<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 24, 1996
REGISTRATION NO. 33-[ ]
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
ECOLAB INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE ECOLAB CENTER 41-0231510
(State or other jurisdiction 370 N. Wabasha Street (I.R.S. Employer
of incorporation or St. Paul, Minnesota Identification
organization) 55102-1390 No.)
(612) 293-2233
</TABLE>
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
--------------------------
KENNETH A. IVERSON, ESQ.
VICE PRESIDENT AND SECRETARY
Ecolab Inc.
Ecolab Center
370 N. Wabasha Street
St. Paul, Minnesota 55102-1390
(612) 293-2233
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
PETER C. KRUPP, ESQ.
Skadden, Arps, Slate, Meagher & Flom
333 West Wacker Drive, Suite 2100
Chicago, Illinois 60606
--------------------------
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, please check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt Securities (3)........................ $200,000,000 N/A $200,000,000 $60,606
</TABLE>
(1) In U.S. dollars or the equivalent thereof in foreign currency or currency
units.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) May be issued at an original issue discount.
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.
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<PAGE>
SUBJECT TO COMPLETION, DATED OCTOBER 24, 1996
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.
<PAGE>
PROSPECTUS
$200,000,000
[LOGO]
ECOLAB INC.
DEBT SECURITIES
------------------
Ecolab Inc. (the "Company") may offer from time to time its debt securities
consisting of debentures, notes and/or other unsecured evidences of indebtedness
("Debt Securities") at an aggregate initial offering price of not more than
$200,000,000 (or the equivalent in foreign currency or composite currencies).
The Debt Securities may be offered as separate series in amounts, at prices and
on terms to be determined at the time of sale and to be set forth in supplements
to this Prospectus (each a "Prospectus Supplement"). The Company may sell Debt
Securities to or through underwriters to be designated from time to time and may
also sell Debt Securities directly to other purchasers or through agents or
broker dealers. See "Plan of Distribution."
The terms of the Debt Securities, including, where applicable, the specific
designation, aggregate principal amount, currency or currencies, denomination,
maturity, rate or rates of interest (or the method of calculating the interest
rate), dates for payment of interest, if any, terms for redemption at the option
of the Company or the Holder (as defined under "Certain Definitions" below),
terms for sinking fund payments, if any, the initial public offering price, the
names of any underwriters or agents, the principal amounts, if any, to be
purchased by underwriters, the compensation, if any, of such underwriters or
agents and any other terms in connection with the offering and sale of the Debt
Securities with respect to which this Prospectus is being delivered, are set
forth in the accompanying Prospectus Supplement. The Prospectus Supplement will
also contain information, where applicable, about material United States federal
income tax considerations relating to, and any listing on a securities exchange
of, the Offered Debt Securities (as defined below) covered by such Prospectus
Supplement.
------------------------
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.
<PAGE>
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
------------------------
The date of this Prospectus is .
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS OR THE PROSPECTUS SUPPLEMENT, AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR BY ANY UNDERWRITER, AGENT OR DEALER. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR THE PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR
THEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF OR
THAT THE INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AT ANY TIME
SUBSEQUENT TO THE DATE HEREOF OR THEREOF. THIS PROSPECTUS AND THE PROSPECTUS
SUPPLEMENT DO NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH
THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO
ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information filed by the Company with the Commission can be inspected and copied
at the public reference facilities maintained by the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, or at the
Commission's regional offices located at 1400 Citicorp Center, 500 West Madison
Street, Chicago, Illinois 60601, and Seven World Trade Center, Suite 1300, New
York, New York 10048. The Commission maintains a web site that contains reports,
proxy and information statements and other information. The web site address is
http:\\www.sec.gov. Copies of such material can be obtained from the Public
Reference Section of the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. In addition, reports,
proxy statements and other information concerning the Company may be inspected
at the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information, reference is made to the Registration Statement, which may be
inspected without charge at the Public Reference Section of the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and
copies of which may be obtained from the Commission, at prescribed rates.
Any statements contained herein concerning the provisions of any document
filed as an exhibit to the Registration Statement or otherwise filed with the
Commission or incorporated by reference herein are not necessarily complete,
and, in each instance, reference is made to the copy of such document so filed
for a more nearly complete description of the matter involved. Each such
statement is qualified in its entirety by such reference.
3
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed by the Company with the Commission under the
Exchange Act, are incorporated in this Prospectus by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995.
(2) The Company's Current Report on Form 8-K dated February 24, 1996.
(3) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1996 and June 30, 1996.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the termination of the offering of the Debt Securities shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained herein
or in a document incorporated or deemed to be incorporated by reference herein
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
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any 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 of
the foregoing documents incorporated herein by reference (other than certain
exhibits to such documents). Requests for such documents should be directed to
Ecolab Inc., Ecolab Center, 370 N. Wabasha Street, St. Paul, Minnesota
55102-1390, Attention: Corporate Secretary (telephone (612) 293-2233).
4
<PAGE>
THE COMPANY
Ecolab Inc., incorporated in Delaware, is engaged in the development and
marketing of premium products and services for institutional and industrial
markets. The Company provides cleaning, sanitizing, pest elimination, water
treatment and maintenance products, systems and services to a variety of
industries including hotels and restaurants, food service, health care and
educational facilities, commercial and institutional laundries, light industry,
dairy plants and farms, 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 (the Henkel-Ecolab Joint Venture) which operates
institutional and industrial cleaning and sanitizing businesses in Europe.
The Company's principal executive offices are located at Ecolab Center, 370
N. Wabasha Street, St. Paul, Minnesota 55102-1390, and its telephone number is
(612) 293-2233.
USE OF PROCEEDS
Except as otherwise set forth in the Prospectus Supplement, the net proceeds
to the Company from the sale of the Debt Securities offered hereby will be added
to the working capital of the Company and will be available for general
corporate purposes.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the Company for the periods indicated.
<TABLE>
<CAPTION>
SIX MONTHS ENDED FISCAL YEAR ENDED DECEMBER 31,
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JUNE 30, 1996 JUNE 30, 1995 1995 1994 1993 1992 1991
- --------------- --------------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
5.50 6.13 6.68 5.79 4.02 2.79 2.90
</TABLE>
The ratios of earnings to fixed charges were computed by dividing earnings
before fixed charges by the fixed charges. Earnings consist of income before
income taxes and before equity in earnings of the Henkel-Ecolab Joint Venture,
plus fixed charges. Fixed charges consist of interest expense, plus the
estimated interest portion of rent expense.
5
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The following description of the Debt Securities sets forth certain general
terms and provisions of the Debt Securities to which any Prospectus Supplement
may relate. The specific terms of the Debt Securities offered by any Prospectus
Supplement (the "Offered Debt Securities") and the extent, if any, to which such
general provisions may apply to the Debt Securities so offered, will be
described in the Prospectus Supplement relating to such Offered Debt Securities.
The Offered Debt Securities are to be issued in one or more series under an
Indenture dated as of October , 1996, as amended and supplemented (the
"Indenture"), between the Company and The First National Bank of Chicago, as
trustee (the "Trustee"). A copy of the Indenture is an exhibit to the
Registration Statement. The following summary of certain provisions of the
Indenture does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, all provisions of the Indenture, including
definitions of certain terms contained in the Indenture. Particular sections or
defined terms of the Indenture referred to herein are incorporated herein by
reference. Capitalized terms not otherwise defined herein shall have the
meanings given to them in the Indenture. Section numbers set forth below refer
to provisions of the Indenture.
GENERAL
The Debt Securities (and, in the case of Bearer Securities, any Coupons
appertaining thereto) will be unsecured obligations of the Company and will rank
equally and PARI PASSU with all other unsecured and unsubordinated indebtedness
of the Company, PROVIDED that such other unsecured and unsubordinated
indebtedness may contain covenants, events of default or other provisions which
are different from or which are not contained in the Debt Securities.
The Indenture does not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provides that Debt Securities may
be issued thereunder from time to time in one or more series. (Section 2.3)
Reference is made to the Prospectus Supplement relating to the Offered Debt
Securities for the following terms thereof: (1) the title of the Offered Debt
Securities; (2) any limit on the aggregate principal amount of the Offered Debt
Securities; (3) the date or dates on which the Offered Debt Securities will be
payable, which date or dates may be fixed or extendible; (4) the rate or rates
per annum, which may be fixed or variable (or the method of calculating such
rate), at which the Offered Debt Securities will bear interest, if any, and the
date from which such interest, if any, will accrue; (5) the times at which any
such interest will be payable; (6) the date, if any, after which and the price
or prices at which such Securities may, pursuant to any optional or mandatory
redemption provisions, be redeemed at the option of the Company or the Holder
and any other terms and provisions of such optional or mandatory redemptions;
(7) the obligation, if any, of the Company to redeem, repay or purchase such
Securities pursuant to any sinking fund (or analogous provision) or at the
option of a Holder thereof and the period or periods within which or the date or
dates on which, the price or prices at which, the currency in which, and the
other terms and conditions upon which, such Securities shall be redeemed, repaid
or purchased, in whole or in part, pursuant to such obligation; (8) if the
Offered Debt Securities are Original Issue Discount Securities, the amount (or
the method of calculating such amount) of principal payable upon acceleration of
such Offered Debt Securities following an Event of Default; (9) whether the
Offered Debt Securities are to be issued as Registered Securities or Bearer
Securities or both and, if Bearer Securities are to be issued, whether Coupons
will be attached thereto, whether Bearer Securities of the series may be
exchanged for Registered Securities having the same terms and the circumstances
under which and the place or places at which any such exchanges, if permitted,
may be made; (10) the coin or currency, which may be a composite currency such
as the ECU, in which payment of the principal of and interest on the Offered
Debt Securities will be made if other than the coin or currency of the United
States; (11) any provisions enabling the Company or Holders of Offered Debt
Securities to elect to make or receive payments of the principal
6
<PAGE>
of or interest on the Offered Debt Securities in a coin or currency other than
that in which the Offered Debt Securities are stated to be payable; (12) the
manner in which the amount of payments of principal of or interest on the
Offered Debt Securities is to be determined if such determination is to be made
with reference to an index; (13) the right of the Company to defease the Offered
Debt Securities or certain covenants under the Indenture; (14) whether the
Offered Debt Securities will be issued in whole or in part in temporary or
permanent global form and, if so, the initial Depositary with respect to such
Global Security; (15) if a temporary Global Security is to be issued with
respect to the Offered Debt Securities, the terms upon which beneficial
interests in such temporary Global Security may be exchanged in whole or in part
for beneficial interests in a definitive Global Security or for individual
Offered Debt Securities of the series and the terms upon which beneficial
interests in a definitive Global Security, if any, may be exchanged for
individual Offered Debt Securities having the same terms; (16) any addition to,
or modification or deletion of, any Event of Default or any covenant specified
in the Indenture with respect to the Offered Debt Securities; (17) the Person to
whom any interest on the Offered Debt Securities is payable, if other than the
registered Holder thereof, or the manner in which any interest is payable on a
Bearer Security if other than upon presentation of the Coupons; (18) whether and
under what circumstances the Company will pay additional interest on the Offered
Debt Securities held by a Non-U.S. Person in respect of any tax assessment or
governmental charge withheld or deducted and, if so, whether the Company will
have the option to redeem the Offered Debt Securities rather than pay such
additional interest; and (19) any other terms of the Offered Debt Securities.
(Section 2.3)
Unless otherwise indicated in the Prospectus Supplement relating thereto,
principal of and interest on the Registered Securities will be payable, and the
Registered Securities will be exchangeable and transfers thereof will be
registrable, at the Corporate Trust Office of the Trustee in the City and State
of New York or, in the case of Bearer Securities, at the principal London office
of the applicable Trustee; PROVIDED that, at the option of the Company, payment
of any interest may be made by check mailed to the address of the Person
entitled thereto as it appears in the Security Register. (Sections 2.3, 2.8 and
3.2)
If Bearer Securities are issued, the special restrictions and
considerations, including special offering restrictions and special federal
income tax considerations, applicable to any such Offered Debt Securities and to
payment on and transfer and exchange of such Offered Debt Securities will be
described in the applicable Prospectus Supplement. No service charge will be
made for any transfer or exchange of the Offered Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. (Section 2.8)
Debt Securities may be sold at a substantial discount below their principal
amount, bearing no interest or interest at a rate which at the time of issuance
is below market rates. Special United States federal income tax considerations
applicable to any such Debt Securities, or to Debt Securities which are
denominated in a currency or currency unit other than United States dollars,
will be set forth in the applicable Prospectus Supplement.
FORM, EXCHANGE AND TRANSFER
Debt Securities of a series may be issuable as individual securities in
registered form without Coupons ("Registered Securities") or in bearer form with
or without Coupons attached ("Bearer Securities") or as one or more global
securities in registered form (each a "Global Security"). Unless otherwise
specified in the applicable Prospectus Supplement, Debt Securities will be
issued only (i) as Registered Securities in denominations of $1,000 and integral
multiples thereof or (ii) as Bearer Securities in denominations of $1,000 or
$5,000 and integral multiples thereof. (Section 2.7)
At the option of the Holder, subject to the terms of the Indenture and the
limitations applicable to Global Securities, Registered Securities of each
series will be exchangeable for other Registered Securities of the same series
of any authorized denomination and of a like tenor and aggregate principal
amount. (Section 2.8) In addition, if Debt Securities of any series are issuable
as both Registered Securities and as
7
<PAGE>
Bearer Securities, at the option of the Holder, subject to the terms of the
Indenture, Bearer Securities (accompanied by all unmatured Coupons, except as
provided below, and all matured Coupons in default) of such series will be
exchangeable for Registered Securities of the same series of any authorized
denominations and of a like tenor and aggregate principal amount. Unless
otherwise indicated in the applicable Prospectus Supplement, any Bearer Security
surrendered in exchange for a Registered Security between a record date or a
special record date for defaulted interest and the relevant date for payment of
interest will be surrendered without the Coupon relating to such date for
payment of interest, and interest will not be payable in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such Coupon when due in accordance with the terms
of the Indenture. Bearer Securities will not be issued in exchange for
Registered Securities. (Section 2.8)
Subject to the terms of the Indenture and the limitations applicable to
Global Securities, Debt Securities may be presented for exchange as provided
above, and Registered Securities may be presented for registration of transfer
(duly endorsed or with the form of transfer endorsed thereon duly executed), at
the office of the Security Registrar or at the office of any transfer agent
designated by the Company for such purpose. No service charge will be made for
any registration of transfer or exchange of Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. Such transfer or exchange will be
effected upon the Security Registrar or such transfer agent, as the case may be,
being satisfied with the documents of title and identity of the person making
the request. Bearer Securities will be transferable by delivery. Provisions with
respect to the exchange of Bearer Securities will be described in the applicable
Prospectus Supplement. Any transfer agent (in addition to the Security
Registrar) initially designated by the Company for any Debt Securities will be
named in the applicable Prospectus Supplement. The Company may at any time
designate additional transfer agents or rescind the designation of any transfer
agent or approve a change in the office through which any transfer agent acts,
except that the Company will be required to maintain a transfer agent in each
Place of Payment for the Debt Securities of each series. (Sections 2.8 and 3.2)
If the Company redeems, in whole or in part, the Debt Securities of any
series (or of any series and specified tenor), the Company will not be required
to (i) issue, register the transfer of or exchange any Debt Security of that
series (or of that series and specified tenor, as the case may be) during a
period beginning at the opening of business 15 Business Days before the first
publication of the relevant notice of redemption or, if Registered Securities
are Outstanding and there is no publication, the day of mailing of a notice of
redemption or exchange of any such Debt Security selected for redemption and
ending at the close of business on the day of such mailing or (ii) register the
transfer of or exchange any Registered Security so selected for redemption, in
whole or in part, except the unredeemed portion of any such Registered Security
being redeemed in part or (iii) exchange any Bearer Security called for
redemption, except to exchange any Bearer Security for a Registered Security of
that series and of like tenor and principal amount that is immediately
surrendered for redemption. (Section 2.8)
GLOBAL SECURITIES
The Offered Debt Securities of a series may be issued in whole or in part in
the form of one or more Global Securities that will be issued to and registered
in the name of the depositary (the "Depositary") identified in the Prospectus
Supplement, or its nominee, relating to such Series. Global Securities may be
issued only in fully registered form and in either temporary or permanent form.
Unless and until a Global Security is exchanged in whole or in part for the
individual Debt Securities represented thereby, such Global Security may not be
transferred except as a whole by the Depositary to its nominee or by a nominee
of such Depositary to such Depositary or another nominee of such Depositary or
by such Depositary or any such nominee to a successor Depositary or nominee of
such successor Depositary. (Section 2.8)
The specific terms of the depositary arrangement with respect to a series of
Offered Debt Securities will be described in the Prospectus Supplement relating
to such series. The Company anticipates that the following provisions will
generally apply to depositary arrangements.
8
<PAGE>
Upon the issuance of a Global Security, the Depositary or its nominee will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the individual Debt Securities represented by such Global
Security to the accounts of persons that have accounts with the Depositary. Such
accounts shall be designated by the dealers, underwriters or agents with respect
to such Debt Securities or by the Company if such Debt Securities are offered
and sold directly by the Company. Ownership of beneficial interests in a Global
Security will be limited to persons that have accounts with the Depositary
("Participants") or persons that may hold interests through Participants.
Ownership of beneficial interests in such Global Security will be shown on, and
the transfer of that ownership will be effected only through, records maintained
by the Depositary or its nominee (with respect to interests of Participants) and
the records of Participants (with respect to interests of persons other than
Participants). The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a Global Security.
So long as the Depositary or its nominee is the registered owner of a Global
Security, such registered owner will be considered the sole owner or Holder of
the Debt Securities represented by such Global Security for all purposes under
the Indenture. Except as provided below, owners of beneficial interests in a
Global Security will not be entitled to have any of the individual Debt
Securities represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of any such Debt
Securities in definitive form and will not be considered the owners or Holders
thereof under the Indenture.
Payments of principal of and interest, if any, on Debt Securities
represented by a Global Security registered in the name of the Depositary or its
nominee will be made to the Depositary or its nominee, as the case may be, as
the registered owner of the Global Security representing such Debt Securities.
None of the Company, the Trustee, any Paying Agent or the Security Registrar for
such Debt Securities will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of the Global Security for such Debt Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Company expects the Depositary or its nominee, immediately upon receipt
of any payment of principal or interest in respect of a Global Security, will
credit Participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such Global Security
as shown on the records of the Depositary or its nominee. The Company also
expects that payments by Participants to owners of beneficial interests in such
Global Security held through such Participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name."
Such payments will be the sole responsibility of such Participants. The Company
has no control over the practices of the Depositary or the Participants, and
there can be no assurance that these practices will not be changed.
If the Depositary for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as Depositary and a successor Depositary is not
appointed by the Company within 90 days, the Company will issue individual Debt
Securities of such series in exchange for the Global Security representing such
series of Debt Securities. In addition, the Company may at any time and in its
sole discretion, subject to any limitations described in the Prospectus
Supplement relating to such Debt Securities, determine not to have any Debt
Securities of a series represented by one or more Global Securities and, in such
event, will issue individual Debt Securities of such series in exchange for the
Global Security representing such series of Debt Securities. Further, if there
shall have occurred and be continuing an Event of Default, or an event which,
with the giving of notice or lapse of time, or both, would constitute an Event
of Default with respect to any series of Debt Securities represented by a Global
Security, such Global Security shall be exchangeable for individual Debt
Securities of such series. In any such instance, an owner of a beneficial
interest in a Global Security will be entitled to a physical delivery of
individual Debt
9
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Securities of the series represented by such Global Security equal in principal
amount to such beneficial interest and to have such Debt Securities registered
in its name.
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
In compliance with United States federal tax laws and regulations, Bearer
Securities may not be offered, sold, resold or delivered in connection with
their original issuance in the United States or to U.S. Persons (each as defined
below) other than to a Qualifying Branch of a United States Financial
Institution (as defined below) or a U.S. Person acquiring Bearer Securities
through a Qualifying Branch of a United States Financial Institution, and any
underwriters, agents and dealers participating in the offering of Debt
Securities must agree that they will not offer any Bearer Securities for sale or
resale in the United States or to U.S. Persons (other than a Qualifying Branch
of a United States Financial Institution or a U.S. Person acquiring Bearer
Securities through a Qualifying Branch of a United States Financial Institution)
nor deliver Bearer Securities within the United States. In addition, any such
underwriters, agents and dealers must agree to send confirmations to each
purchaser of a Bearer Security confirming that such purchaser represents that it
is a Non-U.S. Person or is a Qualifying Branch of a United States Financial
Institution and, if such person is a dealer, that it will send similar
confirmations to purchasers from it. The term "Qualifying Branch of a United
States Financial Institution" means a branch located outside the United States
of a United States securities clearing organization, bank or other financial
institution listed under Treasury Regulation Section 1.165-12(c)(1)(v) that
agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations
thereunder.
Bearer Securities and any Coupons appertaining thereto will bear a legend
substantially to the following effect: "Any U.S. Person who holds this
obligation will be subject to limitations under the United States income tax
laws, including the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code." Under Sections 165(j) and 1287(a) of the Code, Holders
that are U.S. Persons, with certain exceptions, will not be entitled to deduct
any loss on Bearer Securities and must treat as ordinary income any gain
realized on the sale or other disposition (including the receipt of principal)
of Bearer Securities. (Section 2.1)
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of interest on a Registered Security on any Interest Payment Date will be made
to the Person in whose name such Registered Security (or one or more predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. (Section 2.7)
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of and interest on the Registered Securities of a particular series
will be payable at the office of such Paying Agent or Paying Agents as the
Company may designate for such purpose from time to time, except that, at the
option of the Company, payment of any interest may be made by check mailed to
the address of the Person entitled thereto as such address appears in the
Security Register. Unless otherwise provided in the applicable Prospectus
Supplement, no payment on a Bearer Security will be made by mail to an address
in the United States or by wire transfer to an account maintained by the Holder
thereof in the United States. Unless otherwise indicated in the applicable
Prospectus Supplement, a Paying Agent designated by the Company and located in
the Borough of Manhattan, the City of New York, will act as Paying Agent for
payments with respect to Debt Securities of each series. All Paying Agents
initially designated by the Company for the Debt Securities of a particular
series will be named in the applicable Prospectus Supplement. The Company may at
any time designate additional Paying Agents or rescind the designation of any
Paying Agent or approve a change in the office through which any Paying Agent
acts, except that, if the Debt Securities of a series are issuable only as
Registered Securities, the Company will be required to maintain a Paying Agent
in each Place of Payment for the Debt Securities of a particular series and, if
Debt Securities
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of a series include Bearer Securities, the Company will be required to maintain
(i) a Paying Agent in New York, New York, for payments with respect to any
Registered Securities of the series and (ii) a Paying Agent in a city located
outside the United States where Bearer Securities of such series and any related
Coupons may be presented and surrendered for payment (including any city in
which such agency is required to be maintained under the rules of any stock
exchange on which the Debt Securities of such series are listed). (Section 3.2)
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of and interest, if any, on Bearer Securities will be payable,
subject to any applicable laws and regulations, at the offices of such Paying
Agents outside the United States as the Company may designate from time to time,
or by check or by transfer to an account maintained by the payee outside the
United States. Unless otherwise indicated in the applicable Prospectus
Supplement, any payment of interest on any Bearer Securities will be made only
against surrender of the Coupon relating to such interest installment.
All moneys paid by the Company to a Paying Agent for the payment of the
principal of or interest on any Debt Security which remain unclaimed at the end
of one year after such principal or interest has become due and payable will be
repaid to the Company upon request, and the Holder of such Debt Security or any
Coupon thereafter may look only to the Company for payment thereof. (Section
10.4)
RESTRICTED AND UNRESTRICTED SUBSIDIARIES
Certain of the restrictive provisions of the Indenture are applicable to the
Company and its Restricted Subsidiaries and do not apply to Unrestricted
Subsidiaries. The assets and liabilities of Unrestricted Subsidiaries are not
consolidated with those of the Company and its Restricted Subsidiaries in
calculating Consolidated Net Tangible Assets under the Indenture.
"Unrestricted Subsidiaries" are defined as (1) any Subsidiary substantially
all of whose physical properties are located, or substantially all of whose
business is carried on, outside the United States of America, its territories
and possessions, and Canada, (2) any finance Subsidiary and (3) any Subsidiary
of an Unrestricted Subsidiary. In addition, the Board of Directors may designate
any other Subsidiary of the Company (including any newly acquired or newly
formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns
any capital stock of, or owns or holds any mortgage on any Operating Property
(as defined under "Certain Definitions" below) of, the Company or any Restricted
Subsidiary of the Company; PROVIDED that the Subsidiary to be so designated has
total assets at the time of such designation of $5 million or less. "Restricted
Subsidiaries" are all Subsidiaries other than Unrestricted Subsidiaries. The
term "Subsidiary" means any corporation of which the Company directly or
indirectly owns or controls stock which under ordinary circumstances (not
dependent upon the happening of a contingency) has the voting power to elect a
majority of the Board of Directors of such corporation. (Section 1.1)
Neither the Company nor any Restricted Subsidiary may transfer an Operating
Property, shares of stock or Debt (as defined below) of a Restricted Subsidiary
to an Unrestricted Subsidiary. (Section 3.9)
An Unrestricted Subsidiary may not be designated a Restricted Subsidiary
unless, after giving effect thereto, the aggregate amount of all Debt of the
Company and its Restricted Subsidiaries secured by mortgages (as defined below)
which would otherwise be subject to the restrictions described under "Certain
Covenants of the Company--Restrictions on Liens" and the Attributable Debt (as
defined under "Certain Definitions" below) in respect of all Sale and Leaseback
Transactions pursuant to clause (2) under "Certain Covenants of the
Company--Restrictions on Sale and Leaseback Transactions") in existence at such
time does not at the time exceed 15% of Consolidated Net Tangible Assets (as
defined under "Certain Definitions" below). (Section 3.10)
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CERTAIN COVENANTS OF THE COMPANY
RESTRICTIONS ON LIENS. Unless otherwise provided in the Prospectus
Supplement with respect to any series of Debt Securities, the Indenture provides
that the Company will not, and will not permit any Restricted Subsidiary to,
issue, assume or guarantee any indebtedness for money borrowed (herein referred
to as "Debt") if such Debt is secured by any mortgage, security interest,
pledge, lien or other encumbrance (herein referred to as a "mortgage") upon any
Operating Property of the Company or any Restricted Subsidiary or any shares of
stock or Debt of any Restricted Subsidiary, whether owned at the date of the
Indenture or thereafter acquired, without effectively securing the Debt
Securities equally and ratably with such Debt for at least the period such other
Debt is so secured unless, after giving effect thereto, the aggregate amount of
all Debt so secured (not including Debt permitted in clauses (1) through (7) in
the following sentence), together with all Attributable Debt in respect of Sale
and Leaseback Transactions involving Operating Properties pursuant to clause (2)
under "Certain Covenants of the Company--Restrictions on Sale and Leaseback
Transactions" in existence at such time would not exceed 15% of the Consolidated
Net Tangible Assets of the Company. The foregoing restriction does not apply to,
and therefore shall be excluded in computing secured Debt for the purpose of
such restriction, Debt secured by (1) mortgages on Operating Property, shares of
stock or Debt of any entity existing at the time such entity becomes a
Restricted Subsidiary, PROVIDED that such mortgages are not incurred in
anticipation of such entity's becoming a Restricted Subsidiary; (2) mortgages on
Operating Property, shares of stock or Debt existing at the time of acquisition
thereof by the Company or a Restricted Subsidiary or mortgages thereon to secure
the payment of all or any part of the purchase price thereof, or mortgages on
Operating Property, shares of stock or Debt to secure any Debt incurred prior
to, at the time of, or within 180 days after, the latest of the acquisition
thereof or, in the case of Operating Property, the completion of construction,
the completion of improvements or the commencement of substantial commercial
operation of such Operating Property for the purpose of financing all or any
part of the purchase price thereof, such construction or the making of such
improvements; (3) mortgages to secure Debt owing to the Company or to a
Restricted Subsidiary; (4) mortgages on Operating Property, shares of stock or
Debt existing at the date of the initial issuance of Debt Securities of such
series then outstanding; (5) mortgages on Operating Property, shares of stock or
Debt of a Person existing at the time such Person is merged into or consolidated
with the Company or a Restricted Subsidiary or at the time of a sale, lease or
other disposition of the properties of a Person as an entirety or substantially
as an entirety to the Company or a Restricted Subsidiary, PROVIDED that such
mortgage was not incurred in anticipation of such merger or consolidation or
sale, lease or other disposition; (6) mortgages on Operating Property, shares of
stock or Debt in favor of the United States of America or any state, territory
or possession thereof (or the District of Columbia), or any department, agency,
instrumentality or political subdivision of the United States of America or any
state, territory or possession thereof (or the District of Columbia), to secure
partial, progress, advance or other payments pursuant to any contract or statute
or to secure any Debt incurred for the purpose of financing all or any part of
the purchase price or the cost of constructing or improving the Operating
Property subject to such mortgages; or (7) extensions, renewals or replacements
of any mortgage referred to in the foregoing clauses (1) through (6); PROVIDED,
HOWEVER, that the principal amount of Debt secured thereby shall not exceed the
principal amount of Debt so secured at the time of such extension, renewal or
replacement. (Section 3.7)
RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS. Unless otherwise provided
in the Prospectus Supplement with respect to any series of Debt Securities, Sale
and Leaseback Transactions by the Company or any Restricted Subsidiary of any
Operating Property are prohibited (except for temporary leases for a term,
including renewals, of not more than 60 months and except for leases between the
Company and a Restricted Subsidiary or between Restricted Subsidiaries) unless
the net proceeds of such Sale and Leaseback Transactions are at least equal to
the fair market value (as determined in good faith by the Board of Directors of
the Company) of the Operating Property to be leased and either (1) the Company
or such Restricted Subsidiary would (at the time of entering into such
arrangement) be entitled, as described in clauses (1) through (7) of the
paragraph under the caption "--Restrictions on Liens" herein, without
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equally and ratably securing the Debt Securities, to issue, assume or guarantee
Debt secured by a mortgage on such Operating Property, (2) the Attributable Debt
of the Company and its Restricted Subsidiaries in respect of such Sale and
Leaseback Transactions (other than such Sale and Leaseback Transactions as are
referred to in clause (1) or (3) of this paragraph), plus the aggregate
principal amount of Debt secured by mortgages on Operating Properties then
outstanding (excluding any such Debt secured by mortgages described in clauses
(1) through (7) of the paragraph under the caption "--Restrictions on Liens"
herein) which do not equally and ratably secure the Debt Securities, would not
exceed 15% of Consolidated Net Tangible Assets of the Company or (3) the
Company, within 180 days after the sale or transfer, applies or causes a
Restricted Subsidiary to apply an amount equal to the greater of the net
proceeds of such sale or transfer or fair market value of the Operating Property
(as determined in good faith by the Board of Directors of the Company) so sold
and leased back at the time of entering into such Sale and Leaseback Transaction
to (a) retire (other than any mandatory retirement, mandatory repayment or
sinking fund payment or by payment at maturity) Debt Securities or other Debt of
the Company or a Restricted Subsidiary (other than Debt subordinated to the Debt
Securities) having a Stated Maturity more than 12 months from the date of such
application or which is extendible at the option of the obligor thereon to a
date more than 12 months from the date of such application or (b) purchase,
construct or develop one or more Operating Properties (other than that involved
in such Sale and Leaseback Transaction); PROVIDED that the amount to be so
applied pursuant to clause (3) will be reduced by the principal amount of Debt
Securities delivered within 180 days after such sale or transfer to the Trustee
for retirement and cancellation. (Section 3.8)
CERTAIN DEFINITIONS
"Attributable Debt" in respect of a Sale and Leaseback Transaction means, as
of any particular time, the present value (discounted at the rate of interest
implicit in the terms of the lease involved in the Sale and Leaseback
Transaction, as determined in good faith by the Company) of the obligation of
the lessee thereunder for net rental payments (excluding, however, any amounts
required to be paid by such lessee, whether or not designated as rent or
additional rent, on account of maintenance and repairs, services, insurance,
taxes, assessments, water rates and similar charges or any amounts required to
be paid by such lessee thereunder contingent upon monetary inflation or the
amount of sales, maintenance and repairs, insurance, taxes, assessments, water
rates or similar charges) during the remaining term of such lease (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) of the Company
and its Restricted Subsidiaries after deducting therefrom (a) all goodwill,
tradenames, trademarks, patents, unamortized debt discount and expense and other
like intangibles and (b) all current liabilities (excluding any current
liabilities for money borrowed having a maturity of less than 12 months but by
its terms being renewable or extendible beyond 12 months from such date at the
option of the borrower), all as reflected in the Company's latest audited
consolidated balance sheet contained in the Company's most recent annual report
to its stockholders prior to the time as of which "Consolidated Net Tangible
Assets" shall be determined. For purposes of this definition, the Company's
investment (excluding the goodwill portion thereof) in the Henkel-Ecolab Joint
Venture, which is not a Subsidiary of the Company, shall be deemed to be an
asset of the Company. (Section 1.1)
"Holder" means (a) a Person in whose name a Debt Security is registered in
the Security Register and (b) in the case of any Bearer Security, the bearer of
such Debt Security and, when used with any Coupon, means the bearer thereof.
(Section 1.1)
"Operating Property" means any manufacturing or processing plant, warehouse
or distribution center, together with the land upon which it is situated,
located within the United States of America or its territories or possessions or
in Canada and owned and operated now or hereafter by the Company or any
Restricted Subsidiary and having a net book value on the date as of which the
determination is being made
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of more than 1.0% of Consolidated Net Tangible Assets other than property which,
in the opinion of the Board of Directors of the Company, is not of material
importance to the total business conducted by the Company and its Restricted
Subsidiaries taken as a whole. (Section 1.1)
"principal" of a Security means principal amount of, and, unless the context
indicates otherwise, includes any premium payable on the Security. (Section 1.1)
"United States" means the United States of America (any state thereof and
the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction (including the Commonwealth of Puerto Rico).
(Section 1.1)
"U.S. Person" means a citizen or resident of the United States, a
corporation, partnership, joint venture, limited liability company, association,
joint-stock company, unincorporated organization or other entity or government
or any agency or political subdivision thereof created or organized in or under
the United States, or an estate or trust, the income of which is subject to
United States federal income taxation regardless of its source. (Section 1.1)
Reference is made to the Prospectus Supplement relating to each series of
Offered Debt Securities for any particular provisions relating to such Offered
Debt Securities, including any additional restrictive covenants that may be
included in the terms thereof.
Unless otherwise indicated in a Prospectus Supplement, the covenants
described above and in the Offered Debt Securities would not necessarily afford
Holders of the Offered Debt Securities protection in the event of a highly
leveraged transaction involving the Company, such as a leveraged buyout.
MERGER AND CONSOLIDATION
The Indenture provides that the Company may, without the consent of the
Holders of the Debt Securities, consolidate with or merge into any other
corporation, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, PROVIDED that in any such case (1)
the successor corporation, if other than the Company, shall be a domestic
corporation and such corporation shall assume by supplemental indenture the
Company's obligations under the Indenture and the Debt Securities and any
Coupons issued thereunder and (2) immediately after such transaction, no Event
of Default and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing. Upon
compliance with these provisions by a successor corporation in connection with a
consolidation with or merger of the Company into, or conveyance, transfer or
lease to, such successor corporation, the Company (except in the case of a
lease) would be relieved of its obligations under the Indenture and the Debt
Securities. (Sections 9.1 and 9.2) Notwithstanding the foregoing clause (2), the
Company may merge or consolidate any Restricted Subsidiary into or with the
Company or any other direct or indirect wholly-owned Restricted Subsidiary of
the Company.
EVENTS OF DEFAULT
The Indenture defines an Event of Default with respect to any series of Debt
Securities as being any one of the following events: (1) default for 30 days in
any payment of interest on such series or of any related Coupon when due; (2)
default in any payment of principal of such series when due either at maturity,
upon redemption, by declaration or otherwise (except a failure to make payment
resulting from mistake, oversight or transfer difficulties not continuing for
more than three (3) Business Days beyond the date on which such payment is due);
(3) default in the payment of any sinking fund installment with respect to such
series when due either at maturity, upon redemption, by declaration or otherwise
(except a failure to make payment resulting from mistake, oversight or transfer
difficulties not continuing for more than three (3) Business Days beyond the
date on which such payment is due); (4) default for 90 days after appropriate
notice in performance of any other covenant or warranty in the Indenture (other
than a covenant or warranty included in the Indenture solely for the benefit of
any series of Debt Securities other
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than that series); (5) certain events in bankruptcy, insolvency or
reorganization; or (6) any other Event of Default provided with respect to Debt
Securities of that series. In case an Event of Default shall occur and be
continuing with respect to any series of Debt Securities, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Debt Securities of that series may declare the principal of such series (or, if
the Debt Securities of that series are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms of that series) to be
immediately due and payable. Any Event of Default with respect to a particular
series of Debt Securities may be waived by the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of such series,
except in each case a failure to pay principal of or interest or any sinking
fund installment on such Debt Security or in respect of a provision which under
the Indenture cannot be modified without the consent of the Holder of each
Outstanding Debt Security of the series affected. (Sections 5.1 and 5.2)
Reference is made to the Prospectus Supplement relating to each series of
Offered Debt Securities which are Original Issue Discount Securities for the
particular provisions relating to acceleration of the maturity of a portion of
the principal amount of such Original Issue Discount Securities upon the
occurrence of an Event of Default and the continuation thereof.
The Indenture requires the Company to file annually with the Trustee an
Officers' Certificate as to the absence of certain defaults under the terms of
the Indenture. (Section 3.5) The Indenture provides that the Trustee will,
within 90 days after the occurrence of a default in respect of the Debt
Securities of any series, transmit by mail to all Holders of Debt Securities and
Coupons of such series notice of any default known to the Trustee, unless such
default shall have been cured or waived; PROVIDED that the Trustee may withhold
notice to the Holders of Debt Securities and Coupons of such series of any
default (except in payment of principal or interest or any sinking fund
installment) if it considers it in the interest of the Holders of Debt
Securities and Coupons of such series to do so. (Section 5.14)
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the Indenture
provides that the Trustee shall be under no obligation to exercise any of its
rights or powers under the Indenture at the request or direction of the Holders
of the Debt Securities and Coupons of such series unless such Holders shall have
offered to the Trustee reasonable indemnity. (Sections 6.1 and 6.2) Subject to
such provisions for indemnification and certain other rights of the Trustee, the
Indenture provides that the Holders of a majority in aggregate principal amount
of the Outstanding Debt Securities of any series affected shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Debt Securities of such series. However, the
Indenture provides that the Trustee need not take any action which would be
unduly prejudicial to the Holders not joining such direction. (Sections 5.12 and
6.2)
No Holder of any Debt Security or any Coupon of any series thereunder will
have any right to institute any proceeding with respect to the Indenture or for
any remedy thereunder, unless (1) such Holder shall have previously given to the
Trustee written notice of a continuing Event of Default with respect to Debt
Securities of that series, (2) the Holders of at least 25% in aggregate
principal amount of the Outstanding Debt Securities of that series shall have
made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as Trustee, (3) the Trustee shall not have received
from the Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of that series a direction inconsistent with such request within
60 days of such notice, request and offer of indemnity and (4) the Trustee shall
have failed to institute such proceeding within that 60-day period. (Section
5.8) However, the Holder of any Debt Security will have an absolute right to
receive payment of the principal of and interest on such Debt Security on or
after the due dates expressed in such Debt Security and to institute suit for
the enforcement of any such payment. (Section 5.9)
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MODIFICATION AND WAIVER
Modification and amendments of the Indenture or any supplemental indenture
or the rights of the Holders of such Debt Securities may be made by the Company
and the Trustee with the consent of the Holders of at least a majority of the
principal amount of the Outstanding Debt Securities of each series affected by
such modifications or amendments; PROVIDED, HOWEVER, that no such modification
or amendment may, without the consent of the Holder of each Outstanding Debt
Security affected thereby, (1) change the Stated Maturity of the principal of,
or any installment of interest or additional amounts payable on, any Debt
Security; (2) reduce the principal amount of, the rate of interest on, or any
premium payable on redemption of any Debt Security, or reduce the amount of
principal of an Original Issue Discount Security that would be due and payable
upon acceleration; (3) change the place or currency of payment of principal of
or interest on any Debt Security; (4) impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security after the
Stated Maturity thereof; (5) limit the Company's obligation to maintain a Paying
Agent outside the United States for Bearer Securities; (6) limit the obligation
of the Company to redeem certain Bearer Securities if certain events occur
involving United States information reporting requirements; or (7) reduce the
percentage in principal amount of Outstanding Debt Securities of any series, the
consent of whose Holders is required for modification or amendment of the
Indenture, for waiver of compliance with certain provisions of the Indenture or
for waiver of certain defaults. (Section 8.1)
The Holders of at least a majority of the principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
Debt Securities of that series waive, insofar as that series is concerned,
compliance by the Company with certain restrictive provisions of the Indenture.
(Section 3.12)
The Indenture also permits the Company and the Trustee to amend the
Indenture in certain circumstances without the consent of the Holders of Debt
Securities to evidence the merger of the Company or the replacement of the
Trustee and for certain other purposes.
DEFEASANCE OF DEBT SECURITIES OR CERTAIN COVENANTS IN CERTAIN CIRCUMSTANCES
The Indenture provides, if such provision is made applicable to the Debt
Securities of any series pursuant to Section 10.1 of the Indenture, that the
Company may elect either (1) to defease and be discharged from any and all
obligations with respect to such Debt Securities (except for the obligations to
register the transfer or exchange of such Debt Securities or such series and of
any Coupons appertaining thereto, to replace temporary or mutilated, destroyed,
lost and stolen Debt Securities of such series and of any Coupons appertaining
thereto, to maintain an office or agency in respect of the Debt Securities and
to hold moneys for payment in trust) ("defeasance") or (2) to be released from
its obligations with respect to such Debt Securities under the restrictions
described under "Certain Covenants of the Company-- Restrictions on Liens" and
"Certain Covenants of the Company--Restrictions on Sale and Leaseback
Transactions," respectively, in which case the events described in clause (4)
under "Events of Default" shall no longer be an Event of Default with respect to
such Debt Securities ("covenant defeasance"), upon the deposit with the Trustee
(or other qualifying trustee), in trust for such purpose, of money, and/or U.S.
Government Obligations which through the payment of principal and interest in
accordance with their terms will provide money, in an amount sufficient to pay
the principal of and interest on such Debt Securities, and any mandatory sinking
fund or analogous payments thereon, on the scheduled due dates therefor. Such a
trust may be established only if, among other things, the Company has delivered
to the Trustee an opinion of counsel (as specified in the Indenture) to the
effect that (1) the Holders of such Debt Securities will not recognize income,
gain or loss for federal income tax purposes as a result of such defeasance or
covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such defeasance or covenant defeasance had not occurred and (2) if the Debt
Securities of such series are then listed on the New York Stock Exchange, such
Debt Securities would not be delisted from the New York Stock Exchange as a
result of the exercise of such option. (Section 10.1) In the event of any such
defeasance, Holders of such Debt
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Securities would be able to look only to such trust fund for payment of
principal of and interest, if any, on their Debt Securities until maturity.The
Prospectus Supplement will further describe the provisions, if any, permitting
such defeasance or covenant defeasance with respect to the Debt Securities of a
particular series. (Sections 10.1 and 10.2)
In the event the Company exercises its option to omit compliance with
certain covenants of the Indenture with respect to any series of Debt Securities
and the Debt Securities of such series are declared due and payable because of
the occurrence of any Event of Default, the amount of money and U.S. Government
Obligations on deposit with the Trustee will be sufficient to pay amounts due on
the Debt Securities of such series at the time of their Stated Maturity but may
not be sufficient to pay amounts due on the Debt Securities of such series at
the time of the acceleration resulting from such Event of Default.
NOTICES
Unless otherwise provided in the applicable Prospectus Supplement, any
notice required to be given to a Holder of a Debt Security of any series that is
a Registered Security will be mailed to the last address of such Holder set
forth in the applicable Security Register. Any notice required to be given to a
Holder of a Debt Security that is a Bearer Security will be published in a daily
morning newspaper of general circulation in the city or cities specified in the
Prospects Supplement relating to such Bearer Security. (Section 11.4)
GOVERNING LAW
The Indenture, the Debt Securities and any related Coupons will be governed
by, and construed in accordance with, the laws of the State of New York.
(Section 11.8)
CONCERNING THE TRUSTEE
The First National Bank of Chicago is the Trustee under the Indenture. In
the ordinary course of its business, affiliates of the Trustee have engaged and
may in the future engage in commercial banking transactions with the Company and
its affiliates.
PLAN OF DISTRIBUTION
The Company may sell Securities (i) to or through underwriters or dealers;
(ii) directly to one or more other purchasers; (iii) through agents; or (iv)
through a combination of any such methods of sale.
Offers to purchase Debt Securities may be solicited by agents designated by
the Company from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, involved in the offer
or sale of any Debt Securities will be named, and any commissions payable by the
Company to such agent will be set forth, in the Prospectus Supplement relating
to such Debt Securities. Unless otherwise indicated in the Prospectus
Supplement, any such agent will be acting on a best efforts basis for the period
of its appointment. Agents may be entitled under agreements which may be entered
into with the Company to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for the Company in
the ordinary course of business.
If any underwriters are utilized in the sale of any Debt Securities, the
Company will enter into an underwriting agreement with such underwriters at the
time of sale to them and the names of the underwriters and the terms of the
transaction will be set forth in the Prospectus Supplement relating to such Debt
Securities, which will be used by the underwriters to make resales of such Debt
Securities. Any underwriters will acquire Debt Securities for their own account
and may resell such Debt Securities from time to time in one or more
transactions, including negotiated transactions, at fixed public offering prices
or at varying prices determined at the time of sale. Debt Securities may be
offered to the public either
17
<PAGE>
through underwriting syndicates represented by managing underwriters, or
directly by the managing underwriters. Only underwriters named in the Prospectus
Supplement are deemed to be underwriters in connection with the Debt Securities
offered thereby. If any underwriters are utilized in the sale of the Debt
Securities, the underwriting agreement will provide that the obligations of the
underwriters are subject to certain conditions precedent and that the
underwriters with respect to a sale of Debt Securities will be obligated to
purchase all such Debt Securities, if any are purchased. The underwriters may be
entitled, under the relevant underwriting agreement, to indemnification by the
Company against certain liabilities, including liabilities under the Securities
Act, and may be customers of, engage in transactions with or perform services
for the Company in the ordinary course of business.
If a dealer is utilized in the sale of any Debt Securities, the Company will
sell such Debt Securities to the dealer, as principal. The dealer may then
resell such Debt Securities to the public at varying prices to be determined by
such dealer at the time of resale. Dealers may be entitled under agreements
which may be entered into with the Company to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act, and
may be customers of, engage in transactions with or perform services for the
Company in the ordinary course of business.
The distribution of the Debt Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters may receive
compensation from the Company or from purchasers of Debt Securities for whom
they may act as agents, in the form of discounts, concessions or commissions.
Underwriters and agents that participate in the distribution of Debt Securities
may be deemed to be underwriters, and any discounts or commissions received by
them from the Company and any profit on the resale of Debt Securities by them
may be deemed to be underwriting discounts and commissions, under the Securities
Act. Any such compensation received by such underwriters or agents from the
Company will be described in the Prospectus Supplement. Underwriters may sell
Debt Securities to or through dealers, and such dealers may receive compensation
in the form of discounts, concessions or commissions from the underwriters
and/or commissions from the purchasers for whom they may act as agent. The
Company may also offer and sell Debt Securities in exchange for other
outstanding Debt.
If so indicated in the Prospectus Supplement, the Company will authorize
dealers or other persons acting as agents of the Company to solicit offers by
certain institutions to purchase Debt Securities from the Company pursuant to
delayed delivery contracts ("Contracts") providing for payment and delivery on
the date or dates stated in such Prospectus Supplement. Institutions with which
such Contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases such institutions must be approved by
the Company. The obligations of any purchaser under any such Contract will not
be subject to any conditions except that (i) the purchase of the Offered Debt
Securities shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject and (ii) the Company shall have
sold, and delivery shall have taken place, to the underwriters named in the
Prospectus Supplement, such part of the Debt Securities as is to be sold to
them. The dealers and such other persons will not have any responsibility in
respect of the validity or performance of such Contracts.
The Debt Securities will be a new issue of securities with no established
trading market. Any underwriters or agents to or through whom Debt Securities
are sold by the Company for public offering and sale may make a market in such
Debt Securities, but such underwriters and agents will not be obligated to do so
and may discontinue any market-making at any time without notice. No assurance
can be given as to the liquidity of the trading market for any Debt Securities.
Debt Securities denominated or payable in foreign currencies may entail
significant risks. These risks include, without limitation, the possibility of
significant fluctuations in foreign currency exchange rates.
18
<PAGE>
These risks may vary depending upon the currency or currencies involved. These
risks will be more fully described in the Prospectus Supplement relating
thereto.
VALIDITY OF DEBT SECURITIES
The validity of the Debt Securities offered hereby is being passed upon for
the Company by Skadden, Arps, Slate, Meagher & Flom.
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, 1995, 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 L.L.P. given upon the authority of that
firm as experts in accounting and auditing. To the extent that Coopers & Lybrand
L.L.P. audits and reports on the financial statements and related supplemental
financial statement schedule of the Company issued at future dates, and consents
to the use of their reports thereon, such financial statements also will be
incorporated by reference in this Prospectus in reliance upon their reports and
said authority.
With respect to unaudited interim financial information incorporated herein
and in the Registration Statement by reference, the independent accountants have
reported that they have applied limited procedures in accordance with
professional standards for review of such information. However, their separate
reports, incorporated herein and in the Registration Statement by reference,
state that they did not audit and they do not express an opinion on that interim
financial information. Accordingly, the degree of reliance on their reports on
such information should be restricted in light of the limited nature of the
review procedures applied. The accountants are not subject to the liability
provisions of Section 11 of the Securities Act for their reports on the
unaudited interim financial information because such reports are not a "report"
or a "part" of the Registration Statement prepared or certified by the
accountants within the meanings of Sections 7 and 11 of the Securities Act.
In addition, the combined financial statements and financial statement
schedule 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, 1995, 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 schedule
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. To the extent that KPMG Deutsche Treuhand-Gesellschaft
Aktiengesellschaft audits and reports on the financial statements of the
Henkel-Ecolab Joint Venture issued at future dates, and consents to the use of
their reports thereon, such financial statements also will be incorporated by
reference in this Prospectus in reliance upon their reports and said authority.
19
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses (other than underwriting
discounts and commissions) expected to be incurred in connection with the
offerings described in this Registration Statement. All amounts are estimated
except the registration fee.
<TABLE>
<S> <C>
Registration fee................................................. 60,606
*Printing costs for registration statement, prospectus and related
documents....................................................... 18,000
*Accounting fees and expenses..................................... 35,000
*Legal fees and expenses.......................................... 125,000
*Blue sky fees and expenses....................................... 10,000
*Trustee's fees and expenses...................................... 10,000
*Rating Agency Fee................................................ 100,000
*Miscellaneous.................................................... 1,394
---------
Total......................................................... $ 360,000
---------
---------
</TABLE>
- ------------------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the General Corporation Law of Delaware
(the "DGCL") empowers a Delaware 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 director, 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 of the DGCL empowers a Delaware 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 and that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled. Section 145 also
empowers that corporation to purchase and maintain insurance on behalf of a
director or officer of the corporation
II-1
<PAGE>
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.
Article V of the Company's Bylaws, as amended through December 18, 1995,
provides for indemnification of the Company's officers and directors to the full
extent allowed by Delaware law.
In addition, Article IV of the Company's Restated Certificate of
Incorporation provides that the Company's directors do not have personal
liability to the Company or its stockholders for monetary damages for any breach
of their fiduciary duty as directors, except for (i) a breach of the duty of
loyalty, (ii) acts or omissions not in good faith or which involve intentional
misconduct or knowing violation of the law, (iii) willful or negligent
violations of certain provisions under the DGCL imposing certain requirements
with respect to stock repurchases, redemptions and dividends or (iv) 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 Company or its stockholders for any violation of their
fiduciary duty.
The Company 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 not to be entitled
to indemnification under the DGCL and claims and suits arising under the
Securities Act. 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
Company.
The Company 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 Company or is or was serving at the request of the
Company 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 Company 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
Company's Bylaws and Restated Certificate of Incorporation, the Company's
directors and officers liability insurance coverage and the Indemnification
Agreements for purposes of general description only.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ --------------------------------------------------------------------------
<C> <S>
1 *Form of Underwriting Agreement.
4.1 *Indenture dated as of October , 1996, between the Company and The First
National Bank of Chicago, as Trustee.
5 *Opinion of Skadden, Arps, Slate, Meagher & Flom regarding the legality of
the Debt Securities being offered.
12 Computation of Ratio of Earnings to Fixed Charges.
15 Letter from Coopers & Lybrand L.L.P. regarding the unaudited interim
financial information.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ --------------------------------------------------------------------------
<C> <S>
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 *Consent of Skadden, Arps, Slate, Meagher & Flom (included in Exhibit 5).
23.3 Consent of KPMG Deutsche Treuhand-Gesellschaft Aktiengesellschaft.
24 Powers of Attorney.
25 *Statement of Eligibility of Trustee on Form T-l (bound separately).
</TABLE>
- ------------------------
*To be filed by amendment.
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. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(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)(l)(i) and (a)(l)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports that are filed by the registrant
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and
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.
(b) 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 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>
(c) 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
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 of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Ecolab Inc.
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of St. Paul, State of Minnesota, on this 24th day of
October, 1996.
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
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
President and Chief
/s/ ALLAN L. SCHUMAN Executive Officer
- ------------------------------ (Principal Executive October 24, 1996
Allan L. Schuman Officer and Director)
Chairman of the Board,
/s/ MICHAEL E. SHANNON Chief Financial and
- ------------------------------ Administrative Officer October 24, 1996
Michael E. Shannon (Principal Financial
Officer and Director)
/s/ ARTHUR E. HENNINGSEN,
JR. Senior Vice Present and
- ------------------------------ Controller (Principal October 24, 1996
Arthur E. Henningsen, Jr. Accounting Officer)
/s/ KENNETH A. IVERSON
- ------------------------------
Kenneth A. Iverson,
as attorney-in-fact for
Ruth S. Block, Russell G.
Cleary,
James J. Howard, Joel W.
Johnson, Directors October 24, 1996
Jerry W. Levin, Reuben F.
Richards,
Richard L. Schall, Roland
Schulz,
Philip L. Smith, Hugo
Uyterhoeven
and Albrecht Woeste
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ --------------------------------------------------------------------------
<C> <S> <C>
1 *Form of Underwriting Agreement.
4.1 *Indenture dated as of October , 1996, between the Company and The First
National Bank of Chicago, as Trustee.
5 *Opinion of Skadden, Arps, Slate, Meagher & Flom regarding the legality of
the Debt Securities being offered.
12 Computation of Ratio of Earnings to Fixed Charges.
15 Letter from Coopers & Lybrand L.L.P. regarding the unaudited interim
financial information.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 *Consent of Skadden, Arps, Slate, Meagher & Flom (included in Exhibit 5).
23.3 Consent of KPMG Deutsche Treuhand-Gesellschaft Aktiengesellschaft.
24 Powers of Attorney.
25 *Statement of Eligibility of Trustee on Form T-l (bound separately).
</TABLE>
- ------------------------
*To be filed by amendment.
<PAGE>
Exhibit 12
ECOLAB INC
STATEMENT AND COMPUTATION SHOWING THE
HISTORICAL RATIO OF EARNINGS TO FIXED CHARGES
(in thousands, except ratios)
<TABLE>
<CAPTION>
Six Months Ended
June 30 Year Ended December 31
---------------- ------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
------ ------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings
Income from continuing
operations before income
taxes and equity in earnings
of joint venture $71,123 $66,396 $151,181 $124,055 $108,067 $ 90,280 $ 87,757
Fixed Charges, as computed below 15,812 12,937 26,621 25,923 35,752 50,338 46,139
------ ------- -------- -------- -------- -------- --------
Total earnings including
fixed charges $86,935 $79,333 $177,802 $149,978 $143,819 $140,618 $133,896
------- ------- -------- -------- -------- -------- --------
------- ------- -------- -------- -------- -------- --------
Fixed Charges
Interest expense $10,129 $ 7,770 $ 15,857 $ 16,213 $ 25,977 $ 40,587 $ 36,516
Portion of rental expense
estimated to be representative
of interest 5,683 5,167 10,764 9,710 9,775 9,751 9,623
------- ------- -------- -------- -------- -------- --------
Total fixed charges $15,812 $12,937 26,621 $ 25,923 $ 35,752 $ 50,338 $ 46,139
------- ------- -------- -------- -------- -------- --------
------- ------- -------- -------- -------- -------- --------
Ratio of Earnings to Fixed Charges 5.50 6.13 6.68 5.79 4.02 2.79 2.90
------- ------- -------- -------- -------- -------- --------
------- ------- -------- -------- -------- -------- --------
</TABLE>
<PAGE>
Exhibit 15
October 24, 1996
Securities and Exchange Commission
450 5th Street, N.W.
Washington, DC 20549
We are aware that our reports dated April 18, 1996 and July 18, 1996 on our
reviews of unaudited interim financial information of Ecolab Inc. for the
periods ended March 31, 1996 and 1995, and June 30, 1996 and 1995, and
included in the Company's quarterly reports on Form 10-Q for the quarters
ended March 31, 1996 and June 30, 1996, respectively, are incorporated by
reference in this registration statement. Pursuant to Rule 436(c) under the
Securities Act of 1933, these reports should not be considered a part of the
registration statement prepared or certified by us within the meaning of
Sections 7 and 11 of that Act.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of our report dated February 26, 1996, on our audits of the
consolidated financial statements and related financial statement schedule of
Ecolab Inc. as of December 31, 1995, 1994 and 1993 and for the years ended
December 31, 1995, 1994 and 1993, which reports are included or incorporated by
reference in Ecolab Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1995. We also consent to the references to our firm under the
caption "Experts."
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
October 24, 1996
<PAGE>
Exhibit 23.3
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, 1996, on our audit of the combined
financial statements and schedule of the Henkel-Ecolab Joint-Venture as of
November 30, 1995, 1994 and 1993 and for the periods beginning December 1, 1994,
1993 and 1992 and ended November 30, 1995, 1994 and 1993, which report is
included in Ecolab Inc.'s Annual Report on Form 10-K for the year ended December
31, 1995. We also consent to the reference to our firm under the heading
EXPERTS.
Dusseldorf, Germany
October 24, 1996
KPMG Deutsche Treuhand-Gesellschaft
Aktiengesellschaft
Wirtschaftsprufungsgesellschaft
/s/ M. Konig /s/ S. Haas
M. Konig S. Haas
Wirtschaftsprufer Wirtschaftsprufer
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of Ecolab
Inc., a Delaware corporation ("Corporation"), does hereby make, nominate and
appoint ALLAN L. SCHUMAN, MICHAEL E. SHANNON, WILLIAM R. ROSENGREN, 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 $200,000,000
of the Corporation's debt securities, 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 18th day
of October, 1996.
/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 ("Corporation"), does hereby make, nominate and
appoint ALLAN L. SCHUMAN, MICHAEL E. SHANNON, WILLIAM R. ROSENGREN, 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 $200,000,000
of the Corporation's debt securities, 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 21st day
of October, 1996.
/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 ("Corporation"), does hereby make, nominate and
appoint ALLAN L. SCHUMAN, MICHAEL E. SHANNON, WILLIAM R. ROSENGREN, 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 $200,000,000
of the Corporation's debt securities, 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 21st day
of October, 1996.
/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 ("Corporation"), does hereby make, nominate and
appoint ALLAN L. SCHUMAN, MICHAEL E. SHANNON, WILLIAM R. ROSENGREN, 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 $200,000,000
of the Corporation's debt securities, 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 18th day
of October, 1996.
/s/Joel W. Johnson
-------------------------------------
Joel W. Johnson
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of Ecolab
Inc., a Delaware corporation ("Corporation"), does hereby make, nominate and
appoint ALLAN L. SCHUMAN, MICHAEL E. SHANNON, WILLIAM R. ROSENGREN, 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 $200,000,000
of the Corporation's debt securities, 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 18th day
of October, 1996.
/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 ("Corporation"), does hereby make, nominate and
appoint ALLAN L. SCHUMAN, MICHAEL E. SHANNON, WILLIAM R. ROSENGREN, 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 $200,000,000
of the Corporation's debt securities, 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 18th day
of October, 1996.
/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 ("Corporation"), does hereby make, nominate and
appoint ALLAN L. SCHUMAN, MICHAEL E. SHANNON, WILLIAM R. ROSENGREN, 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 $200,000,000
of the Corporation's debt securities, 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 18th day
of October, 1996.
/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 ("Corporation"), does hereby make, nominate and
appoint ALLAN L. SCHUMAN, MICHAEL E. SHANNON, WILLIAM R. ROSENGREN, 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 $200,000,000
of the Corporation's debt securities, 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 18th day
of October, 1996.
/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 ("Corporation"), does hereby make, nominate and
appoint ALLAN L. SCHUMAN, MICHAEL E. SHANNON, WILLIAM R. ROSENGREN, 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 $200,000,000
of the Corporation's debt securities, 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 23rd day
of October, 1996.
/s/Philip L. Smith
-------------------------------------
Philip L. Smith
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of Ecolab
Inc., a Delaware corporation ("Corporation"), does hereby make, nominate and
appoint ALLAN L. SCHUMAN, MICHAEL E. SHANNON, WILLIAM R. ROSENGREN, 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 $200,000,000
of the Corporation's debt securities, 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 23rd day
of October, 1996.
/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 ("Corporation"), does hereby make, nominate and
appoint ALLAN L. SCHUMAN, MICHAEL E. SHANNON, WILLIAM R. ROSENGREN, 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 $200,000,000
of the Corporation's debt securities, 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 22nd day
of October, 1996.
/s/Albrecht Woeste
-------------------------------------
Albrecht Woeste
