- Current report filing (8-K)
March 01 2010 - 4:14PM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report
(Date of earliest event reported)
February 26, 2010
ECOLAB INC.
(Exact name of registrant as specified in its
charter)
Delaware
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1-9328
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41-0231510
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(State or other jurisdiction
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(Commission
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(IRS Employer
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of incorporation)
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File Number)
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Identification No.)
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370
Wabasha Street North, Saint Paul, Minnesota
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55102
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number, including area code
651-293-2233
(Not applicable)
(Former name or former address, if changed
since last report.)
Check the appropriate box
below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions (see
General Instruction A.2. below):
o
Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Item
5.02.
Departure of Directors or Certain Officers; Election of Directors;
Appointment of
Certain Officers;
Compensatory Arrangements of Certain Officers
.
On February 26, 2010, the Board of Directors of
Ecolab Inc. (the Company) approved the amendment and restatement of the
Companys Change in Control Severance Compensation Policy (the Policy), which
t
he Company maintains for its elected officers (other than assistant
officers). The following description of the Policy and the provisions adopted
or amended is qualified in its entirety by reference to the amended and
restated policy attached as Exhibit (10) and incorporated by
reference into this Item 5.02.
The Policy entitles an officer to a
severance payment if, within two years following a change-in-control, the
officers employment with the Company is terminated without Just Cause (as
defined in the Policy) or the officer voluntarily terminates employment for
Good Reason (as defined in the Policy). The severance payment is paid in a lump
sum equal to the sum of (i) two times the sum of the officers base salary
plus target annual cash incentive; plus (ii) a pro-rated portion of the
target annual cash incentive for the year of termination. The officer also is
entitled to payment of reasonable outplacement service fees up to 20% of base
salary and continuation, for up to 18 months, of medical and dental health
coverage at the cost the officer paid prior to termination of employment. The
Policy does not provide a gross-up for the excise tax under Section 280G
of the Internal Revenue Code. However, the Policy does provide for a reduction
of payments if the Policy results in higher after-tax income to the officer due
to 280G excise tax. As a condition of the payment of such benefits, the officer
must release the Company from employment-related claims. The Board of Directors
may terminate the Policy after two years advance notice except that the Policy
may not be terminated within two years after a change-in-control has occurred.
In connection with the amendment and restatement of
the Policy, certain of the events constituting a change in control under the
Policy have been modified. In particular, certain circumstances that would
permit a person or group to hold in excess of 25% of the Companys voting power
have been eliminated, the time period for determining whether a majority of the
continuing directors have ceased to serve (thus resulting in a change in
control) has been reduced from 36 months to 24 months, a change in control upon
a liquidation of the Company is now conditioned upon consummation of the plan
of liquidation instead of shareholder approval of such plan, and a change in
control upon the sale of all or substantially all of the Companys assets is
now conditioned upon consummation of the
sale instead of consummation of the sale agreement. As amended, a change in
control will occur under the Policy if:
·
A person or group acquires 25% or more of
the Companys outstanding voting power;
·
During any 24 consecutive month period,
individuals who constitute the Board on the first day of the period or any new
director (other than a director
2
whose initial assumption of office is in
connection with an actual or threatened election relating to the election of
directors) whose election or nomination for election by the Companys
stockholders was approved or recommended by a vote of at least two-thirds of
the directors then still in office who were directors on the first day of such
period (or whose election or nomination were previously so approved) shall
cease for any reason to constitute at least a majority of the Board of
Directors;
·
the Company engages in a merger or
consolidation, other than a merger or consolidation in which the Companys
voting securities immediately prior to the transaction continue to represent
over 50% of the voting power of the Company or the surviving entity immediately
after the transaction and in which no person or group acquires 50% or more of
the voting power of the Company or surviving entity; and
·
the consummation of a plan of complete
liquidation or the consummation of the sale of all or substantially all of the
Companys assets, other than to an entity with more than 50% of its voting
power owned by the Companys stockholders in substantially the same proportion
as their ownership of the Company immediately prior to the sale.
Item 5.03.
Amendments to Articles of Incorporation
or Bylaws; Change in Fiscal Year
.
Ecolabs Board of Directors approved amendments to the Companys
By-Laws effective February 26, 2010.
The following description of the provisions adopted or amended is
qualified in its entirety by reference to the amended and restated By-Laws
attached as Exhibit (3) and incorporated by reference into this Item
5.03.
·
Article II, Sections 3 and 4 were
revised to change the advance notice periods for stockholder proposals and
nominations at annual meetings from not less than 90 or more than 120 days to
not less than 120 or more than 150 days prior to the anniversary date of the
immediately preceding annual meeting. In the case of stockholder nominations at
a special meeting of the Companys stockholders called for the purpose of
electing directors, to be timely, a stockholders notice must be delivered to
or mailed an received by the Company not later than the close of business on
the tenth day following the day on which notice of the special meeting was
mailed or public disclosure of the date of the meeting was made, whichever
first occurs.
·
Article II, Section 6 was
revised to lower the threshold for the Companys stockholders to call a special
meeting of stockholders from 80% to 25% of the voting power of the Companys
outstanding capital stock and to establish procedures for calling and holding a
special meeting.
·
Article II, Sections 7, 8 and 9 were
revised to clarify procedures for the
notice and conduct of each annual and special meeting of the Companys
stockholders.
3
·
Article II, Section 14 was
revised to establish procedures for stockholders to act by written consent,
including procedures for the Board of Directors to establish a record date to
determine stockholders entitled to act by written consent. The amended By-Law requires the Board of
Directors to fix a record date promptly, but in all events within ten days,
after receiving a valid request to fix a record date. The record date set by the Board can not be
more than ten days after the date of the Board action to establish the record
date.
·
Article III, Sections 10, 12 15
were revised to clarify certain
procedures relating to actions taken by the Board of Directors, including the
ability to take action by written consent by means of electronic transmission
and filling vacancies on the Board of Directors.
·
Article IV, Sections 1 and 8 were
revised to provide for the election of certain officers of the Company and to
provide that, in the absence of the Chairman, the President or another person
selected by the Board of Directors, will preside at all meetings of
stockholders and the Board of Directors.
·
Article V, Section 1 was
revised to provide mandatory
indemnification to non-officer employees of the Company who serve for the
benefit of the Company as officers or directors of other entities. Prior to the
amendments, the By-Laws permitted indemnification of these employees but did
not mandate such coverage.
Item 8.01.
Other Events
.
On February 26, 2010, Ecolab announced that its Board of Directors
authorized the Company to repurchase up to 10,000,000 additional shares of its
common stock. The purchases may be conducted from time to time in the open
market; in privately negotiated transactions from time-to-time, depending on
market conditions; and through purchases made in accordance with Rule 10b5-1
of the Securities Exchange Act of 1934. Ecolab last increased its Stock
Repurchase program in October 2006.
A copy of the News Release issued by Ecolab in connection with this report
under Item 8.01 is attached as Exhibit (99) and incorporated by reference
herein.
Item 9.01
Financial Statements and Exhibits.
(d)
Exhibits.
(3)
Ecolab Inc. By-Laws, as amended through February 26,
2010.
(10)
Ecolab Inc. Change in Control Severance
Compensation Policy, as amended and restated effective February 26, 2010.
(99)
Ecolab Inc. News Release dated February 26,
2010.
4
SIGNATURE
Pursuant to the
requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
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ECOLAB INC.
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Date: March 1,
2010
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By:
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/s/Michael C. McCormick
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By: Michael C.
McCormick
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Its: Assistant
Secretary
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5
EXHIBIT INDEX
Exhibit No.
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Description
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Method Of Filing
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(3)
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Ecolab Inc. By-Laws, as
amended through February 26, 2010.
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Filed herewith
electronically.
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(10)
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Ecolab Inc. Change in
Control Severance Compensation Policy, as amended and restated effective February 26,
2010.
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Filed herewith
electronically.
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(99)
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Ecolab Inc. News
Release dated February 26, 2010.
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Filed herewith
electronically.
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