Exhibit 1.1
$250,000,000
Ecolab Inc.
4.875% Notes due 2015
Underwriting
Agreement
February 5, 2008
Citigroup Global
Markets Inc.
Credit Suisse
Securities (USA) LLC
J.P. Morgan Securities
Inc.
As representatives of
the several
underwriters named in
Schedule I hereto
c/o
Citigroup Global Markets Inc.
388 Greenwich
Street
New York, New York
10013
Ladies and
Gentlemen:
Ecolab Inc., a
corporation organized under the laws of the State of Delaware (the
“Company”), proposes to sell to the several
underwriters named in Schedule I hereto (the
“Underwriters”), for whom you (the
“Representatives”) are acting as representatives,
$250,000,000 aggregate principal amount of its 4.875% Notes due
2015 (the “Securities”), to be issued under the
indenture, dated as of January 9, 2001, as amended by the
First Supplemental Indenture, dated as of February 8, 2008
(collectively, the “Indenture”), between the Company
and The Bank of New York Trust Company, N.A. (successor in interest
to J.P. Morgan Trust Company, National Association and Bank One,
National Association), as trustee (the
“Trustee”).
Any reference
herein to the Registration Statement, the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed
under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Base Prospectus,
any Preliminary Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to
the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of
the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein
by reference. Certain terms used herein are defined in
Section 20 hereof.
1.
Representations and Warranties . The Company
represents and warrants to, and agrees with, each Underwriter as
set forth below in this Section 1.
(a)
The Company meets the requirements for use of Form S-3 under
the Act and has prepared and filed with the Commission an automatic
shelf registration statement, as defined in Rule 405 on
Form S-3 (File No. 333-149052), including a
related
Base Prospectus, for
registration under the Act of the offering and sale of the
Securities. Such Registration Statement, including any
amendments thereto filed prior to the Execution Time, became
effective upon filing. The Company may have filed with the
Commission, as part of an amendment to the Registration Statement
or pursuant to Rule 424(b), one or more preliminary prospectus
supplements relating to the Securities, each of which has
previously been furnished to you. The Company will file with
the Commission a final prospectus supplement relating to the
Securities in accordance with Rule 424(b). As filed,
such final prospectus supplement shall contain all information
required by the Act and the rules thereunder, and, except to
the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in
the Base Prospectus and any Preliminary Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or
made therein. The Registration Statement, at the Execution
Time, meets the requirements set forth in
Rule 415(a)(1)(x).
(b)
On each Effective Date, the Registration Statement did, and when
the Final Prospectus is first filed in accordance with
Rule 424(b) and on the Closing Date (as defined
herein ), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; on each
Effective Date and at the Execution Time, the Registration
Statement did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading; on the Effective Date and on the Closing Date, the
Indenture did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act and the
rules thereunder; and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided , however , that the Company makes no
representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the
Trustee or (ii) the information contained in or omitted from
the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final Prospectus (or
any supplement thereto), it being understood and agreed that the
only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 8
hereof.
(c)
(i) The Disclosure Package and (ii) each electronic road
show, when taken together as a whole with the Disclosure Package,
does not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply
to statements in or omissions from
2
the Disclosure Package
based upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that
the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in
Section 8 hereof.
(d)
(i) At the time of filing the Registration Statement,
(ii) at the time of the most recent amendment thereto for the
purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Sections 13 or 15(d) of
the Exchange Act or form of prospectus), (iii) at the time the
Company or any person acting on its behalf (within the meaning, for
this clause only, of Rule 163(c)) made any offer relating to
the Securities in reliance on the exemption in Rule 163, and
(iv) at the Execution Time (with such date being used as the
determination date for purposes of this clause (iv)) , the Company
was or is (as the case may be) a “well-known seasoned
issuer” as defined in Rule 405. The Company agrees
to pay the fees required by the Commission relating to the
Securities within the time required by
Rule 456(b)(1) without regard to the proviso therein and
otherwise in accordance with Rules 456(b) and
457(r).
(e)
(i) At the earliest time after the filing of the Registration
Statement that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2))
of the Securities and (ii) as of the Execution Time (with such
date being used as the determination date for purposes of this
clause (ii)), the Company was not and is not an Ineligible Issuer
(as defined in Rule 405), without taking account of any
determination by the Commission pursuant to Rule 405 that it
is not necessary that the Company be considered an Ineligible
Issuer.
(f)
Each Issuer Free Writing Prospectus and the final term sheet
prepared and filed pursuant to Section 5(b) hereto does
not include any information that conflicts with the information
contained in the Registration Statement, including any document
incorporated therein by reference and any prospectus supplement
deemed to be a part thereof that has not been superseded or
modified. The foregoing sentence does not apply to statements
in or omissions from any Issuer Free Writing Prospectus based upon
and in conformity with written information furnished to the Company
by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8
hereof.
(g)
The documents incorporated
or deemed to be incorporated by reference in the Disclosure Package
and the Final Prospectus, when they became effective or were filed
with the Commission, as the case may be, conformed in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder, and, when read together with the Disclosure Package or
the Final Prospectus, at the Execution Time or on the filing date
of the Final Prospectus, as the case may be, and any amendment or
supplement thereto, none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not
3
misleading; and any
further documents so filed and incorporated by reference in the
Disclosure Package and the Final Prospectus, when such documents
become effective or are filed with the Commission, as the case may
be, will conform in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and, when read together
with the Final Prospectus on the dates such documents become
effective or are filed with the Commission, as the case may be,
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading;
(h)
The Company and each of
its subsidiaries that is a significant subsidiary, as defined in
Rule 405 of the Act (individually a “Significant
Subsidiary” and, collectively, the “Significant
Subsidiaries”) have been duly incorporated or organized and
validly existing as corporations or other legal entities in good
standing under the laws of their respective jurisdictions of
incorporation or organization to the extent such concept is
applicable in such jurisdiction, are duly qualified to do business
as described in the Disclosure Package and the Final Prospectus and
are in good standing as foreign corporations in each jurisdiction
in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification,
except where the failure to be so qualified and in good standing
would not be reasonably expected to have a material adverse effect
on the consolidated financial condition, results of operations or
business of the Company and its subsidiaries, taken as a whole (a
“Material Adverse Effect”), and where so qualified,
have all corporate or other power and authority necessary to own,
lease or operate their respective properties and to conduct the
businesses in which they are engaged as described in the Disclosure
Package and the Final Prospectus;
(i)
The Company has an
outstanding capitalization as set forth in the Disclosure Package
and the Final Prospectus (except for subsequent issuances pursuant
to employee benefit plans or pursuant to the exercise of
convertible securities or options and except for repurchases in
connection with open market or accelerated repurchase plans or
redemptions of shares of preferred stock), and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and
non-assessable.
(j)
The Securities have been duly
and validly authorized by the Company and, when duly executed,
issued and delivered by the Company pursuant to this Agreement, and
authenticated by the Trustee pursuant to the provisions of
the Indenture, against payment therefor by the Underwriters as provided in this Agreement,
will constitute valid and legally binding obligations of the Company
entitled to the benefits of the Indenture and enforceable against the
Company in accordance with their terms, except as the enforceability thereof
may be subject to (i) bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or similar laws affecting
creditors’ rights generally and (ii)
general principles of equity
(regardless of whether such enforceability is considered in a proceeding at law or in
equity); and the Securities, when issued and delivered, will conform in
all material respects to the description thereof contained
in the Disclosure Package and the Final Prospectus;
4
(k)
The Indenture has been
duly authorized by the Company and at the Closing Date, will have
been duly executed and delivered by the proper officers of the
Company (assuming due execution and delivery by the Trustee), will
constitute a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms,
except as the enforceability thereof may be subject to
(i) bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting
creditors’ rights generally and (ii) general principles
of equity (regardless of whether such enforceability is considered
in a proceeding at law or in equity); the Indenture conforms in all
material respects to the description thereof contained in the
Disclosure Package and the Final Prospectus; and the Indenture has
been duly qualified under the Trust Indenture Act
;
(l)
This Agreement has been duly
authorized, executed and delivered by the
Company;
(m)
The execution, delivery and
performance of this Agreement and the Indenture by the
Company, and the consummation of the transactions contemplated hereby and thereby, and the
issuance and delivery of the Securities will not conflict with or result
in a breach or violation of any of the terms or provisions of, or constitute
a default under, any indenture, lien, charge or encumbrance upon
any property or mortgage, deed of trust, loan agreement, or other
agreement or instrument to which the Company or any of its
Significant Subsidiaries is a party or by which it or any of them
is bound or to which any of the property or assets of the
Company or any of its
Significant Subsidiaries is subject, except for such conflicts,
breaches, violations or defaults which would not have a
Material Adverse Effect;
nor will such action result in any violation of the
provisions of the Restated
Certificate of Incorporation or by-laws of the Company; nor will such action result in any
violation of the provisions of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over the
Company or any of its Significant Subsidiaries or any of their
material properties or assets except for violations which would not have
a Material Adverse Effect; and, except for the registration of the
Securities under the Act, the qualification of the Indenture
under the Trust Indenture Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act
and applicable state or foreign securities or other Blue Sky
laws in connection with the purchase and distribution of the Securities by the
Underwriters, no consent, approval, authorization or order
of, or filing, registration or qualification of or with, any such court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement or the Indenture by the Company and the
consummation by the Company of the transactions contemplated hereby
and thereby, in each case other than such consents, approvals, authorizations,
registrations or qualifications which would not have a
Material Adverse Effect;
(n)
Neither the Company
nor any of its Significant Subsidiaries has sustained, since the
date as of which information is given in the Disclosure Package and
the Final Prospectus, any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree in any such case, which would
have a Material
5
Adverse Effect,
otherwise than as set forth or contemplated in the Prospectus; and,
since such date, there has not been a material adverse change, or
any development involving a prospective material adverse change, in
or affecting the general financial condition or results of
operations or business of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, otherwise than as set forth or
contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto);
(o)
PricewaterhouseCoopers LLP,
which has certified certain financial statements of the Company, which
statements appear in the Disclosure Package and the Final
Prospectus or are incorporated by reference therein, are
independent registered public accountants within the meaning of the
Act and the rules and r egulations of the Commission
thereunder;
(p)
The consolidated financial
statements (including the related notes and supporting schedules) filed as part of,
included or incorporated by reference in the Preliminary
Prospectus, the Final Prospectus and the Registration Statement
present fairly in all material respects the financial condition,
results of operations and cash flows of the Company and its consolidated
subsidiaries at the dates and for the periods indicated, and have been prepared
in conformity with United States generally accepted accounting principles
applied on a consistent basis throughout the periods involved,
except as otherwise set forth therein; and t
he summary financial data
set forth under the caption “Prospectus Supplement Summary
— Summary Financial Information” in the Preliminary
Prospectus and the Final Prospectus fairly present, on the basis
stated in the Preliminary Prospectus and the Final Prospectus, the
information included therein ;
(q)
Except as set forth in the
Disclosure Package and the Final Prospectus , there are no
legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a
party or of which any material property or assets of the
Company or any of its
Significant Subsidiaries is the subject which would reasonably be expected to have
a Material Adverse Effect; and to the Company’s knowledge,
no such proceedings are
threatened by governmental authorities or by
others;
(r)
Neither the Company nor any of its Significant Subsidiaries is in
default in any material respect,
and no event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term,
covenant or condition contained in (i) its charter or by-laws or
(ii) any material indenture, mortgage, deed of trust, loan
agreement or other agreement to which the Company or any of
its Significant Subsidiaries is a party or by which it or any of them is or
may be bound or to which any of the properties or assets of
the Company or any of its Significant Subsidiaries is subject or
(iii) any statute, law, rule, regulation, judgment,
order or decree of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its Significant
Subsidiaries or any of their respective properties,
except in the case of
(ii) and (iii) for such default which would not
reasonably be expected to have a Material Adverse Effect;
6
(s)
The statements in the Preliminary Prospectus and the Final
Prospectus under the heading “Material United States Tax
Consequences,” insofar as such statements summarize legal
matters, agreements, documents or proceedings discussed therein,
are, in all material respects, accurate and fair summaries of such
legal matters, agreements, documents or proceedings;
(t)
The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof
as described in the Disclosure Package and the Final Prospectus,
will not be an “investment company” as defined in the
Investment Company Act of 1940, as amended;
(u)
No labor problem or dispute with the employees of the Company or
any of its subsidiaries exists or, to the Company’s
knowledge, is threatened or imminent, and the Company is not aware
of any existing or imminent labor disturbance by the employees of
any of its or its subsidiaries’ principal suppliers,
contractors or customers, that could have a Material Adverse
Effect, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any amendment or
supplement thereto);
(v)
The Company and its subsidiaries possess all material licenses,
certificates, permits and other authorizations issued by all
applicable authorities necessary to conduct their respective
businesses, and neither the Company nor any such subsidiary has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Affect,
except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any amendment or supplement
thereto);
(w)
The Company and its
subsidiaries are (i) in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received and are
in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) have not received notice
of any actual or potential liability under any environmental law,
except where such non-compliance with Environmental Laws, failure
to receive required permits, licenses or other approvals, or
liability would not, individually or in the aggregate, have a
Material Adverse Effect, except as set forth in or contemplated in
the Disclosure Package and the Final Prospectus (exclusive of any
amendment or supplement thereto). Except for the 22 domestic and 8 foreign
waste disposal site clean-up activities imposed by the federal
Comprehensive Environmental Response, Compensation and Liability
Act (“CERCLA”) or state or foreign equivalents referred
to in the Company’s Annual Form 10-K for the year ended
December 31, 2006, neither the Company nor any of its
subsidiaries has been named as a “potentially responsible
party” under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, except where
the liability therefor would not, individually or in the aggregate,
have a Material Adverse Affect;
7
(x)
In the ordinary course of its business, the Company periodically
reviews the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in
the course of which it identifies and evaluates associated costs
and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties
or compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such
review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a
Material Adverse Effect, except as set forth in or contemplated in
the Disclosure Package and the Final Prospectus (exclusive of any
amendment or supplement thereto);
(y)
The Company maintains a system of internal accounting control over
financial reporting with respect to itself and its consolidated
subsidiaries sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles in the United States and to maintain
asset accountability; (iii) access to assets is permitted only
in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company’s internal control over financial reporting is
effective as of December 31, 2006 and the Company is not aware
of any material weakness in its internal control over financial
reporting;
(z)
The Company maintains “disclosure controls and
procedures” (as such term is defined in
Rule 13a-15(e) under the Exchange Act); such disclosure
controls and procedures are effective;
(aa)
There is and has been no failure on the part of the Company and any
of the Company’s directors or officers, in their capacities
as such, to comply with any provision of the Sarbanes-Oxley Act of
2002 and the rules and regulations promulgated in connection
therewith (the “Sarbanes-Oxley Act”), including
Section 402 relating to loans and Sections 302 and 906
relating to certifications;
(bb)
Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is aware of or
has taken any action, directly or indirectly, that would result in
a violation by such persons of the Foreign Corrupt Practices Act of
1977, as amended, and the rules and regulations thereunder
(the “FCPA”), including, without limitation, making use
of the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is
defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in
contravention of the FCPA; and the Company, its subsidiaries and,
to the knowledge of the Company, its affiliates have conducted
their businesses in compliance with the FCPA
8
and have instituted and
maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance
therewith;
(cc)
Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is currently
subject to any sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department
(“OFAC”); and the Company will not directly or indirectly use the
proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or
other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions
administered by OFAC;
(dd)
The Company has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
Any certificate
signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with
the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each
Underwriter.
2.
Purchase and Sale . Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at 99.180% of the principal amount of the
Securities set forth opposite such Underwriter’s name in
Schedule I hereto.
3.
Delivery and Payment . Delivery of and payment for the
Securities shall be made at 9:00 a.m., Chicago time on
February 8, 2008 or at such time on such later date not more
than three Business Days after the foregoing date as the
Representatives shall designate, which date and time may be
postponed by agreement between th
|
