As filed with the Securities and Exchange Commission on May 7, 2010

Registration No. 333-                  

 

 

UNITED STATES 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)

 

 

 

ECOLAB INC. 2010 STOCK INCENTIVE 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. (Check one):

 

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		Amount to be registered(1)(2)		Proposed maximum offering price per unit(3)			Proposed maximum aggregate offering price(3)			Amount of registration fee(3)
Common stock, par value $1.00 per share(4)		13,400,000		$	49.335		$	592,020,000		$	42,211.03

(1)		As described in the Explanatory Note in this Registration Statement, the number of shares of common stock, par value $1.00 per share (the “Common Stock”) of Ecolab Inc. (“Ecolab”) registered hereby consists of (a) 12,000,000 shares being registered for the first time pursuant to the Ecolab Inc. 2010 Stock Incentive Plan (the “2010 Plan”), plus (b) 1,400,000 shares (the “Carryover Shares”) that were previously registered by Ecolab under the Ecolab Inc. 2005 Stock Incentive Plan (the “2005 Plan”) on Form S-8, filed with the Securities and Exchange Commission on November 3, 2005 (Registration Statement 333-129427) that remain available for future grants under the 2005 Plan as of May 6, 2010 that may now be issued under the 2010 Plan (the “2010 Plan”). A post-effective amendment to the foregoing Form S-8 to deregister the Carryover Shares is being filed contemporaneously with the filing of this Registration Statement.
(2)		In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended, this Registration Statement also covers an indeterminate number of additional shares of common stock of Ecolab to be offered or sold as a result of the anti-dilution provisions of the employee benefit plan described in this Registration Statement.
(3)		Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h)(1) and (c) under the Securities Act, based upon the average of the high and low sale prices of the registrant’s common stock on May 3, 2010, as reported on the Consolidated Transaction Reporting System of the New York Stock Exchange. Ecolab is paying registration fees solely with respect to the 12,000,000 shares being newly registered hereby. The registration fee with respect to the Carryover Shares was paid upon filing of the Registration Statement on Form S-8 as described in footnote 1 above. Therefore, no further registration fee is required.
(4)		Each share of common stock includes one preferred stock purchase right pursuant to the terms of the registrant’s Rights Agreement dated as of February 24, 2006.

 

 

 

EXPLANATORY NOTE

 

The Ecolab Inc. (“Ecolab”) stockholders approved the Ecolab Inc. 2010 Stock Incentive Plan (the “2010 Plan”) on May 6, 2010 (the “Effective Date”). The 2010 Plan provides that, in addition to the 12,000,000 shares authorized for grant under the 2010 Plan (the “New Shares”), shares remaining available for future grants under the Ecolab Inc. 2005 Stock Incentive Plan (the “2005 Plan”) as of the Effective Date are available for grant under the 2010 Plan. In addition, the number of shares available for issuance under the 2010 Plan will be increased by the number of shares subject to awards (made under the 2010 Plan or that are outstanding under the 2005 Plan on the Effective Date) that expire, are forfeited or terminated, or are settled in cash.  Ecolab’s authority to grant new awards under the 2005 Plan terminated upon stockholder approval of the 2010 Plan.

 

The purpose of this Registration Statement is (i) to register the New Shares, and (ii) to carry forward the Carryover Shares (i.e., the shares remaining available for future grant as of the Effective Date under the 2005 Plan to the extent such shares were previously registered) to this Registration Statement. The Carryover Shares consist of 1,400,000 shares previously registered under the 2005 Plan on Form S-8, filed with the Securities and Exchange Commission on November 3, 2005 (Registration Statement 333-129427).  The Form S-8 for the 2005 Plan registered a total of 12,000,000 shares.  A post-effective amendment to the foregoing Form S-8 to deregister the Carryover Shares is being filed contemporaneously with the filing of this Registration Statement.

 

Additional shares under the 2005 Plan may become available in the future due to awards made under the 2005 Plan that are outstanding on the Effective Date expiring, being forfeited or terminated, or settled in cash.  Such shares may also be registered for issuance under the 2010 Plan pursuant to subsequent Registration Statements.

 

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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”) and the Note to Part I of Form S-8.

 

PART II

 

INFORMATION REQUIRED

IN THE REGISTRATION STATEMENT

 

Item 3.    Incorporation of Documents by Reference.

 

Incorporation by Reference

 

The following documents filed by Ecolab 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 Ecolab’s 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  (except for portions of Ecolab’s current reports furnished, as opposed to filed, on Form 8-K), 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.

 

Any statement contained in a document incorporated, or deemed to be incorporated, by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement or incorporated by reference or in any other subsequently filed document that also is or is deemed to be incorporated by reference modifies or supersedes the statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Independent Registered Public Accounting Firm

 

The financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s 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.

 

With respect to the unaudited consolidated financial information of Ecolab Inc. 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 report dated May 6, 2010 with respect to the quarterly period ended March 31, 2010, which is incorporated by reference herein, states that they did not audit and they do not express an opinion on that unaudited financial information.  Accordingly the degree of reliance on their report 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

 

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Securities Act for their report on the unaudited financial information because these reports are not “reports” or “parts” of the registration statement prepared or certified by PricewaterhouseCoopers LLP within the meaning of Sections 7 and 11 of the Securities 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.

 

The validity of the securities subject to this Registration Statement has been passed upon by Michael C. McCormick, Associate General Counsel — Corporate and Assistant Secretary for Ecolab.  Mr. McCormick beneficially owns, or has the right to acquire, shares of Common Stock, including options to purchase Common Stock under Ecolab stock incentive plans.  Mr. McCormick is eligible to participate in the 2010 Plan.

 

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 (including attorney’s fees) 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 upon application that, despite the adjudication of liability, but in view of all the circumstances of the case 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 on the merits or otherwise in 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; the right to indemnification and advancement of expenses arising under a provision of the certificate of incorporation or bylaws shall not be eliminated or impaired by an amendment to such provision after the occurrence of the act or omission that is the subject of civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the time of such act or commission explicitly authorizes such elimination or impairment after such act or omission has occurred; 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.

 

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

 

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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.    Exemption from Registration Claimed.

 

Not applicable.

 

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
4.1		Restated Certificate of Incorporation of Ecolab Inc., dated as of May 6, 2010 (filed herewith electronically).
4.2		By-Laws, as amended through February 26, 2010 (incorporated by reference to Exhibit 3 in Ecolab’s Form 8-K dated February 26, 2010).
5.1		Opinion and Consent of Michael C. McCormick (filed herewith electronically).
10.1		Ecolab Inc. 2010 Stock Incentive Plan (incorporated by reference to Exhibit C in Ecolab’s proxy statement for its 2010 Annual Meeting of Stockholders, filed on March 19, 2010).
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 Michael C. McCormick (included in Exhibit 5.1).
24.1		Powers of Attorney (filed herewith electronically).

 

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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.

 

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 registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and where applicable, each filing of an employee benefit plan’s 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.

 

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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 May 7, 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 May 7, 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, Jerry A. Grundhofer, Joel W. Johnson, Jerry W. Levin, Robert L. Lumpkins, C. Scott O’Hara, Victoria J. Reich and John J. Zillmer
Director not signing: Arthur J. Higgins

 

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ECOLAB INC.

REGISTRATION STATEMENT ON FORM S-8

 

INDEX TO EXHIBITS

 

Exhibit No.		Description
4.1		Restated Certificate of Incorporation of Ecolab Inc., dated as of May 6, 2010 (filed herewith electronically).
4.2		By-Laws, as amended through February 26, 2010 (incorporated by reference to Exhibit 3 in Ecolab’s Form 8-K dated February 26, 2010).
5.1		Opinion and Consent of Michael C. McCormick (filed herewith electronically).
10.1		Ecolab Inc. 2010 Stock Incentive Plan (incorporated by reference to Exhibit C in Ecolab’s proxy statement for its 2010 Annual Meeting of Stockholders, filed on March 19, 2010).
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 Michael C. McCormick (included in Exhibit 5.1).
24.1		Powers of Attorney (filed herewith electronically).

 

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