute a part of this Agreement, nor shall they affect their meaning, construction or effect.
Section 4.09 Counterparts. This Agreement may be executed via facsimile or electronic transmission and in any number of counterparts, each of which shall be deemed to be an original instrument and all of which together shall constitute one and the same instrument.
Section 4.10 Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement, and any dispute arising out of, relating to or in connection with this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles. Each of the parties hereto (a) consents to the exclusive personal jurisdiction and venue in any action to enforce this Agreement in the federal or state courts located in Wilmington, Delaware; (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court; and (c) agrees that it shall not bring any action relating to this Agreement in any court other than the federal or state courts located in Wilmington, Delaware. Each of the parties hereto waives any right to trial by jury with respect to any action, suit or proceeding arising out of or related to this Agreement.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.
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ECOLAB INC. | |
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James J. Seifert |
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Executive Vice President, General Counsel & Secretary |
[Signature Page to Registration Rights Agreement]
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HOLDERS REPRESENTATIVES: |
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/s/ John W. Johnson |
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John W. Johnson |
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/s/ Steven J. Lindley |
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Steven J. Lindley |
[Signature Page to Registration Rights Agreement]
Schedule A
Holders
John W. Johnson
John Willard Johnson, Trustee fbo Kimball Johnson Moriniere
John Willard Johnson, Trustee fbo Ruth Johnson Miller
John W. Johnson, Trustee, or his Successor Trustee, of the Johnson 2005 Gift Trusts
WMJ/RMJ Family Limited Partnership
Johnson Permian Interests, Ltd.
Christopher B. Johnson
Christopher B. Johnson, Custodian for John Willard Johnson UGTMA
J Squared Family Partnership LP
Kimball Johnson Moriniere
Kimball J. Moriniere, Custodian fbo Catherine Johnson Moriniere UGTMA
Kimball Johnson Moriniere, Custodian fbo Frances Anne Moriniere UGTMA
Ruth Johnson Miller
Ruth J. Miller Custodian fbo Benjamin Henry Miller UGTMA
Craig M. Johnson
Craig M. Johnson, Trustee of the Johnson Childrens Trust of 1992 fbo Craig Mayer Johnson
Clayton Daniel Johnson
Clayton D. Johnson, Trustee of the Johnson Childrens Trust of 1992 fbo Clayton Daniel Johnson
Todd M. Johnson(
Todd M. Johnson, Trustee of the Johnson Childrens Trust of 1992 fbo Susanne Johnson Maida F/K/A Susanne Lindley Johnson
Susanne Johnson Maida
Steven J. Lindley
M. A. Lindley Interests, Ltd.
John David Lindley
John D. Lindley, Trustee of the Matthew Johnson Lindley 2009 Trust
John D. Lindley, Trustee of the Jenna Anne Lindley 2009 Trust
Sydney Lindley Stickney
Marion Lindley Goudeau
Marion and Tim Goudeau Family Limited Partnership
W. Samuel White Jr. Non Elected Marital Trust
W. Samuel White Jr. Marital Trust
William Thomas White
Sammy Jack White
Sammy Jack White Custodian for Samantha M. White UGTMA
Sammy Jack White Custodian for Travis P. White UGTMA
Armand E. Daigle
Harris Direct Custodian fbo IRA Glenn Mocek
Morgan Stanley Smith Barney as Custodian for Darlene S. Blair
CITI Smith Barney Custodian for Richard G. Finley IRA Rollover
NFS fbo Nicholas Grahmann
Murray Clark
Sherrie Smith
Schedule B
Form of Selling Stockholder Questionnaire
ECOLAB INC.
SELLING STOCKHOLDER QUESTIONNAIRE
Ecolab Inc. (the Company) intends to file with the Securities and Exchange Commission (the Commission) a registration statement (the Registration Statement) for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the Securities Act), of shares of its common stock, par value $1.00 per share, issued pursuant to the Agreement and Plan of Merger, dated as of October 11, 2012, by and among the Company, OFC Technologies Corp., a Texas corporation, Permian Mud Service, Inc., a Texas corporation (PMSI), and John W. Johnson, Steven J. Lindley and J. Loren Ross, in their capacity as the Representatives, as amended pursuant to that certain First Amendment to Agreement and Plan of Merger, dated November 28, 2012, that certain Second Amendment to Agreement and Plan of Merger, dated November 30, 2012, and that certain Third Amendment to Agreement and Plan of Merger, dated December 28, 2012 (the Registrable Securities).
In order to sell or otherwise dispose of any Registrable Securities pursuant to the Registration Statement, a beneficial owner of Registrable Securities will be required to be named as a selling stockholder in the related prospectus or a supplement thereto (as supplemented, the Prospectus), deliver the Prospectus to purchasers of the Registrable Securities, be subject to certain civil liability provisions of the Securities Act and be bound by the provisions of the Registration Rights Agreement, by and among the Company and certain holders of Registrable Securities named therein entered into in connection with the Merger under the Agreement and Plan of Merger (the Registration Rights Agreement), including certain indemnification provisions, as described below. To be included in the Registration Statement and use the Prospectus for resales of Registrable Securities, you must complete and execute this Selling Stockholder Questionnaire and deliver it to the Company promptly (but in no case later than the later of (i) April 8, 2013, and (ii) three (3) business days prior to the date the Company files the Prospectus, as supplemented, with the Commission) at the address set forth herein.
Certain legal consequences arise from being named as a selling stockholder in the Registration Statement and the Prospectus. Accordingly, holders and beneficial owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences of being named or not being named as a selling stockholder in the Registration Statement and the Prospectus.
NOTICE
The undersigned beneficial owner (the Selling Stockholder) of Registrable Securities hereby gives notice to the Company of its intention to sell or otherwise dispose of Registrable Securities beneficially owned by such Selling Stockholder pursuant to the Registration Statement or Prospectus.
Pursuant to the Registration Rights Agreement, the Selling Stockholder has agreed to indemnify the Company, its officers, directors, employees, agents, each underwriter and each person who controls (within the meaning of the Securities Act and the Exchange Act) the Company, together with the managers, members, partners, officers, directors, employees and agents of such person, against certain losses arising in connection with statements concerning the Selling Stockholder made in the Registration Statement or the Prospectus in reliance upon the information furnished in writing to the Company, including the information provided in this Selling Stockholder Questionnaire.
The Selling Stockholder hereby provides the following information to the Company and represents and warrants that such information is accurate and complete:
(1) Name and Contact Information:
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(2) Beneficial Ownership of Other Securities of the Company Owned by the Selling Stockholder:
Except as set forth below in this Item (2), the undersigned is not the beneficial or registered owner of any securities of the Company and does not anticipate acquiring any securities of the Company other than the Registrable Securities.
Type and amount of other securities of the Company beneficially owned by the Selling Stockholder:
Number of shares of Registrable Securities to be registered pursuant to this Selling Stockholder Questionnaire:
(3) Relationship with the Company and Permian:
Except as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of 5% or more of the equity securities of the undersigned) has held any position or office or has had any other material relationship with the Company or Permian (or their respective predecessors or affiliates) during the past three years.
State any exceptions here:
(4) Plan of Distribution:
Except as set forth below, the undersigned intends to distribute the Registrable Securities pursuant to the Registration Statement only as follows (if at all). Such Registrable Securities may be sold from time to time directly by the undersigned or, alternatively, through broker dealers or agents. If the Registrable Securities are sold through broker dealers, the Selling Stockholders will be responsible for discounts or commissions or
agents commissions. The Registrable Securities may be sold in one or more transactions at fixed prices, at prevailing market prices determined at the time of sale, at varying prices determined at the time of sale or at negotiated prices. Such sales may be effected in transactions (which may involve block transactions):
(i) on any national securities exchange or quotation service on which the Registrable Securities may be listed or quoted at the time of sale;
(ii) in the over the counter market;
(iii) in transactions otherwise than on such exchanges or services or in the over the counter market; or
(iv) through the writing of options.
In connection with sales of the Registrable Securities or otherwise, the undersigned may, in compliance with the Securities Act, enter into hedging transactions with broker dealers, which may in turn engage in short sales of the Registrable Securities and deliver the Registrable Securities to close out such short positions, or loan or pledge the Registrable Securities to broker dealers that in turn may sell such securities.
State any exceptions here:
(5) Selling Stockholder Affiliations:
(a) Is the Selling Stockholder a registered broker-dealer?
(b) If yes to Item 5(a), did the Selling Stockholder receive the Registrable Securities as compensation for investment banking services to the Company?
(c) Is the Selling Stockholder an affiliate of a registered broker-dealer(s)? (For purposes of this response, an affiliate of, or person affiliated with, a specified person, is a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified.)
(d) If yes to Item 5(c), does the Selling Stockholder certify that the Registrable Securities were purchased in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold the Selling Stockholder had no agreements or understandings, directly or indirectly, with any person to distribute the Registrable Securities?
Note: If no to Item 5(b) or 5(d), the Commissions staff has indicated that the Selling Stockholder
should be identified as an underwriter in the Registration Statement..
(6) Voting or Investment Control over the Registrable Securities:
If the Selling Stockholder is not a natural person, please identify the natural person or persons who have voting or investment control over the Registrable Securities listed in Item (2) above:
The undersigned acknowledges that it understands its obligation to comply with the provisions of the Exchange Act and the rules and regulations promulgated thereunder relating to stock manipulation, particularly Regulation M thereunder (or any successor rules or regulations), in connection with any offering of Registrable Securities pursuant to the Registration Statement. The undersigned agrees that neither it nor any person acting on its behalf will engage in any transaction in violation of such provisions.
In accordance with the undersigneds obligation to provide such information as may be required by law for inclusion in the Registration Statement, the undersigned agrees to promptly notify the Company of any inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof at any time while the Registration Statement remains effective. All notices hereunder shall be made in writing at the address set forth below.
By signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Items (1) through (6) above and the inclusion of such information in the Registration Statement and the Prospectus. The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment of the Registration Statement and the Prospectus.
The undersigned has reviewed the answers to the above questions and affirms that the same are true, complete and accurate.
Dated: , 2013 |
Signature of Beneficial Owner: | |
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PLEASE FAX A COPY (OR EMAIL A PDF COPY) OF THE COMPLETED AND EXECUTED SELLING STOCKHOLDER QUESTIONNAIRE, AND RETURN THE ORIGINAL BY OVERNIGHT MAIL TO:
Ecolab Inc.
370 Wabasha Street North
Saint Paul, Minnesota 55102
Attention: [·]
Facsimile: [·]
Email: [·]
Exhibit 99.1
News Release
Ecolab Inc.
370 Wabasha Street North
St. Paul, Minnesota 55102
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FOR IMMEDIATE RELEASE | |
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Contact: |
Michael J. Monahan |
(651) 293-2809 |
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Lisa L. Curran |
(651) 293-2185 |
ECOLAB CLOSES ON PURCHASE OF CHAMPION
ST. PAUL, Minn., April 10, 2013: Ecolab Inc. announced today that it has closed on its acquisition of Champion Technologies and its related company Corsicana Technologies. 2012 sales of the acquired business were approximately $1.3 billion. The total transaction value, including assumed debt, was approximately $2.3 billion.
A trusted partner at more than one million customer locations, Ecolab (ECL) is the global leader in water, hygiene and energy technologies and services that protect people and vital resources. With 2012 sales of $12 billion and 41,000 associates, Ecolab delivers comprehensive solutions and on-site service to promote safe food, maintain clean environments, optimize water and energy use and improve operational efficiencies for customers in the food, healthcare, energy, hospitality and industrial markets in more than 170 countries around the world. For more Ecolab news and information, visit www.ecolab.com.
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