<PAGE>
As filed with the Securities and Exchange Commission on February 5, 1997
Registration No. 333-
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
ECOLAB INC.
(Exact name of registrant as specified in its charter)
DELAWARE 41-0231510
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
______________________
Ecolab Center
370 North Wabasha Street
St. Paul, Minnesota 55102
(612) 293-2233
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive
offices)
______________________
ECOLAB INC.
1997 NON-EMPLOYEE DIRECTOR DEFERRED COMPENSATION PLAN
(Full title of the plan)
______________________
WILLIAM R. ROSENGREN, ESQ.
SENIOR VICE PRESIDENT-LAW AND
GENERAL COUNSEL
ECOLAB INC.
ECOLAB CENTER
370 NORTH WABASHA STREET
ST. PAUL, MINNESOTA 55102
(612) 293-2233
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
______________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
IMMEDIATELY UPON THE FILING OF THIS REGISTRATION STATEMENT
______________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------
TITLE OF SECURITIES TO AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
BE REGISTERED REGISTERED(1) OFFERING PRICE PER SHARE(2) AGGREGATE OFFERING PRICE(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, par value
$1.00 per share(3). . . 125,000 shares $36.8125 $4,601,562.50 $1,394.42
- ------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended, this Registration Statement includes an indeterminate number of
additional shares as may be issuable as a result of anti-dilution
provisions described in the Ecolab Inc. 1997 Non-Employee Director
Deferred Compensation Plan.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) under the Securities Act of 1933,
as amended, on the basis of the average of the high and low reported
sale prices of the Registrant's Common Stock on February 3, 1997, as
reported on the New York Stock Exchange.
(3) Each share of Common Stock includes one preferred stock purchase right (a
"Right").
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Ecolab Inc. (the "Company" or the
"Registrant") (File No.1- 9328) with the Securities and Exchange Commission (the
"Commission") are incorporated by reference in this Registration Statement: (1)
Annual Report on Form 10-K for the year ended December 31, 1995; (2) Quarterly
Reports on Form 10-Q for the quarters ended March 31, June 30 and September 30,
1996; (3) Current Report on Form 8-K dated February 24, 1996; (4) Current Report
on Form 8-K dated December 16, 1996; (5) all other reports filed by the Company
pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since December 31, 1995; (6) the description of
the Company's Common Stock, Preferred Stock and Rights contained in its
Registration Statement on Form 8-A, including any amendments or reports filed
for the purpose of updating such description.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all shares of Common Stock offered pursuant to this
Registration Statement have been sold or that de-registers all shares of Common
Stock then remaining unsold, shall be deemed to be incorporated by reference in
this Registration Statement and to be a part hereof from the date of filing of
such documents.
The consolidated financial statements and related 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 by reference in this Registration Statement, have been audited by
Coopers & Lybrand L.L.P., independent accountants, for the periods indicated in
such firm's reports thereon. The consolidated financial statements and
financial statement schedule audited by Coopers & Lybrand L.L.P. have been
incorporated herein by reference in reliance on such firm's reports given upon
their authority as experts in accounting and auditing. To the extent that
Coopers & Lybrand L.L.P. examines and reports on the financial statements and
financial statement schedules of the Company issued at future dates, and
consents to the use of their reports thereon, such financial statements and
financial statement schedules will also be incorporated by reference in the
Registration Statement in reliance upon their reports and said authority.
With respect to unaudited interim financial information incorporated by
reference in this Registration Statement, the independent accountants have
reported that they have applied limited procedures in accordance with
professional standards for reviews of such information. However, their separate
reports, incorporated by reference herein, 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 of 1933 (the "Securities Act") for their reports on the unaudited
interim financial information because each such report is not a "report" or a
"part" of the Registration Statement prepared or certified by the accountants
within the meaning of Sections 7 and 11 of the Securities Act.
In addition, the combined financial statements and financial statement
schedule of the
2
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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 by reference
in this Registration Statement, have been audited by KPMG Deutsche
Treuhand-Gesellschaft Aktiengesellschaft, independent accountants, for the
periods indicated in such firm's reports thereon. The combined financial
statements and financial statement schedule audited by KPMG Deutsche
Treuhand-Gesellschaft Aktiengesellschaft have been incorporated herein by
reference in reliance on such firm's reports given upon their authority as
experts in accounting and auditing. To the extent that KPMG Deutsche
Treuhand-Gesellschaft Aktiengesellschaft examines and reports on the financial
statements and the financial statement schedules of the Henkel-Ecolab Joint
Venture issued at future dates, and consents to the use of their reports
thereon, such financial statements and financial statement schedules will also
be incorporated by reference in the Registration Statement in reliance upon
their reports and said authority.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable - the Company's Common Stock and Rights to be offered
pursuant to this Registration Statement have been registered under Section 12 of
the Exchange Act as described in Item 3 of this Part II.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the General Corporation Law of
Delaware ("DGCL") empowers a corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation), by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify
any person who was or is a party or threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that
such person acted in any of the capacities set forth above, against expenses
actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if such person acted under
similar standards, except that no indemnification may be made in respect of
any claim, issue or matter as to which such person shall have been adjudged
to be liable to the corporation unless and only to the extent that the Court
of Chancery or the court in which such action or suit was brought shall
determine that, despite the adjudication of liability, such person is fairly
and reasonably entitled to indemnity for such expenses which the court shall
deem proper.
Section 145 further provides that, to the extent a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the
3
<PAGE>
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred in
connection therewith; that indemnification provided for by Section 145 shall not
be deemed exclusive of any other rights to which the indemnified party may be
entitled; and that the scope of indemnification extends to directors, officers,
employees or agents of a constituent corporation absorbed in a consolidation or
merger and persons serving in that capacity at the request of the constituent
corporation for another. Section 145 also empowers the corporation to purchase
and maintain insurance on behalf of a director or officer of the corporation
against any liability asserted against or incurred by such person in any such
capacity or arising out of such person's status as such, whether or not the
corporation would have the power to indemnify such person against such
liabilities under Section 145, including liabilities under the Securities Act.
Article V of the Company's By-Laws 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 (i) for a breach of the duty of
loyalty, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or knowing violation of the law, (iii) for willful or
negligent violations of certain provisions under the DGCL imposing certain
requirements with respect to stock repurchases, redemptions and dividends, or
(iv) for any transaction from which the director derived an improper personal
benefit. Subject to these exceptions, under Article IV, directors do not have
any personal liability to the 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 to not
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 By-Laws and Restated Certificate of Incorporation, the Company's
directors and officers liability insurance coverage and the Indemnification
Agreements for purposes of general description only.
4
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable - no securities are to be re-offered or resold pursuant
to this Registration Statement.
ITEM 8. EXHIBITS.
4.1 Restated Certificate of Incorporation of the Company (filed herewith
electronically).
4.2 Bylaws of the Company, as amended through December 16, 1996
(incorporated by reference to Exhibit 3 to the Company's Current
Report on Form 8-K dated December 16, 1996 (File No.1-9328)).
4.3 Form of Common Stock Certificate (incorporated by reference to Exhibit
4(B) to the Company's Annual Report on Form 10-K for the year ended
December 31, 1995 (File No. 1-9328)).
4.4 Rights Agreement, dated as of February 24, 1996, between the Company
and First Chicago Trust Company of New York, as Rights Agent
(incorporated by reference to Exhibit 4 to the Company's Current
Report on Form 8-K dated February 24, 1996 (File No. 1-9328)).
5.1 Opinion and Consent of Kenneth A. Iverson (filed herewith
electronically).
15.1 Letter of Coopers & Lybrand L.L.P. regarding unaudited interim
financial information (filed herewith electronically).
23.1 Consent of Kenneth A. Iverson (included in Exhibit 5.1).
23.2 Consent of Coopers & Lybrand L.L.P. (filed herewith electronically).
23.3 Consent of KPMG Deutsche Treuhand-Gesellschaft Aktiengesellschaft
(filed herewith electronically).
24.1 Powers of Attorney (filed herewith electronically).
ITEM 9. UNDERTAKINGS.
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) under the Securities Act
of 1933 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;
5
<PAGE>
(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 (1)(i) and (1)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 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 February 5, 1997.
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 on February 5, 1997 by the following
persons in the capacities indicated.
/s/ Allan L. Schuman President and Chief Executive Officer
------------------------------------- (Principal Executive Officer) and
Allan L. Schuman Director
/s/ Michael E. Shannon Chairman of the Board, Chief Financial
------------------------------------- and Administrative Officer (Principal
Michael E. Shannon Financial Officer) and Director
/s/ Arthur E. Henningsen, Jr. Senior Vice President and Controller
------------------------------------- (Principal Accounting Officer)
Arthur E. Henningsen, Jr.
/s/ Kenneth A. Iverson Directors
-------------------------------------
Kenneth A. Iverson, as
attorney-in-fact for Ruth S. Block,
Russell G. Cleary, James J. Howard,
Joel W. Johnson, Jerry W. Levin,
Reuben F. Richards, Richard L. Schall,
Roland Schulz, Philip L. Smith,
Hugo Uyterhoeven and Albrecht Woeste
7
<PAGE>
INDEX TO EXHIBITS
ITEM DESCRIPTION METHOD OF FILING
NO. ----------- ----------------
----
4.1 Restated Certificate of Incorporation Filed herewith electronically.
of the Company........................
4.2 Bylaws of the Company, as amended Incorporated by reference to
through December 16, 1996............. Exhibit 3 to the Company's
Current Report on Form 8-K
dated December 16, 1996 (File
No.1-9328).
4.3 Form of Common Stock Incorporated by reference to
Certificate........................... Exhibit 4(B) to the Company's
Annual Report on Form 10-K for
the year ended December 31,
1995 (File No. 1-9328).
4.4 Rights Agreement, dated as of February Incorporated by reference to
24, 1996, between the Company and Exhibit 4 to the Company's
First Chicago Trust Company of New Current Report on Form 8-K
York, as Rights Agent................. dated February 24, 1996.
5.1 Opinion and Consent of Kenneth A. Filed herewith electronically.
Iverson...............................
15.1 Letter of Coopers & Lybrand L.L.P. Filed herewith electronically.
regarding unaudited interim financial
information...........................
23.1 Consent of Kenneth A. Iverson......... Included in Exhibit 5.1.
23.2 Consent of Coopers & Lybrand L.L.P.... Filed herewith electronically.
23.3 Consent of KPMG Deutsche Treuhand- Filed herewith electronically.
Gesellschaft Aktiengesellschaft.......
24.1 Powers of Attorney.................... Filed herewith electronically.
8
<PAGE>
RESTATED CERTIFICATE OF INCORPORATION
OF
ECOLAB INC.
(Originally incorporated as
Economics Laboratory, Inc. on
February 18, 1924)
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.
ARTICLE III
The total number of shares of all classes of capital stock which the Corporation
shall have authority to issue is one hundred fifteen million (115,000,000)
consisting of one hundred million (100,000,000) 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 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 500,000.
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) $26 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 noncash dividends or other distributions other than a dividend
payable in shares of Common Stock
<PAGE>
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 14,
1986 (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 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 Dividend Payment
Date, a dividend of $26 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 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.
2
<PAGE>
(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 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 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
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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.
(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;
(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
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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.
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 cancelled
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 recapitalizations 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.
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
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Junior Participating Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the provisions 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.
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.
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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 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
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(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 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 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
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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:
(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.
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(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 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
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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.
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.
PURSUANT TO THE PROVISIONS OF SECTION 245 OF THE DELAWARE GENERAL CORPORATION
LAW the Board of Directors of Ecolab Inc. duly adopted the foregoing Restated
Certificate of Incorporation which only restates and integrates, and does not
further amend, the Certificate of Incorporation as heretofore amended and
supplemented, and there is no discrepancy between the Certificate of
Incorporation as heretofore amended and supplemented and the provisions of the
foregoing Restated Certificate of Incorporation.
IN WITNESS WHEREOF, Ecolab Inc. has caused this Restated Certificate of
Incorporation to be duly executed in its corporate name this 18th day of
December, 1992.
Attest: ECOLAB INC.
By /s/Kenneth A. Iverson By /s/Pierson M. Grieve
-------------------------------- ------------------------------
Kenneth A. Iverson Pierson M. Grieve
Secretary Chairman of the Board
and Chief Executive Officer
RLRC:CERT.INC
Filed 01/04/93
12
<PAGE>
AMENDED CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS, INCLUDING INCREASE IN NUMBER OF SHARES, OF THE
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
ECOLAB INC. (FORMERLY: ECONOMICS LABORATORY, INC.)
--------------------------------------
PURSUANT TO SECTION 151 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
---------------------------------------
ECOLAB INC. (formerly: ECONOMICS LABORATORY, INC.), a corporation
organized and existing under the General Corporation Law of the State of
Delaware (the "Corporation"), in accordance with the provisions of Section 103
thereof, and Section 151(g) thereof, DOES HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors
by the Restated Certificate of Incorporation of the Corporation, on February 14,
1986, the Board of Directors adopted a resolution creating a series of 400,000
shares of Preferred Stock designated as Series A Junior Participating Preferred
Stock;
That on February 26, 1986, a Certificate of Designation, Preferences
and Rights relating to the Series A Junior Participating Preferred Stock was
filed pursuant to Section 151 of the General Corporation Law of the State of
Delaware;
That pursuant to authority conferred upon the Board of Directors by
the Restated Certificate of Incorporation of the Corporation, on September 12,
1986, the Board of Directors adopted a resolution authorizing and directing an
increase of the number of shares of Series A Junior Participating Preferred
Stock from 400,000 to 500,000;
That on November 14, 1986, a Certificate of Increase in the Number of
Shares of the Series A Junior Participating Preferred Stock was filed pursuant
to Section 151 of the General Corporation Law of the State of Delaware;
That none of the 500,000 shares of Series A Junior Participating
Preferred Stock have been issued as of the date hereof; and
That pursuant to the authority conferred upon the Board of Directors
by the Restated Certificate of Incorporation of the Corporation, on February 24,
1996, the Board of Directors adopted the following resolution authorizing and
directing an increase in the number of shares of Series A Junior Participating
Preferred Stock from 500,000 to 1,000,000 and an amendment and restatement of
the voting powers, preferences and relative, participating, optional and other
special rights of the shares of such series, and the qualifications, limitations
or restrictions thereof:
<PAGE>
RESOLVED, That pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of its Restated
Certificate of Incorporation, the Board of Directors hereby authorizes and
directs that (a) the number of shares of Series A Junior Participating Preferred
Stock of this Corporation be hereby increased in amount from 500,000 shares to
1,000,000 shares, (b) all previous adjustments to any of the terms and
provisions of the shares of such series shall be reset so that such terms and
provisions shall be without regard to any such previous adjustments and (c) the
voting powers, preferences and relative, participating, optional and other
special rights of the shares of such series, and the qualifications, limitations
or restrictions thereof be hereby amended and restated 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 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
2
<PAGE>
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 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
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<PAGE>
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 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
4
<PAGE>
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.
(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
5
<PAGE>
(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.
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 cancelled
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.
6
<PAGE>
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.
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
7
<PAGE>
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.
That this Amended Certificate will be effective as of the close of
business on March 11, 1996.
IN WITNESS WHEREOF, said ECOLAB INC. has caused this Amended
Certificate to be signed by Kenneth A. Iverson, its Vice President and
Secretary, this 11th day of March, 1996.
ECOLAB INC.
By /s/ Kenneth A. Iverson
----------------------------------------
Kenneth A. Iverson
Vice President and Secretary
8
<PAGE>
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
WESTERN WATER MANAGEMENT, INC.
INTO
ECOLAB INC.
(PURSUANT TO SECTION 253 OF THE GENERAL
CORPORATION LAW OF DELAWARE)
ECOLAB INC., a Delaware corporation (the "Corporation"), does hereby
certify:
FIRST: That the Corporation is incorporated pursuant to the General
Corporation Law of the State of Delaware.
SECOND: That the Corporation owns all of the outstanding shares of the
common stock of Western Water Management, Inc., a Missouri corporation, which is
the only class of capital stock of said corporation.
THIRD: That the Corporation by the following resolutions of its Board of
Directors, duly adopted on the 10th day of May, 1996, determined to merge into
itself Western Water Management, Inc. on the conditions set forth in such
resolutions:
RESOLVED, That the Corporation merge into itself Western Water Management,
Inc., a Missouri corporation ("Western"), and assume all of the
obligations of Western pursuant to Section 253 of the General Corporation
Law of the State of Delaware; and further
RESOLVED, That upon such merger, all of the estate, property, rights,
privileges and franchises of Western shall vest in and be held and enjoyed
by the Corporation as fully and entirely and without change or diminution
as the same were before held and enjoyed by Western and shall be managed
and controlled by the Corporation, subject to all liabilities and
obligations of Western and the rights of all creditors of Western; and
further
<PAGE>
RESOLVED, That the proper officers, or any of them, of the Corporation are
hereby directed to execute on behalf of the Corporation an Agreement of
Merger with Western, which Agreement of Merger shall provide that the
Restated Certificate of Incorporation and By-Laws of the Corporation shall
be the Restated Certificate of Incorporation and By-Laws of the surviving
corporation and shall contain such other terms and provisions as are
necessary and appropriate to effectuate the merger contemplated therein
pursuant to the laws of the state of incorporation of Western; and further
RESOLVED, That the proper officers of the Corporation are hereby directed
to prepare and execute, under the corporate seal of the Corporation, a
Certificate of Ownership and Merger relating to such merger setting forth a
copy of these resolutions, which Certificate shall also set forth the date
of adoption of said resolutions, and to cause the same to be filed with the
Secretary of State of the State of Delaware, and a certified copy to be
filed in the offices of the Recorder of New Castle County, Delaware, and to
do all acts and things whatsoever, whether within or without the State of
Delaware, which may be necessary or proper to effect the merger of Western
with and into the Corporation; and further
RESOLVED, That the proper officers of the Corporation are authorized on
behalf of, or in the name of, the Corporation, and after the effective date
of the merger, on behalf of Western, to take any and all actions whatsoever
in any national, state or local jurisdiction which they shall determine
necessary or advisable to effect the merger of Western into the
Corporation, including but not limited to, actions to effect the transfer
or evidence the transfer of assets, rights and obligations of Western,
including quotas, shares or other evidences of ownership by Western in
subsidiary corporations or companies of the Corporation, or to obtain any
necessary governmental, regulatory, investment or tax approvals and to post
any bonds, file any reports, or arrange for acceptance of service of
process or otherwise comply with local requirements; and further
RESOLVED, That reference to the "proper officers" in these resolutions
shall include Chairman of the Board, President, any Vice President,
Secretary, Assistant Secretary, Treasurer or Assistant Treasurer, and each
singly, of the Corporation and shall include full power of substitution to
appoint attorneys-in-fact or agents.
That this Certificate of Ownership and Merger will be effective as of the
close of business on August 31, 1996.
-2-
<PAGE>
IN WITNESS HEREOF, said Ecolab Inc. has caused this Certificate of
Ownership and Merger to be signed by Kenneth A. Iverson, its Vice President and
Secretary, this 26th day of August, 1996.
Ecolab Inc.
By /s/ Kenneth A. Iverson
--------------------------------------
Kenneth A. Iverson
Vice President and Secretary
-3-
<PAGE>
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
INDUSTRIAL MAINTENANCE CORPORATION
INTO
ECOLAB INC.
(PURSUANT TO SECTION 253 OF THE GENERAL
CORPORATION LAW OF DELAWARE)
ECOLAB INC., a Delaware corporation (the "Corporation"), does hereby
certify:
FIRST: That the Corporation is incorporated pursuant to the General
Corporation Law of the State of Delaware.
SECOND: That the Corporation owns all of the outstanding shares of the
common stock of Industrial Maintenance Corporation, a North Carolina
corporation, which is the only class of capital stock of said corporation.
THIRD: That the Corporation, by the following resolutions of its Board of
Directors, duly adopted on the 10th day of May, 1996, determined to merge into
itself Industrial Maintenance Corporation on the conditions set forth in such
resolutions:
RESOLVED, That the Corporation merge into itself Industrial Maintenance
Corporation, a North Carolina corporation ("IMCOR"), and assume all of the
obligations of IMCOR pursuant to Section 253 of the General Corporation Law
of the State of Delaware; and further
RESOLVED, That upon such merger, all of the estate, property, rights,
privileges and franchises of IMCOR shall vest in and be held and enjoyed by
the Corporation as fully and entirely and without change or diminution as
the same were before held and enjoyed by IMCOR and shall be managed and
controlled by the Corporation, subject to all liabilities and obligations
of IMCOR and the rights of all creditors of IMCOR; and further
<PAGE>
RESOLVED, That the proper officers, or any of them, of the Corporation are
hereby directed to execute on behalf of the Corporation an Agreement and
Plan of Merger with IMCOR, which Agreement and Plan of Merger shall provide
that the Restated Certificate of Incorporation and By-Laws of the
Corporation shall be the Restated Certificate of Incorporation and By-Laws
of the surviving corporation and shall contain such other terms and
provisions as are necessary and appropriate to effectuate the merger
contemplated therein pursuant to the laws of the state of incorporation of
IMCOR; and further
RESOLVED, That the proper officers of the Corporation are hereby directed
to prepare and execute, under the corporate seal of the Corporation, a
Certificate of Ownership and Merger relating to such merger setting forth a
copy of these resolutions, which Certificate shall also set forth the date
of adoption of said resolutions, and to cause the same to be filed with the
Secretary of State of the State of Delaware, and a certified copy to be
filed in the offices of the Recorder of New Castle County, Delaware, and to
do all acts and things whatsoever, whether within or without the State of
Delaware, which may be necessary or proper to effect the merger of IMCOR
with and into the Corporation; and further
RESOLVED, That the proper officers of the Corporation are authorized on
behalf of, or in the name of, the Corporation, and after the effective date
of the merger, on behalf of IMCOR, to take any and all actions whatsoever
in any national, state or local jurisdiction which they shall determine
necessary or advisable to effect the merger of IMCOR into the Corporation,
including but not limited to, actions to effect the transfer or evidence
the transfer of assets, rights and obligations of IMCOR, including quotas,
shares or other evidences of ownership by IMCOR in subsidiary corporations
or companies of the Corporation, or to obtain any necessary governmental,
regulatory, investment or tax approvals and to post any bonds, file any
reports, or arrange for acceptance of service of process or otherwise
comply with local requirements; and further
RESOLVED, That reference to the "proper officers" in these resolutions
shall include Chairman of the Board, President, any Vice President,
Secretary, Assistant Secretary, Treasurer or Assistant Treasurer, and each
singly, of the Corporation and shall include full power of substitution to
appoint attorneys-in-fact or agents.
That this Certificate of Ownership and Merger will be effective as of the
close of business on December 31, 1996.
- 2 -
<PAGE>
IN WITNESS WHEREOF, said Ecolab Inc. has caused this Certificate of
Ownership and Merger to be signed by Kenneth A. Iverson, its Vice President and
Secretary, this 26th day of December, 1996.
ECOLAB INC.
By: /s/ Kenneth A. Iverson
------------------------------------
Kenneth A. Iverson
Vice President and Secretary
-3-
<PAGE>
CERTIFICATE OF MERGER
OF
HUNTINGTON EQUITY INVESTORS, INC.
HUNTINGTON HOLDINGS, INC.
HUNTINGTON LABORATORIES, INC.
INTO
ECOLAB INC.
The undersigned corporation DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the constituent
corporations of the merger is as follows:
NAME STATE OF INCORPORATION
Ecolab Inc. Delaware
Huntington Equity Investors, Inc. Delaware
Huntington Holdings, Inc. Delaware
Huntington Laboratories, Inc. Indiana
SECOND: That an Agreement and Plan of Merger between the parties to the merger
has been approved, adopted, certified, executed and acknowledged by each of the
constituent corporations in accordance with the requirements of section 252 of
the General Corporation Law of Delaware.
THIRD: That the name of the surviving corporation of the merger is Ecolab
Inc., a Delaware corporation.
FOURTH: That the Restated Certificate of Incorporation of Ecolab Inc., a
Delaware corporation which is surviving the merger, shall be the Restated
Certificate of Incorporation of the surviving corporation.
FIFTH: That the executed Agreement and Plan of Merger is on file at the
principal place of business of the surviving corporation, the address of which
is Ecolab Center, 370 North Wabasha Street, St. Paul, MN 55102.
<PAGE>
SIXTH. That a copy of the Agreement and Plan of Merger will be furnished by
the surviving corporation, on request and without cost, to any stockholder of
any constituent corporation.
SEVENTH: The authorized capital stock of each foreign corporation which is a
party to the merger is as follows:
<TABLE>
<CAPTION>
Par value per share
or statement that
Number shares are without
Corporation Class of Shares par value
- ----------- ----- --------- --------------------
<S> <C> <C> <C>
Huntington Laboratories, Inc. Common 100 $20.00
</TABLE>
EIGHTH: That this Certificate of Merger shall be effective upon the close of
business on December 31, 1996.
Dated: December 30, 1996
ECOLAB INC.
By /s/ Kenneth A. Iverson
---------------------------------
Kenneth A. Iverson
Vice President and Secretary
- 2 -
<PAGE>
Exhibit 5.1
February 5, 1997
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street N.W.
Washington, D.C. 20549
RE: ECOLAB INC. 1997 NON-EMPLOYEE DIRECTOR DEFERRED COMPENSATION PLAN
REGISTRATION ON FORM S-8
Gentlemen:
I am Vice President and Secretary of Ecolab Inc. (the "Company"). In that
capacity, I have acted as counsel to the Company in connection with the proposed
offering by the Company pursuant to a Registration Statement on Form S-8 under
the Securities Act of 1933, as amended, of 125,000 shares of the Company's
Common Stock, $1.00 par value ("the Shares"), and the Company's preferred stock
purchase rights (the "Rights") adhering to the Shares, in connection with the
Ecolab Inc. 1997 Non-Employee Director Deferred Compensation Plan (the
"Plan"). I understand that it is the Company's intention that the Shares
will be (a) issued out of authorized but unissued shares, or (b) transferred
out of treasury shares held by the Company now or in the future; provided,
that no Shares will be issued or transferred until the Plan has been approved
by a majority of the total votes cast by the holders of shares present in
person or represented by proxy and entitled to vote on the Plan at the next
annual meeting of stockholders of the Company.
I have examined the proposed Registration Statement on Form S-8, the Plan, the
Rights Agreement between the Company and First Chicago Trust Company of New York
dated as of February 24, 1996, (the "Rights Agreement"), and such other
documents, corporate records and instruments and such laws and regulations as I
have considered relevant for the purpose of this opinion. Based upon the
foregoing, I am of the opinion that:
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of Delaware.
(2) The Shares, when issued or transferred, delivered and paid for in
accordance with the Plan as approved by the
<PAGE>
stockholders in the manner set forth in the first paragraph of this
letter, will be legally issued, fully paid and non-assessable.
(3) The Rights, when issued in accordance with the Rights Agreement in
connection with Shares issued or transferred in accordance with the
Plan (so long as the Rights are attached to the Shares in accordance
with the Rights Agreement), will be legally issued, fully paid and
non-assessable.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
above-captioned Registration Statement and to its use as part of the
Registration Statement.
Sincerely,
/s/ Kenneth A. Iverson
Kenneth A. Iverson
Vice President and Secretary
<PAGE>
Exhibit 15.1
Securities and Exchange Commission
450 5th Street, N.W.
Washington, D.C. 20549
We are aware that our reports dated April 18, 1996, July 18, 1996 and October
22, 1996 on our reviews of unaudited interim financial information of Ecolab
Inc. for the periods ended March 31, 1996 and 1995, June 30, 1996 and 1995, and
September 30, 1996 and 1995, and included in the Company's quarterly reports on
Form 10-Q for the quarters ended March 31, 1996, June 30, 1996 and September 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.
Saint Paul, Minnesota
February 5, 1997
<PAGE>
Exhibit 23.2
CONSENT OF COOPERS & LYBRAND L.L.P.
We consent to the incorporation by reference in this Registration Statement of
Ecolab Inc. on Form S-8 of our reports 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 "Incorporation of Documents by Reference."
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Saint Paul, Minnesota
February 5, 1997
<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-8 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
INCORPORATION OF DOCUMENTS BY REFERENCE.
Dusseldorf, Germany
February 5, 1997
KPMG Deutsche Treuhand-Gesellschaft
Aktiengesellschaft
Wirtschaftsprufungsgesellschaft
/s/ Stefan Haas /s/ Bernhard Momken
Stefan Haas Bernhard Momken
Wirtschaftsprufer Wirtschaftsprufer
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of Ecolab
Inc., a Delaware corporation, does hereby make, nominate and appoint ALLAN L.
SCHUMAN, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them, to be my
attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-8 relating to the registration of not more than
125,000 shares of Ecolab Inc. Common Stock, par value $1 per share, and
Preferred Stock Purchase Rights associated with the Common Stock, for the Ecolab
Inc. 1997 Non-Employee Director Deferred Compensation Plan, 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 5th day of
February, 1997.
/s/ Ruth S. Block
-----------------------------------
Ruth S. Block
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of Ecolab
Inc., a Delaware corporation, does hereby make, nominate and appoint ALLAN L.
SCHUMAN, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them, to be my
attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-8 relating to the registration of not more than
125,000 shares of Ecolab Inc. Common Stock, par value $1 per share, and
Preferred Stock Purchase Rights associated with the Common Stock, for the Ecolab
Inc. 1997 Non-Employee Director Deferred Compensation Plan, 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 24th day of
January, 1997.
/s/ Russell G. Cleary
-----------------------------------
Russell G. Cleary
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of Ecolab
Inc., a Delaware corporation, does hereby make, nominate and appoint ALLAN L.
SCHUMAN, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them, to be my
attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-8 relating to the registration of not more than
125,000 shares of Ecolab Inc. Common Stock, par value $1 per share, and
Preferred Stock Purchase Rights associated with the Common Stock, for the Ecolab
Inc. 1997 Non-Employee Director Deferred Compensation Plan, 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
January, 1997.
/s/ James J. Howard
-----------------------------------
James J. Howard
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of Ecolab
Inc., a Delaware corporation, does hereby make, nominate and appoint ALLAN L.
SCHUMAN, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them, to be my
attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-8 relating to the registration of not more than
125,000 shares of Ecolab Inc. Common Stock, par value $1 per share, and
Preferred Stock Purchase Rights associated with the Common Stock, for the Ecolab
Inc. 1997 Non-Employee Director Deferred Compensation Plan, 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 24th day of
January, 1997.
/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, does hereby make, nominate and appoint ALLAN L.
SCHUMAN, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them, to be my
attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-8 relating to the registration of not more than
125,000 shares of Ecolab Inc. Common Stock, par value $1 per share, and
Preferred Stock Purchase Rights associated with the Common Stock, for the Ecolab
Inc. 1997 Non-Employee Director Deferred Compensation Plan, 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 25th day of
January, 1997.
/s/ Jerry W. Levin
-----------------------------------
Jerry W. Levin
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of Ecolab
Inc., a Delaware corporation, does hereby make, nominate and appoint ALLAN L.
SCHUMAN, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them, to be my
attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-8 relating to the registration of not more than
125,000 shares of Ecolab Inc. Common Stock, par value $1 per share, and
Preferred Stock Purchase Rights associated with the Common Stock, for the Ecolab
Inc. 1997 Non-Employee Director Deferred Compensation Plan, 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 27th day of
January, 1997.
/s/ Reuben F. Richards
-----------------------------------
Reuben F. Richards
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of Ecolab
Inc., a Delaware corporation, does hereby make, nominate and appoint ALLAN L.
SCHUMAN, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them, to be my
attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-8 relating to the registration of not more than
125,000 shares of Ecolab Inc. Common Stock, par value $1 per share, and
Preferred Stock Purchase Rights associated with the Common Stock, for the Ecolab
Inc. 1997 Non-Employee Director Deferred Compensation Plan, 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 24th day of
January, 1997.
/s/ Richard L. Schall
-----------------------------------
Richard L. Schall
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of Ecolab
Inc., a Delaware corporation, does hereby make, nominate and appoint ALLAN L.
SCHUMAN, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them, to be my
attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-8 relating to the registration of not more than
125,000 shares of Ecolab Inc. Common Stock, par value $1 per share, and
Preferred Stock Purchase Rights associated with the Common Stock, for the Ecolab
Inc. 1997 Non-Employee Director Deferred Compensation Plan, 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 3rd day of
February, 1997.
/s/ Roland Schulz
-----------------------------------
Roland Schulz
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of Ecolab
Inc., a Delaware corporation, does hereby make, nominate and appoint ALLAN L.
SCHUMAN, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them, to be my
attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-8 relating to the registration of not more than
125,000 shares of Ecolab Inc. Common Stock, par value $1 per share, and
Preferred Stock Purchase Rights associated with the Common Stock, for the Ecolab
Inc. 1997 Non-Employee Director Deferred Compensation Plan, 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
January, 1997.
/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, does hereby make, nominate and appoint ALLAN L.
SCHUMAN, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them, to be my
attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-8 relating to the registration of not more than
125,000 shares of Ecolab Inc. Common Stock, par value $1 per share, and
Preferred Stock Purchase Rights associated with the Common Stock, for the Ecolab
Inc. 1997 Non-Employee Director Deferred Compensation Plan, 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 27th day of
January, 1997.
/s/ Hugo Uyterhoeven
-----------------------------------
Hugo Uyterhoeven
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That the undersigned, a Director of Ecolab
Inc., a Delaware corporation, does hereby make, nominate and appoint ALLAN L.
SCHUMAN, MICHAEL E. SHANNON, KENNETH A. IVERSON, and each of them, to be my
attorney-in-fact, with full power and authority to sign his name to a
Registration Statement on Form S-8 relating to the registration of not more than
125,000 shares of Ecolab Inc. Common Stock, par value $1 per share, and
Preferred Stock Purchase Rights associated with the Common Stock, for the Ecolab
Inc. 1997 Non-Employee Director Deferred Compensation Plan, 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 5th day of
February, 1997.
/s/ Albrecht Woeste
-----------------------------------
Albrecht Woeste
