As filed
with the Securities and Exchange Commission on March 1, 2010
Registration No. 333-
U.S.
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
Incorporation or Organization)
|
|
(I.R.S. Employer
Identification No.)
|
370
Wabasha Street North
St. Paul, Minnesota
|
|
55102
|
(Address of
Principal Executive Offices)
|
|
(Zip Code)
|
ECOLAB
MIRROR SAVINGS PLAN
(Full Title of the
Plan)
Lawrence T. Bell, Esq.
General
Counsel
Ecolab
Inc.
370
Wabasha Street North
St. Paul,
Minnesota 55102
(651) 293-2981
(Name, address and
telephone number,
including area code, of agent for service)
Indicate by check mark
whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2
of the Exchange Act.
Large
accelerated filer
x
|
|
Accelerated
filer
o
|
Non-accelerated
filer
o
|
|
Smaller
reporting company
o
|
(Do not check if
a smaller reporting company)
|
|
|
CALCULATION
OF REGISTRATION FEE
Title of securities
to be registered(1)
|
|
Amount to be
registered
|
|
Proposed maximum
offering price per
obligation
|
|
Proposed maximum
aggregate offering price
|
|
Amount of
registration fee
|
|
Deferred
Compensation Obligations
|
|
$
|
9,500,000
|
|
100
|
%
|
$
|
9,500,000
|
|
$
|
677.35
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
The Deferred Compensation Obligations are
unsecured obligations of Ecolab to pay deferred compensation in the future in
accordance with the terms of the Ecolab Mirror Savings Plan. See Description of Securities herein.
Part I
INFORMATION REQUIRED
IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
have been or will be sent or given to participants as specified by Rule 428(b)(1) under
the Securities Act of 1933 (the Securities Act).
2
PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by Reference.
Incorporation by Reference
The following documents filed by Ecolab (File No. 1-9328) with the
SEC are incorporated by reference in this Registration Statement:
(1)
Annual report on Form 10-K for the
year ended December 31, 2009;
(2)
All other reports filed by Ecolab
pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended (the Exchange Act), since December 31, 2009; and
(3)
The descriptions of Ecolabs common
stock, preferred stock and preferred stock purchase rights contained in its
registration statements on Form 8-A, including any amendments or reports
filed for the purpose of updating these descriptions.
All documents filed by Ecolab with the SEC pursuant to Sections 13(a),
13(c), 14 and 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 securities offered pursuant to this Registration Statement
have been sold or that deregisters all securities then remaining unsold, will
be deemed to be incorporated by reference in this Registration Statement and to
be a part of this Registration Statement from the date of filing of these
documents.
Independent
Registered Public Accounting Firm.
The financial statements and
managements assessment of the effectiveness of internal control over financial
reporting (which is included in Managements Report on Internal Control over
Financial Reporting) incorporated in this Registration Statement by reference
to the Annual Report on Form 10-K for the year ended December 31,
2009, have been so incorporated in reliance on the report of PricewaterhouseCoopers
LLP, an independent registered public accounting firm, given on the authority
of said firm as experts in auditing and accounting.
Item 4.
Description of Securities.
Under the Ecolab
Mirror Savings (the Plan), Ecolab and certain subsidiaries will provide
deferred compensation benefits to certain management and highly compensated
employees of Ecolab and such subsidiaries that are in addition to those
provided under the Ecolab Savings Plan and ESOP (the Savings Plan). Ecolab and such subsidiaries will partially
match deferrals made by employees participating in the Plan. Both the employee
deferrals and the employer matching contributions are credited to individual
accounts established and maintained on the books of Ecolab or such subsidiary
in the name of each participating employee.
The obligations of Ecolab to its participating employees, as well as the
obligations of certain of its subsidiaries to the participating employees of
such subsidiaries, to the extent such subsidiary obligations have been
guaranteed by Ecolab (collectively the Deferred Compensation Obligations),
which are represented by the accounts will be unsecured general obligations of
Ecolab to pay deferred compensation in the future in accordance with the terms
of the Plan and will rank pari passu with other unsecured and unsubordinated
indebtedness of Ecolab from time to time outstanding.
3
The amount of
compensation to be deferred by each participating employee will be determined
in accordance with the Plan based on elections by the employee. Each Deferred Compensation Obligation will be
payable by Ecolab in accordance with the terms of the Plan.
Except as to the
restrictions on the Plans Ecolab Stock Fund effective January 1, 2006,
the investment options under the Plan generally are the same as those offered
for the Savings Plan. Employee deferrals
and employer matching contributions earn the rate of return equal to the rate
of return of the designated investment funds. However, unlike the Savings
Plan, assets are not actually invested in the designated funds. Subject
to certain forfeiture provisions, participants are 100% vested in their
deferrals and the employer matching contributions.
An employee
participants right or the right of any other person to the Deferred
Compensation Obligations cannot be assigned, alienated, sold, garnished,
transferred, pledged or encumbered except (i) pursuant to the beneficiary
provisions under the Plan or (ii) by an Internal Revenue Service levy for
unpaid taxes.
The Deferred
Compensation Obligations are not subject to redemption, in whole or in part,
prior to the payment dates specified in the Plan, except in limited
circumstances where total or partial redemption may, in the sole discretion of
the Plans administrator, be necessary in order to alleviate the consequences
of an unforeseen emergency faced by the participating employee. However, Ecolab reserves the right to amend
or terminate the Plan at any time, except that no such amendment or termination
shall adversely affect the right of an employee participant to the balance of
his or her account as of the date of such amendment or termination; provided,
however, that this limitation shall not apply to any amendment or termination
that is deemed necessary or reasonable (as determined in the sole discretion of
the Committee) to comply with the requirements of Code Section 409A and
the guidance issued under the American Jobs Creation Act of 2004.
The Deferred
Compensation Obligations are not convertible into any other security of Ecolab.
The Deferred Compensation Obligations will not have the benefit of a negative
pledge or any other affirmative or negative covenant on the part of
Ecolab. No trustee has been appointed
having the authority to take action with respect to the Deferred Compensation
Obligations, and each employee participant will be responsible for acting
independently with respect to, among other things, the giving of notice,
responding to any requests for consents, waivers or amendments pertaining to
the Deferred Compensation Obligations, enforcing covenants and taking action
upon default.
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 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 persons 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
4
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 the action or suit was brought shall determine that, despite
the adjudication of liability, the person is fairly and reasonably entitled to
indemnity for the 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 defense
of any claim, issue or matter therein, the 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 the person in any such capacity or arising out of the persons status as
such, whether or not the corporation would have the power to indemnify the
person against such liabilities under Section 145, including liabilities
under the Securities Act.
Article V of Ecolabs By-Laws provides for indemnification of
Ecolabs officers and directors to the full extent allowed by Delaware law.
In addition, Article IV of Ecolabs Restated Certificate of
Incorporation provides that Ecolabs directors do not have personal liability
to Ecolab or its stockholders for monetary damages for any breach of their
fiduciary duty as directors, except (1) for a breach of the duty of
loyalty, (2) for acts or omissions not in good faith or which involve
intentional misconduct or knowing violation of the law, (3) for willful or
negligent violations of certain provisions under the General Corporation Law of
Delaware imposing certain requirements with respect to stock repurchases,
redemptions and dividends, or (4) 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 Ecolab or its stockholders for any violation of
their fiduciary duty.
Ecolab 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 General Corporation Law of Delaware 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 Ecolab.
Ecolab has entered into indemnification agreements with each of its
directors. These 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 the director is or was a director, officer,
employee, trustee, agent or fiduciary of Ecolab or is or was serving at the
request of Ecolab 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 Ecolab has the burden of proving that a
director is not entitled to indemnification in any particular case.
5
The foregoing represents a summary of the general effect of the General
Corporation Law of Delaware, Ecolabs By-Laws and Restated Certificate of Incorporation,
Ecolabs directors and officers liability insurance coverage and the
indemnification agreements for purposes of general description only.
Item 7.
Exemptions from Registration Claimed.
Not applicable. No securities
are to be re-offered or resold pursuant to this registration statement.
Item 8.
Exhibits.
The following is a complete list of exhibits filed or incorporated by
reference as part of this registration statement:
Exhibit No.
|
|
Description
|
|
|
|
|
5.1
|
|
|
Opinion and Consent of
David F. Duvick (filed herewith electronically).
|
|
|
|
|
23.1
|
|
|
Consent of Independent
Registered Public Accounting Firm (filed herewith electronically).
|
|
|
|
|
23.2
|
|
|
Consent of David F.
Duvick (included in Exhibit 5.1).
|
|
|
|
|
24.1
|
|
|
Powers of Attorney
(filed herewith electronically).
|
|
|
|
|
99.1
|
|
|
Ecolab Mirror Savings
Plan, Amended and Restated effective as of January 1, 2005 (filed
herewith electronically).
|
Item 9.
Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii)
To reflect in the prospectus any facts or events
arising after the effective date of this registration statement (or the most
recent post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
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 SEC
pursuant to Rule 424(b) under the Securities Act 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;
(iii)
To include any material information with respect to
the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement.
6
Provided
,
however
, that paragraphs (a)(1)(i) and
(a)(1)(ii) above 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 SEC by the registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2)
That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3)
To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b)
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the registrants annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and where applicable, each filing of an employee benefit plans
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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.
(c)
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act,
and is therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
7
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 of 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
March 1,
2010
.
|
ECOLAB
INC.
|
|
|
|
By:
|
/s/Douglas M. Baker, Jr.
|
|
|
Douglas M. Baker, Jr.
|
|
|
Chairman of the Board, President and
|
|
|
Chief Executive Officer
|
Pursuant to the requirements of
the Securities Act of 1933, this registration statement has been signed on March 1
, 2010
by the following persons in the capacities indicated.
Signature
|
|
Title
|
|
|
|
/s/Douglas M.
Baker, Jr.
|
|
Chairman
of the Board, President and
Chief Executive Officer
(principal executive officer) and Director
|
Douglas
M. Baker, Jr.
|
|
|
|
|
/s/Steven
L. Fritze
|
|
Chief
Financial Officer (principal financial officer)
|
Steven
L. Fritze
|
|
|
|
|
/s/John
J. Corkrean
|
|
Vice
President and Corporate Controller (principal accounting officer)
|
John
J. Corkrean
|
|
|
|
|
/s/Michael
C. McCormick
|
|
Directors
|
Michael
C. McCormick, as attorney-in-fact for Barbara J. Beck, Les S. Biller, Richard
U. De Schutter, Jerry A. Grundhofer, Joel W. Johnson, Jerry W. Levin, Robert
L. Lumpkins, C. Scott OHara, Beth M. Pritchard, Victoria J. Reich and
John
J. Zillmer
|
|
|
8
ECOLAB
INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX
TO EXHIBITS
Exhibit No.
|
|
Item
|
|
Method of Filing
|
|
|
|
|
|
|
|
5.1
|
|
Opinion and Consent of
David F. Duvick
|
|
Filed herewith
electronically
|
|
|
|
|
|
|
|
23.1
|
|
Consent of Independent
Registered Public Accounting Firm
|
|
Filed herewith
electronically
|
|
|
|
|
|
|
|
23.2
|
|
Consent of David F.
Duvick
|
|
Included in
Exhibit 5.1
|
|
|
|
|
|
|
|
24.1
|
|
Powers of Attorney
|
|
Filed herewith
electronically
|
|
|
|
|
|
|
|
99.1
|
|
Ecolab Mirror Savings
Plan, Amended and Restated effective as of January 1, 2005
|
|
Filed herewith
electronically
|
|
9
Ecolab (NYSE:ECL)
Historical Stock Chart
From Aug 2024 to Sep 2024
Ecolab (NYSE:ECL)
Historical Stock Chart
From Sep 2023 to Sep 2024