As filed with the Securities and Exchange Commission on August 13, 2004
Registration No. 333-114869
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1
ON FORM S-8
TO
THE REGISTRATION STATEMENT ON
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ECOLAB INC.
(Exact name of registrant as specified in its charter)
| Delaware (State or Other Jurisdiction of Incorporation or Organization) |
41-0231510 (I.R.S. Employer Identification No.) |
|
370 Wabasha Street North St. Paul, Minnesota (Address of Principal Executive Offices) |
55102 (Zip Code) |
ALCIDE CORPORATION 1993 STOCK INCENTIVE PLAN
ALCIDE CORPORATION 1996 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(Full Title of the Plans)
Lawrence T. Bell, Esq.
Senior Vice President,
General Counsel and Secretary
Ecolab Inc.
370 Wabasha Street North
St. Paul, Minnesota 55102
(651) 293-2125
(Name, address and telephone number,
including area code, of agent for service)
Ecolab Inc., a Delaware Corporation ("Ecolab"), hereby amends its Registration Statement on Form S-4 (Registration No. 333-114869), which became effective on June 30, 2004, relating to registration of its common stock, par value $1.00 per share, and associated rights to purchase Series A Junior Participating Preferred Stock (one-quarter of one right will attach to and trade with each share of common stock), in connection with its acquisition of Alcide Corporation (the "Form S-4") by filing this Post Effective Amendment No. 1 on Form S-8 to the Form S-4 relating to the registration of 19,245 shares of Ecolab common stock, par value $1.00 per share and associated rights (and any shares issuable in connection with any stock split, reverse stock split, stock dividend or similar transaction in respect of such shares), issuable in connection with the Alcide Corporation 1993 Stock Incentive Plan and the Alcide Corporation 1996 Stock Option Plan for Non-employee Directors (the "Registration Statement").
On July 30, 2004, Ecolab completed its acquisition of Alcide Corporation, a Delaware Corporation, in accordance with the Agreement and Plan of Merger dated as of March 11, 2004 by and among Ecolab, Bessy Acquisition Inc., a wholly-owned subsidiary of Ecolab, and Alcide. Pursuant to the merger agreement, each option to purchase shares of Alcide common stock, par value $.01 per share, that was outstanding immediately prior to the merger pursuant to the Alcide Corporation 1993 Stock Incentive Plan and the Alcide Corporation 1996 Stock Option Plan for Non-employee Directors became an option to purchase the number of shares of Ecolab common stock, par value $1.00 per share, determined by multiplying the number of shares of Alcide common stock subject to such option immediately prior to the merger by 0.6744. Each option continues to be subject to the same terms and conditions as were in effect immediately prior to the merger.
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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").
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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:
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.
Experts
The financial statements incorporated in this Registration Statement by reference to the Annual Report on Form 10-K for the year ended December 31, 2003 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.
Independent Registered Public Accounting Firm
With respect to the unaudited consolidated financial information of Ecolab Inc. for the three-month periods ended March 31, 2004 and 2003, and for the three- and six-month periods ended June 30, 2004 and 2003, incorporated by reference in this Registration Statement, PricewaterhouseCoopers LLP reported that they have applied limited procedures in accordance with professional standards for a review of such information. However, their separate reports dated April 22, 2004 and July 22, 2004 incorporated by reference herein state that they did not audit and they do not express an opinion on that unaudited consolidated 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. PricewaterhouseCoopers LLP is not subject to the liability provisions of Section 11 of the Securities Act of 1933 for their reports on the unaudited financial information because such reports are not a "report" or
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a "part" of the registration statement prepared or certified by PricewaterhouseCoopers LLP within the meaning of Sections 7 and 11 of the Act.
Item 4. Description of Securities.
Not applicable. Ecolab's common stock and preferred stock purchase rights to be offered and sold pursuant to this registration statement are registered under Section 12 of the Exchange Act.
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 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 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 person's 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 Ecolab's By-Laws provides for indemnification of Ecolab's officers and directors to the full extent allowed by Delaware law.
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In addition, Article IV of Ecolab's Restated Certificate of Incorporation provides that Ecolab's 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.
The foregoing represents a summary of the general effect of the General Corporation Law of Delaware, Ecolab's By-Laws and Restated Certificate of Incorporation, Ecolab's 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.
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 Lawrence T. Bell (filed herewith electronically). |
15.1 |
Letter Regarding Unaudited Interim Financial Information (filed herewith electronically). |
|
23.1 |
Consent of Independent Registered Public Accounting Firm (filed herewith electronically). |
|
23.2 |
* |
Consent of Lawrence T. Bell (included in Exhibit 5.1). |
24.1 |
Powers of Attorney (filed herewith electronically). |
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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.
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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.
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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 August 13, 2004.
| ECOLAB INC. | |
/s/ DOUGLAS M. BAKER, JR. Douglas M. Baker, Jr. President and Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed on August 13, 2004 by the following persons in the capacities indicated.
| Signature |
Title |
|
|---|---|---|
/s/ DOUGLAS M. BAKER, JR. Douglas M. Baker, Jr. |
President and Chief Executive Officer (principal executive officer) and Director |
|
/s/ STEVEN L. FRITZE Steven L. Fritze |
Executive Vice President and Chief Financial Officer (principal financial officer) |
|
/s/ DANIEL J. SCHMECHEL Daniel J. Schmechel |
Vice President and Controller (principal accounting officer) |
|
/s/ TIMOTHY P. DORDELL |
Directors |
|
| Timothy P. Dordell, as attorney-in-fact for Les S. Biller, Richard U. De Schutter, Jerry A. Grundhofer, Stefan Hamelmann, James J. Howard, William L. Jews, Joel W. Johnson, Jochen Krautter, Ulrich Lehner, Jerry W. Levin, Robert L. Lumpkins, Beth M. Pritchard and Allan L. Schuman. |
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ECOLAB INC.
REGISTRATION STATEMENT ON FORM S-8
| Exhibit No. |
Item |
Method of Filing |
||
|---|---|---|---|---|
| 5.1 | Opinion and Consent of Lawrence T. Bell | Previously filed as an exhibit to the registrant's registration statement on Form S-4 filed on April 26, 2004. | ||
| 15.1 | Letter Regarding Unaudited Interim Financial Information | Filed herewith electronically. | ||
| 23.1 | Consent of Independent Registered Accounting Firm. | Filed herewith electronically. | ||
| 23.2 | Consent of Lawrence T. Bell | Included in Exhibit 5.1. | ||
| 24.1 | Powers of Attorney. | Filed herewith electronically. |