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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 22, 1997
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ECOLAB INC.
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(Exact name of registrant as specified in its charter)
Delaware 1-9328 41-0231510
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
Ecolab Center, 370 N. Wabasha, St. Paul, Minnesota 55102
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, include area code: 612-293-2233
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(Not applicable)
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(Former name or former address, if changed from last report.)
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Item 5. OTHER EVENTS.
A Special Meeting of Stockholders of Ecolab Inc. (the "Company") was held
on October 22, 1997. At the meeting, 91.67% of the outstanding shares of the
Company's voting stock was represented in person or by proxy.
The sole matter voted upon at the meeting was a proposal to amend and
restate the Company's Restated Certificate of Incorporation to increase the
authorized Common Stock of the Company from 100,000,000 shares to 200,000,000
shares. The proposal was approved as follows:
FOR AGAINST ABSTAINED
58,288,378 937,041 108,815
There were no broker non-votes.
Following shareholder approval, the Company filed the amended and restated
Restated Certificate of Incorporation with the Office of the Secretary of State
of Delaware effective October 22, 1997. A copy of that document is attached
hereto as Exhibit (3).
Item 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
(3) Restated Certificate of Incorporation of Ecolab Inc.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ECOLAB INC.
By:/s/Kenneth A. Iverson
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Kenneth A. Iverson
Vice President and Secretary
Date: October 23, 1997
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION METHOD OF FILING
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(3) Restated Certificate of Filed herewith electronically
Incorporation of Ecolab Inc.
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RESTATED CERTIFICATE OF INCORPORATION
OF
ECOLAB INC.
Ecolab Inc., a corporation organized and existing under the laws of Delaware,
certifies as follows:
1. The name of the Corporation is ECOLAB INC. The original certificate
of incorporation was filed with the Secretary of State of Delaware on February
18, 1924 under the name of Economics Laboratory, Inc.
2. This Restated Certificate of Incorporation amends and restates the
Restated Certificate of Incorporation of the Corporation by increasing the total
number of shares of all classes of capital stock which the Corporation shall
have authority to issue from one hundred fifteen million (115,000,000) to two
hundred fifteen million (215,000,000) shares by increasing the number of
authorized shares of Common Stock, par value one dollar ($1.00) per share, from
one hundred million (100,000,000) to two hundred million (200,000,000) shares.
3. This Restated Certificate of Incorporation has been duly proposed by
the directors and adopted by the shareholders in the manner and by the vote
prescribed by Section 242 and duly adopted pursuant to Section 245 of the
General Corporation Law of Delaware.
The text of the Restated Certificate of Incorporation of the Corporation,
as amended, is amended and restated in its entirety to read as set forth as
follows:
RESTATED CERTIFICATE OF INCORPORATION
OF
ECOLAB INC.
ARTICLE I
The name of the Corporation is ECOLAB INC.
ARTICLE II
The purposes of the Corporation are to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of
Delaware, and without limiting the foregoing, to hold shares of the capital
stock of other corporations and to engage in services of all kinds, and produce,
manufacture, develop, construct, transport, buy, hold, sell and generally deal
in products, materials and property, both tangible and intangible.
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ARTICLE III
The total number of shares of all classes of capital stock which the Corporation
shall have authority to issue is two hundred fifteen million (215,000,000)
consisting of two hundred million (200,000,000) shares of Common Stock of the
par value of One Dollar ($1.00) per share and fifteen million (15,000,000)
shares of Preferred Stock without par value. The number of authorized shares of
any class of capital stock may be increased or decreased by the affirmative vote
of the holders of a majority of the capital stock of the Corporation entitled to
vote.
The Board of Directors of the Corporation is granted full and complete authority
to fix by resolution or resolutions the designation, and the powers, preferences
and rights of the Preferred Stock and any series thereof, and the
qualifications, limitations or restrictions on such powers, preferences and
rights.
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
A series of Preferred Stock of the Corporation is hereby created and the
designation, amount thereof and the working powers, preferences and
relative, participating, optional and other special rights of the shares of
such series, and the qualifications, limitations or restrictions thereof
are as follows:
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall
be designated as "Series A Junior Participating Preferred Stock" and the
number of shares constituting such series shall be 1,000,000.
Section. 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock, if any, issued from time to time
ranking prior and superior to the shares of Series A Junior Participating
Preferred Stock with respect to dividends, the holders of shares of Series
A Junior Participating Preferred Stock shall be entitled to receive, when,
as and if declared by the Board of Directors out of funds legally available
for the purpose, quarterly dividends payable in cash on the fifteenth day
of February, May, August and November in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the first issuance of a
share or fraction of a share of Series A Junior Participating Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the
greater of (a) $1.00 or (b) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable in kind)
of all non-cash dividends or other distributions other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise), declared on the
Common Stock, par value $1.00 per share, of the Corporation (the "Common
Stock") since the immediately preceding Quarterly Dividend Payment Date,
or, with respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of Series A Junior
Participating Preferred Stock. In the event the Corporation shall at any
time after February 24, 1996 (the "Rights Declaration Date") (i) declare
any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the
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outstanding Common Stock into a smaller number of shares, then in each such
case the amount to which holders of shares of Series A Junior Participating
Preferred Stock were entitled immediately prior to such event under clause
(b) of the preceding sentence shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which
is the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Junior Participating Preferred Stock as provided in paragraph (A)
above immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Divided Payment
Date, a dividend of $1.00 per share as such amount may be adjusted pursuant
to the last sentence of the preceding paragraph on the Series A Junior
Participating Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Junior Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of
Series A Junior Participating Preferred Stock, unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Junior Participating
Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series A Junior Participating Preferred
Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the determination of holders
of shares of Series A Junior Participating Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which
record date shall be no more than 60 days prior to the date fixed for the
payment thereof.
Section 3. VOTING RIGHTS. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Junior Participating Preferred Stock shall entitle
the holder thereof to 100 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the number of votes per share to
which holders of shares of Series A Junior Participating Preferred Stock
were entitled immediately prior to such event shall be adjusted by
multiplying such number by
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a fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Junior Participating Preferred Stock and the holders of
shares of Common Stock shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Junior
Participating Preferred Stock shall be in arrears in an amount equal
to six (6) quarterly dividends thereon, the occurrence of such
contingency shall mark the beginning of a period (herein called a
"default period") which shall extend until such time when all accrued
and unpaid dividends for all previous quarterly dividend periods and
for the current quarterly dividend period on all shares of Series A
Junior Participating Preferred Stock then outstanding shall have been
declared and paid or set apart for payment. During each default
period, all holders of Preferred Stock (including holders of the
Series A Junior Participating Preferred Stock) with dividends in
arrears in an amount equal to six (6) quarterly dividends thereon,
voting as a class, irrespective of series, shall have the right to
elect two (2) Directors.
(ii) During any default period, such voting right of the holders
of Series A Junior Participating Preferred Stock may be exercised
initially at a special meeting called pursuant to subparagraph (iii)
of this Section 3(C) or at any annual meeting of stockholders, and
thereafter at annual meetings of stockholders, provided that neither
such voting right nor the right of the holders of any other series of
Preferred Stock, if any, to increase, in certain cases, the authorized
number of Directors shall be exercised unless the holders of ten
percent (10%) in number of shares of Preferred Stock outstanding shall
be present in person or by proxy. The absence of a quorum of the
holders of Common Stock shall not affect the exercise by the holders
of Preferred Stock of such voting right. At any meeting at which the
holders of Preferred Stock shall exercise such voting right initially
during an existing default period, they shall have the right, voting
as a class, to elect Directors to fill such vacancies, if any, in the
Board of Directors as may then exist up to two (2) Directors or, if
such right is exercised at an annual meeting, to elect two (2)
Directors. If the number which may be so elected at any special
meeting does not amount to the required number, the holders of the
Preferred Stock shall have the right to make such increase in the
number of Directors as shall be necessary to permit the election by
them of the required number. After the holders of the Preferred Stock
shall have exercised their right to elect Directors in any default
period and during the continuance of such period, the number of
Directors shall not be increased or decreased except by vote of the
holders of Preferred Stock as herein provided or pursuant to the
rights of any equity securities ranking senior to or PARI PASSU with
the Series A Junior Participating Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during an
existing default period, have previously exercised their right to
elect Directors, the Board of Directors may order, or any stockholder
or stockholders owning in the aggregate not less than ten percent
(10%) of the total number of shares of Preferred Stock outstanding,
irrespective
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of series, may request, the calling of a special meeting of the
holders of Preferred Stock, which meeting shall thereupon be called by
the President, a Vice-President or the Secretary of the Corporation.
Notice of such meeting and of any annual meeting at which holders of
Preferred Stock are entitled to vote pursuant to this paragraph (C)
(iii) shall be given to each holder of record of Preferred Stock by
mailing a copy of such notice to him at his last address as the same
appears on the books of the Corporation. Such meeting shall be called
for a time not earlier than 20 days and not later than 60 days after
such order or request or in default of the calling of such meeting
within 60 days after such order or request, such meeting may be called
on similar notice by any stockholder or stockholders owning in the
aggregate not less than ten percent (10%) of the total number of
shares of Preferred Stock outstanding. Notwithstanding the provisions
of this paragraph (C)(iii), no such special meeting shall be called
during the period within 60 days immediately preceding the date fixed
for the next annual meeting of the stockholders.
(iv) In any default period, the holders of Common Stock, and
other classes of stock of the Corporation if applicable, shall
continue to be entitled to elect the whole number of Directors until
the holders of Preferred Stock shall have exercised their right to
elect two (2) Directors voting as a class, after the exercise of which
right (x) the Directors so elected by the holders of Preferred Stock
shall continue in office until their successors shall have been
elected by such holders or until the expiration of the default period,
and (y) any vacancy in the Board of Directors may (except as provided
in paragraph (C)(ii) of this Section 3) be filled by vote of a
majority of the remaining Directors theretofore elected by the holders
of the class of stock which elected the Director whose office shall
have become vacant. References in this paragraph (C) to Directors
elected by the holders of a particular class of stock shall include
Directors elected by such Directors to fill vacancies as provided in
clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x) the
right of the holders of Preferred Stock as a class to elect Directors
shall cease, (y) the term of any Directors elected by the holders of
Preferred Stock as a class shall terminate, and (z) the number of
Directors shall be such number as may be provided for in the
Certificate of Incorporation or by-laws irrespective of any increase
made pursuant to the provisions of paragraph (C)(ii) of this Section 3
(such number being subject, however, to change thereafter in any
manner provided by law or in the Certificate of Incorporation or
by-laws). Any vacancies in the Board of Directors effected by the
provisions of clauses (y) and (z) in the preceding sentence may be
filled by a majority of the remaining Directors.
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(D) Except as set forth herein, holders of Series A Junior
Participating Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled
to vote with holders of Common Stock as set forth herein) for taking any
corporate action.
Section 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Junior Participating Preferred Stock as provided
in Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of Series A
Junior Participating Preferred Stock outstanding shall have been paid in
full, the Corporation shall not
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
(ii) declare or pay dividends on or make any other distributions
on any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A Junior
Participating Preferred Stock, except dividends paid ratably on the
Series A Junior Participating Preferred Stock and all such parity
stock on which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A Junior
Participating Preferred Stock, provided that the Corporation may at
any time redeem, purchase or otherwise acquire shares of any such
parity stock in exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Junior Participating
Preferred Stock or;
(iv) purchase or otherwise acquire for consideration any shares
of Series A Junior Participating Preferred Stock, or any shares of
stock ranking on a parity with the Series A Junior Participating
Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to
all holders of such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could, under paragraph
(A) of this Section 4, purchase or otherwise acquire such shares at such
time and in such manner.
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Section 5. REACQUIRED SHARES. Any shares of Series A Junior
Participating Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and canceled promptly
after the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Preferred Stock and
may be reissued as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(A) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Corporation, no distribution shall be made to the holders
of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of shares
of Series A Junior Participating Preferred Stock shall have received $100
per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment
(the "Series A Liquidation Preference"). Following the payment of the full
amount of the Series A Liquidation Preference, no additional distributions
shall be made to the holders of shares of Series A Junior Participating
Preferred Stock unless, prior thereto, the holders of shares of Common
Stock shall have received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) 100 (as appropriately adjusted as set forth in
subparagraph (C) below to reflect such events as stock splits, stock
dividends and recapitalization with respect to the Common Stock) (such
number in clause (ii), the "Adjustment Number"). Following the payment of
the full amount of the Series A Liquidation Preference and the Common
Adjustment in respect of all outstanding shares of Series A Junior
Participating Preferred Stock and Common Stock, respectively, holders of
Series A Junior Participating Preferred Stock and holders of shares of
Common Stock shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the Adjustment Number to
1 with respect to such Preferred Stock and Common Stock, on a per share
basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference
and the liquidation preferences of all other series of preferred stock, if
any, which rank on a parity with the Series A Junior Participating
Preferred Stock, then such remaining assets shall be distributed ratably to
the holders of such parity shares in proportion to their respective
liquidation preferences. In the event, however, that there are not
sufficient assets available to permit payment in full of the Common
Adjustment, then such remaining assets shall be distributed ratably to the
holders of Common Stock.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares
of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then
in each such case the Adjustment Number in effect immediately prior to such
event shall be adjusted by multiplying such Adjustment Number by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event.
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Section 7. CONSOLIDATION, MERGER, ETC. In case the corporation shall
enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then in any such case
the shares of Series A Junior Participating Preferred Stock shall at the
same time be similarly exchanged or changed in an amount per share (subject
to the provision for adjustment hereinafter set forth) equal to 100 times
the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share
of Common Stock is changed or exchanged. In the event the Corporation
shall at any time after the Rights Declaration Date (i) declare any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide
the outstanding Common Stock, or (iii) combine the outstanding Common Stock
into a smaller number of shares, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or change of
shares of Series A Junior Participating Preferred Stock shall be adjusted
by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 8. NO REDEMPTION. The shares of Series A Junior
Participating Preferred Stock shall not be redeemable.
Section 9. RANKING. The Series A Junior Participating Preferred
Stock shall rank junior to all other series of the Corporation's Preferred
Stock which may be issued from time to time as to the payment of dividends
and the distribution of assets, unless the terms of any such series shall
provide otherwise.
Section 10. AMENDMENT. The Restated Certificate of Incorporation of
the Corporation shall not be further amended in any manner which would
materially alter or change the powers, preferences or special rights of the
Series A Junior Participating Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of a majority or more
of the outstanding shares of Series A Junior Participating Preferred Stock,
voting separately as a class.
Section 11. FRACTIONAL SHARES. Series A Junior Participating
Preferred Stock may be issued in fractions of a share which shall entitle
the holder, in proportion to such holder's fractional shares, to exercise
voting rights, receive dividends, participate in distributions and to have
the benefit of all other rights of holders of Series A Junior Participating
Preferred Stock.
No stockholder shall have any preemptive right to subscribe to an additional
issue of capital stock or to any security convertible into such capital stock.
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ARTICLE IV
The business and affairs of the Corporation shall be managed by or under the
direction of a Board of Directors. Except to the extent prohibited by law, the
Board of Directors shall have the right (which, to the extent exercised, shall
be exclusive) to establish the rights, powers, duties, rules and procedures (a)
that from time to time shall govern the Board of Directors and each of its
members including without limitation the vote required for any action by the
Board of Directors, and (b) that from time to time shall affect the directors'
power to manage and direct the business and affairs of the Corporation; and
Article V notwithstanding, no By-Law shall be adopted by the stockholders of the
Corporation which shall impair or impede the implementation of the foregoing.
The Board of Directors shall consist of a number of directors, which number
shall be determined from time to time exclusively by the Board of Directors
pursuant to a resolution adopted by affirmative vote of a majority of the entire
Board of Directors. The directors shall be divided into three classes as nearly
equal in number as possible, designated Class I, Class II and Class III. At the
1983 annual meeting of stockholders, Class I directors shall be elected for a
term expiring at the 1984 annual meeting of stockholders, Class II directors
shall be elected for a term expiring at the 1985 annual meeting of stockholders,
and Class III directors shall be elected for a term expiring at the 1986 annual
meeting of stockholders. At each annual meeting of stockholders following such
initial classification and election, directors elected to succeed those
directors whose terms expire shall be elected for a term of office to expire at
the third succeeding annual meeting of stockholders after their election.
Notwithstanding the foregoing, whenever the holders of any one or more classes
or series of Preferred Stock shall have the right, voting separately by class or
series, to elect directors at an annual or special meeting of stockholders, the
election, term of office, filling of vacancies and other features of such
directorships shall be governed by the terms of the applicable designation of
the powers, preferences and rights made pursuant to Article III, and such
directors so elected shall not be divided into classes pursuant to this Article
IV unless expressly provided by such terms.
Subject to the rights of the holders of any class or series of the then
outstanding capital stock of the Corporation entitled to vote generally in the
election of directors, newly created directorships resulting from any increase
in the authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause may be filled only by a majority vote of the directors
then in office, though less than a quorum, and directors so chosen shall hold
office for a term expiring at the annual meeting of stockholders at which the
term of office of the class to which they have been elected expires. No
decrease in the number of authorized directors constituting the entire Board of
Directors shall shorten the term of any incumbent director. Subject to the
rights of the holders of any class or series of the capital stock then
outstanding, any director, or the entire Board of Directors, may be removed from
office at any time, but only for cause.
No director of the Corporation shall be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty by such
director as a director; provided, however, that this Article IV shall not
eliminate or limit the liability of a director to the extent provided by
applicable law (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the General Corporation Law of Delaware, or (iv) for any
transaction from
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which the director derived an improper personal benefit. No amendment to or
repeal of this Article IV shall apply to, or have any effect on, the liability
or alleged liability of any director of the Corporation for or with respect to
any acts or omissions of such director occurring prior to such amendment or
repeal.
ARTICLE V
The Board of Directors may from time to time, by vote of a majority of its
members, alter, amend or rescind all or any of the By-Laws of the Corporation,
as permitted by law, subject to the power of the stockholders to change or
repeal such By-Laws.
ARTICLE VI
A. (1) In addition to any affirmative vote required by law or the
Certificate of Incorporation or By-Laws of the Corporation, and except as
otherwise expressly provided in paragraph B of this Article VI.
(a) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested
Stockholder (as hereinafter defined) or (ii) any other corporation
(whether or not itself an Interested Stockholder) which is, or after
such merger or consolidation would be, an Affiliate (as hereinafter
defined) of an Interested Stockholder; or
(b) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to
or with any Interested Stockholder or any Affiliate of any Interested
Stockholder involving any assets or securities of the Corporation, any
Subsidiary or any Interested Stockholder or any Affiliate of any
Interested Stockholder, having an aggregate Fair Market Value (as
hereinafter defined) of $10,000,000 or more; or
(c) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an
Interested Stockholder or any Affiliate of any Interested Stockholder;
or
(d) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
other transaction (whether or not with or otherwise involving an
Interested Stockholder) which has the effect, directly or indirectly,
of increasing the proportionate share of any class of equity or
convertible securities of the Corporation or any Subsidiary which is
directly or indirectly beneficially owned by any Interested
Stockholder or any Affiliate of any Interested Stockholder; or
(e) any agreement, contract or other arrangement providing for
any one or more of the actions specified in clauses (a) to (d) of this
subparagraph (1), shall require the affirmative vote of at least
eighty percent (80%) of the voting power of all of the then
outstanding shares of the Voting Stock (as hereinafter defined) voting
together as a single class (it being understood that, for purposes of
this Article VI, each share of the
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Preference Stock (as hereinafter defined) which is Voting Stock shall
have the number of votes granted to it pursuant to the applicable
Preferred Stock Designation (as hereinafter defined) or Article III of
this Certificate of Incorporation). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or
that a lesser percentage may be specified, by law or in any agreement
with any national securities exchange or otherwise.
(2) The term "Business Combination" as used in this Article VI shall
mean any transaction which is referred to in any one or more of clauses
(a) through (e) of subparagraph (1) of paragraph A.
B. The provisions of paragraph A of this Article VI shall not be
applicable to any particular Business Combination, and such Business Combination
shall require only such affirmative vote, if any, as is required by law and any
other provision of the Certificate of Incorporation or the By-Laws of the
Corporation, if all of the conditions specified in either of the following
subparagraphs (1) or (2) are met:
(1) The Business Combination shall have been approved (whether such
approval is made prior to or subsequent to the acquisition of beneficial
ownership of the Voting Stock which caused the Interested Stockholder to
become an Interested Stockholder) by a majority of the Continuing Directors
(as hereinafter defined).
(2) All of the following conditions shall have been met:
(a) The consideration to be received by holders of a particular
class of outstanding Voting Stock shall be in cash or in the same form
as previously paid by or on behalf of the Interested Stockholder in
connection with its direct or indirect acquisition of beneficial
ownership of shares of such class of Voting Stock. If the
consideration so paid for shares of any class of Voting Stock varied
as to form, the form of consideration for such class of Voting Stock
shall be either cash or the form used to acquire beneficial ownership
of the largest number of shares of such class of Voting Stock
previously acquired by the Interested Stockholder.
(b) The aggregate amount of (x) cash and (y) the Fair Market
Value as of the date of the consummation of the Business Combination
of consideration other than cash to be received per share by holders
of Common Stock in such Business Combination shall be at least equal
to the higher amount determined under subclauses (i) and (ii) below:
(i) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by or on behalf of the Interested Stockholder for any
share of Common Stock in connection with the acquisition by the
Interested Stockholder of beneficial ownership of such share (x)
within the two-year period immediately prior to the first public
announcement of the proposal of the Business Combination (the
"Announcement Date") or (y) in the transaction in which the
Interested Stockholder became an Interested Stockholder,
whichever is higher; and
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(ii) the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested
Stockholder became an Interested Stockholder (such latter date is
referred to in this Article VI as the "Determination Date"),
whichever is higher.
(c) The aggregate amount of (x) cash and (y) the Fair Market
Value as of the date of the consummation of the Business Combination
of consideration other than cash to be received per share by holders
of shares of any class of outstanding Preference Stock, shall be at
least equal to the highest amount determined under subclauses (i),
(ii) and (iii) below:
(i) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by or on behalf of the Interested Stockholder for any
share of such class of Preference Stock in connection with the
acquisition by the Interested Stockholder of beneficial ownership
of such share (x) within the two-year period immediately prior to
the Announcement Date or (y) in the transaction in which the
Interested Stockholder became an Interested Stockholder,
whichever is higher;
(ii) the Fair Market Value per share of such class of
Preference Stock on the Announcement Date or on the Determination
Date, whichever is higher; and
(iii) the highest preferential amount per share to which
the holders of shares of such class of Preference Stock would be
entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, regardless of whether the Business Combination to be
consummated constitutes such an event.
The provisions of this subparagraph (2) (c) shall be required to
be met with respect to every class of outstanding Preference
Stock, whether or not the Interested Stockholder has previously
acquired beneficial ownership of any shares of a particular class
of Preference Stock.
(d) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business
Combination: (i) there shall have been no failure to declare and pay
at the regular date therefor any full dividends (whether or not
cumulative) on the outstanding Preference Stock, except as approved by
a majority of the Continuing Directors; (ii) there shall have been (x)
no reduction in the annual rate of dividends paid on the Common Stock
(except as necessary to reflect any subdivision of the Common Stock),
except as approved by a majority of the Continuing Directors, and (y)
an increase in such annual rate of dividends as necessary to reflect
any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction which has
the effect of reducing the number of outstanding shares of Common
Stock unless the failure so to increase such annual rate is approved
by a majority of the Continuing Directors; and (iii) such Interested
Stockholder shall not have become the beneficial owner of any
additional shares of Voting Stock except as part of
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the transaction which results in such Interested Stockholder becoming
an Interested Stockholder and except in a transaction which, after
giving effect thereto, would not result in any increase in the
Interested Stockholder's percentage beneficial ownership of any class
of Voting Stock.
(e) After becoming an Interested Stockholder, such Interested
Stockholder shall not have received the benefit, directly or
indirectly (except proportionately as a stockholder of the
Corporation), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages
provided by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
(f) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder ("the Act") (or any subsequent provisions replacing such
Act, rules or regulations) shall be mailed to all stockholders of the
Corporation at least 30 days prior to the consummation of such
Business Combination (whether or not such proxy or information
statement is required to be mailed pursuant to such Act or any
subsequent provisions).
(g) Such Interested Stockholder shall not have made any major
change in the Corporation's business or equity capital structure
without the approval of a majority of the Continuing Directors.
C. For the purposes of this Article VI:
(1) The term "person" shall mean any individual, firm, corporation or
other entity.
(2) The term "Interested Stockholder" shall mean any person (other
than the Corporation or any Subsidiary) who or which:
(a) is the beneficial owner, directly or indirectly, of more
than ten percent (10%) of the voting power of the outstanding Voting
Stock; or
(b) is an Affiliate of the Corporation and at any time within
the two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of ten percent (10%) or more
of the voting power of the then outstanding Voting Stock; or
(c) is an assignee of or has otherwise succeeded to any shares
of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by an
Interested Stockholder, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
(3) A person shall be a "beneficial owner" of any Voting Stock:
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(a) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(b) which such person or any of its Affiliates or Associates
has, directly or indirectly, (i) the right to acquire (whether such
right is exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options,
or otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding; or
(c) which are beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
Voting Stock.
(4) For the purposes of determining whether a person is an Interested
Stockholder pursuant to subparagraph (2) of this paragraph C, the number of
shares of Voting Stock deemed to be outstanding shall include shares deemed
owned through application of subparagraph (3) of this paragraph C but shall
not include any other shares of Voting Stock which may be issuable pursuant
to any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
(5) The terms "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
January 1, 1983.
(6) The term "Subsidiary" means any corporation of which a majority
of any class of equity security is owned, directly or indirectly, by the
Corporation; PROVIDED, HOWEVER, that for the purposes of the definition of
Interested Stockholder set forth in subparagraph (2) of this paragraph C,
the term "Subsidiary" shall mean only a corporation of which a majority of
each class of equity security is owned, directly or indirectly, by the
Corporation.
(7) The term "Continuing Director" means any member of the Board of
Directors of the Corporation (the "Board"), who is unaffiliated with the
Interested Stockholder and was a member of the Board prior to the time that
the Interested Stockholder became an Interested Stockholder, and any
successor of a Continuing Director, while such successor is a member of the
Board, who is unaffiliated with the Interested Stockholder and is
recommended or elected to succeed a Continuing Director by a majority of
Continuing Directors.
(8) The term "Fair Market Value" means (a) in the case of stock, the
highest closing sale price during the 30-day period immediately preceding
the date in question of a share of such stock on the New York Stock
Exchange, or, if such stock is not listed on such Exchange, on the
principal United States Securities Exchange registered under the Securities
Exchange Act of 1934 on which such stock is listed, or, on the National
Association of Securities Dealers, Inc. ("NASD") National Market if such
stock is not listed on a registered Securities Exchange but is quoted on
the NASD National Market, or, if such stock is not so listed or quoted, the
highest
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closing bid quotation with respect to a share of such stock during the
30-day period preceding the date in question on the NASD Automated
Quotations System or any system then in use, or if no such quotations are
available, the fair market value on the date in question of a share of such
stock as determined by a majority of the Continuing Directors in good
faith; and (b) in the case of property other than cash or stock, the fair
market value of such property on the date in question as determined in good
faith by a majority of the Continuing Directors.
(9) The term "Preference Stock" shall mean the Preferred Stock and
any other class of preference stock which may from time to time be
authorized in or by the Certificate of Incorporation of the Corporation and
which by the terms of its issuance is specifically designated "Preference
Stock" for purposes of this Article VI.
(10) The term "Preferred Stock Designation" shall mean any
designation of the powers, preferences and rights made pursuant to Article
III and filed with the Secretary of State of the State of Delaware.
(11) The term "Voting Stock" shall mean all of the shares of capital
stock of the Corporation outstanding from time to time and entitled to vote
generally in the election of directors.
(12) In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash to be
received" as used in subparagraphs (2)(b) and (c) of paragraph B of Article
VI shall include the shares of Common Stock and/or the shares of any other
class of Voting Stock retained by the holders of such shares.
D. Nothing contained in this Article VI shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
E. The fact that any Business Combination complies with the provisions of
paragraph B of this Article VI shall not be construed to impose any fiduciary
duty, obligation or responsibility on the Board of Directors, or any member
thereof, to approve such Business Combination or recommend its adoption or
approval to the stockholders of the Corporation, nor shall such compliance
limit, prohibit or otherwise restrict in any manner the Board of Directors, or
any member thereof, with respect to evaluations of or actions and responses
taken with respect to such Business Combination.
F. Notwithstanding any other provisions of the Certificate of
Incorporation of the Corporation or any provision of law which might otherwise
permit a lesser vote or no vote, but in addition to any affirmative vote of the
holders of any particular class or series of Voting Stock required by law, the
Certificate of Incorporation of the Corporation or any Preferred Stock
Designation, the affirmative vote of the holders of at least eighty percent
(80%) of the voting power of all of the then outstanding shares of Voting Stock,
voting together as a single class, shall be required to amend or repeal this
Article VI, or adopt any provisions inconsistent with this Article VI; provided
that, this paragraph F shall not apply to, and such eighty percent (80%) vote
shall not be required for, any amendment, repeal or adoption unanimously
recommended by the Board of Directors of the Corporation if all of such
directors are persons who would be eligible to serve as Continuing Directors.
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ARTICLE VII
The address of the Corporation's registered office in the State of Delaware is
1209 Orange Street, in the City of Wilmington, County of New Castle. The name
of its registered agent at such address is The Corporation Trust Company.
IN WITNESS WHEREOF, Ecolab Inc. has caused this Restated Certificate of
Incorporation to be signed by Kenneth A. Iverson, its Vice President and
Secretary, this 22nd day of October, 1997.
ECOLAB INC.
By /s/Kenneth A. Iverson
----------------------------------------
Kenneth A. Iverson
Vice President and Secretary
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