AMENDMENT NO. 1 TO
AMENDED AND RESTATED STOCKHOLDER'S AGREEMENT
AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDER'S
AGREEMENT (this "Amendment"), dated as of June 30, 2000, between ECOLAB INC., a
Delaware corporation (the "Company"), and XXXXXX KOMMANDITGESELLSCHAFT AUF
AKTIEN, organized under the laws of the Federal Republic of Germany (the
"Stockholder").
W I T N E S S E T H:
WHEREAS, the Company and the Stockholder are party to that
certain Amended and Restated Stockholder's Agreement, dated as of June 26, 1991,
between the Company and the Stockholder (the "Stockholder's Agreement")
(capitalized terms used herein and not defined herein shall have the respective
meanings set forth in the Stockholder's Agreement); and
WHEREAS, the Company and the Stockholder have agreed to amend
certain provisions of the Stockholder's Agreement as set forth below.
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained, the parties hereto agree as follows:
1. ECONOMIC PARITY. Section 6 of the Stockholder's Agreement
is hereby amended and restated in its entirety as follows:
Section 6. ECONOMIC PARITY. If at any time during the
Agreement Period any person or group acquires beneficial ownership of
Voting Securities, whether pursuant to a tender or exchange offer made
pursuant to Section 14(d) of the 1934 Act as to which the Company has
recommended that its stockholders reject such offer or otherwise, such
that such person or group beneficially owns more than 50% of the
outstanding Voting Securities (a "Change in Control Transaction"), in
addition to any other rights the Stockholder may have, the Stockholder
shall have the right for a period of six months after such person or
group acquires such beneficial ownership to deliver a notice relating
to all, but not less than all, of the Shares then held by the
Stockholder at that time (the "Notice Shares") to the Company. Within
45 days following receipt of such notice, the Company shall pay to the
Stockholder an amount of consideration, in either, at the Company's
sole discretion, (i) cash or (ii) in the form of equity securities of
the Company or any other consideration that would not result in any
Shares held by the Stockholder being classified as a "redeemable equity
security" pursuant to the Commission's Accounting Series Release No.
268, having a value equal to the product of the number of Notice Shares
times the positive difference between (i) the consideration per Share
equal to the highest price per share paid by such person or group in
acquiring Voting Securities and (ii) in the case of Notice Shares held
by the Stockholder on the date of such payment, the Market Price
on the day before the payment and, in the case of Notice Shares sold by
the Stockholder after the Change in Control Transaction and prior to
such payment, the amount realized by the Stockholder pursuant to such
dispositions, net of transaction costs (the aggregate amount being the
"Aggregate Spread"). The Company shall indemnify and hold the
Stockholder harmless against any adverse tax consequences suffered by
the Stockholder as a result of the Company's payment to the Stockholder
pursuant to the previous sentence as compared to the tax consequences
of purchasing the Notice Shares at the consideration per share equal to
the highest price per share paid by such person or group in acquiring
Voting Securities. Such indemnification shall take the form of either,
at the Company's sole discretion, (i) cash or (ii) equity securities of
the Company or any other consideration that would not result in any
Shares held by the Stockholder being classified as a "redeemable equity
security" pursuant to the Commission's Accounting Series Release No.
268. In the event that the Company determines to make a payment to the
Stockholder pursuant to this Section 6 in a form of consideration other
than cash, the Company shall provide an opinion to the Stockholder from
an internationally recognized investment banking firm, mutually
agreeable to both parties hereto, as to the value of such
consideration. In addition, unless the Company arranges for the
purchase of such securities from the Stockholder at a price at least
equal to the Aggregate Spread, upon request of the Stockholder within
45 days of such payment, the Company shall, within 90 days of such
request, register the securities delivered as payment (the "Registered
Securities") for resale by the Stockholder to the extent possible in an
underwritten offering with an internationally recognized underwriter
mutually agreeable to both parties. If the aggregate net proceeds to
the Stockholder in such registered offering will be less than the
Aggregate Spread, the Company shall deliver to the Stockholder either,
at the Company's sole discretion, (i) cash equal to the amount by which
the Aggregate Spread exceeds such net proceeds, or (ii) additional
Registered Securities for resale in such registered offering in the
amount required so that the aggregate net proceeds of such offering to
the Stockholder equals the Aggregate Spread. In the event that the
Company determines to make a payment to the Stockholder pursuant to
this Section 6 in the form of cash, then the Company shall make such
payment within such 45 day period to the extent funds are legally
available therefor (and, if not then legally available therefor, as
soon thereafter as such funds are legally available therefor).
2. REFERENCES. Upon the effectiveness of this Amendment, all
references in the Stockholder's Agreement and in all other agreements,
documents, certificates, schedules and instruments executed pursuant thereto to
the Stockholder's Agreement including, without limitation, references to "this
Agreement," "hereunder," "hereof," "herein" and words of like import contained
in the Stockholder's Agreement shall, except where the context otherwise
requires, mean and be a reference to the Stockholder's Agreement, as amended
hereby.
3. RATIFICATION. Except as expressly amended hereby, all of
the provisions of the Stockholder's Agreement, as amended hereby, shall remain
unaltered and in full force and effect,
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and, as amended hereby, the Stockholder's Agreement is in all respects agreed to
and ratified and confirmed by the parties hereto.
4. SEVERABILITY. If any provision of this Amendment shall be
declared by any court of competent jurisdiction to be illegal, void or
unenforceable, all other provisions of this Amendment shall not be affected and
shall remain in full force and effect.
5. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
each of which shall be deemed an original.
6. HEADINGS. The headings of the paragraphs of this Amendment
are inserted for convenience only and shall not constitute a part hereof or
affect in any way the meaning or interpretation of this Amendment.
7. GOVERNING LAW. This Amendment shall be construed under and
governed by the laws of the State of Delaware without regard to the
conflicts-of-laws provisions thereof.
* * * * * * * *
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first above written.
ECOLAB INC.
By: /s/Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chairman of the Board, President and
Chief Executive Officer
XXXXXX KOMMANDITGESELLSCHAFT AUF AKTIEN
By: /s/Xx. Xxxxxx Xxxxxxxxxx
-------------------------------------
Name: Xx. Xxxxxx Xxxxxxxxxx
Title: Senior Vice President
By: /s/Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Corporate Counsel
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