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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) December 16, 1996
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ECOLAB INC.
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation)
1-9328 41-0231510
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(Commission File Number) (IRS Employer
Identification No.)
Ecolab Center, 370 N. Wabasha, St. Paul, Minnesota 55102
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, include area code: 612-293-2233
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(Not applicable)
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(Former name or former address, if changed from last report.)
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Item 5. OTHER EVENTS.
On December 16, 1996, the Board of Directors of Ecolab Inc. (the
"Corporation") approved certain amendments to the Corporation's By-Laws. The
following summary of the principal amendments to the Corporation's By-Laws does
not purport to be complete and is subject to, and qualified in its entirety by
reference to, the amended By-laws which are attached as an exhibit to this
Report and incorporated herein by reference.
Sections 3 and 4 of Article II of the Corporation's By-Laws have been
amended to provide for certain advance notice and informational requirements for
any new business or any director nomination which a stockholder wishes to
propose for consideration at an annual meeting of stockholders. Formerly, the
Corporation's By-Laws did not contain any provisions relating to stockholder
proposals or nominations of candidates for election as directors. Under the
amended By-Laws, a stockholder who wishes to submit such a proposal or
nomination must be a stockholder of record both at the time notice of the
proposal or nomination is given and as of the record date for the annual meeting
in question. Except as noted below, a stockholder's notice, to be timely, must
be delivered to the Corporation not less than 90 days nor more than 135 days
prior to the anniversary date of the immediately preceding annual meeting of
stockholders. In the event that the annual meeting of stockholders in any year
is not within 30 days before or after such an anniversary date, then a
stockholder's notice must be delivered to the Corporation not later than the
close of business on the tenth day following the day on which notice of the date
of the annual meeting was mailed or was publicly disclosed, whichever first
occurs. Additionally, if the number of directors to be elected to the Board of
Directors is increased and there is no public disclosure by the Corporation
naming all of the nominees for director or specifying the size of the increased
Board of Directors at least 100 days prior to such an anniversary date, then a
stockholder's notice will be timely, but only with respect to nominees for any
new positions created by such increase, if it is delivered to the Corporation
not later than the close of business on the tenth day following the day on which
such public disclosure is first made by the Corporation.
Sections 3 and 4 of Article II further provide that a stockholder notice
must contain certain information intended to identify the stockholder and the
nature of the proposal and, in the case of director nominations, information
comparable to that required under applicable rules and regulations of the
Securities and Exchange Commission. If the Chairman of the annual meeting
determines that any stockholder proposal or nomination is not timely made or
fails to satisfy the informational requirements, such proposal or nomination
will not be considered at the annual meeting.
Nothing in the amended By-Laws shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as
amended.
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Item 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
(3) By-Laws, as amended through December 16, 1996.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ECOLAB INC.
By: /s/ Kenneth A. Iverson
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Kenneth A. Iverson
Vice President and Secretary
Dated: December 16, 1996
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EXHIBIT INDEX
PAPER (P) OR
EXHIBIT DESCRIPTION ELECTRONIC (E)
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(3) By-Laws, as amended E
through December 16, 1996
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BY-LAWS
OF
ECOLAB INC.
(A DELAWARE CORPORATION)
AS AMENDED THROUGH DECEMBER 16, 1996
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the Corporation in the
State of Delaware shall be at 1209 Orange Street, City of Wilmington, County of
New Castle, Delaware. The name of the resident agent in charge thereof shall be
The Corporation Trust Company.
SECTION 2. OTHER OFFICES. The Corporation may also have offices at such other
places, within or without the State of Delaware, as the Board of Directors may
from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. Meetings of stockholders may be held at such
place, within or without the State of Delaware, as the Board of Directors or the
officer calling the same shall designate.
SECTION 2. ANNUAL MEETING. An annual meeting of the stockholders of the
Corporation for the election of directors by written ballot and for the
transaction of such other business as may properly come before the meeting shall
be held at such time and on such day of each year as shall be designated by the
Board of Directors, the Chairman of the Board, the President or the Secretary.
SECTION 3. NOTICE OF STOCKHOLDER NOMINATIONS OF DIRECTORS. Only persons who
are nominated in accordance with the following procedures shall be eligible for
election as directors of the Corporation, except as may be otherwise provided in
the Restated Certificate of Incorporation of the Corporation. Nominations of
persons for election to the Board of Directors may be made at any annual meeting
of stockholders (a) by or at the direction of the Board of Directors (or any
duly authorized Committee thereof) or (b) by any stockholder of the Corporation
(i) who is a stockholder of record on the date of the giving of the notice
provided for in this Section 3 and on the record date for the determination of
stockholders entitled to vote at such annual meeting and (ii) who complies with
the notice procedures set forth in this Section 3.
In addition to any other applicable requirements, for a nomination to be
made by a stockholder, such stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation.
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To be timely, a stockholder's notice to the Secretary must be delivered to
or mailed and received at the principal executive offices of the Corporation not
less than ninety (90) days nor more than one hundred thirty-five (135) days
prior to the anniversary date of the immediately preceding annual meeting of
stockholders; PROVIDED, HOWEVER, that in the event that the annual meeting is
called for a date that is not within thirty (30) days before or after such an
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth (10th) day following
the day on which such notice of the date of the annual meeting was mailed or
public disclosure of the date of the annual meeting was made, whichever first
occurs. In no event shall the public disclosure of an adjournment of an annual
meeting commence a new time period for the giving of a stockholder's notice as
described above.
To be in proper written form, a stockholder's notice to the Secretary must
set forth (a) as to each person whom the stockholder proposes to nominate for
election as a director (i) the name, age, business address and residence address
of the person, (ii) the principal occupation or employment of the person, (iii)
the class or series and number of shares of capital stock of the Corporation
which are owned beneficially or of record by the person and (iv) any other
information relating to the person that would be required to be disclosed in a
proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations promulgated thereunder; and (b) as to the stockholder giving the
notice (i) the name and record address of such stockholder, (ii) the class or
series and number of shares of capital stock of the Corporation which are owned
beneficially or of record by such stockholder, (iii) a description of all
arrangements or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by proxy at
the meeting to nominate the persons named in its notice and (v) any other
information relating to such stockholder that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder. Such notice
must be accompanied by a written consent of each proposed nominee to being named
as a nominee and to serve as a director if elected.
No person shall be eligible for election as a director of the Corporation
unless nominated in accordance with the procedures set forth in this Section 3.
If the Chairman of the meeting determines that a nomination was not made in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the nomination was defective and such defective nomination shall be
disregarded.
Notwithstanding anything in the third paragraph of this Section 3 to the
contrary, in the event that the number of directors to be elected to the Board
of Directors of the Corporation is increased and there is no public disclosure
by the Corporation naming all of the nominees for director or specifying the
size of the increased Board of Directors at least 100 days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's notice
required by this By-Law shall also be considered timely, but only with respect
to nominees for any new positions
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created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public disclosure is
first made by the Corporation.
SECTION 4. NOTICE OF STOCKHOLDER PROPOSALS OF BUSINESS. No business may be
transacted at an annual meeting of stockholders, other than business that is
either (a) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board of Directors (or any duly authorized
committee thereof), (b) otherwise properly brought before the annual meeting by
or at the direction of the Board of Directors (or any duly authorized committee
thereof) or (c) otherwise properly brought before the annual meeting by any
stockholder of the Corporation (i) who is a stockholder of record on the date of
the giving of the notice provided for in this Section 4 and on the record date
for the determination of stockholders entitled to vote at such annual meeting
and (ii) who complies with the notice procedures set forth in this Section 4.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered to
or mailed and received at the principal executive offices of the Corporation not
less than ninety (90) days nor more than one hundred thirty-five (135) days
prior to the anniversary date of the immediately preceding annual meeting of
stockholders; PROVIDED, HOWEVER, that in the event that the annual meeting is
called for a date that is not within thirty (30) days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth (10th) day following
the day on which such notice of the date of the annual meeting was mailed or
public disclosure of the date of the annual meeting was made, whichever first
occurs. In no event shall the public disclosure of an adjournment of an annual
meeting commence a new time period for the giving of a stockholder's notice as
described above.
To be in proper written form, a stockholder's notice to the Secretary must
set forth as to each matter such stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and record address of such stockholder, (iii) the class
or series and number of shares of capital stock of the Corporation which are
owned beneficially or of record by such stockholder, (iv) a description of all
arrangements or understandings between such stockholder and any other person or
persons (including their names) in connection with the proposal of such business
by such stockholder and any material interest of such stockholder in such
business and (v) a representation that such stockholder intends to appear in
person or by proxy at the annual meeting to bring such business before the
meeting.
No business shall be conducted at the annual meeting of stockholders except
business brought before the annual meeting in accordance with the procedures set
forth in this Section 4; PROVIDED, HOWEVER, that, once business has been
properly brought before the annual meeting in accordance with such procedures,
nothing in this Section 4 shall be deemed to preclude
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discussion by any stockholder of any such business. If the Chairman of an
annual meeting determines that business was not properly brought before the
annual meeting in accordance with the foregoing procedures, the Chairman shall
declare to the meeting that the business was not properly brought before the
meeting and such business shall not be transacted.
SECTION 5. DEFINITION. For purposes of Sections 3 and 4 of these By-Laws,
"public disclosure" shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press or comparable national news service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act."
SECTION 6. SPECIAL MEETINGS. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute, may be called at
any time by the Board of Directors or by the Chairman of the Board, and shall be
called by the Chairman of the Board, the President or the Secretary at the
written request of the majority of the Board of Directors or at the written
request of stockholders owning capital stock having eighty percent (80%) of the
voting power of the entire issued and outstanding capital stock of the
Corporation. Such request shall state the purpose or purposes of the proposed
meeting. No business shall be transacted at any special meeting of the
stockholders except that stated in the notice of the meeting.
SECTION 7. NOTICE OF MEETINGS. Written notice stating the place, date and hour
of each annual and special meeting of the stockholders and, in the case of a
special meeting, the purpose or purposes thereof, shall be given not less than
twenty (20) nor more than sixty (60) days before the date of such meeting to
each stockholder entitled to vote at such meeting. If mailed, notice shall be
deemed given when deposited in the United States mail, postage prepaid, directed
to the stockholder at such address as appears on the records of the Corporation.
Notice of any meeting of stockholders shall not be required to be given to any
stockholder who shall attend such meeting in person or by proxy and shall not,
at the beginning of such meeting, object to the transaction of any business
because the meeting is not lawfully called or convened, or who shall, either
before or after the meeting, submit a signed waiver of notice.
SECTION 8. QUORUM. At all meetings of the stockholders the holders of a
majority of the shares of stock of the Corporation issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall be
requisite to constitute a quorum for the transaction of business, except as
otherwise provided by statute or in the Restated Certificate of Incorporation.
In the absence of a quorum, the holders of a majority of the shares of stock
present in person or by proxy and entitled to vote may adjourn the meeting until
the requisite amount of stock shall be present.
SECTION 9. ORGANIZATION AND ORDER OF BUSINESS. At each meeting of the
stockholders, the Chairman of the Board, or in his absence the President, or in
his absence any other person selected by the Board of Directors, shall act as
Chairman of the meeting. The Secretary, or in his absence an Assistant
Secretary, or any person appointed by the Chairman of the meeting, shall act as
Secretary of the meeting and keep the minutes thereof. The order of business at
all meetings of the stockholders shall be as determined by the Chairman of the
meeting.
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SECTION 10. VOTING. Except as otherwise provided by statute or by the Restated
Certificate of Incorporation, at each meeting of the stockholders each
stockholder having the right to vote thereat shall be entitled to (i) one vote
for each share of common stock of the Corporation standing in his name on the
record of stockholders of the Corporation, and (ii) such voting rights, if any,
as are provided in the applicable Certificate of Designation, Preferences and
Rights with respect to any series of preferred stock of the Corporation standing
in his name on the record of stockholders of the Corporation, in all such
instances on the date fixed by the Board of Directors as the record date for the
determination of the stockholders who shall be entitled to notice of and vote at
such meeting; or if no record date shall have been fixed, then at the close of
business on the day next preceding the day on which notice thereof shall be
given. Each stockholder entitled to vote at any meeting of stockholders may
authorize another person or persons to act for him by a proxy signed by such
stockholder or his attorney-in-fact. No proxy shall be valid after the
expiration of three (3) years from the date thereof, unless otherwise provided
in the proxy. Except as otherwise provided by statute, these By-Laws or the
Restated Certificate of Incorporation, any corporate action to be taken by vote
of the stockholders shall be authorized by a majority of the total votes cast at
a meeting of stockholders by the holders of shares present in person or
represented by proxy and entitled to vote on such action. Unless required by
statute, or determined by the chairman of the meeting to be advisable, the vote
on any question other than elections need not be by written ballot. On a vote
by written ballot, each ballot shall be signed by the stockholder, his attorney-
in-fact, or his proxy if there be such proxy, and shall state the stockholder's
name and the number of shares voted.
SECTION 11. STOCKHOLDER LIST. The Secretary shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. This list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may
be inspected by any stockholder who is present.
SECTION 12. INSPECTORS. The Board of Directors may, in advance of any meeting
of stockholders, appoint or provide for the appointment of one or more
inspectors to act at such meeting or any adjournments thereof. If the inspector
or inspectors shall not be appointed, or if any of them shall fail to appear or
act, the Chairman of the meeting may, and on the request of any stockholder
entitled to vote thereat shall, appoint one or more inspectors. Each inspector,
before entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. On request of the
Chairman of the meeting or any stockholder entitled to vote thereat, the
inspectors shall make a report in writing of any challenge, request or matter
determined by them and shall execute a certificate of any fact found by them.
No director or candidate for the office of director shall act as inspector of
any election of directors. Inspectors need not be stockholders of the
Corporation.
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SECTION 13. ADJOURNED MEETINGS. A meeting of stockholders may be adjourned to
another time and to another place by either the chairman of the meeting or by
the stockholders and proxies present. When a meeting is adjourned to another
time or place, notice of such adjourned meeting need not be given if the time
and place to which the meeting shall be adjourned are announced at the meeting
at which the adjournment is taken. At the adjourned meeting, if a quorum is
present any business may be transacted which might have been transacted at the
original meeting. If the adjournment is for more than thirty (30) days or if
after the adjournment a new record date is fixed for the adjourned meeting,
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
SECTION 14. CONSENT OF STOCKHOLDERS. Unless otherwise provided in the Restated
Certificate of Incorporation, any action required or permitted to be taken at
any Annual or Special Meeting of Stockholders of the Corporation, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the Corporation shall
be managed by or under the direction of the Board of Directors. The Board of
Directors may exercise all such authority and powers of the Corporation and do
all such lawful acts and things as are not by statute or the Restated
Certificate of Incorporation or these By-Laws directed or required to be
exercised or done by the stockholders.
SECTION 2. NUMBER AND ELECTION OF DIRECTORS. The number of directors of the
Corporation which shall constitute the entire Board of Directors shall be such
number as is fixed by the Board of Directors in accordance with the provisions
of the Restated Certificate of Incorporation. Directors shall be elected and
shall hold office in accordance with the provisions of the Restated Certificate
of Incorporation. Election of directors by the stockholders shall be by a
plurality of the votes cast. Directors need not be stockholders of the
Corporation.
SECTION 3. PLACE OF MEETING. The Board of Directors may hold meetings at such
place, within or without the State of Delaware, as the Board of Directors or the
officer calling the meeting may from time to time determine.
SECTION 4. ORGANIZATION MEETING. Promptly following the adjournment of the
annual meeting of the stockholders, and without other notice than this By-Law,
the newly constituted Board of Directors shall meet for the purpose of
organization, the election of officers, and the transaction of other business,
with power to adjourn and re-adjourn.
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SECTION 5. MEETINGS. Regular meetings of the Board of Directors shall be held
at such time and place as the Board of Directors may from time to time
determine. Special meetings of the Board of Directors may be called by the
Chairman of the Board, the President or any two (2) or more Directors.
SECTION 6. NOTICE OF MEETINGS. Notice of regular meetings of the Board of
Directors need not be given except as otherwise required by statute or these By-
Laws. Notice of the place, date and time of the holding of each special meeting
of the Board of Directors, and the purpose or purposes thereof, shall be
delivered to each director either personally or by mail, telephone, telegraph,
cable, or similar means, three (3) days before the day on which such meeting is
to be held, or on such shorter notice as the person or persons calling such
meeting deem appropriate in the circumstances. Such notice shall be deemed to
be given at the time it is dispatched by depositing it in the United States mail
with postage prepaid, by transmission by telephone, telegraph or cable, or by
personal delivery. Notice of any such meeting need not be given to any director
who shall, either before or after the meeting, submit a signed waiver of notice
or who shall attend such meeting without protesting, prior to or at its
commencement, the lack of notice to him.
SECTION 7. QUORUM AND MANNER OF ACTING. Except as otherwise provided by
statute, the Restated Certificate of Incorporation or these By-Laws, at all
meetings of the Board of Directors a majority of the directors then in office
shall constitute a quorum for the transaction of business; provided, however,
that if by reason of catastrophe or emergency, a majority of the entire Board is
not available or capable of acting, one third (1/3) of the entire Board of
Directors, but in any event not less than two (2) directors, shall constitute a
quorum for the transaction of business at any meeting of the Board of Directors.
The act of a majority of the directors present at any meeting at which there is
a quorum, as herein provided, shall be the act of the Board of Directors except
as may be otherwise specifically provided by statute, the Restated Certificate
of Incorporation or these By-Laws. In the absence of a quorum at any meeting of
the Board of Directors, a majority of the directors present thereat, or if no
director be present, the Secretary or an Assistant Secretary, may adjourn such
meeting to another time and place until the quorum is had. Notice of any
adjourned meeting need not be given. At any adjourned meeting at which a quorum
is present, any business may be transacted which might have been transacted at
the meeting as originally called.
SECTION 8. ORGANIZATION AND ORDER OF BUSINESS. At each meeting of the Board of
Directors, the Chairman of the Board, or in his absence the President, or in his
absence, a member of the Board of Directors selected by the directors in
attendance, shall act as Chairman of the meeting. The Secretary, or in his
absence, an Assistant Secretary, or any person appointed by the Chairman of the
meeting, shall act as Secretary of the meeting and keep the minutes thereof.
The order of business at all meetings of the directors shall be as determined by
the Chairman of the meeting.
SECTION 9. ACTION WITHOUT MEETING. Any action required or permitted to be
taken at any meeting of the Board of Directors, or of any committee thereof, may
be taken without a meeting if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of the proceedings of the Board of Directors
or committee.
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SECTION 10. CONFERENCE TELEPHONE. Members of the Board of Directors, or of any
committee thereof, may participate in a meeting of the Board of Directors or
committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting in this manner shall constitute presence in
person at such meeting.
SECTION 11. COMMITTEES. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of three (3) or more of the directors of the Corporation. The Board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. Any
such committee, to the extent provided in the resolution of the Board of
Directors, shall have and may exercise all the powers of the Board of Directors
in the management of the business and affairs of the Corporation which the Board
of Directors may lawfully delegate, and may authorize the seal of the
Corporation to be affixed to all papers which may require it. Meetings of
committees may be called by the committee chairman, if any, or as provided in
Section 5 of this Article III. Notice of such meetings shall be given to each
member of the committee in the manner set forth in Section 6 of this Article
III. Notice of any such meeting need not be given to any committee member who
shall, either before or after the meeting, submit a signed waiver of notice or
who shall attend such meeting without protesting prior to or at its
commencement, the lack of notice to him. A notice or waiver of notice of any
regular or special meeting of any committee need not state the purposes of such
meeting. A majority of any committee may determine its action, unless the Board
of Directors shall otherwise provide. Each committee shall keep written minutes
of its formal proceedings and shall report such proceedings to the Board. All
such proceedings shall be subject to revision or alteration by the Board of
Directors; provided, however, that third parties shall not be prejudiced by such
revision or alteration. The Board of Directors shall have power at any time to
fill vacancies in, to change the membership, duties or authority of, or to
dissolve any such committee.
SECTION 12. RESIGNATIONS. Any director of the Corporation may resign at any
time by giving written notice of his resignation to the Board of Directors, the
Chairman of the Board, the President or the Secretary. Such resignation shall
take effect at the date of the receipt of such notice, or at any later time
specified therein; and unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
SECTION 13. REMOVAL. Except as otherwise provided in the Restated Certificate
of Incorporation or in these By-Laws, any director may be removed at any time,
at a special meeting of the stockholders called and held for the purpose, but,
for so long as the Board of Directors is classified, only for cause, by the
affirmative vote of the holders of a majority of the shares then entitled to
vote at an election of directors; and the vacancy in the Board caused by any
such removal shall be filled as the Restated Certificate of Incorporation
provides.
SECTION 14. VACANCIES. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors may be filled by a
majority of the directors then in office, in accordance with the Restated
Certificate of Incorporation.
SECTION 15. COMPENSATION. The Board of Directors shall have authority to fix
the compensation, including fees and reimbursement of expenses, of directors for
services to the Corporation in any
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capacity and no such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
ARTICLE IV
OFFICERS
SECTION 1. NUMBER AND QUALIFICATION. The officers of the Corporation shall be
elected by the Board of Directors. The officers shall be a Chairman of the
Board, a President, one or more Vice Presidents, a Secretary, a Treasurer, and a
Controller. The Board of Directors may also elect a Vice Chairman of the Board,
and one or more Assistant Secretaries, Assistant Treasurers, and Assistant
Controllers, and the Board of Directors may designate any Vice President as an
Executive Vice President, a Senior Vice President or a Group Vice President.
The Board of Directors may also designate from such officers (i) a Chief
Executive Officer who shall have general supervision and authority over the
business and affairs of the Corporation subject to the control of the Board of
Directors, (ii) a Chief Operating Officer who shall have general supervision and
authority over the operations of the Corporation subject to the control of the
Chief Executive Officer, if that designation has been made, and subject to the
control of the Board of Directors, or (iii) both a Chief Executive Officer and a
Chief Operating Officer. The Chairman of the Board, the Vice Chairman of the
Board and the President shall be chosen from among the directors, but no other
officer need be a director. Any two or more offices may be held by the same
person.
SECTION 2. ELECTION AND TERM. The officers of the Corporation shall be chosen
annually by the Board of Directors at the first meeting of the Board of
Directors following the annual meeting of stockholders or as soon thereafter as
is conveniently possible. Officers may also be elected from time to time at any
other meeting of the Board of Directors to fill vacancies and otherwise. Each
officer, except such officers as may be appointed in accordance with the
provisions of Section 3 of this Article IV, shall continue in office until his
successor shall have been duly elected and qualified or until his earlier
resignation or removal.
SECTION 3. OTHER OFFICERS AND AGENTS. The Board of Directors or the Chairman
of the Board, or in his absence or disability, the President, may appoint such
other officers and agents, each of whom shall hold office for such period, have
such authority and perform such duties as are provided for in these By-Laws, or
as the Board of Directors or Chairman of the Board, or the President, may from
time to time determine.
SECTION 4. RESIGNATION. Any officer may resign at any time by giving written
notice to the Chairman of the Board, the President or the Secretary of the
Corporation. Such resignation shall take effect at the date of the receipt of
such notice, or at any later time specified therein; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
SECTION 5. REMOVAL. Any officer or agent may be removed, either with or
without cause, at any time by the vote of the majority of the whole Board of
Directors. Any subordinate officer or agent appointed in accordance with the
provisions of Section 3 of this Article IV may be
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removed, either with or without cause, by a vote of the majority of the whole
Board of Directors or, except in the case of an officer or agent elected or
appointed by the Board of Directors, by the Chairman of the Board or the
President.
SECTION 6. VACANCIES. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause may be filled for the unexpired
portion of the term in the manner prescribed in these By-Laws for the regular
election or appointment to such office.
SECTION 7. COMPENSATION. The compensation of the officers of the Corporation
shall be fixed from time to time by the Board of Directors or by such officers
or a committee of the Board of Directors to which the Board of Directors has
delegated such authority. An officer of the Corporation shall not be prevented
from receiving compensation by reason of the fact that he is also a director of
the Corporation, but any such officer who shall also be a director shall not
have any vote in the determination of the amount of compensation paid to him.
SECTION 8. CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside at
all meetings of the stockholders and of the Board of Directors. He shall
perform such duties with such authority as may be prescribed from time to time
by the Board of Directors.
SECTION 9. PRESIDENT. The President shall be responsible to the Chief
Executive Officer and shall perform such duties with such authority as may be
prescribed in these By-Laws and from time to time by the Board of Directors and
the Chief Executive Officer.
SECTION 10. VICE PRESIDENTS. Each Vice President shall have such powers and
shall perform such duties as shall from time to time be prescribed by the Board
and as shall from time to time be assigned to him by the Chairman of the Board
or the President.
SECTION 11. SECRETARY. The Secretary shall give or cause to be given all
required notices of meetings of stockholders and of the Board of Directors,
shall record all of the proceedings and act as custodian of the minutes of all
such meetings, shall have charge of the corporate seal and the corporate minute
books, and shall make such reports and perform such other duties as may be
assigned from time to time by the Board of Directors, the Chairman of the Board,
or the President. The Secretary shall keep in safe custody the seal of the
Corporation and the Secretary or any Assistant Secretary shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be
attested by the signature of the Secretary or any Assistant Secretary. The
Assistant Secretaries, or any of them, shall perform such of the duties of the
Secretary as may from time to time be assigned to them by the Board of
Directors, the Chairman of the Board, the President, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting shall have
all the powers of and be subject to all the restrictions upon the Secretary.
SECTION 12. TREASURER. The Treasurer shall have custody of all moneys and
securities of the Corporation, shall have responsibility for disbursement of the
funds of the Corporation, shall make payment of the just demands on the
Corporation, shall invest surplus cash of the Corporation and manage its
investment portfolio under the direction of the Board of Directors, and shall
render to the Board of Directors an account of all transactions of the
Corporation and of the financial condition of the Corporation as may be required
of him. The Treasurer shall also
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perform such other duties as may be assigned to him from time to time by the
Board of Directors, the Chairman of the Board, the President or by the Chief
Financial Officer. The Assistant Treasurers, or any of them, shall perform such
of the duties of the Treasurer as may from time to time be assigned to them by
the Board of Directors, the Chairman of the Board, the President, the Chief
Financial Officer, or the Treasurer, and in the absence of the Treasurer or in
the event of his disability or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Treasurer.
SECTION 13. CONTROLLER. The Controller shall provide and maintain a system of
accounts and accounting records of the Corporation, shall provide and administer
a system of internal financial controls, and shall present such financial
statements to the Board of Directors as may be required. The Controller shall
also perform such other duties as may from time to time be assigned to him by
the Board of Directors, the Chairman of the Board, the President or by the Chief
Financial Officer. The Assistant Controllers, or any of them, shall perform
such of the duties of the Controller as may from time to time be assigned to
them by the Board of Directors, the Chairman of the Board, the President, the
Chief Financial Officer, or the Controller, and in the absence of the Controller
or in the event of his disability or refusal to act, shall perform the duties of
the Controller, and when so acting shall have all the powers of and be subject
to all the restrictions upon the Controller.
ARTICLE V
INDEMNIFICATION
SECTION 1. RIGHT TO INDEMNIFICATION. Every person who was or is a party or is
threatened to be made a party to or is involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director or officer of
the Corporation or, while a director or officer of the Corporation, is or was
serving at the request of the Corporation or for its benefit as a director,
officer, employee or agent of another corporation, or as its representative in a
partnership, joint venture, trust or other enterprise, including any employee
benefit plan, shall be indemnified and held harmless by the Corporation to the
fullest extent legally permissible under the General Corporation Law of the
State of Delaware in the manner prescribed therein, from time to time, against
all expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection therewith.
Similar indemnification may be provided by the Corporation to an employee or
agent of the Corporation who was or is a party or is threatened to be made a
party to or is involved in any such threatened, pending or completed action,
suit or proceeding, by reason of the fact that he is or was an employee or agent
of the Corporation or is or was serving at the request of the Corporation or for
its benefit as a director, officer, employee, or agent of another corporation or
as its representative in a partnership, joint venture, trust or other
enterprise, including any employee benefit plan.
SECTION 2. OTHER INDEMNIFICATION. The rights of indemnification conferred by
this Article shall not be exclusive of any other rights which such directors,
officers, employees or agents may have or hereafter acquire and, without
limiting the generality of such statement, they shall be entitled
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to their respective rights of indemnification under any by-law, agreement, vote
of stockholders, provision of law or otherwise, as well as their rights under
this Article.
ARTICLE VI
SHARES AND THEIR TRANSFER
SECTION 1. STOCK CERTIFICATES. Each holder of stock in the Corporation shall
be entitled to have a numbered certificate in such form as shall be approved by
the Board of Directors, certifying the number of shares owned by him and signed
in the name of the Corporation by the Chairman of the Board or the President or
a Vice President and by the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary, and sealed with the seal of the Corporation (which
seal may be a facsimile, engraved or printed); provided however, if such
certificate is countersigned by a transfer agent, or by a registrar, the
signature of any of the above-named officers of the Corporation may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent, or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent, or registrar at the date of issue.
SECTION 2. TRANSFER OF STOCK. Transfers of shares of stock of the Corporation
shall be made on the stock records of the Corporation only upon authorization by
the registered holder thereof, or by his attorney thereunto authorized by power
of attorney duly executed and filed with the Secretary or with a transfer agent
or transfer clerk, and on surrender of the certificate or certificates for such
shares properly endorsed or accompanied by a duly executed stock transfer power
with reasonable assurances given that such endorsement is genuine and that all
taxes thereon have been paid. Except as otherwise provided by law, the
Corporation shall be entitled to recognize the exclusive right of a person in
whose name any share or shares stand on the record of stockholders as the owner
of such share or shares for all purposes, including, without limitation, the
rights to receive dividends or other distributions, and to vote as such owner,
and the Corporation may hold any such stockholder or record liable for calls and
assessments, and the Corporation shall not be bound to recognize any equitable
or legal claim to or interest in any such share or shares on the part of any
other person whether or not it shall have express or other notice thereof.
SECTION 3. LOST CERTIFICATES. The Corporation may issue a new certificate of
stock in the place of any certificate theretofore issued by it, alleged to have
been lost, stolen or destroyed, or which shall have been mutilated, and the
Board of Directors may, in its discretion, require the owner of the lost,
stolen, destroyed or mutilated certificate, or his legal representative, to give
the Corporation a bond, limited or unlimited, in such sum and in such form and
with such surety or sureties as the Board of Directors in its absolute
discretion shall determine is sufficient to indemnify the Corporation against
any claim that may be made against it on account of the alleged loss, theft,
destruction or mutilation of any such certificate, or the issuance of a new
certificate. Anything herein to the contrary notwithstanding, the Board of
Directors in its absolute discretion may refuse to issue any such new
certificate except pursuant to legal proceedings under the laws of the State of
Delaware.
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SECTION 4. RULES AND REGULATIONS. The Board of Directors may make such
additional rules and regulations, not inconsistent with these By-Laws, the
Restated Certificate of Incorporation or the laws of the State of Delaware, as
it may deem expedient concerning the issuance, transfer and registration of
certificates for shares of stock of the Corporation. The Board of Directors may
appoint, or authorize any officer or officers of the Corporation to appoint, one
or more independent transfer agents and one or more independent registrars, and
may require all certificates for shares of stock to bear the signature or
signatures of any of them.
SECTION 5. RECORD DATE. In order to determine the stockholders entitled to
notice and to vote at any meeting of stockholders or adjournment thereof, or to
express consent to corporate action in writing without a meeting, or entitled
to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a record date, which shall not be less than ten
(10) nor more than sixty (60) days before the date of such meeting, nor more
than sixty (60) days prior to any other action. A determination of stockholders
of record entitled to notice of and to vote at a meeting of stockholders shall
apply to any adjournment of the meeting unless the Board of Directors shall
elect to fix a record date for the adjourned meeting.
ARTICLE VII
GENERAL PROVISIONS
SECTION 1. CONTRACTS AND OTHER INSTRUMENTS. The Chairman of the Board, the
Vice Chairman of the Board, the President, the Chief Operating Officer, the
Chief Financial Officer and any Senior Vice President may enter into any
contract or execute and deliver any instrument in the name of the Corporation
and on behalf of the Corporation except as in these By-Laws or by resolution
otherwise provided. The Board of Directors, except as in these By-Laws
otherwise provided, may authorize any other officer or officers, agent or agents
of the Corporation, to enter into any contract or execute and deliver any
instrument in the name of the Corporation and on behalf of the Corporation, and
such authority may be general or confined to specific instances, and unless so
authorized by the Board of Directors, no such other officer, agent or employee
shall have any power or authority to bind the Corporation by any contract or
engagement or to pledge its credit or to render it liable pecuniarily for any
purpose or to any amount.
SECTION 2. LOANS. No loans shall be contracted on behalf of the Corporation
and no negotiable paper shall be issued in its name unless, and on such terms as
shall be, authorized by the Board of Directors.
SECTION 3. DISBURSEMENTS. All checks, drafts, demands for money, notes or
other evidences of indebtedness of the Corporation shall be signed by such
officer or officers or such other person or persons as may from time to time be
designated by the Board of Directors or by any officer or officers or person or
persons authorized by the Board of Directors to make such designations.
Facsimile signatures may be authorized in any such case where authorized by the
Board of Directors.
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SECTION 4. DEPOSITS. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation under such
conditions and in such banks or other depositories as the Board of Directors may
designate, or as may be designated by any officer or officers, agent or agents
of the Corporation to whom such power of designation may from time to time be
delegated by the Board of Directors. For the purpose of deposit and for the
purpose of collection for the account of the Corporation, checks, drafts, and
other orders for the payment of money which are payable to the order of the
Corporation may be endorsed, assigned and delivered by any officer or agent of
the Corporation as the Board of Directors may determine by resolution.
SECTION 5. VOTING SECURITIES OF OTHER CORPORATIONS. Unless otherwise ordered
by the Board of Directors, the Chairman of the Board, the President or any
person either may designate, shall have full power and authority on behalf of
the Corporation, in person or by proxy, to attend and to act and to vote at any
meeting of the security holders of any other corporation in which this
Corporation may hold securities, and at any such meeting he or his proxy shall
possess and may exercise any and all rights and powers incident to the ownership
of such securities and which as the owner thereof the Corporation might have
possessed and exercised if present. The Board of Directors, by resolution from
time to time, may confer like powers upon any other person or persons.
SECTION 6. CORPORATE SEAL. The Board of Directors shall provide a corporate
seal, which shall be in the form of a circle, and which shall bear the words and
figures:
ECOLAB INC.
CORPORATE SEAL
1924
DELAWARE
SECTION 7. FISCAL YEAR. The fiscal year of the Corporation shall be as
determined by the Board of Directors.
SECTION 8. GENDER. Whenever used in these By-Laws, words in the masculine
gender shall include the feminine gender.
ARTICLE VIII
AMENDMENTS
Except as otherwise provided in the Restated Certificate of Incorporation or
these By-Laws, the Board of Directors may from time to time, by vote of a
majority of its members, alter, amend or rescind all or any of these By-Laws as
permitted, by law, subject to the power of the stockholders to change or repeal
such By-Laws.
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