Original Electronically Transmitted to the Securities
and Exchange Commission on March 15, 1995 Registration No. 33-57197
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
TO
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ECOLAB INC.
(Exact name of registrant as specified in its charter)
DELAWARE NO. 41-0231510
(State of incorporation) (I.R.S. Employer
Identification No.)
Ecolab Center William R. Rosengren, Esq.
St. Paul, MN 55102 Senior Vice President - Law and
(612) 293-2233 General Counsel
(Address, including zip code, and Ecolab Inc.
telephone number, including area Ecolab Center
code, of registrant's principal St. Paul, MN 55102
executive offices) (612) 293-2396
(Name, address, including
zip code, and telephone
number, including area
code, of agent for service)
Approximate date of commencement of proposed sale to the public: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. ( )
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. (X)
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
<PAGE>
ECOLAB INC.
Cross-Reference Sheet Showing Location in Prospectus of
Information Required by Items in Part I of Form S-3
Item Location in Prospectus
1. Forepart of Registration
Statement and Outside Front
Cover Page of Prospectus . . . . Cover of the Registration
Statement; Outside front
cover page of the Prospectus
2. Inside Front and Outside Back
Cover Pages of Prospectus . . . Inside front cover page of
the Prospectus
3. Summary Information, Risk
Factors and Ratio of Earnings to
Fixed Charges . . . . . . . . . The Company
4. Use of Proceeds . . . . . . . . Use of Proceeds
5. Determination of Offering Price Inapplicable
6. Dilution . . . . . . . . . . . . Inapplicable
7. Selling Security Holders . . . . Selling Stockholders
8. Plan of Distribution . . . . . . Plan of Distribution
9. Description of Securities to be
Registered . . . . . . . . . . . Information Incorporated by
Reference
10. Interests of Named Experts and
Counsel . . . . . . . . . . . . Legal Matters; Experts
11. Material Changes . . . . . . . . Recent Developments,
Information Incorporated by
Reference
12. Incorporation of Certain
Information by Reference . . . . Information Incorporated by
Reference
13. Disclosure of Commission
Position on Indemnification for
Securities Act Liabilities . . . Inapplicable
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT.
A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE
SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION
STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN
OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE
ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED MARCH 15, 1995
PROSPECTUS
ECOLAB INC.
4,455,343 SHARES OF COMMON STOCK
This Prospectus relates to the proposed sale of up to 4,455,343
shares (the "Offered Shares") of the common stock, par value $1.00 per
share (the "Common Stock"), of Ecolab Inc. ("Ecolab" or the "Company")
which may be offered for sale from time to time by Leonard J. Kaplan,
Bernard Gutterman, Randall R. Kaplan, The First Grantor Retained
Annuity Trust of Tobee W. Kaplan, The Second Grantor Retained Annuity
Trust of Tobee W. Kaplan, The Kaplan Family Foundation and The
Gutterman Foundation (the "Selling Stockholders"). See "Selling
Stockholders." The Company will not receive any proceeds from the
sale of the Offered Shares.
The sale, transfer and/or distribution of the Offered Shares by the
Selling Stockholders may be effected from time to time through brokers,
agents, dealers or underwriters in one or more transactions (which may
involve crosses and principal trades, including block transactions),
in special offerings, negotiated transactions, exchange distributions
or secondary distributions, or in connection with short-sale transactions,
or otherwise, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. To the
extent required, the specific Offered Shares to be sold, the name of the
Selling Stockholders, the purchase price, the public offering price, the
name of any such brokers, agents, dealers or underwriters, and any
applicable commission or discount with respect to a particular offer will
be set forth in an accompanying Prospectus Supplement. See "Plan of
Distribution." The Common Stock is listed on the New York Stock
Exchange ("NYSE") and Pacific Stock Exchange and traded under the
symbol "ECL." On March 14, 1995, the closing price of the Company's
Common Stock as reported for The New York Stock Exchange, Inc.
Composite Transaction Reporting System was $23.75 per share.
The purpose of this offering is to register 4,455,343 shares of
Common Stock issued by the Company in connection with that certain
Merger Agreement, dated as of November 2, 1994 (the "Merger
Agreement") among Ecolab, EKH, Inc. I, a North Carolina corporation
and a wholly owned subsidiary of Ecolab, EKH, Inc. II, a North
Carolina corporation and a wholly owned subsidiary of Ecolab, EKH,
Inc. III, a North Carolina corporation and a wholly owned subsidiary
of Ecolab, Kay Chemical Company, a North Carolina corporation ("Kay
Chemical"), Kay Chemical International, Inc., a North Carolina
corporation ("Kay International"), Kay Europe, Inc., a North Carolina
corporation ("Kay Europe," and together with Kay Chemical and Kay
International, the "Related Companies") and the stockholders of the
Related Companies.
Upon any sale of the Common Stock offered hereby, the Selling
Stockholders and participating agents, brokers and dealers may be
deemed to be underwriters as that term is defined in the Securities
Act of 1933, as amended (the "Securities Act"), and commissions or
discounts or any profit realized on the resale of such securities
purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act.
No underwriter is initially being utilized in connection with
this offering. The Company will pay all expenses incurred in
connection with this offering other than fees and expenses (including
underwriting fees and selling commissions) of the Selling
Stockholders. See "Plan of Distribution."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1995.
<PAGE>
AVAILABLE INFORMATION
Ecolab is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and,
in accordance therewith, files periodic reports, proxy statements and
other information with the Securities and Exchange Commission (the
"Commission"). The Company's filings may be inspected and copied or
obtained by mail upon payment of the Commission's prescribed rates at
the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549 and at the
regional offices of the Commission located at 7 World Trade Center,
13th Floor, New York, New York 10048 and Northwestern Atrium Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661, and
copies of such material can be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Common Stock and Common Stock
purchase rights are listed on the NYSE and the Pacific Stock Exchange.
The Company's reports, proxy statements and other filings with the
Commission are also available for inspection at the offices of the
NYSE located at 20 Broad Street, New York, New York 10005 and the
Pacific Stock Exchange, Inc., 301 Pine Street, San Francisco,
California 94104.
The Company has filed with the Commission a Registration
Statement on a Form S-3 under the Securities Act, with respect to the
Common Stock offered hereby. This Prospectus does not contain all of
the information set forth in the Registration Statement and in the
amendments, exhibits and schedules thereto. For further information
with respect to the Company and the Common Stock, reference is made to
the Registration Statement, and to the exhibits and schedules filed
therewith. All of these documents may be inspected without charge at
the Commission's principal office in Washington, D.C., and copies
thereof may be obtained from the Commission at the prescribed rates or
may be examined without charge at the public reference facilities of
the Commission. Any statements contained herein concerning the
provisions of any document filed as an exhibit to the Registration
Statement or otherwise filed with the commission are not necessarily
complete, and in each instance reference is made to the copy of such
document so filed. Each such statement shall be qualified in its
entirety by such reference.
INFORMATION INCORPORATED BY REFERENCE
The following documents previously filed by the Company with the
Commission pursuant to the Exchange Act (Commission File No. 1-9328)
are incorporated in and made a part of this Prospectus:
(i) The Company's Annual Report on Form 10-K for the year
ended December 31, 1994.
The description of the Common Stock, which is registered under
Section 12 of the Exchange Act, is set forth under the caption
"Description of Registrants Securities to be Registered" contained in
the Company's Form 8-A/A dated October 28, 1994, which constitutes
Amendment No. 5 to the Company's original Registration Statement on
Form 8-A dated November 17, 1986, and is hereby incorporated herein by
reference. All documents which the Company files pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this Prospectus and prior to the termination of the offering
described herein shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing of such reports
and documents. Any statement contained in a document incorporated by
reference, or deemed to be incorporated by reference, shall be deemed
to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently
filed incorporated document or in any accompanying prospectus
supplement modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom
this Prospectus is delivered, upon written or oral request, a copy of
any or all documents described above (other than exhibits thereto,
unless such exhibits are specifically incorporated by reference into
the documents that this Prospectus incorporates). Requests should be
addressed to Corporate Secretary, Ecolab Inc., Ecolab Center, St.
Paul, Minnesota 55102 (telephone (612) 293-2233).
2
<PAGE>
THE COMPANY
The Company is engaged in the development and marketing of
premium products and services for institutional and industrial
markets. The Company provides cleaning, sanitizing, pest elimination
and maintenance products, systems and services to food service,
lodging, healthcare, commercial and institutional laundries and to
farms, dairies and food and beverage processors. In addition, the
Company and Henkel KGaA of Dusseldorf, Germany, each have a 50%
economic interest in a joint venture which operates institutional and
industrial cleaning and sanitizing businesses in Europe.
The Company is a Delaware corporation with its principal
executive offices at Ecolab Center, St. Paul, Minnesota 55102. The
Company's telephone number is (612) 293-2233.
RECENT DEVELOPMENTS
The mergers contemplated by the Merger Agreement (the "Mergers")
were consummated on December 7, 1994. Pursuant to the Mergers, each
of the Related Companies became a wholly-owned subsidiary of the
Company and 4,455,343 shares of Common Stock, in the aggregate, were
issued to certain of the Selling Stockholders. The Related Companies
are engaged in the manufacture and distribution of cleaning and
sanitizing products for the fast food industry.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the
Offered Shares.
PLAN OF DISTRIBUTION
The Offered Shares may be sold from time to time to purchasers
directly by the Selling Stockholders. Alternatively, the Selling
Stockholders may from time to time offer the Offered Shares through
underwriters, brokers, dealers or agents, who may receive compensation
in the form of underwriting discounts, concessions, or commissions
from the Selling Stockholders selling as principal and/or the
purchasers of the Offered Shares for whom they may act as agent. The
Offered Shares may be sold from time to time in one or more
transactions (which may involve crosses and block transactions) on the
NYSE or the Pacific Stock Exchange and any other stock exchanges on
which the Offered Shares are admitted for trading, pursuant to and in
accordance with the rules of such exchanges, in negotiated
transactions or otherwise, at a fixed offering price, which may be
changed, at varying prices determined at the time of sale, or at
negotiated prices. The Selling Stockholders may effect such
transactions by selling Offered Shares to or through securities
broker-dealers, and such broker-dealers may receive compensation in
the form of underwriting discounts, concessions or commissions from
the Selling Stockholders and/or purchasers of Offered Shares for whom
such broker-dealers may act as agent or to whom they sell as
principal, or both (which compensation as to a particular broker-
dealer might be in excess of customary commissions).
If any broker-dealer purchases the Offered Shares as principal it
may effect resales of the Offered Shares from time to time to or
through other broker-dealers, and the other broker-dealers may receive
compensation in the form of concessions or commissions from the
principals and/or the purchasers of the Offered Shares for whom they
may act as agents. The Selling Stockholders and any underwriter,
dealer or agent that participates in the distribution of the Offered
Shares may be deemed underwriters under the Securities Act, and any
profit on the sale of the Offered Shares by them and any discounts,
commissions, concessions or other compensation received by any such
underwriters, dealers or agents may be deemed to be underwriting
discounts and commissions under the Securities Act.
3
<PAGE>
In addition, the Selling Stockholders have informed the Company
that they may, on an individual basis, from time to time following
the effective date of the Registration Statement of which this
Prospectus is a part, sell shares of Common Stock in short-sale
transactions (including, without limitation, selling short against the
box) and use some or all of the Offered Shares to cover such
transactions.
At the time a particular offer of the Offered Shares is made, to
the extent required, a Prospectus Supplement will be distributed which
will set forth the number of shares of Common Stock being offered and
the terms of the offering, including the name or names of any
underwriters, brokers, dealers or agents (whether such party is acting
as a principal or as agent for the Selling Stockholders), any
discounts, commissions, concessions and other items constituting
compensation from the Selling Stockholders and any discounts,
commissions or concessions allowed or re-allowed or paid to dealers.
The terms of the Merger Agreement provide for the Company to file
a shelf registration statement (the "Shelf Registration Statement")
covering the Offered Shares. The Registration Statement of which this
Prospectus is a part constitutes the Shelf Registration Statement.
The Company has agreed to use its reasonable efforts to cause the
Shelf Registration Statement to become effective and keep the Shelf
Registration Statement effective until the earlier of (i) such time as
all of the Offered Shares have been disposed of or (ii) December 7,
1997. Under the terms of the Merger Agreement and the Foundation
Agreement, dated as of January 5, 1995 (the "Foundation Agreement"),
among the Company and The Kaplan Family Foundation and The Gutterman
Foundation (the "Foundations"), the Selling Stockholders have agreed
to refrain from selling or offering to sell Offered Shares with this
Prospectus in certain circumstances.
To comply with securities laws of certain states, if applicable,
the Offered Shares will be sold in such states only through registered
or licensed brokers or dealers. In addition, in certain states the
Offered Shares may not be sold unless they have been registered or
qualified for sale in such states or an exemption from registration or
qualification is available or is complied with.
The Company will pay all of the expenses incident to the offering
and sale of the Offered Shares to the public other than the fees and
expenses (including underwriting fees and selling commissions) of the
Selling Stockholders.
SELLING STOCKHOLDERS
This Prospectus relates to shares of Common Stock that have been
acquired in connection with the Mergers by certain of the Selling
Stockholders. The Selling Stockholders may offer the Offered Shares
with this Prospectus in accordance with the terms of the Merger
Agreement and the Foundation Agreement.
The following table sets forth the name of each Selling
Stockholder and the number of shares of Common Stock acquired by each
Selling Stockholder pursuant to the Mergers (or, in the case of the
Foundations, received pursuant to donations from other Selling
Stockholders) and being registered hereby, some or all of which shares
may be sold pursuant to this Prospectus. There is no assurance that
any of the Selling Stockholders will sell any or all of the Shares
offered by them hereunder.
4
<PAGE>
Selling Shares Covered
Stockholder by this Prospectus
----------------- ------------------
Leonard J. Kaplan 1,798,051
Bernard Gutterman 648,302
Randall R. Kaplan 1,203,303
The First Grantor Retained 176,422
Annuity Trust of Tobee
W. Kaplan (1)
The Second Grantor 529,265
Retained Annuity Trust
of Tobee W. Kaplan (1)
The Kaplan Family 80,000
Foundation(2)
The Gutterman Foundation (3) 20,000
(1) The trustees of the Grantor Retained Annuity Trusts ("GRATs") are
Seldon E. Patty and Thomas W. Sinks. The beneficiaries (and the
beneficial owners of the stock held in each) of the GRATs are
Tobee W. Kaplan, Randall R. Kaplan and several trusts which have
been established for the benefit of the children of Tobee W.
Kaplan and their respective families.
(2) The trustees of The Kaplan Family Foundation are Leonard J.
Kaplan, Tobee W. Kaplan and Seldon E. Patty, and The Kaplan
Family Foundation has no other members or stockholders. The
Kaplan Family Foundation is a North Carolina non-profit
corporation and the purposes for which it is organized are to
receive and administer money and property for charitable,
religious, educational and scientific purposes and to establish,
foster, maintain or support, through donations of money or
property for charitable, religious, educational and scientific
purposes, organizations that qualify as exempt organizations
under Section 501(c)(3) of the Internal Revenue Code.
(3) The directors of The Gutterman Foundation are Bernard Gutterman,
Nancy Gutterman and David D. Gutterman, and The Gutterman
Foundation has no members or stockholders. The Gutterman
Foundation is a North Carolina non-profit corporation and is
organized exclusively for religious, charitable, scientific,
literary and educational purposes.
With the exception of the Foundations, the Selling Stockholders
are former stockholders of the Related Companies. During the three
years prior to the consummation of the Mergers, (i) Leonard J. Kaplan
was the President, Treasurer and a director of Kay International, a
Vice President, Secretary and a director of Kay Europe and until
December 13, 1993 the President, Treasurer and a director, and from
and after December 13, 1993 the Chairman of the Board and Secretary,
of Kay Chemical; (ii) Bernard Gutterman was the Executive Vice
President, Assistant Secretary and a director of Kay International,
the Executive Vice President, Assistant Secretary and a director of
Kay Europe and until December 13, 1993 the Executive Vice President,
Assistant Secretary and a director, and from and after December 13,
1993 the Vice Chairman of the Board, Assistant Secretary and a
director, of Kay Chemical; and (iii) Randall R. Kaplan was a Vice
President, Secretary and a director of Kay International, the
President, Treasurer and a director of Kay Europe and until December
13, 1994 a Vice President and Secretary, and from and after December
13, 1994 the President and Treasurer, of Kay Chemical. Randall R.
Kaplan is currently the President of each of the Related Companies,
and Leonard J. Kaplan and Bernard Gutterman have been engaged by Kay
Chemical to provide consulting services. Tobee W. Kaplan,
5
<PAGE>
a trustee of The Kaplan Family Foundation and a beneficiary of the
GRATs, was during the three years prior to the Mergers a Vice President,
Assistant Secretary and a director of Kay Chemical. No other Selling
Stockholder has had any relationship with the Company or any of its
affiliates during the past three years other than described above.
LEGAL MATTERS
Certain legal matters regarding the validity of the shares of
Common Stock offered hereby will be passed upon for the Company by
Kenneth A. Iverson, Vice President and Secretary of the Company.
EXPERTS
The consolidated financial statements and related supplemental
financial statement schedule of the Company, which are included or
incorporated by reference in the Company's Annual Report on Form 10-K
for the year ended December 31, 1994, and incorporated herein and in
the Registration Statement by reference, have been audited by Coopers
& Lybrand L.L.P., independent accountants. Such financial statements
and financial statement schedule are incorporated herein and in the
Registration Statement by reference in reliance upon the reports of
Coopers & Lybrand given upon the authority of that firm as experts in
accounting and auditing.
In addition, the combined financial statements and financial
statement schedules of the Henkel-Ecolab Joint Venture, which are
included in the Company's Annual Report on Form 10-K for the year
ended December 31, 1994, and incorporated herein and in the
Registration Statement by reference, have been audited by KPMG
Deutsche Treuhand-Gesellschaft Aktiengesellschaft, independent
accountants. Such combined financial statements and financial statement
schedules are incorporated herein and in the Registration Statement by
reference in reliance upon the reports of KPMG Deutsche Treuhand-
Gesellschaft Aktiengesellschaft given upon the authority of that firm
as experts in accounting and auditing.
6
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No dealer, salesman or other person has been authorized to give any
information or to make any representations not contained in, or incorporated
by reference in, this Prospectus in connection with the offering covered by
this Prospectus. If given or made, such information or representations must
not be relied upon as having been authorized. This Prospectus does not
constitute an offer to sell or the solicitation of an offer to buy any
securities other than the securities described in this Prospectus or an offer
to sell or the solicitation of an offer to buy the Common Stock in any
jurisdiction where, or to any person to whom, it is unlawful to make such offer
or solicitation. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create an implication that there
has not been any change in the facts set forth in this Prospectus or in
the affairs of the Company since the date hereof.
TABLE OF CONTENTS
Page
Available Information . . . . . 2
Information Incorporated by
Reference . . . . . . . . . . . 2
The Company . . . . . . . . . . 3
Recent Developments . . . . . . 3
Use of Proceeds . . . . . . . . 3
Plan of Distribution . . . . . 3
Selling Stockholders . . . . . 4
Legal Matters . . . . . . . . . 6
Experts . . . . . . . . . . . . 6
4,455,343 SHARES
COMMON STOCK
($1.00 Par Value)
ECOLAB INC.
, 1995
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Registration fee . . . . . . . . . . $31,303
Stock exchange listing fees . . . 23,094
Legal fees and expenses . . . . . . 15,000*
Accounting fees and expenses . . . 10,000*
Total . . . . . . . . . . . . . . . $79,397*
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Subsection (a) of Section 145 of the General Corporation Law of
Delaware ("DGCL") empowers a corporation to indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation), by reason of the fact that
such person is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as
a director, officer, employee or agent of another corporation or
enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding,
had no reasonable cause to believe such person's conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify
any person who was or is a party or threatened to be made a party to
any threatened, pending or completed action or suit by or in the right
of the corporation to procure a judgment in its favor by reason of the
fact that such person acted in any of the capacities set forth above,
against expenses actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if
such person acted under similar standards, except that no
indemnification may be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery
or the court in which such action or suit was brought shall determine
that, despite the adjudication of liability, such person is fairly and
reasonably entitled to indemnity for such expenses which the court
shall deem proper. Section 145 further provides that, to the extent a
director or officer of a corporation has been successful in the
defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred in connection therewith; that indemnification
provided for by Section 145 shall not be deemed exclusive of any other
rights to which the indemnified party may be entitled; and that the
scope of indemnification extends to directors, officers, employees or
agents of a constituent corporation absorbed in a consolidation or
merger and any person serving in that capacity at the request of the
constituent corporation for another. Section 145 also empowers that
corporation to purchase and maintain insurance on behalf of a director
or officer of the corporation against any liability asserted against
or incurred by such person in any such capacity or arising out of such
person's status as such, whether or not the corporation would have the
power to indemnify such person against such liabilities under Section
145, including liabilities under the Securities Act of 1933, as
amended.
Article V of the Registrant's By-Laws provides for
indemnification of the Registrant's officers and directors to the full
extent allowed by Delaware law.
In addition, Article IV of the Registrant's Restated Certificate
of Incorporation provides that the Registrant's directors do not have
personal liability to the Registrant or its stockholders for monetary
II-1
<PAGE>
damages for any breach of their fiduciary duty as directors, except
(i) for a breach of the duty of loyalty, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or knowing
violation of the law, (iii) for willful or negligent violations of
certain provisions under the DGCL imposing certain requirements with
respect to stock repurchases, redemptions and dividends, or (iv) for
any transaction from which the director derived an improper personal
benefit. Subject to these exceptions, under Article IV, directors do
not have any personal liability to the Registrant or its stockholders
for any violation of their fiduciary duty.
The Registrant has directors and officers liability insurance
which protects each director or officer from certain claims and suits,
including stockholder derivative suits, even where the director may be
determined to not be entitled to indemnification under DGCL. The
policy may also afford coverage under circumstances where the facts do
not justify a finding that the director or officer acted in good faith
and in a manner that was in or not opposed to the best interests of
the Registrant.
The Registrant has entered into indemnification agreements with
each of its directors (the "Indemnification Agreements"). The
Indemnification Agreements provide for the prompt indemnification "to
the fullest extent permitted by law" and for the prompt advancement of
expenses, including attorneys' fees and other costs, expenses and
obligations paid or incurred in connection with investigating,
defending, being a witness or participating in (including on appeal)
any threatened, pending or completed action, suit or proceeding
related to the fact that such director is or was a director, officer,
employee, trustee, agent or fiduciary of the Registrant or is or was
serving at the request of the Registrant as a director, officer,
employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan trust or other
enterprise, or by reason of anything done or not done by a director in
any such capacity. The Indemnification Agreements further provide
that the Registrant has the burden of proving that a director is not
entitled to indemnification in any particular case.
The foregoing represents a summary of the general effect of the
DGCL, the Registrant's By-Laws and Restated Certificate of
Incorporation, the Registrant's directors and officers liability
insurance coverage and the Indemnification Agreements for purposes of
general description only.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT DESCRIPTION OF EXHIBIT
(4) A. Restated Certificate of Incorporation - Incorporated by
reference to Exhibit (3)A of the Registrant's Form 10-K
Annual Report for the year ended December 31, 1992.
B. By-Laws, as amended through February 25, 1995 -
Incorporated by reference to Exhibit (3)A of the
Registrant's Form 10-K Annual Report for the year
ended December 31, 1994.
C. (i) Amended and Restated Rights Agreement dated as of
February 14, 1986, as amended and restated as of July
15, 1988 - Incorporated by reference to Exhibit (4) of
the Registrant's Form 8-K dated July 15, 1993.
(ii) First Amendment, dated as of September 10, 1990
to the Amended and Restated Rights Agreement -
Incorporated by reference to Exhibit (4) of the
Registrant's Current Report on Form 8-K dated September
11, 1990.
II-2
<PAGE>
D. Form of Common Stock Certificate - Incorporated by
reference to Exhibit (4)A(ii) of the Registrant's Form
10-K Annual Report for the year ended December 31,
1992.
(5) Opinion of legal counsel regarding legality of
securities being registered.*
(23) A. Consent of Coopers & Lybrand L.L.P.
B. Consent of KPMG Deutsche Treuhand-Gesellschaft
Aktiengesellschaft.
C. Consent of counsel - See Exhibit (5).*
(24) Powers of Attorney.
______________________________________________
*Filed electronically with the initial filing.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(a) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
II-3
<PAGE>
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all requirements for filing on Form S-3 and has duly caused this
Amendment to the Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized in the City of St. Paul, State
of Minnesota.
Dated: March 15, 1995 ECOLAB INC.
By:/s/ Allan L. Schuman
Allan L. Schuman
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
amendment to the registration statement has been signed by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Allan L. Schuman President and Chief Executive March 15, 1995
Allan L. Schuman Executive Officer (Principal
Executive Officer and Director)
/s/ Michael E. Shannon Vice Chairman, Chief Financial March 15, 1995
Michael E. Shannon and Administrative Officer
(Principal Financial Officer
and Director)
/s/ Arthur E. Henningsen, Jr. Vice President and Controller March 15, 1995
Arthur E. Henningsen, Jr. (Principal Accounting Officer)
/s/ Kenneth A. Iverson Directors March 15, 1995
Kenneth A. Iverson,
as attorney-in-fact for
Ruth S. Block, Russell G. Cleary
Pierson M. Grieve, James J. Howard,
Jerry W. Levin, Reuben F. Richards,
Richard L. Schall, Philip L. Smith,
Hugo Uyterhoeven and Albrecht Woeste
II-5
<PAGE>
Directors not signing:
John H. Dasburg
II-6
<PAGE>
EXHIBIT INDEX
PAPER (P)
EXHIBIT DESCRIPTION OF EXHIBIT OR ELECTRONIC (E)
(4) A. Restated Certificate of --
Incorporation - Incorporated by
reference to Exhibit (3)A of the
Registrant's Form 10-K Annual
Report for the year ended December
31, 1992.
--
B. By-Laws, as amended through
February 25, 1995 - Incorporated by
reference to Exhibit (3)A of the
Registrant's Form 10-K Annual Report
for the year ended December 31, 1994.
C. (i) Amended and Restated Rights --
Agreement dated as of February 14,
1986, as amended and restated as of
July 15, 1988 - Incorporated by
reference to Exhibit (4) of the
Registrant's Form 8-K dated July
15, 1993.
(ii) First Amendment, dated as of --
September 10, 1990 to the Amended
and Restated Rights Agreement -
Incorporated by reference to
Exhibit (4) of the Registrant's
Current Report on Form 8-K dated
September 11, 1990.
D. Form of Common Stock Certificate - --
Incorporated by reference to
Exhibit (4)A(ii) of the
Registrant's Form 10-K Annual
Report for the year ended December
31, 1992.
(5) Opinion of legal counsel regarding --
legality of securities being
registered.*
(23) A. Consent of Coopers & Lybrand L.L.P. E
B. Consent of KPMG Deutsche Treuhand- E
Gesellschaft Aktiengesellschaft.
C. Consent of counsel - See Exhibit --
(5).*
(24) Powers of Attorney. E
_____________________________________________
*Filed electronically with the initial filing.
II-7
Consent of Independent Accountants
We consent to the incorporation by reference in this Amendment No. 2 to the
registration statement on Form S-3 (File No. 33-57197) of our reports dated
February 27, 1995 on our audits of the consolidated financial statements and
related financial statement schedule of Ecolab Inc. as of December 31, 1994,
1993 and 1992 and for the years ended December 31, 1994, 1993 and 1992, which
reports are included or incorporated by reference in Ecolab Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1994. We also consent to
the references to our firm under the caption "Experts."
/s/Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Saint Paul, Minnesota
March 15, 1995
<PAGE>
CONSENT OF KPMG DEUTSCHE TREUHAND-GESELLSCHAFT
AKTIENGESELLSCHAFT
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of our report dated January 19, 1995, on our audit of the combined
financial statements and schedules of the Henkel-Ecolab Joint Venture as of
November 30, 1994, 1993 and 1992 and for the periods beginning December 1,
1993, 1992 and 1991 and ended November 30, 1994, 1993 and 1992 which
report is included in Ecolab Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1994. We also consent to the reference to our firm under
the heading Experts.
Dusseldorf, Germany
March 10, 1995
KPMG Deutsche Treuhand-Gesellschaft
Aktiengesellschaft
Wirtschaftsprufungsgesellschaft
/s/Dr. Kuhr /s/Haas
Dr. Kuhr Haas
Wirtschaftsprufer Wirtschaftsprufer
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of
Ecolab Inc., a Delaware corporation, does hereby make, nominate and appoint
PIERSON M. GRIEVE, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them,
to be my attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-3 relating to the registration under the
Securities Act of 1933 of not more than 4,460,105 shares of Ecolab Common
Stock, par value $1 per share, and Preferred Stock Purchase Rights associated
with the Common Stock, and any and all amendments thereto, provided that the
Registration Statement and any amendments thereto, in final form, be approved
by said attorney-in-fact; and his name, when thus signed, shall have the same
force and effect as though I had manually signed said document or documents.
IN WITNESS WHEREOF, I have hereunto affixed my signature this 19th day
of December, 1994.
/s/Ruth S. Block
Ruth S. Block
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of
Ecolab Inc., a Delaware corporation, does hereby make, nominate and appoint
PIERSON M. GRIEVE, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them,
to be my attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-3 relating to the registration under the
Securities Act of 1933 of not more than 4,460,105 shares of Ecolab Common
Stock, par value $1 per share, and Preferred Stock Purchase Rights associated
with the Common Stock, and any and all amendments thereto, provided that the
Registration Statement and any amendments thereto, in final form, be approved
by said attorney-in-fact; and his name, when thus signed, shall have the same
force and effect as though I had manually signed said document or documents.
IN WITNESS WHEREOF, I have hereunto affixed my signature this 19th day
of December, 1994.
/s/Russell G. Cleary
Russell G. Cleary
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of
Ecolab Inc., a Delaware corporation, does hereby make, nominate and appoint
MICHAEL E. SHANNON and KENNETH A. IVERSON, and each of them, to be my
attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-3 relating to the registration under the
Securities Act of 1933 of not more than 4,460,105 shares of Ecolab Common
Stock, par value $1 per share, and Preferred Stock Purchase Rights associated
with the Common Stock, and any and all amendments thereto, provided that the
Registration Statement and any amendments thereto, in final form, be approved
by said attorney-in-fact; and his name, when thus signed, shall have the same
force and effect as though I had manually signed said document or documents.
IN WITNESS WHEREOF, I have hereunto affixed my signature this 8th day
of March, 1995.
/s/Pierson M. Grieve
Pierson M. Grieve
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of
Ecolab Inc., a Delaware corporation, does hereby make, nominate and appoint
PIERSON M. GRIEVE, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them,
to be my attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-3 relating to the registration under the
Securities Act of 1933 of not more than 4,460,105 shares of Ecolab Common
Stock, par value $1 per share, and Preferred Stock Purchase Rights associated
with the Common Stock, and any and all amendments thereto, provided that the
Registration Statement and any amendments thereto, in final form, be approved
by said attorney-in-fact; and his name, when thus signed, shall have the same
force and effect as though I had manually signed said document or documents.
IN WITNESS WHEREOF, I have hereunto affixed my signature this 19th day
of December, 1994.
/s/James J. Howard
James J. Howard
<PAGE> POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of
Ecolab Inc., a Delaware corporation, does hereby make, nominate and appoint
PIERSON M. GRIEVE, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them,
to be my attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-3 relating to the registration under the
Securities Act of 1933 of not more than 4,460,105 shares of Ecolab Common
Stock, par value $1 per share, and Preferred Stock Purchase Rights associated
with the Common Stock, and any and all amendments thereto, provided that the
Registration Statement and any amendments thereto, in final form, be approved
by said attorney-in-fact; and his name, when thus signed, shall have the same
force and effect as though I had manually signed said document or documents.
IN WITNESS WHEREOF, I have hereunto affixed my signature this 19th day
of December, 1994.
/s/Jerry W. Levin
Jerry W. Levin
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of
Ecolab Inc., a Delaware corporation, does hereby make, nominate and appoint
PIERSON M. GRIEVE, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them,
to be my attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-3 relating to the registration under the
Securities Act of 1933 of not more than 4,460,105 shares of Ecolab Common
Stock, par value $1 per share, and Preferred Stock Purchase Rights associated
with the Common Stock, and any and all amendments thereto, provided that the
Registration Statement and any amendments thereto, in final form, be approved
by said attorney-in-fact; and his name, when thus signed, shall have the same
force and effect as though I had manually signed said document or documents.
IN WITNESS WHEREOF, I have hereunto affixed my signature this 19th day
of December, 1994.
/s/Reuben F. Richards
Reuben F. Richards
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of
Ecolab Inc., a Delaware corporation, does hereby make, nominate and appoint
PIERSON M. GRIEVE, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them,
to be my attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-3 relating to the registration under the
Securities Act of 1933 of not more than 4,460,105 shares of Ecolab Common
Stock, par value $1 per share, and Preferred Stock Purchase Rights associated
with the Common Stock, and any and all amendments thereto, provided that the
Registration Statement and any amendments thereto, in final form, be approved
by said attorney-in-fact; and his name, when thus signed, shall have the same
force and effect as though I had manually signed said document or documents.
IN WITNESS WHEREOF, I have hereunto affixed my signature this 19th day
of December, 1994.
/s/Richard L. Schall
Richard L. Schall
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of
Ecolab Inc., a Delaware corporation, does hereby make, nominate and appoint
PIERSON M. GRIEVE, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them,
to be my attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-3 relating to the registration under the
Securities Act of 1933 of not more than 4,460,105 shares of Ecolab Common
Stock, par value $1 per share, and Preferred Stock Purchase Rights associated
with the Common Stock, and any and all amendments thereto, provided that the
Registration Statement and any amendments thereto, in final form, be approved
by said attorney-in-fact; and his name, when thus signed, shall have the same
force and effect as though I had manually signed said document or documents.
IN WITNESS WHEREOF, I have hereunto affixed my signature this 19th day
of December, 1994.
/s/Roland Schulz
Roland Schulz
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of
Ecolab Inc., a Delaware corporation, does hereby make, nominate and appoint
PIERSON M. GRIEVE, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them,
to be my attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-3 relating to the registration under the
Securities Act of 1933 of not more than 4,460,105 shares of Ecolab Common
Stock, par value $1 per share, and Preferred Stock Purchase Rights associated
with the Common Stock, and any and all amendments thereto, provided that the
Registration Statement and any amendments thereto, in final form, be approved
by said attorney-in-fact; and his name, when thus signed, shall have the same
force and effect as though I had manually signed said document or documents.
IN WITNESS WHEREOF, I have hereunto affixed my signature this 19th day
of December, 1994.
/s/Philip L. Smith
Philip L. Smith
<PAGE>
POWER OF ATTORNEY<PAGE>
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of
Ecolab Inc., a Delaware corporation, does hereby make, nominate and appoint
PIERSON M. GRIEVE, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them,
to be my attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-3 relating to the registration under the
Securities Act of 1933 of not more than 4,460,105 shares of Ecolab Common
Stock, par value $1 per share, and Preferred Stock Purchase Rights associated
with the Common Stock, and any and all amendments thereto, provided that the
Registration Statement and any amendments thereto, in final form, be approved
by said attorney-in-fact; and his name, when thus signed, shall have the same
force and effect as though I had manually signed said document or documents.
IN WITNESS WHEREOF, I have hereunto affixed my signature this 19th day
of December, 1994.
/s/Hugo Uyterhoeven
Hugo Uyterhoeven
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of
Ecolab Inc., a Delaware corporation, does hereby make, nominate and appoint
PIERSON M. GRIEVE, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them,
to be my attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-3 relating to the registration under the
Securities Act of 1933 of not more than 4,460,105 shares of Ecolab Common
Stock, par value $1 per share, and Preferred Stock Purchase Rights associated
with the Common Stock, and any and all amendments thereto, provided that the
Registration Statement and any amendments thereto, in final form, be approved
by said attorney-in-fact; and his name, when thus signed, shall have the same
force and effect as though I had manually signed said document or documents.<PAGE>
IN WITNESS WHEREOF, I have hereunto affixed my signature this 19th day
of December, 1994.
/s/Albrecht Woeste
Albrecht Woeste
