ECOLAB INC. — Registration Form 2007

Nov 5, 2007

S-8 1 a07-28258_1s8.htm S-8

*As filed with the Securities and Exchange Commission on November 5, 2007*

*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 STOCK PURCHASE PLAN

(Full Title of the Plan)

*Lawrence T. Bell, Esq.*

*Senior Vice President,*

*General Counsel and Secretary*

*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)

*Approximate date of commencement of proposed sale to the public:*

*Immediately upon the filing of this registration statement*

CALCULATION OF REGISTRATION FEE

| Title
of securities to be registered | | Proposed
maximum offering price per unit(2) | Proposed
maximum aggregate offering price(2) | Amount
of registration fee(2) |
| --- | --- | --- | --- | --- |
| Common stock,
par value $1.00 per share(3) | 1,000,000 | $ 46.55 | $ 46,550,000.00 | $ 1,429.09 |
| (1) | In addition, pursuant
to Rule 416(a) under the Securities Act of 1933, as amended, this
Registration Statement also covers an indeterminate number of additional
shares of common stock to be offered or sold as a result of the anti-dilution
provisions of the employee benefit plan described in this Registration
Statement. | | | |
| (2) | 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 November 1,
2007, as reported on the Consolidated Transaction Reporting System of the New
York Stock Exchange. | | | |
| (3) | Each share of common
stock includes a preferred stock purchase right issued pursuant to the terms
of the registrant’s Rights Agreement dated as of February 24, 2006. | | | |

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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:

| (1) | Annual report on Form 10-K for the year ended December
31, 2006; |
| --- | --- |
| (2) | Quarterly reports on Form 10-Q for the quarters
ended March 31, June 30 and September 30, 2007; |
| (3) | 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, 2006; and |
| (4) | 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 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 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, 2006 have been so incorporated in reliance on the reports 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. 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 24, 2007, July 24, 2007 and October 22, 2007 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 for their reports on the unaudited financial information because each such report is not a “report” or a “part” of the registration statement prepared or certified by PricewaterhouseCoopers LLP within the meaning of Sections 7 and 11 of the Securities Act.

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*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.

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

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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.

*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
15.1	Letter Regarding
Unaudited Interim Financial Information (filed herewith electronically).
23.1	Consent of Independent
Registered Public Accounting Firm (filed herewith electronically).
24.1	Powers of Attorney
(filed herewith electronically).

*Item 9. Undertakings.*

(a)
(1)	To file, during any
period in which offers or sales are being made, a post-effective amendment to
this registration statement:

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| | | (i) — (ii) | To include any
prospectus required by Section 10(a)(3) of the Securities Act; — 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 November 5, 2007.

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 November 5, 2007 by the following persons in the capacities indicated.

Signature	Title
/s/Douglas M.
Baker, Jr.	Chairman of the
Board, President and
Douglas M.
Baker, Jr.	Chief Executive
Officer (principal executive
	officer) and
Director
/s/Steven L.
Fritze	Executive Vice
President and Chief Financial
Steven L. Fritze	Officer
(principal financial officer)
/s/Daniel J.
Schmechel	Senior Vice
President and Controller (principal
Daniel J.
Schmechel	accounting
officer)
/s/Sarah Z.
Erickson	Directors
Sarah Z.
Erickson, as attorney-in-fact for Les S. Biller, Richard U. De Schutter,
Jerry A. Grundhofer, Stefan Hamelmann, Joel W. Johnson, Jerry W. Levin,
Robert L. Lumpkins, Beth M. Pritchard, Kasper Rorsted, Hans Van Bylen and
John J. Zillmer.

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ECOLAB INC.

REGISTRATION STATEMENT ON FORM S-8

INDEX TO EXHIBITS

Exhibit No.	Item	Method of Filing
15.1	Letter Regarding Unaudited Interim Financial Information	Filed herewith electronically.
23.1	Consent of Independent Registered Public Accounting
Firm	Filed herewith electronically.
24.1	Powers of Attorney	Filed herewith electronically.

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